Open main menu
This page needs to be proofread.
n
705
INTERPELLATION—INTERPLEADER

there can be little doubt that an incapacity to marry imposed by the personal law in virtue of religious vows or orders would be disregarded by the English courts in the case of a person marrying in England. Again, it is established in England that damages cannot be recovered for a tort unless the act complained of was a wrong both by the law of the country where it was done and by the law of England; and Article 12 of the statute enacting the German code is in accordance with that doctrine. Now the law of the country where the act is done would naturally give the standard for measuring its legal consequences, and it seems to be due to the connexion which laws qualifying acts as wrongs have with 'public order that respect for that law is tempered by respect for the law of the countries in which it is invoked; but Article 8 of the Belgian code refers the liability for torts to the former law without any restriction.

Foreign Judgments.-In the rules which have passed before us in the foregoing general review it is easy to perceive a leading motive-that of securing, so far as public order allows, the certainty and stability both of personal and of business relations in the international or inter territorial intercourse which has always accompanied civilization, but is now especially frequent and extensive. It has been attempted t.o erect this motive into a guiding principle of law, laying down that rights once accrued in any territory, or sometimes, it is said, by virtue of any territorial law, are to be recognized and enforced, subject to the requirements of public order, in any other territory in which they may be invoked before a court of justice. From this, which may be called the principle of the acceptance of foreign rights, it is claimed that the rules of private international law are to be deduced, and that by their consonance with it any such rules are to be tested when proposed. The difficulties of the subject, however, do not admit of being unlocked by so simple a key. They meet us again when we inquire in what territory, or by virtue of what territorial law, a particular alleged right has accrued. Persons belonging by domicile or nationality to A enter in B into a contract to be performed in C; where and by virtue of what law does either acquire a right against the other? Is it to be in or by the law of their homes, where they are normally, though not always necessarily, to be sued? Or of the country where they contract, which for various purposes, as those of police, but not for all purposes, has the control of them when they contract? Or of the country where their contract is to be performed, under a similar control by which, perhaps extending to the very acts of performance, they or their agents may be brought by the operation of their contract? Evidently we cannot apply the principle to guide us in our choice of a law till the very problem which that choice presents has first been solved. There is, however, one case in which the principle of the acceptance of foreign rights leads to a conclusion, namely, where the right has been declared by the judgment of a competent court, which may have been given in an ordinary case, presenting no question of private international law, but in which, if such a question arose, it has been solved by choosing the law and basing the judgment on it. The rule in England and in many other countries as to foreign judgments is that the judgments of competent courts in other territories (foreign in the sense of civil law, whether politically foreign or not) are to be enforced without reopening the merits of the questions disposed of by them. In some countries, however, a foreign judgment is examinable on its merits before being enforced. This was formerly the unquestioned rule in France, though the practice there seems to be now turning the other way. In the system adopted in England everything turns on the competence. For judgments in rem, declaring or disposing of the property in a thing, the test of competence is that the thing, whether movable or immovable, was within the territory of the court. judgments which declare the status of a person, as with regard to marriage or majority, are competent if the person was subject to the jurisdiction by nationality or domicile. The property or the status is treated as being what has been so declared or decreed. For judgments in personam, decreeing the payment of a certain sum, the test of competence for the present purpox is again that the person against whom it was pronounced was subject to the jurisdiction by nationality or domicile; the judgment may then be sued on as giving of itself a good title to the sum decreed by it to be paid. For domestic purposes the competence may exist on quite other grounds. By its own territorial law a court may be authorized to entertain a suit in personarn because the plaintiff possesses its nationality, as by Article 14 of the code N apoleon, or because the contract sued on was made or was to be performed in the territory, and so forth. But judgments based on these grounds will not be enforceable outside the territory. Here we touch the root principles of our subject. The distinction between domestic and international grounds of competence can only be explained by the history of law, and we come in sight of the fact that the rules of private international law rest finally on conventions which could not have existed if the civilization of different countries had not so much that was common in its origin and in the course which it has followed, but which suit the life of those countries just because that life is itself another outcome of those common antecedents.

Aurnonrrias.-The best authority on the history of private international law to the end of the 18th century is Lainé, Introduction au droit international privé (2 vols., Paris, 1888). For modern progress the most copious materials are to be found in the Revue de droit international et de legislation comparée (Brussels, from 1869); the Journal du droit international privé et de la jurisprudence comparée (Paris, from 1874); and the Annuaire de l'institut de droit international (Paris, from 1877). The most comprehensive general treatise is that of von Bar, of which the 2nd edition appeared at Géttingen in 1889, and has been translated: The Theory and Practice of Private International Law, by L. v. Bar, 2nd ed., translated, by Gillespie (Edinburgh, 1892). Other works, many of great merit, are numerous in all languages; but in this, as in every department of law, the first place for England and the United States must be given to the different Law Reports, since in those countries it is not in the study but on the bench that the highest legal intellect is usually displayed, and the judgments delivered are often essays on the points involved. The following works, however, among others, treat the subject from the English or United States point of view: Story, Cornrnentaries on the Conflict of Laws, Foreign and Domestic, 8th ed., by Bigelow (Boston, 1883); Wharton, A Treatise on the Conflict of Laws or Private International Law (znd ed., Philadelphia, 1881); J. Westlake, A Treatise; on Private I nternalional Law, with Principal Reference to its Practice in England (4th ed., London, 1905); Foote, A Concise Treatise on Private International Jurisprudence, based on the Decisions in the English Courts (3rd ed., London, 1904); A. V. Dicey, A Dagest of the Law of England with Reference to the Conflict of Lafws (2nd e ., London, 1908); Beale, A Selection of Cases on the Conflict of Laws, with Notes and Summary (Cambridge, Mass., 1900-1903); Bare, Notes on the Doctrine of Renvoi (1904). (juo. W.)


INTERPELLATION (from Lat. interpellare, to interrupt), a term meaning, in general, an interruption, more particularly used of a method of procedure adopted in some of the legislative chambers of continental Europe, especially those of France and Italy, and somewhat similar to that of a motion to adjourn the House in the British parliament. It was originally confined to the asking of a question, after due notice, on some affair of state. It is now, however, the chief means by which the policy or action of the ministry of the day is challenged. An interpellation can be brought on without the consent of the minister to be attacked; it is usually made the subject of a general debate, and generally ends with a vote of confidence or want'of confidence in the ministry. The right of permitting or vetoing an interpellation rests with the chamber. In France a tendency has been growing among deputies to use the interpellation as a method of attack on or accusation against indivi dual colleagues.


INTERPLEADER, in English law, the form of action by which a person who is sued at law by two or more parties claiming adversely to each other for the recovery of money or goods wherein he has no interest, obtains relief by procuring the rival claimants to try their rights between or among themselves only. Originally the only relief available to the possessor against such

adverse claims was by means of a bill of inter pleader in equity. The Interpleader Act 1831 enabled the defendant in such cases. on application to the court, to have the original action stayed and converted into a trial between the two claimants. The Common Law Procedure Act of 1860 further extended the power of the