in the country where the court delivering judgment has authority is, it must be admitted, to a certain degree an anomaly.

In actions having reference to status this anomaly may, as already suggested, be without great difficulty accounted for. The courts of a man's domicil can give a more effective judgment with regard to his status, e.g. on the question whether he is to be held legitimate or not, than the courts of any other country. That jurisdiction should therefore in this case depend upon domicil is in conformity with the principle of effectiveness and the corollary thereto.

That domicil should be the test of jurisdiction in matters of succession to movable property admits also of explanation. It is true that, if each piece of property be looked at separately, jurisdiction ought to belong not to the courts of the deceased's domicil, but to the courts of the country where each piece of property is situated at the time of his death, for it is clear that it is the courts of the situs which can give the most effective judgment with regard to the possession of property situated within a given territory. But if it be convenient, as it certainly is, that the courts and the law of some one country should determine the succession to the whole of a deceased's movable property, then it is in accordance with the principle of effectiveness that jurisdiction should belong to the courts of the deceased's domicil.

From the fact, however, that in matters of succession the power of giving an effective judgment belongs rather to the courts of the situs than to the courts of the domicil, flow some noteworthy results.

In the first place succession to land is determined by the courts. of the country where the land is situated1.

In the second place, in countries such as England, where a distinct difference is drawn between the administration of, and the beneficial succession to, movables, every matter connected with administration is within the jurisdiction of the courts of the country where any articles of a deceased's movable property are situated. T, an intestate, for example, dies domiciled in Portugal, leaving goods, money, &c., in England. The Portuguese courts indeed are courts of competent jurisdiction, whether A, T's natural son, is or is not entitled to succeed to such part of T's money and goods as may remain after the due administration of T's property in England, e.g. the payment of his debts there, and the decision of the Portuguese courts in the matter of A's claim to succeed will be taken as conclusive by English courts 2. But it is to the English courts, or to persons acting under their authority, that belongs the right and

1 Story, s. 591.

2 Doglioni v. Crispin (1866), L. R. 1 H. L. 301.

duty of administration. They are in this matter the courts of competent jurisdiction.

In the third place, though, as regards beneficial succession to movables, the courts of the deceased's domicil are courts of competent jurisdiction, they are not courts of exclusively competent jurisdiction. Thus, though to follow out our supposed case of a Portuguese dying domiciled in Portugal, and leaving movables in England, the Portuguese courts are competent to determine whether A has a right to succeed beneficially to T, yet the right and duty of the English court in 'administering the property, supposing a suit to be instituted for its administ ation, is to ascertain who, by the law of the domicil, are entitled' [to succeed to T's property] 'and, that being ascertained, to distribute the property accordingly. The duty of administration is to be discharged by the courts of this country, though in the performance of that duty they will be guided by the law of the domicil,' and will follow any decision given in the matter, e.g. as to the right of an illegitimate son to succeed, by the courts of the domicil3. The admitted rules, in short, as to jurisdiction in matters of succession, arise not from any opposition to the principle of effectiveness, but from a question how best to apply it to the matter in hand. Look at the property of a deceased as a whole, and the courts of the country to which he belongs, i. e. according to English law, of his domicil, will appear to be in general the tribunals most capable of giving an effective judgment with regard to it. Look, however, at his movable property, not as a whole, but as consisting of separate movables, and then it will appear that the courts of a country where each movable is situated, and a fortiori of every immovable, is the tribunal capable of giving the most effective judgment with regard to such movable. Whatever be the most. proper application of the principle of effectiveness, the very difficulties felt by the courts in applying it shew that it is the principle by which they are guided in matters of succession.

Why, however, should domicil be a foundation of jurisdiction in personal actions?

The answer apparently is that, until recently, it never has been, according to English law, a ground for jurisdiction. That it has recently been treated as such must be attributed, either to the habit of resting jurisdiction on domicil in matters of status and of succession, or to the fact that, when a man is 'domiciled' or 'ordinarily resident' in a country, the courts of that country can, if not always,

1 Compare Enohin v. Wylie (1862), 10 H. L. C. 1, with Ewing v. Orr Ewing (1883), 9 App. Cas. 34; (1885), 10 App. Cas. 453.

Enohin v. Wylie (1862), 10 H. L. C. 13, per Lord Cranworth, cited with approval in Ewing v. Orr Ewing (1885), 10 App. Cas. 453, 503, per Lord Selborne.

3 Doglioni v. Crispin (1866), L. R. 1 H. L. 301.

yet frequently, make a judgment against him effective, with which fact is combined the consideration that a man who has his domicil or ordinary residence, e. g. in England, may perhaps be taken to submit to the jurisdiction of the English courts. However this may be, the admission ought to be made that, as regards actions in personam, it is something of an anomaly that domicil should be made a ground of jurisdiction.

2. Jurisdiction founded on place of obligation.-It is sometimes asserted that the High Court recognises the jurisdiction of the forum obligationis, that is of the courts of the country where an obligation is incurred or, in terms of English law, a cause of action arises1. For this assertion, however, if made in its full breadth, nothing like decisive authority can be cited. Neither at Common Law nor in Equity did the mere fact of a contract having been made or broken, or of a tort having been committed, in England, give the courts jurisdiction over a defendant not present in England, and there is no reason to suppose that the English courts conceded to foreign tribunals authority more extensive than that which the English courts claim for themselves. At the present moment, moreover, there is nothing to shew that the commission of a tort whether in England or in a foreign country is held by our judges to give jurisdiction in respect of the wrong to the courts of the country where the wrong is committed.

The Common Law Procedure Act, 1852, ss. 18, 19, gave the Common Law Courts jurisdiction (which the judges themselves thought in principle hardly defensible 2) over a defendant not present in England when either the cause of action arose in England or depended upon the breach of a contract made in England 3, and at the present moment the High Court claims jurisdiction in personam over an absent defendant when the action is founded on a breach in England of any contract wherever made which according to the terms thereof ought to be performed in England. Whether the High Court would concede an analogous jurisdiction to foreign tribunals is a point on which no certain opinion can be pronounced, whilst authority can be cited 5 for the proposition that the mere circumstance of a contract having been made in a foreign country does not give jurisdiction to the courts thereof. Assume, however, that the High Court holds that foreign courts can exercise all jurisdiction which it claims for itself, and even then the respect 1 See Schibsby v. Westenholz (1870), L. R. 6 Q. B. 155, 161, compared with Westlake (3rd ed.), pp. 345, 346, and Rules of Court, 1883, Ord. XI, r. 1 (e).

2 Schibsby v. Westenholz (1870), L. R. 6 Q. B. 155.

3 C. L. P. Act, 1852, s. 18, and see Jackson v. Spittall (1870), L. R. 5 C. P. 542; Durham v. Spence (1870), L. R. 6 Ex. 46; Allhusen v. Malgarejo (1868), L. R. 3 Q. B. 340.

Rules of Court, Ord. XI, r. I (e).

5 Rousillon v. Rousillon (1880), 14 Ch. D. 351.

paid by our judges to the forum obligationis is reduced to this, namely, that the courts of a country have, in the opinion of the High Court, jurisdiction over a defendant who has broken in that country a contract which by the terms thereof ought to be performed there.

Even this amount of respect for the forum obligationis cannot, it will be said, be explained in any way by the principle of effectiveness. This is true; but the jurisdiction of the courts of a country where a contract is intended to be performed and is in fact broken may be explained as an extension or application of the principle of submission. If X contracts with A to do something, e. g. build a house or deliver goods in France, there is, at any rate, some ground for the assumption that X and A tacitly agree to submit any controversy as to the performance of the contract by X to the decision of the French courts. If this explanation be thought farfetched, then the deference, limited as it is, paid to the forum obligationis must be treated as an anomaly suggested to English judges when framing rules as to jurisdiction1 by the provisions of the Common Law Procedure Act, 1852, ss. 18, 19.

3. Possession of property.-Ought the possession of immovable or movable property in a particular country to give the courts thereof jurisdiction over the possessor? This is a question which in the opinion of English judges is still open to discussion.

Two points, however, must be carefully distinguished.

The possession of property, whether land or goods, undoubtedly gives the courts of the country where the property is situated jurisdiction over that property and, therefore, over the owner or possessor thereof, in regard thereto. If a man claims land or goods in Italy the Italian courts have a right to determine who is the person entitled to the ownership, or possession, of such land or goods. Such a determination is in substance though not necessarily in form, a judgment in rem, and its effect is, subject to exceptions with which we need not now trouble ourselves, fully recognised by English courts 2. One may perhaps even go a little further and say that the possession of property, at any rate of land, in a country gives the courts jurisdiction over the possessor in regard to obligations connected with the property 3. This concession of jurisdiction is not only consistent with, but confirmatory of, both the principle of effectiveness and the principle of submission.

1 Rules of Court, 1883, Ord. XI, r. 1.

2 See Castrique v. Imrie (1870), 39 L. J. C. P. 350; Schibsby v. Westenholz (1870), L. R. 6 Q. B. 155, 163; Alcock v. Smith (1891), 7 Times L. R. 750; Cammell v. Sewell (1860),

5 H. & N. 728; 29 L. J. Ex. 350; Rousillon v. Rousillon (1880), 14 Ch. D. 351. Ibid. and Becquet v. McCarthy (1831), 2 B. & Ad. 951, and compare Rules of Court, 1883, Ord. XI, r. 1 (a), (b).

The possession of property, whether land or movables, is however in some countries, and notably in Scotland, held to give the courts of the country jurisdiction over the possessor, not only in respect of the property or duties conceded with it, but generally, and in short to have the same effect as is given to the presence of the owner in Scotland. This is apparently the theory of (so called) arrestment to found jurisdiction 1; if, for example, X has broken a contract with A, or done a wrong to A, and goods of X's are lying in Scotland, the arrest of the goods gives the Scotch courts, according to Scotch law, jurisdiction to entertain an action against X for the breach of contract or the wrong 2. The High Court, however, does not claim jurisdiction for itself on account of the presence in England of a defendant's property, and English judges have expressed the greatest doubt whether the possession of property locally situated in a country and protected by its laws does afford a ground of jurisdiction, and incline to the opinion that it does not.

Now the noticeable thing is the existence of this doubt and the reason thereof. The argument for basing jurisdiction on the possession of property is that the possession by X of property, e.g. in Scotland, especially when seized by the Scotch courts, does, as far as it goes, give the courts the means of rendering a judgment against X effective. The argument against making the possession of property a ground of jurisdiction is that the existence of such property, which may be very small, affords no sufficient ground for imposing on the foreign owner of that property a duty or obligation to fulfil the judgment's given against him by the foreign court in an action, e.g. for libel, which has no reference to his rights over such property. In other words, the objection to jurisdiction founded on the possession of property, say in Scotland, is that the fact of X's possessing property in Scotland does not of itself give the Scotch courts power to deliver an effective judgment against X. Whatever be the weight of the arguments in favour of, and against, the founding of jurisdiction on the possession of property, the hesitation of English judges in the matter is instructive. They hesitate because there is a difficulty in determining how far jurisdiction resting on the possession of property stands the test of effectiveness.

4. Convenience. The High Court assumes jurisdiction in certain instances on the ground of convenience, and especially upon the ground of the advantage of pronouncing judgment once for all against every person interested in a particular action. Thus a person Y, living out of England, may be joined as defendant in an action

1 Mackay, Pract. Court of Session, vol. 1, pp. 173-176.

2 See especially Mackay, i. p. 177, note (a.

3 Schibsby v. Westenholz (1870), L. R. 6 Q. B. 155, 163.