whether funds in England belonging to a deceased who was domiciled abroad are, or are not, liable to duty under this Act (s). (s) Wallace v. Attorney-General, and Jeves v. Shadwell, L. R. 1 Ch. App. 1; Re Badart's Trusts, 10 Eq. 288; Callanane v. Campbell, 11 Eq. 378; Attorney-General v. Campbell, 5 H. L. 524; Lyall v. Lyall, 15 Eq. 1. For a curious case as to claiming legacy foreigner, vide Attorney-General v. Kent, 1 supra, p. 130, duty from a domiciled Hurlst. & Colt. p. 12, ADMINISTRATION CHAPTER XLIV. OF OF JUSTICE IN THE CASE FOREIGNERS-CIVIL AND CRIMINAL LAW-CIVIL LAW: 1. VOLUNTARY JURISDICTION NOTARIES - COMMISSIONS LITTERÆ REQUISITORIÆ — 2. CONTENTIOUS JURISDICTION-FOREIGNER PLAINTIFF-DEFENDANT -TWO FOREIGNERS-FOREIGN-ENGLISH LAW-COMMON LAW-CHANCERY LAW-IMMOVEABLE PROPERTY. DCCCLXXX. WE have now to consider the Fourth Division of this volume, which concerns the administration of justice in cases in which a foreigner is concerned. This administration may require, in the case of the foreigner, as of the subject, the application of the civil or the criminal law. It seems most convenient to treat of the former category in the first instance. DCCCLXXXI. The civil jurisdiction to which a foreigner may have recourse or be amenable, is either (1) Voluntary or (2) Contentious. The chief organ of the voluntary jurisdiction is the Notary Public, who is, in fact, a kind of international officer, to the testimony of whose acts all civilised states give credit -an officer less known and more restricted in his powers in England (a) than on the continent, (b) but in England also (a) See effect of notary's certificate in evidence, Cole v. Sherard, 11 Exchequer Rep. 482. See also Re Elizabeth Hurst, 15 Com. Bench Rep. 410 (1854); and Re Clericetti, ib. 726 (1855). Phillimore's Eccles. Law, vol. ii. p. 1232. Brooks on Notaries. (b) Code Civil, art. 971-979, confers on notaries the exclusive power of making testaments. See, too, Falix, i. s. 227. a well-recognised and important functionary. Recent English statutes have conferred upon the English consul much of the authority of the notary (c). DCCCLXXXII. Under this head of voluntary jurisdiction, also, should be considered those requests which the tribunals or authorities of one state are, in the execution of justice, obliged to make to the tribunals or authorities of a foreign state, to permit or enforce the investigation of facts or the acquisition of evidence in the territory of that foreign state. A commission generally issues for this purpose, which the French call Commission Rogatoire (d), a proceeding familiar to all acquainted with the proceedings of the civil and especially the canon law. The ordinary who required the testimony of a witness in the diocese of another ordinary issued letters of request (litteræ requisitoriæ or requisitoriales) for that purpose. DCCCLXXXIII. These commissions are almost invariably respected by foreign tribunals; the formula given by Denisart expresses the foundation of pure comity on which they rest: "Nous vous prions de . 66 comme nous "ferions le semblable pour vous, si par vous nous étions priés et requis" (e). Till lately, England and the United States of North America, instead of directing the commission to the foreign tribunals, have been in the habit of entrusting their execution to certain of their own citizens, lawyers, magistrates, or consuls (ƒ), as the case may be a mode of proceeding which rendered it optional on the part of witnesses whether they would give or withhold their testimony; but by later statutes (g) English judges are empowered to (c) 18 & 19 Vict. c. 42. (d) Felix, i. titre iv. (e) Nouveau Denisart v. Commission, s. 3, n. 3. (f) See 18 & 19 Vict. c. 42, as to powers conferred on ambassadors, British ministers, and consuls abroad, to administer oaths, &c. Also ss. 13 and 23 of 15 & 16 Vict. c. 76. (g) 1 William IV. c. 22. 3 & 4 Victoria, c. 105. issue commissions to the judges of a foreign court; and by a more recent statute English tribunals are empowered to order the examination of witnesses in England in relation to a civil or commercial matter pending before any foreign tribunal (h). DCCCLXXXIV. The English courts have ruled that a commission may issue to the judges of foreign courts, as individuals, to take the examination of witnesses, notwithstanding the examination may not be conducted according to the Law of England. Yet it would seem that if illegal evidence be returned, or if it appear either on the face of the return, or by extrinsic evidence, that the examination has been so conducted as to render it inadmissible, the whole or part may be rejected at Nisi Prius. In a recent case a former commission issued by the same party having proved abortive, in consequence of the witnesses refusing to be examined by an English commissioner according to the English Law, the court, on granting a new commission to the foreign judges, imposed the payment of the costs of the former commission (i). In a case of Pischer v. Sztaray (k) (heard before the Court of Queen's Bench, May 1858), a commission to examine witnesses, which had issued to the judges of a Hungarian court as individuals, was returned unexecuted, and an affidavit of the defendant's attorney stated that he was told by a secretary of the Austrian Legation in London that the commission ought to have been addressed to the court as a court, and not to individual judges. Thereupon, the Queen's Bench ordered the commission to issue to the court as a court-the usual clause prescribing the form of oath to be omitted-the plaintiff having the Clay v. Stephenson, 3 Adolphus & Ell. Rep. 807 (1835). (h) 19 & 20 Victoria, c. 113. (i) Lumley v. Gye, 2 Common Law Rep. 936. (k) 31 Law Times, 130. opportunity, on the return of the commission, to object to the admissibility of the evidence taken under it; the costs of the abortive commission to be the plaintiff's costs in the cause, at all events. DCCCLXXXV. It has been considered to be no answer to an application for a commission to examine witnesses abroad (supported by the ordinary affidavit), that the opposite party deposes that there are persons in this country, and documents accessible to the applicant, which would supply him with any information he could obtain from the witnesses he proposes to examine. And after a judge has exercised his discretion on such an application, the court will not disturb his decision unless it is manifestly wrong (1). The court has ruled that it will not permit a writ of subpœna ad testificandum to issue, to compel the attendance of a witness resident out of the jurisdiction, unless it be shewn that the evidence cannot be had under a commission, or otherwise than by the personal attendance of the witness (m). As to the mode of executing a commission under the recent statute, the following decision is important: A commission having issued to be executed at New York, returnable in a month, with leave to defendant to cross-examine, there was, some weeks afterwards, a consent by him "that "no objection to the admissibility of the evidence taken "should be made by reason of the time of taking or returning "such evidence, saving all just exceptions to the evidence." The commission was returned executed two or three days after such consent, having been executed without any notice to the defendant of the time at which he might attend its execution. It was holden by the court that, nevertheless, the evidence taken under it was admissible at the trial (n). DCCCLXXXVI. The first question which arises respecting the exercise of Contentious jurisdiction in a suit (1) Adams v. Corfield, 28 Law Journal (Exch.), 31. (m) Dunne v. Lewis, 8 Irish Common Law Reports, Append. liv. (n) Whyte v. Hallett, 28 Law Journal (Exch.), 208. |