the defendants were within the foreign country, but left it before the suit was instituted, we should be inclined to think the laws of that country bound them; though, before finally deciding this, we should like to hear the question argued. . . . Again, we think it clear, upon principle, that if a person selected as plaintiff the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding upon him."

An American court, commenting upon the doctrine of Schibsby v. Westenholz, says: "If the obligation to enforce a foreign judgment is to be rested on the duty or obligation of the defendant to pay the sum for which the judgment was given, as Mr. Baron Parke and Mr. Justice Blackburn suppose, then it is important to know from what such duty or obligation springs. It is certain that it cannot spring from the mere fact that some court has assumed to render a judgment, but the proceedings anterior to the judgment must have been such as fairly imposed upon the party sued the obligation to appear and make his defense to the demand set up, if any he had, and if, under the circumstances, he was fairly entitled to treat any notice of the suit which may have been given him as unwarranted, and to disregard it, then it seems plain that no obligation to recognize the conclusions of the court in the suit could possibly arise." 16

The American doctrine upon this point is summed up in the Cyclopedia of Law and Procedure, as follows: "Where the defendant was a citizen or subject of the foreign country in which the judgment was recovered, the court may have acquired jurisdiction over him in McEwan v. Zimmer, 36 Mich. 765; 31 American Reports, 332. For affirmations of the doctrine of Schibsby v. Westenholz, especially as to the binding force of judgments upon non-resident citizens or shareholders of national corporations, see Rousillon v. Rousillon, L. R. 14 Ch. Div. 351; Vallee v. Dumerque, 18 L. J. Exch. 398; Douglas v. Forrest, 4 Bing. 686.

10

any mode or service or notice recognized as sufficient by the laws of that country."

"17

Doctrines of Civil Law Countries as to Comity and Conflict of Laws. The statements which have gone before have related almost exclusively to Anglo-American law. In a considerable number of respects the doctrines declared by the courts and legislatures of European and South American countries differ from those of the United States and Great Britain and her possessions, and the more important of these differences deserve mention.18

European and South American countries reject the Anglo-American doctrine that a judgment in personam can be rendered against a defendant if service of process is had upon him within the State, and without regard to his place of domicil, or as to where the cause of action accrued, or as to the location of the property to which it relates. "Service of process within the State is not a jurisdictional requirement in countries of the civil law for any cause of action. If jurisdiction exists, the defendant may be cited to appear and defend, although absent from the State." 19

The doctrine that the powers of personal representatives appointed by the courts may not be exercised outside the borders of the State in which they are appointed, is peculiar to Anglo-American law.

In European and South American countries, execution may be had upon foreign judgments as such, provided they have been declared executory by a domestic court.

"Op. cit., vol. XXIII, p. 1609, sub nom. “Judgments."

18 These differences are pointed out by Professor Ernest Lorenzen in notes appended to his valuable collection of Cases on the Conflict of Laws, 2d ed., 1924. From these notes the statements that follow have been taken. See also Professor Lorenzen's article "Territoriality, Public Policy and the Conflict of Laws," in the Yale Law Journal for May, 1924.

"Judgments concerning capacity, status, and the like require no exequatur before being entitled to recognition." "Some countries decline to enforce foreign judgments in the absence of treaty (Holland, Japan). Others decline to do so except on the condition of reciprocity (Germany, Argentina). Others enforce them without any treaty or reciprocity, if certain statutory requirements have been satisfied. Some of these do so without re-examining the merits of the case (Italy, Brazil). Others only after a re-examination of the merits (Belgium, France)." "No foreign judgment will be given effect in Germany unless it was rendered by a court competent according to the rules governing the jurisdiction of German courts." 20

"Lorenzen, Cases, p. 1055. See also Lorenzen, "The Enforcement of American Judgments Abroad," 29 Yale Law Journal, 188.

CHAPTER XXIV

JURISDICTION OVER PROPERTY

Or the complete jurisdiction of a sovereign State over all property within its territorial limits, whether for purposes of taxation, of eminent domain, or the regulation of its use in private hands, there is no dispute. Controversies as to jurisdiction, therefore, seldom if ever arise with regard to corporeal things. It is only with reference to incorporeal hereditaments or intangible personality that questions as to situs for purpose of legal regulation or control occur.

Many of these questions are solved by applying the principle that mobilia sequuntur personam, but no State permits this general doctrine or fiction to defeat its jurisdiction if there are any substantial grounds for holding that the personalty or incorporeal hereditament has a situs within its borders independently of the place of residence or domicil of its owner. Thus, States have not hesitated, under certain circumstances, to exercise jurisdiction over intangible personalty, even when owned by non-resident aliens, when the evidences of ownershipthe bonds, promissory writings, mortgage instruments, or other evidences of credits-are, in fact, situated within their respective limits. In other cases, as will presently be seen, States base their rights of legal control, especially for purposes of taxation, upon the fact that the credits taxed are in the form of profits arising out of corporate or other business undertakings carried on within its borders, or that the mortgages or other liens are upon

property similarly situated. An examination of some of the decisions of the Supreme Court of the United States with reference to the exercise of jurisdiction of this kind will disclose the general doctrines declared by American courts, and the reasoning upon which they have been based.

Special Considerations Applicable to States of the American Union. A considerable number of the cases which will be examined relate to the taxing powers of the individual States of the American Union. Because of the fact that these States have their powers curtailed by certain express or implied limitations in the Federal Constitution with reference, for example, to the impairing the obligation of contracts, to the taking of property without due process of law, to interference with interstate or foreign commerce, and to the denial to citizens of other States of the Union of privileges and immunities enjoyed by their own citizens, the validity of their tax laws as well as other laws comes before the Federal Supreme Court for final determination. These States, as between themselves, are foreign governments and their jurisdictions are strictly territorial in character, and, therefore, as between themselves, the Federal Supreme Court applies the same principles of public law that govern the relations of sovereign States to one another, and, for that reason we may quote the decisions of that eminent tribunal as to its conception of these general jurisprudential principles so far as concern the facts upon which municipal legal control may be predicated. In so far, however, as the decisions of the Supreme Court turn upon specific provisions of the American Constitution or arise out of any special constitutional characteristics of the American Union, they are, of course, without determining or interpretative force in the field of general public law.

Two further facts with regard to the jurisdictional