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Anadian Ba I ANADIAN BA I Vol. V. ,TORONTO, JUNE, 1927. No. 6 RECENi CASES ON G'O ICT OF LAWS. The past year has been remarkable for several decisions on the, subject of Conflict of Laws-decisions which have either definitely settled important general questions about which there was some doubt or definitely,raised again questions of -far-reaching consequence without, unfortunately, settling the doubts which exist. In the former class is the case of Attorney-General of Alberta v. Cook'- In the latter class are In re Annesley, Davidson v. Annesley,a and Republica de Guatemala v. NwneZ.3 1 . ATTORNEY-GENERAL V. COOré Attorney-General v. Cook (supra) (in the Privy Council, on appeal from Alberta) seems definitely to settle, in the negative, the question whether a wife can acquire a new domicile of choice different from that of her husband, in any circumstances, so long as the marriage subsists . The case was an extreme one in that the wife had obtained a decree of judicial separation in Alberta upon. evidence which satisfied the court that both spouses were resident in Alberta. The husband then left Alberta and, so far as was known, went to British Columbia. It was held, however, that he had never lost his Ontario domicile of origin, and therefore an action against him in Alberta for divorce was dismissed for want of jurisdiction . The case appears definitely to settle that in the absence of unity of law throughout the provinces in matters which depend upon domicile the territorial unit for the purpose of domicile is the province, not the Dominion-notwithstanding the practice, of the Dominion Parlia- ment of passing acts of divorce, in each of which it is recited that the parties are domiciled in Canada. The distinction is irdma-terial '[19261 A.C. 444, [19,61 2 D.L.R.762, (1926) 1 W.W.R. 742. a [19261 Ch. 692. e [19271 1 K.B. 669. 26--c.s.R:vm. v. 390 The Canadian Bar Review . [No. VI in the case of the Dominion Parliament, but its is crucial in the case of a court exercising divorce jurisdiction in a particular pro- vince, and it is submitted that in the interest of exact and uniform terminology Parliament should adopt the correct practice according to which domicile i~ predicated only of a particular province. Il. IN RE ANNESLT&Y . The case of In re Annesley, (supra), is of extraordinary interest . Russell, J., does some satisfactory things, but leaves the main prob- lem in a worse state than before, if that is possible. Mrs. Annesley, whose domicile of origin was English and nation- ality British, and who married a domiciled Englishman and British subject, became a widow in 1884, and thereafter lived continuously in France, except for four short visits to England, until her death in 1924, when she was over 80 years of age. Admittedly she had acquired a domicile of choice in France,, unless this result was prevented (a) by the fact that she had not applied for or obtained an authorization from the French government under article 13 of the French Civil Code (and therefore had not acquired a formal French "domicile"), or (b) by the fact that in a will made in 1919 and a codicil made in 1921 she declared that it was not her intention to abandon her English domicile of origin. Russell, J ., held that neither of these facts was sufficient to outweigh the other relevant facts proving a clear animus manendi combined with the factum of long residence. The judgment is useful as showing that a mere declaration of intention in favour of this or that domicile is imma- terial in the face of clear evidence derived from the conduct of the person in question, though doubtless such a declaration would have some weight if the other evidence were not clear. As to the effect of the absence of the authorization from the French government, the judgment is useful as restating the principle, that when an English court has to decide whether or not a particular person has acquired a domicile in a foreign country, it must decide this according to English rules of Conflict of Laws upon the facts proved, without regard to the question whether he has acquired a domicile by the law of the foreign country. This had been decided in a number of earlier cases, but had been questioned in In re Johmon,4 and ha re Bowes . In the former case, however, Far- well, J's., view on this particular question constituted only one of two alternative grounds of his judgment, and Swinfen Eady, J .'s, '[19031 1 Ch. 821 . (1906) 22 T.L.R. 711 . r - . June, 1927] Recent Cases on Conflict of Laws. 391 judgment in In re Bowes, (supra), which had masqueraded for ten years as a' considered judgment, was laid bare by Russell, J ., as having been delivered pursuant to the consent of the - parties and as being therefore of no value as a precedent. We are; however; only at the .beginning of--the..difficulties of In re Annesley, (supra) . Russell, J ., having decided that Mrs. Annesley was domiciled in France at the time of her death, then proceeded to apply the law of the domicile-French law-to the distribution of her English movables . But what French law? (a) The local or internal French law applicable to Frenchmen, or (b) the whole French law, including the French rules of Conflict of Laws? Russell, J ., would have liked simply to take the direct route (a) to French internal law, and distribute the movables as if 'they were assets of a Frenchman in France. But, upon principle (b), which had been acted upon in earlier English cases, he consulted French law, to ascertain what a French court would do in the case of a British subject domiciled (in the English sense) in France, and then (depart- ing as I submit from the principle) he decided on a review of the French decisions and "jurisprudence" that a French court would (1) refer to English law as the decedent's national law and (2) finding that English law would refer to, the law of the domicile, that is, French law, as the appropriate law,- would apply French law, that is, would accept the renvoi or reference back. Russell, J ., therefore applied internal French law, thus reaching the same result which he would, have preferred to reach by adopting . principle (a) . The result seems at first sight simple and satisfactory, but if the reasoning is worth anything it ought to produce the same result no matter which side of the English Channel one starts from. Now suppose that a French court is administering the French movables of the same estate. According to French law, the national law of the decedent applies, that is, English law. But what English law? {a.) The local or internal law of England applicable to Englishmen, or (b) the whole law of England, including English rules of Conflict of Laws? As English law accepts the doctrine of "the renvoi the French court should apply English internal law, either on principle (a), or -on principle (b) construed according to Russell, J . The result, as regards the estate as a whole, is nonsense. The English court applies French law and the French court applies English law. By another equally logical and more orthodox process one might arrive at another nonsensical result, though not quite so, devoid of common sense as the foregoing. The English court applies the law of the domicile, that is, French law, including the French rules of Bar 392 The Canadian Review. [No. VI Conflict of Laws, and, finding that the French law refers questions of succession to movables to the national law, that is, English law, English law accepts the renvoi and distributes the movables as if they were the movables of a domiciled Englishman. By a similar course of reasoning the French court distributes the French movables accord- ing to the internal French law. In any of the foregoing cases the court, English or French, which accepts the renvoi, has cut the Gordian knot of the circulus inextri cabilis-that is, the theoretical everlasting series of references back and forward from the law of the domicile to the national law and vice versa, or what Russell, J., has renamed the "endless oscillation" --either arbitrarily, or by adopting the deceptively simple formula of Collier v. Rivaf,6 namely, that the court should decide the ques- tion as if it were sitting in the foreign country. But in getting out of one circulus inextricabilis the court has got into another, namely, that if there are movables of the same estate in two countries, one of which adopts domicile as the test of personal status, and the other nationality, and if the two countries apply the same doctrine of the renvoi, the one to the law of the domicile, the other to the national law, the result always is that the movables will be dis- tributed in different ways in the two countries, either each court applying its own internal law, or each court applying the internal law of the other. The same result would follow if each country adopted Russell, J.'s, suggestion, namely, that the reference to the foreign law should, be interpreted as a reference to the internal law of the foreign country, excluding all question of the renvoi. Each court would apply the internal law of the other country. Russell, J., ingeniously, but I submit illogically, contrived in In re Annesley to reach the satisfactory conclusion that the English and the French movables should be distributed by the same Jaw, namely, French internal law, but he did so by supposing that different versions of the renvoi were applicable in France and in England respectively.
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