1884 บ. FISK. Independent of any question of domicile, he having apSTEVENS peared and submitted to and not questioned the jurisdiction is bound by the decree and cannot now be allowed to affirm that the court had no jurisdiction to pronounce it and claim that the marriage dissolved in New York in a proceeding to which he was an unobjecting party and which he does not appear ever till now to have questioned, is subsisting in Quebec. Ritchie C.J. STRONG J.-In this case I am of the opinion that as regards the question on which there was a difference of opinion in the Court of Queen's Bench-that as to the validity of the divorce the court below were perfectly right. As regards the other question, one peculiar to French law that as to the plaintiff's right to institute and maintain this action without the authorization of justice-I of course speak with less confidence, but upon that the court below were unanimously against the plaintiff, and from the best consideration I have been able to give the point, I am of opinion that they were right in this also. The appeal should be dismissed. FOURNIER J.-This action was brought by the appellant as the divorced wife of the respondent in order to obtain from the latter an account of the personal fortune she brought him at her marriage and which she had given him to manage and administer. The parties were married in May, 1871, in the State of New York, where they had their domicile. In 1872 they both came to Canada with the intention of permanently fixing their residence in the city of Montreal, where, since that time, both parties have been domiciled (until 1876). The appellant then left her husband to return to the United States. The parties not having made any ante-nuptial contract they must be presumed to have intended to subject themselves to the general law of the State of New York, which declares that in such a case there is no community of property between the husband and wife and that the wife remains the absolute and exclusive owner of her property and continues to exercise her rights over the same as if she were a feme sole. It appears that at the time of her marriage the appellant had moveable property in her own right amounting to $220,775.74, which she received from her trustee on or about the 8th January, 1872, and that she thereupon placed this fortune in the hands of the respondent, who administered and controlled it until the 25th day of September, 1876, at which date, being dissatisfied with her husband's administration, she demanded the return of her securities and an account of his administration. Respondent returned her only a small portion of it, and refused to account for the balance, which he still withholds. In December, 1880, at the request of the appellant, the Supreme Court of New York decreed a divorce in her favour. Believing the marriage tie to have been dissolved, and that she had the control over her property as if she had never been married, she (the appellant) brought the present action without having previously obtained any authorization from a judge. To this action the respondent pleaded, first, by a demurrer which was overruled; secondly, by a plea to the merits, alleging that long before the divorce relied on by appellant, the parties had acquired a new domicile in the Province of Quebec, and therefore the divorce was null and void; and thirdly, that the plaintiff was not authorized to institute the present action. By a special answer to the respondent's plea, the appellant reiterated the allegation of the validity of the divorce obtained in the New York Supreme Court, and stated further that, even if the divorce were invalid, she would nevertheless have a right to demand from respondent an account of his gestion of her fortune, both under the law of New York and of the Province of Quebec. There are several important questions raised under this. 27-SUP. CT. CAS. 1885 STEVENS v. FISK. Fournier J. 1885 STEVENS v. FISK. Fournier J. issue, and which are submitted as follows in the appellant's factum : The appellant even if she be still the wife of the respondent can institute the present action without authorization. The want of authorization, even if fatal, has been badly pleaded. If authorization was necessary the court should not have dismissed the action, but should have authorized the wife séance tenante, or at least have sent back the record to the court below to enable plaintiff to get the necessary authorization. The divorce alleged in the declaration is good and valid and entitled to recognition in this province; and its pretended invalidity cannot in any event be set up by the respondent. If the first proposition propounded by the appellant is good in law, it is evident that for the purpose of determining this suit, it is not necessary to inquire into the other questions submitted. The first question, therefore, is: Could appellant under the circumstances bring the present action without any previous authorization, even supposing that the decree of the New York Supreme Court granting a divorce is not binding here? The majority of the Court of Queen's Bench have answered this question in the negative. The judgment of the Court of Queen's Bench is based upon the provisions contained in the articles of the Civil Code relating to the rights and status of persons commencing with the third paragraph of art 6, which enacts: the laws of Lower Canada relative to persons, apply to all persons being therein, even to those not domiciled there; subject as to the latter, to the exception mentioned at the end of the present article, and upon the fact that the parties having abandoned their domicile in New York, with the intention of fixing themselves in Montreal and acquiring a new domicile, the laws of the Province of Quebec must govern their status and capacity. The court also relied on articles 176 and 178 which forbid married women to appear in judicial proceedings without the husband or his authorization or that of a judge, as well as on article 183, which enacts that the want of authorization by the husband, where it is necessary, constitutes a cause of nullity which nothing can cover, etc., etc. And upon these articles, and the authorities cited by the learned judges in their opinions, they arrived at the conclusion that the present appellant had no right to bring the present action without having previously obtained the authorization of a judge. I do not intend to discuss the correctness of the propositions they laid down in order to arrive at the conclusion they did. I will be permitted, however, to say that I do not admit that they are applicable in the general and absolute form in which they are laid down in the judgment of the court. Then I am led to inquire if, without considering the general law as to the status and capacity of a foreigner in this province, there is not in his favour some exception or legislative provision which will dispense the appellant from the obligation of first obtaining the authorization of her husband or of the court in order to bring the present action. As already stated, the appellant was married under a system of law which recognizes to a married woman, married without any ante-nuptial contract, the absolute right of disposing of her property independently of all control by the husband. The law of the State of New York has been set up and proved in the most positive manner. The testimony of Sidney F. Shelbourne, a barrister of the State of New York, is so clear and precise on this important point that I will quote it at length. Q. Will you state to the court what is the law of the State of New York regarding proprietary rights of consorts who were married on the seventh of May eighteen hundred and seventy-one (1871)? A. The laws of the State of New York since the year eighteen hundred and forty-eight (1848) down to the present time, with reference to the separate property of the wife, which she has at the time of her marriage, have been that such property is entirely separ ate and free from the control of the husband; it does not enter into the community; she has absolute control over it, and the power to dispose of it and to alienate it without any control on the part of her husband. 1884 STEVENS v. FISK. Fournier J. 1885 STEVENS Q.-That is when there is no ante-nuptial contract? A. Yes; she is just as if she were a feme sole with regard v. to such property; there is no conjugal partnership. FISK. Fournier J. It is clear from this evidence that according to the law in the State of New York, the appellant, even during the continuance of her marriage, could without any authorization whatever, have instituted the present action in her own country, and that she would still have that right if her husband could be summoned within the jurisdiction of the State of New York. The fact being established that in the State of New York the appellant could have sued her husband without any previous authorization as she did in this case, there remains to consider the question whether, under such a state of facts, the laws of the Province of Quebec do not dispense the appellant with the necessity of first obtaining her husband's authorization before suing. I have not the slightest hesitation in stating that, in my opinion, this question must be answered in the affirmative, being clearly settled by the 3rd paragraph of art. 14 of the Code of Procedure, which declares that all foreign corporations or persons duly authorized under any foreign law to appear in judicial proceedings may do so before any court in Lower Canada. Now this article, based on chapter 91 of the Consolidated Statutes of Lower Canada, has given to strangers in a general way the same rights as are recognized and given to them by section 2 of the Con. Stats., of suing (ester en jugement) when they have that power or right in their own country. The section in the statute being more explicit and positive than the article of our code, I will quote it at length. Chapter 91 C.S.L.C., sec. 2: All joint stock or other companies or bodies politic or corporate, who have a legal capacity in the jurisdiction wherein they were respectively erected or recognized, and all persons on whom by any properly constituted authority or law (whether of the heretofore Province of Upper Canada, or of the Imperial Parliament of Great |