CHAPTER XIV. JURISDICTION AND REMEDIES. [* § 530. Classification of remedies. § 531. Questions of jurisdiction, both inter partes and inter gentes. § 532. By the Roman Code, jurisdiction was in the domicil of defendant, or rei sitæ. 533-535. The civil law writers generally agree in this point. 536. The place where the contract was made, or any act done, gave jurisdiction. § 537. These three forms of giving jurisdiction exist in continental countries. § 538. At common law, actions on personal, real, and mixed. § 539. Internationally, either the person or thing must be within the jurisdiction, or any decree is void. § 540. How far the fact of presence gives jurisdiction over foreigners. § 541. Residence would seem to give jurisdiction. § 542. In England and America, controversies between foreigners are entertained. § 542 a. But will assume no jurisdiction of foreign sovereigns. § 543. Decrees against foreigners only bind the person. § 544. Courts of equity make decrees in personam affecting property abroad. 545. But will make no decree directly affecting title. § 546. Decrees, without the presence of defendant, purely void. 547. Further illustration of the point. § 548. The effect of former residence and allegiance. § 548 a. Serving process on public officer may give jurisdiction. § 549. Proceedings by attachment of property only bind the property. § 550. Personal estate, choses in action, &c., may be thus bound. § 551. Foreign property, and especially real estate, cannot be thus affected. § 552. Distinctions of actions, real, personal, and mixed, considered. 553. The doctrine of Vattel. § 554. Personal actions transitory, real and mixed actions, local. § 555. This distinction indispensable to national sovereignty. 556. Remedies governed exclusively by lex fori. 557. Such a course indispensable to good order and self-respect. 558. As to merits and forms of proceedings, what law governs. § 559–562. Discussion of these points by foreign jurists. § 563. Questions often arise as to what concerns the remedy. § 564. Classification of this topic. § 565. Who may sue? Rights of assignees. § 566. Further discussion of the rights of assignees. § 567. Effect of a seal upon remedies. 568. Process must be conformable to lex fori. § 569. But contracts, not importing personal liability, give none anywhere. § 570. This will not affect contracts in countries where no such remedy exists. 571. If the contract imports personal obligation where made, the remedy must be, in all other countries, according to lex fori. § 572. The forms of judgment and execution governed by the lex fori. § 572 a. In some cases such judgments cannot be enforced elsewhere. § 573-574 a. The opinions of foreign jurists on the point. § 574 b - 574 d. The right to arrest the person of the debtor further discussed. § 575. The right of set-off pertains to law of the forum. § 575 a. Admissibility of equitable defences. 576. Statutes of limitation concern the remedy exclusively. 577. The course of decision is everywhere the same on this point. § 578. This rule rests upon the most unquestionable policy and justice. § 579. Foreign jurists sometimes question it. § 580. Prescription limits the remedy, not the right. § 581. Speculations of the foreign jurists upon the point. § 582. Where the right is extinguished it is a perpetual bar. § 582 a. The local statute bars actions upon foreign judgments. § 582 b. Extinguished rights do not revive by the removal of parties. § 582 c. What concerns the remedy and what the right. § 583. Subject further discussed. § 530. WE are next led to the consideration of the subject of remedies, or the modes of redress for the violation of the rights of other persons by proceedings in courts of justice. And, in the nature of things, these may well be classed into three sorts; first, those remedies which purely regard property, movable and immovable; secondly, those which purely regard persons; and, thirdly, those which regard both persons and property. The Roman jurisprudence took notice of this distinction, and accordingly divided all remedies, as to their subject, into three kinds: (1.) Real actions, otherwise called Vindications, which were those in which a man demanded something that was his own, and which were founded on dominion, or jus in re; (2.) Personal actions, denominated also Condictions, which were those in which a man demanded what was barely due to him, and which were founded on some obligation, or jus ad rem; (3.) Mixed actions, which were those in which some specific thing was demanded, and where also some personal obligations were claimed to be performed. The real actions of the Roman law were not, like the real actions of the common law, confined to real estate; but they included personal as well as real property. But the same distinction, as to classes of remedies and actions, equally pervades the common law, as it does the civil law. Thus, we have in the common law the distinct classes of real actions, personal actions, and mixed actions; the first embracing those which concern real estate, where the proceeding is purely in rem; the next, embracing all suits in personam 1 Halifax on the Roman Law, B. 3, ch. 1, § 4, 5, p. 25, 28; 1 Brown, Civil and Adm. Law, p. 439, 440. — In Pothier's work on the Customs of Orléans, there will be found a correspondent division of actions into the same classes. Pothier, Coutumes d'Orléans, Introd. Gén. ch. 4, art. 109 to 122. for contracts and torts; and the last, embracing those mixed suits where the person is liable by reason of, and in connection with, property.1 § 531. In considering the nature of actions, we are necessarily led to the consideration of the proper tribunal in which they should be brought; or, in other words, what tribunal is competent to entertain them in pòint of jurisdiction. And, here, the subject naturally divides itself into the consideration of matters of jurisdiction in regard to the administration of mere municipal and domestic justice; and matters of jurisdiction in regard to the administration of justice inter gentes, founded upon principles of public law. § 532. In the Roman jurisprudence, and among those nations which have derived their jurisprudence from the civil law, many embarrassing questions, as to jurisdiction, seem to have arisen.2 The general rule of the Roman Code is, that the plaintiff must bring his suit or action in the place where the defendant has his domicil, or where he had it at the time of the contract. Juris ordinem (said the Emperor Diocletian) converti postulas; ut non actor rei forum, sed reus actoris sequatur. Nam ubi domicilium reus habet, vel tempore contractûs habuit, licet hoc postea transtulerit, ibi tantum eum conveniri oportet. But it is not to be understood, that this rule applied to all cases where the party defendant was found, without any regard to the situation of the thing sought, as if its object were to show more favor to the party defendant than to the plaintiff. Its sole object was, that the adjudication might be made where it could be enforced. Thus, we find the doctrine. laid down in the Code, that, although the general rule is, that the plaintiff must bring his suit in the domicil of the defendant; yet this was dispensed with in certain suits in rem; which might be brought in the place rei sitæ. Actor Rei forum, sive in rem, sive in personam sit actio, sequitur. Sed et in locis, in quibus res, propter quas contenditur, constitutæ sunt, jubemus in rem actionem adversus possidentem moveri.1 § 533. Huberus thus explains the doctrine. Cujus ratio non 13 Black. Comm. 294; Comyns, Dig. Action, N. 2 See 1 J. Voet, ad Pand. Lib. 5, tit. 1, § 303; Id. 64, 66, 74, 91, 92; Huberus, Lib. 5, tit. 1, De Foro Compet, Tom. 2, § 38 to § 52, p. 722 to 730; Strykius, Tom. 6, 11, p. 1, 8, Tom. 7, 1, p. 5; 1 Boullenois, Observ. 25, p. 601, 618, 619, 635. 3 Cod. Lib. 3, tit. 13, l. 2; ante, § 526. * Cod. Lib. 3, tit. 19, l. 3; 1 Boullenois, Observ. 25, p. 618, 619; post, § 551. tam est, quod reus sit actore favorabilior, etsi verissima; sed quod necessitatis vocandi et cogendi alium ad jus æquum, non nisi a superiore proficisci queat: superior autem cujusque non est alienus, sed proprius rector. Vocandi, inquam, et cogendi; quandoquidem sine coactione judicia forent elusoria; nec alibi forum lege stabilitur, quam ubi illa cogendi facultas adhiberi potest; non tamen, ut ubicunque illa valet, sit forum, sed ubi res et æquitas patitur. Vis illa compellendi partes ad æquum jus, imprimis est in loco domicilii, est etiam in loco rei sita, et rei gesta, si Reus illic haberi possit, alias secus. Hinc tria sunt loca fori in jure nostro, Domicilii, Rei sitæ, Rei gesta.1 And, hence he thinks, that the rule of the civil law rei sitæ applies, not only to immovables, but to movables, although many jurists confine it to the former.2 Sed heic aliam potius rationem sequimur; quod in foro stabiliendo maxime consideretur, an in promptu sit effectum dare citationi, in cogendis partibus ad obsequium jurisdictionis; quæ facultas æque locum habet in mobilibus, ubi detinentur, quam in immobilibus, ubi sitæ sunt.3 § 534. But he admits, that, as the forum domicilii was of universal operation, actions in rem might be brought in the forum domicilii, as well as in the forum rei sita. Videlicet, hoc semper tenendum, domicilii forum esse generale, quod in cunctis actionibus, adeoque etiam in actionibus in rem, obtinere, sciendum est, ut de dd. legibus constat. Again he says: Summa igitur hæc esto. Domicilium in omnibus rebus et actionibus præbet forum. Res sita præterea in actionibus in rem singularibus, non excluso domicilio. And he supposes the same rule to apply in modern times in the civil law countries. Hæc ego de foro domicilii, reique sitæ alternè conjuncto, moribus hodiernis eodem modo putem obtinere, quemadmodum jure Cæsaris præscriptum est; ut maxime in rem agatur, ubi res sita est; possit tamen omnino etiam, ubi Reus habitat.6 1 Huberus, Lib. 5, tit. 1; De Foro Compet. § 38, Tom. 2, p. 722. See also 1 Boullenois, Observ. 25, p. 618, 619; post, § 551. 2 The subject is a good deal controverted among the civilians; but the present work does not require me to engage in the task of discussing the various opinions which are held by them. The learned reader will find many of them referred to in J. Voet, ad Pandect, Tom. 1, Lib. 5, § 77, &c., p. 337. 3 Huberus, Tom. 2, Lib. 5, tit. 1, § 48, p. 727. Id. § 49, p. 728. 5 Id. § 50, p. 728. Huberus, Tom. 2, Lib. 5, tit. 1, § 50. § 535. In regard to mixed actions, although there is no text of the Roman law directly in point, Huberus thinks, that they may be brought, either in the place of domicil of the defendant, or of the rei sita. De mixtis actionibus, exceptâ hæreditatis petitione, que partim in rem, partim in personam, esse dicuntur, non sunt textus speciales, ubi sint instituendæ. Ideoque id ex earum proprietate colligunt Interpretes, cum partim imitentur naturam personalium, partim in rem actiones, illas et apud domicilium et apud rem sitam esse movendas, &c. Proinde sic est statuendum. Posse quidem illas actiones utroque loco, domicilii, sitúsque, moveri; verum, si faciendæ sunt adjudicationes manuque divisio regenda sit, partes ad judicem loci remittendas esse, res ipsa loquitur.1 § 536. The civil law contemplated another place of jurisdiction, to wit, the place where a contract was made, or was to be fulfilled, or where any other act was done, if the defendant or his property could be found there, although it was not the place of his domicil. Illud sciendum est, eum, qui ita fuit obligatus, ut in Italiâ solveret, si in provinciâ habuit domicilium, utrobique posse conveniri, et hic, et ibi.2 Huberus explains this thus. Sequitur causa fori tertia, quam Rem Gestam esse diximus, eamque vel ex contractu vel ex delicto admisso, &c. Sed contractus ita forum tribuit, si contrahens in eodem loco reperiatur; quod convenit, requisito communi inde ab initio collocato, nullam esse fori causam, nisi cum facultate cogendi conjunctam; qualis non est ex historiâ contractûs, si vel Reus ibi non inveniatur, vel bona duntaxat sita non habeat, in quæ missio fieri possit, quando Reus se in loco contractûs non sistit.3 These distinctions of the Roman law have found their way into the jurisprudence of most, if not all, of the continental nations of modern Europe. § 537. Accordingly we find it laid down by foreign jurists generally, that there are, properly speaking, three places of jurisdiction; first the place of domicil of the party defendant, commonly called the forum domicilii; secondly, the place where the thing in controversy is situate, commonly called the forum rei sita; and thirdly, the place where the contract is made, or other acts done, commonly called forum rei gestæ, or forum contractûs. Vis illa 1 Id. § 51, p. 729. 2 Dig. Lib. 5, tit. 1, l. 19, § 4. See also as to all these distinctions, Pothier, Pand. Lib. 5, tit. 1, n. 29 to 44; Cod. Lib. 3, tit. 18, l. 1. Huberus, Tom. 2, Lib. 5, tit. 1, § 53, 54, p. 729, 730. |