Imágenes de páginas
PDF
EPUB

BRITISH SUITORS IN FRENCH COURTS

HE current impression in England, with refer

judicate between foreigners, is that the exceptions eat up the rule; that, in fact, the rule is merely one of those fictions in which the judicial mind sometimes delights to indulge. The impression, however, is not altogether correct. As a matter of fact, the French courts hold that, outside treaty stipulation, there is no obligation binding on a State under international law to render justice in the suits of foreigners between themselves. The exceptions to this rule, they hold, are merely matters of French municipal law, which might be abrogated at any moment without breach of international duty.

A striking instance of the existence of the general

rule was furnished recently in the case of Le Scheick Abdul-Rassoul v. Le Maharajah Dhuleep Singh (Tribunal Civil de la Seine [1er Ch.] 21 Juillet, 1892.) The suit was promoted by one Abdul Rassoul, alleged to have been sent to India by Dhuleep Singh to stir up rebellion in the provinces formerly under the government of the family of Runjeet Singh. The Maharajah Dhuleep Singh, successor of the last-named, and a pensioner of the British

government, conceived, some few years ago, a de

sign of obtaining possession of the provinces in question. He endeavored to proceed to India, but was arrested at Aden. Being subsequently released, be, it was alleged, deputed Abdul Rassoul to go to India. The latter succeeded in reaching Indian territory, but was thrown into prison. On being set at liberty, he presented a claim against his alleged principal for a sum of 400,000fr. by way of indemnity, and, as Dhuleep Singh then resided in Paris, the suit was prosecuted in the French courts.

The grounds put forward by the Tribunal of the Seine for its decision are remarkable. They are, that the defendant has no permanent residence in France, and therefore no domicile; whereas, in England, he had a residence called Elveden Hall. The defendant not being domiciled in France, and the action not having reference to property situated in France, or to obligations contracted in France, the tribunal falls back on the general theory of the incompetence of French courts to decide suits between foreigners.

English lawyers will, of course, note that, in such a case as that described, English courts also would decide against the plaintiff. But they would base their action on very different considerations. They would refuse to acknowledge as enforceable agreements having as their object the stirring up of revolt in the territory of a friendly power.

There are grounds for believing, however, that even if a Franco-British Treaty had given rights of unrestricted access to French courts to British sub

jects, the Tribunal of the Seine would still have decided against the plaintiff on grounds of international law. Although not basing its judgment on that feature of the case, the court shows that it is sensible of its existence.

Le Tribunal- -sur l'exception d'incompétenceAttendu * que sans apprecier le caractère civil et obligatoire des faits et des actes dont Abdul fendeur est fondé à decliner la compétence du triRassoul entend se prevaloir * ; que le de

bunal. Par ces motifs: Dit nulle et de nul effet d'instance; se declare en tant que besoin, incoml'assignation du 3 Octobre 1891 introductoire pétent pour statuer dans la cause; et condamne le demandeur aux depens."

The French renunciation of jurisdiction affects,

singularly enough, British subjects particularly. If Dhuleep Singh had been a Portuguese subject, resident in Goa-Portugese territory in India-the French tribunal could not have renounced jurisdicbecause the defendant was not domiciled in France, tion on the grounds they alleged-that is, merely and that neither property existing nor obligations contracted in France were in question. Treaties with various European powers, including Portugal, Spain, Switzerland, Italy, and Russia, give mutual rights of resort to courts. With regard to British subjects, however, a decision of the Court of Cassation of the 27th of January, 1857 (Sir. I. 161) decides that the Treaty of Utrecht of 1713 confers no such rights of access to courts of law.

The rule of renunciation of jurisdiction between foreigners is a judge-made rule. This fact contradicts another current impression in England—that French judges do not legislate. Neither in the codes nor in the preliminary discussions (which, in France, may be quoted as elucidating the intention of the legislator) is there any such declaration of judicial incompétence" in regard to foreigners. The rule really shows in a way the continuity of judicial tradition. Before the First Republic, the general rule was "Actor sequitur forum rei," interpreted in such a manner that a domiciled foreigner could be sued by any one; a non-domiciled foreigner only if immovables existing, commercial obligations contracted, or punishable acts committed in France, were in question; or there was a submission to the jurisdiction.

The exceptions to the present general rule may be divided into two classes-those falling under the obligatory jurisdiction, which the courts hold they have no power to decline, "Compétence obligatoire;" and those under the voluntary jurisdiction, "Compétence facultative."

There is one class of cases, however, in which the general rule is absolute. French courts will not, directly at least, adjudicate in suits involving matters of State policy.

Under the obligatory jurisdiction, the French courts will adjudicate between foreigners when a treaty gives either plaintiff or defendant access to tribunals.

When the foreigner, whatever his nationality, has received governmental permission to fix is domicile in France (Cod. Civ. A. 13). The recent law making such permission terminable in five years, unless naturalization follows, should be noted. When a foreigner, without permission, fixes his residence in France, many courts hold that he acquires a "domicile de fait," and cannot decline the jurisdiction if the courts wish to assert it.

When the public order of the State is concerned, that is, in actions arising out of a "délit" or "quasidélit:" (Cod. Civ. A. 3.)

guilty of a breach of legal obligation is also a foreigner.

The judicial arguments adduced in favor of the present rule are obviously drawn from that state of opinion and sentiment which arose in France during the Napoleonic reaction against foreigners, following on the non-reciprocation by other States of the Republican proclamation of fraternity. This order of ideas is not so greatly in harmony with modern French opinion; and no doubt the many exceptions to the rule, introduced in practice, have alone prevented its formal abolition. To say, as French judges have said, that the State is not bound to render justice to foreigners, is to deny international law. To say that French judges should not be expected to know foreign law applicable to classes of

When the suit is in a commercial matter: (Cod. foreigners' rights, is to ignore current French pracProc. Civ. A. 420.)

When the action has reference to a remedy which the courts regard as "provisoire et conservatoire." Under this head are included administration of the property of a lunatic or of a prodigal; education of children, alimony, and a comprehensive exception, "la saisie-arrêt "--the Scotch "arrestment"-the seizure of property in the hands of a third party. When one defendant is French, another may be foreign, if the claims against both are connected. If the plaintiff is French and the defendant foreign, another foreigner may intervene in like case. If the defendant has been at one time French, some courts hold they have jurisdiction if his acquisition of foreign nationality was with intent to escape from their authority.

When an exequatur is demanded for a foreign judgment-another comprehensive exception.

Under the voluntary jurisdiction, "compétence facultative," the courts may adjudicate by consent of parties. But either the court or one or other of the parties may refuse the jurisdiction. A suitor's objection, to be valid, must be made in limine litis, except in "questions d'étât," when it may be made at any state.

Passing now from consideration of the actual law of France, and considering the subject from the .point of view of international law, there can be no doubt that the French judicial renunciation of jurisdiction is as invalid internationally as is the French legislative assumption of jurisdiction over foreigners under Art. 14 of the Civil Code. (See as to latter, Schibsby v. Westenholz [1870], 24 L. T. Rep. 93, per curiam.)

As Weiss (iv. 933) and Laurent (i. 549) have shown, there is a "deni de justice," cognizable under international law, and giving ground for retorsion by foreign States. The foreigner's right to protection by the State which tacitly accepts the duty of protecting him (by permitting him to reside) cannot cease from the fact that the person who is

tice in regard, for instance, to a foreigner domiciled by permission. To say that French suitors might be inconvenienced by a block of business is simply absurd; the excluded cases would form only a small part of those in which foreigners are already concerned. If true, the remedy, as Weiss points out, is to increase the number of the courts.

Looking, however, for a practical solution of the question, the course which is readiest and open to least objection is to negotiate with France, on behalf of the British government, a treaty similar to those already in force between France and Italy, Spain, Russia, and other European powers, expressly acknowledging the international law right of British and French suitors to resort to the tribunals of either State. No such treaty, be it remembered, is required to give French suitors access to British courts. Our tribunals, following the strict rule of international law, administer justice to all suitors, without inquiry as to their nationality.-Law Times.

Baltimore is now in a state of excitement so great that it leaves its terrapin untasted and forgets to boast of its base ball team. There is a great question at issue, one that comes home to every household in the city of hills. A Baltimore man stole a cat from a neighbor. A fine Maltese tabby it was, and the neighbor had him arrested for theft. Then the man's lawyer stood boldly up in the court room and said that it was impossible for any one to steal a cat, as that animal is not property, and to take forcible possession of a feline, even though it be a pet one and wear a ribbon and answer to its name, is not a legal offense. What is more, the bold lawyer won, and the attorney-general agrees with him, and a blow is struck at all the cats of Maryland. The attorney-general, in his formal opinion, declares that a cat really is nothing but a wild animal, that it is of no use to man, and that the taking of a cat without the consent of its owner is not an indictable offense.- New York Press.

PUNCTUATION IN THE EYE OF THE LAW. | judicial tribunals do not much regard punctuation;

THERE

and some eminent jurists have thought that legislative enactments and public documents should be without it." Bishop, in his "Commentaries on Written Laws and their Interpretation," says: "The statutes in England are not punctuated in the original rolls; but more or less marks of punctu

THERE is a tradition to the effect that it was once forbidden to introduce punctuation marks into the statutes, the theory being that the law should be so plainly worded that its meaning would not depend upon the easily transposed "points," and that this must be tested (as it is wise to do in writ-ation appear in them as printed by authority. With ing a telegram, even yet!) by ommitting the marks altogether. The spread of general knowledge, and possiby a lessening of the distrust which the ancient burghers entertained as to the honesty of men who were more trained in the use of the pen than of the sword, have led to a disregard of this precaution, and statutes are now punctuated according to the judgment of the engrossing clerk. When this functionary errs in judgment (is it not even hinted that Jupiter nodded on occasion?) there is tribulation in the land. We quote the following article apropos of this subject, from the American Bookmaker:

[blocks in formation]

None of the errors can be corrected without

a joint resolution of the two houses, for the "law

us the punctuation is the work of the draughtsman, the engrosser, or the printer. In the legislative body the bill is read so that the ear, not the eye, takes cognizance of it. Therefore the punctuation is not, in either country, of controlling effect in the interpretation." Punctuation, in fact, forms no part of the law, as pointed out in the foregoing extract a fact well recognized in Great Britain, as may be observed in legal advertisements for next of kin, and often reprinted in the leading daily papers here, which are noticeable for their want of punctuation. Some of the cases in the United States in which the above cited principle has been laid down are Doe v. Martin, 4 Term R. 65; Barrow v. Wadkin. 24 Beav. 326; Cushing v. Worrick, 9 Gray (Mass.) 385; and Gyger's Estate, 65 Pa. St. 311. Those interested may also consult Sedgwick on Statute Law for further information on this subject. Punctuation cannot have a controlling effect, but may be disregarded altogether when plainly contrary to the legislative intent, in which case the courts will repunctuate to give effect to such intent, as decided in United States v. Isham, 17 Wall, (U.

print" of the bill must be an exact copy, wording, S.) 502; Albright v. Payne, 43 Ohio St. 15, 1 N. E. spelling, punctuation, and everything else contained in the enrolled bill, which is the copy that becomes a part of the archives of the government. It is unfortunately too true that now, as in the time of Chaucer,

A reader that pointeth ill

A good sentence may oft spill.

Those who have tried, by means of the law courts, to take advantage of erroneous punctuation, have had their trouble and bills of cost for their pains, and it may be said that a similar fate awaits the person who may endeavor to defeat, by legal means, the manifest intent of the law. One of the oldest legal maxims-as old as the law itself-is to the effect that bad grammar does not vitiate a deed (“mala grammatic non vitiat chartam"); and, in the eye of the law, the same principle applies in the case of bad or wrong punctuation. As the late George Perkins Marsh, LL. D., long representative of the United States at the court of Italy, says in one of his lectures on the English language, delivered at Columbia college, and afterwards published in book form: "Mistakes in the use of points, as in all the elements of language, written and spoken, are frequent; so much so, in fact, that in the construction of private contracts, and even statutes,

66

Rep. 16, and in Pancoast v. Ruffin, 1 Ohio, 385.
The following extracts are from some of the de-
cisions of the courts on this interesting question:
Punctuation is a most fallible standard by
which to interpret a writing. It may be resorted
to when all other means fail." Ewing v. Burnet,
11 Pet. (U. S.) 54.

66

"Punctuation is no part of the statute," Hammock v. Farmer's Trust & Loan Co., 105 U. S. 77. For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required." United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. Rep. 625 (opinion given by Chief Justice Mellville Fuller).

"Punctuation in written contracts may sometimes shed light upon the meaning of parties, but it must never be allowed to overturn what seems the plain meaning of the whole contract." Osborn v. Farwell, 87 Ill. 89.

"Punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity, but not in cases where no real ambiguity exists, except what the punctuation itself creates." Weatherly v. Mister, 39 Md. 620.

The want of proper punctuation is, if objection

able at all, no more allowable in vitiating the contract or destroying its effect than bad gaammar, the rule against which is a maxim of the law." White v. Smith, 33 Pa. St. 186.

From the writings of the authorities cited, and from the foregoing extracts from decisions, it will be gathered that there is no hope for any litigants who may base their cases solely upon the erroneous punctuation of the acts passed by congress.- Law Book News.

INTERNATIONAL LAW AND INTERSEA COMMERCE.

THE completion of the Baltic Ship Canal-which comptructed through territory now exclu

sively German, a result of the Schleswig-Holstein annexation-recalls the protracted negotiations on the subject of the passage through the natural waterway of the Sound. The Sound dues controversy was chiefly remarkable for the assertion of the right of free passage between the North Sea and the Baltic, successfully put forward by the great powers as against Denmark. It was also noticeable on account of its furnishing an instance of United States interference in strictly European concernsa refutation of the position taken up by so many writers that the recent projected American participation in the Armenian inquiry constituted an unprecedented move on the part of the United States. As a matter of fact, it was the United States interference that brought to a climax the long-standing controversy with Denmark on the subject of the Sound dues on shipping. As a consequence, the Danish claim to exact from all ships passing through the narrow waters from the Baltic to the North Sea was abandoned on payment of a fixed sum by way of compensation. Here, however, as a result of increased engineering enterprise, we find a waterway between the two seas exclusively under the control of Germany. No one, so far, proposes to assert a right of passage over that waterway, such as the right of navigation through the artificial channel of the Suez Canal. To what is this absence of claim

attributable? Is it to the fact that the Baltic Canal

is in Europe, and that there is a greater sanctity in European territorial sovereignty? Or is it merely to the fact that Germany is a great power, whereas Turkey and Egypt belong to the decaying rule of the Ottoman? If Schleswig-Holstein had remained under Danish rule, would the new canal have become like Suez, an international possession? A similar series of questions might be propounded in respect to the projected Canal des Deux Mers, between the Bay of Biscay and the Gulf of the Lion, the subject of inquiry by a public commission in France. Like the Baltic Canal, the new intersea passage is advocated on undisguisedly military

grounds-not merely as a means of facilitating commerce. Gibraltar, it is said, will be greatly diminished in importance, so far as French interests are concerned, by the construction of the Canal des Deux Mers. International law as to ship canals is apparently going to have yet another chapter added. Latest reports from Washington state that in the United States Senate it has been publicly announced that negotiations are in progress between the British and United States governments on the subject of the construction of a canal between the Pacific and the Atlantic at Nicaragua. A senator states that the British government have no objection to the work being carried out by the United States government, but the British assent is qualified by a stipulation that the new canal must be subject to the same regulations as to freedom and neutrality as now apply to the Suez Canal. If the British government have really assented to this project, it seems probable that interocean communication will be more likely to be attained than seemed probable a short while ago on the collapse of the Panama undertaking. But it is important to remember that there are British treaty rights involved. The Clayton-Bulwer treaty has never been admitted by the British government to be at an end, notwithstanding the contention to that effect of some American diplomatists. That treaty expressly provides for the British right of using, under conditions guaranteeing order and neutrality, not merely all interocean canals, but interocean railways constructed across the isthmus.-Law Journal.

"A REASONABLE DOUBT" AND INTENT TO DEFRAUD."

FR

ROM the charge to the jury by Judge Swan in the Marvin embezzlement case: 66 'The evidence must satisfy the judgment and conscience of the jury of the guilt of the defendant, and that there is no other reasonable explanation. It is not meant that speculative notions, not arising from the proof, due to the ingenuity of counsel, should permit the defendant to escape. What is meant is honest misgiving, generated by the insufficiency of proof. It is not necessary that the evidence should establish the absolute certainty of guilt. It is sufficient if the evidence would lead you to act in the more important affairs of your own lives. If it is such, you cannot be said to have any reasonable doubt. In other words, a reasonable doubt means a doubt for which you can give a reasonable explanation from the proofs in the case. There must be a substantial misgiving from something you can lay your finger on in the evidence - not a mere speculative doubt. The statute makes it an essential ingredient of this offense that it must be done with the intent to injure or defraud the bank.

It

is not necessary to show that the defendant had malice or ill-will toward the institution. All that is necessary to establish the intent is to show that the defendant did something which was illegal, and which in the natural course of events would result in loss and injury to the bank. The law presumes that a man intends the natural consequences of his own acts. The law presumes the intent when an act deliberately entered into produces its natural result of injuring and defrauding. If you are satisfied from the evidence beyond a reasonable doubt that the defendant abstracted, embezzled or wrongfully converted the funds of the bank, the intent to defraud is to be presumed."

Abstracts of Recent Decisions. ACCIDENT INSURANCE-ACTION ON POLICY. — In an action on a policy insuring against death from "bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the conditions" recited therein, the burden of proof is on the defendant to show that death was from one of the excepted causes. (Anthony v. Mercantile Mut. Acc. Ass'n. [Mass.], 38 N. E. Rep. 973.)

ADVERSE POSSESSION-NOTICE TO CO-TENANT.The possession of one tenant, asserting an exclusive right to the land under a deed conveying the land to him by specific description, is adverse to his cotenants having notice of the deed. (Puckett v. McDaniel [Tex.], 28 S. W. Rep. 360.)

ANIMALS-VICIOUS DOGS. The owner of premises who, having knowledge of the vicious and dangerous character of a dog owned by his agent, permits the agent to retain him, and allow him to run at large on the premises, is liable for any damage he does to a passer-by. (Harris v. Fisher [N. Car.], 20 S. E. Rep. 461.)

ASSIGNMENT FOR BENEFIT OF CREDITORS-PREFERENCES.-Where, by the withdrawal of one partner, a new firm is created, which agrees to pay such member for his interest, and assumes the old debts, the new firm may, by a subsequent deed of trust for the benefit of creditors, give preference to the claim of such member and to the creditors of the old firm. (P. J. Willis & Bro. v. Murphy [Tex.], 28 S. W. Rep. 362.)

ASSIGNMENT OF PATENT-CONSTRUCTION.- An assignment of a patent "and improvements on the same which may hereafter be made" does not include a patent subsequently granted the assignor for a machine to manufacture by a different process the same goods as were produced by the machine covered by the patent assigned, but which can be

used without any of the machinery included in the earlier patent, and without infringing thereon. Allison Bros. Co. v. Allison [N. Y.], 38 N. E. Rep. 956.)

BANKS-CHECKS-REASONABLE

TIME FOR PRESENTATION.-Checks drawn on a Milwaukee bank were indorsed over to plaintiff and delivered to his father, who at once mailed them to plaintiff, at New Richmond, several hundred miles north-east of Milwaukee. Plaintiff delivered them to his bank, who mailed them to its Chicago correspondenthaving no Milwaukee correspondent, and they were then sent to Milwaukee. Held, that plaintiff did not use due diligence in presenting said checks for pay(Gifford v. Hardell [Wis.], 63 Fed. Rep.

ment.

1064.)

BANK CHECKS--ESTOPPEL TO DENY.-In an action by a bank which has paid to another bank a check drawn on the former bank and transferred to the

latter by a forged indorsement, it is immaterial whether the signature of the drawer of the check is genuine, since both parties are estopped to deny its genuineness. (First Nat. Bank v. North western Nat. Bank [Ill.], 38 N. E. Rep. 739.)

CARRIER-INJURY TO LIVE STOCK.- -Where a common carrier unloads a shipment of horses at an intermediate point in the morning, and then reloads them late in the afternoon, but twelve hours before the departure of the train by which they are to be shipped, and against the owner's protest, and the horses are injured while thus waiting, the carrier is liable, though, by its contract, not responsible for unusual or unreasonable delay. (Alabama & V. Ry. Co. v. Sparks [Miss.], 16 South. Rep. 263.)

CONTRACT-ILLEGALITY-CANCELLATION. Where the parties are in pari delicto, an executed contract will not, as a general rule, be set aside because of want of authority to make it.-(Cincinnati H. & D. R. Co. v. McKeen [U. S. C. C. of App.], 64 Fed. Rep. 36.)

CORPORATIONS - ELECTION.-A director of a corporation cannot sue in equity to hinder or control the election of other agents of the company in the manner prescribed by its charter and by-laws, on any showing as to what such agents may or may not do or intend to do; especially until he has tried the usual methods of relief, and invoked the action of the full board of directors. (Greenough v. Alabama G. S. R. Co., U. S. C. C. [Ala.], 64 Fed. Rep. 22.)

COURT OF CLAIMS-JURISDICTION—TORTS. The. Court of Claims has no jurisdiction of claims against the government for mere torts. (Schillinger v. United States [U. S. S. C.], 15 S. C. Rep. 85.)

« AnteriorContinuar »