2. The marriage has not up to this time been dissolved according to the rules laid down in the Civil Code; the spouses have simply obtained a judicial separation, pronounced July 12, 1890, by the County Court of Karolinenthal.

3. A short time after this separation, Marie K., having abjured the Austrian nationality and the Catholic religion to embrace the Hungarian nationality and the Unitarian religion, contracted a new marriage with Leopold W. at the Evangelical Church in Klausenburg.

4. Finally, Francis B. and Leopold W. both own landed estates at K., district of Karolinenthal, as to which they are subject to the jurisdiction and the provisions of the Austrian law.

It is doubtless averred that the ecclesiastical courts of Klausenburg had declared the marriage between Francis B. and Marie K. dissolved, and have authorized the latter to marry again. But, for one thing, these decisions affect Marie K. alone; for another, at the time of their marriage Francis-Victor B. and Marie K. belonged to the Catholic religion, and by the terms of § 111 of the Civil Code a marriage of that kind cannot be dissolved. This section is the more applicable to this case because at the time the judgments were given, Francis B. still belonged to the Austrian nationality, and as a result the Austrian courts alone could take jurisdiction of a suit for the dissolution of his marriage. Later, it is true, in 1894 or 1895, Francis-Victor B. himself abjured his Austrian nationality to become an Hungarian, and then abjured the Roman Catholic religion to embrace the Unitarian; that he obtained a judgment of the ecclesiastical court dissolving his marriage with Marie K. and authorizing him to marry again; and finally that he declared that he considered his wife's second marriage valid. But all these things are insufficient to justify the abandonment of the official inquiry set on foot by the Austrian decree, still in force, of August 23, 1819. For, 1, the laws of marriage have their foundation in public policy. 2. The marriage contracted October 30, 1878, according to the Catholic form, in the church of Nizbor, between Francis-Victor B. and Marie K., ought, in Austria, to be considered in full force. 3. The question of the validity of this marriage should be dealt with solely according to Austrian law; and the decisions rendered in this case by the ecclesiastical courts are foreign judgments without force here. 4. Since no Austrian court has declared the marriage between Francis-Victor B. and Marie K. at an end, it continues in existence. 5. The judicial separation between them, pronounced July 12, 1890, by the County Court of Karolinenthal, is not transformed into a divorce by the mere fact that the spouses have abjured the Catholic religion and entered the Protestant church. 6. According to Austrian law, especially § 93 of the Civil Code, spouses, even upon agreement between them, are not permitted to dissolve their marriage by their own will. 7. The consequences and legal effects of the foreign marriage between Leopold W. and Marie K. ought, as between the latter and her first husband, to be determined according to the situation as it was at

the moment of the second marriage. 8. At that time, Francis-Victor B. was still an Austrian citizen; furthermore, he, as well as Leopold W., possessed landed estates in Austria; both had their domicile there. The competence of the court of Prague is the clearer, because FrancisVictor B., in the petition addressed to the Court of First Instance of Prague, praying for an inquiry, described himself as belonging to the Catholic religion, and as an Austrian citizen domiciled within the district of the court. Marriage, as the foundation of the family, should be the union of one man with one wife. This principle is recognized by the Austrian Civil Code, for § 62 provides that "a man can at one time have but one wife, and a woman but one husband; and any person who, having been once married, desires to contract a new marriage should establish the dissolution of the marriage." And again § 111 provides: "Marriage legally contracted between Catholics cannot be dissolved save by the death of one party, and is therefore indissoluble, even if but one of the parties belongs, at the time of the marriage, to the Catholic Church." The last provision is to be applied, according to a ministerial circular of July 14, 1854 (Bulletin of Laws, no. 193), even in a case where after the marriage the spouses, or one of them, are converted to the Protestant religion. The statutory provisions have not been modified by the laws of May 25, 1868 (Bulletin of Laws, no. 47), and of April 9, 1870 (Bulletin of Laws, no. 51).

It follows from these facts that at the time of Marie K.'s second marriage the dissolution of her first marriage had not taken place in Austria; her second marriage was therefore null, according to the terms of §§ 62 and 111 of the Civil Code, in all countries governed by the Austrian Civil Code.1

TIRVEILLOT v. TIRVEILLOT.

CIVIL TRIBUNAL OF THE SEINE, 1898.

[Reported 25 Clunet, 927.]

THE COURT. Mme. Tirveillot has filed against her husband a petition for judicial separation, and to protect her eventual rights, pending the litigation, she has attached certain property; Tirveillot moves to dissolve the attachments. These questions are connected, and should be considered together.

As to the judicial separation, Tirveillot pleads to the jurisdiction of

1 Acc. Austria Supr. Ct. 9 Dec. 1885 (13 Clunet, 471); Paris, 14 March, 1889 (16 Clunet, 463).

Where one spouse is naturalized, the other retaining his or her former allegiance, French jurisprudence is uncertain whether the former may obtain a valid divorce in the state of his new allegiance. That he may, see Tunis, 21 March, 1892 (19 Clunet, 933); Algiers, 13 Dec. 1897 (25 Clunet, 723). That he may not, see Nice, 9 Dec. 1896 (24 Clunet, 333). — Ed.

the court on the ground that he became before his marriage a naturalized American citizen, and by the marriage conferred his own nationality on his wife; and the American courts thus have jurisdiction of the present question. Tirveillot proved that several years ago he left France to make his home in America, without the intention of returning; and on his application he was by the competent au thority naturalized as an American citizen; this was known to Mme. Tirveillot when she married the defendant, January 21, 1876, at the New York City Hall, according to the American forms. She herself was so sure of her husband's foreign nationality, and therefore of hers, that she set up a plea to the jurisdiction when the defendant's father, in 1878, filed against her in this court a petition for nullity of the mar riage. . . . It is certain that for more than twenty years, with the exception of several journeys to Europe made necessary by family affairs, Tirveillot has always lived in the United States of America, where he had his principal dwelling; since his naturalization he has never had a real domicile in France; he shows that it is possible for the petitioner to bring her suit in an American court; indeed, he has himself instituted a suit for divorce before the Marton County Court in the United States.

As to alimony: laws of the police and of safety bind all who live in the country. Although declaring itself without jurisdiction to pronounce a judicial separation, this court may take provisionally all necessary measures for the safety of the wife and the preservation of her property. We may allow alimony sufficient for her immediate needs and for the expenses she will immediately incur as a result of being required to bring her suit before a competent court.

As to expenses of litigation: the prayer for an allowance of litigation expenses is closely bound up with the principal suit; it belongs to the court which has jurisdiction of the substantial suit to determine this request.

As to the dissolution of attachment: since Mme. Tirveillot has made a regular attachment pendente lite by authority of court, and it falls within the class of cases where the court may authorize provisory measures, the attachment should be maintained.

For these reasons, the suits are joined, and disposed of in this single judgment: the court declares itself without jurisdiction to pass on Mme. Tirveillot's petition for judicial separation: and as to the provisory measures, orders Tirveillot to pay his wife alimony at the rate of three hundred francs a month, in advance; maintains the attachment; and declares itself incompetent to allow the petitioner the expenses of litigation. Orders Mme. Tirveillot to pay the costs of the petition for judicial separation, and Tirveillot to pay those of the application to dissolve the attachment.

PART II.

REMEDIES.

CHAPTER IV.

RIGHT OF ACTION.

RAFAEL v. VERELST.

COMMON PLEAS. 1776.

[Reported 2 William Blackstone, 1055.]

THIS case was tried before Lord Chief Justice DE GREY, by a special jury in London, at the sittings in Michaelmas Term, when they found a special verdict to the following effect: That the plaintiff was an Armenian merchant and a native of Ispahan - had for some years resided in Bengal; but in March, 1768, and before, had been resident at Fyzabad, the capital of the province of Owd, in the dominions of the Nabob Sujah al Dowlah, and part of the empire of Indostan, for the purpose of trading there, both on his own account, and as agent to some English merchants. That the defendant was President of Bengal under the East India Company, and that a battalion of the company's troops, being 600 men and upwards, were stationed at Fyzabad under the command of Captain Harper; and another brigade, commanded by Sir Robert Barker, was stationed at Illahabad, the then residence of the Mogul Shah Allum. That the battalion at Fyzabad were in the pay of the East India Company, and had been stationed there in 1766, at the request of the Nabob, from whom they received additional pay. That in March, 1768, the plaintiff was seized and imprisoned at Fyzabad (by order of the Nabob) by some soldiers of Captain Harper's battalion, and conveyed to Muxadabad, the capital of Bengal, and there detained for two months, till August, 1768. And that the said arrest and imprisonment were by the means and procurement of the defendant. That the Nabob was constitutionally independent of the East India Company, but in ordering the said arrest and imprisonment was under the awe and influence of the defendant, and acted contrary to his own inclination, being fearful of offending him. That the civil government of Bengal is carried on in the name of the Nabob of Bengal, but the real and effective powers thereof are in the East India Company, and

also the revenues, paying a stipend to the said Nabob of Bengal, and other officers, for the support of their rank and dignity. That the imprisonment in the province of Bengal was by the procurement of the defendant, and was a continuation of that made in the province of Owd. And if, upon the whole, the defendant is guilty of the whole trespass, they assess £4000 damages; if only of that in Bengal, then only £3000; if only of that in Owd, £1000; and conclude to the judg ment of the court.1

DE GREY, C. J. In the present case there are some things found by the special verdict, which have not, nor cannot, be insisted on as material in excuse of the defendant. As, 1. That the plaintiff is an alien; for this is no objection in personal actions; 1 Atk. 51. 2. That the defendant was president or governor of Bengal; he not having justified specially under that authority. 3. The place where the imprisonment happened; viz. the dominions of a foreign prince. Crimes are in their nature local, and the jurisdiction of crimes is local. And so as to the rights of real property, the subject being fixed and immovable. But personal injuries are of a transitory nature, and sequuntur forum rei. And though in all declarations of trespass, it is laid "contra pacem Regis," yet that is only matter of form, and not traversable. But the great doubt is, whether, when an injurious act is committed by color of juridical authority, or by the order of an absolute prince, such act can be a trespass there, where it is done, or here, where it is not done. I shall say nothing as to the nature of the Nabob's government, or to the position, that the commands of absolute princes do of course legalize their acts. But I consider the Nabob as not being the actor in this case; but the act to be done, in point of law, by those who procured or commanded it; and in them it may doubtless be a trespass. Sujah Dowla was a mere instrument. He acted not from any motives of his own, but gave way through awe and fear. If, in the doing of an act, there be several intervening agents, and one happens not to be amenable, will it be said that all the rest are excused? Suppose it the very act of the Nabob, who lends himself to the defendant's will, and undergoes a voluntary servitude to his pleasure, the accidental circumstances of such a man shall not exempt the rest, who concur in the act. It is laid down in Foster, 125, that procuring a felony to be committed makes an accessory to the felony; and I take it to be a settled rule, that whatever makes an accessory in felony will make a principal in trespass. Since, therefore, the jury have found the procurement of the defendant, it follows that he is liable as a principal, for this trespass.

GOULD, J., of the same opinion, and cited the Earl of Salop's case, 9 Rep. 42.

BLACKSTONE, J., of the same opinion. The finding of this verdict has removed all former doubts. It not only finds the imprisonment to have been committed by the means and procurement, but by the com1 Arguments of counsel are omitted.-ED.