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either in Europe or in the United States. In 1880 she sued her husband before the New York Supreme Court, and, in December of that year, she obtained a divorce on the ground of adultery. The appellant filed an appearance before the court, but did not contest the suit.

On the strength of the decree of the New York Supreme Court granting her a divorce, the respondent, assuming to be single and an unmarried woman, and without any previous authorization from a court or judge, has entered the present action against the appellant for an account of moneys she had entrusted to him during their marriage.

The appellant has demurred to the declaration, which demurrer has been dismissed. He has also filed a plea to the merits by which he alleges that at the time, and for years previous to the pretended divorce invoked by the respondent, the parties had acquired a new domicile in the Province of Quebec, and that the pretended divorce is null and void; and also that the respondent has not been and is not authorized to institute the present action.

The respondent has answered by asserting the validity of the divorce pronounced by the New York Supreme Court, and by alleging that even if the divorce were not valid, she would nevertheless have a right to demand from the appellant an account of the administration of her fortune, both under the laws of the State of New York and under those of this province.

Three questions arise under this issue:

1. Does the divorce which the respondent has obtained in the State of New York affect the appellant who, at the time it was obtained and for years previously had his domicile in the Province of Quebec?

2. If the decree of the New York Supreme Court granting a divorce to the respondent is not binding here, could the respondent bring the present action without being previously authorized to do

so?

3. Has the appellant properly raised, by a plea to the merits, the questions as to the validity of the divorce obtained by the respondent and her want of authorization to sue, and should not these questions have been the subject of preliminary exceptions?

A change of domicile is effected by actual residence in another place, coupled with the intention of the person to make it the seat of his principal establishment. (Art. 80 C.C.) The proof of such intention results from the declarations of the person and from the circumstances of the case. (Art. 81 C.C.).

In the present case we have the declaration made in writing by the appellant to the custom house officers on entering this province, that he came with the intention of settling permanently in this country, coupled with the facts that he has opened a business and has uninterruptedly resided at Montreal since he made that declaration, ten or eleven years ago. There can, therefore, be no doubt that

the appellant has abandoned his domicile in the State of New York and has acquired a new domicile here.

The respondent has followed her husband here, where she has resided four years with him, and our Civil Code (Art. 83) establishes that "a married woman, not separated from bed and board, has no other domicile than that of her husband." Both the appellant and respondent have therefore had their legal domicile in the Province of Quebec since they arrived here in 1872, the absence of the respondent for the last few years notwithstanding.

It is also undeniable that, according to the laws of the Province of Quebec, the marriage tie is indissoluble, and that divorce is not allowed, but is, on the contrary, considered as opposed to public policy. There are no tribunals here authorized to grant a divorce, that is, to dissolve, for any cause whatsoever, a marriage lawfully contracted; and to allow a divorce pronounced by a foreign court to affect here the personal status of persons having their domicile in this country would be to admit that foreign tribunals have a jurisdiction and power over persons domiciled here which our own courts have not.

No case has been cited and no authority adduced to shew that judgments rendered in a foreign court, contrary to the public policy of the country where the parties concerned have their domicile at the time, has anywhere a binding effect on such parties in the country of their domicile, and we may safely assert that no such authority is to be found. The books are full of decisions to the contrary, and the application of the rule is not confined to any particular country, but seems applicable to all.

Felix, Droit International Privé, (2. ed.) pp. 12, 13, says:

"No. 9.-Le premier principe général, en cette matière, résulte immédiatement du fait de l'indépendance des nations. ‘Chaque nation possede et exerce seule et exclusivement la souverainété dans l'êtendue de son territoire.' De ce principe il suit que les lois de chaque état affectent, obligent et régissent de plein droit touts les propriétés immobilières et mobilières qui se trouvent dans son territoire, comme aussi toutes les personnes qui habitent ce territoire qu'elles y soient nées ou non, etc.

"No. 10. Le second principe général c'est qu'aucun état, aucune nation ne peut, par ses lois, affecter directement, lier ou régler des objects qui se trouvent hors de son territoire, ou affecter ou obliger les personnes qui n'y résident pas, qu'elles lui soient soumises par le fait de leur naissance, ou non.

"No. 11. Les deux principes que nous venons d'énoncer engendrent une conséquence importante, et qui renferme notre doctrine toute entière; c'est que tous les effets que les lois étrangères peuvent produire dans le territore d'une nation, dépendent absolument du consentement exprès ou tacite de cette nation."

Page 19. "Aucune nation ne renonce, en faveur des institutions d'une autre, à l'application des principes fondamentaux de son

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gouvernement; elle ne se laisse pas imposer des doctrines qui, selon sa manière de voir, sous le point de vue moral ou politique, sont incompatibles avec sa propre sécurité, son propre bieu-être, on a la consciencieuse observation de ses devoirs ou de la justice. Ainsi aucune nation chrétienne ne tolère en son territoire l'exercice de la poligamie, de l'inceste, l'exécution de conventions contraires à la morale."

Page 39. "Après le changement de nationalité ou de domicile, dont nous parlerons ci-après, la loi de la nouvelle patrie ou du nouveau domicile exerce sur l'individu les mêmes effets que celle de la patrie originaire ou du domicile d'origine avait exercés jusqu'alors. Mais il va sans dire que la loi de la nouvelle patrie n'a pas d'effet rétroactif sur les actes passés autérieurement par

l'individu."

Story, Conflict of Laws, par. 25, expresses the same doctrine when he says: "No nation can be justly required to yield up its own fundamental policy and institutions in favour of those of another nation; much less can any nation be required to sacrifice its own interests in favour of another, or to enforce doctrines which, in a moral or political view, are incompatible with its own safety or happiness or conscientious regard to justice and duty." And again at par. 32: "It is difficult to conceive upon what ground a claim can be rested to give to any municipal laws an extra-territorial effect when those laws are prejudicial to the rights of other nations or to those of their subjects."

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can

It is a maxim, said Lord Wynford, (Best J.) in Forbes v. Cochrane (a), "that the comitas inter communitates not prevail in any case where it violates the law of our own country, the law of nature or the law of God."

In the case of Inhabitants of Hanover v. Turner (b), in which a divorce obtained in the State of Vermont was held to be null, because at the time the parties were domiciled in Massachusetts, Putnam, J., said: "If we were to give effect to this decree we should permit another state to govern our citizens in direct contradiction of our own statute, and this can be required by no rule of comity."

Apart from the question of public policy, and which deprives the decree obtained by the respondent of any binding effect, it is also null and void on the ground that it was obtained in fraudem legis It is evident that the defendant, who was domiciled here with her husband, has withdrawn from the jurisdiction of our courts to seek in a foreign tribunal a relief which she could not have obtained in those of her own domicile.

The remarks of Spencer J. in the case of Jackson v. Jackson (c) are so appropriate to this case that I deem it proper to cite here a short extract of what he said in giving the judgment of the court:

(a) 2 B. & C. 488, at p. 471.

(b) 14 Mass. 227. (c) 1 Johns. (N.Y.) 424, at p. 432.

"The case being thus open for examination the question at once arises, how far this court will lend its assistance to carry into effect, between its own citizens a judgment of a foreign court, where the plaintiff has resorted to that court with the avowed object of gaining relief in a case not provided for by our laws and against the policy of them. I say against the policy of our laws, because our own legislature, having authorized divorces but in one case, intolerable severity of treatment does not warrant a divorce.

"Here is a plain attempt by one of our own citizens to evade the force of our laws. The plaintiff, to obtain a divorce which our laws do not allow, instituted her proceedings in Vermont, whilst she was an inhabitant and an actual resident of this state, and while her domicile continued within this state, for she was incapable, during her coverture, of acquiring a domicile distinct from that of her husband, The plaintiff having acted with a view of evading our laws, it would be attended with pernicious consequences to aid this attempt to elude them.

"It may be laid down as a general principle that, whenever an act is done in fraudem legis, it cannot be the basis of a suit in the courts of the country whose laws are attempted to be infringed."

The principle so broadly laid down in this case was acted upon in a judgment rendered by the cour royale de Poitiers on the 7th January, 1845 (d), and a divorce obtained in Switzerland by a Frenchman who had become a naturalized subject of that country, and the two subsequent marriages which he had there contracted while his first wife was living were declared null and void, as having taken place in fraud of the laws of France. (Fœlix, vol. 1, p. 68, note a).

I may venture to say, that this rule prevails everywhere, and on this ground also the decree of the New York Supreme Court should be held to have no binding effect in this province.

It is, however, contended that in matters of divorce it is not the laws of the actual domicile of the parties, but the laws of their matrimonial domicile, to which reference must be had; and that as appellant and respondent were married in the State of New York, where marriage was then and is still dissoluble either party had a right to resort to the tribunals of that state to have the marriage dissolved for causes for which a divorce is allowed by the laws which are there in force.

The respondent, who urges this claim, proceeds on the assumption that divorce is a remedy on the contract of marriage which has taken place between the parties-and that either of them has an acquired right to claim a dissolution of the marriage tie for causes which at the time it was contracted were held, by law, sufficient to obtain a divorce.

This doctrine of an acquired right to a divorce has been denied

(d) S.V. 1845, 2. 215; De Maynard v. Chopin.

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by all the French writers. Mailler de Chassât, de la Rétroactivité des Lois (e) says on this subject: "Le divorce ou l'indissolubilité du mariage est dans le domaine de la loi; et la disposition qui consacre l'un ou l'autre est une disposition d'ordre public et par suite une pure concession qui ne confère aucun droit acquis aux individus."

The author quotes Merlin in support of the view he takes of this question, and concludes by saying: "Cette doctrine est incontestable," etc.

If a marriage contracted in a country where divorce is recognized conferred on the contracting parties a right which followed them wherever they might be domiciled, they ought, according to the comity of nations, to be able to enforce such right, as all their other matrimonial rights, before the tribunals of their actual domicile without having to resort to those where their marriage has taken place. Yet it cannot seriously be contended that the respondent could have claimed that a divorce should be granted to her by our own courts on the ground that she was married in the State of New York, where divorce is allowed.

The question in the precise form in which it is presented in this case, does not appear to have been yet decided either in the United States, in England or in France.

Story, par. 230, asks this question: "What would be the effect of a marriage in Connecticut, a subsequent bonâ fide change of domicile to New York, and then a divorce in Connecticut, both parties appearing in the suit, remains as yet undecided."

It must be observed that in the supposed case there would arise a mere conflict of jurisdiction and not a conflict of laws, since the laws of the State of New York admit of divorces as well as those of Connecticut, and notwithstanding, it seems to have been a subject of serious doubt, whether a divorce in such case, when both parties had appeared, could be recognized by the courts in the State of New York, and on this point Story expresses no opinion. If, in addition to the conflict of jurisdiction, which in most cases may be covered by the coluntary submission of the parties to the tribunal seized with the contestation, there was a conflict of laws, as there is in the present case, there can be little doubt of what would have been the views of the author.

Westlake, in his work on Private International Law p. 215, No. 360, referring to the question of a divorce pronounced in a country where the parties are only transiently sojourned, says: "And, as the government of their domicile has the strongest interest in the morals of men, it is not probable that any country will recognize these foreign divorces of its resident subjects. They are certainly not recognized in England."

(e) Com. Code Civ., Vol. 1, p. 229.