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restrictions on the person, on immovable prop-The discussion showed the strong tendency erty and on movable property.
among continental jurists to give even greater M. Rolin-Jacquemyns pointed out that a dis- importance to the national law as regards all tinction should be made between the case of a questions of personal status. person dangerous to society and mere spend Sir Sherston Baker and M. Beirao (formerly thrifts. The former must necessarily be con- Minister of Justice in Portugal), members of sidered as of public order. He was otherwise the institute, have been present at the meetin favor of the “tutelle unique.”
ings, in addition to those already mentioned. Professor Lammasch expressed his appre
The meeting of the institute at Cambridge hensions as to the law of one State having force on August 13, was devoted to considering the in another, and suggested that, as regards im- immunities of diplomatic missions on the terrimovables, a distinction was indispensable. tory of the States to which they are accredited.
M. Clunet explained that there was no dan- Embassies and legations, as is well known, are ger to the foreignor of suffering a minutio capitis | by a legal fiction considered to be, as it were, a -. e., a diminution of his legal capacity-in portion of the territory of the State to which asmuch as the project provided for the applica- they belong. Hence the term "exterritorition of his national law, and it was only in case ality.” Moreover, by the comity of nations, no application was made to the court on behalf diplomatic representatives in the reciprocal inof his national law that the local law would be
terest of States are treated as privileged percome applicable. This, however, it was im
According to some writers the present portant to insure, and on his proposition a fur- practice goes beyond the limits which are justi
fied in reason. Others treat exterritorial prether article was adopted, under which the administration of the property of the person
cincts, not merely as convenient fiction which question would be governed by the law of the should not be extended beyond the limits of court imposing the restraint. The main con
practical necessity, but as having the character sideration in the project was to attain, if
of detached parts of the country represented in
possible, unity of administration of the property of every respect. Furthermore, writers are not pesons of full age deprived of the management agreed as to which persons belonging to the of their affairs.
diplomatic personnel should have the benefit of Lord Reay fully accepted the principle that the privileges and immunities in question. All the science of international law could not be
these matters formed part of a full report and stopped in its progress because nations were project of regulations framed by the committee not prepared to accept some principles on which in charge of the question under the convenerscientific men
ship of M. Lehr. were agreed; but where not only was there no such agreement, and in addi
M. Edouard Rolin made a warm attack on tion almost a certainty that hardly any legisla- the use of the word "exterritoriality.” ture would be prepared to accept the principle, invented, he contended, to group in one exand still less its extreme consequences, it be pression a number of rights. It no longer hooved the institute to proceed with caution. represented the real nature of the immunities This was a case in point. To say that a per- of diplomatic representatives and their suite. son should have the benefit of his personal To retain it opened the door to exaggerated status in a foreign country was one thing; to notions of diplomatic privileges. say that the foreign country was to provide him The institute, however, determined to retain with all the means of protection which he would it is a convenient and time-honored term which have in his own country, and to apply this even it would be inconvenient in the absence of a to real property, was far in excess of what most better to replace. As regards the jurisdiction Legislatures or judicatures were prepared for, to which diplomatic representatives are suband had not even been accepted by some of the jects, it was decided in accordance with existforemost international lawyers.
ing practice that they should be exempt from After a discusion in which many other mem- all jurisdiction, civil or criminal, of the State bers took part, the whole project was adopted. 'to which they are accredited. A representa
tive would, therefore, have to be sued in his men was one to detach a clause relating to the apown country. A discussion took place as to plication of death duties in respect of diplomatic which court in his country should have juris- representatives from the subject under discusdiction, seeing that, being exempt from the sion, and to appoint a special committee to deal local jurisdiction, facilities of jurisdiction with death duties in general as a question involvshould, if possible, be accorded to the ag-ing injustice and inequality for international sucgrieved person in the foreign country into cessions. This subject was brought before the which he was obliged to follow the diplomatic meeting of the associated chambers last spring representative.
as regards France and England, and it is satisProfessor de Martens proposed that a court factory to see that it interests jurists of other in the capital of the diplomatic representative's foreign States. country should be declared competent.
On August 14 the Institute of International
Law closed its session for this year. Two Professor Westlake pointed out that this could not be applied in certain countries, such subjects on which much discussion was as the United Kingdom, where different judicial pected — namely, contraband of war and nasystems existed in different parts of it.
tionality — were dealt with very fully in Professor Van Bar agreed with him, and sug
committee, every available hour that could
be snatched from the plenary meetings gested that the defendant should be entitled to claim the jurisdiction of his domicile.
having been devoted to them, but little
beyond this was done. The committee on conAccording to the article adopted, the plain- trabarid of war submitted a series of rules, the tiff should be entitled to apply to the court of chief point in which is the generalizing of the the capital, but the plaintiff should also be able criterion of destination. The conveners, Counto contest the latter's jurisdiction, on the ground cillor Kleen (Sweden) and Professor Brusa of being domiciled elsewhere. Another point (Italy), had proposed the adoption of exclusive which gave rise to difference of opinion was
lists of contraband and non-contrabānd artithe non-liability of diplomatic representatives
cles. A counter proposal by Director Perels, to taxation. Some members were in favor of of the German Admiralty, struck out fixed restricting the immunity of such representa- enumeration and retained the principle of what tives to the official personnel of the diplomatic is called "accidental contraband." This was mission. An English member proposed that defined and regulated without, of course, affectpersons belonging to the country represented, ing its essential feature of destination. The and residing in the ex-territoriai precincts, whole subject will be discussed in plenary should be included in the immunities; but this meeting at Venice next year. was negatived, and it was decided that the im
The nationality question made rather greater munity should not be extended beyond the offi
progress. Double nationalities are a source of cial personnel. An interesting debate took infinite trouble in countries where there is place on the subject of obtaining the evidence compulsory military service, and to none is the of persons enjoying the immunities. It was hardship greater than, for instance, to Englishdecided, in spite of Professor Rolland, who ob men who happen to have been born in France jected to their having to give their testimony and whose children, if born there, are French even in the ex-territorial precincts, that they absolutely, and therefore excluded from French were entitled to refuse to appear as witnesses soil unless they do military service in that counbefore any local jurisdiction, on condition, if try, though Frenchmen born under similar requested, of giving their evidence in the hotel conditions in England have to do no military of the diplomatic mission to a magistrate spec- service in England. The committee on the ially delegated by the local authority. The general subject, under the convenership of Professor impression produced by the discussion was that Weiss, of Paris, having considered itself bound continental jurists show a tendency to restrict to deal with a few aspects of the subject only, the ex-territorial rights and privileges and im- a fuller counter-project by an English member munities of diplomatic agents of all kinds. A meeting with some opposition as to the rules decision which will particularly interest English- proposed on the points omitted, confined itself
to enumerating the points upon which agree of this State, while now any part of the State ment was unanimous, and these, which were can be reached in twelve hours. There is no also adopted unanimously by the plenary meet- good reason why a defendant should have ing, were essentially as follows: (1) No one twenty days to appear in an action or to serve should be without a nationality; (2) no one a pleading. To litigation this is a great and should have two nationalities; (3) every one often an unfortunate delay, considering the should be able to change his nationality; (4) time it really takes before a case is ready for to change nationality a simple declaration the trial calendar, and is often the cause of inshould not suffice; (5) the nationality of justice to a plaintiff in an action. origin should not be indefinitely transmissible For instance, a summons has been served on from generation to generation on foreign soil. a defendant outside of the city of New York;
Professor Holland, on behalf of himself and within twenty days the defendant appears in Sir Travers Twiss, stated that a standing sub- the action; then the attorney for the plaintiff committee on extra-territorial jurisdiction and serves a complaint on the defendant's attorney; mixed cases in Japan could now be suppressed. if such service is made personally on the attorThe treaty of July 16, 1894, between Great ney, then the defendant has twenty days from Britain and Japan had fixed a period of five the date of such service in which to answer; years for extinction of the privilege of extra- but, as often happens, if the service is made territoriality. The British example had now by mail, the defendant has double time, forty been followed by the United States and Italy, days to answer, and has the same time, subseand would, no doubt, be in turn followed by quently, to amend his pleading. other Western Powers. Professor Holland con
"In such cases the defendant actually has gratulated the Japanese on having been admit- sixty days from the time of the service of the ted to the European concert as regards the complaint; and if the complaint has been administration of justice at a moment when
served on the attorney by mail, and the answer they were about to take a high place among served by mail, the defendant has one hundred the military Powers of the world.
days before issues can actually be joined and
the cause noticed for trial. The result of such Perhaps the most important work which must be performed by Messrs Lincoln, Johnson long lapse in a litigation is decidedly disadvanand Northrup, who have among other duties tageous to the plaintiff, because it affords the the revision of the statutes and advising the defendant abundant opportunity for delaying governor about legislation and pardons, is to
the payment of what may possibly be a just prepare a Code of Civil Procedure which will claim by the interposition of an answer which be approved by the lawyers and legislators. may be false. Among other suggestions which have been
“It is true the Code provides that false made in answer to the request of the commis- pleadings may be stricken out and the sersioners is one from Joseph C. Rosenbaum, vice of such answers punished as a contempt Esq., of New York city, who writes thus: of court, but cases in which such relief is
“Section 418 of the Code of Civil Procedure given and punishment meted out to litigants should be modified by substituting six instead are so exceedingly rare that it can reasonably of twenty days, the time in which to plead or be said that it is no remedy at all. appear in an action. Twenty days has always “Another reason why such long time for been the time that a defendant had to appear joining issue is injurious to the plaintiff and his or plead, and seems to have been the result of cause is that in the meantime the defendant the then existing facilities for communications may dispose of all his property, even before the between attorneys in different counties.
case can be placed on the calendar, to say noth“The twenty days' time still in use seems to ing of the time which must elapse before a be without change or modification, although judgment is rendered. the mode and facility of communication has “ The delay being so sure that not alone the greatly improved since then. It generally took plaintiff becomes tired of litigation a long time three or four days between the extreme points I before it has actually begun, but it offers a real
inducement for a defendant vicious or tempo- If such a motion is made by defendant the rarily embarrassed to take advantage of. Court, as a general rule, allows the plain
tiff to file a note of issue upon the payment of Cases are defended simply because the apparent defense gives such an abundance of nominal costs, and, of course, another
and time. Actions are litigated that should have a half must elapse before the case
The result of such been settled or paid at once, and probably reached on the calendar. would be, but defendant takes advantage of practice is easily seen in a case where plaintiff this antiquated practice, and the long extension replevins a quantity of property, giving the unof time, with the small penalty of a few extra dertaking required by the present Code of Civil costs, is
often too great an inducement for Procedure and taking the property into his posbusiness honesty to overcome.
session. The defendant appears in the action,
and the issue is joined, and there the plaintiff There is no reason why a defendant cannot
rests. plead in six days, no matter what part of the
Plaintiff, having the property in his posState the defendant resides or appears from. session, has all to lose and nothing to gain by A person who knows that his litigation will be the continuance of the litigation. Of course, promptly and quickly disposed of is more apt the plaintiff never notices the case for trial or to press honest claims (too often allowed to
files his note of issue. In the course of about drop), and if a defendant knows that judgment a year and a half, after younger issues have must be recovered against him within a short been reached on the general calendar and distime, and cannot rely on the time consumed in posed of, a motion is made by defendant to pleading, the probability is that the claim will dismiss the complaint for want of prosecution. be liquidated or paid. If such a change is This motion is usually granted unless plaintiff made the number of litigations would be greatly pays nominal costs and files a note of issue, decreased, and our courts could keep up with and then about another year and a half elapses the volume of litigation that increases every before the case is reached for trial. year.
'If the notice of trial was abolished and a “The Code of Civil Procedure should be notice of placing on the calendar substituted further amended by doing away with the notice plaintiff could be made to place his case on the of trial. It certainly has not the effect of calendar within a given time, say a month. If bringing cases to trial. A plaintiff may bring the case not placed on the calendar an action and never place it on the calendar, within such fixed time the defendant could and never intend to try it, yet if defendant re
move to dismiss the complaint for the non-filceives a notice of trial he will assume that ing of the note of issue, and then on such plaintiff intends to try the action when reached, motion the court could compel plaintiff to file and prepares accordingly. A much better
a note of issue or suffer a dismissal. Instead practice would be a notice on the part of plain- of losing a year and a halt's time only one tiff or defendant that the case has been placed month's time would be lost. on the calendar, giving the number of the · It has become the plaintiff's general pracsame, and could be placed on the calendar at tice in replevin actions to simply take the any time, and date from the filing of the note property and allow the defendant to worry of issue instead of the succeeding first Mon- about its return or its value. day.
“The time for pleading in the city court At the present time the situation is that if should be reduced from six days to two days, a malicious or foolish litigation is brought which time is ample for an attorney to serve a against a defendant he must wait until the plain-pleading in the city, and if for a good reason it tiff places the case on the calendar for trial; if is impossible to serve it within that time, the he does not do so the defendant must wait until
court has power to grant a reasonable extenyounger issues have been disposed of (in the sion of the time so to do. The same applies Supreme Court about a year and a half) before to the Supreme Court. he is in position to make a motion for a dis · Section 553 of the Code of Civil Procedmissal of the complaint for non-prosecution. ure should be stricken out.
That section pro
vides that a woman cannot be arrested, ex such sections of the code are unconstitutionali cepting in a case where an order can be granted in that it is class legislation, in favor of a class only by the court, or where it appears that the of people of the State. The poorest and most action is to recover damages for a wilful injury needy woman who recovers $51, has an only to person, character or property. In that same remedy in an execution against the property connection section 1488 of the Code of Civil no property, no money — while a female lawyer Procedure should also be stricken out.
may recover a judgment for $50 for services “That section provides that an execution rendered, and have not only an execution cannot be issued against the person of a woman against the property, but is entitled to an exunless an order of arrest had been granted and ecution against the person of defendant, and executed in the action. The above two sec have him actually confined in jail for fifteen tions should be abolished. While, theoretically days. Either all persons should be entitled to all persons, male and female, were equal, that an execution against the person in such actions theory has developed into an actual condition or the sections entirely abolished. (at least the women think so), and there is no 'It has been suggested by some lawyers, that reason, if such is the case, why any discrimina- the District Court Justices should sit in differtion should be made in favor of women. They ent districts at least every week. The District should be subject to all the liabilities and en-Courts, more than any other courts, reach the titled to all the privileges same as males. They populace; before them appear the bulk of the claim to be on the same footing as man, and people, and it is in their power to do good or they should be consistent enough to resent any evil. partiality or discrimination in their favor.
“ If the Justices of the various District Section 3221 of the code, which allows an Courts intend to do their duty as such, there execution against the person of a defendant, can be no objection to the suggested change. and keeps him actually confined in jail for a While I am on the subject of reforms, I period of fifteen days, in an action where a would suggest that a woman's dower in a hus
recovers a judgment against him for band's real estate only attach at the death of $50, or less, for services rendered, should be her husband, instead of the absolute dower abolished. To the same effect is section 3131, right in her husband's real estate as soon as he excepting that 3131 applies to Justices' Courts acquires it. Although such rights have existed throughout the State, while 3221 applies to from or before the time of the Magna Charta, District Courts in this city. Both of said sec- the object for which such right was given does tions should either be entirely abolished, or not present itself in our advanced condition. should be made in favor of both men and At the time this dower right was created a
married woman was considered of the same “As the law stands at the present time a class as infants, lunatics, drunkards, &c., and, woman who recovers judgment in an action for as such incompetents, presumed to be incapa . services performed by her, whether for seam ble of entering into a contract. When she stress, maid, physician or lawyer, is entitled to married all her goods and chattels became her an execution against the person, provided the husband's property, and she became an absojudgment is for $50 or less; such right is lute dependent on her better or worse half. If denied to a man, and that right is denied to a she committed a wrong her husband was jointly possibly poorer woman who recovers a judg- liable with her, and her very existence thement for $51.
oretically merged into his. ' Irrespective of whether a woman ought to “For her protection the law gave her an be paid in preference to a man, or whether they absolute interest in her husband's lands. Toshould be entitled to more legal rights than day no such state of affairs exist.
A woman, man, these sections have become the foundation although married, may do as much business as for a great deal of abuse on the part of her capital or ability will permit. If she holds those entitled to its benefit.
real estate she can dispose of it as suits her “I believe, and have always contended, that I fancy or convenience, and her husband, as far