different position. The steppes of Russia, the deserts of China, the peaks of the Himalayas or the Andes, the Diridh More of Scotland-are certainly the objects of definite sovereignty, and lie wholly or in part within the limits of particular States.

How far, then, does the principle extend? How far are waste places, adjacent to national territory, the property of the nation, and how far are they open to a new-comer? The question will best be answered by looking at the position of the waste borderlands which divide settled. States. Sometimes these are very extensive; their position will at least afford some guidance to a coherent principle. Clearly, the policy of nations has been, not to regard these tracts as outside the limits of States, but to divide them between the coterminous Powers along the line of the watershed. So, in the Pyrenees, where the sovereignty of France ends, that of Spain begins. But would this be true if no surveyor had ever set up a frontier post there? Incontestably; the mere fact that a peak was inaccessible would not prevent the boundary from being regarded as traversing it. A particularly interesting controversy of this nature was decided in 1902, between Hungary and Austria. -the latter Power appearing as guardian or successor (whichever metaphor is preferred) of Poland. In the Western Carpathians, in the district known as the Tatra, there are various picturesque tarns, which have now become favourite tourist resorts. Raised high above the Hungarian plains, they are cool in summer; and in winter they provide the snow sports which are now in vogue. Their precise locality becomes important. It was determined in 1902 by an arbitral commission, which proceeded on a minute examination of the natural features of the district. The Penj-deh incident, which so nearly led to war with Russia in 1885, arose from a delimitation of a

similar nature. So far as the Polar question is one of frontier delimitation, Denmark, in virtue of Greenland, would appear to be entitled to the actual Pole, as having the nearest settlements to it.

But Mr. Hereshoff Bartlett suggests with force that there is and can be no frontier question. The Pole is covered by the Arctic Ocean. And though it may be a singular expression to speak of the Arctic Ocean as the common highway of nations, it is undoubted law at the present day, that a sea, however remote and unfrequented, is part of that highway. Nares, Osborne and others, seem to have coasted round the north of Canada: Nordenskiöld round that of Siberia. So that the probabilities, confirmed by the explorers' testimony, are that the Pole lies in water, and the Polar district-" is no man's land, because it is not land."

The main objection that occurs to one is this. If there is water at the Pole, it is certainly frozen water. Is it not as much capable of defined delimitation and occupation as land? Mr. Hereshoff Bartlett says the ice is floating: the liquid ocean is there, and there is merely a shifting surface of ice-floes and ice-bergs which, we may put it, are really no more susceptible of occupation than seaweed. They are, indeed, in constant eastward motion. That, if it be a fact, would go far to remove the difficulty. On the contrary supposition that the ice is fixed, it seems difficult to say that such a solid and firm mass is incapable of appropriation because it happens to have the sea under it. If it is permanent and capable of appropriation in fact, it seems unnecessary to hold it incapable of appropriation in law. Fortunately, the whole matter is of little practical moment.

Moulis v. Owen.

This note is headed as above, in order to connect it with the discussion of Moulis v. Owen in previous numbers of this

Magazine (Nov. 1906, p. 98; Aug. 1907, p. 468); but it is concerned with a more recent case-Saxby v. Fulton (L. R. [1909], 2 K. B. 2c8). In Moulis v. Owen (L. R. [1907], I K. B. 750), a bill of exchange was drawn by a domiciled Englishman in Algeria in favour of a domiciled Algerian. The consideration was money lent. In fact, the money was lent to pay gaming debts incurred in Algiers. Darling, J., held that even if the law applicable to the bill was the law of England, that law did not forbid foreign gaming. The bill was consequently held valid and enforceable. The Court of Appeal reversed this decision. It was held that the law of England was applicable, and that it did forbid foreign gaming. The law of England was held applicable as the lex loci solutionis; and on general principles there might be something to be said for that view. But it is strange that no reference was made to the Bills of Exchange Act, 1882, s. 72. According to that statute, the interpretation of the drawing of a bill "is determined by the law of the place where such contract is made," and not by the law of the place of payment. It may have been thought too obvious for argument that the nullification of a bill for illegality is in no sense an "interpretation" of it. Westlake seems to support the opposite. He deals with the legal effect of the contract of acceptance of a bill "on the supposition that in 'interpretation' it was intended to include 'obligation (Private International Law, s. 329). However that may be, the Court of Appeal passed by the section, and applied English law. So proceeding, they found themselves concluded by an old case of Robinson v. Bland ([1760], Burr. 1078; W. Bl., 234, 256). It has been pointed out in these columns that the resemblance of Moulis v. Owen to Robinson v. Bland is superficial. In the former case one party was a domiciled native of the country in which the bill was drawn in his favour. In the latter both parties were transient foreigners. In the one

999

there would have been no remedy on the bill by either competing law. In the other the plaintiff would have a remedy if his own law were applied. In Robinson v. Bland, Lord Mansfield expressed a dictum that the law decisive of the validity of a bill is the law of the place where it is payable. He followed up this dictum by saying that it was "unnecessary to consider" how far the law of the place. of drawing applied to the bill before the Court: which shows what slight weight is to be attached to the dictum. It was accepted as of conclusive weight by the Court of Appeal in Moulis v. Owen: and the then Master of the Rolls was led to cast reflections on the accuracy of the report in King v. Kemp ([1863], 8 L. T. 255), which treated the question as still open. The whole Court was apparently of opinion that the law of the place of payment governed the question, and that that law (the English) treated a bill as invalid, if given for gaming, wherever that gaming took place, from China to Peru. Moulton, L.J., dissented as to the latter proposition, but apparently not as to the former.

In Saxby v. Fulton, the Court had no opportunity of examining the interesting question as to the proper law applicable to a bill of exchange, for no bill was in question. It was a simple action for money lent, to which the defence was that the loan was for gaming purposes. Bray, J., affirmed by Williams, Buckley and Kennedy, L.JJ., held that a decision of Lord Lyndhurst (Quarrier v. Colston [1842], Ph. 147), was precisely in point, and was not affected by Moulis v. Owen. In that case Lord Lyndhurst decided that money lent abroad to pay gaming debts could be recovered. As he was sitting as an appellate judge from the judge of first instance in Chancery, his decision ought not to be disturbed. And indeed, there could be no reason for disturbing it, except on the high and transcendent ground of public policy over-riding all ordinary considerations

of comity. The loan of money abroad by A. to B. for whatever purpose made, must normally be a matter to be regulated by the law of the country where the transaction takes place. Once establish that the proper law of the loan is the law of Monaco, and it follows that, unless all comity is disregarded, the contract is free from all considerations of English law. "Even if that authority (Quarrier v. Colston) did not exist, it seems to me that the defendant could not succeed," says Lord Justice Kennedy (p. 234).

It is, of course, just possible to argue that in Saxby v. Fulton the proper law of the contract was English, because of the transient nature of the presence of the contractors in Monaco. Saxby and Brook (the latter being the defendant's testator), lived in England, but had for years been in the habit of travelling in company to Monte Carlo, in the Principality in question. The sum in dispute was large—some £4,000— and consisted of cash advanced when they were staying there. The Court appears to have taken judicial notice of the fact that gaming is lawful at Monte Carlo; and it refused to assume that the law of Monaco was the same with regard to gaming as the law of England. But it might have been possible to hold on principle that the general rule of lex loci contractus did not apply to a loan for personal expenses made by one travelling companion to another. Quarrier v. Colston stood in the way of this. We think it stood in the way beneficially: for the introduction of accidental exceptions to a broad rule is never to be encouraged. If Messrs. Saxby and Brook's contract was properly subject to English law, then every Court in Europe ought to have applied English law to it. The Monogasque Court ought. And thus we reach the position that two foreign visitors contracting in England might invoke the English Courts to compose their differences by French law. It is far simpler and more satisfactory to apply as the primâ facie rule in a case like this the law