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1797

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mon year, &c. authorizing the Plaintiff to take and levy the said annuity severally upon the property, goods, moveables and immoveables, at present or hereafter to be in pofleflion of the Defendant; who for the better securing the payment of the The Duke de faid annuity, mortgages and renders responsible the whole of the 111ZJAMES, faid property, goods, &c. as above ftated. This instrument to bear the interest of 10 per cent. according to law, fc. the Defendant promising and binding himself to fulfil the tenor of this deed, under penalty and mortgage of all his property, goods, moveables and immoveables, now or hereafter to be in his poffeffion, and which he submits for that purpose to the restraint of jurisdiction of the Court of Chatelet at Paris, and fully renouncing every thing which may be contrary or injurious to these presents,” &c.

An affidavit of a M. D'Outrement was also produced, stating, " That the deponent had been a counsellor of the Parliament of Paris during twenty-five years, and in that character was skilled in the laws of France : and that by the laws of France, and particularly by the 6th article of the 34th title of the Ordinance or Law of 1667, which was in full force when the faid deed was made, not only the person of the contractor or grantor was not engaged or liable, but it was not even permitted to the party çontracting to ftipulate that his body should be arrested or in prisoned by reason of a deed of that fort; and that the only cafe where a person could be arrested or imprisoned by the laws of France for debt, was upon a bill of exchange, or a commercial engagement; and that in every other case the property only was liable to be seized.”

Adair Serjt. now shewed cause. This rule was granted in order to ascertain whether the security in question was that kind of security which imported a remedy. against the person of the Defendant, or whether it was only in the nature of a mortgage on his eftate. If this be a mere security, affecting the land and personal property only of the Defendant, and if it fo appears on the face of it, the Court will attend to that circumstance. But if I can fhew that it is a personal security affecting the person and following it every where, whatever may be the law of France as to the form of proceeding, yet when the party is found in this or any other country, he may be proceeded againft according to the rules and practice of the country in which he is refident, The instrument was given for a sublifting debt, and may be called a bond. Byit the Defendantbinds, first himself and then hisproperty.

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1797. It is therefore in fact a double security. ift, It is a personal

security by which the person is charged. 2dly, It is a charge on

the property real and personal of the Defendant. And yet it is The Duke de contended, that though it has a double aspect it extends only to FITZJAMES.

the property, and not to the person. Indeed the property, which is the subject of this mortgage, being in another country, and fubject to the laws of that country only, the sole remedy which the Plaintiff now has is against the person of the Defendant.

Shepherd in support of the rule. The affidavit of M. D’Outrement is confirmed by the comment on the Ordinance of 1667, to be found in the posthumous works of M. Pothier, quarto edit. vol. 7. Cinquieme Partie, chap, 1. De la Contrainte par Corps," from p. 278. to p.285.; where it is laid down, that all constraint of the person, even after judgment, on all contracts, (except those which are there specified, and amongst which such a contract as the present is not included), was taken away by the law of 1667, This motion is not made on the ground of privilege ; in that case the law of England would proceed according to its own rules. But if the contract was entered into with reference to the laws of France, it is the same thing as if those laws were expressly stated on the instrument. So if a bond is made in France, payable in England, being made with a view to the law of England, that law must prevail, Robinson v. Bland, Burr. 1077.

In Tallcyrand v. Boulanger, 3 Vezey jun. 447. the circumstances wero much of the same nature as in the prefent cafe. It was stated in argument, that the Court of Common Pleas had discharged a Defendant on common bail, because his person would not have been liable by the law of France (a). And the Lord Chancellor said, “ It would be contrary to all the principles which guide the Courts of one country in deciding upon contracts made in another, to give a greater effect to the contract than it would have by the laws of the country where it took place;" and added, “ that he had no doubt that a court of law would upon such grounds discharge a Defendant, upon common bail.”

EYRE Ch. J. In cases originating in this country, and wholly governed by the laws of this country, this Court rarely interferes in a summary manner to discharge a party on a common appearance, provided the affidavit of debt is conceived in positive terms; nor will the Court do it in any case unless it fees distinctly that an ill use has been made of the power of holding to bail. It has

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(a) Shepberd admitted toat he had not been able to find any account of such a case in this court.

been

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been very often repeated, and I wish it were more clearly un- 1797
derstood, that the Court does not mean to try the question
between the parties on these preliminary motions. But it is a
very different case when the ground of the debt is a transaction The Duke de

FITZ JAMES.
in a foreign country. It does not then originate in our law,
but in the law of that country which creates the obligation.
That law must be laid before us by evidence; since we do not
take notice of it of course. When it is sworn that a party is
indebted on a bond or a promissory note, we know what the
nature of thote instruments is, and the law concerning them;
or if for goods fold and delivered, we know that goods fold and
delivered may create such a debt. But if the plaintiff swear
pofitively to a debt in this country, and refer to something
which renders it ambiguous whether there be a debt or not,
the party ought not to be held to bail. Suppose he were to
refer to some contract which had the appearance of being equi-
valent to a bond, and the Defendant were to shew that it raised
a demand for damages unliquidated; I think the Court would
fay, the Defendant may be held to bail upon a special order,
but not by the mere force of the affidavit. Apply this reason-
ing to the case before us. The Defendant is held to bail on
a contract made in France, the nature of which we must learn,
not from the face of the instrument, but from evidence. There
is no reference in it to the laws of this country. It must there-
fore be thewn what the laws of France are, and that they
create an obligation which the laws of England will enforce.
What would be a defence there, will be a defence here. The
whole therefore turns on the laws of a foreign country. No
general rule can be laid down; for whether there be a debt or
not does not come within our knowledge, nor indeed that of
the party himself, who may be mistaken with respect to the law.
I do not know that we have ever done what is now desired of
us before; but if it appears that this contract creates no personal
obligation, and that it could not be sued as such by the laws of
France, (on the principle of preventing arrests fo vexatious as to
be an abuse of the process of the Court) there seems to be fair
ground on which the Court may interpose to prevent a proceeding
fo oppressive as a perfonal arrest in a foreign country, at the com-
mencement of a fuit, in a case which, as far as we can judge at
present, authorizes no proceeding against the person in the country
in which the transaction passed. If there could be none in France,
in my opinion there can be none here. I cannot conceive that

what

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1797. what is no personal obligation in the country in which it arises

can ever be raised into a personal obligation by the laws of MELAN

another. If it be a personal obligation there, it must be enforced The Duke de here in the mode pointed out by the law of this country; but FITZJAMES.

what the nature of the obligation is must be determined by the law of the country where it was entered into, and then this country will apply its own law to enforce it.

Heath J. I wish I could concur in opinion with my Lord; for I think this a very hard case. This affidavit swears as ftrictly as poflible to a debt due on a written contract. It being a foreign contract the party has been cailed upon to produce it, and shew of what nature it is, before we allow the Defendant to be held to bail. Now this, on confideration, does seem to me to be a personal contract, and if it be fo, I have not the leaft doubt that the Defendant should be held to bail. That being the case, we all agree, that in construing contracts, we must be governed by the laws of the country in which they are made; for all contracts have a reference to such laws. But when we come to remedies it is another thing, they muft be pursued by the means which the law points out where the party resides. The laws of the country where the contract was made can only have a reference to the nature of the contract, not to the mode of enforcing it. Whoever comes into a country voluntarily subjects himself to all the laws of that country, and therein to all the remedies directed by those laws, on his particular engagements. If an Irish peer comes over to this country, he may be arrested on a contract entered into in Ireland, though his privilege would have protected him in that country.

It would be hard if it were otherwise, fince the advantage would not be mutual between the contracting parties. Suppose the Duke de Fitzjames might have been arrested by the law of France, and that he could not by our law, in that case he would have had the advantage; as it is, the Plaintiff has obtained an advantage, and ought not to be deprived of it. I shall be glad, however, if my Brother Rooke thall agree in opinion with my Lord, since it is a case which deferves compaffion.

ROOKEJ. I entirely agree with my Lord Chief Justice. Though the contract, on the face of it, may seem to bind the person of the Duke de Fitzjames, by the words, “ binding himfelf,” &c. yet being made abroad, we must confider how it would be understood in the country where it was made. According to

the

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the affidavit which has been produced on one side, and not 1797. contradicted by the other, this contract is considered in France as not affecting the perfon. Then what does it amount to? It is a contract that the Duke's estate shall be liable to answer The Duke de

FITZJAMES. the demand, but not his person. If the law of France has said that the person shall not be liable on such a contract, it is the fame as if the law of France had been expressly inserted in the contract. If it had been specially agreed between the parties not to consider the Duke's perfon liable, and under those circumstances he had come over here, there would have been no difference between us; for if it were agreed there that the perfon should not be liable, it would not be liable here. Now as far as I can understand the contract, this is the true meaning of it. The defendant is not bound by the mere words of the contract, but has a right to explain by affidavit how it would be considered in France. With the explanation given I am fatiffied, and being satisfied with it, I think the Defendant should be permitted to enter a common appearance.

Rule abfolute.

HUTCHINS v. Hesketh.

Nov. 23d. The Defendant, a prisoner in the Fleet, had formerly applied If a prisoner

to the Court to be discharged under the Lords' act (a), brought up to be and accordingly at that time delivered into Court a paper by 1:13. of the way of schedule, stating that he was pofseffed of no property ; liver in a falfe on which he was remanded, the Plaintiff undertaking to pay schedule and is him his groats. The Plaintiff having since discovered that the remanded, the Defendant had foine property at the period of his former appli- at the instance of

a creditor, even cation,

with the pri. Clayton Serjt. moved the Court to have him brought up soner's consent, under S. 16. of the above act, in order that he might be com- brought up a pelled to assign over fuch property.

second time, for

the purpose of EYRE Ch. J. I am not prepared at present to direct the amending his prisoner to be brought up and have a new oath tendered to schedule and

affigning over him, by which, if he takes it, he must be convicted of perjury. that property

ROOKE J. I think we cannot make this order.

Clayton, having been defired by the Court to look into this matter, this day mentioned, that he now had the consent of the pri(2) 32 Gro 2. 6. 28.

foner

which he had be. fore concealed

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