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law, say of South Dakota, should be the divorce law of the United States.

5. Englishmen may rejoice that our Courts have held almost unswervingly that divorce jurisdiction depends wholly upon the domicil of the husband at the time of the proceedings for divorce. The confused condition of the divorce law of the United States has not been created, though it has been still further complicated, by the judgment in Haddock v. Haddock. Its true origin is to be found in the doctrine, all but unknown to English law, that husband and wife may each have a separate domicil.

A. V. D. [The decision is quite as severely criticized by Mr. Joseph H. Beale, jun. in an article published in the June number of the Harvard Law Review, 19 Harv. Law R. 586.]


From Bater v. Bater (1906] P. 209, 75 L. J. P. 60, C. A., a student interested in the conflict of laws may draw with confidence several important conclusions.

First. The domicil for the time being of the married pair when the proceedings for divorce commenced affords the only true test of jurisdiction to dissolve their marriage, and the Court of such domicil has jurisdiction over persons originally domiciled in another country to undo a marriage celebrated in that other country whilst they were there domiciled, and the divorce will be recognized by English Courts even if the parties were originally married and domiciled in England and even if the divorce were granted for a cause which would not have been sufficient to obtain a divorce in England (judgment of Collins M. R. (1906] P. p. 232, and of Romer L.J. pp. 234-6). Thus if H an Englishman and W an Englishwoman, both domiciled in England, whilst so domiciled intermarry in England and afterwards obtain a domicil at New York, a divorce granted by a New York Court whilst they are domiciled in the State of New York will be held valid in England, and that even though it is granted for a cause, e. g. incompatibility of temper, which would not be a ground for divorce in England. This principle now clearly laid down by the Court of Appeal is in strict conformity with, but somewhat extends the effect of Harvey v. Farnie (1882) 8 App. Cas. 43 ; Le Mesurier v. Le Mesurier (1895] A. C. 517.

Secondly. The resolution of the judges in Lolley's case (1812), Russ. & Ry. 237, 37 R. R. 249, must be treated as confined to the particular facts of the case, in other words that case, as now interpreted, establishes nothing more than the sound and unquestionable principle that the Courts of a country where the parties are not domiciled have not jurisdiction, in the opinion of English tribunals, to dissolve either an English or any other marriage. The resolution of the judges in Lolley's case has, to speak plainly, been at last so cut down, to the great improvement of the law, as to be no longer of any material importance.

Thirdly. A divorce granted by a foreign Court, being a judgment affecting the status of the parties, stands on the same footing as a judgment in rem. It therefore cannot be set aside in this country, even on the ground of fraud, by any person who was no party to the proceedings in which the judgment was pronounced. Castrique v. Behrens (1861) 30 L. J. Q. B. 163, is on this point approved (see judgment of Collins M. R. p. 228, and judgment of Romer L. J. pp. 236, 237).

The majority of the judges of the Supreme Court who decided Haddock v. Haddock, 26 Sup. Ct. Reporter, 525, may with the highest respect be asked to note the opinion of the Court of Appeal as to the nature of a judgment affecting status.

The judgment of the Court of Appeal in Bater v. Bater as to the points we have dwelt upon will, we anticipate, bo received with general approval. The one matter wbich may excite some doubt is whether, it being granted that the New York Court had from an international point of view jurisdiction to grant a divorce, it was in any way incumbent upon an English Court to consider whether the New York tribunal had jurisdiction under the law of New York. On this point Romer L. J. expresses a doubt, citing Pemberton v. Hughes [1899] 1 Ch. 781, 791, which well deserves consideration. He might also have cited Vanquelin v. Bouard (1863) 33 L. J. C. P. 78, which, however, is not a judgment with reference to status.

A. V. D.

Armitage v. Attorney-General (1906] P. 135, 75 L. J. P. 42, decides, as far as an elaborate judgment of the President of the Probate Division can do so, two important points.

First. A divorce granted by the tribunals of a country, e.g. South Dakota, where the husband is not domiciled, will be valid in England if it would be held valid by the Courts of the country, e.g. the State of New York, where the husband is domiciled at the date of the proceedings for divorce, and this though the divorce is granted for causes which would not afford a ground for divorce either by the law of England or by the law of New York. This shows that our Courts interpret the term 'law of a country,' at any rate where the lex domicilii is in question, as meaning the law, whatever it is, which the Courts of a country where a party is domiciled hold applicable to the particular case (see Dicey, Conflict of Laws, pp. 75-78).

Secondly. The respondent in a divorce suit does not by appear


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ing absolutely and not under protest give the Court before which he appears jurisdiction. This doctrine which, though not necessary for the decision of the particular case, is laid down by Sir J. Gorell Barnes, is in principle sound, but overrules Zycklinski v. Zycklinski (1862) 2 Sw. & Tr. 420 ; 31 L. J. P. & M. 37, and Callwell v. Callwell (1860) 3 Sw. & Tr. 259, which cases do not appear to have been brought before the Court. Their application, however, to such a case as the present one was already questionable : Dicey, Conflict of Laws, 394, n. 1.

The scandalous condition of divorce law and procedure in certain States has long been under the consideration of the American Bar Association, but it has not yet been found practicable even to propose more than partial remedies.


After the warning in Bonnard v. Dott (1906] 1 Ch. 740, 75 L. J. Ch. 446, C. A., money-lenders will avoid the mistake of not registering themselves, however distasteful the notoriety may be.

The situation resulting from non-registration is too one-sided to be regarded with anything like equanimity, coming as it does to this, that the money-lender cannot compel the borrower to refund the loan, while the borrower can compel the money-lender to restore the securities. An attempt was made to argue that clause (c) in s. 2 (1), providing that a money-lender'shall not enter into an agreement in the course of his business as a money-lender with respect to the advance and repayment, or take any security for money in the course of his business as a money-lender otherwise than in his registered name,' applied only to a registered money-lender; but the argument was an argument of despair. As Cozens-Hardy L. J. remarked, if that was so, no money-lender would ever register. The policy of publicity is of the essence of the Act—to unmask the ostensible lender and let the borrower know with whom he is dealing-the unconscionable dog' as Moses describes him in the School for Scandal.'

On this point the situation is clear, but it is matter for regret that the case was not heard on its merits. We very much want to know authoritatively how far the Act was meant to relieve borrowers who were in a position to make their own bargain on terms of equality with the money-lender, merely because they have had to pay or chosen to pay a high rate of interest for the accommodation.

Borrowing on floating debentures is such an easy matter in these days that a company naturally never stops business while it can raise fresh funds in this way, and so long as it is a going concern



there are always persons ready to supply goods to it on credit. But sooner or later an unprosperous company exhausts its borrowing power and the unsecured creditors awake to find that all the assets are intercepted by the debenture-holders' charge. No doubt it is a grievance, though it is difficult to acquit the unsecured creditors of rashness in trusting too credulously to the solvency of the company,

for they have the means now of ascertaining to what extent the company has charged its assets, and they ought to use such

The question-arising out of the situation which has lately been discussed in a number of cases (Re Chic, Lim. [1905] 2 Ch. 345, 74 L.J. Ch. 597 ; Re Alfred Melson & Co., Lim. (1906] 1 Ch. 841, and Re Crigglestone Coal Co. (1906] 1 Ch. 523, 75 L. J. Ch. 307, 75 L. J. Ch. 509, affirmed W. N. (1906] 126) is whether on a creditor's petition the Court ought to make a winding-up order, when to all appearance the debenture-holders' security will exhaust the assets, and the winding-up produce nothing to satisfy the petitioner's debt. The result of the cases may be summed up by saying that there must be very strong evidence indeed that a winding order will be barren of results to displace the petitioner's prima facie right ex debito iustitiae to have the company's assets administered for his and the other unsecured creditors' benefit. There is never any knowing what assets the winding-up machinery may produce. The validity of the debentures may be challenged, moneys may be recovered from promoters, or misfeasance damages from directors, the liquidator's intervention in the debentureholders' action may help to secure a more advantageous realization of the company's property. Whatever can be got the unsecured creditors ought to get it, and it is not easy to see what the rationale of the opposition to a winding-up order on this ground is. The company has no defence to its creditor's claim; the debentureholders are not concerned, for their rights are not affected; and as to costs, the official receiver acting as liquidator is too discreet to incur them unless they are likely to be fruitful.

Certain members of the Hurlingham Club objected to a resolution to discontinue pigeon-shooting at the club grounds which had been duly passed by a general meeting according to the terms of the rules; but they failed to convince the Court that pigeon-shooting, although it was the only object specified in the original rules of 1868, was a fundamental object which the club had no power to abandon : Thellusson v. Viscount Valentia (1906] 1 Ch. 480, 75 L. J. Ch. 368. An intelligent layman might conclude from the perusal of this case that Joyce J. found the Hurlingham Club entitled to greater freedom in the conduct of its affairs than the House of Lords

allowed to the Free Church of Scotland. We presume that a lawyer ought to be able to explain to such a layman why both decisions are right, but we do not presume to say how it can be done.

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The cases on reconstruction are gradually making a body of law on the subject outside the statutory provisions for reconstruction contained in s. 161 of the Companies Act, 1862, and the Joint Stock Companies Arrangement Act, 1870. The difficulty in these cases is mostly caused by the dissentient shareholder. The new company must have fresh capital to go on with that is generally the very object of reconstruction-and in order to get it the sale is made for part-paid shares, so that the buying company can make calls; but this fresh demand for money is just what a number of the shareholders who have paid up their shares in the old company object to. They look upon it as throwing good money after bad,

and prefer to take out their interest in the company in cash, as they are entitled to do when the sale is under s. 161. This of course does not suit the new company, which wants to receive, not to pay. So the reconstruction clauses of companies' Memorandums of Association have been drafted with a view to coerce them. 'Here,' says the selling company to its dissentient shareholders, ‘are part-paid shares in the new company offered you as consideration for your interest. If you do not choose to accept them,

you forfeit your interest for the benefit of the new company. This was the scheme in Manners v. St. David's Gold and Copper Mines, Lim. (1904] 2 Ch. 593 ; and in Bisgood v. Nile Valley Co. (1906] i Ch. 747, 75 L. J. Ch. 379, and in both cases the Court has disallowed the device. The scheme in Fuller v. White Feather Reward, Lim. [1900] 1 Ch. 823, 75 L. J. Ch. 393 was materially different. The part-paid shares in the new company were to be offered to the shareholders in the old company, but if they declined them the new company was to sell them for what they would fetch and distribute the proceeds among the dissentients in the proportion of their holdings. Warrington J. saw nothing ultra vires in this, though he pronounced no opinion on its fairness. It is indeed extremely difficult to get at what is fairness in such a case.

Arbitration generally puts the value of the dissentient shareholder's interest too high, the market price, if there is one, too low. To get the company and the dissentient to agree the value is almost hopeless.

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This will probably be known as the Photographic Age as other ages have been known as the Palaeolithic or the Neolithic. The photographer is abroad, trading on human vanity and the morbid love of notoriety. When a person's photograph has a market value

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