petitioners, that the law of England is not opposed to them, and that our order should be accordingly." (m) The House of Lords, however, held, on appeal, that the double proof was not admissible, and affirmed the decision of the Court below. (n)

DCCLXXIX. The International effect of assignment under Bankruptcy Laws, is confined by the practice of states to moveable property. These laws therefore only transfer such immoveable property as lies within their jurisdiction. It follows that an assignee or curator, appointed by these Laws, cannot assume the possession or administration of immoveable property in a foreign state, unless his authority is enforced by the judicial tribunals of that State. (0) And yet Mr. Bell

(m) Ex-parte Goldsmid; In re Dean and Youle (1856), Law Journal, vol. 25 (N. S.), p. 25; S. C. The Jurist, vol. 2 (1856), p. 1106.

(n) Same Case (August, 1859), The Jurist, N. S., vol. 5, p. 1230. Referring to this decision the City Article in The Times (August 18, 1859,) observes, "It must, therefore, in future, be understood that a bill "of exchange drawn abroad upon any establishment in London connected by an identity of membership will, in the event of bankruptcy, involve a recourse as limited as if it were simply a promissory note. The result "will be to cause the bills of native firms abroad to be preferred to those "of English firms drawing upon their own connections. Indeed, this "has already been manifested, the Brazilian Government, upon whose "account the bills which formed the subject of the present trial were "purchased for remittance, having, it is said, since the question was "raised, ordered their financial agents to make no more purchases of paper drawn upon Europe by houses thus constituted."

All the English cases on the subject will be found referred to in this case- -but especially the cases of Ex-parte Moult, 1 Montagu's Rep. 321; and Ex-parte Hinton, 2 De Gex's Rep. 550-approved and affirmed.

A Joint English Commission of Bankruptcy has been holden not to be superseded on the ground of a previous separate Irish Commission. Ex-parte Cridland, 3 Vesey & Beame's Rep. 94.

(0) Gaill. 1. ii. obs. 130.

Voet, lib. xlii. t. vii. n. 2.

Voet, lib. xx. t. iv. n. 12.

P. Voet, de Stat. s. 9, c. ii. n. 18; s. 4, c. ii. n. 6.

1 Boullenois, 129, 150; cited 3 Burge, 921.

justly observes, that the spirit and policy of the Laws, considered internationally, should open to the creditors of bankrupts the power of attaching real estates.

The provisions of a recent English Insolvent Debtors Act, (p) vest in an assignee all the bankrupt's real and personal estate, "both within this realm and abroad;" in Scotland effect has been given to this provision. (q)

(p) 1 & 2 V. c. 110.

(q) 2 Bell (ed. Shaw), 1297, n. c.

CHAPTER XL.

OBLIGATION-DISCHARGE-UNDER WHAT LAW.

DCCLXXX. It is proposed in this chapter to consider the question

1. How an obligatio is discharged or becomes extinct.

2. By what Law the discharge or extinction is governed. The latter question is, of course, the one which is more properly the subject of this treatise; but the former is not an uninteresting question of general jurisprudence.

DCCLXXXI. And first as to the Roman Law, the basis of European jurisprudence: "Ut obligandi," Donellus says, "certi modi sunt jure constituti, ita et liberandi." (a)

An obligatio ceases to be binding (tollitur) in various ways. The following are said to be discharges of an obligatio ipso jure:

1. By actual payment of what was due-solutione. (b)

2. By a verbal acknowledgment in a particular form of words that payment has, though actually it has not, been received-acceptilatione. (c)

(a) Comm. de J. C. 1. xvi. c. 1-" De solutionibus et omnis generis "liberationibus." This is an admirable chapter, and deserves the most careful study.

(b) By whatever means the obligatio ceases, solvitur obligatio" is the proper technical expression.

3 Burge, ch. xxi. p. 781.

Rocco, p. 347, c. 8.

Savigny, R. R. V. s. 248.

Puchta Pand. s. 286-292.

(c) Dig. xlvi. t. iv.; xlviii. t. xi. s. 7.

At first only applied to debts contracted by stipulatio.

3. An obligatio contracted per es et libram, by which the debtor becomes nexus, might be dissolved by a similar symbolical process.

4. By being changed into another obligatio, for which the technical term was novatio. (d)

5. By the relations of obligor and obligee, or of debtor and creditor becoming united in one person, which is termed confusio.

DCCLXXXII. The following are said to be discharges of an obligatio-ope exceptionis or per exceptionem.

1. By a decision of a competent court of justice, res judicata, or ex causâ judicatâ. Indeed, strictly speaking, the obligatio, in its technical sense, ceased as soon as legal proceedings, litis contestatio, began; but the naturalis obligatio is not destroyed by the res judicata.

2. By a treaty (e) or agreement known to the civil (ƒ) and canon Law (g) by the term transactio, which is species pacti. Three conditions were necessary to found this mode of extinguishing an obligation: (h)

a. That the transactio should be de re dubia ac lite incertâ.

B. That something should be promised.

7. Or something done as an equivalent for the right waived. DCCLXXXIII. The modes of discharge or extinction, according to the English Law, vary in name, but scarcely in substance, from those of the Roman and Continental jurisprudence.

For instance, the direct fulfilment of the obligation, or the payment of the debt, is of course the solutio; its extinction

(d) Dig. 1. xlvi. t. ii.

(e) Called by the Germans vergleich: see Puchta Pandekt. s. 294: different from compromiss, which answers to our arbitration.

(f) Dig. ii. 15.

Cod. 1. ii. t. iv. De transactionibus.

(g) Devoti Instit. Canon. 1. iii. t. xviii. De pactis et transactionibus. (h) Cod. ib. 38.

or merger, (i) by the acceptance, on the part of the obligee, of another and higher security, (k) answers to the novatio; its extinction by the marriage of the obligor and obligee, or by the appointment of the obligor as executor, () answers to the confusio; the set off answers to the compensatio; the Statutes of Limitation answer to the præscriptio.

The same observations apply to the North American United. States, with the exception of Louisiana, which is governed by the Roman Law.

DCCLXXXIV. The Civil Law required for the discharge of certain conventions, that the transactio should be effected through the medium of the Aquiliana stipulatio. But these technicalities were disregarded by the Canon Law, which greatly favoured this mode of adjusting disputes:

"Sed canones," Devoti says, "non laborant de istâ nimis. "attenuatâ diligentiâ juris civilis et Aquilianâ etiam stipula“tione neglectâ, obligationes quoquo modo contractas trans"actione omnino perire volunt." (m)

DCCLXXXV. We have now to consider (II.) by what Law (n) the validity of the discharge or extinction of the obligation is governed. (0)

DCCLXXXVI. The general principle is thus enunciated by two distinguished jurists: "Ut ita," J. Voet says, "secundum

cujus loci jura implementum accipere debuit contractus "juxta ejus etiam leges resolvatur." (p) Burgundus lays

(i) Broom, Comm. on Common Law, p. 283, &c., as to merger.

(k) 3 Burge, 793.

(l) Ib. 798.

(m) Devoti, ib. s. vii.

(n) Rocco, c. viii.

11 Massé, s. 127, &e.

3 Burge, 874.

Story, s. 330, &c.

2 Bell, Comm. 1294 (ed. Shaw).

Westlake, s. 246.

(0) Vide ante, p.

(p) Lib. iv. t. i. n. 29.