of it, but that no future circumstance changing the hostile character of the claimant to that of a friend or subject, can entitle him to restitution. Whether the claimant, in this case, was a neutral or a British subject, does not appear. But if the former, it will not, it is presumed, be contended, that he is, upon the principles of national law, less to be favored in the courts of the belligerent, than a subject of that nation domiciled in the country of the adverse belligerent.

Whitehill's Case, however, referred to frequently in Robinson's Reports, comes fully up to the present, because he was a British subject, who had settled but a few days in the hostile country, but before he knew or could have known of the declaration of war; yet, as he went there with an intention to settle, this, connected with his residence, short as it was, fixed his national character, and identified him with the enemy of the country he had so recently quitted. The want of notice, and of an opportunity to extricate himself from a situation to which he had so recently and so innocently exposed himself, could not prevail to protect his property against the belligerent rights of his own country, and to save it from confiscation. There are many other strong cases upon these points, which I forbear to notice particularly, from an unwillingness to swell this opinion already too long.

The sentence of the court is as follows: This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration whereof, it is decreed and ordered, that the sentence of the circuit court of Massachusetts condemning the one hundred casks of white lead claimed by Lenox & Maitland be, and the same is hereby affirmed with costs. And that the sentence of the said circuit court as to the claim of Magee & Jones to twenty-one trunks of merchandise be, and the same is hereby reversed and annulled; and that the said twenty-one trunks of merchandise be condemned to the captors; and that the sentence of the said circuit court as to the ship Venus claimed by Lenox & Maitland be, and the same is hereby reversed; and that the said ship Venus be condemned, the one-half thereof to the captors, and other half to the United States, under the order of the said circuit That the sentence of the said circuit court as to the claim

court.

of William Maitland to one-half of one hundred and fifty crates of earthenware, thirty-five cases and three casks of copper, nine pieces of cotton bagging and twenty and four-twentieths tons of coal, be, and the same is hereby reversed, and that the same be condemned to the captors; and that the sentence of the said circuit court, as to the claim of Alexander McGregor to one-half of one hundred and ninety-eight packages of merchandise, as the joint property of himself and Lenox & Maitland, and of the claim of William Maitland for one-fourth of the same goods, and of the claim of Alexander McGregor to twenty-five pieces of cotton bagging, and five trunks of merchandise, be, and the same is hereby reversed and annulled, and that the same be condemned to the captors; and that the said cause be remanded to the said circuit court for further proceedings to be had therein.

JURISDICTON AND CHOICE

OF LAW.

IN GENERAL.

DEWITT v. BUCHANAN, 54 BARB. 31, (1868).

THIS is a demurrer to an answer. The action was for assault and battery, and the answer averred that at the time of committing the tort alleged in the complaint, the plaintiff and defendant were, and still are, subjects of Great Britain, and citizens and residents of Canada, and that the assault and battery complained of was committed in said province. The plaintiff demurred on the ground that the answer did not state facts constituting a defense.

G. W. Lewis, for the plaintiff.

Cantwell & Beaman, for the defendant.

JAMES, J. Actions for injuries to the person are transitory, and follow the person; and therefore, so far as the nature of the action is concerned, one foreigner may sue another foreigner in our courts for a tort committed in another country, the same as on a contract made in another country.

It is now settled that the courts of this state have, and will entertain, jurisdiction of actions for personal injuries committed abroad, when both, or either of the parties, are citizens of the United States. (Glen v. Hodges, 9 John. 67. Smith v. Bull, 17 Wend. 323. Lister v. Wright, 2 Hill, 320. Johnson v. Dalton, I Cowen, 548.) I am aware that the New York Common Pleas, in Molony v. Dows, (8 Abb. 316,) held otherwise. But that case is not regarded as authority in this court. That decision was probably affected by the necessities of the case, overlooking the second section of the fourth article of the constitution of the United States.

The case of Fabrigas v. Mostyn (2 Black. 929) is always referred to on this question. In that case Lord Mansfield put, by

way of illustration, the case of two Frenchmen fighting in France, and expressed a doubt of the jurisdiction of the courts in England in such case. But the reason given why the court would not have jurisdiction in such case has been held, in this state, not sufficient. (See McIvor v. McCabe, 26 How. Pr. 261, and Gardner v. Thomas, 14 John. 134.) In the latter case the action was for a tort committed on the high seas, on board a British vessel, both parties being British subjects; it originated in a justice's court, where the plaintiff had judgment. "The court held that although it might take cognizance of torts committed on the high seas, on board foreign vessels, when both parties were foreigners, yet on principles of policy it would often rest in the sound discretion of the court to afford jurisdiction, or not, according to the circumstances of each case." On this ground the judgment of the justice was reversed.

I have been unable to discover any principle on which the jurisdiction of the court in such a case as this can be denied; but as a question of policy, there are many reasons why jurisdiction should not be entertained. Unless for special reasons, non-resident foreigners should not be permitted the use of our courts to redress wrongs or enforce contracts, committed or made within their own territory. Our courts are organized and maintained at our own expense, for the use, benefit and protection of our citizens. Foreigners should not be invited to bring their matters here for litigation. But if a foreigner flee to this country, he may be pursued and prosecuted here.

Nothing appears in this case showing why jurisdiction should be entertained. It seems an ordinary case of assault and battery, committed in Canada, both parties still residing there, the defendant being casually here when arrested. It is most clearly against the interests of those living on the border for our courts to encourage or entertain jurisdiction of such actions. do so would establish a practice which might often be attended with serious disadvantage to persons crossing the border. The true policy is to refuse jurisdiction in all such cases, unless for special reasons shown.

Το

But the case is now before us upon demurrer to the suffi

ciency of a pleading, not on a motion to dismiss. In the former case the court has power to determine the sufficiency of the pleading only; in the latter case it has a discretion to adjudge whether it will continue jurisdiction of the action or not. In the former, no papers except the pleadings are properly before the court, and if any special reasons exist for retaining jurisdiction, they would not, and could not, properly appear; while in the latter case the special reasons, if any, could be set forth in the opposing affidavits.

From the foregoing it will be seen that the demurrer is well taken; that the answer does not set forth facts constituting a defense; that as a question of law this court has jurisdiction of torts committed in a foreign country, between non-resident foreigners; but as a matter of policy will only exercise it in its discretion, in exceptional cases.

There must be judgment for the plaintiff on the demurrer, with costs, with leave to the defendant to amend, or to move to dismiss the complaint on the grounds set forth in the answer.

MACHADO v. FONTES, 2 L. R. Q. B. D. 231, (1897).

APPEAL from Kennedy J. at chambers.

The plaintiff brought this action to recover damages from the defendant for an alleged libel upon the plaintiff contained in a pamphlet in the Portuguese language alleged to have been published by the Plaintiff in Brazil.

The defendant delivered a statement of defence (in which, amongst other defences, he denied the alleged libel), and he afterwards took out a summons for leave to amend his defence by adding the following plea: "Further the defendant will contend that if (contrary to the defendant's contention) the said pamphlet has been published in Brazil, by the Brazilian law the publication of the said pamphlet in Brazil cannot be the ground of legal proceedings against the defendant in Brazil in which damages can be recovered, or (alternatively) cannot be the ground of legal proceedings against the defendant in Brazil in which the plaintiff can recover general damages for any injury to his credit, character, or feelings."