4
should be governed by the lex fori, i.e., the law of the particular Colony in which the assets have been collected and are being distributed. In the administration by the English Courts of the English estate of a foreigner, foreign creditors share pari pussu with English creditors (in re Kloebe, 28 Ch. Div. 175); and unless there is some local law or ordinance which alters this rule, we think that the same course should be followed in the Colonies in question. In Nigeria and Sierra Leone the question would probably have to be submitted to the Court by which the receiver or controller was appointed; but in the Gold Coast Colony the Governor could himself give directions to the above effect.
For the above reasons we answer the questions as follows:-
1. No. In each case the debt is the debt of the enemy firm whether incurred by the head office or by a branch, and the proper course would appear
2. No.
to be to discharge the firm's debts out of its assets wherever they may be
found.
3. The answer is the same.
4. We think that the neutral creditor should be required to pursue his remedy against the enemy debtor before sharing in the fund and should only prove in respect of any deficiency.
5. The answer to (a) is in the affirmative and to (c) in the negative. As to (b) it would be convenient that the officials in the several Colonies after paying preferential claims should arrange either to" pool" the surplus funds (so far as required to pay debts) or to keep one another informed as to payments made and to be made to creditors. 6.-() As the lex fori applies we think that the distribution of the funds available in each Colony should be made in that Colony, and that the surplus assets after payment of all debts should be retained there. (b) The priorities would be governed by the law of the Colony.
7. We do not think that any legislation would be necessary in order to give
effect to the above recommendations.
8. Payments already made on a different footing cannot be recovered, and we think that it would be convenient, before announcing any change, to apply for the directions of the Courts of Nigeria and Sierra Leone in a test case. If these Courts sanction the mode of distribution here recommended that would be a sufficient reason for applying it in other cases. The Governor of the Gold Coast may either await the decision or take his own course.
Law Officers' Department.
6th December. 1915.
FREDERICK SMITH. GEO. CAVE.
466/13-14.
GENTLEMEN,
No. 194.
(DOMINIONS: General.)
COLONIAL OFFICE to LAW OFFICERS.
[Proposed amendments of the Imperial Extradition Acts.]
Downing Street, WITH reference to the Report by the Law Officers of the 25th October, 1911,*
15th June, 1914. a print of which is enclosed, I am directed by Mr. Secretary Harcourt to transmit to you, for your consideration, copies of further correspondence on the subject of certain proposed amendments of the Imperial Extradition Act, with special reference to (a) the question of an agreement with the German Government for extradition in the case of persons guilty of offences in connection with the diamond industry in South Africa, and, (b) the general question of giving extra-territorial validity to warrants issued in Canada and in any other self-governing Dominion which may adopt the same system of passing a complete Extradition Act in lieu of the Imperial Extradition Acts, the latter being suspended by an Order in Council in such Dominion so long as the local legislation is in force.
2. As regards (a) it will be observed from the enclosed correspondence that, in order to avoid delay, it has been suggested that an arrangement should be entered into for the mutual surrender between the Union of South Africa and German South West Africa of persons accused of diamond offences, to take place under local legislation across the land frontier of the Union and German South West Africa. This arrangement should no doubt prove sufficient as regards the particular object in view; but in order to meet the possibility of similar special cases in the future, it is considered desirable that an Act should be passed amending the Imperial Extradition Acts by giving the Legislature of a British Possession power to pass legislation adding within its own area other crimes to those in the list of extradition offences under the Imperial Acts, in order to give effect to any treaty (made in anticipation of such legislation) for the purpose of authorising extradition for such added crimes between the British Possession in question and any foreign State. This amendment would render feasible the procedure indicated in the last paragraph of the Home Office letter of 12th April, 1911, to the Colonial Office, set out on page 10 of the accompanying print, African (South) No. 988, and if a treaty were made with a view to the extradition from a particular British Possession to a particular foreign State of persons charged with an offence not mentioned in the Imperial list, that offence could then be added to the list of extradition offences by legislation in the British Possession.
3. As regards (b), it has been proposed that the difficulty might be met by the amendment of section 18 of the Extradition Act, 1870, so as to provide that where a British Possession passes an Act (like the Canadian Act, Cap. 155 of the Revised Statutes, 1906), in substitution for the Imperial Acts, an Order in Council may be made not only, as at present, suspending the Extradition Acts within such British Possession so long as the local Act continues in force, but also (on the analogy of section 12 of the Colonial Prisoners Removal Act, 1884) directing that such local Act shall be recognised and given effect to throughout His Majesty's dominions and on the high seas as if it were part of the Imperial Extradition Acts.
4. It is not proposed to interfere with the existing extradition system in the case of Colonies not possessing responsible government, and the second proposal "(b)" is put forward for adoption only in the case of Canada and any other self- governing Dominion which may pass similar extradition legislation in future.
5. I am to explain that these two proposals were the result of the discussion between the Legal Advisers of the Foreign Office, Home Office, and Colonial Office suggested in the letter of the 23rd February, 1912, from this Department to the Home Office (African (South) No. 988, p. 16), and I am to request you to take this letter and the accompanying papers into consideration, and to be good enough to advise
A
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(7771-2.) Wt. 20-1020, 23. 8/16. D&S. G.1.
• No. 147.
PUBLIC RECORD OFFICE
Reference :-
TTIC.O.885
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16 PUBLIC RECORD OFFICE, LONDON
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