« AnteriorContinuar »
i que le des
BRITISH SUITORS IN FRENCH COURTS. jects, the Tribunal of the Seine would still have de
cided against the plaintiff on grounds of international THE current impression in England, with refer
law. Although not basing its judgment on that ence to the refusal of the French co
courts to ad
feature of the case, the court shows that it is sensible judicate between foreigners, is that the exceptions of its existence. ext up the rule; that, in fact, the rule is merely one
· Le Tribunal-sur l'exception d'incompétenceof those fictions in which the judicial mind some
que sans apprecier le caractère times delights to indulge. The impression, how
civil et obligatoire des faits et des actes dont Abdul ever, is not altogether correct. As a matter of fact,
Russoul entend se prevaloir * the French courts hold that, outside treaty stipula-fendeur est fondé à decliner la compétence du trition, there is no obligation binding on a State under
bunal. Par ces motifs: Dit nulle et de nul effet international law to render justice in the suits of
l'assignation du 3 Octobre 1891 introductoire foreigners between themselves. The exceptions to
d'instance; se declare en tant que besoin, incomthis rule, they hold, are merely matters of French
pétent pour statuer dans la cause; et condamne le municipal law, which might be abrogated at any
demandeur aux depens." moment without breach of international duty.
The French renunciation of jurisdiction affects, A striking instance of the existence of the general
singularly enough, British subjects particularly. rule was furnished recently in the case of Le Scheick Abdul-Rassoul v. Le Maharajah Dhuleep Singh
If Dhuleep Singh had been a Portuguese subject, (Tribunal Civil de la Seine [1er Ch.] 21 Juillet, French tribunal could not have renounced jurisdic
resident in Goa-Portugese territory in India-the 1892.) The suit was promoted by one Abdul Rassoul, alleged to have been sent to India by Dhuleep because the defendant was not domiciled in France,
tion on the grounds they alleged—that is, merely Singh to stir up rebellion in the provinces formerly and that neither property existing nor obligations under the government of the family of Runjeet contracted in France were in question. Treaties Singh. The Maharajah Dhuleep Singh, successor of the last-named, and a pensioner of the British Spain, Switzerland, Italy, and Russia, give mutual
with various European powers, including Portugal, government, conceived, some few years ago, a de
rights of resort to courts. With regard to British sign of obtaining possession of the provinces in
subjects, however, a decision of the Court of Casquestion. He endeavored to proceed to India, but sation of the 27th of January, 1857 (Sir. I. 161) dewas arrested at Aden. Being subsequently released, cides that the Treaty of Utrecht of 1713 confers no be, it was alleged, deputed Abdul Rassoul to go to
such rights of access to courts of law. India. The latter succeeded in reaching Indian
The rule of renunciation of jurisdiction between territory, but was thrown into prison. On being set foreigners is a judge-made rule. This fact contraat liberty, be presented a claim against his alleged dicts another current impression in England-that principal for a sum of 400,000fr. by way of indem- French judges do not legislate. Neither in the nity, and, as Dhuleep Singh then resided in Paris, codes nor in the preliminary discussions (which, in the suit was prosecuted in the French courts.
France, may be quoted as elucidating the intention The grounds put forward by the Tribunal of the of the legislator) is there any such declaration of Seine for its decision are remarkable. They are, judicial “incompétence” in regard to foreigners. that the defendant has no permanent residence in the rule really shows in a way the continuity of France, and therefore no domicile; whereas, in judicial tradition. Before the First Republic, the England, he had a residence called Elveden Hall. general rule was "Actor sequitur forum rei,” interThe defendant not being domiciled in France, and preted in such a manner that a domiciled foreigner the action not having reference to property situated could be sued by any one; a non-domiciled foreigner in France, or to obligations contracted in France, only is immovables existing, commercial obligations, the tribunal falls back on the general theory of the contracted, or punishable acts committed in France, incompetence of French courts to decide suits be- were in question; or there was a submission to the tween foreigners.
jurisdiction. English lawyers will, of course, note that, in such The exceptions to the present general rule may a case as that described, English courts also would be divided into two classes-those falling under the decide against the plaintiff. But they would base obligatory jurisdiction, which the courts hold they their action on very different considerations. They have no power to decline, “Compétence obligawould refuse to acknowledge as enforceable agree-toire; ” and those under the voluntary jurisdiction, ments having as their object the stirring up of re- “Compétence facultative." volt in the territory of a friendly power.
There is one class of cases, however, in which the There are grounds for believing, however, that general rule is absolute. French courts will not, even if a Franco-British Treaty had given riglits of directly at least, adjudicate in suits involving matunrestricted access to French courts to British sub- ters of State policy.
Under the obligatory jurisdiction, the French guilty of a breach of legal obligation is also a courts will adjudicate between foreigners when a foreigner. treaty gives either plaintiff or defendant access to The judicial arguments adduced in favor of the tribunals.
present rule are obviously drawn from that state of When the foreigner, whatever his nationality, opinion and sentiment which arose in France during has received governmental permission to fix his, the Napoleonic reaction against foreigners, followdomicile in France (Cod. Civ. A. 13). The recent ing on the non- n-reciprocation by other States of the law making such permission terminable in five years, Republican proclamation of fraternity. This order unless naturalization follows, should be noted. of ideas is not so greatly in harmony with modern When a foreigner, without permission, fixes bis French opinion; and no doubt the many exceptions residence in France, many courts hold that he ac- to the rule, introduced in practice, have alone prequires a “domicile de fait," and cannot decline the vented its formal abolition. To say, as French jurisdictiou if the courts wish to assert it.
judges have said, that the State is not bound to When the public order of the State is concerned, i render justice to foreigners, is to deny international that is, in actions arising out of a “délit” or “quasi- law. To say that French judges should not be exdélit:" (Cod. Civ. A. 3.)
pected 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.)
tice in regard, for instance, to a foreigner domiciled When the action has reference to a remedy which by permission. To say that French suitors might the courts regard as “provisoire et conservatoire." be inconvenienced by a block of business is simply Under this head are included administration of the absurd; the excluded cases would form only a small property of a lunatic or of a prodigul; education of part of those in which foreigners are already conchildren, alimony, and a comprehensive exception, cerned. If true, the remedy, as Weiss points out, “la saisie-arrêt "-.the Scotch “arrestment”-the is to increase the number of the courts. seizure of property in the hands of a third party. Looking, however, for a practical solution of the
When one defendant is French, another may be question, the course which is readiest and open to foreign, if the claims against both are connected. least objection is to negotiate with France, on beIf the plaintiff is French and the defendant foreign, half of the British government, a treaty similar to another foreigner may intervene in like case. If those already in force between France and Italy, the defendant bas been at one time French, some Spain, Russia, and other European powers, expressly courts hold they have jurisdiction if his acquisition acknowledging the international law right of British of foreign nationality was with intent to escape from and French suitors to resort to the tribunals of their authority.
either State. No such treaty, be it remembered, is When an exequatur is demanded for a foreign required to give French suitors access to British judgment-another comprehensive exception.
courts. Our tribunals, following the strict rule of Under the voluntary jurisdiction, “compétence international law, administer justice to all suitors, facultative," the courts may adjudicate by consent without inquiry as to their nationality.-- Lau Times. of parties. But either the court or one or other of the parties may refuse the jurisdiction. A suitor's Baltimore is now in a state of excitement so great objection, to be valid, must be made in limine litis, that it leaves its terrapin untasted and forgets to except in “questions d'étât," when it may be made boast of its base ball team. There is a great quesat any state.
tion at issue, one that comes home to every housePassing now from consideration of the actual law hold in the city of hills. A Baltimore man stole A of France, and considering the subject from the cat from a neighbor. A fine Maltese tabby it was, •point of view of international law, there can be no and the neighbor had him arrested for theft. Then doubt that the French judicial renunciation of juris- the man's lawyer stood boldly up in the court room diction is as invalid internationally as is the French and said that it was impossible for any one to steal legislative assumption of jurisdiction over foreigners a cat, as that animal is not property, and to take under Art. 14 of the Civil Code. (See as to latter, forcible possession of a feline, even though it be a Schibsby v. Westenholz (1870), 24 L. T. Rep. 93, pet one and wear a ribbon and answer to its name, per curiam.)
is not a legal offense. What is more, the bold lawAs Weiss (iv. 933) and Laurent (i. 549) have
yer won, and the attorney-general agrees with him, shown, there is a “deni de justice,” cognizable and a blow is struck at all the cats of Maryland. under international law, and giving ground for re
The attorney-general, in his formal opinion, declares torsion by foreign States. The foreigner's right to that a cat really is nothing but a wild animal, that protection by the State which tacitly accepts the it is of no use to man, and that the taking of a cat duty of protecting him (by permitting him to resiile) without the consent of its owner is not an indictable cannot cease from the fact that the person who is i offense.- New York Press.
PUNCTUATION IN THE EYE OF THE LAW judicial tribunals do not much regard punctuation;
and some eminent jurists have thought that legislaTHERE is a tradition to the effect that it was
tive enactments and public documents should be once forbidden to introduce punctuation marks without it." Bishop, in his “Commentaries on into the statutes, the theory being that the law should Written Laws and their Interpretation,” says: be so plainly worded that its meaning would not
"The statutes in England are not punctuated in depend upon the easily transposedi “points,” and the original rolls; but more or less marks of punctuthat 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
us the punctuation is the work of the draughtsman, altogether. The spread of general knowledge, and
the engrosser, or the printer. In the legislative possiby a lessening of the distrust which the ancient body the bill is read so that the ear, not the eye, burghers entertained as to the honesty of men who takes cognizance of it. Therefore the punctuation were more trained in the use of the pen than of the is not, in either country, of controlling effect in the sword, have led to a disregard of this precaution, interpretation." Punctuation, in fact, forms no and statutes are now punctuated according to the part of the law, as pointed out in the foregoing exjudgment of the engrossing clerk. When this
:- a fact well recognized in Great Britain, as functionary errs in judgment (is it not even hinted
may be observed in legal advertisements for next of that Jupiter nodded on occasion?) there is tribula- kin, and often reprinted in the leading daily papers tion in the land. We quote the following article here, which are noticeable for their want of punctuapropos of this subject, from the American Book
ation. Some of the cases in the United States in maker :
which the above cited principle has been laid down From time to time it is announced in correspond
are Doe v. Martin, 4 Term R. 65; Barrow v. Wad. ence from Washington, D. C., that the punctua-kin, 24 Beav. 326 ; Cushing v. Worrick, 9 Gray tion of acts passed by Congress is defective, and (Mass.) 385; and Gyger's Estate, 65 Pa. St. 311. the legal advisers of the government are called upon Those interested may also consult Sedgwick on to settle the knotty questions arising from these Statute Law for further information on this sub
Several instances of defective punctuation ject. Punctuation cannot have a controlling effect, have been noted in the new tariff act, and similar
but may be disregarded altogether when plainly errors occurred in the wording of the tariff act of
contrary to the legislative intent, in which case the 1890. None of the errors can be corrected without
courts will repunctuate to give effect to such intent, a joint resolution of the two houses, for the “law
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
Rep. 16, and in Pancoast v. Ruffin, 1 Ohio, 385. in the enrolled bill, which is the copy that becomes a part of the archives of the government.
It is un
The following extracts are from some of the de
cisions of the courts on this interesting question: fortunately too true that now, as in the time of
"Punctuation is a most fallible standard by Chaucer, A reader that pointeth ill
which to interpret a writing. It may be resorted A good sentence may oft spill.
to when all other means fail." Ewing v. Burnet, Those who have tried, by means of the law courts, 11 Pet. (U. S.) 54. to take advantage of erroneous punctuation, have · Punctuation is no part of the statute,” Hamhad their trouble and bills of cost for their pains, mock v. Farmer's Trust & Loan Co., 105 U. S. 77. and it may be said that a similar fate awaits the “Fon the purpose of arriving at the true meanperson who may endeavor to defeat, by legal means, ing of a statute, courts read with such stops as are the manifest intent of the law. One of the oldest manifestly required." United States v. Lacher, 134 legal maxims—as old as the law itself-is to the U. S. 624, 10 Sup. Ct. Rep. 625 (opinion given by effect that bad grammar does not vitiate a deed Chief Justice Mellville Fuller). (“mala grammatic non ritiat chartum"); and, in the “Punctuation in written contracts may someeye of the law, the same principle applies in the times shed light upon the meaning of parties, but case of bad or wrong punctuation. As the late it must never be allowed to overturn what seems George Perkins Marsh, LL. D., long representative the plain meaning of the whole contract." Osborn of the United States at the court of Italy, says in v. Farwell, 87 III. 89. one of his lectures on the English language, deliv- Punctuation may perhaps be resorted to when ered at Columbia college, and afterwards published no other means can be found of solving an ambigin book form: “ Mistakes in the use of points, as uity, but not in cases where no real ambiguity in all the elements of language, written and spoken, exists, except what the punctuation itself creates." are frequent; so much so, in fact, that in the con- Weatherly v. Mister, 39 Md. 620. struction of private contracts, and even statutes, “The want of proper punctuation is, if objection
able at all, no more allowable in vitiating the con- grounds-not merely as a means of facilitating comtract or destroying its effect than bad gaammar,
Gibraltar, it is said, will be greatly diminthe rule against which is a maxim of the law.” ished in importance, so far as French interests are White v. Smith, 33 Pa. St. 186.
concerned, by the construction of the Canal des From the writings of the authorities cited, and Deux Mers. International law as to ship canals is from the foregoing extracts from decisions, it will apparently going to have yet another chapter added. be gathered that there is no hope for any litigants Latest reports from Washington state that in the who may base their cases solely upon the erroneous United States Senate it has been publicly announced punctuation of the acts passed by congress. Law that negotiations are in progress between the BritBook News.
ish and United States governments on the subject
of the construction of a canal between the Pacific INTERNATIONAL LAW AND INTERSEA
and the Atlantic at Nicaragua. A senator states that COMMERCE.
the British government have no objection to the THE completion of the Baltic Ship Canal—which work being carried out by the United States gov
sively German, a result of the Schleswig-Holstein stipulation that the new canal must be subject to annexation-recalls the protracted negotiations on the same regulations as to freedom and neutrality as the subject of the passage through the natural wa- now apply to the Suez Canal.
If the British govterway of the Sound. The Sound dues controversy ernment have really assented to this project, it was chiefly remarkable for the assertion of the seems probable that interocean communication will right of free passage between the North Sea and be more likely to be attained than seemed probable : the Baltic, successfully put forward by the great a short while ago on the collapse of the Panama unpowers as against Denmark.
It was also noticeable dertaking. But it is important to remember that on account of its furnishing an instance of United there are British treaty rights involved. The States interference in strictly European concerns- Clayton-Bulwer treaty has never been admitted by a refutation of the position taken up by so many the British government to be at an end, notwithwriters that the recent projected American partici- standing the contention to that effect of some pation in the Armenian inquiry constituted an un- American diplomatists. That treaty expressly proprecedented move on the part of the United States. vides for the British right of using, under conditions As a matter of fact, it was the United States inter- guaranteeing order and neutrality, not merely all ference that brought to a climax the long-standing interocean canals, but interocean railways concontroversy with Denmark on the subject of the structed across the isthmus.-Law Journal. Sound dues on shipping. As a consequence, the Danish claim to exact from all ships passing through “A REASONABLE DOUBT” AND “INTENT the narrow waters from the Baltic to the North Sea
TO DEFRAUD.". was abandoned on payment of a fixed sum by way
FROM the charge to the jury by Judge Swan in of compensation. Here, however, as a result of increased engineering enterprise, we find a waterway
must satisfy the judgment and conscience of the between the two seas exclusively under the control of Germany.
jury of the guilt of the defendant, and that there is No one, so far, proposes to assert a right of passage over that waterway, such as the
no other reasonable explanation. It is not meant
that speculative notions, not arising from the right of navigation through the artificial channel of the Suez Canal. To what is this absence of claim proof, due to the ingenuity of counsel, should per
mit the defendant to escape. What meant is attributable? Is it to the fact that the Baltic Canal
honest misgiving, generated by the insufficiency of is in Europe, and that there is a greater sanctity in
proof. It is not necessary that the evidence should European territorial sovereignty? Or is it merely establish the absolute certainty of guilt. It is suffito the fact that Germany is a great power, whereas cient if the evidence would lead you to act in the Turkey and Egypt belong to the decaying rule of
more important affairs of your own lives. If it is the Ottoman? If Schleswig-Holstein had remained
such, you cannot be said to have any reasonable under Danish rule, would the new canal have be- doubt. In other words, a reasonable doubt means come like Suez, an international possession? A a doubt for which you can give a reasonable exsimilar series of questions might be propounded in planation from the proofs in the case. There must respect to the projected Canal des Deux Mers, be- be a substantial misgiving from something you can tween the Bay of Biscay and the Gulf of the Lion, lay your finger on in the evidence — not a mere the subject of inquiry by a public commission in speculative doubt. The statute makes it an essenFrance. Like the Baltic Canal, the new intersea tial ingredient of this offense that it must be done passage is advocated on undisguisedly military | with the intent to injure or defraud the bank. It
is not necessary to show that the defendant had used without any of the machinery included in the malice or ill-will toward the institution. All that earlier patent, and without infringing thereon. is necessary to establish the intent is to show that Allison Bros. Co. v. Allison (N. Y.), 38 N. E. Rep. the defendant did something which was illegal, and | 956.) which in the natural course of events would result
BANKS-CHECKS-REASONABLE in loss and injury to the bank. The law presumes sentATION.—Checks drawn on a Milwaukee bank that a man intends the natural consequences of his
were indorsed over to plaintiff and delivered to his own acts. The law presumes the intent when an
father, who at once mailed them to plaintiff, at act deliberately entered into produces its natural re- New Richmond, several hundred miles north-east of sult of injuring and defrauding. If you are satis- Milwaukee. Plaintiff delivered them to his bank, fied from the evidence beyond a reasonable doubt who mailed them to its Chicago correspondentthat the defendant abstracted, embezzled or wrong. having no Milwaukee correspondent, and they were fully converted the funds of the bank, the intent to then sent to Milwaukee. Held, that plaintiff did not defraud is to be presumed."
use due diligence in presenting said checks for payment. (Gifford v. Hardell (Wis.), 63 Fed. Rep.
1064.) Abstracts of Recent Decisions.
BANK CHECKS--ESTOPPEL TO DENY.—In an action ACCIDENT INSURANCE-ACTION ON POLICY. — - In
by a bank which has paid to another bank a check an action on a policy insuring against death from drawn on the former bank and transferred to the “ bodily injuries effected through external, violent,
latter by a forged indorsement, it is immaterial and accidental means, within the intent and meaning whether the signature of the drawer of the check is of the conditions” recited therein, the burden of genuine, since both parties are estopped to deny its proof is on the defendant to show that deatlı was
genuineness. (First Nat. Bank v. Northwestern from one of the excepted causes. (Anthony v.
Nat. Bank [Ill.), 38 N. E. Rep. 739.)
CARRIER-INJURY TO LIVE STOCK. Where a com
mon carrier unloads a shipment of horses at an inADVERSE POSSESSION-NOTICE TO
termediate point in the morning, and then reloads The possession of one tenant, asserting an exclusive
them late in the afternoon, but twelve hours before right to the land under a deed conveying the land
the departure of the train by which they are to be to him by specific description, is adverse to his cotenants having notice of the deed. (Puckett v. Mc- shipped, and against the owner's protest, and the
horses are injured while thus waiting, the carrier is Daniel [Tex.], 28 S. W. Rep. 360.)
liable, though, by its contract, not responsible for ANIMALS-VICIOUS DOGS. – The owner of premises unusual or unreasonable delay. (Alabama & V. Ry. who, having knowledge of the vicious and danger- Co. v. Sparks (Miss.], 16 South. Rep. 263.) ous character of a dog owned by his agent, permits the agent to retain him, and allow him to run at
CONTRACT- ILLEGALITY-CANCELLATION. Where large on the premises, is liable for any damage he
the parties are in pari delicto, an executed contract does to a passer-by. (Harris v. Fisher [N. Car.],
will not, as a general rule, be set aside because of 20 S. E. Rep. 461.)
want of authority to make it.-(Cincinnati H. & D.
R. Co. v. JícKeen [U. S. C. C. of App.), 64 Fed. ASSIGNMENT FOR BENEFIT OF CREDITORS-PREF
Rep. 36.) ERENCES.— Where, by the withdrawal of one partner, a new firm is created, which agrees to pay such
CORPORATIONS ELECTION.-A director of a cormember for his interest, and assumes the old debts, poration cannot sue in equity to hinder or control the new firm may, by a subsequent deed of trust the election of other agents of the company in the for the benefit of creditors, give preference to the
manner prescribed by its charter and by-laws, on claim of such member and to the creditors of the any showing as to what such agents may or may not old firm. (P. J. Willis & Bro. v. Murphy [Tex.], do or intend to do ; especially until he has tried 28 S. W. Rep. 362.)
the usual methods of relief, and invoked the action ASSIGNMENT OF PATENT-CONSTRUCTION. —
of the full board of directors. (Greenough v. Ala
bama G. S. R. Co., U. S. C. C. [Ala.), 64 Fed. signment of a patent “and improvements on the
Rep. 22.) same which may hereafter be made” does not include a patent subsequently granted the assignor Court OF CLAIMS— JURISDICTION-TORTS. --The. for a machine to manufacture by a different process Court of Claims has no jurisdiction of claims against the same goods as were produced by the machine the government for mere torts. (Schillinger v. covered by the patent assigned, but which can be United States (U. S. S. C.), 15 S. C. Rep. 85.)