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Horsa, which had previously by arrangement gone 30 or 40 miles out to sea. Once on board, they distributed arms, were officered and drilled, and eventually disembarked to effect an armed landing on the Cuban coast. The Court held that the prisoners, being the captain and two mates of the Horsa, were guilty of providing or preparing the means for a military expedition or enterprise within the meaning of the U.S. Foreign Enlistment Act (Revised Statutes, sect. 5286) since providing or preparing the means of transportation for such an expedition is one of the forms of provision or preparation within the Statute. The question of a somewhat similar expedition to Cuba came before the Federal Court in the still more recent case of United States v. O'Brien, 75 F. 9oo. The Court dealt very exhaustively with the whole subject of violation of neutrality by foreign enlistment or equipping expeditions. With reference to the Statute above-mentioned, the conclusions laid down were very interesting and may be Summarized shortly as follows: (1) It being lawful for individuals to go abroad to enlist, they may go in any number, and in any way they see fit, by regular lines of steamers, by chartering a vessel, or in any other manner, either separately or associated, provided always, that they do not go as a military expedition, or set on foot, or begin within the jurisdiction a military expedition or enterprise to be carried on from the United States or provide or prepare the means therefor. (2) If the owner of a vessel provides and furnishes her knowing that she is to be used for the transportation to a foreign country of an organised body of men, intending to act together in a concerted military way, and with arms, he is guilty of a violation of the Statute. (3) It is no offence against the laws of the United States to transport to a foreign country arms, ammunition, and Inaterials of war, either alone or together, in the same ship with men who intend to enlist, provided they are not a part of or in aid of any military expedition or enterprise set on foot within the Jurisdiction. In such cases the persons transported and the shipper and transporter only run the risk of capture, and the seizure of such arms and munitions by the foreign power against which the arms are intended to be used.

(4) The fact that men intending to enlist and arms and munitions designed to be used against a foreign power are carried in the same ship and landed in such foreign country, and that the men there handle and carry the arms and munitions is not of itself absolutely conclusive of a military expedition, it being possible that the men intend to act merely as individuals and carriers of the arms. In such case the existence of a military expedition is one of fact for the jury.

The Cretan Blockade.

As we anticipated in our last issue, Crete has been rigidly excluded from the sphere of belligerent operations in the recent war. After the suspension of hostilities between Greece and Turkey owing to the mediation of the Great Powers, all vessels which had been seized for attempted breach of blockade were released,” and the Blockade itself has since ceased to be strictly enforced.t

*k * *
The Arbitration Treaty.

The Treaty, signed early in the present year, after being “amended ” by the Committee on Foreign Relations so as to be scarcely recognizable by its authors, was thrown out by the Senate on the 5th May last. Fortythree Senators voted for its ratification as “amended” and 26 against, the necessary two-thirds majority thus not being attained.

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* Times, 18th May, 1897. + Times, 20th July, 1897.


Foreign Bankruptcies.

The question of the ex-territorial effect of a foreign or colonial bankruptcy arose in In re Hayward, Hayward v. Hayward, 1897, I Ch. 905. Under an English will a testatrix left a life interest in a certain trust fund to her son, determinable upon his bankruptcy or upon his doing or suffering “something whereby the same or some part “thereof would . . . . if belonging absolutely to him, “become vested in or payable to some other person or “persons.”

The son was a domiciled Englishman, but was at the death of the testatrix temporarily resident in New Zealand, where shortly afterwards he was adjudicated bankrupt by an order of the Supreme Court of that colony. The bankruptcy was subsequently annulled, but the question arose as to whether it had caused a forfeiture of the life interest bequeathed by the will. Kekewich, J., following In Blithman, L.R. 16 Eq. 585, and distinguishing In re Davidson, L.R. 15 Eq. 383, and In Lawson's Trusts, 1896 (I Ch.) 175, held that as the colonial bankruptcy could only operate as an assignment of the debtor's ex-territorial property if the debtor was domiciled in New Zealand, it did not produce a forfeiture. The general principle indicated seems undoubtedly a sound one, and is in accordance with the decision of the Court of Appeal in In re Artola Hermanos, 24 Q.B.D. 640. Both Westlake ($134) and Dicey (Rule Io9) seem to regard the proposition as now settled beyond dispute.

* % $k Foreign Torts.

A moot point of some difficulty has at length been settled by the Court of Appeal in the recent case of Machado v. jones, 66 L.J. Ch. 542. The plaintiff sued the defendant for damages for an alleged libel published in Brazil. The defendant sought to amend his defence by pleading in effect

" ' ". . . . . .

that by Brazilian Law no action for damages would lie; or
even assuming that it would, that the only damages
recoverable would be special damages. The Court ordered
the plea to be struck out, on the ground that the mere fact
that a foreign tort is not actionable by the lex loci delicii
commissi is immaterial, provided that it can be shewn that
it was an act which was “not innocent” by the foreign law.
Lopes, L.J., said “the general principle is that in order
“that an action may be maintained in this country in
“respect of a tort committed outside the jurisdiction, the
“act complained of must be a wrongful act, both by the law
“of this country and by the law of the country where it was
“committed; but it is not necessary that it should be the
“subject of civil proceedings in the foreign country.”
Rigby, L.J., applying the rule to the present case, laid
down that “there is no doubt that an action for a libel
“published abroad is maintainable here unless it is shewn
“that the libel was justified or excused in the country where
“it is published.”
The Court followed the view apparently adopted by
Wightman, J., Willes, J., and Blackburn, J., in the case of
Scott v. Seymour, 1 H. & C. 219; of Willes, J., in Phillips
v. Eyre, L.R. 6 Q.B. 1 ; and of the Judges of the Court
of Appeal in the case of The Moxham, L.R. 1 P.D. 107, all
of whom appear, when referring to the foreign law, to have
advisedly used the terms “unjustifiable” and “wrongful”
instead of “actionable.” On the other hand Williams, J., in
Scott v. Seymour, and the present Master of the Rolls in the
case of the Chartered Bank of India v. Netherlands, &c., Co.,
Io Q.B.D. 521, seems to have taken a different view. In
the latter case (p. 536) Lord Esher refers to the “well-
“known rule that for any tort committed in a foreign
“country . . . . an action of tort cannot be maintained
“in this country unless the cause of action would be a cause
“of action in that country, and also would be a cause of


“action in this country.” Curiously enough this dictum does not appear to have been considered in the recent case, either in the arguments or judgments. It is to be observed that Professor Dicey (Conflict of Laws, p. 662) has construed the rule of law in the sense in which it has now been decided, though he says that “ logically this conclusion is “difficult to defend, and there is a good deal to be said in “favour of the view apparently maintained by Lord Esher “and Mr. Justice Williams.” $k £k

Power of Appointment by Will.

A curious question arose in the case of In re Bald ; Bald v. Bald, 66 L.J. Ch. 524; 76 L.T.R. 462. A testator, A., domiciled in Scotland, gave to B. an interest in the income of a settled fund, and also a general power of appointment over the corpus to the extent of £2,000. B. (presumably a domiciled Englishman, though this question was not actually decided), exercised this power by will and died insolvent. By Scotch law this appointment would not, as it would by English law, make the appointed property general assets for creditors. Byrne, J., held that “although the appointment was made by an Englishman and “by an English instrument, the law of Scotland” (i.e., of the domicile of the original donor of the power) “governed the “case, and the property would go according to Scotch law.”

The case is so shortly reported that the exact grounds of the decision are not quite apparent, but the conclusion arrived at seems not altogether satisfactory. If the power was effectually exercised at all (as seems to have been the case), the fund would appear to have become part of the donee's assets, the administration of which would ordinarily be a matter exclusively of English law—the lex fori. A fuller report might clear up the difficulty.

JOHN M. Gover.

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