its principal place of business, where the administrative work of the corporation is carried on. (Dicey, Conflict of Laws, 154.)

Foreign corporations, chartered for lawful purposes, have the right to carry on business within the British Dominions, subject to the conditions and requirements of local laws; this has been recognized by the comity of nations, as well as by conventions concluded between Great Britain and other countries. By the Anglo-French and AngloBelgian treaties of 1862, and by the Anglo-Spanish treaty of 1883, companies formed in one of the joint contracting countries, in accordance with laws in force therein, are entitled to exercise "all their rights" in the dominions of the other. Similar conventions have been entered into by Great Britain with Germany, Italy, Greece, and other nations, mutually securing to commercial and industrial companies the exercise of their rights throughout the possessions of the high contracting parties.

"The right of foreign and colonial corporations to carry on business in England, without any authority to that effect from Parliament or Government, has now passed unquestioned for so long that it may be considered to be established; and it is a very exceptional instance of liberality." (Westlake, Priv. Internat. Law, p. 337.)

The term “foreign," in the phrase now under discussion, is wide enough to cover not only corporations established by the laws of independent foreign States, but also corporations established by the law of Great Britain and by the law of every self-governing community within the British Empire. In short, "foreign" includes every corporation established beyond the limits of the Commonwealth.

A foreign company carrying on business in any part of the British Dominions, through a branch office situated there, is liable to be sued locally in the same manner as a local corporation. Thus, an American company, incorporated by American law in the United States, had a place of business in England, where it, de facto, carried on business, although its manufactory, and also its principal place of business, where the meetings of its directors and shareholders were held, were in America. The plaintiff claimed a sum of money as being due from the corporation to him as the balance of commission on the sale of goods. He commenced an action against the corporation and its agent in England, including both in the writ, and served two copies upon the agent, one for himself and the other for the corporation. It was held that the court would not, upon the ground that a foreign corporation cannot be sued in England, prevent the plaintiff from proceeding in the action; and also that, as the corporation had a place of business in England and traded there, it must be treated as resident there, and that the service upon its agent was sufficient. (Newby v. Van Oppen, L.R. 7 Q. B. 293; and it was similarly held in Haggin v. Comptoir d'Escompte de Paris, 23 Q. B.D. 519.)

The right of British and colonial courts to order the winding-up of companies not domiciled within their respective jurisdictions has been considered in a number of cases which have arisen in the United Kingdom, India, Australia, and New Zealand. In a New Zealand case it was held that the Court of Chancery in England has jurisdiction under s. 199 of the Companies' Act, 1862 (25 and 26 Vic. c. 89), to wind up an unregistered joint-stock company, formed, and having its principal place of business in New Zealand, but having a branch office, agent, assets, and liabilities in England. The pendency of a foreign liquidation does not affect the jurisdiction of the court to make a winding-up order in respect of the company under such liquidation, although the court will, as a matter of international comity, have regard to the order of the foreign court. It being alleged that proceedings to wind up the company were pending in New Zealand, the Court, in order to secure the English assets until proceedings should be taken by the New Zealand liquidators to make them available for the English creditors pari passu with those in New Zealand, sanctioned the acceptance of an undertaking by the solicitor for the English agent of the company, that the English assets should remain in statu quo until the further order of the Court. (Re Commercial Bank of India, L. R. 6 Eq. 517 ; followed in Re Matheson Bros. Limited, 27 Ch. D. 225; Digest of English Case Law, 111, 1674.)

A banking company carrying on business in South Australia had a branch London, but was not registered in England. The company had English creditors and assets in England. Two petitions were presented in England to wind up the company, which had stopped payment, and on the hearing of the petitions an order was made appointing a provisional liquidator, and the further hearing was ordered to stand over for a time. The powers of the provisional liquidator were limited to the taking possession of, collecting and protecting the assets of the company in England. When the petitions came on again to be heard it appeared that a petition to wind up the company had been meanwhile presented in Australia, and a provisional liquidator had been appointed there, but it was not proved that a winding-up order had been made. It was held that there was jurisdiction, at the time when the petitions were presented, to make an order to wind up the company, and that the jurisdiction could not be affected by subsequent proceedings in Australia. A winding-up order was accordingly made, the order appointing the provisional liquidator being continued, with the same restrictions on the powers, the judge expressing an opinion that the winding-up in that court would be ancillary to a winding-up in Australia, and that if the circumstances remained the same, the powers of the official liquidator, when appointed, ought to be restricted in the same way. (Re Commercial Bank of South Australia, 33 Ch. D. 174.)

In the case of the Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. (Can.) 312, the question was as to the validity of proceedings under the Dominion statute for the sole and principal winding-up of a joint stock company incorporated in England in 1874, under the Imperial Joint Stock Companies' Act, and never incorporated in Canada, but with its chief place of business in Nova Scotia, where it owned and operated extensive iron mines and works, constituting almost its whole assets, while it owned no real estate, but occupied an office in Great Britain. (Lefroy, Leg. Pow. in Canada, p. 629.) The Supreme Court held that an order could not be made under the Dominion law for the winding-up of the Company. In the same case, Henry, J., said:" If the provisions of a Dominion statute, as in this case, contravene an English statute regulating an English incorporated company, such provisions would be ultra vires. It is possible that a company chartered in the United States or other foreign country doing business here might be wound up under the Dominion Act, if such could be done without interfering with the terms of the constituting articles, but I see serious difficulties in the way, even in such a case."

The extent to which federal control may be exercised over foreign corporations, including those formed under Imperial law, may be thus summarized from the English and Canadian cases. They will be liable to federal taxation; they may be required to give security for the performance of their contracts; their property and assets within the Commonwealth may be protected and regulated, so as to secure the rights of creditors, and particularly the rights of citizens and residents of the Commonwealth; they will not and cannot be wound up or dissolved under Federal law. But should they not be able to pay their debts, their assets may be seized and placed in the hands of a Federal liquidator, charged with the duty to carry on a local liquidation ancillary to any principal winding-up that may be instituted in the country of their domicile. (The Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. [Can.] 312; Allen v. Hanson, 16 Quebec L. R. 79; Re Briton Medical Life Association, 12 Ont. Rep. 441.)

A trading corporation is one formed for the purpose of carrying on trade. To trade, as we have seen (Note, § 162, supra), means to buy and sell; to be engaged in the exchange, barter, traffic, bargain, or sale of goods, wares, and merchandize, or to carry on commerce as a business. The Federal Parliament may legislate concerning trading corporations formed within the limits of the Commonwealth. Such corporations may be both created and wound up under the provisions of Federal law; whilst foreign corporations cannot be either created or wound up by Federal law, though their business operations and property can be regulated and affected.

$197. "Financial Corporations."

Sub-section 13 enables the Parliament to make laws with respect to "Banking and the incorporation of Banks." This sub-section is intended to give the Parliament power to legislate concerning all "financial institutions" formed within the limits of the Commonwealth. There are financial institutions which are not banks. Among these may be mentioned companies which receive deposits of money for investment and make advances on the security of land, such as land-mortgage companies and building societies. (Con. Deb., Adel., 1897, p. 793.)

In the expression "trading or financial corporations formed within the limits of the Commonwealth," the words "formed within," &c., apparently include corporations formed under the authority of State laws, whether before or after the establishment of the Commonwealth. "Formed" is certainly capable of meaning "formed under State laws." It would have been unnecessary to declare that the Parliament should have power to make laws controlling corporations "formed" by its own authority. There is no express power vested in the Parliament to incorporate trading or financial companies (sec. 51-xiii.). Whether such companies could be created under the trade and commerce section is not clear. It would therefore seem that this provision refers to companies created under State laws. Such bodies, once launched, will come within the control of Federal legislation. Under this power it would probably be competent for Parliament to convert a corporation created by State authority into a Federal corporation; to enlarge the scope of its operations and business; to confer on a local corporation certain powers which would be beyond the jurisdiction of the States Governments to grant. (Todd's Parl. Gov. in Col., 2nd ed. 437.)

Their

"In June, 1881, the Quebec Court of Queen's Bench, on an appeal from the decision of an inferior court, declared that the Dominion Parliament had exceeded its powers in the incorporation, by Act 43 Vic. c. 67, of the Bell Telephone Company. This company had been authorized to establish telephone lines in any part of Canada, to cross rivers, boundary lines, &c. But the company, in commencing a local business in Quebec, did so for purely local traffic, having no pretension to service of a dominion character. undertaking did not involve the connection of service with two or more Provinces, or the need even to cross navigable rivers; neither had Parliament declared the company to be 'for the general advantage of Canada, or of two or more Provinces.' In fact, the powers claimed to have been conferred were beyond the jurisdiction of the Dominion Parliament to grant, and should have been obtained in the particular instance from the Quebec legislature. The company were therefore adjudged to have been guilty of a nuisance, in erecting their poles in the city of Quebec without lawful authority. But in the same month (June, 1881), upon application to the Quebec legislature, then in session, an Act was passed to confer certain powers on the Bell Telephone Company of Canada,' which recognized this company, and gave it the necessary corporate powers for provincial work, saving only actions pending in the courts. Similar Acts were passed by the New Brunswick, the Nova Scotia, and the Ontario legislatures, in 1882. And in the same year, the Dominion Parliament amended their Act of incorporation, and furthermore declared the works in question to be for the general advantage of Canada.'" (Todd's Parl. Gov. in Col. 2nd ed. p. 534.)

$ 199.

"Within the Limits of the Commonwealth."

This is a notable expression, affirmative of the territoriality of the Commonwealth, and recognizing the principle that, as a general rule, the laws of a sovereign State or of a semi-sovereign community are intended to be operative and enforceable only within its territorial limits. The words, "formed within the limits of the Commonwealth," are, apparently, words of description rather than words of limitation, seeing that even without any express restriction the laws of the Commonwealth could only operate within and throughout the Commonwealth. Only express words would justify any interpretation giving an extra-territorial effect. One instance of such express words is found in Clause V.,

which enacts that the laws of the Commonwealth shall be "in force an all British ships" whose first port of clearance and whose port of destination are within the Commonwealth. Another instance is found in section 51-x., Fisheries in Australian waters beyond territorial limits."

66

HISTORICAL NOTE.-" Marriage and divorce is specified in the British North America Act, sec. 91, sub-sec. 26. "Recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony" was a subject which might be referred to the Federal Council under the Act of 1885. In the Bill of 1891, and also in the Adelaide draft of 1897, “Marriage and divorce" was one of the legislative powers.

At the Sydney session, a suggestion by the House of Assembly of Tasmania was submitted, to omit the sub-clause and substitute "The status, in other States of the Commonwealth, of persons married or divorced in any State." Mr. Glynn said that there were strong objections in South Australia to the prospect of the grounds of divorce in that colony being extended as they had been in New South Wales and Victoria. The sense of the desirability of uniform laws of marriage and divorce prevailed, however, and the sub-clause was agreed to. (Conv. Deb., Syd., 1897, pp. 1077-82.) At the Melbourne session, before the first report, Marriage" was placed in a separate sub-clause.

§ 200. "Marriage."

Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract. According to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognized throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of one man and one woman, (4) to the exclusion of all others. (Bethell v. Hildyard, 38 Ch. D. 220.)

Laws relating to this subject will therefore embrace (1) the establishment of the relation, including preliminary conditions, contractual capacity, banns, license, consent of parents or guardians, solemnization, evidence, and rules in restraint, (2) the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights. Quaere whether this power will enable the Parliament to legislate with respect to breach of promise of marriage; immoral agreements concerning marriage; and the separate property of married women. It could be argued that the first two matters belong to the general law of contracts, and the last one to the general law relating to civil rights; both of which classes of laws are reserved to the States. It might be said, however, that they impinge on the principal grant of power, marriage," and are conveyed by it.

In considering the validity of a marriage the requirements of two kinds of laws, not always coinciding in the same political community, have to be regarded; one is the law of the domicile—that is, the law of the country which the contracting parties look upon as their permanent home; the other is the law of the place in which the contract is made, or where the ceremony is performed. As regards the essential qualification and capacity to enter into the marriage relation, both the lex loci contractus and the lex domicilii must apparently be satisfied; the formal requisites, the mode of solemnization and the like, depend upon the lex loci contractus alone. (Westlake, Priv. Internat. Law, pp. 52-5.)

The policy of the Imperial Government, to secure uniformity of marriage laws among the Christian races of the Empire, is shown in the manner in which several

colonial Acts to legalize marriage with deceased wife's sister have been discountenanced and disallowed. Such amending laws have been, however, at length sanctioned by the Crown in Ceylon, South Australia, Victoria, Tasmania, New South Wales, Queensland, Western Australia, New Zealand, Canada, and Barbadoes. In the countries in which the parties are domiciled the children of these marriages are legitimate by statute law, but in the United Kingdom, these marriages being still regarded as illegal, the offspring are liable to serious disabilities. By the law of England, "with regard to personal property the children of these marriages are regarded as legitimate; but with respect to realty, the status of legitimacy, which the law of the domicile gives them, is not recognized, on the ground that the established rule of law in deciding the title of real estate, lex loci rei sitæ, excludes such children." (Hammick's Marriage Law of Eng. and Cols. p. 253.)

"In regard to such legislation the difficulty still remains, that the Imperial Parliament has not yet (1892) agreed to this alteration in the law of marriage. Consequently, such marriages continue to be illegal in England, and those who avail themselves of the liberty afforded by colonial enactments to contract these marriages expose their offspring to disastrous consequences, as regards both inheritance and legitimacy, in the mother country. Hitherto, the Imperial Government and Parliament have shown no disposition to alter the law in this respect, for the behoof of the colonies in question." (Todd's Parl. Gov. in Col. 2nd ed. 198.)

The personal capacity of parties to enter into the contract of marriage depends upon their domicile; and where both parties had a foreign domicile, and, by the law of their domicile, their marriage was invalid by reason of consanguinity, a marriage which was contracted in England, and which would have been valid according to English law, was held invalid. (Sottomayor v. De Barros, 3 P.D. 1. Digest of English Case Law, vol. vii. p. 626.)

A foreign marriage, valid according to the law of the country where it is celebrated, is good everywhere; but this applies only to the form, and not to the essentials of the contract, which depend on the lex domicilii. Therefore, if a marriage abroad of English domiciled subjects is polygamous or incestuous, the law of England will not recognize it, and will follow in that respect its own rules as to incest and policy. (Brook v. Brook, 9 H.L. Cas. 193. Id.)

When an English woman marries a domiciled foreigner, the marriage is constituted according to the lex loci contractus; but she takes his domicile, and is subject to his law. (Harvey v. Farnie, 8 App. Cas. 43. Digest of English Case Law, vol. viii. p. 215.)

The rule, that the lex loci contractus of a marriage establishes its validity, requires this qualification--that where the law of a country forbids marriage under any particular circumstances, the prohibition follows the subjects of that country wherever they may go. Each nation has a right to define and prohibit incest. If a marriage, though good according to the law of the domicile, were nevertheless contrary to the religious or moral notions of other States, it would be impossible to contend that it ought to be adopted by them. If the comity of nations were always to prevail, a foreign marriage between uncle and niece, under papal dispensation, must be held valid, and the issue might claim to take a Scotch estate and Scotch honours, although, had the marriage been contracted in Scotland, the parties might have been capitally punished. (Fenton v. Livingstone, 3 Macq. H. L. 497. Id. 216.)

British subjects resident in a British settlement abroad are governed by the laws of England, and consequently, with respect to marriage, by the law of which existed there before the Marriage Act, viz., the canon law. (Lautour v. Teesdale, 2 Marsh, 243. Id. p. 217.)

51. (xxii.) Divorce 201 and matrimonial causes202; and in relation thereto, parental rights203, and the custody and guardianship of infants 204:

HISTORICAL NOTE.-For the history of the sub-section "marriage and divorce," see Historical Note, sub-sec. xxi. At the Adelaide session, in 1897, a new sub-clause "Parental rights, and the custody and guardianship of infants" was added. It was thought, however, that, except incidentally to matrimonial suits, the control of children was not a federal matter, and accordingly at the Sydney session the sub-clause was