be

partner involves a question of the misjoinder of parties, which is properly a matter of procedure for the lex fori. It may remarked, in reference to this case, that the custom of the City of London which allows a feme covert to carry on business as a sole trader in the City does not authorise her to sue as such trader in any but the City of London courts; (a) so that it does not really purport to give her a title for general purposes at all.(b)

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Parties.

be sued.

(b) Name against which the Action is to be brought.—It is quite clear that no person can be made liable by the lex fori, as an incident of procedure, who would not have been exposed to liability by the proper law to govern the act or contract in respect of which he is sued, and his connection with it. Thus in General Steam Navigation Company v. Guillou, (c) the defendant, who was sued for injury done to the plaintiff's ship on the high seas by a vessel of which he was alleged to be the owner, Liability to pleaded that the real owners of the vessel which caused the collision were a French society or company, of which he was a shareholder and acting director, and that, by the law of France, the defendant was not responsible for or liable to be sued or impleaded individually, or in his own name or person, in respect of the causes of action alleged, but that the said company alone, by their said style or title, were responsible for and liable to be sued and impleaded for the said causes of action. It is not easy to see how this plea could have been construed as anything but. a denial that the defendant was personally or individually liable at all by French law, although the Court of Exchequer were equally divided on this question; but the true principle by which such cases are to be determined is no doubt correctly

(a) Beard v. Webb, 2 B. & P. 98; 1 C. & P. 267, n.

(b) According to the English practice, plaintiffs resident abroad are ordered to give security for costs (Croyat v. Blogden (1894), 2 Q. B. 30; Rep. of Costa Rica v. Erlanger, 3 Ch. D. 62). But if there are any co-plaintiffs resident in England, security will not be ordered (Winthrop v. Royal Exch. Co., 1 Dick. 282; D'Iormusjee v. Grey, 10 Q. B. D. 13). The test is "ordinary residence within the jurisdiction"; and temporary residence will not do (Ord. 65, 2, 6 (a)). The rule applies not only to plaintiffs, but to other parties in the position of a claimant or plaintiff, e.g., in interpleader (In re Milward (1900), 1 Ch. 405); and to other persons who voluntarily intervene in an action (Apollinaris Co. v. Wilson, 31 Ch. D. 632; La Compagnie Générale, &c. (1893), 3 Ch. 451). But if the residence abroad is in an official capacity on the public service, security will not be ordered (Colebrook v. Jones, 1 Dick. 154; Evelyn v. Chippendale, 9 Sim. 497; Nugent v. Harcourt, 2 Dowl. P. C. 578). The rule requiring security is not applied if the foreign resident affected has substantial property, real or personal, within the jurisdiction, which will be available for costs (Ebrard v. Gassier, 28 Ch. D. 232; Re Apollinaris Co. (1891), I Ch. 1 ; Redondo v. Claytor, 4 Q. B. D. 457). Residence in Scotland or Ireland is not foreign residence within the meaning of this rule, judgments in the English Courts being enforceable in Scotland and Ireland [Judicature Act, 1873, s. 76; Judgments Ext. Act. 1868; Re Howe Machine Co., 41 Ch. D. 118].

(c) 11 M. & W. 877. Cf. p. 493.

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Parties.

PART IV. indicated in the judgment. "If the defendant," said Parke, B., was not liable for the acts of the master by that law which is to govern the case, he has a good defence to the action. For the defendant, it is contended that the plea means to aver that by the law of France he was not liable for those acts, but that a body established by the French law, and analogous to an English corporation, were the proprietors of the vessel, and alone liable for the acts of the master. . . . . If such be the true construction of the plea, we are all strongly inclined to think that there is a good defence to the action. On the other hand, the plaintiff contends that the plea only means that in the French court the mode of proceeding would be to sue the defendant jointly with the other shareholders of the company under the name of their association; and if this be the true construction of the plea, we all concur in the opinion that the plea is bad; for it is well established that the forms of remedies and modes of proceeding are regulated solely by the law of the place where the action is instituted the lex fori; and it is no objection to a suit instituted in proper form here, that it would have been instituted in a different form in the court of the country where the cause of action arose, or to which the defendant belongs."(a) The distinction intended appears to be, that the defendant, if not personally liable at all by the French law, could not be made so by the lex fori; but that if in France he was under a joint personal liability with the other members of the association, the fact that they were not joined as defendants would be immaterial, as relating to a question of procedure; and this was the principle afterwards adopted in Bullock v. Caird(b) by the Court of Queen's Bench. In that case the action was brought against a single defendant, for a breach of an agreement entered into between the plaintiffs and C. & Co.; and the defendant pleaded that there was a trading partnership or firm, domiciled and carrying on business in Scotland by the name of C. & Co., of which he was a member; that, by the Scotch law, the firm was a distinct person from any or the whole of the individual members, and was capable of maintaining the relation of debtor and creditor separate and distinct from the obligations of the partners as individuals, and of holding property, and of suing and being sued as a separate person by the name of C. & Co.; that, by the law of Scotland, the defendant, as a partner in the firm, was liable to the plaintiffs for the satisfaction of any judgment which might be (a) General Steam Navigation Co. v. Guillou, 11 M. & W. 877, 895. (b) L. R. 10 Q. B. 276.

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Parties.

obtained against the firm or the whole of the individual members jointly for any breaches of the agreement; and that it was a condition precedent to any individual liability attaching to the defendant, as an individual member of the firm in respect of the agreement, that the firm, as such person, or the whole individual partners jointly, should first have been sued, and that judgment should have been recovered against the firm or the whole of the partners jointly; and that the plaintiffs had not sued the firm or the whole of the partners jointly, or recovered judgment against it or them. It was held, on demurrer, that all the matters stated in the plea were mere matters of procedure, and that the plea was bad, Blackburn, J., saying that the non-joinder of the other members of the firm might be a bar to an action in Scotland, but could only amount in England to a plea in abatement.(a) This case was followed and approved by Romer, J., in 1896, where a member of a Spanish firm having died in England, leaving property here, creditors of the firm were allowed to have recourse to his estate here for debts, although the law of Spain would have required that the firm property should be first exhausted.(b) So where a colonial statute gave a mode of proceeding against a colonial banking company by suing their chairman as nominal defen- Local dant, and enforcing the judgment against the property of the directory as members, and judgment had in fact been recovered against to procedure. the chairman under this provision, it was held that a member of the banking company might nevertheless be sued individually in England.(c) It is true that it was said in the judgment that the colonial statute was merely cumulative, and left all the previous rights and liabilities of the parties untouched; but it is submitted that the decision would have been the same even if the colonial statute had made the recovery of judgment against the chairman a necessary preliminary to fixing any liability on the individual members, such a provision relating merely to procedure, and only indicating the proper mode of bringing home the liability, instead of taking it away altogether. As Lord Campbell expressed it, such an act imposed no new liability, but only regulated the mode in which the existing liability should be judicially constituted.(d) Such provisions clearly do not affect the right of the creditor to pursue his remedy here in the manner provided by the law of this country;

(a) Bullock v. Caird, L. R. 10 Q. B. 278, and cf. Thurburn v. Steward, L. R. 3 P. C. p. 513.

(b) In re Doetsch, Matheson v. Ludwig (1896), 2 Ch. 836.

(c) Bank of Australasia v. Harding, 9 C. B. 661; 19 L. J. C. P. 345. (d) Bank of Australasia v. Nias, 16 Q. B. 717, 734.

provisions

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Parties.

nor will any further special enactment, regulating the manner and conditions of executing a judgment, so obtained against such a nominal defendant, upon the property of the members of the company, have any wider operation beyond the tribunals to which it is immediately addressed.(a)

(ii.) Time within which the Action must be brought.-Statutes of limitation which bar the remedy, but do not extinguish the right, are regulated and imposed by the lex fori. The English statutes of limitations relating to contracts, torts, and movables are of this class. Aliter, as to immovables (3 & 4 Will. IV. c. 27), Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57).

Statutes of limitation may be regarded from a double point of view; either as extinguishing and discharging the right of action altogether, or as merely suspending and denying a remedy. Nor has any branch of private international law given rise to greater discussion than the attempt to decide which is in truth their proper character; whether they are, in short, laws which govern the inherent liability of the obligation, or rules of procedure dictated by the lex fori, and binding in that forum alone. They may, in fact, be either. It is competent to any Legislature to enact that rights of action, not put in force within a certain time, shall be absolutely extinguished; and such an enactment will have a right to claim recognition in any tribunal, whenever a contract made with reference to it as the dominant law (b) shall come in question. "I should be much inclined to hold," says Cockburn, C.J., "that when by the law of the place of contract an action on the contract must be brought within a limited time, the contract ought to be interpreted to mean, I will pay on a given day, or within such time as the law of the place of contract can force me to pay.'"(c) That this dictum does not express the English law, according to the current of authority, is admitted by the learned judge whose opinion is quoted in the same judgment, but if for the last phrase were substituted the words "within such time as the law of the place of contract provides that any obligation shall remain valid and unextinguished," its authority would be incontrovertible. It has been repeatedly decided that the English law of limitations, with regard to obligations and movables generally, does not go to this extent, but merely fixes a limit within which, in an English court, the action must be brought; and that foreign statutes of (b) Ante, p. 402

(a) Kelsall v. Marshall, 16 Q. B. 241.
(c) Harris v. Quine, L. R. 4 Q. B. 653.

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CAP. X.

limitation, framed in similar terms, have no larger effect.(a) PART IV. The English statute with regard to real property (3 & & 4 Will. IV. c. 27), amended by the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), on the other hand, does not Limitations. merely bar the remedy, but extinguishes the right. The lex situs, in fact, as to prescription with regard to immovables, Limitations. exacts universal recognition.(b)

The proposition, however, that the term of limitation of an action on an obligation depends upon the lex fori, though apparently well established by the English decisions, and laid down in terms quite free from ambiguity by Story,(c) has not altogether escaped criticism. Westlake (3rd ed., p. 279) speaks of it as very questionable, and shows an inclination to prefer the view (for which there is considerable authority to be found in Continental writers) that the prescription applicable to a contract depends upon the law of the contract itself, whether that be the lex loci celebrationis or solutionis.(d) Westlake adds, that the rule of English law may be justified on the principle that, although the lex fori cannot properly create a new obligation after the one which arose by the original contract or tort has ceased to exist, it may yet regard its statute of limitations as a stringent rule of domestic policy, in obedience to which

(a) Harris v. Quine, L. R. 4 Q. B. 653; 38 L. J. Q. B. 331; Pardo v. Bingham, L. R. 4 Ch. 735; 39 L. J. Ch. 170; Ruckmaboye v. Mottichund, 8 Moo. P. C. 36; Lopez v. Burslem, 4 Moo. P. C. 300; British Linen Co. v. Drummond, 10 B. & C. 903; Huber v. Steiner, 2 Bing. N. C. 202; 2 C. B. 304; Chitty on Contracts, 10th ed. p. 741; Alliance Bank of Simla v. Carey (1880), 5 C. P. D. 429.

The

(b) Per Lush, J., L. R. 4 Q. B. 658; Pitt v. Dacre, L. R. 3 Ch. D. 295. (c) Story, Confl. of Law, § 576. "In regard to statutes of limitation or prescription of suits, and lapse of time, there is no doubt that they are strictly questions affecting the remedy, and not questions upon the merits. They go ad litis ordinationem, and not ad litis decisionem, in a just juridical sense. object of them is to fix certain periods within which all suits shall be brought in the courts of a State, whether they are brought by or against subjects or by or against foreigners. And there can be no just reason, and no sound policy, in allowing higher or more extensive privileges to foreigners than are allowed to subjects.... § 557. It has accordingly become a formulary in international jurisprudence, that all suits must be brought within the period fixed by the local law of the country where the suit is brought (lex fori), otherwise the suits will be barred, and this rule is as fully recognised in foreign jurisprudence as it is in the common law." And see Dicey, p. 715.

(d) The theory that the term of prescription or limitation applicable to a contract depends upon the law applicable to the original contract, or to the law intended by the parties (which amounts to the same thing), is best answered in the words of Lord Brougham. "It is said that the limitation is of the very nature of the contract. First, it is said that the party is bound for a given time, and for a given time only. That is a strained construction of the obligation. The party does not bind himself for a particular period at all, but merely to do something on a certain day. . . . The law does not suppose that he is, at the moment of making the contract, contemplating the period at which he may be freed by lapse of time from performing it. The argument that the limitation is of the nature of the contract supposes that the parties look only to the breach of the agreement, Nothing is more contrary to good faith than such a supposition." (Don v. Lippman, 5 Cl. & F., pp. 1, 15, 16, per Lord Brougham.)

Statute of