PART II. PROPERTY. CAP. VII. Movables CHAPTER VII. MOVABLE PERSONAL PROPERTY. (i.) Jurisdiction as to Movable Personal Property. IT has been already noticed, while treating of the principle and personal that it is the lex situs which must decide what does and what property distinguished. does not fall within the category of real or immovable estate, (a) that the English classification of all property into real and personal does not correspond exactly with that adopted by foreign jurists and systems of jurisprudence which are founded on the civil law, and that an ambiguity is consequently involved in the use of the words personal and movable as synonymous. The comparatively modern nature of chattel interests in land, which were unknown to the feudal system, and could not conveniently be subjected to its rules, caused them to be classed with the only other kind of property then recognised by the law, goods and chattels; being given the distinguishing name of chattels real, inasmuch as they were said to" savour of the realty."(b) But though such chattel interests are still, strictly speaking, personal property, they are so merely in name, and only in the contemplation of the English law; and are governed, like other immovables, by the lex loci rei sita only.(e) It will be shown directly that personal estate generally is governed by the law of the domicil of the owner; but this is so, not by any special law of England, but-as Lord Selborne expresses it in the case just cited-by the deference which, for the sake of international comity, the law of England pays to the law of the civilised world generally. But this general law only applies the law of the domicil to such personal estate as comes within its category of movables according to the maxim "mobilia sequuntur personam," on which it is based. Consequently the comity of nations does not demand that England should concede the control of English chattels real to the law of the domicil of the owner, simply (a) Suprà, pp. 202 seq. PART II. PROPERTY. because English law chooses to include such chattels under the classification of personal property, and it must be borne in mind throughout that in fact such a concession is not made.(a) CAP. VII. As the term "movables" is not one familiar to English law, Morablesit has been thought better to retain the English classifica- Jurisdiction. tion of real and personal property while treating of this subject; but what is subsequently said as to the law which governs personal property does not extend to chattel interests in reality, and must be considered as applicable to chattels personal alone. personam. With regard, then, to all personal property other than Mobilia chattels real, a rule very different to that which obtains with sequuntur regard to "immovables" prevails. In the words of Lord Selborne,(b) "The maxim of the law of the civilised world is, mobilia sequuntur personam, and is founded on the nature of things. When mobilia are in places other than that of the person to whom they belong, their accidental situs is disregarded, and they are held to go along with the person." The same principles were laid down by Lord Loughborough in a judgment cited with approbation by Story.(c) "It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner." With respect to the disposition of it, with respect to the transmission of it, either by succession or the act of the party, it follows the law of the person.(d) This personal law is, of course, that of the domicil of the person.(e) It is true that Lord Loughborough, in the judgment just quoted from, goes on to say that when a man dies it is the law of the country of which he was a subject that will regulate the succession to his personal property; but it is obvious that this was a mere inaccuracy of expression, and the case Lord Loughborough himself cites in support of his proposition (f) shows that domicil, and not (a) Freke v. Lord Carbery, L. R. 16 Eq. 461; Thomson v. Advocate-General, 12 Cl. & F. 1; Wallace v. Attorney-General, L. R. I Ch. 1; Jarman on Wills, vol. i. p. 4, n. The authorities cited by the later editors of Jarman in support of the opposite view must now be regarded as overruled; Story, Conflict of Laws, § 447. (b) Freke v. Lord Carbery, L. R. 16 Eq. 466. (e) Story, Conflict cf Laws, § 380. (d) Sill v. Worswick, 1 H. Bl. 690. But in the case of an intestate, bastard and without heirs, there is no "succession"; and the ler loci of the property determines its destination (Barnett's Trusts (1902), 1 Ch. 847). (e) Doglioni v. Crispin, L. R. 1 H. L. 301; Enohin v. Wylie, 10 H. L. C. 1. (f) Pipon v. Pipon, Ambl. 25. Movables PART II. nationality, was really in his lordship's mind. In a case which PROPERTY. has been already frequently cited for another important proCAP. VII. position, Abbott, C.J., said: "Personal property has no locality. And even with respect to that, it is not correct to say that the Jurisdiction. law of England gives way to the law of a foreign country, but that it is part of the law of England that personal property should be distributed according to the jus domicilii."(a) It was said by Bayley, B., in another case, "The rule is that personal property follows the person, and is not in any respect to be regulated by the lex situs; and if in any instances the situs has been adopted for the rule by which the property is to be governed, and the lex loci rei sita resorted to, it has been improperly done. Wherever the domicil of the proprietor is, there the property is to be considered as situate."(b) It is unnecessary to multiply quotations in support of the general principle, which, according to Story, has been constantly maintained, both in England and America, with unbroken confidence and general unanimity.(e) But this general principle, important as it is in theory, must not be accepted hastily as conclusive of the whole subject. It will be shown below(d) that alienations of personal property inter vivos are in practice referred to and governed by the law of the place where the chattel is in fact, at any rate when the Qualification transaction or transfer takes place within the same jurisdiction. of mobilia For this purpose it is not true to say that the chattel is con sequuntur personam. sidered as being in the country where its proprietor is domiciled; and the cases which have just been cited must therefore be read secundum subjectam materiam, without attempting to stretch their principle too far. The reason that the lex domicilii is not applicable, or at any rate is not applied, - to alienations inter vivos is perhaps twofold. In the first place, the effect of an alienation is to alter the ownership; and to invoke the law of the owner's domicil to decide who the owner is would be both illogical and impracticable. Where the domicil of the transferee differed from that of the transferor, the whole question would be begged by applying the law of the domicil of one rather than the other. The second obvious reason which supports the le domicilii in such cases is the (a) Birtwhistle v. Vardill, 5 B. & C. 451. (b) In re Ewin, 1 C. & J. 156. (c) See, in addition to the cases already cited, Potter v. Brown, 5 East, 130; Bruce v. Bruce, 2 B. & P. 229; Somerville v. Somerville, 4 Ves. 570; Thorn v. Watkins, 2 Ves. 37; Countess d'Acunha's Case, 1 Hagg. Eccl. 237 ; Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter, 2 H. Bl. 402; Cockerell v. Dickens, 3 Moo. P. C. 98. (d) See infrà," Alienation of Personal Property." PART II. PROPERTY. complement of the first. The proper law to decide who is entitled to possession of a chattel is necessarily the law which can give that possession. The only law which can give possession of a chattel is the law of the country where the Morableschattel in fact is. CAP. VII. Jurisdiction. It is for these natural reasons that questions of ownership to movables arising out of alienations inter vivos are referred, as will be seen below, (a) not to the lex domicilii, but to the lex loci rei sitæ, either by itself or as coincident with the lex loci actus. That the same principle should not be applied to alienation of movables by operation of law, or what are sometimes spoken of as "general assignments as contrasted with "particular assignments," may at first sight appear inconsistent. But it is manifest that there is a real distinction between the application of the personal law of the owner to decide the general destination and distribution of his movables, and the application of the local law, where movables are found, to decide in particular cases who the owner is. In accordance with this distinction, it will be found, on examination of the cases, that the transmission of movables on death, bank- Rule as to ruptcy, and marriage, or arising from matters which affect the transmission personal status of the owner, is regarded as properly falling of movables. within the province of his personal law, or lex domicilii. On the other hand, particular alienations inter vivos have never been referred to the lex domicilii, but are governed (as has just been stated) by the lex rei sita, and the lex loci actus, alone or in combination.(b) The question of jurisdiction can only be understood in relation to the above principles. In fact, the law of the place where a thing is must, of necessity, have jurisdiction over it in every case, because no other law can enforce the right to its possession. In this sense, therefore, the lex loci rei site has universally jurisdiction over movables, as well as immovables. But in cases which properly fall under the control of the lex domicilii, or personal law, the local law will adopt and apply the principles of that personal law; and the personal law, though the movables in dispute may be beyond its territorial dominion, will assume the right to hear and decide questions relating to their transmission and distribution. In this sense, therefore, the lex domicilii has jurisdiction over movables, so far as they follow the person of their owner.(c) (b) Pp. 251-286. (a) Infrà, p. 251, 8q. (c) In many instances it will be found that questions of the alienation of movables are questions of contract. In such cases the lex contractus is introduced, Q and alienation PART II. PROPERTY. English practice. Service out of affecting movables. It remains to consider in what manner these conflicting theoretical jurisdictions are in fact reconciled by the practice CAP. VII. of English law. The most efficient mode of asserting jurisdiction over movables, as distinguished from jurisdiction over the person of the owner, is by allowing service out of the the jurisdic- territorial jurisdiction of a writ (or notice of a writ) whose tion of writ subject-matter is movable goods within the territorial jurisdiction. So far as the theory of international law is concerned, there does not appear any reason why this should not be done; and in the (Judicature Acts) Rules, as originally drawn, it was provided that service out of the jurisdiction might be allowed (inter alia) "whenever the subject-matter of the action is land, stock, or other property situate within the jurisdiction,”(a) and also whenever the action is for . . . . the execution (as to property situate within the jurisdiction) of the trusts of any written instrument of which the person to be served is a trustee, which ought to be executed according to the law of England."(b) In practice, however, the process of English law is in personam and not in rem, and the ordinary rule that a creditor must go to the forum of his debtor in order to sue him was found to be in conflict with the application of the first part of the above rule. Accordingly, the rule was amended in 1883; and Order XI. r. I (a) in its present form is confined to cases in which the subject-matter of the action is land within the jurisdiction. It is obvious that whenever movables are found within the jurisdiction, they must be in the possession of some person; and there can, therefore, be seldom any difficulty as to finding a suitable defendant at home, without seeking one abroad. The English Courts will therefore no longer give leave to serve a writ abroad merely on the ground that it relates to movable property at home. Nor will they permit the service abroad of any notice on which it is intended. to found proceedings against the person,(c) unless otherwise justiciable to the Court. But notices have been served, with the permission of the Court, when their only object is to give notice of facts, and not to lay the foundation for hostile and the lex loci rei site, when appealed to, will rightly and properly apply that (b) Order XI. r. 1. (d). The whole order is now a code on the subject of service out of the jurisdiction: Re Eager, 22 Ch. D. 87; see the order set out infra, chap. x. (c) In re Anglo-African Steamship Co., 32 Ch. D. 348; Moritz v. Stephan, 32 Sol. Journ. 8. (J. Smith v. Weguelin, 8 Eq. 198. |