that "when the defendant is neither a British subject, "nor in British dominions, notice of the writ, and not the "writ itself, is to be served upon him" (z). Permission to thus serve a writ, or notice of a writ, will not be granted by the Courts as a matter of course, especially where both parties are foreigners (a).]

DCCCXCVIII. Thirdly, with respect to security for costs. [The Rules of the Supreme Court now provide that where security for costs is required, the amount of such security, and the time, manner, and form of giving it, shall be as the Court or a Judge shall direct; and further that" a plaintiff ordinarily resident out of the jurisdiction "may be ordered to give security for costs, though he 66 may be temporarily resident within the jurisdiction" (b)].

DCCCC. (c) From analogy to the course adopted where the plaintiff is resident out of the jurisdiction, the Courts of Equity have, upon application, restrained an ambassador's servant, whose person is privileged from arrest by the 7 Ann. c. 12, from proceeding with his suit until he had given security for costs (d).

DCCCCI. All states are agreed, France included, that

[(z) Ibid. rule 6. See also Appendix A, part I. Forms No. 5 to No. 10; Order II. rule 4.

(a) Société Générale de Paris v. Dreyfus Brothers, L. R. 37 Ch. D. p. 215. It was observed in the judgment (at p. 226), with reference to costs, that "when one foreigner sues another in the courts of this country on a foreign contract, he is making a very hazardous experiment in asking for leave to serve the defendant, a foreigner, out of the jurisdiction."

New Chile &c. v. Blanco, 4 Times Rep. p. 346.]

[(b) R. S. C. Order LXV. rules 6, 6a. See Wilson, Practice of the

S. C. J. in loc. (ed. 1888, pp. 478-481).

(c) § dcccxcix. is omitted, as it refers to the former practice of the Court of Chancery before it was incorporated into the High Court of Justice.]

(d) Vide antè, vol. ii. § clxxxix.

Anon. Mosely, Rep. p. 175.

Goodwin v. Archer, 2 P. Williams, Rep. p. 452.

Adderley v. Smith, 1 Dickens, Rep. p. 355.

it is competent to them to exercise jurisdiction over foreigners in the matter of immoveable property (immeubles purement réelles ou mixtes) situated within the territory (e). According to French Law, the question as to the immoveable property must be the principal question, and not an accessory (ƒ).

Judgment obtained in the state of the domicil of two foreigners may be put in force by aid of the French courts to affect moveable property in France (g).

Provisional measures (h) (mesures conservatrices ou provisoires), having for their object to secure the safety of person or property of foreigners, are within the competence of the French courts (i).

So if the necessity of adjudicating upon a civil matter between foreigners arises out of a criminal matter (matière criminelle, correctionnelle de police), it is within the competence of the French tribunal (k).

DCCCCII. The High Court of Admiralty in England, being a court of International Law, treated as within its jurisdiction the case of a foreign ship, upon which an obligatio ex delicto attached from an act done to another foreign ship in foreign waters; the circumstance of the arrest within English waters having been holden sufficient to found the jurisdiction (); [and the High Court of Justice would now do the same].

DCCCCIII. The peculiar status of ambassadors, their exterritorial privileges and immunities from the civil and

(e) Fœlix, s. 160.

(f) Ibid.

(g) Ib. s. 161.

(h) The absence of any such general power in the English courts is much to be lamented, though, to a certain extent, it will be seen that the end is attained by the process of Injunction, [and by the appointment of Receivers].

criminal law of the state in which they represent the person of a foreign sovereign, have been fully discussed in a former volume of this work (m); and the same may be said of the privileges of foreign sovereigns and governments, both as to suing and being sued (n).

(m) Vol. ii. part vi. ch. vii. viii.

(n) Vol. ii. part vi. ch. i.

CHAPTER XLV.

LAW GOVERNING PROCEDURE AND EVIDENCE-LEX FORIDOCUMENTARY EVIDENCE-PROOF OF FOREIGN OFFICIAL ACTS AND OF FOREIGN LAW- ORAL EVIDENCE-ORDINATORIA ET DECISORIA.

DCCCCIV. IT ought to be a canon of Private International Law that, wherever a foreign tribunal is rightly seised of a cause, and is in the exercise of a lawful jurisdiction, the mode of proof and the rules of evidence which that tribunal adopts should not be questionable before any other forum. It is a consequence of the well-established rule of comity, " de his quæ pertinent ad litis ordinationem "inspicitur locus judicii " (a). An exception to this canon might, no doubt, be furnished by a case in which the plain rules of natural justice have been violated; but such an exception it is hardly safe to contemplate, and no practical rule can be built upon it (b).

DCCCCIV.A. The English courts hold that all questions of procedure are to be determined by the lex fori, and, I think, would include the question of "set-off" in this category (c).

DCCCCV. But when the jurisdiction of a tribunal is duly founded, a question may arise as to what proof it ought to receive as sufficient with respect to an act done in a foreign state. Is it the proof which the foreign state

(a) Vide suprà, citation from Bartolus.

Note on Chap. xvi.

(b) Fœlix, ii. s. 369; Bar, § 117, “Die Parteien ihre Stellvertreter und Beistände."

(c) Macfarlane v. Norris, 2 Best & Smith, Rep. p. 783 (1862).

would deem sufficient? or that which the technical rules of the forum which has cognizance of the cause require ?

It may be worth while to consider some principles generally admitted by jurists upon this subject.

DCCCCVI. Every code of Laws, ancient and modern, the Roman Law, the Canon Law, the Codes of modern states, have admitted the following various classes of proof (d):

a. The proof by a written instrument (preuve littérale).
B. The proof by witnesses (preuve testimoniale).

7. The proof by the oath of the party to the suit.
8. The proof by presumption (par présomption).

. The particular kind of proof afforded in matters of commerce by the account books of persons engaged in trade (livres des commerçants), which is, perhaps, strictly speaking, a branch of the first division, already mentioned.

DCCCCVII. With respect to the proof by a written instrument (preuve littérale), this species of proof is generally admitted by all civilized states. If, therefore, a question arises before the tribunal of one state, in which an instrument written in another state is produced as evidence, it is never rejected because such a kind of evidence is inadmissible, though the external form of the instrument and the solemnities relating to it may be made the subject of examination. But before this examination can be instituted, or the written instrument received as evidence, a burden lies upon the party producing it to show that the instrument has been executed in [the place, the law of which is sought to be applied].

By what means this burden of proof shall be discharged is a question for the lex fori to decide.

"The peculiar rules of evidence," Mr. Taylor observes, "adopted in one country, whether established by the prac"tice of its courts, or enacted by the legislature for the

(d) Felix, ss. 224, 225. [Pardessus, Droit Comm. num. 1486.]