1884 Also see Ancien Denizart, vo. "Autorisation," No. 16; STEVENS Rousseau de Lacombe, vo. "Mineur," No. 13; Merlin, Rép. vo. "Séparation de biens," sec. II., par. 5, No. 10 (Vol. 30, p. 402). FISK. From these authorities it is apparent that under the old French law as reproduced in Article 176, C.C.L.C., the appellant would not require any authorization to institute an action to obtain an account of her private fortune consisting entirely of moveable property as in the present case. And the jurisprudence of the Province of Quebec is uniform on this point. See Erickson v. Thomas (u), Desmarteau v. Perrault (v), Owens v. Laflamme(w). By the laws of the State of New York, which was the actual and intended domicile of the consorts at the time of the marriage, the appellant required no marital or judicial authorization to contract or to plead, but was in the position of a feme sole with regard to her private fortune. Even admitting that the husband's subsequent removal to Canada involved the change of his wife's domicile to such an extent as to prevent her from ever acquiring another than his-a point which will be discussed further on-still, the status and capacity which she acquired by her marriage followed her into this country. On this point the authorities are unanimous. See Rogers v. Rogers(x), Astill v. Hallée(y), Dalton v. King (z), Wiggins v. Morgan (a); 1 Laurent, pp. 133-5; Brocher, Cours de Droit International Privé (1882), vol. 1, pp. 296-6; Nouv. Code Sirey-sous l'art. 3, Nos. 41 et seq. Secondly: The appellant further contends that the want of authorization should have been pleaded by preliminary exception, and not by a plea to the merits: Antaya et vir v. Dorge et al. (b). Thirdly Even if the Court of Queen's Bench was right : in holding that the appellant required authorization, the action should not have been dismissed. It was quite competent for the court, as a court of equity, to authorize the appellant séance tenante, or at least to send back the record to the court of first instance in order that she might obtain the necessary authorization: 16 août 1810, Florence (D.A. 11 606); 1 oct. 1810, Bésancon (P. 1810, p. 601); 14 mars, 1828, Poitiers (P. 27-28, p. 1287); 21 nov., 1832, Cass. (S. V. 33.1.401); 17 janv., 1838, Cass. (S.V. 38.1.638); 16 janv., 1838, Rej. (S.V. 38.1.225); 11 août, 1840, Cass. (S. V. 40.1.858); 7 déc., 1840, Rheims (S.V. 41.2.423); 21 nov., 1843, Cass. (S.V. 44.1.235). Moreover, there are numerous instances of what the law terms "nullities," which are every day covered by amendment, e.g., the attestation and signature of writs, mistakes in the names, domicile or qualities of the parties to a suit, and omissions in the writ or declaration. See Arts. 46, 48, 49, 50 and 51 of the Code of Civil Procedure. They are absolute and fatal nullities if they are not rectified in time, but the court always has a discretionary power to allow amendments which have a retroactive effect. Fourthly: The divorce alleged in appellant's declaration is valid in the Province of Quebec, and that in any event its validity cannot be called in question by the respondent in the present suit. It will be observed that our courts are not asked to give execution to a foreign judgment, but only incidentally to recognize the status of the parties as established by a foreign decree. The action of the appellant is perfectly maintainable even if she be the wife of the respondent, and the only significance of the decree of divorce is as to the quality of the plaintiff in the suit, involving merely a question of procedure. Now the authors distinguish clearly between the recognition of a foreign judgment in such an incidental way, and giving executory effect to the decree of a foreign tribunal. Fœlix, Droit Int. Privé, (1866) vol. II., p. 117. In the next place, the respondent cannot in a proceed 1884 STEVENS v. FISK. 1884 ing like the present set up the invalidity of the divorce STEVENS after having appeared in the suit by his attorneys, without v. FISK. declining the jurisdiction of the Supreme Court of New York. Even supposing that such a submission to the jurisdiction did have the effect of estopping the respondent from urging any valid grounds of defence which he might have pleaded in New York, and so bringing up the merits of the case a second time, it will be noted that he does not allege a single objection to the decree of divorce except the fact that he was domiciled in the Province of Quebec when the proceedings were taken, and this ground of objection is covered by his appearance without protest, since the defect (if any existed) was merely ratione personae, and could be covered by voluntary submission to the tribunal. Zycklinski v. Zycklinski (c), Bond v. Bond (d), Callwell v. Callwell (e), Niboyet v. Niboyet (f). See opinion of Brett, C.J., referring to Callwell v. Callwell. Wilson v. Wilson (g), Kinnier v. Kinnier (h). See opinion of Church, C.J. (i) ;Wharton, Conflict of Laws, ch. 4, par. 238, sub-fin. (p. 332); Dicey on Domicil (1879), p. 233. The learned Chief Justice of the Court of Queen's Bench appears to say that this divorce was obtained in fraudem legis, and that a collusive appearance could not give jurisdiction to the foreign court. Appellant submits that there is nothing in the record affording any ground for a suspicion of fraud or collusion; the appellant instituted the action before those whom she considered her natural judges, and the appearance of the respondent without protest points to the same conviction on his part. But apart from the question of voluntary submission to the jurisdiction, the appellant contends that the Supreme Court of New York was competent to pronounce the decree of divorce in question. (c) 2 Sw. & Tr. 420. (f) 4 P.D. 1. (g) 2 P. & D. 435. (h) 53 Barb. 454, 58 Barb. 424. (i) Kinnier v. Kinnier, 45 N.Y. 53. 1884 FISK. There can be no doubt that in France the divorce in question would be recognized by the courts. There the jur- STEVENS isdiction in such matters is held to depend on the nationality or allegiance of the parties. I Laurent, p. 142, s. 99; Brother, Op. cit. p. 304; Calvo. Droit International, 2 ed., t. I., p. 366, par. 247. See the citation made by Cross, J., at pp. 41 and 42 of the printed case; Merlin, Rép., vo. "Divorce, re McMahon; Fœlix, Droit Int., Privé (1866), Vol. 1, p. 68, note (a); Cass. 28 fév., 1860, Bulkley v. le Maire du 7e Arrondissement de Paris (k) Cass. 15 juillet, 1878, Placquet v. le Maire de Lille (l), eod. sensu. The Italian authorities agree with the French in regarding nationality as the test of jurisdiction. See Fiore, Droit International Privé, trad. par P. Pradier-Fodérè (Paris, 1875), pp. 22 seq., par. 131, quoted in the opinion of Mr. Justice Cross, at p. 42 of the case. In England, in spite of numerous decisions rendered on this subject, the jurisprudence is far from settled. The old doctrine laid down in Lolley's Case (m), and followed in McCarthy v. De Caix (n), that an English marriage could not be dissolved by the decree of any foreign court, has in all recent decisions been entirely discarded. In the latest English case on the subject, Harvey v. Farnie (o), it was held that: "The English courts will recognize as valid the decision of a competent foreign Christian tribunal dissolving the marriage between a domiciled native in the country where such tribunal has jurisdiction, and an English woman, when the decree of divorce is not impeached by any species of collusion or fraud. And this, although the marriage may have been solemnized in England, and may have been dissolved for a cause which would not have been sufficient to obtain a divorce in England." Domicile is one of the grounds of jurisdiction, but it is certainly not the only one. English tribunals will take jur 1884 v. FISK. isdiction where the parties are (or even one of them is) of STEVENS English origin, and the complaining party is resident in England at the institution of the suit. Niboyet v. Niboyet (p). See also Brodie v. Brodie (q), where British origin and a residence in England, not amounting to domicile, was held to give jurisdiction. An English divorce court will also assume jurisdiction to dissolve an English marriage between British subjects on the petition of a wife who is resident merely in England, when the husband is, at the time of the proceedings, domiciled abroad, and when he has been personally served abroad with the citation, although he files no appearance: Deck v. Deck (r). See also Bond v. Bond(s), where the English divorce court took jurisdiction in a suit for the dissolution of an English marriage on the ground of adultery and cruelty against a foreigner, who was served abroad with the citation, but did not appear in the suit. Jurisdiction has been asserted in England ratione contractus to annul a marriage. "The parties," says Sir C. Creswell in Simonin v. Mallac(t), "by professing to enter into a contract in England, mutually gave to each other the right to have the force and effect of that contract determined by an English tribunal." See also Dolphin v. Robins (u), Tovey v. Lindsay (v), Pitt v. Pitt (w), LeSueur v. LeSueur (x), McQueen on Divorce (2 ed.), p. 251. Compare also the remarks of Phillimore, International Law (2 ed.), vol. IV., pp. 71 and 349. In the United States, the doctrine just stated and approved by English judges and text writers has become the settled jurisprudence of the courts. Cheever v. Wilson (y), Colvin v. Reed (z), Ditson v. Ditson (a). See also State v. (p) 4 P.D. 1. (u) 7 H.L. Cas. 390. (v) 1 Dow. 117. (y) 9 Wall. 108. (z) 5 Smith, Pa. Rep. 375. (a) 4 R.L. 87. |