Lapas attēli

rendered incapable for some particular act." Of the first class is the statute 7 Anne, c. 19, enabling infant trustees to convey; of the second is the act 1 Jac. 1, c. 15, s. 5, disabling persons subject to the bankrupt laws from conveying or transferring their lands to their children or others, except in a particular way.

If the object be of a personal nature, as to contract or become security, the statute is purely personal, and the quality accompanies the person everywhere. If the object be of a real nature, as to alienate or settle lands, and the subject matter real property, then the person is only affected with respect to this species of property locally, and it is confined to the domicile; of which dower in England is an example. Personal disqualifications, the creatures of positive law, and especially such as are of a penal nature are not generally regarded in other countries. Hence the disqualifications arising from heresy, excommunication, popish recusancy, &c., are not enforced in any country except in that in which they originate. The acts of idiots, lunatics and married women escaping into foreign countries, are not deemed obligatory as regards property there, even if sanctioned by the foreign law unless the law of their own country adopt such foreign law as a rule to govern in such cases.

Real statutes, are those which affect directly things as their object or motive, whether movable or immoveable, and independently of the personal state of him who is to exercise the acts of ownership on them. According to this description, the statute of 22 & 23 C. 2, c. 10, regulating the distribution of the personal property of intestates, is as much a real statute as that which declares that no lands in England shall pass by a will not attested by three witnesses. But there is nevertheless a marked difference in the powers and operations of a real statute in these two cases. With respect to immovable property, the law of the situation does not defer by comity to the law of the actual domicile, which may,

NOTE 12.-Where the statute obliges an infant to indemnify the city, town or county against the expense of supporting his illegitimate child, and makes it necessary for him to enter into a bond with sureties, for the purpose, as the only means by which he can obtain a discharge from arrest; that provision, without further words, gives the infant a legal capacity to make a binding obligation, and his infancy is no defence to an action on the bond. People v. Moores, 4 Denio, 518; Baker v. Lovett, 6 Mass. 80, 4 Mass. 376, 1 Mason 83. Any disability created by the common law, is removed by the enactment of a statute. The compe tency of an infant to do all acts within the purview of such statute, is as complete as that of a person of full age. And whenever a statute has authorized a contract for the public service, which, from its nature and objects, is manifestly intended to be performed by infants, such a contract must, in point of law, be deemed to be for their benefit, and for the public benefit, so that when bona flde made, it is neither void nor voidable, but is strictly obligatory upon them.

perhaps, be content with two witnesses in the devise of lands ;*a while a will made abroad, according to the law of the testator's domicile, is allowed to pass personal, or even funded property in England;b and the statute of distributions gives way, with respect to the personal property of intestates in England, to the laws of the foreign domicile, in the case where a person dies intestate abroad;c and this by favor of the fiction of law that mobilia sequuntur personam.

Whether a given statute be personal, real or mixed, and if mixed, whether the personalty or realty prevail, is often a subject of learned debate. The rules for distinguishing the several kinds, and the application of those rules to the particular case, are often keenly controverted among the civilians who seem to agree in nothing but that the matter is full of difficulty and uncertainty.d

When the law of the domicile of the creditor and debtor differs as to classing debts and rights, and rights of action, the law of the debtor must prevail, in suits thereon, according to the maxims actio sequitur forum rei, and debita sequuntur personam debitoris. It is indeed a maxim, that debts and rights of action, inhaerant ossibus creditoris, attend the person of a creditor, but to recover them he must follow the forum rei, and the person of the creditor. The explanation of this seeming contradiction is, that personal actions arising from debts or obligations, have two characters; active as they respect the right of the creditor, and passive as they regard the obligation of the debtor. If the question regard the distribution of the creditors estate, the law of his domicil is to be observed; if the question be in what degree or proportion the representatives of the debtor should be charged with payments from his effects, then it is of a passive nature, and the law of the domicile of the debtor should be followed. The extent of the vinculum obligationes of a contract, is regulated by the law of the place of contract. A legal discharge of a debt in the country where it is contracted, will operate as a discharge in all others. The place where the bankrupt is arrested, taken in execution, or commits an act of bankruptcy, or where the concursos of creditors, or præ, and concurrentiae, are held in the proper place of distribution. All other claimants must be drawn to the locus concursus creditorum ; its law (jus domicilii) is binding, and the equitable doctrine of cession and discharge is now become a general principle acted upon a Qy. Voet, contra.

b Thomas v. Walker, 2 Ves, 35, Fonblanque, vol, 2, 446; Henry on For. Law, 14. e Lord Annandale's case before the House of Lords, 1828.

d Hertius de Collisione legem, § 4.

* Professor Voet, Lib. 1, Tit. 4, part 2, sect. 13, considers "ad validitatem actus cujusque, sufficere adhibitionem solemnitatum quos lex loci IN QUO ACTUS GERITUR præ. scripserit observandas," and he assigns as a reason that industria exquisitissima would be insufficient to acquire a knowledge of the laws of different countries.

in every country.a It is otherwise when the debt is contracted in a foreign country.b A foreign bankruptcy is no bar to the demand of a debt contracted in England; but by a decision not founded on any general principle, but upon the effect of the particular statute (54. Geo. 3 C. 137) a debt contracted in England by a trader residing in Scotland, is barred by a discharge under sequestration, in like manner as debts contracted in Scotland.c MIXED statutes affect both persons and things, and constitute a third class, which (after spending much time and profuse ink in unprofitable disputes) it was found absolutely necessary to admit; there being so many statutes which are not either purely personal or purely real. Whether a given statute be personal, real, or mixed; and if mixed, whether the personalty or realty prevail, is often a subject of learned debate. The rules for distinguishing the several kinds, and the application of those rules to the particular case, are often keenly controverted among the civilians, who seem to agree in nothing, but that the matter is full of difficulty and uncertainty. "In iis definiendes mirum est quam sudant doctores."d

In the case of the conflict of statutes, the following maxims seem to obtain:

Where the personal statutes of the domicil of origin or birth, and those of the actual domicil, are discrepant, the latter give way to the former, by comity, and for the reciprocal advantage of sovereigns, that each may preserve his authority over his own subjects. Thus the statute fixing the majority at twenty-one, habilitates the party in another domicil where the age of twenty-five is required.

When the domicil of origin gives a personal capacity, but that of the situation of the real property is different and prohibitory, the lex loci rei sita prevails.

But when statutes real, differ in degree, each has its effect pro tanto. If a man has possessions in different states, in one of which he is allowed by the law to dispose by will of a third, and in another only of a fifth, he may dispose of his properties severally, in conformity with each.

Marriage contracts are juris gentium.e Where there is a marriage contract, regulating the rights and properties of the parties, that will be held equally valid everywhere.f

a Hunter v. Potts, 4 T. R. 182; Sills and Warwick, 2 H. Black. R. 402; Ballantine and Golding, Cooke's Bankrupt Laws, 499.

b Smith v. Buchanan, 1 East. R. 16; Potter v. Brown, 5 East. 124, 2 HL. BL 553, 8 T. R. 609; Lewis and Owen, 4, B. and A. 654

c Sidaway v. Hay, 3 B. and C. 13.

d Hertius de Collisione legum, § 4.

e Scrimshire v. Scrimshire, 2 Hagg. Consist. Rep. p. 412.

f Story on Conflict of Laws, p. 159.

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Where there is a change of domicil, the law of the actual domicil will govern the rights of the parties as to all future acquisitions.a

Where there is no express contract, the law of the matrimonial domicil will govern as to present, and where there is no change of domicil,—as to future acquired property in that place; and as to personal property everywhere. As to immovable property, the lex rei sita will prevail.

Suppose a husband and wife, married in, and subjects of, England, should become permanently domiciled in France, would a will of the wife in France (which she could not make in England) in regard to her property in England, made in favor of her husband or others, be held valid in England?b Hertius, Paul Voet, John Voet, Burgundus, Rodenburg, Pothier and Merlin, hold that the law of the new domicil must, in all cases of a change of domicil, govern the capacities and rights of property of married women, as well as their obligations and duties; but the law of England is singularly reluctant to admit, by comity, any doctrine which is repugnant to the settled principles and policy of its own laws.

There is no doubt, that, where there is a change of domicil, the law of the actual domicil, and not of the matrimonial domicil, will govern future acquisitions of movable property, c provided always, that the law of the place do not prohibit such arrangements.d For though in general the law of the matrimonial domicil is to govern in relation to the incidents and effects of marriage, the doctrine must be received with many qualifications.

A marriage in France or Prussia may be dissolved for incompatibility of temper; but no divorce would be granted for such a cause in England, Scotland, or America. "If," said a learned. Scotch judge,e "a man in this country (Scotland) were to confine his wife in a cage, or beat her with a rod of the thickness of the judge's finger; would it be any justification, in any court, to allege that these were powers which the laws of England conferred on a husband? and that he was entitled to exercise them because his marriage was celebrated in that country?"

"As to the constitution of marriage," says the same learned scotch judge, "as it is merely a personal consensual contract, it must be valid everywhere, if celebrated according to the lex loci; but with regard to the rights, duties and obligations thence arising, the law of the domicil must be looked to."

a Ibid.

Merlin. Repert. Testament, s. 1. 5, art. 1, p. 309.

e Stein's case, 1 Rose, Rank. Ca. Appx. 481; Henry on Foreign Law, 48; Burge Comm. on Col. and Foreign Law, pt. 1, c. 7, s. 18, p. 618.

d Huber, lib. 1, tit. 3, s. 2.

• Ferguson on Marriage and Divorce 399, per Lord Robinson.

The rule that a marriage which is valid where it is celebrated, is valid everywhere,a and if invalid there, is invalid everywhere, has three exceptions. First those marriages involving polygamy, and incest. Secondly, those publicly prohibited by the law of a country from motives of policy. Thirdly, those celebrated in foreign countries, by subjects entitling themselves under special circumstances to the benefits of the laws of their own country.

"The doctrine of the English courts in regard to the indissolubility of English marriages, celebrated in England, notwithstanding a subsequent divorce in a foreign country, affords," says Story, "a still more striking illustration; as, in its practical effects it may render the issue of a second marriage illegitimate; so that a son, the issue of a second marriage in Scotland, may be legitimate there, and illegitimate in England; he may be a lawful Scotch peer, and yet lose the English estates which support his peerage."b

Marriages in foreign factories, in conquered places, in desert or barbarous countries,-at the embassador's hotel, by the resident chaplain, etc., are cases illustrating the third exception. But though the rule of international law certainly is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated; in France, where parental restraints upon the marriage of minors are carried to the greatest extent, it is broadly laid down that the marriages of Frenchmen in foreign countries shall not be deemed valid, if the parties are not, by its own law, competent to contract, by reason of their being under parental power; that is, if they be under twenty-five years of age. Majority, in France, is now fixed at twenty-one, in all other cases, except for the sake of contracting marriage; when it is not attained until twenty-five.c

It was decided in Lolly's case, that a second marriage after a divorce in Scotland from a marriage originally celebrated in England between English subjects is void in England, although such divorce and second marriage would be good by the law of Scotland.d But in Warrender v. Warrender, it was held that the Courts of Scotland had a clear jurisdiction to decide a divorce between parties actually domiciled in Scotland, notwithstanding that the marriage was contracted in England; and that the House of Lords, sitting as a Court of Appeal, in a case coming from Scotland, were bound to administer the law of Scotland.e

a 1 Burge Com. on Col. & For. Law, ch. 5, § 3, p. 188.

b Story on Conflict of Laws, 108; citing Beazley v. Beazley, 3 Hagg. Ecc. R. 639 c Code Civil, art. 148, 448.

d Lolly's Ca. 1 Russ. and Ryan, 236.

Warrender v. Warrender, 8 Bligh. R. 891. And see 2 Clarke and Fin. R. 567, note. Macarthy v. De Caix, 2 Russ. and Mylne, 614.

e 8 Bligh, 891.

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