COURT OF APPEAL.

From Ct. of Bkcy.

In re MYER. Ex parte PASCAL.

A foreign creditor can issue a debtor's summons in England against a foreign debtor in respect of a debt contracted abroad.

Observations on Ex parte O'Loghlen, 19 W. R. 459, L. R. 6 Ch. 406, and Ex parte Crispin, 21 W. R. 491, L. R. 8 Ch. 374.

The 59th section of the Bankruptcy Act, 1869, and the 17th of the Rules of 1870 determine in what court a man, who is liable, is to be sued, and do not affect the question whether the man is liable.

Messrs. Pascal & Lecasse, the creditors in this case, were merchants, carrying on business in Paris.

Mr. Myer, the alleged debtor, carried on business at Lima, in Peru.

Messrs. Pascal & Co. had extensive dealings with Mr. Myer, and in the year 1874, as they alleged, he owed them upwards of £20,000.

In the month of March, 1875, Mr. Myer left Lima and came to England, as he alleged for the benefit of his health; he resided as a guest at the house of his fatherin-law, at Belsize-park, Hampstead, with the exception of a short time, when he went down to Brighton, upon the advice of his medical man; he stated his intention to return to Lima as soon as his health was re-established, and denied that he had ever carried on business or contracted any debts in England. He also stated that after he left Lima Messrs. Pascal's agent there had made him bankrupt, in accordance with the law of Lima, in respect of the same debt as formed the subject-matter of the proceedings here.

Messrs. Pascal & Co. issued a debtor's summons against Mr. Myer for their debt. In the affidavit made in support of the summons it was stated that Mr. Myer resided at Belsize-park.

Mr. Registrar Pepys, sitting as Chief Judge, dismissed the summons with costs, on the ground that there was no jurisdiction, as Myer had no such residence in England as would give jurisdiction.

Messrs. Pascal & Co. appealed.

The

Jackson, Q.C., and S. Woolf, for the appellants.-By section 59 of the Bankruptcy Act, 1869, if a persou resides within the London bankruptcy district, or be not resident in England, he is within the jurisdiction of the London Bankruptcy Court. R. 17 of the General Rules, 1st of January, 1870, provides that a debtor's summons may be granted by the London Bankruptcy Court if the debtor resides within the district. real question is, Does residence for this purpose mean permanent residence, or any place where the person is living for the time being? [JAMES, L.J.-Is not the definition this, that a man always resides where you catch him, unless he shows some other residence?] It is clear the appellants could have brought an action against Myer to recover their debt: Jackson v. Spittall, 18 W. R. 1162, L. R. 5 C. P. 542, 549. A man found within the jurisdiction of our courts may be sued for debts contracted abroad. A foreigner who commits an act of bankruptcy here is amenable to our bankruptcy law: Ex parte Crispin, 21 W. R. 491, L. R. 8 Ch. 374. Here there is an admitted debt. There is no evidence that by the law of Peru he is discharged from his debt. The cases of a debtor's summons and a petition for adjudication are distinct: Ex parte Mauritz, Re Giles, 18 W. R. 1097, L. R. 5 Ch. 779. The registrar relied upon the obiter dicta in Ex parte O'Loghlen, 19 W. R.

Swanston, Q.C., and Robson, for the respondent.In this case a foreigner seeks to make another foreigner bankrupt upon a debt contracted abroad, he having no assets here, and having been already made bankrupt in his own country. A foreigner cannot be made bankrupt here unless he has bought or sold in this country, or has a permanent residence here. The object of proceedings in bankruptcy is administration; but there can be no administration where there are no assets. The dicta of Lord Justice James in Ex parte O'Loghlen are directly in point. In the 6th section of the Bankruptcy Act, 1869, the words "debtor" and "creditor" are of the most general description. As was pointed out in Ex parte Crispin, there must be some limit assigned to the meaning. The limit must be, if he has contracted a debt within the jurisdiction. The appellants ask for a second and conflicting bankruptcy in England. The debtor might be sued again for the same matter in Lima. The court here cannot give a complete discharge to the debtor: Ellis v. McHenry, 19 W. R. 503, L. R. 6 C. P. 228.

No reply was called for.

JAMES, L.J., said the only point on which the court had to give judgment was whether a foreigner in respect of a debt contracted abroad could take out a debtor's summons against another foreigner within the jurisdiction. The old law was that a foreigner residing here could be sued in this country by a foreigner in respect of a foreign debt, and not only sued but held to bail under the old writ of capias, and kept in this country under a judge's order, and in respect of that writ he could have been brought up for judgment, and execution could have been enforced against him, and he could have petitioned in the Insolvent Court. All that was altered, imprisonment for debt was abolished, and a process under the Bankruptcy Act had been substituted under which a creditor could take proceedings. There was nothing in the Act to say that persons having the benefit of, or being liable to, the old law were not to have the benefit of, or be liable to, the new.

If it could be shown on the debtor's summons that the debt was discharged that would be sufficient, but no such evidence was now given. It was said, however, that a petition for adjudication would be idle because the assets were in Peru, and that everything could be worked

out there. That would all be left open to be decided on the petition for adjudication. All that was decided now was that a debtor's summons could be served in the same way as the old writ.

MELLISH, L.J., was of the same opinion. What was decided in the case of Ex parte Crispin was that, if a foreigner came to England and committed an act of bankruptcy here, he could be adjudicated bankrupt. In that case the debt had been contracted in England, so that it was unnecessary to consider the case which now

arose.

It made no difference where the debt was contracted; unless a man was subject to the law he could not be made a bankrupt, and if he left England without committing an act of bankruptcy, the court had no jurisdiction, but if he became amenable to the law of bankruptcy he could be made bankrupt.

It was admitted he could be sued in England, and his lordship saw no ground why a debtor's summons should not be issued against him. It was simply a means for compelling a man to pay his debts.

All matters of defence as to the nature of the proceedings in Lima would be open to him on the petition for adjudication.

With respect to residence, section 59 of the Bank

land or any other country. This statement he repeated in an affidavit made in the action.

In 1858 Lord Howden made a will of his property in France, and in 1860 a will of his property in England.

Kay, Q.C., and Yate Lee, for the next of kin according to the French law, contended that the evidence was clear that Lord Howden had, ex animo and de facto acquired a French domicile notwithstanding his position as a peer; that the position of a peer with regard to his duties to the Crown was distinguishable from that of an officer in the army; and that article 13 of the Code Civil, which is as follows-" L'étranger qui aura été admis par l'autorisation de l'Empéreur à établir son domicile en France y jouira de tous les droits civils tant qu'il continuera d'y resider "-applied only to the acquisition of civil rights which could be acquired by the municipal law, and not to the rules affecting the distribution of the estate of an intestate which were governed by the law of nations. They cited Bremer v. Freeman, 5 W. R. 618, 10 Moo. P. C. 306; Udny v. Udny,_L. R. 1 Sc. 441, 17 W. R. H. L. Dig. 5; Forbes v. Forbes, 2 W. R. 253, Kay, 341; and referred to Cole on Domicile, p. 43, and the cases there mentioned.

Jackson, Q.C., and Onslow, for the plaintiff, supported this contention, and cited Douglas v. Douglas, 20 W. R. 25, L. R. 12 Eq. 617; Spech's case, Dalloz, ed. 1872, part 2, p. 235; Craven v. Lethbridge, Dalloz, ed. 1874, part 1, p. 465; Merlin Repert. tit. Domicile, p. 425.

Hinde Palmer, Q.C., and Nalder, for Lady Rose Meade, the English next of kin, contended that Lord Howden, as a peer of the realm, could not cast off his allegiance and acquire a French domicile. As a peer he had certain duties to perform, as mentioned in 1 Blackstone, 16th ed., p. 227, and he could not free himself from the discharge of those duties. They referred to Lord Coke, 4 Institute, p. 44; Mordaunt and Sturton's cases, 16 Viner's Abridg. 240; May's Parliamentary Practice, 7th ed. p. 213; Hodgson v. De Beauchesne, 7 W. R. -397, 12 M. P. C. 213; Cruise on Dignities, p. 80; Cragie v. Cragie, 3 Curti. Ecc. Rep. 435; Bell v. Kennedy, L. R. 1 Sc. 315. They also contended that by article 13 of the Code Napoléon the authorization of the Government was required to establish Lord Howden's domicile in France so as to give him civil rights, which included on his death intestate the administration of his personal estate, and cited Sussman's case, Dalloz, ed. 1872, part 2, p. 65; Forgo's case, decided in the Court of Cassation in May, 1875; Mélizet's case, Lawrence, Commentaire sur Wheaton, p. 111; Bremer v. Freeman, 5 W. R. 618, 10 M. P. C. 306; Spech's case, Dalloz, ed. 1872, part 2, p. 235.

Nov. 9.-W. W. Karslake, for the Commissioners of Inland Revenue, supported the latter contention, and referred to Stephen's Commentaries, 2nd ed. vol. 2, book 4, p. 431; Lord Coke's 4*Institute, pp. 44, 49; Mordaunt and Sturton's cases, 16 Viner's Abridg. 290; May's Parliamentary Practice, 7th ed. p. 212; Craven v. Lethbridge, Dalloz. ed. 1874, part 1, p. 465; Speck's case, Dalloz, ed. 1872, part 2, p. 235; Forgo's case, decided in the Court of Cassation in May, 1875; Mélizet's case, Lawrence, Commentaire sur Wheaton, p. 111; Sugden on the Real Property Statutes, p. 329; and Phillimore, International Law, 2nd ed. vol. 4, p. 225, and cases there referred to. Eddis, Q.C., and Kekewich, for the executors. Kay, Q.C., in reply.

BACON, V.C.-The first question is as to Lord Howden's domicile. It is asserted that, not only he did not acquire a domicile, but that he was not competent to acquire a domicile. For the purpose of establishing that proposition his condition as a peer of Parliament is referred to; and the argument is strengthened by a reference to the cases in which it was

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said that military officers were not capable of acquiring a domicile in a foreign country by reason of the obedience they were bound to pay to the military regulations which exist in England.

Upon the first point that is, the incapacity of a peer to acquire a domicile because of his duty to advise the Queen whenever she calls for his advice, or to attend the House of Lords whenever his attendance there is required -without some plain authority I should be very sorry at this time of day for the first time to decide that any such law does now prevail or that it ever did prevail. That a peer is under certain municipal obligations of course need not be said. If he neglects them he may incur censure, perhaps punishment, but that is the extreme liability which he incurs. If he is liable to pay a fine he must pay it; but how does that affect the question whether he can do that which every other man can do-change the place of his residence and fix for the whole of his life his residence in another country?

With respect to the authorities which have been referred to, neither the case in the Star Chamber (Mordaunt's case), nor the old books which are referred to by Blackstone, nor any other authority I have heard of, are sufficient to maintain a proposition which would, if carried to its full extent, prevent a peer from going, no matter for however short a residence, abroad-taking up his residence at a bathing-place or anywhere else if he thought fit-it would be positively against his duty. That is too much to be said, and for the present it is enough to say that, in the absence of any kind of authority upon that subject, I decline to adopt what seems to me so imaginative a proposition. The case of the soldier is, in itself, entirely different. By the regulations of the military discipline in this country, of course, a soldier is always bound to obey commands. A soldier in the service of the East India Company, who, in the discharge of his military duties, finds it necessary to acquire a residence, gets by that fact, as the case referred to recognizes, what has been called the Anglo-Indian domicile. In one of the cases cited (Hodgson v. De Beauchesne) he changes it; but under what circumstances? He gets permission, which is called a furlough, to come fora time and visit Europe. He does so; he lives at various places. There is not the slightest indication of his intention either of giving up his military rank or parting with any property he had acquired in his place of domicile. He stayed in England, in France, and in Scotland for 60 much time as suited him; but upon no single occasion is it suggested that he ever expressed his intention of not returning to India. He was bound to do one of two things-either to return to India if called upon to do so, or to resign his commission. There is no evidence in the cases referred to that any such intention existed. It is mere commonplace, and hardly worth repeating, upon a question of domicile, to say that the test must show the animus and the factum. The intention with which a man changes his residence is easily ascertained. The circumstances under which he resides in a foreign country are easily ascertained as matters of fact. The matters of fact, as far as Lord Howden is concerned, are, in my opinion, most clear and conclusive. Possessed of large estates, as it seems, in England, he fold them all and he went abroad; he went abroad in a diplomatic character, and soon after that he sold, or about the same time he sold, all his property in England, retaining none; and it is not suggested he ever had afterwards a residence of any sort-any place that he could have inhabited in England belonging to him. He at first performed his diplomatic service in Spain, and then settled himself in France, near Bayonne, where he built a house, where he established himself, and there and in Paris he passed the rest of his life, visiting England only on one occasion, which brought from him that

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right whatever to interfere in the administration of his goods, although the testator in that case, (the will not being in question as far as the case goes that I know of), not having any authority from the French Government, yet enjoyed civil rights up to the day of his death, and the persons who claimed the succession were not impeded in the slightest degree by the restrictions of the 13th section.

Another clause in the Code was referred to in the same chapter upon domicile, which I have read. There is the 110th section, which provides that the place where the succession shall open shall be determined by the domicile. Spech's case, Dalloz, ed. 1872, part 2, p. 235, and Sussmann's case, Dalloz, ed. 1872, part 2, p. 65, which was referred to also upon the former occasion, established, as I take it, clearly this: that upon the intestacy of a foreigner who has not obtained the authority of the Government, the succession shall open in the place where he had established his domicile-shall be determined by the local judge, in the first instance, subject, of course, to any appeal which might be brought to a higher authority-that where the succession opens there it shall be determined, and there the persons who are, according to the French law, entitled to claim his estate, may come and have their rights determined. And as far Forgo's case goes the notion that the Government can lay their hands upon all that is there and consider it theirs, for the want of the formalities of the 13th clause not being observed, is wholly discountenanced.

as

Under these circumstances, I entertain no doubt whatever upon the question which has been argued. I have no doubt of Lord Howden's competency to acquire a French domicile. I have no doubt of the fact that he did acquire that beyond all possibility of doubt or equivocation. I have no doubt that the 13th clause, which speaks of the enjoyment by him or any other foreigner of droits civils, neither in its terms nor in its sense and spirit has anything to do with the rights of the persons who come to claim his property at a time when he and all droits civils to be exercised by him are extinguisbed and gone.

That disposes also of the Attorney-General's objection. I am not sorry to have had Mr. Karslake's argument upon the subject, but I have not the slightest doubt of the well-settled law that no legacy duty whatever is payable in respect of this intestacy because of what I have said before as to the domicile.

Solicitors, Bell, Stewards, & Co.; Freshfields & Williams; Bevan & Daniell; Solicitor for the Commissioners of Inland Revenue.

TOMKINS V. COLTHURST. Insufficiency of residuary personalty to pay debts-Contribution-Pecuniary legatees.

Where the residuary personal estate of a testator is insufficient for the payment of his debts, specific legatees and the residuary devisee will not be called on to contribute until pecuniary legacies have been exhausted. Hensman v. Fryer, 16 W. R. 162, L. R. 3 Ch. 420, not followed on this point.

This was an administration suit, and now came on for further consideration. The bill was filed by Henry Alfred Colthurst Tomkins, an infant beneficiary under the will of Robert Jolliffe Colthurst, by his next friend, against Jonathan Colmer Colthurst and Thomas Colmer Colthurst, the executors of the will. The testator's residuary personal estate and the general pecuniary legacies having proved insufficient for the payment of the debts, funeral and testamentary expenses, and costs, the chief clerk had found in his certificate the amounts

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which the personal estate specifically bequeathed, and the residuary real estate should continue rateably towards the deficiency. The defendants, who were entitled under the testator's will to pecuniary legacies of £150 a piece, now raised the point that the pecuniary legacies, the specific bequests, and the residuary real estate ought to have contributed rateably to the payment of the testator's debts, funeral and testamentary expenses, and costs.

Glasse, Q.C., and W. W. Karslake, for the defendants, referred to the case of Hensman v. Fryer, 16 W. R. 162, L. R. 3 Ch. 420, in which Lord Chelmsford held that, when the personal estate of a testator is insufficient for and residuary devisees contribute rateably to the paythe payment of debts and legacies, pecuniary legatees ment of the debts which the general personal estate is Fryer had been recognized as a binding authority in the insufficient to satisfy, and pointed out that Hensman v. case of Lancefield v. Iggulden, 23 W. R. 223, L. R. 10 Ch. 136.

Pearson, Q.C., and Ferrers, for the plaintiff, argued that Hensman v. Fryer was clearly wrong on the point in question, and that his lordship the Vice-Chancellor himself, and also Vice-Chancellor Stuart had refused to follow that decision, on the ground that it was clearly erroneous, in the cases of Dugdale v. Dugdale, L. R. 14 Eq. 234, 20 W. R. Ch. Dig, 6, and Collins v. Lewis, L. R. 8 Eq. 708, 18 W. R. Ch. Dig. 160. This part of the decision in Hensman v. Fryer had not been before the Court of Appeal in Lancefield v. Iggulden which only raised the question of the specific nature of a residuary devise. The mistake of Lord Chelmsford in Hensman v. Fryer arose from his misunderstanding the judgment in Tomba v. Roch, 2 Coll. 502, which he professed to follow.

MALINS, V.C.-The question in this case is whether, in the adminstration of a testator's estate, when there is a deficiency of residuary personal estate to pay his debts and funeral and testamentary expenses, there should be contribution rateably between pecuniary legatees and specific legatees and the residuary devisee. In 1867, the case of Hensman v. Fryer came before Lord Chelmsford, C., in which two points were decided-first, that residuary devises remained specific since the passing of the Wills Act; secondly, that where the personal estate is insufficient for the payment of debts, pecuniary legatees and the residuary devisee contribute rateably to make up the defi. ciency. The second rule Vice-Chancellor Stuart refused to follow in Collins v. Lewis, and I adopted the same course in Dugdale v. Dugdale. But it is urged upon me that the decision in Hensman v. Fryer has been recognized by the Court of Appeal as a binding authority in Lancefield v. Iggulden and that I must, therefore, follow it in the present case. The point now raised, however, was not in question in Lancefield v. Iggulden, and I think I am still at liberty to decide this case as I decided the case of Dugdale v. Dugdale. Being of opinion, therefore, that the rule in Hensman v. Fryer as to contribution is not correct, I must continue to follow the old rule, and I accordingly hold that the specific legatees and the residuary devisee cannot be called on to contribute to the debts until the pecuniary legacies have been exhausted.

Solicitor for the plaintiff, William Moon, for Edwin Force, Exeter.

Solicitors for the defendants, Prideaux & Son.