judgment and satisfaction there, could not be compelled to refund the same upon a suit brought by the assignees against him in England (1). Story considers this doctrine to be generally recognized by foreign states, in cases where partners reside in different states (m). DCCLXXVIII. In 1856 a case, involving the consideration of the rules of International Law applicable to cases of double partnership, came before the Lords Justices, [and was ultimately decided by the House of Lords (n). Two persons who constituted a firm at Liverpool entered into partnership with a third person at Pernambuco, in Brazil, and there established a separate and distinct firm. The Pernambuco firm drew bills which were accepted by the Liverpool firm in the ordinary course of business. The Liverpool firm became bankrupt, and subsequently the Pernambuco firm entered into a Concordata with their creditors. The holders of the bills, having received a dividend out of the assets of the Pernambuco firm as drawers, tried to prove against the Liverpool firm as acceptors.] Such bills, it was holden, having been accepted in England, must be dealt with by the rules of English Law, [and the double proof was not admitted. The English law as to double partnership has now, however, been altered, and it is provided by the Bankruptcy Act, 1883 (0), that "if a debtor was at the date of the "receiving order liable in respect of distinct contracts as 66 a member of two or more distinct firms, or as a sole con"tractor, and also as a member of a firm, the circumstance that the firms are in whole or in part composed of the (1) Brickwood v. Miller, 3 Merivale, Rep. p. 279. (m) Story, s. 422. Merlin, Rép. Faillite, sect. ii. § ii. art. x. Harrison v. Sterry, 5 Cranch, (Sup. Ct.) Rep. p. 289. (n) Ex parte Goldsmid, Re Deane & Youle, 25 L. J. N. S. (Bkcy.) p. 25; same case in H. of Lords, 5 Jurist, N. S. p. 1230. [(0) 46 & 47 Vic. c. 52, schedule 2, rule 18; this repeats almost verbatim the 37th section of the Bankruptcy Act, 1869.] "same individuals, or that the sole contractor is also one "of the joint contractors, shall not prevent proof in respect "of the contracts, against the properties respectively liable on the contracts."] DCCLXXIX. The International effect of assignment under Bankruptcy laws is confined by the practice of states to moveable property. These laws therefore only transfer such immoveable property as lies within their jurisdiction. It follows that an assignee, [trustee,] or curator, appointed by these laws, cannot assume the possession or administration of immoveable property in a foreign state, unless his authority is enforced by the judicial tribunals of that state (p). And yet Mr. Bell justly observes, that the spirit and policy of the laws, considered internationally, should open to the creditors of a bankrupt the power of attaching his real estate in another country (q). [The 168th section of the Bankruptcy Act, 1883 (r), interprets the word "property" as including, among other things, "land and every description of property, whether "real or personal, and whether situate in England or else"where;" these last words not being contained in the corresponding interpretation of " property " in the Bankruptcy Act, 1869 (s): and it seems that under this section land in the United Kingdom, and perhaps also in the rest of the British dominions, would become vested in the trustee under an English bankruptcy-as by express enactment it would under a Scotch sequestration (t). But an (p) Burge, vol. iii. chap. xxii. p. 921. He cites Gaill, 1. ii. obs. 130. J. Voet, lib. xlii. t. vii. s. 2; lib. xx. t. iv. s. 12. P. Voet, de Stat. Sect. ix. c. ii. 18; Sect. iv. c. ii. 6. Boullenois, tome i. pp. 129, 150. (q) Bell, Comm. book vi. part ii. chap. v. 48 (vol. ii. p. 379, ed. of 1870). [(r) 46 & 47 Vic. c. 52. (s) 32 & 33 Vic. c. 71, s. 4. (t) 19 & 20 Vic. c. 79, s. 102.] English bankruptcy cannot pass to the trustee immoveable property situate in a country not subject to the British Crown. The creditors here by opposing the order of discharge may constrain the bankrupt to convey such property to the trustee, but it is doubtful whether he can by law be compelled to do so. An Insolvency in the colony of Victoria will not vest in the assignee real estate in England (u). But where land in England was settled in trust to pay the rents to S. L. for life, or until he should commit an act of bankruptcy, or some event should occur whereby the rents if settled absolutely in trust for him should be forfeited to or become vested in any other person, and there was a gift over on the happening of any such event, it was holden that on S. L. being adjudged an insolvent in New South Wales, where he was resident, the gift over took effect (v)]. [(u) Waite v. Bingley, L. R. 21 Ch. D. p. 674. A.D. 1882. (v) In re Levy's Trusts, L. R. 30 Ch. D. p. 119. As to the difficulties that may arise with regard to property and creditors in another country, see In re Oriental Inland Steam Co., L. R. 9 Ch. App. at p. 559 (per James L. J.), and Ex parte Rogers, L. R. 16 Ch. D. p. 665.] CHAPTER XL. OBLIGATION-DISCHARGE-UNDER WHAT LAW. DCCLXXX. It is proposed in this chapter to consider the questions 1. How an obligatio is discharged or becomes extinct. 2. By what Law the discharge or extinction is governed. The latter question is, of course, the one which is more properly the subject of this treatise; but the former is not an uninteresting question of general jurisprudence. DCCLXXXI. 1. And first as to the Roman Law, the basis of European jurisprudence: "Ut obligandi debitoris," Donellus says, "certi modi sunt jure constituti, ita et liberandi" (a). An obligatio ceases to be binding (tollitur) in various ways. The following are said to be discharges of an obligatio, ipso jure : i. Actual payment of what was due-solutio (b). ii. A verbal acknowledgment in a particular form of (a) De Jure Civ. lib. xvi. ("De solutionibus et omnis generis liberationibus ") cap. i. [("Quibus modis tollatur jure obligatio: ac primum de interitu et periculo rei debitæ "), 2.] This is an admirable chapter, and deserves the most careful study. (b) By whatever means the obligatio ceases, "solvitur obligatio "is the proper technical expression. Burge, vol. iii. ch. xxi. pp. 781 et seq. Savigny, R. R. v. s. 248. Puchta, Pand. §§ 286-292. words that payment has, though actually it has not, been received-acceptilatio (c). iii. A similar symbolical process in the case of an obligatio contracted per æs et libram, by which the debtor became nexus. iv. Being changed into another obligatio, for which the technical term was novatio (d). v. [The union, or merging] in one person, of the relations of obligor and obligee, or of debtor and creditor, which union is termed confusio. DCCLXXXII. The following are said to be discharges of an obligatio, ope exceptionis, or per exceptionem. i. A decision of a competent court of justice, res judicata, or ex causá judicatá. Indeed, strictly speaking, the obligatio, in its technical sense, ceased as soon as legal proceedings, litis contestatio, began; but the naturalis obligatio is not destroyed by the res judicata. ii. A treaty (e) or agreement known to the civil (ƒ) and canon Law (g) by the term transactio, which is species pacti. Three conditions were necessary to found this mode of extinguishing an obligation (h) : a. That the transactio should be de re dubiâ ac lite incertâ. B. That something should be promised; y. Or something done as an equivalent for the right waived. DCCLXXXIII. The modes of discharge or extinction, (c) Dig. lib. xlvi. t. iv. ; Inst. lib. iii. t. xxix. 1, 2. (e) Called by the Germans Vergleich: see Puchta, Pandekt. § 294: different from Compromiss, which answers to our arbitration. Ibid. $296. (f) Dig. lib. ii. t. xv. Cod. lib. ii. t. iv. "De transactionibus." (g) Devoti Instit. Canon. lib. iii. t. xviii. "De pactis et transactionibus." (h) Cod. lib. ii. t. iv. 38. |