tain of the expedition were then to proceed to the Zambesi. The plaintiff had been engaged principally as guide, on account of his knowledge of the interior. He was to receive a certain salary, to commence from the time the expedition arrived at Walwich Bay; £5 were to be paid him for expenses to Cape Town, and Steineker had also received £100 for the expenses of the members of the expedition at Cape Town. At the latter place Steineker dismissed the plaintiff from the company's service, without making these payments, and he, alleging he was about to bring an action against the company for wrongful dismissal, now made the present application. Neither the plaintiff nor Steineker was domiciled here.1 DE VILLIERS, C. J. This matter was brought before me in the course of last week in the form of an application to restrain the respondent company from removing the 160 cases which are now at the docks, on the ground that it is the intention of the applicant to bring an action for damages for breach of contract. I at once refused to make any order on such an application, because the fact that goods belonging to the respondent are in this Colony gives the applicant no right to arrest these goods. The form of the application has now been altered, and the arrest of the goods is sought on the grounds that the applicant wishes to obtain jurisdiction by means of attachment, and that the attachment is really for the purpose of founding jurisdiction in this court. The question now to be determined is whether this court ought, at the instance of a foreigner not resident in this Colony, to attach property belonging to another non-resident foreigner, for the purpose of founding jurisdiction in an action intended to be instituted here for the purpose of recovering damages for the breach of a contract entered into in a foreign country. The question has been somewhat complicated by the further question whether the contract, although entered into in Ger many, is not one which must be performed in this Colony; but it is clear, from the applicant's own affidavit, that he was engaged to perform certain services in Ovampoland, and other native territories in the interior of Africa which are admitted to be beyond the jurisdiction of this court. The expedition started from Hamburg, and the fact that the starting-point in Africa is Walwich Bay, which is within the Colony, does not justify the court in the holding that the contract is to be performed within the jurisdiction. The same remark applies to the circumstance, that a portion of the applicant's travelling expenses was to be paid upon the arrival of the expedition in Cape Town. The expedition was to use certain ports of this Colony, as ports of lading, for the purpose of reaching its ultimate destination, which was the interior of Africa, where the whole of its business was to be carried on. The alleged breach of contract consists, not in refusing to pay the small sum payable on arrival in Cape Town, but in dismissing the applicant altogether, and preventing him from joining the expedition into the interior. The 30th section of the Charter of Justice enacts that the Su 1 Arguments of counsel are omitted. ED. preme Court "shall have cognizance of all pleas, and jurisdiction in all causes, whether civil, criminal, or mixed, arising within the said Colony, with jurisdiction over our subjects, and all other persons whomsoever, residing and being within the said Colony, in as full and ample a manner and to all intents and purposes, as the Supreme Court now existing within the said Colony now hath or can lawfully exercise the same." It has never been understood in this court that this section excludes the jurisdiction acquired over persons, not domiciled in this Colony, by means of an attachment of their person or property ad fundandam (or to use Voet's expression, which more correctly expresses the modern practice, ad firmandam) jurisdictionem. But I am not aware of a single case in this court, in which such an attachment has been issued, for the purpose of establishing a jurisdiction, for which no other legal ground existed. In the case of Hornblow v. Fotheringham (1 Menzies, 365), Menzies, J., expressed grave doubt whether the court should use its process of arrest, at the instance of a peregrinus, in order to create a jurisdiction which, without such arrest, it would not possess. In Heinaman v. Jenkins (2 Searle, 10), Bell, J., discharged a writ of arrest which had been granted against an American ship, calling at the port of Table Bay, in respect of a contract entered into at New York, to be fulfilled in Melbourne. It is true that the arrest in that case had been made under the 8th Rule of court, and that the learned judge at first decided to discharge the arrest upon grounds, which are not supported by the terms of the Rule, or by the invariable practice of the court, but upon the simple question of jurisdiction his final decision certainly did not support the present applicant's contention. In Wilhelm v. Francis (Buchanan's Rep., 1876, p. 216), where the plaintiff and defendant resided out of the jurisdiction of the court, and the contract between them had been entered into beyond, and was not to be performed in the Colony, this court refused to order the attachment of property for the purpose of founding jurisdiction. Two cases have been cited which at first sight might appear to support the applicant's contention, but when closely examined they will be found not to have any real application. In Dunell v. Van der Plank (3 Menz. 112), the headnote states that arrest of a ship to found jurisdiction was "granted at the instance of an English creditor on an English contract; " but, from the case itself, it would appear that the plaintiffs on the record were not English creditors, but persons domiciled in the Colony. The defendant's counsel indeed argued that the real plaintiffs were English creditors, but the court does not appear to have adopted this view. It is true that Menzies, J., held that the attachment ought to be granted, even if applied for by the plaintiffs as attorneys for the English creditors; but this was not the true ground of the decision, and his dictum is not quite consistent with the view expressed by him in the previous case of Hornblow v. Fotheringham. In Poultney v. Van Santen (Buch. Rep., 1874, p. 76), a rule was made absolute attaching the proceeds of the sale of an abandoned ship, pending an action by a passenger for damages arising from the non-completion of the voyage from Buenos Ayres to New South Wales, the passage having been taken in Buenos Ayres. There, however, no objection was taken to the jurisdiction of this court, but, on the contrary, the defendant had submitted to the jurisdiction by tendering a certain sum as damages, with the costs incurred in this court. By applying for an order to attach property to found jurisdiction, the applicant in the present case virtually admits that without such an attachment the court would not possess sufficient jurisdiction. What, then, are the grounds upon which the jurisdiction of this court can be exercised, in respect of any contract over any defendant without his consent, express or implied? The grounds are threefold; viz. by virtue of the defendant's domicile being here, by virtue of the contract either having been entered into here or having to be performed here, and by virtue of the subject-matter in an action in rem being situated in this Colony. If the defendant is domiciled here, the process of attachment is wholly unnecessary; but, in the absence of such domicile, the invariable practice in this court has been to attach the person or the property of the defendants, for the purpose of founding jurisdiction, even where either of the two latter requisites is present. In the present case, every one of the three requisites is wanting. Ought the court then to supply the defect, by issuing its process for the attachment of property belonging to the respondent, which happens to be in the Colony in its transit to the interior? Such a process was wholly unknown to the Roman law, which, however, allowed a defendant to be sued in the courts of the country where the contract was entered into, or agreed to be performed. The canon law, according to Groenewegen (ad Cod. 3, 13, 2), did not allow a person to be sued in the country of the contract unless found there, and this rule, he adds, "is consistent with the customs of ourselves and other nations." And in another passage (ad Cod. 3, 18) he says: "Our ancestors have deemed it unjust and contrary to all reasons to send their sickle into the harvest of another jurisdiction, under the pretext of their own country being the place where a' wrong was committed, or the place where a contract was entered into, or intended to be performed." He adds: "I have no doubt whatever that this custom of ours has given rise to the modern practice of arresting debtors, than which nothing is more common." The practice of arresting debtors or attaching their property in order to found jurisdiction was well established in Holland, in the time of Voet; but it is by no means clear to me, from the Dutch cases I have consulted, that it was ever actually exercised where the contract had been entered into and was to be performed elsewhere than in Holland. In actions in rem it was of course a common practice to attach property situate in Holland for the purpose of confirming jurisdiction. In regard to this Colony having regard to the terms of the 30th section of the Charter of Justice, and to the practice of modern nations, I am of opinion that jurisdiction ought not to be assumed by this court, in cases where not one of the requisite grounds which I have enumerated is present. In But, quite independently of the English practice, I am satisfied, for the reasons already given, that the present is not a case in which the court should issue its process for the attachment of a foreigner's property for the purpose of confirming or establishing jurisdiction over him. The application must therefore be refused with costs.1 1 Acc. Blaine v. Colonial Marine Assurance Co., 1 Juta, 402; Wilhelm v. Francis, 6 Buchanan, 216. And see to the same effect Imperial Ottoman Bank v. Richardson (Marseilles, 1893), 21 Clunet, 112. — ED. TODESCO v. DUMONT. CIVIL TRIBUNAL OF THE SEINE. 1890. [Reported 18 Clunet, 559.] THE COURT. Todesco, an Austrian subject domiciled at Vienna, alleges that Dumont, a German without known domicile at Paris, residing in London, should be ordered to pay him 44,700.95 francs, the amount of a note made by Dumont to Todesco, dated Augsburg, March 9, 1876, registered at Paris, Aug. 16, 1889. Todesco further prays the court to validate the garnishment made by him upon this note, on Betzold, a banker of Paris, Aug. 16, 1889. Incidentally Todesco moves that the question of validation be continued until a competent court has passed on the validity of the principal obligation. Dumont pleads to the jurisdiction of this court, on the ground that the parties are foreigners, and the obligation was contracted in another country. Though the court is incompetent in such a case to determine, as between strangers, the existence of the obligation, it is on the contrary competent to pass upon the legality of an attachment or of a levy of execution resulting from a garnishment made within its jurisdiction. It ought always to grant a continuance to the attaching creditor to enable him to prove his claim before a competent court, on penalty, in case of failure to do so, of nullity of the whole process. On these grounds the court has jurisdiction only of the question of the validity of the garnishment. A continuance is granted for six months from this date, within which time, on penalty of nullity, Todesco shall sue said Dumont, on the principal obligation, before a court of competent jurisdiction. SECTION IV. JURISDICTION FOR DIVORCE. LE MESURIER v. LE MESURIER. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. 1895. [Reported [1895] Appeal Cases, 517.] APPEAL from the Supreme Court of Ceylon, which dismissed appellant's libel for divorce on the ground of lack of jurisdiction. At the time of the marriage (which was solemnized in England) appel |