text:
    Morris v. Remington.
    When a bill is filed praying for an injunction against a defendant for a nuisance affecting the plaintiff’s land in Montgomery county by the diversion of a watercourse, which consisted of a natural stream running through the farms both of defendant and plaintiff, the Court of Common Pleas sitting as a Court of Equity in Philadelphia has no jurisdiction, although the use of the water was regulated by contract between the parties, and process issuing from said Court had been served upon the defendant in Philadelphia.
    Proceedings in a Court of Chancery are, like proceedings in all other judicial tribunals, sometimes local and sometimes transitory.

    Where imprisonment of the person is the most proper means to effect that which is decreed to be done, viz. the payment of money, making a conveyance, or the like, then the jurisdiction is local. But where no obedience of the person or any act of his ean sufficiently execute such a decree, then the jurisdiction is not local.

    So the jurisdiction of a Court of Chancery can be sustained in a case of fraud, trust, or contract, wherever the person be found, although land not within the jurisdiction of the Court may be affected by the decree. Where, however, it is a clear question of title, and the property is not within the jurisdiction of the Court, there its jurisdiction cannot be sustained.
    To justify a Court of Chancery in exercising a jurisdiction in cases touching lands in foreign counties, the relief sought for must be of such a nature as the Court is capable of administering in the given case.
    A Court of Equity has not necessarily jurisdiction over a subject even of ordinary equity cognisance simply because the parties are within the forum. Although it may be generally true, that in equity, jurisdiction over the person draws with it jurisdiction of the causa litis, yet there are exceptions to this rule well defined,
    To give a complete remedy in case of a nuisance in a Court of Equity, it must include the restraint and prevention of a contemplated nuisance, the removal of such a nuisance when perpetrated, and compensation in damages for injuries resulting from such nuisances in such cases. Nor must restraint and removal fall short of doing entire justice to the party aggrieved.
    A Court of Chancery can order private nuisances to be abated, as well as restrain them from being erected. Hence it has been ruled that if a party by erecting a dam raises a stream of water above the natural level, so as materially to injure mills above on the same stream, a Court of Chancery will decree that the dam be lowered, and that the party erecting it pay all the damages occasioned by raising the water above its natural level. The damages will generally be ascertained by an issue at law, through the verdict of a jury.
    But for a Court of Equity to give this ample relief, the locus in quo must be within the absolute jurisdiction of that Court.

      Oct. 25.

    This was a bill in equity, filed by tbe plaintiff, Israel W. Morris, against Thomas P. Remington, setting forth that in the year 1747, John Hughes and John Evans were respectively seised of adjoining farms, then in Blockley and Lower Marion townships, Philadelphia county, hut now in Montgomery county, except that a part of the farm which then belonged to Hughes was still in Philadelphia county; that there was a creek or stream of water which ran through said farms, flowing from the farm of Evans into that of Hughes, describing its course. That upon the farm of Hughes there was erected a dam, by which the waters of said creek were collected in a pool, and drawn off into a race or ditch, then on said farm, for the purpose of irrigating his land, and for other purposes. That on the 21st of March, 1747, said Evans and Hughes entered into an arrangement, for a sufficient consideration, which was stated in the bill, for which the said John Evans granted and conveyed to the said Hughes, his heirs and assigns for ever, the free and unmolested liberty of extending the water-course of him, the said Hughes, so far into the land of said Evans, that the whole stream of the creek might be conveniently brought into that part of a race that was cut in the land of said Hughes, without damming the water out of its channel, and the free and unmolested liberty of eight feet on each side of the water-course, to pass and repass, either to cut, cleanse, or repair the ditch, or water-course, at any times thereafter for ever. And by the same agreement the said John Evans agreed to keep bridges over said race in such places where he had occasion commonly to cross it. The whole agreement and deeds were attached to the bill.
    It was also averred by the plaintiff, that, by divers good conveyances and assurances in the law, the title to said farm and water rights formerly belonging to said John Hughes, he was seised in fee of the same.
    It was also stated in the bill that up to the first day of May, 1849, for a period of more than fifty years, the plaintiff was in the free, unmolested, uninterrupted, and undisturbed enjoyment of the rights and privileges which he had acquired, and which were conveyed by the said deeds, which were and are of great value and importance to him. And that, for upwards of fifty years, himself and tenants had drawn the water from said creek, at a point within the land, formerly of said John Evans, well defined, and as well known and distinguishable on the ground as it was prior to the first day of May, 1849, as the point of junction between the channel of the creek, and the extended race and water-course, but under and in pursuance of the authority of the agreement aforesaid.

      The plaintiff also stated in his hill, that, during all the time of his occupancy of said premises, and long before, he and those under whom he claims had, in pursuance of the authority of said agreement, erected and maintained a dam or obstruction across the channel of said creek immediately below its junction with the extended race, so as to turn the whole stream of said creek into the ditch or race, but not of sufficient height to throw back the water of said creek out of its channel in such a way as to overflow the meadow above.
    It was then charged in the bill, that a short time prior to said 1st day of May, 1849, Remington, the said defendant, purchased the farm, formerly belonging to said John Evans, expressly subject to the rights and privileges in respect to the said water, granted to said John Hughes, his heirs and assigns, and recognised by the grantor to said defendant. That on or about the said 1st day of May, 1849, the said Remington, under the pretence of draining his meadow, and improving its appearance by his workmen, opened a new channel or passage for certain springs or waters which had hitherto contributed to supply said creek or stream, by which proceeding said defendant had diverted said springs or waters entirely from said creek or stream, consequently from the plaintiff’s race or ditch; and he was thereby deprived of an important addition to the water, which he was entitled to for the purpose of filling his race, and greatly to his injury.
    The bill also stated that the water in time of freshets came down said race or channel so as to fill it; that by plaintiff, in conjunction with the owners, logs were placed by the complainant in the bank of said race at' a particular point, and at the creek, so that it was always kept about the same height with the dam. That the defendant, not regarding the rights of property of the plaintiff under said deeds, had filled up the channel of said creek below the original point of junction, and made a new and artificial channel of said creek, and had also taken away the log by which the evidence of the water level was preserved, and at one point reduced the height of said race, so that the whole of the water flowing down said race at that point is intercepted, and diverted into the new channel cut by the defendant, so that no water whatever runs or flows in the plaintiff’s race or ditch below that point which is on the defendant’s farm, by means whereof the complainant is entirely deprived of the use of said water. And the plaintiff further averred in his bill that the said water has been always heretofore used by him for the purpose of irrigating his meadow, and was and is of great value and importance to him. It was also stated in the bill that the plaintiff had remonstrated against the acts of the defendant in all these particulars, and against his diverting of the water from the race and ditch, as being unjust and illegal. The hill then contained numerous interrogatories for the defendant to answer, and also prayed for an injunction against the defendant from further filling up the old channel of said creek, or further proceeding in the alteration of the course and fall of the water in said stream ; also that he he enjoined to replace the waste log, and raise the level of the waste hack to its original height; at the point of intersection, so that the water might he placed in the race of the plaintiff in its accustomed manner. And that the defendant should be enjoined to restore the said creek or stream, and race or ditch, to their former relative position and condition, so that the water of said creek or stream may flow into the said ditch or race, in the same quantity and with the same force that it had been accustomed to do. And that the defendant he required to reconnect with said creek and race the said springs so diverted from the channel of said creek, above the original junction of said race and said stream. There was also a prayer for general relief.
    Process was served upon the defendant in the county of Philadelphia. He appeared, and by his counsel pleaded that the whole of his land referred to in the bill of the complainant, and the stream of water thereon, and the subject of controversy in the cause, were wholly within the county of Montgomery, and not within the county of Philadelphia. And that the said complainant and defendant did at the time of the filing of the said hill reside in the county of Montgomery.
    The cause was argued by T. I. Wharton for the plaintiff, and St. Geo. T. Campbell for the defendant.
    Mr. Wharton contended the Court had jurisdiction not only of the parties, but of the subject-matter; and cited 6 W. & S. 552; Copel v. Jones, 2 Eden, 182-4; 1 Yesey, 44 ; B Vesey, 410 ; 2 Story’s Eq. 443-4, 879, 1291; 6 Cranch, 128; 2 Paige, 404; 6 Simon, 504; 2 Eden, 100 ; 2 Jacob & Walker, 515 ; 5 Madd. Rep. 298; 6 Wharton, 397; 2 Barr, 160; 3 Mylue & Keen, 104; 2 Story, 743, 744, 897.
    Mr. Campbell contended that suits in Chancery, like actions at law, are sometimes local and sometimes transitory. They may be to be local whenever from the cause of complaint it becomes necessary for the decree to act upon the thing, as in cases of partition, or dower; but transitory when the decree maybe enforced in personam: cited 4 Monroe, 486; Austin v. Bradley, 1 J. J. Marshall, 256; 5 Madd. 307, 89; 8 Gill & John. 505.
   The opinion of the Court was delivered by

King, President. —

The question raised on this record is, whether this Court sitting in equity has jurisdiction in a bill filed by the plaintiff, complaining against the defendant for setting up and maintaining, in Montgomery county, a nuisance affecting the plaintiff’s land in that county. The nuisance complained of consists in the diversion of a natural stream, flowing through the lands of the defendant and the plaintiff, and which the latter claims the right to make use of for the purposes of irrigation, in virtue of certain agreements entered into between the former owners of the contiguous farms, now owned and occupied by the litigant parties. Territorial jurisdiction over the locus in quo, we have none; the supposed bases of our jurisdiction resting on the fact that process has been served on the defendant in this county; and that, as equity always acts in personam the locality o.f the tort complained of is immaterial. Broad as is the language of the text-writers, and even of the Courts, in regard to this position that equity, having possession of the person of the wrong-doer, acts without regard to the local origin ©f the tort, it is nevertheless true that proceedings in chancery are like proceedings in all ether judicial tribunals; sometimes local and sometimes transitory: dower and partition, for instance, are among the admitted jurisdictions of the former kind. The case of Cartwright v. Petrus, 2 Chan. Ca. 214, 1 Eq. Ca. Abr. 133, decided as early as 27th Charles 2, shows this. There one of two joint tenants of lands which lay in Ireland filed his bill in the English Equity for an account of the profits, and for a partition of the land. The bill was entertained as to the profits, which were personalty, but not as to the parktion, which was in the realty; for, says the Court, a commission to malee partition cannot be awarded into Ireland. The best report of this case is found in a note to Kennedy v. The Earl of Casselles, 2 Swanst. 342, and which is extracted from Lord Nottingham’s manuscripts. In commenting on the cases in which jurisdiction is entertained in equity over extraterrial torts, this great Judge says, that “all this is to be understood of such eases where imprisonment of the person is the most proper means to effect that which is decreed to be done, viz. the payment of money, malting a conveyance, and the like. But where no obedience of the person, or any act of his, can sufficiently execute such a decree, there it is in vain to hold such a plea, and thus in this case; for to a partition in chancery it is necessary to award a commission to some neighbouring justices to divide the land; if they refuse, there lies attachment against them for such refusal; if they execute the commission and return it, then there ought to he a decree that the lands be accordingly conveyed, and that till a conveyance they may be so enjoyed; the consequence thereof is a sequestration, and an injunction for the possession, and a writ of assistance to the sheriff, none of all which can he awarded into Ireland, nor he supplied by the obedience of the person imprisoned here.” Robordeau v. Rous, 1 Atkyns, 543, was a bill brought for the delivery of the possession of a moiety of lands in St. Christopher’s, and likewise for an account of rents and profits. The defendant demurred to the first part of the bill, “ for that this Court had no jurisdiction of lands in St. Christopher’s.” “As to the first part of the demurrer,” said Lord Hard-wicke, I apprehend it is very right, because this Court has no jurisdiction so as to put persons into possession, in a place where they have their own modes on such occasions, to which the party may have recourse ; the present bill, therefore, is can-ying the jurisdiction further than it ever was before.” He then refers to a case of Angus v. Angus, decided in 1736, 1 West’s Rep. 533, Story’s Equity, § 1296, where he had assorted the jurisdiction so far as respects fraud and discovery, although the lands lay in Scotland.

The question of the extent and limitation of equity jurisdiction, has also met the attention of American jurists; and we have, among others, the views of perhaps the greatest of American Judges, I mean the late Chief Justice Marshall, as expressed in the case of Massie v. Watts, 6 Cranch, 148. That was a bill filed in Kentucky by a citizen of Virginia against a citizen of Kentucky, to compel the conveyance of lands in Ohio, to the former, of which the latter had obtained the legal title, with knowledge of the plaintiff’s equitable title. The Chief Justice, in delivering the opinion of the Court, after reviewing some of the more prominent English authorities on this point, sums up the result thus. “ The jurisdiction of a Court of Chancery is sustainable in a ease of fraud, trust, or contract, wherever the person be found, although lands not within the jurisdiction of the Court may be affected by the decree. The. inquiry therefore will be whether this he an unmixed question of title, or a case oí fraud, trust, or contract.”

A glance at the English decisions will show that they all range themselves under one or other of these categories. The case most frequently .cited in this connexion, is that of Penn v. Lord Baltimore, 1 Vesey, Sr. 444, which was a hill brought to compel the specific execution of a contract, respecting the boundary lines between Pennsylvania and Maryland. The case of the Earl of Athol v. The Earl of Derby, 1 Chan. Ca. 221, was instituted to compel the performance of a contract respecting the Isle of Man, which was enforced by the English Chancery, although the Isle was without the realm. The case of Archer v. Preston, cited by Lord Nottingham in Arglasse v. Muschamp, 1 Vern. 77, arose on a contract for land in Ireland. These cases all range under the first category, viz. cases arising under the head of specific performance of contracts between the parties to the record: Arglasse v. Muschamp, 1 Vern. 77, was a case springing out of the grant of a rent charge on lands in Ireland, fraudulently obtained in England. Lord Nottingham treated the denial of his jurisdiction with great indignation, and subjected the defendant to costs for attempting to oust the Court of its jurisdiction; and this, simply because the plaintiff came into Court to be relieved against a fraud, practised upon him, within its admitted jurisdiction. Under this head may be classed Cranstown v. Johnson, 3 Vesey, Jr. 182; Jackson v. Petrie, 10 Vesey, 164; White v. Hall, 12 Vesey, 323, and some others.

The case of the Earl of Kildare v. Sir Maurice Eustace and Fitzgerald, arose on a trust of lands in Ireland, the trustees living in England. All the English cases, including as well those in which the jurisdiction has been exercised as those in which it has been repudiated, fully justify Chief Justice Marshall in saying, “ That it is where the defendant in the original action is liable to the plaintiff either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of males fides practised on the plaintiff, that the principles of equity give a court jurisdiction wherever the person may be found; and the circumstance that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest the jurisdiction Massie v. Watts, 6 Cranch, 158. In a cause, however, involving a naked question of title, he admits the jurisdiction could not be sustained.

Commenting on this important doctrine, Judge Story, a lawyer whose fault was certainly not timidity in asserting equity or civil law jurisdiction, observes, that “ it must be borne in mind that the doctrine is not without limitation and qualifications; and that to justify the exercise of jurisdiction in cases touching lands in foreign countries, the relief sought for must be of such a nature as the Gourt is capable of administering in the given case.” He adds, after citing Cartwright v. Petrus, to the reasoning of Lord Nottingham, this remark: “Perhaps a more general reason might be given, founded upon the principles of international law; and that real estate cannot he transferred, or partitioned, or charged, except according to the laws of the country where it is situated.” It may he here aptly remarked that in reference to local actions respecting lands in Montgomery county, this Court has no more jurisdiction than if they were in the county of Middlesex, in England.

The authorities quoted seem to us very clearly to demonstrate the proposition that a Court of Equity has not necessarily jurisdiction over a subject, even of ordinary equity cognisance, simply because the parties are within the forum; but that though it may be generally true that in equity, jurisdiction over the person draws with it jurisdiction of the causa litis, yet has this rule exceptions as well defined as the rule itself.

What then is the nature of the case before the Court ? and is it contained within the general rules, or embraced within the exceptions ? Eor this is the single and simple question for solution.

At the old common law, and before chancery had made its modern strides towards general civil jurisdiction, the remedy for a party suffering under the wrongs complained of in this bill, would have been an assize of nuisance: Viner’s Abr. tit. Nuisance, (E), vol. 16; Ibid. (G), (H), pl. 20, 27, et seq. The modern remedy for such a tort is an action on the case: 4 Dall. Anon. 47; Dyer, 248, B.; Archbold N. P. vol. 1, p. 421, tit. Nuisance. But both assize and action on the case are local actions, and must be brought in the county where the land lies: Warren v. Webb, 1 Taunt. 379; Mersey Nav. Comp. v. Douglass, 2 East, 497; Beerly v. Shaw, 6 East, 208; 16 Viner’s Abr. tit. Nuisance, (X), pl. 14.

The superior promptness of, and vigour in the action of equity, has given rise to the modern procedure in that Court by bill. The jurisdiction, in cases like the present, is fully established by a series of decisions, both in England and in this country: Robertson v. Lord Byron, 1 Bro. C. Rep. 588; Lane v. Newdington, 10 Vesey, 193; Gardner v. The Village of Newbery, 2 Johnson’s Chancery Cases, 272; Belknap v. Belknap, Ib. 463; Hammond v. Fuller, 1 Paige, 197; Arthur v. Case, Ib. 497. The manner in which this jurisdiction is exercised in equity is material to be considered in examining -whether this jurisdiction is local or transitory; for, if things are required to be done in order to effect complete justice in such a case, -which a local Court of Equity has no power to execute, then, according to Lord Nottingham’s and Lord Hardwicke’s standards of jurisdiction, the given case is not embraced by the legitimate jurisdiction of the Court.

The remedies in equity, in cases of private nuisances, to be co-extensive with the wrong, must have a triple aspect. They must include the restraint and prevention of a contemplated nuisance; the removal of such a nuisance when perpetrated before the action of the Court has been invoked; and compensation in damages for injuries resulting from such nuisances, in cases where restraint and removal falls short of doing entire justice to the party aggrieved. And to this extent fully, has the action of Courts of Equity gone, in cases of private nuisances. To stop short of this, would be an admission of a want of power in the Court to give a perfect remedy to its suitor. Thus Robinson v. Lord Byron was a case in which the defendant on the filing of the bill, and before answer, was enjoined against using dams, wears, and other erections, in any other way than they had been used before the time when the aggression complained of commenced. Lane v. Newdington was also the case of an injunction awarded before answer, in which, although Lord Eldon doubted of his right to order restoration before hearing, of part of the works destroyed by the defendant, yet he so framed the injunction as to create the necessity of such restoration, in order to a perfect compliance therewith. In the more modern case of Rankin v. Hankinson, 4 Simons, 18, the Vice-Chancellor, Sir Launcelot Shadwell, adopted the same course in an analogous case; and the same Judge, in Spencer v. The London and Birmingham Railway Company, 8 Simons, 193, reasserted the same principle. So much for the preventive jurisdiction.

In Van Bergen v. Van Bergen, 2 John. C. Rep. 272, Chancellor Kent held that chancery can order private nuisances to be abated, as well as restrain them from being erected. East India Company v. Vincent, 2 Atkyns, 83, is a case in which Lord Hardwick actually made such an order; and in Ryder v. Bentham, 1 Vesey, Sr. 544, the same great Chancellor reasserted this authority in the Court which he had previously exercised in East India Company v. Vincent.

Finally, in Hammond v. Fuller, 1 Paige, 197, it is ruled that if a party by erecting a dam raises a stream of water above its natural level, so as to materially injure mills above on the same stream, a Court of Chancery will decree that the dam be lowered, and that the party erecting it pay all the damages occasioned by raising the water above its natural level. The mode resorted to by the Court, to inform itself as to the amount of the complainant’s damages, was the awarding an issue at law for their ascertainment through the verdict of a jury.

These authorities then demonstrate, that the relief that might he demanded of us by the plaintiff, assuming that he could sustain his bill on the merits, is a perpetual injunction against any further disturbance of the stream ; a decree to restore the water-course to its condition as it existed before the injury complained of; and, if necessary, the prostration of any w'orks which interfere with that result; and, if requisite to entire justice, the awarding of an issue at law, for the ascertainment of any damages he may have sustained by the unlawful acts complained of.

In none of the cases cited, and in none that can be found in the reports of equity decisions, has relief analogous to this been extended, where the locus in quo did not lie within the absolute jurisdiction of the Court. In cases arising in England proper, such a question could indeed be rarely agitated, because the jurisdiction of the English Chancery is co-extensive with that kingdom. But though we find cases of fraud, trust, and contract originating, and connected with land situate in Scotland, Ireland, and the colonies, yet nowhere do we see it even hinted that equity could or would exercise, elsewhere than in England proper, the peculiar jurisdiction of chancery in trespass or nuisance. If the plaintiff’s argument is sound, English equity is competent to adjudge on the proper use or abuse of land in the four quarters of the globe, provided the parties interested in it happen to find themselves within the jurisdiction of the English Chancellor; and this without regard to the fact whether the lands are within the British dominions or otherwise. Extravagast as may seem this proposition, it follows from the assimilation of the jurisdiction of equity, in questions of fraud and discovery respecting lands, with questions of trespass or nuisance perpetrated thereon. Eor we have the authority of Lord ITardwicke for saying that on questions of fraud and discovery, If the land lay in France, and the persons resident there, the Court has jurisdiction, because as respects fraud, the jurisdiction is over the conscience of the party Angus v. Angus, 1 West. Rep. 28, cited in Story’s Equity Juris. § 1296. This certainly is carrying the principle of u ampliare jurisdietionem” quite far enough. And this seems to have been the sentiment of Judge Story when in his Conflict of Laws, §544, he declares that the doctrines of the English chancery under this head are carried to an extent which may in some cases not find a warrant in the general principles of international public law.

In Cartwright v. Petrus, Lord Nottingham has furnished us the reason why, as to such a case as the present, chancery will not exercise extra-territorial jurisdiction. It is because it lacks the powers to carry its decrees into full effect. If the Court has the, authority to decree the abatement of a nuisance, it has the power to carry its decree into execution; for a Court that orders that to be done which it cannot enforce, is in danger of finding its dignity sadly compromised. By the writ of assistance, or some process analogous to it, the Court must carry into actual execution its decree for the abatement of nuisance: 1 Smith’s Practice, 448; 1 Daniell, 723-4; Hopkins, 442; 8 Paige, 33; 2 Anstruth. 603. Now in Cartwright v. Petrus, 2 Swanston, 324-5, Lord Nottingham distinctly says that neither “ a sequestration and injunction for possession, nor a writ of assistance, can be issued into Ireland;” and hence denied his jurisdiction in partition of lands lying there, because of his want of means to carry a decree for that purpose into effect. If such embarrassments are found in the way of an English' Chancellor, exercising his great and plenary jurisdiction, what is the position of a County Court of Common Pleas, under like circumstances ? Can we send a writ of assistance into another county, directing the sheriff of that county to prostrate this alleged nuisance, if entertaining the bill, we should on the merits adjudge it to be such ? Can we award an issue into the county where the nuisance exists, in order to inform ourselves what are the damages the defendant has sustained by its perpetration and continuance ; for, in the proper county where the jury could have a view, can such an issue only be properly tried ? The difficulties which would beset us at every step, must make us pause and ponder before we enter such a path, even was it freely open to us. But this is shown not to be the case, if we have succeeded in establishing that, the present is not one of the eases over which chancery assumes jurisdiction simply from finding the alleged wrong-doer within its jurisdiction. It is not a case arising from fraud or trust, nor does it arise from contract within the sense that term is employed by Courts of Equity in defining their jurisdiction over such subjects. The contracts which give equity jurisdiction are express contracts, inter partes ; not moral and legal obligations, such as those which bind one man to leave another in the undisturbed enjoyment of easements of land in a foreign jurisdiction, charged on the land of the former, in the same country, particularly where such easements have not been erected by the defendant, but are charges on his land, created by former proprietors. Interference with such easements by such an owner of the servient estate is a tort, and it is on that footing that this bill seeks for the relief that equity gives against this class of tort-feasors. But although the complainant exhibits a ease for-relief, he exhibits it to an incompetent forum. It is to the Courts of Montgomery county that he must apply, at law or in equity, according as their jurisdiction will embrace his case, and give him the relief he desires. At law this jurisdiction would clearly be local, and so is the remedy which equity affords concurrently with law.

In the judgment of the Court, the demurrer for want of jurisdiction must be sustained, and the bill dismissed.


source: Caselaw Access Project

author: KiNG, President. —

license: Public Domain

text:
    Estate of Frederick Kohne, deceased.
    The phrases arrive at twenty-one years, and arrive at full aye, are synonymous, and convey to the mind identically the same idea, on any question arising among our own citizens. Such being the law, the consequence is that the period for division is when the youngest arrives at the age of twenty-one years.
    A minor actually domiciled in a foreign country, and who is by the law of that country legally incapable of executing any instrument having any legal value there, cannot execute therein such an instrument legally efficacious on his personal property in this Commonwealth.
    With but few exceptions, a person who has attained his age of majority by the laws of his native domicile, is to be deemed everywhere of the same; on the other hand, a person who is in his minority by the laws of his native domicile, is to be deemed everywhere in the same state and condition.
    This is the rule as to personal property. Seeus as to land. This is regulated by the laws of its situs.

    The acts of a person done in the place of his domicile in regard to property situated therein, which are to bo judged of by the laws of this place, will not be permitted to have any legal effect elsewhere, other than what they have at the place of the domicile.
    Personal property always follows the situs of the owner. Contracts are to be performed according to the laws of the place where they are made. When a minor has not reached the age of majority in the country where she is domiciled, she cannot execute a power of attorney to do acts in a state, or country, where by the laws of that state a minor obtains her majority at an earlier age.

      Jan. 13.
    This was a petition presented in the Orphans’ Court by Frederick Fontain, Wilhelm Fontain, Albertine Marie Louise Fontain, and Henrietta Catherina Fontain, by their attorney in fact, John C. Lang.
    It set forth that one Frederick Kohne, late of the city of Philadelphia, in his lifetime, to wit, on the 28th day of April, A. D. 1829, made his last will and testament, and on the 26fch day of May following departed this life, leaving said will unrevoked, and that the same was afterwards duly proved before the Register of Wills, &c., for said city and county, to whom jurisdiction belonged; and that Eliza Kohne, John Bohlen, Robert Vaux, and Robert Maxwell, the executors therein named, were duly qualified, and took upon themselves the burthen of the execution thereof. That among the bequests in said will, the testator made the following, viz. “I give and bequeath unto my nephew, Moritz William Fon-tain, residing at Rheda, in Westphalia, in Germany, the interest of all my Ohio six per cent. Canal Loan, accruing for, and during all, the term of his life, to be paid to him when and as the same shall be received by my executors, excepting thereout the annual sum of three thousand dollars thereof, yearly and every year until tbe youngest child living of my said nephew shall arrive at the age of twenty-one years; which annual sums shall, with all accumulations of interest arising from that source, be yearly invested in the purchase of the like stocks, or in some of the public, stocks or funds of the United States, or the state of Pennsylvania, or any other state or states of the United States, or of the city of Philadelphia, bearing an interest, as they my said executors in their discretion may see fit; which annual sums, and all accumulations thereof, I direct, shall on the youngest child living of my said nephew arriving at full age, be equally divided to and amongst the children of my said nephew then living, and the issue of such of them as may then he dead, in equal parts; such issue to he entitled equally among themselves to such part and share only as their deceased parents could have taken if living.” That, after the probate of said will, said executors proceeded to execute the trust declared in the above-recited provision thereof. That the said Moritz William Fontain had, at the time of the testator’s decease, five children, viz. Frederick Fontain, Wilhelm Fontain, Albertine Marie Louise Fontain, and Henrietta Catherina Fontain, who are parties to this petition, and Arnold Fontain, who died without having been married, on the 28th day of January, 1841; the other four are yet living, and are parties to this petition, the daughters not having married; the said Moritz William Fontain has had no other children, and your petitioners, the said Frederick, Wilhelm^ Albertine Marie Louise, and Henrietta Catherina, answer the description by which the beneficiaries, among whom the said three thousand dollars, and the accretions thereof, are to be divided, are designated in said above-recited provisions of said will. And your petitioners further state, that the said Henrietta Catherina Fontain, who is the youngest child of the said Moritz William Fontain, attained the age of twenty-one years on the eleventh day of January, in the year one thousand eight hundred and forty-nine, and that therefore the said fund and its accumulations became on that day distributable among the said four children of the said Moritz William Fontain, who are parties to this petition, according to the directions of the said will; and your petitioners, in corroboration and proof of the facts above stated in regard to the family of the said Moritz William Fontain, hereto annex a schedule of properly authenticated certificates, marked A., which they make part and parcel of this their petition. And it was further averred in the petition that John Bohlen, one of the above-named executors of said will of Frederick Kohne, Eliza Kohne, the executrix, being absent from the state, and' the other said executors named in the will being deceased, filed an account on the 2d day of March, 1849, in the office of the Register of Wills for said city and county, being an account of the annual sum of three thousand dollars, directed by the will of said Frederick Kohne to be taken out of his bequest to his nephew, Moritz William Fontain, of the interest on his Ohio six per cent, loan, yearly and every year, until the youngest child of his said nephew shall arrive at the age of twenty-one years, and to be invested with all accumulation of interest arising from that source, &c. The petition stated that this account had been duly confirmed by the Orphans’ Court of said county, and that the balance on hand for distribution, on the 2d day oP March, 1849, was eighty-nine thousand three hundred and seventy-seven dollars, and twenty-eight cents. A reference was made to the account, and prayed a decree that the surviving executors should pay over to the petitioners in equal amounts the sum thus stated in said account.
    To the petition thus presented, Eliza Kohne and John Bohlen, the surviving executors, filed an answer, in which they admitted all the facts set forth in said petition, as to the age of the parties, their description, and right to take the legacy, the filing of said account, and the amount in their hands for distribution, and, in short, every fact averred therein; but concluded the answer with this submission: “ that the respondents cannot gainsay the prayer of said petition except by submitting to your honourable Court certain facts, and asking the judgment of the Court, whether they present any obstruction to the granting of the prayer of said petition, and praying the direction of the Court, and the protection of its decree as to the course they should pursue.” It was then stated, that Albertine Marie Louise Fontain and Henrietta Fontain are domiciled in the kingdom of Prussia, and that by the laws of that kingdom the disability of nonage, or infancy, does not terminate until the subject of such disability shall have completed the twenty-fourth year of his or her age, and that neither the said Albertine Marie Louise Fontain, nor the said Henrietta Oatherina Fontain, has attained the age of twenty-four years. To this answer was submitted two judicial acts bearing upon the question, which had been entered into or obtained by the said Moritz William Fontain, and which were evinced by certificates annexed and made part of the answer. It was also stated that no refunding bond would be required, as the estate was sufficient. The judicial acts exhibited were as follows

      “ At the request of Moritz Wilhelm Fontain, of this town, gentleman living on his rents, it is hereby certified and attested that, according to the common law of the Prussian estates, Pars II. tit. 2, §§ 168, 156, 154, the father enjoys the usufruct, and is the administrator of property owing to his children as long as they live under his paternal authority. And it is further certified that the aforesaid prescription of law is also concerning every property of the children which they acquire by inheritance, legacies, or otherwise, provided always that the testator did not expressly make the clause that the father shall not have or enjoy the usufruct of such legacy.” Then followed the attestation:—

      “ Be it known, that, at the request of Moritz Wilhelm Fontain, Esq., the father of Miss Albertine Marie Louise Fontain, born at Rheda., on the 9th of April, 1826, the said Miss Albertine Marie Louise Fontain, by these presents is legally pronounced to be of full age, the said request being previously carefully examined according to the jurisprudence of the common law of Prussia, Pars II. tit. 18, § 715, and granting thereon this certificate, it is further attested that this pronunciation to be of full age, is of the same validity in law, as if she, in fact, had attained the real a,ge of majority.”
    A copy of the power of attorney was attached to the petition.
    It was argued by Mr. F. Subbell, for the petitioners,
    that as to the shares of Frederick and Wilhelm there could be no question, but that they are entitled to receive their shares; they are both sui juris by the laws, as well of Pennsylvania as of their respective domiciles. That a doubt had been suggested on the construction of the will as to the time when the principal and accumulations of the legacy became payable to the legatees, whether when the youngest child became twenty-one, or when she shall become twenty-four years of age. It is not conceded on the part of the petitioners that there is the slightest ambiguity on this point. The will is the will of a citizen of the United States, the property which is its subject is wholly within the United States, and it is written in the English language. Were the language of the will not too plain for doubt, these circumstances of his situation would lead to the conclusion that the words “ arriving at full age” referred to that event as defined by the law of Pennsylvania. But the context makes this construction irresistible, as he directs that the fund shall accumulate “ until the youngest child living of my said nephew shall arrive at the age of twenty-one years.” It is true, in designating the period of distribution, he alters his language, and declares that it shall be “on the youngest child living of my said nephew arriving at full age.” Why did he select the age of twenty-one years for the limit of the period of accumulation ? Obviously for no other reason than because that was the age of legal majority by the terms of the code under which he lived. We may assume that the shares of the two sons were distributable when the youngest child arrived at twenty-one. As to the share of the eldest daughter, it is equally clear.
    The question of the disability to distribute after the youngest child had arrived at twenty-one years of age, lay not in the restrictions of the will, hut in the personal status of the distributee. This personal status of the eldest daughter by the laws of Pennsylvania, is that of majority, and also by the laws of Prussia; by the act of emancipation which her father performed, she has attained her majority there.
    The only difficulty presented by the case, is in regard to the share of Henrietta, who has not arrived at the age of twenty-four years, which is the legal majority at the place of her domicile, and has not been emancipated by any act of her father. If the youngest daughter be not entitled to this money by the laws of the United States, the income of it is the father’s from the time she attained twenty-one until she arrived at the age of twenty-four. This, then, is an important question: Will the executors be justified in paying it to her under her power of attorney ? We maintain they will.
    When Henrietta gives a power of attorney, as she has done in this instance, to a person residing in Philadelphia, to collect a debt due to her by a person residing in Pennsylvania, she contracts with the person owing the debt that the payment to the agent shall be a full acquittance of her demand. She then, by giving this power of attorney, makes a contract to be performed or executed in the United States. The law of the United States is then the lex loci contractus aut actus, and governs as to the ability or disability, and establishes the present status of the parties to the contract. Nothing is better settled than this; particularly as concerns the disability of minority.
    Hub. Praalecter. tom. p. 589: “Contracts are performed according to the laws of the place where the contract was made, &c. — and that law is to be affirmed whether it pertains to the form or substance of the contract.”
    Grrotius, b. 2, c. 4, § 2, p. 244, in treating on the ages of majority, and promises made by minors, says: “ Civil laws, for very good reasons, pronounce some promises made by minors to be void, &c., but these effects belong to the civil law, and have nothing in common with the law of nature and nations; therefore, if a foreigner contract with a citizen, he will be held by those laws (i. e. of the place of contract), because he who contracts in any place is subjected to the laws of that place, as if a temporary subject.”
    He also cited Male v. Roberts, 3 Esp. 163; 1 Yesey, 298: 2 Kent Comm. ed. 1848, 458; Story’s Conf. of Laws, § 103; Andrews v. Pond, 13 Peters, 65; Allshouse v. Ramsey, 6 Whart. R. 331.
    It was also contended, as the will was made in Pennsylvania, the testator resided there, and its construction is to be governed by the lex loci contractus aut actus. This law defines the period of majority to be twenty-one years of age. What is to give it another meaning? The legatees, it will be said, resided in a foreign country; that is true, but there is no direction in the will that it should be remitted to them there. On the contrary, the will recommends that his nephew should change his domicile by coming to the United States to reside. A foreign guardian would not be admitted to any rights in this state: Story’s Conf. of Laws, ch. 13; Act 29 March, 1832, Purd. 885. But the father claims an estate in the property of his daughter; the usufruct from the time she was twenty-one years of age until she attains twenty-four. This is a material modification of the bequest, and, if permitted, made by the law of the legatee’s domicile.
    Mr. M’Oall, for the executors,
    said their only object was to claim ample protection. That Henrietta Catherina Eontain, the youngest child, was but twenty'years of age; that by the law of her domicile, of origin and residence, she will not be of full age until the 11th of January, 1852. Until that period, the law of her domicile declares her to be a minor, and incapable of making a valid contract. It gives to her father, while she lives under his authority, the usufruct of her property and the administration of her estate. Hence the question arises, can distribution now be made of the accumulated fund or any part of it ?
    It is contended that upon a proper construction of the will of Mr. Kohne, no distribution, either general or partial, can be made until the youngest child shall arrive at full age, according to the laws of her domicile. It is clear the testator had in view but one distribution of the accumulated fund. If, therefore, it is suspended as to the youngest child, it is as to all the children.
    If the fund is now distributed, the result is that the portion of Henrietta must go, not into her hands, but into the hands of her father. Did Mr. Kohne mean this ? We think not. The division is directed to be made to and amongst the children. Mr. Kohne therefore intended that the youngest child should not receive her portion of the accumulated fund, any more than the corpus of the canal loan, until that child should he capable of full dominion over the property. He fixes the period of emancipation as the period of distribution. By full age, he means the age which the law has fixed for the exercise of full rights of ownership.
    But what law — the law of Pennsylvania or the law of Prussia ? I answer, the law of her domicile, whatever that might be. The deceased knew of the domicile of the children; he knew the funds would be remitted there; it is presumable he was conversant with the laws of Prussia, and that a child did not attain full age at twenty-one.
    The laws of Pennsylvania, and the law of the domicile of the claimant, are in conflict. Which is to govern ? An important and novel question, novel in our jurisprudence, is thus presented.
    The question here is not whether the Courts of Pennsylvania will enforce a contract made in Pennsylvania, by a citizen of this state, with a Prussian minor, in ignorance of the law of Prussia, which fixes the age of majority at twenty-four years. No domestic rights are involved, calling for protection. No contract has been made by a Prussian minor with one of our citizens, which policy and justice combine to enforce. It is simply a question of time for the payment of a legacy. The petitioners are all foreigners, all domiciled abroad. By the law of their own domicile, the youngest of them is not of full age. They claim distribution though she is not. That their law should govern the question of the personal status of the youngest child, is the principle laid down by the most eminent jurists and writers on the conflict of laws.
    • D’Argentre, one of the most celebrated writers that have treated these questions, so lays down the principle. Bodenburgh, who was a Judge of the Supreme Court at Utrecht, in the middle of the seventeenth century, concludes, that an inhabitant of Holland, minor by the laws of that province, but major by the laws of Utrecht, cannot make a valid contract at Utrecht.
    Stackmans, of Brabant, who was Professor in the University of Louvain, and afterwards a Judge of the Supreme Court of Brabant, bolds equally strong language with his contemporary Rodenburgh: Story, § 51, a. Boullenors, the most celebrated writer on these subjects whom the last century produced, lays down the rule in these broad terms: When the personal statute of a person’s domicile is in apposition with the personal statute of the place where his property is situate, the personal statute of the domicile will prevail: Liver-more, p. 57. The learned Froland, too, lays down the doctrine that a personal statute not only exerts its authority in the place of the domicile of the party, but its provisions follow the party and accompany his person in every place where he goes to contract: Story, 51, a. Archerlin, Pothier, and the modern lawyers, lay down the rule in the broadest manner: Story’s Conf. of Laws, eh. 4, on the capacity of persons.
    The case which has the strongest affinity to the present of any that I have seen, is Barrera v. Alpuente, 18 Martens’ Louis. Rep. 69. The rule, say the Court, is, that the laws of the domicile of origin govern the state and condition of the minor, into whatever country he removes. In this case it must be observed that the laws of the domicile or origin were regarded as governing the question of majority.
    It is submitted, therefore, that the personal status of Henrietta Fontain must be decided by the law of her domicile, and not by our laws.
    The authority of Judge Story, § 108, Conf. of Laws, is cited on the other side, for the position that in questions of minority or majority, the lex loci contractus aut actus is to govern. But a reference to the previous sections of this work, upon which this general summary is based, has relation to foreign minors when contracts are made by them.
    Mr. Subbell, in reply.
    The general law is freely admitted that the lex domicilii is to govern as to the personal status of a party; but is with this broad exception, that, where a contract is made by a party, in a country other than his domicile, his personal abilities and disabilities are to be governed by the lex loci contractus aut actus. This exception is not founded, as the opposite argument supposes, upon any fraud in the infant, or other subject of disability, but upon the broad ground of general policy, independent of any particular consideration of special circumstances.
    With respect to the case cited from 18 Martens’ Rep. 69, in the argument for the executors, Judge Story says of it, Conflict of Laws, § 77 : “ But the decision may perhaps be thought to rest on its own peculiar circumstances.” The case now under consideration presents an entirely different question from that decided in 18 Martens’ Rep. That acts and contracts are to be governed by the lex loci contractus aut actus, and not of the domicile, has been repeatedly decided by the same Court: 17 Martens’ Rep. 596 ; 11 lb. 464; 16 lb. 192.
    The term contract is not to be received in a restricted sense, but includes all the subordinate parts that enter into its composition; and when a power of attorney is given, empowering an attorney to enter into contracts in a foreign country, that power of attorney forms part of the contracts made in pursuance of it.
   The opinion of the Court was delivered by

KiNG, President. —

The testator, Frederick Kohne, was for many years a citizen of Pennsylvania and an inhabitant of Philadelphia, where he executed his last will on the 28th of April, 1829, and where he subsequently died. Among the legacies in this will is found the following : [Here his honour read the bequest as contained in the report.] Moritz Fontain, at the time of the testator’s death, had five children, one of whom is since deceased intestate, unmarried, and without issue. The surviving children are Frederick, now of the age of thirty years, Wilhelm, of the age of twenty-seven years, Albertine Marie Louise, of the age of twenty-three years, and Henrietta Catherina, of the age of twenty-one years and upwards. These four persons have all united in a power constituting John C. Lang, of this city, their attorney in fact, to demand and receive their legacies, and it has been at his instance that the proceeding has been brought before this Court.

If the case was without further complication, it would be one of the extremest simplicity, and the decree of distribution prayed for would follow of course. But a difficulty is supposed to present itself, because these legatees are subjects of the kingdom of Prussia, and at this time actually domiciled therein ; and because, by the laws of that kingdom, the minority of a child continues until he or she may arrive at the age of twenty-four years; the usufruct of the child’s property, and the administration of its estate, remaining in the interval with the father. No dispute exists either as to the fact of the petitioner’s domicile, or as to the Prussian law, in relation to the time when a child becomes emancipated from the paternal authority; nor as to the interest a father possesses, under that law, in the estate of his minor child.

The first question for adjudication is one involving the construetion of this bequest, viz. whether the fund bequeathed is distributable when the youngest child of Moritz Fontain has actually attained the age of twenty-one years, or whether such distribution is to be postponed until such youngest child shall have arrived at full age, according to the law of its legal and actual domicile, which in this instance is the age of twenty-four years.

The complainants, who ask immediate distribution, found their claims on what seems to them the intention of the testator, as expressed on the face of his will. And certainly, if we confine ourselves to the instrument, the position taken by the complainants seems the necessary one. The source from which the legacies bequeathed these complainants come, is the sum of three thousand dollars, directed to be annually set apart and invested, with all accumulations thereof, until the youngest child of the testator’s nephew “ shall arrive at twenty-one years.” Which annual sums and accumulations are to be equally divided among the children of his nephew living, when the youngest thereof shall “ arrive at full age.” The phrases “ arrive at twenty-one years” and “ arrive at full age” are synonymous, and would convey to the mind identically the same idea in any question in which our tribunal were acting on our own citizens; and they must always be so considered, at least primé facia, when found in such an instrument as the present, executed by one of our own citizens, within our own territory, and operating on property exclusively within our own jurisdiction. The theory of the opposite argument is, that the testator having been a native of Prussia, must have been conversant with the laws of that kingdom, and therefore meant to use the phrase “full age,” not in its Pennsylvania meaning, the age of twenty-one years, but in its Prussian sense, the age of twenty-four years; especially in regard to his Prussian legatees. But this theory rests solely on one fact, to wit, that Mr. Kohne was by birth a Prussian. To this fact two assumptions have been associated, viz. that Mr. Kohne was conversant with the Prussian law, and that he had that law in contemplation, in employing the phrase “ of full age ” in his will. Now it happens that the wars of the French revolution, and the final overthrow of the Napoleon dynasty, had, since his departure from Westphalia, more than once changed the government of his native country, and altered its civil code. If, therefore, this question is to be solved by the doctrine of probabilities, the weight of the argument seems to be more in favour of the idea, that in using these words, he had in view their value in the country of his adoption, where his fortune was realized, and towards which he manifested his affection, by magnificent donations to her public charities: rather then their meaning in a country from which he had permanently separated himself, and with whose existing laws and institutions he had no further connexion. But independent of this sort of speculative reasoning, the face of the will shows that he had in his mind the . Pennsylvania notion of full age exclusively. He directs the accumulating fund to continue only until the youngest child of his nephew should reach the age of twenty-one years ; the annual appropriation of $3000 then stops. No provision is made for further increase of the fund, either by the addition of new capital or by the accumulation of the interest arising from the then existing fund. This is exactly the state of things we should expect to see, on the arrival of the period at which the testator intended the division of his bequest to take place. If he had had in contemplation, that three years should elapse, after his youngest grand niece had arrived at twenty-one, before she should receive her own proportion, and before her elder brothers and sisters should receive theirs, would not such an eccentric intention have been distinctly expressed? Would not some provision have been made, directing the disposition of the accruing interest during that time, either for the immediate benefit of the legatees, or for adding it to the general fund? On t'he contrary, wherever accumulation of interest is spoken of in the bequest, it is spoken of in connexion with the annual additions made to the capital; manifesting, most clearly, that the two were inseparably associated in the mind of the testator, and that when the addition of new capital by the annual appropriation of $8000, should cease, he intended that the accretions from accumulating interest were alike to terminate, and the aggregate fund divided among his legatees. In all such inquiries as the present, we are solely in pursuit of the intention of the testator; that alone is the point to be arrived at. To accomplish this result, we are to search for such intention in all the parts of a bequest. To dwell on isolated phrases, without considering them in all their connexions is, of all other courses, the one most likely to divert the mind from that enlarged and philosophical manner of discussing such questions which is the only one calculated to bring us to their true solution. It is from such a process of reasoning that we are brought to the conclusion that the testator in this bequest has used the phrases “twenty-one years,” and “full age,” as pure synonymes, and that of consequence, the period for the division of this fund among the legatees has arrived. This conclusion disposes of the case as respects the portions of Frederick, Wilhelm, and Albertine, the two former having actually reached twenty-four years of age, and the latter being now sui juris by virtue of an action of emancipation, executed by her father according to the Prussian law.

The remaining point for adjudication, is, whether the power of attorney, under which Mr. Lang claims to represent Henrietta Catherina Fontain is an instrument, executed by a party legally competent to make it. It is admitted that she is a Prussian subject, actually domiciled in that kingdom, and that, by the laws of her domicile, she is still under a state of tutellage, and legally incapable of executing such an instrument, if intended to operate there. What then is her status in reference to the question of her legal capacity to execute such an instrument in Prussia, intended to operate on PERSONAL estate in this commonwealth ?

There are few subjects, arising under the conflict of laws, which have produced more elaborate discussion than laws regulating the capacity, state, and condition of persons. The whole subject has been very fully discussed by Judge Story, in his learned Treatise on the Conflict of Laws, where the studious inquirer will find ample materials to enable him to pursue his investigations of it. We, however, will confine our consideration to the precise question before the Court, which is, whether a minor, actually domiciled in a foreign country, and who, by the laws of that country, is legally incapable of executing any instrument having any legal value there, can execute therein such an instrument legally efficacious on his personal property in this commonwealth. Or, to state the question in another form, whether we will regard the laws of foreign countries, regulating the relations of minority and majority, in cases in which a foreign minor, who still retains his foreign domicile, presents himself as a party in our courts to obtain the recovery of personal property in this commonwealth. The continental authorities on the subject are very fully considered and discussed by Judge Story, who sums them up by stating that, with but few exceptions, they agree in this position: That a person who has attained his age of majority by the laws of his native domicile is to be deemed everywhere of the same; and on the other hand, that a person who is in his minority, by the laws of his native domicile, is to be deemed everywhere in the same state and condition. Thus, for example, if, by the laws of the place of his original domicile, a person cannot make a will of his property before he is twenty-one years; he cannot, if under that age, make a valid will, even of such property as is situate in a place where the laws allow persons of fourteen years to make a will of the like property:” §52. It may be appropriately remarked that the learned author is here considering cases of the capacity or incapacity of persons arising from the domicile of origin, and where there has been no subsequent change of domicile§ 55. And so far as this doctrine has been applied to acts of minors, executed in their native domicile, which they have never changed, and acting exclusively on personal property, it has met with general favour. When sought to be applied in reference to lands, which are properly regulated by the laws of the situs, it is not received. The rule being “ that no personal statute extends to lands situate elsewhere.” Non tamen statutem personate ssepe regulariter ex-tendet ad bona immobilia alibi sita. In reference to the case before the Court, and the application thereto of those principles, it is important to be borne in mind that the act here impeached as invalid is a power of attorney, executed by a minor in her native country, and where she is now actually domiciled, authorizing an attorney, so constituted by her, to receive her personal inheritance in this country ; and that her right to do so is disputed by the executors of the will under which she claims the inheritance, in consequence of an intervention by her father, claiming as well the administration as the usufruct of the estate under the laws of her native and actual domicile. And finally, that the estate is all personal, which, as well by our laws as by those of her country, follows the situs of the owner.

This state of things brings the case apparently within the first of the categories of Judge Story, in which he recapitulates the continental doctrines best established. That is to say, “ acts of a person done in the place of his domicile, in regard to property situate therein, which are to be judged of by the laws of this place, and which will not be permitted to have any legal effect elsewhere than they have at that place.” In point of actual fact, it is true that the minor’s property in this instance is within our actual jurisdiction; but as personal property always follows the situs of the owner, this fact does not vary the proposition. The case then seems brought within the narrowest limits which any jurist who has admitted the doctrine of the extraterrial force of personal statutes has ever desired to restrain it. And to this extent it is part of the law of Pennsylvania, because it is part of the jus gentium, which forms a part of our code. To this extent I also understand the doctrine as conceded by the learned counsel for Henrietta Catherina Fontain. But his concession is accompanied by the assertion of an exception to the rule, broad enough, as he supposes, to cover his case. He asserts that when Henrietta Catherina Fontain gave a power of attorney to Mr. Lang to collect this debt due to her by a person residing in Pennsylvania, she contracted with the person owing the debt, that the payment to the agent should be a full acquittance of her demand. That this contract is to be executed in Pennsylvania, and that the law of Pennsylvania is the “ lex loci contractus aut actus,” and governs as to the ability or disability, and establishes the personal status of the parties to the contract. That contracts are to be performed according to the laws of the place where they are made, is an axiom of universal legal truth. “ Locus contractus reget actum,” is alike the rule of law and reason.

But the second branch of the doctrine contended for, to wit, that a contract made by an admitted minor in his domicile, where it is a nullity, to be executed in another country, where he would not be considered as a minor, may be enforced in the latter, is a question by no means so clear. It is directly at variance with the second proposition which Judge Story deduces from a comparison of the opinions of foreign jurists, and which he asserts to be, that the personal capacity or incapacity attached to a party by the law of the place of his domicile is deemed to exist in every country, so long as his domicile remains unchanged, even in relation to transactions in any foreign country where they might be otherwise obligatory (§ 65.

If this doctrine is disputable, as it is supposed to be in the argument, it is not actually necessary to be decided in order to the determination of this case. And this, because the power of attorney executed by Henrietta Fontain is in no respect a contract with the executors of Frederick Kohne. "What is a contract, in the general sense of the term ? Tt is a mutual agreement made between two or more parties. It is express where the terms of the agreement are expressed by the parties themselves. It is implied from the reason and justice of a particular transaction, and which, therefore, the law presumes that every man undertakes to perform. In this case, no such express contract as that asserted, exists. The executors of Mr. Kohne have, on the contrary, refused to negotiate with Henrietta Fontain, because they regard her as incapable of making any binding engagement. Had they admitted her competency, and paid her legacy to her attorney, the argument founded on the idea of a contract might have had some colour. Express contract, then, there is none. An implied contract is necessarily founded on a present, perfect, and absolute right, which reason and justice requires should be enforced in favour of the party possessing it, against him who refuses to do him justice. But we have said that no such present, perfect, and absolute right exists in Henrietta, by reason of her minority.

Hence the substratum on which an implied contract could only be founded, fails, and the superstructure falls with the removal of the foundation. The subtlety of this argument is apparent from its operation on the principle we have heretofore asserted. We have said, that according to our laws, in common with those of the civilized world, questions of minority and majority, in all controversies respecting personal estate, are to be determined according to the laws of the country in which the alleged minor has his actual domicile, whether natural or acquired. If, after announcing this principle, as an actual rule of our jurisprudence, we should say that such a minor is competent to execute in his own domicile a power of attorney, legally adequate to operate on his personalty here, we nullify our own rule for every practical purpose, making it a barren abstraction, and inefficacious. We at one breath declare the same party capable and incapable, and by a simple change in the mode of procedure, we recognise a legal capacity which we have before repudiated; a system of jurisprudence which would result in such inconsistencies, could scarcely claim with justice the proud title of the perfection of human reason, which jurisconsults claim for their elevated science.

In the final conclusion we have thus arrived at, we have in part differed, and in part concurred, with both the parties litigant. We agree with the complainants, that the legacies of Mr. Kohne to the children of Moritz Fontain are all immediately payable, and we accordingly decree such payment to Frederick, Wilhelm, and Alber-tine. But we also agree with the respondents, that Henrietta not having reached full age, according to the laws of her native and actual domicile, labours under a personal incapacity, which disqualifies her from suing in this Court as a person sui juris. As the proceedings, as respects her, are still open for further directions, an application on her behalf may be hereafter made. Perhaps her father may see proper to execute in her favour a similar act of emancipation to that which gives her elder sister a standing in Court. If that is not done, an application may be made to the Court, either to order the transmission of her estate to her legal guardian or tutor, in Prussia, or, perhaps, to constitute one here, who may receive and retain, or transmit it under our directions. Our action in these respects has not been asked; and therefore it seems best to leave any direct expression of opinion in.regard thereto, until such action is solicited.


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    Hudson v. Barrett.
    A Court of Equity will entertain a bill for an account filed by one partner against his associate, where the bill does not contemplate a dissolution of the partnership, and a final winding-up of the affairs of the association. Such is the law as applicable to the commercial relations existing in Pennsylvania.
    Where a bill avers the existence of the partnership, it is not necessary to state the circumstances attending the continuance of it, after the first lease of the premises where the partnership was carried on had expired. It is not necessary now for the plaintiff to aver in his bill an offer to pay the balance, if found against him, on a bill for an account.
    Where, by the terms of the articles of partnership, the acting partner is bound to render to the plaintiff an account monthly, and pay over his share of the profits, it is not necessary to aver a demand of such account in the bill.

      Jan. 19.
    This was a bill in equity, filed by John Hudson against Thomas H. Barrett, alleging that, on the 30th day of June, 1845, the parties had entered into articles of co-partnership, for the purpose of carrying on the business of a gymnasium ; that they entered upon and carried on the business pursuant to said agreement, and had ever since continued the same, and that it still continues; that the said Barrett had been in the habit of receiving all sums of money on the partnership account, and that he had not entered all such partnership transactions in the books of the firm, hut had only entered a part of the same, and had kept the plaintiff in ignorance in regard to many of the same. That notwithstanding the provisions in articles of partnership, that the account should be duly stated, and one-half of the net profits of said business paid over to the plaintiff each and every month, yet the said defendant had not stated and made up the partnership account, nor paid over to the plaintiff one-half of the net profits of said partnership, since the 1st day of April, 1848, to the filing of the hill.
    It was also charged, that, although it was provided in the articles of partnership that the said Barrett would take the care and management of the business, and devote his care, labour, and diligence in the superintendence thereof, yet, without consulting the plaintiff, he had at various times since the formation of the partnership been engaged in the management, care, and superintendence of another or like business at Cape May, in the state of New Jersey, from which it was believed he had derived large profits, without accounting therefor to the plaintiff, and to the great neglect and injury of the business of the firm at Philadelphia.
    It was insisted in the bill, that said Barrett ought to account for all the partnership dealings since the 1st day of April, 1848, unto the time of filing the bill, and also for all the business carried on at Cape May. And it was charged that, upon a settlement of the accounts, there was a considerable balance due from said Barrett to the plaintiff, in respect to their partnership dealings.
    The bill prayed for an account of all the partnership dealings and transactions, also of the profits and of the moneys received, the plaintiff averring his willingness to account for all his acts in relation thereto. There was also a prayer for a decree that the money be paid on taking the account of whatever might be found due, and a prayer for general relief.
    To this bill there was a general demurrer, and causes added for the same.
    The case was argued on bill and demurrer, by Bleight for plaintiff, and M Intyre for the defendant.
    It was argued in support of the demurrer, that the bill simply prayed an account, but did not ask for a dissolution of the partnership, and therefore the Court would not entertain the suit. And cited Wallworth v. Holt, 4 Mylne & Craig, 691-630 ; Story’s Equity, §§665-6 ; 2 Yes. & B. 329; 4 Sim. 8; 4 Madd. 143; 2 Mylne & Keen, 68; 4 Bus-sell, 562.
    It was also contended that the bill did not aver that the plaintiff had demanded the payment of the profits or an account.
    It was argued by the plaintiff’s counsel that it was not necessary that the bill should pray for a dissolution of the partnership; that the plaintiff was entitled to an account monthly, while the association existed, and to the payment over of one-half of the profits; and cited Story’s Equity, 6T1; Chitty Grenl. Prac. 851; Richards v. Davis, 2 Bussell & Mylne, 34T; 4 Mylne & Craig, 620, 640; Eq. Drafts, 320.
    And it was further contended, that, inasmuch as the defendant was the active partner, and was bound by the articles of partnership to render an account monthly and pay over the one-half of the profits, no demand for an account was required before filing the bill. That it was the duty of the defendant to have rendered an account without demand.
   The opinion of the Court was delivered by

KiNG, President. —

The demurrer to this bill presents a question on which the English Chancery has been much divided, and on which conflicting decisions have been made by the most eminent equity Judges. Neither in this state, nor in any other in the Union, as far as I have been able to ascertain after a most diligent search, has this question ever been directly presented for adjudication. All the English decisions on the subject are posterior to the Revolution. Unfettered, therefore, by any precedent of absolute obligation, we can resolve the point involved in the cause on principle. It may be stated thus: Will or will not a Court of Equity entertain a bill for an account, filed by one co-partner against his associate, where the bill does not contemplate a dissolution of the partnership and a final winding-up of the affairs of the association ? The negative of this proposition seems first to have been directly intimated by Lord Eldon, in Walters v. Taylor, 15 Vesey, 24, in which he says, that, “if partners cannot agree, each excluding the other, that state of circumstances, operating as a dissolution, puts an end to the partnership, and the Court interposes in this way: that it will wind up the concern, and with that view will appoint a person to collect and manage, until an end can actually be put to the concern.” This case was ruled in 1808. The question came more directly before Lord Eldon in Forman v. Homfray, 2 Vesey & Beames, 229, decided in 1813, and there the point is directly decided, that no relief could be granted on a bill by one partner against another, not praying for a dissolution, the Chancellor observing, “that, if a partner can come here for an account merely pending the partnership, there seems to be nothing to prevent his coming annually.”

In Coleman v. Marshall, 2 Jacobs & Walker, 266, decided in 1821, although the present question was not the direct one for decision, Lord Eldon very clearly asserts his former opinions. “ It is,” says he, “ quite a different thing, and would be quite a new head of equity, for the Court to interfere where one party violates a particular covenant, and the party does not choose to put an end to the partnership ; in that way there may be a separate suit, and a perpetual injunction in respect of each covenant. That is a jurisdiction we have never directly entertained.”

In the year 1880, the question again came up before Vice-Chancellor Shadwell, in Loscombe v. Russel, 4 Simons, 8. The bill, like the present, was filed by one partner against another, and simply prayed an account, not contemplating a dissolution of the partnership. The bill was generally demurred to for want of equity, on the distinct ground that the Court would not entertain such a bill unless a dissolution was contemplated. The Vice-Chancellor, Sir Lauacelot Shadwell, sustained the demurrer, asserting with respect to the law of the Court on the subject, “that there •was no instance of an account being decreed of the profits of a partnership on a bill which did not pray a dissolution, but contemplated the subsistence of the partnership.” In the case of Kneble v. White, 2 Tounge & Collyer’s Exch. Rep. 15 (1836), this point again was presented incidentally to the Barons of the Exchequer. In pronouncing the judgment of the Court, Baron Al-derson observes upon the contrariety of the past decisions, and from this cause conceived himself obliged to consider the case upon principle. The reasoning of the Judges, who had previously denied the power of the Court to entertain a bill for an account between partners where no dissolution was contemplated, seemed to him most satisfactory, and was adopted by him, apparently against his original impressions.

Although the assertion of Vice-Chancellor Shadwell, in Loscombe v. Russell, that there was no instance of a decree for an account of the profits of a partnership on a bill which did not pray for a dissolution, was literally true; yet eleven years previous (1819), his predecessor, Sir John Leach, had, in Harrison v. Armitage, 4 Madd. 144, asserted his clear opinion that one partner might file such a bill against another. It is true the point was not directly decided in this case, because the evidence did not establish a partnership in fact. In Richards v. Davies, 2 Russel & Mylne, 347, decided in 1831, the question came again before Sir John Leach, then Master of the Rolls, and he directly ruled that the Court would direct an account of past partnership transactions, though the bill did not pray a dissolution. So stood the subject in England, when Judge Story published the second edition of his Equity Jurisprudence. In the text of the 671st section of that learned work, he seems to have considered that it was only under special circumstances that equity would interpose and decree an account, if there was not an actual or contemplated dissolution, so that the affairs of the partnership might be wound up. In his note to that section, he refers to the English authorities, and concludes with saying that the point must be held to be still open for further consideration.

A question of such vast practical importance, in a commercial country like England, could not long be suffered to rest in this state of incertitude. It touched too closely the great commercial interests, now the directing influences which control all the springs of that entrepot of the world. Accordingly, it presents itself again, in Wallworth v. Holt, 4 Mylne & Craig, 619, decreed, in 1840. Although, perhaps, the precise point adjudicated is not the present, yet it is so near it, that the remarks of Lord Cottenham on the question may be considered as a direct ruling of it. Among other things, he observes, that the result of two rules pressed on the Court: viz. the one binding the Court to withhold its jurisdiction, except upon bills praying for a dissolution, and the other requiring that all the partners should be parties to a bill, would be, that the doors of the Court would be shut, in all cases, in which partners and shareholders are too numerous to be made parties; which, in the present state of the transactions of mankind, would be an absolute denial of justice to a large portion of the subjects of the realm, in some of the most important of their affairs; “and that this result was quite sufficient to show that such could not be the law.” And, finally, he observes, “that the supposed rule, that the Court will not direct an account of partnership dealings and transactions, except as consequent upon a dissolution, though true in some cases, and to a certain extent, has been supposed to be more generally applicable, than it is upon authority, and ought to be upon principle; and that this supposed rule was directly opposed to the decision of Sir John Leach, in Harrison v. Armitage and Richards v. Davis.”

The views of Lord Cottenham would seem to have settled the question in England, for in some subsequent cases which I have found, it is so treated. Thus in Richardson v. Hastings, 7 Beavan’s Rep. 301 (1844), Lord Langdale, the present Master of the Rolls, observes: “At one time the Court would not entertain a suit between parties in relation to partnership transactions, except upon a bill to wind up the partnership. That this is not now the rule of the Court, and that the cases which have been referred to, corroborated the view that the Court will, as between the partners, entertain a bill to settle a question which may arise between them, without proceeding to wind up the concerns and affairs of the partnership.”

This case is found reviewed at page 313 of the same book, where Lord Langdale reasserts the modern doctrine. “It was,” says he, “ at one time supposed that in consequence of the rule that complete justice must be done with respect to the subject-matter, the Court could not, and would not, interfere at all between partners unless the partnership was to be dissolved and finally wound up and settled, and that there were several conflicting authorities in the books on the subject; different Judges having entei’tained strong opinions and different views on the question. That he had noticed on the former occasion that it now appears that there is no such rule.” The point again rose in Fairthorne v. Westen, 3 Hare’s Ch. Rep. 381, 391, determined also in 1844, by the present Vice-Chancellor of England, Sir James Wigram. He observed “that the argument of the defendant turned wholly upon the proposition that a bill praying a particular account is demurrable unless the bill seeks and prays a dissolution of the partnership: in support of which the case of Loscombe v. Russel, and the cases there cited, were relied upon. That there might be cases to which the rule there laid down would apply, he was not prepared to deny, hut the law as laid down in that case was never admitted to be a rule of universal application and he adds “ that it is essential to justice, that no such universal rule should be sustained.”

These cases very clearly show that the opinions of Lord Eldon, Vice-Chancellor Shadwell, and the Court of Exchequer, as expressed by Baron Alderson, on which the defendant seeks to support this demurrer, have been distinctly overruled, and are not general rules of action at this time in Westminster Hall. As was observed at the outset of this judgment, none of the cases cited for or against the supposed rule invoked by the defendant, are of binding authority on this Court; and derive any weight they may possess, simply from the inherent force of the reasoning on which they are predicated. Let us test them by this rule. Lord Eldon and those who follow him place their objections on the ground of inconvenience and fruitless multiplication of litigation. In Foreman v. Homfray, and Coleman v. Marshall, Lord Eldon says, “ If such hills should be entertained, there was nothing to prevent such a plaintiff from coming annually; and that by means thereof there might be a separate suit and a perpetual injunction in respect of every breach of a partnership covenant. Sir Launcelot Shadwell supposes, that after such an account was taken between continuing partners, and a balance found in favour of the plaintiff, it would be competent for the defendant to file a supplemental bill, showing that since the account had been taken, a balance had become due him from the plaintiff; and thus the matter might be pursued with endless charges; and supplemental bills might he filed every year that the partnership continued; and a balance would never be ascertained, till the partnership expired, or the Court put an end to it. And it is upon analogous reasoning that Baron Alderson rests his opinion in Kneble v. White. These, it must be admitted, are serious difficulties in the way of the proceeding. But in the conduct of human affairs we are often forced to elect between evils ; and tbe choice should be determined by that course calculated most to advance justice, secure the faithful performance of contracts, and render the breach of them the least inviting, although the course proposed to reach these desired ends may not be free from difficulties and objections. The answer of Sir John Leach to this argument is this: “ It is objected that if such a suit is entertained, the defendant may be vexed by a new bill whenever new profits accrue: but what right has the defendant to complain of such new bill, if he repeats the injury of withholding what is due the plaintiff?” This, I know, answers but half of the argument, and does not meet the case put by Sir Launcelot Shadwell, where, in the subsequent dealing, the defendant in the original suit becomes the creditor partner, and claims to deduct, from the first balance due by him, the favourable balance since accrued in his favour. The answer to this state of things would be, that if the original plaintiff should subsequently practise the wrong he originally complained against, by refusing to give such a credit, he should, and would be made to bear the expenses, flowing from his refusal to do the justice he had himself demanded. But let us. look at the results of refusing our aid to a party who asks an account from his co-partner, of partnership profits, unless he consents to dissolve the partnership concern. Do we not give a party fraudulently inclined, the opportunity of breaking up a profitable concern when he pleases, by simply refusing to account ? Do we not thus, in a partnership where capital and skill united have made a business profitable, give either the capitalist or the expert the means of ejecting his associate, whenever the interest of the one, or the other, would render that course desirable ? Would we not by this means prevent the formation of associations where skill, capital, and enterprise might develope sources of productive industry, alike beneficial to the community and the associates, by declaring them to be without the pale of effective legal protection ? Would not this be the shutting of the door of this Court, and, in the present state of the transactions of mankind, be an absolute denial of justice to a large portion of the citizens of this Commonwealth, in some of their most important affairs ?

To these interrogatories, it would seem to me that no other than affirmative answers can be given. In cases of silent partnerships, where the active partner is rarely the capitalist, the evil workings of this rule would be intolerable, as they would also specially be under our law of limited partnership, where the capitalist partner is excluded from active participation by positive law, and where he has little if any means of ascertaining the veritable condition of the concern, if unjustly denied him, except through the intervention of this Court. If such a partner cannot obtain this aid except on the terms of dissolving the partnership, few prudent men would enter into such an engagement; where they are certain of hazarding their investment, and where their continuance in the business; if profitable, really must depend on the pleasure of the active associate, which must be the case if the doctrine contended for in this case is the law of Pennsylvania.

It is the duty of all Courts, and specially so of a Court of Equity, to adapt its practice and course of proceeding as far as possible to the existing state of society, and to apply its jurisdiction to all those new cases, which, from the progress daily making in the affairs of men, must continually arise, and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice and to enforce rights, for which there is no other remedy: Taylor v. Salmon, 4 Mylne & Keen, 141. The principles of equity are broad and comprehensive. They sprang into existence as a separate system from the requisitions of a progressive civilization; to the necessities of which the narrow technicalities of the common law afforded no adequate expansion. Though based, as every system of philosophical jurisprudence must necessarily be, on defined principles, still, in its application to the affairs of men, equity ever looks to great principles, rather than special modes of procedure, which latter must always give way, when they come into conflict with the application of those principles to cases embraced Avithin them.

The other causes of demurrer may be disposed of in a more summary manner. The existence of the partnership at the filing of the bill, is sufficiently averred. It was not necessary to load the record with the details of the circumstances of the contiuance of it, after the first lease of the premises, where the partnership business was carried on, had expired. According to the case of Columbian Government v. Rothschild, 1 Simons, 24, it seems that, although the Court had originally required that a bill for an account should contain an offer on the part of the plaintiff to pay the balance, if found against him, this is not now considered necessary. As to the objection taken that there is no direct allegation of a demand for an account made by the plaintiff of the defendant, before filing his bill, this is answered by the fact, that, according to the true construction of the "partnership articles, the defendant, who was the managing partner, was bound to render bis accounts monthly, and his default for the length of time set forth in the bill gave the plaintiff the clear right to apply to this Court.

The demurrer is overruled.