In a recent English case (y), it appeared that A. B., the infant daughter of a British subject, who had emigrated to and had procured letters of naturalization in America, and who had married an American lady, whose real estate A. B. inherited, after an injunction had been granted by the Supreme Court of New York, to restrain the removal of the infant from that jurisdiction, and after the appointment by the Surrogate of New York of a maternal aunt as guardian, had been clandestinely removed from her residence and brought to England by paternal relatives, the English Court, on petition by

Guardianship among Real Statutes, and probably authorizes the doctrine of my text:

"Ce que caractérise véritablement un statut réel, et ce que le distingue essentiellement du statut personnel, n'est pas qu'il soit rélatif à certaines qualités personnelles, ou à certaines circonstances personnelles, ou à certaines événemens personnels, outrement il faudroit dire que tous les statuts qui concernent la puissance paternelle, le droit de garde, le droit de viduité, la prohibition aux conjoints de s'avantager l'un et l'autre, sont autant de statuts personnels, et cependant il n'est pas douteux dans notre jurisprudence, qu'on les considère tous, comme des statuts réels, dont l'exécution se règle non par la loi du lieu du domicile, mais par celle du lieu où les biens sont situés. Le veritable principe dans cette matière, est qu'il faut distinguer si le statut a directement les biens pour objet, ou leur affectation à certaines personnes, et leur conservation dans les familles, ensorte que ce ne soit pas l'interêt de la personne dont on examine les droits ou les dispositions, mais l'intérêt d'un autre dont il s'agit d'assurer la propriété ou les droits réels, qui ait donné lieu de faire la loi; ou si au contraire toute l'attention de le loi s'est portée vers la personne, pour décider en general de son habilité au de sa capacité générale et absolue, comme lorsqu'il s'agit des qualités de majeur, ou de mineur, de père, ou de fils légitime ou illégitime, d'habile ou inhabile à contracter pour des causes personnelles. Dans le premier cas le statut est réel; dans le second, il est personnel; c'est ce qui est assez bien expliqué dans ces mots de D'Argentré 'Cum statutum non simpliciter inhabilitat, sed ratione fundi aut juris realis alterum respicientis extra personas contrahentes, toties hanc inhabilitationem non egredi locum Statuti.' ”—D'Aguesseau, tom. iv. cited by Rocco, 26. (y) Dawson v. Joy (1854), Jurist, N. S. 39; S. C. 2 Smale and Grainger's Rep. 199.

the maternal aunt claiming the custody of the infant, and on cross petition by the paternal relatives praying the appointment of other guardians, appointed the maternal aunt and two paternal relatives guardians.

The order of the Surrogate of New York, it was said, appointing a guardian, will be recognized, and treated with the respect due, by the Comity of nations, to the order of the foreign Court; but it does not confer on the appointee the office of guardian in this country.

DLIV. Fourthly, as to the power of Guardians over immoveable property.

Upon this point the English Law is in accordance with the greatly preponderating opinion of foreign jurists (2), in holding that the lex rei sita is to govern, and that the guardian must obtain the sanction of the local authority to intermeddle with or in any way administer or deal with the immoveable property of the Ward.

Savigny (a) throws the weight of his great authority into the opposite scale. He denies that either with regard to principle or the general practice (meaning, it is presumed, of the German States), that the lex rei sita ought to govern the power of the Guardian. He maintains that the law is not a Real but a Personal Statute; that the whole Guardianship is one authority governed by one Law, that of the Domicil, and not parcelled out into as many laws as there are countries in which the property of the Ward may be situate.

DLV. The Prussian Law is in accordance with the opinion of this distinguished jurist. It is, indeed, admitted by Savigny that a great practical difficulty arises when the real property of the Ward is scattered over different territories; the solution which he proposes and which appears to have been adopted in Prussia, is that in these places ancillary or subordinate Curators or Guardians should be appointed under the

(*) Collected by Story.
(a) VIII. s. 380, numer. 2.

general superintendence of the one Guardian constituted according to the Law of the Paternal Domicil.

Such an arrangement is not altogether inconsistent with the principles of the Roman jurisprudence upon the same subject, which, when the property of the Ward was scattered and the Guardian was to be nominated, not by testament or by the written law, but by the living authority, appointed one for the res Italica and another for the res Provinciales.

DLVI. Prussia has entered into treaties with her immediate neighbours upon this subject to the effect that, generally speaking, the Law of the Domicil of the Ward shall govern the appointment of the Guardian; but that it shall be competent to the foreign authority to elect between appointing a separate or an ancillary Guardian for the real property of the ward subject to their jurisdiction.

DLVII. This system of appointing ancillary or subsidiary Guardians is, after all, very germane to the English practice respecting Foreign Administrations of personal property; and if the English Courts, as has been already suggested, follow the same rule respecting Foreign Guardians, the violation of Comity would be more in theory than in practice.

DLVIII. A case upon the conflict of the powers and rights of Guardians, decided by the Supreme Court of Berlin, is fit to be inserted in this place:

A Ward of good family lived in Bavaria, under guardianship. He possessed property in a part of Rhenish Prussia, to which no ancillary Guardian had been appointed. The Bavarian Guardian bought some property of his Ward in the ordinary way of purchase and not under the peculiar limitations and restrictions required by the French Code (b), which is the Law of Rhenish Prussia. The Ward having attained his majority, reclaimed the property, on the ground that the

(b) Savigny, Dig. 1. 26, t. 7, 39.

lb. 1. 26, t. 5, 27.

Code Civil, art. 457–460.

sale was illegal. The claim seems to have been rejected on two grounds:

1. That these limitations and restrictions were parts of one indivisible system of laws respecting guardianship; and it was clear that other parts of this system were ex necessitate rei inapplicable to the Bavarian Ward.

2. That under any view of the law these restrictions and limitations were, as a matter of fact, only applicable to parts of that property which was without the Bavarian dominions. (c)

DLIX. With respect to the obligation to undertake the office of Guardian, and the ligitimate excuses for declining it, these must depend upon the Law of the Domicil of the Ward; they are unknown to the English Law. So must the amount of the guarantee or security required by the State for the due execution of the office, e. g., whether that security shall be given upon property dehors the jurisdiction which imposes it. (d)

DLX. The question relating to the Guardian's power of changing the Domicil of his Ward has been already discussed. (e)

DLXI. There seems to be no reason why a different rule of practice should govern the case of the Guardian, or Committee, according to the phraseology of English Law, of the Lunatic.

The case of a conflict of laws upon this subject, even from its nature, but rarely occurs. Such a one did, however, take place not long ago in Paris. Mr. Dyce Sombre, who had been placed under the care of Guardians or keepers by the Lord Chancellor of England, to whom the constitution of that country confides the care of lunatics, escaped to Paris, and,

(c) Savigny, ib. Bassenheim v. Raffauf, 1847 (urtheil des Cassation shofes zu Berlin).

declaring himself to be sane, invoked the aid of the authorities there. He was claimed by the agent of the Committee appointed by the English Lord Chancellor; but the French authorities refused to give him up; tried the case over again at Paris, causing him to be inspected by French physicians, and, on their verdict of his sanity, allowed him to live in France without restraint. The English Court, of course, retained possession of his property. It is certainly difficult to defend this proceeding at Paris upon the principles of International Comity.

DLXII. In some countries in accordance with the provisions of Roman Jurisprudence, a Guardian is assigned to the Prodigal; the appointment of such a Guardian ought to be respected in other countries, though such an appointment might not be holden to affect the capacity of the Prodigal Ward to deal with immoveable property situate in a country to whose jurisprudence such a guardianship was

unknown.

The French Courts refused, in 1836, to give effect in France to the decrees (f) of the native tribunal which had placed the estates of the Duke of Brunswick under a curatorship, upon the double ground that, as far as the law was concerned, the sentence was not supported by the proofs of private prodigality required by French Law, and could not be applied to French property; and as far as public and political considerations

The title is

(f) Cf. Titre xi. c. ii. 489-92, of the French Code. "De l'interdiction," which Rogron explains thus: "L'Interdiction est l'état d'un individu déclaré incapable des actes de la vie civile, et privé par suite, de l'administration de sa personne et de ses biens."- Rogron, Code Napoléon expliqué, i. pp. 375, 489: "Le majeur qui est dans un état habituel d'imbecillité de demence ou de fureur, doit être interdit même lorsque cet état presente des intervalles lucides." It appears that le majeur includes le mineur-Rogron, i. p. 376; Sirey, 30, ii. 218, 492: "Toute demande en interdiction sera portée devant le tribunal de première instance." Le tribunal Rogron explains as that "du domicile de la personne dont on provoque l'interdiction," i. 378.