Sidebilder
PDF
ePub

private ships of one nation, within the territorial jurisdiction of another, greater than is allowed by the law of the latter, for the like offense committed on board of domestic ships.

Foreigners within a nation without their consent. 649. The provisions of article 642 apply to foreigners brought or being within the territory of a nation without their free consent.

Regina . Lopez, 7 Core's Criminal Cases; S. C., 1 Dearsly & Bell's Crown Cases, 525.

66

See People v. McLeod, 25 Wendell (New York) Rep., 602. It is a well settled rule of international law that a foreigner is bound to regard the criminal laws of the country in which he may sojourn, and for any offense there committed he is amenable to those laws. . . His escape into Capada did not purge the offense nor oust our jurisdiction. Being retaken and brought in fact within our jurisdiction, it is not for us to inquire by what means or in what precise manner he may have been brought within the reach of justice." State v. Brewster, 7 Vermont Rep., 122, 123.

"There is no offense in trying, and, if he be guilty, convicting the subject of a foreign government who has been guilty of a violation of our laws within our jurisdiction; or if he had made his escape from our jurisdiction and by any accident were thrown within it again; if he were shipwrecked on our coast, or fraudulently induced to land by a representation that it was a different territory, with a view to his being given up for prosecution, there would seem to be no reason for exempting him from responsibility to our laws." State v. Smith, 1 Bailey Law Rep., 292. See Erp. Scott, 9 Barnewall & Creswell's Rep., 446; Bishop's Criminal Law, 694; Britton's Case, 2 City Hall Rec., (New York,) 119.

Pirates subject to the criminal jurisdiction of all nations.

650. Persons guilty of piracy, as defined in Chapter X., on PIRACY, are subject to be tried in the courts of any nation within whose jurisdiction they are found, and to be punished as its laws prescribe.

Every human being, whether belonging to a civilized or uncivilized community, and with or without social or political ties, is under the protection of law, and if he does not belong to a nation having a recognized government, an injury to his person or property by a member of any nation, party to this Code, shall be deemed a violation of public law, and punishable as piracy.

TITLE XXVIII.

PROCEDURE.

ARTICLE 651, 652. Law of the forum.

653, 654. Measure of damages.

655. Absence of proof of foreign law.

Law of the forum.

651. The form of the remedy and the mode of procedure are governed by the law of the place where the proceeding is taken.

Story, Confl. of L., §§ 556, 575, et seq.; Carver v. Adams, 38 Vermont Rep., 500; Sherman v. Gassett, 4 Gilman (Illinois) Rep., 521; Mason v. Dousay, 35 Illinois Rep., 424.

66

On matters of procedure all mankind whether aliens or liege subjects are bound by the law of the forum. If a law were made upon this subject working oppression and injustice to the subjects of a foreign State, that State might make representations and remonstrances against this law to our government; but while it remains in force judges have no choice but to give it effect." Lopez v. Burslem, 4 Moore's Privy Council Rep., 305.

The rule extends to the question of parties to a judicial proceeding. Westlake, Private International Law, 409; Kirkland v. Lowe, 33 Mississippi Rep., 423; Wilson v. Clark, 11 Indiana Rep., 385; Foss v. Nutting, 80 Massachusetts (14 Gray) Rep., 484; Blane v. Drummond, 1 Brockenbrough U. S. Circ. Ct. Rep., 62; Raymond v. Johnson, 11 Johnson's (New York) Rep., 490; Roosa v. Christ, 11 Illinois Rep., 450.

The rule extends to the admissibility of a set-off, counter-claim, recoupment or compensation. Story, Confl. of L., § 575; Westlake's Private Intern. L., § 411; 2 Parsons on Contracts, 592; Bank of Galliopolis v. Trimble, 6 B. Monroe (Kentucky) Rep., 599.

The rule extends to defenses under statutes of limitation.

Mr. Westlake, however, contends that statutes of limitation are essential modifications of the rights created by the jurisprudence in which they exist, principally on the ground that "a right is only a faculty of putting the law in force,"-i. e., by means of an actual judicial remedy. The definition is certainly opposed to authority, (Lindsay's Introduction to Jurisdiction, App. CXV., CXXVI.; Windscheid Pandekten, § 37, 288;) and does not agree with the rule, that, a lien, mortgage of pledge, is not extinguished by the limitation having attached to the principal obligation, (Civil Code reported for New York, § 1605; Brent v. Bank of Washington, 10 Peters' U. S. Supr. Ct. Rep., 596; Eastman v. Foster.

49 Massachusetts Rep., 24; 1 Washburn on Real Property, Book I., ch. 16, 28, p. 561;) and in general, it is certain that a lien may exist although no action lies to enforce it. Re Bromhead, 16 Law Journ., Queen's Bench Rep., 355; Kellett v. Kelly, 5 Irish Equity, 34, 37; The Siren, 8 Wallace U. S. Supr. Ct. Rep., 158.

The same.

652. Where the law of the place not only bars the remedy but vests the title to personal property or extinguishes the right; the title so acquired, and the right so extinguished remain the same everywhere.

Fears v. Sykes, 35 Mississippi Rep., 633; Mosely ov. Williams, 5 Howard U. S. Supr. Ct. Rep., 523; Shelby v. Gay, 11 Wheaton U. S. Supr. Ct. Rep., 362.

A statutory prescriptive title acquired by possession extends to cases where the possession is beyond the territory of the State enacting the statute, if the action to enforce the title is brought within such territory. Blackburn v. Morton, 18 Arkansas Rep., 384.

Measure of damages.

653. The measure of compensation in damages which may be awarded in a judicial proceeding is governed by the law of the place where the cause of action

arose.

The foreign penalty can not be also awarded. 22 Illinois Rep., 609. Where the statutes of a State make shareholders in a corporation liable for the debts of the corporation, and prescribe the remedy to enforce the same, the courts of another State will not allow creditors to pursue against its own citizens a different remedy which will operate with greater hardship upon them. Erickson v. Nesmith, 81 Massachusetts Rep., 221; Halsey v. McLean, 94 Massachusetts Rep., 438.

The same.

654. Where money is the object of the proceeding, the tribunal must allow that sum in the currency of the country where the proceeding is brought, which will place the party in funds to the amount due in the country where the debt is payable, calculated by the real par and not by the nominal par of exchange. Story, Conf. of L., § 309.

The measure of damages is the amount in the money of the forum which is there equal to the sum which the plaintiff was entitled to abroad.

Stanwood v. Flagg, 98 Massachusetts Rep., 124; Nickerson v. Soesman, 98 Id., 364; Cushing v. Wells, 98 Id., 550; Marburg v. Marburg, 26 Maryland Rep., 8; Renners v. Clemens, 58 Pennsylvania State Rep., 24.

Absence of proof of foreign law.

655. The tribunals must in every case apply the law of their own nation, unless a foreign law applicable to the case is shown.

Foulke v. Fleming, 13 Maryland Rep., 392; Bean v. Briggs, 4 Iowa Rep., 464; interpretation, Whidden v. Seelye, 40 Maine Rep., 247. To the contrary, Cammell v. Sewell, 5 Hurlstone & Norman Rep., 740. Civil Code, reported for New York, § 1887.

A party who relies upon a right or an exemption by foreign law, is bound to bring such law properly before the court and establish it in full, otherwise the court, not being entitled to take notice of such law without judicial proof, must proceed according to the law of its own nation. Lloyd v. Ginbert, Law Rep., 1 Queen's Bench, 115.

It is a well settled rule founded on reason and authority, that the lex fori, or in other words, the law of the country to whose courts a party appeals for redress, furnishes in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicillii, lex loci contractus, or lex loci rei sita, he must aver and prove it. Norris v. Harris, 15 California (Harmon) Rep., 226. To this rule, an exception has heretofore been recognized to some extent in the United States by presuming that the common law prevails.

29

TITLE XXIX.

EVIDENCE.

ARTICLE 656. Admissibility and effect of evidence. 657, 658. Notary's certificate.

659. Evidence of foreign laws.

660. Record, how authenticated.

661. Oral evidence of foreign record.

662. Manner of proving other official documents.

663. Contents of official certificates.

664. Taking foreign testimony.

665. Form of oath or affirmation.

Admissibility and effect of evidence.

656. The law of the nation within whose jurisdiction a tribunal acts, determines the admissibility and effect of evidence produced before it.

Blocker v. Whittenburg, 12 Louisiana Annual Rep., 410.

Westlake's Private Intern. Law, §§ 172, 177, 412.

Some authorities, however, make an exception to this rule in the case of books of account; and state that their effect as evidence is governed by the law of the place where they are kept. See Story, Confl. of L., § 635; Fælix, Droit International Privé, I., p. 461.

The presumptions arising from a contract are said by Demangeat, 1 Felix Dr. Intern. Privé, p. 461, note (a,) to be within this rule; but the opinion of Felix, (1 Id., p. 460,) to the contrary is supposed to be cor

rect.

Notary's certificate.

657. The certificate of a notary, if made under his signature and seal of office, is sufficient in form whereever produced in evidence.

In re Davis' Trusts, Law Rep., 8 Equity Series, 98.

Where an affidavit is sworn before a notary abroad, the signature must be verified by oath before it can be received here, though the rule has been relaxed where the fund was very small, (Mayne v. Butler, 13 Weekly Rep., 128.)

In re Earl's Trusts, 4 Kay & Johnson's Rep., 300.

The same.

658. The cetificate by a notary' of his presentment

« ForrigeFortsett »