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Concurrent jurisdiction.

cf. p. 140.

cf. pp. 146, 151.

Probate jurisdiction.

General principles governing grant.

domicil. Further, nationality is very material, and also residence in the Oriental country. The nationality is of course that of the husband.

The question is therefore narrowed to this, whether the article should not be construed, "The Court has jurisdiction in questions of judicial separation, etc., over British subjects who are, and whose matrimonial home is, in Japan."

Concurrent jurisdiction in matrimonial causes is by no means an uncommon incident of the law; in nearly all cases of English subjects resident in an Oriental country, their domicil will be English, and the English Court will have jurisdiction to pronounce decrees as well as the Consular Courts; the English Court having sole jurisdiction in the cases of dissolution, nullity, and jactitation, which are excepted from the Consular jurisdiction. But if the domicil which is maintained in spite of continued residence in the Oriental country is not English, then the English Court will have no jurisdiction at all, but only the Court of the country of that domicil.

As a Court of Probate

VI. PROBATE AND ADMINISTRATION. the Consular Court has jurisdiction to grant probate or administration with the will annexed, if there is a will; or to grant letters of administration if there is not, with respect to the property of British subjects having at the time of their death their fixed places of abode within the country in which the Court is established. With regard to a person dying in the country, but who has not his fixed place of abode there, the Court is empowered to hold any property he may have possessed until it can be dealt with according to law; that is to say, until an order is made with regard to the estate of the deceased by the Court having jurisdiction over it, this order presumably being brought to the Consular Court to be enforced in the usual way.

It is necessary to examine how the general law which governs the grant of probate can be applied by a Consular Court. That law is shortly as follows:-Probate or administration, and all incidental questions connected therewith, follow the law of the domicil; the right to authorize dealing with the property of a deceased person belongs to the Courts of the country where

the property is situate; in granting the authority these Courts will act on the previous principle, and adopt prior decisions of the Courts of the domicil.

Order in

away with

domicil.

This law is only partially applied to the probate jurisdiction Rule of the of the Consular Courts. In the first place, the grant is only made Council. in cases where the deceased persons had their fixed abode in the country. This seems to substitute the law in force in that country for the law of the domicil; that is to say, the law as laid Probably does down by the authority of the Queen in Council as applicable to law of her subjects residing there. This point is an exceedingly important one, but, like so many others, the absence of express, or at least reported, decisions makes it impossible to do more than suggest answers to difficulties. Such a case as this might easily Occur. An English subject, possessed of large property in England, has his fixed abode in Yokohama, but his domicil of origin is Mauritius. An application is made to the English Courts to administer his estate. The English Court has jurisdiction to make an order with regard to the English property; but the rule is that it will follow the law of the domicil, and no domicil can be acquired in Japan. It is suggested nevertheless that the difficulty which has occurred in the preceding cases, whether it is permissible to substitute for domicil something which is practically equivalent to it, is in this case solved by the form of the Order in Council; and that therefore in this hypothetical case the law in force for English subjects in Japan would be followed, and not the law of Mauritius.

British

in Japan.

With regard to the property of British subjects who die in Non-resident Japan, but who have not their fixed abode there, the instruction subjects dying to the Court is specific: it is to hold the property in charge pending the decision of the Court of the domicil, or of the Court of any other country in which the deceased had property acting on the law of the domicil. But with regard to the property in Property in Japan of Japan of British subjects who die elsewhere, the position is by no British means clear. Under ordinary circumstances an auxiliary grant elsewhere. from the Courts of all countries in which the deceased may have property is necessary in order to enable the different properties to be reduced into possession. The limitation of the jurisdiction Auxiliary in the Order in Council to the property of those having a fixed

subjects dying

grants.

Legacy duty.

Depends on domicil.

Jurisdiction in piracy.

place of abode in Japan creates a difficulty; but it would seem
probable that, both in this case and in the preceding one, the
Consular Court would make the necessary order on an appli-
cation for an auxiliary grant.

The question of domicil affects also the subject of legacy duty. It was decided in re Tootal's Trusts (Law Reports, 23 Chancery Division, 532) that one of the consequences of the principle which the Court laid down, that no domicil can be acquired in an Oriental country, is that the personal estate of a testator or intestate, having a fixed place of residence in such a country, is liable to legacy duty. The liability to pay legacy duty under the statutes depends on domicil alone. "That the personal estate may happen to be locally situate in Great Britain, or that the funds may be transmitted to Great Britain for the purpose of being paid to the legatees, are immaterial circumstances." Therefore, as British subjects in Oriental countries, though they have their fixed abode there, do not acquire a domicil, if their continuing, or revived, domicil is English, their estates are liable to pay legacy duty in England.

VII. PIRACY. Jurisdiction is given to the Court over British subjects in the country in which it is established who are charged with the crime of piracy wherever committed. The warrant for this jurisdiction is to be found in the law of nations, which treats piracy as a crime against nations, triable before any Court, no matter what the nationality of the prosecutor, of the pirate, or of the ship may be. The jurisdiction of the Consular Court, though unlimited with regard to the place where the offence is committed, is limited to offenders who are British subjects.

As the jurisdiction lies outside of the Treaty, the crime being committed outside the territory, and as piracy is triable anywhere, as just stated, it would appear that the national Courts have also jurisdiction over British subjects charged with the offence. Another principle given by the writers, is that the punishment of piracy depends on the municipal law of the State where the offence is tried. In cases where the Oriental country has Courts which administer laws which recognise Western

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principles of jurisprudence, it would seem that in strictness the Consular Court should, in punishing a pirate, administer the national law.

It will be observed that guardianship of infants is not included Guardianship. in the special authorities given to the Consular Court. It seems open to argument that the subject, although a matter of special delegation from the Sovereign, is included in the general application of the law of England to the Consular Courts.

XV.

The Effect of Foreign Jurisdiction on Domicil,
Naturalization, Marriage and Divorce.

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domicil in

countries.

I PASS now from the expressed or implied consequences of the Treaty grant to those which are consequences only by inference. It is in this branch of the subject that we meet some of its gravest difficulties. The question of domicil, with all its attend- Law of ant results, inevitably attracts immediate attention. It is one of Oriental the few which has been the subject of decision. express "Tootal's Trusts" is a household word among the communities which are affected by the principles it established. These are, first, that domicil cannot be acquired by a British subject in an Oriental country: secondly, that there is no such thing as an exterritorial domicil, or domicil quâ the British community in such a country, as distinct from the national community. These principles were quoted with approval by the Judicial Committee of the Privy Council in the case of Abd-ul-Messih v. Farra (Law Reports, 13 Appeal Cases, at p. 441). With great respect I think that the judgment contains certain misconceptions; at least it leaves room for a further examination into the question. In the case itself these misconceptions and the unexhaustive nature of the argument were of little moment. It involved only the least of the consequences of the broad doctrine-the payment of

* Law Reports, 23 Chancery Division, 532.

Question argued in

Ch. Div. on

payment of legacy duty.

L. R. 23 Ch.

tribute to Cæsar. And it was strictly a case of aut Cæsari, aut nulli. The national Government does not attempt to tax foreigners, or foreign estates as they pass from hand to hand. The English law exacts legacy duty from the personal estate of a testator or intestate domiciled in England. The application of the principle was easy and involved no hardship. The English domicil of origin was held to remain in spite of the deceased's animus manendi in the Treaty Port of Shanghai. The applicaDiv. at p. 541. tion of the remedy was equally easy since the fund was in Court, and the officers of the Court were bound to see that the legacy duty, if payable, was paid before the fund was parted with. One of the possible consequences of the decision has not, so far as I am aware, been fully argued. Supposing that the fund had not been so conveniently within the power of the Court, it is probable that under the provisions of Order XI. of the Rules of the Supreme Court, the Court would have held that it had jurisdiction to deal with the matter as a necessary consequence of the principle of domicil it had laid down. But there might be many circumstances which would induce the Court to decline. to deal with it, and the question arises whether, alternatively or concurrently, the Consular Court, under the general jurisdiction conferred on it, is not also bound to see that the legacy duty, if payable, is paid. But to return to the question of domicil. In Mr. Justice Chitty's judgment exception must be taken to the following dicta; they are, strictly speaking, only imperfect or incomplete statements of the law, but in so recondite a subject such statements are misleading, undue reliance being inevitably placed upon them when they are referred to.

O. XI., rule I (d).

recovery of

legacy duty in Consular Court.

Criticism of

dicta of Chitty, J.

"The exceptions from the jurisdiction of the Court as a matrimonial Court in regard to dissolution, nullity, or jactitation of marriage are important, and the effect of them is apparently to leave Englishmen subject to the jurisdiction of the Court for matrimonial causes in England in respect of the excepted matters."

The jurisdiction of the English Court over English subjects ante, p. 135. abroad in all matrimonial matters depends on certain principles which have already been considered. But the consequence of them is that in cases without number the jurisdiction is con

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