prohibitory character (prohibitoria), though in the time of Justinian they embraced measures having for their object the restitution of property (restitutoria), and the compelling the production of a particular person, as [for instance] a slave or a child, subject to the control and within the power of another (exhibitoria). DCCCCLIX. These proceedings, which the French Law calls conservative and provisional measures (b) (mesures conservatoires, mesures provisoires), are admitted by that law in exception to its general principle; for even in the case of two foreigners the French Law applies this provisional remedy, while it refuses to entertain the question of the merit (le fond) of their dispute. The president of a tribunal may empower a foreigner to seize money or effects in the possession of a Frenchman belonging to a foreign debtor. It is competent also to the French tribunals to order an inventory of goods situated in France, and appertaining to a deceased stranger; although the proceedings necessary to secure by probate or administration a representative to the deceased have been taken, or although, in the language of French Law, the succession has been opened in a foreign State; and also, perhaps, to order a deposit of security for the value of the effects. It is also competent to the French tribunals to order such provisional measures as may be necessary to secure the personal safety and means of existence of a foreign wife or husband, or of their children. But it is only at the instance of a commission rogatoire that the French tribunal will nominate an administrator of the goods of a stranger physically or morally incapable to act for himself. DCCCCLX. The English Law does not set itself in motion, as the foreign law often does, to preserve by a provisional measure the goods of a deceased foreigner. The English Courts will, however, on their aid being (b) Fælix, ss. 162, 250. invoked, extend their injunction (a provisional measure analogous to and founded upon the Roman interdictum) to the foreigner as well as to the Englishman (c). Some striking instances of the exercise of this jurisdiction, in accordance with the soundest principles of Comity, will be found in the following sections. DCCCCLXI. In the case of Caldwell v. Vanvlissengen (d), an injunction was granted against subjects of the kingdom. of Holland, to restrain them from using on board their ships within the dominions of England, without the license of the plaintiffs, an invention, to the benefit of which the plaintiffs were exclusively entitled under the Queen's Patent. 66 66 Vice-Chancellor Turner in giving judgment said :- "I "take the rule to be universal, that foreigners are in all cases subject to the laws of the country in which they may happen to be; and if in any case, when they are "out of their own country, their rights are regulated and "governed by their own laws, I take it to be not by force "of those laws themselves, but by the law of the country "in which they may be; adopting those laws as part of "their own law for the purpose of determining such "rights." He then refers to the opinions of Story (e); of Huberus, Boullenois, and Vattel, upon this subject; and continues" In this country indeed the position of foreigners is not left to rest upon this general law, but "is provided for by Statute; for by the 32 Henry VIII. "c. 16, s. 9, it is enacted, That every alien and stranger "born out of the King's obeisance, not being denizen, "which now or hereafter shall come in or to this realm, 66 66 6 or otherwise within the King's dominions, shall, after [(c) The provisional measures of granting injunctions, mandatory and prohibitory, and of appointing receivers, are regulated by the Judicature Act, 1873, s. 25, subs. 8, and the Rules of the Supreme Court, 1883, Order L.] (d) 9 Hare, Rep. p. 415. (e) Conflict of Laws, s. 541. "the 1st of September next coming, be bounded by and "unto the laws and statutes of this realm, and to all and "singular the contents of the same' (f). Natural justice, "indeed, seems to require that this should be the case; "when countries extend to foreigners the protection of "their laws, they may well require obedience to those "laws, as the price of that protection. These defendants, "therefore, whilst in this country, must, I think, be sub"ject to its laws." DCCCCLXIV. (g) (2.) With respect to the second class of cases (h)-viz. those relating to the arrest of a foreign debtor who is about to escape from the jurisdiction (?). The law upon this subject, both as to its substance and the form of procedure, is, of course, local; it is strictly the lex fori; the lex loci contractús has no influence upon this matter. In England the provisional arrest before judgment, applicable equally to subject and foreigner, has been [dealt with in the Debtors Act, 1869]. (k). It is also competent to English Courts to issue against a foreign debtor a writ of ne exeat regno. DCCCCLXV. It would seem, however, that there must be a very strong case indeed to induce a Court to restrain a foreigner, domiciled in another country, from proceeding to obtain payment of debts according to the law of the country in which he is domiciled (1). (f) Now repealed. (g) [§§ dcccclxii. and dcccclxiii. relating to Trade Marks belonging to an alien ami have been left out in this edition, as their substance had already been given in chap. xxvii.] It would appear that a person against whom an injury is fraudulently committed may have a remedy in the courts of any country where the fraud occurs, and even although he is at the time an alien enemy. (h) Vide suprà, § dcccclvii. (i) Cf. Folix, liv. ii. t. v. Des mesures conservatoires ou provisoires, &c. (k) 32 & 33 Vict. c. 62, s. 6. Order LXIX.] (1) Carron Iron Company v. [Rules of the Supreme Court, 1883, Maclaren, 5 H. L. Cases, p. 416. DCCCCLXVI. An English Court will not lend its aid to compel a discovery in aid of the prosecution or defence of an action in a foreign Court (m). DCCCCLXVII. An English Court of Equity would enforce, under the old law, for the benefit of the crown, a trust of real estate created in favour of an alien. The devise being valid, and there being a cestui que trust, who could take, but not hold, the crown became entitled beneficially, but not the trustee or heir-at-law (n). [Law v. Garrett, L. R. 8 Ch. D. p. 26-an instance of non-interference by an English Court when proceedings were pending in a Russian Court, to which the parties, who were British subjects, had previously agreed to refer all disputes.] (m) Bent v. Young, 9 Simons, Rep. p. 180. This rule of law is now repealed by 33 Vict. c. 14, s. 2. Vide antè, vol. i. App. v. CHAPTER XLVIII. PRIVATE INJURIES-WHERE TO BE REDREssed. DCCCCLXVIII. and last division of this volume (a).] With respect to the class of quasi obligationes arising from the infliction of an injury (maleficium) upon a private individual, it is to be remembered that the prosecution of the injurer may have two objects [THIS chapter deals with the fifth i. Pecuniary reparation to the injured party, to obtain which a civil action may suffice. In this case, as Donellus says, "civiliter agitur, id est de privato damno, et pecuniâ, quam inde debitam actor prosequatur" (aa). ii. Or, secondly, the object may be the vindication of the authority of the law; the punishment of the offender; the deterring others from the commission of the like offence. To obtain one or all of these ends the criminal action is necessary: "Quatenus " (to use again the words of Donellus) "de his agitur criminaliter ad poenam et vindictam criminis" (b). The Penal or Criminal Law of a State appertains, therefore, partly to its Private, partly to its Public Law. DCCCCLXIX. That portion of it which relates to Public Law, so far as its administration affects the welfare [(a) Vide suprà, § xxx.] (aa) Donellus, De Jure Civ. lib. xvii. c. xvi.: "Ubi de maleficiis et criminibus agi oporteat." [(b) Donellus, ibid.] Bar, § 66. Wharton, Conflict of Laws, ch. xiii. See Phillips v. Eyre, L. R. 4 Q. B. p. 225; 6 Q. B. p. 1. |