PROPERTY. CAP. VI. Jurisdiction PART II. realty, and referred to an action which had come before him against a captain in the English navy who had pulled down some houses in Nova Scotia, and which he had ruled was maintainable. In Doulson v. Matthews, (a) however, although as to Land. Lord Mansfield's dicta were brought before the notice of the Court, they were distinctly overruled, and it was decided again that no action lay in this country for trespass to realty situate abroad. Shortly after the restrictions as to venue were removed, the same question arose in the Probate and Admiralty Division of the High Court,(b) where an English company, possessed of a pier in Spain, instituted a cause of damage against an English ship for negligently injuring it: but the ship having been released from arrest upon an agreement that the liabilities of the parties should be decided in the English Courts, the owners were prevented from setting up any objection to the jurisdiction. In deciding that the law of Spain must govern the case, Mellish, L.J., used the following expressions(c) :—"If that is the rule respecting personal wrongs and respecting wrongs to personal property "i.e., that no action can be maintained in England for a wrongful act, unless it is wrongful by the law of the country where it was committed, as well as by English law-" it seems to me à fortiori that it must be the rule as to wrongful acts to real or immovable property in a foreign country. Whether the rule as to wrongful acts to immovable property in a foreign country does not go still further, and prevent an action from being brought at all, is a question which it is not necessary to determine in this case; because, having regard to the consent of the parties and the agreement that has been come to, no objection to the jurisdiction could be taken." And James, L.J., said in the same case, that had it not been for this agreement, very grave difficulties indeed might have arisen as to the jurisdiction of the Court to entertain any action or proceedings whatever with respect to injuries done to foreign soil. It would indeed seem clear, that a mere alteration in the rules of procedure in the English Courts could not operate to extend their jurisdiction beyond the limits which were formerly laid down, if those limits were originally defined not only by the necessities of procedure, but by the principles of the law of nations which English law recognises. Whether, however, the law of nations did thus define them appears very doubtful when the unlimited jurisdiction in the case of personal torts, to which the rules of venue (a) 4 T. R. 503. Effect of abolition of rules of renue. (b) The M. Moxham, L. R. 1 P. D. 107. (c) L. R. I P. D. p. 112. PART II. PROPERTY. CAP. VI. did not apply is considered. According to Mellish, L.J., in the judgment from which quotation has just been made, it is an established principle that no action can be maintained in the Courts of England on account of a wrongful act either to a Jurisdiction person or personal property, committed within the jurisdiction as to Land. of a foreign country, unless the act is wrongful by the law of the country where it is committed, and also wrongful by the law of this country.(a) Thus, in Phillips v. Eyre, where the liability of the defendant had been taken away, and his wrongdoing purged, by the law of the country where the tortious act was committed, it was held that no action could be brought in this country. This limitation, however, is not one of jurisdiction at all; but results merely from the principle that the tortious nature of an act must be measured by the law of the place where it is done, as well as by that of the forum where the claim for damages is made.(b) According to the last edition of Story (§ 554) it appears to be the American view that an action for personal damages, though founded on a tort to foreign immovables, is not confined to the forum rei sitæ. Nor do the reasons given in the English cases before the abolition of venue in any instance go beyond the necessities of English procedure. In the language already cited from the judgment of Willes, J., in Phillips v. Eyre,(c) there is plainly nothing which necessarily means more than that actions for torts to foreign realty cannot be tried, because the rules of venue prevent them from coming before the Court. In Mostyn v. Fabrigas(d) Lord Mansfield pointed out that there is a formal and a substantial distinction as to the locality of trials. The substantial distinction is, where the effect of the judgment cannot be had, if the action is laid in the wrong place. The formal distinction is that which arises from the mode of trial, and excludes certain actions by means of the rules of venue. And by way of example, it was said, that there might be a solid distinction of locality, if an action were brought relative to an estate in a foreign country, where the question was a matter of title only, and not of damages. It can hardly be doubted that the rule as to venue was in Lord Mansfield's mind the only obstacle to the trial by an English Court of an action for injury to foreign realty.(e) The execution of the judgment (a) The M. Moxham, L. R. 1 P. D. 107, 111; Phillips v. Eyre, L. R. 6 Q. B. 1; The Halley, L. R. 2 P. C. 193; General Steam Navigation Co. v. Guillon, 11 M. & W. 877, 895; Mostyn v. Fabrigas, 1 Sm. L. C. 658; Scott v. Seymour, 1 H. & C. 219; 31 L. J. Ex. 457; Bulloch v. Caird, L. R. 10 Q. B. 276, and infrà. (c) L. R. 6 Q. B. 1, 28; ante, p. 193. (b) Vide infrà, chap. ix. (ii.). (d) Cowp. 161; 1 Sm. L. C. 658, 680. PROPERTY. PART II. in such an action, inasmuch as it can only be brought when proper service is effected on the defendant, and execution can CAP. VI. only issue on his person or property within the jurisdiction, Jurisdiction cannot interfere with the sovereign rights of a foreign Power, as to Land. as it would in an action for the title to or possession of land. An injury to land is in fact a personal injury to its owner, and is no more beyond the jurisdiction of an English Court, on general principles, than other personal injuries are. The real objection to entertaining such an action appears to be that it involves the necessity of deciding as to the title or proprietary right.(a) Service out of the jurisdiction. p. 184. Service out of the jurisdiction of a writ of summons (or in the case of a non-British subject, notice of the writ) is governed by Order XI. r. 1, of the Judicature Act Rules; which provides as follows: "1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever (a) The whole subject-matter of the action is land situate within the jurisdiction, with or without rents or profits. (b) Any act, deed, will, or contract, obligation or liability affecting land or hereditaments situate within the jurisdiction is sought to be construed, rectified, set aside, or enforced in the action. It has been held that a contract to pay rent is not a contract, &c.," affecting land" within (b).(b) But where the action sought to recover compensation for tenant right according to the local custom under which the land was demised, it was held to be within the rule, and service out of the jurisdiction was ordered.(c) SUMMARY. JURISDICTION AS TO REAL PROPERTY (INCLUDING CHATTELS REAL) SITUATE ABROAD. The jurisdiction over real or immovable property, abstracted from the acts and contracts of the persons who deal with it, belongs to the forum situs alone, which will administer the lex situs in exercising it. (a) See the reasoning of Lord Herschell, in British South Africa Co. v. Compania de Mozambique (1893), A. C. at p. 625. (b) Agnew v. Usher, 14 Q. B. D. 78; decided on appeal on different grounds, 51 L. T. Rep. 752. (c) Kaye v. Sutherland, 20 Q. B. D. 147. PART II. PROPERTY. CAP. VI. And this general principle will prevent an action from being maintained in England for the possession of or property in foreign land, or discovery being obtained in aid of such action abroad, independently of any rule of procedure, pp. 185-197 such as those which formerly prevailed with respect to venue. But where a personal equity, resulting either from a trust or a contract over which an English Court has jurisdiction, and not excluded by the law of the situs, attaches to an individual who is before the English Court or can be brought before it, the English Court will indirectly affect foreign land by acting in personam, i.e., upon the conscience of its own justiciable. Thus, by the enforcement of such an equity, the title to the property in or the right to the possession of foreign land may be indirectly transferred. The mere fact that a contract relates to foreign land, or to p. 193. the rights that are incident to its possession, will not exclude the jurisdiction of the English Court, if the contract is one with which it is otherwise competent to deal; at any rate, unless it is shown that the Courts of the situs have already and properly assumed jurisdiction over the claim. Where such an equity as that defined exists, the English PP. 194, 195. Court will at its discretion restrain by injunction proceedings abroad with respect to the foreign land to which it relates. But it seems that where the equity is absolutely repugnant P. 196. to the lex situs, the English Court will not enforce it, though it would have done so had the equity in question been merely non-existent by that law. There is no jurisdiction to entertain an action for trespass PP. 197–200. to foreign land, whether the remedy sought be damages, or an injunction, or a declaration of title. Service out of the jurisdiction in actions affecting land is p. 200. governed by Order XI. r. 1 (Judicature Acts). (ii.) Nature and Incidents of Immovable Property and Realty. It has been already said that a general consent exists as to the principle that real or immovable property is subject exclusively to the law of the Government within whose territory it is situate. The authorities cited by Story for this general proposition are very numerous, (a) but it will be more advantageous to consider what are the directions in which this (a) Story, Conflict of Laws, § 428. PART II. lex situs is allowed exclusive operation, and how far it extends. PROPERTY. It must be sufficiently apparent from the last section that there are many cases in which the exclusive action claimed for it is interfered with. CAP. VI. Lex situs decides what are (a) Nature of Realty. The lex situs, in the first place, must decide what things and appurtenances are so closely connected immovables. with the soil as to partake of the nature of realty, though not themselves land in anything but a legal sense. Of these some are so universally regarded in this light, as easements and rent-charges, for example, that no special mention need be made of them; but with regard to other things whose character is more doubtful, it is laid down by Story (a) that the question is not so much what are, or ought to be deemed ex sua natura, movables, as what are deemed so by the law of the place where they are situated; and that to ascertain what is immovable property and what is not, recourse must be had in all cases to the lex rei sita. The case cited by Mr. Westlake (Priv. Int. Law, § 75) for the same principle (b) scarcely seems to bear out the proposition to its full extent, since the decision of Erskine, C.-J., turned chiefly upon 5 Geo. II. c. 7, s. 4, which spoke of negroes as real estate, and not so much upon the fact that they were so by the law of Antigua, where they were situated. It may, however, be taken generally, that the decision of the lex situs is universally accepted on such questions. In Chatfield v. Berchtoldt (c) the question was whether a rent-charge pur auter vie issuing out of English land was liable to legacy duty as personal estate under the English statutes (14 Geo. II. c. 20, s. 9; 1 Vict. c. 26), which and personal makes estates pur auter vie applicable as personal estate in the hands of executors and administrators, and it was held on appeal that legacy duty was payable on such rent-charge. The domicil of the testatrix being Hungarian, it was contended in opposition to the Crown that the character of personal property was so impressed by the several statutes upon the interest in question, as to make it for all intents and purposes personal property, attached to the domicil and person of the testatrix, and therefore exempt from legacy duty according to the principle of Thomson v. Advocate-General.(d) It was held, however, that the English law only made it personal property for the purpose of charging it with legacy duty, and Distinction between movables estate. (a) Story, Conflict of Laws, § 447. (b) Ex parte Rucker, 3 D. & Ch. 704; see Smith v. Brown, 2 Salk. 666. (c) L. R. 7 Eq. 192; see also Stewart v. Garnett, 3 Sim. 398. (d) 12 Cl. & F. 1; Wallace v. Attorney-General, L. R. 1 Ch. 1. |