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A Digest of Cases relating to the Construction of Buildings, the Liability and Rights of Architects, Surveyors, and Builders in relation thereto, with Notes and an Appendix containing Forms of Pleadin.ijs, Building Agreements and Leases and Conditions of Contracts, and Reports of Cases. Fourth Edition. By Edward Stanley Roscoe, Barrister-at-Law. Super royal 8vo., 988 pages, cloth, £2 ; cash price, 32^-. (postage in U.K., t^d.). PATENTS, The Law and Practice relating to Letters Patent for Inventions. With full Appendices of Statutes, Rules and Forms. By Roger William Wallace, Esq., of the Middle Temple, one of His Majesty's Counsel ; and John Bruce Williamson, Esq., of the Middle Temple and North-Eastern Circuit, Barrister-at-Law. Demy 8vo., cloth, Zs. 6d. THE LAW OP AGENCY. By R. Gresley Woodyatt, of the Inner Temple and Midland Circuit, Barrister-at-Law. Third Edition, demy 8vo., cloth, 20^-. DIXON'S LAW AND PRACTICE OP DIVORCE, and other Matrimonial Causes. Third Edition, thoroughly revised. By W. J. Dixon, LL.M., of the Inner Temple, Barrister-at-Law. Fourth Edition, demy 8vo., cloth, lof. (>d. CHALMERS' SALE OP GOODS ACT, 1893. Including the Factors Acts, 1889 and 1S90. Fourth Edition, revised. By M. D. Chalmers, C.S.I. (Draftsman of the Actl, Assistant Parliamentary Counsel, late Judge of County Courts, and Law Member of the Viceroy's Council in India. " The practitioner will find Mr. Chalmers' vioxV facile princeps." — Law Times. WOLSTENHOLME'S CONVEYANCING ACTS. Eighth Edition, thoroughly revised, demy 8vo., cloth, 21,1-. THE CONVEYANCING ACTS, 1881, 1882, and 1892; the Vendor and Purchaser Act, 1874 ; the Land Transfer Act, 1897, Part I. ; the Land Charges Registra- tion and Searches Act, 1888; The Trustee Acts, 1888, 1889, 1893, and 1894; the Married Women's Property Acts, 1882 and 1893; and the Settled Land Acts, 1882 to 1890. With Notes and Rules of Court. By Edward Parker Wolstenholme, M.A., of Lincoln's Inn, Barrister-at-Law, one of the Conveyancing Counsel of the Court ; Wilfrid Brinton, M.A., of the Inner Temple, Barrister-at- Law, one of the Examiners of Title under the Land Transfer Rules, 1898 ; and Benjamin Lennard Cherry, LL.B., of Lincoln's Inn, Barrister-at-Law. 7, FLEET STREET, LONDON, E.G. THE LAW AND PRACTICE OF THE COURTS OF THK UNITED KINGDOM RELATING TO FOREIGN JUDGMENTS PARTIES OUT OF THE JURISDICTION TO WHICH ARE ADDED CHAPTERS ON THE LAWS OF THE BRITISH COLONIES, EUROPEAN AND ASIATIC NATIONS, AND THE STATES AND REPUBLICS OF AMERICA. FRANCIS TAYLOR PIGGOTT, M.A., LL.M. OF THE MIDDLE TEMPLE, BARH1STER-AT-LA\V. SECOND EDITION. REVISED AND ENLARGED. LONDON : WILLIAM CLOWES AND SONS, LIMITED, 27, FLEET STREEl'. 1884. T 3 B.4Sfe C ^ ^ TO LORD BLACKBURN PREFACE TO THE SECOND EDITION. A FIRST edition can scarcely pretend to be more than a sketch of any subject : in the second, the author may hope to arrive at more perfect and finished work. In recasting and rewriting the volume published in 1879, I have there- fore attempted a deeper analysis of the subject which a more prolonged study of the cases rendered possible. In doing this I received many valuable suggestions from my friend Mr H. Duff of the Inner Temple. The volume published in 1881 reappears as chapters xii to xvi of the present work : these chapters preserve their original form, which kept convenience of reference prin- cipally in view. A considerable amount of information has been added to them, and many serious omissions have been supplied. To a member of the Rcichsjustizauit at Berlin, one of the most erudite of German judges, Mr Laitdrichter Vierhaus, who has been my unwearying corre- spondent during the last eighteen months, I am indebted for much of this additional information, and for the entire chapter on German law. Without his valuable aid even an approach to completeness would have been impossible. I am also under a debt of great obligation to Mr Ernest Schuster, of the Middle Temple, who has laboured unceas- ingly in my behalf in the collection and translation of foreign laws. F. T. P. Doctor Johnson's Buildings, Temple. June, 1884. PREFACE TO THE FIRST EDITION OF PART I. No one who has had occasion to study the leading cases on the subject of the effect of Foreign Judgments in the English Courts, can fail to have been impressed with the diversity of principles contained in them. This will I hope sufficiently account for what may appear the some- what arbitrary manner in which I have made use of the authorities. The subject itself, one of judge-made law, will I trust be considered a valid excuse for giving so many verbatim extracts from judgments. I am under a great debt of gratitude to Mr Frederick Whinney and to Mr Shelford Bidwell, of Lincoln's Inn, for many valuable suggestions and for much patient revision of the whole work. F. T. P. Temple. Junc^ 1879. PREFACE TO THE FIRST EDITION OF PART II. The first part of this work, published two years ago, dealt with the effect of a foreign judgment in the English courts : in this second part I have collected as far as it has been possible to obtain it the foreign and colonial law bearing upon foreign judgments and upon service out of the juris- diction. Its publication seemed warranted by the growing importance of the subject and may perhaps prove a first step towards obtaining a complete embodiment of the law, and to the knowledge and perhaps gradual assimilation of the practice of different nations. I trust that the errors will be corrected and the omissions supplied by the courtesy of readers both at home and abroad. F. T. P. Temple. April, 7, 1 88 1. TABLE OF CONTENTS. Introduction xliii CHAPTER I. THE ENGLISH DOCTRINE. I. The Enforcing . o II. The Cause of Action .... 22 III. The Recognising • 33 Res judicata . ■ 45 Points of Practice . • 54 Summary CHAPTER II. . . 56 INJUNCTIONS TO RESTRAIN PROCEEDINGS-' LIS ALIBI PENDENS.' Outline of the general principles of jurisdiction .... 62 Restraint of English and foreign suits, plea of h's alibi pendens, and the principle of election ....... 65 .Summary . . . . . . . . . . .91 CHAPTER III. PROOF OF FOREIGN JUDGMENTS. Lord Brougham's Act, 1851, to amend the Law of Evidence Corresponding Colonial Statutes 94 97 X TABLE OF CONTENTS. CHAPTER IV. DEFENCES TO THE ACTION. The Principle of Appeal I. Fraud II. Error III. JURISDICriON The general principles of Jurisdiction The general principles of the practice of Service on Absent Defendants ...... Foreign attachment and similar foreign proceedings IV. Natural Justice V. International Law VI. Public Law Summary .......... PAGE lOI 1 06 118 167 178 CHAPTER V. INTERLOCUTORY PROCEEDINGS. Judgment under Order XIV . . . . . . .183 Application for Security for costs . . . . . . .185 Security for costs where the plaintiff is out of the jurisdiction 186 CHAPTER VI. THE RULE 'LEX FORI.' 198 205 206 207 208 Statutes of Limitation, and foreign judgments thereon Interest on foreign judgments ..... Foreign judgment for costs ...... Parties to the action on a foreign judgment Commission to examine witnesses out of the jurisdiction CHAPTER VII. JUDGMENTS NOT RECOGNISED. Judgments proceeding on Penal Laws ..... 209 Judgments proceeding on Revenue Laws . . . . .210 Judgments of fantastical courts . . . . . . .211 Judgments of Inferior Tribunals . . . . . . .211 Consular courts 212 CHAPTER VIII. SERVICE OUT OF THE JURISDICTION. England. Service of documents other than writs 215 Order XI and other rules of the Supreme Court, 1883. . 218 TABLE OF CONTENTS. XI Service of third-party notices Substituted service Service on Corporations Ireland. Judicature Act, 1877 Scotland. Edictal citation Scotch arrestment . PAGE 230 230 232 235 238 239 CHAPTER IX. JUDGMENTS 'IN REM.' General principles, and different meanings attributed to the words ' /n rem ' . Judgments relating to land Prize condemnations Principles of neutrality Exchequer condemnations Acquittals Summary 244 249 2 C2 263 264 265 266 CHAPTER X. STATUS. General principles of status . Marrl\ge — Legitimacy— Divorce Lunacy Guardianship .... Probate and Administration Bankruptcy .... The adjudication and assignment Concurrent proceedings Bankruptcy of partners . The final discharge The status of the bankrupt Summary ..... 271 272 296 302 307 325 3-5 336 336 340 348 350 CHAPTER XI. STATUTORY ENACTMENTS WITH REGARD TO JUDGMENTS OF THE UNITED KINGDOM. The Judgments Extension Act, 1868 358 The Inferior Courts Judgments Extension Act, 1882 . 362 The Companies Act, 1862 363 The Lunacy Regulation Act, 1883 366 Probate, Administration, and Confirmation Acts, 1857, 1858 ■ . . .366 The Bankruptcy Act, 1883 371 Acts of Sederunt 362, 365, 370 TABLE OF CONTENTS. CHAPTER XII. THE LAWS OF THE BRITISH COLONIES. Colonial Law Generally I. The Indian Empi II. North American III. Australian . IV. West Indian V. African . VI. Mediterranean VII. Eastern VIII. Miscellaneous 2,79 383 395 404 412 415 417 423 CHAPTER XIII. THE LAWS OF EUROPEAN NATIONS. European Law Generally Austria . Hungary Belgium . Denmark France . German Empire Greece . Ionian Islands Italy Monaco . Netherlands Portugal Roumania Russia Spain Sweden . Norway . Switzerland Cantons Turkey . 428 434 435 438 443 445 460 475 476 476 490 495 496 498 503 504 505 506-515 . 516 CHAPTER XIV. THE LAWS OF THE UNITED STATES OF NORTH AMERICA. New York Alabama to Wisconsin 519 524 539 TABLE OF CONTENTS. Xlll CHAPTER XV. THE LAWS OF THE REPUBLICS OF SOUTH AMERICA. PAGE Argentine Confederation 541 Bolivia ............ 542 Brazil ............ 543 Chili 547 [Columbia, United States. Costa Rica. Ecuador. Guatemala, Honduras.] Mexico 547 [Nicaragua. Paraguay.] Peru 547 Uruguay 548 Venezuela ........... 548 CHAPTER XVI. THE LAWS OF AFRICAN NATIONS. Egypt 550 Liberia 551 APPENDIX. The Judgments Extension Act, 1868 . . . . . -553 The Inferior Courts Judgments Extension Act, 1882 . . . 557 The Foreign Probate Act, 1879, of Western Australia . . 560 TABLE OF ENGLISH, SCOTCH AND IRISH CASES. PAGE V. 2 Dicken: 775 187, 188 Abouloff V. Oppenheimer, 10 Q. B. D. 295; 52 L. J: Q. B. i ; 31 W. R. 57 ; 47 L. T. 325 108,111 id: [No: 2], 52 L. J: Q. B. 309 ; 47 L. T. 702 207 Adams v. Brown, i Dowl: 273 195 Adderley v. Smith, i Dicken: 355 191 Ainsliez'. Sims, 33 L. J: Ch: 161 73. 186 Alcan, re, i D. J. & S. 398 . 216 Aldborough v. Burton, 2 My: & K. 401 . 191 Aldridge v. Cato, L. R. 4 ?• C. 313 ; 20 W. R. 977 . . . . 412 Alivon V. Furnival, 3 L. J: Ex: 241 ; i D. P. C. 614 ; i C. M. & R. 277; 4Tyr: 751 20, 123, 170, 327 Allhusen v. Malgarejo, L. R. 3 Q. B. 340 147 Alliance Bank of Simla v. Carey, 5 C. P. D. 429 ; 49 L. J: C. P. 781 . 199 Allison, in the goods of, 34 L. J: P. & M. 20 368 Allison V. Catley, Sc: Sess: ca: 2nd Ser: L 1025 280 Alves V. Bunbury, 4 Camp: 28 5, 95 Anon: 2 Chit: 152 188 I Dowl: 300 ; 2 C. & J. 88 193 Mose: 175 191 2 Sw: 326 n 5 7 Taunt: 307 193 ■ 8 Taunt: 737 186 10 Ves: 287 194 Anstruther v. Chalmer, 2 Sim: i 309 Archer v. Preston, i Vern: 75 141 Arglasse, Lord v. Muschamp, i Vern: 135 141 Armani v. Castrique, 14 L. J: Ex: 36 ; 13 M. & W. 443 .. . 346 Armitage v. Fitzwilliam, W. N. 1875, p. 238 231 Armour v. Walker, 32 \V. R. 214 208 Armstrong v. Elbinger, 23 W. R. 94 232 Arnott V. Redfern, 3 Bing: 353 ; il Mo: 209 ; 2 C. & P. 88 . . 24, 205 Athens and Piraeus Ry: v. Hudswell, W. N. 1870, p. 131 . . . . 191 Atkinson v. Lord Braybrook, 4 Camp: 3S0 204 Austin V. Mills, 9 Ex: 288 212 xvi TABLE OF ENGLISH, SCOTCH AND IRISH CASES. Bacon v. Turner, 3 Ch: D. 275 ; 34 L. T. 64 ; 24 \V. R. 637 . . . 225 Badham v. Nixon, re Luckie, W. N. 1880, p. 12 . . . . .221 Bagot, Lord v. Williams, 3 B. & C. 235 ; 5 D. & R. 87 . . . . 35 Bailie z'. De Bernales, i B. & Aid: 331 195 Baily v. Welply, Ir: Rep: 4 C. L. 243 360 Ball V. Adrian, i Taunt: 64 189 Ballantyne v. Golding, Cooke's Bkptcy: Lazes, 8ih: cd: 487 . . . . 340 Bank of Australasia v. Harding, 19 L. J: C. P. 345 ; 14 Jur: 1094; 9 C. B. 661 22,25,28,43,155,172 Bank of Australasia v. Nias, 20 L. J: Q. B. 284 ; 15 Jur: 967 ; 16 Q. B. 717 22, 29, 107, 119, 121, 124 Bank of Portugal v. Waddell, re Hooper, 11 Ch: D. 317; 5 App: ca: 161 ; 48 L. J: Bk: 73 ; 40 L. T. 406 86, 340 Banque des Travaux Publiques v. Wallis, W. N. 1884, p. 64 . 190, 191 Barber v. Lamb, 29 L. J: C. P. 234 ; 6 Jur: N. S. 981 ; 8 W. R. 461 ; 8 C. B: N. S. 95 42, 44, 69, 213 Baring v. Clagett, 3 B. & P. 201 253, 254, 256 Baring v. Royal Exchange Ass: Co: 5 East 99 257 Barker t'. Hargreaves, 6 T. R. 597 194 Barrett v. Power, 9 Ex: 338 ; 23 L. J: Ex: 162 ; 2 C. L. R. 488 ; 18 Jur: 156 190 Barrs v. Jackson, i Y. & C. C. C. 585 ; [on app:] i Phil: 582 . 33, 46 Bartley v. Hodges, 30 L. J: Q. B. 352 ; i B. & S. 375 . 342, 343, 344 Barzillay v. Lewis, Fark on Insurance, 8th: ed: 725 .... 256 Bayley v. Edwards, 3 Swanst: 703 63, 70 Beauchamp v. Marquis of Huntley, Jac: 546 ..... 81 Beckford v. Kemble, i Sim: & S. 7 81, 82 Beckford v. Wade, 17 Ves: 87 200 Becquet v. McCarthy, 2 B. & Ad: 951 .. . 123, 125, 166, 173, 215 Beddington v. Beddington, i P. D. 426 ; 45 L. J: P. D. 44 ; 34 L. T. 366 ; 24 W. R. 348 219, 225 ^eggidi, in the goods of , i Add: 340 322 Belmonte v. Aynard, 4 C. P. D. 221-352 ; 27 W. R. 789 . . . . 192 Benazech v. Bassett, i C. B. 313 ; 2 D. & L. 801 . . . . 192 Bentinck v. Willink, 2 Hare i ^77 Berkeley v. Elderkin, i E. & B. S05 212 Bernard, ^jr/ar/^, 6 Ir: Ch: Rep: N. S. 133 216 Bernardi v. Motteux, 2 Dougl: 575 254, 255 Betts, ex parte, il W. R. 221 ; 7 L. T. 577 ; 9 Jur: 137 . . ■ • 95 Bianchi, in the goods 202 Harrison v. Gurney, 2 J. & W. 563 . . . . . . .81 Harvey v. Famie, 8 App: ca: 43 ; 52 L. J: P. 33 ; 48 L. T. 273 ; 31 W. R. 433 279, 281 Harvey z'. Jacobs, i B. & Aid ; 159 190 Hastings v. Hurley, W. N. 1888, p. 39 227 Havelock v. Rockwood, 8 T. R. 277 262 Hawarden v. Dunlop, 2 S. cS: T. 150 74. 87 Hawthorne, re, see Graham v. Massey. Hay V. Fisher, 2 M. & W. 722 ; Mur: & H. 286 52 Hearn J'. Glanville, 48 L. T. 356 71 Heather v. Webb, 2 C. P. D. i ; 45 L. J: C. P. 89 348 Helenslea, the, 7 P. D. 57 ; 51 L. J : P. 16 ; 30 W. R. 616 . . . 226 Henderson v. Henderson, 13 L. J: Q. B. 274 ; 6 Q. B. 288 ; 8 Jur: 755 168 id: 3 Hare 100 . . 47, 49, 53, 102, 128, 166 Henrick &= Maria, the, 4 Rob: 43 262 Henschen v. Garves, 2 H. Bl: 283 . . . . . . . . 188 Herbert v. Herbert, 2 Hagg: Eccl: 263, 271 ; 3 Phil: Eccl: 58 . . 278 Hercules Insurance Co:, re, 6 Ir: Eq: Rep: 207 ..... 365 H.M's Procureur and Advocate General v. Bruneau, L. R. i P. C. 169 ; 35 L. J: P. C. 56 387, 419 Hessing v. Sunderland, 25 L. J: Ch: 687 297 TABLE OF ENGLISH, SCOTCH AND HIISH CASES. xxiii PAGE Hill, in the goods of, L. R. 2 P. & D. 89 3i3 Hill V. Fox, 27 L. J: Ex: 416 ; 6 W. R. 652 196 Hobbs V. Henning, 34 L. J: C. P. 117 ; " Jur: N. S. 223 ; 13 W. R. 431 ; 12 L. T. 205; 7 C. B: N. S. 791 256,257 Hoby J'. Hitchcock, 5 Ves: 699 188 Hodsoll V. Baxter, 28 L. J: Q. B. 61 ; E. B. & E. 884 . . . . 184 Hodson, n', 17 Jur: 826 216 Holman e'. Johnson, i Cowp: 341 . . . . • • • .211 Holmes, re, 2 J. & H. 527 140, I43 Hollyfoid Mining Co:, re, L. R. 5 Ch: 93 ; 21 L. T. 734 . . 3^4 Hooper, ;r, see Bank of Portugal v. Waddell. Hope V. Carnegie, L. R. i Ch: 320 82 Hope z'. Hope, 26 L.J: Ch: 417 • -302 Houlditch V. Marquess Donegall, 2 CI: & Fin: 47° • • • 6, 24, 29 Household Insurance Co:, re, W. N. 1S7S, p. 26 . . . .216, 365 Houstoun, re, i Russ: 312. . . . • • • • •• 297 Howard, re, see Padley v. Camphausen. Huber v. Steiner, 2 Sc: 304 ; 2 Bing: N. C. 202 ; i Hodges, 206 . 54, I99) 200 Hubert v. Wallis [not reported] . . . . . . . . . 183 Hughes V. Cornelius, 2 Smith's L. C. 773 ; 2 Shower, 232 . 253, 260, 264 Hiildah, the, 3 Rob: Adm: 235 260 Hunter v. Potts, 4 T. R. 182 \pn app: sub nom: Stewart v. Hunter] 332, 336 Hunter v. Stewart, 31 L. J: Ch: 346 ; 4 De G. F. & J. 168 . . 48, 5° Huntley v. Bulwer, 6 Dowl: 633 I9S Hutcheson, in the goods of, 3 S. & T. 165 . . . . • . 3^8 Hutchinson z-. Colorado Mining Co: W. N. I S84, p. 40. . . . 230 Hutchinson v. Gillespie, 4 Mo: P. C. C. 378 . . . . • 387 Hyman v. Helm, 24 Ch: D. 531 ; 49 L. T. 376 ; 32 W. R. 258 . 81, 103 Imlay v. Ellefson, 2 East, 453 87 Isquierdo v. Forbes, i Dougl: 5n .....••• 6 Imperial Anglo-German Bank, re, 26 L. T. 229 ..... 33^ Indian Kingston Mining Co:, re, 22 Ch: D. 83 . . . • . • I9S Ingate v. Austrian Lloyd's, 6 W. R. 659 ; 4 C. B: N. S. 704. . . 232 International Pulp Co:, re, 3 Ch: D. 594 ; 45 L. J: Ch: 446 ; 35 L. T: 229 ; 24 \V. R. 535 82, 365 Jackson v. Petrie, 10 Ves: 164 141 Jackson v. Spittal, L. R, 5 C. P. 542 ; 39 L, J: C. P. 321 131, 132, 147 Jacobs V. Stevenson, i B. & P. 96 . . . . • • . . 188 James v. Catherwood, 3 D. & R. 190 ....••• 210 Johnson v. Beattie, 10 CI: & Fin: 42 . . . • • • • • 3^3 Jollett V. Deponthieu, i H. Bl: I32n 326 Jones V. Geddes, i Ph: 724 .....•••• 72 Jones V. Jones, 2 C. & J. 207 ; i Dowl: 313 ; 2 Tyr: 216 . . . I9S Jopp V. Wood, 34 L. J: Ch: 212 349 Joynes v. Collinson, 2 D. & L. 449 .....•• ^95 ytdiaFisher,the,2.V.T>.\\t^ 191 Keate v. Phillips, W. N. 1878, p. 186 219 Kelsall V. Marshall, i C. B: N. S. 266 22, 29 Kelson, ;r, (Tjc /«;-/£? Egyptian Trading Co:, L. R. 4 Ch: 125 . , . 86 xxiv TABLE OF ENGLISH, SCOTCH AND IRISH CASES. PAGE Kemble v. Mills, i M. & G. 565 187 Kennedy z'. Earl Cassilis, 2 Swanst: 313 73 Kennedy &. Edwards, 11 Jur: 153 187 Kent V. Burgess, 1 1 Sim: 37 1 279 Kerr v. Gillespie, 7 Beav: 269 . . . . . . . .188 Kielly v. Carson, 4 Mo: P. C. C. 63 378 Kierligheitt the, 3 Rob: 96 262 Kildare, Lord v. Eustace, i Vern: 419 141 Kilkenny Ry: v. Fielden, 6 Ex: 81 ; 2 L. M. lS: P. 124 ; 15 Jur: 191 ; 20 L. J: Ex: 141 192 Kindersley z/. Chase, Park on Insurance, 8th: ed: 743 . . . 254, 257 Kingston's case. Duchess of; 2 Smith's L. C. 770; XX Howell's State Trials 27, 107, 1 14 La Cloche v. La Cloche, L R. 4 P. C 325 ; 41 L. J: P. C. 51 ; 20 W. R. 953 . . . . 423 Lacon v. Higgins, 3 Stark: 175 ; i D. & R. 38; Ry: tS: M. 80 . . 278 Lanarkshire, the, 2 Spinks 189 70, 75) 87, 246 Land Credit Co: of Ireland, r^, 39 L. J: Ch: 389 153 Laneuville v. Anderson, 30 L. J: P. & M. 25 ; 3 L. T. 304 ; 6 Jur: N. S. 1260; 2 Sw: & Tr: 24 17, 311, 318 Langz/. Reed, 12 Mo: P. C. C. 72 419 Larpent z'. Sindry, i Hagg: Eccl: 383 310, 311 Law V. Garrett, 38 L. T. 3 ; 26 \V. R. 426 7°, 72 Le Chevalier z'. Lynch, i Dougl: 170 . . . . . . . 331 Leishman v. Cochrane, I Mo: P. C. C: N. S. 315; 9 L. T. 104; 12 W. R. 181 95. 154 Lenders v. Anderson, 12 Q. B. D. 50 ; 53 L. J: Q. B. 104 ; 32W.R. 230 222 Le Normand v. Prince of Capua, 6 Jur: 64 . . . . . .189 Leroux v. Brown, 12 C. B. 801 ; 22 L. J: C. P. I . . . 200, 201 Lester ». Bond, I Dr: & S. 392 216 Le Sueur v. Le Sueur, i P. D. 139 ; 45 L. J: P. 73 ; 34 L. T. 511 2S0, 292 Lewis, ex parte, I Ves: Sen: 208 ........ 296 Lewis V. Ovens, 5 B. & Aid: 265 196 Lewis V. Owen, 4 B. & Aid: 654 342 Lightowler v. Lightowler, W. N. 1884, p. 8 220 Limerick and Waterford Ry : v. Eraser, 7 Bing: 394 ; i M. & P. 23 .192 Lindsays. Oriental Bank, 13 Mo: P. C. C. 401 417 Liverpool Marine Credit Co: v. Hunter L. R. 3 Ch: 479 ; 37 L. J: Ch: 386; 16 W. R. 1090; 18 L. T. 749 . . . . 67, 171, 175, 247 Lolley's case, 2 CI: & Fin: 567 ; R. & R. C. C. 237 . . . 283, 285 London & N. W. R. v. Lindsay, 3 Macq: H. L. ca: 99 ; 4 Jur: N. S. 343 240 Longworth v. Hope, 3 Macph: 1049 ....... 240 Lopez V. Burslem, 4 Mo: P. C. C. 300 197, 199 Lorton v. Kingston, 2 Mac: & G. 139. 216 Lothian v. Henderson, 3 B. & P. 499 254, 255 Lowe V. Baker, i Ch: Ca: 67 ; 2 Freem: 125 ..... 66 Luckie, re, see Badham v. Nixon. Luzaletti v. Powell, i Marsh 376 194, 195 Lyallz^. Jardine, L. R. 3 P. C. 318 33^ Lynch v. McKenny, cit : 2 H. Bl: 554 343 TABLE OF ENGLISH, SCOTCH AND IRISH CASES. XXV Lynch v. Provisional Government of Paraguay, L. R. 2 P. & D. 268 ; 40 L. J: P. & M. 81 ; 25 L. T. 164 ; 19 \V. R. 982 . . . 209, 317 Macintosh e*. Ogilvie, cit : 4 T. R. 191 333 Mackenzie, /« //ii" ^(S^n/j (y^, Deane 1 7 3^4 Mackreth v. Glasgow, Ry : Co:, L. R. 8 Ex: 149 ; 42 L.J: Ex: 82 ; 28 L. T. 167 ; 21 W. R. 339 238 84 223 . 321 • 330 . 281 • 367 . 188 • 345 70. 75 • 307 . 291 8 192 • 309 . 190 . 254 , 120 • 191 • 194 Maclaren v. Carron Iron Co:? , ^ ^. ^, . Maclaren v. Stainton 3 Maclean v. Dawson, 4 De G. & J. 156 ; 33 L. T: O. S. 158 . MacNichol v. MacNichol, re MacNichol, L. R. 19 Eq: 81 ; 23 W. R 67 Madrid and Valencia Ry:, re, 3 De G. & S. 127 . Maghee v. McAllister, 3 Ir: Ch: N. S. 604 ... Mahon v. Hodges, Ir: Rep: 6 Eq: 344 . . . . > Mahon v. Martinez, 4 Moore, 356 Maitland v. Hoffman, cit: in Goetze v. Aders Mali Ivo, the, L. R. 2 A. & E: 356 ; 38 L. J: P. & M. 34 . Maltass v. Maltass, i Rob: Eccl: 67 Manning v. Manning, L. R. 2 P. & D. 223 Mapleson v. Masini, 5 Q. B. D. 144 ; 49 L. J: Q. B. 423 ; 28 W. R. Maraver, in the goods of, i Hagg: Eccl: 498 Maria v. Hall, 2 B. & P. 236 Marshall v. Parker, 2 Camp: 69 , . . . . Martin v. Nicholls, 3 Sim: 458 Mary or Alexandra, the, L. R. I A. & E. 335 . Massey v. Allen, 12 Ch: D. 807 Matthsei v. Galitzin, L. R. 18 Eq: 340; 43 L. J: Ch: 536; 30 L. T: 455 ; 22 W. R. 700 Maubourquet v. Wyse, Ir: Rep: i C. L. 471 Maugham, re, 22 W. R. 748 Maule V. Murray, 7 T. R. 470 Mayne v. Walter, Park on Insurance, Sth: ed: 431. 730 McCarthy v. Decaix, 2 R. & M. 614 McConnell v. Johnston, i East, 431 McCulloch, ^jf/ar^t-, r^ McCulIoch, 14 Ch: D. 716 .... McHenry v. Lewis, 22 Ch: D, 397 ; 52 L. J: Ch: 16. 325 ; 47 L. T. 549; 31 W. R. 305 65, 78,81 McLeod V. Schultze, 13 L. J: Ex: 321 ; i D & L. 614 . ... 54 McPhail, ex parte, 12 Ch: D. 632 ; 48 L. J: Ch: 415 ; 41 L. T. 338 . . 222 McStephens v. Carnegie, 42 L. T. 15 ; 28 W. R. 385 . Meek v. Michaelson, W. N. 1876, p. in Meeus v. Thellusson, 22 L. J: Ex: 239 ; 8 Exch: 638 Melbourn, ex parte, re Melbourn, L. R. 6 Ch: 64 ; 40 L. J : Bl 23 L. T. 578 ; 19 W. R. 83 Meliorucchy v. Meliorucchy, 2 Ves: .Sen: 24 . . . Messin v. Lord Massarine, 4 T. R. 493 Messina z'. Petrococchino, L. R. 4 P. C. 144; 20 W. R. 451 6, 102, 107, 121, 123, 169 Mette V. Mette, I S. & T. 416 ; 28 L. J: P. & M. 117 . . . . 273 Metters v. Brown, i H. & C. 686 50 Mewhnrn's Settled Estates, re, W. N. 1874, jx 156 216 131, 142 5, 166 216, 231 . 210 . . 256 . 276 • • 193 • 337 . 228 • 231 166, 173 25; 208, 336 • • 194 . 228 XXvi TABLE OF ENGLISH, SCOTCH AND IRISH CASES. Meyer, re, see ex parte Pascal. Meyerz-. Ralli, I C. P. D. 358;45L. J: C. P. 741; 24W. R. 963 . 124,127 Middleton v. Janverin, 2 Hagg: Cons: 437 278 Miller, in the goods of, 8 P. D. 167 ; 52 L. J: P. 93 ; 31 W. R. 956 . 318 Miller z-. James, L. R. 3 P. &D. 4; 42 L.J: P. & M. 21 . ... 313 Molony t/. Gibbons, 2 Camp: 502 . . . . . . . .161 Montellano v. Christin, 5 M. & S. 503 191 Moor z-. Anglo-Italian Bank, 10 Ch: D. 681 .... 74. M' Moore v. Darell, 4 Hagg: Eccl: 343 310 Morgan, re, l U. &T. 212 398 Morton, re, see ex parte Robertson . Mostyn v. Fabrigas, i Cowp: 161 139, 141 Muir, in the goods of, 28 L. J: P. & M. 49 368 Munro v. Munro, 7 CI: & F. 842 ; i Rob: 492 275 Munroe v. Pilkington, 31 L. J : Q. B. 81 ; 3 B. & S. 11 . 53, 119, 123, 126 Murrow v. Wilson, 12 Beav: 497 194 Naersnoos Ice Co: v. Royal Mail Co:, \V. N. 1880, p. 133 . . 195 Naylor v. Eagar, 2 Y. & J. 90 87 Naylor v. Joseph, 10 Moore, 522 . . . . . . . 188, 189 Neale v. Cottingham, I H. Bl: I32n. 326 Nelsons. Couch, 15 C. B: N. S. 99; 10 Jur: N. S. 366; 11 W. R. 964;8L. T. 577 35 Nelson v. Ogle, 2 Taunt: 253 ......... 188 Nelson t/. Pastorino, 49 L. T. 564 231 Newby v. Van Oppen, L. R. 7 Q. B. 293 ; 41 L. J: Q. B. 148 ; 26 L. T. 164 ; 20 W. R. 283 232 Newton v. Manning, i M. & G. 362 299 Niboyet v. Niboyet, 4 P. D: i ; 48 L. J: P. & M. i ; 39 L. T. 486 ; 27 W. R. 203 271, 280, 285, 289 Norris v. Chambres, 30 L. J: Ch: 285 ; 29 Beav: 246 ; 3 De G. F. & J. 583 142 Northampton Coal Co: v. Midland Waggon Co:, 38 L. T. 82 . -195 Norton v. Florence Land Co:, 7 Ch: D. 332 ; 26 W. R. 123 . 139, 144 Norton w. Spooner, 9 Mo: P. C. C. 103 406 Novelli V. Rossi, 2 B. & Ad: 757 122, 125, 161 Nugent V. Harcourt, 2 Dowl: 578 190 Nugent V. Vetzera, L. R. 2 Eq: 704 ; 35 L. J: Ch: 777 . . 303, 304 Nylander v. Barnes, 30 L. J: Ex: 151 ; 6 H. & N. 509 ; 7 Jur: 194 ; 9 W. R. 339 ; 3 L. T. 819 187, 189 Oakeley v. Ramsay, W. N. 1872, p. 235 76 Ochsenbein v. Papelier, L. R. 8 Ch: 695 ; 42 L. J: Ch: 861 ; 21 W. R. 516; 28 L. T. 459 68, 107, 165, 169 Odwin V. Forbes, l Buck C. B. 57 347 O'Lawler v. Macdonald, 8 Taunt: 736 1S8 Oliphant, ?■« /y^^?^^^;/^- 121, 124, 128, 205 Reiner v. Marquis of Salisbury, 2 Ch: D. 378 ; 24 W. R. 843 . . . 140 Reuss z/. Bos, L. R. 5 E. & I. 176 330 Reynoldsz/. Fenton, 16L. J: C. P. 15 ; ioJur:668 ; 3 C. B. 187 . 166,173,215 Ricardo v. Garcias, 12 CI: & Fin: 368 37, 46, 54 Ringer v. Churchill, So: Sess: Ca: 2nd Ser: IL 307 . . . 23S, 283 Roberdeau v. Rous, i Atk: 543 141 Robertson, ex parte, re Morton, L. R. 20 Eq: 733 . . 86, 161, 323, 335 Robertson v. Struth, 5 Q. B. 941 ; D. & N. 773 ; 8 Jur: 404 . . . 24 Robinson, re, 11 Ir: Ch: Rep: 385 332 Robinson, ex parte, re Robinson, W. N. 1883, p. 34 . . . . 338 Robinson z^. Bland, i W. Bl: 234 211 Roche, in the goods of 7 Jur: 784 ........ 367 Rogerson, in the goods of , 2 Curt: Eccl: 656 , . . . . -311 Rose V. McLeod, 4 Shaw & Dun: 308 345 Rose V. Ross, 4 Wils. & Sh: 289 275 Rousillon V. Rousillon, 14 Ch: D. 351 ; 49 L. J: Ch: 339 . . 164, 176 Rowbotham v. Rowbotham, 27 L. J: P. & M. 33; i S. & T. 73 . . 293 Royal Bank of Scotland v. Cuthbert, i Rose 462, appdx: . . . 344 Ruckmaboye v. Lulloobhoy Mottichund, 8 Mo: P. C. C. 4 ; 5 I\Io: Lid: App: 234 199 Ruding V. Smith, 2 Hagg: Cons: 371 . . . . . . . 278 Rule, iti the goods of 4 P. D. 76 ; 49 L. J: P. & D. 32 ; 26 \V. R. 357 ; 39 L. T. 123 319 Russell V. Smyth, 9 M. & \V. 810 ; i D: N. S. 929 . . 8, 10, 128, 207 Ryan v. Ryan, 2 Phil: Eccl: 332 281 Ryde, in the goods of, L. R. 2 P. & D. 86 ; 39 L. J: P. & M- 49 ; 23 L. T. 166 ; iS W. R. 902 369 TABLE OF ENGLISH, SCOTCH AND IRISH CASES. xxix PAGE St. Leger v. Di Nuovo, 2 Sc: N. R. 587 186 St. Nazaire Co:, re, see ex parte European Bank. Sadler v. Robins, i Camp: 253 5^ Saloucci V. Woodmas, Park on Insurance, 8th: ed: 727 .... 255 Sandys v. Hohler, 6 Dowl: 274 I95 Santo Teodoro v. Santo Teodoro, 5 P. D. 79 ; 49 L. J: P. 20 ; 42 L. T. 331 292 Sargazurietta, r*?, 20 L. T: O. S. 299 298 Savini v. Lousada, re Savini, W. N. 1870, p. 60 305 Sawers, re, see ex parte Blain. Sawyer z/. Sloane, Sc: Sess: Ca: 4th ser: III. 271 300 Schibsby v. Westenholz, L. R. 6 Q. B. 155 ; 40 L. J: Q. B. 73 ; 24 L. T. 93; 19W. R. 587 7, 8, 19, 2on., 44, 130, 137, 146, 157, 158, 160, 164, 177, 215 Scinde, Ry: £?.v /«:;'/(.', r^ Oriental Co: L.R. 9 Ch: 557 . . .83,331 Scott z/. Bentley, 24 L. J: Ch: 244 296 Scott V. Royal Wax Candle Co: I Q. B. D. 404 ; 45 L. J. Q, B. 5S6 ; 34 L. T. 683 ; 24 W. R. 668 232 Scrimshire z'. Scrimshire, 2 Hagg: Cons: 295 277 Scruton v. Gray, Morr: 4822 241 Segredo, the, i Spinks 36 ........ . 253 Seidler, ex parte, 12 Sim: 106 194 Seilaz V. Hanson, 5 Ves: 261 190 Selkrig v. Davis, 2 Rose 291 ; 2 Dow 230 86, 344 Shaw V, Attorney-General, L. R. 2 P. & D. 159 ; 39 L. J: P. &. M. 31 . 169 Shaw V. Gould, L. R. 3 H. L. 55 ; 37 L. J: Ch: 433 ; 13 L. T. 833 272, 277, 282, 283, 286, 290 Sheehy v. Professional Life Assurance Co:, 26 L. J: C. P. 301 ; 3 Jur: N. S. 748; 2C. B:N. S. 211 168 Shurmur v. Hodge, W. N. 1866, p. 304 216 Sichel V. Borch, 33 L. J: Ex: 179 ; 2 H. & C. 954 147 Sidaway v. Hay, 3 B. & C. 12 . . . . . . . . . 343 Sill V. Worswick, i H. Bl: 655 326, 332, 334, 336 Simonin v. Mallac, 29 L. J: P. & M. 97 ; 2 S. & T. 67 . 273, 274, 277, 281, 285 Simpson v. Fogo, 32 L. J: Ch: 249 ; 8 L. T. 61 ; 11 W. R. 418 ; 9 Jur: N. S. 403 ; I H. & M. 195. . 48, 115, 118, 125, 161, 171, 174, 247 Sinclair v. Fraser, I Dougl: 5n. [cit: in Duchess of Kingston''s case, XX Howell's State Trials, p. 469] 24 Smith, m the goods of, 16 W. R. 1 130 313 Smith, re, I P. D. 300 ; 45 L. J: P. & M. 92 ; 35 L. T. 380 ; 24 W. R. 903 217 Smith V. Buchanan, I East 6 . . . . . . . . . 342 Smith V. Nicholls, 8 L. J: C. P. 92 ; 5 Bing: N. C. 203 ; 7 D. P. C 282 ; I Arn: 474 27, 29, 30, 43, 69, 213 Smith v. Surridge, 4 Exp: 25 263 Soeurs de St. Joseph v. Middlemiss, 3 App: ca: 1102 ; 47 L. J: P. C. 89 ; 38 L. T. 899 387 Solomons z'. Ross, I H. Bl: I3in. ........ 326 Sottomayor, re, L. R. 9 Ch: 677 ........ 299 Sottomayor v. De Barros, 2 P. D. 81 ; 3 P. D. i ; 5 P. D. 94 ; 46 L. J: P. & M. 43 ; 47 L. J: P. & M. 23, 36 L. T. 746 ; 25 W. R. 541 . 272, 274 Southcot, ex parte, 2 Ves: Sen: 401 ........ 296 Speckhart, v. Campbell, W. N. 1884, p. 24 . . . , . 220, 222 XXX TABLE OF ENGLISH, SCOTCH AND IRTSII CASES. PACE 278 406 Stanley v. Bernes, 3 Hagg: Eccl. 373 ..... Stark, re, 2 Mac: & G. 174 Steele v. Braddell, Miles: Ir: Cons: i Steele v. Thompson, 13 Mo: P. C. C. 280 ; 8 W. U. 874 Steigerwald, in t/te goods of, 10 Jur: 159 . Stein z*. Cope [not reported] ....... 31, 185 Stein's case, see Royal Bank of Scotland v. Culhbcrt. Stevenson v. Anderson, 3 V. & B. 407 . . . . . . .217 Steward z/. Bank of England, W. N. 1876, p. 263 218 Stewart, in the goods of, i Curt: Eccl: 904 ...... 309 Stewart v. Stewart, 20 Beav: 322 ........ 189 Stigand v. Stigand, 19 Ch: D. 460 ; 30 W. R. 112 ; 45 L. T. 603 . 218, 224 Stirling-Ma.xwell v. Cartwright, 11 Ch: D. 522 ; 48 L. J: Ch: 562 . 320 Strother v. Read, cit: in Goetze v. Aders ...... 345 Sturlia v. Freccia, W. N. 1877, pp: 166, 188 ; W. N. 1878, p. 161 131, 194 Sudlow V. Duch Rhenish Co: 21 Beav: 43 . . . . . . 69 Sudlow V. Sudlow, 29 L. J: P. & M 294 Swansea Shipping Co: v. Duncan, i Q. B. D. 644 ; 45 L. J: Q. B. 638 : 35 L. T. 879; 25 W. R. 233 221, 230 Swanzy v. Swanzy, 27 L. J: Ch: 419; 4 K. & J. 237 . . . 186, 194 Swinburne v. Carter, 23 L. J: Q. B. 16 ; 11 Jur: 1165 ; 2 C. L. R. 104 . 192 Symes v. Cuvillier, 5 App: ca: 138 ; 49 L. J: P. C. 54 ; 42 L. J. 198 . 387 Sykes v. Sykes, L. R. 4 C. P. 645 193 Tait, ex parte, re Tait, L. R. 13 Eq: 311 ; 41 L. J; Bk: 32 . . .84 Talbot, re, W. N. 1882, p. 13 . . . . " 366 Tambisco v. Pacifico, 21 L. J: Ex: 276; 7 Ex: 816 186 Tarleton v. Tarleton, 4 M. & S. 20 119 Tatnall v. Hankey, 2 Mo: P. C. C. 342 308 Taylor v. Ford, 22 W. R. 47 ; 29 L. T: 392 . . . -54, 130, 160 Taylor v. Eraser, 2 Dowl: 622 . . . . . . . .188 Teap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381 . • . . . 422 Tellett V. Laylor, 8 Ir: L. R: C. P. D. 8 195 Tenon v. Mars, 8 B. & C. 638 ; 7. L. J: O. S: K. B. 89 ; 3 M. & R. 38 . 20 Thomel v. Roelants, 2 C. B. 290 . . . . . . . -193 Thorburn, v. Steward, L, R. 3 P. C. 478 ; 40 L. J: P. C. 5 ; 7 Mo: P. C. C: N. S. 333 ; 19 W. R. 678 336,412 Tollemache v. ToUemache, 30 L. J: P. & M. 1 15 . . . . 283, 285 Toller V. Carteret, 2 Vern: 494. ....... 66, 141 Tottenham v. Barry, 12 Ch. D. 797 ; 48 L. J: Ch: 641 ; 28 W. R. 180 222, 224 Tourton z*. Flower, 3 P. Wms: 369 . 311 Tovey z/. Lindsay, i Dow: 117 . . . . . . . . 276 Townsend v. Early, 3 De G. & J. 23 . . . , . . . 344 Traill v. Porter, i Ir: L. R. 60 219, 237 Transatlantic C: z'. Pietroni, Johns: 604 ....... 72 Trimble v. Hill, 5 App: ca: 342 ; 49 L. J: P. C. 49; 42 L. T. 103 . . 378 Tull, ex parte, 3 Dea: & Ch: 503 194 Tullochz'. Hartley, I Y. & C: Ch: 114 141 Tullock V. Crowley, i Taunt: 18 190 TABLE OF ENGLISH, SCOTCH AND IRISH CASES. xxxi Udny v. Udny, L. R. i Sc: App: 441 . Umfreville v. Johnson, L. R. 10 Ch: 580 . Union Bank of Calcutta, re, 3 De G. & S. 253 275, 289 • ■ 193 • 330 L. T. 941 320 155 Vallance, re, 24 Ch: D. 177 ; 52 L. J: Ch: 791 ; i Vallee v. Dumergue, 18 L. J: Ex: 398 ; 4 Exch: 290, Van Breda v. Silverbauer, L. R. 3 P. C 84 ; 39 L. J: P. C. 8 ; 22 L. T. 667 ; 18 W. R. 553 413 Van der Kan v. Ashworth, W. N. 1884, p. 58 217 Vanquelin v. Bouard, 33 L. J: C. P. 78 ; 12 W. R. 128 ; 15 C. B: N. S. 341 53, 102, 207, 320 Vanzeller, re, see ex parte Cotesworth. Vaughan, v. Weldon, L.- R. 10. C. P. 47 ; 44 L. J: C. P. 64 ; 31 L. T: 6S3 148 Venning v. Lloyd, i De G. F. & J. 193 ..... 64, 73, 74 Viesca z'. D'Aramburu, 2 Curt: Eccl: 277 . . . . .311, 318 Vivar, the, 2 P. D. 29 ; 35 L. T. 782 ; 25 W. R. 453 . . . 163, 217 Von Buseck, in the goods ^, 6 P. D. 2 1 1 . . . . . . 308 Von Tungeln &. Dubois, 2 Camp: 151 . . . . . . . 254 Waldron v. Coombe, 3 Taunt: 162 ....... 212 Walker v. Witter, i Dougl: i ...... , 24, 105 Wallace v. Campbell, 4 Y. & C. 167 Ward V. Dey, i Robert 789 .... Warrender v. Warrender, 9 Bl: N. S. 89 Watkins, ex parte, 2 Ves: Sen: 470 Watson V. Birch, 15 Sim: 523 Webb V. Giddy, 3 App: ca: 908 ; 47 L. J: P. C. 71 Webster, in the goods of, 29 L. J: P. & M. 66 . Wedderburn v. Wedderburn, 4 My: & Cr: 585 . Weeks v. Cole, 14 Ves: 518 Wells V. Lord Antrim, 3 Svvanst: 703 ; cit: 3 Atk: 588 Wells V. Barton, 2 Dowl: 160 Westenberg v. Mortimore, L. R. 10 C. P. 438 ; 32 L. T Westman v. Aktiebolaget, etc: Snickarefabrik, i Ex: D. 237 ; 45 L. J: Ex: 327 ; 24 W. R. 405 .... Wharton v. May, 5 Ves: 71 Whicker v. Hume, 7 H. L. ca: 124 White V. Carrol, Ir: Rep: 8 C. L. 296 White V. Greathead, 15 Ves: 2 . . . White V. Hall, 12 Ves: 321 ( Whittall V. Campbell, 29 L. J: Ex: 326 ; 8 W. R. 450 ; S H. & N. 601 ; 6 Jur: 485 190 Whyte V. Rose, 3 Q. B. 493 320 Williams v. Crosling, 3 C. B. 957 . . . . . . . . 192 Williams v. Jones, 14 L. J: Ex: 145 ; 13 M. & W. 628 ; 2 D. & L. 680 . 8, 204 Williams z". Jones, 13 East 439 ......... 199 Williams v. Wheeler, 8 C. B: N. S. 299 200 Willisz'. Garbutt, I Y, & J. 511 186 38 L. T. S22 402 . 278 277, 280 • 303 . 204 • 413 • 369 • n • 194 • • 71. . 188 185, 187 226 74 378 360 189 141 Wilson, ex parte, re Douglas, 7 Ch: D. 490 ; 41 L. J: Bk: 46 Wilson's Trusts, re; (Shaw v. Gould), 35 L. J: Ch: 248 . Wilson V. Ferrand, L. R. 13 Eq: 362 86 276 73 XXXll TABLE OF ENGLISH, SCOTCH AND IRISH CASES. Wilson V. Minchin, i Dowl: 299 ; 2 C. & J- 87 Wilson V. Wilson, L. R. 2 P. & D. 435 Wingate, in the goods 0/, 2 S. &. T. 625 . Winter, in the goods of, 30 L. J: P. & M. 56 Winterfield v. Bradnum, 3 Q. B. D. 324 ; 38 L. Wolff z'. Oxholm, 6 M. & S. 92 . Wood V. Mclnnes, 27 W. R. 49 . Worms V. De Valdor, 49 L. J: Ch: 261 Wotherspoon v. Connolly, Sc: Sess: ca: 3rd Ser: IX Wyllie V. Ellice, 1 1 Beav: 99 ... • r. 256 310 Yelverton v. Yelverton, i S. & T. 574 . York V. McLaughlin, Ir: Rep: 8 C. L. 547 . Youde V. Youde, 3 A. & E. 311 Young V. Barclay, 8 Bell & Mur: N. S. 774 . Young V. Brassey, i Ch: D. 277 ; 45 L. J: Ch: 142 ; 24 W Young V. Buckel, Sc: Sess: Ca: 3rd ser: II. 1077 . R. no PAGE 196 292 368 191 210, 343 222, 224 208, 306 359, 361 195 292 360 191 90 224 345 TABLE OF COLONIAL, AMERICAN AND FOREIGN CASES. ABBREVIATIONS. A. L. E. — Annuaire de Legislation Etranger. J. D. I. P. or J. — Journal de Droit International Prive. R. D. I. — Revue de Droit International. Adams v. Adams. [New Hampshire], 51 N. H. Rep: 38? Addams v. Worden [Lower Canada], 6 L. C. Rep : 237 Andersen v. Piccioni [France], J. D. I. P. 1883, p. 161 Anon: [Austria], J. D. I. P. 18S1, p. 169 . ■ [Belgium], J. D. I. P. 188 1, p. 69 . . . [France]. J. D. I. P. 1874, p. 121 . [France], J. D. I. P. 1877, p. 234 [Netherlands], J. D. I. P. 1875, P- 3i8 Ardizoni 7j. Ridri [Italy], J. D. I. P. 1881, p. $42 Arnoult, re [France], J. D. I. P. 1880, p. 191 . Avril V. Donaudy [Italy], J. D. I. P. 1881, p. 538 PAGE 108 209 453 434 441 450 103, 455 490 483 448 479 Bank of Hindustan v. Premchand [Bombay], 5 H. C. Rep: 83 Barney z). New Albion R. R. Co: [Ohio], i Handy: 571 Bartisius v. Jamanti [France], J. D. I. P. 1880, p. 585 . . Baudemon v. Baudemon [France], J. D. I. P. 1881, p. 515 . Bauffremont, affaire [Belgium], J. D. I. P. 18S0, p. 508 ; 18S2, p. 364 Baxter v. New England Ins: Co: [Massachusetts], 6 Mass: Rep: 277 . 2 Becker v. Robbins [Belgium], J. D. I. P. 1881, p. 70 . Belnot ZJ. Negrao [France], J. D. I. P. 1882, p. 619 . Blake v. Williams [Massachusetts], 23 Mass: Rep: 285 . Borelli v. Pagliano [France], J. D. I. P. 1877, p. 423 Bradstreet v. Neptune Ins: Co: [New York], 3 Sumner 600 . 259, 26 Brown Johnston v. Massey [France], J. D. I. P. 1877, p. 424 Bullock V. Norris [France], J. D. I. P. 1881, p. 430 Buret de Longagne v. Rolin [Belgium], J. D. I. P. 1881, p. 69 . Campbell v. Steele [Pennsylvania], 11 Penn: Rep: 394 Campo V. Call [Spain], J. D. I. P. 1881, p. 365 .. . Carab tj. Ahmet Buharali [Egypt], J. D. I. P. 1878, p. 178 . Chatelat v. Chatelat [Belgium], J. D. I. P. 1881, p. 100 . 56 83 535 452 453 439 > 259 442 453 347 454 I, 264 452 452 441 144 501 550 440 xxxiv TABLE OF COLONIAL AND FOREIGN CASES. PAGE Chemin de Fer N. O. d' Autriche v. Franck [France], J. D. I. P. 1878, p. 37 448 Compagnie des Engrais v. Ville de Paris [France], J. D. I. P. 1876, p. 357 449 ,, de Gazde Marseilles z^. Cie: Bingen [Italy], J. D. I. P. 1881, p. 438 484 Cordua v. Montecatini [France], J. D. I. P. 1876, p. 102 . 450 Cyr 2^. Sanfafon [New Brunswick], 2 Allen 641 . ■ • 95 Debenedetti v. Morand [Italy], J. D. I. P. 1879, p. 72. Ii6, 175, 431, 483 De Boigne v. Gryniewitch [France], J. D. I. P. 1877, p. 422 . . . 449 De la Motte v. Delvigne [Belgium], J. D. I. P. 1878, p. 510 . . 442 De Maille v. Duchesse de Plaisance [Italy], J. D. I. P. 1879, p. 74 • • 484 Demarre v. Bosso [Italy], J. D. I. P. 1879, p. 292 208, 480 Demeritt v. Lyford [New Hampshire], 27 N. H. Rep: 541 . iii, II2 Deneve v. Fouchet [France], J. D. I. P. 1877, p. 422 .... 450 Derack v. Ghesquiere [France], J. D. I. P. 1881, p. 255 . . . . 454 Desaye v. Clement [France], J. D. I. P. 1880, p. 479 .... 453 Dessaint v. Belgrave [France], J. D. I. P. 1880, p. 478 . . . . 453 Drake del Castillo, re [France], J. D. I. P. 1883, p. 51 . . 306, 453 Dreisch v. Brech [France], J. D. I. P. 1878, p. 42 . . . . . 452 Dubost V. Borasio [France], J. D. I. P. 1880, p. 102 .... 450 Duche V. Raymond [France], J. D. I. P. 1876, p. 459 . . . . 450 Duport V. Chateauvillard [Italy], J. D. I. P. 1879, p. 86 . . 431, 477 Dupuy V. Bonacini [France], J. D. I. P, 1880, p. 585 . . . . 455 Faber v. Hovey [United States], 19 American Rep: 398 • • • 53 Fakuruddeen Assan v. Official Trustee of Bengal [Calcutta], I. L. R : 7 Cal: 82 206 Fergus v. "Wardlaw [New Brunswick], 3 Kerr, 665 .... 29 Fermo-Conti v. Morin [France], J. D. I. P. 1874, p. 121 . . . . 450 Floating Dock Co: v. Cezard [France], J. D. I. P. 1880, p. 105 . 156, 447 Forbes v. Scannell [California], 13 Cal: Rep: 242 . . , . . 212 Freyberg v. Benasatti [Italy], J. D. I. P. 1879, p. 209 . . . 480, 485 Gauthier v. Blight [Upper Canada], 5 C. P. 122 . . . . . 164 Glisenti, r(?[Italy], J. D. I. P. 1879, p. 211 483 Guermont v. Societe de la Voirie [France], J. D. I. P. 1882, p. 615 . . 449 Haussens v. Delorme [France], J. D. I. P. 1875, P- 354 • ■ 453> 454 Heera Monee Dossia v. Promothonath Ghose [India], 8 W. R: Civ: Rul : 32 . . . 204 Helstein v. ShafTauser [France], J. D. I. P. 1880, p. 474 . .152, 448 Hendricks z'. Comstock [Indiana], 12 Ind: Rep: 238 . . . 200, 203 Hoffman v. Mack [Italy], J. D. I. P. 1879, p. 77 . . . . 335, 484 Hollister v. Hollister [New York], 10 How: N. Y. 539 . . • • 53i Holmes v. Remsen [New York], 4 Johns: Ch: 460 . . 144, 337, 347 Howe V. Bernheim [France], J. D. I. P. 1880, p. 104 . . . , 447 Huet V. Bonturlinn [Italy], J. D. I. P. 1881, p. 547 .... 483 ISABEY V. De Cartier [Belgium], J. D. I. P. 1876, p. 479 . , . . 441 Jamieson 57. Robb [Victoria], I Vic: L. R: L. 170 . . . .156 Jarvis v. Sewall [New York], 40 Barbour 449 . . . . . . 523 Junkin v. Davis [Upper Canada], 6 C. P. 408 95 TABLE OF COLONIAL AND FOREIGN CASES. XXXV Kandasami Pillai v. Moidui S.iib [Madras], I. L. R: 2 Mad: 338 Kerby v. Elliott [Upper Canada], 13 Q. B. 367 King V. Demers [Lower Canada], 15 L. C. Jurist 129 Kingsmill v. Warrener [Upper Canada], 13 Q. B. 18 . Kitchenkow, case of Lieutenant [Russia], J. D. I. P. 1874, p. 47 PAGE . . 207 95. 124 204, 205 . 120 • • 497 Lafayette Insurance Co: v. French [New York], 18 Howard 404 . La Moderazione v. La Chambre d'Assurance Maritime [France], J. D. L P. 1878, p. 345 431 Lemos v. Roulina [Brazil], J. D. I. P. 1S80, p. 515 Leonardi v. Porelli [France], J. D. I. P. 1880, p. 190 Leteneur v. Cie: Noel Sart-Culport [France], J. D. I. P. 1875, P- 357 Levi V. Pitre [Italy], J. D. I. P. 1879, p. 295 .... Lomer v. Letouze [France], J. D. I. P. 1880, p. 476 Loney v. Richards [Victoria], Argus Rep: 28 March, 1861 Loubatieres v. David [Belgium], J. D. I. P. 1881, p. loi Louis V. Nokes [France], J. D. I. P. 1880, p. 584 . Lublin V. Posse! [France], J. D. I. P. 1877, p. 424 Luckenbach v. Anderson [Pennsylvania], 47 Penn: Rep: 123 Macpherson v. St. Lawrence Ins. Co: [Lower Canada], 5 L. C. 403 Tl/arj, ///d- [New York], 9 Cranch, 126 . May V. Ritchie [Lower Canada], 16 L. C. Jurist 81 Maynard v. Vernhes [France], J. D. I. P. 1877, p. 40 Mazetti v. Cisi [Italy], J. D. I. P. 1881, p. 536 . McCrae w. Robinson [Victoria], Argus Rep: 17 May, 1858 McFarlane v. Derbishire [Upper Canada], 8 V. C. Rep: Q. B. 12 McMillan v. Ritchie [New Brunswick], 2 Allen 242 . Middlebrooks v. Springfield Ins. Co: [Connecticut], 14 Conn: Rep Milne v. Van Buskirk [Iowa], 9 la: Rep: 558 .... Moir V. Smyth [France], J. D. I. P. 1880, p. 192 .... Montreal Mining Co: v. Cuthbertson [Upper Canada], 9 Q. B. 78 Morand v. Debenedetti [Italy], J. D. I. P. 1879, p. 212 Munroe v. Douglas [New York], 4 Sandford 126 30 166 546 449 449 483 454 205 442 452 454 112 Rep 386 246, 264 121 454 479 210 2 55 527 102 452 165 483 139, 264 Palandri v. Lauthier [Italy], J. D. I. P. 1883, p. 87 . . 55, 123, 482 Paris Skating Rink Co:, re [France], J. D. I. P. 1878, p. 265 .451 Patterson v. Mayfield [Louisiana], 10 Louis: Rep: 220 . . -531 Perinaud v. Edet-vallee [France], J. D. I. P. 1883, p. 160 . . 453 Petitdidier z/. Boone [Belgium], J. D. I. P. 1881, p. 83 . . 439 Piedigriggio v. Comm: de Molifao [France], J. D. I. P. 1876, p. 104 . 263 Pool V. Hill [New Brunswick], 2 Kerr, 184 ...... 95 Preservatrice v. Duval [France], J. D. I. P. 1874, p. 127 . . 449 Punet V. Alladinbhog Khoja [Portugal], J. D. I. P. 1875, P- 54 49' R. V. Wright [New Brunswick], i P. & B. 363 96, in Radcliffe v. United Ins: Co: [New York], 9 Johnson, 277 . 256 Rangely v. Webster [New Hampshire], 11 N. H. Rep: 299 . . . 106 Rankin v. Goddard [Maine], 55 Ma: Rep: 389 120 Renshaw v. Maitre [France], J. D. I. P. 1878, p. 38 452 Richet V. Richet [France], J. D. I. P. 1882, p. 85 .... 453 XXXvi TA15LE OF COLONIAL AND FOREIGN CASES. PAGE Rickman, ;-(?[France], J. D. I. P. 1875, p. 21 448 Robinson v. Jones [Massachusetts], 8 Mass: Rep: 536 .... 255 Rochaid-Dahdah v. Poirier [France], J. D. I. P. 1881, p. 58 . . . 450 Rose V. Himely [New York], 4 Cranch, 241 . . . . 260, 262, 264 Sant-Cassia, re [Italy], J. D. I. P. 1879, p. 301 479 Sawyer v. Maine Ins: Co: [Massachusetts], 12 Mass: Rep: 291 . . 264 Shaffauser 2/. Waddington [France], J. D. I. P, 1881, p. 256 . . . 448 Smith & Anderson, and the City of Mecha, re [France], J. D. I. P. 1882, p. 166 452 Smith V. Anderson [France], J. D. I. P. 1881, p. 59 • • 453. 493 Spaarnaay v. Dewilde [Belgium], J. D. I. P. 1881, p. 70 . . . 442 Sottocasaz^. Sottocasa-Nolli [Italy], J. D. I. P. 1879, p. 82 . . 479 St. Nazaire Co: v. Allair [France], J. D. I. P. 1882, p. 306 156, 447, 453 Strauss 57. Stern [Belgium], J. D. I. P. 1 88 1, p. 74 440 Talmage v. Chapel [Massachusetts], 16 Mass: Rep: 71 . . . . 320 Tebbetts v. Tilton [New Hampshire], 31 N. H. Rep: 273 . 47, 106 Thornhill v. Trant [France], J. D. I. P. 1881, p. 59 . • • . 455 Tilkin v. Byrne [Belgium], J. D. LP. 1876, p. 298 439 Turpin v. O'Niel [France], J. D. I. P. 1876, p. loi . . . . 448 Vandervoort e'. Smith [New York], 2 Caine, 155 523 Vanderzee v. Societe de Credit Industriel [France], J. D. I. P. 1878, p. 157 448, 451 Varle v. Hava [France], J. D. I. P. 1881, p. 156 452 Veiga do Arneiro v. Barroil [Portugal], J. D. I. P. 1878, p. 448 . . 494 Vie V. Cie: Segovia Cuadra [France], J. D. I. P. 1876, p. 179 . . . 448 Viellard-Migeon v. Rueff [France], J. D. I. P. 1883, p. 50 . . . 454 Von Steiglitz, in /'//^^^^rt'^*?/" [Victoria], 3 Vic: L. R: I. P. & M. 35 . . 397 Warren z'. Hall [Louisiana], 10 Louis: Rep: 377 . . . . . 531 Warrener v. Kingsmill [Upper Canada], 8 Q. B. 407 . . . . 159 Wattier v. Le Ministre Publique [France], J. D. I. P. 1880, p. 576 . 209 White V. Lamoureux [France], J. D. I. P. 1878, p. 606 . . 453, 454 Whittaker, in the goods of, [Victoria], 2 W. & W: I. E. & M. 114 . 397 Wibault V. CoUignon [Belgium], J. D. I. P. 1876, p. 298 . . . . 439 Woodruffe v. Walling [Upper Canada], 12 Q. B. 501 .... 95 Woolf z/. Coopman's Curator [Belgium], J. D. I. P. 1878, p. 516 . . 441 TABLE OF STATUTES UNITED KINGDOM. PAGE 29 Car: II. c. 3 [Statute of Frauds] s. 4 . . . . . . . . 200, 201 s. 17 201 4 Geo: II. c. 10. [Lunacy Act, 1 731] 297 13 Geo: III. c. 63 [Indian Courts, 1740] s. 13 379 21 Geo: III. c. 70 [Indian Procedure] s. 17 201 43 Geo: III. c. 46 [Prevention of frivolous suits, 1803] s. 4 184 49 Geo: III. c. 27 [Newfoundland Court Act, 1809] s. 8 344 50 Geo: III. c. 112 [Scotch Fees] 362 54 Geo: III. c. 137 343 4 Geo: IV. c. 91 [Marriage of British subjects abroad] .... 279 6 Geo: IV. c. 120 [Scotch Judicature Act] . . . . . . . 238 I Will: IV. c. 63 [Lunacy Act, 1832] s. 34 299 6 & 7 Vic: c. 22 [Evidence of uncivilized people in Colonies] . . . 379 10 & 1 1 Vic: c. 96 [Trustee Relief Act, 1847] 2i6 II & 12 Vic: c. 45 [Winding up Act, 1848] s. 108 153 12 & 13 Vic: c. 68 [Marriage of British subjects abroad, 1849] • • • 279 14 & 15 Vic: c. 81 [Indian Lunatics Act, 185 1] . . . 300, 366, 382 s. 5 300 s. 6 300 c. 99 [Proof of Foreign Judgments, 1851] . . . . 54 s- 7 94, 105 ss: 9, 10 . . . . . . . . . 96 s. II 96 s. 19 94 XXXviii TABLE OF STATUTES OF THE UNITED KINGDOM. PAGE 15 & i6 Vic: c. 76 [Common Law Procedure Act, 1S52] . . . . 158 ss: 18, 19 . . . . 19, 135, 145. 227, 232 16 & 17 Vic: c. 70 [Lunacy Regulation Act, 1853] s. 40 296 s. 45 290, 298 s. 52 . . 366 s. 85 299 s. 141 299 s. 147 299 19 & 20 Vic: c. 113 [for taking Evidence of Foreign Tribunals, 1856] . 90 c. 120 [Leases and Sales of Settled Estates Act, 1856] . . 216 20 & 21 Vic: c. 75 [Jurisdiction in Siam, 1857] . . . . . 421 c. 77 [Court of Probate Act, 1857] s. 73 • 312, 314 c. 79 [Probate Act— Ireland, 1857] s 94 367 s. 95 367 c. 85 [Matrimonial Causes Act, 1857] s. 27 289 s. 42 227, 293 21 & 22 Vic: c. 56 [Probate and Confirmation Act— Scotland, 1858] s. 12 367 s. 13 • 368 s. 14 368 Schedule (F) 370 c. 95 [Probate Amendment Act. 1858] s. 29 369 22 & 23 Vic: c. 13 [Antigua and Barbuda Act, 1859] . . . .411 c. 31 [Probate Act, Ireland, 1859] s. 25 . . . 369 24 & 25 Vic: c. 104 [Indian Courts, i86i] s. II -379 c. 114 [Wills of British Subjects made abroad, 1861] s. I . . . . .... 308 s. 3 ■• • ■ 308 25 &. 26 Vic: c. 89 [Companies Act, 1862] 153 s. 87 82, 365 ss: 100, 1O5 .... 216, 365 s. 163 83 s. 122 s. 123 s. 125 Rules of Nov : 1862. rules 33' 34, 35 rule 63 ....... . 26 & 27 Vic: c. 31 [Cayman Islands Act, 1863] c. 35 [Cape of Good Hope — Criminal Jurisdiction, 1863] 28 Vic: c. 5. [British Kaffraria Act, 1864] 28 & 29 Vic: c. 63 [Colonial Laws Act, 1865] c. 64 [Marriage of British Subjects abroad, 1855J 29 & 30 Vic: c. 67 [British Columbia Act, 1S66] ... c. 115 [Straits Settlements Act, 1866 364 364 364 153 153 404 413 412 377 279 392 421 TABLE OF STATUTES OF THE UNITED KINGDOM. XXXlX PAOE 2, 196, 358, Appendix ■ 358 359. ■ 359. 360 360 359 359 31 & 32 Vic: c. 54 [Judgments Extension Act, 1868] ss: I, 2, 3 s- 4 s-5 s. 6 s. 7 32 & ^;^ Vic: c. 71 [Bankruptcy Act, 1869] s. 74 372 34 & 35 Vic: c. 107 [Leeward Islands Act, 1872] 411 36 Vic: c. 6 [Turks and Caicos Islands Act, 1873] . . . . . 405 36 & 37 Vic: c. 66 [English Judicature Act, 1873] s. 25 (6) 21 37 & 38 Vic: c. 38 [Straits Settlements. Criminal Jurisdiction, 1874] . 421 38 & 39 Vic: c. 66 [Statute Law Revision Act, 1875] . . . . 94 c. 77 [English Judicature Act, 1875] Rules of Court 1875 . . 135, 137, 146, 150, 151, 221, 228 221 223 230 35 Order XI. rules i, la . ,, rule 3 . Order XVL rule 18 . Order XIX. rule 14 39 & 40 Vic: c. 70 [Sheriff's Court (Scotland) Act, 1876] s. 9 S. 12 (2) . „ (5) ... „ (6) - 40 & 41 Vic: c. 57 [Irish Judicature Act, 1877] s. 3 s. 33 . Order I. rule 3 „ 4 . 5. ). 5 ■ Order V. rule 2 . Order VIII. rule 3 . Order X. rule i . 215, 224, 241 241 241 242 242 23s 235 235 235 235 236^ 236' 236 236 236 237 Forms ......... 236 41 & 42 Vic: c. 61 [Fiji Marriage Act, 1878] 404 45 cSc 46 Vic: c. 31 [Inferior Courts Judgment Extension Act, 1882] 2, 213, 362, Appendix. 362 362 363 363 363 363 363 363 242 s. 2 s-3 ss: 4, s. 6 s. 7 s. 8 s. 9 s. 10 c. 77 [Citation Amendment (Scotland) Act, 1S82] 46 & 47 Vic : c. 52 [Bankruptcy Act, 1883] s.4(i) 329 xl TABLE OF STATUTES OF THE UNITED KINGDOM. 46 & 47 Vic : c. 52 [Bankruptcy Act, 1883] {coiiliniied) s. 6 (I) (a) s. 10 (2) s. n s. 14 s. 27 s. 44 s.84(i) s. 117 s. 118 s. 119 Rule 148 Rules of the Supreme Court, 1883. Order II. rule 4 . . . „ 5 • Order III. rule 6 . Order VI. rule 2 . . Order IX. rule 2 . . }. ..8 . . „ rules 10, 14 . ,, rule 15 Order XI. 175, 216, 217, 231 ,, rule I ,, I (a) „ 1(b) . . ,, I (c) I35> 150 „ I (d) . . „ ,, I (e) 146, 148, „ I (0 • „ Kg) ,,2 M 3 • • ,. 4 • >> >) 5 • „ 6 . „ 7 ■ ■ Order XII. rules 10, 11 ,, rule 30 . Order XIV. Order XVI. ,, rule I „ „ 6 . . >> ' » 13 „ 48 . . Order XXIII. rule 6 . Order XXV. rule 2 Order LIV. rule 12 . „ 12(b) . Order LVIII. rule 15 Order LXV. rule 6 ,,7 Forms .... 136, 329 83 83 371 371 328 21 371 372 372 330 . 218 . . 218 183, 227, 229 . . 219 . 230 ■ . 232 . 263 . . 227 232, 289, 319, 329, 365 218, 219, 228 137, 219, 234 137, 14s, 219, 234 154, 189, 220, 222, 233 136, 145, 220 152, 220, 222, 233, 241 . 89, 151, 220, 222 151, 220, 227, 230 221, 222, 237, 241 222 222 224 225 226 225 163 83, 190, 227, 229 ■ 152 • 193 ■ 152 227 ■ 230 • 35 . 163 . 218 218, 237 • 195 • 194 ■ 194 226, 229, 236 TABLE OF STATUTES OF THE UNITED KINGDOM. xli Probate Rules. Rule 73. P. R. (Non-C.) 369 „ 87. D. R 369 Acts of Sederunt. 1805. December 14 239 1828. July II s. 22 . . . . . . . . 239 1859. March 19 [to regulate proceedings under Probate and Confirmation Act, 1868] . . . . , . 370 1871. July II [in pursuance of Judgments Extension Act, 1868] . 362 1883. June 21 [to regulate precedure under Companies Act, 1862, and Bankruptcy Act, 1869] .... 365, 372 INTRODUCTION. The subject of Foreign Judgments forms the most practical if not the most important chapter in Private International Law ; for it involves the consequence and practical application of the prin- ciples which that law expounds. It is the last chapter, in which the results arrived at in all the earlier chapters reappear. As a practical matter it is evident that principles of International law must be worth little unless universally recognised and acted on ; if they are universally recognised, then w^hen a decision is given in one country in which any of those principles are acted on there can be little hesitation in predicting the universal recognition of the decision itself. The importance and magnitude of the subject can only be gauged by the importance and variety of the questions on which it touches : these questions extend over the whole range of law. The commercial relations between merchants of different nations are not affected by it in a less degree than the social relations involved in the manifold questions of status : In time of war it assumes even a higher importance, and deals with the conflicting interests of belligerent and neutral States. Nevertheless, it has received at the hands of the most distin- guished International Jurists only that somewhat hasty treatment which a closing chapter too often receives ; and at the hands of eminent Judges that too cursory treatment which condenses into a judgment on a single point, a review of the whole subject of which the question itself under discussion forms but a small part. Fully conscious of this importance I have endeavoured to develop the chapter into a volume. To that learned and brilliant Judge who has devoted much time and thought to the solution of some of the difficult problems involved, I have ventured, by his courteous permission, to dedicate the volume. xHv INTRODUCTION. The scope of the treatise is shortly as follows : — A not unfriendly critic has assumed that my object in publishing it is merely to advocate a novel theory on the subject of enforcing foreign judg- ments. It is indeed necessary at the outset to examine two current theories, were it only from the fact that there are two ; it is doubly necessary since these two theories are diametrically opposed. No surer guide through the mazes of juristic principles can be taken than Austin, I have therefore in the theoretical parts of the book worked on the basis of principles established by him, and have extended them into Private International Law, a field of labour which he necessarily left untouched. In investigating this subject my object has been, first to enquire into the nature of a judgment debt and its consequences : Secondly, to shew that, its nature being purely local or territorial, its consequences must be temporarily annihilated when circumstances render its execution within the territory impossible : Thirdly, to ascertain how far Inter- national Law is capable of supplying a remedy for this evil. The examination necessary for this purpose disclosed a principle lying midway between the two earlier theories to which allusion has been made. Having thus endeavoured at the outset to secure a firm footing, I have considered the numerous points of law and practice which have arisen, pointing out first the actual result of decided cases, and secondly how far they conflict with a principle which in my opinion underlies the whole fabric on which the theory of foreign judgment rests. But in addition to the main principle, there is another — the question of Service out of the Jurisdiction — which is hardly of less importance, and which considerably complicates the subject. If all judgments were given in suits in which the defendant was resident in the jurisdiction, comparatively few pages would have served to dispose of the whole subject ; but the modifications of the ancient maxim of the Civil Law, actor sequitur forum rei, which the necessities of commerce have compelled the legislatures of all States to adopt, have given rise to a difficult question of juris- diction, which in its turn has been complicated by the variety of the rules adopted : and as a large proportion of the foreign judg- ments which come before Courts of Law have been given in suits commenced according to these rules, it is necessary also to examine them as well as the principles of jurisdiction on which they are based. INTRODUCTION. xlv Two main questions are therefore discussed in the following pages, the general theory of foreign judgments, and the right to commence actions against persons who are out of the jurisdiction : the scope of the work being now enlarged so as to comprise the practice both as regards foreign judgments and parties (both plaintiffs and defendants) out of the jurisdiction. But questions of foreign law being so largely involved, the work even in this form would have been incomplete if it had been confined to English law : it therefore includes chapters on colonial, foreign and American law, containing much information which I have been enabled to collect since the publication in 1881 of the second volume of the first edition. I have also added the most important of the foreign decisions not only in these chapters but also in the main body of the book. The difficulty of collecting such information is very great, but the labour has been made more than light by the kind co-operation of friends whose services I cannot sufficiently acknowledge. In compliance with a suggestion that some information with regard to the constitution and jurisdiction of the courts of foreign states would also be useful, I have as shortly as possible dealt with these matters at the commencement of the different sections on foreign law, my authority being Monsieur Demombyne's valuable work, ' Constitutions Europeennes.' Such are the main principles involved in the subject : but there is one other to which too much importance cannot be attached, for it is involved in almost every section of the chapter on Defences. One Court of Justice must of necessity presume another Court of Justice to have acted well and justly : if this is forgotten, in the words of Lord Justice James, 'it would be impossible to carry on ' the business of the world.' In conclusion. Professor Tyndall has said that a Theory is a principle or conception of the mind which accounts for observed facts, and which helps us to look for and predict facts not yet observed : That every new discovery which fits into a Theory strengthens it : That a Theory is not complete from the first, but a thing which grows as it were asymptotically towards certainty. It may therefore not be inappropriate to trace the ' asymptotic ' growth towards certainty ' which this Theory of Foreign Judg- ments has undergone. xlvi INTRODUCTION. Springing immediately from Lord Blackburn's judgments in Godard v. Gray and Schibsby v. Westenholz, although differing in one material point from those judgments, it furnished the solution of the conflict between the numerous authorities upon the subject of ' Enforcing ' a Judgment : It was of its own strength, capable also of solving the difficulty attending the subject of ' Recognising ' a Judgment : It supplied a ready answer to all the difficult problems arising from the varying defences which the ingenuity of learned counsel have suggested. Expanded, it included in its application Judgments in Rem : And finally. Judgments of Status ; coinciding in this last step with all the authorities. It is not however without much diffidence that I venture to draw attention to, and to publish in a more extended form the results of a deeper investigation into this principle, for it has to contend with many received opinions. Of these the chief is that which treats the foreign judgment debt as an ordinary contract debt in England. The theoretical considerations contained in the first chapter will, I trust, show the fallacy involved in this. Once this notion is removed, many difficulties attending the rejection of certain defences will also disappear. It must now bide its time, until that free conflict of discovery, argument and opinion has taken place, and won for it recognition. The time for the discussion may indeed be now close at hand, for with the final proofs of these preliminary pages comes the announcement in Parliament that the Foreign Office has accepted the invitation to send delegates to a conference on the subject to be held under the auspices of the Italian Government. FOREIGN JUDGMENTS. CHAPTER I. Chapter I. THE ENGLISH DOCTRINE. PAGE Definition 2 General Principles 3 I. The Enforcing doctrine of Comity . . 4 ,, Obligation ..... 8 ,, Obligation and Comity . 12, 15 Treaty 13 ' Sanctions 13 Extradition 14 the Auxiliary Sanction .... 17 the Defence to the Action .... 18 the rule ofji/s for Jus ..... 20 II. The Cause of Action 22 i. doctrine of /;7'w(^yar?V evidence 24 ii. ,, non-merger .... 27 iii. actions on the original cause of action 30 III. The Recognising General doctrine of J^es Judicata according to Engl ish Law 33 (a) The Rationale of the defence . . . 36 as applied to foreign judgments . . 36 conflict with doctrine of non-merger . . . 38 the reply to the defence 39 Judgment for plaintiff abroad i. satisfied by defendant . 42 ii. not satisfied ,, 43 Case of mutual damage .... 44 {b) The Extent of its application 45 nature of the enquiry 45 the essential points of comparison . . 46 i. Identity of subject matter , . . 46 FOREIGN JUDGMENTS. Definition. Scotch and Irish Judg- ments. 31 & 32 V. c. 54- 45 & 46 V. c. 31. The preliminary distinction. Romilly, M.R. ii. Identity of title ..... ,, parties .... iii. ,, relief ..... iv. ,, capacity or status in the parties other e.ssentials to be final and conclusive .... proceedings in nature of judgment pendency of appeal .... English Court not a Court of Appeal . to be on the merits ..... I'AGE Chapter I. 47 Practice Summary 47 47 50 51 52 52 53 54 54 56 By the term Foreign Judgment, we understand a judgment, decree, order or other adjudication that has been pronounced by a foreign court of competent jurisdiction; 'Foreign Court' includ- ing courts situate within the jurisdiction not only of alien states, but also of the British Colonies and possessions, of the Channel Islands, of the Isle of Man, and Consular Courts in Mahom- medan countries. 'All judgments are foreign judgments which are, given by ' courts whose jurisdiction does not extend to the territories 'governed by our laws.' {McFarlane v. DerbisJiire — Upper Canada.) Judgments in Scotland and Ireland were formerly also con- sidered as foreign judgments, but they are now, by the ' Judgments Extension Act, 1868' (31 & 32 Vic- c. 54), as to Superior Courts, and by the 'Inferior Courts Judgment Extension Act, 1882' (45 & 46 Vic : c. 31), as to Inferior Courts, made equivalent in their operation to English judgments : these acts, together with certain sections of a similar nature contained in other acts, will be con- sidered hereafter. [See chapter xi.] The purport of this treatise is to consider what is the effect of a foreign judgment when it comes before an English court : how far the English courts will recognise the decisions of the courts of another jurisdiction ; — and here it has been customary to recognise ' a preliminary distinction : where it is tried to enforce it ; where ' it is pleaded as a bar to the proceedings instituted by the person ' who has failed against the same defendant, with reference to the 'satue subject matter' (Romilly, M.R., Reimers v. Dri/ce). This preliminary distinction points out the two ways in which such a judgment may come within the cognizance of an English court : it hints also at an unnecessary and purely arbitrary distinc- tion often raised, and to be considered in due course, of treatment McFarlane V. Derbi- shire. 8 Q. B. 12. Reimers v. Druce. 26 L. J : Ch : 196. PRELIMINARY DISTINCTION. 3 Chapter I. according as this cognizance is obtained through the medium of plaintiff or defendant. However there are these two recognised modes of obtaining in judgment this country the benefit of a judgment pronounced in another, abro^ad."" First, where there has been judgment for the plaintiff in an action abroad, by action to enforce it, brought by the successful plaintiff or his assignee ; and the questions are : whether the English courts have power to enforce it, or as it is termed abroad, to grant an exequatur Vi\)QX\ it : if this power exist, whether they will enforce it, and what principles will be taken as their guide in determining to what extent the defendant shall be allowed to answer the plain- tiff's claim. Secondly, where there has been judgment for the For defendant in an action abroad, and an action for the same cause ^ ^" ^"'' is brought by the same plaintiff in an English court. The successful defendant then produces the judgment in answer and claims the benefit of the decision already given in his favour as a bar to the new suit instituted against him ; the question then is, how far the matter shall be treated as res judicata. All countries are agreed upon one point, that until the foreign judgment is clothed by some means with an exequatur by the tribunals of the country in which it comes to be enforced it is of no effect : and this general principle is embodied in many of the Civil Codes of foreign countries, as will be seen in the chapter on Foreign foreign law [chapter xiii. ] Thus section 2 1 23 of the Code Napoleon procedure"'* declares that a judicial lien cannot arise from judgments given in . a foreign country except to the extent to which they have been declared executory by a French tribunal. In some countries however the first method of securing the benefit of a foreign judgment noticed above does not obtain : in lieu of an action upon it they have provided in their Codes of Civil Procedure a special procedure for obtaining the exequatur ; as for example // giudizio di delibazione in Italy. But although without doubt this is the more accurate method, in England there is no machinery as yet provided other than allowing an action to be brought upon the judgment as upon any other cause of action. It will be necessary to refer to this question again, but we may say at once that all the many difficulties which surround the question have their origin in this confusion of a foreign judgment with an ordinary cause of action. Reverting now to the preliminary distinction just noticed, although as we have said it is a purely arbitrary one, yet it has so long been recognised that the consideration of the question THE ENFORCING. Division of the subject. will be materially facilitated if we base our divisions of the Chapter I. theoretical view of the subject upon it : we propose therefore to consider separately, The Enforcing — an action being brought upon the foreign judgment; and The Recognising — the foreign judgment being pleaded in bar. The enforcing. The conflicting Theories. Comity. Obligation. Result of discussion anticipated. Doctrine of co.mity. The Enforcing: — A foreign court has adjudged the defendant liable, say, to pay the plaintiff a certain sum of money : there is an obligation exist- ing in the foreign country — to obey the decision of the court in that country : the defendant (supposing him to have been resident within the jurisdiction of the "court) leaves the country without paying the money, and, leaving no property on which execution can issue, comes to England. The plaintiff finding the debtor in England, desires to make the English courts the medium for the recovery of the money already adjudged to be due to him. Upon what principle can he do this ? There has been much conflict of opinion : and the conflict is between two theories ; one of which may be termed for convenience ' the earlier,' the other, ' the later' theory : although Judges of the present day have given their adhesion to the earlier doctrine. That doctrine is somewhat as follows : That we are bound by the Comity of Nations to enforce here the decisions of foreign courts : — this is the earlier doctrine of ' Comity,' pure and simple. The later theory rejects altogether the notion of Comity, and asserts that the rationale of the enforcing these decisions by the English courts is, that a legal obligation has been created by the foreign judgment, which should, or must, be obeyed every- where : — this is the doctrine of ' Obligation ' pure and simple. We will discuss each doctrine separately, weighing the authori- ties on the one side and on the other : but we may venture here to anticipate the result of the discussion, and the conclusions at which we have arrived in this treatise, by stating — with some diffidence, contemplating the weight of the authorities to be contended with — that we consider that either doctrine is to a certain extent correct ; but that neither is so correct as to conclude the whole subject. The doctrine of Comity then is this : — that it is an ' admitted ' principle of the law of nations, that a state is bound to enforce DOCTRINE OF COMITY. 5 Chapter I Godard v. Gray. 1,. R. 6 Q- K. 139- Anon: 2 Sw : 326 n. A Ives V. Bnnbuyy. 4 Camp : 28. Pomer v. Whitniore. 4 M. & S. 141. Geyer v. Aguilar. 7 T. R. 681. Matibonr- giiet V. IVyse. Ir: Rep: I C.L. 471. Castrique v. hnrie. 30 L. J : C. P. 177- Dawkins v. Simonetti. 50 L. J : P. 30. ' within its territories the judgment of a foreign tribunal ' — (These are the words of Blackburn, J., in Godard v. Gray, when he was refuting the doctrine). The authorities on which it rests are as follow :— Lord Nottingham, C: — ' I said the merits of this ' case if the petitioner could come at it, were to examine a 'sentence of the Archbishop of Turin by the laws of England, ' It is against the law of nations not to give credit to the judg- * ments and sentences of foreign countries, till they be reversed * by law, and according to the form of those countries wherein ' they were given. For what right hath one kingdom to reverse 'the judgment of another? and how can we refuse to let a ' sentence take place till it be reversed ? and what confusion ' would follow in Christendom, if they should serve us so abroad ' and give no credit to our sentences ' {Anon :). Lord Ellen- borough, C.J., in Ah'es v. Bimbiiry : — 'By the comitas gentium, ' the courts of different countries will recognise and enforce the 'judgments of each other: but they must be authenticated.' And again in Power v. Whitrnore : — 'By the comity which is ' paid by us to the judgment of other courts abroad, we give a ' full and binding effect to such judgments, as far as they profess ' to bind the persons and property immediately before them in ' judgment, and to which their adjudications properly relate.' Lord Kenyon, C.J., in Geyer v. Aguilar : — (The judgment was iti rem, pronounced by a French Admiralty Court : but the judgments of both Lord Kenyon, C.J., and Ashurst, J., are of general application to all foreign decisions). ' We decide this ' case bound and shackled by certain rules from which we dare ' not depart. Civilised nations profess to be governed by certain ' rules, and the comity due from the courts in one country to 'those in another induces them to give credit to each other's 'acts. There is the same comity between the different courts ' in this kingdom.' And Ashurst, J. : — ' The judgment of a ' foreign court, whether it be the court of a country at enmity ' or in amity with us, is conclusive if the same questions arise 'again here.' Pigot, C.B., in Maubourquet v. Wyse : — 'The ' Comity of Nations requires that we should give effect to such 'a judgment.' Cockburn, C.J., in Castrique v. Imrie : — The ' Comity of Nations, by virtue of which alone the judgments of 'the tribunals of one country are respected in those of another.' Sir G. Jessel, M.R., in Dawt:ins v. Simonetti: — 'The effect of 'the judgment of the Neapolitan court if fairly obtained will be ' that it will be followed by the English court by reason of the Definition. Blackburn, 7- Authorities in favour of the doctrine. Ld: Not- tingham, C. Ld: Ellen- borough, c.y. Ld: Kenyon, C.y. As/iurst, J. Pigot, C.B. Cockburn, C.y. yessel,M.R. 6 THE ENFORCING. ' Comity of nations.' Sir R. Phillimore, in Messina v. Pctro- Chapter I. cocchi/io, (delivering the judgment of the Privy Council and ' approving the doctrine as enunciated by Lord EUenborough, i4Trococ'-' .v/r A', r/i//- QT) ._< It is to bc observed that, though the earlier cases l^r'^ ' exhibit some fluctuation and variety with respect to the appli- '•*"*■ ' cation of this doctrine ; it has become firmly established by a 'series of later cases as an unquestionable maxim of our juris- /. ^ _ <=> . sanctions. certain sum of money, execution stayed for four days : that is to say, if the judgment be disobeyed, the debtor will be liable to the evil of an execution. This is the intermediate sanction of the Civil. Civil Courts. Again, a man is ordered to keep the peace for six months, recognizances being entered into : that is to say, if within six months the peace be broken, the recognizance becomes liable to be estreated. This is an example of the intermediate sanction of Criminal, the Criminal Courts. Or again, taking an old form, a judgment is given that one man Ultimate pay another a certain sum of money within a week, or in default to go to prison till it be paid : that is to say, if the judgment be disobeyed, the debtor will be liable to the evil of imprisonment till it be obeyed. This was the ultimate sanction of the Civil Courts civil, in days gone by. Lastly, there are the sentences of the Criminal Courts — Law Criminal, now takes the place hitherto occupied by Judgment, and the juridical unit becomes: — Law [a thing shall not be done] ; ^ • and Comity. b. The defendant and the defendant's property are both out of the jurisdiction of the court : the sanction is absolutely fixed in the Sovereign Authority : — there*''^re, the sanction cannot be enforced. i6 THE ENFORCING. Principles it negatives. First view of doctrine of Obligation. cj : p. 9. Second yiev/ of doctrine of Obligation. c/: p. 9- Doctrine of Comity not negatived but defined. c. The defendant is within the jurisdiction of a foreign state : Chapter I. The Comity of Nations has created a second, or auxiUary sanction, resident in the foreign Sovereign Authority : — therefore, this sanction may be enforced against the defendant, at the discretion and instance of the judgment creditor. And the principles which it negatives are those contained in the two views of Lord Blackburn's theory, above enunciated : viz : — a.' A court of competent jurisdiction has pronounced a judg- ment : — therefore a /us Gentium obligation and sanction have arisen. b.' The defendant is out of the jurisdiction of the court : — therefore the Jus Gentium obligation and sanction have accompanied him. c.^ The defendant is within the jurisdiction of a foreign state acknowledging Xkivs, Jus Gentium: The sameyi« Gentium sanction which has once been created, is also resident in the foreign Sovereign Authority : — therefore this sanction may be enforced against the defendant, at the discretion and instance of the judg- ment creditor. Or — «-." A court of competent jurisdiction has pronounced a judg- ment : — therefore a debt and universal duty to pay have arisen. ^." The defendant is out of the jurisdiction of the court: — therefore he carries with him the debt and duty to pay. r." The defendant is within the jurisdiction of a foreign state acknowledging the principles of ' English Common Law ' : The mere existence of a debt and duty to pay anywhere creates an ' English Common Law ' sanction, resident in the foreign Sovereign Authority : — therefore this sanction may be enforced against the defendant at the discretion and instance of the judgment creditor. It does not negative the fundamental principle of the old doctrine of Comity ; but it defines positively and clearly what is enforced. The principles a and b have already been discussed to be more fully considered. A second or auxiliary sanction is created : — c remains THE AUXILIARY SANCTION. 1/ Chapter I. Now this at first sight seems to create the difificulty, that we The . . -, . , . auxiliary have a sanction resident in and enforced by a Sovereign Authority, sanction without a correlative obUgation created in the jurisdiction and by the courts of that Authority. In reality, this is not so : the word 'auxiliary' tends to remove the apparent difficulty.* Now, a sanction is understood to reside in the Sovereign Authority of the State : as we have said, its existence is an essential characteristic of Sovereignty : More accurately, it is one of the powers, the aggregate of which, possessed by the rulers of a Markby, political society, is called Sovereignty. ^" ^' The origin of this aggregate of powers is that habitual obedience An analogy to the government which is rendered by the bulk of the commu- between Law proper and nity. The habitual obedience is partly the consequence of inter- custom, and partly the consequence of prejudices. It is this Law. obedience that causes the government to exist in the form of Lect/vi'l' a monarchy, or of a popular government, according to the not^e°28'." tendency of these prejudices. This obedience is also bottomed in the principle of utility ; — for positive moral rules are uncertain, scant, and imperfect : Hence the necessity for a common governing (or common guiding) head to whom the community may in concert defer. It is indeed possible to conceive a society in which legal sanctions would lie dormant ; or in which ^/^a^'z-government would merely recommend or utter laws of imperfect obligation (in the sense of the Roman Jurists). But however perfect and uni- versal the inclination to act up to rules tending to the general good, it is impossible to dispense with a governing or guiding head. Upon this obedience, therefore, depends the existence of the sanction. Again, taking the aggregate of Sovereign Authorities, popularly known as the Family of Nations : The members of this great Family are the Governments of the various States. But there is no Supreme Sovereign Authority, for all the members are con- sidered equal : but there is a body of rules to which all profess habitual obedience, called International Law, the ultimate sanction of which is war : and a lesser body of rules simply regulating the courtesy of intercourse between the members, which all do habitually obey, called the rules of International Courtesy, or the \!^T^erson Comity of Natioiis ; these rules have not war as their ultimate ^oL. J:P. .• & M 25. sanction. Enohin v. ■^i L '^I • * There is authority for the use of the word ' auxiliary ' : see Sir C. Cresswell Ch : 402. \Vi Laneuville v. Anderson, and Lord Westbury in Enohin v. Wylie [post p. 311]. C 1 8 THE ENFORCING. The origin of this ^///rt-j/'-sovereignty (the personality of which Chapter I. does not exist) is also habitual obedience rendered by the bulk of the Community of States. This obedience is partly the conse- quence of custom (but not of prejudices), and is also bottomed in the principle of utiUty. Now we have seen that a power (assumed at the request of the other states one by one) resides in every member of the Com- munity of States, to enforce the judgments of other states by means of an auxiliary sanction, and this has now become part of the Comity of Nations. Result of the The result is, that not only is an obligation created, the sanction ' *'"^' correlative to which is resident in the Sovereign Authority of the State whose courts have pronounced the judgment, and which may be enforced there at the discretion and instance of the judgment creditor ; but there also comes into being in every other state a bare obligation — resembling somewhat the nudum pactum of the Roman Law — which, when the judgment debtor enters any Foreign State, is clothed with an auxiliary sanction, enforceable by the Sovereign Authority of that State at the discretion and instance of the foreign judgment creditor ; and dependent upon International Comity. Necessity But although a sanction in the country of its origin is enforce- appUcation able through the medium of the courts without further apphcation of the '^""'^^ to them, in this case application to the courts of the Foreign statef" State is necessary, in order to establish to the satisfaction of the Sovereign Authority in whom the auxiliary sanction is resident, the fact that the foreign obligation does in reality exist. The doctrine of Obligation and Comity is therefore, we venture to think, complete in all its parts : The theory of the existing Theprindpie obligation and the theory of the auxiliary sanction created by °he action, comity both appear to be sound : There is no difficulty in at once adopting (subject to the criticism to be made upon it hereafter : see p. 104) Lord Blackburn's definition of the essentials to a good defence, because the practical part of the doctrine of obligation remains entire. Therefore, as before stated, we may for the present take those essentials to be, ' to negative the existence of the obligation ' ; or to ' excuse the performance of it.' — What defences may be raised, will be considered in chapter iv. Comity Lastly ; is the doctrine of Obligation and Comity open to the accurately objection taken by Lord Blackburn to the earlier doctrine of ^L^rd%iack- Comity pure and simple ? ' If the principle be what is loosely hum's I (^q\\q^ a comity.' — We have endeavoured to define accurately PROCEDURE AGAINST ABSENT DEFENDANTS. 19 Chapter I. what this comity among nations is, and to shew that ' loosely ' is objections no longer a term to be applied to it. But we have not yet traced "xilt."^^'^ to its source that courtesy which in reality is interchanged. Once more we must quote the learned judge : — ' If the principle be what is loosely called a comity, we could hardly decline to enforce a 'foreign judgment given in France against a resident in Great ' Britain, under circumstances hardly, if at all, distinguishable from 'those under which we, mutatis mutandis, might give judgment Schibsbyv. 'against a resident in Francc.' {Schibsby \. Westenholz.) Therefer- L. R. 6 Q. ' ence is to the Common Law Procedure Act, 1852, sections 18 and ■ '^^' 19, relating to service out of the Jurisdiction, Under that Act, a certain course was to be pursued (which has been varied by the Judicature Acts) in certain cases against a non-resident defendant. Supposing the courts of another country should proceed against Procedure . . . , . against non- an Englishman not resident m that country, m a manner ' hardly resident ' if at all distinguishable ' from our own method ; Then, said Lord Blackburn, we should be bound to enforce it, were we fettered by this loosely-termed comity. The words ' circumstances hardly if at all distinguishable ' seem, with the very greatest respect to the learned judge, somewhat con- fusing. The point in which the circumstances of the two cases we shall now consider are distinguishable is really the key to the whole position, and illustrates the fallacy involved in the principle of the decision in Schibsby v. Westenholz. First : — The courts of another country desirous of summoning a non-resident Englishman, proceed on the method laid dow-n by its legislature, which method may be very different from the English procedure regarding absent defendants. Second :— But, assuming the rules obtaining in the other country to be less com- prehensive than the English rules, suppose the courts of that country summon a non-resident Englishman, not according to its own rules, but according to E?iglish rules. ' Fettered by comity we should be bound to enforce ' the judg- ment in the first case. And where would be the hardship or incongruity? English law contains rules affecting foreigners (rules, as we shall see, far in advance of those adopted in other countries, France alone excepted). Why should not a foreign state (not a foreisrn court), mutatis muta7idis, enact rules affecting Englishmen? Comity would insist, and rightly, that a judgment o?e, tried at the Guildhall before Denman, J. The action was on a judgment of the Tribunal de Commerce at Antwerp, from which the defendant had unsuccessfully appealed : there was an alternative claim in respect of the original contract. It transpired that in addition to the usual proceedings before trial, there had been the great delay and expense of a Commission to Antwerp. At the trial, the claim on the original cause of action was taken first in order, and as a necessary consequence the whole of the evidence on the merits of the case went to the jury. The verdict was for the plaintiff on the judgment and on the original cause of action. With regard to the extra expense attending such proceedings, it may be urged that the defendant himself brings this state of things about by raising all manner of defences to the judgment already given against him : but this is merely the consequence of the laxity of the rules supposed at present to be English law. If we consider this question apart from the doctrines of prima facie evidence and non-merger, it seems radically opposed to the whole principle on which foreign judgments are enforced. One of the evils arising from it is a very practical one. Whichever main doctrine the Court acts upon, at least this rough principle Vet the case is always admitted, that the case will not be heard again on the be°heard°on merits : yet, the whole evidence in the case is laid before the "^ '""' ^" jury in respect of the original cause of action ; and is supposed to be withheld from them in respect of the foreign judgment. Is it conceivable that the necessary discrimination will be found in 32 ACTIONS ON ORIGINAL CAUSE OF ACTION. twelve laymen drawn hap-hazard to perform the functions of chapter I. jurymen ? It is also opposed to the maxim interest rcipublicce ut sit finis litium, which, as we shall shortly see, includes in its application actions on foreign as well as on domestic judgments : and was directly applied to them by Wilde, C.J., in Ellis v. eihs^. McHenry : — Ne lites imniortales esse fit duin litigantes mortales -iJvC.T^' sunt. But if on the other hand it is to be taken as an integral ' '^^ ' part of the doctrines just considered, then it must stand or fall with them, and the fallacies contained in them have, we venture Doubts have to think, been sufficiently pointed out. The difficulties attending mhids of their reception seem to have struck the learned author of Smith's support the° Leading Cases ; otherwise it is difficult to account for the foUow- t eory. -^^g paragraph : — ' It may possibly be, that, if the plaintiff should ' adopt the former part of the alternative and sue on the original ' ground of action, it would be open to the defendant to controvert 'that ground of action notwithstanding the production of the ' foreign judgment, on the same principle on which it is held * that where there is an opportunity of placing the judgment of 'one of our own superior courts on the record, and it is not ' placed there, it will not be conclusive.' [8th ed : p. 839.] The doubt in Story's mind is most forcibly illustrated by the two following passages from the ' Conflict of Laws : ' — ' The * present well-established doctrine in England is, that a foreign 'judgment in favour of the plaintiff is not a bar to a suit in story. 'England upon the original cause of action': [§ 599a.] 'It § 599a. I j^^y j^Q^^ Ijg regarded as fully established in England, that the ' contract resulting from a foreign judgment is equally conclusive ' in its force and operation with that implied in any domestic §6i8h. 'judgment.' [§ 6i8h.] The footnote to the former paragraph however, seems to throw some doubt upon the proposition therein enunciated. It may perhaps be thought that the consideration of these principles has been carried to an undue length : but the space devoted to them will not have been wasted if it lead to their final extinction, and the consequent saving to suitors, even under the existing procedure, of much time and expense. IIL The Recognising : — We must now consider the effect of a foreign judgment from the second point of view, that of the defendant who has been THE RECOGNISING 33 Chapter I. Reinters v. Druce. 26 L. J : Ch: 196. Barrs v. Jackson. I Y. & C : Ch: 585- (on app.) I Phil : si successful in the foreign suit, and who is harassed by a second action for the same cause. ' But it is otherwise, it is said,' says Story, ' where the defendant The Recog- ' sets up a foreign judgment as a bar to proceedmgs ; tor it it story, ' has been pronounced by a competent tribunal, and carried into ^^ ' ' effect, the losing party has no right to institute a suit elsewhere, 'and thus bring the matter again into controversy ; and the other ' party is not to lose the protection which the foreign judgment ' gave him. It is then res judicata, which ought to be received ' as conclusive evidence of right ; and the exceptio rei jiidicatcE, ' under such circumstances, is entitled to universal conclusiveness ' and respect. This distinction has been very frequently recog- 'nised as having a just foundation in international justice.' [Conflict of Laws, § 598.] We have here a development of the broad distinction hinted at by Romilly, M.R., in Reimers v. Druce. A different rule^Z-p-^- with regard to the effect of a foreign judgment has been traced by Story in the cases bearing on this branch of the subject. We are now familiar with the differences of opinion expressed by judges as to the nature of the recognition to be accorded to the judgment when an action is brought upon it; but here, when it is brought forward as a defence we find the rule declared in unmistakeable terms to be that of 'entire faith and credit' : — 'It ' is then res judicata which ought to be received as conclusive ' evidence of right.' This distinction, if it exist, must now be carefully examined. Pausing for a moment, let us sketch a brief outline of the plea Res res J7idicata as it is accepted in our courts, with reference to with'rf-" English adjudications of the matter. The decision of Knight- Engl^sV" *" Bruce, V.-C, in Barrs v. Jackson was overruled in the House Q>i k^T^u- Lords as to the application of the law : but it has been uni- ^"'"' ^''^' versally admitted that no more luminous exposition of that law is to be found in the Reports : we may therefore follow the Vice- Chancellor's judgment: — 'With the rule of Civil Law rightly ' understood, which in the language of Ulpian, says, — res judicata ^ pro veritate accipitur, — the law of England generally agrees.' The sound reason of this rule cannot be better expressed than it is by Paulus in the Digest [Book 44, Title 2, Section 6] thus, 'Singulis controversiis singulas actiones, unamque judicata finem ' sufificere, probabilii ratione placuit ; nealiter modus litium multipli- ' catus summam atque inexplicabilem faciat difificultatem : maxime ' si diversa pronunciarentur.' definition. 34 THE RECOGNISING. vinnius, Vinnius, in a note upon the words ' per exceptionem rei judi- Chapter I. -'"" i ^^^^ , j^ (-l^g Institutes, [Book 4, Title 13.] says : — 'Quae ita agenti * obstat si eadem quaestio inter eosdem revocetur, id est, si omnia ' sint eadem, idem corpus, eadem quantitas, idem jus, eadem causa ' petendi, eadem conditio personarum.' Lord Holt in Blackhanis case thus enunciated the law : — ' A Biackham's case, ' matter which has been directly determined by sentence cannot i saik 1291 . ' be gainsaid ; it is conclusive in such cases, and no evidence 'shall be admitted to prove the contrary. But that is to be ' intended only in the point direcdy tried ; otherwise it is, if a 'collateral matter be collected or inferred from their sentence.' ' Generally, the judgment neither of a concurrent nor of an 'exclusive jurisdiction, is (whether receivable or not receivable), ' conclusive evidence of any matter which came collaterally in 'question before it, though within the jurisdiction, or of any ' matter incidentally cognisable, or of any matter to be inferred by 'argument from the judgment: and a judgment is final only for ' its proper purpose and object' ' An allegation on record, upon which issue has been once taken ' and found, is, between the parties taking it, conclusive according to ' the finding thereof, so as to estop them respectively from litigating ' that fact once so tried and found.' ' But it is to be collected that the rule against re-agitating 'matter adjudicated, is subject generally to this restriction— that 'however essential the estabUshment of particular facts may be ' to the soundness of a judicial decision, however it may proceed 'on them as established; and however binding and conclusive 'the decision may, as to its immediate and direct object, be, those ' facts are not all necessarily established conclusively between the ' parties, and that either may again litigate them for any purpose as ' to which they may come in question, provided the immediate ' subject of the decision be not attempted to be withdrawn from ' its operation, so as to defeat its direct object. This Umitation ' to the rule, appears to me, generally speaking, to be consistent ' with reason and convenience, and not opposed to authority. I am 'not now referring to the law applicable to certain prize and ' admiralty questions, which are governed by principles in some ' respects peculiar.' 'The adjudication in the former action must be inconsistent ' with the notion of the liability in the present one.' (Channell, B., Phillips V. Phillips v. Ward.) irarj. ' To constitute a former recovery a bar, it must be shewn that ^e'^xV?'^' RES JUDICATA. 35 Chapter I. ' the plaintiff had an opportunity of recovering, and but for his own • ' fault might have recovered, in the former suit that which he seeks NehoHM. 'to recover in the second action.' (Willes, J., Nelso7i v. Couch.) %"q!"\\: It does not appear necessary that the judgment should have N. s. 99. \yQQx\ satisfied : only that it is final. As to the identity of the two suits we may cite the following passage from ' Modern Roman Law,' p. 94, by Professors Tomkins Professors . . Tomkins and jencken — 'In respect to the requisites for the identity of d^^^^Jencken. ' legal contention, two things are needed : 'i. The exceptio rei judicata: falls to the ground, when no identity 'exists, even though the subsequent action may resemble the former one. ' ii. The exceptio is maintainable, when the identity is actually ' present, though the previous point in litigation and the new one *may be somewhat dissimilar. In personal actions, identity of 'right results from similarity of origin; but in real rights and in 'real actions, the mode of origin is immaterial' On a plea of judgment recovered for the same cause of action, oid the matter of record is the only thing which can be directly put ^'''^''"'■ in issue — that is, a replication of Nul Tiel Record is allowed. If the judgment had been recovered for another cause, there must have been a 'new assignment.' A replication was sometimes pleaded in the form of a traverse, that the judgment was not in respect of the same causes of action as in the declaration men- Ba/rot V. tioned : {e.g., Lord Bagot v. Willia/ns), but substantially this was 3 B. & c. a ' new assignment. {Bullen aiid Leake s Precedents of Pleadings. ) By Order XIX., rule 14 of the Judicature Act rules of 1875 ^^^^ the ' new assignment ' was replaced by an amendment in the 0'^^!% 6 statement of claim. [Order XXIII. rule 6, R. S. C. 1883.] ■ It must be borne in mind that although res judicata is usually xhe full treated as the defence to an action on a cause of action already ^«}"S/^. adjudicated upon, yet the principle involved in it is equally appli- cable where an action is brought upon the adjudication : that is to say, the question in dispute is treated as already decided. But an action on a home judgment, execution being the Difference in appropriate remedy to enforce obedience to it, is of rare occur- lion'^o'ho''me rence ; and being superfluous is not regarded with any favour by ^udgmenfs" the law ; therefore it is that, with regard to English decisions, the doctrine of res judicata has come to be considered as solely appertaining to the case of the defendant. But with regard to foreign decisions, action being brought upon them as well as defences raised in respect of them, it is obvious that whatever 235 36 THE RECOGNISING. principle is applicable to them, whetlier it be res judicata absolutely Chapter I. or in some modified form ; that principle should govern their reception equally in both cases. This seems to have been lost sight of in the cases in which the point has been discussed. Anticipating the result of the discussion we may state that although it has been customary to recognise and in fact to act upon this distinction, yet (with one solitary exception) there appears to be no solid foundation for it. Its existence simply cumbers this branch of the enquiry. The con- siderations involved. There are two considerations involved : — {a). The Rationale of the defence. {b). The Extent of its application. Taking these separately, we propose to consider first, their bearing on English judgments, and then how each of them applies to the recognition of foreign judgments by English courts. First con- sideration. The rationale. Broom's Common Law, p. 262, n. Is this rule to be extended to foreign judgments? Authorities in favour of it bein:? extended. id). The Rationale of 'Res Judicata.' When the plaintiff brings an action upon a judgment, the defendant is only allowed to plead satisfaction, or release ; or Nul tiel Record : in other words he is allowed only to put in issue the fact of there being, or of there ever having been, such record in existence. But he is not allowed to put the judgment itself in issue, that is to re-open the case on which it has been given. So also the plaintiff, when the defendant brings the judgment into court pleading it in bar to the action, is allowed only to put in issue the fact of there being such a record ; neither may he re-open the case on which it has been given. — 'A record thus 'importing credit and verity, shall be tried only by itself — that is, by production and inspection ; ' the reason being, that there may thus be an end of controversy.' The defence to the judg- ment whether raised by plaintiff or defendant, must therefore be, that there is no such record ; and not, that there is no obligation to obey the judgment. The full effect then of the defence res judicata, the adjudication being that of an English court is, that it is absolute ; the record existing as the defendant states. Is the same absolute effect to be extended to a foreign adjudica- tion on the subject-matter of the action? The leading authorities in favour of this extension which, as we have seen, is upheld by Story, are : — The decision of the House of Lords in Ricardo v. Garcias : — Judgment had been Ricardo v. Garcias, i2Cl:& Fin : 368. RES JUDICATA. 3/ Chapter I. given by competent tribunals in France against Garcia in an ■ action brought by him against certain persons. He then filed a bill in Chancery against some of the same persons and for the same purposes ; charging that the proceedings and judgment of the French court were contrary to justice, and were not final and conclusive : The plea of judgment abroad, set forth in substance and effect, was over-ruled by the Vice-Chancellor : The House of Lords [Lord Lyndhurst, C, Lord Brougham, Lord Camp- bell, C.J.] reversed this decision : and Lord Campbell said : — 'A ' foreign judgment may be pleaded as res judicata ; because the ' foreign tribunal has clearly jurisdiction over the matter, and both 'parties being before the tribunal which adjudged between them, ' that is a bar to a subsequent suit in this country for the same 'cause.' Phillips V. Fyre, C.J., dissenting, in Phillips v. Hunter : — ' It is in one way Eyre, c.j. 2 h" 8^402. 'only that the sentence or judgment of a foreign court is examin- 'able here; that is, when the party who claims the benefit of it ' applies to our courts to enforce it, and thus voluntarily submits ' it to our jurisdiction. In all other cases, we give entire faith and ' credit to the sentences of foreign courts, and consider them as ' conclusive upon us.' Cammeii\. Martin, B., in Canimell v. Sezvell, delivering the judgment of 27T. j: the Court : [Pollock, C.B., Martin, Channell, BB.]. The difficulty in the case was whether the decision as to the validity of a sale of cargo by the Norwegian Superior Diocesan Court at Drontheim, was in the nature of a judgment in rem. The conclusion of the judgment was as follows : — ' But, assuming that the judgment is Martin, b. 'not one in the nature of a judgment ijt rem, it seems nevertheless, ' that it must be taken as conclusive, and that the judgment must ' be taken to be the judgment of a court of competent jurisdiction. 'That judgment has been given against the plaintiffs, and we ' think they are conclusively bound by it : interest reipublicce ut * sit finis litium^ Hamilton v. Hamilton V. Dutch East India Co :, in which case the following Argument in f^'iaCo7' argument was accepted by the House of Lords :— ' For that the gT^'"'' c^lel ^' ' cause had been judged and determined by the courts of Malacca H^P;;°ro1-''^ ' and Batavia, their sentences could not be reviewed by the Court ^°'^'^^- ' of Admiralty in Scotland which has no jurisdiction over these * courts, and that this plea or exception (of res judicata) is, by the ' law of nations, available in all courts, it being an established * maxim ^uod res judicata pro veritaie habetur. And though, when ' a decree pronounced in one country is sought to be carried into 38 THE RECOGNISING. ' execution in another, tlie judge whose interposition is demanded chapter I. * ought not to afford it, without a previous enquiry into the justice ' of the sentence ; yet, when a decree is actually executed in the * country where it was pronounced, it becomes then of no further ' use than to protect the person who has had satisfliction under it, ' from restitution, which it does with the same effect, whether such 'restitution is sought in the nation where the sentence is pro- * nounced, or in any other : it being a perpetual rule without any 'limitation that res judicata exceptionem paril perpetuam.'' Starkie. Mr Starkie's view seems to coincide with these cases ; — ' Tlie principle upon which a judgment is admissible at all is, that the point ' has already been decided in a suit between parties or their privies by some ' competent authority, which renders future litigation useless and vexatious. If ' this principle extends to foreign as well as domestic judgments, as it plainly 'does, why is it to be less operative in the former than in the latter case? If ' it does not embrace foreign judgments, how can they be evidence at all ? By 'admitting that such judgments are evidence at all, the application of the ' principle is conceded ; why then, is its operation to be limited as if the foreign ' tribunal had heard qothing more than an ex parte statement and proof? ' — [Starkie — ' Law of Evidence,' I. p. 273.] SirR. Sir R. Phillimore's conclusion is 'that the exception res judicata ought to Phillimore. t {jg jj^ ^]]^ jjjjjj jg jj^ most States, admitted as a complete bar to a second litiga- MDccccxxxv ' tion upon the subject to be adjudicated upon,' certain conditions being ful- jilled. The conditions, which may be set out here for convenience of reference, are somewhat similar to the pleas by which the foreign judgment may be attacked by the defendant ; others coincide with the essential conditions of identity between the two suits which are indicated on page 46. The learned author and judge stands midway between the two doctrines, asserting that the MDccccxLiii plea of res judicata should be admitted as a complete bar, but only on certain conditions ; some of which conditions coincide with the defences contended for as admissible by the opposite doctrine. The conditions are : I. The Tribunal to be competent according to the foreign law. II. The Tribunal to be duly seized, or possessed of the subject of its decision : — Its jurisdiction must be properly founded. It may not cite one belonging to the country, either by birth or domicil, or temporary residence, unless he has property or in- curred some liability in the state. III. The foreigner must have been fairly heard according to the laws of the State, on an equality in every respect ; including the right of appeal with a native subject. IV. Some states add reciprocity. Effect of On the other hand, to admit the plea of res judicata in any 0"% "^'^ form implies that there is a merger of the cause of action in the non-merg°er. judgment pronounccd upon it : and therefore the cases usually cited in support of the doctrines discussed in the second part of this chapter will now be observed to extend in their application a THE RATIONALE OF RES JUDICATA. 39 Chapter I. great deal further than at first sight appeared, and to be opposed to the reception of res judicata in any form however modified. For, assume the doctrine of non-merger to be maintainable. And first suppose judgment for the plaintiff abroad, and an Conse- action brought on the original cause of action here : the defendant XaTdoctrine is then compelled to answer the case on this original cause of judgment action independently of that on the foreign judgment : that is to puhnffr"^ say to the former he may not plead in any way res judicata : the judgment already given deciding the dispute between the parties in the plaintiff's favour, is treated as non-existent, and as not having affected this dispute, quoad \}s\€\x relations in this country. Again, suppose judgment for the defendant abroad. If the For cause of action is merged in the judgment, a fortiori ihe. alleged ^^" ^"'" cause of action * is : but conversely, if the cause of action is not merged in the judgment, neither can the alleged cause of action be merged. t Therefore that judgment must also be treated as non-existent, and as not having affected the dispute, quoad ihe relations of the parties in this country : and therefore the defen- dant must answer the case on the alleged original cause of action ; that is to say he may not plead in any way res judicata. Now, when we were considering the principles of * Enforcing,' the enquiry took the pmctical form of an endeavour to discover a strict rule with regard to defences to the action ; so, when we are considering the principles of ' Recognising,' the enquiry must Enquiry as take the practical form of an endeavour to discover a strict rule repVto the with regard to the plaintiff's reply to the defence in bar. ^ ^^' The result of the cases (taking the decisions cited to be of greater weight than those from which as we have said an opposite inference may be drawn), seems to be this ; that whereas in ' en- ' forcing' a judgment defences will certainly be admitted, though there is much uncertainty as to what these defences ' may be ; in ' recognising ' a judgment the bar is held to be absolute : that is, no reply will be allowed, except one putting in issue the existence of the record. We have said that the essence of the principle res judicata pro veritate habetur applies with as much force to a suit by the plaintiff * That is to say, the cause of action which the unsuccessful plaintiff abroad supposed to be existent and in respect of which he brought the action. t cf: Story : — ' Now if the original cause of action is not merged in a case story, ' where the judgment is in favour of the plaintiff, it is difficult to assert that it is § S99 ^• ' merged by a judgment in the foreign court in favour of the defendant.' [Con- flict of Laws, § 599a.] 40 THE RECOGNISING. on his judgment, as to a defence by the defendant when he has chapter I. satisfied that judgment, or when the judgment has been in his favour : if the strict principle were appUcable to the former case, it would at once follow that it should be applicable to the latter : story's but as we see, it does not apply to the former, and Story is there- fromThe forc accuratc in saying that a distinction has been drawn between acc"meT' the effect of production by plaintiff and defendant : it is the foundatron existence of the distinction that creates the difficulty. The ' just do^ubud. ' foundation in international justice ' on which he bases it is indeed hard to discover, is certainly not to be found clearly enunciated in any of the authorities. It resolves itself into a statement that ' the losing party has no right to institute a suit elsewhere.' But surely it may be said with equal force that the losing party has no right to a fresh adjudication on the suit elsewhere. Difference There is in one respect however a difference between the posi- posilfon of tion of the parties. The defendant is summoned to the foreign dil^lndaru" court, and therefore to a certain extent his appearance there is under compulsion, except that he has, where judgment has been given for the plaintiff, rendered himself liable to the suit by his own act : but the plaintiff's appearance there is so far voluntary, that, being presumably at arm's length from his opponent and his only remedy being at law, he must perforce choose some tribunal ; and, although the defendant be non-resident and an alien, he has adopted one in his own country its laws giving that court jurisdic- tion over his opponent. This difference, however slight it may on analysis appear, has always been maintained : and, without antici- pating the discussion on this intricate point, the consequence is that whereas the most common form of defence is ' absence of ' jurisdiction in the foreign court,' yet the plaintiff may not raise this question of jurisdiction by way of reply, by reason of his so-called voluntary submission to the tribunal. This indeed appears to be the ground of the Chief Justice's judgment in Fhillips v. Hunter. Pkuups v. The question But this reasoning is not in any way applicable to the other 2 h. 81:402. o eences. j^gfgj^(,gg usually met With. Again without anticipating the dis- cussions or offering here any opinion upon them, these remaining defences may be conveniently scheduled as follows : — Fraud of parties or court : error of court in its own law ; in English law ; in the law of any other nation incidentally involved ; in the determination of what law is applicable to the case in its own procedure : against natural justice : contrary to International Law : contrary to public law. Assuming them all to be good defences when alleged against THE RATIONALE OF RES JUDICATA. 4I Chapter I. the judgment by the defendant, it seems impossible to contend Cannot that they are not good by way of reply when alleged against the from^he ^^ judgment by the plaintiff. ?epTy.'°" ° Viewed practically therefore, the difference between the parties should resolve itself into this : the defendant may plead to the judgment so as to negative the existence of the legal obligation or excuse the performance of it ; the plaintiff should be allowed The only , , . • -1 1 • 11- -1 1 difference is to plead m a smiilar manner, but m so pleadmg might not attack as to the the jurisdiction of the court. ^""^ But this is a very different thing from saying that the defendant may negative the existence or excuse the performance of the legal obligation : but that for the plaintiff the question is res judicata., and the judgment unassailable.* Even on this question of jurisdiction (although it may be said to be settled) the analogy between the plaintiff's creation of the foreign jurisdiction, as it is called, and a submission to arbitration which is traced by some judges, and notably by Eyre, C.J., in Phillips \. Phillips v. Huiiter, does not seem to be very sound. The fH^gf: ^Qj plaintiff has a right to bring his action in his own country, or is not to be blamed for following the defendant and bringing an action in the defendant's country; and therefore in either case The analogy there is wanting that essential ingredient in an arbitration, creation miSon to of and submission to the tribunal, by reason of which both parties fraceTby" are deprived of their liberty of attacking the award on the ground [^j^^p. 37 j of error. Again, with regard to an English judgment there is one simple rule of pleading to it, it is to be tried by itself; and this whether produced by defendant or plaintiff. There is a fundamental difference between the effect of a home and of a foreign judg- ment : but when once this difference is established, we see that it is difficult to find any sound reason for varying the rule of plead- ing to it when produced by plaintiff or defendant, subject to the exception already noticed as to the jurisdiction of the foreign court. With regard to the English judgment, the rule in both cases is. Analogy that it is res judicata, and therefore absolute: with regard to the rules as to foreign judgment, the rule of defence we have at present adopted fordgn is that enunciated by Lord Blackburn : The existence of the ^^ stents. * It must not be forgotten that for the purposes of this argument we have assumed the foreign judgment to be assailable on all the points mentioned : the degree in v/hich it is assailable will of course be considered in due course \see chapter iv. — Defences]. 42 THE RECOGNISING. obligation may be negatived. This rule of defence sliould also ^^ ^^ be the rule of reply which we are endeavouring to formulate. The rule itself will be examined hereafter [chapter iv.], but this fundamental difference between the rules as to English and foreign judgments may here be stated generally to be dependent on considerations of public law. Let us state this position syllogistically : — There is an English Judgment : — if produced by the plaintiff, — a certain rule obtains. if produced by the defendant, — the same rule obtains. There is a Foreign Judgment : — if produced by' the plaintiff, — a certain other rule obtains : the variation between this rule and the former one being made on account of the change from an English to a Foreign Judgment : The Foreign rule is to the English rule, as the Foreign Judg- ment is to the English Judgment. Therefore, if produced by the defendant, — the same rule should obtain (subject to the exception as to the jurisdiction.) Recognition The qucstiou of recognising a foreign judgment as we have said whin foTthe ariscs usually when the judgment abroad has been given for the painti . defendant, that is, when there has been a former failure to recover. There are however two cases in which the same question has been discussed when the judgment abroad has been given for the plaintiff, that is, when there has been a former recovery. i. Judgntent for tlie plaintiff abroad whicli has hceu satisfied by the defendant. When the An instaucc of this occurred in Barber v. Lamb. An action Barber v. defendant . La>nb. has satisfied was brought On the origmal cause of action. The defence was a 29L. j: judgment in the Consular Court at Constantinople, and payment to the plaintiff of the sum so recovered. The plaintiff demurred ; and it was deliberately argued that the plea did not show that the court had jurisdiction in the matter : that the cause of action had not merged in the judgment of the court, and therefore was no bar to the action on that cause of action : and that the judgment JUDGMENT FOR PLAINTIFF. 43 Chapter I. could not be set up by way of estoppel nor extinguishment of the plaintiff's right of action. 'It would be contrary to all principle,' said Erie, C.J., 'for the ' party who has chosen such tribunal, and got what was awarded, 'to seek a better judgment in respect of the same matter from 'another tribunal' It is almost inconceivable that such a case should arise a The case a second time, but it is useful to notice it as being the direct con- sequence of the doctrine of non-merger. If the cause of action be not merged, it is not extinguished ; it therefore remains, and therefore action may be brought upon it. It is much to be re- gretted that the sophistry of the argument was met by an appeal to the eternal principles of justice, rather than made the occasion for a searching examination into the doctrines brought forward as the basis of the claim. consequence of doctrine of non-merger. ii. Judgment for the plaintiff abroad luhich has not been satisfied by the defendant. Smith V. Nichnlls. 8 L.J: C. P. 92. Hall V. Obder. II East 118. Bank of Australasia V. Harding. 19 L. J : C. P. 345- An instance of this occurred in Smith v. Nicholls. An action was brought to recover damages for seizure of a ship. The defendant pleaded a judgment already obtained by the plaintiff in the Vice-Admiralty Court of Sierra Leone : the damages having been assessed by the Registrar and confirmed by that Court. The defendant however had not appeared, and the plaintiff himself sought to establish, that the judgment was invalid by reason of this non-appearance which was caused as he alleged by the absence of notification of the proceedings ; and also that the judgment was contrary to natural justice. The facts of this case differentiate it from Hall v. Obder and the Bank of Australasia v. Harding, although the judgments delivered in it are, as we have seen, usually cited with them in support of the doctrine of non-merger. The plaintiff in this instance did not bring his Sierra Leone judgment forward as primafacie evidence of his claim, but, being dissatisfied with the amount of damages awarded to him by it, ignored it altogether, and brought another action in the hopes of getting a larger amount : and when the judgment he had already obtained was produced by the defendant, he sought to impugn its validity. This is another direct and mischievous consequence of the doctrine of non-merger. It is however with confidence submitted When the defendant has not satisfied it. The plaintiff ignored his own judg- ment : being dissatisfied with the amount of damages. cf: p. 27. The case another consequence 44 THE RECOGNISING. of doctrine of that the dictuiti of Erie, C.J., in Barber v. Lamb just cited is Chapter I. non-merger, g^^^^j^^jj^^ ^^^^ jf j^g words ' and got what was awarded ' are omitted ; although of course from the facts of that case they lend Barbery. strength to the application of the principle. The salient feature ^g'^i^ j : of this case however is this ; the plaintiff sought to prove that the ^" ^' ^^^' Sierra Leone judgment was against natural justice not quoad himself, by reason of the smallness of the damages awarded ; but quoad the defendant, by reason of his not having been served : in other words, by reason of the jurisdiction which he himself had created, but of which he now repented, and in which the defendant had by his plea acquiesced. We have already noticed [page 27] the ground of the judg- ments overruling the defence ; but the dictum of Blackburn, J., in Schibsby v. Wesienholz is completely at variance with it: — ''^^^^^cf'eZwiz ' think it clear, upon principle, that if a person selected, as plain- l. r. 6 'tiff, the tribunal of a foreign country as the one in which he ' would sue, he could not afterwards say that the judgment of that ' tribunal was not binding upon him ; ' and it is therefore sub- mitted that this decision could not now be maintained. The case of Thcrc is One case where a foreign judgment is pleaded as res damage judicata, which, following Mr Westlake, may be considered sepa- separitefy : lately : mutual damage ; to it, the principle of the maxim applies ^we^]^e ^^ ^^^ ^^^ force, that one adjudication upon the subject of the isted: §394. dispute by a court competent to adjudicate should be sufficient, and should conclude all further enquiries : — ' If there was damage ' incurred by both parties, through an accident which each charges ' to have happened by the negligence of the other ; the judgment ' of a foreign tribunal is conclusive so as to prevent the person on ' whom it threw the blame, though the defendant there, from suing ' here on the same facts.' [Westlake. — International Law, 1st ed : § 394.] The case relied on in support of this proposition is the General Steam Navigation Co : v. Guillon ; but the learned author General ,„, . , . , . , . , . • . • . ■ , Navigation adds: — 'This doctrme not bemg directly in point, it is not^.-v. ... , , , Guillon. ' positively advanced. 13 l. j : There had been a collision upon the high seas : the defendant alleged that the court at Havre, in an action in which he was plaintiff, and before which the present plaintiffs appeared to defend, had adjudged the negligence to have been on the part of the Navigation Company ; and that there was no negligence on the part of the defendants : that by the law of France this judg- ment was an absolute and final bar to an action for the same THE EXTENT OF J?ES JUDICATA. 45 Chapter I. cause by the then defendants, the present plaintiffs. Tiie plea was held bad in form, for want of a proper commencement and conclusion by way of estoppel : but it was also held bad in sub- stance, for not stating that the present plaintiffs were French sub- jects, resiant or even present in France when the suit began, so as to be bound by reason of allegiance or domicil, or temporary presence, by the judgment of the French court ; neither did they select the tribunal and sue as plaintiffs : in any of which cases the defence would have been good : — -' They were mere strangers, 'who had put forward the negligence of the defendant as an 'answer, in an adverse suit in a foreign country, whose laws they 'were under no obligation to obey.' (Parke, B.). This seems to be in favour of a negative answer to the quaere suggested in the marginal note [13 Law Journal, Ex: p. 169]: — ^ And, if it con- ' tained such averments ; qucere, whether it luould have been a bar to ' the action. ' The case therefore seems to point to a decision in direct conflict with Mr Westlake's proposition. But in fact there is no necessity for considering the question separately : there can be no doubt that the proposition is accurate and that it falls naturally within the principles discussed in this part of chapter i, against which a technical decision can hardly be considered as a weighty authority. {b) The Extent of ' Res Judicata.' The most important question which is raised under ' The second con- Extent ' of the application of the doctrine of 'Recognising' foreign ^^eration. judgments is of course the absolute identity between the cause of °^T" . ... . judicata. action, to which it is pleaded in bar, and the original cause of identity, action on which it has been given. It is at once obvious that the strictest rules are necessary upon which to proceed in order to establish this identity, and that the essential enquiry is, as Lord Outram^. EUcnborough, C.J., pointed out in Outra7n v. Morewood, ' to 3 ^1^°ZA,^. ' ascertain what is the essence of the sentence, because the judg- ' ment is final only for its own proper purpose and object and no 'further.' There is first, of course, the superficial resemblance between General the two suits as to parties and causes of action ; and to establish rs''w'"pin"ies this the judgment and proceedings are produced for the inspection m"auer^^^" of the court, in order ' to show it is a judgment between the same ' parties and on the same matters. When the record is produced, ' the court can compare and decide on the identity of the parties ' and matters in issue : but, without the record of the proceedings 46 THE RECOGNISING. 'an issue is raised which the court cannot decide' (Lord I. ynd- Chapter I. hurst, C, in arg : in Ricardo v. Garcias). But to ascertain the 'essence of the sentence' requires niore ^^^^^^f^^' than this superficial enquiry; and the judgment of Knight-Bruce, pj^l'fg V.-C., in Barrs v. Jackson already cited [p. 33], shows \\o\n Bat~is^. jealously the court will conduct this enquiry in order to prevent \'\. & c former judgments being pleaded in matters with wliich they have ' ^^^' no real connection, and as is natural the stringency of the rules in their bearing on home judgments is in no respect relaxed when we have to deal with foreign judgments, vinnius The quotation from Vinnius, given on p. 34, has always been po'ints*'of cited as an exhaustive enumeration of the essential heads of resemblance, comparison, which he gives as five in number : ' There must be ' resemblance in all things, that is to say, in corpus ; quantitas ; Jus; causa petendi ; conditio personarum :' of these, with the exception of ' quantitas,^ none have lost their significance, and are as important under the English as they were under the Roman system of laws. Eadew ' Quantitas,' however, had an importance in Roman Law which qnaiititas. -^^^^^ ^^^ Counterpart with us. The division of things into fungible and non-fungible, and the identification of the former by its exact estimate in quantity or weight, points to the importance which attached to ' quantity ' in the eyes of the writer on the Civil Law. We propose therefore to examine this essential identity under the following heads : — Identity of subject-matter : Identity of title : Identity of relief: Identity of capacity. Foreign judgment cases unfortunately do not furnish examples in each division ; where they have been wanting, recourse has been had to cases on domestic judgments. i. Identity of subject-matter [idem corpus]. Idem corpus. The well-known instance of the judgment in respect of a damaged hat being unsuccessfully pleaded by a Railway Company in an action for damages in respect of a personal injury is the best example of this that can be found. The point was considered in Callendar v. DittricJi. The action Caiiendar ,,,,,. , , .V. Dittrich. was on a contract to sell and deliver tares, and also on a promise 4M.&G. 68. to ship them properly. The plea was that the plaintiff had im- pleaded the defendant in a Prussian court for not performing the identical promises, that that court had adjudged the plaintiff to have no cause of action in respect of the non-performance of the said promises, and that such judgment was final and conclusive. IDENTITY OF TITLE. 47 Chapter I. Tindal, CJ., said : — 'The plea professes to be an express answer ' to each of the specific gravamina set forth in the declaration. It 'is by no means clear that the judgment in the Prussian court ' relates to the same cause of action as that mentioned in the first ' count ; and with regard to the second we could not have seen 'our way without parol evidence to show that the judgment pro- ' duced applied to the damage alleged to have been sustained in ' consequence of the improper shipping. I cannot therefore get 'over the first objection that the judgment before us does not ' apply to the same contract as this action is for. This variance 'between the proofs and the allegations on the records is fatal.' Tebbetts v. Tilton. 31 N. H. Rep : 273. parties. ii. Identity of title ^ or, Identity in right [idem jus]. Premising that we are now dealing only with judgments /;/ per- idem jus. sonani, this division is another form of the well-established rule of law that a judgment does not affect third parties ; in other words, Third that all parties to the suit and all privies to them are bound by it, and may not litigate the question a second time, but that the rights of a third party are not in the least affected by it. This rule therefore resolves itself into Identity of parties. The questions as to who are third parties or strangers and what their rights with reference to the judgment were elaborately dis- cussed by Bell, J., in Tebbetts v. Tilton [New Hampshire] : — 'Parties and privies are bound by a judgment in personam : all ' who have a mutual or successive relation to the same rights ; ' privies in law, privies in blood, privies in estate ; all who have a 'right to adduce testimony, or cross-examine the witnesses intro- ' duced by the other side ; all who have a right to defend the suit, 'or control the proceedings, or appeal from the judgment: all 'others are strangers.' Henderson Henderson. ■\ Hare 100. iii. Identity of relief [Eadem causa petendi]. In Henderson v. Henderson we have an instance of the defence Eadcm in bar being successful by reason of the identity of the iQ^\Q.i petendi . . -r 1 • Example of clamied m the two suits. It was attempted to re-open certaui successful partnership accounts which it was alleged had not been taken under a reference to the Master in proceedings in Newfoundland. The decree was to compute what was due to the plaintiffs upon all the accounts in question in the pleadings : and it was further alleged that the account taken by the Master had reference only to the relations between a certain estate and the partnership. 48 THF, RKCOGNISIN(;. Wigram, V.-C, said : — ' Where a given matter becomes the sub- Chapter I. *ject of litigation in, and adjudication by a court of competent ' jurisdiction, the court requires the parties to that Htigation * to bring forward their whole case, and will not permit the same ' parties to open the same subject of litigation in respect of matter ' which might have been brought forward as part of the subject in ' contest, but which was not brought forward, only because they ' have, from negligence, inadvertence, or even accident omitted ' part of their case. The plea of res judicata applies not only to ' the points upon which the court was actually required by the ' parties to form an opinion and pronounce a judgment, but to ' every point which properly belonged to the subject of litigation, ' and which the parties exercising reasonable diligence might have ' brought forward at the time. ' Now, undoubtedly the whole of the case made by this bill * might have been adjudicated upon in the suit in Newfoundland, ' for it was of the very substance of the case there, and prima facie, ' therefore, the whole is settled.' Example of In Hu7iter V. Steivart we have an instance of the defence in Hunter \. defence"^" bar being unsucccssful. By a bill filed in equity in the Supreme .ne'e. V. Court in Sydney, the plaintiff claimed to be admitted as a share- ^' ' holder in a certain Company in virtue of a certain certificate issued to one person and transferred to him. The relief prayed was in substance the same as the relief prayed by the bill in England, that is to say, to be admitted as a shareholder. ' But ' admitting,' said Lord Westbury, C, 'the identity in other ' particulars, the question remains is there eadei7i causa petendi, is ' there the same ground of claim, or one and the same cause for ' relief ? ' The English suit was based on an equity derived from a course of dealing adopted by the Company with respect to the issue of shares on certificates : the suit in Sydney by reason of holding a certificate. The Lord Chancellor overruled the decision of Wood, V.-C, in the Court below ; and afterwards the learned Vice-Chancellor, when delivering judgment in Simpson v. Fogo, expressed his Simpson v. Fogo. A different adherence to the decision : — ' The Lord Chancellor was of 32 l. j : toThelame ' Opinion,' he said, 'that i\\e fotmdation to the claim being new, glve'^riTe^t'o a ' although in reference to the same subject matter, (and and* win not ' although it was the foundation of a claim which he possessed, the^aUure^o^f ' ''^"d kucw that he possessed at the time he instituted the original the first; 'proceedings) he might file a bill in relation to that equity which ' he did not avail himself of in a former suit. IDENTITY OF RELIEF. 49 Chapter I. ^j^jg principle of course only applies where the first suit has ^'J^ii'^te by been unsuccessful. If on the other hand that suit has been sue- the first. cessful, the rehef having been obtained on one of the causes for seeking it, the remaining cause must evidently also merge in the judgment giving this relief It is sometimes said that the following remark of Lord West- burv virtually overrides the principle enunciated in Henderson v. The same 111 ju'11 '■^''<^' Henderson Henderso7i : ' It is true that the case made by the second Dili founded on V. ' ,■•/-/• 1 • r tU ■ i-V adilTerent Henderson. ' i-^ust havc been known to the plamtm at the time ot the institu- case giving 3 Hare loo. , ^ , rise to a 'tion of the first, and might then have been brought forward, different ' But a decree of dismissal of a former bill is not a bar to a new ^'^"''^• ' suit asking the same relief, but stating a different case giving rise ' to a different equity.' But Vice-Chancellor Wigram's proposition is that the whole relief must be prayed to which the plaintiff is The whok entitled, and the whole case in support of it, or causa petendi, must be prayed be stated at his peril ; not that all the different foundations to the whole case r ^ _ stated. claim must be brought forward at the same time. The results of these two most important cases may be thus R;^'2°/J^« summarised : where the same person has two equities to the same thing, an adverse decision of the one is no bar to a favourable decision of the other : But where the person has one equity to a thing, he is not entitled to subdivide the subject of the equity; the adverse adjudication on the whole will be a bar to another adjudication on a part, and the adverse adjudication on a part will be a conclusive determination of the whole. Thus in either case the result is the same ; the equity on which the suit is based, the causa petendi in virtue of which the relief is sought, will be once and for all decided. It is Dossible that there should be two independent rights Alternative r 1 1 J rights. arising from the same act : to such a case of course these rules do not apply : they include only cases of alternative rights, and this evidendy was present to the mind of Coltman, J., in giving judg- Caiiendary. mcnt in Calkjidur v. Bittrich already cited, where he says :— f M. &^G.68. ' The suit in the foreign court seems to be rather for the rescission ' of the contract ; whilst the present action is for damages resulting ' from a breach of it. The plaintiff may not be entitled to rescind 'a contract and yet be entitled to an action for the breach of it.' Dogiioniy. The Same point was discussed in Doglioni y. Crispin. There Exampie^of ?''t'\ R- was a suit in the English Probate Court, and there had been a lor plaintiff L. K. I c. cv. """^ "• o _ abroad in ^•3°'- nrevious suit in Portugal. The Portuguese judgment was taken which the •r^ ° .. ..,. foundation as to certain points which were in issue in the English suit, as res of the claim judicata : and the House of Lords upheld the course adopted by Tame as 50 THE RF.COGNISING. in an English Sir Crcsswell Crcsswell : Lord Chelmsford, C, said : — 'Although Chapter I. suit between , , . ,. i . • -i ■,• rr ^ same parties ' the oDjects of the two suits wcrc in some degree different, the judicata. ' parties were the same, and the facts to be established were the ' same. In Portugal the object of Francisco Crispin's suit was to ' prove by the laws of Portugal his right to the inheritance of ' Henry Crispin, as natural son of that person, who had been ' domiciled in Portugal, and was not noble, and did die intestate. ' The proceeding in the Probate Court was on a claim of the ' respondent to be admitted as a contradictor of an alleged will, * which he could only be by reason of his being entitled to the ' inheritance by the laws of Portugal, as the natural son of Henry ' Crispin, not noble, and dying there intestate. The suit in ' Portugal, therefore, covered the whole of the case before the ' Court of Probate ; and as the learned Judge said, the very same ' points were then raised that have been put in issue in this court.' We have here an example of the judgment in favour of the plaintiff abroad taken as 7-es judicata in another suit between the same parties, claiming a different relief it is true, but a relief more extended than, or rather the consequence of and including the relief already obtained : therefore so far as the relief already obtained went there was an absolute identity : or putting it in another way, the foundation of the claim in Portugal was also the very foundation of the claim in England. See also Lord Justice orrEwing Cotton's remarks in Orr Etvmg v. Orr Ewing. iv. Identity of capacity, or Identity of status in the parties. [Eadem conditio personarum]. Eadem The familiar example of this is where a man sues for the same "^s^armrt" thing first in his own right unsuccessfully, and afterwards in right of another or vice versa : the former decision being no bar to the second suit : The rule was thus laid down in Metiers v. Brown : — Metiers v. ' Whenever a person sues, not in his own right, but in right of i h."&'c. 'another, he must for the purpose of estoppel be deemed a ' stranger.' For example, if a person sue first in his own right and fail, he will not be barred from suing as to the same subject matter as an executor. V. Orr Ewing. 8 App : ca : 456. The same evidence must support both suits. Generally, and with reference to all branches of the subject of identity, Lord Westbury's remark in Hunter v. Ste7vart is most stlwart. ' useful : — ' One of the criteria of the identity of the two suits in j. 4DeG. F. & FINALITY OF JUDGMENT. 5 1 Chapter I. ' considering the plea res judicata, is the enquiry whether the ' same evidence would support both. For example, the evidence 'required to prove the allegations in this first bill would not ' sustain any of the material allegations in the second ; and the ' evidence given in the second suit would not be receivable for ' want of proper allegations in the first' There are a few points remaining to be considered which are other applicable both to ' Enforcing ' and to ' Recognising ' a foreign appUcLbie judgment. It is essential that the foreign judgment ht final and recognising conclusive in the country in which it was pronounced. fo"rcing. From two old technical decisions it appears that it was con- sidered of vital importance to state this as an attribute of the judgment in the pleadings. Flummery. In Plummer V. Woodburne, a judgment of St. Cristopher which 7D.&R. 25. had been affirmed by the 'Court of Error in the Island, and after- ' wards by the King in Council ' was disregarded, because the court was left in ignorance ' of the law of St. Cristopher, whether a 'judgment in that Island would be conclusive or not' This was Frayesv. followed by Erie, C.J., in Frayes v. Worms : — ' There is no allega- loC. B: ' tion here that the judgment m the court of San Francisco, N. S. 149. .... ,. , ' assummg it to be in a proceeding between the same parties, was 'final and conclusive.' Apart however from the allegation of conclusiveness, it is well judgment to established that the judgment must be final: — 'This court has condusive in 'jurisdiction to enforce a foreign judgment : but it would be new com'fr"y. 'to find that it could enforce it unless it were final.' (Romilly, Paui\.Roy. M.R., Faul V. FoY.) Thus, if it be proved that the foreign Ch:36i. court has suspended execution on a judgment, this suspension will be recognised, and an action on it in the English courts will Frith V. be stayed until the suspension is removed {Frith v. Wollaston). 21 L.J: ' But in Hall v. Obder, where the judgment was for a sum Haiiv.' certain found to be due from defendant to plaintiff, with interest II East. 118. thereon from a certain day past, but with a stay of execution till the further order of the court Lord Ellenborough, C.J., thought the action might be maintained : — ' This at first struck me as 'an incomplete judgment, on which no action could be main- ' tained here : but we have been pressed with the course of pro- ' ceedings in our own courts, where on judgment recovered, and ' stay of execution on allowance of a writ of error, an action lies 52 INTERLOCrTORV JUDCMKNTS. 'nevertheless in the meantime on the judgment.' This case how- Chapter I. ever would seem to be overruled. • interiocu- Therefore, a judgment which is merely interlocutory, will not ment wilt not be enforced here, for ' the court will not give relief which must 'be enforced by a final judgment in another country.' The bill in Paul V. Roy was to enforce an interlocutory order of the Court raui^.Roy. of Session in Scotland : — ' If I did so, I should be carrying on ijh: 361". ' the bill concurrently with the Court of Session, not having before ' me the whole of the parties who are before the court, or the ' whole of the evidence which is before the court, or the means ' of obtaining that evidence, or the means of doing justice between Interim ' the partics ' (Romilly, M. R.) In Patrick v. Shcdden,ihe Conr i ratrick v order. . . ■ -, , • i • 11, Shedden. arrived at a sniiilar conclusion: the action was brought on an 22 l. j : interim order of the Court of Session in Scotland, that execution might issue after a caution given, notwithstanding the pendency of an appeal to the House of Lords. Lord Campbell, C.J., said : — 'This is not to be considered as a judgment, but merely * as an order for execution in the meantime upon the terms pre- ' scribed : these terms are liable to variation from time to time ; ' and Wightman, J. : — 'The very name interim order seems * sufificient.' Proceedings So, whcrc there have only been proceedings in the nature of a of L fudg-"'^'^ judgment or decree (as, for instance, the registering a protest of ment must ^on-payment in the Court of Session in Scotland, and the issuing /udgmlm."° and execution of letters of horning and poining) it should be averred that such proceedings are, in the foreign country, equiva- lent to a decree. It then becomes a question at Nisi Prius^ whether the proceedings proved are so equivalent or not. {Hay v. Hay v. _. , s Fisher. rislier.) 2 M. & w. The judgment should be definite and capable of being enforced. ^"' In Sadler v. Robins, the defendant had been ordered to pay sadier\. a certain sum on a certain day, first deducting thereout the fclTp: defendant's costs to be taxed by the proper ofiicer. The costs ^53- had not been taxed : — ' The sum due on the decree is quite ' indefinite and can't be gone into here ; if the decree had been ' perfected, it would have had effect given to it.' (Lord Ellen- borough, C.J.) Appeal The accepted doctrine in the English courts is that the finality abroad^ of the judgment is not affected by the possibility, or likelihood of there being an appeal in the foreign country : nor even by the fact that an appeal is pending. ' The pendency of an appeal PENDENCY OF APPEAL. 53 Chapter I. 'might afford ground for the equitable interposition of the court Might be 'to prevent the possible abuse of its process, and on proper terms equitable in- ' to stay execution in the action, but it cannot be a bar to the '"p°^'"°"- Munroev. ' action itsclf.' (Cockbum, C.T., Mimroe v. Pilkins:ton. Erie, Pilkington. . ^ V 31 L. J : C.J., Vanqiiehn V. Bouard.) Vanqiieiin The rcason for this rule is more apparent in the case of Appeal from V. Bouard. , . . . , . , , , -^i . Colonial 33 L.J: colonial judgments in respect of which an appeal to the Privy judgments C. P. 78. r^ ., , ,. ^ , , ... ...... pending to Council may be pending. Brought thus within the jurisdiction Privy of the mother country, the principles applicable to home judg- no bar to ments would be also applicable to colonial judgments ; and them. indeed with regard to them the principle was expressly laid down Henderson ^"^ Hendcrso^i V. Heiiderson. ^Henderson. ^hc qucstion is oftcn raised in the form of a defence, ' that the 3 Hare 100. < judgment is erroneous and liable to be reversed on appeal,' a bad plea, as we shall see in chapter iv. on ' Defences to the action.' Mr Westlake however contends for a modification of the rule : — ' But when a judgment is of no force in its own country pend- ^^esUake, 'ing the appeal, it would seem that it ought on principle to ' receive no force here.' [International Law, isted: § 377.] And this Faber v. appears to be the accepted doctrine in the United States. {Faber i/American V. Hovey.) It iiiust bc coufcsscd that this seems to follow from the ^^■^^ ■ former doctrine, that the foreign judgment will not be enforced unless it be final in its own country ; in other words it is imma- terial whether execution on the judgment be suspended by act of the court or by law. Castriguew. Li Castrique V. Bchrefis, the doctrine of receiving the foreign ^L. jj judgment as final, until it is reversed, was expounded by Cromp- ton, J., delivering the judgment of the Court : [Cockburn, C.J., Wightman, Blackburn and Crompton, JJ.] It will be noticed that this case is the foundation of the important doctrine to be €/• p- 1°'. fully considered hereafter ; that the English court, when a foreign judgment comes before it, does not sit as a Court of Appeal from the foreign court. The action was for maliciously and without reasonable and Action for . . , , maliciously probable cause, setting the law of France in motion to the damage and without . . . .. _ • •! ■ r ■ 1 T-' T 1 1 reasonable of the plaintiff. 'In a similar action for setting the English law and probable •• 111 ii-iii 1 cause setting 'm motion, it would be necessary to show, said the learned the law of Judge, ' that the proceeding alleged to be instituted maliciously motion, 'and without probable cause, has terminated in favour of the ' plaintiff, if from its nature, it be capable of such a termination. 'The reason seems to be, that if in the proceeding complained of, 'the decision was against the plaintiff, and was still unreversed, Q. B. 163. 54 PENDENCY OF APPEAL. English court not an Appeal Court from foreign decisions. ' it would not be consistent with the principle on which law is Chapter I. ' administered, for another court not being a Court of Appeal, to ' hold that the decision was come to without reasonable and pro- 'bable cause. — There is no direct authority upon the point, but 'it seems to us, that the same principle, which makes it objection- 'able to entertain a suit grounded on the assumption that the * unreversed decision of a court in this country was come to with- 'out reasonable and probable cause, applies where the judgment, 'though in a foreign country, is one of a court of competent 'jurisdiction, and come to under such circumstances as to be 'binding in this country.' V. Ford. This decision was followed in Taylor Tjtyior v. Ford. 22 W. R. Judgment to have been on the merits. Lastly, it is essential that the foreign judgment should have been pronounced on the merits of the case. A judgment therefore, recovered in a foreign court on a plea based on the Statutes of Limitation of that country, which form part of its lex fori, will not be recognised in this country. The leading authorities on this point are Huber v. Steiner and Harris v. Qiiine. The question however forms part of a very im- portant subject, the consideration of which we propose to reserve for a separate chapter. [See chapter vi.] Huber v. Steiner. 2 Sc : 304. Harris v. Quine. L. R. 4 Q. B. 653. Pleading. With reference to pleading, the suit and the judgment should be set out with certainty as to dates ; and should not be pleaded historically or from memory : If the defendant have no copy of the proceedings, to permit of his doing this, time will be allowed him to get a copy before pleading. {Foster v. Vassall.) ^vasllu The judgment and proceedings need not of course be set out sAtkrsS;. in full, but there should be such a description of them as to enable the court to know what was decided (Lord Brougham in arg: in Ricardo v. Garcias). So long as the foreign law is sufficiently apparent, upon question whether the foreign proceedings in the nature of a judg- ment are by that law equivalent to a judgment, or it would seem on any other question, that law need not be set out, but only be proved in the usual way at the trial. {McLeod v. Schultze.) ^chidtt^' At the trial the proof of the judgment is regulated by Lord g^V" J- Brougham's Act (14 & 15 Vic : c. 99, s. 7), as to which see chapter iii. It has been held in a colonial case that the whole Foreign law Ricardo v. ,1 Garcias. the i2Ci:& Fin : 368. Proof of foreign judgment. PRACTICE. 55 Chapter I. ^^ ^.j^^ proceedings in the foreign court should be produced. McMillan {^^<^MiIlan V. Ritchie — New Brunswick.) It is doubtful however ^■Ritchie, if this is sound : the true principle would seem to be that laid 2 Allen 242. '■ '■ Paiandri down by the Italian Court in Palandriv. Lauthier : the documents j.d!"//p.'^' on which the judgment had proceeded need not be produced ; k/- p. 123 1883. p. 87. i^^j. ^j^g Judge may order them to be produced to clear up any eKorlT" questions raised. 56 SUMMARY OF THE FIRST CHAPTER. chapter i. Definition. 2 The preliminary division into ' The Enforcing ' and ' The Recog- nising ' considered generally. 2 The necessity in England for bringing actions on foreign judg- ments itself the cause of many difficulties. 3 The Enforcing. 4 The conflicting doctrines examined : 4 Doctrine of Comity defined. 4 Authorities in its favour : 5 its uncertainty and apparent hmits ; and vagueness. 6. 7 Examination of ' Comity ' — reciprocity is essential. 7 Doctrine of Obligation defined. 8 Authorities in its favour : 8 its capacity of sharp definition. 8 Examination of terms used in Lord Blackburn's definition : * Common Law.' 8 equivalent \.o Jus Gentium, 9 or to English Common Law. 9 consequence of these principles. 9. 10 * Obligation.' 10 Obligation and sanction inseparable ; the enforcement of the sanction is of the essence of sovereignty. 1 1 conclusion : — a legal debtor can only be so considered in his own country. 11. methods of destroying obligation and avoiding sanction. obedience to judgment, ii leaving the country. 12 the consideration of this last method is the inception of the Doctrine of Obligation and Cof?iity. 1 2 Interstate arrangement of enforcing judgments for each other tends to the formation of an Interstate Comity. 1 2 conclusion : — a state where a legal debtor of another state is found, will clothe the foreign obligation with a sanction SUMMARY. 57 Chapter I. standing in the place of the foreign sanction, during the debtor's residence in the state. 13 Treaty may replace Comity. 1 3 Sanctions classified : — 13 this interstate arrangement is not unreasonable nor im- politic : 13 difference between civil and criminal cases : 13. 14 Extradition considered theoretically. 14 in civil cases the wrong not being against the community at large, it is not affected by redress being obtained in another state : 14 states lend their aid mutually to enforce each other's judgments. 15 Doctrine of Obligation and Comity stated. 1 5 The English Sanction is auxiliary to the Foreign Sanction : its advantage in combining the former doctrines : 15 the three doctrines reviewed in juxtaposition : 15. 16 examination of the auxiliary sanction. 1 7 an analogy traced between Law proper and International Law : 1 7 result of the theory : — a bare obligation exists which is clothed with the auxiliary sanction. 18 Lord Blackburn's principles of defence applied. 18 ' What is loosely termed a Comity ' is no longer a term of reproach to be applied to a theory involving the principle of Comity. 19 the theory appHed to the consideration of procedure against absent defendants. 19 The lex talionis or droit de retorsion considered. 20 The logical deduction from the principle is, that the courtesy which in reality is exchanged is jiis for jus, rather than lex for lex. 20 illustrations of this principle to be found in decisions. peculiar right of action given by French law to syndics of a bankrupt. 20 peculiar right of action given by some Colonial laws to and against chairmen of companies. 22 the rights of an assignee to sue upon a chose in action con- sidered in further illustration of the principle. 2 1 The Cause of Action. 22 Appearance of two doctrines which have never been thoroughly analysed. 23 58 SUMMARY. much confusion is to be traced to their partial or occa- Chapter I. sional recognition. 23 the doctrine of primd-facie evidence considered. 24 review of the authorities. 24 the doctrine demohshed by Blackburn, J. 25 enquiry as to what the foreign judgment is evidence of leads to the conclusion that it is evidence of the bare obli- gation presumed to have arisen in England. 26 the doctri?ie of non-merger considered. 27. the authorities given in support of it in Smith's Leading Cases 27 when analysed resolve themselves into two, 29 which contain two principles ; the first is purely technical, 29 the second a repetition of the doctrine of primdfacie evidence which must now be considered as extinct. 30 The doctrine is at variance also with general principles. 30 actions on the original cause of action are said to be allowed. 30 this depends on the two former doctrines. 31 a recent instance at Nisi Prius is given, 31 and the disastrous consequences of the system are pointed out. 31 it is also opposed to the maxim interest reipuhlicce ut sit finis litium which is applicable to foreign as well as to domestic judgments ; 32 but being dependent on the two former doctrines it must vanish with them. 32 The Recognising. 32 The further development of the main distinction. 33 The English doctrine of res Judicata stated, following Knight Bruce, V.-C. 33 The fundamental principle of res judicata is applicable to actions on judgments, as well as to defences, 35 considerations involved in the doctrine — ' The Rationale ' and 'The Extent.' 36 The Rationale of the defence. 36 The old doctrine extends the English principle oi res judicata in its entirety to foreign judgments. 37 conclusion from this is that the Plaintiff has no reply beyond putting the record itself in issue. 38 but res Judicata in any form implies a merger of the cause of SUMMARY. 59 Chapter I. action and is therefore opposed to the two doctrines of priina-facie evidence and non-merger. 38 the practical form which the enquiry takes is to discover a principle for the plaintiff's reply. 39 the cases seem to bear out the distinction which is drawn by Story. 40 the main difference between the positions of plaintiff and defendant is as to the jurisdiction of the court ; 40 which it is said the plaintiff voluntarily submits to, whilst the defendant is before the court under compulsion. 40 this reasoning does not apply to any other defence. 40 the practical view therefore is that the reply should be the same as the defence except as to the jurisdiction of the court. 40 the analogy between the plaintiff's creation of jurisdiction and a submission to arbitration is not strictly accurate. 41 an analogy is traced between the rules as to English and foreign judgments. 41 the natural consequence seems to be that the rules of defence should apply to the reply except as to the jurisdiction of the court. 42 Two cases where an action was brought on the original cause of action after judgment for the plaintiff abroad examined. first, where the defendant has satisfied the judgment.42 secondly, where the defendant has not satisfied the judgment. 43 both are the result of the doctrines of prima-facie evidence and non-merger. 42. 43 the general principle is established that submission to the tribunal may not be withdrawn. 41 the case of mutual damage is considered separately. 44 The Extent of its application. 45 Primary enquiry is to ascertain the essence of the sentence in order to establish the identity between the two suits. 45 The record of the foreign proceedings is produced to estab- lish the superficial resemblance of the parties and causes of action. 45 the points of comparison enunciated by Vinnius are appli- cable to English law. 46 with the exception of eadani quaniitas which is peculiar to Roman law. 46 identity of subject matter considered. 46 6o SUMMARY. idem jus, identity of title or identity in right, is another form Chapter I. of the rule that judgments do not affect third parties, and is therefore the same as identity of parties. 47 the question as to who are third parties is discussed. 47 identity of relief considered : 47 an instance is given of the plea in bar being success- ful : 47, and one of its being unsuccessful : 48 the principle deduced is that a man may have two equities to the same right, but when one of them is brought before the court, the whole of it must be gone into. 48 alternative claims only are dealt with. 49 example of judgment abroad for plaintiff treated as res judicata in English suit where relief sought depended on or flowed from relief obtained abroad. 49 identity of capacity, or status in the parties considered : 50 the familiar instance being a man who sues for the same thing first in his own right and then in right of another. 50 The general criterion of identity is, will the same evidence support both suits ? 50 other essentials considered, applicable to both ' recognising ' and ' enforcing.' 51 judgment to be final and conclusive abroad. 5 1 proceedings in nature of judgment, not enforced, unless proved to be equivalent abroad to a judgment. 52 judgment to be definite and capable of being enforced. 52 pendency of appeal does not affect judgment. 52 but query, whether it should affect it, if it makes the judg- ment inconclusive abroad. 53 case of maliciously and without reasonable and probable cause setting the law of a foreign state in motion : — action cannot be maintained. 53 English court does not sit as a Court of Appeal from the foreign court. 53 judgment to be on the merits. 54 therefore judgment on foreign Statutes of Limitation not recognised ; 54 points of practice considered. 54 61 CHAPTER 11. Chapter INJUNCTIONS TO RESTRAIN PROCEEDINGS. "• LIS ALIBI PENDENS. General principles of jurisdiction ' Simple ' jurisdiction ......... 62 'Assumed' ,, 62 'Single' ,, , .62 in respect of the person ........ 63 ,, property 63 ' Concurrent ' ,, ........ 64 'Constructive',, over foreign Companies with agencies in England 88 General principles as to right to sue in England ..... 63 General principles as to injunctions in restraint of suing at home or abroad ........... 64 Division of the Subject ......... 65 i. A/^o stiit in England — Injunction to restrain a foreign suit . 65 A^o suit abroad — Injunction to restrain an English suit . . 67 ii. Suit in England after decree abroad — Injtmction to restrain English suit. ......... 68 foreign orders to wind up companies abroad ... 69 ill. Suit in England pending suit abroad — Injunction to restrain English suit ......... 69 "lAtdi oi lis alibi pendens ....... 70 ' election ' ......... 70 appointment of receiver pending suit abroad ... 72 'convenience' . . . . . . . . . 71. 72 suit respecting land in foreign country .... 74 suit abroad commenced by defendant to English suit . . 74 Admiralty decisions ........ 74 general result ......... 75 iv. Suit abroad pending suit in England — Injunction to restrain foreign suit . . . . . . . . . . 75 Lord Cranworth's four general propositions • • • 75 protection in plaintiff's favour ...... 77 ' vexatious suits ' 7^ 62 INJUNCTIONS — US ALIBI PEXDF.XS. V. Suit abroad after decree in England- foreign suit , administration suits . winding up companies in Bankruptcy . concurrent proceedings General summary of the subject . Identity of suits .... Penalty for disobedience to injunctions Recognition of injunctions . Evidence for Foreign Tribunals . Scotch decisions .... .Summary ..... ■Injitiiction to restrain Single jurisdiction. Concurrent jurisdiction. 8i Si 82 83 86 86 87 89 89 90 90 91 Chapter II. General con siderations on the question of jurisdiction. ['/■■ P- 20-] We have up to the present time been concerned chiefly with questions of 'single jurisdiction ; ' that is to say, the action tried and judgment given in one country, the proceedings to enforce the judgment in another ; this last being a question of single jurisdiction because ex hypothesi the judgment cannot be enforced in the country of its origin by reason first, of the absence of property belonging to the defendant, secondly, of the absence of the defendant's person. The question of ' concurrent jurisdiction ' appeared however whilst we were considering the doctrine of non-merger with its attendant action on the original cause of action. We were then compelled to assume that it was possible for the same cause of action to be triable in at least two jurisdictions; but the con- clusion arrived at was that having been tried and determined in one, the question ought not to be retried in another. With the question of lis alibi pendens however concurrent jurisdiction is brought prominently to our notice and requires careful consideration. Jurisdiction in the first place may be divided into ' simple ' and 'assumed :' [the second including 'contractual jurisdiction' (see p. 146)]. For the present we propose to confine ourselves to the first division ; the second and the complicated questions (already hinted at during the discussion of the rule of ^jus {ox Jus') which arise under it will be more conveniently treated when we come to deal with the defence raising a want of jurisdiction in the foreign court. Jurisdiction in the second place may be divided into ' single ' and ' concurrent : ' the meaning of these terms having already been roughly defined. Now, jurisdiction arises first in respect of the person : that is, JURISDICTION. 6 ChaBter bv mere residence : and not as is sometimes stated in respect of Jurisdiction """si -' ...... arises in "■ birth or domicil. Aliens temporarily resident within the limits respect of . • 7 \ J 1 ''^^ person of the realm are subject to it: Natives {regnicoles) and those by mere residence* domiciled in the kingdom cease to be subject to it for the pjir- poses of simple jurisdiction when they go beyond the territory. Being subject to this jurisdiction, so far as it concerns our subject, imports obedience to the Queen's writ of summons : with regard to natives, by reason of their allegiance ; with regard to foreigners and those domiciled by reason of the protection afforded to their persons, while they are in the country. Jurisdiction (in England) arises secondly in respect of property : That \yhich that is, it extends over the owner of property by reason of the respe«"of protection afforded to that property. It extends therefore over P'^°P"'y- alien and native owners of property situate within the limits of the realm. Being subject to this jurisdiction does not of itself import obedience to the Queen's writ of summons when absent from the kingdom ; but it implies a right in the Sovereign Authority to issue execution upon the property when lawful occasion arises : It covers therefore both real and personal CarronCo: property \cf : Lord Cranworth's remarks in the Carron Iron Co : s'H.lL.'caT' V. Maclaren\ Questions which arise with reference to property '^'^ ■ situate within or without the kingdom fall properly under the head of 'assumed jurisdiction' [see p. 136]. From this it follows that, without introducing any question of Consequence . . of change of assumed jurisdiction, mere change of residence will give the residence. courts of more than one country jurisdiction over the defendant in respect of the same cause of action : \cf : Lord Camden's Bay ley \. remarks in Bay ley v. Edwards?^ 3 Swanst"': Again the general rule may be taken to be that mere residence Mere .... . . residence within the territory gives a right to bring an action against another gives nght • 1 r r ■ t • / • 1 • '° bring resident for a cause of action wherever arisen (with certain excep- action tions, to be noticed hereafter), difficult questions as to the law resident for applicable having then to be determined ; and a suit once begun actUn. in which there was personal jurisdiction over the defendant will '^-p'^i- not be discontinued by reason of his absence during its con- tinuance. This rule is much curtailed in some countries : [see, ' Contestations entre etrangers ' in France] : In England on the other hand it is extended : and the rule practically resolves itself for the purposes of simple jurisdiction into the necessity for the defendant's residence, a plaintiff out of the jurisdiction being , Plaintiff out allowed to sue on giving security for costs, [see chapter v. J of jurisdic- , ... . -- tion has the But when the defendant goes into another country the plaintm same right. 703 64 INJUNCTIONS — LIS AUDI PEXDEXS. may think it desirable to bring an action in that country also, Chapter Where same without discontinuing the one already begun in England. Cases action IS ^ ..... • being tried therefore occur where the same cause of action is being tried in in two . . . . countries. two couutrics suiiultaneously : there then arises what is termed 'concurrent jurisdiction.' The defendant is thus harassed with two actions ; and, both suits being based on a good cause of action, neither court being cognisant of the proceedings in the other, he has the prospective possibility of two independent judg- ments being given against him. Equity Equity therefore has interposed to protect the defendant from interposes to . . . prevent the this double vexatiou, to prevent the * indecorous spectacle of two double . . vexation. ' courts running a racc against each other' (Lord Campbell, C, Venning v. Lloyd) ; that is to say, so far as it concerns us at Venwngs. Lloyd. present, if one of the two suits be proceeding in England, the iDeG. F.& court may be moved, if circumstances permit, for an injunction to restrain the prosecution of one of them. This interposition is bottomed in the principle of universal justice : in the presumption that right will be done between the parties in whichever country the dispute be determined : a principle which is the very foundation of the whole subject of the Lis alibi mutual recognition of foreign judgments. fnjun«bn" The qucstiou of injunctions is, as we shall see, of wider ^amined application than that of lis alibi pendens ; they may however be together. ^^^^ examined together. It will be convenient in the discussion to use the words ' restrain the suit : ' more accurately it should be, ' restrain a person from prosecuting the suit ; ' because it is evident that as one court cannot issue an order to another court of equal jurisdiction in this country, neither can it to a foreign court ; such an order would in either case be hrutum fulmen. But as has already been clearly pointed out a court has, in all matters connected with its own procedure, unlimited power over the persons of all within its jurisdiction \ and, acting strictly i7i per- sonam, can order the discontinuance of a suit whether proceeding in England or abroad. ' It is evident that the English court has no jurisdiction over a ' foreign court which happens to have jurisdiction upon the 'matter of the suit.' (Sir John Leach, V.-C, Biishby v. Munday.) Bushbyy. Power of * There is no doubt as to the power of the Court of Chancery 5 Mad : 297 court'w ' to restrain persons within its jurisdiction from instituting or restrain prosecution ' prosecuting suits in foreign courts ; wherever the circumstances suif""^^'^" ' o^ the case make such an interposition necessary or expedient. ' The court acts in personam and will not suffer any one within RESTRAINT OF FOREIGN SUIT. 65 Chapter ' its reach to do what is contrary to its notions of equity, merely ' because the act to be done may be, in point of locaHty, beyond II CarronCo: ' ^^^ jurisdiction.' (Lord Cranworth, C, Carro/i Iron Co: ^i.Maciaren. Maclaren.) 5 H. L. ca: / 416. This has frequently been recognised in other cases to which we shall refer as they occur under the divisions of the subject. We propose to consider the question under the following Division of heads :— first, applications for an injunction to restrain a suit ""^ '"''■'"'■ there being no second suit proceeding : secondly, applications to restrain an English suit commenced after decree abroad : thirdly, applications to restrain one of two suits, when the foreign suit is commenced first : fourthly, applications to restrain one of two suits, when the English suit is commenced first : lastly, applica- tions to restrain a foreign suit commenced after decree in England. This division of the subject, although in no case expressly This division sanctioned, follows the general current of the authorities : it would hfaicafed in seem however to be clearly indicated by Lord Cranworth's judg- case'.^*'^'"^ ment in the Carron Iron Co: v. Maclaren, and will be found useful in considering the numerous cases. The third and fourth divisions of course involve the most important propositions, and these are the two which unfortunately have not been kept very distinct, notably in the latest expositions of the subject by the |^«ry V. Court of Appeal : — McHenry v. lewis ; Peruvian Guano Co: v. 22 ch: Bockxvoldt. D. 397. ... Peruvian The subjcct IS further complicated owing to the varied forms Bockwoidt. of the applications made to the court : it is now a plea in an 23 Ch: . ,,..„,.,. . D. 225. action ; now to put the plamtm to his election : at one time to restrain the foreign suit ; at another to restrain the English suit. It will be seen as we proceed, that although an application in one of these forms may have been refused, if it had been made in another it might have been entertained as more applicable to the circumstances of the case. Keeping this in view, we shall endeavour to point out as clearly as possible in every case what application should be made. i. No suit in England. Injunction to restrain foreign suit. ' Even if there is no question as to the necessity, or as to the Second suit ' effectualness of the foreign suit, still if the party in the jurisdic- equity!^ '° ' tion of the court is instituting proceedings in a foreign court, the ' instituting o{ which is contrary to equity and good conscience, ' it will restrain the prosecution of the foreign suit, just as if it had F 66 INJUNCTIONS. ' l)een a suit in this country.' (Lord Cranworth, C, Carron Iron Chapter Co: V. Madarcu.) ' Injunction to -,,11 1 • • Barron Co: restrain jt might at first Sight appear questionable whether this proposi- ^.Mariaren. foreicn suit, 5 **• ^' ^^* there being tion Is ically applicable to this branch of the subject : but the 416. no suit in England. chief casc cited by the Lord Chancellor in support of it is Lord Portariing- Portarlington v. Soiclby, and in that case Lord Brougham exercised so„iby. the power and restrained the defendant from suing in Ireland ^4.^' upon a bill of exchange given by the plaintiff for a gambling debt. It seems at the time to have been thought a large exercise of jurisdiction, and he thus defends it : — ' Nothing can be more un- ' founded than the doubts of the jurisdiction. That is grounded, ' like all other jurisdiction of the court, not upon any pretension 'to the exercise of judicial or administrative rights abroad, but on ' the circumstance of the person of the party on whom this order ' is made being within the power of the court. If the court can ' command him to bring home goods from abroad, or to assign ' chattel interests or to convey real property situate abroad : If, ' as in Fen7i v. Lord Baltimore, the court can decree the perform- Penn v. . . Baltimore. ' ance of an agreement touching the boundary of a province in i ves: ' North America : or, as in Toller v. Carteret, can foreclose a mort- xo/ier v.' , . . . , , Carteret. 'gage in the Isle of Sark ; it can, in precisely the same manner, 2 vem: 494- ' restrain the party being within the limits of its jurisdiction from ' doing anything abroad, whether the thing forbidden be a con- ' veyance or other act in pais, or the instituting or prosecution of 'an action in a foreign court.' The earliest case is Loiue v. Baker ; but there Lord Clarendon, Lowe v. . - ... Baker. after advising with the other Judges, refused an injunction to i ch: Ca: Leghorn, supposing he had no authority to grant it : ' but qiicere ' ^' — the reporter adds — ' for all the bar was of another opinion.' The case however has never been recognised or followed in later times : it was explained by Lord Brougham as having proceeded on the ground of refusing to restrain the court, although the answer was given that the injunction was to the party within the jurisdiction: ' a very sound answer, as it appears to me.' And in Catnpbell v. Houlditch, Lord Eldon restrained the defendant Catnpheiiv. from further proceeding in an action in Scotland. citlVMy: Contrary to But the institution of the foreign suit must be ' contrary to ^ ^" '°^' eqmty and , gq^j^y aj-^^j gggd conscicncc,' otherwise the motion will be refused, conscience, ^j^^^ .^ Wallace v. Campbell, the court, while admitting its power Wallace v. . . , • r • 1 ^T. Campbell. to restrain, declined to exercise it by any interference with the 4 y. & C: foreign suit, and refused to prevent a fund being sent to Madeira RESTRAINT OF ENGLISH SUIT. ^J Chapter by the English agent of an administratrix in a testamentary suit ^^' there, at the request of the debtor who was under an apprehension that he would not get justice there. Fletcher v. The point was discussed more recently in Fletcher v. Rodgers, The creditor zy^W-R. 97. and the same principle was there enunciated, that unless there is bring action .-.,.. . ... . _ , abroad. some equity to justify it, the injunction will not issue. In that case the plaintiff had a right to sue in England on an English contract which he declined to exercise. The ship, the subject of the contract, had been seized in San Francisco, and this seizure, by the law of California, gave him a right to sue there, which he did. The Court of Appeal [James, Brett, and Cotton, LL.J.] unanimously held that he was justified in so doing ; that the action might be prosecuted wherever he could call the defendant into court ; and that therefore there was no sufficient ground to restrain him from proceeding with the suit. And again, in the Liverpool Liverpool Marine Credit Co: v. Hunter, where the plaintiff finding V. Hunter, his debtor's property in Louisiana pursued it there, knowing that 479. ' ^ by the law of that State the rights of a third person in that pro- perty would not be regarded : although this law is different to that which exists in any other country, the injunction was refused because the property was seized under process in an action which he was entitled to bring, there being an undoubted right, by the law of Louisiana, to proceed against the debtor when available property of his came within the jurisdiction of the court at New Orleans where his agent resided (Lord Chelmsford, C). Similarly in the converse case ; if there be no suit abroad but injunctionto only one going on in England, it would seem that the same [n'Engian"d! principles should apply. no^suit^'"° The fact however that the suit relates to immoveable property ^^^°^^' Biinhuryv. in a foreign country is not of itself sufficient (see Bunburv v. Bitnbury. r, , \ I Beav: 318. Bunbury, post p. 76), unless it could be proved that the courts in the foreign country have by their own law exclusive jurisdiction. ^'TfsR -v ^^^^°^' J-> i" ^^ Buenos Ajres Ry: Co: v. Northern By: Co: 0/ s^me Northern Biienos Ayres, an action on a contract for rent of premises situate a"piy^'^^ Buenos abroad, held, on demurrer, that the defence setting up a want of Ayres. . or 2Q. B. D. jurisdiction in the English courts was bad. But it would seem 210, to be otherwise if the suit involved merely a question as to the suit relating c7o1i"- right to such land. {Cood v. Cood.) Lbie^Xoad. Ch : 273. There are numerous instances of attempts to restrain by injunc- 68 INJUNCTIONS. Restraint of tion actions on a foreign judgment, on allegations of fraud, or Chapter foreign Other matters which would more properly call for a determination on fr'^unds whether they were good defences to the action or not : the courts ^^;^^^,,^^,-,^ properrv* havc bccn unanimous in refusing to restrain the action. iOchseti- Y- ■^"•^/('f.''- J r^ L.. K. 8 (_h; re-fused ^ heiiiv. Papellev ; Bowles \. Orr ; Cood w. Cood.) And the same 695- Bowles V. principle was acted on in White v. Hall, where the application was Orr. to restrain an act which was the consequence of a judgment Ex: 464. abroad, a foreclosure and judicial sale. [See on this subject, Cood. 'Territorial Jurisdiction,' post. p. 136.] ch:275. IV kite V. Hall 12 Ves: 321. ii. Sui'l in England conwienced after decree abroad. Injunction to restrain English suit. Injunction From what has already been said on the subject of res judicata to restrain _ •' _ ■' -^ _ _ suit in or the plea in bar to an action on the original cause of action, it England commenced would secm to follow that the speedier course of applymg for an abroad. injunction to restrain the action will be allowed. Singularly enough however there are very few cases in which this has been done : In fact the only direct instance is to be found in the old case of Blad V. Bamfield, in 181 9, where a perpetual injunction was Biad\. granted to stay proceedmgs against a Dane for the seizure 01 3 Swanst: property of English subjects in Ireland, sentence having been °'*' given by the Danish courts upon that seizure, the Chancellor of the kingdom having confirmed the sentence, and execution having issued after confirmation. The principle was however recognised by Knight-Bruce, L.J., in Ostelly. Lepage; and again by Dr Lushington in the Griefs- Osteiiy. wald : — ' I apprehend that if the court were satisfied that there 2 De g. m. 'had been a judgment on the same question, the party proceeding thebrie/s- 'here having been plaintiff in the other court, this court would Sw:43o. ' not allow the suit to proceed, and that too whether the proceed- ' ings had been in a British or a foreign court.' Restraint In the Marquis of Breadalbane v. Marquis of Chandos, a motion Breadai- advantage of was madc to restrain the defendant from taking advantage of a chandos. judfgm"ent judgment of the Court of Session in Scotland. It was held how- yu.^' ever to be ' contrary to practice to assume jurisdiction in favour ' of parties who having had an opportunity of asserting their ' rights in another court where the matter had been properly the ' subject of adjudication, and in which the matter of equity was ' equally cognisable, and have either missed that opportunity, or ' have not thought proper to bring their title forward.' Reference to ^^^ ^^^^ undcr which rcs judicata was considered was princi- ^^^udklta. pally as a bar to an action in England after judgment for the LIS ALIBI PENDENS. 69 Chapter defendant abroad. The question of the injunction is independent ^^- of any consideration as to who was the successful party in the foreign suit. It was moreover discussed as a defence to the action : it might also be the ground of demurrer to the plaintiff's claim. A perpetual injunction is evidently a speedier means of nipping the litigation in the bud, and would be applicable not only to cases where judgment has been for the defendant abroad, Barbery, but would be the appropriate remedy in such cases as Barber v. 29l!j: Lamb, and Smith v. Nicholls \cf: pp: 42, 43.] Smi'thl''.' The converse of this case falls under the fifth division, a suit For converse 8 L. J: ^ commenced abroad after a decree in England, such as an order div. v. p. Si. ^' ^- ^^' to wind up a Company in this country. The nearest approach to a parallel to this, that is to say an injunction having been granted to restrain a suit commenced in England after a foreign Restraint of suit here order to wmd up a Company abroad, is to be found m the case after foreign Sudiowv. of Sudlow V. Dutch Rhenish Ry: Co:, which was a bill by an wind up Dtitch ^ ... company, Rkenish Co: English shareholder to be relieved against a forfeiture of shares : 21 Beav; 43. RomiUy, M.R., held it a fatal objection that there was a decision of the Dutch courts opposed to the plaintiff's view. Crjijkshank "Yho. dccision in Cruikshank v. Robarts may be taken to be a V. Robarts. ... . . 6 Mad: 104. corollary to the principles involved in this second division : — ' \i\Westiake. . . Int : Law ist 'the rights of the parties have been fully determined by the ed: §395-] ' foreign court, which has proceeded to judgment, but have not * yet been satisfied, the English Chancery will not interfere to ' enforce them, while the parties are still before the foreign court, * and there is no defect in power in that forum to secure the pro- ' perty out of which the satisfaction must be made : though other- ' wise a bill will be entertained for the purpose of securing the ' property pending the litigation abroad.' During the argument however in Frith v. Wollasion, Martin, B., Frith V. Woiiaston. suggestcd that as the judgment given at the Cape of Good Hope 108. had been suspended there, an applicotian should have been made in England to stay the proceedings on that judgment. iii. Suit in Efigland commenced pending proceedings abroad. Flea of lis alibi pendens. Flection. Injunction to restrain English suit. It is under this division that the subject first assumes the Restraint of different forms which we have already indicated, sometimes ap- EngiTnd pearing as the plea lis alibi pendens, and sometimes as the ground penXg"*^ of an application for an injunction to restrain one of the suits. aWad!'"^^ In his first edition Mr Westlake came to the conclusion that the 70 INJUNCTIONS. plea ' was formerly bad, but tliat now it is considered good ' : in Chapter IT his second however he adopts the opinion of Parker, V.-C, ui Ostell V. Lepage : — ' There is no general rule that it is an answer q^^^h^^ 'to the English action. The proper course in such cases is to-^^^^-g^g ' apply here to stay proceedings in one or other of the suits, and 95- 'the court will, upon such an application, have no difficulty in * putting the plaintiff under terms.' Lis alibi With regard to the plea there are three direct authorities against pendens. ... . . ^ r^ Decisions any effcct bemg given to it. The decision of Lord Loughborough, C, against the • ^ c plea. in Dillon v. Lord Alvares : Cox v. Mitchell — The judgment of DUion v. . _ , A Ivares- Erie, C.J., sums up all that can be advanced against its validity : — 4Ves: 357. ' Although there may be some hardship in having proceedings Mitchell. ' pending in the two countries at the same time, I think we are c P. 33. * bound so to enforce the law as to enable the plaintiff to obtain ' satisfaction of his debt. There would be great danger in inter- ' fering to prevent a man from being sued in this country, when ' he may have left his own for the very purpose of avoiding the ' consequence of a suit against him there : ' and Bayley v. Edivards, Bayiey v. an appeal to the Privy Council from Jamaica. On the other hand 3 Swanst: in the case of the Lanarkshire, Dr Lushington admitted the plea, the holding that if proved to the full extent it would bar the suit : and sitire! the Lords Justices in Ostell v. Lepage seem to have recognised 189!"" ^' its existence. It will certainly be allowed in such a case as Law upage'. V. Garrett, where certain partners had agreed to refer disputes to m^&g. 892. a foreign tribunal. c^rj«. The principle was also fully recognised by Cotton, L.J., in Orr- ^Q^'.E^,f,[g Ewing v. Orr-Ewing, in the case of concurrent administration ^^^l^' actions : the learned judge doubted ' whether there could be a plea ^ -^pp^ '^^'• * of a pending suit,' but he did ' not doubt that it would be the ' duty of the court to stop a suit from going on here vexatiously ' and unnecessarily, when all questions could be decided in the ' Scotch suit by a competent tribunal : ' this was approved by Lord [H. l.]. ^ App: ca: 34. Selborne in the House of Lords. There is one instance in which the plea has had the modified '- . . Elliott V. effect of inducing the court to order the English suit to stand Minto. over. (Elliott v. Lord A/into.) And again, from Pteters v. pietersv. . .. _, Thotttpson. Decisions as Thompson, Lord Tenterden s judgment m Guinness v. Carroll, Cooy.2g^. to its effect . . . ._,.-_,.,,. . j -n r ,. Guinness V. in compel- and the more recent decisions of Sir R. Phillimore in the Mali Carroii. ling election. ^ ,,_,,. , , , , , . , i B. & Ad : Lvo and the Delta, it would appear that the plea is good, not 459. absolutely to stop the English proceedings, nor to induce the ivo. court to suspend them, but to put the party to his election as to a! &'e. 356. which suit he will proceed with. i p. d. ^93. ELECTION. 71 Chapter II. IVells V. Antrim. 3 Swanst: 703 Bicshby V. Mtinday. S Mad; 297. Hearn v. Glanville. 48 L. T. 356. But in Wells v. Lord Antrim the Lord Chancellor reserved power to give directions for plaintiff to proceed in this country, in case the defendants in Ireland should make it impracticable for him to proceed in the Irish suit. In Bushby v. Muiiday there was an application to restrain a Examples of Scotch suit commenced before the English suit. The bill in foreign suit Scotland was on a bond given for a gaming debt : the proceedings com"menced in England were to set aside the bond. Sir John Leach, V.-C, "^^ ' thus reviewed the power of the English court : — ' Where the ' parties, defendants, are resident in England, the court has full ' authority to act upon them personally with respect to the subject 'of the suit as the ends of justice require : and with that view, to ' order them to take, or to omit to take, any steps or proceedings ' in any other Court of Justice, whether in this country or in a ' foreign country. If a defendant who is ordered by this court to '■ discontinue a proceeding he has commenced against the plaintiff * in some other Court of Justice, either in this country or abroad, ' thinks fit to disobey that order, and to prosecute such proceed- ' ing, this court does not pretend to any interference with the ' other court, it acts upon the defendant by punishment for con- ' tempt.' The Vice-Chancellor determined that the plaintiff was not to But certain be further harassed by proceedings in Scotland, but that certain reserved, rights should be reserved to the defendant suing in Scotland : he continued : — ' But one effect of the Scotch suit, supposing it ' decided that the money might be recovered on the bond, may ' be the preferable lien by it on land in Scotland. The plaintiff * must submit to such steps in Scotland either by judgment or ' otherwise, as will secure the benefit of that priority, subject ' always to the future direction of this court.' So in Hearn v. Glanville : an English lady had married in England a domiciled Scotchman : the settlements were in English form : the property and one of the trustees were in England : the marriage had been dissolved for the wife's adultery by the Scotch courts : an action was commenced in Scotland by the husband for the construction of the settlement, the trustees being nominal plaintiffs : an action was then brought by the wife in Convenience. England for administration of the trusts of the settlement. One of the questions to be determined was whether Scotch or English law was applicable : Pearson, J., held that, the property and nearly all the parties being in this country, it would be more convenient to try the question in England : the further prosecution of the 72 INJUNCTIONS. Order as to Scotch suit was therefore restrained : but the costs of the Scotch Chapter action up to date were made costs in the English action. Application In the Transatlantic Co: v. Pietroii there was an application -p^^„^^aan- parues'iT' (by pcrsons who were parties in only one of the two concurrent 'jf.^^"';^,'^- °hetwdL°iL. suits) to restrain the English action. The plaintiffs were a ship- Johns: 604. owning company, on whose behalf the defendant as broker had effected policies. The company had instituted proceedings in a competent court at Genoa against the defendant for an account, to which he had appeared. Before final decree in Genoa, the defendant commenced actions in England against the insurers, upon one of the policies which had resulted in a loss. Wood, V.-C., held that it was competent for the plaintiff company to file a bill to restrain the action, and to have a receiver of the policy moneys appointed pending the foreign litigation : — ' The defendant ' is seeking to get possession of moneys which will belong to the ' plaintiffs subject to any lien which he may have if the balance of ' account should be in his favour.' Injunction A similar case would arise if one of the next of kin of a foreigner kin"hrvi°ng were to obtain administration here, pending proceedings abroad minls'tration, to ascertain who the other next of kin were. In such a case there fo^re^^n"s^uit° flight bc a bill to restrain him from any dealing with the property the^o'the'r^'" ^"'^^^ ^^"^^ forcign court had decided who were next of kin. (Wood, next of kin. "y _("* \ From this we see that the court will generally not only defer to the suit pending abroad, but will assist it by protecting property in England and appointing a receiver : except in such a case as Law V. Garrett, where there was an agreement to refer the dispute ^^w v. ... Garrett. to a foreign tribunal : even then it will do so if it is shewn that 38 l. t. 3. the rights of the parties cannot be sufficiently protected by that court. Convenience Before issuiug the injunction however it would seem that the considered, qucstion of convenience will be considered, and if it clearly appears that the convenience of the court [and not of the parties {Fletcher v. Rodgers)] will be best met by having the case tried in Fletcher v. • • 1 1 111 Rodders. England, or that from some cause it might be more thoroughly 27 w. r. 97. tried in England, an injunction will be issued on terms to restrain the foreign suit although first commenced. This would seem to have been the case in Bushby v. Munday, ^^!^^"'- although Sir John Leach did not expressly recognise this principle 5 Mad: 297. In Tones \. Geddes, an injunction had been granted on a sug-7onesy. •' Geades. gestion of fraud on the ground that the remedy afforded here i Ph: 724. in the case of fraud, is more effectual and complete than in the CONVENIENCE. 73 Chapter II. Kennedy v. Cassilis. 2 Swanst: 313- Phosphate Sewage Co: V. Molleson, I App: ca: 780. Venning v. Lloyd. I DeG. F. & J. 193. Ainslie v. Sims. 23 L. J: Ch: 161. Wilson V. Ferrand. L. R. 13 Eq: 362. Scotch courts ; it was however dissolved because the question cf: note to ■ • 1 -1 Kennedy v. between the parties might on the whole, be more conveniently CassHis litigated, and with more conclusive result there than here : from Ld: and similarly in Kennedy v. Earl Cassilis. ham's mss: The question of convenience was discussed at some length in Convenience the Phosphate Sewage Co: v. Molleson. There was a Scotch bank- ruptcy; the trustee rejected the company's claim against the estate : a suit was afterwards commenced in the English Court of Chancery between the same parties and involving the same ques- tion : The Lord Ordinary refused to stay the Scotch proceedings until judgment had been delivered in the English suit, and his decision was upheld by the House of Lords. There were other parties to the English suit and it was said therefore to be more convenient to have the question tried in England. Lord Cairns, C, however refused to accept this as a self-evident proposition, there being no want of power in the Scotch court. Lord Selborne said that cases might be imagined in which the course suggested might be the proper one : but that ' at the most it could be no 'more than a question of judicial discretion.' The case instanced by his Lordship was : ' when, according to the nature of the con- ' tract between the parties, some foreign law was to determine their ' rights, it might then well be considered that the country whose * law was in question would in its own courts be best able to inform ' the courts here of the proper application of their law to the facts 'of the case :' or again, 'if a claim dependent upon a joint cause ' of action only against a bankrupt here and other persons who 'were abroad, and if there were pending a suit abroad against * those joint parties, some of whom \vould not be amenable to ' that jurisdiction, I am not prepared to say that our courts might ' not be proceeding in a very proper manner in desiring to see ' what the result of that action might be before proceeding them- ' selves to determine the claim.' Thus in Venning v. Lloyd the majority of the court were of Examples. opinion that convenience was in favour of the foreign suit being stayed and the English suit going on : and again in Ainslie v. Sitns, where the court came to the conclusion that the Sheriff's Court could not do complete justice, proof having been given that certain evidence would not be admitted there. In Wilson v. Ferrand, the defendants moved to stay all pro- ceedings pending a French suit in which the construction of the contract would be decided : this seemed a reasonable application, but Mahns, V.-C, refused it, on special grounds, not considering 74 INJUNCTIONS. the balance of convenience, because it was apparent that it was Chapter made with a view to avoid answering the interrogatories to the ' English suit. To the same effect is Wharton v. May. wharton\ Suit relating Where howcvcr the question in the English suit relates to land ^^i'y- to land .... .,.,.,., ^,, 7'" abroad. Situate m a foreign country, not necessarily involving the title to ^'"°^ ^• the land, and ' the foreign court, having a major jurisdiction by it<^i'a>i ' ° ... Bank. lo 'reason of the nature of the property, have a suit before it relating ^i- d. 68i. . Buenos 'to such propertv,' the English court will prevent the suit mo- Ayres Ry: v. ceeding here. {Moor v. Anglo-Italian Bank. Mellor, J., Buenos Ry. of Ayres Ry: Co: v. Northern Ry: of Buenos Ayres). Thus in Elliott Ayres. ■ 1 • , 1 . , 2 Q. B. D. v. Lord Minto, questions respectmg realty m Scotland were raised : 210. ■ 1 •111 1 J Elliott V. and It appearing that a suit and cross suit had been already com- Minto. menced in Scotland, the Vice-Chancellor ordered the case to stand over till the determination there : — this was approved in Venning ^^""j"^ ''• v. i.una. ^ F. & J. 193. Where suit A further difficulty arises where, as in Bushby v. Mimday, the ^^"^'^^ "• defendant in suit in the foreign country, although relating to the same subject 5 Mad: 297. actfont'^ matter, is being prosecuted by the defendant to the suit in England. In such a case it would at first sight appear that the rationale of the doctrine of lis alibi pendens, the double vexation, had dis- appeared. But in truth the main necessity still exists for the prevention of two determinations on the same question by inde- pendent courts. And to a certain degree also there is a double vexation : for the plaintiff abroad is kept from his rights by the defence, and is harassed by a second suit here, (or vice versa as the case may be), and moreover the defendant in the foreign suit is dominus litis in this country ; yet, unless some remedy were given he might so prolong the English suit as effectually to prevent the foreign plaintiff obtaining his remedy. It therefore seems essen- tially a case for an injunction ; but as the defendant in this country is dominus litis abroad a protection to the plaintiff here might be given by means of a reservation in favour of the English suit being continued in case of undue delay in the prosecution of the foreign suit. This point was raised in the argument in Hawarden Hawarden Where one V. Dunlop : but Sir C. Crcsswcll, declined on general principles to 2's. &t. not"the"'^ stay the English suit, because only one point and not the whole '^°' ^o^n°cur?ent'* qucstlon was in litigation in the other country : [see also the \cf- p- 80.] same question discussed under the next division, p. 80]. Admiralty In the Admiralty decisions the principles have been enunciated ecisions. '^^\<^ more distinctness : they were discussed in the Cattarina Chiaz- the Cattarina. zare, and the injunction to restrain the English suit if last com- i P. D. 368 LIS ALIBI PENDENS. 75 Chapter menced was very plainly pointed out as the proper course : and ^^' this was adopted recently by Sir R. Phillimore in the Peshatvur. ~ It was approved in the Gn'efswald, and, as we have seen, the plea Peshawur. was admitted in the Lanarkshire : and the doctrine of election 31 W. R. 660. acted upon in the Afali Ivo and the Delta — the Erminia Foscolo. the , Griefswaid. The Griefswald and the Lanarkshire however carry the principle Concurrent the Lanark- further, and, in direct opposition to the Bold Biiccleugh — Harmcr re}n and in 2Sptnks,i89. V. Bell, establish that it is immaterial whether one of the actions *'^^^""'^'"- /i%', "^ ' be in rem and the other in personam, the two actions being alter- A. &E. 356. native. The discussion of this question may be reserved for the fv!T>.%i. Chapter on Judgments in rem. [Chapter ix.] tJu Bald BarmervT The general result therefore seems to be that the plea lis alibi General f M^ : p. c. pendens may have one of three consequences : to bar the English '^^^" '' ^^7- suit : to suspend the English suit : or to bar one of the suits, the plaintiff being put to his election : — that an injunction will be granted to restrain the English suit, unless the balance of con- venience is in favour of it proceeding : but under certain circum- stances the right to continue the English suit will be reserved. iv. Suit abroad commenced pending proceedings in England. Lnjunction to restrain foreign suit. This is the converse of the case just discussed, and the prin- Restraint of ciples applicable to it were fully expounded in Lord CranwortlVs commtn°ced CarronCo: luminous and exhaustive judgment in the Carron Lron Co: v. proceedings s'h. l. ca: ' Maclaren. The facts of the case bring it within the last division ^'^''®' ^^ ' of the subject, which forms a corollary to the present, but the propositions enunciated by the Lord Chancellor embrace both. It will be remarked that the basis on which they proceed is ' pending litigation here a party institutes proceedings abroad ; ' the third only has been used before, it being applicable to the first division, (i.) * Where, pending litigation here, in which complete relief First £ 1 1 1 1 ■ ■ • T , T proposition. may be had, a party to the suit institutes proceedings abroad ; — - Vexatious * Chancery in general considers that act as a vexatious harassing harassing. 'of the opposite party, and restrains the foreign proceedings.' (2.) 'Even though no decree has been obtained here, yet if second ' the suit instituted abroad appears ill calculated to answer the ^''°^^ '°"' Yet terms ' ends of justice, Chancery has restrained the foreign action, pay be imposed 'imposing however terms which it has considered reasonable for [0^°^^?*^'^ 'protecting the party who was suing abroad.' ^"'"^" 76 INJUNCTIONS. Third (3.) 'Even if there is no question as to the necessity or as to Chapter proposition. . II. ^ — - . 'the effectualness of the foreign suit, still if the party in the Second suit contr.-vryto < jurisdiction of the court is instituting proceedings in a foreign 'court, the instituting of which is contrary to ecjuity and good 'conscience, it will restrain the prosecution of the foreign suit, 'just as if it had been a suit in this country.' Result of [The result of the authorities as formulated in these three pro- propVsitTons. positions is, that ' if the circumstances of the case are such as 'would make it the duty of the court here, to restrain a party ' from instituting proceedings in this country, they will also warrant it in imposing on him a similar restraint with regard to proceedings ' in a foreign court.'] Fourth (4.) ' But though the authorities justify such a course, yet they proposition. . , .- , • r r — ' will not make it the duty of the court so to act, if from any Not the duty, but in ' causc, it appears likely to be more conducive to substantial the'courf 'justice that the foreign proceedings should be left to take their ' course.' A simple illustration of these principles is to be found in Oakeley v. Ramsay where a Scotch suit was stayed because the OakeUy v . . . - , Ramsay. English courts had prior seism of the matter. w. n. 1872 In Bunlmry v. Bunbury, an English testamentary suit, an injunc- 'sHnlury v. tion was granted on terms to restrain a suit pending in Demerara ffieavP'siS. to recover real property there, although complicated questions dependent on the law of Holland were in controversy in this country. In Diipnz v. Veret, an application to restrain the English suit, Duprez v. the plaintiff had propounded the will of the deceased who was Lfri.'i domiciled in France, where proceedings had been instituted to try ?• &d. 583 the validity of the will in dispute : but the defendant did not raise any question of domicil. Sir J. P. Wilde refused to suspend the English action, merely ' to allow a decision to be given in another ' on perhaps a totally different question. The English domicil is ' admitted on the pleading, and the question is the execution of ' the will according to English law. In France the question is ' whether the deceased was a domiciled Frenchman.' In adminis- In Graham v. Maxwell there was an administration suit pro- ^^j^;«/- tration suits. ^ -^^ England: a creditor in ignorance of it commenced a 18 l. j: ' ° ° ... Ch: 225. suit in a foreign court to recover his debt: an injunction was Cr^/^o«v. _ . r 1 1 1 1. Crofton, re granted : but in Crofton v. Crofton, re Boyse it was refused, although Boyse. the claim had been proved but afterwards withdrawn and the ch: 689. LIS ALIBI PEXDEXS. 77 Chapter II. IVedder- burn V. IVedder- bum. 4 My: & Cr: 585. Dawkins v. Simonetti. 50 L.J: P. 30. action commenced abroad, because the creditor was out of the jurisdiction. Malins, V.-C, intimated that any judgment that might be obtained would be ineffectual because the creditor had already submitted his claim to the jurisdiction of the court. So in the older case of Wedderburn v. Wedderbtirn Lord Gotten- Example of ham, C, laid down the general rule; he established however a only of proviso with regard to the foreign suit in the plaintiff's favour, ""^"S"*"^" resembling that of suspension of the English suit recognised in the preceding division : — '■ The general rule precludes parties from * proceeding in any other court for the same purpose for which ' they are proceeding in this court, whether the other proceedings ' are taken in this or in any other country : And if the party con- ' ceives there are circumstances in his case which constitute an ' exception to the rule, I think his proper course is, not to take 'proceedings in another country of his own authority, but to * apply to this court for permission to take such proceedings.' 'These two propositions proceed on convenience in order to ' prevent litigation, which the court has considered either unneces- ' sary, and therefore vexatious, or else ill adapted to secure 'complete justice.' The plaintiffs were allowed to adopt such proceedings in Scot- land as would ensure them the means of satisfying what should be found to be the amount due to them in the English suit : 'because ' the property being there, there is no mode in this country by ' which that security can be obtained. The plaintiff might ascer- ' tain the amount of the demand and might be unable to enforce 'payment of it. This course saves time rather than going to 'Scotland afterwards. The defendants are not to be doubly ' vexed : but the suit in Scotland is to secure payment of an ' amount to be found due here.' The principles which will guide the court in determining the Convenience. question of convenience in these cases will of course be the same as in the third division : and this was acted upon in Daivkins v. Simonetti, where a suit was in progress here claiming probate in solemn form : the defendant appeared under protest and set up a subsequent will revoking the other, and then commenced a suit in Naples for a decree affirming its validity — on the grounds that the testatrix died domiciled in Naples : that the question to be decided was one of fact as to the execution of the will : that the witnesses were in Naples : and that the English courts were bound to give credit to foreign tribunals for knowing and deciding property on their own law. Jessel, M.R., considered that it would 7^ INJUNCTIONS. Two recent decisions examined. be more convenient for the question to be tried in the Neapolitan Chapter courts, and restrained the EngUsh suit. There have been two recent decisions on the subject : they both come within this division, but the Court of Appeal in both instances proceeded on general principles, and it is somewhat remarkable that in both much stress was laid by so learned a judge as Sir George Jessel, M.R., on the absence of authority. The arguments contained no reference to the two leading cases Wedderburn v. Wedderbur?i and the Carron Iron Co : v. Maclaren, Wedder- Lord Justice Cotton alone alluding to them in his judgment. wedder- The first of these cases is McHenry v. Lewis, in which judg- 4 My: & ments were delivered by Jessel, M.R., Cotton and Bowen, LL. J. caXonCo: During the course of an action in England, a similar action was jH.'L.'caT' commenced in America by the plaintiff against the present ''McHenry v. defendants and others, the scope of the two suits being sub f;^ch^:'D. stantially though not identically the same. The case came before 397- the court on appeal from a refusal of Chitty, J., to stay all further proceedings in the English action. It may be gathered, from what has gone before, that the motion was ill conceived unless special grounds of convenience for that course could have been established: but that a motion for restraining the American suit would have been entertained as the defendant was within the jurisdiction. The court however as we have said decided on general principles — Cox V. Mitchell was discussed, and so far as the general doctrine cox v. which it is supposed to decide, it may be said to have been over- agifj: ' Lord Cottenham considered double actions vexatious as of course : Jessel, M.R. as only prima facie vexatious ; on the ground of difference in remedy. ruled, if it were not virtually so before. With regard to the con- current actions, it will be remembered, that Lord Cottenham's judgment in Wedderburn v. Wedderburti clearly considered them unnecessary as of course and therefore vexatious; Jessel, M.R., however expressed a contrary view : — ' Where two actions are ' brought in this country there is prima-facie vexation. It is ' possible that the same observation might be made as regards the ' Queen's courts in any other part of the world. But where a ' right is being enforced in a foreign country, it certainly appears to * me that we cannot draw the same inference. Not only is the 'procedure different, but the remedy is different. He might have ' a personal remedy in one country, and a remedy against the goods ' in another. He may have a remedy against the real estate in one ' country and no such remedy against the real estate in the other, ' It is by no means to be assumed, in the absence of evidence, that ' the mere fact of suing in a foreign country as well as in this ' country is vexatious.' The necessity for the two actions rests there- C. P. 33- IDENTITY OF SUITS. 79 Chapter II. Peruvian Co: V. Bockwoldt. 23 Ch: D. 225. fore on the possibility of obtaining another remedy abroad. But at But these . . ,11 1 two remedies best it can be only an alternative remedy, and as we have seen, the can only be , ^ " . . , , , ^ . . alternative. pendency of an action tti rem may be the ground of restraining an action in personam, where from their nature the remedies sought are alternative. The learned judge thought that, with a view of getting a speedy trial, it might be eminently desirable to let both actions go on : and that, since one judgment must be given before the other ' some application might be made which would prevent 'the other action proceeding.' But, supposing judgment given in America first, this reference to the second division of the subject as being the safest course to pursue in the interests of speedy justice, would seem to imply the existence of a doubt in the learned judge's mind as to the expediency of the law expounded in the cases coming under this and the preceding division. It will be noticed that the defendants in the English suit were The parties not all of them parties to the suit in America, and that both the'^Lme.^ related to a reconstruction scheme of an American Railway Company. The difficulty with regard to the identity of the parties might have been got over by accepting an offer made by those defendants who were not parties to the American suit of a personal undertaking to allow judgment to be entered up against them in England if judgment were obtained in America. With regard to the subject matter being American it is remarkable that the question as to the convenience of the American suit proceeding was not argued. Cotton, L. J., based his decision on the very great distinctions between the two suits. The second case is the Fenivian Guano Co : v. Bockivoldt, in which judgments were delivered by Jessel, M.R., Lindley and Bowen, LL.J. There was an action in England in respect of the cargoes of seven vessels : the plaintiffs also instituted proceedings in France in respect of the cargoes of six of the vessels. The case came before the court on appeal from a refusal of Bacon, V.-C, to order the plaintiffs to elect which action they would proceed with, the Vice-Chancellor considering that there was no authority for the application. It would seem at first sight that the authorities cited in favour of putting the plaintiff to his election under the last division would be equally applicable in the present case. The doctrine of Bacon, election is really a modification of the defendant's success with d^ubied the the plea lis alibi pendens, in favour of the plaintiff, he having pre- TheToarinl sumably a right to bring either of the actions. But the learned °*'^'^'^''°"' Vice-Chancellor seems to have doubted its existence, holding that 8o INJUNCTIONS. Pieters v, Thompsoi was to be explained by the fact that the Chapter plaintiff had of his own accord elected, proof of this being required by the court. It would scarcely be entertained on a motion for p.^f^^^ ^ an injunction to restrain one of the suits. The real grounds of the q^^^"/^""- The suits decisions both of the Court of Appeal and of the court below were identical. that the suits were not directly alike, and that the remedies claimed jessei,M R., were different. Jessel, M.R., elaborated what he had said in hisprevious the prcvious case on the subject of vexation. The second action vexation. might be vexatious, and relief granted by staying it, where it is so utterly absurd that the Judge sees it cannot possibly succeed, and that it is brought ' only for annoyance ' : or where ' the plaintiff not ' intending to annoy or harass the defendant, but thinking he would ' get some fanciful advantage sues him in two of the Queen's courts ' at the same time. But if there are some substantial reasons to * induce him to bring the two actions, why should we deprive him of ' the right ?' He based his decision on the fact that the English One suit for action being in respect of seven cargoes, and the French action in the o^hir'' respect of six, it would be impossible to do more than compel the election between so much of the subject matter of the one action as is embraced in the other. ' We should not' said Lindley, L.J., * attain the result desired ; we should not wholly stop one action ' out of two ; both would be going on, one in France for six cargoes, ' and one in England for the seventh. There are certainly reasons, 'not frivolous reasons, not harassing reasons, for bringing the ' action in France. We cannot compel the plaintiffs to abandon ' that. The cargoes were in French ports.' This decision is remarkable. The authorities are clear that the French action could have been stayed, the plaintiffs being within the jurisdiction ; but that was not the motion before the court. If the English action had proceeded and judgment been given for the plaintiff, an action on that judgment could have been brought in France. If the balance of convenience was in favour of the French action, the English action could have been suspended, an under- taking being given by the defendants as in the last case, to abide by the French judgment in respect of the seventh cargo. By either course the vexation of two suits might have been avoided. Both decisions are therefore, with regard to the general doctrine, with the greatest respect, eminently unsatisfactory. When suit Under this division we have the same further difficulty that abroad is by ....,,. defendant in presented itsclf undcr the previous division, where the suit English ^, , . , , , , , ^ 1 , „ , . , ... Dawkins v. action. abroad is brought by the defendant to the English suit. In simonetti. U-y- p- 74- j^aivkins v. Simonetti Jessel, M.R., treated the question in the v. 30. ADMINISTRATION SUITS. 8 1 Chapter ordinary way, and allowed the defendant to continue the suit abroad although commenced last, the balance of convenience Convenience being in favour of that course. The subject was very recently Hyman v. discusscd by the Court of Appeal in Hyman v. Hehjt. Brett, M.R., 24 Ch : D. hinted that if the defendant after counter-claiming in an English when suit brought an action abroad, the case would fall under the ckim"ere. general rules. But the Court extended the principle laid down in McHenry v. McHenrv V. Lcwis and Peruvian Guano Co : v. Bockwoldt that \rf- nn • ,8 Lewis. . . . Lt-y • PF . 70, 22 Ch : D. concurrent suits dj&pnma-jacie vexatious only, and not vexatious as ^^'^ Peruvian a matter of course, and held therefore that the injunction was Bockwoldt. rightly refused, the plaintiff not having proved the vexation. The zlj. ■ ■ decision however seems to have been much influenced by the fact that the suits were not absolutely identical : the defendants were identity of sued in England as agents: Brett, M.R., declined to say what ^""^' would have been the result if they had sued in San Francisco as agents ; they were in fact suing as vendors, and this fact seems to afford the key to the decision. v. Suit commenced abroad after decree in England. Injunction to restrain fo7-eign suit. This division being a corollary to the former one, although it rests Restraint of on higher ground, the existence of a decree in this country, the commen°ced main principles of Lord Cranworth's propositions are equally ^g" decree applicable to it. Beck/ordw. For example, in Beckfordw. Kemble, an injunction was granted to Examples. Kemble. . . iSim:&s.7. restrain the mortgagees of a West India estate from proceeding on a bill of foreclosure in the Colonial Court of Jamaica, filed after a decree made in England on a bill to redeem, which directed an inquiry to ascertain the amount of the mortgage debt : all the Harrisonw parties werc in this country. And in Harrison v. Gurney, where 2j. &w. trustees for creditors after a decree for execution of trusts, were 563. . ... restrained from proceeding in the Irish Court of Chancery for the same objects. Beauchamp "Y\\\% was followed in Beauchamp v. Marquis of Huntley : Administra- V. riuntley . ... tion suits Clarke V. Clarke v. Earl of Ormonde, where after decree for administration Ormonde. -' jac : 546. of the testator's estate in England and Ireland, an incumbrancer on the Irish estate, having come in and proved his debt, was restrained from proceeding in a suit in Ireland, receiving costs up to the time Costs. of having notice of the decree, and paying costs of the application. Eustace v. So in Eustacc v. Lloyd, where there had been a decree in an Lloyd. . . . . . 25 w. R. administration suit directing an account of the testator's debts and 211. an inquiry as to incumbrances affecting the real estate. The G 82 INJUNCTIONS. prosecution of a suit in Ireland for specific performance of an Chapter agreement for a lease of lands in Ireland and which the executors did not dispute was restrained by Bacon, V.-C. And Hope v. Carnegie, where a British subject entitled to real Hope v. . . Carnegie. and personal estate m England and the Netherlands, died l. r. i ch -. domiciled in England, and there had been a decree for adminis- tration. One of his children was restrained from continuing proceedings in the Netherlands for administration of the property there. (Stuart, V.-C, upheld by the Lords Justices.) From what has already been said, it follows that it is no ground for refusing the injunction that the cause of action arose in the country where the suit is being prosecuted. ( Graham v. Maxwell.) ^^'^'"'*"J- General Generally, in the words of Lord Cran worth, C, in the Carron is l. j : doctrine. -" ' ' Ch : 225. Iron Co : v. Maclaren, the law may be stated as follows : — ' After a Carron Co: V. Maclaren. ' decree under which the creditors of a testator may come m and s h. l. ca : 416. 'obtain payment of their demands, the court does not permit a ' creditor to institute proceedings for himself. The decree is said to ' be a judgment or in the nature of a judgment for all creditors : but * the Court is unable to interfere with a foreign creditor resident 'abroad suing for his debt there.' The question would then of course be left to the foreign court. The principle is equally applicable to an English creditor suing abroad under similar circumstances. With regard to the terms imposed referred to in the second proposition, Beckford \. Kemble may be taken as an example : in Beck/ords. that case the order was made ; ' the plaintiff, by her counsel, i Sim : & * undertaking to consent to any order to be made in the suit in 'Jamaica which this court shall at any time think reasonable.' This was approved and followed in Bunbury v. Bunbury. Bunbury v. I Beav ; 318. Winding up In the casc of winding up companies, although there can be 2s&^26 v.^ no doubt of the court's power to exercise a similar jurisdiction 87. irrespective of statute, the question has been dealt with by s. 87 of the Companies Act 1862, which it must be noticed extends the power to all actions, not only those commenced after the winding up but also to those already proceeding. 25 & 26 Vic : 0. 89, s. 87. When an order has been made for winding up a Company under this Act no suit, action, or other proceeding shall be proceeded with or commenced against the Company except with the leave of the court, and subject to such re Inter. terms as the court may impose. p^'m r^- In re International Pulp Co:., Jessel M.R., expressly declared 594. WINDING UP COMPANIES. 83 Chapter II. re Oriental Co :, exfi : Scinde Ry : L. R. 9 Ch : 557- Bk: of Hindustan V. Pretn- chand. S Bomb : H. C. Rep : 83. that this section (and it is presumed also, the other sections ana ogous to it) extended to actions wherever commenced, so long as (and presumably, whenever) the court has jurisdiction over the creditors person :-' I can't restrain a creditor in Turkey or The ..ion Russia bringing his action there, but I can, although the action S!"^.^^ IS brought abroad, when the court has jurisdiction to enforce it that IS, jurisdiction over the creditor.' This is in direct opposition to the opinion of the Lords Justices in re Oriental Steam Co- ex parte Scinde Ry: C..-' Sections 87 and 163 apply only to courts m thiscountry: Parliament never legislates respecting strictly foreign courts.' As we have seen the jurisdiction is purely personal: nevertheless in that case a creditor who had obtained a judgment m India before the English winding up order was not allowed to attach property in India belonging to the Company. But although the Act does not apply to India and the Colonies and therefore a suit can be brought there against a company being wound up in England, it would seem that the Colonial courts 'on ^ a representation being made showing circumstances that would ^ render it proper that the suit should be stayed, would undoubtedly ^entertam the application, and would do what is just and right to assist the Court of Chancery in winding up the company.' (Louch, CJ., Bank of Hijidustan v. Premchand.~^oxcih2.y.) These principles are equally applicable to cases in Bankruptcy , ■ • But this power of restraining suits has also been provided for by TT^ section 10 (2) of the Bankruptcy Act, 1883, which, as in the case ^^'T^'- of companies, refers to actions in progress at the commencement '"^"^""^^^ of the bankruptcy, or commenced during its continuance. ^6 & 47 Vic : c. 52, s. 10. (2) The court may at any time after the presentation of a bankruptcy petition t,- continue ' " "'"' '^' proceedings or allow them to S. II. Where the court makes an order staying any action or proceedin^r or c; • . s^ymg proceedings generally, the order may be' served by sLd n. a e^y ^^-"^^^^^^ hereof, under the seal of the court, by prepaid post letter to the^ddrTsI^^"^"'^^"^^ for service of the plamtiffor other party prosecuting such proceeding. But all debts and liabilities, whether contracted at home orThesa.e abroad, are proveable in the bankruptcy, and of course may form ^& 84 INJUNCTIONS. Cases in which the injunction has been refused. the subject of actions, either in this country or abroad ; and Chapter therefore as before, the section must apply to all actions in respect ' of such debts, whether proceeding in this or in another country : that is to say, such actions will be restrained if the party to whom the injunction must issue be within the jurisdiction. It is often said that during the pendency of bankruptcy pro- ceedings an Englishman may be restrained from bringing an action abroad, but neither the general theory nor the cases support such a general proposition. In ex parte Onniston, re Distin, an injunction was granted g^;^^-,.^^^„_ against an English creditor resident in England, but who was re Distin. suing in a foreign court for a debt incurred in England. '97- In ex parte Tait, re Tatt, the injunction was granted to restrain "^^A-^ ^^ the prosecution of an action in Ireland upon a claim which, '^'^'^ ^^ if due, was proveable under a deed of inspection; and depending Eq:3" upon a question which must have been decided here. This was the principle on which Maclaren v. Stainto?i, Maclaren Maciaren v ^ *■ . Stainton V. the Carron Iron Co : was decided : the discussion m the case MacUren v turning, it will be remembered, on whether the company be considered within the jurisdiction or not. So, in re Chapman, where actions had been begun in New reChapman York by persons residing there : the Court refused to make an Eq : 75.^ order which must of necessity have been briitum fulmen, as it had no means of enforcing it against the foreigner : Bacon, V.-C, how- ever gave leave to the receiver to appear and defend the actions in America. This principle was again acted upon in Pennell v. Roy : An Penndis. action was brought by a Scotch creditor in Scotland, who had 3 De G. not proved under the English bankruptcy, against the assignees to recover out of the bankrupt's Scotch reality an amount equal to the dividend which would have been payable on the debt : The proceedings were shown to be frivolous and vexatious, and to have no chance of success. The defenders instead of meeting the suit in Scotland instituted a suit in England, ' equally ' frivolous but less vexatious,' for the purpose of staying the other. Kindersley, V.-C, granted the injunction, but the Lords Justices over-ruled his decision : — ' It is not the duty or function, or within ' the power of the court to restrain men from prosecuting frivolous, ' litigious, and desperate suits, merely because they are so, — 'at least unless the experiment shall have been repeated once ' or twice. A creditor who has not proved or claimed, nor seeks ' to prove or claim under an English bankruptcy, is under no Carron Co .' could 26 L. J : Ch : 332. BANKRUPTCY. 85 Chapter ' obligation, nor owes any more duty to the assignees, or the other ' creditors, than he would if he were no creditor at all, and con- ' sequently, if he enters into a foolish and perverse litigation with ' the assignees, they must defend themselves as other men do ' when prosecuted by the owner of an imaginary grievance.' (Knight-Bruce, L.J.) And from Turner, L.J., we have once more Application a recognition of that principle which underlies the whole subject principle^ of foreign judgments : — ' I have less hesitation in refusing to ' grant the injunction, because it is the duty of this court to give ' credit to foreign courts for doing justice in their own jurisdic- ' tion, because, if it is assumed he ought to succeed in his Scotch ' proceeding he ought not to be interfered with here : and the 'contrary assumption cannot give an equity to the assignees as ' plaintiffs against him.' But the difficulty now arises, suppose the foreign debt proved under the English bankruptcy, and the creditor, still resident abroad, brings an action in the foreign court. In other words, if the creditor has become a party to the English bankruptcy by where proving his debt under it, will the court then have jurisdiction credifor itor IS a over him to order him to desist from his suit ? banifruptcy It may well be doubted whether such power exists : the general principles certainly give a negative answer to the question. It must be left to the foreign court to act as it thinks best. This w^at power point will be discussed when we come to deal with the effect courfhls^^ of an English adjudication abroad, [post chapter x.] It would seem however that the English court will under May expunge such circumstances entertam an apphcation to expunge the proof, proof. if the dividends have not already been paid. g^P . Such an application was made in ex parte Cotesworth, re Van- ^t*"^zeiier ^^^^^^ '■ ^^ that instancc however the court refused to accede ch^-^28i^ to the request in the absence of all evidence as to the nature of the proceedings abroad : because it did not appear whether the foreign process was a satisfaction of the debt or even security for it, and it would be unjust to expunge proof and turn it into a claim. Thus in Cocker ell v. Dickens an injunction granted by the ^"^^'t^'r, Indian courts to restrain a foreign creditor from taking advantage De G. 45- of a foreign decree ordering the sale of an estate belonging to the bankrupt in another country was dissolved on appeal to the Privy Council, although he had proved for his whole debt under the bankruptcy and had received his dividends. But an injunction to stay the receipt of further dividends till a suit begun out of the 86 INJUNCTIONS. jurisdiction by a creditor within should be abandoned, was Chapter sustained. Thus the principle enunciated in Selkrig v. Davis follows seikHgv. Corollary, as a corollary from this doctrine. It was there held that a person f Ro'/e 291. cannot come under an English commission without hnngxng Cockereii v. Money into the common fund any money that he may have already i m. d. & received to reccivcd abroad : This was approved in Cockerell v. Dickens and re Kelson. into common re Kelson, exp : Egyptian Trading Co:, and followed in Bank of 125. ' Po7iugalv. Waddell, re Hooper ; and thus extended in ex parte Portugal v. Wilson, re Douglas ; 'or, until after the other creditors have received u ch ? b. * a dividend equal to that received by the creditor abroad.' 5 app" ^^^ In ex parte Robertson, re Morton, Bacon, C.J., held further that f^'p^-^^' a foreign creditor having proved in the English bankruptcy had ^'^^/"'^.^"^ brought himself within the jurisdiction of the Bankruptcy Court, ^Ch: D- and, the notice of motion being regularly served out of the juris- ^^f 'Vf "'^^'^^ diction, that he could be ordered to refund the money he had ^"^^""^ g . already received, although he had only proved for the balance : he 733- would then of course be entitled to prove for the whole debt. But a foreign creditor because he happened to be in England would not be obliged to bring what he had received into the common fund, but might ignore the English bankruptcy until he sought to obtain some benefit from it. Concurrent There may however be concurrent bankruptcy proceedings in proceedings, two couutries : the act gives the court no power to stay one of two such proceedings : the question will be more properly dealt with under the head of ' the effect of a foreign bankruptcy ' [see chapter x]. It will be sufficient to say here that the general principles apply, and that the rule of priority will be observed. General Speaking generally therefore the maxim nemo debet bis vexari summary. . , , . pro eadem causa, mcluding as it does both the doctrines of lis alibi pendens and of res judicata, is applicable as well to foreign pro- ceedings as to English. And by way of general summary to the consideration of the former doctrine it may be stated to be as follows : — Where the defendant is harassed by two actions for the same cause in different countries, some assistance will be afforded to him by the English Courts, proceeding equitably ; restraining the continuance of the suit last commenced (unless the charge of vexation is disproved) : proceeding on the ground of convenience ; suspending the continu- IDENTITY OF SUITS. 8/ Chapter ance of either suit, according as to which court is less likely to arrive at a correct decision upon the case : and in cases where it appears altogether immaterial in what court the plaintiff should obtain redress, the remedies being alternative, waiving its own authority of deciding as to the greater competency of one forum over another, and putting the plaintiff to his election as to which suit he will continue. There remain two important points to be considered — Identity identity o< of suits, and Jurisdiction. It is evident that the same principles which were considered under res judicata as to the identity of the two suits apply here in all cases, and it is frequently expressed by the words ' in which complete relief may be had,' as in Lord Cranworth's first pro- imiay v. positiou : of this Imlay v. EUefso7i — an application to hold the 2 EllftTss- defendant to bail on account of his absence from the jurisdiction, to which it was replied that he was already held to bail in Norway Nayior\. — and Naylor v. Eagar are examples. 2Y. &'j.9o. In Booth V. Zeycester, Lord Langdale, M.R., implied that an Leycester. injunctiou would bc granted in England in cases where the een 579. £j^gjjg|^ adjudication could be pleaded as res judicata in the foreign court. Bushby V. In Biishby v. Munday, there was a bill in England to set aside 5 MadT'297. a bond given for a gaming debt : in Scotland there was a bill on the bond : Although the ultimate consequence was not the same, for the English suit involved the cancellation of the bond, the same question had to be considered — whether by the law of England money could be recovered on the bond. To this principle also may be attributed Dr Lushington's deci- the Lan- sion in the Lanarkshire, in which the pendency of an action in £°"Jn""v"' rs^pinks' personam was allowed to be pleaded to an action in rem for the ;^^/„";,t^^ '^'' same cause : the men had commenced an action for wages against the ship in England, and also one against the master for the same wages in Canada : Although one action was in rem, and the other in personam, yet the same question was involved in both, the responsibility of the owner : the two methods by which the wages could be recovered being alternative, the proceeding in rem being only an extra remedy for the protection of the seamen. The cases cited afford numerous other examples. , . It IS Haiuarden A new principle has however been introduced. In Hawarden necessary 28 & T V. Dunlop, the principle of Sir C. Cresswell's decision was that one the suits be I CO ....... 1JU completely ^ point only out of many in litigation in this country would be stayed. 88 TNJUNXTIONS. Partial identity. Jurisdiction. Constructive jurisdiction of English court over party against whom injunction asked. Case of a foreign corporation with offices in England. decided by the foreign court. And this is to be found expressed in another form in tlie Peruvian Guano Co: v. Bockwoldt ; the facts of which case have been already set out [p. 79]. The prin- ciple may be expressed as follow : If the failure in identity in this respect would militate against the desired result (the complete suppression of one of the suits) being arrived at, the application will not be entertained in any form. Another instance of this partial identity is to be found in Orr- Ewing V. Orr-Ewing: the principle was however somewhat limited by Cotton, L.J. — ' If in working out the administration ' decree now to be made, a question should arise turning on Scotch ' law about which there is any substantial doubt, undoubtedly the ' court, if there were a suit there, would wait until that suit had ' decided the question ; or if there were no such suit, would send 'the question to be decided by a Scotch court.' In the case there was an administration suit in England, and a suit in Scotland as to an account between the testator's estate and his partners : [see also Doglioni V. Crispin : ante p. 49]. We then come to the important question of jurisdiction. The rationale of the grant of the injunction is that the person enjoined is within the jurisdiction. We shall have to discuss in its proper place the question of constructive service of writs on foreign corporations with agencies in this country. In the Carron Iron Co: v, Madaren it was endeavoured to extend these rules in their entirety to the issuing of an injunction, and the question was elaborately discussed by the Law Lords. The Company had offices in -different parts of England and Scotland : they also had agents in England holding goods of the Company of large value consigned to them for sale : but these agents in no wise represented or acted for the Company except in selling the goods entrusted to them. The Company were possessed of real property in England. It was said that even treating the appellants as a Scotch corporation, still they must be looked at as a body so established or represented in this country as to justify the courts in treating them as parties within the jurisdiction, and making orders on them accordingly. Lords Cranworth and Brougham refused to accept the argument, and held that the Company was domiciled in Scotland ; and that the fact of its having real property in this country, while enabling the court to make any injunction it may issue effectual, would not Chapter II. Peruvian Co : V. Bockwoldt. 23 Ch : D. 225. Orr-Ewing V. Orr- Ewing. 22 Ch : D. 456. Doglioni v. Crispin. L. R. I E. & I. 301. Carron Co : v.Maclaren. 5 H. L. ca : 416. JURISDICTION. 89 Chapter 'justify the issuing of an injunction: ' and further, that an agent, although he can in some cases sue and be sued, cannot be served with an injunction issued to his principal. Lord St. Leonards however was of opinion that ' the Company's domicil could not ' be limited to the place of manufacture of the goods : that the ' place of business might for the purposes of all jurisdiction, pro- ' perly be deemed the domicil : that the Company could not have ' the benefit of its place of business here without yielding to the ' persons with whom it dealt a corresponding advantage : and that 'virtually they were nobody unless represented by the seller.' The Company further had given notice to have the injunction granted against them by the court below discharged, or that they might have leave to proceed in the Scotch suit. Lord St. Leonards considered that this was a submission to the jurisdiction of the English court from which they could not withdraw, and which would compel them to obey its injunction. The result of this decision of the majority of the Lords is there- The fore that the issue of an injunction against a foreign company is pe^on must brutum fulmen, unless the person to whom it could be issued, j'urildia'ion.^ were the Company an English one, is resident within the jurisdic- tion. Finally, as to the remedy for disobedience to the injunction : Remedy for if the party to whom it was issued remain in, or having left, return to^° ^ '^""^^ to the jurisdiction, the remedy is in the hands of the court, pro- '"J"""'°"' ceeding for contempt : if, having left it altogether, ' he continue ' contumacious and ultimately obtain judgment in the other ' countr)', it will protect the other party from the consequences of Bushbyv. ' that judgment.' (Sir J. Leach, V.-C. Bushby n. Mimday.) 5 MadTagy. But the question naturally arises, will the injunction, issued to Recognition the party personally, be recognised by the foreign court so as to byTordgn"" induce it to suspend the suit proceeding before it ? So far as we have been able to gather, this point has never been discussed either at home or abroad. But the argument as to personal jurisdiction upon which the principles rest being sound, the conclusion is obvious that an English court would recognise a foreign injunction, a foreign court would recognise an English injunction ; this being another instance of the principle of the recognition of jus for jus. As to service of the writ out of the jurisdiction when an injunc- writ'^out°of tion is sought to restrain the doing of anything within the juris- when 'in junc- diction under Order XL, Rule i (f). See p. 151. sought here. 90 INJUNCTIONS. Evidence for foreign courts, ig & 20 V. c. 113. Scotch cases. The Statute 19 & 20 Vic: c. 113, empowers the English courts to assist foreign tribunals desirous of obtaining testimony in rela- tion to civil and commercial matters pending abroad, and provides for taking the evidence required in Her Majesty's dominions, when an application is made to them for this purpose. Chapter II. Ld: Jeffrey. Ld: Presi- dent. The following extracts from the judgments in the first Division of the Voungv. Court of Session in Young v. Barclay, indicate the accordance between the g Bell &' Scotch and English procedure. ^^^ '• ^- ^• Lord Jeffrey : — ' In England these cases are of frequent occurrence : With ' respect to the plea of lis alibi, I am not satisfied that it is inapplicable even ' with regard to proceedings in a foreign court. But supposing it is not tech- ' nically and strictly applicable, as between two suits in different countries, ' yet here there are grounds of justice and expediency sufficient to satisfy me ' that we pronounce a wholesome judgment in granting interdict. (The ' domicil was mixed Canadian and Scotch, but the most important parol ' evidence was obtainable in Scotland.) Even if the decree we pronounce ' shall not have the full force of res judicata, but be examinable in Canada, ' after we have pronounced it, it must just be examined. In the meantime, ' let parties proceed regularly here until our decree is obtained, and let them ' abstain from insisting simultaneously in twofold procedure. We do our ' duty in interdicting double procedure ad interim, and thereby preventing ' the immediate emergence of an unjust and oppressive course of action ; and ' when our decree, as ultimately pronounced, shall be carried to Canada, it ' will there receive the full effect due to it, in any proceedings which may * there take place.' Lords jVIackenzie and Fullerton expressed the same views. Lord President Boyle :— ' The issue was fully and fairly joined in the court ' selected by the pursuers of the declarator themselves, affecting the rights ' to the whole moveable succession wherever situated. After all this, the ' pursuers commence proceedings in the Canadian courts, raising the same ' question as to domicil for the purpose of taking up that part of the move- ' able succession situated in Canada. I apprehend, in these circumstances ' the defenders were entitled to apply to this court to restrain the pursuers ' from these latter proceedings pending the declarator here : otherwise, the ' same investigation into the same matter of fact, would be proceeding at ' twofold expense, in both courts at the same time.' cf: also Phospate Setvage Co: v. AToUeson (Sc: Ses: ca: 4th Ser: I. 840). 91 Chapter SUMMARY OF THE SECOND CHAPTER. II. An outline of the general principles of jurisdiction discussed. 62 The subject is divided in the first place into 'simple' and ' assumed ' jurisdiction : 62 And in the second place into ' single ' and ' concurrent ' jurisdic- tion. 62 Jurisdiction in respect of property only enables the court to enforce its orders : but Jurisdiction in respect of residence enabling the court to summon a person by civil process, and the right to bring an action not even depending on residence, it follows that there may be two or more suits for the same cause in different countries. 63 Equity has therefore interposed to protect the defendant from this double vexation. 64 The foundation of this jurisdiction is the fact that the party restrained is within the power of the court. 64 The division of the subject and the results arrived at are as follow : — i. An injunction to restrain a foreign suit will, under certain circumstances, be granted, although there is no suit pending in England ; 65 and conversely : An injunction to restrain an English suit will, under special circumstances, be granted although there is no suit pend- ing abroad. 67 ii. An injunction will be granted to restrain an English suit commenced after decree abroad : 68 And presumably also, to restrain a suit against a company abroad after a foreign order to wind it up ; 69 and conversely : 92 INJUNCTIONS — US ALIBI PENDENS. V. An injunction will be granted to restrain a foreign suit com- Chapter nienced after decree in England. 8i examples in administration suits. 8i and in winding up companies. 82 and in bankruptcy proceedings. 83 iii. A suit commenced in England pending proceedings abroad will be restrained by injunction, or barred by a plea of /« alibi pendens ; 69 or in certain cases the plaintiff will be put to his election as to which suit he will proceed with. 70 The principle of lis alibi pendens is applicable when the foreign suit is brought by the defendant to the English suit. 74 and conversely : iv. A suit commenced abroad pending proceedings in England will be restrained by injunction. 75 the court imposing terms if it thinks fit : 75 and providing, when necessary, for the foreign suit continu- ing for certain specified purposes. 7 7 also providing for the costs of the suspended suit. 72 In both iii. and iv., if the balance of convenience is in favour of the suit last commenced proceeding, it will be allowed, and the rule of priority waived. 77 Two recent decisions of the Court of Appeal discussed. 78 An action in rem may be pleaded to, or be the ground for an injunction against an action in personam for the same cause; zxidi. vice versa. 75. 87 Identity of suits again considered : 87 Together with the question of constructive jurisdiction over foreign corporations having agencies in England : 88 The penalty for disobedience to, and the effect and recogni- tion of injunctions considered. 89 .Service of writ out of jurisdiction in action for injunction. 89 Evidence may be taken to assist foreign tribunals. 90 Scotch decisions. 90 In Administration the decree is a judgment for all creditors within the jurisdic- tion, whether absolutely or merely constructively by the fact of their suing. 82 In Winding Up all actions commenced in England prior to, or during the proceedings, will be stayed. 82 SUMMARY. 93 Chapter the colonial courts have adopted the same principle, and will assist the winding up by staying actions brought in the colonies. 8^ In Bankruptcy the court may restrain the continuance or forbid the com- mencement of any suit in respect of any debt proveable in the bankruptcy. 83 A difficulty arises when the foreign debt is proved and the creditor is not within the jurisdiction. 85 probable solution, that the proof would be expunged. 85 but if dividends have been paid the court is powerless and must leave the question in the hands of the foreign court. 85 money received abroad must be brought into the common fund if any benefit is sought under the English proceed- ings. 86 concurrent bankruptcy proceedings. 86 94 CHAPTER III. PROOF OF FOREIGN JUDGMENTS. The Act to Amend the Law of Evidence ..... Section 7 ' authenticated copy '........ necessity for seal or signature ...... documents admissible in the same degree in England, Wales, and Ireland ........... Section II. documents admissible in the same degree in the Colonies Scotch law .......... List of Colonial Statutes ........ PAGE 94 95 95 96 96 96 97 Chapter IIL Proof of foreign judgment in England and Ireland. 14 & 15 V. c. 99 s. 19. ' British Colony.' s. 7. Sealed copy of the judg- ment to be received. The seventh section of the Act to amend the Law of Evidence, 1851, [14 and 15 Vic: c. 99, otherwise called Lord Brougham's Act (No. 2)], provides the method in which foreign judgments are to be proved when they are brought before English or Irish Courts. The words ' British Colony ' in this act apply to the Islands of Guernsey, Jersey, Alderney, Sark, and Man, and to all other possessions of the British Crown, wheresoever and whatsoever [s. 19] ; but not to British India [Stat : Law Rev : Act, 1875]. U & 15 Vic ; c. 99, s. 7. All proclamations, treaties, and other cuts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial proceedings (o) of any Court of Justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such Court, may be proved in any Court of Justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned ; that is to say, if the document sought to be proved to be a proclatnation, treaty, or other act of state (/3), the authenticated copy to be admissible in evidence Tnust purport to be sealed with the seal of the foreign state or British colony to which the original document belongs ; and if the PROOF OF FOREIGN JUDGMENTS. 95 Chapter document sought to be proved be a judgment, decree, order, or other judicial III. proceeding of any foreign or colonial Court, or an affidavit, pleading, or other legal document filed or deposited in any such Court, the authenticated copy to be admissible in evidence must purport either to be sealed either with the seal of the foreign or colonial Court to which the original document belongs (7) or, in the event of such Court having no seal, to be signed by the signature of Judge (5), or, if there be more than one Judge, by any one of the Judges of Judge where the said Court ; and such Judge shall attach to his signature a statement in writing on the said copy that the Court whereof he is Judge has no seal ; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement. [and every such copy shall be primd-facie evidence of the original thereof in like manner as if such original were produced and proved in due course of law. Addition to the section in the Victoriati Statute — 27 Vic : c. 197, s. 20]. (a). An ex parte order of a foreign court on a shareholder to 'judicial contribute to the assets of an insolvent company has been held to p''°"^'^'"s- be within the words of the section, ' order or other judicial pro- Leiskman v. ' ceeding ' {Leis/iffiati v. Cochrane). Cochrane, 12 , _, ^- . . , , . , w. R. 181. (p). An orhcial copy of a Belgian patent sealed with the 'Act of Belgian seal was admitted as an ' act of state,' without proof of its '^■w 'r"^' ^^^"§ ^" examined copy or proof of the seal {ex parte Belts). "'■ (y). The copy of the judgment itself should be authorised under ' Authemi- seal, and not a copy certified as correct by a clerk, although his "'^^ ""^^^ signature and authority are verified under the hand of the Judge fSi^f^' ^^^ ^^^ °^ ^^^ ^°"^' (^^^'^ ^- Hill.—^f^ Brunswick) : The ^°w^u" same principle is expressed in Woodruffe v. Walling [Upper 12 Q. B. SOI. Canada]. (8). It will always be presumed that the court has a seal, but Seai of court where it does not possess one, the Judge's book containing the of jlfdg^e'."'' judgment should be produced : and his handwriting and signature Kerbyv. should be provcd {Kerby v. Elliott — Upper Canada). [See also Q. B. 367. a case before the Statute — AItcs v. Bunbury : — ' Distinct evidence Bunbuiy, ' should be given that the court has no seal, and verifies its judg- 4 Camp: 28. (j^gj^^g |3y j.}^g signature of the Judge, or in any other manner.'] But the seal which is in ordinary use by the court from which the judgment comes is sufficient, even if, on the face of it, it purports Sanfafon, to be the Seal of another court : proof of course being required 2 Allen 641. , , , . ,. ., . on junkinv. that the seal is so ordinarily used. yCyr v. San/afon — New 6 c. p. 408. Brunswick. Junkinw. Davis — Upper Canada.) 96 TROOF OF FOREIGN JUDGMENTS. Where seal worn. Where several documents. ss : g, lo. Documents admissible in the same degree in England, Wales and Ireland. Documents admissible in the same degree in the Colonies as in England, Wales or Ireland. Act does not apply to Scotland. Proof of foreign judgments in Scotland. If the seal be so worn as no longer to make an impression, it must nevertheless be used {Cavan v. Stewart), proof being given that it is in fact the seal of the court. Where there are many documents to be certified to it is not necessary to have a separate certificate for each, a general certifi- cate being sufficient. {R. v. JVrig/it — New Brunswick.) Section 9 : — documents admissible in England or Wales without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, are to be equally admissible in Ireland. Section 10 : — the same as to documents admissible in Ireland, to be equally admissible in England and Wales. Section 1 1 : — the same as to documents admissible in England, Wales or Ireland, to be equally admissible in the British colonies. 14 & 15 Vio : c. 99, s. 11. Every document which by any law now in force or hereafter to be in force is or shall be admissible in evidence of any particular in any Court of Justice in England or Wales or Ireland without proof of the seal or stamp or signa- ture authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the same purposes in any Court of Justice of any of the British colonies, or before any person having in any of such colonies by law or by consent of parties authority to hear, receive, and examine evidence, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same. Lord Brougham's Act does not apply to Scotland. The method of proving foreign judgments before the Court of Session is explained in Dickson's Treatise on the Law of Evidence in Scotland, § 1283 et seq:. The records are admissible in evidence if they are prepared and authenticated according to the law of the country whence they proceed : but they will be rejected if they are not formal according to that law. Chapter III. Cavan v. Stewart. I Stark : 525. R.v. Wright. I P. & B. 363- This statute having been introduced either entirely or in part into the Statute Books of many of the colonies, the following list may be found useful for reference. PROOF OF FOREIGN JUDGMENTS. 97 Chapter '"• COLONIAL STATUTES. [In this list the first section mentioned corresponds with section Coioniai 7 of the Enghsh Act; the second with section 11.] statutes. Bermuda. No: 3 of 1853. s. 7. s. 8. Ceylon. „ 9 „ 1852. s. 8. s. i. Hong-Kong. „ 3 „ 1852. s. 5. India. ,, i „ 1872. s. 77. s. 82. Jamaica. 20 Vic: c. 19. s. 5. Mauritius. EngHsh Act in force. New Brunswick. 19 Vic: c. 41. s. 5. s. 6. Newfoundland. Consol: Stats: c. 23. s. 12. s. 13. New South Wales. 16 Vic: No: 14. s. 7. New Zealand. ' The English Acts Act, 1854. ' s. 7. s. 11 Nova Scotia. Revised Stats: c. 96. s. 27, s. 28. Prince Edward Island. 16 Vic: c. 12. s. 3. Queensland. 16 Vic: c. 14. s. 7. Saint Vincent. Act No: 99. cl: 7. South Australia. No: 2 of 1852. s. 5. s. 9. Tobago. „ 14 „ 1869. s. 7. s. II. Trinidad. English Act in force. (No: 12 of 1855.) Victoria. 27 Vic: 197. s. 20. s. 31. Western Australia. 16 Vic: 9. s. 7. s. 8. In the Statutes of Upper Canada, 13 & 14 Vic: c. 19 contains a provision similar to section 7 respecting judgments and decrees in Law, Equity or Bankruptcy, but it is restricted in its operation to England, Scotland, Ireland, Quebec or Ontario, and the United States ; 43 Vic : c. 7 extends the principle to judgments of any of Her Majesty's dominions. Section 7 also appears in substance in the Civil Code of Lower Canada, s. 1220; and in the Civil Code of Saint Lucia, s. 1152. H 98 CHAPTER IV. Chapter IV. DEFENCES TO THE ACTION. General view of the subject . The English Court not a Court of Appeal General rule of defence Defences common to all countries Nul Tiel Record .... Release and Satisfaction Other Defences I. Fraud. {a.) of the parties . definitions of the rule perjury . contrivance to exclude opposite party (/'.) of the Court wilful error . perversity bribery interest of Judges II. Error ' reasons ' appended to foreign judgments A. on facts or merits a. ' proveable ' error /3. ' apparent ' , , . B. in its own lazv .... C. in foreign law a. in English law )3. in the law of any other country D. as to what law applicable . E. in its own procedure . III. Jurisdiction General principles of jurisdiction considered Actor sequittir forum rei . Simple or residential jurisdiction Assumed jurisdiction i. domiciliary .... outlawry .... foreign law persons to whom the rule applies cases to which ,, administration actions PAnF. IOC lOI 103 105 105 106 108 no 112 "3 114 116 116 117 118 118 119 121 123 125 126 127 127 129 130 133 131 132 133 134 135 136 136 136 DEFENCES. 99 Chapter IV. ii. territorial ...... as to real property .... cases in which jurisdiction exercised in matters ing to land abroad as to personal property .... Scotch Arrestment. Trustee process. Saisie Foreign Attachment .... as to trusts of property within the jurisdiction iii. ex contractu ....... actions arising out of contracts made in United Kin: ,, ,, wherever made decisions under C. L. P. Act Civil law as to forum foreign law ..... iv. ex delicto ...... V. special {a.) in the matter of injunctions {b.) ,, ,, co-defendants vi. company ...... orders for calls on foreign contributories English procedure under Companies Acts foreign judgments against English shareholders submission to tribunal in articles no submission ,, ,, implied submission to general law . French decisions .... General considerations as to assumed jurisdiction Schibsby v. Westenholz discussed General considerations of International Law Effect of appearance ..... selection of tribunal by plaintiff . voluntary appearance by defendant appearance only to save property . The defence raising the question of jurisdiction its general form ...... defendants' absence ..... ,, knowledge of the action Service on agent of absent defendant IV. Natural Justice. old doctrine ....... limitation to proceedings in foreign courts enquiry as to the test of natural justice the discretion to review foreign laws ,, ,, foreign method of citation International Law. isolated cases considered .... Public Law. general principles of defence reconsidered cases involving violation of policy of English law foreign judgment on a contract in restraint of trade in En Summary .......... gdom V. VL relat- land 136 139 140 144 144 145 145 146 147 147 149 149 150 151 151 152 153 153 154 154 155 155 156 157 158 159 160 161 161 161 164 164 165 166 167 168 171 172 172 174 175 176 176 178 lOO DEFENCES. An extended Some apology is perhaps needed for what has been considered Chapter oftheXo^the unnecessary length to which the chapter deahng with the ^^' rcompieti"" theory of the subject has been carried. The reason for this rng^'of'the'^" length has been more than once insisted on, and during the defenc°e"°^ course of this chapter the necessity for it will become more apparent, for until that theory and every part of it has a solid foundation in strict jurisprudence, it is absolutely impossible to deal scientifically with any defence raised ; without that founda- tion confusion of principle and conflict of decision must inevit- ably ensue. It is still It is necessary of course still to speak of the action on the spelk o7the foreign judgment, although, as was pointed out, difficulties have fore°gn°"'^^ arisen from treating the judgment as an ordinary cause of action, judgment. Strictly speaking, the foreign judgment is brought to the English tribunal to be clothed with an auxiliary decree enabling it to be enforced in this country — this will appear more clearly when we come to deal with the effect of foreign probates — and the action is brought to obtain this auxiliary decree. We now pro- pose to consider what defences may be set up by the defendant in such an action. Statement of The court abroad, of competent jurisdiction, having adjudicated of^defeMe?" ^ Certain sum to be due, a legal obligation has arisen in the foreign country, the obligation being to pay that sum. But whilst the courts of one nation willingly lend their assistance to successful suitors in actions decided by the courts of another nation, and in theory at least pay that deference which is due to jurisdictions co-equal in rank with themselves, it seems always to have been assumed that they must of necessity pay some attention to the defence raised by the other party to the action ; and the difficulty always present in an action upon a foreign judgment is, how ex- tensive shall be the enquiry suggested as requisite by this defence : — how far the plaintiff's claim may be tested in the interests of justice, without seeming to derogate from the high authority of the court that has pronounced judgment in his favour. The main This neccssity depends, as we have said, mainly on considera- defenlfi^ "'^ tions of public law. In the absence of codification or express con^dtra°-" enactment on the subject, this principle does not seem ever to "ubfic'Lw have been enunciated in England, although it has received abun- dant recognition in the majority of foreign codes. Thus in the Italian Code of Civil Procedure, s. 941 (iv.) : — 'The court ex- ' amines the decision to see that its judgment does not contain ' provisions which are contrary to public order, or to the internal THE PRINCIPLE OF APPEAL. lOI Chapter IV. Castrique v. Behrens. 30 L. J: Q. B. 163. Dent V. Smith. L. R. 4 Q. B. 41 Castrique V. Intrie. 30 L. J : C. P. .77. 'laws of the kingdom.' [See p. 479.] But even in the foreign codes this rule never stands alone, it being always coupled with other defences resembling more or less those which have been raised in our own courts. It will be found however that such as may with certainty be said to be established in English law are all of them properly comprised within this rule of protection to the domestic public law. We have on many occasions adverted to the fundamental prin- The English ciple that the English court does not sit as a Court of Appeal not^sk as an from the foreign court. Before considering the principle ofcourTLm defence it will be convenient to examine this doctrine thoroughly, cou/r^'^" We have already noticed the case of Castrique v. Behrens which lays the foundation of the principle. The English court declined to entertain a suit for maliciously and without reasonable and pro- bable cause setting the law of France in motion, because the question necessarily depended on the assumption that the un- reversed decision of a court in a foreign country was come to without reasonable and probable cause. [See p. 53 ] The question may be viewed also by the light of general principles. The assistance of the English court has been invoked to clothe Principle the legal obligation which has arisen abroad upon the judgment theoretically. of the foreign court, with the auxiliary international sanction which is resident in the English Sovereign Authority. It is evident that it cannot go beyond the power it is requested to assume, and which assumption is ratified by International Comity, and constitute itself a Court of Appeal by rehearing the merits of the case upon which the foreign court has already adjudicated. The principle therefore flows directly from the doctrine of ' Comity ' : were the doctrine of ' Obligation ' the governing prin- ciple, were the foreign judgment no more than an ordinary debt or cause of action, there would be no necessity for a recognition of such a principle. Indeed the principle has of late years found frequent expression in the considered judgments of the courts, and has been expressly recognised both by the House of Lords and the Privy Council. Thus Cockburn, C.J., in Dent v. Smith : — ' We are not to sit here Judgments *as a Court of Appeal against any judgment pronounced by aruirhasbeen ' court which must be taken to be one of competent jurisdiction in ^^^"^"^^ " ' the administration of Russian Law. The proper tribunal to ' appeal to, if there was any ground for appeal, was to the Court 'of St. Petersburg. There is no appeal here.' Martin, B., in Castrique v. /mrie, puts the point very concisely : — ' Erroneous 102 DEFENCES. Chapter IV. 'judgments are not void.' Blackburn, J., in the same case de- livering the opinion of the judges to the House of Lords : — ' In 'truth the plaintiff asks an English court to sit as a Court of Appeal casuique ' from the French court, which is not the province of the English ["nf kT" R. L. 414. raised abroad. 'court;' and Sir Robert Phillimore, delivering the judgment of L- the Privy Council in Messina v. Petrococchino : — The questions Messina v. ■' . Petrococ- that have been raised ' would have been properly raised on chino. ' appeal to the Greek Appellate Court whether sitting at Athens v. c. 144- ' or elsewhere ; but could not properly be discussed either before ' the court at Malta or before this tribunal.' Attempt to But it may be that the rule of the foreign country is the same Sfencenot as in England, that new defences do not constitute grounds of appeal : and an endeavour may be made to raise a defence in the action on the judgment, which from some cause was not raised in the foreign suit, and so would not be admissible on the appeal abroad. It is evident that the doctrine of appeal includes this case. If the new defence had been raised in the foreign appeal court it would have been rejected. To allow it to be raised in England would virtually be receiving it by way of appeal, and would be going behind the foreign rule. Such a defence there- fore will not be admitted. {Doglioni v. Crispin. Vanquelin v. Dogiioniv. Crispin. Bouard.) l. r. i E. & ' When a party having a defence omits to avail himself of it, or, va^^'ueUn ' having relied upon it, it is determined against him, and a judg- 33 l! jT ' ' ment is thereupon given, he is not allowed afterwards to set up ' ' ^ ' ' such matter of defence as an answer to the judgment, which is * considered final and conclusive between the parties' (Bovill, C.J., eiusv. Ellis V. McHenry). l.^r.Tcp ' The error alleged to exist in this judgment could have been ^^^' {Milne v. Van Buskirk MUtuv. Van Buskirk. Colonial judgments. The doctrine of appeal stated. ' corrected by proper proceedings abroad. — Iowa.) With regard to Colonial judgments this principle is still clearer, \l^'' ^'^^' because the Privy Council is the appellate tribunal for the British Colonies, and in that court alone can matters which are legitimate grounds of appeal be entertained. {Henderson v. Henderson.) Henderson There is therefore abundant authority for this principle of J;,5'^"'^'^' appeal which may be thus enunciated : In an action on a foreign ^ ^^"^^ '°°' judgment the English court will not entertain any matter which should have been raised by way of defence to the foreign suit, or which, being properly a ground of appeal, is cognisable only by the appellate tribunals of the country in which the judgment was pronounced. THE PRINCIPLE OF APPEAL. I03 Chapter Too much importance cannot be attached to the necessity for importance IV. an universal recognition of this principle. It has been authon- doctrine, tatively expounded by the highest courts, but its full bearing seems often to have been overlooked, as we shall have occasion to point out. It is in truth the key to the whole question, making clear many things of themselves hard to be understood. It is bottomed in the simplest of ideas, that a court may properly be called ' of ' justice ' in whatever country it may be situated. To refuse to adopt it is tantamount to declaring that justice is exclusively resident in these islands, much in the same way as the state of Texas in 1841 declared that 'this Republic is not bound by any ' international law or comity to give credence or validity to the 'adjudication of foreign tribunals whose measures of justice and 'rules of decision are variant and unknown here.' The tribunals of all nations must in their several degrees be Aii courts considered equal in their dignity and in their powers of adminis- considered , _-,, ... , . , ^ . . capable of tenng justice : — ' The courts m this country have no right, praising administer- ' themselves to say, we will administer the law better and do more '"^ J"^"'^^- 'justice than the other court will. Courts must respect each other.' Fletcher y. (James, L.J., Fktc/ier v. Rodgers.) We cannot 'assume that the iT^^/k. 97. ' court in San Francisco is unable or unwilling to administer justice.' Hymanv. (Brett, M.R., HymuH v. Helm.') z/cT: D. The French courts have extended the principle to what is in French rule. "^' fact its legitimate conclusion, by deciding that the suit for exequatur on a foreign judgment must be taken in France before a court of equal degree with the foreign court whose Anon: judgment it is (Anon:). J. D I P 1877,' p! 234. Combining this principle of appeal with that of public law. General the general rule of defence would seem capable of being easily defence, formulated. The defence in an action on a foreign judgment must be such as would be a defence to an action on the judgment in the country where it was pronounced ; or must rest on the ground that the enforcement of the judgment would involve a violation of English public law. The first part of this rule was expressly recognised by Parke, B., Frith y. m Frith V. Wollaston: — ' Any defence in the country where the 21 L.'^j:""' 'judgment was obtained would be equally available as such in this ' country.' We have said that the doctrine of ' Obligation and Comity ' involved the power of formulating a principle of defence capable of sharp definition, and it may be objected that the term ' violation of public law ' is the reverse of a scientific Ex: 108. 104 DEFENCES. expression : practically it will be found easy of application. Chapter Again it may be objected that we have put forward as the model ' Lord Black- burn's rule of defence, examined. The use of 'anything ' seems fatal to its accuracy. The rule of defence stated in another form. rule of defence that enunciated by Lord Blackburn in Godard ^^^^^^^^ V. Gray, when he adopted Baron Parke's dictum, which has been Lf'R.'e called the doctrine of ' Obligation.' That rule is thus expressed : Q- ^- '^^' — ' It follows that anything which negatives the existence of the ' legal obligation, or excuses the performance of it, must form a 'good defence to the action.' Rightly understood, this rule includes the one we have enun- ciated above : but although, on the face of it, it is very precise, in reahty it is capable of infinite extension, for it does not exclude defences which are undeniably bad. For example : The foreign court has made a mistake in its application of English law. Surely it is not illogical to argue before an English court, called upon to recognise the existence of the foreign obligation, that such an error should sufficiently excuse the performance of it in this country, even if it did not negative its existence. The consciousness of this dilemma, and a natural unwillingness to disregard a principle which had so much weight of authority in its favour, led us in the first edition [p. loo] to formulate a modification of this rule of defence : thus — ■' a defence is good if ' it negatives or excuses, so long as the English court does not, in ' entertaining it, become an appeal court.' We have already pointed out what we venture to think are the radical errors contained in the main doctrine from which the rule springs ; but the rule itself has this peculiarity that, although it is a direct inference from, it does not perpetuate the errors involved in, the parent doctrine ; for as we have seen it might, if sound, equally be stated as a logical inference from the doctrine of ' Obligation and Comity.' But, with the greatest submission to its learned author, it seems to us to contain in itself an error fatal to its utility : this is the use of the word 'anything; ' which, as the example just cited serves to illustrate, extends its application indefinitely. But if this application be limited, as we think it should be, so as to include only two principles, that of appeal and that of public law, the most important features of the definition remain while its objectionable one disappears : and the rule given above may be stated in another form thus : Whatever is a defence to the judg- ment in the country of its origin, will, in this country, negative the existence of the obligation : If the enforcement of the judgment would involve a violation of English public law, that will excuse the performance of the obligation in this country. This rule will NUL TIEL RECORD lOS Chapter IV. be found to include all the established defences. It may be said, however, that this introduces an element of uncertainty, and involves an objectionable incorporation of foreign into English law. But the uncertainty does not in reality exist, for the main defences to an action on a domestic judgment must really be com- mon to all countries. And with regard to the incorporation and interpretation of foreign law, that is a duty which our courts are almost daily called upon to perform. This rule of defence is therefore put forward with some degree of confidence. This chapter has been entitled for convenience, ' Defences to the T^e rule of ' detence ' Action.' The main principles are, as we have pointed out, equally ^^ppI'^s to applicable to the plaintiff's reply when the defendant pleads a reply. foreign judgment in bar. We propose first to dispose of those defences which may be said Defences , ,, ... . common to to be common to all countries m actions on judgments. all countries. Walker v. Witter. I Dougl: I. Philpot V. Adams. 31 L. J: Ex: 421. NuL TiEL Record. It is convenient to preserve this phrase, although in name the The old plea old plea has disappeared. record. It will appear from what has been advanced in the first chapter, that, as in the case of an English judgment the opposite party may put the existence of the record itself in issue or may deny the effect of it as stated in the pleadings, so in the case of a foreign judgment, the non-existence of the judgment may be set up, or its effect as stated by the opposite party may be denied ; as for example its equivalent in English money. It was held however in Walker v. Witter and Philpot v. Adams, that the old plea nul tiel record was bad in an action on a foreign judgment ; but these decisions proceeded on the ground, which we have already had occasion to notice, that a foreign judgment was not equivalent to, and was not properly called, a record. But although technical pleas have been abolished, it is evident that the defendant will still be entitled in his statement of defence to deny the existence of the judgment, thereby putting the plaintiff to strict proof under 14 & 15 Vic: c. 99. s. 7. [See chapter iii.] Rele.^se and Satisfaction. Under this head it is perhaps only necessary to point out that Release and the case of satisfaction already noticed [p. 42], was where, in an ^^"*^^c"°"- lo6 DEFENCES. action on the original cause of action, satisfaction of a foreign Chapter judgment on that cause was pleaded : in this case it is pleaded in an action on the judgment itself, and when proved constitutes of course a complete defence. Partial. It follows also that partial satisfaction, or partial release, is a good defence to so much of the judgment as has been satisfied or released. {Rans:ely v. Webster — New Hampshire.) Rangeiy\. .Absolute Similarly of course an absolute discharge from the liability by n n. h. discharge by ... i i i ■ i i Rep: 299. law. the law of the foreign country must be an absolute discharge here : Go,ddv. . Webb. see the case of Gould v. Webb, cited on p. 144 : and the discussion 24 l. j: under the head of Statutes of Prescription [p. 200] : but this is not " ' ^°^' so where the remedy only is taken away, as by a Statute of Limitation. [See p. 198.] These two defences are really all that can be raised in an action on a domestic judgment. We may now proceed to more debateable ground, and consider one by one the many forms which the defence to the action on the foreign judgment has assumed : the three great divisions of the subject being Fraud: Error: Jurisdiction; the three minor divisions being Natural Justice : International Law : Public Law. I. Fraud. Fraud. It is Said that the conduct either of the parties to the foreign suit, or of the foreign court itself, may be reviewed by the English court on the ground of fraud : we will therefore consider these two questions separately. (rt-.) Fraud of the parties. Of parties. A rough general principle is to be found in many judgments which may be stated as follows : — If the conduct of either party has been fraudulent, if he has irregularly and unduly obtained the judgment he is seeking to enforce or to have recognised ; that undoubtedly, the other party proving it, will be sufficient to excuse his performance of Tetbettsv. 1 -iTii 1- ^r ^ Tltton. the obligation; unless indeed he has himself been a party to the 31 n. h. fraud: Nemo allegans suam turpiiudiuem est audiendus. (^Tebbetts Aiia>„s%. v. Tilton. Adams v. Adams — New Hampshire.) siS^Ts'ss. Upon this point (although Lord Lyndhurst, C, did not put the o^"'"' case very strongly in Boivles v. Orr, when he said, 'Perhaps it L:' 464.' FRAUD. 107 Chapter IV. • 26 L. J: Ch: 196. = 20 L.J: Q. B. 284. =■ L. R. 4 P. C. 144. ^ I Y. & C: Ex: 464. •' 3° L. J: C. P. 177- » L. R. 8 Ch: 695. Godard v. Gray. L. R. 6 Q. B. 139. Ochsenbein V. Papelier. L. R. 8 Ch: 695. Duchess of Kingston's case. 2 Sm: L. C. 770. ' might be said that, on showing a strong case, the party might ' defeat the judgment even at law ') there would appear to be no conflict of authority, as will be seen on reference to the following cases, which, treating the matter generally, consider it requires no argument to support it : — Rei/iiers v. Druce ^ Bank of Australasia v. Nias ^ Afessi/ia v. Petrococchino " Bowles V. Orr ^ Castrique v. Imrie '' Ochsenbein v. Papelier ^ and many others ; it would be impossible, so numerous are they, to refer to every decision or every judgment in which the Judge has expressed his concurrence with the general principle. In every attempt at a classification of defences that has been made, however imperfect, the fraud of the plaintiff as a sufficient excuse, has always been prominently put forward. But it must be re- membered that fraud has not necessarily been involved in the decision of all the cases in which it is referred to. Judges, when they have been called upon to decide any point arising on the question of foreign judgments, have invariably thought it neces- sary to include the whole subject in their remarks, and amongst other things to give a list of defences, which has not always been accurate, and seldom exhaustive. As we study the defences seriatim, the inconvenience arising from this becomes very marked. In Godard v. Gray however there is a hesitation to admit the proposition with regard to fraud. Blackburn, J., in giving a careful classification of defences, says, '■probably the defendant ' may shew that the judgment was obtained by the fraud of the 'plaintiff.' But Lord Selborne, C, in Ochsenbein v. Papelier declared that these words ' were not intended to throw any doubt ' upon so clear a matter.' The discussion on the question is usually preluded by a refer- ence to Chief Justice De Grey's well-known dictum in the Duchess of Kingston s case : — ' Fraud is an extrinsic collateral act ; which ' vitiates the most solemn proceedings of courts of justice. Lord ' Coke says it avoids all judicial acts, ecclesiastical or temporal.' It is then continued, as we see in Lord Selborne's judgment just referred to, as if nothing could be said on the other side. Attempts have however been occasionally made to reduce the principle, so far as it relates to foreign judgments, into something less vague, something more capable of direct application. But fraud has not been involved in all these decisions. Blackburn, J. , appears to have hesitated in accepting the proposition. De Grey, C.J. io8 DEFENCES. Attempts to enunciate a definite principle. Recent decision of C. A. considered. This fraud must he fraud in procuring the judgment, such as Chapter collusion or the like : it cannot be set up that the defence to the ^^" suit was fraudulent. (Martin, B., Cam///e// v. Se7C'd/.) cam^neii v The fraud must be on the part of the person relying on the Seweii . 27 L. J: judgment alone. (Brett, L.T., Aboidoffv. Oppenhciiner.) Ex: 447. •'° ^ 1 J 1 JJ 11 I ^ Abouloff\. Fraud may be shown where it may be done without showmg oppen- • • • • 1 r 1 1 1 -1 • 1 heimer. any participation in the fraud, and where it does not involve a 10 q. b. d. re-examination of the merits of the case : but Where the fact of fraud is involved in the issue, such fraud constitutes no ground for impeaching the judgment. {Tebbetts v. Tebbetuv. Tilton. Tiltofi — New Hampshire.) 31 n. h. If the fraud ought to have been tried in the original action, it " "' cannot be set up, even although it was unknown and undiscovered at the time of the trial. {Adams v. Adams — New Hampshire.) Adams^' These scattered principles may be reduced into some such j^^p : 388_ formula as the following : — If the fraud alleged is such that it would constitute a ground of appeal in the country in which the judgment was pronounced, the English court ought not to con- sider it. We must now consider the few cases in which fraud has been expressly considered. The most recent and perhaps the most important one, by reason of its lengthy discussion in the Court of Appeal, is Aboidoff V. Oppenheimcr : — The action was brought on a judgment of the District Court of Tiflis in Russia, ordering the return of certain goods, or in lieu thereof the payment of their value : this judg- ment had been upheld on appeal by the High Court of Tiflis. One of the paragraphs of the statement of defence alleged that the judgments had been obtained by fraud, which was thus specified : the plaintiffs had fraudulently represented to the courts that the goods were not (as it was alleged they were) in their own possession at the time of the suit and judgments, and had fraudulently concealed from the courts that the goods were in their possession, except some of them, which had been secretly and fraudulently disposed of by them. To this para- graph the plaintiffs demurred. The demurrer was overruled by the Divisional Court [Mathew and Cave, JJ.] and this decision was upheld by the Court of Appeal [Lord Coleridge, C.J., Baggallay and Brett, LL.J.]. The plaintiff's argument was that the fraud alleged must have been before the Russian court : that it was a fact which that court could have examined and did examine : and that the going into FRAUD. 109 Chapter it again by the English court would amount to a new trial of the case on its merits. This was paraphrased by Lord Coleridge in Abouioff "^^ following manner : — ' Although it must be taken up on the V. oppen- < pleadings that the court of Tiflis was led to its conclusion by 10 Q. B. D. ' believing the fiilse statement made on behalf of the plaintiff, the ' defendants, who had judgment obtained against them by that 'false statement, are not at liberty here to say it was false.' The learned Chief Justice declared ' that would be a monstrous state ' of the law if it could be maintained ; ' and, starting from Chief Justice De Grey's dictum given above, expanded and applied the doctrine that ' no one can take advantage of his own wrong : ' then, Cammeii v. taking the first part of Baron Martin's rule in Cammell v. SewelL Semell. . . .. 27 L. J : together with a sentence nnmediately precedmg the old dictum — 'although it is not permitted to show that the court was mistaken, * it may be shewn that they were misled ' — the principle was The court enunciated as follows : — ' The question for the courts here to mistaken,°is ' consider is whether the foreign court has been misled intention- dtsdnguish 'ally by the person seeking to enforce the judgment, and also 'error.' '^'°"' ' whether fraud has been committed by him in order to procure ' that judgment which was procured thereby.' It appears that the principle of appeal, which has just been considered, was not put fully to the court, because the Chief Justice considered it in the cause of fraud to be an ingenious analogy to the other cases of error in law, and error on the merits of the case : — ' In examining ' the question of fraud here, our courts are not discussing any ' question which could have been determined by the foreign court. ' That court has been misled, not mistaken ; it is plain that if the ' court were in the position of having means of knowing, judgment ' would not have been given in the way it was here.' Lord Justice Brett adopted the same line of argument : — ' It seems to me, even ' supposing these allegations were made in the former action, and ' the defendant gave evidence in support of them, and even gave ' the same evidence as he brings forward now ; nevertheless the ' fact of his having made this allegation and produced that evidence ' does not prevent him bringing the same evidence here and relying ' upon it, if the court here is satisfied of their truth.' It is perhaps bold to question such positive judgments. But it is most necessary to consider the consequences which must result from the decision. Stated broadly the proposition is this : Fraud may be alleged against a foreign judgment. Now, the fraud alleged by the pleadings in this case was distinctly I lO DEFENCES. The fraud alleged in the case was perjury. The result is a rehearing. It is doubtful whether C.y. De Grey's dictum is really applicable. specified: it was nothing different from an allegation of perjury Is it possible to conceive an unsuccessful defendant who will not say that his adversary has perjured himself? Defendants in foreign judgment actions will only be too ready to allege this kind of fraud, and as it has been decided to be a good plea, it will invariably be resorted to, not so much for the purpose of establish- ing the allegation, but as a convenient method of obtaining a rehear- ing of the case upon its merits : in other words, the English court will always be invited, under this cloak, to hear the evidence of the parties afresh, and to determine which is the true version of the case. The broad principle can hardly be questioned : but the appli- cation of it in this instance, rendered very clear by the light of the allegations in the statement of defence, seems, with the greatest sub- mission, to strike at the very root of the principle of appeal, which, it cannot be too often insisted upon, is not only the most essential but also the soundest doctrine involved in our subject. The fallacy, if we may use the term with respect, lies in the unhesitating application of Chief Justice De Grey's dictum in a suit concerning the effect and validity of the sentence of an English Spiritual Court, to a suit concerning the effect and validity of the sentence of a foreign court. The doctrine of appeal is clear beyond question, but the point and consequence of that doctrine seems to have been missed. It was said that the question was not whether the Russian court had been mistaken, but whether it had been misled ; and that this could never have been submitted to the court so misled ; therefore that it was never decided by that court ; therefore that the English court was not acting by way of appeal. But surely the fact of which the English court was to take cognisance, that the court at Tiflis had been misled by fraudulent statements, must have been a ground, if not the ground of the appeal to the High Court; or, if discovered since that appeal, a ground for a still higher appeal : if so, there was the defendant's remedy, and in the former case he had availed himself of it unsuccessfully : thus, in adjudicating upon the alleged fraud, the English Court of First Instance would either be criticising the decision or usurping the province of the Russian Appeal Courts. Where fraud Beyond sayiug that fraud may be alleged in the statement of pe'i-Iuryit defence (and even this must be taken subject to the remarks to be beTdmitted made shortly), we venture most respectfully to doubt the soundness as a defence. ^^ ^^.^ dccision on this simple ground, that where fraud is another name for perjury, other well-established principles seem to govern the case. Chapter IV. Perjury a ground of appeal abroad. FRAUD. Ill Chapter The remaining decisions are the following : — ^^' Blake v. Smith : — a partnership action. The court, by means of ~ an injunction, set aside a Portuguese judgment which had been smii/t. obtained by the fraud of one of the partners. cit: 8 Sim: •' . . ^ 303- Bowles V. Orr : — a bill havmg been filed with reference to Bowles . . . . . v.Orr. certain accounts, an application was made for an injunction to I Y. & C: . . ... . Ex: 464. restram an action on a foreign judgment in respect of the same accounts on the ground that it had been obtained by fraud : a demurrer for want of equity was overruled. /?. V. -/?. V. Wright [New Brunswick] : — the Court refused to recognise I R&^B. a divorce which had been obtained abroad on a false afifidavit. ^ ^' These three cases do not carry the principle any further than Abouioffv. that enunciated in Abouloff v. Oppenheimer, the fraud in each case Veime'r. haviiig bccu in effect perjury in the foreign court. It is doubtful 295^' ' ■ however whether they have ever been followed : see under the head of Injunctions [page 68]. Crawley v. In Cvatvley V. Isaacs however we find the Exchequer Chamber Case in Isaacs. . , ... . Cam: Scacc: 16 L. T. 529. acting on a much narrower, and it is conceived more accurate in which the principle. The action was on an Irish judgment ; the plea, that it has\een^ had been obtained on a false affidavit. The plea was overruled on held not'tJ the ground which we have from the first insisted upon, that alleged perjury. perjury is the ground for appeal in the foreign country and is not cognisable by the English court. ' If this were the case,' said Bramw^ell, B., * of a judgment obtained by untrue statements con- ' tained in an afifidavit in a foreign court where the procedure is * contrary to natural justice, then we might refuse to give effect to * that judgment : but if the procediTre be not contrary to natural ' justice, the defendant has a remedy by an application to the foreign ' court to get the proceedings set aside : so that in all cases there ' will be a remedy. If the procedure be in accordance with ' natural justice the foreign court itself will interfere to prevent the 'plaintiff taking advantage of the judgment irregularly and im- ' properly obtained.' cammeiiv. So in Cammell v. Sewell it was suggested that the foreign sIh^^&n. judgment had been obtained by fraud. Cockburn, C.J., said, '^' ' If the court of Norway has been deceived, the remedy is in thai * court.' Demeritt v. And iu Demerittv. Ly/ordlNew Hampshire] Bell, J., applied the Lyford. ... 27 N. H. same principle m an action on a home judgment : — ' We think it ' would open quite too wide a door for uncertainty and endless ' litigation, if it were to be held that, upon a plea that perjury had ' been committed upon the trial, the merits of every controversy 112 DEFENCES. 'which has passed into a judgment could be reopened and ' examined.' Here then is a direct recognition and appUcation of the principle of appeal to the defence of fraud, and it seems directly at variance with the doctrine enunciated by the Court of Appeal which we have considered above. Chapter IV. Another case of fraud : apparent jurisdiction conferred by fraud or collusion. It is difficult to imagine a practical example not coming within previous rules. It is still perjury. Fraud no defence in action on home judg- ment here. Another case of fraud is suggested by Crompton, J., in Castrique Castrique v. V. Behrens; where ' by the contrivance of the plaintiffs, the proceed- 3° L- J: . Q- B- 163. < ings were such that the defendant had no opportunity to appear ' in the foreign court and dispute the allegations,' such conduct on the part of the plaintiffs would amount to a good defence to the action. This point is again referred to in Demeritt v. Lyford [New Demeritt Hampshire] : — ' If apparent jurisdiction has been conferred by 27 N. H. ' fraud or collusion, the judgment may be impeached.' ^^' ^'*'' It is difficult to imagine a practical example of this ; in England every step in an action being based on affidavit, even a judgment signed for default of appearance, if obtained by a fraudulent concealment of the defendant's absence from the jurisdiction, would rest upon a false affidavit and therefore come within one of the two decisions we have already considered. The point however does somewhat resemble that decided in Frankland v. McGusty, Frankiand .v. McGusty. which w^as an appeal against a decree pronounced m Demerara m i Kn: p. c. favour of judgments given in St. Vincent in respect of considerations arising in that island. The judgments in St. Vincent had been confessed on a warrant of attorney, there being no such power. The decree was reversed. But it would seem to be distinguishable from Luckenbach v. Anderson [Pennsylvania] where the judgment Lnckenbach had been confessed, but the plea that the defendant had been 47 Penn: fraudulently decoyed into the foreign country for the purpose of ^^' '^^ suing him was overruled. This case of fraud, if it can be distinguished, certainly presents very grave difficulties. The principle of appeal must not, as we have seen in Baron Bramwell's judgment quoted above, be left out of the discussion ; and whatever the fraud, whether it be perjury at the trial, or perjury the consequence of which is an assumption of jurisdiction, it must certainly form a ground of appeal in the foreign country, and therefore cannot be a defence to the action on the judgment. Moreover fraud is not in this country a recognised defence in an action on a home judgment, but is rather the ground of appeal from it, or for a motion to set it aside immediately the fraud has FRAUD. 113 Chapter been discovered. And this presumably is the law in all countries. ^^' But consistently with what has already been said, if in the country in which the judgment was pronounced, fraud (whatever be its nature) is a defence in an action there on that judgment, then the ifitisa English court should admit it as a defence in an action on that fbroaTit judgment here. t^foJ'L Finally, it may well be doubted whether the dictum of Chief ^"'^°'"^"'- Justice de Grey is even applicable to the subject under discussion : it referred to a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage : when we come to the question of divorce a new element is introduced which from its nature is inapplicable to other cases, collusion bettveen the parties to the suit : we venture with great submission to suggest that this dictum goes no further than saying that a judgment obtained by fraud should be set aside, the question here being which is the competent tribunal to set it aside. (A) Fraud of the Court. Cammeiiy. In the casc of Cammell w. Sewell m the Exchequer, Martin, B., Fraud of the 27 L. J : said that a foreign judgment would be avoided for fraud, which ^' ^*^' might be on the part of the plaintiff in procuring the judgment, or on the part of the court itself Although it is difficult to imagine in what this fraud could consist, yet wilful disregard of the English law by which the foreign court ought to have been guided, and which to a certain extent it recognised, is a defence frequently to be met with in the cases. It is possible also that there may be a defence raised, of a Possibility wilful disregard by the court of its own forms of procedure ; of its disregard own law ; or of the merits of the case. matwrs. Although in the reported cases, a wilful disregard of English Authorities law is the only form in which this defence appears, there being no error i^' case at present decided, in which a wilful error in any other matter fp"p1icllbi^^o has been raised ; yet it is suggested that the authorities, although generaHy""^ referring specifically to the former case, may, without any violation of the principles contained in them, be referred generally to the latter cases ; that is, to a wilful error in facts, law, or procedure. We may therefore group these four under the one head of ' wilful * error ' — for there does not seem to be any special ground for separating a wilful error in English law, from a wilful disregard of any other important element in the consideration of the case. The ground alleged for the one, is a violation of the general 114 DEFENCES. Opinion in Smith's Leading' Cases. Cockburn, c.y. Different opinions of members of the Court in Castrique V. Itnrie in the Ex- chequer. Wilful application of wrong law. principles of Natural Justice : For the others, the ground can be Chapter no less a violation of those principles. And first it may be well to clear from the discussion a miscon- ception which is almost certain to arise, by stating what will have to be considered more fully hereafter, that error is not fraud. This was fully recognised by Blackburn, J., in Castrique v. Itnric, in Castrique v. which case the opinion of the Attorney-General as to the English l. r. 4 law had been put before the foreign court, but had not been acted upon. The defence '■wilful error' generally, will therefore be con- sidered by the aid of the authorities upon the defence 'wilful ' disregard of English law. ' In Smith's Leading Cases, in the note to the Duchess oi Diichesi 0/ ° ' Kingston s Kingston's case [p. 817] there is the following paragraph : — 'There case. ^ ' is considerable authority for saying, that where a judgment of a 813. ' foreign court is given in perverse and wilful disregard of the ' law of England when clearly and plainly put before it, though ' the law governing the case be that of England, it would not be ' enforced by the tribunals of this country, though the defect be 'not apparent on the face of the proceedings.' The authorities are as follows : — Cockburn, C.J., in Castrique \. Imrie in the Exchequer, ^\%- Castrique \'. cussed the subject, although he forbore giving any express decision 3° L- J = upon it ; if the fact were, he said, ' that the French court knowingly ' and intentionally set the English law at naught, thereby violating ' the Comity of Nations (by virtue of which alone the judgments ' of the tribunals of one country are respected by those of another),' some members of the Court were strongly disposed to think that a judgment in rem could not be questioned : no opinion being expressed by them about a judgment in personam : — but on the other hand, that other members of the Court — 'if it could be ' shewn that, in a case in which the effect of a contract was to be ' determined by the lex loci contractus, a foreign court perversely ' insisted on applying its own law, being in conflict with the ' former, thereby outraging the principles of International Comity ' in a manner amounting, in fact, to a species of judicial miscon- ' duct ' — were by no means prepared to say that in such a case ' it ' would not be the duty of a court in this country to refuse to 'recognise the binding effect of such a judgment; not indeed, by ' way of reprisal towards the foreign tribunal, but to protect our .... Dent V. ' own fellow-subjects from mjustice. smitk. The same learned judge in Dent v. Smith, assumed that ifg. b!4I4. 1-KAUD. 115 Chapter IV. Castrique v hnrie. L. R. 4 H. L. 414. Simpson v. Fogo. 32 L. J : Ch : 249. Castrigue V. Itnrie. 30 L. J : C. P. 177- the suggested error were wilful it would be a good ground of defence. In Castrique v. Inirie before the House of Lords, Lord Hatherley said that ' it appeared in this case that the whole of the facts had ' been enquired into judicially, honestly, and with the intention to ' arrive at the right conclusion ' ; but he avoided expressing any opinion as to what might be done if such were not the case. In Simpson v. Fogo, however, when the learned lord was Vice-Chan- cellor Wood, he said : — ' Here is a case of a foreign judgment which ' distinctly states our law, and says that it disregards \X^ giving reasons 'for so doing which are entitled to great weight. I confess I yield ' to those judges constituting the Court in Castrique v. Irnrie, who ' considered that even in the case of a judgment /« rejn, if there ' were on the face of the judgment a perverse and deliberate refusal ' to recognise the law of the country which had conferred the * property, everything having been rightly done to acquire the ' property, that in such a case it would be the duty of a court to 'refuse to recognise the efificacy of such a judgment.' The weight of authority is therefore in favour of refusing to Result of the acknowledge the foreign judgment where there has been wilful ^^'^^' disregard of either law or procedure, such disregard being held to be tantamount to fraud on the part of the court. Lord Hatherley's judgment would seem to limit this rule to an ' apparent ' wilful error (the distinction between ' apparent ' and ' proveable ' error will be discussed in the next section of this chapter), but the other cases do not seem to warrant such a limita- tion, but rather to support the proposition as stated in Smith's Leading Cases \_a71te, p. 114]. The difficulty of establishing wilful error must of course be very Difficulty in great. No stronger case could well be imagined than that already wilful erron noticed in Castrique v. Ifnrie, where the written opinion of Sir Alexander Cockburn, then Attorney-General, was deliberately disregarded : yet when the case came before him as Chief Justice this was not unanimously held to be sufficient to entitle the English court to disregard the judgment. It would seem however that if alleged in the pleadings, the question will be gone into, but it is suggested that the most positive proof of the wilfulness of the error and perversity of the court will be required, lest the English court overstep the limits of their authority and act as a Court of Appeal, and also because the ground on which the plea rests is diametrically opposed to the fundamental principle that one court must presume another court to act well and justly. Il6 DEFENCES. Defendant Further, it is essential that the party setting up this wilful error Chapter Engitsh law should shew that, as to an error in English law, the law was clearly bdbre'the and plainly put before, and expounded to the foreign court ; and co'tTrfrand as to any other error, that all the facts were laid before the court ; a I tie acts. -^ other words, in accordance with what has already established, that the proof brought to establish the error before the English court is not such as might and ought to have been raised as a If he does defence to the action abroad. The fault lies with the defendant not, no wilful error. Jf the whole casc, and all the law upon the case, is not before the court ; if in this respect he is in the wrong, the foreign court most certainly cannot be said to have erred wilfully and perversely. Judgment In the case of a judgment in rem, we have however an expres- sion of the opinion of some Judges, that this enquiry could not be permitted. A division of The foUowiug considerations may tend to simplify the matter : — suggestiX first — the alleged errors may be not merely wilful, but there may ^th"wrong- ^6 discoverablc an intention in the court of doing wrong ; as, fui intent; fj.Qj-(-j enmity with the country to which one of the parties is subject ; or from sheer perversity : and secondly, — the alleged errors may be wilful, but yet there may be no intention of doing With no wrong, but rather the reverse ; — as, in cases where there really imenl" existed some doubt as to which law ought properly to be applied; or where, as in Simpson v. Fogo, reasons are appended, and the ^j}"'^^""' ^' court has wilfully made the error in the exercise of its judicial ^^^^■J ' discretion. Example of A remarkable instance of ' sheer perversity ' is furnished by the in Italian casc of Debenedctti v. Morand, a decision of the Italian courts v'^Mormid. courts. . . - _, , . T _,, J. D. I. P. m a suit for exequatur on a French judgment. Ihe court 1879, p. 72. declared that it would disregard Italian law and adopt French law jure retorsionis. [See p. 483.] Defence The defendant may however impeach the integrity of the the integrity foreign court ; as for example, by alleging bribery of the Judges, foreign This poiut was suggested merely, but not considered by Lord '^°""' Campbell, C.J., in the Bank of Australasia v. Nias. In Abouloff ^Jj{^i^^j^ V. Oppenheimer, one of the paragraphs of the Statement of Defence 20 l^'^j- alleged bribery of the Judges, and another the well-known (in ^'i^;j3„ Bribery of Russia) impurity of the courts of Tiflis, and the Imperial en- Ofipen- the judges, / l J J i heiincr. to and impurity dcavours to rcform them. That is to say, that the foreign court Q- ^- ^- ^ss- was corrupt and open to bribery, and also that bribes were in fact accepted by it. From the ' Times ' report of the decision of the Divisional Court it would appear that both points were argued before it ; but it is believed unsuccessfully, for both allegations FRAUD. 117 Chapter IV. Price V. Dewhurst. 8 Sim; 279 —302. were struck out by the defendant before the case was heard by the Court of Appeal. There is one reported case in which the integrity of the foreign court was successfully attacked on the ground of the interest of the Judges in the subject matter of the action : Nemo debet esse judex in propria causa. Price v. Dewhurst, where the proceedings abroad took place in what is called the Executor's Court of Example of Dealing in St. Croix. According to Danish law, where by a will couft^oF ' certain people have been appointed incassators and guardians DanlsMaw. for other persons, they may form themselves into a court for administering the property for the benefit of those persons. But it appeared that in this instance this court had determined ques- tions for themselves; and on this ground the integrity of the court was attacked : not the court itself on account of its peculiar and unjudicial constitution, — for that was warranted by Danish Law; and it is presumed that a decision of the court relative to the persons over whom the court had been appointed guardian, would have been acknowledged ; — but the acts of this peculiar court ; the act of determining a matter in which the members of the court themselves were interested : (if this course had been interest of warranted by Danish Law, Shadwell, V.-C, thought that the '^* J"''^"'- question might have been raised that it was contrary to the common course of Justice). The Vice-Chancellor said : — ' It would be idle * to say that we must pay attention to what took place in this case. 'Wherever it is manifest that justice has been disregarded, and ' that the parties are merely making use of legal proceedings as ' a matter of form, for the purpose of doing that which is contrary ' to all notions of justice, viz : — of deciding for themselves, and in ' their own favour, the court is bound to treat their decisions as 'a matter of no value and no substance. This foreign judgment ' is fraudulent and void.' Although this case deals more particularly with a ^//rt'.f /-judicial court, the doctrine seems to apply equally to the judges of regularly constituted courts. And not only may the defendant attack the integrity of the court, but from the judgment of the Vice-Chan- cellor it appears that the English court is bound to take judicial notice of the fact, and disregard the judgment. To this second part of the question, Fraud of the Court, the Application dictum of Chief Justice de Grey seems peculiarly applicable : it cW/ "" certainly appears to be the case to which Lord Coke refers when he says, ' Fraud avoids ^\ judicial acts, ecclesiastical or temporal' ii8 DEFENCES. The doctrine with regard to error follows from principle of appeal. Division of the subject. II. Error. In the first part of this chapter we discussed at some length the principle of appeal. The rule which has been laid down in practice with regard to Error will be found, as indeed it must be theoretically, a corollary from that principle ; it is commonly expressed as follows : — The English court will not reopen the merits of a case already determined upon by a foreign court. The question however is a much broader one and includes the following defences which have been raised : — A. an erroneous conclusion from the facts, or as to the merits of the case. B. a mistake in its own law. C. a mistake in the law of another country which it has pro- fessed to declare. D. a mistake as to what law was properly applicable. E. a mistake in its own procedure. Chapter IV. An error may be apparent or proveable. Reasons often appended to foreign judgments. [e.g. Mrs Bulkeley's case, c/: pp: 294, 295.] They are to be treated as part of the judgment. Before proceeding to the consideration of these different heads, there is an important preliminary distinction to be noticed which has provoked much controversy. An error may either be apparent on the face of the documents which have come from the foreign court, and to which we may apply the English technical term ' record,' or it may require proof by the aid of extrinsic evidence. A judgment of a foreign court differs very materially from the form in which an English judgment is first delivered and then formally entered. Incorporated in the judgments of nearly all foreign countries are the formulated reasons which led the Court to the decision at which it arrived : It therefore becomes necessary to ascertain whether these reasons form part of, and are to be received as, the judgment ; or whether they are to be considered merely as ap- pendages to it, for the information of the parties. In Reitners v. Druce there were reasons appended to the judgment, and Romilly, M.R., said : — 'There is no evidence, but I cannot doubt ' but that these reasons formed part of the record, and that they 'must be treated as an integral part of the judgment in the same ' way as where an arbitrator makes an award and appends to it ' the reasons or grounds for having made that award. The 'reasons therefore are examinable.' And in Simpson v. Fogo Wood, V.-C, said : — •' I have clearly a right to look at these Reitners v. Druce. 26 L. J : Ch : 196. Simpson v. Fogo. 32 L. J : Ch : 249. ERROR. 119 Chapter ' reasons as signed by the Judges, as part of the judgment, ^^' 'appearing as they do on the face of the record, Hke the jugements ' motives of the French Judges.' If this be so, the alleged error itself and very probably the reason for it, will appear in these appended reasons ; and as they form part of the judgment, we have a mistake which may be very properly said to be apparent on the face of the proceedings. We shall see that the preliminary distinction was objected to by Lord Blackburn ; but even if it be unsound it is not an unnatural one for the purpose of considering the question. For greater con- venience we propose to discuss it coupled with the first main division of the subject, the principles of course applying to all the other divisions. A. That the foreigii court has come to an erroneoiis conclusion Error on the from the facts of the case, or as to its merits. the'merits" a. A PROVEABLE ERROR. The effect of this defence is, the defendant asserts that the Proveabie foreign court, having had the facts of the case proved before it, ^^^°^' has come to an erroneous conclusion upon those facts ; that the judgment thereupon is erroneous ; and that he, the defendant, can prove the error to the satisfaction of the English court. That such a defence cannot be entertained follows as an imme- ^ ^^^ diate consequence from the principle of appeal : — ' Since the defence, Bk:o/ 'decision in the case of the Baniz of Australasia v. Nias, we are V.Mas. 'bound to hold that a judgment of a foreign court having juris- Q. b'. 284. 'diction over the subject matter cannot be c^uestioned on the ' ground that the foreign court had come on the evidence to an Munroev. ' crroncous conclusion as to the facts' (Cockburn, C.J. — Munroe 31 L. J : ' V. Pilkington). Tarkfon v. Tarleton is one of the earliest cases Tarieton\. upon the question : Lord Ellenborough, C.J., then said, 'I thought 4 M. sTs'. ' I did not sit at Nisi Prius to try a writ of error in this case upon ' the proceedings abroad ' : but it was more elaborately considered in the Bank of Australasia v. Nias. . Lord Canfipbell, C.J., in delivering judgment, refused either to reconcile or contrast the authorities which had been cited : — ' It is enough to say,' he remarked, ' that the dicta against retrying the cause are quite ' as strong as those in favour of this proceeding ; and being left 'without any express decision, now that the question must be ' expressly decided, we must look to principle and expediency. ' The pleas demurred to might have been pleaded, and if there 120 DEFENCES. for the following reasons. The merits of the case will not be reopened. Commission to examine witnesses abroad refused. Fresh evidence will not warrant a departure from the rule. ' be any foundation for them they ought to have been pleaded in ' the original action. They must now be taken to have been in due ' manner decided against the defendant.' The learned judge then went very fully into the reasons for not allowing what in effect would be a new trial, reasons which are indeed incontrovertible. Documents may be lost or not forthcoming : witnesses may be dead : in colonial cases the defendant may be conscious that he has no ground of appeal to the Privy Council, and in foreign cases to the foreign Court of Appeal. 'If he has this opportunity 'of again contesting his liability he may, from the loss of evidence ' by the plaintiff, or from a temptation to bring forward false ' evidence himself, unconscientiously resist the payment of a just ' demand which had been solemnly adjudicated upon by a com- ' petent tribunal' The proper course being provided in all countries for appealing against erroneous judgments, there can be no hardship in requiring him to adopt that course. Shortly the rule is this : the English court will not re-open the merits of the case. In Gold v. Can/mm, ' a partner, having retired under ' an agreement of indemnity against partnership claims, was allowed ' a sum of money recovered by the sentence of a foreign court 'for customs due to the Duke of Florence without examination 'of the merits : the justice whereof is not examinable here.' And in Martin v. Nicholls, an action on a judgment recovered in Antigua, Leach, M.R., refused to allow a commission to issue to examine witnesses in the Island, because it would be tanta- mount to saying that the judgment might be over-ruled on the merits. [See the remarks on the issue of a commission in a recent case in an action on the original cause of action, ante^ p. 31.] As in the case of the principle of appeal it has been established that a new defence will not be entertained in this country ; so in this case, the fact that fresh evidence has been discovered which was not known before judgment was pronounced and which perhaps shows that judgment to have been erroneous, will not warrant a departure from the rule. {De Cosse Brissacv. Rathbone.) The same rule was acted on in Rankin v. Goddard [Maine], where the new evidence was directed to mitigation of damages. A somewhat interesting suggestion was made by Spragge, V.-C, in Kingsmilly. Warrener [Upper Canada] as to the examination of the merits of the case: — 'When the foreign judgment is ' attempted to be enforced in the very country where the cause ' of action arose, the defendant should be allowed to (]uestion the Chapter IV. Gold V. Canham. 2 Sw : 325 n. Martin v. Nicholls. 3 .Sim : 458. Brissac v. Rathbone. 30 L. J : Ex : 238. Ranl;in v. Coddard. 55 Ma : Kep : 389. K ingsmill v. IVarrener. 13 Q. B. 18. ERROR. 12 1 Chapter 'merits.' It was not however supported by the rest of the Court, and there seems no very strong reason why the ordinary rule should be departed from. p. AN APPARENT ERROR. ' A foreign sentence, though not strictly pleadable, yet has Apparent ' been held by Lord Kenyon to be conclusive evidence, and only ''"°'^' ' to be falsified by showing error apparent ' (Lord Colchester's MSS : — cited 3 Swanston p. 712). 'A foreign judgment of a 'competent court may be impeached, if it carries on the face Messina v. ' of It a manifest error ' (Sir R. Phillimore, Messina v. Petro- chino. cocchino, dehvermg the judgment of the Privy Council : Sir Decision of p.'c.'iV. J. W. Colville, Sir R. Phillimore, Sir J. Napier, Sir Montague counciK^ Smith, and Sir R. P. CoUier) . This opinion of the Privy Council follows the judgment of Reimersv. Romillv, M.R., m. JRewiers v. Druce: — 'It is clear that a foreign Dntce. 26 L.J: judgment sought to be enforced in this 'country, is, in addition Bk':o/' 'to the grounds referred to by Lord Campbell, C.J., in the Bank Australasia . V. Nias. ' of Australasia v. J\ias, impeachable for error apparent on the Q. B. 284. ' face of it, sufficient to show that such judgment ought not to ' have been pronounced. But this leaves open the nature and 'extent of the apparent error sufficient to invalidate the judgment. ' By that, I mean, such error as shows upon the face of the Definition 'judgment itself, without any extrinsic evidence, that the Judges grro^r"^^"' ' had come to an erroneous conclusion (either of law or) of fact.' ' Effect can only be given to foreign judgments when they are May\. 'good on the face of them.' (May v. Ritchie — Lower Canada.) Ritchie. '^' . ^ -^ ' 16 L. c. See also the Indian Code of Civil Procedure, ss : \x. 14. Jurists,, \ o ^ ' >3 ^ post. p. 300J These are the most important decisions supporting the principle conflict of which establishes such an important distinction between apparent '^^'^'^'°"^- and proveable errors : there remains to be stated the very eminent opinion against it. On the other hand there is the dictum of Blackburn, J., in LordBiack- Godardv. Godard V. Gray. The defence that the judgment proceeded on opinlo^n. l"r' 6 ^ mistake cannot be set up, and ' it can make no difference that Q. B. 139. < j-)-^g mistake appears on the face of the proceedings. That, no 'doubt, greatly facilitates the proof of the mistake; but if the ' principle be to enquire whether the defendant is relieved from ' a prima facie duty to obey the judgment, he must be equally 'relieved whether the mistake appears on the face of the pro- ' ceedings, or is to be proved by extraneous evidence.' 122 DEFENCES. The position taken up by the different learned editors of Smith's Chapter Leading Cases upon this point is somewhat remarkable. In the original note to Doe v. Oliver the proposition is distinctly stated ^^^ ^ that a judgment is not conclusive in the face of an apparent error, f g^^r* Novelli V. Rossi is the only case cited in support, and as Black- ^j^Jif^, burn, J., points out, Lord Tenterden's judgment does not contain ■'?^«'- one word in favour of the doctrine. In subsequent editions how- 757- ever the proposition has disappeared, and it has been replaced by one relating to ' apparent wilful error.' Impossible It will bc Well to bear in mind the order of date in which these to frame a rule at thrcc iudgmcnts Were delivered — Reimers v. Druce, 1857 ; Godard Rfimersv. present Druce. V. Gra\\ 1870 ; Messina v. Petrococchino, 1872. But the dicta are 26 L. j : ... Ch : 196. so conflicting that it is impossible to lay down with certainty any Godards-. • • 1 1 • • r 1 Gray. rule upon the subject ; to anticipate the decision of the courts l. r. 6 when the point comes expressly before them. A few suggestions Mesdna'y. only can be offered towards the solution of this most difficult chinl'."'^' L. R. 4 question. p. c. 144. iiiu'itrations. y^^ ^yjn cousidcr a simple illustration (hoping that the use of the algebraical x and y will not be confusing to the reader) : — • The English court is asked, let us suppose, to enforce a foreign judgment, upon the face of which appears the conclusion that 2 plus 2 equals 5. This is in illustration of the principle of Reimers v. Druce : — There is a conclusion from certain facts, so palpably erroneous, that no extrinsic evidence can possibly be needed to contradict it : again, The English court is asked, let us suppose, to enforce a foreign judgment, upon the face of which appears the conclusion that x p/us y equals 5 — x and y being unknown quantities (the facts of the case into which the court may not enquire). This is in illustration of the principle of the Bank of Aitstralasia Bk: of V. Nias: — There is a conclusion from certain facts; but there is v/'w^l'^"* nothing upon the face of the judgment to show that this conclu- q b'. 284. sion is palpably erroneous. For all that the English court can tell, it may be perfectly logical and accurate : it is in ignorance of the method pursued for arriving at the conclusion, and not being a Court of Appeal, it is not its business to enquire. The defen- dant indeed says that that conclusion is wrong, and that he will prove it to be wrong, showing — by extrinsic evidence — that, say x was equivalent to 2, and y was also equivalent to 2 ; and that therefore yi plus y cannot equal 5. The answer of the English court is evident. We cannot go KRROR. 123 Chapter IV. Palandri v. Lauthier. J. D. I. P. 1883. p. 87. into the merits of the case. If it be as the defendant says, that x plus y does not equal 5, that should have been proved in the foreign court. If he did endeavour to prove it there, he failed ; for that court, having considered the evidence laid before it, has declared the correct conclusion from those facts to be, that x plus y equals 5. That decision is binding upon the defendant. The first case, so far as a simple clerical error is concerned, Clerical error. seems perfectly simple. The rule laid down by the Italian courts in Palandri v. Lauthier, as to the production of the foreign judg- ment seems very much in point : the judge may refer to the record to clear tip any disputed questions that may be raised. But when we get beyond this, for the present it can only be said that the principle of appeal militates very considerably against the recep- tion of the doctrine as laid down in the obiter dictum of the Privy Council. Error in its own law. Alivon V. Furnival. 3LJ: Ex : 241. Munroe v. Pilkington. 31 L. J : Q. B. 81. Dent V. Stnith. L. R. 4 Q. B. 414- Becquet v. McCarthy. 2 B. & Ad : 951. Ahvon V. Furnival. sL-J: Ex : 241. Messina v. Petrococ- chino. L. R. 4 P. C. 144. B. That the foreign court has made a mistake in the interpreta tion of its 07i'n law : that is, a mistake in the lex fori 7'ei Judicata'. There appears to be no clearer proposition relating to the enforcement or recognition of foreign judgments than that ' the ' foreign judgment is prima facie evidence of the law therein laid Preliminary proposition. 'down (Parke, B., Alivon v. Furnival). And the dictum of Cockburn, C.J., in Mimroe v. Pilkington is to the same effect : — ' Upon what grounds the judgment of the American court pro- ' ceeded is a question on which it is unnecessary to speculate. ' It is enough that, being satisfied that the question of the defen- ' dant's liability must be determined by the lex loci of the contract, *we have the decision of a local court of competent jurisdiction 'as to what that law is.' The proposition is still clearer, where the decision is one from which the unsuccessful party might and, as we have seen, should have appealed in the Courts of Appeal of the foreign country, and he has not done so : in such a case ' the decision is about the ' best evidence you can have of the law of the country ' (Hayes, J., Dent V. Smith). The expansion of the proposition also holds good : — ' The Expansion .... ofprelimi- ' foreign judgment must be assumed to be ui accordance with the nar>' pro- ' foreign law' — (Lord Tenterden, C.]., Becquet v. McCarthy,'^°'''^^°'^' approved in Alivon v. Furnival). Or; — 'It must be presumed ' that the foreign court rightly interpreted and applied the foreign 'law.' — (Sir R. Phillimore, Messina v. Petrococchino.) 124 DEFENCES. Application of general principles. From these propositions this deduction easily follows : — a foreign judgment, when it is brought into the English courts to be enforced or recognised, is not examinable on the ground of a mistake in the interpretation and application of its own law — {Bank of Australasia v. Nias, followed by Cockburn, C.J., in Munroe v. Pilkhigton, and by Martin, B., in De Cosse Brissac v. Rathbo?ie; Romilly, M.R., Reiuiersv. Driice; Lord Colonsay, Cas- irique v. Imrie). For the foreign court is much more competent to decide questions arising on its own law than our courts can be — (Lord Tenterden, C.J., Becquetw. McCarthy). The same result is more simply arrived at by the aid of the general principles of defence : — The English court, in making such an enquiry would be performing the functions of a Court of Appeal. In Kerby v. Elliot [Upper Canada], the principle was doubted, and Chewett, J., went to the length of saying that he supposed the defendant should be allowed to plead that he had properly set up the Statute of Limitations in the foreign country, and that it had been overruled, [but see p. 202 ct seq-\ Chapter IV. Bk : of A ustralasia V. Nias. 20 L. J : Q. B. 284. Munroe v. Pilkini^ton. 31 L. J : Q. B. 81. Brissac v. Rathbone. 30 L. J : Ex : 238. Reimers v. Driice. 26 L. J : Ch : 196. Castrique v. Imrie. L. R. 4 H. L. 414. Becquet v. McCarthy. 2 B. & Ad: 951. Kerby v. Elliot. 13 Q. B. 367. Meyer v. Ralli con- sidered. The case oi Meyer v. i?^'/// remains to be considered. Meyer v. There had been a decree in France which was said to be f^^^p. d. manifestly erroneous according to French law. The French ^s^- court had held that freight was due in its entirety upon the cargo, as if the whole voyage had been completed, although from stress of weather the ship had been compelled to put in at a French port, instead of proceeding to her destination. This decree came before the English court in a special case ; and the Court of Common Pleas, [Lord Coleridge, C.J., Grove and Archibald, JJ :] lield that as the defendant was not a party to this judgment abroad, it was not binding upon him ; and also that it was not binding on the court on account of this mistake in the lex fori rei judicatcB. Archibald, J., in delivering the judgment of the Court, does not appear to have dealt with the general proposition that third parties are not bound by a judgment ; but considered first, the proposition that a third party may attack a foreign judgment on the ground of error ; and then proceeded to discuss the doctrine now before us — the right of a party to a judgment to attack it on the ground of error in its own law : — ' There is this peculiarity ' in the case, which does not, so far as we are aware, seem to have ' occurred before ; that, upon the express findings in the special ERROR. 125 Chapter IV. Castriqiie v. Ivirie. L. R. 4 H. L. 414. Becguei v. McCarthy. 2 B. & Ad ; 951- Meyer v. Ralli. I C. P. D. 358. 'case, by which both parties are bound, this part of the judgment ' seems to be manifestly erroneous, in regard to the law of France, 'on which it professes to proceed.' Then follows a quotation from the judgment of Blackburn, J., in Castrique v. Imric : — 'We ' must (at least until the contrary be clearly proved) give credit to * a foreign tribunal for knowing its own law, and acting within the 'jurisdiction conferred on it by that law;' and one from the judgment of Lord Tenterden, C.J., in Becquct v. AlcCarthy : — ' We ought to see very plainly that that court has decided against *the French law before we say that their judgment is erroneous * on that ground.' From these dicta the conclusion is drawn, that if the mistake in the foreign law clearly appears, the English court will not give effect to the judgment, not merely as in favour of a third party, but also as in favour of the original parties. This decision points to the division into 'apparent' and 'prove- 'Apparent' able' error, which was adopted in the general consideration of^proveabie ' error ' ; but it hardly goes the length of holding that an ' apparent' ^'^'^°'^' error in its own law will be a good ground for our courts to refuse to be bound by the judgment; and that a 'proveable' error in its own law will not be a good ground : Indeed such a division in the case of foreign law appears to be useless ; for it is hardly possible to imagine such an error to be ' apparent ' in the sense in which this term has been used. The error may become apparent — as in this case, being set out in the special case — but the consideration of the error is a consideration of the means whereby the foreign court arrived at its decision ; is a re-opening of the case as to its merits ; and although the decision in this case of Meyer v. Ral/i certainly was in favour of allowing the defence, it is with all respect and submission suggested, that an English court would be acting against accepted principles, and would be constituting itself a Court of Appeal from the foreign court. Simpson V. Fogo. 32 L. J : Ch : 249. Novelli V. Rossi. 2 B. & Ad : 757- C. That the foreign court has made a mistake in the interpre- tation of the law of atiother country ., which it has professed to declare, a7id upo7i which the judgment is fowided. a. AN ERROR IN ENGLISH LAW. The earlier opinion upon this point seems to have been, that if the judgment were not i?i rem, it might be disregarded if a mis- taken English law had been administered. This was the decision of Wood, V.C., in Simpson v. Fogo : another exami)le of this doctrine was there cited — Novelli v. Rossi. (Whether this case is an example or not seems doubtful ; Black- Error in foreign law. Earlier opinion as to error in English law. 126 DEP'ENCES. Application of pre- liminary principles. Opinion in Smith's Leading Cases. Extension of principle : Whether court employed proper means to ascertain English law. Error in the law of any other country incidentally involved. burn, J., in Godard v. Gray denied its application.) But if as before, we here apply the preliminary principles, the same result is arrived at as in the preceding case of an error by the foreign court in its own law : — To go behind the judgment ; to criticise the method by which the Court arrived at its conclusion was an application of English law ; to see what part of that law was applied, and test the method of applying it, seems to belong entirely to the province of a Court of Appeal, and therefore not within the province of the English court. This was the unanimous opinion of the Judges and the Lords in Castrique v. Imrie : — ' We cannot enquire whether they were right 'in their views of the English law.' In Munroe v. Pilkington, although the point was raised during the argument, the Court declined to give an opinion upon it, as it was not directly before them. But the proposition as laid down by the very learned author of Smith's Leading Cases in the original note to Doe v. Oliver — ' It is clear that if the judgment appear on the face of ' the proceedings to be founded on a mistaken notion of English ' law, it would not be conclusive,' — drew from Lord Blackburn, in Godard v. Gray, that very strong expression of dissent that we have already noticed : and which applied not only to errors of fact, but to all other errors : — ' Nor can there be any difference,' he adds to what has already been quoted [page 121], 'between a ' mistake made by a foreign tribunal as to English law, and any 'other mistake.' To this principle must be added an extension of it : No enquiry can be entertained as to whether, under the circumstances, the foreign court took the proper means of satisfying themselves with respect to the view they took of the English law administered by them. (Lord Colonsay, Castrique v. Imrie.) It is the defendant's duty to see that the English, law is put properly before the court. If it is not, he must take the con- sequences. For example, the judgment will not be disregarded, although the foreign court too hastily concluded what the law of England w^as : e.g. that it must be what, according to their view, the law of every mercantile country ought to be (Cockburn, C.J., Castrique v. Imrie., in the Exchequer). /?. AN ERROR IN THE LAW OF ANY OTHER COUNTRY. ■ The defence that the foreign court has made a mistake as to the law of some third country incidentally involved, cannot be Chapter IV. Godard v. Gray. L. R. 6 Q. B. 139. Castrique V. Imrie. L. R. 4 H. L. 414. Munroe v. Pilkington. 31 L. J : Q. B. 81. Doe V. Oliver. 2 Sm : L. C. [8th ed 775- [in Exch : ch n 30 L. J : C. P. 177- ERROR. 127 Chapter IV. Godard v. Gray. L. R. 6. Q. B. i3g. Meyer v. Ralli. I C. P. D. 358. Castriqite V. Itnrie. L. R. 4 H. L. 414. raised ; the same principles applying to this as to the preceding cases. (Blackburn, J., Godard v. Gray.) Thus Archibald, J., in ' Meyer V. Ralli: — ' If this judgment (of a French court) had pro- 'fessed to declare what is the law of Austria, though equally ' wrong, we might have been bound by Castriqite v. Iiiirie to give 'effect to it.' On this subject of error in law the remarks of Blackburn, J., in The duty of Castriqite v. Imrie are peculiarly applicable : — ' We apprehend ^e^ermini'ng * that all that can be required of a tribunal adjudicating on a °J'J°'''"^" ' question of foreign law is to receive and consider all the ' evidence as to it which is available, and bona fide to determine ' on that as well as it can, what the foreign law is. If from the ' imperfect evidence produced before it, or its misapprehension of ' the effect of that evidence, a mistake is made, it is much to be ' lamented, but the tribunal is free from blame.' It is true that the learned judge was indicating what was the duty of an English court when it has to determine a question of foreign law : the duty of a foreign court when it has to determine a question of English law cannot of course be placed on a higher footing. Dent V. Smith. L. R. 4. Q. B. 414- D. That the foreign court has made a mistake as to luhat lata was properly applicable. In Dent v. Smith the point was raised that the foreign court Error in law had applied the law of France, instead of, as the case required, applicable. the law of Russia. Cockburn, C. J., held that the principle of appeal applied in this case also ; that it was a matter with which the English court had nothing to do ; and that it must be taken that whatever the foreign court did, it acted within its proper authority. cedure. E. That the foreign court has made a mistake in its own course of procedure. Following the same principles that have guided us in the Error of the . . . court in Its foregoing discussions, we must assume that the foreign court own pro- is best capable of knowing what its own procedure is ; and that if the English court enquires whether a mistake has been made in this procedure during the hearing of the case abroad, it will be acting as a Court of Appeal : — ' It appears to me that we cannot ' enter into an enquiry as to whether the foreign court proceeded 'correctly as to their own course of procedure.' (Lord Colonsay, Castrique v. Itnrie.) 128 DEFENCES. So too AVigram, V.-C, in Henderson v. Henderson : — ' Another Chapter ' objection was the absence or irregularity of service. It is rcpre- ' sented that the party had on different occasions actual notice i^^nderson ' of the suit, and of the relief which was sought against him by it ; ^^„^^^^„„ ' however irregularly that notice may have been communicated, 3 Hare, loo. 'if the plaintiff thought that he might safely disregard the pro- ' ceedings and abstain from interposing any defence on the ground ' of their irregularity, I think I ought to consider him as having ' relied on the strength of his case for establishing that irregularity ' by a complaint m the same jurisdiction or in the Cotirt of Appeal, 'and not to have relied on being therefore able to set the decree ' of the court at defiance even while it remained unreversed.' A difficulty sometimes arises from the statement of this prin- ciple of error in another way : The foreign judgment is not examinable. This is somewhat misleading for of course ' the foreign ' judgment must be examined, as all other judgments, to see what 'it professes to decide ' (Romilly, M.R., Reimers v. Druce), mReimersv. other words to see what is the conclusion arrived at : but whether 26 l. j : Ch: ' or not the court arrived at that conclusion by proper means I am ' " ' not at liberty to enquire although inflicting the grossest injustice ' (Lord Kenyon, C.J., Geyer v. Agiiilar). ' I assume this judgment ^^y^rj'^-^ 'to be regular in all its parts' (Lord Abinger, C.B., Russell v. 7T. r. 681. '--' ... , Russell \. SinvtJi). In the former case the injustice seemed so strong tliat s,„ytk. . , ,,,,,•! , , , 9 M. & w. the learned Chief Justice almost rebelled at being bound by such sio. a rule ; ' The French courts,' he said, ' seem in this instance ' to have proceeded on Algerine (nay, on worse) principles ; ' because they proposed to proceed according to law, but in ' reality made the law a stalking-horse for an act of piracy ' : never- theless he felt himself compelled to enforce the judgment. The doctrine With reference to this question of error perhaps the most hardfy"^'^ remarkable point is that Lord Blackburn is one of its strongest ^"hlw supporters. And yet from the rule of defence which his Lordship BUckburus j^^^ ^^.^ down the reverse of this principle would seem the most defence. natural consequencc. Because it might surely with great force be said that an error should excuse the performance of the obligation, even if it did not at once negative its existence : and this argument becomes all the stronger when the error is one in English law. This consequence of the rule does not seem to have occurred to the learned judge, for in the judgment in Godard v. codardw. Gray, he goes immediately after its enunciation to the authorities ^f'g'-g overruling a plea of error which he considers conclusive. This Q' ^- '39- JURISDICTION. 129 Chapter IV. fact alone seems, with great submission, to prove that that rule of defence is inadequate, because it omits all reference to the funda- mental doctrine, that of appeal. Mr Wheaton's conclusions on the defences discussed in this wheaton. section are : that, if it is clearly or unequivocally shewn by extrinsic evidence that it has manifestly proceeded upon false premises or inadequate reasons ; or, upon a palpable mistake of local or foreign law, it will not be enforced. Dr Story's conclusions are somewhat similar [Conflict of Laws, story. §§ 607, 618 d.] ' It is easy to understand that the defendant may impeach the original § 607, 'justice of the judgment by shewing, that ' upon its face it is founded in mistake ; or, that * it is irregular and bad by the local law, fori rei judicata. ' ' It cannot be impeached in England by showing that the foreign court ' has mistaken the law of England upon an English contract ' : § 607. ' But the courts of England may disregard the judgment, ifiier partes, if it ' is founded upon a misapprehension of what is the law of England : %.b\%d ' or that ' it proceeds upon a distinct refusal to recognise the laws of the country ' under which the title to the subject matter of the litigation arose.' § 618^. § 618 d. Ferguson v. Malion. 11 A. &E. 179. III. Jurisdiction. We now come to the defence attacking the jurisdiction of the Jj'i;^^;^^'^''" foreign court which has pronounced the judgment, and as in court. the case of the defence raising the plaintiff's fraud, if we sought no more than a bare statement of a rule we might rest satisfied with the somewhat superficial statement that there seems to be no break in the authorities, tracing them back from the present time, in favour of its being successfully raised. That absence of jurisdiction should form a good defence, is said General •" .... statements. to be consonant with the most elementary principles of justice ; the line of argument being based upon Baron Parke's dictum somewhat in the following manner : An alien owes no allegiance to the laws of a foreign state : a man, not in any way subject to the laws of a foreign state, cannot be held bound by the decisions of its courts : a judgment pronounced against him by such a court cannot raise a legal obligation to obey that judgment : the existence of the obligation may therefore be at once negatived : — 'An inquiry is open whether the judgment passed under such ' circumstances as to shew that the court had properly jurisdiction ' over the party.' (Lord Denman, C.J., Fergj^son v. Mahon.) ' It ' may very well be held that the foreign country has no jurisdiction K i^^o DEFENCES. ' to pronounce judgment against a person behind his back, who is Chapter ' not subject to its jurisdiction.' (Blackburn, J., Castrujiie v. Jmrie.) ^^' Courts must Howcver satisfactory this reasoning may at first sight appear, ^^^^,.^„^ caseTtrive its rescmblance to that general argument, also based upon Baron ^■J{^"'^\ jurisdiction pjjjj^g'g dictum, which, as we have pointed out, might easily be c. p. 177- foreigners. ^^^^^^ \^ favour of a defence setting up ' Error of the Court,' cannot foil to be noticed ; it therefore requires much consideration, for even those judges who have expressed their approval of it, have found it necessary at once to qualify it by an admission, that cir- cumstances very frequently exist by reason of which a subject of one state must be, and in fact is universally admitted to be, under the laws of a foreign state ; and that therefore when a judgment is pronounced against him by the courts of that foreign state in accordance with those laws, there does arise a legal obligation to obey that judgment. This is a most important qualification, and if we accept the maxim omnia prcBsumicntur rite esse acta, which was held to be expressly applicable to foreign courts in Taylor v. Ford, we see Taylor ^r. • ••/- • 111 J'ord. at once that the qualification is of more importance than the rule 22 w. r. 47. it qualifies ; that is to say, a thorough understanding of the exceptions which have been ingrafted upon it, is of more practical utility than the accumulation of vague arguments in support of the general rule. We propose therefore to examine the whole question of Juris- diction. The question of jurisdiction to be fully considered. Jurisdiction As we have already hinted, the subject of Jurisdiction is a very complicated one. The outline of the general theory, which was necessary by way of introduction to the chapter on Injunctions, must now be elaborated. The jurisdiction to pronounce judgment in a suit depends solely judgmen"""^ ou the right to summon a person before the tribunal to defend the righTtlf °" suit ; for the progress of a suit, once validly commenced in any summon. court, will not be affected by change of residence or country by the defendant : — ' If the defendants had been at the time when the suit ' was commenced resident in the country, so as to have the benefit ' of its laws protecting them, or, as it is sometimes expressed, ' owing temporary allegiance to that country, we think that its laws * would have bound them.' (Blackburn, T., Sc/iibsby v. WestenJwlz). sMbsbyy. Obedience to a \\Tit of summons, or whatever may be the initial l. r. 6 process in an action, being a necessary consequence of residence within the territory of a state, the first form of jurisdiction which lenholz. <. 6 Q. P.. 155- JURISDICTION. 131 Chapter IV. yackson V. Spittal. L. R. s C. P. 542- Blake V. Blake. 18 W. R. 944. Sturlia v. Freccia. W. N. 1877, pp: 166, 188. 1878, p. 161. Mattha-i v. Galitzin. L. R. 18 Eq : 340. Doss V. Sec. /or India. L.R. 19 Eq : 509. we find is that exercised over residents, whether subjects or foreigners. And with regard to this residential jurisdiction the proposition relating to foreign judgments is a perfectly simple one. A judgment pronounced against a defendant resident in the state at the time of service of the writ is good, and will, in virtue of the general theory, be enforced by the courts of another country, when the proper procedure for bringing it before them is put in motion. And this, with the exception in the case of lands situated in a foreign country to be noticed hereafter, is irrespective of whether the cause of action arose in this country or in any other :— ' Though ' every fact arose abroad, and the dispute was between foreigners, ' yet the courts we apprehend would clearly entertain and deter- ' mine the cause if in its nature transitory, and if the process of 'the court had been brought to bear against the defendant by 'service of a writ on him when present in England' (Brett, J., Jackson V. Spittal). This rule is not only applicable to English courts, but to all countries where there is no special regulation (as in France) with regard to suits between foreigners. There have been a few English judges however, notably Vice- Chancellor Malins, who have refused to accept it. In Blake v. Blake he inferred that it was impossible for two foreigners to come here to have their disputes decided. We shall see another example of this, in his refusal to order security for costs where both parties were foreigners in Sturlia v. Freccia, which was afterwards reversed by the Court of Appeal [see p. 194] : and another in his ' judgment in Matthai\. Galitzin [see p. 142] \ and in Doss v. Secre- tary of State for India he enunciated a principle which, although applicable to realty, is not the universal rule :— ' Where there is ' a complete tribunal capable of deciding the question where the ' property is, and where the parties are, that is the tribunal to be 'resorted to.' Although purely elementary it is an important proposition and must not be lost sight of, because it is sometimes asserted (more often certainly by foreign than by English judges), that a court in one country has no power at all over a subject of another country; and it is important, because the converse is equally true, that with cessation of residence, or absence from the territory, comes a cessation of this necessity for obedience to the writ of summons, even in the case of subjects of the country. It is important also in another respect, because it points very forcibly the exact bearing of the principle of appeal just considered. If at the inception of the suit the defendant was by residence Obedience to summons necessary consequence of residence for any period. Irrespective of where cause of action arose. General view of this section of the chapter. 132 DEFENCES. subject to the jurisdiction of the foreign court, it is clear that for chapter the English court to entertain an)' defence, whether it be fraud, ^^• error, against natural justice, or against International Law, it must be arrogating to itself the powers and duties of a Court of Appeal. It is therefore only when we get to the case of a defen- dant not resident within the jurisdiction at the inception of the suit, that the real difficulty should arise. It may be convenient to state at once the object of this section of the chapter : We propose to examine the whole question of jurisdiction, and to point out those cases in which the court has an extended jurisdic- tion, that is jurisdiction over non-resident defendants, and to show that in these cases also the principle of appeal applies. This then is the simple rule of jurisdiction. Necessity But it is very evident that, the subjects of one nation being for extended ^ ' -^ _ . ° jurisdiction, scattered over all parts of the globe, having complicated com- mercial relations with the subjects of other nations, owning property real and personal within the confines of other territories, this rule of itself is insufficient for the proper regulation of business affairs. For were there no other rule in force a subject debtor would be able, by leaving the country before action brought, to evade the jurisdiction of its courts ; an alien after contracting a debt during temporary residence in the country would, by leaving it before a writ could be served upon him, be completely free ; and commercial debts, contracted without even this temporary residence, could not by any means be adjusted by the tribunals This of either country. In each case the creditor could have no redress extended jurisdiction cxcept by falling back on the common law maxim acfor seqjiitur Assumed foTum rct, pursuiug and suing his debtor into whatever country he Jurisdiction. ij c j i. • could find him. Some extension of this simple rule of residential jurisdiction has therefore become very necessary, and it may be considered as well established that there has now been adopted another species of jurisdiction, the principle of which, having been accepted by all nations, has now become part of International Law. This new juris- diction we have termed for convenience Assumed Jurisdiction. ' This point is one of great importance. Besides its application ' to shipping-contracts made in all parts of the world, the daily ' increasing trade with the more adjacent countries of the con- * tinent, in the course of which numerous orders are given abroad, 'either to firms wholly foreign, or to British subjects resident and ' carrying on business abroad, but which orders are to be fulfilled ' in England, makes the question one of the greatest mercantile spittai. 'interest' (Brett, ]., Jackson v. Spittal). c.p.'sV. JURISDICTION. 133 Chapter This assumed jurisdiction is therefore an express variance from Exception ^^- the simple rule, and from the maxim acfor sequitur forum rei ; '^f^j'.^^^^ and it includes all those cases in which the legislature has declared that its courts may summon before it an absent defendant, whether subject or alien. But the difficulty that we have to contend with is, that whereas ip^'i^J,^^ . the fundamental principle may be said now to form part of Inter- co^-^'j^'" national Law, because in some form or other it is to be found in uniform in ' the cases to the laws of all states ; yet there is at present no agreement between which it is . ,. • 1 • i. ii apphed. them as to the extent of its application, that is to say as to the cases to which it shall be applied. The consequence is that although some of these cases may be common to all or to a great number of states, there are other cases in which, each state acting in its own discretion for the benefit of its subjects, there is no common ground between the enactments of the different legisla- tures. This must to a certain extent jeopardise the full recognition of the principle, or at all events tend to limit that recognition to those cases which are universally adopted. We shall endeavour to show that this is not the true doctrine. For the present it is sufficient to say that if it were, its injurious effects would reflect considerably on this country. We propose to point out as we proceed where there is agreement and where difference between foreign laws and our own, without trespassing more than is absolutely necessary on the province of those chapters which will be specially devoted to foreign law. So too the manner in which the summons or notice is to be conveyed to the absent defendant whether subject or alien must vary in different states : but this is a matter to be separately con- sidered in the chapter on ' Service out of the Jurisdiction.' It is [chapter viii.] important however not to allow this minor question to impede in any way our present discussion, which must be considered as an examination of the principles involved, preparatory to the further discussion involving points of practice and construction. The subject will be considered under the following heads : — Domiciliary Jurisdiction— Territorial Jurisdiction— Contractual Jurisdiction— Jurisdiction in actions of tort— Special Jurisdiction — and Company Jurisdiction. i. Domiciliary Jurisdiction. We have said that the rule with regard to simple or residential Domiciliary . . jurisdiction. jurisdiction, that which is created by mere residence or even presence within the kingdom, applies equally to subjects and [c/:- p. ,31.] 134 DEFENCES. aliens : and tliat tlie necessary consequence, if that rule stood Chapter alone, would be that a subject out of the kingdom could not be ^^' brought before its courts even for debts contracted within it. The truth of this is illustrated by the method in which, in former times, this evil was attempted to be remedied by an irregular The old extension of the old system of ' Outlawry.' In a civil suit outlawry process of _ ■' ■' -' outlawry was the punishmcnt inflicted by law on a party, by putting him out of the protection of it, for his contempt in wilfully avoiding the execution of the process of the King's Court. But if he were abroad at the time the exigeiit was awarded, although purposely to avoid the suit or his creditors, he could not be regularly out- lawed, because he could not take cognisance of the process and proclamation against him, their publication not being possible beyond the dominions. Now although an outlawry in such a case was erroneous, and might have been reversed as of right on a writ of error, technically it would not have been an irre- gular outlawry so as to entitle the defendant as of right to have it reversed on motion for irregularity. And therefore the out- • lawry would in general have the effect of attaining the purpose for which it was obtained ; for, in consequence of the delay and expenses occasioned to the defendant by a reversal on writ of error it was not usual to get a reversal by that course. It was more usual to apply to the court on motion to set it aside, and then it would only be set aside on the terms of the defendant entering an appearance if the outlawry were on mesne process, or that he should pay the debt and costs if it were on final process : and generally the defendant was ordered to pay the costs of the application : If however the defendant had an agent in this country who conducted his affairs (unless he were one for a particular purpose and with no power to appear to the writ) the outlawry obtained without application to this agent would be set aside with costs, because the defendant in such a case could not be said to have been avoiding the process of the court. The ordinary forfeiture consequent upon outlawry did not accrue in personal actions, it being only made use of to compel an absent defendant to submit to the jurisdiction of the court. [Chitty's Archbold, 8th ed : 1847; p. 1132 et seq-\ We are left in doubt whether this singular procedure was made use of against foreigners as well as against subjects : however that may be, the errors of principle involved in it must have introduced* vcry forcibly struck the Law Reformers, and in 1852 the Common A«. ' ' ' Law Procedure Act introduced what is now known as Service out JURISDICTION. 13s Chapter of the Jurisdiction : in other words it declared that in certain IV. cases therein specified, special permission would be granted to plaintiffs to serve writs on subjects and notices of writs on aliens, who were defendants out of the kingdom. Section 18 enacted what seems a simple rule, that with regard to British subjects, when the cause of action arose within the jurisdiction (and in one other case) the writ might issue and be served beyond the jurisdiction. Section 19 provided a slightly different procedure in the same cases with regard to absent defendants not British subjects. The Rules of Court 1875, while defining more precisely, as we ^"'*^ °J shall see, the different causes of action in respect of which the leave would be granted, perpetuated the rule that no difference except as to procedure was to be made between subjects and aliens. We believe it to be the universal rule abroad that absent Foreign i; aw. subjects may in all cases be cited: and in some countries this xUi. Sx^vT rule is extended so as to include absent though domiciled ahens, who may in certain cases be cited by residents. Thus in Belgium, foreigners may be cited before Belgian tribunals either by a Belgian or a foreigner if they are domiciled or resident in the kingdom, or if they have elected to be domi- ciled in it. [Code of Civil Procedure, s. 52. ii.] In Italy, foreigners may be cited for engagements contracted in a foreign country if they have a place of abode in the kingdom even should they not be there at the moment. [Code of Civil Procedure, s. 106. i.] In the Canton of Vaud, foreigners may be cited in the cases mentioned in s. 8 of the Civil Code, when, having been domiciled in the Canton, they have no known domicil, if the action be commenced within three months of their leaving the Canton. [Code of Civil Procedure, s. 4. iv.] In the State of New York, the order will be granted in the case of persons not being residents of the State, where the absence from the State is to avoid service or defraud creditors : and where a resident of the State has been continuously without the United States for six months, and has not designated anybody to accept service. [Code of Civil Procedure, s. 438. i. ii. iii.] And now in this country, the Rules of Court 1883, have in part Rules of abolished the old rule, and for the first time have introduced as °"" ' ^" an intermediate class between subjects and aliens, people domiciled or usually resident in the kingdom. Order XI. rule i. (c), provides that the leave for service will be 1 ^6 DEFENCES. given whenever ' any relief is sought against any person domiciled Chapter 'or ordinarily resident within the jurisdiction.' P'irst then as to the persons to whom this rule applies — Persons to '^ Any persou domiciled'': that is, aliens in whom the animus Tppiies^"* revertendi has disappeared, or, who having the animus revertendi, yet are ordinarily resident in the kingdom ; and all subjects who are not domiciled nor ordinarily resident in other parts of the world. The question as to what constitutes ' ordinary residence ' will doubtless necessitate much judicial interpretation. It may W- p- 329] possibly be that a rule based upon section 6 (i) of the Bankruptcy Act of 1883, may be adopted ; that is to say, the defendant must, within a year before the date of the leave to issue the writ, have ordinarily resided or had a dwelling house or place of business in England. Secondly, as to the cases in which it applies. The cases in ' W/ie/iever afiy relief is soug/it' : therefore so far as such persons applies. are concerned there is no limitation to the cases in which they may be served when out of the jurisdiction ; the cause of action need not necessarily have arisen in the jurisdiction. An action on a [c/:-p. 233.] foreign judgment of course comes within the rule. But with regard to absent subjects domiciled or ordinarily resident in other parts of the world, they w'ill only be liable to service in the cases provided by the remaining sub-sections of rule i. The first part of sub-section (d) follows as a logical consequence from this rule of domiciliary jurisdiction. Administra- It provides that the service shall be allowed whenever * the of°de°eased^ ' action is for the administration of the personal estate of any domiciled. ' dcccascd pcrsou, who at the time of his death was domiciled * within the jurisdiction.' But the lex domicilii being the law ap- plicable to the administration of the personal estates of deceased persons, it was of course necessary in this case to exclude the estates of persons 'ordinarily resident' ii. Territorial Jurisdiction. Territorial The second form of jurisdiction which we noticed was that junsdiction. ^yj^j^h arises in respect of property situate within the kingdom. It will be remembered that we said that although the possession Possession of of property created a jurisdiction over the owTier, it does not fmports^ import obedience to the Queen's writ of summons if the owTier to'^v^ifof" ^'ere absent, but necessitates a submission to the writ of execu- execution. ^j^j^ when issued upon it on lawful occasion arising. This jurisdic- IV. JURISDICTION. 137 Chapter IV. Schibsby v. Westenholz L. R. 6 Q. B. 155. Cookney v. A nderson. I D. J. & S. 365. tion extends over real and personal property, and over native and alien owners. The rule however in no wise overrides nor forms any extension of the rule of residential jurisdiction, and the owners of property therefore are not on account of the existence of the property amenable in any suit instituted against them by residents : although, if the suit, once begun against them when temporarily resident, terminate adversely, this property as we have said will be taken in execution. 'We doubt very much ' whether the possession of property locally situated in the country ' and protected by its laws makes the possessor bound : — it should ' rather seem that whilst every tribunal may very properly execute 'process against the property within its jurisdiction ; the existence ' of such property, which may be very small, affords no sufficient ' ground for imposing on the foreign owner of that property a duty 'or obligation to fulfil the judgment' (Blackburn, J,, Schibsby v. Westefihols. ) But it is obvious that suits may arise in connexion with the property so situate within the kingdom, either as to its tenure, or as to its transfer, or with regard to liabilities in respect of it; and it would manifestly be more convenient to have such actions tried in the country although the owner may be non-resident. And as to the law applicable in all actions relating to real property we find a rule of universal acceptance : disputes as to realty wherever situate are to be determined by the lex loci ret sitce. The inevitable consequence of this is that it is the universal practice of nations to assume jurisdiction over absent defendants, whether subject or alien, in all, or nearly all, suits relating to property within the territory. This connexion between the rules of law and service was specially noticed by Lord Westbury, C, in Cookney v. Anderson. In this country the rule of 1875 was that leave to serve the wTit out of the jurisdiction would be allowed ' whenever the 'whole or any part of the subject matter of the action is land or ' stock or other property situate within the jurisdiction ; or any 'act, deed, will or thing affecting such land, stock or property.' By the Rules of Court 1883 the law now stands as follows — Order XL, rule i. Leave will be granted whenever — (a). The whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits) ; or (b). Any act, deed, will, contract, obligation or liabihty affect- ing land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action. The division relates to suits in connexion with property in the jurisdiction. Universal rule to assume jurisdiction in such cases. 1^.8 DEFENCES. Alterations introduced by new rule. Personalty now excluded. Pending judicial interpretation of this new rule we may notice the alterations that have been introduced. The reason for confining (a) to cases where the whole subject matter relates to land is not self-evident ; it may perhaps be to save confusion as to costs : it will necessitate the two parts of the action, which otherwise would have been tried together, being brought separately. With regard to the property itself, the parenthesis ' (with or 'without rents or profits)' has been introduced in conjunction with land : but the most important change is the omission of ' stock or other property,' by which actions relating to personalty situate within the jurisdiction have been excluded from its operation. The reason for this change is not obvious. It may possibly be found in the absence of any such universal rule relating to per- sonalty as exists in the case of realty. The maxim usually applied to personal property is inobilia sequuniur personmn, but the truth of it, as Mr Westlake points out [International Law, 2nd ed : chapter vii], may well be doubted ; it is certainly not true to say that the law of the place where the person is affects all his moveable property wherever situate. In truth the difference between real and personal property in this respect is very great : for whereas in actions relating to realty there is, as we have said, but one law applicable, that of its situation ; in actions relating to personalty the law applicable depends, not on the nature of the property, but on the nature of the action. Thus there are cases in which the lex domicilii of the owner determines the dispute ; as between the representatives of the deceased : there are cases in which the lex loci contractus determines it ; as between parties to a contract dealing with the property : there are cases in which the lex loci rei sitce determines it ; as in actions of trover or detinue : and there are cases in which the lex fori determines it ; where the laws of procedure override all other laws. But even if this be the reason, it does not satisfactorily account for the omission of actions relating to incorporeal property in the jurisdiction ; and this omission is likely to work considerable hardship. Take for example an infringement of an English copyright, the whole piracy having been consummated in this country by a foreigner who afterwards leaves it ; the owner of the copyright would be unable to sue in England, except for an injunction. The alterations in (b) are verbal amplifications of the old rule. Chapter IV. JURISDICTION. 139 Chapter IV. Cood V. Cood. 33 L. J : Ch : 273. Munroe v. Douglas. 4 Sandford, 126. Mostyn v. Fabrigas. 1 Cowp : 161. Buows Ay res Ry : v. Northern 0/ Buenos Ayres Ry : 2 Q. B. D. 210. Norton v. Florence Land Co : 7 Ch : D. 332. Pike V. Hoar. 2 Eden 182. Pitts V. La Fontaine. 5 App : ca : 564. Let us now consider a little more fully the nature of this terri- torial jurisdiction with regard to real property. That the principle thus embodied in this rule of English law The ought to be recognised when it is also the law of a foreign state was onhe m°r admitted by Romilly, M.R., in Cood v. Cood; and with regard to ""^^^"y- foreign judgments proceeding on such a law their complete recog- nition in other states follows as a matter of course. This doctrine cannot be expressed in better terms than in the headnote to the very elaborate American report of Munroe v. Douglas [New York], which is adopted by Story [Conflict of Laws, § 591]; 'A judg- ' ment of the forum rei sihe respecting land or other immoveable judgment of 'property is of universal obligation, and absolutely conclusive as-^^^'^^^f'" ' to all matters of right and title which it professes to decide : and "bi7 ^^^^ * is equally conclusive in respect of the proceeds of such land in ^^'/Jj^'' 'whatever country the same may afterwards be found.' The last 'obligation' ■' ■' _ _ evidently sentence is important, and would seem to be a legitimate exten- f^o"''! ^^. , ■^ _ _ _ " recognition sion of the doctrine, as it incorporates the equitable principle of <"/■ p- ^so-J conversion ; always supposing that this principle is recognised abroad. From this the rule of defence may be deduced, that where the simple rule foreign court has no jurisdiction over the thing, as it is commonly whtre'^court expressed, the foreign judgment will not be recognised : in other jlfrkdiction words if a court pronounces a judgment affecting land out of its °hfng'^® jurisdiction, the courts of the country where it is situated, and it is presumed also the courts of any other country, are justified in refusing to be bound by it, or to recognise it ; and this even if the judgment proceed on the /ex loci rei sitce \cf : Story, Con- ^/(^ry § 591. fiict of Laws, § 591]. This rule is to be found in most of the foreign codes ; and it was expressly declared to be the practice of the English courts to decline jurisdiction in suits relating to The English realty abroad, although the defendant be within the jurisdiction, decUne in Mostyn v. Fabrigas : by Mellor, J., in the Buenos Ayres Ry : Co : input's "°" V. T/ie Northern Ry : Co : of Buenos Ayres : and again by Jessel, foreign^iLnd. M.R., in Norton v. Florence Land Co : — 'The English court has ' no right here to determine questions between foreigners relating ' exclusively to immoveable property in their own country ; it ' must always consider whether the foreign court is not the proper ' tribunal.' \cf: also Fike v. Hoar : Pitts v. La Fontaine^ This is the case to which we referred on page 131, as forming an exception to the rule that all suits between foreigners will be entertained in this country. The use of the word 'foreigners ' by Jessel, M.R,, leaves us in 140 DEFENCES. Query whether rule solely applicable to foreign owners. Chapter IV. But it will not decline it in certain suits. Action for rent of foreign premises. some doubt as to the course which would be pursued with refer- ence to real property situated in a foreign state belonging to an English subject. It would seem however that the rules, depending ' on the position of the property rather than on the nationality of the owner, would apply equally to whatever country the owner belonged. In re Holmes a demurrer to a petition of right, claiming a title re Holmes to certain lands in Canada against the Crown, was allowed. 527- In Blake v. Blake a plea to the jurisdiction was allowed, the i^^'^e v. Blake. action being in respect of a contract relating to land in Ireland : is w. r. and in Beiner v. Marquis of Salisbury a bill of discovery, in aid of Reiner v. ■ii-T-: Biain, Tc Smvefs, expounded the prmciples upon which an absent alien defendant 12 ch: might with justice be summoned before the tribunals of a foreign state in respect of contracts : — ' An English statute is only ap- ' plicable to English subjects or to foreigners who by coming into ' this country, whether for a long or for a short time, have made * themselves during that time subject to English jurisdiction. * The English law has a right to say to any one. If you make a * contract in England, or commit a breach of a contract in Eng- ' land, under a particular Act of Parliament particular procedure ' may be had by which we can effectually try the question as to ' that contract and that breach, and with regard to any property ' you may have in this country we may give execution against ' that property : and further, if the foreigner being served with a ' writ under the provisions of the Judicature Act, does not choose ' to appear, the Legislature is right in saying, If you do not appear ' you will commit a default in that way, and we will give judgment * against you. To what extent the decision of such a question, or ' whether that judgment would under such circumstances be recog- ' nised by foreign tribunals, as being consistent with international ' law and the general principles of justice, is a matter which must ' be determined by them.' The rule We proposc for the sake of convenience to consider this ques- ofi875 . _ , . considered, tiou on the basis of the rule of 1875. Contracts In the first place that rule related to actions arising out of con- v'.K. '" tracts made within the United Kingdom. The general theory on which this assumption of jurisdiction Biackburti, is bascd was considered by Blackburn, J., in ■5V/;/Z'i'^j^ v. Westen- sMbsbyw. holz: — 'If at the time the obligation was contracted the defen- l. r. 6 '''^' ' dants were within the foreign country, but left it before the suit '' '"' JURISDICTION. H7 Chapter IV. Sic he I V. Borch. 33 L. J: Ex: 179. AUhnsen v. Malgarejo. L. R. 3 Q. B. 340. Jackson v. Spittall. L. R. 5 C. P. 542. ' was instituted, we should be inclined to think the laws of that ' country bound them.' Of course the interpretation of the con- tract would be governed by the lex loci, but the learned Judge goes further : the making a contract in a foreign state under the auspices of its laws, is a ^//(7i-/-submission to those laws which relate to contract, among which may be one giving a right of action to either party in its courts. The English law, as we have seen, adopts this principle : the above dictum enunciates the more general doctrine that, wherever a state authorises an absent de- fendant to be summoned before its courts in suits relating to contracts made in that state, the judgment in such suit will be recognised. Taking a practical view of the question, if the con- tract came before the courts in any other country all questions would be determined according to the lex loci contractus ; there can therefore be very little difficulty in accepting as conclusive, and in enforcing a judgment emanating from that country. In the second place the rule related to actions arising out of Contracts contracts wherever made : that is, if there were a breach within made^^^'^ the jurisdiction of a contract made abroad, the absent defendant might be summoned to appear in this country. This was formerly a much-vexed question among the Judges, not only as to whether the Common Law Procedure Act allowed it, but also as to the soundness of the principle. In Sichel v. Borch, the Court of Exchequer held that the whole The cases cause of action must have arisen within the jurisdiction ; and that ruie^is based^ therefore where the contract was made abroad and the breach occurred in England, the case was not within the statute. In Allhiisen v. Malgarejo, the Queen's Bench upheld the same doctrine. Lush, J., saying expressly that 'cause of action' was a comprehensive term, including every circumstance which goes to make up a contract and a breach : — ' If a foreigner comes here ' and makes a contract in this country, and there is a breach ' abroad, he can be sued here, but if the contract be made with a ' foreigner abroad and the breach takes place here, he cannot be ' sued.' But \n Jackson v. Spittall, the Court of Common Pleas decided that the intention of the act clearly included this case. The con- tract was made in the Isle of Man : the breach occurred in Man- chester. It was argued on the lines of the two decisions just quoted that ' cause of action ' meant whole cause of action, that is, contract and breach ; and that although a breach out of the jurisdiction of a contract made within was sufficient for granting 148 DEFENCES. the leave, yet the converse case, a breach within the jurisdiction chapter of a contract made without, was not. But, as the Court pointed ^^■ out, this involved the term ' cause of action ' being used in two different senses ; in the one case meaning the whole, contract and breach ; in the other, breach only. ' Cause of action ' means, not only in a popular sense but also in a legal sense, ' the act on ' the part of the defendant which gives the plaintiff his cause of ' complaint ; ' and this view is emphasised by the manner in which the rule of 1883 has been worded. Contiict In Vaughan v. IVeldon, the same question once more arose in Vaughan v. couru!" the Common Pleas ; and in consequence of the conflict between l. r. 10 the courts, a conference of Judges was held : the result was that " ' ^^' Lord Coleridge, C.J., announced ' that the majority of the judges ' were in favour of following the decision of the Court of Common ' Pleas : that the judges of the Court of Queen's Bench, though ' still remaining of the same opinion as before, had for the sake of ' conformity agreed to be bound by the opinion of the majority, ' and that consequently all the Courts would act upon the decision 'in Tackson v. Spit tall. ^ Jackson v. •^ . , , . . .Spittall. This decision seems to us to be more than an interpretation ol l. k. 5 a disputed point under a statute ; it seems rather to be the enun- ' ' ^''^' ciation of the principle that such an assumption of jurisdiction is sound : and such the Legislature treated it by sanctioning its admission in Order XI, and thus declaring it to be the law of England. The ground upon which the doctrine rests is quite independent of those considerations arising out of the law of contract which support the former proposition : it might indeed very well exist even though that proposition were abolished : it depends simply on the fact of an act having been done within the jurisdiction, which act gives a cause of complaint to another person : it may be said to be another form of the main principle of the Common Law Procedure Act, which gave the remedy for any cause of action arising within the jurisdiction, the simplicity of which has not been perpetuated. It will not be forgotten that the contract will still be construed according to the lex loci contractus. A verbal modification of the rule has been introduced by the The rule of 1883 is a Rules of Court, 1883. Whereas formerly all contracts were verbal ... modification apparently included, subsection (e) now limits it to those 'which, of the rule ^^ ^ , ^ i i r i • i • i of 1875. ' according to the terms thereof, ought to be performed withm the 'jurisdiction,' and this applies to both parts of the above discus- sion, that is to say both to contracts made within and those made JURISDICTION. 149 Chapter without the jurisdiction. It will be seen at once that this is IV. nothing more than a verbal change, because the breach, or absence of performance, of a contract must evidently occur at the place where the performance was intended. A very great extension of these rules relating to contracts will be noticed in section v. (b), where there are several parties to the W- v- 151I contract, some only of whom are abroad. It is unnecessary here to refer to the old authorities which have Different been collected and reviewed by Story in his Conflict of Laws, jurists as to [§ 531 et seqP\, on the three places of jurisdiction known to the in cases of civil law in respect of contracts : that is to say, forujn domicilii — '^sZly'^ ' the place where the defendant has his domicil, or the place where ^ ^^'' he had it at the time the contract was entered into ; forum rei sitce — the place where the subject of the contract was situate ; forum rei gestce or forum contractus — the place where the contract was made or was to be fulfilled, or where any other act was done if the defendant or his property could be found there, although it was not the place of his domicil ; suffice it to state that the con- clusion at which the learned American jurist arrives goes no further than the simple rule of residential jurisdiction, and omits alto- gether the questions of assumed jurisdiction which we are now discussing. We venture to rest this, as also the other questions involved in this difficult problem, on higher ground, and assuredly the law of England must do so too : but it is remarkable that this is unnoticed by judges who view with disfavour similar enact- ments by foreign states. It will be seen that with regard to this question of contractual jurisdiction England is by no means less advanced than other nations. In France [Civil Code, ss. 14, 15] and Portugal [Civil Code, Foreign law ss. 28, 29], the rule resembles that of the English rule of 1875, ^^^^^ ^^ ^"^ except that it is limited to contracts entered into by foreigners with subjects. In Italy [Code of Civil Procedure, s. 105 (ii)], the rule is limited to obligations arising out of contracts entered into in the kingdom, or those entered into out of the kingdom, but to be executed within it. In Germany [Code of Civil Procedure, s. 29], the rule is limited to contracts to be performed in the kingdom. In Belgium [Code of Civil Procedure, s. 52 (iii)], the absent defendant may be served if the obligation giving rise to the cause of action arises, has been or will be executed in the kingdom. 1 50 DEFENCES. In the Ionian Islands [Civil Code, s. 8], he may be served Chapter • • • IV when the obligation has been contracted with an Ionian in the island. In the Netherlands [Code of Civil Procedure, s. 127], he may be served when the suit relates to obligations contracted with a subject in or out of the kingdom. In Spain [Civil Code, s. 98], foreigners out of Spain ' are ' subject to the laws of Spain and to the Spanish tribunals for the ' fulfilment of obligations contracted by them in Spain, should they * be in favour of Spanish subjects.' In Geneva [Law of Dec: 5, 1832, s. 60 (iii)], 'the courts of ' the Canton assume jurisdiction over non-resident foreigners in ' respect of obligations contracted by them with persons domiciled ' in the Canton.' iv. Jurisdiction ex Delicto. Jurisdiction Under the rules of 1875, jurisdiction was assumed whenever any of tort. ^" act for which damages were sought to be recovered was done within the jurisdiction. Under this clause, which was much involved owing to the rule with reference to injunctions having been mixed up with it, persons, whether subjects or aliens, were liable to be served when out of the jurisdiction, in respect of torts committed within. Change This clausc docs not appear in the rules of 1883 ; but assumed byThe"ntw jurisdiction in respect of torts still remains under the provisions of rule I (c), which as we have seen creates the jurisdiction where any relief is sought against any person domiciled or ordinarily resident within the jurisdiction : this therefore includes causes of action in respect of torts wherever committed. The change of principle is very remarkable : whereas formerly jurisdiction was assumed in respect of the act, it is now assumed in respect of the person committing the act. For the rules for determining by which law any act is to be adjudged tortious or not the reader is referred to Mr Westlake's Treatise on Private International Law, 2nd ed:, chapter xi, ' Torts ' — where the whole subject is very fully discussed. There do not seem to be any corresponding rules in the foreign codes. It is presumed however that the rule of reciprocity laid [c/v chapter down in the Italian Code of Civil Procedure, s. 105 (iii), would be applied in the case of a tort committed in Italy by a non- resident Englishman, domiciled or ordinarily resident in that country. JURISDICTION. 151 jy ^^ V. Special Jin-isdidion. Two subsections of Order XI rule i, (f) and (g), remain to be Special . . , , , ..... . . jurisdiction. considered : as they are somewhat special in their nature it is convenient to group them together under the above head. (a). Ill the matter of Injutictions. Subsection (f) provides that the service will be allowed when- injunctions. ever 'any injunction is sought as to anything to be done within * the jurisdiction, or any nuisance within the jurisdiction is sought ' to be prevented or removed, whether damages are or are not ' also sought in respect thereof.' This is substantially the same as the rule of 1875. This provision would at first sight appear to be at variance with what has already been said on the subject of injunctions and their purely territorial effect, although the act restrained was in some \cf: chapter cases the bringing a suit in a foreign court and might even in such "' cases be addressed to foreigners. But the acts or nuisances to which it refers are those which have been committed, or are expected to be committed within the jurisdiction. An injunction being obtained by action commenced by writ in the ordinary way, it was obviously necessary to provide for cases where the defendant was abroad. If the act were being done by his agents presumably the injunction would be directed so as to restrain them ; but even if it were not, the provisions of this sub- section seem to cover every case that can possibly arise. Although the injunction cannot be served abroad, even on a subject, yet it will not from this fact be deprived of vitality : and if the defendant should afterwards come within the jurisdiction the injunction to prevent when served upon him will be immediately operative. Therefore so far as its provisions directed to prevention are concerned the rule is complete. But with regard to its provisions directed to to remedy cure the same cannot be said : it is however presumed that if, by reason of the continued absence of the defendant, the injunction be incapable of being served, the court would itself enforce its order, by directing the removal of the nuisance. (b). In the matter of Co-Defendants. Subsection (g) provides that the service will be allowed when- co-defend- ever ' any person out of the jurisdiction is a necessary or proper ^"'* * party to an action properly brought against some other person ' duly served within the jurisdiction.' This rule is quite new : it extends the rule as to contracts. 152 DEFENCES. incorpora- presumably incorporates with Order XI so much of Order XVI Chapter o°rde°rXVi. as appUcs to the joinder of defendants. It clearly cannot apply ' to the joinder of plaintiffs ; but may possibly include the service of an indorsed counter-claim on a new party to the action. [See page 221.] As to third party notices, see page 230. The operation of the rule may work some injustice unless it is used with great care : For it must in many cases bring absent defendants before the court who would not be liable, under the other subsections of the rule, to be served with the writ out of The rule the jurisdiction. For example, under Order XVI, rule 6, 'the Mnl^ °'''^' 'plaintiff may, at his option, join as parties to the same action all ' or any of the persons severally, or jointly and severally, liable on 'one contract' : the contract itself may not fall within Order XI, rule I (e) ; but from the fact of one of the parties to it being within the jurisdiction and therefore capable of being served, all the other parties may be joined as defendants to the action, and are therefore ' necessary or proper parties to the action,' and so within rule (g). The guarantee for the due administration of the rule however seems to lie in the strict interpretation of the word ' properly ' : The decision, referred to in France, in the case of Helstcin v. Hehtdnx. Shaffauser and Waddington, might very reasonably be taken as a j/d.T p!^' guide in this interpretation: the parties within the jurisdiction' °'P-474- should not be made defendants for the express purpose of bringing the absent parties within the rule. But the convenience of the rule is manifest, for the question between the parties is once and for all decided ; but it is a great stride beyond the hitherto recognised rules of assumed juris- diction. The passing of such a provision however rests, as we shall hereafter contend, entirely in the discretion of the Legis- lature ; we would only now point out that it is a great advance on the previous rules ; and that its effect on English subjects may possibly have to be considered at some future date, should it be copied into any of the foreign codes. vi. Coinpatiy Jurisdiction. Company Wc have now to notice a peculiar form of assumed jurisdiction juris iction. ^^.^j^ ^^^^ ^^^ ^^^^^ within the province of Order XI, namely, the jurisdiction of English courts over non-resident shareholders in English companies. In the first place with regard to orders for calls on foreign contributories. [cf: P.44S.] JURISDICTION. 153 Chapter Section loS of the Winding Up Act, 1848 (11 & 12 Vic: c. 45), q^^^^^^ provided that the service of notices, summonses, &c., on such ["""^uforieT" contributories out of the jurisdiction might be effected by post. But the Companies Act, 1862, does not contain any similar pro- vision. This method of service was however perpetuated by the re General dccision of the court in re the General Internatiotial Agency Co:, Agency Co: 15W.R.973. — 'The makmg the call would be only the foundation of pro- ' ceedings in the courts of law abroad to compel payment of the ' call when made, and of course in those proceedings the question ' might be raised whether the service so effected was good or not ; ' but to warrant the mere making of the call the court was of 'opinion that the service by post would be sufficient' So in re Land re the Land Credit Co: of Ireland, where the notice of the call Ireland. had bccn made by post, a balance order to enforce payment 01:389! of the call was made by Romilly, M.R., 'subject to any objections ' which the shareholder might take,' presumably as before in the proceedings abroad to enforce the order. It will be useful to notice here the English procedure with regard to enforcing payment of calls against contributories. A summons stating the proposed amount of such call is to be English served at least four clear days before the day appointed for making enforcing °^ the call on every contributory proposed to be included in it, caU^^"' ° notifying the intended application to the Judge to make the call. The Judge may direct that notice of the intended call shall be made by advertisement. When the Judge has made the order, which is for payment of the call into the Bank of England to the account of the official liquidator before a certain day, a copy is to be forthwith served upon each of the contributories together with notice from the official liquidator specifying the amount or balance due from such contributory. This notice con- tains full instructions as to the manner in which the payment is to be made. On a summons to enforce payment of the call duly served, and upon proof of the service of the order and notice of the amount due, and of non-payment, an order, called a balance order, may be made ' for such of the contributories who have made default ' to pay the sum which by such former order and notice they were 'respectively required to pay.' [Rules of Nov: 1862, 33, 34, 35.] It is to the service of these summonses and orders that section Service of 108 of the Winding Up Act, 1848, referred, and to which rule 63 and orders. may now be said to apply, and indiscriminately to contributories within or without the jurisdiction. 154 DEFENCES. Coniri- butories domiciled or ordinarily resident in England. English subjects. Foreigners. Foreign judgments for calls against English share- holders. Agreement in articles as to submission to particular tribunal. We have here two orders of the court, the original order and the balance order, and in case of a default by a contributory abroad proceedings on either of them might be taken before a foreign tribunal. With regard to contributories abroad who are domiciled or ordinarily resident in England, it is presumed that, if there is any object in so doing, these orders might be further supple- mented by proceedings in an ordinary action, leave being given to serve the writ out of the jurisdiction under Order XI, rule i (c). The question however which at present concerns us is the effect of these orders abroad. It can hardly be possible that any objection to the service would be entertained by the foreign court when the contributory is an EngUsh subject; the question is therefore narrowed down to foreign contributories. With regard to the service of the summons and orders by post it may perhaps be said that more care should be taken to ensure personal service on foreign shareholders, and that the procedure of Order XI should be adopted. But it must be remembered that although as a matter of course all persons interested are entitled to attend on the hearing of the summons to offer objections to such call, there is very little which can be raised at all in the nature of a defence to the order or decree of the court, and the provisions seem therefore amply sufficient to ensure justice being done. We have been unable to discover any reported cases in which foreign orders corresponding to these have come before the English courts to be enforced. The question as to the recog- nition of such orders was however, virtually decided by the Privy Council in Leishman v. Cochra^ie, in which that tribunal upheld a judgment from Mauritius enforcing an order of the Supreme Court of Calcutta on a shareholder, resident in the island, for contribution to an Indian Company. There are two cases how- ever in which foreign judgments against English shareholders for payment of calls have been enforced. The most important is Copin V. Adamsoji. In that case, there was a provision in the French company's articles, under which the shareholders agreed that all disputes which might arise during the existence of the company, or during its liquidation, should be submitted to the jurisdiction of the Tribunal de Commerce of the Department of the Seine, process being left at a domicile to be elected for him should he fail to elect one himself. The Court of Appeal, affirming the decision of the Exchequer, decided that the existence of such provisions Chapter IV. Leishman v. Cochrane. 12 W. R. Cnpin V. Adatnson. L. R. 9 Ex: 345;[onapp:] I Ex: D. i7_ lURISDICTION. 155 Chapter IV. Vallee v. Diimetgne. 18 L. J: Ex: 398. Cophi V. Adamson. I Ex: D. 17. Bank of A ustralasia V. Harding. 19 L.J: C. P. 34S. amounted to an agreement on the part of every shareholder, whether a subject of the country, or a foreigner, to be bound by a judgment so obtained. The principle here enunciated is, that a direct submission will render the shareholder liable to obey a judgment of any tribunal given in accordance with such submission : and that he is without doubt bound by all the statutes and provisions of the company. In Vallee v. Dumergue a similar point was decided. The defendant was a shareholder in a French company, and by French law every person is bound on becoming a shareholder to elect a domicile for all purposes of the company, and at which all proceedings in connexion with the company may be left. The defendant had conformed to this law by electing a domicile ; and it was held that having agreed to accept a peculiar form of notifi- cation, he was bound by the judgment. The submission here was not to the statutes of the company but to the law of the foreign country. But a much wider question remains to be considered. In Copin v. Adamson, Lord Cairns, C, said: — 'The question ' might arise whether, without any express averment (of consent ' by the shareholder), by the law of France as by that of every ' civilised country, the shareholder would not be bound by all the ' statutes and provisions of the company in which he was a share- ' holder • but that question not arising here I say nothing more * about it : ' and it may be added, not only by these statutes and provisions, but also by the whole of the law of the foreign country applicable to, and under which the company has been formed. The point was not considered in the Court of Appeal because error was brought on the decision of the court below only with reference to the first replication, which dealt with the shareholder's express submission ; but in the Exchequer the opinion of the judges was divided as to the second replication, which raised this question of impHed submission, Amphlett and Pigott, BB., holding it to be bad, Kelly, C.B., dissenting. The group of cases which we have already considered [p. 22] and of which The Bank of Australasia v. Harding may be called the typical one, was relied upon in argument as being an authority in favour of the proposition. But the learned Barons refused so to consider it because the Colonial Statute had been obtained at the instance of the company, and the defendant therefore, although not necessarily a shareholder at the time of the passing of the Act, was to be considered as a consenting party to its provisions, and Submission to the foreign law. Is the share- holder bound by the foreign law without express submission ? Application of company cases already considered, p. 22. 156 DEFENCES. The share- holder should be bound. French decisions. Practical consequence of opposite rule. therefore Ijound by them. ' In the absence of sucli consent it ' seems to us that the court would have come to a contrary 'conclusion.' The learned Chief Baron dissented from this narrow view of these important decisions, and based his opinion of them on the judgment of Talfourd, J. : — ' The answer to the ' defendant's plea that he was non-resident and had no notice, is ' that the defendant was a member of a partnership carrying on ' business in the colonies, and was contented to leave his property ' there to be regulated by the law of the colony.' This appears to us to be the true principle of the decisions, and indeed the only view which can be taken of the case. But even were the decision limited in the manner the other judges contended for, their inference from such limitation, that the absence of such consent would have necessitated a contrary decision, is hardly warranted without further argument in support of it. ' Can it be said,' said Amphlett, B., 'that an Englishman, ' who buys a share in a foreign company on the London Stock ' Exchange, thereby becomes necessarily bound by any decision ' to which the foreign tribunal may come upon a matter affecting ' his interests ? ' The answer to the question seems obviously, yes, so far as those interests touch the company in question. And this is exactly the prerogative assumed by English law over foreigners who have bought a share in an English company upon, say, the Paris Bourse, so long of course as the name of the purchaser appears on the register. In two cases however. The Floating Dock Co: v. Cezard and the St. Nazaire Co: v. Allair, the courts in France refused to recognise the orders made in England on French contributories ' pour paiement du montant de leur souscriptions.' In the former case the ground of the refusal was that the defendants had not obtained before the Master of the Rolls the guarantees of ' a serious ' defence : ' in the latter that a foreign court cannot adjudicate ' en matiere personnelle et mobiliere ' against a Frenchman domiciled in France. [These cases will be found more fully set out in chapter xiii, under ' France.'] \n Jamieson v. Robb [Victoria], a Scotch judgment obtained by the liquidators of a Scotch company against a shareholder resident in Victoria, notice having been given under the Companies Act, 1862, was enforced by the colonial court. It seems to us that the proposition for which the Lord Chief Baron contended is an absolute necessity. Were the opposite rule to prevail and to become settled law, directors of companies Chapter IV. Floating Dock Co: V. Cezard. J. D. I. P. 1880, p. 105. St. Nazaire Co: V. A Hair. J. D. I. P. 1882, p. 306. Jamieson V. Robb. 7 Vic: L. R: L. 170. JURISDICTION. 157 Chapter IV. in every country would be compelled to send ' letters of regret ' to all foreign applicants for shares, Stock Exchange committees would have to pass stringent rules with regard to all sales of shares in domestic companies, and thus a severe blow would at once be struck at the very roots of the world's commercial prosperity. Schibsby v. IVestenholz L. R. 6 g. B. 155. We have now noticed all the cases in which according to English law an absent defendant may be summoned before the English courts, noting shortly by the way the foreign laws on the subject. It becomes necessary to devote some little space to the consideration of the general question involved in the as- sumption of jurisdiction. We must revert to the argument contained in the concluding pages of the first part of the first chapter, the discussion of the principle ^jt{s for jus.^ That argument as we then pointed out was in conflict with the doctrine laid down in Schibsby v. IVestenholz. General considerations led us inevitably to the conclusion that within due limits every state must pass such laws, as in its discretion seems fit, which must in their operation affect foreigners who are not, and who perhaps have never been within its territory, but who have had relations with residents in that territory. Of this doctrine we found an illustration in two decided cases on bankruptcy : we pointed out its bearing on a case of frequent occurrence in general law : and we further found a group of cases relating to companies in which it was manifestly involved. In some of these cases indeed there was a recognition of the right accorded by the foreign law to sue in the foreign country an Englishman not within its dominions. The principle then deduced from the cases seems to be identical with the conclusion from an argument based on general considerations. We venture therefore to think that the true rule must be, that a state has a discretion vested in it to declare in what cases absent defendants whether subjects or aliens shall be summoned to its courts. That, all states having that discretion vested in them, all other states will recognise the due exercise of it, and enforce a judgment delivered in accordance with it, even though it be against one of their own subjects. This rule as we have said conflicts with the maxim actor scqiiitur forum rei : but that maxim can no longer be said to exist in its integrity, for every country has introduced exceptions to it. It seems strange that the country which has itself incorporated the most important and numerous of these exceptions should be one Return to general subject of jurisdiction. \cf: p. 20.] The discretion vested in every state to pass such laws is a necessity. And all other states should recognise the e.xercise of the discretion. The old maxim no longer exists in its integrity. 158 DEFENCES. Judgment of Blackburn, J., in Schibsby v. Westenholz fully con- sidered. [c/.-p. 19.] Instances given in which such laws might be passed. of the most prominent in denouncing their existence in the laws of other nations. We must now turn to the fuller consideration of the case we have so repeatedly quoted, Schibsby v. WesteiiJiolz. One of the arguments on which our contention has been based seems to have been before the Court : — ' We were much pressed,' said Blackburn, J., ' that the British legislature has, by the ' Common Law Procedure Act, conferred on our courts a power ' of summoning foreigners, under certain circumstances, to appear, ' and in case they do not, giving judgment against them by default. ' It was this consideration principally which induced me at the ' trial to entertain the opinion which I then expressed and have ' since changed.' The reason for this change is declared to be that if there were any such thing as the supposed comity, ' we 'could hardly decline to enforce a foreign judgment given in ' France against a resident in Great Britain under circumstances ' hardly, if at all, distinguishable from those under which we, ' mutatis vmtandis, might give judgment against a resident in ' France.' We have ventured to point out what we conceive to be the fallacy contained in this argument, which was said by the learned judge to resolve itself into the one question which was put so trenchantly by Lord Ellenborough, C.J., in Buchanan v. Rucker, 'Can the Island of Tobago pass a law to bind the rights of ' the whole world ? ' : ' Can one nation pass a law to bind the whole ' world ? ' 'We admit, with perfect candour, that in the case of a judg- ' ment obtained in this country against a foreigner under the ' provisions of the Common Law Procedure Act, being sued on in ' the courts of the United States, the question for the court of ' the United States would be. Can the Island of Great Britain ' pass a law to bind the whole world ? ' The answer to this question is then given : — ' No, but every country can pass laws to 'bind a great many persons; and therefore the further question ' has to be determined, whether the defendant in the particular ' suit was such a person as to be bound by the judgment which it ' is sought to enforce. ' Instances are then given in which the learned judge considered that such laws would have been legitimately passed, and the defendant, as one of the ' great many persons,' subject to them. But these instances, for the judgment did not profess to interpret English law but rather to criticise it, being sound must rest on International Law, in other words on the consent of nations to Chapter IV. Schibsby v. Wesienholz. L. R. 6 Q. B. 155. Biichaiiaji v. Riccker. 9 East 192. JURISDICTION. 159 Chapter recognise the laws on which they proceed. The last instance cited demands special notice. The principle enunciated is that an absent IV. debtor may be summoned for debts contracted in the country. Debts Dortgias v. It is given on the authority of Douglas v. Forrest. This principle the countrj'. 4 Bing: 686. at that time did form part of English law, but as we have said, has now disappeared. But that case was an action on a Scotch judgment given in an action commenced according to Scotch law, the absent defendant having been summoned at the Market Cross of Edinburgh, and at the pier and shore of Leith. And it is most curious to note that Chief Justice Best based his decision on the fact that the Scotch law, in declaring absent defendants liable to be summoned to the Scotch courts in certain cases, resembled English law in the custom of Foreign Attachment : the very argument that Lord Blackburn rejects. This list of instances being considered exhaustive, and 'everyone of the suppositions ' contained in them being negatived in the present case ' (that is to say, the present circumstances not corresponding with those of any one instance) the Court refused to recognise the French judgment. The first impression left on the mind after a careful perusal of this judgment is, that the argument has come to a very abrupt conclusion : and this abruptness we venture to think shows its incompleteness. The learned Judge himself admitted the impor- tance of the consideration we have brought forward, for he himself acted upon it at Nisi Prius : for the change in that opinion we naturally look for an exhaustive argument ; but it rests simply on the fact that there is no precedent. Being therefore a case primce impressionis it is much to be regretted that the Court did not consider whether this assumption of jurisdiction, not in the specific case by France alone, but generally by all countries, is sound. But the principle is acted on by all countries, and therefore The prind- . , , - _ pie is acted It has, we venture once more to repeat, become a part of Inter- on in aii national Law; and as such, with the greatest submission, we think "^ that the general doctrine should have been recognised rather than a hst of isolated instances given. Warrenerv. What we conccive to be the true principle was enunciated by 8 Q. B. 407. Draper, J., in JVarrener v. Kingsmill [Upper Canada] : — ' We are 'bound to assume that the course of action was of the proper ' jurisdiction of the foreign court, for they have entertained and ' adjudicated upon it. Nor can we assume it to be beyond 'their jurisdiction, because the alleged trespass took place without ' the territory over which that jurisdiction extended j for if we i6o DEFENCES. The principle itself, and not the instances in which there is agreement, is a rule of Interna- tional Law. Effect of appearance. The im- portance of the question depends on which theory of juris- diction is adopted. 'assume that fact to have been known to them, their having given Chapter 'judgment must be taken prima facie as proof that by their law ' they had jurisdiction in such a case,' — and this in fact was recognised by Blackburn, J., in Taylor v. Ford \cf: p. 130]. i^rd^^' But the cases in which it is exercised differ in every state. ^^ ^^- ^- ^t- It may of course be said that the International Law on any subject can only be that law wliich is common to the laws of all nations, and that whatever is in excess of that is a violation of International Law : and that therefore, in the case of assumed jurisdiction, only those instances of it can be called part of the Law of Nations which are recognised and adopted by all states. This is sound : but we venture to think, more especially as this law in every state is liable to frequent alteration (as the recent changes in our own rules testify) that the larger doctrine which we have advocated is also sound and must ultimately prevail, that, not the common instances in which the principle is adopted, but the principle itself now forms part of International Law ; and that till a consensus of opinion is arrived at, the instances in which it is so adopted must in every case be left to the discretion of the several states. Effect of Appearance. There remain to be considered a few cases which may con- veniently be grouped under the head of effect of appearance. In other words, under whatever form the foreign court has decided that it has jurisdiction over the defendant, will he by appearing in the action have waived his right to raise a defence attacking the jurisdiction of that court. It must be noticed that these cases all proceed on the assumption that there is such a right, and that the question whether or not the foreign court had jurisdiction should always be considered by the English court when it is raised by the defendant. If we deal with the question on the hypothesis of the decision in Schibsby v. Westenholz, the question has of course an important scMbsby v. bearing on the subject : if however we proceed on the hypothesis L^R^^'g'''"'^' of the view of the law which we have ventured to put forward, its ^- ^' '^s- importance is somewhat diminished. We have however noted one remarkable Italian case in which not the law of the country, but the lex retorsionis was expressly applied in the assumption of jurisdiction \cf: pp: 116. 175]. We shall find also, under the head of Violation of Natural Justice, that the foreign procedure against non-resident defendants may, though in a very limited way, be EFFECT OF APPEARANCE. l6l Chapter IV. Schihshy v. IVesienholz. L. R. 6 Q. B. iss. Novelli V. Rossi. 2 B. & Ad: 757- Brissac v. Rathbone. 3oL. J: Ex: 238. Molony v. Gibbons. 2 Camp: 502. expz Robertson, re Morton. L. R. 20 Eq: 733- Simpson v. Fogo. 32 L. J: Ch: 249. attacked [(/!• p. 172]. We must therefore shortly consider this point, the principle being the same whichever hypothesis be adopted. There is first the very simple case of the plaintiff. ' We think in the case ' that if a person selected as plaintiff the tribunal of a foreign plaintiff. * country as the one in which he would sue, he could not after- ' wards say that the judgment of that tribunal was not binding 'upon him.' (Blackburn, J., Schibsby v. Westetiholz.) Thus in Novelli v. Rossi, the defendant, without waiting for the decision of an English court, which would in all probability have been in his favour, and would have guided the French court in its decision, went at once as plaintiff to the French courts : the decision, given in ignorance of the English law upon the subject, was adverse to him. He was held bound by that decision, it being the consequence of his own act. The same principle conversely would apply to the defendant : — Voluntary ' The decision of De Cosse Brissac v. Rathbone is an authority of defendant 'that where the defendant voluntarily appears and takes the ' chance of a judgment in his favour, he is bound ' {id:). Thus in Molony v. Gibbojis, Lord EUenborough, C.J., held that an action might be maintained on a foreign judgment obtained by default, which stated that the defendant appeared by attorney and said nothing in bar, presuming that the court saw the attorney properly constituted. See also, as to the effect of an appearance in bankruptcy pro- ceedings, ex parte Robertson, re Morton [ante, p. 86]. In jDe Cosse Brissac v. Rathbone however the plea took another Appearance form : it alleged that the defendants were ' possessed of property p^opJrV in ' in France which was, according to the law of France, liable to coum^'.^" ' seizure in case they did not appear to the suit and in case judg- * ment by default was signed against them, and that in order to ' prevent their property from being seized they authorised an agent *to appear for them as defendants to the suit.' This plea was overruled. But on the wider question whether an appearance in order is this a to endeavour to save property already seized by the foreign court lubmUswn ? could be considered voluntary. Lord Blackburn seems to have had considerable doubt. He said that in Simpson v. Fogo, the mortgagees of an English ship had come into the courts of Louisiana to endeavour to prevent the sale of their ship seized under an execution against the mortgagors, and the courts of New Orleans disregarded their claim \ that it was taken for granted by M 1 62 DEFENCES. the Vice-Chancellor and the very learned counsel who argued in chapter the case, that the mortgagees would have been bound by the ^^" decision, although they had only appeared to try and save their property, had it not been for the contemptuous disregard of English law by the foreign court : — He implied also that the case of the Ge/ieral Steam Navimtion Co: v. Guillon supports the Gen: ' Navigation proposition that the defendant would be bound, but that not being Co: v. ._,. _. ,, , .,, Guillon. referred to m Simpson v. J^o^o, it could not be considered as 13 l. j: , ^ Ex: 168. dissented from. The Court of Appeal held, in re the St. Nazaire Co: Limited, ex rest. ^^ ' . '. Nazaire parte the European Bank, that the St. Nazaire Company, having Co:, exp: appeared to protest against the jurisdiction of the French court, Bk: were so far bound, as to be precluded from setting up that the [on app/] judgment had been obtained irregularly. Lord Blackburn's opinion however seems to have leant very strongly in the opposite direction ; for during the argument in Duflos v. Burlingham his attention having been drawn to the fact Duflos v. that the defendant had not alleged non-appearance to the suit, he ham. remarked, 'He says he never owed allegiance to the country. ' Besides how could his appearance have rendered the judgment * binding upon him under the circumstances stated ? ' The question If there was really any doubt on the question of jurisdiction, been'ra^sed* whcn the defendant appeared he could have at once raised a abroad. declinatory plea raising the question and the court would have determined the question : to raise it again in this country would be against the principle of appeal : if he did not raise it, then the fault is his own, and the case falls within the other principle already considered [page 102] that a new defence will not be entertained. Appearance This is the principle of the decisions in Edwards v. Warden Edwards v. does not give ,^, „,,./-/- ti, i -n..,T harden. jurisdiction and Oulton v. Radchffe. In the latter case however Brett, J., l.r. gC. p. Tsnone'by"^^ declared it would not apply to cases where the court had no o niton v. Internationa j^,jjg(jj(,j.jQj^ Qyg,- \\^q subjcct and nature of the action. Where i Ipp' therefore the rule of territorial jurisdiction has been broken and a '^'^" ^ '" judgment given in respect of land situate in a foreign country, the defendant's voluntary appearance will not cure the defect. The rule But this rule, being based on the exclusiveness of territorial cases of sovcrcignty must be strictly limited to cases of exclusive jurisdic- Jur'is'dictton. tiou : whcrc there is concurrent jurisdiction, any doubt as to the Orr-Ewing cf-vv- 7, pi-opriety of that court entertaining the suit before which it is E-wing. brought, will be at once set at rest by appearance. ( Urr-Ewtng 456 [on app:] ^ 77 • \ 9App:ca: V. Orr-Ezvtng.) 34. EFFECT OF APPEARANCE. 1 63 Chapter An important question arises as to the form in which the plea The way m IV 1 • • T • 1 111 • 1 • 1 • which the to the jurisdiction should be raised in this country. question of CooAne v ^^ Cookncy V. Aiidersoti, Lord Westbury, C, said that the proper shouid'^be f D^T&'s co^^s^ ^'^s f°^ the defendant to appear and afterwards move to England. 365- . set aside the writ, or demur : and in Orr-Ewmsr v. Orr-Ewhis;, Orr-Ewing ' o o? ^■Orr- Cotton, L.J., said that there was an opportunity if the defendants 8 App: ca: thought fit of appearing conditionally and moving to discharge the order for service. The two courses pointed out by the Rules of Court 1883, would seem to be : under Order XII, rule 30, to move the court to set O- ''"• ""• 3°- aside the writ or service, without entering or obtaining an order to enter a conditional appearance : or, under Order XXV, rule 2, O- xxv. r. 2. to raise the question of jurisdiction as a point of law by his pleading. In admiralty cases an appearance under protest is as correct Appearance a method of raising the question as a motion to set aside the writ, protest. theVmar. (jamcs, L.J., TJie Vivar.) 2 p. D. 29. ^•' ' -^ ' These being the English rules binding foreigners, it seems impossible to contend that similar rules in a foreign country are not equally binding on English subjects : and therefore there is very little doubt that the effect of appearance is to settle once and for all the question of jurisdiction. Indeed the difficulty seems much exaggerated. We have already The -..,_.... .^ difficulty is discussed the question of Territorial Jurisdiction ; if property, exaggerated. whether real or personal, situate in a foreign country is seized either to found jurisdiction or as security, or is liable to be seized in execution in the event of the defendant being unsuc- cessful, it can only be so seized in accordance with the law of the country. If the seizure by a Court of First Instance is invalid according to that law, an appeal lies to the Supreme Courts of the country and the decision there must be presumed to be in accordance with the law. If we are to imagine a seizure of pro- perty which is illegal by the laws of any country, and yet is sanctioned by its highest tribunal, the remedy is beyond the jurisdiction of the courts, and must be sought through the medium of the Foreign Office. An appearance which is said to be an appearance only in order Real to save property seems to be a specious way of saying that the ^ch"a ° ° suit was defended in order to save the property by shewing it ^ ^^^^' to have been wrongfully taken according to the law of the country, in other words that the defendant appeared to the suit in the ordinary course and was defeated. The distinction that has been 1 64 DEFENCES. drawn is therefore, we venture to think, not only unsubstantial but Chapter unsound. The defence raising the defendant's absence. Form of plea. Cases in favour of plea. Story. §546. General consideration of the Defence. Having devoted so much space to the question of Jurisdiction in all its different aspects, the last step, the discussion of the defence itself, would seem to be a comparatively simple one. There are however a considerable number of cases in which, the absence of the defendant having been raised, the subject of Jurisdiction has been partially considered, and to these we must now turn our attention. And first there are to be found some very broad general state- ments, or rather declamations, which if they were to be accepted without reserve would be very misleading : such for example as that of Lord Ellenborough, C.J., in Buchafian v. Rucker : — 'It is 'contrary to the first principles of reason and justice, that in ' civil or criminal cases a man should be condemned before he is 'heard.' The general form of the plea is somewhat as follows : — that at the time of the commencement of the suit, and thence down to its termination the defendant was absent from the country : that he was not summoned to appear in, nor had he any notice or knowledge of any of the proceedings. On this, as on every other point, the old cases are far from satisfactory, even when they are freed from cumbrous technicalities, on account of the conflicting principles contained in them. In Buchanan v. Rucker and Cowan V. Braidwood it was held that absent defendants could not be affected by the laws of a country unless they had once been in it : — ' By persons absent from Tobago, must necessarily be meant 'persons who have been present within the jurisdiction.' In the former case the Chief Justice rested his judgment on the broad ground that laws passed by one country were not obligatory on foreigners not subject to their jurisdiction : his exclamation ' Can ' the Island of Tobago pass a law to bind the rights of the whole ' world?' was, as we have seen, long afterwards approved and made the basis of one of the arguments in Schibsby v. Westenholz, which was followed in Rousillon v. Rousillon. The same principle is laid down in Gauthier v. Blight, [Upper Canada] : and is adopted by Story : — ' There is no pretence to say that such modes of pro- * ceeding can confer any legitimate jurisdiction over foreigners ' who are non-residents, and do not appear to answer the suit, ' whether they have notice of the suit or not. The effects of all Buchanan V. Rucker. 9 East 192. Cowan V. Braidwood. I M. &G. Schibsby v. IVestenholz. L. R. 6 Q. B. 155. Koicstllon V. Rousillon. 17 Ch: D. iiauthier v. Blight. 5 C. P. 122. JURISDICTION. 165 Chapter ' such proceedings are purely local : and elsewhere they will be ^^' ' held to be mere nullities' [Conflict of Laws, § 546]. In Ferguson V. Ferguso7i V. Afa/ioH, Lord Denman, C.J., held that a plea 'that iI'a'!& e. ' defendant was never served with, nor had notice of, any process '79- ' in the action ' was good ; and that a reply, ' that the defendant ' had notice of a writ of summons issuing out of the court in ' which judgment was obtained, for the cause of action on which ' such judgment was obtained,' was insufficient and clearly bad ; but the reason given was that it did not shew that the process was at the suit of the plaintiff or was in the action. Douglas V. The key to these decisions is to be found in the case of Douglas 4 B^g: 686. V. Forrest, which has already been noticed as laying down the prin- [c/: p. 159.1 ciple that an absent defendant may be summoned to the country for debts contracted within it ; the argument being that he could not have contracted the debt sued for unless he had been in the country, and therefore he could only be sued when the absence followed a presence in the country. But the case is, as we have seen, a decision against the validity of the defence. Owing to these decisions however 'absence of notice' has been generally included in the lists of defences to which reference has been Ochsenbein made, notably in the case of Ochsenbein v. Papelier. L. R^'t ""^' There seems nevertheless to have grown up a confused kind of • ^^5 notion that, if the defendant kneiv of the action, however irregular Knowledge the notice, he ought to have appeared, even if the cause of action °^'^^^"'°"- Cowanv. did not warrant that notice. Thus in Cowan v. Braidwood Braidwood. . ji/-,T'jf»'i- ' I M. &G. imdal, C.J., said, ' Agam there is no statement that the defendant ' had no knowledge or notice of the proceedings. It is averred 'in a very technical and artificial manner, that they were not 'notified to him "according to the course and practise of the ' court." That may mean that he had no such notice as he ought ' in strictness to have had ; but it is very far from alleging that he ' had not notice of the proceedings. And the next statement in ' the plea still leaves it open that he might have had notice, so as ' to enable him to apply to the court.' This doctrine has been Montreal pcrpctuatcd in a case in Upper Canada, the Montreal Mining Co: CuMertso,,. '^- CutJibcrtson : — ' The defendant should have denied knowledge 9 Q. B. 78. ' of the action. He may have accepted declaration without 'process, or the proceedings in the foreign court may not be 'commenced as in ours by any writ' (Robinson, C.J.). This accounts for the presence of the word ' knowledge ' in the plea. This principle of knowledge forms as it were the hnk between the two extreme views. Maule, J., declared that 'the courts at i66 DEFENCES. Cases in which plea rejected. Service on agent of absent defendant. \cf: p. 134.] ' Westminster in sustaining decrees of foreign courts against Chapter ' absent persons have decided that in their judgment a decree ' 'may not be contrary to natural justice although made against • a party who is absent ; for absence alone is not sufficient to f^^f-'^^J^^ * invalidate the proceedings.' - '^'- ^^^'• In Becquet v. McCarthy and Reynolds v. Fenlon the plea was Reynolds v. rejected. That it is bad may also be inferred from Doti v. Lipp- 16 l. J: man and Meeus v. Thdlusson. The whole question was put on a Don v. very clear footing by Wigram, V.-C, in Henderson v. Henderson in 5 ci:& f! i. the judgment already quoted on the subject of error in procedure rheiinison. [p. 128] ; it will be noticed that his remarks apply not only to "g. ' irregularity of service but also to absence of service, the argument ^/^ ^''^"^ resting entirely on the principle of error. In Maubourquet v. Wyse, ^nJeTZ'. the defence was held to be bad, because the defendant might have ^^f"'"'' been resident, or had property, or might have been served through ^-J^^^: an agent. These last two reasons however do not seem sound. ' c. l. 471. The existence of property in a country does not, as we have seen, of itself import a necessary obedience to the writ of summons out of the jurisdiction. And with reference to service on the agent of an absent principal it is somewhat curious that it is not now recognised by English law, unless of course he be specially authorised to accept service, although it seems once to have been allowed in the extension of outlawry noticed earlier in this section. It is however to be found in many of the colonial statutes : and in accordance with what has already been said, it is presumed that if such were the law of the country, whence a judgment in an action commenced in accordance with it eman- ated, the judgment would be recognised and enforced in this country against the principal. The American courts have already adopted this principle, hold- ing that where a foreign law provides that under certain conditions service on an agent shall be equivalent to service on the defendant himself, 'there is nothing in this unreasonable in itself or in 'conflict with any principle of public law. For it cannot be 'deemed unreasonable to secure to citizens a remedy in their ' domestic forum ' {Lafayette Insurance Co: v. French — New Lafayette Absence' may be intentional or un- intentional. ^^^ ^' , r ^-rr 1- J -. 18 Howard It is evident that this absence may be of different kinds : it may 404. be at the commencement of the suit, or it may be during its con- tinuance : as we have seen, it is quite unimportant in the latter case. With regard to the former it may be intentional or un- intentional, but this distinction so far as the construction of NATURAL JUSTICE. 167 Chapter Order XI is concerned makes no difference, one of the reasons TV ' for the existence of that order being to remedy the hardship and expense occasioned to creditors by intentional absence. But Regularity whether the absence be intentional or unintentional the regularity clnnol'be of the service by a foreign court cannot be questioned in another ''"^'"°"^'^- country. It seems also to have been considered possible that the defendant's absence may be unintentional, not because the foreign law did not require the summons or notice to be served personally, but because the suit, contrary to the provisions of the foreign law, began without any summons or notice at all. This however hardly requires our serious attention. AVe have dealt here with the principles only of Order XL The subject will reappear when we come, under the head of ' Natural Justice,' to consider whether in reality any power exists of re- viewing the inherent justice or injustice of the foreign law ; and again when we deal with the practice under the order in chapter viii, on ' Service out of the Jurisdiction.' We have now concluded the consideration of the numerous points raised under the three main heads of defence — Fraud, Error, and Jurisdiction. There remain three other heads ; that the judgment is a violation of Natural Justice, International Law, and Public Law. But it will be seen at once that the two groups differ very materially in their nature ; the first three are specific, while the remaining three are general. IV. Natural Justice. That the judgment of, or that the proceedings in the foreign Against court were contrary to the principles of natural justice is a "ustke. sweeping accusation which was formerly much resorted to as a defence, and is even now to be met with. And there is an opinion to be found very generally expressed by learned judges oid opinion to the effect that the court will entertain the question ; and that, °againsT*^ if the allegation is proved, and it is made apparent that the justice' enforcing of the judgment would be against the principles of natural justice, effect will not be given to it. At the same time however the presumption is always declared to be the Biuhananv. Other way. Thus, in Buchanmi v. Rucker, Lord Ellenborough, 9 Easri92. C.J., said : — ' The presumption may be in favour of a foreign 1 68 DEFENCES. 'judgment, if it appears on the face of it consistent with reason Chapter 'and justice': And Lord Kenyon, CJ., in Calvert y. Bovill: — ^^• 'We presume the foreign sentences are just' So also, in Cowan~ ' V. Braidwood, Maule, J. : — ' A decree of a foreign court of com- ^(^^n- . 7 T. R. 523. 'petent jurisdiction must be presumed not to be against natural Coa^aw v 'justice.' But this favourable presumption once removed, theiM.&G. question at issue between the parties would be treated as if it had never been considered before. Thus, in Price v. Dewhurst, Pfke v. Dewhur$t. Shadwell, V.-C, said : — ' The question is whether this is not con- 8 sim: 279— 302. ' trary to the common course of justice ' — ' Wherever it is manifest ' that justice has been disregarded, the court is bound to treat 'the decision as a matter of no value and no substance.' too wide to But it is at once apparent that this proposition is too large and ticai utility, too unwicldy to be of much practical service : So much would apparently be included in it that it would be impossible to draw the lines of definition. The consequence of this is that in the later cases the proposition has been narrowed so as to refer ex- clusively to a departure from natural justice in the proceedings of the foreign court. Thus in Henderso7i v. Henderson^ Lord Henderson Denman, C.J., said: — 'That injustice has been done is n^v^x Henderson. ' presumed, but the contrary ; unless we see in the clearest light q. b'. 274. ' that the foreign law, or at least some part of the proceedings of the ' foreign court are repugnant to natural justice.' And "Watson, B., in Shee/iy \. the Professional Life Assurance Co: — 'We c^cvlX skeehy \. ' enquire into the proceedings of another court, except so far as we AsIrclT'^ 'can see that they are contrary to natural justice.' q p' ^^j The pro- Finally, Bramwell, B., has reduced the proposition as to ' pro- ua^owed by ' ceedings,' within what we venture to think are its proper and con- Bratnwell, The venient limits : — ' What this natural justice is,' he says in Crawley Crawiey • V. Isaacs, ' refers rather to the form of procedure than to the le^L t. ' merits of the particular case. English courts will not be con- ^^^' ' eluded by proceedings not in accordance with natural justice : ' the remedy being given here because it would be useless to com- ' plain to the foreign court ; whereas if in accordance with natural 'justice, the foreign court would itself interfere to prevent the 'plaintiff taking advantage of the judgment irregularly and im- ' properly obtained.' discretion When we were dealing with the defence attacking the jurisdic- vested in every state tiou of the foreign court, we hinted that although there must be ifv^ which a discretion vested in the legislature of every country to make Xln?^^"' laws which include in their operation certain absent foreigners, [^^p"f57] yet, on account of this discretion having been accorded, there NATURAL JUSTICE. 169 Chapter IV. Ocksetihein V. Papelier L. R. 8 Ch: 69s. Messina v. Petrococ- chino. L. R. 4 P. C. 144- Shaw V. A.-G. L. R. 2 P. & D. 156 must also be a corresponding right in other states whose subjects are affected, of supervision over the exercise of it. Although of course purely a theoretical hypothesis, Baron Bramwell's proposi- tion, which is rendered still more clear by his judgment to be referred to presently, seems exactly to fit in with it. And for this reason : the old broad proposition arrogated to our courts a right to enquire into all the laws of the foreign state, or rather any one law on which the judgment had proceeded, and this quite irrespec- tive of other elementary considerations, such as the presence of the defendant within that state. But limited in the way in which Baron Bramwell suggested, it becomes simply a right to enquire Result of . , .. . , . . limitation to into the otie law regulatmg the proceedmgs m the foreign court proceedings. by which the defendant has been affected; or practically, in other words, that one law deciding the cases and the manner in which an absent defendant shall be summoned to the courts of the country. Again, if it were not so limited, the almost hope- less vao-ueness of the term Natural Justice, and the double Double method of its application, would render it impossible to be dealt of term with : for at one time it is put forward as a reason for the validity "ust"ice. of any defence raised, and at another time as a defence itself. For instance, it is said that fraud must be a good defence, not only qua fraud, but because it would be contrary to natural justice to enforce a judgment obtained by fraud. Thus Hellish, L.J., in Ochsenbein v. Papelier :—' It has never ' ' been doubted that a foreign judgment could be impeached at ' law as being contrary to the principles of natural justice : e.g. no ' notice ; want of jurisdiction ; or fraud.' In Messina v. PetrococcJiino, 'wanting in the conditions of ' natural justice ' is included in the list of defences : and in SJiazv V. the Attorney-General, Lord Penzance said :— ' Besides being bad 'for want of jurisdiction, this judgment has the incurable vice of ' being contrary to natural justice.' Were we therefore to admit the broad doctrine, that ' contrary 'to natural justice' is a good defence, we should find a ready answer whenever the question is raised whether a defence be good or bad : For example ;— The foreign court has based the judg- ment which is sought to be enforced, say, upon a misconception of English law, which law it professed to take for its guidance, and which it interpreted, according to its lights, wrongly. Surely, the defendant might say, it is contrary to the principles of natural ^^^^^^ ^^ justice — contrary to the common course of justice — contrary to ' the^?ternai^ the eternal and immutable principles of justice — inconsistent with justice.' I/O DEFENCES. Cases do not support its argu- mentative use. Bramweli, B. Instances of plea being held bad. reason and justice — to enforce such a decision in the EngHsh Chapter courts. But we have seen that the principles acted upon by our ^^' courts, require such a decision to be recognised and enforced ; and that for the reason that by the Comity of Nations the EngHsh court will not constitute itself a Court of Appeal from the foreign court. Therefore in this its argumentative form, actual decisions have exposed the fallacies and inaccuracies involved in the defence, and have left the defences in support of which it is advanced to be dealt with on their own merits. We feel justified therefore in confining ourselves strictly to the case in which it appears as a defence properly so called, the form of which is, ' that the proceed- ' ings in the foreign court were contrary to natural justice,' pre- facing our enquiry with some further remarks of Baron Bramwell in Crawley v. Isaacs : — ' It is clearly contrary to natural justice in Cra^v/eyv. 'one sense that a judgment should be enforceable when there i6 l. x. 529. ' was no cause of action, and yet it is clear that that is no defence ' to an action on the judgment. Does not that show that the term ' is used with respect to a foreign judgment in reference to the ' conduct or mode of procedure of the foreign court, rather than ' the merits of the particular case ? ' — ' If this were the case of a ' judgment obtained by reason of untrue statements contained in an 'affidavit in a foreign court where the procedure is contrary to ' natural justice we might refuse to give effect to that judgment ; 'but if the procedure be not contrary to natural justice the ' defendant has a remedy by an application to the foreign court ' to get the proceedings set aside ; so that in all cases there will be ' a remedy. If the proceedings be in accordance with the practice ' of the foreign court, but that practice is not in accordance with ' natural justice, this court will not allow itself to be concluded ' by them, but on the other hand ; if the procedure be in accord- ' ance with natural justice, the foreign court itself will interfere ' to prevent the plaintiff taking advantage of the judgment irregu- ' larly and improperly obtained. Of course in the case of the ' procedure being contrary to natural justice it would be useless ' to go to the foreign court to complain of its being so.' Following this principle, Martin, B., in De Cosse Brissac v. Brissacv. Rathbone, held a plea bad, which alleged that the foreign judgment fo^u^]"^' was erroneous in fact and in law on the merits, and that the ^^* ^^^^ enforcement of the judgment in England would be contrary to natural justice : and in Alivon v. Furnival the defence ' against FuT>!ivai. natural justice ' was raised, it being suggested that a certain 614.' NATURAL JUSTICE. 171 Chapter IV. Canimell v. Se^vell. 29 L. J: Ex: 350. Simpson v. Fogo. 32 L. J: Ch: 249. Liverpool Cr: Co: v. Hunter. L. R. 3 Ch: 479. award was not warranted by the submission to arbitration. Parke, B., said : — ' It is impossible for us to say that this principle ' of adjusting damages is wrong as being contrary to natural * justice.' So Crompton, J., in Cavimell v. Sewell : — ' It does not ' appear to us that there is anything so barbarous or monstrous in ' the law, that we can say that it should not be recognised by ' us.' And Cockburn, C.J. : — * There is a good contract of sale in ' Norway without any evidence to show that by the general law of * nations the sale valid in Norway can be invalidated elsewhere.' But although we have arrived at a more precise principle we still have to face the old difficulty arising from the vagueness of the term Natural Justice. If a judgment may be discarded because it has been obtained by means of a procedure which violates justice, it is very evident that we must have some standard Difficulty r • 1 1 i*iir-i IT-- i"*^ arriving of just procedure by which the foreign law and decision may be at a standard criticised. As Austin points out in a passage already quoted [p. ° ^"^ "^^' 10], a rule 'which assumes that the judge is to enforce morality, < enables the judge to enforce just whatever he pleases ; ' and unless there be such a recognised standard, every judge must make one for himself. As we have pointed out, the defence is now really narrowed to the question of ' assumption of jurisdiction' over absent defendants, and its consequence ' service out of the jurisdiction ; ' but the laws with regard to these questions vary in every state, each one pro- ceeding on its own notion of justice : and it would be arrogance to assume that English law is to be the standard, even putting aside the important consideration that it is considerably in advance of the laws of other states. It is therefore necessary to devise some other rule. In Simpson v. Fogo, Wood, V.-C, shadowed forth the outline of And con- such a rule : — ' If you find a course of procedure there which is seu"S'any ' not recognised by any other country in the civilised world, our ' own citizens must be protected from the loss of their property 'which would be inflicted by decisions so arrived at.' In the Liverpool Marine Credit Co: v. Hunter, it was argued, that a creditor having pursued the property of his debtor to a foreign country where he knew that the rights of a third person in that property would not be regarded, and that law having so dis- regarded those rights, the judgment was unjust and ought not to be enforced. Lord Cairns, C, said : — ' The Louisiana law does not ' recognise the transfer of chattels without delivery. In the argu- ' ment, the law of Louisiana was treated as being itself contrary to rule. 172 DEFENCES. [cf: pp. 67, 45-] Variation between the law and that of all other states is not the test. The exercise of power of review avoided as much as possible. The foreign process has been criticised. Case of an alien enemy. ' natural justice : there is no such inherent injustice as absolutely Chapter 'to disentitle it to regard when brought into question here. It * is the application of the law to foreigners and the refusal to * recognise their title to chattels — a title which is valid and com- ' plete in their own country — unless the property is accompanied * with possession, which renders, not the law itself, but the decisions ' of the courts of Louisiana upon it open to the reproach of 'injustice.' The application to restrain proceedings in the courts of Louisiana was refused [see p. 67] ; the judgment of the Lord Chancellor however is hardly sufficiently strong to warrant the inference that a judgment proceeding on such law would be disregarded. Again, in Fletcher v. Rodgers, Brett, L.J., took it for granted ^il^tigerJ' that by the Californian law jurisdiction is assumed over absent ^^ w. R. 97 defendants in all actions by seizure of their property within the country ; such a law being, as we have seen, at variance with the laws of most states : yet it was unanimously declared by the Court of Appeal that this assumption of jurisdiction was not contrary to natural justice. This is perhaps as strong a case as can well be imagined. Variation between the law of the state and the unanimous law of other states was therefore not accepted in these two cases as the test whether justice had been violated or not : and we therefore have arrived no nearer the standard which we sought ; we have only found this principle that, in the case of the law referring to assumed jurisdiction over absent defendants, although the power of review is admitted to ^ist, the exercise of it will be avoided as much as possible. When however we come to the artificial method of citation, the service of the writ out of the jurisdiction, we do find cases in which the foreign process has been severely criticised, as not affording sufficient notice of the action to the absent defendant. These have already been noticed under the head of absence. To them must be added Don v. Lippman. The appellant was an dohm. alien enemy, and could not for this reason appear in the French 5 cuTf! i. courts. The notice of citation was affixed in a public office, presumably in accordance with French law. Lord Brougham refused to enforce the French judgment, ' because the defendant ' was by force kept out of the action.' Nevertheless in a few cases an opinion is to be found similar to that expressed in Fletcher v. Rodgers against reviewing the Bk: of . -1% 1 r A 7 • TT J- Australasia foreign process : Thus in the Bank of Australasia v. Harding, v. Harding. Maule, J., said: — 'You insist here on the absence of notice of c. £345. NATURAL JUSTICE. 173 Chapter IV. Becquet v. JMcCarthy. 2 B. & Ad: 951- Reynolds v. Fenton. 16 L. J: C. P. IS. Meeus v. Tkelliisson. 22 L.J: Ex: 239. • process : but there is nothing in that contrary to natural justice, ' if there has been some other kind of notice : for example, a ' proclamation, or verbal notice.' So in Becquet v. McCarthy, Lord Tenterden, C.J., held that the court could not take upon itself to say that the law of procedure by which the action had been com- menced was so contrary to natural justice, as to render the judgment void. And this decision was in the case where there was *a deficiency in the law of Mauritius in not requiring the ' Procureur-Generale to communicate with the absent defendant ' : and again in Reynolds v. Fenton, Maule, J., said : — ' For aught we ' can tell the proceedings of the Court of Brussels may be regularly 'commenced by mere verbal notice without any regular process.' And it is to be inferred from the argument in Meeus v. Thellus- S071, that a judgment after process served, according to Belgian law, at the elected domicil of the acceptor of a bill of exchange, although absent from the country, would be recognised in England. The subject of Service out of the Jurisdiction will be considered more fully in chapter viii : only a general remark on the subject is here necessary. It can easily be understood how difficult it is to deal with a defendant who is not within the territory of the country, and that some protection must be afforded to plaintiffs in the country. That the protection thus afforded by the State to its subjects should be very materially in the plaintiff's favour is not unreason- able, though at first sight it may appear arbitrary. In the case of the French process it might be said that the time given to the defendant should be lengthened ; that instead of one month, it should be six months or even a year, but that is a matter which is within, and must be left to, the discretion of the legislature passing the Statute. Shortly therefore the result seems to be this, that both as to the law regulating the assumption of jurisdiction, and as to the law of procedure, the English courts will be chary of exercising their power of review. But owing to the uncertainty arising from con- trary decisions, we venture to formulate the following rule, which forms a sequel to that enunciated on p. 130: So long as the dis- cretion is exercised not unwisely, nor unreasonably, the courts of this country will bow to the authority and jurisdiction which is claimed and exercised by foreign law over English subjects who are declared by foreign courts to be subject thereto : Not making reciprocity a condition, but expecting a reciprocal recognition of similar English laws and decrees. The difficulty in protecting plaintiffs against absent defendants. General result. Rule deducible. 174 DEFENCES. This rule supposes therefore a power existent in all courts of judging whether the discretion has been exercised, not wisely and reasonably, but, not unwisely and unreasonably ; and also that all ' courts, in their wisdom, will not overstep the limits of this power. Chapter IV. Contrary to International Law. The argu- mentative use of the defence as in the case of natural justice. Defence good where judgment deals with land in foreign coimtry. Has been applied to personalty. V. International Law. The defence relying on a breach of International Law is frequently raised : but the field of enquiry which it suggests is as large and unwieldy as that opened by the defence just considered, 'against natural justice.' It has been found impossible to deal with it systematically, or to frame a general rule for the admission or rejection of the defence : we are only able to deal with isolated cases. There is one class of cases — admiralty prize decisions — which do proceed on International Law; the old cases indeed are declarations of that law : but these will be fully considered in chapter ix, on ' Judgments in rem.^ The defences raising the questions of jurisdiction, mistake as to the law applicable, and wilful error, are frequently sought to be established on the ground of violation of the Law of Nations : but it has been thought better to deal with them, as the courts have always done, on their own merits. A similar point arising in the subject of Divorce will in like manner be discussed when it arises. With regard to jurisdiction however one point requires special attention here. We found that there was an universal rule that real property is governed by the law of the country where it is situated : and that a judgment of a foreign tribunal affecting it, even though it pro- ceeded on an accurate interpretation of that law, would be liable to be disregarded in the courts of that country. This, as we have pointed out, is the invariable rule in all nations, and may therefore be regarded as a rule of International Law. This being so, the rule has now a wider significance : and it should follow that such a judgment would not be recognised in any other country : for instance, an Italian judgment affecting realty in France would not be recognised in England. An extension of this real property doctrine to personalty was made by Wood, V.-C, in Simpson v. Fogo. It was said to be an Simpson v. universal rule that the transfer of personal property is to be regu- 32""^!.' j lated by the law of the owner's domicil, and therefore that a transfer valid by that law ought to be so regarded by the courts Ch: 249. INTERNATIONAL LAW. 175 Chapter IV. Liverpool Cr: Co: v. Hunter. L. R. 3 Ch: 479. Delenedetti V. Morand. J. D. I. P. 1879, p. 72. of every other country where it is brought in question. But by the law of Louisiana with regard to the transfer of chattels there can be no title unless the property be accompanied by possession. In the case there had been no transfer of the possession : and the title, good by the law of the owner's domicil, was not recognised in New Orleans. The Vice-Chancellor refused to recognise the efficacy of the judgment, and in the Liverpool Marine Credit Co: v. Hunter., Lord Cairns, C, approved of the decision declaring it to be based on the total disregard of the Comity of Nations. This case is the only direct decision upon the question of violation of International Law, and the Vice-Chancellor's judgment contains a most elaborate argument in support of the position he took up. The Lord Chancellor's approval seems however to have been directed to the disregard of the law of Louisiana because it differed from those of other nations, rather than to the argument on the question of domicil by which the conclusion was arrived at. We have already pointed out [page 138] how the law applicable to personalty varies according to the nature of the action. If it is possible to formulate a rule from this case it would seem General to be the following. It is necessary first to establish clearly that the rule, the violation of which is alleged, is universal, and then the judgment will be disregarded. One other case is furnished by a decision of the Italian courts in Debenedettiw. Morajid already referred to. There was, in the[c/:-p. 116.] reasons appended to the judgment, an expressed incorporation of the lex talionis ; the converse of the French law was substituted, with reference to a Frenchman, for the Italian law properly appli- Italian cable. The same course would probably be pursued with reference proceeding to English subjects : and if the Italian courts, instead of proceed- °^^ talionis. ing on their own law as laid down in the Code of Civil Procedure, were to adopt the provisions of Order XI, then we venture to think that not only the English courts, but also the courts of any other country before which the judgment was in question, would be justified in accepting the defence that it was against International Law, and in refusing to enforce or recognise the Judgment. VI. Public Law. It remains for us now to justify the statement made at the com- contrary to mencement of this chapter on Defences, with reference to public ^"'''"^ '^^' law. It was stated that the necessity for admitting a principle of 176 DEFENCES. The main dcfeiice at all arose mainly from considerations of public law : it Chapter defence was pointed out that of the defences which might be raised to an [ . .be stayed, c. R 4°8. will be allowed to proceed on the plamtiff's return to this country fvagl'er. {-Poss v. IVogner). In Kennedy v. Edtvards and Charras v. ^P°jM99- Pickering, however, where the security ordered had not been given, \\ ^urT'^^' ^ motion to dismiss the action for want of prosecution was or dismissed. Charras allowed. Where the return is only temporary it is of course V. Pickering ■' _ ' ■' 39 L.J: ch: liable to be again stayed on a further application for security. Hanmerv. Qn the Other hand it will be ordered and the action stayed Mangles. ... ... r i_ 12 M. & w. until it is given, as of course, if the plaintiff is residing out of the DeMarneffe \\xx\%dAQX\oxv (^Hannier y . Mangles. De Mar neffev. Jackson. Prayw. IsPHceTos. jE'^/V);and this whether the plaintiff is a subject or an alien Edu. "' {Cainbottie v. Ifigate) ; and nothing more than the residence abroad \:ambottie' need be shewn {Ganesford v. Levy). V. Ingate. 1 W. R. 533- Ga««>rrf ,^,j^^ ^^^ ^^ ^j^^ ^^^^^ , residing ' brings us to the second prin- ^y.^^ ^^^ ^^ 2 H. Bi: 118. ^.^^j^^ Security will not be ordered if the plaintiff has merely gone '^^^fj^f^ I out of the country for a short time, his permanent residence being temporary. i88 SECURITY FOR COSTS. Residence abroad must be shewn. But the absence must really be temporary. Examples. that would ^]^1}:,'^^- r V. Gillesfrie. 7 Beav: 269. Jrodshatn Myers. here. {Colev.Beal. Hoby v. Hitchcock. Anon:. Kerr v. Gillespie.) C'h.&^Uxy. ' He might be on a pleasure tour in vacation ' (Littledale, J., Frodsham v. Myers.) 'It was never understood that a party's 7 M^oore 6^3'. ' going to Spa, or Lisbon for his health, to Holland, etc. upon mtcZ'ock. 'business, or engaging himself with a sailing party to see the Rock ^ah^-!"^'^ ' of Gibraltar, etc., was that kind of living abroad 'warrant such an application' (l^ord Thurlow, C, v It lies therefore on the defendant to show that the plaintiff has 4 DqwI: 280. not gone abroad for a temporary purpose (Alderson, B., Haniner 2 Dicken: V. Mangles) ; that is, his residence abroad must clearly appear from ^^^l^^^^"-'- the absence of animus revertendi. (Green v. Char nock. Elan v. 12M.&W. 313. Kecs. ) ^'^f"'- V- , ' . Lha)-noCK. Thus in Tavlor v. Fraser the order was refused because it i Ves: 396. "' 1 1 J • Elan V. appeared that the plaintiff was expected to return shortly ; and in Rees. Boustead v. Scott it Avas also refused although it was shewn that \a°^frl. " the plaintiff had been out in Sierra Leone for three months past. ^ dow?: 622. But in Wells v. Barton permanent residence abroad of a British s°cotL'^ subject was assumed from the fact of the suit not having been f^°/f^.^"- commenced for a year after the plaintiff had left the country. ^%*^.^(, ,6„_ And in Foss v. Wagner where the court was satisfied that the fossv. plaintiff (suing in forma pauperis) would not return for eighteen ■2V:iZh\g<). months, the action was ordered to be stayed unless security could be found. This qualification of the rule was approved by Lord Cran- ^ , , . . „ Blakeney v. worth, L. J., in Blakeney v. Dufaur : — ' If the plaintiff were gone Dufaur. ' abroad for some object which would keep him there ten years, g. 771. ' ' or if it were improbable that he could return within the time Key. ' within which he is likely to be called upon for costs in the suit ^vayTo^v^'^' 'he must give security.' Thus security may be ordered although ^"Ivfoore the animi4s I'evertendi exist. ^Mahott v. In Gurney v. Key, Naylor v. Joseph and Mahon v. Martinez, ^MoorTsse. security was ordered there being permanent residence abroad and ^^^ferT only occasional residence here. It is presumed that the plaintiffs p^awu^v were absent at the time the applications were made. sriwt^^'^' On the same principle the application was refused in Frodsham i^- v. Myers and O'Lawler v. Macdo7tald, where the plaintiffs were ?f '^f^- " ... H. Br. 283. British subjects who had volunteered into foreign service, znd ^'ordv. . Boucher. no intention of remaining permanently in that service was shewn, i Hodges 58. . . Jacobs V. And again in the case of seamen, whether British or foreign, .stcvenson. serving on British ships. {Henschen v. Garves. Ford v. Boucher. Nelson v. Jacobs V. Stevenson. Nelson v. Ogle.) xlunt: 253. ABSENCE FROM JURISDICTION. 1 89 Chapter V. Stewart v. Steviart. 2c Beav: 322. Nylander v. Barnes. 30 L. J: Ex: 151- the Franz. Lush: 377. the Don Ricardo. 5 P. D. 121. Blakeney v. Du/anr. 2 D. M. &. G. 771. Durell V. MattkesoH. 3 Moore 33. White V. Greathead. 15 Ves: 2. Naylor v. yoseph. 10 Moore 522. Le Nonnand v /■<:«.■ 0/ Capua. 6 Jur: 64. jSa// V. Adrian. I Taunt: 64. This rule was however not adopted by Romilly, M.R., in Stewart v. Stewart — nor will it apply to seamen on board foreign ships : in such cases the rule in Nylander \. Bar?ies \supra p. 187] will be followed {the Franz et Elize), In the Don Ricardo how- ever Sir R. Phillimore held that the matter was in the discretion of the court, and refused to order security from the mate of a foreign vessel, although he was a native of Germany with no fixed residence or property in this country. From these cases it is apparent that the proof of permanent residence abroad in the case of an English subject is attended with great difficulty ; although absence oi animus ?-evertendi da\di the probability of a long sojourn abroad may be inferred at an early stage from the facts of the case. Thus in Blakeney v. Dufaur it was proved that the plaintiff was keeping out of the way to evade enquiries : that he w^ent to Jersey in the month of June and had not returned. Security was ordered in November, the court holding that there was no other inference to be drawn but that he had gone out of the kingdom permanently. There are two cases in which permanent residence in this country by a foreigner has been raised. In Durell v. Mattheson the plaintiff was a foreigner who was in the habit of residing here four months in the year ; he was absent on board his yacht ; the order was refused. And in White v. Greathead, the plaintiff originally resided in the West Indies : he came to reside here with his family : he then went back to the West Indies to arrange his affairs, and on his filing an affidavit of his intention to return, (and consequently to reside permanently in this country) the order for security was refused. It would appear from Naylor v. Joseph that the occasional absence of a foreigner domiciled in this country would be judged by the same standard as that of a subject. It may be suggested that this rule should receive the same interpretation as the words ' domiciled or usually resident ' in Order XI rule i. (c.) The only case in which the principle was not acted on is Le Nonnand v. Fritice of Capua. The plaintiff, who was a foreigner, had shops both in London and Paris, and resided in either country according to the necessities of her business ; the defendant admitted part of the debt. No security was ordered to be found, but the amount admitted was ordered to be paid, and some of it appropriated as security for the trial of so much of the dispute as remained to be decided. In Ball V. Adrian security was ordered from a plaintiff who Probability of prolonged absence may be inferred. Permanent residence nf foreigner in England. Occasional absence of foreigner domiciled here. IQO SECURITY FOR COSTS. was resident abroad, the action having been brouglit without his Chapter V. knowledge. Will not be The third principle is that security will not be ordered when where the absence is involuntary ; the question of permanent residence fnvXruary. remaining as before. Examples. Examples of the application having been refused are to be found in Evering v. Chijfenden, where the plaintiff was a lieutenant Evermg v. in the Navy and held the appointment of Harbourmaster in the 7 Dowh 536- Barbadoes : Whittal v. Campbell, an East Indian officer on ser- camptdL vice in India : Gar7vood v. Bradboiirnc, a private in the East ex: 326. India Company's service, although it was proved that soldiers ^^^wL. were enlisted for life, and that there was no chance of his return 9DowI:io3i. to England unless he was discharged : Lord Nugent v. Harcourt, Nugent v. a Commissioner of the Ionian Islands, resident there : Tullock v. aOowi'syS. Cro7vlcy, a British subject, who was a prisoner in France : [and crowUy.' conversely, in accordance with the foregoing principles, it was ' refused in the case of a prisoner of war in this country {Maria v. Maria v. Mall. Hall)]. 2 B. & p. The case of Chappell v. Watts may be distinguished. The chaf>pdiv. plamtiff was an officer in a regmient quartered in Ireland; but29L. j: he was an Irishman domiciled and ordinarily resident in Ireland ; ■ '■ ' 7- he was ordered to find security. In a few^ cases only however the contrary seems to have been Harvey w. held ; Harvey v. Jacobs, followed in Barrett v. Foiuer, in which f R^'&Aid: a plaintiff who was under sentence of transportation was ordered ^^1'^^^^ y to give security ; and Seilaz v. Hanson where the plaintiff had been f Exr338. removed by order of the Secretary of State under the Alien Act : ;^^^f/^f and in Plowden v. Campbell, Lord Campbell, C.J., refused to ^pi^^-J^l\ extend this principle to a Judge in the East Indian Company's Campbeii. service. ^- ^- 384- To be given The nature of the plaintiff's claim will not affect the question w'itrbe ' ^^^ of the defendant's right to security. In le Banqiie des Travaux Bangue des annliration • • -111 • Travaux hriuAgm^ni Fubltques V. WalHs, the plaintiffs said that they were going io y^ivaiiis. under o.xiv. p^^^^^j ^^^^^ Q^^jgj. XIV ; on the strength of the affidavits the p. 64^" '^^*- Master postponed making the order, but Field, J., in Chambers ordered immediate security to be given ; [but see case on page 196]. ^^^^^ Brazil v. Robinson. Foreign Foreign potentates will be liable to give security when plaintiffs s^DowI: 522. sovereign. -^ actions arising out of commercial transactions {Emperor of Greece w. Brazil v. Robinson. Otho King of Greece v. Wright The Republic e Dow1:'i2. ABSENCE FROM JURISDICTIOxN. 191 Chapter V. of Costa Rica v. Erla/igcr), and in a cause of possession in the Admiralty Court {the Mary or Alexandra) : although it was not ^y°^ErUngcr. required, in the Duke of MontcUano v. Chrlstin, from a foreign \h^M^iy^' ambassador, it not being considered ' respectful to the crowned A & E. 335. ' I'lcad whose servant he was,' unless there were some very pregnant ^"chrktin '^e^.sons for making the order. In Adderiey v. Smith, Anon:, and 5M. &s. 'Goodwin v. Archer \\q\\&vq.k it was required from people in the Adde7-iey v. employ of auibassadors, the reason given in the last case being Smiik. ^ ■' 'to to iDicken:355. their privilege from arrest. Mose: 175. A peer resident abroad will not be exempt, Lord Aldborough v. Peers. Goodwin v. Archer. BurtoH ; but tlic Contrary was held in Earl Ferrars v. Robins. 2 p. Wms: . . 451- Executors must give security for such costs as they would be liable Aldborough . . /^-.t 7 7 • ^-.7 7 , ■ ^-.7 \. Burtoti. to in point of law \Lhamberlain v. Lhamberlain. Chevalier v. 4oi7" " Finnis) ; and so also a plaintiff who may be suing for another's Robhis. ^' benefit ( Yonde v. Youdc). Chamber^ ' A foreign Company will be compelled to give security : {Banque Company. Chamber- des Travaux Publiqiies v. JVallis ; and see the cases quoted on i'"dow1:636. P^ge 192, Under the head of exemption on the ground of property '~F^^^V' within the jurisdiction) : but an English company formed for the l^o^dfv^^^' purpose of constructing a railway in a foreign country was held &''e^\i^^' ^^°^ ^° ^® ^ foreign company. (Athens and Pirceus Ry: v. Bangue des Hudswell. ) y.v't^^^iJU It will never be ordered from a defendant or respondent. Never W. N. 1884. _ _ . / ordered from p- 64. In re Percy Mining Co: a shareholder residing out of the defendant Athens Ry: .... . . . . V. Hudswell jurisdiction appeared to oppose a petition for winding up p. 131- ' the company. Jessel, M.R., refused to order him to find security, re Percy Col . ... 2Ch:D. 531. approving the principle laid down in Cochrariev. Fearon. Fearoti. ' In actions in rem the procedure is somewhat different with Action in regard to the defendant ; where there is a counterclaim the defendant will be ordered to find security for the entire costs {the Fisher. JuUa Fislicr) ; but security for damages will never be ordered {the ^b'd'.h. ' D. H. Peri; the Mary or Alexandra). Lush: 543. The question whether a defendant, who has set up a counter- where L. R. i'^' claim after admitting the cause of action, is entitled to security has^comlter- A. & E. 335. £j.Qj^^ ^j^g plaintiff resident out of the jurisdiction, was discussed in '^'^""^'^• Winterfieid Winterfield V. Bradnum. The Court of Appeal held that if the ^■Bradnum. counterclaiiii was in respect of an entirely distinct claim no 324- security could be ordered, because it would be in the nature of a cross action to which the present plaintiff was defendant. Bram- well, L.J., thought however that if the counterclaim were for damages in respect of the same cause of action for a greater amount, or one equal to the plaintiff's claim, he would be entitled 192 SECURITY FOR COSTS. to security from the plaintiff. In Mapleson v. Masi/ii the counter- Chapter V. claim was in respect of the same cause of action, the damages claimed being less than the plaintiff's claim. The Queen's Bench fus^Z\" "' Division refused to order jurisdiction to give security. the defendant who was out of the s Q- b. d 144. Interpleader I" interpleader issues the principles adopted are somewhat dif- issues. ferent, and depend on the peculiar nature of the action. In Benazech v. Bessett, a claimant who was substituted for the defendant under an interpleader rule was held entitled to call upon a foreign plaintiff for security. In Williams v. Crosling, the judgment creditor who resided abroad was made defendant, and the assignees in bankruptcy plaintiffs : on an interpleader by the sheriff, the defendant was ordered to give security, the Court considering that the real nature of the action was a suit at the instigation of the execution creditor to have effect given to his execution. In Belmonte v. Ayfwrd what is conceived to be the true principle was laid down : that the parties are made plaintiff and defendant for convenience, and that therefore the plaintiff, although out of the jurisdiction, cannot be called on to give security, as he does not occupy the position of a person commencing an action. Benazech v. Bessett. I C. B. 313. iVilliaiiis V. Crosling. 3 C. B. 957. Belmonte v. Aynard. 4 C. P. D. 221-352. Exemption The Only ground on which such persons as are liable to give ground of security will be excused, is the possession of real property, or perm^en°t property of a permanent nature within the jurisdiction, which property may be rendered liable for payment of costs should judgment be given for the defendant in the action. The posses- Not money, sion of moucy. Or such property as can easily change ownership will not be sufficient (Edinbro' and LeitJi Railway Co: v. Dawson); Edinbro' Hy' V. even though there be a large sum at the plamtiff's bank ; and in Dawson. the case of a company, even though many shareholders, respon- " ^"' sible for the unpaid calls on their shares, are resident in the kingdom {Li>ne)-ick and Waterford Railway Co: v. Frascr \ Ril- i^"^crick kenny Railway Co: v. Fielden). And even where the vA^anXiE Eraser. . 4 Bing: 394. does possess real estate m this country, it must clearly appear to Kilkenny Ryi V. the court that it is unencumbered, and that the defendant can Fieiden. recover his costs out of it by process of law {Swinburne v. Carter), swinburm In Hamburger v. Poettijig however this strict principle was not 23 \!^}\' approved : Bacon, V.-C, declared the rule to be that the applica- Ha^nburger tion for security would be refused if the plaintiff possessed sub- 30 w^ r"'"^' stantial property in this country luhether real or personal. ^^^" Case of a Company. Realty must be un- encumbered. ABSENCE FROM JURISDICTION. 1 93 There is no ground for supposing that any difference is made in Rules appii- Chapter V. this respect between subjects and foreigners : the principle of the subject" and whole subject being the presumption that foreigners are not likely ^ '^"^" 'aZJies. to possess substantial property in the kingdom. In the case of ^«°;^-^" ^^' J°"''^ plaintiffs, where only one of them is abroad, security will not j^int '^0^'= be ordered ((9rr V. ^ca//^j-. Anon:. Anon:. Thomel \. Jioelants) ■.'^^^''^^^^■ Anon: 3 gvcn though the plaintiff who is within the jurisdiction is insolvent la.unr: 207. i_» 1 J rhomeiy. {McCon7iell V. Tohusion. Sykes v. Sykes) : but one of two defen- Roelants. *^ . . -^ / 2C. B. 290. dants may make the application (Carr v. Shaw). V. joiinston. The qucstion whether the provisions of Order XVI. rule i of joinder of Sykes V. ■ the Judicature Act, relative to the joinder of parties, had made any cTrderxvi!'^ L. R.'4 difference in the old law was discussed in the recent case of"^"'^'' Car^v.^' D'Hormusgeev. Grey. The decision of the Divisional Court was 6 T.^. 496. based on the Chancery case of Umfreville v. Johnsofi. There is gee y!^Grey. howevcr an important difference between the cases which it will 10 Q. B. D. ^g useful to notice. In the Chancery case two plaintiffs, each y!yi>^ion. having a separate cause of action, joined in a suit to restrain a Ch-^8o° common nuisance. In the Common Law case two firms sued jointly, or in the alternative the English firm separately, or again in the alternative the Indian firm separately. Thus the two decisions embrace the many variations of joinder of plaintiffs which may occur. Rule i however covers all the cases and concludes thus : — ' But the defendant, though unsuccessful, shall be entitled to his 'costs occasioned by so joining any person or persons who shall * not be found entitled to relief Let us see how the matter stands. In order to save the expense of two or more separate actions, the several plaintiffs may join and bring one action : there is soroe additional expense however occasioned by the joinder. In case of failure of both plaintiffs, each (supposing only two joined) is liable for the whole of the defendant's costs ; as between themselves each is liable for half: if both are successful the defendant is relieved from the costs of two actions : if one is successful, the defendant has to pay the costs of the whole cause, less the costs of joinder; these costs fall on the unsuccessful plaintiff, and are the only taxed costs for which he is liable ; but he has to pay them to the successful plaintiff, as they will have been deducted from the costs of the cause. But if the defendant is successful, both plaintiffs being liable for the whole costs of the cause, which include the costs of joinder, he has still some one within the juris- diction to whom he can look for costs. Security from the plaintiff abroad is therefore unnecessary. As between the plaintiffs themselves however it is by no means o 194 SECURITY FOR COSTS. Both plaintiffs out of jurisdiction. Consolidated actions. improbable that the question might arise ; more especially in Chapter V. cases where the plaintiffs have not been joined by consent. ~ Following out the principle, where both plaintiffs reside out of the jurisdiction, security would be ordered from both propor- tionately, or from either. The principle does not seem to apply to the consolidation of actions by different plaintiffs against the same defendant, and we should imagine that those plaintiffs who are out of the jurisdiction would still be liable to give security. Costs already incurred. Increase of amount. Case of all parties foreigners. ^Vhen application to be made. After inter- locutory- judgment. After final judgment. Should be made directly after knowledge of absence. What amounts to a waiver of right. The amount of security is generally left in the discretion of the Master {French v. Maule) ; the question is dealt with generally by Order LXV. rules 6 and 7 \cf: Paxtoii v. BeU\ There seems some doubt whether it will be ordered to cover costs which have already been incurred. It was refused in the Republic of Costa Rica V. Erlanger, and Sturlia v. Freccia ; but was given in Massey v. Allen : \cf: Kemble v. Mills, S2ipra p. 187.] An application for increased security may be made [Republic of Costa Rica v. Erlanger). In Sturlia v. Freccia Malins, V.-C, refused to make a further order because all the parties were foreigners who must, he said, fight it out among themselves. This was overruled by the Court of Appeal, the question not being affected in any way by the defendant's nationality. The old rule seems to have been that the application might be made at any stage of the proceedings before issue joined {Doiiiling V. Harman) ; but in Barker v. Hargreaves, security was ordered after notice of trial. It will not however be ordered after an interlocutory judgment has been signed until it has been set aside {Luzaletti v. Foivell) ; and it is too late to apply after final judgment has been given {Bohns v. Sessions). The first application must be made as soon as there is any occasion for it ; that is, directly the defendant knows of the plaintiff's absence ; it wall not be entertained if any further step has been taken after the absence has come to the defendant's knowledge. {Meliorucchy v. Melio?-ucchy. Anon:, ex parte TulL Weeks V. Cole. Swanzy v. Swanzy). But this rule must be qualified by the decisions in Murrozv v. Wilson and ex parte Seidler, in which it was held that the defendant does not by simply defending an application against him lose his right to security. And on the same principle it was held in an Irish case, Tellett v. French v. Maule. 4M.&G. 107. Pax tan v. Bell. W. N. 1876, pp: 221, 249. Costa Rica V. Erlanger. 3 Ch: D. 62. Sturlia v. Freccia. W. N. 1878, p. 161. Massey v. Allen. 12 Ch: D. 807. Kemble v. Mills. I M. & G. 565. Sturlia v. Freccia. W. N. 1877, pp: 166, 188. Dowling V. Harman. 6 M. & W. Hargreaves. 6 T. R. 597- Luzaletti V. Poivell. 1 Marsh 376. Bohns V. Sessions. 2 Dowl: 710. Meliorucchy V. Melio- rucchy. 2 Ves: Sen: 24. Anon: 10 Ves: 287. cxfi: Tull. 3 Dea: & Ch: 503. IVeeks V. Cole. 14 Ves: 518. Swanzy v. Swanzy. 27 L. J: Ch: 419. Murrow v. Wilson. 12 Beav:497. exp: Seidler. 12 Sim: 106. 6 M. & W. 131- Duncan v Stent. ABSENCE FROM JURISDICTION. I95 Chapter V. Lalor, that entering an appearance requiring a statement of claim to be delivered was not a waiver of the right to security : and Lailr. "' again in Dou'ling v. Harman that it might be made after an order c.^p.^.^s'. ^o** ti"^^ to plead. In Duncan v. Stent it was held that if the h'^U' application is made after plea, the affidavit must expressly state the absence of knowledge before pleading [see case on page 196]. In the N'orthainpton Coal Co: v. Alidland Waggon Co:, there s B. & Aid: had been no application for security up to a late stage in the pro- Northamp- ceedings : but the statement of claim had been amended, and an ton Co: V. _ ° _ _ ' MidiandCo: entirely new case had been presented requiring additional evidence : Exception ^Vyiiie'y.^' the application was entertained. So in JVyllie v. El/ke, the ^a'^se" "^"^ II Beav: 99. defendant obtained security although he had filed his answer, as ^'^''^^" ^ ' the plaintiff's, residence abroad came positively to his knowledge for the first time by its being definitely stated in the plaintiff's amended bill. Grant v. 'E^piLme. The same principles apply to an appellant out of the jurisdic- Appellant. c p 'TA , [see esses ^30" ■ tion. \x\ Grant V. Banque Franco-Egypiienne, iho. di'^'^tS\.2SiXh€\'Cigc\\.^^oxi-^^zi Naersnoos ^ foreigner domiciled abroad was held to be a special circumstance Royal Mail ^yithin Order LVIII. rule 15, and security for the costs of an appeal w.^N. 1880, from an interlocutory order was required. See also Naers7ioos Ice re Indian (Jq ■ y. Roval Mail Co:. But in re Indian Kingston Minins Co\ Mining Co: -^ w.^., 22Ch:D.83. the Court of Appeal held they would not be so strict in enforcing Beardy. promptucss as whcrc the application is on the ground of poverty. 5 Dowl: 161. ir J Jones V. 2C^& J. With regard to the affidavit it is doubtful whether the stage at Affidavits. ^Luzaietii which the proceedings have arrived should be shown : in Cole v. i'Ma^h376. Beardy dind/ones v. Jones it was held to be unnecessary; and in Ho/Jet-^' Luzalletti v. Fotvell to be necessary, and this seems to be more in y^yn^sv^*' conformity with the principle of the cases just cited. In Sandys f D^'&T.' ■^^ Hohler and Joynes v. Collinson, it was held that the plaintiff's Cardweiiy. residcncc abroad must be sworn to positively, and that information f w" r" 525 ^"^ belief with regard to it were insufficient : but in Cardwell v. ^itZn ^' ^"^^^^^ this was held to be sufficient, if the reasons on which the ^Huntuyl^' ^^^^^^ ^'^^ fouudcd Were given, and if the facts thus stated Application Biiiwer. remained unanswered. In Adams v. Brown and Huntlev v 'ooppo^''^ 6 Dowl : 633. . -^ ■ party Bulwer, it was held that there must be a previous application to, necessary. and refusal by the opposite party to give the security : but in Bailie v. De Jones V. Jones and Bailie v. De Bernales, it was held unnecessary iB. &Ai'd: although in the former case it was said that there would be no tkeCon- stay of proceedings until the security was given unless such an 4 p.d"i56. application had been made. In the Constantine however it was 196 SECURITY FOR COSTS. laid down that where the plaintiff was clearly liable, security ought Chapte to be asked for, offered and accepted without the intervention of ^' the court. Plaintiffs in U.K. With regard to security from plaintiffs residing in any part of the United Kingdom being no longer required, see the ' Judgments ' Extension Act, 1868,' considered in chapter xi. Forms. The forms connected with this subject will be found in Chitty's Forms, nth ed: p. 216 et seq:. but will not be given if claim be admitted. ADDENDA : to page 1 90, last line but three : — but in a still more recent case, De St. Martin v. Davis, where the De st. Mar- application under Order XIV. was about to be made on the strength w. n. 1884,' of a direct admission by the defendants of their liability, Field, J., refused to order security, because it was impossible that the plaintiff could have to pay any costs. to page 195, line 6 : — will be given \{ time to plead has been allowed, security will be granted at any wihon after time to -^ ' •' ° •' M;„yU,\ plead and before plea. appellant out of the jurisdiction time before the pleading has been delivered ( Wilson v. Minchin). 1 Dowi: ^99 to page 195, line 17 : — after ' appellant out of the jurisdiction,' add the following cases : — Hill v. Fox} Earl Dudley v. Lumley} Lewis V. Ovens} Bougleux v. Swayjie} in default of security being given, the respondent will be allowed to proceed to judgment. '27 L. J: Ex: 416. ' 8 VV^. R. 543- " 5 B. & A. 265. *3E. & B. 829. 197 Chapter VI. CHAPTER VI. THE RULE 'LEX FORL' PAGE General statement of the rule ........ 197 Statutes of Limitation . ......... 198 i. remedy barred in one country only ..... 198 statutes of prescription ...... 200 statute of frauds, sec: 4 200 ii. foreign judgment proceeding on statute .... 202 statutes of prescription 203 iii. time in action on foreign judgment 203 Interest on a foreign judgment ........ 205 rate after English judgment ........ 206 Costs awarded by foreign court ........ 206 Parties to action on foreign judgment . 207 Commission to examine witnesses abroad . . . ; . . 208 Lopez V. Burslem. 4 Mo: P. C. C. 300. De Ja Vega V. Vianna. I B. & Ad: 284. Britisk Linen Co: v. Drutnmond. 10 B. & C. 903- All matters relating to the procedure of an action are governed by the law of the country in which the action is brought. This is universally accepted and acted upon, and is called the rule ' lex fori' : the reason of it becomes sufficiently clear in the following enunciation of it. ' On matters of procedure, all mankind, whether aliens or liege f^^^^n^tion ' subjects, plaintiffs or defendants, appellants or respondents, are ^Jj^^^^. 'bound by the law of the forum.' (Lord Campbell, C.J., Lopez v. Burslem.) ' A person suing in this country must take the law as ' he finds it ; he cannot, by virtue of any regulation in his own ' country enjoy greater advantages than other suitors here, and he 'ought not therefore to be deprived of any superior advantages ' which the law of this country may confer. He is to have the ' same rights which all the subjects of this kingdom are entitled 'to.' (Lord Tenterden, C.J., Be la Vega v. Vianna ; British Linen Co: v. Drummond.) And cf: Story, Conflict of Laws, The most important application of this rule in connexion with foreign judgments is the eff"ect of Statutes of Limitation, which we now propose to consider. 198 THE RULE 'LEX FORI. Statutes of limitation. Their bearing on the subject. Statutes of Limitation. Statutes of Limitation have three distinct bearings upon the ' subject of foreign judgments. i. Where there exists concurrent jurisdiction, the remedy being barred in one country and not in the other. ii. Where there exists concurrent jurisdiction, but where a judgment has already been given in one country, which judgment has proceeded upon the Statutes of Limitation of that country. iii. The time after which the remedy upon a foreign judgment is barred. Chapter VI. Concurrent jurisdiction. Remedy barred in one country only. Universal rule that the plea is bad. i. Where there exists concurrent jurisdiction, the remedy being ban-ed in one country a?id not in the other. We have explained in a former chapter [cf: p. 64], what is meant by the term ' concurrent jurisdiction ; ' a cause of action in respect of the same matter exists in two countries. Now, Statutes of Limitation, so long as they do not actually extinguish the debt, are part of the rules of procedure of the courts, barring only the remedy or right to sue in the country. And every country having Statutes of Limitation peculiar to itself, the prescribing time naturally varies in each according to the will of the Legis- lature : and it follows therefore that where the cause of action is existent in two or more countries, following the abode of the parties the place of contracting, etc., the right to sue may be taken away by statute in one, while remaining in full vigour in another. The question then is, what effect will be given to a plea, in an action in this country, alleging that the cause of action is barred by the statutes of the other country ; and if that other country happen to be the one where a contract was entered into or was to be performed, that this bar is in accordance with the lex loci con- tractus ? On this subject the language of Huber expounds what has long been the universal rule : — ' Ratio hsc est, quod prescriptio et ' executio non pertinent ad valorem contractus, sed ad tempus et ' modum actionis instituendae ' [De Conflictu Leguni]. Thus in Cooper V. Earl IValdegrave, Lord Langdale, M.R., said, 'H z. Cooler v. Earl ' remedy is sought for non-performance of a contract, the inter- Waide- ' pretation of which is to be governed by the law of the country 2 Beav: 28 ' where it was made, the mode of suing and the time within which ' the action must be brought are to be governed by the law of the ' country in which the action is brought : ' and Sir John Jervis, STATUTES OF I, IMITATION. 199 Chapter deli\iering the judgment of the Privy Council in Ruckmaboye v. Ltdloobhoy Mottichuud: — 'While the courts of almost all civilised VI Huher v. Steiner. 2 Sc: 304. Alliance Bank of Simlt V. Ca7ey. 5 C. P. D. Ruckmaboye * countrics entertain causes of action which have originated in a YuUoobhoy. 'foi'eign country, and adjudicate upon them according to the law p.'^c.'c. 4. ' °^ *^^ country in which they arose, yet such courts respectively ' proceed according to the prescription {(juery, limitation] of the ' country in which it exercises its jurisdiction.' So in Huber v. Steiner, where the distinction was drawn between that part of the law relating ad decisionem litis, which is adopted from the foreign country > and that part relating ad litis ordi7ia- tio7ievi, which is taken from the lex fori of that country where the action is brought. Statutes of Limitation are essentially connected with the conduct of the suit, and part of the lex fori; varying it may be, in every forum, and with every subject matter : — ' It is ' only the remedy, and not the cause of action that is barred by * the foreign statute ; the foreign prescription is no more than a ' limitation of the time within which the action must be brought in the foreign court.' (Tindal, C. J.) And again in the Alliance Bank of Simla v. Carey, the Indian and English courts had concurrent jurisdiction, but the action was on a specialty debt, and in Indian law there is no distinction made in this respect between specialty and simple contract debts, the remedy in either case being extinguished in six years : it was held that the action could be brought in England within twenty years. The same doctrine was approved in the following cases :— Don v. Lippman} Fergus son v. -Fyffe? Lopez V. Bursleni? British Linen Co: v. Drummond} Bury V. GoldnerJ' Williams v. Jones.^ And cf: Story, Conflict of Laws, § 577 et scq:. In British Columbia however the rule has been abolished, and a Statute has recently been passed (40 Vic: c. 109: cf: p. 393), which provides that if the remedy on a cause of action is barred in the country of its origin it shall be a good defence in the Colony. A similar provision exists in many of the Codes of the United States \cf: chapter xiv.]. But a distinction has been drawn by nearly all the old jurists between those statutes which bar the remedy, which we may call Statutes of Limitation proper, and those which do in fact extin- ■ 5a:&F. = '8C1:&F. 121. •■' 4 Mo: P. C. C. 300. * 10 B. & C. 903- ' I D. & L. 834- "13 East 439- 200 THE RULE 'LEX FOR/.' Statutes of guisli the debt or cause of action, and which have been called to Chapter Prescription. ,. . ... ^ r t^ • • ^t-.! • ■ VT distinguish them Statutes of Prescription. The opinion seems to ''^• be almost universally accepted that these are something more than mere Statutes of Procedure, ' because they not only extinguish the 'right of action, but the claim or title itself, ipso facto, and declare ' it a nullity after the lapse of the prescribed period.' [Story, Con- flict of Laws, § 582 et seq.-] and this principle has been adopted by the Indian Limitation Act (Act xv of 1877, s. 11. cf: p. 382) which provides that a defence relying on such a statute shall be good. In an American case — Hendricks v. Comstock [Indiana! — this Hendricks ■- -^ V. Comstock was doubted, and the court held that these statutes also related to '^ i"d: . . . Rep: 238. procedure, and that a judgment proceeding upon one did not go to the merits of the case and was therefore not to be recognised or enforced. But in Beckford v. Wade the law of Jamaica of 4 Beck/ord v. G. II, giving an absolute title to lands from adverse possession, i7Ves:87. was held not to be one of procedure ; and the general doctrine stated above was approved by Tindal, C.T., in Huber v. Steiner. Huberw. . . . ... sterner. Section 4 of It wiU be appropriate here to notice the important decision in 2 Sc: 304. the Statute i i i Leroiix v. of Frauds, the casc of Levoux v. Brown ,• the Court of Exchequer Chamber Brown. Leroux\ ■ , 12 C. B. 801. Brown ' held that the fourth section of the Statute of Frauds relates merely to procedure, and that therefore an action cannot be maintained in England on a parol agreement which is not to be performed within one year, although it was made in France and was valid and enforceable there. Criticised by This decision has provoked much Controversy. In IVilliarns y. ^F^V"^"- "'^' Wheeler, Willes, T., thus commented on it: — 'I cannot helpSCB: . . "^ N. S. 299. ' observing that I should require much more argument to satisfy ' me that a contract made in France without writing, which is valid ' by French law, is incapable of being enforced in an English ' court by reason of the requirements of the English law as to the ' formalities of contracts made in England. The general rule is '■locus regit actum. And, though I fully recognise the principle 'upon which the judgment of this court in Leroux v. Brojtm pro- ' fesses to be founded, namely, that the procedure is regulated by ' the lex fori, I am not satisfied that either of the sections of the ' Statute of Frauds to which reference has been made warrants the 'decision.' And in a later case, Gibson v. Holland, the ?,a.me Gibson v. learned judge again spoke of the decision in these terms : — l. r. i c. ' Great difficulty has arisen as to the construction of this section ' as being applied to evidence only ; and I have on a former occa- ' sion expressed the inability I felt to understand the case of STATUTES OF LIMITATION. 201 Chapter ' Leroiix v. Brown, though of course we are bound by it.' On the ^^- other hand there are the judgments of Jervis, C.J., and Maule, J., which cannot be Hghtly ignored. Stated shortly, the point in dispute seems to be this: — The Does this /• ii i- • 1 11 , ■, , • section refer fourth section says, an action shall not be brought on certain merely to agreements unless certain evidence is produced to remove the '"^°" fraud pre-attached to such agreements by the statute : — The question then is reduced to this : — Is the requirement of certain evidence part of the law of procedure ? — The answer must be in the affirmative. Leraitx v. But Leroux V. Brozvn has also been attacked from another point Criticised i7'q%. 8oi. of view in the Indian courts. In the case of Nekram Je7nadar v. judges.^" fsw'aH^"' Iswat'iprasad Pachuri, Couch, C.J., said that he agreed with s^Be^ai Story in not distinguishing as is usually done the fourth from the Rep: 643. seventeenth sections : Phear, J., said that in his opinion section 4 was undoubtedly a rule of procedure, but that in cases where such a conflict arose as in Let-oiix v. Brotvn, the rule of procedure ought to be abandoned in favour of the law of contract : — The requirement of section 4 is paralleled with ' such a rule as that ' which would disqualify parties to a suit from being witnesses in ' their own behalf The effect of this rule in cases of any parol ' contract to which the party alone could speak, would be pre- cisely analogous to that of section 4, for obviously the aggrieved * party would be deprived by it of the only means which he pos- ' sessed of proving his contract ; and I suppose no one would ' consider a rule which disqualified a certain class of persons from ' appearing as witnesses to be anything other than a rule of pro- ' cedure. It may be questioned whether the principles which ' admittedly guide the courts of all countries in the administration should not * of justice under a conflict of law, do not in truth necessitate the p'^oc™dure*^ 'abandonment of the rule of procedure in favour of the law of^^^^'^^'^- ' contract : The Court of Common Pleas no doubt went the ' length of holding that the rule of procedure must still be main- ' tained. I think I should hesitate a long time before I should be ' able to bring myself to concur in that conclusion. But the first 'part of s. 17 of 21 G. III. c. 70, makes the manner of hearing Section 4, * and determining, which comprises the procedure of the Supreme reiTtfng to ' Court, (and therefore impliedly in my opinion section 4) — does^nlsT^' * generally applicable to the suits to which it refers : but the latter o'en't'^is" on 'part expressly cuts this down by the proviso that in the case oi^^^^^l^^ ' Gentus, all matters of contract and dealing between party and '^°' ^- '7- ' party shall be determined by the laws and usages of Gentus ; in ?02 THE RULE 'LEX FORl! ' Other words, the rule of procedure if it affects the original right Chapter 'of the parties, must in the event of conflict give way to the law ^^" ' and usages of Gentus.' In this Indian case a statute solved the difticulty : but the necessity for such a statute seems to imply that in its absence the rule of procedure would be the more powerful in determining upon the conflict : an injustice to the natives which the legislature sought to remove. But the arguments of Phear, J., seem to apply with equal force to Statutes of Limitations ; and once the fourth section is conceded to be a question of evidence, that is a ques- tion of procedure, we can suppose a Statute of Limitation to stand in its place in Leroitx v. Broivii without affecting the principle oi Lerotixv. ... , . Brown. that decision. Till however the case is overruled it must be con- 12 c. B. 801. sidered to be good law. \cf: Story — •' Conflict of Laws -§§ 262, 435, 631.] Foreign judgment proceeding on statute. The real effect of this judgment. ii. IV/iere there exists conairrent pirisdiction, hut ivhere a judgment has already been giveii in one country which Judgmetit has proceeded upon the Statutes of Limitation of that country. Shortly the question is this, what effect will be given to a foreign judgment based on a Statute of Limitation? The preliminary dis- cussion having paved the way, the answer may very easily be arrived at. The judgment will be disregarded : for substantially all that it declares is, that by the lapse of so many years, the plaintiff has lost his right to sue in the courts of that country, (Lush, J., Harris v. Quine), and not that he has lost his right to sue in the courts of any other country, in which he is entitled to bring an action for the same cause. In the same case Blackburn, J., forcibly expressed his views upon the subject :— ' The plea ' shews that the Manx court has decided that the debt is barred ' in three years ; but I don't really see why by the Comity of ' Nations we ought to hold the debt barred here : where it appears ' that the very point in dispute has been the subject of an express 'decision in a foreign court, we are estopped from dealing with it; ' but it would be very strange if the decision of the Manx court ' that three years has elapsed since the cause of action, should be 'an answer to it in England.' There are two ways of considering the question : — In Harris V. Quine, Cockburn, C.J., based his decision upon^^^r^v. the ground of the dissimilarity of the issues : a ground, it will be \"'k.\ remembered, fatal to the plea of judgment recovered: — the issue ^' ^'' ^^^' in the Manx court was whether three years had elapsed : in the STATUTES OF LIMITATION. 203 Chapter English court, whether six years.. — There may of course be a ' coincidence in the number of years necessary, by the English and foreign statutes, to suspend the cause of action. The practice of the courts coincides also in every respect with Practice of the principles advanced in the earlier chapters. The courts have Lg^rJeTwfth declared that the fact of the judgment having proceeded on Ks^'" a foreign Statute of Limitation does excuse the plaintiff's obe- 'Chapter. dience to the negative obligation. In so doing, have they acted as Appeal Courts from the foreign court ? Clearly not : — For there has been no judgment upon the merits abroad, which it would be the province of a Court of Appeal to review : Neither do they criticise the foreign statute : they have only acted upon a doc- trine of International Law, that each country is entitled to regulate the procedure of its own courts ; and have declared the English Statutes limiting the time in which an action may be brought in English courts, to be different from the foreign Statutes. But remembering the distinction already drawn, a different principle would apply where the judgment has proceeded on a foreign Statute of Prescription. Then, not only the remedy in the foreign court Statutes of having been barred, but the title in the opposite party confirmed ; '^^^"'^ '°" the recovery of a debt not only having been denied to the suitor, but a presumption of payment raised, such a judgment is virtually on the merits of the case and should be recognised and v^Comstock ^'^forced in this country. But cf: Hendricks v. Comstock [Indiana] 12 ind: quoted on page 200. iii. The time after ivhich the remedy upon a foreign judgme?it is barred. The question of time, that is the consideration whether in an Considera- action on a foreign judgment the English Statutes of Limitation EngiTsh^ may be pleaded, involves two questions of some difficulty : — be^leaded^ From what period is the time to be calculated ? judgment. What length of time bars the action ? Adopting the words of the statute, the ' cause of such action ' \yhat period appears to be the foreign judgment, and this being so, the time from? would run from the date of such judgment : but it may also be said, that the ' cause of such action ' is the plaintiff's coming into this country ; or even the exercise of his discretion in calling into action the latent auxiliary sanction resident in the English Sovereign Authority : in the former case, some difficulty would arise in fixing the precise period of his arrival here : in the latter case, the question under the Statute, of course, could not be raised. 204 THE RULE 'LEX FOR/: InHeera Mo nee Dossia v. Promothonath Ghose [India], the deci- Chapter sion of the Lower Appellate Court, that the cause of action did ' not accrue within the cognisance of the English court until the ^^^^^ proceedings in execution which had been taken in the French ^f;^^^''- court proved totally or partially infructuous, was overruled ; after s^w. r: civ: accepting the doctrine of Williams v. Jones, Phear, J., continued, wunams ... .... 111-1 V. Jones. ' But if the obligation to pay which is imposed by the judgment 14L. j: ' be final and definite, the fact of the non-payment must render the "' "*^' ' cause of action complete, quite irrespective of any proceedings ' in execution to obtain payment. In truth the judgment creditor 'is not bound to take any such proceedings at all unless he ' chooses, his right against the judgment debtor to be paid stands ' entirely clear of them. Therefore his title to come into another ' court to enforce that by suit must be clear of them also, and ' must date from the day upon which judgment was finally ' given.' What is to But supposing the time to run from the date of the foreign limiting judgment, is the limiting period to be twenty years as on an period? English judgment, or six years, the judgment being treated as a simple contract debt ? In Kingv. Demers [Lower Canada], it was stated in the argu- Khig^. ment that the English period was six years, and that therefore the 15 l. c' Canadian period should be the same. Mackay, J., said that in Canada there was but one law of limitations for home and for foreign judgments ; and that he doubted whether the English period were really six years, the contrary being laid down in books, especially in Wilkinson on Limitations. In India and in many of the American States the limiting period on the home and foreign judgments is different. In some of the oldest cases, for example Dupleix v. De Dupuixy. Roven and Atkinson v. Lord Braybrooke, it has been held that a 2 Vern: 540. foreign judgment, when it comes before the English courts, is Braybrooke. nothing but a simple contract debt : but in the second part of ^os.^""^" W- p- 22-] t^'ie first chapter, we have endeavoured to show that this idea is fallacious and completely at variance with either of the general theories, and it is suggested that if the English statute can be watson v. pleaded, the limit must be twenty years as on an English judgment 15 s^;m: 523. ( Watson v. Birch). The rule would then be that the English courts cannot be made use of for the recovery of judgment debts, whether English or foreign, after twenty years. If however the theoretical Should not foundation of the whole question be the commission rogatoire, or waived^*"' demand by the foreign tribunal itself, [cf: p. 12], courtesy would INTEREST. 205 Chapter VI. Reitners v. Drjice. 26 L. J: Ch: 196. seem to demand the waiving of the rule of procedure. This may possibly have been the view taken by Romilly, M.R., when he held in Reimers v. Druce, that Statutes of Limitation could not be pleaded in an action on a foreign judgment, but that never- theless the plaintiff ought to be diligent in his proceedings, and that a delay of thirteen years was unreasonable. From the foregoing discussions it is evident that a defence setting up a foreign Statute of Limitation as having extinguished the time within which the foreign judgment might have been sued upon in the country, in which it was pronounced, is bad. It is also clear that this question of time does not apply in any way to the defendant's plea of judgment recovered. Amott V. Redfern. 3 Bing: 353- Douglas V. Fori'est. 4 Bing: 686, King V. D enters. 15L. C. Jurist 129. Loney v. Richards. Argus Rep: 28 March, Interest on a Foreign Judgment. The rate of interest on a judgment may also be considered part interest on .... foreign judg- of the procedure of the courts, and will therefore come within the ment to be '^ ... regulated rule lex fori. Therefore the question of interest on a foreign by rules of judgment will be governed by the law of the country ivhence the country. judgment comes. If interest is given by that law on the judg- ment, whatever the rate may be, it becomes an integral part of the judgment to enforce which the action is brought in the English courts ; if no interest is given by the foreign law, none can be recovered here : the question depends entirely on the foreign law, which unless it is specified in the judgment, will have to be proved in the usual manner. This is in accordance with Amott v. Redfer^i, Douglas v. Forrest, and King v. Demers [Lower Canada]. So too, if by the foreign judgment, interest has been given on interest ' ■' a J a . . awarded by the contract which was the foundation of the action, that interest foreign court can be will be recoverable. In Aj-nott v. Redfern it was contended that, recovered, as the contract which was the foundation of the action in which the foreign judgment had been given, was made in England, and was a contract upon which no interest would be allowed by our law, the court was not bound by that part of it which awarded interest: but Best, C.J., held that this argument could not be maintained in conformity with the rule that an error in English law forms no defence to the action, or to any part of it. See also Loney v. Richards [Victoria]. 206 THE RULE 'LEX FOR I.' What rate after English judgment pronounced ? Chapter VI. No merger of foreign judgment in English judgment. Foreign rate should accrue. The only difficulty appears to be whether, when the English court by its judgment gives effect to the foreign judgment, the after- accruing interest is to be calculated by English or foreign law. We must revert to the general theory : — The creditor is no longer to be considered as electing to treat the foreign judgment as a debt in England; were he able to do so, undoubtedly the English rate would run on the English judgment : — but the creditor in reality takes advantage of a comity by which one state exercises its power of enforcing an obligation for the advantage of another state; the judgment of the court is the act of clothing with power the judgment of the foreign court, inoperative beyond its own jurisdiction ; — it seems therefore to be a natural consequence that the rate of interest, according to the foreign law, should continue to accrue. For, there is no merger of the foreign judgment in the English ^«'^«'-«"'- judgment as of any ordinary cause of action, it still continues to ^"*' exist until it is satisfied, notwithstanding the English judgment i- l. R: upon it {Fakuruddcen Assan v. Official Trustee of Bengal. — Calcutta) : and if the English court will enforce the foreign rate up to the date of giving that judgment, it seems to follow that it should continue to do so until payment. The interest on the judgment is separable from the original debt, and supposing the judgment satisfied only so far as regards that debt, and not so far as the interest accrued on the judgment, there is no doubt than an action could be maintained in this country on the foreign judg- ment to recover the interest alone. Thus it follows that till satisfaction of the English auxiliary judgment the foreign rate of interest must still be accruing, and that an action could be brought for that amount. It follows too that if by the English judgment the English rate of interest were only accorded till payment, an action could be brought in the foreign country to recover the difference between the English and the foreign rates ; and this judgment in its turn might form the subject of an action in England. Costs awarded by foreign court can be recovered Costs awarded by the Foreign Court. In like manner all questions as to costs are questions of procedure, and will be governed by the foreign law. If the foreign court by its judgment has awarded costs to the successful party, they also become an integral part of that judg- COSTS. PARTIES. 207 Chapter VI. Ritsse/l V. Smyth. 9 M. &\V 810. ment to enforce which the action is brought in the EngUsh courts, and as such can be recovered. This is in accordance with Russell v. Smyth, a case in which the action was brought for costs alone, they having been awarded against the defendant in a suit for divorce abroad. And it would seem also that if by the foreign law costs follow the event, upon proof of that law they can be recovered although they are not expressly awarded by the judgment. Aboidoffv. Oppen- heiiner 52 L. J: Q. 1!. 309. Vangjielin V. Bouard. 33 L- J: C. P. 78. Kandasanii V. Moidui. I. L. R: 2 Mad: 338. Parties to the Action on the Foreign Judgment. So too as to the parties to the action on the foreign judgment : the rules of procedure of the court in which the action is brought must be complied with ; foreign suitors must take these rules as they find them, and must sue and submit to be sued in accordance with them. For example, a married woman having recovered judgment in a foreign country, by the laws of which she is allowed to sue by herself, will not be allowed to bring an action on that judgment in this country except by her husband or next friend, without the leave of the court {Abouloff v. Oppenheimer). This is of course subject to the usual exceptions, for which see Chitty's Forms of Proceedings, iithed:pp. 519-520. But on the other hand, the character in which the sues will be governed by the foreign law. Thus in Vanquelin v. Bouard a widow, who by the law of France was donee of the universality of her husband's real and personal estate, and who thereby became entitled personally to sue and be sued in respect of debts owing to and from the estate, was held entitled to sue on a French judgment in this country without taking out letters of administration. The converse of this rule was decided in Kaudasami Filial V, Moidui Saib [Madras]. The nature of the execution on the judgment enforcing a foreign judgment is of course part of the lex fori: and therefore an action on a French judgment against the defendant's father, who was deceased, having been brought against the son, the decree was granted only against him as representative to be levied from the assets of the deceased. The same remarks apply as to actions by infants, persons of unsound mind, and bankrupts. But as before, the determination of the status may also depend on foreign law : the law on this subject is discussed in chapter x. Parties to action on foreign judgment. Married Must sue according to English rules. But the character in which she sues is governed by foreign law. Infants, etc ; 208 THE RULE 'LEX FORI.' In Worms v. JDe Valdor, a French subject had been adjudicated Chapter • 1 VI prodigal, and by French law he would be unable to sue without his conseil judiciaire. Fry, J., held that there was no change of status, but that the requirement was merely a question of pro- ivormsw. cedure in the French courts, and that therefore he might sue by 49 L- J: , . , - . , . Ch: 261. hmiself m this country. In Bullock V. Caird, an action against a Scotch firm, a plea Bullocks. ... Caird. alleging that by Scotch law the firm or the whole individual l. r. 10 OR onf\ members thereof jointly should have been sued before the parties individually was overruled, it being held to relate purely to procedure, and although it would have been a bar to the suit in Scotland, it was not so here. Security for costs is also part of the lex fori, as to which see chapter v. Commission gg too is the issuc of a commission for the examination of to examine witness or wituesscs out of the jurisdiction : party. . ... No difference is made as to the examination of a party to the suit unless there are special reasons for making the party face the court or jury {Armour v. Walker). iVaiZr.^' As to the issue of a commission in an action on a foreign f^^/ ^■ judgment see ante p. 120. For another instance of the application or the rule see. Probate "^^j^^^^^^ p. 318, as to the appointment of administrators; and the case of Lj^R-^ ex parte Melbourn, re Aldbourn. Judgments In the Delta, the Ermiiiia Foscolo, Sir Robert Phillimore seems the Delta. by default. ^^ .^^^^ ^^^^ ^^^^ ^ judgment by default is a judgment on a matter ' ' ' of form only and not on the merits ; that the rules as to judg- ments by default are part of the lex fori, and consequently that a foreign judgment by default should not be recognised. This principle is also to be found in many foreign decisions. The facts of the above case however seem abundantly to show that there had been judgment on the merits. The principle should certainly be strictly limited to judgments coming from countries in which a judgment by default is a matter of form only, the law there not ^^„,^^^ requiring an examination into the merits. See however the Italian Y- ^'W case, Demarre v. Bosso, cited on page 480. ^879, p- 292- 209 Chapter VII. CHAPTER VII. JUDGMENTS NOT RECOGNISED. PAGE Judgments proceeding on Penal Laws ..•.•• 209 Judgments proceeding on Revenue Laws . . t . . .210 ,, involving breach of English Revenue Laws . . . ,210 Judgments of fantastical Courts 211 Judgments of Inferior Tribunals . . . . • • • •212 FoUiott V. Ogden. I H.Bl:i24. Lynch v. Paraguay Gov: L. R. 2 P. &. D. 268, Addatns V. Warden. 6 L. C. Rep: 237. Wattiery. le Ministre Piibligne. J. D. I. P. 1880, p. 576. Judgments proceeding on Penal Laws. It is an universal rule that the penal laws of a country are of no effect beyond the limits of the country; consequently judgments proceeding on such laws will not be recognised in any other state. Thus in FolUott v. Ogden it was admitted ' that by the criminal 'sentence of attainder of one sovereign independent state, no ' personal disability to sue in another was created ' although it had that effect in the state where the sentence was pronounced ; the principle was adopted by the Court of Probate in Lynch v. Pro- visional Governnmit of Paraguay [posf p. 317]; and it was also recognised in Addams v. Worden [Lower Canada], where it was held that the sentence of a court of criminal jurisdiction in a foreign state by which the exercise of the civil rights of men may be sus- pended or abridged, is limited in its operation to the state itself in which the sentence has been rendered, and does not deprive an individual of his natural rights elsewhere beyond that state. (See also Wattier v. le Ministre Publique [France]). The doctrine was carried further in FolUott v. Ogden, and it was declared that the consequence of the attainder, the divest- ment of his property from the attainted person, would also be disregarded; 'for,' said Lord Loughborough, C.J., 'if the penal ' laws of a foreign country do not in themselves import a personal ' disability to sue in this, neither do they, by divesting the property Penal laws. Judgments proceeding on them disregarded. And also the conse- quences of them. 10 PENAL LAWS. 'of a person in that country, take away his right of action in * England. I would say that a right to recover specific property, 'such as plate or jewels in this country, would not be taken ' away by the criminal laws of another. The penal laws of foreign 'countries are strictly local, and affect nothing more than they can ' reach, and can be seized by virtue of their authority. A fugitive 'who passes hither cannot be affected in this country by proceed- ' ings against him in that which he has left, beyond the limits of ' which such proceedings do not extend.' The consequence of this would seem to be that payment to the Crown of a debt due to a person under sentence of attainder would not be held a discharge in another state ; but this was doubted in McCrae v. Robinson [Victoria], in the digest of which case the following note occurs : ' In deciding that attainder does not prevent the plaintiff ' from suing, the court did not decide that attainder and payment ' subsequently to the Crown in Scotland would not form a good 'defence.' In Maule v. Murray the court refused to take judicial notice of the fact that the defendant had been arrested in America for the same debt, because it would be ' unjust to deprive the plaintiffs ' of perhaps the only security they had for the payment of their ' debts.' And in Wolff v. Oxhoh?i it was held to be no answer in an action to recover a debt from a Dane, that a suit in Denmark for the same cause had been suspended, and the debt paid to commissioners in virtue of an ordinance made by the government of Denmark pending hostilities with Great Britain, whereby all ships, goods, money, and money's worth of, or belonging to English subjects, were declared to be sequestrated and detained. Chapter VII. McCrae v. Robinson. Argus Rep: 17 May, Maule V. Murray. 7 T. R. 470- Wolff \. Oxholm. 6M. &S. 92. Revenue laws. Judgments proceeding on them disregarded. Westlake. Judgments proceeding on Revenue Laws. It is also an universal rule that the Revenue laws of a country will not be taken notice of by another country; consequently also judgments proceeding on such laws will not be recognised. {James V. Catherwood; Planc/ie v. Fletcher). yamesv. Nor, according to Mr Westlake, can it be imagined that Q.jd^&'r!"' foreign judgment sustaining a claim founded in a breach of they?,^^^^^^ English Revenue Laws would be enforced here. [International f Dwgf; Law ist ed: § 388.] This may also be referred to the general ^^i- principle of defence, that the enforcement of the judgment would involve a violation of English public law. Such cases may 341 REVENUE LAWS. 211 Chapter possibly occur, the doctrine on which the foreign courts would ^ proceed being based upon what has ' long been laid down as a story ' settled principle, that no nation is bound to protect or to regard ^^^' * the revenue laws of another country. (Lord Mansfield, C.J., Hoiman\. '^ Jfolman V. Johnson). A contract made in one country by I Cowper, <■ subjects and residents there to evade the revenue laws of another 'country is not deemed illegal in the country of its origin.' [Story — Conflict of Laws, § 257.] This principle has been argued against strongly by Pothier, Kent, and others ; and defended by Valin and Emerigon. ' It ' is, however,' adds Story, ' firmly established in the actual practice ' of modern nations ; too firmly, perhaps, to be shaken, except by ' some legislative act aboUshing it.' Two isolated cases may be noticed here. Robtnsonv. In RobiiisoH v. Bland, the judgment of a French Court of Foreign I w. Bi: Marshalls, a ' Court of Honour,' with regard to the payment of a couru.'^* ^^^' ^^ ' gaming debt, was disregarded as being the sentence of a ' whimsical ' and fantastical court,' resembling the Lawless Court held at Roch- ford in Essex. '^R^ikT "^^^ ^'^ Gage V. Bulkley, the judgment of a French Commissary Foreign 3 Atk; 214. Court for the same cause being pleaded in bar, the court refused courts. to recognise it, because it was the sentence, not of a judicial tribunal, but of a court of a purely political nature ' to determine 'disputes that might arise in relation to French actions.' These decisions must not be confused with the doctrine laid Price V. down in Pt'ice v. Dewhurst, in which a decision of the Executor's Deivhursi. . . 8 Sim: 279, Court of Dealing of St. Croix was called m question [cf: p. 117]. 302. of inferior courts. Judgments of Inferior Courts. It will not be inappropriate now to consider the effect of judg- judgment ments of inferior tribunals, which are sometimes said to come under the head of unrecognised judgments. Mr Bigelow in his elaborate Treatise on the Law of Estoppel has devoted some space to the subject [pp : 258-264], but he treats almost exclusively of the inter-state effect of judgments of the American Justices of the Peace, a question depending on the statutes of, and consequently purely of interest in, the United States. It is not unfrequently 212 JUDGMENTS OF INFERIOR COURTS. Actions on County Court judgments. The rules as to County Courts not applicable to foreign inferior courts. said that an action cannot be maintained on a judgment of Chapter an inferior court of a foreign country, that i.s to say, of those ^^^• courts abroad resembhng in their jurisdiction the EngHsh County Courts, which although inferior courts, are none the less Courts of Record. This notion proceeds on a misconception of what the law really is with regard to actions on County Court judgments. It was decided very soon after the creation of the courts that such an action would not lie, for the reason given by Lord Campbell, C.J., in Berkeley v. Elderkin. The Act constituting these courts intended Berkeley v. •^ . ° Elderkin. to establish an easy and cheap recovery of small debts, and it i e. & b. provided special remedies for enforcing the judgments. Therefore the law, not looking with any favour on actions of judgments of the superior courts, will certainly not allow actions on judgments of inferior courts. The second reason given that the judgment is not final because the judge has power to review is evidently fallacious, and it seems to have been so thought in a later case, Austin V. Mills. The rule is there again laid down, but the Austin v. judges were careful to explain that it in nowise altered the effect 9 £x: 288. of such a judgment being a conclusive bar to an action in another court, for the same cause of action. The argument based on the constitution of the English courts clearly does not apply to foreign courts whose jurisdiction is in like manner limited to the recovery of small debts, and there seems therefore no doubt that an action may be maintained equally on the judgment of an inferior as of a superior foreign court. Consular Courts. Certificate of non- judicial officers. In Waldron v. Coombe, the court refused to recognise the Waidron\. certificate of a British Vice-Consul, he being a non-judicial officer, 3 Taunt: although the proceedings in which it was given were somewhat analogous to those of courts of law. In Forbes v. Scannell [California], an assignment had httn Forbes y. . Scannell. executed in Canton before the United States Consul, and a con- i^iCai: troversy arising before him, in which the validity of the assignment was involved, he held it to be valid : there was a right of appeal from his decision to the United States Commissioners. The court refused to hold it conclusive. ' But,' adds Mr Bigelow [Law of Estoppel, p. 264], 'the case is different when the statute has ' given such courts the necessary authority to try certain causes : ' and in such case a judgment for the plaintiff is final and conclusive ' when rendered ; or for the plaintiff with satisfaction, will bar all JUDGMENTS OF INFERIOR COURTS. 213 Chapter VII. Smith V. Nicholls. 8 L.J: C. P. 92- Barber v. Latnb. 3C,L.J: C. P. 234- re Farina. 27 W. R. 456. 'further litigation for the same cause of action in the domestic ' courts, if the Consular court acted within its jurisdiction.' There can be no doubt that this is the true principle, although some doubt seems to have been thrown upon it by the judgment of Tindal, C.J., in S/nilh v. Nicholls, with regard to the Vice- ^Z' pp= 4^- Admiralty Court of Sierra Leone. It was however recognised in Barber v. Lamb, the judgment in question being that of the Consular Court at Constantinople established by statute. Judg- ments of Consular Courts seem therefore properly included in the definition already given of foreign judgments. W'- p- 2- Judgments of the Inferior Courts of the United Kingdom are dealt with by the ' Inferior Courts Judgment Extension Act, 1882.' W'- p- 362] The case of 7-e Farina requires to be specially noticed. Regis- tration of a trademark had been granted to one Buchholz by the Court of Appeal at Cologne, the opposition to the grant, on the ground of infringement, being overruled. Application was after- wards made by Buchholz for registration in England, Avhich was again opposed by Farina. Hall, V.-C, refused to pay more respect to the German judgment than to the finding of a jury, the question being one of fact. The question involved is by no means free from difficulties. One view that may be taken of it is the following : the questions before the two courts were in reality dissimilar : in Germany, whether the grant of registration would violate the German Patent Laws : in England, whether the grant would violate the English Patent Laws. It is evident that a negative answer to the former could not necessitate a negative answer to the latter. But un- fortunately, the same question was involved in both decisions : was Buchholz's trademark calculated to deceive? and it is not easy to understand why, when once that has been decided, that decision could not be pleaded as i-es judicata in the second suit. It is also evident that if the German suit had been brought for damages for infringement, and the judgment had been for the plaintiff, he could have recovered the amount awarded in the usual way here ; if for the defendant, he could have pleaded it in bar to an action in England in respect of the same infringement. But here again the same difficulty presents itself, if the German action had been for infringement in Germany, and the English action for infringement in England, what would have been the effect of the German decision ? Foreign judgment as to registra- tion of trade- mark. Foreign judgment for damages for infringe- ment. 214 CHAPTER VIIL SERVICE OUT OF THE JURISDICTION. PAGE General Principles .215 Service of documents other than writs . . . . . . .215 Service of interpleader summons .,.,.,.. 217 Definition of term 'jurisdiction' ........ 217 Rules of the Supreme Court, 1883 Order II. rule 4.— Issue of the writ . , 218 ,, 5. — Form of the writ ....... 218 Order III. rule 6. — Special indorsement ...... 227 Order VI. rule 2. — Concurrent writs ...... 219 Order IX. rule 2. — Substituted service ...... 230 ,, 15. — indorsement of service ..... 227 Order XI. rule i. — Service of the writ ; in what cases . . . 2ig service on co-defendants ..... 220 ,, 2. — in Scotland or Ireland , . . . .221 ,, 3. — in Probate actions ...... 222 ,, 4. — the affidavit required ...... 222 ,, 5. — time for appearance ...... 224 order for discovery ...... 225 „ 6. — notice of writ ....... 225 ,, 7. — service of notice ....... 226 OrderXII.rulesio.il. — Address for service and pleadings . . 225 Order XIV 227. 229 Signing judgment under ....... 227 Order XVI. rule 13. — Service on defendants added or substituted . 227 ,, 48. — Service of third party notices .... 230 Order LIV. rules 12 and 12 (b) — ^Jurisdiction of the Masters . . 218 Schedule of Forms 229 Application to set aside issue and service of writ .... 228 Service on Corporations Foreign Companies .......... 232 English ,, 232 Service out of the jurisdiction in action on foreign judgment . . , 233 Ireland. Judicature Act, 1877 s- 33 23s Chapter VIII. ENGLAND. 21$ Chapter Ireland. — ^Judicature Act, 1877 continued. VIII. Orders I. V. VIII. and X 235. 236 235 Forms Scotland. Edictal citation 238 when available •......,. 239 Jurisdiction of Sheriffs Court Act, 1876 241 Citation Amendment Act, 1882 242 The discussion on the subject of assumed jurisdiction will have prepared the way for the enquiry as to the manner in which, the jurisdiction having been assumed, notice of the action will be conveyed to the absent defendant. Few words will now sufifice to summarise what we ventured to put forward as the true view of this somewhat complicated question : A discretion is vested in everv Summary . •' of principles State to declare m what cases its courts may call on a defendant ?f assumed _,..... jurisdiction. out of the jurisdiction to appear to an action commenced within it. And thus, having power to say in what cases it may be done, there is also power to provide the manner in which it shall be done. A recognition of the first principle involves a recognition of the second as a matter of course. Under the head of ' Natural 'Justice' we considered the corresponding right of reviewing both ^"-f- p- '^^-l the cases and the manner in which the jurisdiction is assumed by the laws of any other state, more especially with reference to the process, which must of necessity be somewhat artificial. The Becquet v. principle of complete recognition, it will be remembered, was laid f^&Adl down in Becquet v. McCarthy and Reynolds v. Fenton, but the '^Reynolds v. coutrary doctrine in Schibsby v. Weste7iholz. ^IT.% Having therefore discussed the general principles on which %hiHbyy. s^^'^ ^^^ss ^^e based, we proceed now to an examination of the »w^«/5^/2. practice of the United Kingdom under the rules adopted in Q. B. 155. England, Ireland and Scotland. ENGLAND. The first and most important consideration which arises under order xi. the English rules for service out of the jurisdiction, is that the wrftSne. orders and rules relate merely to the service of writs. In the Irish Judicature Act [post p. 235] section 33 deals with the service of ' any document by which a cause may be commenced ' : but the English rules deal only with a ' writ of summons ' ; and as the right 2l6 SERVICE OUT OF THE JURISDICTION. depends solely on statute, these words are to be construed strictly Chapter Cases in (Jesscl, j\I.R., re Maughain) : in that case leave to serve a common which it has been held Order to tax on an English solicitor out of the jurisdiction was ^^^ must'be^ refused. So in re Mewburn's Settled Estates, leave to serve a ^"^ ^ stricti^.^'^ petition presented under the Leases and Sales of Settled Estates 748^^^^^^ Act, 1856 (19 & 20 Vic: c. 120) on the respondent out of the juris- >n'>>'^ diction was refused : the grant of leave in an earlier case — Shurmur p- 156. , . Potters V. V. Hods:e — being: disapproved. The rule was extended m Potters v. MUier. * ° ^^ 3i\V. R. 858. Miller [see p. 22 il to the service of an endorsed counterclaim on shurmurx. ■- . Hodge. a new party to the action. ' The right to serve a writ abroad w. n.'i866. * depends entirely on statutes, or on rules made by virtue of some exp-. Craw- ' statute, and must be strictly interpreted ' (Pollock, B.). Again 2 ir:'ch: in two Irish cases before the Judicature Act, 1877, the court held 573^' that it had no power to allow service of notice of a petition under ^'^^;/. the Trustee Relief Act 1847, (10 & 11 Vic: c. 96) on parties OMtl^ Hanays of the jurisdiction ( ex parte Crawford : ex parte Bertiard). \!.'^l\oQ.\i: Cases in The cases unfortunately however are very conflicting : for in ""X^'Bomiii. orders have"^ re Hafiafs trusts and re Bonelli' s Electric Co:, orders for service of ^-^.^^^'1 been made. ^ pg^ijio^ Under this Act wcrc made : and in re the British Imperial ^Jp^'cfrp: Corporation and re Household Insurafice Co.; a summons under l^^-J^/J_^^- sections 100 and 165 of the Companies Act 1862 (to ^vhich ^^^'^^«^-gCV- rule 63 does not apply) on officials out of the jurisdiction was p- 26. allowed to be served, the time for appearance being limited in the Bond, i Dr: & S. 392. same way as a writ under Order XL In all these cases, the Lorton v. .. . , ., ,.,. T i r ^ Kingston. decisions already quoted were, without being disapproved, telt to 2 Mac: & G. ' be a difficulty.' From these cases however, and from Lester v. ^reAican. General Bond, Lortou V. Kingston, re Alcan, and 7-e Hodson, the principle 398.' pnncipe. niay possibly be deduced, that where the document to be served ^^jur/sze. is virtually the initial proceeding in an action the service out of the jurisdiction will be allowed. In all other cases therefore, unless in the statute under which Special pro- the proceedings are brought, special provision is made for the service of the petition, or other initial process, on parties out of the jurisdiction, leave to serve it cannot be given : — Whether substituted service may be allowed in such cases is another matter, which we propose to consider in due course \post p. 231]. We find consequently in many statutes, directions given as to the course to be adopted when the opposite party is not in England. Such directions will be found under Companies [p. 153], Divorce [p. 293], Lunacy [p. 298], and Bankruptcy [p. 330]. Probate actions fall within the express terms of Order XL The most recent decision on the subject is the Credits Gerun- visions in statutes. ENGLAND. 21/ Chapter detise v. Van Weede (followed in Vati der Kan v. Ashworth) where interpleader VTTT • 1 1 r 1 summons. the plaintiffs sued for goods m the possession of the defendant, Credits Ge- ^^^ ^* appearing that a foreigner out of the jurisdiction claimed *^"^^j"f^\- the right to the same goods and would probably sue the defendant 12 Q. B. D. in respect of them, the court save him leave to serve an inter- 171. ^ ... VanderKan pleader sumnions on the foreigner. It is difficult to reconcile this V. Ash-worth. .... . . w. N. 1884, decision with either of the principles already discussed. In Patomiv. Fatomiv. Campbell., Alderson, B., certainly doubted the existence 12 M. & w. of the right ; but the question not having been argued in that "stevenson v. casc, PoUock, B., and Lopes, J., rested their decision on Lord 2V. &B.' Eldon's judgment in Stevenson v. Anderson. If the foreigner had *°''' commenced his action, it is clear that he would have been 'amenable to any order which the court might think right to ' make with a view of doing substantial justice between all the ' parties : ' but as he had not commenced it, he could not be in any way subject to the jurisdiction, and the only way of making him amenable to it would be by the statutory right given by Order XL; but it is evident that the defendant in the action already proceeding could not do this because he had no cause of action against him. The summons was said to be notice merely of the proceedings : but it was such a notice that, if he ignored it, the court declared his right to bring a future action would be barred. With the greatest submission, it is suggested that the arguments advanced by Lord Eldon are not in accordance with modern learning on the subject of jurisdiction. See too the decision of Potters V. the learned Baron in Potters v. Miller, cited above. Miller. 31 W. R. 858. Wherever in the following rules the words 'within the juris- diction ' are used, they are interpreted to mean * within the territorial jurisdiction.' Service out of the jurisdiction will there- fore not be allowed where a collision has occurred upon the high seas. In such cases the Judicature Act has not altered the old 'Territorial law : so far as the res is concerned, the court has jurisdiction in ^""* "^"°"" rem if it is arrested within the territorial jurisdiction : so far as the owner of the res is concerned, the court has no jurisdiction in re Smith, personam under Order XL, he must therefore be served with a )heVivfr°' citation within the territorial jurisdiction. (Sir R. Phillimore, re )^'^K^H. Smith; The Vivar.) As to the limits of territorial jurisdiction, 7?. //arr;?v.^^' V. Keyn, dccidiug that it does not extend beyond three miles from P^ancomi ^hc coast, is binding upon all the courts. {Harris v. Owners of zC.P.D. Franco7iia.) 2l8 SERVICE OUT OF THE JURISDICTION. Order II. Rule 4. O. ii. r 4. Ko writ of summons for service out of the jurisdiction, or of which notice for service" '^ to be given out of the jurisdiction, shall be issued without the leave of a abroad. court or judge. Chapter VIII. The notice here referred to is the formal notice prescribed in the Appendix of Forms : no other notice will be allowed. In Stewart Stewart v. Bk: 0/ V. the Bank of En^laftd. the Sultan of Turkey was one of the E>igiand. . . . , . W. N. 1876, defendants : an apphcation to issue the writ and serve a copy p- 263. of it on the Turkish Ambassador by way of notice was refused. To have allowed such a notice would not only have been contrary to Order II., but also a violation of the Comity of Nations. Rule 5. O. ii. r. 5. Form of writ for service abroad. The two applications for leave to issue and to serve. O. liv. 12 (b). Generally combined. A writ of summons to be served out of the jurisdiction or of which notice is to be given out of the jurisdiction, shall be in one of the Forms Nos: 5, 6, 7, and 8 in Appendix A, Part i, with such variations as circum- stances may require. Such notice shall be in one of the Forms Nos: 9 and 10 in the same Part, with such variations as circumstances may require. It must be remembered that there are two applications, the first under Order II. for leave to issue the writ, which is different in form to the ordinary writ, the second under Order XI. after it has been issued, for leave to serve it out of the jurisdiction. The former application is to the Master under Order LIV. rule 12 ; 'a ' verbal statement is made to him of the nature of the action, where- ' upon, unless the case is one which requires to be brought under 'the personal consideration of the judge, a course which is 'adopted in all but very plain cases, the leave to issue it is ' indorsed upon it.' By Order LIV. rule 12 (b) the Masters in the Queen's Bench Division and the Registrars in the Probate, Divorce, and Admiralty Division have no jurisdiction in granting leave for service out of the jurisdiction of a writ, or notice of writ, of summons. This application must therefore be to the Judge in Chambers. The affidavits are only required under Order XL, on the applica- tion to the judge for leave to serve the writ. The two applications, for leave to issue and serve, may however be made simultaneously to the judge, supported by the necessary afifidavit. (Hall, V.-C, Stiga?id Y. Stigand.) stigandy. The writ will of course only be issued in cases where it will 19 chro. be allowed, under Order XL rule i, to be served out of the "* jurisdiction. ENGLAND. 219 Chapter VIII. Order VI. Rule 2. A writ for service within the jurisdiction may be issued and marked as a o. vi. r. 2. concurrent writ with one for service, or whereof notice in lieu of service is to Concurrent ,. r ..... . , . ^ . , ^ . . writs, withm be given, out of the jurisdiction ; and a writ for service, or whereof notice in and without lieu of service is to be given, out of the jurisdiction may be issued and the jurisdic- marked as a concurrent writ with one for service within the jurisdiction. Where one defendant is a foreigner resident abroad the proper course is to take out a concurrent writ and serve a notice of it Beddington upoH him. {Beddiugtotiv. Beddtngton ; and cf; Traill v. Porter, ^g. 236.) A different practice however was adopted in Keate v. Phillips. A company in Scotland had been added to the writ as parties by amendment, the other defendants being within the jurisdiction. Sir G. Jessel, M.R., ordered the writ to be amended by adding the indorsement in the form of the writ for service out of the jurisdiction: having thus been issued by leave it was allowed to be served on the company. Beddington. 1 P. D. 426. Traill V. Porter. I Ir: L. R. 60. Keate v. Phillips. W. N. 1878, p. 186. Order XI. Rule 1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by a Court or Judge whenever — Eager w. In Eager \. Joknstone, re Eager the Court of Appeal held that si^w! r"^33. the case must absolutely come within this rule for leave to be granted, quite irrespective of whether it was a case in which service out of the jurisdiction would have been allowed prior to the Judicature Act. But in determining whether any case comes within the rule, the courts will give to the whole clause a wide construction so as not to prevent proper and reasonable cases from being brought within it. (Hall, V.-C, Harris \. Fleming.) (a) The whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits); or (b) Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action ; Statements, in the nature of slander of title, made out of the jurisdiction concerning property within the jurisdiction do not come within the meaning of the rule. In Casey v. Arnott the cause of action was a slander of title published in Ireland of a personal chattel in England (to which the rule of 1875 applied) : Grove and Denman, JJ., held that the property situate within the jurisdiction must be physically or materially affected by the 'act, deed, will or thing' complained of; and that such slander did not come within the meaning of the O. xi. r I. When service allowed. Harris v. Fleming. 13 Ch: D. 208. Land in jurisdiction. Liabilities affecting such land. Casey v. Arnott. 2 C. P. D. 24. 220 SERVICE OUT OF THE JURISDICTION. O. xi. r. I. Relief against domiciled persons. Administra- Trusts. Contract. Injunction. Infringe- ment of patent abroad : goods sent by post to England. Co-defen- dants. rule because it produced no effect upon the thing itself, but upon the minds of intending purchasers. or (c) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or (d) The action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the juris- diction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be e.xecuted according to the law of England ; or (e) The action is founded on any breach or alleged breach within the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland ; In Harris v. Flemmg the contract was entered into in India, the breach within the jurisdiction in respect of which the service was allowed, was another contract entered into in this country in violation of the former one. With regard to Scotland and Ireland, see the cases under rule 2. or (f) Any injunction is sought as to anything to be done within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof ; In Speckhart v. Campbell, there had been an infringement of patent by a Scotch firm carrying on business at Aberdeen ; they sold some of the goods to a person in Liverpool, sending them by post. Mathew, J., held that there was something to be done within the jurisdiction, which could be restrained by injunction, and therefore that the writ could issue. The argument for the defendant that the property in the goods passed on the sale of them, that consequently the post was the agent of the purchaser, and therefore that the infringement, if any, was in Aberdeen, was not approved by the learned judge. or (g) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. This rule, as we have pointed out on page 151, does away with the ordinary provisions in favour of absent defendants where one of several co-defendants has been already duly served within the jurisdiction. Thus in Lightotvler v. Lightowler, the action was brought for specific performance by two defendants of an agreement to convey to the plaintiff their respective interests in a partnership formerly carried on by the plaintiff and defendants. One of the defendants had been served within the jurisdiction, Chapter VIII. Harris v. Fleming. 13 Ch: D. 208. Sf>eckhart v. Campbell. W. N. 1884. p. 24. Lightmvhr V. Lightouu- ler. W. N. 1884. p. 8. ENGLAND. 221 Chapter the other was resident in the United States. Although the breach o. xi. r. i. ^^^^- of the contract was committed out of the jurisdiction, Butt, J., made an order for service (presumably of a concurrent writ — [see p. 219], or of an amended writ [see p. 219]) on the co- defendant. re Luckie. The samc rule applies as to the service of counterclaim on new W. N. 1880. ....... . . p. 12. parties jomed by it to the action {Badhain v. Nixon, re Luckie). A difficulty arises here however from the fact that no writ is served, but only an endorsed counterclaim [Appendix B. No: 2]. SwanseaCo: The decision therefore proceeded on the authority of the Swansea iQ. B. D. Shipping Co: v. Duncan as to third party notices [see p. 230]. ^Potters y. The Contrary however was held in Potters v. Miller, the Court ^'''r^3^8 adopting the principle already noticed [p. 216] on the subject of service of documents other than writs. The appearance to such an endorsed counterclaim will of course not be limited to eight days, but will be governed by the usual rules, as to which see page 224. Rule 2. Where leave is asked from the Court or a Judge to serve a writ, under o. xi. r. 2. the last preceding rule, in Scotland or in Ireland, if it shall appear to Rule as to the Court or Judge that there may be a concurrent remedy in Scotland Scotland and or Ireland (as the case may be) the Court or Judge shall have regard to the comparative cost and convenience of proceeding in England, or in the place of residence of the defendant, or person sought to be served, and particularly in cases of small demands to the powers and jurisdiction, under the statutes establishing or regulating them, of the Sheriffs' Courts, or Small Debts Courts in Scotland, and of the Civil Bill Courts in Ireland, respectively. This rule is much more clearly worded than the rule la of 1875. The enquiry as to whether a court competent to try the case exists at the defendant's place of residence is expressly limited to cases in which the writ is to be served in Scotland or Ireland. That indeed was the manifest interpretation of the old rule, but the practice in Chambers seems formerly to have required informa- tion upon this point to be given in the plaintiff's affidavit in support in all cases. But this evidently defeated the whole intention of the rule ; the principle of assumed jurisdiction being adopted as a protection to plaintiffs, quite irrespective of the convenience and comparative cost to the defendant. If the plaintiff had a right under the English law to issue the writ, it certainly seemed absurd to take it away if there happened to be a court in the place of the defendant's residence. But as between residents in different parts of the United King- 222 SERVICE OUT OF THE JURISDICTION. o. xi. r. 2. dom, the same argument does not apply ; the rule indeed is one step Chapter Sco'tla^ndand towards the more complete consolidation of the three kingdoms. ^^^^' Ireland. j^ ^^ j>ar/e McPhail it was laid down that the application will ~ certainly be refused when the plaintiff may have as complete ^^'^[.t'^J: a remedy by applying to the local court : and cf: Wood v. 632- Mclnnes and Tottenham v. Barry [post p. 224]. Mcinnes. In Cressweilv. Parker, an order for service in Scotland had been Totteniiam V. H r r ofjudge. this Order. In Probate actions service of a writ of summons or notice of a writ of Probate.^ summons may by leave of the Court or Judge be allowed out of the ENGLAND. 223 Chapter VIII. Preston v. Lament. 24 W. R. 928. Great A ustralian Co: V. Martin. 5 Ch: D. I. Maclean v. Dawson. 4 DeG. &J 150. This last provision is most important: the court or judge in o. xi. r. 4. ..... Jude;e to considermg the application for service out of the jurisdiction is to consider e.xercise a discretion, and to consider whether the nature of the the suit, suit is such as to justify leave being granted. The case may be so plainly absurd, it may relate to such a subject matter, or to a controversy between persons so circumstanced, that the court may at once decline to act. Everything is to be left to the exercise of this judicial discretion, and the decision, subject of course to appeal, is final. The defence to the suit therefore must not call in question the propriety of the service. (^Presto?i v. Laniont.) The judgments delivered in The Great Australian Mining Co: V. Martin by Malins, V.-C, and by Lords Justices James, Baggallay and Bramwell in the Court of Appeal are most instructive, and show how careful the English courts are in requiring a very full affidavit, so that they may examine the nature of the case before they will sanction the hardship of bringing a man from the Antipodes perhaps, where there may be judicial tribunals before which he might be sued. Under the old consolidated orders of the Court of Chancery, when such an application was made, the court would examine into the bill [Maclean v. Dawson) : but when . Order XI. came into operation it was necessary to provide for the new and additional circumstance that there was no longer a bill before the writ was issued, and therefore it was necessary that something should be provided which would correspond with the statement of facts which, under the old practice, the court had before it; therefore it was provided by rule 4 [rule 3 of 1875] that the applications must be supported by evidence, by affidavit Affidavit to or otherwise, showing application. i. the deponent's belief in the existence of the cause of action. ii. the place or country where the defendant is, or may probably be found ; iii. whether the defendant is a British subject or not ; iv. the grounds upon which the application is made. Bramwell, J. A., thought that it would not be necessary for this affidavit to be made with the same rigour that used to be required in an affidavit to hold to bail ; but that it ought to state, not generally, that there is a good cause of action, but specifically, what the cause of action is. It would appear that the words ' cause of action ' should not be used by themselves, but the cause of action should be apparent from the facts set out in the affidavit. 224 SERVICE OUT OF THE JURISDICTION. o. .\i. r. 4. If the action is bona fide there can be no hardsliip entailed ; the Chapter plaintiff, or anybody able to swear to it, can make the affidavit, and '^^^^• the person who has the conduct of the case should swear that he has every reason to believe that he can make it out. In the case above-mentioned the affidavit was insufficient, it therefore stood over to enable the plaintiff to file a fresh affidavit : this having been done, the court was of opinion that the facts disclosed by the new affidavit were sufficient, and leave was granted to serve the writ upon the defendant in Sydney. With regard to the preparation of this affidavit the greatest strictness is required that the necessary information is given on all points which are really essential. {Fowler \. Bar stow.) In Wood Fowler v. v. Mclfines, the claim being for a small sum and the defendant in ^^Z. t!' Scotland, leave to serve was refused, the affidavit giving insufficient ^ivoodv. information as to the existence of a local court having jurisdiction ^^w."K.\g. in the matter. And in Tottenham v. Bai-ry leave was also refused, Tottenham the comparative cost of proceeding in Ireland not being stated, ch: d. 797. It is to be intituled in the contemplated action unless leave to Heading of issuc the writ has already been obtained ; otherwise it must be in- affidavit. tituled in the contemplated action and also in the Judicature Acts, young y. . Brassey. Hall, V.C, said that a deponent could be indicted for perjury if iCh:D. this were omitted ( Young v. Brassey ; Stigand v. Stigand) \cf: the sugand v. Irish Judicature Act, Order I., rule 4. post p. 235.J 19 ch: d. 466. Rule 5. O xi r. 5. ■^'^y order giving leave to effect such service or give such notice shall Time for limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given. appearance. Further In practicc it is also necessary to give in the affidavit further in'^^ffidavu" information as to the number of days' post to the defendant's place of residence, and what the plaintiff considers to be a reasonable time within which appearance should be ordered. In the Code of Mauritius certain delays for effecting personal service on the Foreign defendant are allowed to the plaintiff, varying from two to eight to^dme! ^^ months ; and in the Codes of France, Turkey, and Queensland lists are given of the times allowed to defendants to appear varying with the locality in which they are resident. In this country no such lists are in use, but it is believed that the time for the defendant's appearance is usually limited to about a fortnight beyond double post-time. The order should provide for service of interrogatories if re- ENGLAND. 22 5 Chapter quired, and for an injunction if necessary, and if the right to it is o. xi. r. 5. made out by the affidavit {Young v. Brassey). Young V. But an appUcation may be made for discovery afterwards {the '^ch^d' Emma), the principle being that the defendant, once made subject 277- to the jurisdiction of the court, is bound to obey subsequent 34. L.T. 742. orders made upon him during the progress of the action. As to the defendant's appearance within the time limited by Address the order, the rules of Order XII apply : that is to say, the a x!""^^' defendant has to give his address for service, either upon his soli- " ' '°' "' citor or himself (should he appear in person) within three miles from the principal entrance of the Central Hall at the Royal Courts of Justice. At this address all subsequent papers may be left, sufficient pleadings, time being always allowed to enable the defendant to put in his pleadings, or to obey an order for discovery, if he remain out of the jurisdiction. Rule 6. When the defendant is neither a British subject, nor in British dominions, o. xi. r. 6. notice of the writ, and not the writ itself, is to be served upon him. Notice of It will be noticed first that under the English procedure notice of the issue of the writ is to be given to the defendant, in lieu of actual service of the writ of summons upon him when he is a foreigner out of the jurisdiction ; and the reason of this was pointed out by Beddington Sir James Hannen in Beddington v. Beddington : — ' Service of Beddington. ' proccss upou a foreigner not a subject of Her Majesty in another "*^ ■ * country may involve unpleasant questions of jurisdiction, whereas ' if it were not formally served upon, but only notice of the pro- * ceedings given to, such foreigner, no such consequences can 'arise.' 'Foreign countries do not like writs served upon their Fowler y. ' subjects ' (Jcsscl, M.R., Fowhrv. Barstow). It must be remarked 45"l.^t!'"6o3. that this provision has been omitted in many of the Colonies in which the Judicature x\cts have been adopted, nor is any provision resembling it to be found in the American or European Codes of Procedure. In many foreign countries however the writ as under- stood in this country is not used, the initial document being more in the nature of the English ' notice of writ.' With regard to the Colonies in which the provision has not been adopted the writ itself is presumably served out of the jurisdiction. Bacon V. lu Bacofi v. Tumcr the court held that the service of the notice 34"l!"t! 64. in lieu of writ was inappropriate in the case of an English woman married to a German and residing abroad with him : she could Q 226 SERVICE OUT OF THE JURISDICTION. o. xi. r. 6. not be considered a foreigner, and therefore the writ itself would Chapter have to be served. This decision does not seem to be in accord- ^^^^' ance with the general principles regulating the wife's domicil and nationality [see p. 279]. j7n^,i5h If the absent defendant is an English subject, or it is presumed, subject. ^ foreigner in English territory out of the jurisdiction of the courts in England, the writ [Rules of Court 1883, Appx: A. Pt: I. No: 5] will be used and may be actually served upon the defendant : { J Fes f man v. Aktiebolaget ; Beddmgton v. Beddington) but where ^^^^^^'«^''/'^- Foreigner, the defendant is a foreigner in foreign territory. Form No: 9, that ^'^g^'.-p is to say, the notice of writ in lieu of the service of the writ will be 237- . ■' Beddington used ire Howard, Padley v. Camphauseti). v. In West man v. Aktiebolaget, etc., Snickarefabrik the writ itself was i p. d. 426. TV Howard. served abroad ; the court set aside the service, but refused to 48 l. j. Ch: interfere with the writ itself, that having been properly issued, allowing notice of it to be given. Kelly, C.B., dwelt upon the importance, which has already been noticed, of keeping distinct he two the two applications : — ' The first point is not whether the action applications. ^ ^ ^ . , ._ ' is maintainable, but whether a writ may lawfully issue ; then if * the defendant is a British subject he may be lawfully served, but ' if a foreigner (in foreign territory) to give notice of it is all that ' can be done. The notice is in effect an official intimation that ' a writ has issued in this country.' It must however be remembered that if the defendant is out of the jurisdiction it is perfectly optional whether the plaintiff adopt the advantages given him by Order XI he may issue an ordinary writ and serve it on the defendant when he gets the chance of il\e ° Helenslea. doing so in this country, ( The Helenslea). 7 P- d. 57 Rule 7. O. xi. r. 7. Notice in lieu of service shall be given in the manner in which writs of Notice. summons are served. What writ Where notice of the writ is served abroad, the writ used is as to be used , . . , -i i i where notice bcfore Form No: 5 ; and it is understood to be the practice, s^r^ed ^ although the Act does not seem to require it, to send this writ out to the agent abroad with the notice of writ, in order that the defendant may see it. Chancery The Chancery Courts will follow the Common Law form when practice. ]g^^.g jg obtained to serve notice of writ in lieu of writ {Biistros v. ^"'t'-o^"- Bustros). Petition for The court has no power under Order XI, nor under 20 and HStros. 14 Ch: D. ENGLAND. 227 Chapter VIII. Firebracc v. Firebracc. 26W. R.617. exp: Blain, re Saiuers. 12 Ch: D. 522. Hastings V. Hiniey. W. N. iSSi, p. 39- Fisk V. Chatterton. W. N. 1882, p. 145. 2 1 Vic: c. 85, s. 42, to order service out of the jurisdiction of a restitution of ..... conjugal petition for restitution of conjugal rights {Firebrace v. Firebrace). rights. A judgment by default under Order XI is not an act of bank- Act of ruptcy {ex parte Blain, re Saiuers). ^" "^"^ '^^' There seems some doubt whether, the service of the writ or of the notice having been effected, the provisions of Order IX, rule 15, as to the indorsement of the service, apply. In Hastings V. Hurley, the writ was served in Texas, and the indorsement not having been made, the time for making it was extended. But in Fish v. Chatterton Vice-Chancellor Bacon thought that, there being no mention of the subject in Order XI, the rule did not apply. An affidavit, duly verified, proving the service had been sworn and returned, but no indorsement had been made on the writ : the statement of claim was nevertheless allowed to be filed. Affidavit of service. Indorsement on writ, whether required. O. ix. r. 15. Order XVI. Rule 13. Where a defendant is added or substituted, the plaintiff shall, unless other- O. xvi. r. 13. wise ordered by the Court or Judge, file an amended copy of and sue out a jgfJn^ants writ of summons, and serve such new defendant with such writ or notice in added or lieu of service thereof in the same manner as original defendants are served, substituted. See the cases cited under Order XI, rule i (g) [ante p. 220]. The Judicature Act has introduced in the matter of service out of the jurisdiction an important change in the procedure as it existed under the Common Law Procedure Act, 1852. The conclusion of section 18 of that Act is as follows : — Provided always, that the plaintiff shall and he is hereby c. L. p. Act, required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the Masters of the Superior Courts, in the manner hereinafter provided, according to the nature of the case, as the Court or Judge may direct ; and the making such proof shall be a condition precedent to his obtaining judgment. This provision has been omitted in the Judicature Act ; the writ and notice of writ conclude like the ordinary writ : ' and take notice ' that in default of your so doing the plaintiff may proceed therein, 'and judgment may be given in your absence.' The writ which is to be served, or of which notice is to be given. Signing out of the jurisdiction may however be specially indorsed under under o.xiv. Order III, rule 6, and an application made to sign judgment o. iii. r. 6. under Order XIV. 228 SERVICE OUT OF THE lURTSDICTION. Application to set aside service of writ. And issue of writ. This indorsement, coupled with the affidavits required under Orders XI and XIV, supply the place of the evidence given upon a writ of inquiry or before one of the Masters under the old Act and unless the defendant obtain leave to defend, the plaintiff will be empowered to sign judgment against him. As to the old writ of inquiry see Messin v. Lo7'd Alassarcne. The defendant may apply to the court to set aside either service of the writ or of the notice. The grounds for this application sufficiently appear from the cases cited above. The defendant may go into evidence to show that there is no forum, or he may raise the question of relative convenience as to the place of trial ; but he is restricted to this and may not go into the merits. That is to say, the affidavits in reply (as to the right to use which Foley v. Maillardet was followed, and the Great Australian Mming Co: V. Martin overruled) cannot go beyond showing that the court had no jurisdiction to make the order [Fowler v. Barstow). In this case, which was an action for deceit for false representations made within the jurisdiction, the defendant said that the plaintiff's affi- davit was utterly untrue, and in his affidavit in reply he did not deny a single material statement. It would seem also, the issue of the writ being by leave and being regulated by the same rules as the service of it (that is by rule i), that the defendant may also apply to set aside the issue of the writ itself. Chapter VIII. Messin v, Massaretie. 4 T. R. 493- Foley V. Maillardet. 12 W. R. 355- Great A ustralian Co: V. Martiii. 5 Ch: D. I. Fo7uler v. Barstow. 45 L.T. 603. Two cases This chapter would be incomplete without a notice of two cases ruierofi^s. decided under the rules of 1875, but which in consequence of the change in those rules have no place in the foregoing consider- ation of the present practice. In McStephens v. Carnegie, a first mortgagee claim.ing against McStephens the mortgagor and puisne incumbrancers found part of the property 42 L- t. 15. in the hands of a firm of Antwerp merchants who laid claim to it because the second mortgagee owed them money. Service of notice was allowed, the merchants being added as parties to the action because it was the first mortgagee's right which was para- mount to their claim which was interfered with ; it could therefore make no difference where the contract between the second mort- gagee and the merchants was entered into ; (personalty is now omitted from rule i). In Bree v. Marescaux, slander was uttered on board a ship on Breev. ,,., ,.,,. Ill • 1 Marescaux. the high seas, which, being repeated by the captain to the com- 7 q. b. d. pany on the vessel's return to England, led to the plaintiff's dis- '*^'*' missal : the defendant being then in Jamaica, leave to serve the writ ENGLAND. 229 Chapter was refused, the act complained of not having been done within ^^^" the jurisdiction, and the original utterer of the slander not being liable to the plaintiff for its repetition ; (the recovery of damages for any act is now omitted from rule i). The forms now in use are as follow : — Forms. Appendix K. No: 20. Judge's order for service out of the jurisdiction. Appendix A. Part I. No: 5. Writ for service out of the jurisdiction, or where notice in lieu of service is to be given out of the jurisdiction. No: 6. Specially-indorsed writ for service out of the jurisdiction. No: 7. Writ from District Registry for service out of the juris- diction. No: 8. Specially-indorsed writ from District Registry for service out of the jurisdiction. No: 9. Notice of writ in lieu of service to be given out of the jurisdiction. [Writ to be used with this form, Appendix A. Part I. Nos: 5 or 6.] No: ID. Notice of writ in lieu of service to be given out of the jurisdiction — — District Registry Form. [Writ to be used with this form, id; Nos: 7 or 8.] It will be seen from these forms that the indorsement on the writ, whether ordinary or special, is copied in full into the notice of writ, but there is nothing to draw the absent foreigner's atten- tion to the provisions of Order III, which enable the plaintiff in ' proceeding therein ' to sign judgment by default when a specially indorsed form is used, an injustice which might easily be remedied. An absent British subject is presumed to know the law, so too a foreigner within the dominions, but an absent foreigner can hardly be supposed to be conversant with our summary proceeding under Order XIV. 2^0 SERVICE OUT OF THE JURISDICTION. Third-Party Notices. Order XVI. Rule 48. Chapter VIII. O. xvi. r. 48. Notice to third party in cases of contribution. Third party out of the jurisdiction. Distinction between third-party procedure and inter- pleader. A copy of such (third-party) notice shall be filed with the proper officer and served on such person according to the rules relating to the service of writs of summons. ****** and therewith shall be served a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of summons in the action. This provision [R. S. C. 1875. O. xvi. r. 18] was held by Jessel, M.R., in Swansea Shipping Co: v. Duncan to relate to all Swansea the rules as to service of writs, and therefore, when the third party ^^'"^S"^ is out of the jurisdiction, the service of the notice is to conform 644. to the rules of Order XI : the time for appearance is therefore to be limited by the order giving leave to issue the notice. But a question then arises, which has not been decided yet, should not rule i also apply ; that is to say, should not the con- tribution or indemnity depend on a cause of action falling within the subsections of that rule, a cause of action in respect of which if an original action had been brought, service of the writ out of the jurisdiction would have been allowed ? possibly however rule I (g) would be applicable, and thus all cases would be included independently of this consideration. In Hictchison v. Colorado Alining Co:, an application was Hutchison . . , . . V. Colorado made ex parte to serve the notice out of the jurisdiction. Co: Mathew, J., in Chambers adjourned the summons for the attend- p. 40.' ance of the plaintiff The leave to serve was refused because the plaintiff objected, the learned judge holding that he could not make the order against his wish, as it would of necessity tie the action up for a considerable time. He also doubted whether the question were really one of indemnity. This question must not be confused with that of interpleader, which we have already dealt Avith [p. 217] : third-j^arty procedure being in effect the consolidation with an action already brought against the defendant, of a second action which he would be obliged to bring : interpleader, of a second action which will in all probability be brought against him. O. ix. r. 2. Personal service. Substituted Service. Order IX. Rule 2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made ; but if it be ENGLAND. 23 1 Chapter made to appear to the court or a judge that the plaintiff is from any cause O. ix. r. 2. VIII. unable to effect prompt personal service, the court or judge may make such . order for substituted or other service, or for the substitution for service of Substituted notice by advertisement or otherwise for service, as may be just. service. It is sometimes said that ' substituted service ' is another means Substituted is nol • way of effecting service on absent defendants [see VVestlake — ano7her'^ "°' International Law, 2nd ed: § 171 'i<^''- being as stated by Bramwell B., — The person may be served if Ex.: 149. he could have been served were the company an English one. Agent of foreign companies ENGLAND. 2?,?> Chapter The form of the actions, will be governed by English Law : see VIII. Bullock V. Caird, ante p. 208, Bullock V. Caird. L. R. 10 Q. B. 276. While these pages have been passing through the press the ^nquir question has been raised whether service out of the jurisdiction service of Will be allowed when the cause of action is a foreign judgment. thejurisdic- It is clear that, when the defendant is domiciled or ordinarily be allowed resident within the jurisdiction, the service will be allowed under of f«ioi/ the words ' any relief in Order XI, rule i (c). But when the judgm«if." defendant does not come within this category the question is not so easily answered. The only subsection under which it could be Considered allowed is (e), relating to contracts : and certainly the old cases hypothesis of which we have already considered under the head of ' the cause comraa.'*^ 'of action,' in chapter i., do adopt the hypothesis of the implied ^c{'sF^\^^ contract. We have endeavoured to show that this notion is entirely at variance with the general theory of the subject. But even if that hypothesis were admitted, the implied contract was entered into abroad, the breach was abroad, and the defendant is abroad : clearly therefore the case does not come within the subsection. From a theoretical point of view however the question is an Considered , . theoreti- interesting one. We have pointed out that the reason for the caiiy. existence of the comity on which the enforcement and recognition of a foreign judgment depends, is the want of power in the sovereign authority of the State in which it has been pronounced to enforce it, and the presence of the judgment debtor in the jurisdiction of the State in which the action upon it is brought. It may be said that the object of this action is to obtain execution against the debtor's property ; that if he had no property in the State there would be no object in bringing the action ; but that if he has property the action should be allowed to be brought even though he cannot be served with a writ in the jurisdiction. In other words that the request, or commission rogatoire, which lies at the root of the whole question [p. 12] depends, not on the presence of the debtor, but of his property, within the foreign State. We have seen however [p. 18] that some application to the The general courts of the foreign State is absolutely essential ; and that, of juH^dic- certain defences being admitted, this application should not be s'eTm "o""' decided upon ex parte. Now the power to summon a defendant ^^"^" depends on his presence, for however short a period, within the 234 SERVICE OUT OF THE JURISDICTION. jurisdiction [p. 131]; and the possession of property within the Chapter jurisdiction does not give the power to serve a writ out of '__ the jurisdiction except in the cases provided by Order XI, rules I (a), (b). It seems therefore impossible to accept the view that in an action on a foreign judgment, service out of the jurisdiction should be allowed. IRELAND. 235 Chapter VIII. IRELAND. The Judicature Act for Ireland, based upon the same principles as the English Acts of 1873 and 1875, was passed in 1877 — 40 & 41 Vic: c. 57. It is believed that the Irish Judges have not at present con- sidered the advisability of adopting the English Rules of Court, 1883. 40 & 41 Vic: c. 57, s. 33. Whenever application shall be made for leave to serve any document by 40 & 41 V. which a cause may be commenced upon a defendant resident out of the Service out of jurisdiction of the Supreme Court, whether by serving such defendant per- jurisdiction, sonally or by substituting service upon another person for him, the Court or °[it^uted Judge to whom such application shall be made shall have regard to the service, amount or value of the claim or property affected, and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant's residence ; and no such leave shall be granted without an Affidavit, affidavit stating the particulars necessary for enabling the Court or Judge to exercise a due discretion in the manner aforesaid. It is important to notice first, that this section distinctly recog- nises ' substituted ' as well as personal service when the defendant is out of the jurisdiction : secondly, that it relates to ' any docu- *ment by which a cause may be commenced,' 'cause' being defined by section 3, to ' include any action suit or other original ' proceeding between a plaintiff and a defendant : ' the difficulty to which we have referred as existing in England by Order XI being limited to writs does not therefore arise. Blake V. Lever. 6 Ir: L. R. 476. Order I. Rule 3. No writ of summons for service out of the jurisdiction, or of which notice is O. i. r. 3. to be given out of the jurisdiction, shall be issued without leave of a Court ^"vice"^ or Judge. abroad. Rule 4. The application for leave shall be granted on an affidavit entitled a O. i. r. 4. between the parties to the intended action, and, ' In the matter of the affidavit 'Supreme Court of Judicature Act (Ireland) 1877.' cf : Blake v. Lever. Rule 5. A writ of summons to be served out of the jurisdiction, or of which notice O. i. r. 5. is to be given out of the jurisdiction, shall be in Form No: 3, in Part I of Appendix (A) hereto, with such variations as circumstances may require. 236 SERVICE OUT OF THE JURISDICTION. O. V. r. 2. concurrent writs within and without jurisdiction. Such notice shall be in Form No: 4 in the same Part, with such variations Chapter as circumstances may require. VIII. Forms Nos: 3^4, Part I, Appendix (A) : — [English Act, Forms Nos: 5 & 9, Part I, Appendix (A).]. Order V. Rule 2. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given out of the jurisdiction ; and a writ for service, or whereof notice in lieu of service is to be given out of the jurisdiction, may be issued and marked as a concurrent writ with one for service within the jurisdiction. Concurrent writs to be issued when different times for appearing allowed. Whenever different times for appearing have to be allowed to Traiiiv. L. R. different defendants, the proper course is to issue concurrent writs f i^'^''' {Traill v. Porter). ^°- O. viii. r. 3. copy of order to be served with writ. O. X. r. I. service out of the jurisdiction : in what cases. O. X. r. 2. affidavit to obtain leave. O. X. r. 3. time for appearance. Order VIII. Rule 3. Whenever an order shall be made by the Court or Judge to substitute service or to serve a party personally out of the jurisdiction, a copy of the order directing such mode of service shall be served along with the writ. Order X. Rule 1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons, whether on a defendant to the action, or a third party ordered to be served, may be allowed by the Court or a Judge whenever the whole or any part of the subject matter of the action is land or stock, or other property situate within the jurisdiction, or any act, deed, will or thing affect- ing such land, stock or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action was made or entered into within the jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction. Rule 2. Every application for an order for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by evidence, by affidavit, or otherwise, showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made. Rule 3. Any order giving leave to affect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given, and such leave may be given by the same order by which leave is given to issue the writ of summons IRELAND. 237 Chapter for service out of the jurisdiction, or of which notice is to be given out of the VIII. jurisdiction. Rule 4. Notice in lieu of service shall be given in the manner in which writs of o. x. r. 4. summons are served, service of notice in lieu of writ. The English Order XI, r. 2, relative to service of the writ in Probata Probate actions is omitted ; and also Order LIV, r. 12 (b), relative ^'^"°"^' to the jurisdiction of the Masters of the Courts in the matter. The practice of the Irish Courts before the Judicature Act has been treated in a paper on International Jurisdiction (ii) in the Scottish Journal of Jurisprudence, vol: xxii., p. 292. 2.18 SERVICE OUT OF THE JURISDICTION. SCOTLAND. Right of foreign plaintiflF to sue. ' Forty days rule.' Resident defendant. Non-resident defendant. Edictal Citation. Old form. New form. Abstract to be registered. Three kinds of registers. Letters of supplement. The first question in Scotch procedure which requires elucida- tion is what may be called the ' forty days rule.' This rule has no reference to the defendant, but applies only to a foreigner's right to sue in the Scotch courts : it was much dis- cussed in Ringer v. Churchill, and may be shortly stated to be as follows : no residence whatever is required to enable a person to pursue a defender who is amenable to the jurisdiction by resi- dence ; but, if required by such defender, he would be bound to sist a mandatory, so that if the defender were successful in the action there might be some party within reach who could be made responsible for any expenses awarded against the pursuer : — If the defendant is not amenable to the jurisdiction by residence then by means of that occasional and temporary domicil which results from a residence of forty days, any person has a right to all the benefits of Scotch law as a litigant in the matter of any action. The second question is the Scotch method of summoning absent defendants before the courts which is by Edictal Citation. The ancient form was by citation published at the Market Cross in Edinburgh and the Pier and Shore of Leith : but this was discon- tinued by the Judicature Act, 6 G. IV, c. 120, and the modern form substituted, which in the Court of Session is as follows : — Edictal citations, charges, publications, citations and services as against persons furth of Scotland are to be done and performed by delivery of copies at the record office of the Keeper of the Minute Book, or by a messenger at arms putting it in the box marked ' Edictal Citations ' at the New Register House. An abstract of the copy so delivered, specifying the time of service, the nature of the writ, the names and designations of the parties, and the day against which the defender is called to give obedience or to make appearance is then to be registered in the ' Register of Edictal Citations.' Three separate registers are kept : one for citations on sum- monses and orders of service against parties furth of Scotland; another for citations by virtue of letters of supplement to persons furth of Scotland to appear before any of the inferior courts, (in which case they are cited, not as principal defenders, but merely for their interest) : and a third for all charges, intimations and Chapter VIII. Ringer v. Churchill. Sc: Sess: Ca: 2nd Ser: II. p. 307. [Bell's Dictionary of the Law of Scotland. Mackay's Practice of the Court of Session.] SCOTLAND. 239 Chapter VIII. Fraser v. Fraser. 8 Macph: 404. Par ken v. Royal Ex: Ass: Co: Sc: Sess: ca: 2nd Ser: VIII. p. 36s publications to persons furth of Scotland by virtue of letters other than summonses passing the Signet. The abstracts are printed and the record is at all times open for inspection. If two or more defenders are to be cited edictally, delivery at the office of one copy only is sufficient, ' provided that such copy ' bear upon its face that it is delivered for all and each of such 'persons.' (Act of Sederunt, 11 July, 1828, s. 22). A person is held to be furth of Scotland after an absence of forty days from his usual place of residence. (Act of Sederunt, 14 Dec, 1805). Although there is no provision in the Acts of Sederunt for giving notice of the citation to the defender, yet it is believed, that if his residence furth of Scotland is known, it is the practice to inform him of the citation having been issued. With regard to the cases in which Edictal Citation may be made use of, the first rule, relating to immoveable property, was thus formulated in Fraser v. Fraser: — the Scotch courts base jurisdiction on the beneficial possession, whether natural or civil, of immoveable estate within the realm whether permanently or temporarily, upon a good title of possession. The second rule, relating to moveables, is stated by Erskine to be as follows : — ' When a foreigner who is actually abroad hath no ' other than moveable effects within this kingdom, he is accounted * so little subject to the jurisdiction of its courts that no action can * be brought against him till these effects be attached by an arrest- ' ment called arrestu7n jurisdidionis fundandce causa : ' This is what is known as Scotch arrestment, which was thus explained by the Lord Justice-Clerk in Parken v. the Royal Exchange Ass: Co: — ' Jurisdiction is as extensive when constituted by arrestment as by ' personal service and domicil, if the cause of action is competent * at all in a Scotch court. The party is amenable to the Scotch ' court in the one case as well as in the other, and if we can entertain ' the ground of action our jurisdiction is the same in both cases, * though its consequence extends only to the funds attached. On 'the other hand as jurisdiction created by arrestment is neces- ' sarily limited in execution, cases may more frequently occur in ' such actions in which proceedings ought to be stayed until the ' questions are tried in tribunals which are more appropriate, ' exactly because the execution can be more complete and more 'appropriate to the nature of the demand or interests at issue.' And again in the same case by Lord Moncrieff : — ' This jurisdic- Two or more defenders. ' Furth of Scotland.' Rules of Edictal Citation. Immove- ables. Moveables. Scotch arrestment. 240 SERVICE OUT OF THE JURISDICTION. 'tion applies to the precise case of actions against defenders Chapter ' domiciled in another country and founded on personal contracts, VIII. 'however clearly entered into or concluded in that other country.' Again from Dotidas v. Forrest, it appears that an absent defendant nougiasy. . . . Forrest. may be cited in respect of debts contracted in the country whilst 4 Bing: 636. the debtor resided in it : on the other hand it was decided in jurisdiction Grant V. Pcdic, that the Scotch courts had no jurisdiction against Grants. 7aus&!^ a Scotchman originis causa who was born a Scot, but who had i wiis: & quitted Scotland permanently and become resident abroad. ' ''^°' The whole question was elaborately discussed in the London l. &- n. w. and North Western Railway v. Lindsay, and the law thus sum- Lindsay. marised by Lord Eldon, C. — ' There is a law in Scotland under h. L^^ca: ' which if the defender has real estate in Scotland, or if he has ' goods in Scotland, or if a contract upon which a party sues be a ' contract formed in Scotland, that, following particular forms, ' these circumstances would undoubtedly give a jurisdiction to the ' Court of Session.' In all other respects actor seqiiitiir forum rei is a principle of Scotch law. The property however must not be so small as to make the seizure illusory, although this raises a question which is difficult to settle. ' No doubt if a person has 'heritable property in Scotland that entitles the court to exercise 'jurisdiction over him; xi&iQx\\\Q\Q.%%vc\. Douglas \. Jones the ^^o?,- Dorigias^. 'session of a lease of a house in Glasgow was held not to begsTaw&D. ' sufficient, but the seizure of unliquidated debts to be ascertained ^ ' ' by accounts was.' The practice has been very fully treated in a paper on Inter- national Jurisdiction (iii & iv) in the Scottish Journal of Jurispru- dence, vol: xxii. pp: 358, 403. The author there states that this Extent of the remedy of arrestment 'has been pushed to an extreme length, for juris iction. , ^j^^ courts accept a jurisdiction to deal with the largest claims, 'although only the most insignificant sum has been arrested.' A remarkable instance of the exercise of the power is found in the case oi Longworth v. Llope, in which the pursuer, by having arrested Long-worth some trifling sums in Scotland, was enabled to sue the editor of j'M^'fp'h : In action the Saturday Review for damages for libel, although the judges '°''^- admitted that the mere fact of publication in Scotland would not have been sufficient to found proceedings in the locus delicti against the foreigner who had published. Reconven- It secms that Edictal Citation is also available under the doctrine "°"" of reconvention, which somewhat resembles the English counter- claim : if a person out of the jurisdiction avails himself of the Scotch courts, he may be edictally cited by the defender as to a cause of action collateral to the original cause of action. SCOTLAND. 241 Chapter In Scniton v. Gray it was held not applicable to actions of ^^^^' status : and in Cameron v. Chapman., that it ceased on the death ~ of the defender and was not transferred against his personal Scruton v. _ Gray. representatives. Morr: 4822. '■ Cftnteron v. i^'^'sCwgoT. It will be remembered that rules i (e) and 2 of the English [<;/• p. 221.] Order XI introduce important modifications of the general principle of that order with regard to Scotland and Ireland : there is no corresponding modification of the rules of Edictal Citation with regard to England. The iurisdiction of the Sheriff's Court is unlimited, but no jurisdiction , _ , , , ,. ofSherifif's appeal is allowed under £,2s^ : above that sum an appeal lies to Court. the Court of Session, which however has also an original juris- c?7o.'*° diction. The procedure of the Sheriff's Court is regulated by the 'Sheriff's Court (Scotland) Act, 1876.' 89 & 40 Vio: c. 70, s. 8. All petitions may, except as hereinafter provided, proceed on seven days' s. 8. warning or induciae where the defender is within Scotland, unless in Orkney of petitions or Shetland, or in any other island within Scotland, and fourteen days when and periods he is in Orkney or Shetland, or such other island, or is not within Scotland .° ^ ^'^^ ' and in all kinds of execution proceeding upon extracted decrees a seven days' charge shall, except as hereinafter pi^ovided, be competent and sufficient. s. 9. It shall be competent to execute edictally any warrant of citation granted s. 9. or charge on an extracted decree pronounced by a sheriff against any person warrants furth of Scotland, by delivery of a copy thereof at the office of the keeper &c., maybe of edictal citations at Edinburgh according to the mode established in regard edictally. to the execution edictally of citations and charges on warrants of the Court of Session ; or by sending to such keeper in a registered post-letter a certified copy of such warrant or charge, of which copy the keeper shall acknowledge the receipt. Every citation or charge so executed edictally shall be recorded in the record of edictal citations or charges against persons furth of Scot- land cited or charged upon warrants proceeding from any sheriff court therein. Where the party cited or charged has a known residence or place of Where business in England or Ireland, a copy of the petition and citation, or of the f^ gpgiand decree and charge, on fourteen days' inducite, shall be posted in a registered or Ireland. letter to the party at such address by the officer, whose execution shall bear that he has done so. The sheriff clerk shall in all warrants to cite or charge persons furth of Scotland insert a warrant to cite or charge edictally. s. 12. (2) A party who appears shall not be permitted to state any objection to s. 12. the regularity of the execution or service as against himself of the petition appearance, by which he is convened. 242 SERVICE OUT OF THE JURISDICTION. 39 & 40 V. c. 70 s. 12. Service of schedule in arrestment. Service at Market Cross abolished. (5) An arrestment shall be ineffectual, when the schedule of arrestment shall not have been personally served on the arrestee unless a copy of such schedule shall also be sent to the arrestee at his last known place of abode through the post by the officer serving the same, who shall certify in his execution that he has done so, stating the address to which the copy has been sent. (6) Service at the market cross is hereby abolished. [Note the 'Citation Amendment (Scotland) Act, 1882' — 45 &46 Vic: c. 77.] Chapter VIII. 243 CHAPTER IX. Chapter JUDGMENTS IN REM. IX. PAGE Definition 244 Meaning of ' status of the thing ' 244 Meaning of ' in rem ' when applied to jus ...... 244 ,, ,, )> judgment ..... 245 ,, ,, ,, action 245 Real action in English Law 245 Actio in rem in Roman Law ........ 245 Admiralty action in rem 246 Right resulting from a judgment in rem 247 Foreign Judgment in rem ......... 248 General theory of defences ........ 249 Judgments relating to land of forum rei sites . . . . ■ . . 249 „ ,, moveables ........ 250 Review of decisions 250 Prize condemnations. their effect as between owner and purchaser .... 252 ,, ,, owner and underwriter . . . 253 Grounds of condemnation. enemy's property .......... 254 general grounds .......... 255 breach of blockade ......... 255 contraband of war .......... 256 violation of Treaties 256.257 ,, ordinances ......... 256 general conclusions ......... 258 Defences ............ 258 against International Law ........ 259 absence of jurisdiction ......... 260 distinction between Prize and Municipal Courts . . . .261 Principles of Jurisdiction . . . . . • • • .261 Neutrality 263 Service of Summons .......... 263 Condemnations in Exchequer ........ 264 Acquittals 265 Summary ............ 266 We have hitherto confined our attention solely to judgments VI personajn : we now proceed to consider judgments in rem. 244 JUDGMENTS /.V REM. Definition of judgments in rem by Cockburn, C.J. Must be carefully considered. Status. As applied to things. Judgments as to possession of things. Judgments as to property in things. Consequence of such judgments. Different meanings of in rent considered. Jus in rem. These were defined by Cockburn, C.J., in Castrique v. Imrie, to be judgments determining the status of a chattel with reference to property, or vesting the ' property at once in the claimant, as a ' condemnation of the Court of Exchequer in a revenue cause 'vests the property in the Crown, or a sentence of a Court of ' Admiralty in a matter of prize vests the property in the captors.' This definition, when thoroughly understood, is perhaps the most accurate that can be given, but it requires considerable attention in order to obtain a clear insight into its meaning. The word status in its ordinary use is applied to the condition of a person ; a judgment on a question of status is a decree recognising such condition, and establishing such status : thus, that a child is or is not legitimate. The application of the word status to things involves us in not a little ambiguity ; for the determination of a dispute with regard to the right to things is more usually in this form, ' as between these parties, A has the right to the thing ' : and this decision bears no analogy whatever to a judgment of personal status, and yet it is a judgment dealing with the chattel 'with reference to property.' There is however another kind of judg- ment with regard to things which is exactly analogous to a judgment of personal status: such judgments as 'the goods are prize,' 'the goods are contraband.' Of these it may appropriately be said that they determine the status of the chattel. In the same way as a child once declared illegitimate is illegitimate, so a chattel once declared contraband is contraband. But the judgment does more than determine the status of the thing, it determines that status with reference to property : for there is an immediate consequence, the property in the goods, and not merely the possession of them, is changed. It is perhaps more strictly accurate to say that it is divested out of the defendant rather than that it is vested in the claimant, because with regard to contraband, destruction of the goods may follow. There are two examples taken in the definition to explain what is meant by the vesting or divesting of property consequent upon a judgment determining the status of a chattel. It is at once evident that the definition does not include the simple judgment declaring A to have the right to the possession of the property, because there is no declaration that the property is A's. We must now consider the meaning of the term in rem. When applied lo jus it denotes the compass and not the subject of the right. It denotes that the right in question avails against persons generally, and not that the right in question is a right over Chapter IX. Castrique v. I III rie. 30 L.J: C. P. 177- JUDGMENTS rN REM. 245 Chapter a thing. Accordingly some rights in rem are rights over things, *^' others are rights over persons [Austin, pp: 380, 814]. So when applied to a judgment, the term in rem denotes the Judgment , . in rent. compass and not the subject of the judgment ; it denotes that it AiisUn. is conclusive against persons generally, and not against one or more determinate persons [Austin, p. 990]. But this last is exactly what the simple judgment declaring A to have the right to possession does ; and therefore it is not a judgment in rem. But in the Prize and Exchequer cases the divesting and vesting is absolute, the title in the Crown or captors to transfer or destroy is complete, and conclusive against all persons generally ; those judgments therefore are properly called judgments in re7n. But the term in rem is applied also to actions. Austin points Action .... .,,.., 1 1 J "' ran. out [p. 969] that Its application here is elliptical and leads to con- fusion and obscurity, unless as in the Roman Law a sentence based on property is the result : more generally ' by action in rem, is ' meant an action of which the grotind is an offence against a right * /// 7-em, and of which the ijitentiou (scope, or purpose) is the resti- tution of the injured party to the exercise of the violated right.' But this offence against the right in rem is by a certain person, and the restitution is sought against that person by means of an action in personatn. In these so-called actions i7i rem therefore, a declaration of the right in rem, that is, a judgment in rem is not required ; but the cause of action is in personam, and the judgment is in personam against the offender, ordering him and no one else to restore the plaintiff to the enjoyment of his right. The old real action in English law did no more than this : for OM English . . real action. example the form of a judgment for the demandant in a writ of right was, ' that he recover his seisin against the tenant of the ' tenements, with the appurtenances, to hold to him and his heirs, 'quit of the tenant and his heirs for ever.' The judgment there- fore being only a bar when the second action was of the same nature, and between the same parties. [Roscoe on Real Actions, pp: 5, 329.] The same may be said of the old possessory action, and the modern action for the recovery of land : the judgment in each case being merely a judgment in personam, binding only between the parties. The Roman actio in rem, which was brought for the vindication Roman actio . z« 7 em. of the right both to moveables and immoveables, was not only based on z.jus in rem as equivalent to dominium or property, but led to a sentence which did in fact declare that property to exist ; and which was therefore a judgment in rem. 246 JUDGMENTS /.V REM. Admiralty action in rem. Its origin. Consequence of judgment. Not on the status of the thing : but conclusive against all the world. Cockhurn, C.J. W't come now to Admiralty actions in rem. The term has here ceased to mean either, as inyW in rem, an universal right ; or as in action in rem, the vindication of an universal right ; but denotes that the action is brought, in so many words, against the res. For the further security of a right against the owners a maritime lien is given, now by Common Law, now by Statute, on the ship ; and to enforce that lien an action is allowed to be brought against the ship itself, the owners and all parties interested being also made defendants to the suit. As Dr. Lushington explained in the case oithe La7iarkshii-e, it is an alternative remedy given, as for example, in the case of wages, for the further protection of seamen. This action is therefore brought to enforce not a jus in rem, but z,jus in personam.. If the wages are not paid the Court decrees a sale of the vessel, the surplus of course going to the owners. The propert}' in the ship is divested absolutely from the owners ; it is also vested in the purchaser by virtue of the sale under the judg- ment, and therefore, so far as the title of the purchaser is concerned, it resembles the judgment /« rem in the strict sense ; but this change of property is not the inwiediate consequence of the judgment ; if the analogy were complete the property in the ship should vest in the sailors who claim their wages. But it is called a judgment in rem for the same reason that the action is called in rem, because it is against the res. We have not therefore in this case a determination on the status of the chattel with reference to property, but yet we have a judgment conclusive against all the world. This may possibly be arrived at by means of the artificial citation to all parties interested : all persons interested being thus made parties to the suit, all are bound by the judgment : in this circuitous way we have a judgment which in the true sense of the words is a judgment in rem. ' The whole world it is said are ' parties in an Admiralty cause, and therefore the whole world is 'bound by the decision' (Marshall, C.J., the Mary [New York]). This difficulty was discussed by Cockburn, C.J., in Castrique v. Imrie, from whose judgment we have drawn the definition given at the commencement of this chapter : after pointing out that the judgment of the French court, although it simply decreed the sale of a particular chattel to satisfy a money demand and therefore hardly fell within the strict definition of a judgment in rem, yet was strictly analogous to the sentences of a Court of Admiralty on a claim of salvage ; he thus concluded : ' Now the sentences of ' the Court of Admiralty in the matter of maritime liens have 'always been considered as judgments in rem. And in one sense Chapter IX. the Lanark- shire. 2 Spinks 189. the Mary. 9 Cranch 126. Castrique V. Imrie. 30 L.J: C. P. 177- ADMIRALTY ACTIONS. 247 Chapter ' they properly are so ; for the purpose of the suit, and the effect ^^' ' of the judgment, are to afford a remedy, not by execution against ' the person or general estate of the defendant, but by appropria- ' tion of a specific chattel to satisfy the plaintiff's claim.' The How they result seems to be therefore that these Admiralty judgments differ the^ue""* from the true judgments in retn in that they do not immediately ^hife>T^ vest the property in the claimant, but hypothecate it to his claim : And from 1 Tr/- r • 1 • judgments ?'« and that for the same reason they differ from judgments in personam, personam. because this is not a remedy by execution against the person or general estate of the defendant. This distinction was much Simpson emphasised in Simpson v. Fogo : a ship had been seized under an V, Fogo, 32 L.J: attachment of the Court of Louisiana, and sold under a process similar to ayf.- fa:, at the suit of a foreign creditor of the mort- gagor : the mortagee intervened and his claim was disallowed : he claimed a second time on the occasion of the purchaser sending the ship to England. Vice-Chancellor Wood dwelt on the fact that there was no judgment iti rem : the ship had been seized as part of the general property of the debtor : the Court of Louisiana only affected to deal, so far as it directed a sale of the ship, with such Liverpool title as the debtor had. So too in the Liverpool Marine Credit Co: Himter. V. Huuter the question did not relate to a judgment in rem, but . cii:'^479. to 3, transfer of chattels valid by the law of the place of transfer : and this was the ground of the decision of the Exchequer Chamber Cammeii v. in Cammell v. Sewell. 27T. J: See also Mr Justice Blackburn's remarks in Castrique v. Imrie c^trique v. in the House of Lords. i^I'^.'a, Now, from a judgment in rem there results to the successful y?<.r z« ^^w H. L. 427- claimant d.jus in rem ; that is, the property is vested in him as from""^ against everybody else, or, using the more common expression, as f„ ^^^f"' against all the world ; which evidently roust be taken to mean, as against all the world subject to the English courts, or to become subject to them by a violation of the right within the jurisdiction of the English courts. (This is of larger application than Mr Markby's definition, ' against all persons, members of the same Markbys , 1 • 1 -L 1 )\ T definition. ' political society as the person to whom the right belongs. ) In other words, the court, having considered the merits of the case, has vested the property in a certain person j and the right to this property, all other courts under the same Sovereign Authority, will protect should it be called in question by any one. Now, from a judgment in persottam there results only z-Jus in Differences . . . ,...,. between personam : This right also is in a certain person, but it is in him jus in rem only as against one particular and definite person (or particular /"w«a/«" 248 JUDGMENTS IN REM. resulting from judgments. yiis tn personam. and definite persons, or their representatives) : To this jus in per- sonam, there is a correlative obligation : The sanction attaching to the obligation is resident in the Sovereign Authority of the State : But it is only when the subject of this obligation — a party When the to the Original action — attempts to call this right in question, that considered as the courts will considcr the right as established by the first adjudication, and will not re-open the merits of the case. Chapter IX. Jus ill rem. The duty correlative. But to the jus in retn resulting from a judgment in rem there is also a duty correlative — the duty is negative — to abstain from violating the right declared to exist. Obedience to this duty is incumbent upon everybody ; and this, as we have seen, from the very nature of the right, for the decision of the court is that the right to the thing is in a certain person only, and in no one else. No definite name, as opposed to 'obligation' has been given to this correlative duty, but as before, the sanction attaching to it is resident in the Sovereign Authority of the State. We arrive then at a result similar to that arrived at in the case of judgments in personam : — When any one, a subject of this duty, attempts to call this right in question, the 'courts will con- sider the right as established by the first adjudication, and will not re-open the merits of the case. The judgment in persona/n is so to speak a special case of the judgment in rem. So far we have considered the English recognition of a judg- ment in rem pronounced by an English court : we will proceed to the case of a judgment in rem pronounced by a foreign court. The conclusion arrived at in the first chapter was, that in addition to the obligation and sanction resident in the Sovereign ^ZtsmTm'" Authority which arose upon a judgment in personam, there also Ic/: p. i8.] came into being in every other state a bare obligation — resembling somewhat the nudum pacimn of the Roman Law — which, when the subject of the obligation enters any foreign State, the Sovereign Authority of that State clothes with an auxiliary sanction, enforce- able at the instance and discretion of the foreign judgment creditor : This sanction being founded upon the principles of International Comity. Parallel So, in addition to the negative duty and sanction resident in conclusion as , r, ■ « .i •. i • i • • i to judgment the Sovcrcign Authority which arise upon a judgment tn rejn — obedience to which is obligatory upon all the world subject, or to become subject to that Sovereign Authority — there also comes into being in every other state, a bare negative obligation ; which, when the person possessing the right in rem enters any foreign WTien the right is con- sidered as established. Foreign judgment in rem. Recapitula- tion : con- clusK n as to JUDGMENTS IN REM. 249 Chapter IX. Castrique V. Imrie. 30 L. J: C. P. x-n. State, the Sovereign Authority of that State will, at his instance and discretion, clothe with an auxiliary sanction, when any subject of the duty (a subject of the foreign State) disobeys that duty by violating the right : This sanction being founded upon the prin- ciples of International Comity : For, when that subject comes within the State whose courts have created the right, the bare negative obligation would instantly become the absolute negative duty, and would be enforced by its correlative sanction resident in the Sovereign Authority. The difference therefore between the two classes of judgments ^fain is simply this, that whereas third parties are entitled to have a between judgment in personain entirely disregarded as against themselves, in rem they are bound by a judgment in rem. personam. We have already considered who are third parties, in discussing the question oi res judicata \cf: p. 47]. With regard to the defences that may be raised to a judgment Defences. in rem., although we shall have to consider some of them at length, it will be advisable to establish at once the main principle. There are to be found traces in judgments, notably those delivered oid opinions _,. -.^ ... ., . . that the rule in Castrique v. Jmrie, of an opuiion that a judgment in rem isastojudg- ... I • 1 • ments in entitled to greater respect than a judgment in personam; or pnt- persa>tam ting it the other way, that a judgment in personam is entitled to apply" less respect than a judgment in rem : in other words, that defences ^' "'*' as to which some doubt exists as to whether they could be raised to a judgment in personam., certainly could not be raised to a judgment in rem. We venture to think this opinion fallacious : for the only difference between the two judgments being one of extent, it follows at once that the same rules of defence must The same apply in the one case as in the other. apply. °" Having thus clearly before us what are judgments in personam, Effect of and what are judgments in re?n, we proceed to consider the effect judgi"nts /./-•• J . • in rem. of foreign judgments in rem. First, as to judg.aients in matters other than prize and con- demnation. We are met at the very outset with a confusion resulting from the varying use of the term in rem. Story says, 'And first in ' relation to judgments in rem. If the matter in controversy is referring ,,j ,. ,, ... ,to land or land, or other immoveable property, the judgment pronounced immove- * in the forum rei sites is held to be of universal obligation, as to \tory. * all matters of right and title which it professes to decide in rela- ^^'" ' tion thereto. This results from the very nature of the case ; for ' no other court can have a competent jurisdiction to enquire into 2;0 JUDGMENTS AV REM. Fallacy in Story's statement. Foreign judgments resembling English real actions, and those resembling Roman actions in rem. Two recent decisions examined. ' or settle such right or title. By the general consent of nations, ' therefore, in the case of immoveables, the judgment of the forum ' ret sitce is held absolutely conclusive, and on the other hand, a 'judgment in 'any foreign country, touching such immoveables, 'will be held of no obligation.' [Conflict of Laws, § 591.] The fallacy in this statement lies in the use of the Avords 'universal obligation:' the meaning intended to be conveyed is that such a judgment is entitled to ' universal recognition ; ' but this must evidently mean as between the parties to the original suit, and therefore it is a mistake to assume that these judgments are necessarily judgments in re7n ; the reason of this universal recognition has already been fully discussed under the head of 'territorial jurisdiction :' [cf: p. 139]. As we have just seen the old English real actions were not judgments m rem, that is, were not binding on persons not parties to the suit ; and therefore in the absence of proof, there is no ground for supposing that a judgment of a similar nature given abroad is a judgment binding on persons other than those who are parties to the suit. But the sentence in the Roman adw in rem was, as we have said, declaratory of property, and was therefore a judgment in rem, binding on all persons. Therefore in countries whose laws are based upon the Roman Law there is a strong presumption that such a judgment relating to immoveables is in fact a judgment in rem. Further, the actio in rem being also the proper remedy for the recovery of moveables, the same remark may be made with regard to a foreign judgment relating to such property. In all cases therefore, it is a matter to be enquired into whether, in the country where it was pro- nounced, the judgment in question is a judgment in rem : if it is, it will be recognised as such in this country, and be held binding on all persons whether parties to the original suit or not. This point has been noticed shortly in Smith's Leading Cases [vol. ii. 8th ed: p. 871] : but the two cases there cited iu support of the proposition do not in reality bear upon the question. There are two very important recent cases in which this enquiry, whether the foreign judgment was in rem or in pei'sonam, was involved, and in the solution of it no less than twenty Judges were engaged at different times ; in both cases the Court of Error differed from the conclusion arrived at by the court below. In Camniell v. Chapter IX. Camtnell v. , Sewell. by 27 L. J: the Superior Court of Drontheim, confirming an act of survey [on'aVp:] Seivell, the judgment had been delivered t of Drontheim, confirming and public auction of a ship and cargo of deals which had got on ex:35o! JUDGMENTS IN REM. 25 I Chapter shore on the coast of Norway : The act of survey and public IX. auction are judicial proceedings, from which, by the law of Norway, appeals will lie : and such sale by the master transfers the property in the cargo. The sale however was unnecessary, and the agent of the underwriters had protested. In the Exchequer, the judgment was held to be in the nature Exchequer. of a judgment in rem, and therefore binding on the underwriters who had brought an action to recover the value of the deals from the purchasers ; the court thought that there had been an adjudi- cation upon the status of the property, and that it was similar to an Exchequer condemnation. The decision was affirmed in the Exchequer Chamber but on ExcMuer a different ground. Crompton, J., said that the Court was by no means prepared to agree in thinking that the Norwegian judg- ment was in rem : but that the underwriters nevertheless could not recover in virtue of the simple proposition that ' if personal ' chattels are sold in a manner binding according to the law of the ' country in which they are disposed of, that disposition is binding ' everywhere.' ^ . In Castrique v. Imrie, proceedings on a dishonoured bill, Ijnrie. 30 L. J: C. P. 177 l.rTh- L- master and against the ship. The Court condemned the master 414- ,. , -, ^ ■. • -. :..:i>, — o,,^ 1^ r,o„;vo ' fr, r^air Imrie drawn by the master upon his owner m England for necessaries, c. p. 177- were taken in the Tribunal de Commerce at Havre, against the ' en sa qualite de Capitaine, et par privilege sur le navire,' to pay the amount of the bill ; and declared him free from arrest, to which he would otherwise have been liable. Before the Tribunal de Commerce the master only was summoned : but before this decision was reviewed by the Civil Tribunal of the district, all the persons who appeared upon the ship's papers to be owners of the ship were summoned : but the mortgagees were not summoned and were in fact absent : the judgment was affirmed, and the ship was ordered to be sold by public auction. The plaintiff, the last mortgagee of the ship, brought a suit ' in French ' the nature of a suit to replevy the ship,' in the Civil Tribunal of Havre to release the ship. The original seizure was upheld, and the plaintiff condemned in costs, because the Court (misconceiv- ing the English law) thought that by that law, no vaHd transfer could be made of a ship, to the prejudice of creditors, whilst she was on a voyage, unless some trace of the sale appeared on the ship's papers. Finally, the superior Tribunal of Rouen upheld the decision of the court below. 252 JUDGMENTS /-V REM. English courts. Seizure of vessel by judgment in persoiiatn. Foreign judgment hypothecat- ing ship enforced in Admiralty Court. The Court of Common Pleas held the judgment to be in per- sonam : The Court of Exchequer Chamber held it, as we have seen, to be strictly analogous to the sentence of the English Court of Admiralty in a claim of salvage, and therefore in rem \cf: p. 246] : this decision was affirmed by the House of Lords. The same difficult question arose in the City of Mecca : owing to an error in an affidavit. Sir R. Phillimore had assumed that a judgment delivered by the Portuguese court, and which the English court was asked to enforce, was a judgment in rem : it transpired afterwards that modern Portuguese law does not adopt the dis- tinction between actions in personam and actions in rem, and for this reason the Court of Appeal reversed the judgment of the court below. Now, although the action may certainly have had for one of its objects the seizure of the vessel, yet it could only effect this by a judgment in personam against the captain and owners, and when the damage was ascertained execution would issue against it as well as against any other property belonging to them : there was therefore no hypothecation of the property and therefore no resemblance to an Admiralty judgment, certainly none to a true judgment in rem. An important principle was however enunciated by Sir R. Phillimore which it will be convenient to notice here. A foreign judgment in 7-em hypothecating the vessel to satisfy a lien upon it, may be enforced in this country by a proceeding in the Admiralty Court against the ship when it comes within the jurisdiction and it can be seized. But, bearing in mind the alternative nature of the remedy, it would seem that there may also be an action in personam against the owners to enforce the foreign judgment if it is not purely one of hypotheca- tion, but is also against them personally. Chapter IX. the City of Mecca. 5 P. D. 28. [on app :] 6 P. D. 106. Effect of judgment as between owner and purchaser. The effect of a judgment in rem as between the owner and the purchaser. As we have seen, in Prize and Exchequer cases, the consequence of the judgment is a divesting of the property out of the original owner, and a vesting of it in the claimant : the claimant therefore has a right to sell and a power of conferring a good title on the purchaser : and in Admiralty judgments if the ship is sold, the court gives the purchaser a good title. With regard to English decisions the owner may seek such redress as the laws regulating appeals may give him ; and, bearing in mind what has been said as to judgments in personam, with regard to foreign decisions EFFECT ON PURCHASERS AND UNDERWRITERS. 253 Chapter (subject to what will be said hereafter on foreign condemnations), ^■^- the owner may avail himself of the appeal courts in the foreign country ; beyond this however, in the words of the marginal note Hughesv. to the leading case oi Hughes y. Cornelius: (the case 'being of 2Show'e'/' 'an English ship taken by the French and as a Dutch ship, in *^^' ' time of war between the Dutch and French ') ; ' The sentence * in a foreign Court of Admiralty decreeing a ship to be lawful ' prize, is conclusive : and therefore, though erroneous, the owner ' cannot recover the ship back by trover against the vendee.' It was ^ per curiam agreed and adjudged, that as we are to take ' notice of a sentence in the Admiralty here, so ought we of those ' abroad in other nations, and we must not set them at large ' again : for otherwise the merchants would be in a pleasant ' condition.' Sir William Scott makes this point very clear in the Fiad the casc of the Flad Oyen : — ' The law of England and the s't.'r. 27on. 'general practice of the law of nations requires a sentence of ' condemnation as necessary to transfer the property : and a * neutral purchaser in Europe during war, does look to the legal 'sentence of condemnation as one of the tide-deeds of the ship, Sentence of ' if he buy a prize vessel. It is amongst those documents which tTon'^aThfe- ' are most universally produced by a neutral purchaser, that if ^^^^' * she has been taken as a prize it should appear that that prize ' has been in the proper judicial form subjected to adjudication.' theSegredo. See Dr. Lushiugton's remarks in the Segredo. I Spinks 36. But the owner if insured may endeavour to recover on his policy against the underwriters : we must therefore now consider The effect of a judgment in rem as betweeti the owner and the underwriters. In time of war, foreign Admiralty decisions in matters of prize Effect of very frequently come before the English courts. Nearly all the as between cases cited will be found to have arisen in the early part of this underwriter, century, during the v/ars between England and France. The condemnations of the foreign Prize Courts were usually made use of in actions between the assured and the underwriters ; the owner of the captured vessel claiming the amount of his insurance : the underwriters alleging a violation of the warrant of neutrality in the policy, and producing the foreign condem- nation as proof Baring X. ' Thcse sentenccs are admissible and conclusive between the 3 ^'^'v. ' assured and the underwriters with respect to every fact which ' they profess to decide.' (Lord Alvanley, C.J., Baring v. Clagett.) 201 254 JUDGMENTS AV REM. Question between assured and under- writers. Difference between representa- tion and warrant of neutrality. ' Enemy's property.' Cases. Other grounds. The question between the assured and the underwriters is : Has the warrant of neutraUty been violated ? Was the ship at the time of her capture doing such things as a neutral vessel might do ? The underwriters produce the condemnation of the foreign Prize Court : if therefore this sentence says absolutely, that the vessel was not neutral ; that is, that it was enemy's property ; or that she was doing such things as would render her liable to be treated as enemy's property, it will be received as answering the question in favour of the underwriters. The right of the underwriters to produce the sentence was questioned in Lothian v. Henderson : but the majority of the Judges held that they were clearly entitled to do so. In Marshall w. Parker, Lord Ellenborough, C.J., held that it was necessary to lay a foundation for the sentence, by proving that the vessel was captured: till that had been done, the sentence was merely in vacuo : — And in Voti Tungeln v. Dubois the same learned Judge decided that a ship being merely represented ntwXxdX, there was no warrant of neutrality ; and that therefore a con- demnation for a violation of the laws of neutrality, was not evidence to falsify the representation — if the ship was in reality documented and navigated according to the laws of the state to which she belonged. A representation is made before the subscription of the policy, and is never in terms, inserted in it : whereas a warranty, not implied by law, is in every case asserted on the face of the policy \cf: Arnold's Marine Insurance, pp: 476, et seq-\. The first conclusion at which we arrive is evidently this ; If the ground of condemnation be clearly set forth to be that the ship is enemy's property, it will be held conclusive to negative the warrant of neutrality. Berfiardi v. Motteux} Lord Mansfield, C.J. Calvert v. JBovill} Lawrence, J. Geyer v. Aguilar} Lord Kenyon, C.J. Christie v. Secretan} „ Pollard V. Bell} „ Xindersley v. Chase.'' Sir W. Grant, M.R. Baring v. Clagett.'^ Lord Alvanley, C.J. Lothian v. Henderson.^ Le Blanc, J. Chambre, J. but if ' enemy's property ' is not assigned as the reason, and other grounds are set out (not coming under this and the following heads), as in Calvert v. Bovill, the sentence will not be received. Chapter IX. Lothian v. Henderson. 3 B. & P. 499- MarshaU v. Parker. 2 Camp: 69. Von Tungeln V. Dubois. 2 Camp: 151. ' 2 Dougl: 575- " 7 T. R. 523- ' 7 T. R. 681. * 8 T. R. 192. ' 8 T. R. 434- ' Park on Insurance, 8th ed: 743. ' 3 B. & P. 201. ' 3 B. & P. 499. Calvert V. BoviU. 7 T. R. 523. PRIZE CONDEMNATIONS. 255 Chapter IX. Lothian v. Henderson. 3 B. & P. 499. Pollard V. Bell. 8 T. R. 434. Bemardi v. Motteux. 2 Dougl: 575- Saloucci V. Woodnias. Park on Insurance, 8th ed: 727. Dalgleish v. Hod son. 7 Bing: 495. fisher v. Ogle. I Camp: 418. Robinson v. jfones. 8 Mass: Rep: 536. Dalgleish V. Hodson. 7 Bing: 495. The next consideration is, where the ground of enemy's pro- p^nemy's perty is not clearly set forth : nothing appearing but the mere not stated, condemnation. There is a conflict of authority as to the conclusiveness of the Amhorit^ie^s^ sentence. inference being made. In Lothian y. Henderson, Lord Eldon, C, said:— 'The ques- ' tion would be whether such sentence of condemnation must not * be presumed to have been founded on the only legitimate ground * on which they can be founded, namely, the property not being * neutral but hostile.' And in Pollard v. Bell, Le Blanc, J., said : — ' If there be a general sentence of condemnation, without ' assigning any reason, the courts here will consider that it pro- ' ceeded on the ground of the ship's being the property of an ' enemy.' In Bemardi v. Motteux, Lord Mansfield, C.J., appears to have doubted whether the inference should be made : he remarked that the ' inconvenience would be entirely obviated if ' the foreign courts would say in their sentences, — condemned as * enemy's property ' ; but in a later case, Saloucci v. Woodmas, he held that the ship being condemned as ' good and lawful prize,' it must have proceeded on the ground of the property belonging to an enemy. Tindal, C.J., in Dalgleish v. Hodson, and Lord EUenborough, ^^^^^^^l C.J., in Fisher v. Ogle, are entirely against this inference being made, the refusal to recognise the condemnations being based on the principle that a judgment is only conclusive as to facts on which it expressly proceeds ; the Chief Justices holding that these facts must appear in the sentence free from doubt and ambiguity. The same doctrine was laid down in Robinson v. Jones [Massachusetts]. But the law of nations recognises other grounds than ' enemy's 'property' as justifying a sentence of condemnation as prize ; and where these are set forth, it will as before be held conclusive. Of these the first to be noticed is, Breach of Blockade. ' It is an invariable principle of the law of nations that if a Breach of *■ *■ . . blockade. ' neutral violates a blockade by carrying supplies to, or in any way ' trading with, a blockaded port, he is guilty of an offence against ' the laws of war, and thereby renders his ship and cargo liable to ' confiscation.' [Arnold's Marine Insurance, p. 650.] It follows therefore that a foreign sentence condemning a vessel as prize on this ground will be held conclusive in favour of the underwriters. This was admitted in Dalgleish v. Hodson, the sentence in that case being rejected because the breach was not expressly stated. against the inference being made. 256 JUDGMENTS /-V REM. but declared that on account of certain circumstances the vessel Chapter IX * ought to be considered as violatin"; the blockade.' The same principle was laid down in Radcliffe v. United Insurance Co: [New j^^dcUffe v. York], and Baxters. New England Insurance Co: [Massachusetts], %"!'^v where it was held that the sentence was conclusive both of the fact 9 Johnson 277. that the port was blockaded and of the breach of it. New"'^' Eni:land Ins: Co: Contraband of War. 6 Mass: Rep: 277. Contraband Contraband of war was recognised as a good ground of con- ofwar. demnation m Hobbs v. Henning; the sentence m that case was Hobbsy. however rejected because consistently with it the vessel might 34 l. J: ' have been sailing to a neutral port. Violation of Treaties. Violation of Two countries being at war, the violation of a treaty between one of the belligerents and a neutral state by a vessel belonging to the latter, will justify its condemnation as prize by a Prize Court of the belligerent state. ' If the French court had condemned * the ship and cargo for having violated any treaty which subsisted * between France and America, we should not have been able to ' extricate ourselves from the effect of such a sentence.' (Lord Kenyon, C.J., Christie \. Secretan.) chHstiey. Secretan. 8 T. R. 192. A very common ground of condemnation appears to have been Violation of Ordinances of the foreign country. Violation of English Judges have been almost unanimous in rejecting such ordinances. & J & . . condemnations, and refusing to receive them as falsifying a warranty of neutrality. The reason for this refusal being that these ordi- nances are not part of the Law of Nations ; are not of universal acceptance amongst other nations ; and that therefore other nations are not bound to recognise them : although ' third persons * and mercantile people are bound to take notice of them for their 'own safety.' (Lord Mansfield, C.J., Barzillay v. Lewis?) Maynev. Walter.^ Lord Mansfield, C.J. 'Park on -^ T J Insurance, Barzillay v. Lewis? „ ^^^ ^^'■ ■^ 431-730. Geyer v. Aguilar.^ Lord Kenyon, C.J. \ 'V r' Pollard V. Bell.^ „ esj. ' " * 8 T. R. Bird V. Appleton.'^ „ 434- Price V. Bell.^ „ 562. ' * I East, Baring V. Clagett."^ Lord Alvanley, C.J. 663. Dalgleish v. Hodson.^ Tindal, C.J. 201. " It is evident that the breach of the warrant of neutrality cannot 495. PRIZE CONDEMNATIONS. 257 Chapter IX. Pollard V. Bell. 8 T. R. 434. Bird V Ap/>leton. 8 T. R 562. Kindersley V. Chase. Park on Insurance, 8th ed: 743. Boltoti V. Gloilsione. 5 East 155. [on app:] 2 Taunt: 8, Hobbs V. Henning. 34 L. J: C. P. 117. Baring v. Royal Ass: Co: 5 East 99. possibly be proved by a sentence of condemnation proceeding on the ground of non-compliance with certain peculiar ordinances of a foreign country : the sentence for this purpose is therefore rejected. (Lawrence, J., Pollard \. Bell.) For example, the French ordinance on which the condemnation in Bird v. Appleton proceeded, required that the lists of crew and despatches should be regular. That is neither required by the Law of Nations, nor was it by treaty between the two powers — France and the United States. But these conditions may be again varied : — ■ By the aid of these foreign ordinances, the court may have arrived Condemned at the conclusion that the ship zvas enemy s property. The property' by English courts have held themselves bound by such sentences ordinances. because the fact was found that the ship was enemy's property ; and they do not regard the means by which this conclusion was arrived at. 'All these ordinances meant was to lay down rules of decision The object of ordinances. conformable to what lawyers and statesmen of the country under- ' stood to be the just principles of maritime law, and to apprise ' neutrals what their rules are. The Court of Admiralty in France * has not taken them as positive laws binding on neutrals, but they ' refer to them as establishing legitimate presumptions, from which * they are warranted to draw the conclusion that is necessary for 'them to arrive at, before they are entitled to condemn.' (Sir W. Grant, M.R., Kindersley v. Chase.) And again: — 'Looking at ' the whole of the sentence, it is impossible not to see that the ' French court canvassed and decided on the probability of the ' ship's actually being, or the fitness of its being presumptively ' deemed enemy's property : or at least not neutral, in respect of ' certain established indicia on that head, collected together in the 'ordinances it refers to.' (Lord Ellenborough, C.J., Bolton v. Gladstone.) And in the same case on appeal. Lord Mansfield, C.J., said : — ' If the court comes to the conclusion that the vessel ' is not neutral, it is quite immaterial through what media it 'arrived at it' So also, Erie, C.J., in Hobbs v. Henning: — 'We 'have no jurisdiction to inquire into the validity of the legal ' grounds of the judgment.' The decision in Baring v. Royal Exchange Assurance Co: pro- ■ infraction ceeds on the same ground : the condemnation was for infraction °he aid of ''^ of a treaty requiring ships to be properly documented : but the °'''^'"^"''^^- inferences in the sentence were drawn from ex parte ordinances in aid of the conclusion of such infraction of treaty. Lord s 258 JUDGMENTS IN REM. Ellenborough, C.J., held that the court was bound to give credit Chapter to the sentence, although the foreign court had ' construed the ^' ' treaty iniquitously.' It may be remarked that in nearly every case which we have quoted the court, while recognising the sentence, has expressed a conviction that the decision was wrong and unjust. Briefly, the conclusions at which we have arrived are these : — Conclusions. i. The foreign condemnation is conclusive, when it declares the vessel prize, as being enemy's property, for breach of blockade, and for violation of treaties ; irrespective of the ground on which the court proceeded. ii. It is doubtful whether it is conclusive, when it declares simply that the ship belongs to the captors as prize, iii. It is not conclusive, when it declares that the ship belongs to the captors as prize, by reason of a violation of ordinances binding solely in the foreign country. Conclusions But thcsc conclusions are drawn from cases between underwriters and the owners suing for the assurance on account of the loss of the vessel by capture, in which the foreign sentence has been made use of merely for the purpose of deciding the question of the violation of neutrality : if therefore the doubt contained in the second paragraph should ever be decided against the conclusive- ness of the condemnation, it will not in any way interfere with the theory of the conclusiveness of foreign judgments generally. Not being absolute in favour of the underwriters, it is absolute in favour of the assured : the only difficulty lying in the solution of the question, does the judgment negative the warrant of neutrality ? If the answer is in the affirmative, the condemnation is absolute for the underwriter ; if in the negative, it is absolute against him. Illustration Finally, we must quote the case oi Duckworth v. Tucker as illus- Duckworth ciu'^s'iveness trative of the conclusiveness of a judgment in rem against all the aXauntr?. o ju gment. .^yQj.j^^ -pj^g action was brought by an officer in the service of one of our allies to recover a share in the prize money resulting from the sale of a captured vessel. It was held that the condemnation as prize was conclusive on the Common Law Courts that no others were entitled to a share than those to whom it had been awarded by the sentence. Defences to a Judgment in Rem. Defences. We have already pointed out that the main principles of defence to judgments in rem must coincide with those which may be raised DEFENCES. 259 Chapter IX. Bradstreet V. Neptune Ins: Co: 3 Sumner Soo. Calvert v. Bovill. 7 T. R. 523. Baxter v. Neiv England Ins: Co: 6 Mass: Rep: 277. to judgments in personam. A great part therefore of the chapter on defences may be taken as applicable to judgments in rem. Two of the defences however, ' against International Law ' and 'Absence of Jurisdiction,' again come into prominence in con- nexion with these judgments. Against International Law. The conclusion at which we arrived with regard to this defence. Breach of it will be remembered, was that when it is possible to establish Law^"^''°"^ conclusively that the law alleged to be violated is without doubt ^^•^' ^' ^"^^'^ part of the law of nations, then the defence is a good one : with regard to judgments in personam the questions that arise fall within what is generally understood to be private international law : the same remark applies to judgments in rem other than those of prize courts : but the decisions of prize courts proceed on public inter- national law, the doctrines of which are more capable of being ascertained and more universally understood than those of the private law. It was very broadly laid down in Bradstreet v. Neptune Insurance Co: [New York] that the decisions of prize courts acting /;/ rem, being based on these doctrines, are subject to revision Subject to at the hands of the courts of other nations when there has been on this a violation of these doctrines. ^'^°"" Thus in reviewing the foregoing decisions of the English courts in matters of prize, we find first, a submission to these principles in the recognition of sentences based on 'Enemy's Property' ' Breach of Blockade,' ' Contraband of War,' and ' Violation of Treaties ; ' the law of nations recognising these as good grounds of condemnation : but we find also a rejection of the sentences where they have exceeded these recognised limits : for instance, where new general grounds were given, as in Calvert v. Bovill; and where the ground was a breach of an ordinance passed by the state whose court had condemned the vessel. The defence setting up a violation of International Law is there- Breach of fore clearly admissible : but such a violation will not be presumed : law wui'°"^ — ' It has been said that the assured ought not to be concluded presumed. * by a foreign sentence because the Court of Admiralty must be ' supposed to be partial to the nation to which they belong and for ' whose benefit they decree condemnation. To this I answer that 'such partiality is not to be presumed by one court in the conduct 'of another' (Sedgwick, J., Baxter y. Netu England Insurance Co: — Massachusetts). In like manner, it must be borne in mind that this refusal has never been actuated by warlike feelings on the 26o JUDGMENTS IN REM. Absence of jurisdiction. A special instance of breach of international law. part of the English courts. (Ashhurst, J. — Geyer v. Agui/nr.) chapter And this is borne out by the fact that in those cases where the ordinances — although arbitrary and not in conformance with Inter- ^ ° '' Geyer \. national Law — led the courts to the conclusion that the ship was ^^"S"";,, ' 7 1. K. 001. enemy's property, or that a treaty had been violated, the decisions have been recognised. It is breach of international law by the court that is considered, rather than breach by the law itself on which the sentence has been based. The remarkable words of Lord Ellenborough as to the general principle of receiving these condemnations must be here noticed : — ' I am by no means disposed to extend the comity which has ' been shewn to these sentences of Foreign Admiralty Courts. I ' shall die, like Lord Thurlow, in the belief that they ought never ' to have been admitted. The doctrine in their favour rests on * Hits:Jies v. Cornelius, which does not fully support it : and the Hu^Jies v. ° _ _ _ . . Cornelius. * practice of receiving them often leads in its consequences to the 2 Shower 232. 'grossest mjustice.' Absence of Jiirisdictmi. What has already been said on the subject of International Law prepares the way for a consideration of the question of the juris- diction of Prize Courts. As there are clearly defined principles to guide these courts in proceeding to the condemnation of captured vessels and cargoes, so we find clearly established principles on the question of their jurisdiction : so that the defence raising 'absence ' of jurisdiction ' in the court is in reality another example of a violation of International Law. 'This court wall examine into 'the jurisdiction of the foreign court, and if that court cannot ' consistently with the law of nations exercise the jurisdiction which ' it has assumed its sentence is to be disregarded. But of their ' own jurisdiction so far as it depends upon municipal laws, the ' courts of every country are the exclusive judges.' (Marshall, C.J., Rose v. Hiniely — New York.) The case of the Huldah, in i8ot, was one of several cases of ships and cargoes carried into St. Domingo, and proceeded against in a Court of Admiralty which was held not to be vested with competent authority to proceed in prize causes against France and Holland, though there had been a prize warrant issued then against Spain. In consequence of that mistake, original proceedings were instituted in the High Court of Admiralty on the petition of the claimants, by a monition calling on the captors to proceed to adjudication. Sir William Scott held, that although Rose V. Himely. 4 Cranch 241. the Huldah. 3 Rob: A. R. 235. DEFENCES. 261 Chapter IX. Bradstreet V. Neptune Ins: Co: 3 Sumner 600. the court had apparently authority, and distribution had taken place ; yet, it not having authority, the proceedings were null and of no legal effect whatever. On the main question some guiding principles have been laid Principles down by Mr Justice Story. Jurisdiction The jurisdiction should be absolute : recapture would clearly n"au"rs. take the vessel out of the jurisdiction, and the sentence pro- nounced after such recapture would be a nullity. Prize Courts acting in rem sit under the laws of nations, and therefore the courts of other nations are competent to enquire into an excess of jurisdiction. But Municipal Courts acting in rem must be presumed to act under and in accordance with their own laws : but still the res must be in possession positively or constructively. Physical force actually applied is not indispensable to the Physical creation of jurisdiction : for instance, embargo, where there is a dispensable! moral restraint and power of immediate action in case of viola- "' ^"^^"^ tion which subdues resistance. There is a complete subjection or deditio to the local sovereignty when it has the means, and capacity, and will immediately at hand to enforce obedience to its orders. {Bradstreet v. Neptune Insurance Co: — New York.) But this is somewhat qualified by the rule that the vessel must be brought infra pt-cesidia [p. 262]. A most important distinction is here pointed out between Prize Distinction Courts and Municipal Courts acting in rem ; as to the former there pH^^and is a right of review vested in the courts of other nations ; but as co"u"t"^''' to the latter ' they must be presumed ' to have acted rightly, and ^ra^^ "' there is no power of review : this, it will be remembered, was the gist of the contention on the subject of jurisdiction in the chapter on Defences, that there is a discretion vested in every state to regulate the jurisdiction of its courts, which is so far absolute, that it will only avail itself of it in the most extreme cases. The peculiar nature of a judgment in rem furnishes us with one of these cases : if a decision on the status of a thing with reference Municipal to property be pronounced when the court has not the thing in hrve"th^"^' possession, such a sentence would manifestly be a nullity : but possession. even this is again limited by admitting that the possession may be constructive. -r. , • . , . . Admiralty Reverting to prize decisions. Courts to The judgment of condemnation must evidently be by the on"ytdt"hin courts of the belligerent power, within their own territory. Such bdiigerent. 262 TUDGMENTS AV REM. Chapter IX. Duties of neutral government. The court must be in belligerent state, and vessel infra prasidia. a sentence therefore, pronounced by a Court of Admiralty sitting under a commission from a belligerent power in a neutral country, will not be regarded : As in the case of Donaldson v. Thompson, where a Russian Donaldson v. . . Thniiifison. court Sitting at Corfu pronounced the condemnation : and i Camp: similarly in the case of the Flad Oyen, where a ship was taken by aJpiad a French privateer and carried into Bergen, and underwent there st.r. 27011. a sort of process ending in the sentence of condemnation by the French Consul. Sir William Scott characterised this as 'a ' licentious attempt of the French Consul to exercise the rights of 'war within the bosom of a neutral country, where no such 'exercise has ever been authorised.' ' It is not to be presumed,' said the same judge in the Christopher, ' that a neutral government the ' would so far depart from the duties of neutrality as to permit the 2 Robraog.'^' ' exercise of that last and crowning act of hostility, the con- ' demnation of the property of one belligerent to another : thereby ' confirming and securing him in the acquisition of his enemy's ' property by hostile means.' Nor is it sufficient that the court of condemnation should be within the territory of the belligerent, the vessel itself must also be brought infra prcesidia. In the Henric/c and Maria a British ^„„-^^^^ vessel captured by a Dutch privateer was carried to Norway, put ^^^'''^: under the Dutch Consul there, and sold under a sentence of con- demnation passed at the Hague. The sale was disregarded : — ' Formerly a simple capture was supposed to be sufficient : but in * later times an additional formality has been required, that of a ' sentence of condemnation in a competent court decreeing the ' capture to have been rightly made Jure belli. The purposes of 'justice require that such exercises of war should be placed under 'public inspection, and therefore the mere deduction infra "■ prasidia has not been deemed sufficient. From the moment ' that a sentence of condemnation becomes necessary it imposes ' an additional obligation of bringing the property on which it is ' to pass into the country of the captors.' (Sir W. Scott.) Cf: also 'j^f^^: Rose V. Himely [New York]. This principle was followed in 4 Cranch Havelock v. Rockivood and the Kierlis.hett. Judgment given in country occupied by foreign power. 241. Havelock v. _-,, ._,,,.. 1 • 1 -1 • Rockivood. There is a French decision which may conveniently be noticed s t. r. 277. here. Judgments given in a country momentarily occupied by a Kieriighett. foreign power, and emanating from tribunals instituted by that ^ ° " " power in the place of the national tribunals, preserve their effect after the return of the country to its ancient sovereignty. For example, the English judgments given in Corsica during the NEUTRALITY. 263 Chapter occupation in 1824, were afterwards recognised by the courts at Bastia. {Piedigriggio v. Comm: de Molifao.) Piedigriggio ^^iifao From the judgments of Lord Ellenborough, C.J., in Dotia/dson J. D. I. P. V. Thompson, and of Sir William Scott in the Find Oven, some 1876, p. 104. ... nnportant principles may be gathered on the subject of neutrality. ' That country is to be considered neutral in which the forms of General principles of 'an independent neutral government are preserved, although the neutrality. ' belligerent has troops there as in reality to possess the sovereign ' authority.' * The Russians were visitors at Corfu, and not Sovereigns. 'While a government subsists as the government of the Ionian ' Republic did at Corfu, we can't look to the degree in which it 'might be overawed by a foreign force.' If however the country has become a co-belligerent or an ally in the war, the condemnation pronounced there will be received. But a government does not become a co-belligerent merely be- cause it endures a hostile aggression, because it is obliged to Donaidsony yield to a Superior force. {Donaldson v. Thompson ; the Thompson. --,, • , , , x 1 Camp: Christopher. ) T^' ' The rule is, that the res should be in the ports of the 2 Roh^iog!^' ' belligerent nation : very few deviations haye taken place from ' this : much more ought the court adjudging prize causes to be ' there.' ' The case might be altered if there were a treaty to make the 'place of adjudication a port of the belligerent country : but even ' then there would be much doubt.' ' A neutral country has no cognisance whatever, except in the 'single case of an infringement of its own territory, although it ' might make a difference if acquiesced in in that country.' (Lord Smith \. Kenyon, C.J., Smith v. Surridge.) Surridge. . , . . . , 4 Esp: 25. The necessity for such a rule is evident : if there were no such rule, every port of every nation would become a port of con- theFiad demnatioii. {The Flad Oyen.) Oyen. 6T. R. 270 n. Leaving the question of jurisdiction, we come now to the The notice ... , necessary'. question of procedure ; what notice is to be given to the owners or parties interested in the property ? The service in English Admiralty actions is regulated by Order IX, rules 10 to 14 : the o. ix, writ of summons is nailed on the mast of the vessel. ' When the "" '°"'''" 'proceedings are in rem notice is served upon the thing itself ' This is necessarily notice to all those who have any interest in 264 JUDGMENTS AV REM. ' the thing.' (Marshall, C.J., T/ie Mary : Rose v. Himely — New Chapter York.) IX. Formal The necessitv for some formal announcement to the owners was , ,, notice • • . the Mary. required. msisted on by Story, J., in Bradstreet v. Neptune Insurance C^.- 9 Cranch [New York] : — ' There must have been proper judicial proceed- '^"f^ v. * ings upon which to found the decree ; by which I mean, not 4 Cranch ' that there should be regular proceedings according to the forms ureuistreet ' of our law, or even of the foreign law : but that there should be j»s: Co: * some certain allegation of the offence, or statement of the charge 600. ""^"^ 'for which the seizure is made, and upon which the forfeiture is ' sought to be enforced : and that there should be some personal ' or public notice of the proceedings so that the parties in interest ' or their representatives or agents may know what is the offence ' with which they are charged, and may have an opportunity to * defend themselves and disprove the charge.' What this notice shall be, or what opportunity shall be given to appear, must be regulated wholly by the local law where the proceeding takes place, ' If that law be pursued the requirement of notice to the Sufficiency ' party is fulfilled. The sufficiency of the notice or opportunity is examined""' ' ^ot Open to examination in the court where the foreign judgment '■in rem is produced.' {Mutiroe w. Douglas — New York.) It iSMtmroev. not however necessary to bring the parties within the jurisdiction, 4 Sandford it is sufficient if the property itself be within the power of the court. In Sawyer v. Maine Insurance Co: [Massachusetts], a decree Sawyerv. of condemnation of the island of Hayti for breach of blockade was ^ns: Co: , ..,.,., 12 Mass: rejected, no monition having been issued. Rep: 291. Condemna- Ou the subjcct of Condemnations of foreign Exchequer Courts, foreign a further question arises, whether, seeing that they depend upon exchequer , - . . • , i courts. the Revenue Laws of a foreign country, they really are entitled to laws. recognition. It will be remembered that judgments proceeding chapter vii.] On thcsc laws are not recognised, on the theory that no state is bound to protect the revenue laws of another state. But where a vesting of property has been the consequence, the peculiar nature of a judgment in rem would perhaps entitle it to universal recognition : and the authority of Hughes v. Cornelius is in favour Hughesw. of this view : — ' For suppose a decree here in the Exchequer, and f sTow"'/' ' the goods happened to be carried into another nation, should the ^^^' ' courts abroad unravel this ? ' And in Bradstreet v. Neptune Bradstreet Insurance Co: [New York], Story, J., treated a foreign condemna- /«5.- c/:'"^ tion for illicit trading as entitled to universal recognition. ioo!™"*' Cook ACQUITTALS. 265 Chapter Finally, we must consider the converse of condemnations, ^^' Acquittals. The subject was argued in the case of Cooke v. Sholl, where an Acquittals. "^T^R ■> acquittal in the Exchequer was given in evidence. Lord Kenyon, C.J., said 'that he conceived that the judgment of acquittal, being 'a judgment in rem, was conclusive as to the question of the 'illegality of the seizure, and precluded all reasoning upon the 'construction of the permit.' And Story says that 'it is wholly immaterial whether the judg- story. ' ment be of acquittal or condemnation.' [Conflict of Laws, § 592.] ^ ^^^" But it is very doubtful whether an acquittal is equivalent to a judgment in rem, or is even in the nature of a judgment in rem. In Bull's Nisi Prius [page 245] an acquittal is said not to be conclusive. And Sir Robert Phillimore says that the doctrine of an acquittal being absolute has been questioned : — ' For the 'acquittal does not, like a conviction, ascertain any precise fact, 'and may have proceeded on the ground of insufficient evidence.' Looking at the question theoretically, this certainly seems to be Theoretical the true view of the case. For a judgment in rem vests a right in cal^"^'^*^ a certain person ; and imposes on every one else the negative duty correlative to the right : but An acquittal vests a right in a certain person ; the obligation correlative however is positive, and is imposed exclusively upon the claimant who has seized the goods, to deliver them up to the owner : but it clearly does not vest the property in the goods in that person as against all the world ; from its very nature it is only as against that claimant. It would appear therefore, that an acquittal in reality is a judgment in personam : the error, if we may call it so, being traceable to the old confusion in the use of the words 'in rem.' 266 SUMMARY OF THE NINTH CHAPTER. chapter IX. Cockburn, CJ.'s definition of a judgment /// rem. 244 The difficulty arising from using the word status with reference to things, 244 the ordinary termination of a dispute with regard to the right to a thing not being a judgment m rem. 244 but judgments in prize and Exchequer cases are strictly analogous to judgments of personal status. 244 The meaning of the term in rem considered in its various uses. 244 jus in re??i. judgment in rem. action in rem. actio in rem (as distinguished from the old English real actions) : 245. Admiralty actions and judgments /// rem. 246 The judgment in an Admiralty action in rem is a true judgment in rem, the citation being universal, and all the world entitled to appear and defend. 246 the difference between judgments in rein and judgments in per- sonam in their effect on property pointed out. 247 The jus in rein resulting from a judgment in rem pointed out. 247 the correlative duty. 248 foreign judgments in rem considered theoretically. 248 the only difference between a judgment in rem and a judgment in personam is one of extent, third parties being bound by the one and not by the other. 249 the rules of defence therefore should be the same in both cases. 249 the effect of foreign judgments in rem, other than in prize and Exchequer matters, considered. 249 Story assumes that all judgments relating to land pronounced in the jorum rei sitiz are judgments in rem : the fallacy in this pointed out. 250 whether the judgment relate to moveables or immoveables, it is SUMMARY. 267 Chapter always necessary to ascertain whether it is /// rem or in personam. 250 TV ... the decisions in Cammell v. Seivell^ Castrique v. Imrie and the City of ATecca reviewed. 250-252 When the EngUsh action to enforce the foreign judgment should be in rem. 252 The effect of a judgment in rem., as between owner and purchaser of the property, is that the owner cannot recover it in trover. 252 the sentence is a document of title. 253 as between owner and underwriters, it is conclusive of all facts which it professes to decide, and therefore will be taken to negative a warrant of neutrality. 253 the difference between a representation and a warrant of neutrality noticed. 254 the various grounds of condemnation noticed seriatim. 254 when ' Enemy's property ' is clearly set forth the sentence will be received. 254 when general grounds are set out, it will not. 255 when ' Enemy's property' has to be inferred, it is doubtful. 255 Breach of Blockade, Contraband of War, and Violation of Treaties are good grounds. 255. 256 Violation of ordinances of the foreign country is a bad ground. 256 but if by the aid of ordinances it is condemned as enemy's pro- perty it is good. 257 the conclusions briefly stated. 258 a decision in matters of prize is conclusive on all the courts that no others are entitled to share. 258 Two defences have to be specially examined. 258 Prize Courts sitting under the Law of Nations, their decisions may be reviewed when a violation of that law is alleged. 259 Absence of Jurisdiction in the court is an example of this rule. 260 the general principles of jurisdiction laid down. 261 the difference between Prize Courts and Municipal Courts acting in rem. 261 the judgment of condemnation must be by a court in the belli- gerent's territory. 261 it will be rejected if the court has sat in neutral territory 262 but not if it sat in the territory of an ally. 262 the vessel must be brought infra prcesidia. 262 general principles of neutrality. 263 As to the procedure, the suit must commence with a citation, which is usually served on the vessel itself, 264 268 JUDGMENTS IN REM. it not being necessary for the owners to be within the juris- Chapter diction. 264 ^^• In municipal matters, what the notice shall be is left to the foreign country to determine. 264 Foreign Exchequer Condemnations are received although depend- ing on foreign revenue laws. 264 Acquittals, though frequently said to be judgments in rem, seem to be really judgments in personam. 265 269 CHAPTER X. Chapter X. STATUS. General view of the subject of Status Marriage — Legitimacy — Divorce. Marriage ...... the capacity to contract . Legitimacy ...... per subseqiiens niatriinonium . dissohition of maniage .... the old theory of indissolubility of English marriages the rule lex loci contractus the rule lex domicilii the rule as to the ceremony of marriage Marriage of British subjects abroad The wife's domicil ..... The period of domicil .... I. Marriage in England — Decree abroad i. Foreign husband domiciled abroad ii. English husband domiciled in England . the Scotch rule of jurisdiction jurisdiction by reason of residence difference of meaning of rule lex domicilii nullity, and in cases of divorce . the question of the intention of the parties ' in fraudem legis ' . . . . residence not in fraudem legis matrimonial home .... collusion ...... iii. Foreign husband domiciled in England iv. English husband domiciled abroad IL Marriage abroad — Decree abroad IIL Marriage in England or abroad — Decree in England Jurisdiction of the English courts i. English husband domiciled in England ii. Foreign husband domiciled in England iii. English husband domiciled abroad iv. Foreign husband domiciled abroad the rule lex domicilii the rule of the matrimonial home . in cases of PAGE 271 272 272 275 27s 276 276 276 278 278 279 279 280 280 280 283 283 284 284 285 285 286 287 287 287 288 288 288 288 289 289 289 289 290 291 270 STATUS. '•AGE Chapter X. Service out of the jurisdiction 293 when service dispensed with ....... 293 Note on Mrs Bulkley's case in the French Court, and on French law 294 Lunacy. status of the lunatic ...... ,, curator ...... English rule of jurisdiction general principles as to recognition of foreign finding right of curator to dividends and corpus . Lunacy Regulation Act, 1853. .... Removal of lunatics from India : (Act of 185 1). Guardianship. status of the minor. ....... ,, parent and of guardian appointed by the court English rule of jurisdiction ...... review of decisions as to recognition of foreign finding case of French ' prodigal '...... Probate and Administration. status of the executor or administrator .... wills of personalty ....... the application of the rule lex domicilii to testacy or intestacy Lord Kingdown's Act ....... the period of domicil ....... effect of a foreign decree as to validity, etc. effect of foreign appointment of executor or administrator necessity for English appointment to administer English property grant under s. 73 of Probate Act grant to a minor grant not in form of probate proceedings pending abroad . application of lex fori translations and re-translations right of administrator to sue . the rule as to succession . wills of realty. Bankruptcy. i. Adjudication and assignment ..... status of assignee ... .... o. effect of foreign adjudication in England . principles do not apply to real property assumed jurisdiction in bankruptcy English rule as to jurisdiction ,, winding up foreign companies yS. effect of English adjudication abroad where debt recovered by English creditor . ,, ,, foreign creditor . ii. Concurrent proceedings ...... bankruptcy of partners ..... the rule of priority ...... 296 296 296 297 297 298 300 302 302 302 303 306 307 307 307 308 309 310 310 3" 312 315 316 316 318 319 319 322 323 325 325 325 328 329 329 330 331 332 334 336 336 337 STATUS. 271 Chapter X. iii. Final discharge ; effect on the bankrupt's obligations a. discharge by country of contract /3. discharge by country not of contract where foreign creditor has proved operation of English discharge in the colonies Scotch decisions ..... iv. Status of bankrupt . ...... general rule of jurisdiction ..... Summary .......... 340 340 341 342 343 344 348 348 350 We must now proceed to the consideration of those judgments judgments which decide questions concerning the status of persons : that is, stlTtuYof"^ affecting the legal position of those persons in or with regard to p^'^'*"^- the rest of the community. The whole question of status or capacity has been elaborately treated by Story in the fourth chapter of the Conflict of Laws. It is sufficient here simply to refer to one or two general principles, to which we shall have to make frequent reference. There are many kinds of status ; but they may for our purpose be grouped Different under four heads. First, natural status, that of a minor, of a natural sta\us° guardian, and by analogy of a deceased person at the time of death : this depends on the law of the domicil. Secondly, voluntarily assumed status, that of marriage with its consequences ; this depends on the law of the matrimonial home. Thirdly, involun- tarily assumed status : that of a lunatic, or of a bankrupt ; this depends on the law of the usual residence. Fourthly, status by appointment : that of a guardian, curator, executor, administrator, trustee, or assignee ; this follows the third head, but the sphere of its operation is limited to the jurisdiction of the court making the appointment. A judgment on a question of status (subject to judgment on the limitation just noticed) is a judgment in rem. ' It is therefore judgment ' if binding at all, not only a binding judgment as between the ' parties to the suit, but it is recognised as binding in all suits and ' between all parties. Such a judgment, when the jurisdiction of ' the court which made it is recognised, is treated as binding and * final not only by the courts of the same country but by the courts Niboyetw. ' of all couutrics.' (Brett, L.J., Niboyet v. AHboyet.) 4 p. D. I. The division of the subject will be as follows : — Division of -K IT • T -i* T^' the subject. Marriage. Legitimacy. Divorce. Lunacy. Guardianship. Probate and Administration. Bankruptcy. 272 MARRIAGE— LEGITIMACY— DIVORCE. Chapter X. Marriage. Capacity to marry. Dependent on iex domicilii. Marriage abroad with deceased wife's sister. Propositions deduced from Ld: Cavipbeli's judgment. ' Marriage,' said Lord Westbury in his judgment in Shatv v. shmuv. Goiild, ' is the very foundation of civil society, and no part of the i.. k. 3 ' laws and institutions of a country can be of more vital impor- ' tance to its subjects than those which regulate the manner and ' condition of forming, and if necessary of dissolving the marriage ' contract.' It must be a matter of equal if not greater importance to English subjects to obtain a clear understanding of the manner and the circumstances under which the marriage contract may be affected or dissolved in a foreign state ; to the subjects of other states in like manner, to ascertain how their marriages are liable to be dealt with by the English courts. The first question to be considered is necessarily the capacity to marry, as on this depends for the most part the validity of foreign sentences of nullity. In Sottomayor v. De Barros, Cotton, Sottnmayor L.J., laid it down as a broad and well-recognised principle of law Barms. ' that the question of personal capacity to enter into a contract is ^ ' 'to be decided by the law of the domicil,' and that, 'as in other * contracts so in that of marriage, personal capacity must depend ' on the law of the domicil ; and if the laws of any country pro- ' hibit its subjects within certain degrees of consanguinity from 'contracting marriage, and stamp a marriage between persons ' within the prohibited degrees as incestuous, this imposes on the ' subjects of that country a personal incapacity which continues ' to affect them so long as they are domiciled in the country where ' this law prevails, and renders invalid a marriage between persons ' both at the time of their marriage subjects of and domiciled 'in the country which imposes this restriction, wherever such ' marriage may have been solemnized.' The very familiar application of this is to be found in the • marriage abroad of an Englishman (domiciled in England) with his deceased wife's sister ; if after-residence in England is con- templated it is perfectly immaterial whether such marriage was solemnized in a country where the laws allow it or not. In Brook Brooks. v. Brook, a certain Englishman married his deceased wife's sister g h. l. in Denmark. Lord Campbell, C, in the House of Lords ex- ^^' '^^' pressed his adherence to this principle in an elaborate judgment from which the following propositions may be deduced. A mar- riage between a man and his deceased wife's sister being Danish MARRIAGE — LEGITIMACY — DIVORCE. ^n Chapter X. subjects domiciled in Denmark, is good all over the world. The same may be said even if they are native born English subjects who had abandoned their English domicil and are domiciled in Denmark. If the English domicil be not abandoned the English courts must hold their marriage invalid ; but will the Danish courts also hold it invalid? It would seem to follow that they should, and the learned Lord Chancellor declared that although he was by no means prepared to say that that result would follow, yet his opinion was that it should : — ' the doctrine being established ' that the incidents of the contract of marriage celebrated in a ' foreign country are to be determined according to the law of ' the country in which the parties are domiciled and mean to ' reside, the consequence must follow that by this law must its 'validity or invalidity be determined.' And in Sotioinayor w. De Barros, Cotton, L.J., added to what is cited above, 'It is proved ' that the courts of Portugal, where the petitioner and respondent * are domiciled and resident, would hold the marriage void as cele- 'brated between parties incapable of marrying and incestuous. ' How can the courts of this country hold the contrary and if ' appealed to say the marriage is valid ? ' This principle was adopted in Alette v. Alette, where a naturalized Englishman married in Frankfort a sister by the half-blood to his former wife ; on his return to England the second marriage was held void. The doc- trine was also approved in Conway v. Beazley. But in Gordon v. Nye, Lord Meadowbank expressed an opposite view : — ' Would a ' marriage here be declared void because the parties were domi- ' ciled in England and minors when they married here, and of ' course incapable by the law of that country of contracting mar- ' riage ? ' In Simonin v. Mallac, two French subjects had married in England without having performed the acte formel et respedueux Absence of required by the Code Napole'on, and for the absence of which et respectu- Article 183 declares the marriage is null and void. It was con- not a tended that the parties being French, the law of that country fncapacity. affixed to them an incapacity to contract marriage without attending to the formalities prescribed, and that such incapacity was a personal status which travelled with them everywhere and rendered them incapable of making a valid contract in any other country. Sir Cresswell Cresswell held that this formal act was part of the marriage ceremony and therefore could not be required as an essential to a marriage celebrated in England although between domiciled Frenchmen. We shall have to consider this decision at a later stage. Mette V. Mette. I S. & T. 461. Conway v. Beazley. 3 Hagg: Eccl: 639. Gordo9i V. Nye. Ferg: Cons: 361. Simon in v. Mallac. 29 L. J: P. & M. 97. 274 STATUS. Sir R. Phillimores review of the cases. Dis- approved by C. A. Sir J. Hannen doubted the rule as to capacity determined by lex domicilii. In Sottomayor v. De Barros, Sir Robert Phillimore, who had Chapter X. been council in Simonin v. Mallac, and who still maintained his opinion that that decision turned on the question of personal ^"^^""^.J""' capacity, considered himself bound by it and refused to hold a fp^^T'gi. marriage null and void, which was between Portuguese domiciled ^j^'j^il^" ^'' subjects, first cousins, and illegal as incestuous by the law of|9L. J:P. Portugal. His lordship stated that the result of the decided cases was the doctrine that ' the court of the domicil recognises certain ' incapacities affixed by the law of the domicil as invalidating a ' marriage between parties belonging to that domicil in a foreign ' state in which such marriage is lawful.' ' But the decided cases, do not establish the converse doctrine, ' that the court of the place of the contract of marriage is bound * to recognise the incapacities fixed by the law of the domicil on ' the parties to the contract, when those incapacities do not exist ' according to the lex loci contractus. It might appear that accord- ' ing to i\\ejus gentium the latter proposition is a consequence of * the former, and I remember addressing such an argument to the 'full Court of Divorce in Simonin v. Alalia^, but in vain.' It was on this point that the Court of Appeal reversed the decision; Cotton, L.J., holding that the learned judge had not fully appreciated the reasons given by Sir C. Cresswell in Siffionin V. Mallac for refusing to recognise the French judgment : that consequently this second proposition was not an accurate state- ment of the law, but that the decided cases and all jurists agree in establishing the converse doctrine, that the incapacities fixed by the law of the domicil on the parties to the contract are to be recognised by the courts of the place of the contract. When however Sottomayor v. De Barros came a second time Sottomayor . . V. De before the Divorce Court, the President, Sir James Hannen, took Barros. occasion to dissent from the broad principle which had been enun- ^ " ' "*■ ciated by the Court of Appeal : — ' I doubt,' he said, ' it being a well- ' recognised principle ; on the contrary it appears to me to be a ' novel principle for which up to the present time there has been ' no English authority ; what authority there is seems to me to be ' the other way.' The learned judge then defined marriage to be a status arising out of a contract to which every country is entitled to attach its own conditions, both as to its creation and duration, and declared the decision of the Court of Appeal to be a defini- tion of ' a further condition imposed by English law, namely, that ' the parties do not both belong by domicil to a country the laws ' of which prohibit their marriage : ' while still approving Sir Cress- MARRIAGE — LE(;iTIMACV— DIVORCE. 275 Chapter X. well Cresswell's decision, he considered that the Court of Appeal had, without alluding to the arguments in that case, now to a cer- tain extent overruled the opinion there expressed. The same conflict of opinion is to be found in the writings of the civilians which are collected in Story's Conflict of Laws, [chapter iv. et seqp[. The solution of the difficulty is to be found in what we The true shall hereafter find to be the established principle governing the suggested, whole subject, that the lex domicilii is the guiding rule for deter- mining everything in relation to the marriage contract, except as to the solemnities of it which alone are governed by the lex loci contractus. As we have pointed out the principle enunciated in simoniny. Simofiifi V. Mcilhu, Considered the formal act to be part of the Mallac. , , . .... 29 L.J: ceremony, and not a personal mcapacity such as mmority. ^' The decision as to the legitimacy or illegitimacy of the Legitimacy, children follows immediately on the declaration of the validity or invalidity of the marriage. From what has been already said it seems that it is scarcely accurate to say that legitimacy is universally determined by the law of the domicil : for we have seen that where the ceremony has not been performed in accord- ance with the law of the place of the contract, the marriage will be held invalid; and in this one instance the legitimacy of the children depends upon the lex loci C07itractus of the parents' marriage and not upon the law of the domicil. A difficult question arises however in the case of legitimacy per sjibscquens Legitimation matrimonium. The rule as to this is strictly that of the domicil. {Zbseqjcens If there has been a subsequent marriage, and by the law of the domicil of the parties (which as we shall see hereafter is the domicil of the husband) legitimacy of children born out of wed- lock follows, they are legitimate eveiywhere ; and, unless of course that law require the subsequent marriage to be celebrated in the country of the domicil, it is immaterial where the marriage takes place. This was laid down by the House of Lords in DaihoKsfev. Dalliousic V. McDoivull, and Miinro v. Afunro, and was acted on McDowall. 7 CI. & F. by the Scotch courts in Rose v. Ross, where a Scotchman by birth 817. . . . •' Munro\. Settled m England, and had an illegitimate son born in this Munro. , .,,,.. . . . r^ ■, 7Ci:&F. country; he was m the habit of makmg visits to Scotland, and Ai?v..ffow. during one of them, after a residence thereof fifteen days, he ShizSg. married the woman, and then returned to and remained in England : the father's domicil being English the son was held not to have been legitimised by the Scotch marriage. This principle udny"!' however was somewhat limited by the House of Lords in Udny v. App:'44i. ' Udny. In that case it was laid down that for the purposes of inatri- tnofiiitm. 2/6 STATUS. legitimation per siil>se(jne/is matriinoniiiin, the domicil wliicli is to Chapter X. Father's regulatc thc case is the father's domicil not at the time of the time'of birth subscqucnt marriage, but at the time of the birth of the child, the rule. There is some doubt however whether the principle involved in this case can be received as general law or only as the law of England : it seems rather to have proceeded on a doctrine which we come across more than once, that an Englishman, though he may change his domicil as often as he please, cannot change his allegiance, and therefore cannot shake off its consequences accord- ing to the law of England. But the result of the doctrine now under consideration was not adopted in Birtwhistle v. Vardill, where it was held that a BirhuMstie child born m Scotland of parents domiciled there who had been 2C1:&f. legitimised by their subsequent marriage, could not take as heir ^ id: 895. English lands belonging to his father. The judges declared the principle of English law to be, that for a person to take lands by descent, he must be born in actual matrimony. Lord Brougham however doubted the justice of the decision of the House. We now come to the important question, what court has juris- diction to dissolve the marriage tie ? Dissolution Indissolubility of the marriage contract when performed in o marriage, gj^g^^j^^j^ ^^^ Consequently indissolubility of marriage generally, The old except by the courts of the country in which the ceremony was dit^iubiiity performed, has formed the basis of arguments in our courts since marr'i^e. the time of Lollcy's famous case ; it was never completely disposed of till quite recently by the unanimous decision of the President \,Har7jey v. of the Divorcc Court, the Court of Appeal and the House of post"pf'28i.] Lords. The principles enunciated by Kindersley, V.-C, when Shaw v. Gould was before him (/« re Wilson! s trusts), by Lord re wuson's Tyusts. Eldon, C, in Tovey v. Lindsay, and by Lord Brougham, C, in 35 L- J: McCarthy v. Decaix (his judgment being a protest against what he Tovey w. conceived to be the injustice of the sentence pronounced against iDowTi'ry. his former cHent Mr LoUey), have been declared to have pro- v.'^DecI/x. ceeded on a misconception of what Lolley's case really decided, 614." and are now overruled. But the doctrine of indissolubility being put on one side, it becomes necessary to find some guiding principle for determining whether any foreign sentence of divorce will be recognised in this country. The view *= -^ , , . i • , , that We at once come across another doctrine which has occa- marriage is a . .,.,.., .. ,.., civil contract sionally met With judicial recognition. It is that marriage is a governed by civil Contract and is therefore to be judged of and governed, as all colitrZius other contracts are, by the lex loci contractus. In a very old case, MARRIAGE — LEGITIMACY — DIVORCE. 277 Scrimshire V. Scrimshire. 2 Hagg: Cons: 295. Simoniii v. Maliai. 29 L. J: P. & M. 97. Warrotdcr U^arrenJer. 9 Bl: N. S. S/ia7ii V. Gould. L. R. 3 H. L. 55. Chapter X. vStv/w^/^/W v. Scrimshire [1752], the principle was broadly laid down by Sir Edward Simpson that marriage contracts are to be deemed good or bad according to the laws of the country in which they are formed. The last case in which it was expounded was in Simonin v. Mallac, when Sir Cresswell Cresswell said that it was the universal rule except in certain cases where it would give way to the lex domicilii, namely, in ' marriages involving ' polygamy and incest \ and those positively prohibited by the law ' of a country, for example, by our Royal Marriage Act.' But the inevitable consequence of this rule was very forcibly illustrated Consequence by the example given by Lord Brougham, C, in Warrender v. Warrender : If the law of the place of the contract were the sovereign rule, English courts would be bound to divorce Germans, married in Germany and domiciled in England, on the ground of incompatibility of temper. And in Sl/a^c v. Gould, the House of Lords after very elaborate arguments refused to admit the doctrine as a sound one : the Lords were unanimous in saying that the marriage contract does not stand on the same footing as ordinary business contracts ; and that the lex loci con- Lex lod tractus is not the sovereign rule for determining, and is not nofthT'"'' necessarily to be adopted by the foreign court whilst it is deter- pHndpief mining ' all questions as to the rights, duties and obligations ' arising out of that relation, and the remedy or redress to be given ' in the event of either party acting in violation of the contract.' (Lord Colonsay.) In certain cases however it may be necessary to take the lex where loci contractus as the governing principle : iTJractus for example ; if the enquiry be whether the formahties necessary foibwed to constitute the relations have been complied with, as required by the law of the country where the marriage took place. But it is not an universal rule ; and especially in the case of remedy or redress it is not to be applied : — 'If a divorce is to be regarded ' as a remedy for the breach of the matrimonial contract, it is a 'general principle of International Law that all remedies depend ' upon the lex fori, and not on the lex loci contractus.' {Lord Chelmsford.) But if not the lex loci contractus, what law is to be taken as the guiding rule ? The answer is to be found in Lord Westbury's judgment in the same case : — ' No nation,' he says, ' can be required ' to admit that its domiciled subjects may lawfully resort to 'another country for the purpose of evading the laws under ' which they live.' And that ' when they return to the country of 278 STATUS. ' their domicil, bringing back with them a foreign judgment so chapter X. ' obtained, the tribunals of the domicil are entitled, or even bound, ' to reject such judgment as having no extra-territorial force and ' validity. They are entitled to reject it, if pronounced by a * tribunal not having competent jurisdiction ; and they are bound 'to reject it if it be an invasion of their own laws and policy.' Lex The country of the domicil will not release its hold over those governing domicilcd within it, and therefore, whether as to the validity of principe. ^^ marriage itself which we have already discussed, or on the more difficult question whether a foreign sentence of divorce will be recognised, the lex domicilii is to be taken as the sovereign rule, except so far as the formalities are concerned ; the ques- tion whether the ceremony of marriage was validly performed is to be judged of by the law of the country where it took place. This rule may now be taken as the law governing the whole subject : General rule. ' The Icx loci cofjtractus is to be observed to determine the contract ' and its formation and validity ; the rights consequential to and 'arising out of the contract when formed may have to be * determined and ruled according to the laws of the domicil of the ' contracting parties if they were domiciled in a place not the ^ locus contractus' (Dr Radcliffe, Steele \. Braddelt) putting this .sv^c/^v. .... p , BraddeU. rule m another form, it may be thus stated : the validity of the Miiw: ir: marriage so far as the capacity or incapacity of the parties are concerned depends upon the laws of their respective domicils : the validity of the marriage so far as ceremonial law is concerned depends on the law of the country where it is performed. Thus in Ceremonial Herbert V. Herbert, the validity of a marriage at Palermo according Herbert v. ''^' to the law of Sicily was established ; and in Middletoti v. /anverin, 2 Hagg:' a marriage of English subjects abroad not according to the lex loci julidlctlnv was held invalid. The same rule was admitted in Ward v. Dey. ^HaggT' In Ruding v. Smith the marriage was at the Cape, and the con- ^yar'/vJ' sent required by Dutch law had not been obtained : the marriage f Robert 789. was nevertheless held valid on the ground that the Cape had just f,"f^//5^' capitulated to the English, and although the Dutch law still c^sff?!. prevailed so far as the inhabitants were concerned, it could not be said to apply to the conquerors, and in the case both parties were English subjects. But not void This principle must however be taken with a certain limitation if foreign . . . Cattcrall v. ceremony which was discusscd by Dr. Lushington in Catterall v. Catterall, Catteraii. not , • ' Robert complied and acted upon in Lacon v. Higgins. The ceremony must be in 304-580. with unless ■ i i i r \ r • i * * Lacon v. void by accordancc with the law of the foreign country, but it is not Higgi7is. oreign au. ^g^^ggg^j-jly yQ^^j bccause that ceremony has not been complied \^^. MARRIAGE — LEGITIMACY — DIVORCE. 279 Chapter X. with : that in its turn must depend on the foreign law. If by that law the marriage is null and void then the marriage should be so held in whatever country the question is raised. But if the foreign law is simply directory, it will not be held to declare the marriage void. {See in a case on a similar English statute now repealed, i?. V. Inhabitants of Birmingha/n.) K. V. Birming- ham. 8 B. & C. 29 Kent V. Burgess. II Sim: 361. Harvey v. Farnie. 8 App: ca: 43- Marriages of British subjects abroad are regulated by the Marriages of British statutes 4 Geo: IV. c. 91 \ 12 and 13 Vic: c. 68; and 28 and 29 subjects Vic: c. 64. These statutes however do not remove the necessity of compliance with the forms and ceremonies prescribed by the law of the country in which the marriage takes place. {Kent v. Burgess. ) Before applying this rule to the question of foreign divorces, two minor points on the subject of domicil must be first disposed of. Firstj what is meant by the expression domicil of parties ? Meaning of before the marriage is solemnized both man and woman have parties. ° their own domicil, and by the law of that domicil their capacity respectively to contract is to be determined : but when they have become man and wife, the woman's domicil is entirely lost, the wife's domicil is that of her husband. 'In general,' says Story, The wife's . . domicil that ' the wife is deemed to have the same domicil as her husband ; of her , husband. ' and she can during coverture acquire none other, stio jure [Conflict of Laws, § 136]. 'She no longer retains any other ^^''^'^£- ' domicil than his which she acquires. The marriage is contracted ' with a view to that matrimonial domicil, and it is within the ' meaning of such a contract that she is to become subject to her ' husband's law, subject to it in respect of the matrimonial relation ' and all other consequences depending upon the law of the ' husband's domicil ' (Lord Selborne, C, Hartley v. Farnie). A more difficult question arises when we have to consider whether this rule obtains under all circumstances. In the course of our ennuirv we shall find cases where the husband has created a new Exceptions .... to the rule. domicil for the purpose of founding jurisdiction, and where the new domicil has been created after desertion : does this new domicil attach to the wife ? Her domicil being founded upon the ' duty of the wife to live with her husband, and also on the ' presumption that he will be faithful to his marriage vow : if he ' commits an offence which entitles her to divorce or judicial ' separation, her legal duty to live with him must undergo con- ' siderable modification, and in some cases entirely cease, for ' continued cohabitation might be equivalent to condonation and 28o STATUS. The period to which domicil relates. Domicil means husband's domicil at time of marriage or at time of A man must have a domicil. 'disentitle her to relief (Sir R. Phillimore, Le Sneiir v. Le Sueur). The better opinion seems to be therefore that the wife does not adopt the husband's new domicil ; but on the other hand she cannot acquire any other domicil, but retains that of the marriage (Brett, L.J., Nihoyd v. Niboyet). It is doubtful whether a domicil acquired for the purposes of jurisdiction changes even the husband's true domicil, it certainly cannot affect the wife's (^Allison V. Catlcy). Secondly, to what period does this domicil relate ? It is quite clear that as to the validity of a marriage the domicil, the law of which is to govern the contract, is the husband's domicil at the time of the marriage : for it would be absurd to suppose that a subsequent change of domicil could effect a change in the status of the parties : for instance that a marriage between a domiciled Dane and his deceased wife's sister should become incestuous intercourse, if the domicil were afterwards changed from Danish to English. But on the question of jurisdiction to decree divorce the rule is, as we shall see, that the court of the domicil at the time of the commission of the matrimonial wrong is the proper tribunal to entertain it. When therefore we talk of domicil, we mean the husband's domicil, or place of permanent residence, he having no intention of permanently abandoning it, either at the time of the marriage or at the time of the commission of the matrimonial wrong ; and not necessarily his domicil of origin ; certainly not any fictitious or jurisdictional domicil. It may be convenient to notice here a fundamental rule, that a man cannot be without a domicil, and if he has no permanent residence in any place, or if a permanent residence be suddenly and absolutely abandoned and no new place selected, then his domicil is that of origin. We propose now to consider the many different cases that arise, by the light of the rule lex doinidlii, and to notice how far it has been recognised in the decisions of the courts. Chapter X. Le Sueur v. Le Sueur. I P. D. 139. Niboyet v. Nilwyct. 4 P. D. I. Allison V. Catlcy. Sc: Sess: Ca: 2nd ser: I. 1025. i. Foreign decree dissolving marriage of foreigner domiciled abroad. I. Marriage m England — Decree Abroad. First where the husband is a foreigner and is domiciled abroad : the foreign degree will be recognised. Thus in Warrender v. Warrender, a Scotchman by birth and Warrender domicil, married an Englishwoman in England : after their separa- ^ivarrender. tion the husband lived in Scotland and the wife abroad : it was held that the Scotch courts had jurisdiction to grant a divorce 9 Bl: N. S. MARRIAGE — LEGITIMACY — DIVORCE. 281 Chapter X Maghec v. McAllister. 3 Ir: Ch: N. S. 604. Geils V. Geils. I Macq: H. L.255. Ryan v. Ryan. 1 Phil: Eccl: 332. Hai'!'ey v. Farnie. 8 App: ca: 43- Simoniii \. Mallac. 29 L. J: P. & -M. 97. the same principle was acted on in Maghee v. McAllister, and - Geils V. Geils \ and in Ryan v. Ryan, where an Irishman by birth was domiciled in Denmark : the Danish decree of divorce was recognised in England. Again in Harvey v. Farnie a domiciled Scotchman married an Englishwoman in England and then returned to Scotland. In this case as we have said the old theory of indissolubility received its death-blow. ' Divorce,' said Cotton, L.J., 'is not an incident to the contract; it is not a 'question in any way depending upon the rule lex loci contractus. ' Any act done in violation of the duties incident to the status is a ' matter which concerns the country of the domicil, and divorce 'is an incident of the status.' In the House of Lords the argu- ment was modified as follows, that at all events an English marriage is only dissoluble in the view of an English court, if dissolved by some other competent jurisdiction for a cause for which it might have been dissolved in England. But this is evidently another form of the rule lex loci contractus, that the contract wherever adjudicated upon is to be determined by the law of the place where it was made; but this as w^e have seen is not to be applied to marriage : ' indeed the principles of private 'international law point in the direction of the validity of such a ' sentence and of its recognition by the courts of other countries ' (Lord Selborne, C). In Siinonin v. Mallac, there was a marriage in England of two Case of a .... . marriage in French people domiciled in France ; the marriage was celebrated England according to English law, but they came to England to avoid the provision provisions of the Code Napoleon which required an actefornieletre- NapoMon. spectueiix, asking the father's consent, to be performed : the French courts had decreed the marriage null and void ' not because it 'was absolutely prohibited, but because of the formal intention 'of evading the French law.' The Judge Ordinary refused to recognise the French decree, and held the marriage valid. The principles involved in this case are three : first, there is a general Principles recognition of the old rule of lex loci contractus: secondly, the decision that this formal act is part of the ceremonial law of France, and that its non-fulfilment does not attach a personal incapacity on the parties : and thirdly, that a judgment of the country of the domicil annulling the marriage on the ground of such an intentional evasion of the ceremonial law of that country will not be recognised in the country where the contract was entered into. As to the first point we see that the judgment was wrong. As to the second, with the greatest respect we venture to 282 STATUS. think that the learned judge was also wrong : the formal act from Chapter X. its very nature seems to impose a personal incapacity on all French subjects : if it be purely ceremonial, then the consequence would be that English subjects domiciled in England but marrying in France would also have to perform it : if the second principle involved in the decision be wrong, so also must the third be : but if it be not wrong, then the third principle is one of the very greatest importance : admitting the question to be one of pure ceremony, so far the case is absolutely the same as if it were a question of contract : and one view of the decision is that a foreign court, competent by reason of the domicil of the parties, The decision has prououuccd a judgment which proceeds on an erroneous view of the lex loci contractus, or has refused (not wilfully) to be bound by that law : this, as we have seen from the general theory of the subject, is not a ground for rejecting the judgment; and Sir Cress- well Cresswell expressly avoided adopting this as the ground of his decision. He pointed out that the French judgment pro- ceeded on the ground of the evasion of the French law, in fraudem legis as it was called in an English case which will be shortly noticed ; therefore he rejected it, because it proceeded on the assumption that it was the law of France they were bound to obey, whereas it was the law of England. Now, we may put on one side the fact that the main principle adopted by the learned judge was wrong, for we should have arrived at the same point even if he had adopted the rule lex domicilii, the act being assumed to be a pure ceremony. This point of view, the only one from which the decision may be supported, is consistent with the general rules already laid down : one of those rules is that a violation of International law forms a good defence to a foreign judgment : and there was in the French judgment a violation of the rule of International law that the ceremony of marriage is to be judged of according to the lex loci contractus, and therefore the judgment may be disregarded. But if the question is not one of ceremony, then the judgment of the French court proceeded on a ground, not identical with, but analogous to the principle laid down in Shaw V. Gould. The English decision declares that jurisdiction shaw v. to decree divorce, created i?i fraudem legis, will invalidate the l!"r. 3 decree : The French decision declares that a marriage in fraudem ^' ^" ^^' legis will be invalid ; and this certainly seems to be consonant with what has already been said on the subject. Additional doubt is thrown on this decision by the principle laid down by Dr. cIuc'Z/l' Lushington in Catterallw. Cattcrall, see p. 278. Its consequences 304-580.'^ MARRIAGE — LEGITIMACY — DIVORCE. 283 Chapter X. indeed were deplorable, the parties were declared to be unmarried in France, but married in England. Bn'ggs V. Bri^eis. 5 V. D. 16. ToUeviachc V. Tollanache. 30 L. J: P. & M. 113, Rhigcrv. Churchill. Sc: Sess: Ca: 2nd ser: II. 307. Shaiu V. Gould. L. R. 3 H. L. 55. Lolky's case. 2 CI: & F. 5fi7- The second case is where the husband is an Englishman ii. Foreign domiciled in England : the general rule is that the foreign decree dissolving will not be recognised. The recent case of Briggs v. Briggs is a EngHshman simple illustration of the rule. The parties were domiciled English in Engfand. subjects married in England. In course of time the husband went to Kansas, and after a year's residence there presented a petition and obtained a divorce on the ground of his wife's desertion. The court considered the question whether he had any doraicil in Kansas, and found that he had not, there being strong evidence of atiimus revertendi. The man having married again, the wife obtained a decree of divorce on the ground of bigamy and adultery. So in Tollemache v. ToUemache, where a Gretna Green marriage was dissolved by the Court of Session for adultery by the woman in Scotland ; the sentence was rejected, the husband not having abandoned his English domicil. Under this rule come also what are known as Scotch Divorces which raise the complicated question of conflict of domicil. The general rule of the Scotch courts on the subject of juris- The Scotch diction, which was very fully explained in Ringer v. Churchill, is junsdLdon. as follows : A foreigner may, as in England,, bring an action in ^'^' ^' ^^ Scotland subject to giving security for costs if he is not resident in the kingdom : but in order to render a foreign defendant amenable in an action, he must have resided in the country for forty days : it is not sufificient, as in England, that he be simply within the territory in order to make his obedience to the writ how ;t differs necessary. Now the English courts do not extend their rule to EngUsh actions of divorce, but the Scotch courts do. It is very necessary "'^' to keep this rule clearly before us, because many erroneous notions are entertained on the subject : indeed it is sometimes said that this rule of jurisdiction has been made in Scotland with a special view to divorcing English subjects. The leading case is Shaw v. Gould, in which Lolky's case was Rule in explained to have decided this point, and no more: — 'The Scotch cLc.^^ ' court has no power to dissolve an English marriage, where the ' parlies are not domiciled in Scotland, but have gone there only ' for such time as would render them amenable to the jurisdiction ' of the Scotch courts.' The facts in Shaw v. Gould were these : a man was desirous of marrying a married woman : they induced the husband to reside in Scotland for forty days in order to allow 2^4 STATUS. the wife to bring an action for divorce against him. A sum of Chapter X. money was to be paid to him when the decree was obtained, and he was restrained from any attempt to defeat the proceedings by the imposition of a forfeiture of the money in case he should ' by him- ' self, or by any one through him, give information which should be 'prejudicial to the divorce.' The House of Lords held that the divorce could only be valid by the laws of Scotland, and was therefore restricted in its effect to that country : but that in England it could not be regarded as having any binding effect, on r>omicii for account of the domicil being only for the purposes of jurisdiction, of^ p"''P°='e ^^^ because that domicil had been created in order to evade the jurisdiction, j^^^,^ ^^ England. s/taw V. The first ground of this decision is, as has already been stated, ^oTsldered. that although the foreign court, before it assumes jurisdiction over a defendant, requires a certain period of residence to which the Domicil for ;/rt';;/^ of domicil is applied, yet this is not a true domicil ; not such jurisdiction , . ., . , .,..,- , , not a true a domicil as termmatcs the previous domicil of actual and perma- nent residence, and consequently the court of the true domicil will not recognise the divorce. So that we have now two rules ; Rules the foreign divorce will not be recognised either when the juris- ^ ""^^ '^' diction is founded on simple residence ; nor when that residence is for a specified period and called a domicil by the foreign law : but it would seem that both these in their turn must be governed by Limitation, the limitation, that the party, who has thus become subject to the foreign jurisdiction, must have gone to that country with the intention of becoming subject thereto for the sole object of obtain- ing a divorce. Dependent It is ncccssary to pause for one moment to consider the ^rsid^nce."*^ objcct of this visit, and why this intention has been termed in fraudem legis. We have said that the validity of the marriage is to be determined by the lex dotnicilii of the time of the marriage : and that consequently a change of domicil cannot possibly alter Question the status once acquired : so far therefore as decrees of nullity are dTcreTof " concerned, the law to be applied is the law of this domicil ; as in "^' the case of civil contracts the kx loci contractus will be adminis- tered even by a court in another country having jurisdiction in the matter, so in the case of the marriage contract, this primary lex domicilii will be applied in questions of nullity, even by a court in another country having jurisdiction in the matter by reason of an absolute and subsequent change in domicil. But a change of domicil imports obedience to the laws of the new domicil, and therefore a violation of these laws in matrimonial matters will give MARRIAGE — LEGITIMACY — DIVORCE. 285 Chapter X. its courts jurisdiction to apply the remedies supplied by its laws : Question taking the wrong to be the husband's adultery, if the remedy in decree of that country be divorce, the parties will be divorced ; if the remedy be only judicial separation, that will be the form of the decree : therefore in questions of divorce, it is not the law of the domicil of the time of marriage that applies, but the law of the domicil at the time of the wrong. Now, judicial separation being the remedy for the husband's intention to adultery in this country, but divorce being the remedy in Scotland, English if jurisdiction is given voluntarily to the Scotch courts by people domiciled in England, it is evident that there is an intention to evade the laws of the actual domicil and a decree pronounced in Scotland will not be recognised : the reason is the same as before, that it has proceeded on an erroneous interpretation of Inter- national Law. But it is doubtful whether this rule would apply where the where second domicil was an actual and permanent domicil, even thougli domicil is acquired with the express object of obtaining the divorce : In p'^'"'"^"'^" ■ such a case the question could only arise if the parties returned to this country, and it would then be a very difficult task for them to establish satisfactorily the acquisition of the second domicil. But supposing the Scotch court to administer the law of England, and only to decree judicial separation, it might possibly be doubted whether it would not be upheld in this country : Toiiemache although Tollemache v. Tollemache and the dictum of Brett, L.J., ToUe7nachc. in Niboyet V. Niboyet [p. 290], support the opposite view. & M. 113. The distinction between this principle and that laid down in intention Niboyet. Siiiioiiin V. Mallac must also be borne in mind : a visit to another ceremonial 4 f*- -D' ^- , . . I . simonin v. couutry in order to avoid the ceremonial law of the country will ^^^' 29 L. J: p. not be considered in fraudeni leg-is. Shortly then the decisions & M. 97. . . LoUey'scase. \x\. Lollefs case, S/idw v. Gouid SLVid Briggs V. J^riggs, and also that 567.' ' in Dolphin v. Robbins (on the authority of Lord Cran worth who gIVm.' delivered the judgment), must be taken to be identical ; and with H. L. 55. regard to the question of jurisdiction, or jurisdictional domicil BHsgsl' created by the intention of the parties to have gone no further ^Do'iphint^' than the rule in Lol/efs case as it is given above. fg^L.T: ' ^^^^ '^^ y^*-^ P'-^'' ^^^ case,' said Lord Colonsay, ' of the parties Not in p. &M. II. 'resorting to Scotland with no such view, and being resident /';,^'>. ""' * there for a considerable time, though not so as to change the ofreTidimg"" ' domicil for all purposes ; and then suppose that the wife commits ".^"oking ' adultery in Scotland, and that the husband discovers it, and courf." 286 STATUS. ' immediately raises an action of divorce in the court in Scotland Chapter X. ' where the witnesses reside, and where his own duties detain him, ' and that he proves his case and obtains a decree, which decree ' is unquestionably good in Scotland, and would, I believe, be ' recognised in most other countries ; I am slow to think that it 'would be ignored in England, because it had not been pro- ' nounced by the Court of Divorce here. How would the Court ' of Divorce here deal with the converse case ? ' This question was raised as a very doubtful one by Lord Chelms- ford ; and also by Dr. Lushington in Conivay v. Beazley. ' A Comvay v. 'question of greater difficulty,' said Lord Chelmsford is, 'what is sHagg: ' the effect of a Scotch divorce upon an English marriage where ' the parties do not afterwards become domiciled in Scotland, nor ' have resorted thither with the design of invoking the jurisdiction ' of the court ; but where, happening to be in the country, one of ' them applies for and obtains a divorce. I cannot subscribe to ' Lord Cranworth's dictum in Dolphin v. Robbins, that it must be Dolphin v ' taken now as clearly established that the Scotch court has no 29 l. j • 'power to dissolve an English marriage where the parties are not ' really domiciled in Scotland.' At the close of the judgments Lord Cranworth himself agreed with the view taken by Lord Chelmsford. Example of Qu the Other hand we have the case of Pitt v. Pitt, which was Pitt v. Pitt rcvertaidi. decided by the House of Lords in 1864; the counsel for Colonel h. l.'^IJ?. Pitt, the respondent, admitted with the full approval of the House, that the sentence of divorce which had been obtained in Scotland could not be upheld unless it could be shown that before and during the suit Colonel Pitt was permanently domiciled in Scotland; he had at one time been 'dodging about' to avoid his creditors, but at the time of the suit he had taken a six years' lease of a house, and the Lord Ordinary considering that he had adopted a settled mode of residence thought that he was absolutely domi- ciled in Scotland and granted the divorce ; but the Lords were of opinion that he had no such domicil, that he had no intention of quitting de facto et ex animo his English domicil, and that the evasion of the creditors pointed clearly to the existence of an animus revertendi, and held therefore that the Scotch court had no jurisdiction to pronounce the decree of divorce. It is exceedingly dif^cult to reconcile the decision of the House in 1864 with the obitei' dicta pronounced in 1868. And it is rendered more difficult from the fact that Pitt v. Pitt was a Scotch appeal, requiring the interpretation of Scotch law, while CoiUd. Shaw V. G oil id was an English ap})eal, in which Scotch law h. l. 55. MARRIAGE — LEGITIMACY — DIVORCE. 28/ Chapter X. would be treated as foreign law : yet the former decision is the more stringent of the two. The result of the two cases seems General however to be this, that the Scotch law rightly interpreted requires the two an absolute domicil : but the English courts will recognise a foreign divorce of English domiciled subjects founded on some- thing less than absolute domicil. It is difficult to ascertain what the test really is; on the one hand the requisite domicil has been The test of sometimes called '' bona fide'' : sometimes 'real,' or 'complete': some- times, * for all purposes ' : each of these terms meaning less than ' domicil ' : on the other hand, as we have already seen, they imply something more than mere residence, and something not adopted in fraudem legis : perhaps the mean may be found in the term ' matrimonial home,' which we shall find used with reference to the jurisdiction belonging to the English Divorce Court, be- cause this carries with it the impression of a bona fide settlement in the country of both parties. The second point raised by the decision in Shaw v. Gould is collusion. Collusion. We have been considering the case of an arrangement between the parties to found the jurisdiction of the foreign court : this if in fraudein legis is sufficient of itself to invalidate the decree : but the Lords carefully avoided calling this collusion, even though it were stipulated that one of the parties should receive a sum of money when the divorce was obtained : the restraint however Example. from any attempt to defeat the proceedings by the imposition of Doiphinw a forfeiture was held both in this case, and in Dolphin v. Robbins, 2/L. jT' to be collusion. But if the mutual arrangement be not in ■ & ^^- "■ fraudem legis, which would be the case where the remedy for the matrimonial wrong is the same in both countries, it seems that any arrangement to bring the facts before a court of competent jurisdiction, however purchased or obtained, is unobjectionable. Crewe V. Sir William Scott approved of this theory in Crewe v. Crewe, where Cvcivc 3 Hagg: he thus defined the collusion which would be sufficient to invali- date the decree : — ' Collusion is an agreement between the parties Definition. ' for one to commit, or appear to commit, a fact of adultery in 'order that the other may obtain a remedy at law for a real ' injury : but it is not proof of collusion that after the crime is 'committed both parties are desirous of a separation.' It is doubtful whether the same rules apply to the case of a ni. Foreign . decree marriage in England between foreigners domiciled m England, dissolving Lord Westbury having confined his remarks to 'domiciled subjects.' England of 288 STATUS. foreigner domicilcU here. iv. Foreign decree dissolving marriage in England of Englishman domiciled abroad. Allegiance not shaken off. When we come to consider the converse case we find the doctrine Chapter X. of allegiance overriding the doctrine of domicil : and it may well • be that the English courts would admit the validity of a divorce pronounced by the courts of the country of which the husband was a subject, although he were domiciled in England. This converse case is the last under the first division of the subject : a foreign divorce of an Englishman married in England, but domiciled in the foreign country. This would really seem to be already disposed of by the discussions under the second head, the result of those discussions being that the divorce will be recognised. But in Deck v. Deck, Sir Cresswell Cresswell jh-d v. declared that ' allegiance was not shaken off by change of 2 s. & T. go. ' domicil,' and that the husband, though he had acquired a domicil in America, still owed allegiance and obedience to the laws of England. It is true that in this case there was no American divorce ; but the principle laid down seems capable of an ex- tension somewhat antagonistic to the recognition of a foreign decree given under such circumstances. Foreign decree dissolving marriage celebrated abroad. II. Marriage abroad — Decree abroad. It has been convenient to notice the place of the marriage, both on account of the old theories on the subject, and the necessity of ascertaining the lex loci cotitractiis in matters relating to the ceremony. But, as we have seen, the place of the domicil at the time of the matrimonial wrong being the all-important element with regard to decrees of divorce ; the domicil at the time of the marriage, with regard to decrees of nullity ; the rules as to the recognition of sentences arrived at in the four cases just considered under the first division will evidently apply to the corresponding cases in this division. English decree dissolving English or foreign marriage. III. Marriage in Englatid or abroad — Decree in England. We now come to the important question of the jurisdiction of the English court in matters of Divorce. ' I should have been glad,' said Sir Cresswell Cresswell in Forster v. Forster, ' if the legislature had said that this court had ' no jurisdiction except over persons domiciled in England. When ' Lord Campbell was Lord Chancellor I asked him to bring in a ' bill to define my jurisdiction, but he said whenever that question ' is raised it must be decided upon legal principles : it cannot be ' defined.' Forster v. Forster. 3 s. & -r. MARRIAGE — LEGITIMACY — DIVORCE. 289 Chapter X. The simple case of an Englishman domiciled in England falls •• EngUsh- within the scope of text-books on the Law and Practice of Divorce domiciled in ... England. m England, and does not require consideration here. The rule of jurisdiction of the Divorce Court differs from that Rule of of the Common Law Courts, the mere presence of the respondent in Divorce within the jurisdiction not being sufficient to entitle the petitioner to serve the citation upon him ; and on the other hand, the pro- visions of Order XI of the Judicature Act, as to service out of the jurisdiction, do not apply to suits for divorce. Ratdiffe v. The general rule laid down in Ratcliffe v. Ratdiffe, ' when the ']• ^.Tf'fl^'' Ratcliffe. . . . . . ... . domiciled in 1 s. & T." ' domicil of the parties is English, the jurisdiction of the court is England. ** ^' * founded though the marriage and adultery may have taken place ' abroad,' would seem to include the second case of a foreigner domiciled in England ; in fact the rules already discussed clearly support the proposition. The first difficulty we meet with is in the third case, which is iii. Engiish- that of an Englishman domiciled abroad. domiciled As we have already pointed out the principle was laid down in ^ ^°^ ' Deck V. Deck V. Deck, and followed in Bond v. Bond, that although the Deck, . . . . 2 s. & T. 90. husband has really acquired a foreign domicil, yet he cannot 2 s. &'t. 93.' shake off his allegiance to this country : therefore, where the Allegiance. wife had remained in England, it was held that the court had still jurisdiction to pronounce a decree of divorce against the husband. It might appear at first sight that this was an instance of the wife's domicil not following the husband's : but the learned judge cer- tainly did not limit the application of the principle to a case of desertion, for he expressed his opinion that the words ' any wife ' in section 27 of the Matrimonial Causes Act, 1857, ' must certainly 'include any wife being an English natural-born subject' It will be remembered that this theory of allegiance was mentioned with udnyw. approval by the House of Lords in Udny v. Udny. Udny. L. R. 1 Sc: App: 441- -pj^g j^g^ Q.z.%&, and that in which most of the perplexing ques- iv. Foreigner . . domiciled lions arise, is that of a foreigner domiciled abroad : this was abroad. ^ibret ^' discussed by the Court of Appeal in the recent case of Niboyet v. J^j-eTc^J" 4P.'d."i. Niboyet. '"^.a. The marriage was solemnised at Gibraltar, the husband was French, the wife English. They had resided several years in England, but the husband being a French consul retained his domicil of origin. The adultery and desertion took place in England. Appearance was entered under protest. The Court of Appeal, Brett, L.J., dissenting, held that the court had juris- u 290 STATUS. Fiction of consular domicil. Domicil of husband at institution of suit. Converse case of Shaw V. Gould considered. diction to entertain the suit, and reversed Sir Robert Phillimore's Chapter X. decision. The first thing to be noticed is that the case is encumbered by a fiction of the law of domicil. The husband residing in this country merely as consul from a foreign state, it was impossible for him to acquire an English domicil. This being so, in the first place, the lex domicilii applying to the case, it would not be the English law but the French law that would govern it : but as we have pointed the rule lex domicilii refers not only to the law by which the case is to be decided, but also to the court which is to administer the law ; and therefore, the case would not properly be heard by the English court but by the French court. This view of the law was taken both by Sir R. Phillimore and Lord Justice Brett : — ' The law,' said the learned Lord Justice, ' which enables a court to decree an alteration in the relation ' between husband and wife or an alteration in the status of * husband and wife as such is as matter of principle the law of ' the country to which by birth and domicil they owe obedience. ' The only court which can decree by virtue of such law is a court ' of that country. If the courts of any country should assume by * a decree of divorce or any other decree, to alter that relation or ' status of a foreigner not domiciled therein, the decree would not 'be recognised as binding by the courts of any other country.' ' The domicil of the husband at the institution of the suit is the 'fact which gives jurisdiction to the English Divorce Court to ' decree divorce : with such domicil the court has jurisdiction ' over a foreigner as well as over an English subject : without ' such domicil the court has no jurisdiction though the party is ' an English subject. It applies therefore as it seems to me to ' suits for judicial separation and to suits for restitution of con- ' jugal rights : I do not think it does apply to suits for a declara- ' tion of nullity of marriage or in respect of jactitation of marriage.' In the last two cases the domicil at the time of the marriage is, as we have said, the important fact. Now if we revert for one moment to the decision in Shmv v. shaw v. Gould which is the converse case, a foreign decree against a l^r. 3 domiciled Englishman, the principle there laid down was that an ' ' ^^' English court would recognise such a decree although the English domicil had not been cast aside, if the jurisdiction of the foreign court was based on a residence short of actual domicil. We can apply that principle to such a case as the present : an English consul who had resided abroad with his wife for some lengthy MARRIAGE — LEGITIMACY — DIVORCE. 291 Chapter X Callwell V. Callivell. 3 S. & T. 259. Forster v. Forster. 3 S. & T. 151. Brodie v. Brodie. 2 S. & T. 259- Manning v. Manning. L. R. 2 P. & D. 223. Harford v. Morris. 2 Hagg: Cons: 423. . period, and a suit ending in a divorce in that country : such a ■ divorce would clearly be recognised. We cannot therefore be sur- prised at finding the rule of English jurisdiction shaped so as to agree in principle with the rule already received as to the recogni- tion of foreign sentences. This was the conclusion arrived at by Lord Justice James who delivered an elaborate and historical judgment, tracing the growth of the rule he enunciated from the practice of the old ecclesiastical courts. ' I do not find,' he said, ' any violation of the comity of nations in the legislature of a ' country dealing as it may think just with persons native or not ' native, domiciled or not domiciled, who elect to come and ' reside in that country, and during such residence break the ' laws of God or of the land.' He then proceeded to attack the rule lex domicilii in its strict application, and laid down what we may call the rule of the matrimonial home. ' It appears ' to me to be a violation of every principle to make the dissolu- ' bility of a marriage depend on the mere will and pleasure of the * husband, and domicil is entirely a matter of his will and pleasure. ' Where the matrimonial home is English, and the wrong done * here, then the English jurisdiction exists and the English law 'ought to be applied.' This case must now be taken as embodying the law on the subject, and as governing the previous cases where there is any difference between them. In Calhuell v. Callwell the husband was domiciled in Ireland and had only a temporary abode in England at the time of his filing the petition : but the wife appeared and submitted to the jurisdiction of the English court, and on this ground the decree was pronounced ; and for the same reason Sir Cresswell Cresswell refused to go into the question of jurisdiction in Forster \. Forster. Yn Brodie n. Brodie the principle adopted was that a bona fide residence in this country, not casual or as a traveller, was sufficient to found the jurisdiction of the court against the wife who had committed adultery in Austraha during that residence ; and this was followed in Mantiitig v. Man- tling, the learned Judge Ordinary expressly declaring his desire of assimilating the rule of English jurisdiction to that of recognition of foreign sentences. In Harford v. Mo?'ris, Sir George Hay said that he conceived that the law Avas clear that it was not transient residence by coming one morning and going away the next day which consti- tutes a residence to which the lex loci could be applied, so as to give jurisdiction to the law, and cause it to take cognisance of a The English rule of jurisdiction made to agree with former decisions on foreign decrees. fames, L.J., laid down the rule of the matrimonial home in lieu oi lex dotnicilii. Review of previous 292 STATUS. marriage celebrated there; but that it was certain that domicil or Chapter X. estabhshed residence might have that effect. In Yelverton v. - Yelverton, Sir Cresswell Cresswell considered the question whether, yefverton!" although the domicil of origin was retained, there was not also a 5^^. domicil in England sufficient to give jurisdiction to the court: the sojourn in England being only of a temporary nature, the learned judge held there was no jurisdiction. In Wihoti v. J^^^^";'- Wilson it was not disputed that if the petitioner, the husband, l. r.^ ^^^ were domiciled in England when the suit was commenced, the court would have jurisdiction ; Lord Penzance found that he was so domiciled; he doubted however whether residence short of domicil could be sufficient, his view being that ' parties in all • cases should refer matrimonial differences to the courts of their 'domicil.' In Le Sueur v. Le Sueur, the marriage took place in £^|;;;;';/- Jersey, and there also were the matrimonial home and the domicil. i p- d. 139- The husband deserted the wife and went to reside in the United States, the wife became permanently resident in England, but the husband had never resided here. She instituted a suit here for dissolution of marriage by reason of his adultery and desertion, but Sir R. Phillimore held that the court had no jurisdiction, even supposing it could be said that the wife's permanent residence in this country were in effect a domicil separate from that of her husband : the suit was therefore dismissed. But in Santo Teodoro s. Teodorov. V. Santo Teodoro, the husband was a Neapolitan and the wife 5 p. d. 79.' English. She had agreed to marry on his promising to live in England six months out of every year, and up to the time of the suit this promise had been kept. Sir R. Phillimore said that he was satisfied that the husband, the respondent, was subject to the jurisdiction on the ground of the long cohabitation in this country. The old These cases all shew a very strong leaning, some more, some tenrtowards less, towards a rule of jurisdiction based on something less than down" by"" absolute domicil; and as we have said, the rule may now be James, L.J. ^^^^ ^^ |^g established by the decision of the Court of Appeal to be that of the matrimonial home. One important point dependent upon the law of the wife's domicil must not be forgotten : the question is not the domicil of Domicil of the petitioner or of the respondent, but the domicil of the petitioner j^^g-j^g^j^^j . jj^ ^^ ^r^^^ ^f dcscrtion it is the original domicil of regaSed.^ the husband : if the suit is brought by the wife, the court must have jurisdiction over the husband ; if the suit is brought by the husband, the wife's residence is immaterial, so long as there is jurisdiction over the husband. MARRIAGE — LEGITIMACY — DIVORCE. 293 Chapter X. In the case of a suit by the wife for restitution of conjugal rights however the court requires not only domicil but residence by the husband within the jurisdiction, because it is a suit to control the J^',''^'" •' ' suits for Fircbraccs-. husband, and if he is a foreigner out of the jurisdiction he cannot restitution of rireoracc. ■' conjugal 4 P. D. 63. be controlled (jFirebrace v. Firebrace). rights. Service out of the Jurisdiction. The iurisdiction of the court being established, the citation and 20 & 21 v. ■' ° ' c. 85. s. 42. petition may be served on the respondent although he or she is Service of - , ..... rrn • • T^ 1 1 • 1 11 • citation and out of the jurisdiction. This m Lngland is regulated by section petition 42 of the Matrimonial Causes Act, 1857. It is somewhat remark- jurisdiction, able that although the legislature, for the reasons stated on page 225, has provided for the service of notice of a writ in lieu of writ on foreigners out of the jurisdiction, it has not provided for the service of notice of a citation in lieu of citation. 20 & 21 Vic: c. 85. s. 42. Every such petition shall be served on the party to be affected thereby, either within or without her Majesty's doininions, in such manner as the court shall by any general or special order from time to time direct, and for that purpose the court shall have all the powers conferred by any statute on the Court of Chancery : provided always that the court may dispense with such service altogether in case it shall seem necessary or expedient so to do. ' Such petitions ' includes all petitions in the Divorce Court ex- cept those for restitution of conjugal rights {Firebrace v. Firebrace). The section applies both to British subjects and to foreigners, section It is to be observed that the citation itself is allowed to be served ^bjects'and out of the jurisdiction on foreigners, and not a notice of it as in * '^"^" the case of a writ in an ordinary action : this is the more remark- able because the notice in lieu of writ is required to be served on all foreigners quite irrespective of whether they are domiciled or usually resident in this country. The proviso to the section is important ; the service may be Proviso, that ,.,, • r 1 ^ ■ ^ J- service may dispensed with altogether if the court think nt. be dispensed If the husband's residence abroad be known the citation must be ^' Rowhotham scrvcd. In Rowbotham v. Rowbotham, the Judge Ordinary recom- \owbotham. mended that the citation and copy of the petition should be sent p & M. 33. out to the British Vice-Consul in New York, with instructions to send back the citation when served, with an affidavit of service. Service by an agent of the English firm of solicitors would naturally 294 STATUS. be the most usual course to adopt. If the residence abroad be not Chapter X known and every effort has been made to discover the respondent's whereabouts, service will be dispensed with ( Chandler v. Chandler ; Cook v. Cook). But the court will not act until it is satisfied that every effort has been made {Sudlow v. Sudlow). The same remarks apply to service, or dispensing with service on a co-respondent. Chandler v. Chandler. 27 L. J: P. & M.3S, 28 id: 6. Cook V. Cook. 28 L. J: P. & M. 5- Sudlow V. Sudlow. 29 L. J: P. & M. 4. Note on Mrs. Bulkley's case in France. Judgment of Cour de Cassation. Facts of the case. NOTE ON MRS BULKLEY'S CASE. Appendix to PiTT v. Pitt. [4 Macqueen's H.-L. cases, 676.] Mrs Bulkley having married a resident of Holland, was divorced there : The inferior court in France held that she was incapable of contracting marriage in that country: The Cour de Cassation however reversed this decision, and held that having been legally divorced abroad, she was free to maiTy again in France. Judgment of the Cour de Cassation. The references were to articles 3, 6, and 147 of the Code Napoleon ; and to Article i of the Law of May 8, 181 6. The Court proceeded — ' Attendu que le mariage, en France, est un contrat civil ; qu'il ne peut etre ' interdit qu'a ceux qui ont en eux un motif d'empechement etabli par la loi ' civile ; — ' Attendu que si I'Art: 147 du Code Napoleon defend de contracter un second ' mariage avant la dissolution du premier, cette defense n'existe pas toutes les ' fois que la preuve de la dissolution du premier mariage est rapportee ; ' Que cette preuve est faite de la part de I'etranger, marie a I'etranger, lorsqu'il ' etablit que son mariage a ete dissous dans les formes et selon les lois du pays ' dont il etait sujet ; — Que telle est la consequence du principe, reconnu par ' I'Art: 3, Code Napoleon, de la distinction des lois reelles et des lois person- ' nelles, que celles-9i, qui regissent I'etat et la capacite des personnes, suivent ' les Fran9ais, meme residants en pays etranger ; et suivent egalement en ' France I'etranger qui y reside ; — ' Que c'est done par les lois de son pays, par les faits accomplis dans ce pays ' conformement a ses lois, que doit etre appreciee la capacite de I'etranger pour * contracter mariage en France ; qu'ainsi, I'etranger, dont le premier mariage ' a ete legalement dissous dans son pays, soit par le divorce, soit par toute ' autre cause, a acquis definitivement sa liberte et porte avec lui cette liberte ' partout oil il lui plaira de resider : — ***** ' La loi Frangaise a confirme le respect du aux legislations etrangeres statuant ' sur I'etat et la capacite des personnes soumises a leur souverainete ; ' Attendu, en fait, qu'il etait constate, et qu'il n'est pas conteste par I'arret 'attaque, que Mary Anne Bulkley, Anglaise d'origine, mariee en Hollande 'avec Anthony Bouwens, sujet Hollandaise, avait ete divorcee en 1858 par ' jugement du tribunal de La Haye, inscrit sur les registres de I'etat civil con- ' formement a la loi du pays.' ' Que, par consequent, Mary Anne Bulkley, lorsqu'cllc se presentait en 1859 MARRIAGE— LEGITIMACY — DIVORCE. 295 Chapter X. ' 'levant I'officier de I'etat civil du 10™ arrondissement de Paris, pour contracter 'mariage, juslifiait de la dissolution de son precedent mariage, et ne se trouvait ' pas dans le cas de prohibition de I'Art : 147 du Code Napoleon : ***** ' Par ces motifs, la Cour casse et annulle I'arret de la Cour Imperiale de Paris ' du 4 Juillet, 1859 ; et remet les parties en meme etat qu'avant le dit arret ; ' ***** From this judgment we see that in France marriage being essentially a civil contract, the lex loci contractus and not the lex domicilii governs the French courts whenever any question relative to the marriage contract comes before them. 296 LUNACY. Chapter X. Questions of status involved. What country entitled to find lunacy; Rule of residence. English rule of jurisdiction 24 L. J: Ch: 244. The subject of lunacy raises two distinct questions of status, that of the lunatic himself, and that of his guardian, committee, or curator. With regard to the status of the lunatic himself, there can be very little doubt, although the reports do not furnish any cases in support of the proposition, that a foreign finding in lunacy would be followed so far as the individual's incapacity to contract is concerned. But the authorities are unanimous in holding as a general pro- position that an English court will recognise the validity of a finding in lunacy by a competent foreign court, both as to the vesting of the lunatic's property in this country in the curator, and in allowing him to sue in this country on behalf of the lunatic's estate {Scott v. Be?itley) ; this being so, the first proposition would ^^^''^y- seem to follow as a matter of course. A question of greater difficulty arises when we come to consider what country is entitled to direct an enquiry to find whether a person is lunatic or not. A natural status such as minority depends on the lex domicilii; but lunacy is not a natural status; depending on a judicial proceeding, it is in reality an alteration of the natural condition of a man. In the analogous case of divorce we find the rule to be that of the matrimonial home, that is the married residence : so in the case of lunacy a general view of the statute and cases seems to point to residence being sufficient to give the court jurisdiction : but whether this is to be mere residence or usual residence it is impossible to say without more authority. The text-books are silent on the point. With regard to the English rule of jurisdiction the 40th section of the Act of 1853 treats of lunatics within the jurisdiction, not limiting the section to British subjects : and the 45th section [see p. 298] treats of lunatics not within the jurisdiction, again without any limitation, but this must evidently refer to British subjects only. In an old case, ex parte Southcot, a commission in lunacy ex^: . -Ill 11- -J Southcot. issued agamst a person beyond the sea : but his mansion and 2 Ves: Sen: estates being in this country he must at least have been domiciled here. In many of the cases which we shall notice the lunatic has been an English subject found by inquisition abroad. The short exp-. Lewis. note to ex parte Otto Letvis in Vezey's Reports is as follows : — 298. LUNACY. 297 Chapter X. ' One found non compos before a proper jurisdiction, the Senate Foreign ' of Hamburg, where he resided, and a curator and guardian Umacy * appointed for him and his affiiirs : the court was obUged to take ""^"^"^"'^^ ' notice of it ; and the action being brought on the 4 George II. ' c. 10 — that all persons being lunatic, or the committee of such ' persons, shall convey ; the guardian appointed in Hamburg was ' ordered to Lord Hard wick to convey.' This case was approved exp:GiUa»i. by Lord Loughborough, C, in ex parte Gillain. re Hmtsto'nii. In ix Houstouti howcvcr it was held that a lunatic residing in But further . 31... gj^gj^j^^^ having property in Jamaica where he was found lunatic, rrqui'site must still be the subject of an enquiry in England, in order to obtain" obtain the protection of the Lord Chancellor, he having come to of Lord°" reside here with one of his committees. ' The commission now Chancellor. 'existing in Jamaica is no reason why a commission should not 'issue here. On the contrary, it is evidence of the absolute neces- 'sity that there should be somebody authorised to deal with the ' person and estate of the lunatic. While he is here, no court will * have any authority over him or his property, unless a commission 'is taken out.' (Lord Eldon, C.) The result seems to be that if a curator bonis has been appointed Foreign by the foreign court he will be entitled to apply to the English wjt may courts to have transferred to him any money standing in the tr^nffe°of re Eiias. English funds, as of right {re Ellas) -, but not realty, nor funds mone'" G. 234! which, resulting from the sale of realty, remain realty {Grlmrwod f^ity°^ B^^ds." "' ^- Bartels). And this principle was acted upon by the Court of 843!^' ^' Session in Gordon v. Earl of Stair. In re Ellas the Lord Chan- Case of a ^T^r?^' cellor intimated that if the lunatic were a subject of the foreign subject. 13 Shaw & country (Holland) where he had been so found, he would have had no difficulty in at once making the order; but being an English subject, he made a preliminary order for payment of the Case of an dividends, and then directed a reference to the Master to ascertain subject. whether the curator was entitled to the corpus of the funds by Dutch law. The Master reported that he was so entitled and Reference to that the lunatic was duly declared. The Lord Chancellor there- for repw'" upon made the order, observing that he assumed that no security had been given by the curator, and that none was required by Messing V. Dutch law. In Hesslngv. Sunderland the order for transfer of j^g^^^j^^ Sunderland. ^^^ ^orpus was made by consent. Se!u '" ^'"^^Jrk But this does not seem always to have been done : in re Stark, cases for not -M % • grantnig r „' although the Master's report was in the affirmative on all the "■^"^f'^'' '"*• . . . although points mto which enquiry was directed, the Lord Commissioner, Master's Lord Langdale, said the granting of the order was in his discretion ; favourable. 298 STATUS. Judge's discretion. tluit the sum was too large for the security ; that no reason had Chapter X. been assigned for the transfer and that he would not therefore make an order to transfer the corpus, especially as no sufficient reason was assigned for the transfer : He cited re Morgan, where re Morgan. his Lordship said the same course had been pursued by Lord 212. Cottenham, C, and the dividends only had been ordered to be paid, because the security taken by the Court of Session was deemed insufficient for the corpus to be transferred. So in re Sargaziirietta an order for payment of dividends only was *'^Jf^^f^^ made: — This decision was followed by Malins, V.-C, in re ■^o\..-y: _ (J. b. 299. Gamier. The lunatic was a British subject, and while travelling »:^^p 'f}^^." . . , . ,. , m the United mitted ; and that in the case of any supersedeas of any such proceedings the Kingdom. same shall be certified and transmitted and recorded in like manner ; and that the record of any such proceedings or of any such supersedeas as afore- said shall, in case and so long and so far as the Lord Chancellor of Great Britain or other persons instructed 'as aforesaid, or the court of session in Scotland, or the Chancellor of Ireland instructed as aforesaid (as the case may require), shall respectively see fit, be acted upon by him and them respectively, and be of the same force and validity, and have the same force and effect, as if such proceedings or supersedeas, or proceedings or a supersedeas to the like effect had taken place in England, Scotland or Ireland respectively ; and it shall be lawful for the Lord Chancellor or other persons instructed as aforesaid, the court of session in Scotland, and the Chancellor of Ireland instructed as aforesaid respectively, from time to time to make and give all such orders or directions by appointing any committee or committees, curator or curators, or otherwise, as may appear necessary or proper for securing proper care and protection to the person and estate of such idiot, lunatic, or person of unsound mind. 302 GUARDIANSHIP. Chapter X. The questions of status involved. Parent, the natural guardian. Rights governed by iex domicilii. Guardian appointed by foreign court. What court has right to appoint. English rule depends on residence. Extreme case. Again we have two different forms of status, tliat of the protector or guardian, and that of the person protected. Minority however is a question of natural status, and during the minority the parent is the natural guardian ; therefore the simple form of guardianship is also a question of natural status. The law so far is perfectly simple : minority, and consequently parental guardianship is governed by the lex domicilii ; domicil meaning in this case not domicil of origin, but that of permanent residence. This minority and guardianship will be recognised by the courts of all other countries, not only with reference to the capacity or incapacity to enter into contracts, but also as to the possession or custody of the infant. 'An alien father,' said Lord Campbell, C, Ms: Bute's . , ^ , . case. in the Bute case, * whose child had been carried away from him 9 h. l. ca: ' and brought to England, would undoubtedly have the child '*'^°' ' restored to him by writ of habeas corpus.' But on the death of the natural guardians, a successor may be appointed by decree of a foreign court, on whom the status of guardian is conferred : the question then arises what respect will be paid to this foreign appointment when the infant happens to be in this country. This again depends on the difficult point which arises in all these questions of status, what court has authority to appoint a guardian. It might appear to be a consequence of what has already been said that the only court competent would be the court of the country of the domicil. But this is not the English rule on the subject. This rule was very broadly laid down by Lord Cranworth, C, in Jfope V. Hope to depend on simple residence in this country. The Hope v absurd case was put of an alien infant coming to England within 26 l. j: a few weeks of attaining his majority, and who might be returning shortly to his own country. His Lordship was clear that the court would have jurisdiction, but that it might very wisely decline to exercise it. We therefore come back to the question, assuming the court to have jurisdiction, whom will it appoint as guardian ? The practice of paying complete respect to the appointment already made by the foreign court, although it may be said now to be established as a principle of English law, yet at times has been somewhat misunderstood. Lord Cranworth's opinion, when in Ms: Buh case. 9 H. L. ca: GUARDIANSHIP. 303 Chapter X. the Marquis of Bute's case he was discussing the decision in Johnsoi V. Beattie, was that although that case did not decide that our courts were absolutely bound to follow the foreign appoint- 44"" ^' '"'' nient, ' perhaps it might have been a decision more consonant BeTuie. "' ' with the principles of general law to have held that every country FiiK'42^ * would recognise the status of guardian in the same way as it ' undoubtedly would recognise the status of parent, or the status * of husband and wife.' The difficulty really is this : the status of parent is recognised, The real . difficulty but not that of those who stand in loco parentis. This arises from involved. the fact that the English court will not let go its jurisdiction over infants within its limits, and therefore reserves to itself the right to appoint the guardian of those infants : but in so doing it will follow the foreign appointment if the guardian himself be within the Nugent X. jurisdiction. 'I guard myself,' said Wood, Y.-C, in Nugerit v. L. R. 2 Eq: Vetzera, ' against anything like an abdication of the jurisdiction of ' this court to appoint guardians. With respect to the English 'guardians of these children I hold that the court has power to * appoint them, and I continue those that have been appointed.' The point has arisen in the following cases : — Review of the cases. ^iff'.,.- Ex parte Watkins: — The Governor of the Leeward Islands had IVatkins. ■'^ 2 Ves: Sen: appointed guardians : It was argued, and the argument seems to have been assented to, that the appointment failed as soon as the infant came to England ; another guardian was in fact appointed. Lord Campbell, C, in Johnson v. Beattie, explained that this case really was not against the principle of the conclusiveness of the appointment, for ' we are not informed in the slightest degree ' what was the nature of that appointment : the infant may have * been domiciled in England ; or might have had property in ' England and nowhere else.' Potinger v. Potiuger V. IViMmau : — The widow was appointed guardian of IVigntman. o o j. j. o 3 Mer: 67. the children by the Royal Court of Guernsey, and she came to England with the children : The question being what law should govern the succession, it was held that the English law was the lex domicilii, because the children's domicil followed the mother's, unless there were a fraudulent purpose of obtaining an advantage by altering the rule of succession. But that fraud might be pre- sumed where no reasonable cause appeared for the removal. Johnson v. Tohnsou v. Bcattie : — In this case the Lords were not unanimous : Beattie. "^ ... ioCi:& the general principles involved m the decision were these: If Principles Fin: 42. . ,.,,._,,., ,. , , . . involved in there be a foreign child m England with guardians duly appointed decision. in the child's own country, the Court of Chancery may, without 304 STATUS. any previous enquiry whether the appointment of other guardians Chapter X. in England is or is not necessary, and would or would not be beneficial to the child, make an order for the appointment of English guardians. If the guardian is out of the jurisdiction, the court appoints one within ; persons residing out of the jurisdiction may be appointed guardians jointly with persons residing within. This decision was construed by the Court of Session in the Mar- quis of Bute's case to imply that the foreign appointment would not be recognised under any circumstances ; but in the appeal from that court to the House of Lords, all the lords concurred in holding that the case did not go to either extremity of holding that the appointment was to be absolutely followed or absolutely ignored. Lord Cranworth explained its effect to be that ' the ' status of guardian not being a status recognised by the law ' of this country unless constituted in this country, it w'as not a ' matter of course to appoint a foreign guardian to be English 'guardian — but that it was only a matter to be taken into con- ' sideration.' {Stuart v. Bute.) Dawson v. Jay : — ^The appointment of the foreign guardian by the D •" . the subject Wylde : — ' The result of the cases ' he says, ' is that in the old by -5>vr/. p. . . Wylde. ' Prerogative Court the tendency was to follow the foreign grant ' where it could be done, but there was a reluctance to lay down Laneuville V Anderson. 30 L. J: P. & M 25 Enohin v. Wylie. 31 L. J: Ch: 402. Larpent \ Sindry. I Hagg: Eccl: 3S3. goods of Read. 1 Hagg: Eccl: 474. Vicsca V. D'Aram- bnrji. 2 Curt: Eccl: 277. goods of Cringan. I Hagg: Eccl: 548. goods of Rogerson. 2 Curt: Eccl: 656. goods of Earl. L. R. I P. & D. 450. 312 STATUS. * any absolute rule in the matter, while the decisions in the Court Chapter X. ' of Probate have militated against the rule of following the foreign 'grant.' The only case cited in support of this statement so far as it relates to the Probate Court was that of the Duchess of Orleans. It is very doubtful however whether the court either in that case which we shall examine shortly, or in any other has ever directly negatived the doctrine. The question really is, continued the learned Judge, ' in what ' way ought the court to act upon it ? ' Powers of ' There was no power in the old Ecclesiastical Courts to make Court under ' a grant except in the direction indicated by the practice of those c.°77 5.^3. ' courts. The Court of Probate however is armed with a special ' power by the 73rd section of 20 and 21 Vic: c. 77.' 20 & 21 Vic: c. 77. s. 73. Where a person has died or shall die wholly intestate as to his personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the court to be necessary or convenient in any such case, by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be administrator of the personal estate of the deceased, or of any part of such personal estate, other than the person who if this Act had not been passed would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory on the court to grant administration of such deceased person to the person who, if this Act had not passed, would by law have been entitled to a grant thereof, but it shall be lawful for the court in its discretion to appoint such person as the court shall think fit to be such administrator upon his giving such security (if any) as the court shall direct, and every such administration may be limited as the court shall think fit. ' I think the court ought to act upon that section, and to make a ' grant in all such cases as the present to the person who has been ' clothed by the court of the country of domicil with the power and ' duty of adniinistering the estate, no matter who he is, or on what The grant ' ground he has been clothed with that power.' ' The grant under 'the 73rd section will describe him as a person having that ' power, and thus the difficulty will be avoided by declaring that a ' person is executor who according to the practice of the court is ' not executor, and of continuing a chain of executorship by ' persons who are executors according to the law of a foreign ' country, but not according to the law of this country.' ' It is one thing to make a grant of administration, and another ' to make a grant of probate to a person as executor, which 'involves many peculiar consequences. I shall make the grant under s. 73. PROBATE AND ADMINISTRATION. 313 Cliapter X. goods of Smith. 16 W. R. 1 1 30. goods of Hill. L. R. 2 P. & D. I Miller v. yames. L. R. 3 P. & D. 4. goods of Read. I Hagg: Eccl: 474. ' with the will annexed to the applicant under the 73rd section, ' as the person entitled under the grant of the court of the country ' of the deceased's domicil to administer the estate.' /// the goods of S/iiit/i, the same learned Judge said : — ' It is a ' general rule on which I have already acted, that where a person ' dies domiciled in a foreign country, and the court of that country ' invests anybody, no matter whom, with the right to administer ' the estate, this court ought to follow the grant simply because it ' is the grant of a foreign court, without investigating the grounds ' on which it was made, and without reference to the principles on 'which grants are made in this country.' The grant was made as before under section 73. And again in the goods of Hill, when Lord Penzance, he acted on the same principle of acknowledging the fact of the foreign grant as the basis of his proceeding, by making the grant to the same person in this country. One of the most recent expositions on the subject was given by Sir James Hannen in Miller v, James, the question arising how- ever on a motion to strike out certain pleas. The executor pro- pounded a will alleging that the deceased died domiciled in Jersey, and that probate had been granted by a competent court in Jersey. The next of kin pleaded undue execution, incapacity, and undue influence. The learned Judge said : — ' It is the estab- ' lished practice that where a will has been proved in a foreign ' court, a duly authenticated copy will be admitted to probate in ' this country without further evidence of the vaUdity of the will, ' as it is presumed that the foreign court has been satisfied on that ' point. It was said in argument that the validity of this will ' might be put in issue because it had been proved only in Common ' Form in Jersey. But it is to be borne in mind that the expres- * sions in Common Form and in Solemn Form are not necessarily * appropriate to foreign probates, and the court here is not entitled ' to take upon itself to determine whether the court of the place ' of the domicil has adopted sufficient means to investigate the ' validity of wills to which it has given its official sanction. For ' these reasons I am of opinion that the pleas objected to must be ' struck out, and the defendants must seek their remedy by appli- ' cation to the proper court, whatever that may be, having 'jurisdiction to revoke the probate which has been granted.' The same question was raised in the goods of Read, where it was laid down that the English court must presume that the court of competent jurisdiction abroad acted properly in granting probate Considera- tion of the subject by Sirf. Hannen. General application of the theory of the con- clusiveness of foreign probate. 3M STATUS. Principles deduced from the cases. of the paper as a valid instrument, and had evidence before it Chapter X. accounting for the want of execution and other imperfections. The principles to be deduced from these cases are ; first, so far as the suit abroad and judgment are concerned, they will be subject in all respects, as to the defences which may be raised, to the general rules applicable to foreign judgments ; secondly, the foreign grant will be followed, and power will be granted to the foreign executor or administrator to administer the English assets. But a further question arises, in what form will the power be granted ? ^Ve have seen that although an English original grant might perhaps not have been made to the person to whom the foreign grant has been made, yet the auxiliary grant will be made. Application The pcrson is entitled to some power, but being now constituted lexjori an officer of the English court, and his power to administer the assets in this country being derived from that court, the rule lex fori will apply and his power will be limited according to English law. This is the difficulty to which Sir J. P. Wylde referred when he said that the solution of it was supplied by the 73rd section. The Indian grant hi the goods of Read, had been of probate to the widow as universal legatee and constructive executrix of an informal paper, in which character no security was required : the English grant was of administration with the will annexed to her as relict and principal legatee, and security was required. So /;/ the goods (^f^^^fY{„. Mackenzie, in which the last case was followed : the grant was Deane 17. ' limited to the goods here, and the character of the representative was varied so as to make the proceedings conform to the law of England. And again /« the goods of Cosnahan, the grant of the ^^^f;j{^„ Ecclesiastical Court in the Isle of Man was followed so far as to l. R.^ ^^^ treat the deed as testamentary, but not so far as to treat a trustee who had been appointed executor according to the tenor in the same capacity in this country : administration with the will annexed was granted as before under the 73rd section. The grant of course is always limited to the goods in this country. The rule therefore may be thus stated, the English grant will be of probate or of some form of administration in accordance with English law, the person to whom it is made being designated by the foreign court. This brings us to the very important decision in the goods ofsood^f£_ H.R.H. the Duchess of Orleans. ^.| ^ i'- In the first place, the general principle was recognised that the Probate Court, in granting administration of the effects of a Duchess of Orleans' case. PROBATE AND ADMINISTRATION. 315 Chapter X. person who died domiciled abroad, generally follows the law of the domicil ; and usually also any decree pronounced by the forum domicilii in accordance with that law. But the foreign Foreign administration had been granted to a minor : Sir Cresswell don granted Cresswell said : — ' Is there any instance of the courts of this °™'"°''- * country, whilst following the law of the domicil, doing something 'contrary to their own law: e.g., as is now asked, granting ' administration to a minor, who cannot take upon himself the ' liabilities which the English law casts on administrators ? ' The principle apparently deducible from this case is therefore, Principle that the foreign probate wall not be followed in cases where the dedudWe^ English courts would, by granting an English probate, be proceed- cTs?.' ^ ing contrary to English law, and this is the marginal note in the reports; it will also be remembered that Sir J. P. Wylde considered the decision to be an instance of the unwillingness of the Probate Court to adopt the foreign grant. The case is really however confirmatory of the rule just given and in fact slightly extends it. First, if English administration had been granted to the minor — Jo^rfsiTered. the Comte de Paris — it would have been comparatively useless ; for, leaving out of the question the English law against the appointment of minors as administrators, he could not have bound himself by deed, had it been necessary. Secondly, what happened was merely a suspension of the grant to the count until he should attain his majority. According to the practice (that is of course the English practice), the only person whom a minor is entitled to elect is his next of kin. The Queen Dowager, his grandmother, was therefore the proper person for the court to elect to be his guardian for the purpose of taking adminis- tration on his behalf This course was afterwards taken, and Sir Cresswell Cresswell had no hesitation in granting administration to her. The real difficulty in the case is that the Comte de Paris was an Emancipated minor. emancipated minor. If, as we have said, the true rule is that majority is governed by the law of the domicil, it is difficult to see why the status of an emancipated minor is not also to be uni- versally recognised : this decision seems to limit, whether rightly or not we do not venture to say, the rule to actual minority and majority. The case seems also to conflict in all points with the decision Another goods 0/ ifi f/ie croods of the Countess Da Cunha. The will in that case had minor. Da Cunha. . I Hagg: been established in Portugal, and a judge administrator ap- Eccl: 237. pointed : the residuary legatee was a minor, but on her marriage i6 STATUS. her disabilities ceased, and the appointment was revoked ; lier Chapter X. husband was also a minor, but being married and holding a com- mission in the army, was by Portuguese law considered of full age, and legally authorised to do all acts as if of age. The property in England was money in consols, and the wife was entitled under her dotal contract to dividends only during her life : administration with the will annexed was granted to the wife, limited to the receipt of the dividends : the reason given for the grant was however, because ' no possible inconvenience could arise.' Need not have been technical grant of probate. Notarial certificate. Case where the grant was not followed. The nature of the proceedings abroad is perfectly immaterial : it is not essential that there should have been a technical grant of probate or administration. Thus in the goods of Dost Aly Khan, goods of the will was validly executed according to Persian law : and had 6 p. d. e! been, together with all the property, taken possession of by the Persian court having exclusive jurisdiction in matters of wills. This court had apportioned the property and had appointed to one of the sons money in the English funds, giving him a document under the hand and seal of the Judge. Neither the will nor a copy of it was allowed to be taken out of the court; but the document was proved to be sufficient in Persia to entitle the person to whom it was given to take all proceedings necessary to get possession of the property mentioned in it, and being properly verified, administration was granted limited to the property referred to. And in an earlier case, in the goods of Deshais, in which 2, goods of . . .- . . , . Deshais. notarial certificate of the will having -been accepted as valid by 4 s. & x. 13. a foreign court, was rejected; Sir J. P. Wylde said: — 'Show me 'any document that purports on the face of it to be equivalent to ' probate, any act of the foreign court the language of which ' conveys to my mind in any shape or form that the foreign court ' has adopted the document as a will, that will be sufficient. We ' do not require that the form of approval should be the same as 'our grant of probate. But a notarial certificate is nothing.' But in Price v. Dewhiirst the foreign grant was not followed. A Price v. husband and his wife were domiciled in England, but resided in s Sim: 279.' Denmark. They made a joint will according to Danish law ; but afterwards they both made sole wills : these were proved here, but probate of the joint will had already been obtained in the Executor's Court of Dealing in St. Croix. The decision of this court was ignored on the ground of interest of the judges \cf: p. 117 ante]. PROBATE AND ADMINISTRATION. 317 Chapter X. Hare v. Nasmyth, z Add: 25. De Bonneval De Bcnneval. I Curt: Eccl: 856. Enohin v. Wylie. 31 L. J: Ch: 402. goods of Bianchi. 3 S. & T. 16, Lynch v. Paraguay Gov. L. R. 2 P. & U. 263. If the proceedings abroad are only in progress, the Enghsh court if proceed- will suspend the suit here to wait for the decision of the court of progress the domicil, which it will afterwards follow. {Hare v. Nasmyth ; win he suspended. JJe Bon7ieval v. De Bonneval.) This doctrine has been carried further. If administration has already been granted in England to the person presumed to be entitled by the law of the domicil, and of course limited to the property in England, and afterwards administration is granted by a court of that domicil, the English grant should be revoked, and ^f^En^^lsh" a new grant made to the foreign administrator : Lord Westbury, C, gt'anto" ° " J 1 ^ subsequent in Enohin v. Wylie, treated this as the direct consequence of the rule fo^'gn . . . . . . grant. of the domicil : after enunciating the different bearings of that rule, he said, ' therefore, when the Probate Court was satisfied 'that the testator died domiciled in Russia, and that his will 'containing a general appointment of executors had been (as it ' was) duly authenticated by those executors in the proper court ' in Russia, it was the duty of the Probate Court in this country at ' once to have revoked the former letters of administration which 'had been granted, and to have clothed the Russian executors ' with ancillary letters of probate to have enabled them to get ' possession of that personalty which in fact though not in law ' was locally situate in England. The utmost confusion must 'arise, if, where a testator dies domiciled in one country, the ' courts of every other country in which he has personal property 'should assume the right, first, of declaring who is the personal 'representative, and next, of interpreting the will and distributing ' the personal estate situate within its jurisdiction according to that ' interpretation. There might be as many different personal repre- ' sentatives of the deceased, and as many varying interpretations ' of his will, as there are countries in which he is possessed of 'personal property. It was to prevent the evils that would result ' from this conflict of jurisdiction that the law of the domicil was ' introduced and adopted by civilised nations.' A somewhat similar point arose in the goods of Bianchi: a Sar- dinian settled in Brazil ; he died intestate on a voyage from Bahia to Genoa to resume his domicil there. The courts of Turin and Brazil had arranged that the Italian Government should have administration and guardianship. The English court revoked a grant of administration which had been made to the representative of the person entitled to it by Brazilian law [ante p. 309] and made a grant to the person entitled by Italian law. But in Lynch v. Provisional Government of Paraguay this ignored. 3l8 STATUS. Icf: principle was not acted on ; a decree subsequent to the testator's chapter X. ^^ '^^'" death declaring his property to belong to the nation of Paraguay was ignored on the ground that it was a penal decree : the probate was granted according to the general rule /ex domicilii at the time of death, the court intimating that the Provisional Govern- ment itself must enforce the decree against the executor. Nature of V^ Q. havc sccn that the person who is entitled by the foreign auxiliary 111 • i 1 1 r • •.■! 1 grant law, or who has been appointed by the foreign court, will be coverncd by itx/ori. entitled to some grant in England, but that the nature of the grant limitation?' dcpcuds on the lex fori. This rule is subject to another modifi- hicorporated. catioH. Any limitation of the power or of the appointment imposed either by the law of the domicil or of the court of the domicil, will be incorporated in the auxiliary appointment by the lex fori. Thus in the goods of Steigerwald, administration goods of was granted to a provisional executor, but limited for such a time lo jurTT^g! as the appointment by the proper court of the domicil remained unrescinded and in force. So in Laneuville v. Anderson a decree La,tc7tviiie V. Anderson. of a French court that the right of the executor appointed by the 30L. j: ^ . . . '- p. & M. 25. will had expired, and that the administration of the estate had devolved on the representatives, was followed, the English court granting administration with the will annexed to the representa- tives. And in Viesca v. U Aramburii^ where a Spaniard died Viesca v. domiciled in Spain, possessing funds in England. Pending a suit burj'^"'" in the court at Cadiz as to the validity of one of two wills a \^\: 277. judicial administrator was appointed with power to pay to certain people a moiety to which they should be entitled in any event, the other moiety to remain in deposit. Rogatory letters were directed to the court in England to enable the administrator to receive the funds here : administration was granted in the terms of the request : that is, it was limited in the same manner as the Spanish grant. In like manner limitations imposed by the testator will be followed : as in the goods of Winter, where different executors had been goods 0/ appointed for English and foreign property : the grant was made 30 l. J: , • , , r ^ ■ p. & M. 56. in accordance with the terms of the appointment. Probate of If ^ wiU has been proved abroad, probate of the codicils must codicils. i^g granted by the foreign court {in the goods of Miller) ; this cdiSe soods^ presumably proceeds on the same principles as Pechell v. Hilderlcy, ^P- d. i where a will was bad by both Italian and English law, but a HUderky. codicil was good by Italian law, and being good would by English p. & m. 673. law have validated the will : the court refused to mix up the laws of two countries, lest the result should be conformable to neither. PROBATE AND ADMINISTRATION. 319 Chapter X. It will be convenient now to consider the practical question of translations of foreign wills. The general rule is that the translation is made after the will Translations. has been brought into the registry, probate or administration being granted on the translation. But where the original will is in English and a translation of it has been proved abroad, Sir J. P. ^D%fn ^Vylde said in the goods of De Vigny, that there were two methods Two 4 s. & T. 15. of obtaining the English probate : Prove the original will valid by obtaining" the law of the domicil : then the original will and not the foreign ^''° ^^''' translation will receive probate here : or, prove the foreign probate of the translation, and administration will be granted here with re-translation of the will annexed. It must be confessed however that the second seems the better method, as being more consonant with the idea of the auxiliary probate : it was the course adopted goods of by the court in the goods of Rule, where a Spanish translation of Re-trans- 4 p.'b. 76. a will Avritten in English had been proved before the proper court in Mexico : the English grant was on a re-translation, and not on a certified copy of the original. The doctrine on which this rule goods 0/ depends was thus laid down in the goods of Petty : — The only 41' i5t. 529. document on which the English court can act is the document which was before the foreign court, and that must be re-translated after it has been brought into the registry here. In that case the court was asked to act on a translation of the document admitted to probate by the Brazilian courts, the documents being certified by the British vice-consul. goods 0/ An apparent exception to this rule was made in the goods of 361!. J: Clarke. The probate granted at Archangel consisted of the p. & M. original will, a Russian translation, and other official documents. The court was moved to allow probate to issue on a certified copy of the will. Sir J. P. Wylde said, ' If the executor had produced ' a copy of the document at Archangel, that is to say a copy of a ' copy, he would have had probate without difficulty : but he brings ' the original will ; there is a valid objection to leaving the original ' will in the registry because it forms part of the probate, and he ' asks to leave a certified copy of the will and of the probate ' attached to it.' The motion was granted. The foreign administrator, clothed with the auxiliary English Right to s grant, is of course entitled to sue creditors to the estate who are in England : possibly he might obtain leave to serve writs out of the jurisdiction under Order XI : but the question arises whether a foreign administrator may sue in England without applying for 320 STATUS. Probate probatc here. It is clear that to reduce any other assets into Chapter x. necessary to . . , . _, reduce assets possession, probatc IS ncccssary : thus in re Fernandez Executors a possession. Creditor of an English company which was being wound up in ^Fernandez England, died domiciled in India, from which country assets of fi^R^^j the company were remitted to the official liquidator. The debt ^'^■^''*" had been proved, and a dividend paid before the creditor's decease. It was held that the final dividend could not be paid to the executors on the Indian probate ; but that they must take out probate in this country. So in re Vallance, a donee, under a will, re Vaiiance. of a special power of appointment by will over proceeds of lease- 177. holds in England, died in New Zealand having duly exercised such power by his will which was made and duly proved in the colony. The fund being in court the appointee filed a petition for payment out : Pearson, J., held that the foreign probate was insufficient, and that an English probate must be produced. But such probate being granted, it would be the duty of the Court of Chancery to hand over any funds under its control (Lord West- bury, C, Enohin v. Jly/ie, followed in Eames v. Hacon), and in Enohinv. the case where there is an administration suit, the Court ofaiL. j: Chancery will follow the grant made by the Court of Probate. Eames\. If that grant has not been limited to English assets, the decree w^n^^'iSSo, for administration will not be limited either. But if anything has ^' ^°°' been done in a foreign court, ' those proceedings would of course, ' according to the comity of courts, be adopted, according to the 'necessities and exigencies of the case.' (Tames, L.J., Stirling- ^Ji'-iing- * . \J T J 1 a Maxwell V. Foreign Max7vell V. Cartwris[/it.) But m Whyte v. Rose it was held that Cartwyight. probate . . .'. .. .... ii Ch: D. unnecessary an administrator might sue in this country on a foreign debt on 522. to sue here „ ,. , , , , - . IVhyte v. for foreign an English grant alone, and that a loreign grant was unnecessary. Rose. debt. 7 • 7^ 7 1 • T-' 1 3 Q- B- 403. In Vanqiielin v. Bonard however a woman m v ranee became Vanqueiin donee of the universality of the succession of her deceased 33 \!!y. ' C P 78 husband, and thereby became entitled to all his property, claims " But not and causes of actions, and also personally liable to his creditors : perlonai the husband was liable on a bill of exchange as indorsee, the wife undertaken. P'^'^ the amount and took proceedings and recovered against the (./•p. 207.] acceptor. The Court [Erie, C.J., Williams and Keating, JJ.] held that she might sue on the judgment in her own name without taking out administration; and also, independently of the judgment, if the wife as such donee was capable of per- sonally enforcing the claim against the acceptor by French law, she might enforce it personally here without an English grant of _ ... . Talmage v. administration. Chapei. The first principle was acted on in Tali/iagc v. Chapel [Massa- Rep:^?.' PROBATE AND ADMINISTRATION. 321 Macnichol v Macnichol. L. R. ig Eq:8i. Chapter X, chusetts], and by Malins, V.C., in Macnichol v. Macnichol, re Macnichol, in which case there had also been a judgment obtained abroad by the foreign administrator of a creditor against an Enghsh debtor who had since died. The Vice-Chancellor held that the administrator having established the debt was in the position of a creditor here and could prove against the estate without taking out an English administration. The reason for this is simple, the duty of an administrator is to reduce the assets of the estate into possession, and this has been done by means of the suit and judgment : qua administrator his duty to the estate with reference to that particular debt is at an end, because the debt is reduced into possession, and the estate has become a judgment creditor. But the second principle is not so simple : the court was of opinion that the wife might sue even if she had recovered no judgment. This must evidently depend on the peculiar provision of the French law by which she became, not representative of the deceased in the ordinary sense of the word, that is to say, for the benefit of the estate, but representative for her own benefit, standing in her husband's shoes both as regards assets and liabilities. This is no authority however for saying that the administrator can sue on a debt owing in this country to the estate, without first becoming the personal representative here of the creditor. Preston v. Melville. 8C1:& F. I. Curling v. Thornton. 2 Add: 6. goods of Dormoy 3 Hagg: Eccl: 767. The question of the appointment of the administrator having The adminis- thus been fully considered, the decision in Preston v. Lord Melville thees'tate. follows as a matter of course : his appointment being for the purpose of administering the estate in this country, that estate must be administered in the country in which possession is taken of it under lawful authority. In that case the trustees and executors named in a will of a domiciled Scotchman declined to act : the next of kin obtained administration of the personalty here and then consented to the appointment of other trustees and executors by the Court of Session : these raised an action against the next of kin calling on them to transfer the personalty pos- sessed by them under the administration : the House of Lords, reversing the Court of Session, refused it. Lastly as to succession to personal property in England. Since the intestacy is governed by the law of the domicil ; and the appointment of the testator is in conformity with that law, whether declared by foreign decree or not ; it follows that the succession to the personalty is also governed by that law {Curli?tg v. Thorn fo?i). Thus in the goods of Dormoy, a domiciled Frenchman succession. 322 STATUS. appointed an executor but no residuary legatee : by French law Chapter X. the next of kin was entitled to the residue, and administration was granted to the son : and in the goods of Beggia, the Mahommedan ^Beggia. law was recognised, and the party specifically empowered to take ' ^^^' ^^°' on behalf of the Emperor of Morocco was held entitled to a grant of administration, in a case of intestacy of a domiciled subject of the Emperor residing here, to the exclusion of the relatives or the Crown. So in Doglioni v. Crispin^ where there had been a decree in the Dogiwniv. Portuguese court that a natural son of the deceased was entitled u^."' to the inheritance, the fact having been found that the father was ^' ^' '" ^°'' in that station of life in which, by the law of Portugal, such a succession was allowed : the claim of the son to be admitted as a contradictor of an alleged will was allowed in the English court. But although the property in this country will be distributed according to the law of the domicil, interest will be allowed to [c/: chapter the legatees according to the /ex fori, that being a question of ^'■^ procedure {Hamilton v. Dallas). Hamilton v. Rule as to It is Sufficient for our purpose thus to state the broad rule on 26 w. r. the subject of succession, as no fresh questions arise in connexion with it which touch on the subject of foreign judgments. We cannot do better by way of conclusion than to give the general principles enunciated by Lord Westbury, C, in Enohin v. Wylie, Enohinv. which form a resume of the whole question: — 'The duty oi ^^/^^.^'y. ' administering personalty here is to be discharged by the courts ^^' *°^' ' here, though in doing so they will be guided by the law of the * domicil. Administration of personalty belongs to the court of ' the country of the domicil at the time of death. All questions of ' testacy and intestacy belong to the judge of the domicil : it is the * right and duty of that judge to constitute the personal represen- * tative of the deceased. To the court of the domicil belong the ' interpretation and construction of the will of the testator. To ' determine who are the next of kin or heirs of the personal estate ' of the testator is the prerogative of the judge of the domicil. In ' short the court of the domicil is the forum concursus to which the ' legatees under the will are required to resort, or the parties ' entitled to distribution.' Some of the dicta of the learned Chancellor in the above case have been recently questioned by Lord Selborne, C, in Orr- Orr-Ewuig Ewing V. Orr-Etving. It does not seem certain that Lord West- Orr-Ewing. bury intended to say that administration of personalty belonged 34. solely to the court of the domicil ; but that it certainly did form PROBATE AND ADMINISTRATION. 323 Chapter X. part of its duty. The recent decision of the House of Lords intro- Decree for duces a modification of the rule : where a deceased person is Tion may'be possessed of personalty in two or more countries, in all or any of S>umry^in"^ which, in order to entitle them to deal with the property there, wiirhasbten the original judicial sanction (whether that sanction take the form ^''°''^'^" of probate or confirmation, or any other form) has been brought before the court of another country by the executors, administra- tors or trustees, to receive the auxiliary sanction according to the law of that country (whether that auxiliary sanction take the form of re-sealing, or any other form), then either country has the power, on the application of a person entitled to it, to make a decree for administration: the questions of convenience, and k/- chapter pending suits, being of course considered. The decision was "'^ rested on the ground, which we have already discussed, that the court can order anybody within its jurisdiction to do anything it thinks right. In the case half the trustees were in England, but the other half had been served in Scotland and had appeared : whether, in the case of all the trustees being served abroad, the court could still exercise this personal jurisdiction seems hardly to have been decided : that case however somewhat resembles the «/•• point raised in ex parte Robertson noticed on pages 86 and xxz, Robertson. ^ ° ^^-^ L. R. 20 Ex: 740. From wills of personalty we pass now to wills of realty, which must be noticed shortly. The general rule may be thus stated : the /^.r ^^w/V//// disappears, wiiisof and its place is taken by the lex loci rei sites ; in other words the '^^^''^' rule that realty is governed by the law of the country in which it is situate, extends to wills made by foreign owners of such realty even if residing abroad. The reason is simple, for the will itself is the conveyance of the property. Therefore, if the deceased dies intestate, the succession to the realty is governed by the lex loci rei sitce : the construction of the will, if he dies testate, will be governed by the rules of construction of that country : the validity of the will must depend on whether the forms and solemnities required by the law of that country have been complied with : the capacity or incapacity of the foreigner to make the will is to be judged of in the same way as if he were a subject of the country. The lex domicilii however must still govern the fact on which the capacity or incapacity depends. For example if by the law of the country where the realty is situate, a minor cannot make a will devising such realty, a foreigner, a minor, will not be allowed to make such a will ; but the fact whether he is a minor or of full ao-e must as before depend on the law of his domicil. 324 STATUS. The opinions of the jurists on this subject have been collected Chapter X. by Story [Conflict of Laws, §§ 474-478]. vvestiake. Westlakc [International Law, 2nd ed : § 160] advocates a more lenient view. He says ' No general rule can be laid down for the ' construction of contracts, wills, or other dispositions concerning ' immoveables. A stringent rule of construction existing by the 'lex situs of the immoveables concerned, will of course prevent ' any instrument from affecting the immoveables except in accord- ' ance with it, but, otherwise, a reasonable regard must be had to ' all the circumstances, including the loc2is contractus or actus, and ' the national character or domicil of the parties, testator, or other 'disponer.' 325 Chapter X. BANKRUPTCY. Lastly, we must consider what respect will be paid to the Bankruptcy, bankruptcy proceedings of another country. Proceedings in bankruptcy consist of two parts, — the adjudica- tion, and the discharge : — And as the Court of Bankruptcy makes an order at each of these stages, both the adjudging the person to be bankrupt, and the final discharge from his debts and obligations may be considered, for the purpose of this treatise, strictly as judgments of the court. The international effect of bankruptcy will therefore be con- Division of the subject. sidered under the following heads : — i. The adjudication and assignment. a. the effect of a foreign adjudication in England. p. the effect of an English adjudication abroad, ii. Concurrent bankruptcy proceedings, including the bankruptcy of partners, iii. The final discharge, and its effect on the bankrupt's obliga- tion. a. where the discharge is by the courts of the country of the contract. p. where the discharge is by the courts of any other country, and lastly iv. the status of the bankrupt. i. The Adjudication and Assignment. a. The effect of a foreign adjudication in England. The subject of bankruptcy involves two questions of status : the The . questions adjudication, that of the person made bankrupt : the assignment, of status that of the person appointed to collect and distribute the estate for the benefit of the creditors. And we have as before to consider two points, first, what country has a right to adjudicate a person bankrupt and appoint an assignee ; secondly, is the status of the assignee recognised beyond the jurisdiction in which he was appointed : in other words, is all the bankrupt's property wherever situate universally considered as vested in the assignee ; ;26 STATUS. Is the status of assignee recognised beyond the country where appointed? Peculiar right given by foreign are all the creditors bound to prove their claims in the foreign Chapter X. bankruptcy, or is a fresh adjudication and auxiliary assignment necessary in this country? It will be convenient to take the second point first, as the cases throw some light on the question of jurisdiction. In SolomoJis v. Ross, there was a bankruptcy in Holland, and the Solomons v. , Ross. Chamber of Desolate Estates appomted a curator to manage thciH. bi: estate : the defendant had attached moneys due to the bankrupt '■"'" in England and obtained judgment by default on the attachments : in satisfaction of the judgment he took the plaintiff's note for the amount at one month : a few days afterwards a bill was filed by the curators to pay the amount to them and to restrain the payment under the judgment. On an interpleader by the debtor, the money was ordered to be paid to the curators and the injunction was granted. In Jolletw. Deponthieu, under almost the same circumstances, joiutx. ,„,., ,. .,^ ,. ., Deponthiiu the English creditor was restrained from proceeding with an i h. bi: attachment ; and in Neale v. Cottinghain, money already received Weak v. was ordered to be paid to the foreign curator. i H.'&i: Lord Loughborough, C.J., in the argument in Folliott v. Ogden ^fIuwh^. said that these cases were decided solely on the principle that the ^/4.'.\\: assignment of the bankrupt's effects to the curators in Holland '^*' was an assignment for valuable consideration, and therefore acknow- ledged in this country. And the principle was approved by the majority of the Court in Phillips v. Hunter : — ' Lord Hardwick p/tiUi/>s v. ' plainly considered each creditor as bound by the assignment, and 2 h. bi: ' the money recovered here as referable to Holland, the country of ' the debtor ; ' and again by Lord Loughborough in Sill v. Wars- sm v. • • r % r ^ • 11 Worswick wick : — ' The determinations of the courts of this country have been i h. bu ' uniform to admit the title of foreign assignees.' In the cases ^' just cited 'the Court of Chancery held that the curators had ' immediately on their appointment a title to recover the debts ' due to the insolvent in this country in preference to the diligence ' of the particular creditor seeking to attach those debts.' In Brickwood v. Miller, one of the partners of a West India BrUkwood V. Miller. firm resided in London and became bankrupt. A creditor both of 3 Mer: 279. the firm and of the partner attached property in the West Indies : he was held entitled to retain the money he had received to the extent of satisfying his joint debts, but to be accountable to the assignees for the overplus. On the same principle, any special or peculiar right which may be given by the foreign law to the trustees will be recognised in BANKRUPTCY. 32/ Chapter X. this country. As in Alivon v. Fitniival, where the right of two out law to ' 111 11 1 trustee of three syndics to sue under a French bankruptcy was allowed, recognised. 'purnivai. ^^ ^ HOW copic to morc rccent cases. E^/2^1. I'"^ ^'^ Blithman, one Henwood was entitled to personalty in L K'^fE""' I^ngland subject to his mother's life interest in it : he went to ="3- reside in Australia and became bankrupt : after this insolvency his mother died, and before he had obtained his discharge he also died. The trustee under the will paid the money into court ; on a petition by his widow as executrix for payment out of court, the question was raised whether the Australian assignees had not the better title. Lord Romilly, M.R., said that the question was one purely of domicil, that if Henwood were domiciled in Australia ' at * the time ' (presumably at the time of the commencement of the bankruptcy proceedings), then the property would pass to the assignees, but that if he were not, then it would pass to his legal personal representative. He tlierefore directed the question of domicil to be inquired into. It was argued that even if the domicil were not Australian, as there had been an insolvency abroad, it was equivalent to a foreign judgment, and the court would by comity give effect to it, irre- spective of the question of domicil. To this argument the learned Master of the Rolls said he was disposed to assent ; but not so as to give effect to it in the way asked by the assignees :— ' I think ^^oct^ine^^ ' that the legal personal representative must receive the fund in the \^y^i^o,niiiy, 'first instance, and that the assignees can only obtain payment ' here by suing for the amount. If a person domiciled in England 'had in his life contracted debts abroad, for which a foreign 'judgment had been obtained, the judgment creditor might sue ' the legal personal representative in this country for the purpose ' of recovering upon that judgment. Various questions may ' thereupon arise. He is not entitled to take away the whole of ' the funds, but questions of priority, questions of other judgments, ' and other considerations may arise : they may be entided to be ' ^dXd. pari passu, or the executors may be entitled to contest the 'foreign judgment or the like.' It is exceedingly difficult to understand this decision, for it will be noticed that it does not go the length of holding that the court of the domicil is the only one competent to adjudicate a person bankrupt : it indeed expressly says that the status of the assignee will be recognised if he sue the personal representative for the fund, but that this course must be adopted if he has not been appointed by the court of the bank- rupt's domicil. 328 STATUS. Not Now the facts in re Davidson's Settlements were precisely similar. Chapter X. yiulu^s^L.J. There was a fund in court to which the deceased bankrupt was entitled, a power of appointment under a will not having been ''Davidson's exercised ; the petition for payment out was filed by the assignee i'; ^'"l" ^' of the bankruptcy in Queensland. It was opposed by the widow ^^'1=383- as personal representative. James, L.J., held that the question of domicil was perfectly immaterial ; that the facts of there having been an adjudication in insolvency in Queensland, and of there being debts proved in the insolvency still unsatisfied, rendered it necessary that a sum of money paid into Chancery in England to the credit of the insolvent should be applied towards payment of the debts proved in Australia, in priority to any claim by an English administrator, and therefore that neither the representative nor the next of kin were entitled to come in unless there were a surplus. ' I may add,' he said, ' that it would be impossible to ' carry on the business of the world, if courts refused to act upon ' what had been done by other courts of competent jurisdiction.' He refused to consider the decision in re Blit/wian, but that case reBUthman was in effect overruled. Eq: 23? Conclusions. The conclusious may be stated to be, that if during the course EfTect of of English proceedings affecting personal property, notice is given foreign that the owncr of the property has been adjudicated bankrupt by durin^g pro^ a forcigtt court, the English court will recognise, and if requested, Engiafd.'" will give effect to the foreign adjudication, by staying the English proceedings; and in a suit by the foreign trustees, by ordering the property to be handed over for the benefit of the creditors under the foreign insolvency : — After And that, even if the English proceedings have terminated, and urmtnate^ the property has been attached in ignorance of the insolvency abroad, yet that insolvency will be recognised, and effect will be given to it in an action by the trustees against the attaching creditor, on the foreign order of insolvency as on a foreign judgment. Rule applies This principle must be taken to apply to personal property sonaity. alouc : as regards realty, the rule that it must be governed by the As to realty. /^.^. ig^j ^g^ ^^y^ jg pf universal application, and it cannot therefore be considered to pass to the assignees under an adjudication of a foreign court, even though the laws of the foreign state should assume to vest such property in the persons appointed to collect the bankrupt's estate — as would appear to be the case under the 44th section of the English Bankruptcy Act, 1883 — (46 & 47 Vic: c. 52). BANKRUPTCY. 329 Chapter X. \Vhere jurisdiction in bankruptcy has been assumed by the Assumed foreign court, it is presumed that the question must be considered in the same manner as assumed jurisdiction in other cases. Both in re Blithinan, and re Davidson's Settlements, the Colonial Act under which the bankruptcy proceedings had been taken, vested all the property of the insolvent in the assignee, that is, all the property within or without the jurisdiction. This indeed is the universal rule and may be said now to be an admitted rule of International law. The English jurisdiction in bankruptcy is now for the first time 46 & 47 v. settled; by condition (a) of section 6 (i) of the new Act of 1883, s.ea) (a) it is provided that a creditor shall not be entitled to present a ru"f of bankruptcy petition against a debtor, unless jurisdiction. The debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling- house or place of business in England. We have already noticed that the words 'domicil or usual residence' have also been introduced for the first time in Order XL, by the New Rules of 1883; for the purposes of jurisdiction the word [c/.- p. 136.] domicil is acquiring in English law a much wider construction than was ever applied to it before. The acts done out of the jurisdiction which constitute acts of 5.4(1) bankruptcy are defined by section 4(1): they are as follow : — bankruptcy out of {a) If in England or elsewhere he makes a conveyance or assignment of J""sdiction. his property to a trustee or trustees for the benefit of his creditors generally : (b) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or of any part thereof : (c) If in England or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt. {d) If with intent to defeat or delay his creditors he does any of the following things, namely, departs out of England, or being out of England remains out of England, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house. It will be noticed that section 6 (i) (a) uses the words 'within Bankruptcy ' a year before the presentation of the petition has ordinarily usimily""^ 'resided, or had a dwelling-house, or place of business in England.' Ibroad^ ^^.' . The resumption of residence abroad may perhaps be now attended L. R. 8 with unpleasant consequences : it remains to be seen how far ^^/'- the case ex parte Crispin, re Crispin is now applicable. re Trench. In ex fiavte Brandoti, re Tf-ench, a domiciled Englishman went 25 Ch: ^ ' ' ° . D. 500. to reside permanently m France. For the purpose of carrying on 330 STATUS. r. 148. Service of petition out of jurisdic- tion. Debtor's summons. a business he afterwards came to reside for a considerable period Chapter X. in England ; on that business failing, and having incurred some debts in connection with it, he returned to his house in France, which he had let during his English residence, thinking 'if he kept 'abroad he might be able to settle them more easily.' The Court of Appeal held that as he was remaining abroad at his own per- manent residence, no intent to defeat or delay his creditors could be imputed to him. Rule 148. Where a debtor petitioned against is not in England, the court may order service to be made within such time and in such manner and form as it shall think fit. The common law rule as to actions brought by foreigners applies to debtors' summonses : that is to say, a foreigner may take out a debtor's summons against another foreigner who happens to be in England in respect of a debt contracted abroad. cx/>: Pascal (ex parte Pascal, re Meyer). 509- Winding up of foreign companies conducting business here. With regard to the jurisdiction of the English court in the wind- ing up of foreign companies, the general rule is that although the locale of the company be abroad, yet if its affairs are in any way conducted in this country, the court will, if necessary, make an order, {re Madrid and Valencia Ry:. re Factage Farisien. re Commercial Bank of India.) A company may be registered in England, if some kind of management or business is contemplated here : but even if after registration no business has ever been carried on here, still the court has jurisdiction to order the company to be wound up, although all the shareholders are foreigners. Lord Justice Giffard said, ' It is said that although I make this ' order, recourse to the foreign courts will probably be necessary. ' But according to all the principles of international law the foreign ' courts will recognise this winding up, and will aid in carrying out ' any directions that may be given under it. {re Getieral Land Credit Co.; affirmed the House of Lords, stib no in: Feussv. Bos.) In re the Union Bank of Calcutta the company was Indian, but it had correspondents in this country. An important modification of the rule was laid down : Although the court has jurisdiction, that does not render it necessary for it to act, ' if it is not shewn ' that there exists in this country means of doing substantial justice, ' or more good than harm by so interfering.' If the company is foreign, its formal incorporation by the re Madrid Ry: 3 De G. & S. 127. re Factage Pari si en. 34 L.J: Ch: 140. re Bk: of India. L. R. 6 Eq:5i7. re General Land Co: L. R. 5 Ch: 363- Reuss V. Bos. L. R. 5 E. & I. 176. re Bk: of Calcutta. 3 De G. & S 253- BANKRUPTCY. 33 1 Chapter X. foreign law must be shewn : otherwise it cannot be considered to have any existence {t-e Imperial Anglo-German Bank.) German Bi- ^hc bankruptcy rule as to foreign creditors who have recovered ^ro'rl-niat ^^Pphcs to winding up. Thus in re Oriental Co:, ex parte Scinde p-j^ Ry:, a foreign company was being wound up : judgment had been Ch: 557. obtained in India by some of the creditors who had proved under the winding up : they were not allowed to attach property in India belonging to the company. /?. The effect of an English adjudication abroad. On the preliminary and simple question, whether the appoint- Effect of ment of the English assignee will be recognised abroad, so as to adjudication entitle him to recover debts due to the bankrupt's estate, there is story. ' no doubt that in almost every country his title will be so re- '*°'' '*°^' cognised. We believe there is now scarcely an exception to the rule. ' If the bankrupt happens to have property which lies out of the 'jurisdiction of the law of England ; if the country in which it lies 'proceeds according to the principles of well-regulated justice, ' there is no doubt but that it will give effect to the title of the 'assignees' (Lord Loughborough, C.J., Sill v. IVorswick.) See LeChevaikr also Le Chcvalier v. Lynch, in which case Lord Mansfield said : — V. Lynch. I Dougi: ' If a bankrupt has money owing to him out of England, the 1 70. ' assignment under the bankrupt laws so far vests the right to the ' money in the assignees, that the debtor shall be answerable ' to them and shall not turn them round by saying he is only ej:/>: Blake. ' accountable to the bankrupt ' ; and ex parte Blake, in which it 398. ' appeared that the American courts had not recognised an English assignment ; Lord Thurlow said : — ' I had no idea of any country 'refusing to take notice of the rights of assignees under our laws : 'and I believe every country on earth would do it' But where, either without regard to, or in ignorance of the Judgment ° ' ° abroad English assignment, there has been a judgment by attachment without . JO J regard to, or given abroad, great complications arise : and the form of the in ignorance of, English enquiry in reality is : — What respect is to be paid to the foreign assignment. . J ^ . What respect judgment under such circumstances ? to be paid If intimation of the English bankruptcy is given to the foreign court, it ought, as we have seen, to respect it, and not allow the suing creditor to attach the property : — But if, although intimation is given, yet the foreign court disregards it and the attaching creditor recovers, both Story and Westlake are agreed that the story. English courts will abide by the foreign decision ; ' if the local ^ ^°^' 332 STATUS. ' laws (however incorrectly on principle) confer on him an absolute Chapter X. ' title ' : — ' Although,' adds Story, ' it should be disregarded.' Nationality This agrees with the general theory of foreign judgments : But o partj. YiQT^Q r^ distinction is drawn dependent upon the nationality of the party who has recovered under the foreign judgment. Where the If thc Creditor be an Englishman, he will be held to have recovered rccoverod to the use of the assignees. If he be a foreigner he will Englishman, not be held to have recovered to their use. beuveen The principle upon which this distinction rests seems to be that foreign ^^ the English creditor should have, and perhaps has, proved under creditor. ^^^ English commission : — The object of his suit in the foreign court is therefore to obtain an unfair advantage, which the English courts, proceeding on the principle of equality among the credi- tors, will not allow him to retain. But the case of the foreign creditor is different : In seeking to attach the property, he is only pursuing his legal remedy ; and not being subject to the English laws, he does not endeavour thereby to avoid any obligation under them. He may indeed prove under the English commission ; but, as we shall see, he will be compelled, if he does so, to bring into the general fund any money he may have already recovered. Before considering the cases, it will be necessary to carry the doctrine one step further : Notice It is immaterial, in the case of an English creditor, whether the iirra^'seT' trustees gave notice of their claim to the foreign court, or not :— Englishman. ^^^ ^^ question of notice cannot affect the motives of the creditor in attaching the property by the aid of the foreign court. The leading cases with regard to the English creditor are Sill siiiv. V. Worsiuick and Phillips v. Hunter [on appeal from the case sub ^ H?^Bh ' nom : Hunter v. Potts\ The doctrine was also acted upon in ^pluups v. ^ . . . T-, 1 ■ Hunter. Ireland m re Robinson. 2 h. bi: Rule in In Sill V. Worszoick, the rule was laid down that if, after an act ^^;„^^^^. wir^kk. of bankruptcy, but before an assignment, a creditor attaches a Pf\ ^g^ debt in England, and receives, after the assignment, money due to ;^ f^f^';;^"" the bankrupt abroad, the assignees might recover the money in an Rep: 385. action for money had and received. Lord Loughborough, C.J., said ' if the assignees had sent a person to St. Christopher's to act ' for them, if they had given notice of the assignment the court in ' the island ought unquestionably to have preferred the title of the ' assignees to the title of the creditor using the process of attach- 'ment, because the law of the country to which the creditor 'making the demand was subject had on a just consideration ' vested that property in them.' BANKRUPTCY. 333 Macintosh V. Ogih'ie. cit: 4 T. R 191. Chapter X. In Phillips v. Himter the majority of the Court [Macdonald, C.B., Thompson, Perryn, Hotham, BB : Rooke, Heath, JJ :] held that, with or without notice by the assignees, an Enghsh creditor, having recovered money by process of attachment in a foreign country, received it to the use of the EngUsh assignees. Eyre, C.J., however dissented, treating the question on the general principles of the recognition of foreign judgments, and refusing to take into consideration the fact that the judgment had been obtained in contravention of the English laws. But this principle has always been recognised, and to such an extent that in Macin- tosh V. Ogilvie, ' Lord Hardwicke, by a writ of tie exeat prevented ' the creditor from going to sue in Scotland after the bankruptcy. ' By giving this preventative remedy against an unconscien- ' tious preference, which one creditor might have obtained over ' the others, his Lordship must be understood to say that the ' creditor was bound, as far as the circumstances would enable ' him to apply them, by the bankrupt laws of his country ; and ' had that creditor effectuated his payments in Scotland, it would ' seem that his Lordship, in order to be consistent, would have ' obliged him to have accounted with the assignees if the fund had 'been brought within his jurisdiction.' (Majority of the Court — Phillips V. Hunter.) Lord Chief Justice Eyre however ridiculed the proposition that a British subject shall not be allowed to contravene a British Act of Parliament : — 'It is a specious and very splendid proposition, he said, ' but it is not solid ; and if it were solid, it concludes 'nothing towards the support of this action. As a proposition in ' ethics, I have no objection to it ; but considered as a proposi- ' tion of law, it is too general, concluding, as I have before 'observed, in nothing.' 'It was well said in the argument, you ' admit an American might in this case have pursued his legal ' diligence in the courts of his own country, notwithstanding our ' bankrupt laws, and that you could not have taken from him the ' money recovered, and given it to the assignees : Will you then 'compel a British subject to sit still and see the foreigner exhaust ' that fund, which might have satisfied his debt and so far relieved ' the fund for the creditors at home ? I have heard no answer to 'that question.' The answer must evidently be yes : because all rights of persons who can prove in the bankruptcy are vested in the assignee, as well as all the debtor's rights : he represents both the debtor and the creditors : it is therefore his duty to get possession of the Phillips V HiiJiter. 2H. Bl: 402. Majority of the Court in Phillifis V. Hunter. Eyre, C.J., dissenting. 334 STATUS. money in question as soon as possible ; if he is guilty of negligence Chapter X. the creditors have their remedy against him. The It must however be noticed that the majority of the court n"ot1nreIiity declared that the judgment was not disregarded, but rather re- isregarded. g^j-dcdj for sincc the money recovered, if retained by the plaintiff, would be in contravention of an Act of Parliament, and the recovery therefore must be taken to be for the use of the assignees, yet the judgment was still final and conclusive betioeeii the parties: — 'In an action for money had and received, the ' receipt shall be always deemed to enure to the use of him who 'hath the right, even though it be taken in an adverse title.' To this Eyre, C.J., replied, that, ' upon a judgment recovered and ' executed, which for the sake of argument I suppose ought not to ' have been recovered, an action for money had and received ' will not lie for anybody, not even for the person against whom ' the judgment has been so unjustly recovered.' Judgment But witli regard to a foreigner, as we have said, the rule is rforetgner.^ different. He will not be held to have recovered to the use of the trustees. And this whether there has been notice or not. Westlake thinks however that he would be so held ; but Story does not distinguish a recovery by a foreigner without notice, from a recovery with notice, in which case, it will be remembered, the foreign judgment will be respected. Eyre, C.J., in Phillips \. Phuiipsy. Himter did not approve of the principle that the foreigner should 2 h. El- be held to have recovered to the use of the trustees ; and Lord '''^^' Loughborough, C J., in Sill v, Worswick, expressly said, 'I do 5/// v. ' not wish to have it understood that it follows as a consequence , hT^bi^ ' ' from the opinion I am now giving (I rather think the contrary ^^^' ' would be the consequence of the reasoning I am now using) that ' a creditor in the foreign country, not subject to our bankrupt ' laws, nor affected by them, obtaining payment of his debt and ' afterwards coming over to this country would be liable to refund ' that debt. If he had recovered in an adverse suit with the ' assignees, he would clearly not be liable.' Division of First let us consider what would result from the English trustee conitder^-"^ going abroad or commencing an action abroad to recover the a.°Engiish debt : He finds it has been already recovered by a foreign creditor abroad.^°'°^ before notice could have been given : as to the preliminary question, the right of the trustee to sue simply, we find, as we have said, an almost universal rule of recognition being accorded to his title : but in this more complicated case it cannot be said with the same, certainty that his title would be recognised to such an extent that BANKRUPTCY. 335 Chapter X, the creditor would be compelled to refund to the trustees; it is possible that the trustee might succeed, but the question must evidently depend on the current of the decisions of the foreign courts, and these must of course vary in each country : the policy of absolute equality among unsecured creditors may not be the policy of the laws of the foreign country. The doctrine of complete recognition of foreign assignees which, as we have seen, prevails in England, does also prevail in some countries : the most remark- able instance of it is to be found in the Italian case, Hoffman Hoffmanw V. Mack [sec p. 484], in which an attachment by an Italian creditor J. D. I. p. was set aside on the application of the English trustee, the creditor I 79, p- 77- j^gjj^g ggj^i- (-Q prove in the English bankruptcy. But that is a very different thing from an exercise of jurisdiction over the foreign creditor by the English court ; and therefore when we come next to consider what would be the effect of the foreign creditor, j,. Fpreign who has recovered abroad without notice, coming into this coming'^to country, there can be no other answer but that the court can have ff"e1-'^"'' no jurisdiction to interfere : For when the English creditor sues '■^'^°''^'y- pending a bankruptcy, the law presumes him to sue as trustee for the other creditors, wherever the action may be brought : but this presumption cannot be raised in the case of a foreign creditor who does not choose to prove under the English commission. The whole question therefore is one which must be left to the foreign court : and indeed the question of notice seems perfectly immaterial. It must be remembered that it is perfectly optional whether the Forejgner foreigner proves his debt under the English bankruptcy; but the must bring circumstances are altered if he desires to come under the English recdv^cr"^^ commission ; he must then bring into the common fund any money that he may have already received abroad [see ante p. 86]. And Vice-Chancellor Malins carried this principle further. In ex parte ex/>: Robertson, re Morton, he held that a foreigner, although residing \^.^!lT' out of the jurisdiction, having proved a debt in the bankruptcy, -q : 733- brought himself within the jurisdiction of the court just as if he were residing in it ; he therefore made an order on him to restore property of the bankrupt improperly in his possession. Shortly, the conclusions from the two parts of this section of the subject are as follow : An English creditor having recovered a debt abroad against a English person who has been declared insolvent in England, with or with- "^^'^o""- out notice, will be held to have recovered to the use of the trustee. 33^ STATUS. Foreign creditor. IVestlake. An English creditor having recovered a debt in the English chapter X. courts against a person who has been declared insolvent by a foreign court, and of which insolvency no notice has been given, will be held liable to refund at the suit of the foreign trustee. A foreign creditor having recovered abroad will not be held by the English courts to have recovered to the use of the English trustee, unless he afterwards prove in the bankruptcy : but in many countries he will be held to have so recovered by the foreign court. The paragraph from Westlake, to which we referred above, is as follows : — 4. And lastly, we may probably add that if no intimation was given pre- vious to the completion of the recovery by attachment, the same presump- tion— (that the money was recovered to the use of the assignees) — will be raised, and the creditor, zvhether foreign or English, compelled to refund, although the law of the place of attachment might refuse efficacy to such intimation even if given pendente lite. [At least no enquiry seems to have been made about the law of the place of attachment in Hunter v. Potts, Sill v. Wors-wick, or Phillips v. Hunter ; and the distinctions there suggested on the creditor's nationality refer only to the case of an intimation actually given.] Hunter v. Potts. 4 T. R. 182. Sill V. IVorszvick. 1 H. HI: 665. Phillips V. Hunter. 2 H. Bl: 402. Administra- Priorities in the administration of the assets, being a pure ques- %%^,„.,,^^ b°"«Vbrf ' tion of procedure, must depend on the lex fori, in the same way l.^R.^6 as the distribution of an estate by an administrator {ex parte Mel- '^f^fj'fl!^^- bourjie, re Melbourne ; Thorhurn v. Stetvard). L. R. 3 p. c. 478. Possibility of concurrent bankruptcy proceedings existing. Most frequently arises in bankruptcies of firms. ii. Concurrent Bankruptcy Proceedings. We have already, in the chapter on Injunctions [pp : 83 et seq-\ discussed the power of the English court to restrain actions com- menced abroad pending or commenced during bankruptcy pro- ceedings in this country : it is evident however, the power to make a person bankrupt depending on his carrying on business in the country rather than on actual personal residence therein, that there may be concurrent bankruptcy proceedings in two or more different countries. The question of course arises most frequently in the case of firms carrying on business in several countries. As it is within the strict right of each country to allow bank- ruptcy proceedings to be commenced, so it must be beyond the power of either country to take any steps towards stopping or delaying the progress of the proceedings in the other country. BANKRUPTCY. 337 Holmes v, Reinsen. 4 Johns: Ch : 460. Chapter X. What steps are to be taken to prevent the inevitable confusion must therefore be left to the discretion of the courts in the two countries. But, as we have already seen when considering the effect of the adjudication and assignment, the title of a foreign assignee will be recognised so as to enable him to bring actions for the purpose of getting in debts owing to the bankrupt's estate ; so too we have seen that creditors of the estate will be sent by their own courts to prove in the foreign bankruptcy, although this doctrine is not so universally adopted as the former one : the question therefore takes this form, will these rules be altered in any way by the fact that there are bankruptcy proceedings pending in the country in which the assignee sues or the creditor proves ? There are to be found cases in which the simple rule of priority is laid The rule of down ; that is to say, the court which has, rightly according to the ^"°" ^' jurisdiction given to it by its own law, first issued a bankruptcy commission, will be allowed to continue and to conclude the winding-up of the whole estate. This indeed is the only logical conclusion which can be drawn from the rules, and it is supported by the weight of Mr Chancellor Kent's authority in Holmes v. Remsen [New York] : — ' There would be great inconvenience in Kent. 'allowing co-existing commissions upon a bankrupt's estate to ' have concurrent operation simul et simul in different countries, ' unless the one that is subsequent in point of time be used merely * as the means of assisting the distribution of the funds under the 'other. It would be in the power of the bankrupt to throw his 'property under the distribution of either commission at his ' pleasure ; and it would put creditors upon calculations of ex- ' elusive advantages, and of running a race of diligence against 'each other, and of resorting to the one fund or the other as ' circumstances might dictate. The perplexities arising from the ' concurrent operation of distinct commissions would be increased, ' if the commercial house had establishments in different countries, ' with joint and separate debts belonging to each firm to be distri- ' buted. Such a state of things, and such conflicting systems would ' lead to great inconvenience and confusion, and be a source of 'fraud and injustice, and disturb the quality and equity of any 'bankrupt system.' In ex parte McCitlloch, re McCulloch, the question was thus English dealt with. A petition had been presented in England ; but before it could be heard, the trader obtained an adjudication against himself in Ireland. The Court of Appeal decided that there must be an adjudication in England for what it would be z exp: McCidloch.. re McCnlloch 14 Ch: D. 716. 338 STATUS. worth. ' After the adjudication, and when the matter has been chapter X. ' further investigated and the facts ascertained either in this court ' or in Ireland, one of the two courts may come to the conclusion ' that it is better that the proceedings on one of the petitions ' should be stayed, and possibly that one of the adjudications ' be annulled.' (James, L.J.) In ex parte Robinson, re Robinson, the Court of Appeal [Jessel, ^A^. M.R., Baggallay, Lindley, LL.J.] held that although there is juris- ^ '^''"'^g'"'- diction to make an adjudication of bankruptcy, notwithstanding p- 34- the existence of an unclosed foreign bankruptcy against the debtor in which he has not obtained a discharge, yet the court has a discretion in the matter, and will decline to make an adjudi- cation if it does not appear that the debtor has any assets in England, or that he has any debts contracted since the commence- ment of the foreign bankruptcy. The Master of the Rolls held further that prima facie the existence of the foreign bankruptcy would be a reason for declining to make an adjudication. Where joint So far we have considered only concurrent commissions of commissions^ equal degree ; that is to say, concurrent joint or concurrent cu^ent. separate commissions. The question however may be further complicated in the case of the bankruptcy of a firm, by there being a joint commission in one country, and a separate com- mission against one of the partners in another. In ex parte Cridland, a joint commission of bankruptcy here exp: was not superseded on the ground of a separate commission against 3 V. & B.94. one of the partners proceeding in Ireland. The point was discussed but not decided by the Privy Council in Lyall v. Jar dine. Lord Cairns, C, said, 'Their lordships are Lyaiiw. ' not satisfied that the circumstance, that before the proceedings in u^'!^' ' bankruptcy were taken at Hong Kong there had been a London ^' ^^ ^'^' * bankruptcy of Mr Lyall alone, would necessarily have prevented, ' or ought properly to have prevented, the adjudication against the ' firm in the colony.' The case therefore is very different from the former one ; in that, the fact of a commission already issued was shewn to be Q.primd facie reason for a refusal to grant a second adjudication : in this, '^^^ ■ that reason does not exist : the existence of a joint commission questions ' •' between the (jQgg ^ot warrant a refusal to grant a separate commission, and vice assignees ° -^ . should be itersa. Questions however would then arise ' between the assignees according to ' under the two bankruptcies as to what were their relative rights the rule of . . . priority. <■ of property ' ; and the determmation of these questions seems to BANKRUPTCY. 339 Chapter X. l>c furnished (in the absence of authority) by the rule of priority, so that in this respect this case resembles the former one. For example, if the joint commission has been first issued, we will suppose, abroad ; then the rights of the foreign trustees against the separate estate of the partners according to foreign law, would be respected, and the rights of the trustees under the English separate bank- ruptcy would be suspended until the former were satisfied. If the sej^arate commission abroad had issued first, then again the trustee under the English joint commission would be compelled to stand aside until the claims of the foreign trustee against the partnership assets (if any, and if prior to partnership claims by foreign law) had been dealt with. A still more complicated question is presented by the case of J^^int com- mission after »•« . re O Reardon ; there were two partners, one carrymg on the concurrent O'Reardon. ' . . separate L. R- 9 business in London, the other m Dublm : there was an adjudica- commissions, tion issued against the partner in England, and then one against the other partner in Ireland : there was afterwards a joint adjudi- cation in Ireland. There were a considerable number of joint creditors, and a large amount of joint assets in this country. The Lords Justices refused to interfere with the decision of the Registrar refusing to order these assets to be paid to the Irish assignees of the joint bankruptcy ; the effect of a joint adjudi- cation after a separate adjudication in the same country was discussed, and the ground of the decision was that the joint adjudication was in point of effect inoperative. If there are concurrent commissions the rules restraining double proof will of course be the same whether they are both joint, or both separate, or one separate and the other joint. exp: In ex parte Chevalier, re Vajizeller, there was a process of in- Restriction Chevalier, , , , . , ^ . . , . . . against rei^anzeiier. solvency abroad agamst the foreign nrm, and a commission against double proof. Ayr: 345. an English partner. The foreign firm had drawn bills on the partner who was trading on his own account in England, payable to an agent of the foreign government : he was restrained from receiving dividends here, unless he elected not to prove under the insolvency abroad. exp: And in ex parte Goldsmith, re Deane, bill-holders of a firm in re Deane.' Pemambuco, having received a dividend under a coticordata by 67? ' ' Brazilian law, were held not entitled to prove under the English bankruptcy, although different rules as to distributing the joint and separate estates existed in the two countries : unless, it is presumed, the money thus received were brought into the common fund inEngland. 540 STATUS. Identity of parties. With regard to the bankruptcy of partners, or of persons partners Chapter X. in firms carrying on business in two or more different countries, the same rules hold good as to the identity of the parties to the two bankruptcies. It does not follow that because there are two firms, one in England and the other abroad, trading even under different styles, that they are not to be considered identical : thus in Bank of Portugal v. IVaddell, re Hooper, two men carried on ^,^;.;/^^^, business in England as ' Hooper and Sons,' and in Portugal as ^f^^'ffji. « ' Hooper Brothers,' they were held to be identical parties. 5 App: ca: Effector^ bankrupt's discharge on his obligations. Meaning of ' country of contract.' Discharge by country of contract. The obligation extin- guished. iii. The Final Discharge, and its Effect on the Bankrupt's Obligations. Hitherto we have considered only the effect of bankruptcy on the bankrupt's own property, and on the debts owing to him ; we now advance to the last stage of the proceedings— the order given by the court that the debtor be discharged from his obligations. a. IVfiere the discharge is by the courts of the country of the contract. As we have already pointed out the words ' country of the con- tract ' has in reality two significations, the place where it was made, the place where it is to be performed : if these places differ, the difference being ascertained by the intention, express or implied, of the parties, then the country of the contract is the place of per- formance, and the law by which the contract is governed is the law of that place : if there is no difference, or if the intention of the parties cannot be inferred, then the country of the contract is the place where it was made, and the law by which the contract is governed is the law of that place. There is no doubt that an obligation is extinguished by a dis- charge under the laws of the country where the contract was entered into, and that this discharge will be recognised by the courts of every other country. This principle was acted on in Ballantyne v. Golding : but in Pedder v. Macmaster it appears to have been thought an open question. It was however finally established by Lord Ellen- borough, C.J., in Potter v. Brown : — ' The bankruptcy and certi- ' ficate would have been a discharge of the debt in America, and * it must by the Comity of the Law of Nations be the same here.' This was followed, in Quelin v. Moisson, Gardiner v. Houghton ; and in Gierke v. Emery at Nisi Prius. Ballantyne V. Golding. Cooke's Bk: Laws, 8th ed:487. Pedder V. Macmaster. 8 T. R. 6og. Potter V. Brown. 5 East, 124. Quelin v. Moisson. 1 Knapp. 266n. Gardiner v. Houghton. 2 B. &S. 743- Gierke V. Emery. I F. & F. 446. BANKRUPTCY. 341 Quclin V. Moisson. I Knapp. 26611. Chapter X. ' The general form in which the doctrine is expressed, seems to ' preclude any consideration of the question between what parties ' it is made : Avhether between citizens, or between a citizen and ' a foreigner, or between foreigners. ' The rule is not founded upon the allegiance due from citizens ' or subjects to their respective governments, but upon the pre- * sumption of law that the parties to a contract are connusant of ' the laws of the country where the contract is made.' (Story — Conflict of Laws, § 340.) But the first question always to be considered is, whether the foreign discharge is absolute in the country where it was given. Thus, in Quelin v. Moisson, the Privy Council held that a bank- rupt, discharged under the laws of France, could not be sued in England either for a debt proved under it, or for a debt not proved under it. Before coming to a decision, the following questions were put to a French advocate : — i. Could a person whose property had passed to the Syndics under the law ' de la faillite,^ afterwards be sued by any creditor who had proved his debt before the Syndics ? ii. Did he lose this protection by a sentence ^ par contumace ' as a fraudulent bankrupt ? The answers were : — i. He could not be sued even by one who had not proved. ii. The sentence '■par contumace ' did not give any creditor a new right to sue. So, if there is not a complete discharge of his effects as well as of his person, it wall not be recognised as a discharge in any other country. In ex parte Burton, this question was raised as to a composi- tion in Holland : In that country proceedings are adopted similar to the cessio bonorum among the Romans, by which the debtor is only exempt from imprisonment, his debts remaining until fully paid. The composition was therefore held not to have discharged the obligation. But exp: Burton. 3 M. D. & D. 364. No question as to nationality of parties. Sto7y, § 34°- Foreign discharge to be absolute. Discharge equivalent to cessio bonorum not recognised. /8. Where the discharge is by the courts 0/ a country not the Discharge country of the contract, notT""^ the question is very difficult of solution : — Is an obligation, con- tracted in one country, extinguished by a discharge under the laws of another country ? 342 STATUS. irestlake. Comity should declare obligation extin- guished. Story, §342- The obligation is not ex- tinguished. ■ 2 H. Bl: 553- ■•■ I East 6. = 4 B. & Aid: 654. ^ 8 B. & C. 30 L. J: Q. B. 352. ' 4 Shaw & Dun: 308. Discharge absolute if foreign creditor ha5 proved. 'There seems to be no juristic principle,' says Westlake, chapter X ' which compels an affirmative answer. But the case is eminently ' one for the application of comity between those nations which * have instituted such discharges in their respective systems of law. 'The maxim that they are granted by the jurisdiction of the 'debtor's domicil becomes a part of the knowledge with which 'men are presumed to contract' But Story contends for the opposite doctrine, namely, ' that a ' discharge of a contract by the law of a place where the contract ' was not made, or to be performed, will not be a discharge of it in ' any other country.' [Conflict of Laws, § 342.] The authorities in support of Story's proposition are. Bell's Commentaries [5th ed: 11. § 1267, pp: 688-692]; Burge's Com- mentaries on Colonial and Foreign Law [IIL pt: 2, chap: 22, pp: 924-929] ; and the following cases : — Quin V. Keefe ^ Smith V. Buchanan ^ Letuis V. Owen ^ Phillips V. Allan * Bartley v. Hodges ^ and the Scotch case Rose v. McLeod.^ Of these, the most important is Smith v. Buchanan : The con- Svtith v. ... , Buchanan. tract was entered mto m England : the discharge was under an i East 6. Insolvent Act in Maryland, U.S. : Lord Kenyon held that the discharge was no bar to a suit upon the contract in the English courts : — ' It is impossible to say that a contract made in one ' country is to be governed by the laws of another. It might as ' well be contended that, if the State of Maryland had enacted ' that no debts due from its own subjects to the subjects of ' England should be paid, the plaintiff would have been bound by it. ' This is the case of a contract lawfully made by a subject in this 'country, which he resorts to a Court of Justice to enforce; but ' the only answer given is, that a law has been made in a foreign ' country to discharge these defendants from their debts on con- ' dition of their having relinquished all their property to their * creditors. But how is that an answer to a subject of this ' countr}', suing on a lawful contract made here ? How can it be ' pretended that he is bound by a condition to which he has given ' no assent, either express or implied ? ' If however the foreign creditor has proved under the bank- ruptcy, in other words if he has claimed the benefit of the law under which the estate has been administered, and has received BANKRUPTCY. 343 Chapter X, Phillips V. Allan. 8 B. & C. All- Wolff V. Oxholiii. 6 M. & S. 92. Edwards v. Ronald. 1 Knapp. 259- Bartley v. Hodges. 30L.J: Q. B. 352- Ellis V. McHenry. L. R. 6 C. P. 228. Lynch v. McKenny. cit: 2 H. Bl: 554. Sidaivay V. Hay. 3 B. & C. 12. his share of the bankrupt's property, then the discharge will be binding on him. {PhiUips v. Allan.) Thus, in Wolff v. Oxholm, a receipt in accordance with an arbitrary ordinance made by the government of Denmark pending hostilities with Great Britain, specifying a rate at which debts owing by Danes to Englishmen were to be paid, was held to be no answer to an action here against the Dane for the debt ; the ordinance not being conformable to the usage of nations. Story thus extends the doctrine : — ' If a state should by its ' own laws provide that a discharge of an insolvent debtor under ' its own laws should be a discharge of all the contracts, even of ' those made in a foreign country, its own courts would be bound 'by such provisions. But they would or might be held mere ' nullities in every other country ' [Conflict of Laws, § 348]. Upon this point therefore the two great and learned writers upon the subject are in opposition to each other. Westlake indeed has gone to the extent of asserting that ' there seems to be ' some advance towards the establishment of the comity ' he con- tends for : and he takes the case of Edwards v. Ronald before the Privy Council, as finally establishing the doctrine. But Edwards v. Ronald is one of a class of cases which apparently go some length towards supporting this principle, but which were explained in Bartley v. Hodges., three years after Mr Westlake's book appeared ; and again in Ellis v. McHenry. The Privy Council held that a certificate of conformity ob- tained under a commission of Bankruptcy in England was a bar to an action for a debt contracted by the bankrupt in Calcutta previous to his bankruptcy ; although the creditor had no notice of the commission, and was resident in Calcutta. In Lynch v. McKenny, a defendant who was sued in England for a debt contracted in Ireland was considered as discharged by an English certificate. So in Sidaway v. Hay., a debt contracted in England by a trader residing in Scotland, was held to be barred by a discharge under a sequestration in conformity with 54 G. III. c. 137; in like manner as debts contracted in Scotland. The principle upon which these cases proceeded was pointed out by Bayley, J., in Phillips v. Allan, and his explanation was approved in the two recent cases mentioned above : — ' A dis- ' charge of a debt pursuant to the provisions of an Act of Parlia- ' ment of the United Kingdom, which is competent to legislate for * every part of the kingdom, and to bind the rights of all persons Extension of doctrine. Story. §348. Discharge under Act of United Kingdom absolute throughout United Kingdom. 344 STATUS. Discharge of country with paramount jurisdiction. Case of colonial discharge binding in England by statute of U.K. 49 G. III. c. 27, s. 8. But not by colonial statute. * residing either in England or Scotland, and which pur[)orts to Chapter X. ' bind subjects in England and Scotland, operates as a discharge ' in both countries.' And by Bovill, C.T., in Ellis v. Mc Henry : — 'Where the dis- ■'=^''''"" v- / . McIIen>y. ' charge is created by the legislature or laws of a country which i- K- 6 'has paramount jurisdiction over another country in which the ' debtor's liability arose, such a discharge may be effectual in both 'countries. This is only consistent with justice in the case of ' bankruptcy, as the debtor is thereby deprived of the whole of his ' property wherever it may be situate, subject to the special laws of ' any particular country which may be able to assert a jurisdiction * over it. In the case of the legislature of the United Kingdom ' making laws which will be binding upon her colonies and depen- ' dencies, a discharge either in the colony or in the mother ' country may by the Imperial legislature be made a binding dis- ' charge in both, whether the debt or liability arose in one or the ' other ; and a discharge created by an Act of Parliament here ' would clearly be binding upon the courts in this country, which * would be bound to give effect to it in an action commenced in 'the English courts.' In F/iilpotts V. Read we have an instance of a colonial discharge phiipotts\. being made binding in this country by an Act of the Imperial lv,.kv>. Parliament : an insolvent's certificate under the English Statute ^^'*' constituting the High Court in the colony (49 G. III. c. 27) was pleaded in bar to an action in England for a debt contracted in England prior to the insolvency : the eighth section expressly provided ' that a certificate obtained under a declaration of ' insolvency in Newfoundland, shall, when pleaded, be a bar to all ' suits for debts contracted in Newfoundland and in Great Britain 'prior to the insolvency.' But a colonial act, even though made with the sanction of the Barticyx. Hodges. Imperial Parliament, will not have effect out of the colony. 3° l. j: {Bartley w. Hodges, Romilly, M.R. Toiunsend \. Early.) Townscnd In Ferguson v. Speficer, the right to sue in an English court 3'DeG.& on an English contract was held to pass to the assignees under an Felgnsonv. Irish Bankruptcy Act ; ' the Act being that of the Imperial 30 l!^jV 'Parliament.' Scotch Of the Scotch cases the most important are the Royal Bank ^%"-[P/''\ decisions. ^ -^ v. C uthhcrt. of Scotland v. Cuthbert (or SteitHs case), and Selkrig v. Davis ; ' Rose, 462. the Court of Session held that the commission of bankruptcy Seihrigw. ^ ^ Davis. vested the personalty of the bankrupt in the assignees wherever 2 Rose 291. BANKRUPTCY. 345 Chapter X. situate : And in the former case we find that the Court were also unanimously of opinion that the English certificate was a complete discharge of every debt that could be proved under the commission whether English or Scotch. But since foreign debts may be proved under the English bankruptcy, they would appear to be included in this decision ; and Mr Westlake evidently assumes that such was the meaning of the court, since Rosev. he says that the case is overruled by Eose v. McLeod. If the fsifawl court meant to confine this expression of opinion merely to Duniop, 308. j^^gijgj^ Qj. Scotch debts, then it falls within the same principle as Fcrsuscnv. FergusoH V. SpcHcer. And since Lord Meadowbank was one of fot'T: the judges both in Stein's case and in Rose v. McLeod, it may be ^- ^- ^°- presumed that this is the correct interpretation of the decision. In Rose v. McLeod, a debt contracted and payable in Berbice was held not to be discharged by a certificate under an English commission of bankruptcy. Coiviiie V. In Colville v. James, the title of the assignee to the property and yavies. , . , Sc: Ses: his right to sue was recognised. Ca:^3rd Ser: ^^ ^,^^^^^^ ^ Buckcl, it was held that the subsistence of an ^BucldV English adjudication in bankruptcy was a good ground for the '1I7 "■' recall of a sequestration afterwards awarded in Scotland. Goetzc^-. In Goetze v. Aders, citing Strother v. Read and Maitland v. u"^ Hoffman, the same principle was laid down in another form : the Ser: II., 153- iiiercantile sequestration of a bankrupt in a foreign country renders a subsequent award of sequestration in Scotland incompetent. Phosphate In PJwsphate Setvage Co: v. Latuson, the rule was adopted VTalson. that the court in which bankruptcy proceedings are pending has id: v, 1125. ^^^j^gjyg jurisdiction, and that no moveable property can be touched except through those proceedings and by orders of that court. The doctrine tliat an obligation is not destroyed by a discharge ooct^m^e^ under the laws of a country not the country of the contract, with settled, the exception as to British Colonies, may be said to be now completely established. If the title of the assignee is universally recognised, as it is ; if creditors will be sent to prove in the foreign bankruptcy, as in many countries they will be ; if, where there are concurrent bank- ruptcies, the rule of priority will be observed, as it will be ; it is difticult to understand why the last step, the universal recogni- tions of the discharge, should not also be accepted : in fact the second step, sending creditors to prove in the foreign bankruptcy independently of an enquiry as to where the contract was entered 346 STATUS. into, would seem to show, that in those countries at least where chapter X. such a rule obtains, the rule will also obtain that the discharge will be accepted as absolute. Result. Hypo- thetical case. AH obligations discharged in courts of country granting discharge. Result. Hyjjo- thetical case continued. As the law of England stands however we have this result : — a contract entered into in France : — a discharge under the Bankruptcy Laws of England : — in an action in the French courts on the contract, they will be justified in refusing to acknowledge the English discharge. But, since foreign debts are proveable under the English Bankruptcy Laws, and the discharge and certificate under those laws protect the goods and the person from all debts proveable under the commission {Davis v. Shapley) ; in the English courts the debtor will be held to be discharged from all his debts and obligations whether English or foreign. Thus in Armani v. Castrique, Pollock, C.B., said : — 'I have no doubt that if this were a foreign contract, the defendant's bankruptcy would afford an answer to the action. Inasmuch as the goods of a bankrupt all over the world are vested in his assignees, he is discharged by his certificate. It would be a manifest injustice to take the property of a bankrupt in a foreign country, and then to allow a foreign creditor to come and sue him here. The English certificate is an answer to every contract by the bankrupt made in any part of the world.' This was adopted by Kelly, C.B., delivering the judgment of the Privy Council in Gill v. Barron. Both are obiter dida ; it is clear however that both learned judges referred only to actions on the contracts in the English courts. Continuing the hypothetical case suggested above, the further result is, that in an action in the English courts on the same contract, they will be justified in acknowledging the English discharge. But, supposing an action brought in the French courts, and judgment recovered : and then an action in England on the French judgment : it seems that the English courts could not do otherwise than give effect to it ; for it has proceeded strictly in accordance with the principles of International Law recognised by our courts : namely, that a discharge by the laws of a country which is not the country of the contract does not release the debtor from the obligation. DaTis V. Shapley. I B. &Acl: Castrique. 14 L. J: Ex: 36. Gill V. Barron. L. R. 2 P. C. 157- BANKRUPTCY. 347 Chapter X. England therefore is one of those States ' by its own laws Sior/s * providing that a discharge of an insolvent debtor under its own of the ' laws is a discharge of all the contracts, even of those made in a appiierto ' foreign country. Its own courts have declared this to be the law,' c/:%^^3^i. Therefore such judgments would or might be held mere nullities in every other country. To complete the illustration afforded by the hypothetical case : — The action brought on the contract in England : the Hypo- defendant's plea of bankruptcy and discharge held good : conduded.'^^ The French courts would be justified in refusing to acknowledge such judgment, and in allowing the plaintiff to recover on his contract. Odwin V. The case of Odivin v. Forbes must be noticed, as it is the only I Buck one in which the opposite doctrine appears to have been acted ^' ^' ^^' upon, and a foreign discharge admitted. To a suit instituted in the Dutch colonial court at Demerara for the recovery of the balance of account for sugar consigned to and received by the defendant in London, he pleaded an Enghsh bankruptcy of which the plaintiff had notice, but under which he had not proved. A very careful and elaborate judgment was delivered by the President of the court of Demerara, which was approved in a very marked way by the Privy Council. The judgment concluded thus : — On the strength of cases and opinions, and on the principle of judgment of 'comity and reciprocity which had been shewn to exist between cou^rt^of'°^ ' England and Holland in matters of bankruptcy, and still further Demerara. ' on the grounds that the effect of the certificate ought in justice ' to be co-extensive with the assignment, and that if foreign courts 'allowed the assignees under the English commission to strip the ' debtor of his property by giving effect to the assignment within 'their jurisdiction, they were bound in justice to give equal efTfect ' to the certificate, and not leave him liable to the actions of ' the foreign creditors.' The English certificate was admitted accordingly, and held to discharge the plaintiff's claim. It has generally been assumed whenever this case has been Eciivards v. quotcd that it falls in the same class as Edwards v. Ronald^ because i^Knapp: Demerara had at that time been ceded to England : but the learned President did not consider the question of an Imperial Did not discharge ; Dutch law having been secured to the colonists by the impeHa"" capitulations, he treated Demerara as if it had still been part of '^"^'^'^''"'^''• Holland, and so far as the law was concerned, a foreign country. 259. 348 STATUS. Mr Chancellor Kent in Holmes v. Rcmsen [New York] takes Chapter X. the same view on the same broad grounds : but the correctness of his decision was doubted by Chief Justice Parker in Blake v. Williams [Massachusetts], who held that an attachment in America before notice of an English assignment was valid as against the assignee. It must however be remembered that whereas the assignment deals with the property of the debtor, the discharge affects the property of his creditors, which consideration might be sufficient to account for any difference in the effect accorded to them. Holmes V. Remsen. 4 Johns: Ch: 460. Blake V. IVilliaiiis. 23 Mass: Rep: 285. Application of principle of Heather V. ll'ebb to foreign judgments. In Heather v. Webb, the Court of Common Pleas held that an Heather v. IVebl'. action could not be maintained on a promise to pay a debt from 2 c. P. D. t which the debtor had been released by a discharge in bankruptcy. The principle of the case being that the English release from obligation is absolute, it is presumed that the same principle will apply to foreign bankruptcies when the discharge by the foreign court is also absolute. iv. Status of the Bankrupt. We have hitherto dealt only with the status of the assignee. We now come to the status of the bankrupt. It will be noticed that in many of the judgments cited there have been, as in all the other questions of status, references to the country and the court Kent. of the domicil. * The presumption,' said Mr Chancellor Kent in his celebrated judgment m Holmes v. Remsen [New York], 'ought Holmes^. ' to be that justice will be well administered in every civilised 4 Johns- ' country, and in the application of the law to bankrupts that the ' "" °' ' foreign creditor sent to the bankrupt's domicil for his dividend, * will obtain the same measure of justice as the other suitors of ' the country. It is the presumed will of every person dying in- ' testate, that his moveables, which by a fiction of law have no ' locality independent of his person, should be brought home and ' distributed according to the law of his own place. A different ' rule would be extremely mischievous, and affect the commerce ' of the country. So it is equally to be presumed to be the under- * standing of the commercial world, that the funds of the bankrupt ' should be distributed according to the law of the place where ' he resided, animo manendi^ and where the credit was bestowed.' Jurisdiction. But it is Very evident, as in the former cases, that if domicil is used in its strict sense, it is not an accurate statement of the law to say that the courts of the domicil, and the law of the domicil BANKRUTTCY. 349 Chapter X. alone have jurisdiction in bankruptcy, for we are not dealing here with a natural status. What is involved in the word domicil yopp V. used in its strict sense, may be gathered from the decision in Jopp 34L.j:Ch: V. Wood: a person gomg to a country to reside there for trading 212. or making a fortune, does not, by length of residence alone, gain a domicil there. If it was found expedient in former cases to cut this down to matrimonial home or usual residence, it is all the more necessary to adopt a similar limitation in the case of bank- ruptcy : in England as we have seen usual residence has again been taken as the foundation of jurisdiction, and this may now be said to be the accepted rule on the subject. The question of jurisdiction settled, although the fact of bank- ruptcy depends on the principles we have just discussed, the status of the bankrupt is not recognised beyond the territorial limits of the country in which the decree has been made : in other words, the courts of one country do not regard in any way the Personal . , status of personal consequences of bankruptcy m another country. In bankrupt not some States bankruptcy is regarded as a criminal act, and the recognised ... inter- debtor liable to miprisonment ; but this is a matter concerning nationally. the State alone, provided by it as a deterrent to its subjects ; it therefore can have no extra-territorial effect. Giiix. This principle was applied in Gill v. Barron where there had L. r!"" first been proceedings in Barbadoes, and afterwards other pro- ■ '^''" ceedings in England, after which the bankrupt obtained his dis- charge. The Privy Council decided that on his return to the Barbadoes, he could still be prosecuted for frauds and offences against the law of Insolvent debtors in those islands. 350 SUMMARY OF THE TENTH CHAPTER. Chapter X. A division of status made for the purposes of the subject : and the general rules applicable to each, stated shortly : judgments of status are judgments in rem. 271 Marriage. Legitimacy. Divorce. The general principle is that capacity to marry depends upon the lex domicilii. 272 a familiar instance of this is a marriage abroad of an English- man with his deceased wife's sister ; or a marriage in England of first cousins domiciled in Portugal : both are invalid, and should be held invalid in all countries. 272 The question raised in Simo7iin v. Alallac was invalidity on account of the non-performance of a ceremonial act. 273 the general principle however has been doubted not only by civilians but by judges, but on the whole it seems to be now firmly settled. 274 Legitimacy as a general rule follows the lex domicilii. 275 as to legitimacy per subsequens 7natrimonium, it is immaterial where the subsequent marriage takes place ; but this has been limited by the rule that the domicil is to be that of the father at the time of birth, and not that at the time of the sub- sequent marriage. 276 nevertheless in order to take lands by descent according to English law, the heir must be born in actual matrimony. 276 With regard to divorce the old theory was that English mar- riages were indissoluble by foreign courts, but this has now been completely swept away. 276 Another theory is that of the lex loci coiitractus ; but this has also been disapproved by the House of Lords. 276 The rule now accepted is that of the lex domicilii^ except in the matter of the marriage ceremony when the rule is still that of the lex loci contractus : a marriage solemnized abroad must be according to the law of the country : if invalid there SUMMARY. 351 Chapter X. on account of the non-observance of the ceremonial law, it "~~ will be held invalid here. 277 The wife's domicil is that of her husband : ' domicil of ' parties ' means therefore the domicil of the husband : but there are some doubts whether this rule holds universally, especially where she has been deserted by her husband : certainly not when this domicil is merely to found jurisdic- tion : she cannot however acquire a new domicil but retains that of her marriage : this domicil also regulates the validity of marriage. 279 No man can be without a domicil. 280 The rule lex domicilii being established, the different cases are considered. 280 I. Marriage in Etigland and decree abroad. Where the husband is a foreigner and domiciled abroad the decree will be recognised. 280 Si?nonin v. Mallac considered. 281 Where the husband is English and domiciled in England, the general rule is that the decree will not be recognised. 283 the question of Scotch divorces considered. 283 Lollefs case and Shaw v. Gould are identical : they decide that where the foreign court assumes jurisdiction on account of mere residence, or on account of a residence for a definite period to which the name ' domicil ' is applied, the decree will not be recognised. 283-285 the meaning of the phrase ' iti f^-ajidem legis.' 284 in questions of divorce the rule kx domicilii means the domicil at the time of the matrimonial wrong. 285 a difficult question arises where the residence is not infraudem legis. The Lords thought that a divorce in such a case would be recognised ; but in Pitt v. Pitt, a Scotch appeal, they decided that such residence would not give the Scotch courts jurisdiction. 286 It is therefore important to determine what amount of resi- dence or domicil abroad will be held sufificient in English law to support a foreign decree : the better opinion seems to be that the establishment of the matrimonial home is enough. 287 Where the husband is a foreigner domiciled in England the question is doubtful, on account of another principle some- times recognised, that allegiance is not waived by domicil. 288 352 STATUS. The same doubt arises where the Inisband is English but Chapter X. domiciled abroad. 288 "~ ' I I. Marriage abroad and decree ahvad. All the foregoing considerations apply to the different cases arising under this head. 288 III. Decree hi England. Where the marriage was performed either in England or abroad and the decree is to be pronounced in England, the general question of the jurisdiction of the English Divorce Court is raised. 288 The rule as to citation on a respondent out of the jurisdic- tion differs from that in use in the Common Law Courts. 289 The first difficulty arises in the case of an Englishman domi- ciled abroad ; but the rule of allegiance seems to have been adopted and a divorce pronounced. 289 The real difficulty arises however when the husband is a foreigner domiciled abroad. 289 Niboyet w. iV/i^(?>'^/ considered. 289 As in the converse case the rule lex domicilii has not been adopted strictly, but that of the matrimonial home : where this is in England the court will pronounce a decree. 291 the earlier cases considered. 291 the court will not decree restitution of conjugal rights against a respondent who is out of the jurisdiction. 293 The citation may be served out of the jurisdiction in all cases except in a suit for restitution of conjugal rights. 293 In some cases service will be dispensed wath altogether. 293 Note on Mrs Bulkley's case and the French law. 294 Lunacy. The two forms of status involved in a finding in lunacy, that of the lunatic and that of the curator. 296 Consideration of the question what country is entitled to find a person lunatic. 296 the English principle seems to be that of residence. 296 Foreign finding in Lunacy recognised in both respects in England : but further enquiry requisite here to obtain pro- tection of Lord Chancellor. 297 Foreign curator bonis may apply for transfer of lunatic's money in funds, but not of realty. 297 in the case of a foreigner as of right ; 297 SUMMARY. 353 Chapter X. in the case of an English subject, reference to the master directed, and appHcation may be granted, if report is favour- able : 297 It is however usually limited to the dividends, and will not be made as to the corpus unless strong reason is shewn. 297 reasons assigned for not granting transfer, even of the divi- dends, although report is favourable ; it is a question of dis- cretion. 298 Lunacy Regulation Act, 1853 (16 & 17 Vic: c. 70), ss: 45, 85, 141, 147. 298. 299 re Sottoviayor considered. 299 decision of the Scotch court in Sawyer v. Sloan. 300 the removal of lunatics from India, and effect of Indian inquisition, under the Act of 185 1. 300 Guardianship. The different forms of status involved in guardianship. 302 In the case of minority and the natural guardianship of the parent the law of the domicil is recognised. 302 Consideration of the question what country is entitled to appoint a successor to the natural guardian. 302 the English principle seems to be that of residence. 302 Foreign appointment usually followed in England. 303 review of the cases. 303 ground for not following the appointment. 305 guardianship a practical illustration of the theory of the auxiliary sanction. 305 the case of a French prodigal does not involve a question of status. 306 Probate and Administration. The question of status involved in a grant of probate and administration is that of the executor or administrator : this depending on the status of the deceased as to his testacy or intestacy, depends on the law of the domicil of the deceased. The capacity to make a will : the fact whether a will has been made or not : the validity of the will when made : and the construction of it all depend on the law of the domicil alone. 307 Lord Kingdown's Act altered the general rule, that a will to be valid must be made according to the law of the domicil, with regard to wills of British subjects made abroad. 308 2 A 354 STATUS. Probate or administration will therefore be granted in this Chapter X. country to the person entitled to it by the lex domicilii. 309 The domicil is that at the time of death : except as to capa- city when it is that of the time of making the will. 309 Where there is a judgment of the court of the domicil as to capacity, validity, or construction it will be followed in this country. 310 But where there has been a grant of probate or administra- tion by that court, the status of the executor or administrator will not be recognised so as to allow him without more to administer personalty in this country belonging to the deceased. 310 that can only be done by grant in some form by the English Probate Court. 311 The status however will be recognised as existing in the foreign country, and the decree will be followed by clothing the foreign executor or administrator with an auxiliary grant, limited to the property in this country. 3 1 1 The form of the grant must depend on English law : this is an example of the rule lex fori: 311 The Prerogative Courts hesitated as to the form of the grant, whether it should correspond with the foreign grant in all cases; but the Probate Court has power under s. 73 of the Probate Act. 312 the character of the representative will therefore conform to English law. 314 The case of the Duchess of Orleans considered : foreign grant to a minor : 314 the same rule in fact applies, the minor being allowed to select his next of kin to take the grant on his behalf 315 It is not essential that there should be actual probate abroad : any proceeding corresponding to our grant will be followed in the same way. 316 Where there are concurrent proceedings, the English court will await the decision abroad : 317 and if probate has already been granted here, it will be varied to conform to a later grant abroad. 317 The English grant will also be limited in accordance with the foreign law or with a foreign decree. 318 the subject of translations considered. 319 Prior to reducing assets into possession, whether by action or petition, or in any other way, the English grant is necessary ; SUMMARY. 355 Chapter X. but it seems it is not necessary if there has been a judgment ■ abroad on the debt : or if the debt has passed to the adminis- trator in his own right. 319 The Enghsh grant being necessary, it is necessary also for the English property to be administered here. 321 The succession to the property will also be governed by the law of the domicil. 322 With regard to wills of realty, every question is governed by the lex rei sitce, except, perhaps, the fact by which capacity or incapacity is to be determined. 323 Bankruptcy. Division of the subject. 325 The status of the assignee considered, 325 a foreign adjudication and assignment is recognised in England whether there has been notice of the foreign pro- ceedings or not, either to stay an English action to attach property; or in an action brought by the foreign trustees. 326 the doctrine applies to personalty only. 328 peculiar rights of foreign trustees will be recognised. 326 assumed jurisdiction in bankruptcy. 329 the rule of English jurisdiction considered. 329 acts of bankruptcy which may be committed out of the juris- diction. 329 jurisdiction to wind up foreign companies, depends mainly on some part of the business being carried on in this country. 330 an English adjudication should be recognised by foreign courts ; — but if it is not, and property is attached, the English courts will abide by the decision and respect the judgment : 331 nevertheless if the attaching creditor be English, he will be held to have recovered to the use of the trustees, with or without notice : 332 but otherwise if the creditor be a foreigner, with or without notice. 332. 334 Phillips V. Hunter considered. 333 General summary of the effect of the adjudication and assignment. 335 Concurrent bankruptcies considered, more especially with regard to the bankruptcy of a partnership. 336 Where the concurrent proceedings are either both joint or both separate, the rule of priority is adopted. 337 356 STATUS. Where one is joint, and the other separate, tlie same rule Chapter X. should also be applied in determining the respective rights of the assignees. 338 case of a joint commission after concurrent separate com- missions. 339 restrictions against double proof. 339 Identity of parties. 340 The final discharge and its effect on the bankrupt's obliga- tions considered. 340 meaning of the term ' country of the contract.' 340 a discharge by the country of the contract dissolves the bankrupt's obligation, and the discharge will be recognised everywhere. 340 no question as to nationality, but only as to absoluteness of discharge : 341 a discharge, similar to the cessio bonorutn of the Romans is not recognised out of the country. 341 when the discharge is by a country not the country of the contract, the doctrines of Story and Westlake are in opposi- tion, but authority supports Story : such a discharge is not recognised : 342 but that it should be recognised seems a logical deduction from the rules already accepted. 345 some countries declare that a discharge under their laws dissolves in their own courts all obligations wherever con- tracted : 343 as for example, England : such judgments will not be recog- nised by other countries. 347 a discharge under an Act of the Imperial Parliament is absolute in every part of the United Kingdom. 343 Scotch decisions considered. 344 The whole doctrine illustrated by means of a hypothetical case. 346. 347 Odwin V. Forbes considered. 347 The principle of Heather v. Webb applied to foreign bank- ruptcy. 348 the status of the bankrupt considered. 348 The rule in bankruptcy is that jurisdiction depends on usual residence not on domicil. 348 Strict meaning of the word domicil : 349 The fact of bankruptcy will be recognised, but not the personal consequence of it. 349 ;57 CHAPTER XI; Chapter STATUTORY ENACTMENTS WITH REGARD TO XI. JUDGMENTS OF THE UNITED KINGDOM. I.— The Judgments Extension Act, 1868. Epitome of the Act ....... Security for costs from Scotch and Irish plaintiffs Australasian Creditors Acts ..... Scotch Act of Sederunt in pursuance of the Act . II.— The Inferior Courts Judgments Extension Act, 1882. Epitome of the Act ....... Limitation as to jurisdiction ..... III.— The Companies Act, 1862. Orders made in the United Kingdom, ss: 122, 123, 125 Injunction to restrain actions ,, „ s. 87 Scotch Act of Sederunt in pursuance of the Act . IV. — The Lunacy Regulation Act, 1853. English and Irish inquisitions, s. 52 . V. — Probate Acts. English and Irish probates, 1857 .... ,, ,, ,, and Scotch confirmations, 1858 Eiks or additional confirmations .... English practice, fees, etc. .... Irish ,, ,, • Scotch ,, ,, [Act of Sederunt] Australasian Inter-Colonial Probate Acts . Effect of English probates in the colonies . VI.— The Bankruptcy Act, 1883. Order to annul when property, etc., in Scotland or Ireland, s. 14 Order to examine out of England, s. 27 (6) . . . Orders made in the United Kingdom, ss: I17-I19 Scotch Act of Sederunt in pursuance of Act of 1869 . 358 359 361 362 362 363 364 365 36s 366 367 367 368 369 369 370 370 371 371 371 372 372 We now propose to consider certain statutory enactments dealing with judgments, decrees, or orders rendered in one part of the United Kingdom, and their enforcement in the other parts. 358 JUDGMENTS OF THE UNITED KINGDOM. These statutes relate to judgments of the Common Law Courts, Chapter judgments of Inferior Courts, company orders, inquisitions in ^^- lunacy, grants of probate, and orders in bankruptcy. I. THE JUDGMENTS EXTENSION ACT, 1868. [57 & 82 Vic: c. 54.] In 1834, Lord Brougham, C, in the case oi Lord Portarlington portariins- V. Soulby said that the question of enforcing Irish judgments here sanity. and rice versa was at the then present moment the subject of?o4/' legislative consideration. 3, &32V. In July, 1868, the Judgments Extension Act was passed, 'to '^' '^^' ' render judgments or decreets obtained in certain courts in 'England, Scotland and Ireland respectively effectual in any * other part of the United Kingdom.' The following is a short epitome of the Act. 55. J 2 - Registers are kept by the Senior Masters of the Common Law ^/^id"f"°" Courts in each country for the registration of judgments obtained ments. jj^ ^^g courts of the other countries. A certificate of the judgment (in the form given in the Schedule to the Act), signed by the proper officer of the court where such judgment has been obtained or entered up, or by the extractor of the Court of Session, entered in one of these registers, has the same effect and may be proceeded on as a judgment of the court in which it is so registered. The Costs of costs of obtaining and registering this certificate may be recovered certificate. ^^ .^ ^^^ ^^^^ ^^^^ ^^ ^^ Original judgment. But after twelve After twelve months from the date of the judgment leave to register has to be TpTiication obtained from the court, or a Judge of the court where it is necessary, g^^gj^^ ^.q register the certificate. Effect of In the case of a Scotch decreet, where a note of suspension has execution, bccu passed or sist of execution granted by the Court of Session, if a certificate signed by the Clerk to the Bill Chamber of the Court of Session be produced, execution on the registered certificate shall be stayed until the suspension is repelled, or the sist has been recalled or has expired, [ss: i, 2, 3.] It is presumed that a certificate of a stay of execution granted by an English or an Irish Court would operate in a similar manner. JUDGMENTS OF SUPERIOR COURTS. 359 Chapter The resjistered certificate, in so far as relates to execution under s. 4-. YT • • 1 • • • 1 Registered ■^'- the Act, IS under the control of the court in which it is registered certificate . .... r T umler in the same manner as one of its own judgments, [s. 4. J control of In proceeding on the registered certificate, the plaintiff, though s. 5. residing in a different part of the kingdom, is not required to find cost"" Jt ""^ security for costs in respect of such residence, except on special p^rocee^dings J r T on registered grounds. [S. 5. J certificate. The registration under the Act is intended entirely to supersede s. 6. any action on a judgment which might be registered : if such an judgment action be brought, costs will not be allowed unless by order of the ^"p^"^ ^ court, [s. 6.] The Act does not apply to any decreet pronounced in absence s. 7. ■.• J r , • • 1- • Scotch m an action proceeding on an arrestment used to found jurisdiction arrestment. in Scotland, [s. 7.] The same principle would seem to apply to a judgment in Foreign ^ ^ . . ^ ^ -^ JO attachment. the foreign attachment in the city of London. And further, a Judgments . . 1 r 1 1 1 Other than judgment to be capable of registration must be for debt, damages, for debt, or costs alone, so that 'equity judgments are excluded, and all or costs.' 'judgments and decrees ad facta prcestanda or of the nature of Wothtr- < prohibitions or injunctions ' ( Wotherspoon v. Comiolly) ; so also spoon V. . .... .,,,. Connolly, judgments in actions for the recovery of land, and in probate and ca:' 3rd Ser: divorcc suits. To enforce such judgments, therefore, as are not ■ ^'°' within the Act an action must be brought, and it would appear that, as heretofore, the judgment is treated in the same manner as one pronounced by a foreign tribunal. [The act is given in extenso in the Appendix, The forms will be found in Chitty's Forms, nth ed: p. 359 et seq:\ One of the immediate results of the Act has been the doing away Effect of with a defendant's right to require a plaintiff residing in another Security for costs gene- part of the United Kingdom to find security for costs in respect of rally done , . , . , , ^ . . away with a such residence : as we have seen in the chapter on Security for to plaintiffs costs' [chapter v.], a plaintiff resident abroad is called upon to o" United give security ' for this reason, that if a verdict be given against the '"^ °'"' ' plaintiff he is not within reach of our law so as to have process Pray\. ' scrvcd upon him for the costs.' (Buller, J., Pray v. Edie.) For I T. k. 267. the purposes of jurisdiction Scotland and Ireland have always been considered foreign countries, and therefore prior to 1868 the rules as to security were equally applicable to plaintiffs residing in those countries. But since the passing of the Act, that reason, in so far as it related to the United Kingdom, has completely ceased, because in lieu of the security the defendant if successful is entitled, by registering his judgment, to invoke the assistance of the court 360 JUDGMENTS OF THE UNITED KINGDOM. to enforce his claim for costs. (Blackburn, T-, Raeburn v. Chapter XT Andrews.) In the Schedule to the Act there are printed two Certificates, forms of Certificates, the first for the plaintiff, to be used in the ^„^^„^v. event of his obtaining judgment; the second for the defendant, to ^«^'-^«'^- be used for the recovery of the costs of the suit where judgment Q- ^- "2- has been given in his favour. Both parties are thus brought within the jurisdiction of the court in which the judgment has been registered, and upon the registered certificate that court can issue process against plaintiff or defendant, as the case may be. In Chancery But this tulc is Only applicable in those actions to which the suits security ^^^ j-clatcs : and therefore in Chancery suits and in others to which required. ^^ ^^^ ^^^^ ^^^ apply sccurity must still be given : thus in re East ''[^^^^'^^^ Llangy'uog Lead Co.; a petition to wind up a Company presented Co: ^ ^^ _ by a shareholder residing in Scotland, security was ordered, p. 81. (Jessel, M.R.) The decision in Raeburn v. Andreios was based upon the general effect of the Act, and not upon section 5. The provision in that section was inserted 'from excess of caution.' It was probably introduced to meet the case mentioned in the proviso at the end of section i, where some costs may have to be incurred in obtaining the leave of the court or judge before the certificate can be registered. (Quain J.) i"sh. The decisions in the Irish Courts exhibit a divergence of opinion decisions. . r ii j upon this pomt. Of four cases withm one year, two have tollowed the above decision {White v. Carrol; York v. McLaughlin), and ^^^^jfj- two have abided by the old practice of insisting on the security ^^-f^^l'-^ for costs being given ( Clarke v. Croker : Corner v. Lricin). In Vork v. Yorke V. McLaughlin the 'special grounds' mentioned in section 5 ^^.^b^ 547- were held to mean the extreme cases only of insolvency or Croker. absconding; and the fact that the plaintiff was so embarrassed as Comers. to be unable to pay a judgment debt obtamed agamst him pre- ib:504. viously by the defendant, otherwise than by small instalments, was not considered sufficient to entitle the defendant to security. Form^in Under the powers given by section 4, the judges, in Fort v. p^^t^^ Itith^Vd Scannell, set aside a registration in which there was not a sub- f,"^"/^ to strictly, g^^^j^^^j^j adherence to the form of certificate in the Schedule to <=• L- 4^6. the Act. The certificate stated that the judgment was obtained 'in default of appearance,' instead of 'after appearance,' and there was no mention of service on the defendant. From this case and from Bailey v. Welply, it would appear that the regis- B^Uey v. Setting aside tration wiU be set aside for an irregularity on the face of it, but [r=Rep=4 registration. ^^^ ^^ ^^^^ rcason. In this latter case it was argued that the JUDGMENTS OF SUPERIOR COURTS. 361 Chapter XI. Wother- spoon V. Connolly. Sc: Sess: ca: 3rd Ser: IX. 310. judgment described in the certificate as final was not really so, as certain demurrers to some of the pleas were still undecided ; there " was, in fact, a subsequent order staying all proceedings on the judgment while the demurrers remained undisposed of. Mona- chan, C.J., held that the certificate signed by the proper officer must be considered accurate and final. The application to set aside the judgment was wrong, because there was no judgment in the Irish court to set aside ; there was only the certificate of the English court, and the application should have been simply to take that certificate off the file. The benefit accorded to judgment creditors by this Act is very great, bringing as it does the whole of the United Kingdom under one law for the purpose of making the execution of the judgments of any of its Superior Courts as speedy as possible, no matter in what part of the kingdom the judgment debtor may be found :— ' As nearly as is possible consistently with the differences in the *laws and usages of the countries, the decrees of the courts of * one country are to receive in the other an effect equivalent to its 'own decrees.' (Lord President. Woihcrspoony. Connolly.) But it is surprising to think that the Act was not passed till the year 1868, that it was In grcpmio senatus for thirty-four years.; that the only method, prior to that year, of enforcing an English judgment in Scotland or Ireland should the judgment debtor have removed there, having no property in this country on which execution could issue, was by the cumbersome proceeding of following him and bringing an action against him upon the judgment as upon a foreign judgment, wherever he might be found. So long ago as 1855, our Australian colonies had introduced into their statute ^he books a provision known as the ' Australasian Creditors Act ' to Australasian c ,^ J- 1- . ' Creditors give further remedies to creditors against persons removing from A"^- . ,. , ° \cf: pp: 396. one Australian colony to another, whereby a memorial of a judg- 398.] ment under the seal of the Superior Court of one colony, by being filed in the Superior Court of another colony becomes a record of that colony, upon which execution may issue in the usual way. In 1883, the colony of New Zealand made another step forward, n The 27th section of the New Judicature Act \cf: p. 399] takes the ^ place of the old Australasian Creditors Act, and extends the benefits of registration to judgments ' whereby any sum of money 'is made payable,' obtained in 'any court of any of Her Majesty's ' dominions.' The other groups of colonies have not yet copied this wise enactment; but the time cannot be far distant when not only ew Zealand Act. 362 JUDGMENTS OF THE UNITED KINGDOM. Scotch practice. isolated portions of the Empire shall possess such a law, but when one Imperial Statute shall bind together all the many courts acknowledging the appellate supremacy of the Privy Council and the House of Lords. Aot of Sederunt, 11 July, 1871. [passed in pursuance of ' The Judgments Extension Act, 1868.'] i. That in the extract of a certificate of any judgment obtained or entered up in any of the Common Law Courts in England or Ireland for any debt, damages, or costs, and registered in the books of Council and Session under section 2, the inductee of charge shall be fifteen days, as in an extract of a decreet pronounced by the Court of Session. ii. That, for the registration of each such certificate in the extract thereof, the fees shall be charged which are authorised by Statute 50 G. III. c. 112, to be exacted upon extracts of deeds recorded in the books of Council and Session, and that the same fees shall be charged for each subsequent extract. iii. That a fee of 2 shillings shall be paid for each certificate issued under section 3, and no fee-fund dues shall be charged upon such certificates. Chapter XI. II. THE INFERIOR COURTS JUDGMENTS EXTENSION ACT, 1882. [45 & 46 Vic: c. 31.] 45 & 46 V. c. 31. Judgments of inferior courts. s. 2. Definition. S.3- Grant of certificate. ss. 4, 5. Effect of registration. The principle of the Judgments Extension Act was in 1882 extended to the judgments of certain Inferior Courts in different parts of the United Kingdom. The term ' Inferior Court ' includes County Courts, Civil Bill Courts and all courts in England and Ireland having jurisdiction to hear and determine civil causes other than the High Courts of Justice : Courts of Petty Sessions and the Court of Bankruptcy in Ireland : Sheriffs' Courts and courts held under the Small Debts and Debts Recoveiy Acts in Scotland, [s. 2.] The registrar of the court is to grant a certificate, in tlie form given in the Schedule, of the judgment after the time for appealing has elapsed, and in the event of the judgment not having been reversed nor execution stayed, on proof that there has been no satisfaction and on payment of the prescribed fee. [s. 3.] The registration of this certificate is to have the effect of a judgment of the court in which it is registered, and execution is to JUDGMENTS OF INFERIOR COURTS. 363 Chapter issue upon it as if it were a judgment of that court : the costs of ' obtaining and registering the certificate are to be recovered as part of the original judgment : but it must be registered within twelve months from the date of the judgment, [ss: 4, 5.] The registration may be cancelled by the court in which it is ^- ?• „. . . Cancelling registered on proof of setting aside or satisfaction, [s. 7.] registration. Sections 6 and S correspond with sections 4 and 6 of the ss: 6, s. T 1 T-- ■ « r /■ T Registered Judgments Extension Act [cf: p. 359.] certificate The existing limits of local jurisdiction are never to be exceeded, control of If the judgment of a Scotch Inferior Court cannot by reason of AcILn on this section be registered in an inferior court in England or Ireland, iupfl^eded it may be registered in ' The register of Scotch Judgments ' in the Existing .'^:gh Courts of those countries as under section 3 of the Judgment jo"ai^ °^ - ' -ion Act, and such judgment will thereupon come under the i"o't"to'be°'* •..i^ions of that Act. [s. 9.] Tio?'^'"^' The Act is not to apply to judgments pronounced against any ^J^g^^j^ftjon person domiciled at the time of the commencement of the action in any part of the United Kingdom, other than that in which the judgment was pronounced, ' unless the whole cause of action shall 'have arisen or the obligation to which the judgment relates 'ought to have been fulfilled within the district of the inferior 'court which has pronounced the judgment and the summons was 'served upon the defendant personally within the said district.' And a person 'against whom any judgment to which this Act 'does not apply is sought to be enforced by registration' may obtain 'a prohibition or injunction, suspension or suspension 'and interdict' against the enforcement of such judgment or execution or diligence thereon : costs of such application to follow the event, [s. 10.] [The Act is given t'n exte?iso in the Appendix.] The Act of Sederunt in pursuance of this statute has not yet been passed. III. THE COMPANIES ACT, 1862. \_25 & 26 Vic: c. 89, ss: 122, 123, 125.] The mutual enforcement of English, Scotch and Irish orders English, made against contributories in any part of the United Kingdom f^sh'^o^dTrs. for the payment of calls in the course of winding up any company ^5&26v, 3^4 JUDGMENTS OF THE UNITED KINCDdM. S. 122. Orders made in England to be enforced in Scotland and Ireland. s. 123. Mode of dealing with orders to be enforced by other courts. over which the court making the order has jurisdiction, is dealt Chapter with in sections 122, 123, and 125 of the Companies Act, 1862, ^^" upon a principle similar to that of the Judgments E.xtension Act. 25 & 26 Vic: c. 89, s. 122. Any order made by the court in England for or in the course of the wind- ing up of a company under this Act shall be enforced in Scotland and Ireland in the courts that would respectively have had jurisdiction in respect of such company if the registered office of the company had been situate in .Scotland or Ireland, and in the same manner in all respects as if such order had been made by the courts that are hereby required to enforce the same ; and in a like manner orders, interlocutors, and decrees made by the court in Scotland for or in the course of the winding up of a company shall be enforced in England and Ireland, and orders made by the court in Ireland for or in the course of winding up a company shall be enforced in England and Scotland by the courts which would respectively have had jurisdiction in the matter of such company if the registered office of the company were situate in the division of the United Kingdom where the order is required to be enforced, and in the same manner in all respects as if such order had been made by the court required to enforce the same in the case of a com- pany within its own jurisdiction. s. 123. Where any order, interlocutor, or decree made by one court is required to be enforced by another court, as hereinbefore provided [by s. 122], an office copy of the order, interlocutor, or decree so made shall be produced to the proper officer of the court required to enforce the same, and the production of such office copy shall be sufficient evidence of such order, interlocutor, or decree having been made ; and thereupon such last-mentioned court shall take such steps in the matter as may be requisite for enforcing such order, interlocutor, or decree of the court enforcing the same. s. 125. Judicial notice to be taken of signature of officers. Scotch or Irish order to be made order of English Chancery Court. s. 125. In all proceedings under this part of this Act, all courts, judges, and persons judicially acting, and all other officers, judicial or ministerial, of any court, or employed in enforcing the process of any court, shall take judicial notice of the signature of any officer of the Courts of Chancery or Bankruptcy in England or in Ireland, or of the Couit of Session in Scotland, or of the registrar of the court of the Vice Warden of the Stan- naries, and also of the official seal or stamp of the several offices of the Courts of Chancery or Bankruptcy in England or Ireland, or of the Court of Session in Scotland, or of the Court of Vice Warden of the Stannaries, when such seal or stamp is appended to or impressed on any document made, issued, or signed under the provisions of this part of the Act, or any official copy thereof. The Scotch or Irish order (and it is presumed a foreign order also) is to be made an order of the Chancery Court in England, and not an order of the Bankruptcy Court {re Hollyford Copper Mining Co:, followed in re City of Glasgoiv Bank). HoUy/ord Mining Co: L. K. 5 Ch: 93. re City of Glasgow Bank. 14 Ch: D. 628. CO.MPANV ORDERS. 365 Chapter XI. re Hcicnlc. Ins: Co: 6Ir: Eq: Rep: 207. re Inter- national Pulp Co: 3 Ch: D. 594- . . , re British Imfi: Corp: 5 Ch: D. 749- re House- hold Ins: Co: W. N. 1878, 26. The Irish Master of the Rolls however in re Hercules Insurance Co:, thought that it was sufficient to produce an office copy of the order to the Chancery Office without making it an order of that court. Under section 87, the Court has power, when an order has been made for winding up a company under the Act, to restrain any action commenced against the company. The Act applying to all companies in the United Kingdom, Jessel, M.R., held that the court in which the winding up was proceeding had jurisdiction to restrain actions against the company in any other part of the United Kingdom, {re International Pulp Co:) A summons in the winding up of a company under sections 100 and 165 on officials out of the jurisdiction may be served by leave of the court in the same way as a writ under Order XI, the time for appearance being limited as provided by the rules of that order, {re British Imperial Corporation, followed in re Household Insurance Co:) Irish decision. s. 87. Injunction to restrain action in any part of United Kingdom. [cf: p. 82.] ss: 100, 165. Service of summons on officials out of jurisdiction. Act of Sederunt, 21 June 1883. [passed to regulate procedure under the Companies Act, 1862, s. 122 ; and under the Bankruptcy Act, 1869, s. 73.] i. That on production to the Clerk of the Bills of an office copy of any order made by any of the courts aforesaid [under the sections above mentioned] the same shall be registered in extcnso in a Register to be kept for that pur- pose in the office of the said clerk on payment of the fee mentioned in the schedule anne-xed hereto : and the said register shall be open to inspection of all concerned, on payment of the fee mentioned in the said schedule. ii. That after registration as aforesaid, the Clerk of the Bills shall append to such office copy a certificate subscribed by him of the registration thereof, in the terms mentioned in the said schedule : and the same being so registered and certified, shall be a sufficient warrant to officers of court to charge for payment of the sums recoverable under such order, and of the expense of registering the same, and to use any further diligence that may be competent, in the same manner as if such order had been a decree originally pronounced in the Court of Session on the date of such registration as aforesaid. Scotch practice. Sctudttle. Fee for registration of orders Fee for search in register 5 shillings 2s. bd. 366 JUDGMENTS OF THE UNITED KINGDOM. Inquisitions in lunacy. s- 52-. . . Inquisition and super- sedeas may be trans- mitted from and to Ireland and England, and acted on there respectively. Appeal to be made in country where inquisition held. IV. THE LUNACY REGULATION ACT, 1853. [16 & 17 i/ic: c. 70, s. 52.] Chapter XI. English and Irish inquisitions in lunacy are treated by section 52 of the above Act in a similar manner. 16 & 17 Vic: c. 70, s. 52. Where it is desired that an inquisition taken on a commission issued under, or a writ of supersedeas issued under, the great seal of the United Kingdom, or under the great seal of Ireland respectively, should be acted upon in Ireland or England respectively, the proper officer may, under order of the Lord Chancellor of Great Britain, or the Lord Chancellor of Ireland as the case may be, transmit a transcript of the record of the inquisi- tion, or of the writ, to the Chancery of Ireland or of England, as the case may be, which transcript shall thereupon be entered and be of record there respectively, and shall, when so entered of record and if and so long only as the Lord Chancellor of Ireland intrusted as aforesaid, and the Lord Chancellor of Great Britain intrusted as aforesaid, as the case may be, shall see fit, be acted upon by them respectively, and be of the same validity and effect to all intent and purpose, as if the inquisition had been taken on a commission issued under, or the writ of supersedeas had been issued under, the great seal of Ireland or of the United Kingdom respectively. In re Talbot, a lady had been found lunatic in Ireland ; she re Taibot. made an application for an enquiry before a jury in England, p"^;^' '^^ alleging a miscarriage of justice in Ireland. The Court of Appeal refused the application, holding that the record of the Irish pro- ceedings, on being forwarded to this country, was to be entered of record without further enquiry just as if the proceedings had been originally taken here : and that, in accordance with the general theory of foreign judgments, if there had been any mis- carriage of justice in Ireland, the application to set the proceed- ings aside should be made in Ireland. For the effect of an Indian finding of lunacy in England, see page 300. V. PROBATE ACTS. \20 & 21 I/ic: c. 79, ss: 94, 95. 21 & 22 Vic: c. 56, ss: 12—14.] English, The same principle has been applied to probates granted in Irish ^"^ any part of the United Kingdom: the statutes, 20 & 21 Vic: probates. ^ ^^ ^^^ Ireland, and 21 & 22 Vic: c. 56 for Scotland (the Con- PROBATES AND CONFIRMATIONS. 367 Chapter XI. firmation and Probate Act), provide that a grant of probate or confirmation, or of letters of administration made in one part of the United Kingdom may, by being resealed, become effectual in any other part. Divenny v. Corcoran. 32 L- J: P & M. 26. Mahon v. Hodges Ir: Rep: 6 Eq: 344. goods of Roche. 7 Jur: 784. Ireland. 2o & 21 V. c. 79. s. 94. English grant sealed by Irish court has same operation as Irish grant. 20 & 21 Vic: c. 79, s. 94 (Ireland). From and after the ist January, 1858, when any probate or letters of administration to be granted by the Court of Probate in England shall be produced to and a copy thereof deposited with the Registrar of the Court of Probate in Ireland, such probate or letters of administration shall be sealed with the seal of the said last-mentioned court, and being duly stamped, shall be of the like force and effect, and have the same operation in Ireland as if it had been originally granted by the Court of Probate in Ireland. s. 95. From and after the 1st January, 1858, when any probate or letter of s. 95. administration to be granted by the Court of Probate in Ireland shall be ^"^''J tf" produced to and a copy thereof deposited with the Registrar of the Court English of Probate in England, such probate or letters of administration shall be 5°^" '^^^ sealed with the seal of the said last-mentioned court, and being duly operation as stamped, shall be of the like force and effect, and have the same operation gralt^*^ in England as if it had been originally granted by the Court of Probate in England. In Divenny v. Cotroran, the Irish court had granted adminis- tration of personalty in England no will having been found : a will was afterwards propounded in the English Court, but the Irish administrator obtained a verdict on the issues raised by him. The Irish grant was ordered to be delivered out of the registry to be resealed here under section 95. In Mahon v, Hodges, English probate had been granted, limited to such property as the testatrix had power to dispose of. The Irish court held that as she had power to dispose of some property in Ireland, it would not decide what the particular sum was, but would reseal the probate, leaving that question to be determined by a court of construction. There is no doubt from the unqualified use of the word ' shall,' that under this act the court has a ministerial and not a judicial function to perform in resealing probates. (Sir C. Cress well, in t/ie goods of Roche.) 21 & 22 Vic: c. 56, s. 12 (Scotland). From and after the I2th November, 185S, when any confirmation of the executor of a person who shall in manner aforesaid be found to have died domiciled in Scotland, which includes, besides the personal estate situated in Scotland, also personal estate situate in England, shall be produced in the principal Court of Probate in England, and a copy thereof deposited with the Registrar, such confirmation shall be sealed with the seal of the said Scotland. 21 & 22 V. c.s6. s. 12. Scotch con- firmation sealed in England has same effect as probate or administra- tion. 368 lUDGMEXTS OK THE UXITKl) KINGDOM. s. 13. Scotch con- firmation sealed in Ireland has same effect as probate or adminis- tration. s. 14. English or Irish probates or letters of administra- tion certified in Scotch Commissary Court have same effect as Scotch confirma- tion. court, and returned to the person producing the same, and shall thereafter Chapter have the like force and effect in England as if a probate or letters of admin- XI, istration, as the case may be, had been granted by the said Court of Probate. s. 13. From and after the I2th November, 1858, when any confirmation of the executor of a person who shall so be found to have died domiciled in Scotland, which includes, besides the personal estate situated in Scotland, also personal estate situated in Ireland, shall be produced in the Court of Probate in Dublin, and a copy thereof deposited with the Registrar, such confirmation shall be sealed with the seal of the said court, and returned to the person producing the same, and shall thereafter have the like force and effect in Ireland as if a probate or letters of administration, as the case may be, had been granted by the said Court of Probate in Dublin. s. 14. From and after the 12th November, 1858, when any probate or letter of administration to be granted by the Court of Probate in England to the executor or administrator of a person who shall be therein or by any note or memorandum written thereon signed by the proper officer stated to have died domiciled in England, or by the Court of Probate in Ireland to the executor or administrator of a person who shall in like manner be stated to have died domiciled in Ireland, shall be produced in a Commissary Court of the County of Edinburgh, and a copy thereof deposited with the commissary clerk of the said court, the commissary clerk shall endorse or write on the back or face of such grant a certificate in the form as near as may be of the schedule (F) hereunto annexed [see p. 370] ; and such probate or letter of administration, being duly stamped, shall be of the like force and effect and have the same operation in Scotland as if a confirmation had been granted by the said court. When eik or additional confirmation will be sealed. For an example of re-sealing under this Act, see Orr-Ewing v. Orr-Eioifig. The memorandum of domicil mentioned in section 14 may be written after probate has issued {in the goods of A/Iiso?!, overruling in the goods of Muir). The application was rendered necessary in consequence of a bona fide mistake with respect to certain shares which, after probate had been granted, turned out to be personalty in Scotland. The benefit of the statute would have been taken away if the court had not allowed a proper note to be made on the probate. An eik or additional confirmation will not be sealed : if the original confirmation in Scotland is incomplete there must be a new confirmation including the whole of the personalty in England and Scotland, before the English court can affix its seal {in the goods of Gordon \ in the goods of Wingate; in the goods of Hutche- son). In the first of these cases the original confirmation had been granted before the passing of the statute, and for this reason Lord Ot-r-Ewing V. Or?-- Eiuing. 9 App: ca: 34- goods of Allison. 34L. J:P. & M. 20. goods of Muir. :8 L. J: P. & M. 49. goods of Gordon. 2 S. & T. 622. goods of Wingate. 2 S. & T. 625. goods of H utcheson. 3 S. & T. i6s. PROBATES AND CONFIRMATIONS. ;69 Chapter XI. goods of Ryde. 39 L. J: P. & M. 49. goods ojf Webster. 29 L.J: P. & M. 66. Penzance approved of the decision : lie liowevcr doubted the wisdom of the principle as applied in the two other cases, and was glad to distinguish from them a case where the first confirmation had been sealed by the English court, but where fresh property in England had been discovered ; he therefore ordered the additional confirmation to be sealed {in the goods of Ryde). hi the goods of JVebster, the original Scotch confirmation having Certified .... . duplicate been sent to Victoria \n duplicate, confirmation was obtamed confirmation Will be from the Commissary Court, and this was sealed in England sealed, under s. 1 2, complete faith being given to the Scotch Commissary's certificate. English practice. R. 73 (P-R: Non-C). Irish grants : certificate required. Rule 73 of Principal Registry (Non-C). The seal is not to be affixed to any probate or letters of administration granted in Ireland, so as to give operation thereto, as if the grant had been made by the Court of Probate in England unless it appears from a certificate of the Commissioners of Inland Revenue, or their proper officer, that such probate or letters of administration is duly stamped in respect of the personal estate and effects of which the deceased died possessed in England. In respect of letters of administration, the provisions of statute 21 & 22 Vic: c. 95, s. 29, must also be complied with. Rule 87 of District Registry. Grants of probate and administration made in Ireland and confirmations R. 87 (D. R.) granted in Scotland must be taken to the principal Registry, and not to a scotch" District Registry, to be sealed with the seal of the Court of Probate, in order grants to be to the same having force and effect in England. principal registry The fees payable on resealing an Irish or Scotch probate are the °"'y:. same as those payable in Ireland [see below]. goods 0/ Potts. 2 S. & T. 5. 22 & 23 Vic: c. 31, s. 25. i^^\. ' practice. Letters of administration granted by the Court of Probate in England shall pT" not be resealed, under 20 & 21 Vic : c. 79, s. 94, until a certificate has been grants : filed, under the hand of a Registrar of the Court of Probate in England, that ^g''*[frg^'^ bond has been given to the judge of the Court of Probate in England in a sum sufficient in amount to cover the property in Ireland as well as England in respect of which such administration is required to be resealed. \cf: in the goods of Potts, and Miller's Irish Court of Probate Practice.] The fees payable in Ireland are as follow : — For sealing Probate or Administration, with or without will annexed, or exemplifications of the same, under seal of the English Probate Court in order to its becoming in force for property in Ireland,— such fee as would be payable in respect of a grant originally made in Ireland for property 2 B Irish fees. 370 JUDGMENTS OF THE UNITED KINGDOM. equal in amount to the property in Ireland which is to be affected by the Probate or other instrument to which the seal of the Court is to be affixed. For the Registrar's fiat on an English grant ... ... ... five shillings. For sealing any confirmation of executor issued by authority of a Commis- sary Court in Scotland ... ... ... .. ... ... one guinea. For collating : — if 10 folios of 90 words each or under ... ... ... ... halfa-crown. if above 10 folios of 90 words each, per folio ... ... threepence. Chapter XI. Scotch practice. Certificate to be dated and subscribed by Commis- sary Clerk. All persons to have access. Act of Sederunt, 19 March 1859. [to regulate proceedings and fees under 21 & 22 Vic; c. 66.] vii. That the certificate to be granted by the Commissary Clerk of the county of Edinburgh upon grants of Probate and Letters of Administration in terms of s. 14 and Schedule (F) of the Act, shall be dated as well as subscribed by him. viii. That all copies of Probates or Administrations deposited with the Commissary Clerk of the county of Edinburgh under s. 14, shall be made patent to all persons desiring to .see the same, on payment of the undermen- tioned fee ; and when required the said Commissary Clerk shall furnish copies or excerpts of said documents, on payment of the undermentioned fee. Scotch fees. The fecs payable in Scotland are as follow : — To Commissary Clerk of Edinburgh. a. For collation of English and Irish Probates or Letters of Administra- tion, per sheet of 250 words ... ... ... ... twopence. d. For entering abstracts of such Probates or Letters of Administration in the Commissary Books, and granting certificate in the form of Schedule (F) ... ... ... ... ... ... half-a-guinea. For searcher. For giving inspection of any of the records of the Court, and in Edinburgh of any copy Probate lodged with the Clerk, each case, when not, exceed- ing 5 years back ... ... ... ... ... ... one shilling. if beyond 5 years ... ... ... ... ... ... half-a-crown. Certificate of commissary clerk. Schedule (F) of 21 & 22 Vic: c. 56. I, A.B., Commissary Clerk [or Commissary Clerk Depute] of the County of Edinburgh, hereby certify that this grant of Probate has [or these Letters of Administration have] been produced in the Commissary Court of the .said County, and that a copy thereof has been deposited with me. The The Australasian Colonies have recently adopted a series of ProbSe^'^ Inter-Colonial Probate Acts. The first was passed in Tasmania in 1879. South Australia, AVestern Australia and New Zealand having now followed the lead. BANKRUPTCY ORDERS. 37 1 Chapter The provisions resemble those of the Australasian Creditors Acts XI. which have already been noticed [p. 361, cf: p. 396] : the probate ' granted in one colony by being resealed in another, becomes effectual there. In the Act of South Australia this provision has been extended to probates of the United Kingdom ; in the Act of Western Australia to probates of all the British Dominions. In some of the Colonies probates of wills under seal of a Colonial Probate Court in any of Her Majesty's dominions are taken as Ac°s.^'^ prima-facie evidence of the will for the purpose of passing property in those Colonies on being recorded there in the Registry Office. \cf: chapter xii. — Antigua, Grenada, Jamaica, Nevis, Nova Scotia, Prince Edward Island, St. Vincent] VI. THE BANKRUPTCY ACT, 1883. \46 & 47 Vic: c. 52, ss: 14. 27. 117—119.] A similar provision has been adopted in Bankruptcy. The courts of the three parts of the United Kingdom are made auxiliary to each other, for the mutual enforcement of orders. 46 & 47 Vic: c. 52. s. 14. If in any case where a receiving order has been made on a bankruptcy 46 & 47 V. petition it shall appear to the court by which such order was made, upon an Powe/to'*' application by the official receiver, or any creditor or other persons interested, court to that a majority of creditors in number and value are resident in Scotland or in receiving Ireland, and that from the situation of the property of the debtor, or other °'''l^'' > ^^'"^^ causes, his estate and effects ought to be distributed among the creditors under etc., in the Bankrupt or Insolvent Laws of Scotland or Ireland, the said court, after Scotland or ... . , ,, ^ . , Iceland, such inquiry as to it shall seem fit, may rescind the receiving order and stay all proceedings on, or dismiss the petition upon such terms, if any, as the court may think fit. s. 27. (6) The court may if it think fit, order that any person who if in England s. 27. would be liable to be broucht before it under this section (for discovery of the "°^^'' '° . ° ^ J order exami- debtor's property) shall be examined in Scotland or Ireland, or in any other nation out place out of England. °f England. s. 117. Any order made by a court having jurisdiction in bankiuptcy in England ^ '^7" under this Act shall be enforced in Scotland and Ireland in the courts having of orders in IT^ JUDGMENTS OF THE UNITED KINGDONF. the United Kingdom. jurisdiction in bankruptcy in those parts of the United Kingdom respectively, in the same manner in all respects as if the order had been made by the couil hereby required to enforce it ; and in like manner any order made by a court . having jurisdiction in bankruptcy in Scotland shall be enforced in England and Ireland, and any order made by a court having jurisdiction in bankruptcy in Ireland shall be enforced in England and Scotland by the courts respectively having jurisdiction in bankruptcy in the part of the United Kingdom where the orders may require to be enforced, and in the same manner in all respects as if the order had been made by the court required to enforce it in a case of bankruptcy within its own jurisdiction. Chapter XI. to one another. s. 118. s. ii8. The High Court, the County Courts, the courts having jurisdiction in bank- Courts to riiptcy in Scotland and Ireland, and every British court elsewhere having be auxiliary jurisdiction in bankruptcy or insolvency, and the officers of those courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise in regard to the matters directed by the order such jurisdiction as either the court which made the request, or the court to which the request is made, could exercise in regard to similar matters within their respective jurisdiction. The effect of this section [section 74 of the Act of 1869] was o'Reardon considered by MeUish, L.J., in re GReardon: the case however L- R- 9 was not decided upon it. It will be noticed that the section is not hmited to courts of the United Kingdom, but extends to ' every British court' s. 119. English warrants enforceable in all parts of Her Majesty's dominions. Scotch practice. s. 119. (i) Any warrant of a court having jurisdiction in bankruptcy in England may be enforced in Scotland, Ireland, the Isle of Man, the Channel Islands, and elsewhere in Her Majesty's dominions, in the same manner and subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable offence against the laws of England may be executed in those parts of Her Majesty's dominions respectively in pur- suance of the Acts of Parliament in that behalf. (2) A search warrant issued by a court having jurisdiction in bankruptcy for the discovery of any property of a debtor may be executed in manner prescribed or in the same manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed according to law. Section 117 is the same, with sHght verbal alterations, as s. 73 of the Bankruptcy Act of 1869. The Act of Sederunt of 21 June, 1883, given on page 365, though passed to regulate procedure under the Act of 1869, will clearly still operate in Scotland with regard to orders under the new Act of 1883. . JUDGMENTS OF THE UNITED KINGDOM. 373 Chapter The question of orders of the United Kingdom in matters of XI guardianship has not been dealt with by statute. With regard to Divorce, the validity of a Scotch decree has again been argued and pronounced upon. We have already con- sidered the question in the chapter dealing generally with Divorce. It has been stated that an Imperial Statute may soon decide finally upon the vexed question. With the debates on the passage of such an Act through the Houses of Parliament it may be hoped that the shade of Lolley and the discussions upon his famous case will at last be laid to rest. 374 CHAPTER XII. Chapter XIL THE LAWS OP THE BRITISH COLONIES. PAGE I. The Indian Empire 379 Bengal Bengal Proper Behar Chota Nagpur Orissa North West Provinces and Oudh Punjab Central Provinces British Burma Tenasserim Arakan Assam Madras Bombay Bombay Proper Sind Mysore Berar Native States Aden Perim Socotra II. North American. Canadian Provinces Ontario (Upper Canada) 383 Algoma 385 Thunder Bay 3^5 Nipissing ......... 3^5 The classification adopted is based upon that in use at the Colonial Office. The author gratefully acknozvledges much valuable assistance received from Mr Russell and Mr Atchley of the Colonial Office Library, in the compilation of this Chapter. THE COLONIES. 375 II. North A^xkkic A^-comuwed. ^^''^' Chapter XII. Quebec (Lower Canada) 385 Anticosti Island Magdalen Islands Nova Scotia 388 Cape Breton Island New Brunswick ........ 390 Manitoba ......... 392 North West Territories ....... 392 Kenvatin British Columbia ........ 392 Vancouver Island Queen Charlotte Island Prince Edward Island ....... 393 Newfoundland ......... 395 Labrador III. Australian. New South Wales and Norfolk Island 395 Victoria ........... 396 Queensland .......... 397 Tasmania or Van Diemen's Land ...... 398 Furneaux Group King Island South Australia 398 Western Australia ......... 399 New Zealand .......... 399 Northern Island Middle Stewart's ,, Fiji Islands .......... 403 IV. West Indies. / Jamaica ........... 404 1 Cayman Islands J Turks and Caicos Islands ....... 405 ^ British Honduras ......... 405 British Guiana 406 Demerara Essequibo Berbice Bahamas ... ....... 406 Trinidad 407 Windward Islands ......... 407 Barbados .......... 407 Saint Vincent . 408 Grenada .......... 408 the Grenadines Tobago .......... 409 Saint Lucia .... ..... 409 Leeward Islands .411 Antigua . ... .... . . 411 Barbuda 376 THE COLONIES. Chapter XII. ,,^^,,5 ~ IV. West Indies — continued. Montserrat Saint Christopher Anguilla Nevis . . .412 Virgin Islands Tortola Virgin Sorda Cinegada Dominica Bermuda ...... .... 412 V. African. Cape of Good Hope ........ 412 Basuto Land the Transkei Griqua Land West . . . . . . . . -413 Natal 413 Transvaal . . . . . . . . . .413 Saint Helena . . . . . . . . .413 West African Settlements \ Sierra Leone ......... 414 I Gambia .......... 414 f Gold Coast 414 (Lagos 414 VI. Mediterranean. Gibraltar 415 Malta 416 Gozo Cyprus ........... 416 VII. Eastern. Ceylon 417 Hong Kong ........ . . 417 Kowloon Mauritius 4^9 Seychelles Islands Rodrigues Island Straits Settlements 420 Singapore Penang or Prince of Wales Island ..... 422 Malacca Labuan 422 VIII. Miscellaneous. Channel Islands Jersey .......... 423 Guernsey ........ . 424 Alderney Sark Herm Isle of Man 424 THE COLONIES. 377 PACK VIII. Miscellaneous — continued Falkland Islands ......... 425 South Georgia Heligoland .......... 425 Sandy Island Ascension Island ......... 425 Chapter XII. We propose now to consider the laws of the different colonies of General principles of Great Britain as they are applicable to the different subjects which have been discussed in the foregoing chapters. The law prevailing in any colony depends upon the charter granted to it at the time of its passing under the control of the mother country. This charter usually provides for one of two things : Either the law of England at the date of the charter is made bodily the law of the new colony ; or the foreign law already in force there at that date are continued. Thus where a territory becomes English by occupation, as the Falkland Islands, the English Common Law is made the law of the colony : but where a territory is ceded to England, the foreign Foreign law continued in .. . o7 o ceded colony. law then m force is contmued. French, Roman-Dutch and Spanish laws prevail in different parts of Her Majesty's dominions, and the courts of these colonies being within the appellate juris- diction of the Privy Council, that tribunal is frequently called upon to decide questions of foreign law. The principles which guide it in determining such questions will be found under the colonies Quebec and British Guiana [pp: -^Sc;!. It rests with the Foreign law to be proved , , ^ . , Ll i^ O OJ , to the court. party relymg on the foreign law to prove it to the court : unless this is done, although a different system of jurisprudence prevails in the colony the general law of this country will be applied ; as for example, to questions relating to lands in a colony. {Bentiiick V. Willi7ik. 2 Hare i.) The appointment of a Colonial Legislature provides for the passing in due course of statutes according to the wants of the colonists, which are subject to the approval of the Sovereign in Council. On important subjects some few Imperial Statutes are passed, or Orders in Council issued, extending to the colonies, but full power is vested in the Colonial Legislature to pass such acts as it thinks fit. With regard to colonial laws void for repugnancy or incon- sistency, see the statute 28 & 29 Vic: c. 63 [U.K.], 'an .Vet to ' remove doubts as to the validity of colonial laws.' 378 THE CO[-ONIES. Chapter XII. To a settled country the settlers are presumed to carry with English Common Law them from the mother country such portion of its Common and taken to a settled colony. Statute Law as is applicable to their new situation, and also the rights and immunities of British subjects {Kielly v. Carson. 4 Mo: P. C. C. at p. 84) : but as Lord Cranworth pointed out in Whicker V. Hiune (7 H. L. Ca: at p. 161), the difificulty of deter- mining what laws are adapted to the situation of the colony is of necessity very great. Adoption of Imperial Many of the Smaller colonies adopt English statutes without alteration. Sometimes an act is passed introducing several at the same time, as in the case of 'The English Acts Act, 1854 ' of New Zealand; and the Law No: 12 of 1855 of Trinidad, which introduced all the then recent amendments in the English law of Construction of Imperial evidcncc. Where this has been done, and the English statute Statutes. . . has been authoritatively construed by the Court of Appeal in England, such construction should be adopted by the courts of the colony. {Trimble v. Bill. 5 App: Ca: 342.) The same principle applies to the construction of Imperial Statutes extended in their application to any or all of the colonics. It will be seen that many of the colonies have adopted either entirely or in part the English Judicature Acts; sections 24 and 25 of the Act of 1873 having been in nearly all cases preserved intact. With certain modifications the rules and orders of 1875 have also been adopted either in the English form or in the form of a Code of Civil Procedure. In some however a statute modelled on the English Common Law Procedure Act 1852, is still in force: in some of the more active colonies the rules of 1883 may possibly be adopted in a short time : the author has endeavoured to obtain the latest available information before going to press. With the exception of the Indian Code of Civil Procedure, the Acts of New Brunswick and Nova Scotia, and an old statute of the Isle of Man, the subject of foreign judgments has not been specially dealt with by the Colonial Legislatures, the decisions of the courts agreeing in the main with those of English courts ; the cases in which some principle which has not been dealt with in this country is involved have been introduced in the main body of the work. The statutes referred to deal chiefly with the question of service on absent defendants. With reference to this question it will be noticed that the service of notice in lieu of writ on absent foreigners has in nearly all cases been omitted although the procedure has been framed on the English rules of court. A serious question for THE INDIAN EM TIRE. 379 the decision of the Privy Council may possibly arise in conse- Chapter XII. quence of this omission. The Imperial Statute, 6 & 7 Vic: c. 22, confirmed certain Evidence of uncivilised ... .,.- ,.. -., - people to be received in colonial laws which provided for the admission of evidence of certain colonies, barbarous and uncivilised people who, being destitute of the knowledge of God and of any religious belief, would otherwise be incapable of giving evidence on oath in the courts of the colonies. The following is a list of the colonies in which foreign law prevails. French. Quebec (Lower Canada). Saint Lucia. Mauritius. Channel Islands. \OId Norman.^ French and Italian. Malta. Gerrnan. Heligoland. Spanish. Trinidad. Roman-Dutch. British Guiana. Cape of Good Hope. Griqua Land West. Ceylon. I. THE INDIAN EMPIRE. [including MYSORE and BERAR ; the NATIVE STATES ; ADEN, and the Islands of PERIM and SOCOTRA.] The 'Supreme Court of Judicature at Fort William' established Constitution of the ^ „ TTx Indian courts. by charter under the provisions of 13 George III. c. 63. s. 13 was abolished by 24 & 25 Vic: c. 104, which statute enabled Her Majesty to establish by letters patent a ' High Court of Judicature at Fort William' in Bengal for the Bengal Division of the Presidency of Fort William ; and also High Courts at Madras and Bombay for those Presidencies respectively. By section 11, 38o THE INDIAN EMPIRE. Chapter XII. Definitions. /is alibi pendem no bar to action. Court's jurisdiction to be presumed, except in case of apparent error. Effect of Foreign Judgments. defences allowed. existing provisions applicable to the old Supreme Courts are to apply to the new High Courts. Presumably therefore the 13th clause of the Charter of 1774 (14 G. III.) relating to the Supreme Court at Fort William, and the corresponding clauses of the charters relating to Madras and Bombay are still in force. The general effect of those clauses is as follows : — The court has jurisdiction in all actions arising in the Presidency against any subject residing within the Presidency, upon any contract in writing with a British subject, when the cause of action exceeds 500 rupees, and it shall have been agreed that the matter may be determined by the court : but not against persons never resident there, or then resident in Great Britain or Ireland, unless the action be commenced within two years after the cause of action arose, and the sum to be recovered be not of greater value than 30,000 rupees. Qode ofCiuil Procedure. [No: 10 of 1877.] s. 2. A 'foreign court' means a court situate beyond the limits of British India, and not having authority in British India, nor established by the Governor General in Council. A 'foreign judgment' means the judgment of a foreign court. s. 12. (Explanation). The pendency of a suit in a foreign court does not preclude the courts in British India from trying a suit founded on the same cause of action : unless, (according to the section) the suit is pending before Her Majesty in Council. Res Judicata. No court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title. {Explanation 6). Where a foreign judgment is relied on, the production of the judgment duly authenticated is presumptive evidence that the court which made it had competent jurisdiction, unless the contrary appear on the record ; but such presumption may be removed by proving the want of jurisdiction. No foreign judgment shall operate as a bar to a suit in British India, s. 13. 14. THE INDIAN EMPIRE. 38 1 (a), if it has not been given on the merits of the case. Chapter XII. (b). if it appears on the face of the proceeding to be founded ' on an incorrect view of International Law, or of any law in force in British India, (c). if it is in the opinion of the court before which it is produced contrary to natural justice, (d). if it has been obtained by fraud, (e). if it sustains a claim founded on a breach of any law in force in British India. ss: -^6. 7,1 (a), (c). ^8. A recou'uised agent may be served with service on recognised OJ/V/)\/0 o O J agent of non-resident. process and may enter an appearance and make applications : — such agents are, persons holding general powers of definition of recognised attorney from parties non-resident authorising such ^^^" ' acts, and persons carrying on business for and in the names of parties non-resident, in matters connected with such business, when no other agent is so authorised. s. 41. Any one in the jurisdiction may be appointed agent. Appointment of agent. The appointment may be special or general, and shall Special or general, be made by an instrument in writing signed by the principal ; and such instrument, or if the appointment be general, a duly attested copy thereof, shall be filed to be filed. in court. s. 89. If the defendant is non-resident and has no agent service on non-resident J , i. • ii • ^ L with no .-igent. empowered to accept service, the summons is to be addressed to the defendant at the place where he is residing, and forwarded to him by post if there be postal communication between such place and the place where the court is situate. s. 90. If there is a British Resident or Agent of the Govern- Service through British ment in or for the territory in which the defendant resides, the summons may be sent to such Resident or Agent by post or otherwise for the purpose of being served upon the defendant; and if the Resident or Endorsement of Resident. Agent return the summons with an endorsement under his hand that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be conclusive evidence of the service. The general form of service on absent defendants is shortly as Form of service on absent ■, ^ ^1 -^1 ii 1 • i • 11 defendants with no agent, follows : — A copy of the writ, together with the plaint signed by ;82 THE INDIAN EMPIRE. Chapter XII. counsel or attorney (s. 51) and concise statements (s. 58), is sent to an agent in the foreign country for service on the defendant. After service, the agent returns an aftidavit that he has served the copy of the writ as required, and that the defendant in his presence signed his name at the back signifying his acceptance of the service, or that the defendant refused to sign, as the case may be. Evidence Act. [No: 1 of 1872.] s. 77 {b). in effect the same as 14 & 15 Vic: c. 99, [U.K.] s. 7. s. 82. id: s. II, as to documents admissible in England, Scotland and Ireland. Code of Ciuil Procedure. s. 86. The court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of Her Majesty or of the Government of India resident in such country to be the manner commonly in use in that country for the certification of copies of judicial records. Limitation Act. [No: 15 of 1877.] s. II. Suits instituted in British India on contracts entered into in a foreign country are subject to the rules prescribed in this Act. No foreign rule of limitation shall be a defence to a suit instituted in British India on a contract entered into in a foreign country, unless the rule has extinguished the contract, and the parties were domiciled in such country during the period prescribed by such rule. affidavit of agent. Proof of Foreign Judgments. Sealed copy of the judg- ment to be received. Documents admissible in the same degree as in United Kingdom. As to foreign judgments. Certificate of H. M.'s representative. Statutes of Limita- tion. Suits on foreign contracts. When foreign statute a good defence. [Schedule. ] Period of limitation. Actions on judgments of British India are limited to 12 years on foreign judgments to 6 years. With regard to the removal from India of lunatics so found by inquisition, and the effect of the inquisition in England, see page 300. ONTARIO. 383 Chapter XII. II. NORTH AMERICAN. CANADIAN PROVINCES. [ONTAEIO to PKINCE EDWARD ISLAND, inclusive.] ONTARIO [Upper Canada]. 44 Vio: c. 5. [Judicature Act] introduced the principles of the EngHsh Judicature Act. Order II, rule 4. Where there is jurisdiction in any of the service out of the Superior Courts to proceed with a suit on a service out of Ontario, jlrisdiction. the writ of summons to be so served shall be in Form No: 2, in writ and notice for appendix (A) hereto, with such variations as circumstances may ^"''^''^" °"' °'" J""''^''^''°"- require. Where a defendant is not a British subject, and is not in British dominions, notice of the writ of summons is to be served in lieu of service of the wTit, and such notice shall be in Form No: 3 in the same Part, with such variations as circumstances may require. Order VII, rule i. The same as Enghsh Order XI, rule i s. 45. %/, N/\/iv i-i- 111 in what cases allowed, [1875], arranged (a) (b) (c) (d), to which is added, (e). Where the action is upon a contract or judgment though the same be not within any of the four classes already enumerated, but it appears to the satisfaction of the court or a judge that the defendant has assets in Ontario of the value of K200 at least, which may be rendered liable to the judgment in case the plaintiff should recover judgment in the action ; and if the defendant does not appear, the court or a judge is to give any directions which the court or judge from time to time sees fit as to the manner of pro- ceeding in the action, and the conditions on which the same may be proceeded with ; and shall require the plaintiff, before obtaining judgment, to prove his claim and the amount of debt or damages (if any) to the satisfaction of the court or judge, and in such mode as the court or judge, having reference to the nature of the case, may direct. rule 2. Where a defendant is served out of Ontario, s. 46. . . ,, . ^ ... , Times for appearing and he -shall have the time following for entering his appearance and delivering defence. delivering his defence, and both proceedings shall be taken within the time named : — 384 NORTH AMERICAN COLONIES. Chapter XII. Claim to be served with the writ. Saving of jurisdiction to vary times, etc: s. 48. Leave to serve not required. Service of notice in lieu of writ. Dominion of Canada (other tlian Ontario, Manitoba, Kenvatin or the North-west Territories, or British Cohnnhia) . . 6 weeks Manitoba, Kenvatin or the Nortlvwest Terri- tories, British Columbia, Newfoundland . 8 ,, United States . . . . . . 6 „ United Kingdom (including Isle of Man, and the Channel Islands) . . . . 8 „ Elsewhere . . . . . . . 12 „ (d) The writ of summons in such case may be in the form set forth in Appendix (A), and the statement of claim is to be served therewith. Order VII, rule 3. The preceding rules of this order are not intended to interfere with or affect the powers of the High Court, or a Judge thereof in the exercise of the jurisdiction heretofore possessed by either or any of the courts hereby consolidated, to direct on application in that behalf, that service in any other manner may be good service, or that the time for defending shall be other than the time above named, or to give any special or other directions as respects proceeding against a defendant out of Ontario. rule 4. It shall not be necessary before serving the writ, or notice of the writ, to apply to the court or judge to allow the service ; but in case proof is given to the satisfaction of the court or judge that the service was duly made, and that the case was a proper one for service out of the Province under the preceding rules, the service shall be allowed. rule 5. Notice in lieu of service shall be given in the manner in which writs of summonses are served. Pkoof of Foreign Judgments 13 & 14 Vio: c. 19. s. I. the same as English Act 14 and 15 Vic: c. 99, s. 7, but much curtailed, and restricted to judgments of England, Scotland, Ireland, Lower Canada and the United States. 43 Vic: c. 7 adopts the same principle with regard to judgments of any of the Canadian Provinces, or of any British colony or possession. 28 Vic: c. 24 relates to the mutual enforcement of the judgments of Ontario and Quebec. [The first section of this Act, which was repealed QUEBEC. 385 by 39 Vic: c. 7, Schedule A (13), allowed original defences to be Chapter XII. raised in actions on foreign judgments.] 43 Vic: c. 12 passed to improve the administration of Justice in the Districts of districts of Aigoma, Algoma, Thunder Bay and Nipissing. NipLtngl'''^'' ^""^ ' s. 5. Jurisdiction of the Court of Algoma : — provided always as to the additional jurisdiction so hereby conferred that the contract was made within Algoma, or the cause of action arose therein, or the defendant resides therein. QUEBEC [Lower Canada.] [including the Isle of ANTICOSTI and the MAGDALEN Isles.] [The sections of the Civil Code of Saint Lucia have been printed, where they correspond with the Civil Code of Quebec, that being the more recently published.] Ciuil Code. s. 18. The same as Civil Code of St Lucia, s, 14. [p. 409] Rights of British subjects. S. 27. tCt! S. 20. ,, Actions against non- resident aliens : in what cases. S. 28. td: S. 21. Actions against inhabi- ^ tants : in what cases. S. 29. td: S. 22. [p. 4I0J Security for costs. S. 1220 td: S. II52, ,, Proof OF Foreign r ■ r 1 1 • 1 ■ ^ • 1 Judgments. [as to security lor costs when the judgment is denied — see s. 145, Code Civ: Proc: p. 386]. S. 2034 id: S. 1903. „ Judicial hypothec. Code of Ciuil Procedure. s. 14. All foreign corporations or persons, duly authorised under Foreign companies may any foreign law to appear in judicial proceedings, may do so before any court in Lower Canada. Any person who, according to the laws of a foreign country, is Foreign executor or authorised to represent a person who has died or made his will ^ """'='"'^'"'^ ™^y 5"«- therein, leaving property in Lower Canada, may also appear as such in judicial proceedings before any court in Lower Canada. ss: 6r. 62. 64. Foreign companies or corporations, and all Service on foreign com- -.,,,.. r .^ panics with office in L. C. executors of wills, admmistrators, or representatives of the succes- sion of persons having had property in Lower Canada, may if they have an office or an agent in Lower Canada, or carry on business therein, be summoned there ; and service may be made at the 2 c 386 NORTH AMERICAN COLONIES. Chapter XII. With no office. Service on absent de- fendant with property in L. C. Publication of the order. No judgment by default against absent defendant The court itself is to determine as to its juris- diction at once. Denial of foreign judg- ment proved under Civil Code, s. 1220. office, speaking to a person employed in such office, or elsewhere upon the president, secretary or agent : And if they have no such office, nor any known president or secretary or agent, upon a return to that effect, the court or judge may order the service to be by a notice to be inserted during one month in at least one newspaper ; and such notice is held to be a sufficient service. If the agent is one for specific purposes only, and not having the charge of the company's business without limitation he cannot be served for the defendant company. {Macplieison v. St. Lawrence Insurance Co: 5 L. C. Rep: 403.) s. 68. If the defendant has left or has never had his domicil in Lower Canada and has property therein, the court or judge or prothonotary, upon a return stating that he cannot be found in the district, may order him to appear within two months of the last publication of such order. The order must be published in French and English, and be twice inserted in a newspaper published in each language respectively in the district where the court is held ; in default of either of such newspapers in such district, then it is to be inserted in a similar newspaper of the nearest locality : The newspapers are to be indicated in the order. In this case execution can only issue after one year unless security be given for repayment of the money in the event of the judgment being reversed upon revision, [s. 552.] s. 92. No judgment by default for non-appearance can be rendered or recorded against any absentee defendant, who has been summoned as such. ss: 113. 115. The court, whether a declinatory exception is pleaded or not, is to determine whether the action is within its jurisdiction ; in declaring itself incompetent it may award costs according to circumstances. s. 145. The denial of any document specified in s. 1220 of the Civil Code (i.e. records of foreign judgments) must be accompanied by the giving of security for the costs of the commission rec^uired to obtain the proof of such document. French law in Lower Canada. The province of Quebec, or Lower Canada, formerly in posses- sion of the French, was ceded to the English in 1763 : the French codes then in force there remained law in the province by virtue of the Quebec Act. In those colonies w^here foreign laws still prevail, proof should be given in some form that the ordinance in question was QUEBEC. 387 transmitted to the colony in order to make it part of the law of Chapter XII. the colony : Ordinances do not take effect in colonies propria vigore, to do so they must be registered there (Z>« Boiday v. Du Boulay, L. R. 2 P. C. 430 ; Hiifc/iinson v. Gillespie, 4 Mo: P. C. C. 37S). Thus the French laws of feudal tenures having been introduced and registered in French Canada still continue in force. {Sivurs de St. Joseph v. Middlemiss, L. R. 3 App: Ca: 1102.) The edict of Louis XIV. (1663) which created the Conseil Supe'rieur and established Courts of Justice for Lower Canada, directed that the Coutumes de Paris should be the general law of ' Coutumes de Paris ' and the province. The Roman Law, though held to govern as loi '^'"'^" ^^' ecrite in some parts of the South of France, was in other parts of the kingdom only borrowed and modified by ' Les Coutumes ' as expounded by the jurisprudence of the Parliament of Paris. {Symes v. Ciivillier, L. R. 5 App: Ca: 138.) With regard to the Roman Law in force, the Theodosian Code and therefore the Roman Codes in force. law of the Antonines ought to prevail over that of Justinian in countries governed by the Code of Paris. {Evantiirelv. Evanturel^ L. R. 6 P. C. I.) The Privy Council is necessarily called upon very frequently to expound foreign law : The principles upon which the English court should act in such cases are laid down in the judgment of the Privy Council delivered by Turner, L.J., in the case oi Her Majesty s Procui'eiir and Advocate General v. Brinieau (L. R. i P. C. 169). They are a condensation of the principles collected in the 3rd section of Sirey's note upon Article i of the Code Napoleon : — * We are to be guided by the plain sense of the law which 'applies to the question: we are to make no distinction which ' can alter that sense : assuming the sense of the law to be positive, ' we are not to modify or restrict the law upon any consideration, ' however powerful : the law is to be applied as it stands, any ' accidental errors notwithstanding : we are not to weigh the ' reasons of the law against the words of it : if the law applicable ' to the case be special, we are to understand it according to its ' particular scheme (J>ropre systhne) without adding to it what is ' called the Common Law.' As to the interpretation of the French law by Canadian courts interpretation cf French and by the Privy Council on appeal, the modern French authorities consisting of commentators on the Code Napoleon and the de- cisions of the French courts since the promulgation of that Code 388 NORTH AMERICAN COLONIES, Chapter XII. are not binding, though they are extremely valuable aids towards ~ ~~" ~ the right determination of any question, {id:) English Criminal Law in With the ccssion howevcr iMiglish Criminal Law came into force. - . , . ... force HI the provuice, and still continues in force except so far as it has been altered by Canadian or Imperial Statutes applicable to Canada. {R. v. Cooie, L. R. 4 P. C. 599.) NOVA SCOTIA. [including CAPE BRETON ISLAND.] Effect of Foreign 43 l/l'c: C. 13, Judgments. — s. 27, reproduces the old Act, 24 Vic: c. 6, which allowed original defences to be raised in an action on a foreign judg- ment : — In any action heretofore or hereafter to be brought in any court of this province against any person domiciled in this province upon a judgment recovered against such person in any court in any other province or country, the record or other evidence of such judgment shall not be conclusive evidence in any such action on such judgment in this province of the correctness of such Original defences may be judgment ; but the defendant in any such action on such judg- ^^^^^- ment may enquire into contest and dispute all or any of the facts upon which such judgment is founded, or the cause in the suit in which such judgment was given, and may raise the same defence in such suit upon such judgment as he could have done if such suit had been brought for the original cause of action, as fully as if such judgment in such other province or country had never been given or entered up. Service out of the Jurisdiction. Concurrent writs. As to actions against Revised Statutes, c. 94. s. 38. the same as English C. L. P. Act, 1S52, s. 22. s. 43. id: s. 18, British subjects. exccpt as to the cause of action in respect of which service is allowed, as to which the section runs as follows : — It shall be lawful for the court or judge, — upon being satisfied by afifidavit that there is cause of action which arose within this province, or in respect of a breach of a contract made within the province, in whole or in part, or intended to be executed in whole or in part within this province, or, in respect of a contract made and entered into between parties, one of whom, at the time of making such contract, shall reside within this province, and that the writ, etc: NOVA SCOTIA. 3S9 Chapter XII. s. 44. In all cases when it shall be made to appear by service on agent in affidavit, to the satisfaction of the court or judge, that a defendant ^^^^"'=^°^'^^^^"''^"'- is absent from the province, so that personal service of process cannot be effected on him, or that he is remaining abroad so as to evade service, and that he has an agent within the province and also that the plaintiff has a good and available cause of action against the defendant, the court or a judge may make an order for the service of process on the agent, which service shall be deemed good and sufficient service on the defendant ; and the plaintiff may therefore proceed in the action to judgment and execution, as if such defendant had been personally served. s, 45. The court or a judge may on sufficient cause shown by Time granted to agent. the agent allow a reasonable time for such agent to communicate such writ to the defendant. s. 46. If after due diligence no agent can be found, the Court Publication of order in or Judge may make an order for the defendant to appear and deilndlnt° ""'"^^ '° plead on the day named, which order is published in the Royal Gazette newspaper, or in such other way as may be directed : The publication of such order shall be deemed good service on the defendant, and the plaintiff may proceed with the action, s. 47. The defendant shall be at liberty to appear and plead to Appearance good if , ,. . ■ • ^ • J ^ • J before judgment signed. such action at any tmie previous to judgment signed. s. 48. The defendant at any time within three years after Rehearing during three judgment signed, may on application to the court or a judge, ^^^"' on affidavit accounting for his non-appearance, and disclosing a defence on the merits, obtain an order to appear and plead, and for re-hearing of the cause, which order shall operate as a stay of any execution issued on such judgment, but the judgment obtained, shall until removed, stand as security to the plaintiff for the amount thereof. s. 49. Execution is not to issue upon the judgment until the Plaintiff to give security. plaintiff gives security for repayment of all moneys levied there- under in case the judgment should be reversed. s. 50. The same as the English C. L. P. Act, s. 10. As to actions against . . . . foreigners. The cases in which the writ may issue are the same as those mentioned in s. 43, the form of the writ only being altered. s. 185. Where a party who has brought an action or been Notice of trial to non- served with process within the jurisdiction resides out of the pro- vince, notice of trial shall be served at least twenty days before the first day of the Term or the Sittings thereafter. 390 NORTH AMERICAN COLONIES. Chapter XII. Proof of Foreign Judgments. Foreign probates. Service by publication in probate suits. Revised Statutes, c. 96. s. 27. The same as English Act 14 & 15 Vic: c. 99. s. 7. s. 28. id: s. II. s. 34. The probate or copy of a will under the hand of the Judge or Registrar shall be received as evidence of the original will in all causes, unless upon cause shown on affidavit. The court may require other proof. This section applies to wills regularly proved abroad. 44 Vic: c. 10. s. 2. Where personal service cannot be made on an executor, administrator, or other party interested in an estate of any citation order or other paper owing to absence from the province the Judge may order publication of such paper, and the publication is to be sufticient service. NEW BRUNSWICK. ^"j\^L^°Tf 27 Vic: c. 41. When defendant not In any actiou ou a foreign judgment where the defendant was personally served, . . . original defences may be not personally scrvcd With the Original process or first proceeding raised. . , ....... , . , m the suit within the jurisdiction of the court where the judg- ment was obtained, the defendant may go into the merits of the case, and may avail himself of any matter of law or fact which would have been available had the original action been tried in the province ; provided always, that notice of such defence shall be given in like manner as is required by the course and practice of the courts of the province, any law, usage or custom to the contrary notwithstanding. Service out of the Jurisdiction. Actions against British subjects. Against foreigners concurrent wiits. 18 Vic: c. 25. s. I. The same as English C. L. P. Act 1852. s. 18, except as to the cause of action in respect of which service is allowed, as to which the section runs as follows : — It shall be lawful for the court or a judge upon being satisfied by affidavit that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made wholly or in part within the jurisdiction, or in respect of any contract executed or to be executed in whole or in part within the jurisdiction, and that the writ, etc : — s. 2 the same as English C. L. P. Act 1852. s. 19. s. 3 id: s, 22. NEW BRUNSWICK. 391 14 Vic: C. 2, Chapter XII. s. I. Service on non-resident persons carryincj on business in As to actions against i J CI non-residents carrynig on the province who may have a place of business, but no place of business in the Colony. residence therein may be effected by leaving a copy of process, with the ordinary English notice thereunder written of the purport and effect of such notice, at the place of business with some agent, clerk, or adult person in the employment of the defendant in such business, and known to the person serving the writ to be such. s. 2. The same course may be adopted in case of temi)orary Temporary or intentional ^ . _ . absence. absence, or absence for the purpose of avoiding service. The nature and place of the business carried on by the de- Affidavit. fendant in the province, and the particular nature of the agency or employment of the person with whom the copy of the process may have been left for the defendant must be stated in the affidavit of the Sheriff or Deputy Sheriff making such service, or otherwise proved to the satisfaction of the Judge before any order is made for perfecting such service. [Rules of the Supreme Court, T. T. 1857.] 17 Vic: c. 18. ss: 40-44 relate to enforcing decrees against persons out of Decrees against absent the limits of the province : the general effect of them is the same as ss: 53-58 of the New Zealand Code of Civil Procedure [r/: pp: 401, 402], except that the time allowed for the defendant to petition against the decree is two instead of three years. 12 Vic: c. 39. ss: 16. 17. The same as the Prince Edward Island Statute, Service on foreign and r, -,T- /■ r /- T domestic companies. 28 Vie: c. 0. ss: i. 2 \cf: p. 394J. IS Vic: c. 37. Upon any trial of any cause wherein it shall be necessary to Proof of documents in 1 • , 1 r ■ actions against foreign prove any contract or engagement entered into by any loreign companies, corporation doing business in the province it shall only be necessary for the party seeking to prove such contract or engage- ment, to prove that it was duly signed or issued by the accredited agent or officer of such corporation in the province : and it shall then be considered duly proved without further evidence of its execution, any law, usage or custom to the contrary notwith- standing. 392 NORTH AMKKTCAX COLOXIES. Chapter XII. ^g ^j^. ^_ ^7^ ''' Tt^GMENTs."'' ss: 5. 6. The same as English Act 14 & 15 Vic: c. 99, ss: 7. II. Court act. MANITOBA. 38 Vic: c. 5 provides for the administration of justice in the province ; but there is no special reference to service out of the jurisdiction. defendant. NORTH WEST TERRITORIES. [including KENVATIN District.] No: 4 of 1878. Service on agent carrying s. xii. (2). In case any defendant is resident out of the North on business lor absent '' ' -' West Territories but has an agent, managing clerk or other representative resident carrying on his business within the same, service of the summons to appear may be made on such agent, managing clerk or other representative, who for the purpose of being served with the summons or any other pro- ceedings in the action requiring service on a defendant, shall be deemed the agent of such defendant. (3). The same as English C. L. P. Act 1852, s. 18, but is not limited to actions against British subjects. When the stipendiary magistrate is satisfied that the provisions of the section have been complied with he may order the plaintiff to proceed subject to such conditions as he thinks fit to impose : But in every such action the plaintiff before obtaining judg- ment, shall prove his claim as if the same were contested. (4). In actions against corporations, the service may be upon the president, head officer, cashier or clerk. Service out of the JfUKISDICTION. As to action against British subjects. Service on corporations. BRITISH COLUMBIA. [including VANCOUVER ISLAND and QUEEN CHARLOTTE ISLAND, united by the British Columbia Act, 1866, 29 & 30 Vic: 0. 67 (U. K.).] 42 Vic: c. 12 introduced in substance into the province the English Judicature Act. The orders and rules have not as yet been received at the Colonial Oflice, but it is presumed that they will resemble the English orders. rUIN'CE KDWARI) ISLAND. 393 39 yic: C. 40, Ch^yterXU. s. 2, provides a form of service of legal process on foreign companies/"''"^" companies carrying on business in the province, there being no office or head officer. The writ of summons is to be deHvered at Victoria to the Registrar or Deputy Registrar of the Supreme Court : an adver- Advertisement in Gazette. tisement is mserted in the Gazette for four issues, after which the service is vahd, and the plaintiff proceeds to prove his claim. 40 Vic: c. 109. statutes^of l.m.ta- s. I. In case any suit or action shall be instituted in this if foreign statute bars , . .... r r the remedy it is a good colony against any person here resident, in respect oi a cause oi defence. action or suit which has arisen between such person and some other person in a foreign country, wherein the person so sued shall have been resident at the time when such cause of action or suit shall have first arisen, such suit or action shall not be main- tained in any court of civil jurisdiction in this colony, if the remedy thereon in such foreign country is barred by any statute or enactment for the limitation of actions existing in such foreign country. s. 2, provides the form of plea. PRINCE EDWARD ISLAND. 30 Vic ' C 18 Service out of the oi/ yi\j. o. /u. Jurisdiction. S. 12, The same as English C. L. P. Act 1852. S. 18, Action against British _ . . ^ , . , . . subjects. except as to the cause of action in respect of which service is allowed, as to which the section runs as follows : — It shall be lawful for the court or judge, upon being satisfied by affidavit that there is a cause of action which arose within this Island, or in respect of a breach of contract made within this Island, in whole or in part, or intended to be executed in whole or in part, within this Island, or in respect of a contract made and entered into between parties, one of whom, at the time of making such contract shall reside within this Island, and that the writ, etc: s, 13. The same as English C. L. P. Act 1852. s. 19, against foreigners. S. 14. id: S. 23. affidavits. 16 Vic: c. 12, s. 3. The same as English Act 14 & 15 Vic: c. 99, s. 7. Proof of Foreigm Judgments. 394 NORTH AMERICAN COLONIKS. Chapter XII. Foreign probates. Service on foreign or domestic companies. Procedure when no appearance entered. Service where no accredited agent within the island. 19 Vic: c. 7. s. 2. The probate of all wills whenever offered in evidence shall be received :i% pr'una facie evidence of the execution of the will, of the contents, and of the death of the testator, unless proof to the contrary is offered. 28 Vic: c. 6. s. I. Every writ of summons [in an action brought against any corporation in the Supreme Court, the form of which is provided] may be served on the Mayor, President or other head officer, or on the secretary, clerk, treasurer or cashier of such corporation, or of any body politic, or corporate, not being established or incorporated within this Island, and which may enter into any contract or engagement, or transact any business therein, by their known or accredited agent or officer, every such writ or summons may be served on such accredited agent or officer, or on the person who at the time of such service may be the accredited agent or officer of such corporation, or body politic, or corporate, within this Island ; and such service shall have the like effect, in every respect, as the service of such summons on the officers of any corporation, as is herein before provided. s. 2. If any corporation should not cause an appearance to be entered, at the return of such writ of summons, or within twenty days after such return, in every case, it shall and may be lawful for the plaintiff in the action, upon affidavit being made and filed in the Supreme Court, of the due service of such writ, to enter an appearance for such corporation, and to proceed thereupon in like manner, as in personal actions against individuals. 48 Vic: c. 10 (amending 28 Vic: c. 6). s. I. In case there is no such accredited agent or officer residing within this Island, then such writ or summons shall either be served upon the known or accredited agent or officer of such corporation, company or body politic or corporate who may have heretofore entered into any contract or engagement or transacted any business in this Island for, or on behalf of such corporation or company or may hereafter do so wherever he resides, or such service may be made upon the president, vice-president, secretary or manager of such corporation at the head office of such company or corporation, and either of such services shall have the like effect in every respect as the service of such summons on the N£ WFO U x\ DLAXD. 395 officers of any corporation or company, as provided for in the act hereby amended. s. 2. Affidavit of service to be made according to 30 Vic: c. 18, s. 14 [ante p. 393]. Chapter XII. NEWFOUNDLAND. [including LABRADOR.] Consolidated Statutes, c. 20. s. 7. The same as EngUsh C. L. P. Act, 1852, s. 18, except that service out of the jurisdiction is allowed only when the cause of action arises within the jurisdiction. The section also applies to cases where any defendant resides out of the jurisdiction with no partner or recognised agent therein, s. 9. The same as English C. L, P. Act, s. 22. 43 Vic: c. 12 for the amendment of the administration of justice, introduced the main principles of the English Judicature Act and provided that rules are to be issued, apparently to be based on the English rules. The rules have not as yet been received at the Colonial Office. Consolidated Statutes, c. 23. ss: 12. 13. The same as English Act, 14 & 15 Vic: c. 99. ss: 7. II. Service out of the Jurisdiction. in what cases. Concurrent writs. Proof of Foreign Judgments. III. AUSTRALIAN. NEW SOUTH WALES 8l NORFOLK ISLAND. 17 Vic: No: 21. s. 16. The same as English C. L. P. Act, 1852, s. 18 s. 19. s. 17. s. 20. id; id: s. 22. 16 Vic: No: 14. s. 7, the same as English Act, 14 & 15 Vic: c. 99, s. 7. Service out of the Jurisdiction, As to actions against British subjects and foreigners. Concurrent writs. Proof of Foreign Judgments. 39^^ AUST KA I.IAN i i )I.ON I F.S. Chapter XII. jj^q Australasian Creditors Act [19 Vic: No: 12] Australian judgments. to givc further remedies to creditors against persons removing from one Australasian colony to another. A judgment from one of the other colonies, on being filed in the Superior Court of New South Wales, becomes as effectual as a judgment of that court, and execution may issue upon it. This Act resembles in its operation the Judgment Extension Act, i868, of the United Kingdom [c/: chapter xi.]. Service out of the Jurisdiction. Actions against British subjects. Against foreigners. One form of writ may be substituted for another. Concurrent writs. in what cases. circumstances to be con- sidered by judge. affidavit. time for appearance. Service of notice in lieu of writ. Australian judgments. Proof of Foreign Judgments. VICTORIA. Judicature Act, 1883, [47 Vic: No: 761] adopts the main principles of the English Judicature Act, with the orders and rules. s. 59. is modelled on s. 18 of the English Common Law Procedure Act 1852, incorporating however the principles of Order XL rule i [1875]. s. 60. the same as English C. L. P. Act, 1852, s. 19. s. 61. 2'd: s. 21. s. 62. />/.• s. 22. Order XI. rule i. The same as English O. XL r. i. [1875]. rule I a. t'd: r. la. ,, substituting ' if resident in any Australasian colony ' for ' if resident in Scotland or Ireland.' rule 3. The same as English O. XI. r. 3. [1875]. rule 4. uf: r. 4. ,, rule 5. id: r. 5. ,, Order II. rules 4 and 5, and Order VI. rule 2, are the same as the corresponding English Orders [1875]. 25 Vic: No: 274. s. 307, corresponds with the Australasian Creditors Act of the other colonies : [see supra, New South Wales]. s. 308, provides the method of obtaining execution in cases arising under the preceding section. 27 Vic: No: 197. ss: 20. 31, The same as English Act, 14 & 15 Vic: c. 99, ss:, 7. II. [s. 20 concludes thus : — And every such copy shall be primd, facie evidence of the original thereof, in like manner as if such original were produced and proved in due course of law.] QUEENSLAND. 397 The copy of probate of an English (or foreign) will is not Chapter XII, sufficient : the oritrinal probate or an exemplification under seal Z '. ; ^ >■ i- toreign probates. of the court must be produced and deposited in the court, (in the goods of Whittaker. 2 W. & W: I. E. & M. 114). And further, evidence that the foreign court had, in the parti- cular case, jurisdiction to grant the probate, must be given. The facts should be proved, where reasonably practicable, by affidavits made before Commissioners of the court, even where Imperial or Colonial Acts have made other evidence admissible. {in the estate of Von Stieglitz. 3 Vic: L. R: I. P. & M. 35). QUEENSLAND. Judicature Act, 1876. [40 Vic: No: 6] adopts with slight variations the English Judicature Act with the orders and rules. Order II. rule 4. A writ of summons for service out of the ■.. , ^ _ No leave required to jurisdiction or of which notice is to be given out of the jurisdiction serve out of the juris- •' o J diction. may be issued without leave. p„,^, ^,^^.,^ ,„j „„,;^^ rule 5. The same as English O. II. r. 5. [1875]. IgHsL 'forms!"' " rule 6. Time for defendant's appearance is to be Time to be allowed to T •, J r 11 r defendant for appearance. hmited as follows : for New South Wales or Victoria . . one month. Tasmania or South Australia ... six weeks. New Zealand or Western Australia . two months. Elsewhere ...... six months. Order VI. rule 2. The same as English O. VI. r. 2. [1875]. Concurrent writs. Order XI. rule i. The same as English O. XI. r. i. ,, Service out of the Jurisdiction. rule 2. In case any defendant being a British sub- . — ... ,..,.. •11111 '" what cases. ject IS residing out of the jurisdiction it shall be lawful for a court As to actions against ,. .-,. ^. J. .. British subjects. or a judge upon being satisned by affidavit that the cause of action is one in which under the last preceding rule a writ may be served out of the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant and that it came to his knowledge and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the court in order to defeat and delay his creditors to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to the court or judge may seem fit. 398 AUSTRALIAN COLONIES. Chapter XII. Order XI. rule 3. Notice of writ to be served on foreigner out of the jurisdiction. Notice of writ to be • ^ t i /-\ -vt- t r o 1 served on foreigner. fule 4. Thc samc as English O. XI. r. 5. I1575J. Service of notice of writ. Proof of Foreign 16 l/lC' C. 14. Judgments. — s. 7, the same as English Act, 14 & 15 Vic: c. 99, s. 7. Australian judgments. TliB Austmlasian Creditoi'S Act. [19 Vic: c. 12.] [See New South Wales, p. 396.] TASMANIA, (or VAN DIEMEN'S LAND). Service out of the [including the FURNEAUX GEOUP and KING ISLAND.] Jurisdiction. Actions against British 18 l/lC I\l0: 9. '"''^"''' s. 17. The same as English C. L. P. Act, 1852, s. 18. against foreigners. g. 1 8. !i^-' S. 1 9. concurrent writs. S. 2 2. Z«.' S. 2 2. The Inter-Colonial Judgments Act, 1878. [42 Vic: No: 8] Australian judgments. standing in the placc of the old Australasian Creditors Act (21 Vic: No: 20). [See New South Wales, p. 396.] The new Act is the same as the old one in its effect, providing for the execution of the judgments of the other Australasian colonies, but it contains more details as to the registration of the judgment. Tlie Inter-Colonial Probate Act, 1879. [42 Vic: No: 26.] Australian probates and An enactment similar to the preceding one relating to probates ' ' —'• -— ^^^ administrations granted in the other Australasian colonies. s. 2. Probates and administrations granted in the other colonies are to be of like force as if granted in Tasmania, on being resealed. s. 3. The seal is not to be affixed till the duty is paid : and as to administration till a bond is entered into. SOUTH AUSTRALIA. 41 & 42 Vic: No: 116 adopts with slight variations the English Judicature Acts. The orders and rules have not as yet been received at the Colonial Office, but it is presumed that they will resemble the English orders. administrations. WESTERN AUSTRALIA — NEW ZEALAND. 399 No: 2 of 1852. Chapter XII. ss: c.. Q. The same as Entilish Act, 14 & is Vic: P'^'f" o"' Foreign ^ ^ '^ ' ' ^ Judgments. c. 99, ss: 7. II. — The Australasian Creditors Act. [No: 9 of 1855—6.] [See New South Wales, p. 396.] Australian judgments. The Inter-Colonial Probate Act. [No: 137 of 1879.] [See Tasmania, p. 39S.] The provisions of this iVct extend to probates and administra- Probates and administra- tions of Australia, and of tions of the United Kingdom. United Kingdom. WESTERN AUSTRALIA. The Supreme Court Act, 1880. [44 Vic: No: 10] adopts with shght variations the Enghsh Judicature Act. The orders and rules have not as yet been received at the Colonial Office, but it is presumed that they will resemble the English orders. 16 Vic: No: 9, proof of foreign Judgments. ss: 7. 8. The same as English Act, 14 &: is Vic: , , ,. ~~ ' D / -r J Australian judgments. c. 99, ss: 7. II. The Australasian Creditors Act. [19 Vic: No: 13.] [See New South Wales, p. 396.] The Foreign Probate Act. [43 Vic: No: 5.] The provisions of this Act resemble those of Tasmania [rt-zz/d' P''°i^a'«=s and administra- ■'• L tion of Australia, and of p. 398] and extend to probates and administrations of the whole the United Kingdom, ^ '^-^ -^ . . . '■ and Colonies. of the British Empire. The Act is set out in full in the Appendix. NEW ZEALAND. [consisting of NORTHERN, MIDDLE and STEWART'S Islands.] The English Laws Act, 1858. [21 & 22 Vic: c. 2] declares the law in force in England up to January 14, 1840, to be the law of the Colony. 46 Vic: No: 29. [Code of Civil Procedure.] ^ ,,,,,., . . , - Judgments of courts in s. 27. It shall be lawful for any person m whose favour any h. m.'s dominions may judgment, decree, rule or order, whereby any sum of money is tionlssue^uponVhem! " 400 AUSTRALIAN COLONIES. Chapter XII. Form of memorial. Mode of obtaining execution. made payable, has been obtained in any court of any of Her " Majesty's dominions, to cause a memorial of the same containing the particulars hereinafter mentioned, and authenticated by the seal of the court wherein such judgment, decree, rule, or order was obtained, to be filed in the office of the court ; and such memorial being so filed shall thenceforth be a record of such judgment, decree, rule, or order, and execution may issue thereon as hereinafter provided : Provided further that every seal ])urporting to be the seal of any such court shall be deemed and taken to be the seal of such court until the contrary is proved, and the proof that any such seal is not the seal of such court shall lie upon the party denying or objecting to the same. s. 28. Every such memorial shall be signed by the party in whose favour such judgment, decree, rule or order was obtained, or his attorney or solicitor, and shall contain the following parti- culars, that is to say, the names and additions of the parties, the form or nature of the action or suit, or other proceeding, and, when commenced, the date of the signing or entering-up of the judgment, or of passing the decree, or of making the rule or order, and the amount recovered, or the decree pronounced, or rule or order made, and, if there was a trial, the date of such trial and amount of verdict given. s. 29. It shall be lawful for the court or any judge thereof, upon the application of the person in whose favour such judgment, decree, rule, or order was obtained, or his attorney, to grant a rule or issue a summons calling upon the person against whom such judgment, decree, rule, or order was obtained, to show cause, within such time, after personal or such other service of the rule or summons, as such judge or court shall direct, why execution should not issue upon such judgment, decree, rule, or order, and such rule or summons shall give notice that in default of appearance execution may issue accordingly ; and, if the person served with such rule or summons does not appear, or does not show sufficient cause against such rule or summons, it shall be lawful for the said court or judge, on due proof of such service as aforesaid, to make the rule absolute, or to make an order for issuing execution as upon a judgment decree, rule or order of the court, subject to such terms and conditions, if any, as to such court or judge may seem fit ; and all such proceedings may be had or taken for the revival of such judgment, decree, rule, or order, or the enforcement thereof by and against persons not parties to such judgment, decree, rule, or order, as may be had NF.W /F.ALAXn. 40I for the like purposes, upon any judgment, decree, rule, or order of Chapter XII. the court. ~ Second schedule : — Code of Ciu'il Procedure. s. 47. 'When a defendant is beyond the limits of the colony, if Service on agent, he have an attorney or agent authorised to transact his affairs generally, and to defend actions on his behalf, the writ may, by leave of the court, be served upon such attorney or agent, subject to such terms as the court may think right to impose. Service out of the Colony. ^^"j'wswction.^"" s. 48. The writ of summons may be served out of the colony in what ca^ by leave of the court — (i) When any act for Avhich damages are claimed was done within the colony. (2) When the contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any action, or for the breach whereof damages or other relief are or is demanded in the action, was made or entered into or was to be wholly or in part performed within the colony. (3) Whenever there has been a breach within the colony of any contract, wherever made. (4) Whenever it is sought to compel or restrain the performance of any act within the colony. (5) Whenever the subject-matter of the action is land, stock or other property situated within the colony, or any act, deed, will or thing affecting such land, stock or property. s. 49. the same as English Order XI, rule la [1875]. circumstances to be con- . , , sidered by judge. s- 50- la: rule 3 ,, affidavit. s. 51. Any order giving leave to effect such service shall fix the time for defence, time wiihin and the place at which the defendant is to file his statement of defence, and the sittings of the court at which the action is to be heard. Service Generally. s. 52. In any case not provided for by these rules service shal be effected in such manner as the court shall direct. Proceeding without Service. , . in certain actions on s. 53. In actions founded on any contract made or entered into, contract if defendant is ^ , . , . , , . absent service may be or wholly or in part to be performed within the colony, on proof dispensed with. 2 D 402 AUSTRALIAN COLONIES. Chapter XII. Judge to fix time for statement of claim. publication of service. action to proceed. Judge may order trial jury. defendant may file defence at any time before judgment. may obtain rehearing before three years haV' expired. that any defendant is absent from the colony at tlie time of the " issuing of the writ, and that he is hkely to continue absent, and that he has no attorney or agent in the colony known to the plaintiff who will accept service, the court may give leave to the plaintiff to issue a writ and proceed thereon without service, on giving security to the Registrar of the court by bond containing, besides such other stipulations as the court may think proper, a condition to pay to the Registrar all such sums as the defendant shall recover in the action in case the judgment given in the action shall afterwards be set aside, together with the costs sustained by the defendant. s. 54. When it is intended to proceed under the last preceding rule, the times and places for filing the statement of claim and for the trial of the action to be named in the writ of summons shall be fixed by the judge on giving leave to proceed. s. 55. After leave to proceed under s. 53 has been obtained, the writ of summons must be published three times at least in a news- paper to be appointed by the court when giving leave to proceed, and no further step shall be taken in the action until after the expiration of eight days from the publication of the last of such advertisements. s. 56. When leave to proceed has been granted under s. 53, the plaintiff before he can obtain final judgment in the action must proceed to trial and prove his claim before the court in the same manner as if a statement of defence had been filed by the defen- dant : Provided that, if the plaintiff does not require the case to ^y be tried before a jury, the judge may direct it to be so tried if he shall think fit. s. 57. The defendant may at any time before judgment, either himself or by his attorney or agent, file a statement of defence, and defend in the ordinary way, and in such case the action shall proceed as if the statement of defence had been filed in due course : Provided nevertheless that the court may order the defendant to pay the costs of such of the proceedings up to the time of filing the statement of defence as to the court shall seem fit. s. 58. If, at any time within three years after final judgment has been obtained in the action, an affidavit is filed by or on behalf of the defendant, stating that such defendant had at the time judg- ment was signed and still has a substantial ground of defence, either wholly or in part, to the plaintiff's action on the merits, it shall be lawful for the court or for a judge thereof, upon motion NEW ZEALAXI) — FIJI ISLANDS. 403 by the defendant, to cause the merits so alleged as aforesaid to be Chapter XII. enquired into and determined in such manner and form, either ' summarily or by means of trial, or by means of a new trial of the action, and at such time and place, and under such terms and conditions, and with or without security, as to the court may appear proper. s. 541. If the sole plaintiff or all the plaintiffs in an action be Security for costs. resident out of the colony, the court may, on the application of the defendant, order security to be given for the costs of the action to the satisfaction of the proper officer, and may order proceedings in the action to be stayed until such security has been given. The defendant must apply promptly after the fact of such residence out of the colony has come to his knowledge. The English Acts Act, 1854. proof of foreign '' Judgments. ss: 7.11. The same as English Act, 14 & 15 Vic: c. 99, ss: 7 . II. The Inter-Colonial Probate Act. [No: 38 of 1879.] The Act applies to the Fiji Islands. [See Tasmania, p. 398.] adn^illTation^^^^ FIJI ISLANDS. No: 14 of 1875 establishes a Supreme Court of Judicature in the Islands. s. 26. The Common Law, the rules of Equity, and the Statutes English law in force. of general application of the United Kingdom at the date when the colony obtained a local legislature, 2 January 1875, to be in force in the colony. s. 27. The practice in force in England at the same date to be English practice in force. in force in the colony. [The English Judicature Act with the rules of 1873 are thus in force, the later Act orders and rules not having as yet been adopted.] s. 28. Sections 26 and 27 are to apply so far only as the Construction of English circumstances of the colony and its inhabitants, and the limits of the colonial jurisdiction permit. To facilitate the application of the laws the court may construe the same with such verbal alterations not affecting the substance as may be necessary to render the same applicable to the matter before the court. 404 WEST INDIAN COLONIES. _ Chapter XII. jj^g Inter-Colonial Judgments Act. [No: 12 of 1875.] Austr.-ili.-»njudgaients [See NcW SoUth WalcS, p. 396.] The Colony has been included in the Inter-Colonial Probate Act of New Zealand. The Fiji Marriage Act. [41 & 42 Vic: c. 61 (U.K.)] Fiji Marriage Act, to render valid marriages solemnised in Fiji, before lo October, (U.K.). o 1874. IV. WEST INDIES. Service out of the Jurisdiction. Time for appearance to be mentioned in writ. Concurrent writs. in what cases service allowed. Affidavit to obtain leave. Order thereon. Service on agent authorised to bring actions. Service on other agents. JAMAICA. [CAYMAN ISLANDS, governed by the laws of Jamaica. 26 & 27 Vic: c. 31 (U.K.).] No: 24 of 1879 introduced the English Judicature Act into the Colony. No: 39 of 1879 promulgated a code of Civil Procedure following in substance the English orders and rules. s. II. In case of service out of the jurisdiction the writ shall require the defendant to enter an appearance to the suit within such time as the court shall have ordered. s. i8. The same as English O. VI, r. 2. [1875] s. 32. id: O. XI, r. i. „ omitting the notice of writ in lieu of writ. s. 33. 2d: r. 3. „ s. 34. Any order giving leave to effect such service shall pre- scribe the mode of service : [remainder the same as O. XI, r. 4.] s, 35. If the defendant has in Jamaica an agent authorised to bring actions for him, the court may order service of the writ and subsequent proceedings to be made upon the agent. The plaintiff may elect to proceed under this or under s. 32. s. 36. If the defendant carries on in Jamaica any estate or business and has no known agent on whom service can be ordered under s. 35, and the action is one which in the opinion of the court or judge may properly proceed under this section, service of the writ and sul)sequent proceedings may be ordered on any JAMAICA — BRITISH HONDURAS. 405 servant or agent in Jamaica carrying on the estate or business, in Chapter XII. such manner and in such place as to the court or judge seems fit. The court may order advertisements in newspapers if it thinks fit. The plaintiff may elect to proceed under this or under s. 32. The service under ss: 35 and 36 is equivalent in all respects to substituted service on the defendant under s. 23. 20 Vic: c. 19. s. 5. The same as English Act, 14 & 15 Vic: c. 99, s. 7. Proof of Foreign Judgments. 4 G. II. c. 5. ~ s. 3. Exemplifications of wills in the United Kingdom and the Validity of probates of . , . 1 r 1 1 United Kingdom and Colonies, and sent over after probate under seal 01 the court and Colonies ; afterwards recorded in the Island, shall be sufficient evidence and read and allowed as such, of the title of the parties claiming any lands or estates under such wills so exemplified in all courts of law or equity. 84 G. III. c. 77. s. 2. The probate of any will taken before any officer authorised of United States. to take probate of wills in any of the United States of America, and exemplified under the seal of the State where probate has been taken, shall be as efi"ectual as if probate had been taken before the Ordinary of the Island. 28 Vic: c. 14. The reasons of judgments delivered in the courts of the Island Reasons of judgments to are to be preserved and recorded in a book for reference. ^ preserve TURKS AND CAICOS ISLANDS. Annexed to Jamaica by the Turks and Caicos Islands Act, 1873. (36 Vic: c. 6. U.K.) Ord: No: 9 of 1852. s. 8. A copy of the process is to be left at the last abode of a Service on absent defendant once resident, but who has been absent over twelve ^ """ ''"'■ months ; and an affidavit must be made that the defendant was absent twelve months previous to issuing the writ, and that the cause of action arose previous to his departure. BRITISH HONDURAS. No: 14 of 1879 adopts with slight variations the English Judicature Act. 4o6 WEST INDIAN COLONIES. Chapter XII. Service out of the Jurisdiction. Time for appearance to be mentioned in writ. Concurrent writs. In what cases allowed. Affidavit to obtain leave. Order thereon. No: 15 of 1879. [Code of Civil Procedure.'] s. II. In case of service out of the jurisdiction or out of the colony, the writ shall require the defendant to enter an appear- ance within such time as the court shall have ordered. s. 1 8. The same as English O. VI, r. 2. [1875] s. 32. id: O. XI, r. i. ,, omitting the notice of writ in lieu of writ. s. 33. id: r. 3. „ s. 34. Any order giving leave to effect such service shall pre- scribe the mode of service ; [remainder the same as O. XI, r. 4.] Roman-Dutch law- prevails. Service on absent defendant. BRITISH GUIANA. [including DEMEEAKA, ESSEQUIBO and BERBICE.] The Roman-Dutch law prevails in the Colony, having been originally in the possession of the Dutch West India Company. {Steele v. Thompson, 13 Mo: P. C. C. 280.) That which was the law of Holland in Grotius' time is to be taken as the Roman-Dutch law in force in the Colony. {Norton V. Spooner, 9 Mo: P. C. C. 103.) [See also Cape of Good Hope, p. 412.] Ord: 26 of 1855. s. 25. When a defendant is absent from the colony, service of the writ is to be made upon the defendant's attorney if he has one ; if not, it is to be left at his last known residence or last elected domicil, and published in the official gazette. Service out of the Jurisdiction. Actions against British subjects. against foreigners. BAHAMAS. The Statute 40 G. III. c. 2 declares 'how much of the laws of ' England are practicable within the Bahama Islands, and ought ' to be in force within the same.' 17 Vic: c. 20. s. 13. The same as English C. L. P. Act, 1852, s. 18. s. 14. id: s. 19. 35 Vic: c. 6. s. 13. Documents legally admissible in any court in England are admissible to the same extent and for the same purpose in the courts in the Bahamas. TRINIDAD— WINDWARD ISLANDS— BARBADOS. 407 2 G. I v. C. 32. Chapter XII. Probates of wills exemplified under the seal of the United Validity of u.s. probate' States shall be valid as if taken before the Ordinary of the Island. TRINIDAD. The Island was taken from the Spanish in 1797. The Spanish Spanish law prevails. Civil Law prevails subject to the Acts of the Executive Govern- ment, Orders in Council and Imperial Statutes applying to the Colony. The Judicature Ordinance [No: 28 of 1879] service out of the adopts the English Judicature Act, with the orders and rules of urisdiction. o , In what cases. No: 12 of 1855 introduced the Imperial Acls passed up to that year to amend ^""juDGMJN-rif' °'' the Law of Evidence; including the Statute 14 & 15 Vic: c. 99, ' ss: 7 . II. WINDWARD ISLANDS. [BARBADOS to SAINT LUCIA inclusive.] The Court of Appeal for the Windward Islands sits in Barba- dos, and was constituted by Consolidated Statutes of Barbados, No: 299. BARBADOS. Consolidated Statutes, No: 40. [1755] provides for service of process asrainst persons absconding or Service on absent '■ . . delendants. avoiding service, or those who, having estates in the Island, reside beyond the seas and cannot be served. The affidavit and copy of the order made is to be put up within PubUcation of order. 14 days at the offices of the Registrar, Secretary and Clerk of the courts, and to be published in the Gazette. In default of ap- pearance the plaintiff's bill may be taken pro confesso, and the court may decree upon it. The plaintiff is to give security for repayment in case the defendant appears within 7 years, in which Decree may be reopened case he is to be served with a copy of the decree, which he is ^' '"''•^'''-" >"^^''^- entitled to reopen within 6 months. If the defendant have an attorney in the Island, the service may be upon him ; if he refuse to accept it, the court may appoint one Lo accept service for him. 4o8 WKSr INDIAN' COLONIES. Chapter XII. Consolidated Statutes, No: 334. [1859] Common Law rroceaure rcsulatcs thc Droceduic of the courts. Act. " '■ 41 & 42 Vic: c. 9 Foreign probates. proviclcs that all deeds, wills and other writhigs proved in the United Kingdom, in any of Her Majesty's dominions, or in any foreign country in manner prescribed by law, are to be deemed sufficiently proved and to be taken judicial notice of in Barbados. Service on absent defenJants. with power of attorney. without power of attoiin--y. with property. without property. actual residence. Proof of Foreign Judgments. SAINT VINCENT. Court Act, 1860. s. 1 6. If the absent defendant have an agent with a power of attorney recorded in the Secretary's or Registrar's ofifice, the service of the writ with a copy of the declaration may be made upon him, or upon some person residing at his most usual place of abode : if he has no such agent, the service is to be at the defendant's last place of abode, upon a member of his family or a servant : if he have freehold or leasehold property in the Island, the writ and copy of declaration may be affixed for service upon any part thereof : if he have none, the same may be nailed to the door of the Court house in Kingston ; an affidavit must be made of bona fide attempts to serve the writ : but such service can only be made on persons who have actually been resident, and who possess some real or personal property (however small) in the Island. Act No: 99. s. 7. The same as English Act, 14 & 15 Vic; c. 99, s. 7. Sf.rvice out or the Jurisdiction. in what cases. GRENADA. [and the GRENADINES.] No: 10 of 1882 adopts with some variations the English Judicature Act. No: 16 of 1882 established a Code of Civil Procedure based upon the English orders and rules. s. 19. The same as English O. VI, r. 2. [1875] s. 33. 2i/: O. XI, r. I. „ TOr>AC;0 — SAINT LUCIA. 4O9 omitting the service of notice of writ in lieu of writ. Chapter XII. s. 34. The same as EngHsh O. XI, r. 3. [1875] ~^^ S. 35' ^'**' ^- 4- )» time for appearance. Consolidated Statutes, /\lo: 134. [1874.\ s. 167. Probate of foreign wills exemplified under seal of the Foreign probates. foreign court shall \>q prima facie evidence of the original will. TOBAGO. A charter was granted to the Island 7 October, 1763, The Act of Tobago, November, 1841, provided that the English Common Law and Statutes of that date suitable to the colony- should be in force in the Island. \cf: The Colonial Bank v. Warden^ 5 Mo: P. C. C. 340.] /I/O/ W of 1879 reconstituted the Supreme Court of the Island and adopted the Enghsh Judicature Act. No: 11 of 1879 Service out of the . . . Jurisdiction. established a Code of Civil Procedure, based upon the English rules and orders. in what cases. The service of notice of writ in lieu of writ is omitted. No: 14 of 1869 pkoof of foreign adopted the English Law of Evidence, including the Act, 14 & 15 ^ — Vic: c. 99, ss: 7.11. SAINT LUCIA. The French law prior to June 23, 1803 prevails in the Island. French law prevails. [As to the construction of French ordinances, see Quebec, p. 386.J The Ciuil Code Ordinance, 1878. s. 14. All British subjects enjoy the same civil rights as natives Rights of British subjects of the colony except as set forth in the rules respecting doniicil. s. 20. Aliens though not resident in the colony may be sued in Actions against non- its courts for the fulfilment of obligations contracted even incases!"''"^""''"'''''' foreign countries. s. 21. Any inhabitant of the colony may be sued in its courts Actions against inhabit- for the fulfilment of obligations contracted in foreign countries, ""'"''" ''^^''""'''"' even in favour of a foreigner. 410 WEST INDIAN COLONIES. Security for costs. Proof of Forf.ign Judgments. Chapter XII. s. 22. A non-resident plaintiff is required to give security for costs, unless he has realty in the colony of not less value than ;^ioo, free of all charges. s. 1 152. The certificate of any British or Foreign Executive Government, and the original documents and copies of documents hereinafter enumerated, executed out of the colony, are prima facie evidence of the contents thereof, without any proof of the seal or signature upon them, or of the authority of the officer granting the same ; viz: — Judgments. 1- A copy of any judgment. or other judicial proceeding of any court out of the colony, under the seal of such court, or under the signature of the officer having the legal custody of the record of such judgment or other judicial proceeding. Wills and probates. ii. A copy of any Will cxccutcd out of the colony under the seal of the court wherein the original will is of record, or under the signature of the judge or other officer having the legal custody of such will, and the probate of such will under the seal of the court. Certified copies. iii. A copy Certified by the prothonotary of the copy recorded in his office of any such will and probate at the instance of an interested party and by the order of a judge of such court. The copy of a probate so recorded is also received as proof of the death of the testator. Judicial hypothec. Service on agent of absent defendant. These copies, probates, etc:, are held to be genuine unless impugned, and the onus of proof lies ujjon the party impugning them. The manner of impugning the documents is set forth in the Code of Civil Procedure. \cf: Quebec Civil Code, s. 145, p. 386.] s. 1923. Judicial hypothec results from judgments of the colonial courts. It also results from judicial suretyship, and from any other judicial act creating an obligation to pay a specific sum of money. [There is no special mention of foreign judgments as in the Code Napoleon.] Code of Ciuil Procedure, 1879. s. 66. If the defendant has left or has never had his domicil in the colony, and has property therein, the Court or Judge or the prothonotary, upon a return stating that he cannot be found in the colony, may order service upon any known agent of the defendant, when the power of atlornuy has been duly registered LEEWARD ISLANDS. 41I by the prothonotary, or may allow substituted service, or may Chapter XII. order that the defendant appear within two months from the last ~~ publication of such order, which must be published twice in the Gazette. s. 80. Every party appearins; in person is held, by reason of Appearance. J L J I L o 1 ... Service of subsequent such appearance, to have elected doir.icil in the office of the papers. prothonotary. Whenever one of the parties who has not appeared by solicitor has, since the commencement of the suit, left the colony, or has no domicil therein, all orders, rules, notices or other proceedings may be served upon him at the prothonotary's office, as being his legal domicil, provided the sherifT alleges in his return that he has made fruitless endeavours to find him, and that, to the best of his belief, he is not within the limits of the colony. s. 364. The defendant may apply by petition for the revision Revision of judgments by ,. , ,.,.., , , default. of any judgment rendered agamst hmi by default if he has been personally served beyond the colony within six months of the LEEWARD ISLANDS. [including by the Leeward Islands Act, 1871 (34 & 35 Vic: c. 107), ANTIGUA and BAKBUDA (Act of Antigua, Sept: 1858, confirmed, 23 & 23 Vic: c. 13) MONTSERRAT, SAINT CHRISTOPHER and ANGUILLA, NEVIS, and DOMINICA, with their respective dependencies, and the VIRGIN ISLANDS :— TORTOLA, VIRGIN SORDA, and ANEGADA.] No: 2 of 1880 [repealing No: 7 of 1876] adopted the English Judicature Act. No: 8 of 1876 [Code of Ciuil Procedure'^] service out of the •''-'' _ _ JdRISUICTION. s. II. In case of service out of the jurisdiction the writ shall ^. ^ — ■' _ _ lime lor appearance to require the defendant to enter an appearance to the suit within be mentioned in writ. such time as the court shall have ordered, S. l8. The same as English O. VI, r. 2. [1875] Concurrent writs. _ . -7 /-\ -sTT „ _ In what cases services S. 32. la: KJ. Al, r. I. ,, allowed. omitting the service of notice of writ in lieu of writ. g_ -y-y^ id; j-_ -2, Affidavit to obtain leave, S. 34. id; r. 4. ,, Order thereon. ANTIGUA. Act No: 33. [31 G. 111.] s. 59. Probate of wills under seal of competent courts of Her Probates of 11. m.'s ,,-,,•• I 1 1 • 1 r. 1 ^- dominions. Majesty s donnnions, when recorded in the Secretary s ofiicc, Chapter XII. 412 AFRICAN COLONIES. shall be good evidence to prove personal bequests in the Island ; and when recorded in both the Secretary's and Registrar's offices, to prove devises of realty in the Island, saving always the right of all and every person to invalidate, disprove or set aside the same wills by lawful or equitable causes. P'oreign probates. NEVIS. Act No: 12. [6 G. II.] s. 24. Probates of foreign wills exemplified under seal of the foreign court shall ht prima facie evidence of the original will. Service on joint con- tractors. Proof of Foreign' Judgments. BERMUDA. No: 8 of 1831. s. 2. Service of writ on one or more joint contractors to be good service on all, though some are out of the jurisdiction. No: 3 of 1853. ss; 7. 8. The same as English Act, 14 & 15 Vic; c. 99, ss: 7 . 1 1. V. AFRICAN. Roman-Dutch law prevails. Construction of the law. CAPE OF GOOD HOPE. [including BASUTOLAND and the TRANSKEI Territory, and BRITISH KAF- FRARIA (the British Kaffraria Act, 1865, 28 Vic: c. 5).] The Roman-Dutch law prevails in the colony. {Denysse?i v. Mostert, L. R. 4 P. C. 236. Aldridgev. Cafo, L. R. 4 P. C. 313.) The colony was founded in the middle of the 17th century by the Dutch, and they must be assumed to have carried with them the laws of Holland : including the Placaat of the Emperor Charles V, 4th October, 1540. Some of the provisions may have clearly come to an end from their very nature : but the legislature of the colony having power, if it is so minded, to put an end to any part of the ordinances, those parts which remain, however at variance with the principles of similar laws in the United Kingdom, must be enforced, unless they are repugnant to or inconsistent with recent ordinances of the colony. ( Thuyhiirii v. Sfeicard, L. R. 3 P. C. 47 8.) [See also British Guiana, p. 406]. NATAL — TRANSVAAL — SAINT HELENA. 413 The ordinances passed by the Dutch Governor and Council, Chapter XII. who were the sole legislative power in the colony prior to the Dutch ordinances prior cession in 18 15, form part of the lex scripta of the colony. [Van '° '^'5- Breda v. Silverhaucr, L. R. 3 P. C. 84.) The Acts providing for the administration of justice are No: 21 of 1864, No: 5 of 1879, No: 12 of 1S80, but there appears to be no reference in them to service out of the jurisdiction. By the Imperial Stntute 26 & 27 Vic: c. x^ the laws in force at Criminal laws of Cape ^ \, .' /-^ . extended to South Africa the Cape of Good Hope for punishment of crmies are extended to British subjects in territories in South Africa not within the jurisdiction of any civilised government. GRIQUA LAND WEST. annexed to the Cape by Act No: 39 of 1877 : the Proclamation of October 27, 1871, having previously declared that the laws and usages of Cape Colony were to be deemed the laws of the territory, so far as they should not be inapplicable thereto. [By the Constitution of the Orange Free State, 1854, it was declared that the Roman-Dutch Law should be the Common Law of the State where no other law had been made by the Volksraad. ( Webb V. Giddy, L. R. 3 App: Ca: 908).] NATAL. Ho: 10 of 1857 provides for the better administration of justice in the colony, but there is no reference to service out of the jurisdiction. TRANSVAAL. The Acts contain no reference to service out of the jurisdiction. SAINT HELENA. The court was constituted by Order in Council, dated 13 February, 1839. No: 1 of 1868 [October 6] declares that so much of the law of England as is applicable to local circumstances is in force in the colony. The Acts do not contain any reference to service out of the jurisdiction. 414 AFRICAX COLONIES. Chapter XII. Law. Procedure. WEST AFRICAN SETTLEMENTS. [SIERRA LEONE to LAGOS inclusive.] SIERRA LEONE AND GAMBIA. The two settlements were united 19 February, i866, and a Court of Justice was established : No: 9 of 1881 provides for the better administration of justice in the settlement. s. 19. The statutes of general application which were in force in England on i January, 1880, to be in force in the settlement. s. 25. The rules and orders of court which were in force in England on 6 April, 1880, to regulate the procedure of the Supreme Court of the Settlement. Service out of the Jurisdiction. Leave of court. Concurrent writs. Plaintiff out of the jurisdiction, to assign place for service. Court may require security in respect of counter-claim. GOLD COAST AND LAGOS. No: 4 of 1876 introduced with slight modifications the English Judicature Act : the procedure being based upon the English rules and orders. Order II, rule 5. Service out of the jurisdiction is to be by leave of the court. rule 7. The same as English O. VI, r. 2. [1875] Order VI., rule 1. Where a plaintiff, on whose behalf or by whom a suit is instituted or carried on, either alone or jointly with any other person, is out of the jurisdiction, or is only temporarily therein, he shall assign a fit place within the jurisdiction where notices or other papers issuing from the court may be served upon him. rule 2. If it shall be made to appear on oath or affidavit to the satis- faction of the court that the defendant has a dona jide counter- claim against such plaintiff which can be conveniently tried by the Supreme Court, it shall be lawful for the court in its discretion to stay proceedings in the suit instituted by such plaintiff until he shall have given such security to comply with the orders and judgment of the court with respect to such counterclaim as the court shall think fit. GOLD COAST — LAGOS— GIBRALTAR. 415 Order XI, rule 3. Chapter XII. AVhen the suit is against a British corporation or a company, ggrvice on RHtish cor- authorised to sue and be sued in the name of an officer or trustee, pcation or company, the writ or document may be served by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company, rule 4. When the suit is against a foreign corporation or company, Service on foreiRn cor- , . _, , . , . . , . , . , . . poration or company. havmg an orlice and carrymg on busmess withm the jurisdiction, and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving the same to the principal officer, or by leaving it at the office of such foreign corporation or company within the jurisdiction, rule 5. Where the suit is against a defendant residing out of but when defendant resides , . ........ r 1 r. i^ °"f °f ^"' carries on carrying on business within the jurisdiction of the Supreme Court, business in colony. in his own name or under the name of a firm through an autho- rised agent, and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on the defendant. rule 6. The same as English O. XI, r. i. [1875] in what cases service , . . . _ . . ,. - . allowed. omitting the notice of service of writ in lieu of writ. rule 7. id: r. 3. ,, Affidavit to obtain leave, rule 8. id: r. 4 ,, Order thereon. [with this addition.] And the court may receive an affidavit or statutory declaration of such service having been effected as priina facie evidence thereof. VI. MEDITERRANEAN, GIBRALTAR. By a proclamation, 11 December, 1867, it was declared that the law of England in force on 22 August, 1867, was to be con- sidered the law of the colony. 4l6 MEDITERRANEAN COLONIES. '"'""""'■ MALTA, [AND GOZOl. Code of Ciuil Procedure, 1854. (Based upon the Italian and French Codes), s. 749. Jurisdiction of the Court: the jurisdiction extends over Assumed jurisdiction. (2). Any individual as long as he is domiciled in the Islands. (3). Any individual in cases relating to things situate or existing in the Islands. (5). Parties who have entered into any engagement in the Islands, but only in regard to cases touching such engagement, and when they are present in the Islands. (6). Parties who although they have entered into a contract in some other country have nevertheless agreed to fulfil the engagements in the Islands ; or who have entered into such engagements as must necessarily be carried into effect in the Islands, the parties being present in the same. (7). All individuals in regard to any engagement entered into in favour of one of Her Majesty's subjects when- soever the sentence can be carried into effect in the Islands. Service on absent s. 752. (i). Natural born or naturalised Maltese subjects and EFE^jDANTs. ^jj othcr pcrsons domiciled in the Islands, being absent On a tese su jects, therefrom are presumed to be resident in their last place of abode in the Islands. On foreigners under s. (2). All Other of Her Majesty's subjects and foreigners not 749- (3) '(y)- being domiciled in the Islands in the cases contemplated in s. 749, (3) and (7) are presumed to be resident in the place in which the property exists, notwithstanding the case be not for such reason within the exclusive com- petence of the court of the aforesaid place. On agents. (7). In general all parties who have procurators or agents in the Islands, and those who are permitted to sue and to be sued by the means of procurators or agents are pre- sumed to be resident in the place in which any one of such procurators or agents resides, when the case is brought forward against such procurators or agents. CYPRUS. Ordinance, 21 December, 1878 established a High Court of Justice for the Island : the Act to be renewed every year. CEYLON — IIONG KONG. 417 s. 14. The English practice and procedure to be in force ; Chapter Xll. modified in the same manner as in the Fiji Act, s. 28 [p. 403]. English practice in force. s. 108. The court may order the transfer of any case to or from Transfer of cases to or . , ^^ .... ... , , , from Ottoman Court. the Ottoman court, if m its opinion it ought to have been instituted or would more properly be carried on in the court to which it is transferred. VIL EASTERN. CEYLON. The Roman-Dutch law prevails in the island. {Lindsay v. Rom,-inDutch law Oriental Ba)ik, 13 IMo: P. C. C. 401 ; Dias v. De Livera, L. R. p'^''^'"'" 5 App: Ca: 123.) [As to the construction of Roman-Dutch law, see British Guiana and Cape of Good Hope, pp: 406 . 412.] No: 9 of 1852. pkoof of foreign r, , -i^ f 1 « n IT- ■ Judgments. ss: 8 . I, the same as English Act, 14 & 15 Vic: — c. 99, ss: 7 . II. No: 4 of 1860 regulates the procedure of the courts, but there is no special mention of service out of the jurisdiction. No: 22 of 1871. [Statute of Prescription]. s. 5. domestic judgments are to be considered satisfied in Prescription of home iudgmenls. 10 years. HONG KONG. [including the KOWLOON Peninsula.] No: 6 of 1844 explains the ordinance of 1843, whereby it was enacted that jurisdiction over British ' the Courts of Justice at Hong Kong which are now or shall be """ •'^'''^' 'hereafter erected, shall have the same power, jurisdiction and ' authority in all matters whatsoever, whether civil or criminal, over < Her Majesty's subjects within the dominions of the Emperor of ' China, or within any ship or vessel at a distance of not more ' than 100 miles from the coast of China, that the courts aforesaid 2 E 4i8 EASTERN COLONIES. Chapter XII. ' have or shall have, over Her Majesty's subjects actually resident 'within Her Majesty's colony of Hong Kong.' and enacts that all writs and processes for carrying into effect any judgment decree or order of the said court shall and may be served and executed upon the person or property of the defendant according to the ordinance of 1843, notwithstanding such judgment, etc., shall have been pronounced or made in respect of matters arising within the said Colony. Service on British company. Service on foreign company. Service on absent defendant carrying on business in colony. Service out of the Jurisdiction. In what case. Time for appearance. Def-ndant to appoint agent. Declaration to be served with writ. No: 13 of 1873. [Code of Ciuil Procedure]. cl: viii. s. 5. In the case of British corporations or companies authorised to sue and be sued in the name of an officer or trustees, service may be effected by giving the writ to any director, secretary, or principal officer, or by leaving it at the office of the corporation or company. s. 6. In the case of a foreign corporation or company having an office in the colony, and the suit is limited to a cause of action which arose within the jurisdiction, the ^^•rit may be served on the principal officer, or may be left at the office. s. 7. If the defendant is out of the jurisdiction but carries on business in his own name or in the name of a firm through an authorised agent, and such suit is limited to a cause of action within the jurisdiction the writ may be served on the agent. s. 8. Service of the writ out of the jurisdiction is allowed when the court is satisfied by affidavit or otherwise that the suit is limited to a cause of action which arose in the jurisdiction. s. 9. The court is to fix the time for the defendant's appearance, and give any other directions it may think fit : The court will receive any affidavit or statutory declaration of such service having been effected as prima facie evidence thereof. cl: xi. s. 2. When appearance is entered, an agent in the jurisdiction is to be specified to accept substituted service of all further process while the defendant remains out of the jurisdiction : in default thereof, the court may proceed with the suit as if no appearance had been entered. cl: xxix. s. 2. Where service of the writ is allowed out of the jurisdiction, the court may order the petition to be filed forthwith, and a copy HONG KONG — MAURITIUS. 419 under seal of the court to be served on the defendant concurrently Chapter XII. with the writ. No: 2 of 1851. The jurisdiction of the Supreme and other Courts of Hong Suits between Chinese. Kong is defined not to extend to civil actions between Chinese subjects when originating out of the colony, unless the defendant has been resident in the colony six consecutive months before the commencement of the action. No: 3 of 1852. P'^^o" °^ foreign •^ Judgments. s. 5. The same as English Act 14 & 15 Vic: c. 99, s. 7. MAURITIUS. [including the SEYCHELLES Islands and BODEIGUES Island.] The French Civil Code prevails in the Island. {Lang v. Reed, French law prevails. 12 Mo: P. C. C. 72 ; H.M. Proaireur General v. Brimeau, L. R. I P. C. 169.) [As to the construction of French ordinances, see Quebec, p. 386.] No: 30 of 1871 1 Service on absent DEFENDANTS. s. I. The same as English C. L. P. Act, i8t;2, s. 18. If a a , ,- — ■ ° , J , .J. iw. i. iv/c. ^,_ ^^ FOU.EVILLE. [Colonies :— CORSICA, ELBA. African— ALGERIA, BOURBON K^'^^'^'^^^). furiddl^^^^^^^^^ part of GOLD COAST and GABOON, SAINTE MARIE, MAYOTTE, d'ltalie, 1879^ ppl 190- NOSSI-BE, SENEGAMBIA. American - SAINT BARTHOLOMEW, ^^^• GTJADALOUPE, MARTINIQUE, West Indies— FRENCH GUIANA (CAYENNE), SAINT PIERRE, MIGUELON. Asiatic— ANTILLES, CHANDERNAGORE, FRENCH COCHIN-CHINA, GOREE, KARIKAL, Northern MADAGASCAR, MAHE, ORAN, PONDICHERRY, SENEGAL. Pacific — CLIPPERTON, NEW CALEDONIA, MARQUESAS and LOYALTY ISLANDS. CAMBODGE, TAHITI, TOUAMOTOU, GAMBIER, TOUBOUAI, and the VAVITOU ISLANDS are under the protectorate of France.] The Justice of the Peace {Juge de Paix) has first to endeavour Constitution and juns- to conciliate the parties : and secondly to determine disputes up '°" ^ '^°"' ^' 44^> la'ROPK. Chapter XIII. to 200 francs (^8) ; also up to 1500 francs in disputes between hotel or inn keepers and others and travellers with regard to hotel bills, travelling expenses, loss and damage of goods, etc. The Courts of First Instance composed of three judges hear final appeals from the Justices of the Peace beyond 100 francs, and have an original jurisdiction in all matters which would not be heard by them. The Court of Referees {Conseil de prud'/iommes) determines disputes between workmen and employers. The Court of Commerce, composed of three judges, hears final appeals from the Court of Referees, and has an original jurisdic- tion in all commercial matters, and in bankruptcy. The Courts of Appeal, composed of seven judges, hear appeals from the Courts of First Instance and the Courts of Commerce in matters above 1500 francs. The Cour de Cassation, composed of eleven judges, is the final Court of Appeal from all the courts. [Ordinance, 15 January, 1629. s. 121. Judgments given, contracts or obligations recognised in foreign kingdoms and sovereignties for whatever cause shall have no lien nor receive execution in our kingdom ; thus the contracts shall have the effect of simple promises ; and notwithstanding the judgments our subjects against whom they may have been given may again contest their rights before our own judges.] It is understood that this ordinance has been repealed by the Loi du 30 Ventose, an xii, article 7. The distinction therefore which has always existed in France between foreign judgments in favour of, and those against French subjects should have entirely disappeared. The courts however seem still uncertain as to what course they intend to pursue. Service on absent defendants. in what cases. Ciuil Code. s. 14. A foreigner though not resident in France may be cited before the French courts to enforce the execution of engagements contracted by him in France with a Frenchman, he may be sum- moned before the tribunals of France on account of engagements entered into by him with Frenchmen in a foreign country. Corresponding rights will This section, Corresponding with the English Order XI, has been not be recognised. ^^^ subjcct of many dccisions ; among them it is important to notice those which have reference to similar rights assumed by FRANCE. 447 foreign countries : the French courts have been unanimous in Chapter XIII. declaring that * the converse of section 14 cannot be maintained ' without checkmating the sovereign rights on which the rule actor ' sequitur fonim rei depends : and section 1 5 cannot be extended ' to foreign courts. A Frenchman cannot be withdrawn from his 'proper judges except by French law or treaty.' {Hoive v. Bern- heim. J. 1880, p. 104.) The reasoning of the courts is fully explained in the following judgment: — ' L'article 14, Code civile a, il est vrai, apporte une ' derogation profonde a la regie actor sequitur forum rei, en permet- ' tant au Fran(^ais de citer I'e'tranger devant les tribunaux frangais ' pour I'execution des obligations contractees par lui envers eux : 'mais si notre loi a donn^ aux Frangais cette marque de haute ' solicitude pour leurs inte'rets, elle s'est gardee de declarer, [has ' refrained from declaring] que, reciproquement, le Frangais pouvait ' etre, contre son gre, traduit devant les tribunaux etrangers pour les obligations par lui contractees envers les etrangers : — II est evi- ' dent que le legislateur, qui a donn^ au Frangais I'eminente pre- 'rogative d'etre juge par les tribunaux francais, meme lorsqu'il ' joue le role de demandeur vis-a-vis de I'etranger, n'a pas entendu ' le livrer a la merci des tribunaux e'trangers lorsqu'il est lui-meme 'actionne comme defendeur.' {Floating Dock Co: w. Cezard. J. 1880, p. 105.) The result is that the courts have held that French members of French shareholders in an English company cannot be sued in England for payment of the "^ '^ compameb. amount of their contributions ; therefore a judgment in such cases will not be rendered executory, more especially when they have not been regularly cited before the English judge; when they have not been cited before him by a public officer appointed for this purpose in France ; when they have not been allowed to defend before the English jurisdiction; when they have not obtained before the judge the guarantees of a serious defence {defense serieuse). The same principle was acted on in St. Nazaire Co: v. Allair (J. 1882, p. 306), the exequatur on the English judgment being refused. A foreigner not domiciled in France may not avail himself of Foreigner not domiciled this section, more especially if the cause of action has arisen in the Ihe^seTtion'!'"' ^""'""^"^ foreign country. But a foreigner suing several defendants among whom is a foreigner, may in certain cases summon this defendant before the court seized with the action : but this court is only competent with regard to this foreign defendant, if the action where one of several co- against all the defendants is based upon the same cause of action, '''^''^"''""'^^ ^^ =» foreigner. 448 EUROPE. Chapter XIII. and if tlic co-defendants are not joined for the express purpose of bringing the foreigner within this rule. Thus an action on a guarantee may be brought by a Frenchman against a foreigner under this section. {Helstein v. Shaffauser and Waddington. J. 1880, p. 474.) renunciation of the right. It would sccm howcver that if a Frenchman brings an action abroad against a foreigner he will be held thereby to have re- nounced his rights under the section : but he may discontinue the lis alibi pendens. action abroad and commence one in France. The plea lis alibi pendens is unknown in France, because if there be a renunciation of the right the action in France will not be allowed to be begun. {Turpin v. O'Niel. J. 1876, p. 10 1 ; Vanderzee v. Socicte de Credit Jndustriel. J. 1878, p. 157; re Arnoult. J. 1880, p. 191.) The plea of //^ /^;/^?^/«_y v. Bonacini. J. 1880, p. 585). As to documents recognised (actes 7-efus) by foreign officials, M. Actes refus. de FoUeville thus paraphrases section 2128 making it more com- prehensible. ' Whenever the document is regular according to the ' form required by the law of the country where it was made, it ' shall have by virtue of the rule locus regit actum, the same eff'ect 'in France as if it had been executed before a French official' Thus a will made in a foreign country, and probate granted Foreign wills, according to the procedure of that country, would be executory in France, according to the terms of section 1134, which says: 'agreements legally entered into become as law to those who ' have entered into them.' A point frequently raised before the French courts is their com- Contestations entre petency to decide suits in which both parties are foreigners : the question has been fully discussed by M. Fe'raud-Giraud in a paper in the Journal de Droit International Prive. 1880. pp: 137, 225. As a general principle one foreigner cannot sue another foreigner in purely personal suits, or in suits relating to moveable property, unless the parties have accepted the French jurisdiction, or if the suit is to enforce the execution in France of engagements con- tracted in France or even abroad. And further the plaintiff" must have been authorised to fix his domicil in France, and the defendant must be resident there without having another domicil abroad. {Thornhillv. Trant. J. 1881, p. 59.) Law. 30 May, 1857. The right to transact business and to plead in France is ac- Foreign companies. corded to joint-stock companies, and other commercial or industrial associations which are subject to the authorisation of the foreign government. 456 EUROPE. Chapter XIII. Anglo-French con- vention. On this subject a convention was entered into between France and England, 30 April, 1862, in the following terms : — s. I. The high contracting parties declare that they mutually grant to all companies and other associations commercial industrial or financial con- stituted and authorised in conformity with the laws in force in either of the two countries, the power of exercising all their rights, and of appearing before tribunals whether for the purpose of bringing an action, or for defend- ing the same throughout the dominions and possessions of the other power, subject to the sole condition of conforming to the laws of such dominions and possessions. s. 2. It is agreed that the stipulations of the preceding article shall apply as well to companies and associations constituted and authorised previously to the signature of the present convention as to those which may sub- sequently be so constituted and authorised. The following is a list of the Treaties and Conventions which have been entered into by France in addition to the above : — with Sardinia, a convention dated 24 March, 1760, continued. with Italy, 11 September, i860. with Russia, 11 January, 1787. with the Grand Duchy of Baden, 16 April, 1846, renewed by convention, 11 December, 187 1, and extended to Alsace- Lorraine. with Spain, 7 January, 1862, with reference to security for costs not being required from subjects of the High Con- tracting Parties. [There was a further Treaty prepared in 1870 between France and Spain with reference to the enforcement of judgments, but it was never signed.] with Switzerland, 11 June, 1869, ' sur la competence judiciaire 'et I'execution des jugements.' The Franco-Sardinian Treaty, 1760. s. 22. In order to engender that reciprocity which should set the seal to this resemblance between the two nations in judicial matters and matters of contract, it is further agreed : — i. that in the same manner as liens established in France by public or judicial acts are admitted before the tribunals of H.M. the King of Sardinia, so liens established in future by public contracts, either by ordinances or judgments within the dominions of H.M. the King of Sardinia, shall receive like effect before the tribunals of France : ii. that, in order to favour the reciprocal execution of decrees and judg- ments, the Supreme Courts shall defer on either side with regard to legal formalities [a la forme du droit), to requisitions addressed in the objects herein named under the seal of the said courts. Lastly, that in order to derive the benefit of the judgment of the court, the subjects of the two nations respectively shall only be held on cither FRANCE. 457 side to the same formalities, and to give the same security for costs Chapter XIII. which are exacted from those who have a right to use the courts, according to the rules obtaining therein. The Franco-Russian Treaty, 1787. s. 36. The subjects of the two countries are respectively to have a free and easy access to the courts of justice, and to enjoy the same rights and advantages accorded to subjects. [This has been held to include an immunity from being required to find security for costs.] s. 38. The high contracting parties engage reciprocally to grant all possible assistance to the respective subjects against those who shall not have fulfilled the engagements of a contract made and registered according to the prescribed forms : and the Government on either side shall make use of, in case of necessity, the necessary authority to compel the parties to appear in justice in the places where the said contracts were concluded and registered, and to procure the exact and complete execution of everything that was there agreed to. The Franco-Baden Treaty, 7846. H.M. the King of the French and H.R.H. the Grand Duke of Baden, being desirous of procuring to their respective states the benefits that accrue from the prompt and regular course of justice, have considered that the best means for arriving at this end would be to conclude a convention which, rendering reciprocally obligatory, in each country, the judgments rendered by the tribunals of the other, should assure their respective execution in France and in the Grand Duchy. s. I. Judgments or decrees given in civil and commercial matters by com- petent tribunals of one of the two contracting states shall carry with them judicial hypothec in the other ; they shall moreover be executory when they have acquired the authority of res pidicata, provided always that the parties interested comply with the provisions of section 3 following. s. 2. The following tribunals shall be deemed competent : — i. That in the arrondissement where the defendant has his domicil or residence ; and further ii. In real actions, that of the arrondissement in which the subject of the action is situate ; iii. In matters relating to succession, that of the place where the succession is being determined upon ; iv. In company actions, when it relates to disputes between the members, or to suits brought by third parties against the company, that of the arrondissement in which it is situate ; V. That of the arrondissement in which the parties have elected a domicil for the execution of a deed. s. 3. The party in whose favour the judgment has been given in one of the two States, and who desires to avail himself of it, either by way of res judicata, or to bring about the seizure of the goods of the debtor who happens to be in that State, shall be bound to produce for this purpose a copy duly legalised, with a proof of service and a certificate of the Master stating that neither opposition nor appeal exist to the judgment. 458 EUROPE. Chapter XIII. If ^^^ registration of the hypothec only is required, a copy of the judgment duly legalised shall be sufficient, and an affidavit to prove service. On the production of these documents, the judgment shall be declared executory either by the Royal Court of Appeal, or by the Tribunal of First Instance of the debtor's domicil or of the place where the goods are situated, according as the decision shall have emanated from the first or second degree of jurisdiction. s. 4. The two contracting governments engage to forward summonses or citations, and to execute rogatory commissions, both in civil and criminal matters, so long as the laws of the country offer no opposition, receipts for summonses and citations shall be delivered reciprocally. s. 5. Rogatory commissions shall be delivered par voie diplomatique. s. 6. The costs occasioned by summonses or rogatory commissions, as well as the postage of letters shall be chargeable to the State receiving the request. s. 7. The Treaty is to remain in force for 5 years, then for 5 years more, and so on ; it may be dissolved by either State giving notice 6 months before the expiry of any term. The Franco-Spanish Treaty, 1862. s. 2. The subjects of the two States shall have mutually free and easy access to tribunals of justice, to claim or defend their rights, in all the degrees of jurisdiction by law established : and under this head shall enjoy the same rights and advantages already accorded or to be accorded to subjects. [This has been held to include exemption from finding security for costs.] The Franco-Swiss Treaty, 1869. II. Execution of yudgments, s. 15. Judgments and final decrees in civil or commercial matters, given either by tribunals, or by arbitrators, in one of the two contracting States, shall be, when they have acquired the force of 7'es judicata, executory in the other, according to the forms and under the conditions set out in s. 1 6. following. s. i6. The party in whose favour the judgment or decree is sought to be executed in one of the two States, should produce to the tribunal or to the competent authority of the place, or of one of the places where the execution should take place ; i. a copy of the judgment or decree legalised by the respective envoys, or in their absence by the authorities of each country : ii. The original writ of summons of the said judgment or decree, or such document as takes the place of the writ in the country. iii. A certificate given by the master of the tribunal where the judgment has been given, that there is no opposition, appeal or other motion to suspend the effect of the judgment. On the presentation of these documents, the demand for execution shall be decided upon ; that is to say, in France, by the tribunal assembled in the council chamber, upon the report of a judge assigned by the president and the conclusions of the public prosecutor ; and in Switzerland, by the com- petent authority in the form by law prescribed. In either case, it shall not be decided upon until a notice has been sent to the party against whom the FRANCE. 459 execution is sought, of the day and hour on which the demand will be Chapter XIII. adjudicated upon. ' " s. 17. The authority seized with the demand of execution shall not enter into any discussion upon the merits of the case. Execution can only be refused in the following cases ; i. If the decision emanate from an incompetent jurisdiction : ii. If it has been given without the parties being duly cited and legally represented, or by default : iii. If the rules of public law or the interests of public order of the country where execution is demanded are opposed to the execution of the decision of the foreign jurisdiction. The decision granting execution or refusing it shall not be liable to appeal, except by way of cassation, which may be taken before the competent authority, within the delays and according to the forms settled by the law of the country where it has been given. s. 18. When the judgment involves arrest for debt the tribunal shall not grant execution of this part of the decision, if the law of the country does not allow of it in the case to which the judgment refers. This measure can in every case only be adopted within the limits and ac- cording to the forms prescribed by the law of the country in which execution is sought. s. 19. The difficulties relative to the execution of judgments and decrees, ordered in conformity with sections 15, 16 and 17, shall be decided by the authority which has decided on the demand of execution. III. Transmission of Writs, Judicial and other documents ; Rogatory Commissions. s. 20. Writs, citations, notices, summonses and other documents of pro- cedure prepared in Switzerland and intended for persons domiciled or resident in France, shall be addressed direct by the Swiss government to its diplomatic or consular agent nearest to the Procureur de la Republique whose duty it is to remit them to their destination. The diplomatic or con- sular agent will transmit them to this officer, who will return receipts given by the persons to whom the documents are addressed. Reciprocally, the French government shall address to its diplomatic or consular agent in Switzerland nearest to the Swiss authority whose duty it is to remit them to their destination, writs and documents prepared in France and intended for persons domiciled or resident in Switzerland. The authority to whom the documents shall have been transmitted shall return to the agent the receipts received for them. s. 21. The two contracting governments engage to procure the execution in their respective territories of rogatory commissions granted by the magistrates of the two countries for examinations in civil and commercial matters, so long as the laws of the country where the execution of them will take place are not in opposition to them. The transmission of the said rogatory commissions should always be made par vote diplomatique, and not otherwise. The costs occasioned by these rogatory commissions shall be charged to the State requested to see to their execution. The decisions of the courts in French India follow the prin- French colonies, ciples laid down by the courts of the mother country. \cf: J.D.I.P. 1879, p. 552.] 460 EUROPE. Chapter XIII. Haiti. Japan, [Section 2123 of the Civil Code appears in the Haitian Code, s. 1890 : section 546 of the Code of Procedure has also been introduced into that of the Republic. It is believed also that a Civil Code based upon the Code Napoleon is being prepared in Japan.] GERMAN EMPIRE* [including the Kingdoms of PRUSSIA, BAVARIA, SAXONY, and WURTTEM- BERG: the Grand Duchies of BADEN, HESSE, MECKLENBURG- SCHWERIN, SAXE-WEIMAR, MECKLENBURG-STRELITZ, and OLDENBURG: the Duchies of BRUNSWICK, SAXE-MEININGEN, SAXE-ALTENBURG, SAXE-COBURG-GOTHA, and ANHALT: the Principalities of SCHWARZBURG-SONDERSHAUSEN, SCHWARZ- BURG-RUDOLSTADT, WALDECK, REUSS (Senior Branch), REUSS (Junior Branch), SCHAUMBURG-LIPPE and LIPPE : the Free and Hanse Towns, LUBECK, BREMEN and HAMBURG : and the Imperial Province ALSACE-LORRAINE.] The organisation of the courts and the procedure in civil, criminal and bankruptcy matters have been made uniform throughout the empire since the passing of the codes relating to these matters t {the so-called ' Rcichs Justizgesetze ') which came into force on the ist of October, 1879. Constitution of the courts. I. Organisation of Courts of Law. There are in Germany 1 9 13 Local courts {Amtsgerichte) 171 Provincial courts {Landgeric/ite) 28 Superior provincial courts {Oberlandesgerichte) The Imperial court [Rekhsgericht) in Leipsic.| The business of the local courts is transacted by single judges ; in the other courts all causes must be tried by several judges sitting * The whole of this chapter on German Law has been prepared by Mr Landrichter Vierhaus, of the Ministry of Justice at Berlin [Reichsjusiizamf]. The sections of the German Code are so concise that, in the opinion of that eminent judge no good purpose would be served by simply transcribing them. Coming from so authoritative a source, the author has felt justified in depart- ing from the plan adopted with the law of other countries, and in substituting the judge's lucid exposition of the law for the chapter he had himself prepared. Mr Ernest Schuster has kindly undertaken the translation of the German text. t We shall have chiefly to refer to the Code of Civil Procedure. The sections quoted without any further indication are taken from that code. X There is also a Supreme Bavarian court in Munich which takes the place of the Reichsgericht in certain civil matters arising within the kingdom of Bavaria. GERMAN EMPIRE. 461 together. The latter courts {CoUegial-Gerichte) are subdivided Chapter XIII. into divisions, which in the case of the provincial courts are called * chambers ' and in the case of the higher courts are called ' senates.' In civil causes The chambers of the provincial courts consist of 3 judges „ senates „ superior provincial courts „ 5 „ „ „ „ Imperial court „ 7 ,, In some of the provincial courts there are special chambers for mercantile causes ; they consist of a presiding judge (who is one of the regular judges of the court) and two merchants (mercantile judges). There are eighty such chambers for mercantile matters in Germany. Parties may appear in person before the local courts, but they must be represented by an advocate * in all proceedings before the provincial and higher courts. II. Jurisdiction. (i.) Jurisdiction '■ quoad materiani.'' A. Courts of first instance. (a). The local courts have jurisdiction (i) in actions concerning jurisdiction of the claims of property the value of which does not exceed the amount '^°""^" of 300 marks (^^15), (2) without limitation as to amount in certain simple matters in which a speedy termination is important, e.g. in disputes between the owners and occupiers of inhabited houses, between masters and servants, between travellers and innkeepers, carriers, boatmen, etc., in actions respecting breaches of warranty as to cattle, etc. These courts also act as bankruptcy courts. (b). In all civil matters, not included under (a), the provincial courts are the courts of first instance. B. Courts of appeal. An appeal from a local court is taken to the provincial court, in the district of which the local court is placed ; an appeal from a provincial court is taken to the superior provincial court, in the district of which the provincial court is placed. C. Final appeal. The decisions of the provincial courts on appeal from the local courts are not subject to any further appeal. In actions concern- * The functions of barristers and solicitors are perforn:ied by the same persons in Germany. 462 EUROPE. Chapter XIII. ing claims of property, the value of which does not exceed 1500 marks {;£']S) th^ decisions of the superior provincial courts are as a rule final ; in all other actions there is a further appeal (called * Revision ') to the Imperial court. * (2.) Jurisdiction *■ quoad locum.^ The jurisdiction of German courts extends to foreigners as well as to German subjects. The jurisdiction * quoad locum ' {Gerichts- stand) may be general {Allge/neiner Gerichtssfand) or special {Besonderer Gerichtssfand). A. General jurisdiction, (a) dependent on domicil. A person is generally subject to the jurisdiction of the court in the district of which he is domiciled, i.e. the court has jurisdiction in all actions against persons domiciled in the district, unless there be an exclusive jurisdiction of a particular court as regards a particular action [ss: 12, 13]. The domicil of a married woman, not separated from her husband by a decree of judicial separation, is the domicil of her of children. husband. The domicil of legitimate children is that of the father, the domicil of illegitimate children that of the mother, until they have acquired a domicil of their own [s. 17]. (b) dependent on place of residence, (eventually previous domicil.) persons without domicil. Persons wit/iout domicil are generally subject to the jurisdiction of the court, in the district of which they actually reside ; if no such place be known, or if it be situate outside of the German Empire, the court in the district of which they had their last domicil has jurisdiction over them [s. 18]. Jurisdiction in respect of dj micil. domicil of married women. (c) dependent on locality of siege. corporations. Municipal and other corporations, all associations which can be sued in their corporate capacity, and all estates and trust funds which can be sued as such are generally subject to the jurisdiction of the court in the district of which their siege is situated. If not otherwise determined, the place of the central administration is considered the siege [s. 19. (i)]. * As to Bavaria, cf: note on page 460. GERMAN EMriRE. 4^3 Chapter XIII. B. Special jurisdiction. The special jurisdiction of the courts is the jurisdiction which Special jurisdiction. they have independently of their general jurisdiction and, as a rule, by the side of it, and which is dependent on special circum- stances connected either with the person of the defendant or the nature of the action, A person may thus be sued either in the court to the jurisdiction of which he is getierally subject or in the court to the jurisdiction of which he is specially subject ; he may also be specially subject to the jurisdiction of several courts. If in this manner there is a choice of several tribunals, the plaintiff may choose one at his discretion [s. 35]. Special jurisdiction determined by (a) Place of occupation. Persons having permanent occupations away from the place by occupation. where they have their legal domicil (students, operatives, appren- tices, etc.), are specially subject to the jurisdiction of the court in the district of which they are occupied, as regards actions con- cerning claims of property [s. 21. (i)]. (b) Place of establishment. In the case of branch establishments for industrial, commercial by establishment. or agricultural purposes, from which business can be transacted immediately, the court of the district has jurisdiction in all actions concerning the business of the particular establishment [s. 22]. (c) ,5"/^^^ of corporation. In the case of corporations, etc., the court to the jurisdiction of by j%^ of corporation, which they are generally subject \cf: A. (c)], has jurisdiction in actions of the corporation against members as such, or in actions between the members as such [s. 23]. Corporations, etc., hting gefierally subject to the jurisdiction of the court in the district of which their siege is situated may bring actions against their members as such, and members of corporations may bring actions against each other as such in the same court. (d) Situation of personal property. In the case of actions concerning claims of personal property by situation of personal against persons not being domiciled within the German Empire, the p"^°p^'''>'- court in the district of which such persons have any property, or in the district of which the object claimed by the action is situate, 464 EUROPE. Chapter XIII. by situation of real property. {exclusive j urisdiction . ) by domicil of deceased person. has jurisdiction. The situation of a ' chose in action ' is determined by the place in which the debtor resides, and if a security be given, then the place where the security is situate, is also con- sidered a place where property is situate [s. 24]. * (e) Situation of real property. (^Dmglicher Gerichtsstand. ) In the case of actions concerning real property the court in the district of which the property is situate has exclusive jurisdiction. In actions concerning charges on real property and easements the place of the property charged or of the servient tenement is considered the place of the property. Personal actions can be instituted against the owner or occupier of real property as owner or occupier in the court of the district in which the property is situate [s. 25, (2)]. (f) Domicil of a deceased testator or intestate. Actions concerning claims of heirs, legatees, next-of-kin, etc., against the estate of a deceased person may be instituted in the court in the district of which the deceased person was domiciled. The actions of creditors may be instituted in the same court, as long as any part of the estate remains within the district, or as long as the estate is undivided [s. 28]. (g) Place of performance. Actions ex contractu may be instituted in the court, in the district of which the place of performance is situate [s. 29]. f (h) Place of tortious action. Actions ex delicto may be instituted in the court, in the district of which the tortious act was committed [s. 32]. Service on absent defenoants. III. Service Abroad, A. Individual Service. An action is commenced in Germany by the service of the statement of claim. * A trading firm established outside of the German Empire is not taken to be domiciled within the German Empire for the purposes of this rule, though it have a branch establishment or agency in Germany (Decision of the Reichs- gericht of June 20, 1882, quoted in the Annalen des Rekhsgerichts, vol. 6, p. 148)- t This rule holds good in the case of a person domiciled abroad havmg to perform a contract within the German Empire (Decision of the Reichsgericht of June 28, 1882, quoted in the Annalen, vol. 6, p. 126). Personal service. GERMAN EMPIRE. 465 After having been handed to the registrar of the court and Chapter XIII. marked by him with the date, on which the parties are summoned to appear, it is served on the defendant. This is done by the executive officer {Gerichtsvolzieher) if the defendant is domiciled in Germany. If he is domiciled abroad the presiding judge of the court has to see the service effected by addressing a request either to a competent authority in the foreign state or to the German consul or diplomatic representative at his discretion. There are no rules about the manner in which the service is to be effected. The certificate of the foreign authority, or of the German consul or diplomatic representative is sufficient to prove that the service has been effected [s. 182]. B. Public citation. If the defendant's residence be unknown or if in the case of a Public citation, defendant domiciled abroad the rules laid down with regard to service on absent parties are impracticable, or do not allow any hope of success, a public citation is permissible [s. 186]. Public citation after having been authorised at the suit of the plaintiff by the court before which the action is to be tried is effected by the registrar of the court ex officio* A certified copy of the paper to be served is posted on the notice board of the court and in the case of a summons an advertisement of an extract from the paper must appear twice in the journal, which usually contains the official announcements of the court and once in the * Official Gazette of the Empire.' Advertisements in other papers and at more frequent intervals may be ordered by the court [s. 187]. The advertisement must contain the designation of the court, the names of the parties, the relief claimed, the cause of action, the purpose of the citation and the times within which the party cited is to appear [s. 188]. In the case of a summons the service is considered as effected one month after the date, on which the advertisement has been inserted for the last time. The court has discretion to extend the time [s, 189]. * In the case of individual service the executive officer or (in the case of absent defendants) the presiding judge acts in a purely ministerial capacity and the question of jurisdiction does not arise ; in the case of a public citation how- ever the leave of the court is necessary. 2 H 466 EUROPE. Chapter XIII. Effect of Foreign Judgments. s. 66i. Defences. IV. Foreign Judgments. A. Execution. The judgment of a foreign tribunal cannot be executed,* unless such execution has been declared admissible by a judgment of execution ( Vollstreckiingsurtheit) to be obtained from the court having general jurisdiction over the debtor \cf: II. A], or if he be not subject to the general jurisdiction of any court, then from the court, in the district of which he has any property f or in the district of which the object claimed is situate [s. 660]. The judgment of execution is granted by the court without any examination of the legality of the decision. In the following cases, however, it will not be granted. 1. If the judgment of the foreign court has not as yet according to the foreign law acquired legal validity {Rechtskrafi).X 2. If by the execution an act would be enforced, the enforce- ment of which is not permissible according to German law. 3. If according to German law the foreign court had no juris- diction. 4. In the case of a German judgment debtor who did not enter an appearance, unless the summons or similar notice was served upon him personally within the foreign state in question, or within the German empire by means of a rogatory commission. 5. If reciprocity be not guaranteed [s. 661]. The interpretation of reciprocity has been given in a recent judgment of the German Imperial Court (II. Civil Senat, Entschd- dungen P. VII. No. 124, p. 406), reversing a decision of the Superior Provincial Court of Oldenburg. The court at Oldenburg had held (i) That reciprocity is complied with if a judgment of a similar nature is executed in the foreign state in question. (2) That to establish this fact it must be ascertained whether the objections raised by the defendant in a particular case against * Execution is not granted in the case of a foreign judgment unless the contents of the judgment admit of execution both according to the law of the country from which the judgment proceeds and according to the regulations of the German Code of Civil Procedure especially those laid down in the eighth book of that code (Decision of the Reichsgericht of April 7, 1883, Eniscliei- dungen in Civilsachen, vol. 9, p. 372). t As to the legal situation of property, cf: pp: 463, 464. % The meaning of Rechtskraft may be gathered from § 645. A judgment does not acquire ' Rechtskraft ' till the time for giving notice of appeal or for applying for restitution has lapsed. GERMAN EMPIRE. 467 the execution of the judgment, might have been raised effectively Chapter XIII. in the foreign state, and if the objections could not have been raised eff'ectively the requirement of reciprocity is complied with. The Reichsgericht (without expressing an opinion on the ques- tion raised by the first part of the decision, i.e. whether reciprocity is sufficiently complied with if a judgment of a similar nature is executed in the foreign state or whether it is necessary that the foreign state executes all judgments, without any limitations except those imposed by the German law) held that the second part of the decision is erroneous in law, because in Germany a defendant cannot raise any objections except those allowed by s. 661, and that therefore the question whether any other objections actually raised would have been effective in the foreign state, is perfectly immaterial. The same decision establishes the fact that the practice of the English courts does not satisfy the requirements of reciprocity as defined by the court. The judgment is set out in full on page 470. In another decision (i C. S. Entsch: Part VIII. No. 385, January 26, 1883), the Reichsgericht held that the plea of res judicata with respect to a foreign judgment is also subject to the requirement of reciprocity as well as the other requirements of §§ 660, 661. It is specially stated in the decision that the law laid down differs from the law practised by the English courts.* Awards in the same manner as foreign judgments, can only be Awards, executed if a judgment of execution has decided on their admis- sibility [s. 868 (i)]. The Imperial court [i C. S. Entsch: Part V. No. 114, November 5, 1881] has decided that it is immaterial whether the awards have been given in Germany or abroad, whether by German or by foreign arbitrators. f B. Proof. All foreign documents (and consequently foreign judgments) Proof of foreign must be recognised as genuine if they are legalised by a German ' dgments. * For a French translation of this decision cf: Clunet, J. D. I. P. 1883, p. 239, and for a review of the same, Beauchet in the same number p. 272 ; Beauchet disapproves of the reasoning of the Reichsgericht. t An action for the execution of a foreign judgment may be brought by the personal representatives or assignees of the original plaintiff; in such a case the German judge is competent to decide whether the persons claiming execution are in fact the personal representatives or assignees of the original plaintiff (Decision of the Reichsgericht of April 7, 1883, Entsch: in Civils., vol. 9, P- 374)- 468 EUROPE. Capacity to sue foreign companies. Security for costs. Chapter XIII. consul or diplomatic representative. In other cases the court has to decide whether they are to be considered genuine or not, according to the circumstances [s. 403]. V. Sundry Regulations as to the Legal Relations of German Inhabitants with Persons Living Abroad. A foreigner is capable of being a party to an action, if he is capable either according to the law of his country or according to German law [s. 53]. Hence corporations so capable of suing and being sued in their own country may also sue and be sued in Germany.* Foreigners becoming plaintiffs may be required by the defendant to give security for costs except in actions on bills of exchange and other written documents, or in actions arising out of claims which are entered in the mortgage register of a German court or where a foreign defendant has brought a cross-action or if the plaintiff is the subject of a country the courts of which do not require security for costs from German plaintiffs [s. 102]. Foreigners have to deposit three times the usual amount as security to the State and the action cannot proceed unless the deposit has been made. This rule is subject to the same excep- tions as the last.f Foreigners have no claim on the 'assistance judiciaire' unless reciprocity be guaranteed [s. 106 (2)]. When foreign law has to be administered by a German court, evidence of the foreign law need only be given, in so far as it is unknown to the court ; the court is not bound by the evidence given by the parties with regard to it and may make inquiries from other sources [s. 265]. When evidence is required abroad, the presiding judge is to address a rogatory commission to the competent authority, unless the German consul can take the evidence required [s. 328]. | The attempt at reconciliation by the judge in divorce suits which is required in other cases before a decree can be issued, is not necessary if the respondent's place of residence is unknown or abroad [s. 373]. Rogatory commission. If cxccution of a judgment has to be effected in a country the Suits m/ori/ia pauperis. Proof of foreign law. Taking evidence abroad. * R.G. 2 C.S. 14 April, 1882, Entsch: p. vi. No: 34, p. 138, s. 5. t Law as to Costs of June 18, 1878, s. 85. \ Evidence must be taken in the form required by the law of the country in which it is taken {e.g. as to oaths) (Decision of the R.G. of May 8, 1880, Entsch: C.S. vol. 2, p. 100). GERMAN EMPIRE. 469 authorities of which execute the judgments of German courts, Chapter XIII. without the necessity for a new action, the Court of First Instance should at the request of the judgment creditor request the com- petent authority in the foreign state to execute the judgment in question. If execution can be effected by the Consul of the Empire, i.e. where there are consular courts, the request should be addressed to him [s. 700]. An attachment may take place if it is to be feared that without Attachment. it the execution of a judgment would be made impossible or rendered very difficult. This state of things is presumed to exist when a judgment would have to be executed abroad. The ques- tion whether the defendant is a German or foreign subject whether he is domiciled in Germany or abroad is immaterial [s. 797]. Foreign creditors according to the view of the German bank- Bankruptcy. ruptcy law are in the same position as German creditors. The Foreign creditors in . . , , German adjudication. Chancellor of the Empire may however with the assent of the Federal Council except the subjects of states who do not practise reciprocity in this respect.* If a person having property in Germany is declared a bankrupt Effect of foreign adjudi- abroad execution may be granted against such property notwith- standing the foreign bankruptcy. The Chancellor of the Empire with the assent of the Federal Council may allow exceptions from this rule in favour of particular states, t A debtor not generally subject to the jurisdiction of a German Jurisdiction of German court may be liable to proceedings in bankruptcy with respect to property situate in Germany if he have an establishment in Germany from which business may be transacted immediately. If bankruptcy proceedings have been taken against him abroad, proceedings in Germany may be taken without any further proof of his insolvency [s. 208]. VI. Treaties. There is a treaty between the Grand-duchy of Baden and Treaties. France, 16 April, 1846, for the mutual enforcement of the judg- ments of the two countries. This treaty was extended to Alsace- Lorraine by Act 18 of the additional treaty annexed to the German-French Treaty of Peace, 11 Dec, 187 1. There is also a treaty between the Grand-duchy of Baden and the Swiss Canton Aargau, dated 23 August, 28 September, 1867. * Bankruptcy Code, s. 4. t Bankruptcy Code, § 207. 470 EUROPE. Chapter XIII. There is further a treaty between Austria and the Grand-duchy of Baden relating to the mutual enforcement of judgments in civil matters, the provisions of which have been published in the Baden Official Gazette under date 26 June, 1856.* DECISION OF THE REICHSGERICHT IN AN ACTION ON AN ENGLISH JUDGMENT, REFERRED TO ON PAGE 467. Reported Entshcidungen des Reichsgericht in Civilsachen. Vol: vii. p. 406.+ The defendant is a shipowner residing in the Grand-duchy of Oldenburg. One of his vessels was shipwrecked in the Thames and in consequence vessel and cargo were sold in London for account of those concerned. The total proceeds were paid to the defendant's agents in London, W. & G. The plaintiffs I. & Co. in London had a claim of £111^ 14^. \d, payable out of the proceeds, as part-owners of the cargo. Not being able to recover this amount from W. & G., who had in the meantime become insolvent, they sued the defendant in a London court. The defendant accepted service without dis- puting the jurisdiction of the court in question ; the Court of First Instance found for the plaintiff and the defendant's appeal was dismissed. The judg- ment having become valid, the plaintiffs sued defendant in the provisional court at Oldenburg asking the court to declare the plaintiff's right to execution by issuing a writ of execution (C. C. P. § 660). The defendant contested the plaintiffs claim on the basis of § 661, 2nd section Nos: 3 and 5, asserting that the jurisdiction of the English courts in the action in question was not justified according to German law and that recipro- city in England was not guaranteed. The provisional court issued the writ of execution as asked for by the plaintiff. The defendant's appeal was dis- missed the Court of Second Instance deciding that the jurisdiction of the English courts required by § 661, section 2, No: 3, although not existing originally, was justified by a tacit understanding according to §§ 38, 39 C. C. P. and that reciprocity must be considered as guaranteed according to the habitual practice of the English courts. With regard to the latter point, the Court of Appeal rested its decision on the assumption, that a guarantee of reciprocity is not only found in treaties or statutes, but that it exists already, when, as a matter of fact, the judgments of German courts are executed in a foreign country, without further examination of the legality of such judgments. The court was further of opinion, that the only point to be decided in a particular case was, whether the execution of a German judgment of the same kind could be considered as guaranteed in the foreign state in question, and the court held that in the present case this question must be answered in the affirmative, because the points raised by the defendant against the judgment, of which execution was demanded, were according to his statement only the following : * The Reichsgericht has also held that reciprocity is guaranteed between the German Empire (generally) and Austria, even in the absence of treaties to that effect (Decision of Sept. 22, 1883, Annalen & R.G. vol: 8, p. 354) because the Austrian decrees of May 18, 1792, June 18, 1799, and Feb. 15, 1805, have generally prescribed the execution of foreign judgments in civil actions, in so far as the jurisdiction of the foreign judge does not admit of being disputed, and in so far as the foreign state in question executes Austrian judgments. t The references to English text-books are omitted. GERMAN EMPIRE. 47 1 (i) that judgment had been obtained by an incorrect representation of the facts Chapter XIII. {2) that he had a counter-claim against plaintiff ; points of this kind, however, — could not have been raised in an English court, when the execution of a foreign judgment was in question. The defendant appealed to the Reichsgericht and was successful, the plaintiff's claim being dismissed for the following Reasons : The recognition of the jurisdiction of the English courts as based on tacit understanding, cannot legally be objected to. The defendant in his contention before us has confined himself to maintain- ing that the supposition of the Court of Appeal that reciprocity is guaranteed in England is erroneous in point of law. He has supported his contention by asserting (i) that the habitual practice of foreign courts as a matter of fact could not be considered as a guarantee of reciprocity (2) that according to the rules adopted by the practice of English courts a further examination of the legality of foreign judgments (of which execution is demanded) is allowed, contrary to the requirements of reciprocity. The rules which English courts apply with regard to the execution of foreign judgments form according to the English legal conception, a part of the Com- mon Law that is of the lex non scripta which only exists in the mind of the judges {in gremio magistratum) and which rule on the principle that legal practice {Jurisprudenz) is binding as law in the same manner as law created by statute. If the security for reciprocity required by the expression ' being guaranteed ' The law by which may be found, according to the intention of the Code of Civil Procedure (as ""eciprocity is guaranteed ^ . ° ... may be part oi the appears from the minutes of the committee of justice p. 334 ss. 440 ss. and 'unwritten law' of the as other imperial statutes determine [German Criminal Code, ss. 102, 103, 187]) '°''^'S" country. not only in international treaties but also in the existence of corresponding laws enacted by the foreign state, the expression ' law ' must include here, as well as in s. 12 of the Act introducing the Code of Civil Procedure, every legal norm [Jiechtsjiorm) and it can therefore make no difference whether the laws in question belong to the zvritten or the umuritten law of the foreign state. As a matter of course, however, there can be no question of a guarantee by law, unless the existence of the laws in question be beyond doubt. The guarantee of reciprocity might therefore be affirmed with regard to England, if it could be safely assumed that a principle of law exhausting the requirements of reci- procity exists and is universally recognised by the English courts. According to § 661 sec. i of the C. C. P. the writ of execution is to be issued By German law foreign without an examination of the lemlity of the decision. The German courts. Judgments are executed ,r■i■,^■ without any further therefore, are bound to the tcnqualified recognition of the legal validity {Rechts- examination as to their kraft) of the judgments of foreign courts (which are to be enforced by them) b^done 'in afford \™"^' after they have become valid by the law of the state in which they have been State to satisfy the obtained. It is therefore an essential requirement of reciprocity, that the law ^^q""'«=™ent of recipro- of the foreign state should recognise in an equal degree the legal validity of the judgments of German courts (which are to be enforced by its courts) and that an examination of their legality, both as regards the material justice of the decision as to matters of fact or law, and with respect to matters of procedure, should neither be required as a condition of their execution, by the court ex officio, nor be allowed by the admission of pleas which tnight lead to it. The question remains, whether beyond this there is a further general requirement of reciprocity according to which it is necessary that the law of the foreign state imposes no conditions on the admissibility of the execution of foreign 472 EUROPE. Chapter XIII. It is not sufficient that the objections which are raised against the execution of a particular judgment cannot be raised in the foreign State. Views as to foreign judgments held in England. (a) In former times. judgments beyond those contained in § 66i [sec. 2, § 2, 3, 4] ; (these require- ments would be that the act to be enforced is enforceable according to the law of the country, that the courts of the foreign state are competent according to the law of the countiy, that in the case of a judgment against a contumacious German service has been effected in the prescribed manner) or whether, as the Court of Appeal has decided the question of reciprocity is only to be decided with regard to the converse case and that uniformity may be said to exist, when there is a guarantee that a judgment of the same kind would be enforced in the foreign country, but this question need not be decided with reference to the case before us. The Court of Appeal has however based its decision on the further assump- tion, that with regard to the question whether the execution of a German judgment of the same kind is guaranteed in England, it is sufficient to ascertain whether the English law admits objections of the same kind as the present dcfoidant thinks he can raise against the English judgment (according to his statement) which objections as a matter of fact, are directed only against the material justice of the decision. This assumption is erroneous in law because, after what has been said, the point to be established, with reference to the question of reciprocity, (even if it be confined to judgments of the same kiitd), is, whether according to the English law it is in any case possible to impugn the legality of the decision and because reciprocity may also be considered endangered by the admissibility of pleas of a different kind. That this assump- tion is bad in law may also be concluded from the fact that according to § 661 sec. I, the defendant's objection against the legality of the judgment, which is to be enforced, cannot be considered in Germany and that therefore he cannot be bound to declare himself as to the objections which he might lie able to raise, if any objections were admissible, in consequence of which the German judge — as a mere matter of procedure — is already disabled from being guided by the position of the foreign law with regard to these particular objec- tions. The judgment in question must therefore be annulled and with regard to the matter itself the decision must be altered as to the question of reciprocity. [Then follow some arguments showing that the statements of the Court of Appeal as to the position of English law are too incomplete and partly also not clear enough to serve as a basis for an amended decision, and a paragraph giving the reason why the Reichsgei-icht enters into a statement of the English law, the decision of the Court of Appeal on a point of foreign law being generally final.] The only official document referring to the matter is a letter addressed by H.B.M.'s ambassador to the German Foreign Office dated September 24, 1880. The ambassador states : that he is instructed to declare that English courts are legally authorised to execute the judgments of foreign courts ' unless the ' defendant can impeach them as being contrary to natural justice or on the ' ground of the judgment having been irregularly obtained.'' This matter is fully discussed especially in its modern development, and the decisions on the points involved are given in the books already quoted. It is on the statements of their authors that the following remarks are based. It has been established in English law for a considerable time that a defen- dant condemned by the valid judgment of a foreign court, can be sued in an English court without its being necessary to enter into the merits of the case. Formerly however judgments in personam were only considered pi-imafacie evidence (judgments in rem received a more favourable treatment), that is they established a presumption, conclusive in itself but liable to be rebutted GERMAN EMPIRE. 473 by counter-evidence, in favour of the existence of the original debt ; the counter- Chapter XIII. evidence — admissible in the form of normal pleas which had to be supported — by defendant — could therefore be directed to disprove the existence of the debt or to repudiate the binding character of the judgment, by pointing out illegalities as to matters of procedure. It needs no argument to show that this treatment of the matter does not constitute a recognition of the legal validity of foreign judgments and that a guarantee of reciprocity from the point of view of the German Code of Civil Procedure cannot be found in it. Within the last twenty years however an opinion has gained ground in (b) In recent times. English legal opinion that a legally obtained valid judgment of a foreign court, whether in rem or in personam must also be considered in England as a con- clusive decision on the merits of the case (the so-called vierita causa) and that when an action is brought into an English court to enforce a foreign judgment in personam, the cause of action is not the original obligation, but the obliga- tion based on the judgment. But though this modern doctrine, as we must suppose from the representation Recent views not con- of the authors quoted above and from the decisions they refer to, has become '"''"'^'^ ^^ ^'^^'"' ''°""^' established in the inferior courts, it has, according to one of them, not as yet been before the highest courts, and as long as the confirmation of the highest courts is wanting to it, we must abstain from considering it so firmly established, that its general applicability and permanence may be viewed zs, guaranteed. It must further be considered that even this modern doctrine has retained Even recent views allow the view that the legality of the procedure which is a condition of the recognition legality of procedure. of a foreign judgment is Y>^o\ed prima facie by the judgment but can be rebutted by counter-evidence. This view is in contradiction to the principle of § 66l, sec. I. It must however be borne in mind, when the principle of the Code of Civil Procedure is applied (namely, that a guarantee of reciprocity can also be found in the existence of corresponding laws in the foreign states) that a complete harmony of the laws of different countries cannot be expected, and we shall be justified, when comparing foreign laws, in looking less to their theoretical and formal construction, than to their practical intention. Starting from this point of view we must acknowledge that modern English decisions have in some directions abolished the pleas which were formerly admissible against foreign judgments and in other directions have curtailed them to a great extent, but several pleas have remained, which essentially prejudice reciprocity in so far as the principle of § 66i, s. i, is concerned, their admissi- bility being in some cases recognised up to the present time whilst in other cases it is desired by many authorities, but considered uncertain and subject to controversy by others. (a) With reference to this point we must, certainly, observe that the plea of Pleas against foreign violation of natural justice has in our days, no material and altogether no ^^n^i^nJj'^ admissible in independent significance, the expression being only used for certain definite (a) Violation of natural pleas which are otherwise admissible. justice. {b) It is allowed to plead that the foreign court had no jurisdiction and that (b) Want of jurisdiction, service had not been duly effected or that the defendant had not sufficient time to prepare his defence, but these pleas may as a rule not go beyond the require- ments of § 66 1, s. 2. We must however emphasize the fact, which is of particular importance with respect to the question of jurisdiction in the case before us, that in English practice there are still differences of opinion about the question, whether and under what conditions a foreign court which ori- ginally had no jurisdiction, becomes competent by the voluntary submission of the defendant. (c) Error apparent on {c) A plea alleging that the judgment is based on an error of the judge as to 'ace of judgment. 474 EUROPK. Chapter XIII. ^^'^ facts, is, certainly, no longer admissible in so general a form, but the admissibility of such a plea is still an open question in those cases, where error is apparent on the face of the judgment. Though such a plea, with this limitation, has no appreciable practical value in the case of an English judg- ment, as to which the question of fact is settled by the verdict of a jury, it cannot be denied that in the case of German judgments (which must contain a detailed exposition of the grounds of the decision including questions of fact) it can assume considerable importance, where the facts are complicated and doubtful, and that in such a case the admission of the plea leaves a wide opening for judicial discretion. ^) Error in application of [d] A plea to the effect, that the foreign judge has been mistaken as to a question of law is no longer admissible where his own law or the law of other foreign countries is concerned ; the admissibility of the plea in the case of an alleged error in the application of English law is however still open to con- troversy. (e) Violation of comity of {e) It is further allowed to plead that maxims of international law have been violated (this is also called a violation of the comity of nations) especially when English law, contrary to the rules of international law, has not been applied. (f)Judgment obtained by {f) It is allowed to plead that judgment has been obtainedby the plaintiff's "^^°- or the judge's fraud. This principle is carried so far, that the omission to apply English law in cases where its application would have been obviously required, according to the opinion of the English judge, is considered a wi/ftil refusal and therefore a fraud committed by the judge. This wide interpretation being given to the term ' fraud,' the fiction of a plea alleging that the plaintiff has obtained the judgment by fraud may lead to decisions which are virtually a re-examination of the material grounds of the decision, of which execution is demanded. (g) The limitation of The decisions of foreign courts as to questions of the limitation of actions actions part of the lex cannot be recognised by English courts. This principle rests on the opinion which prevails in England, that the limitation of actions is simply a matter of procedure, which does not affect the continuation of the obligation and does not belong to the merits of the case. It is however in contradiction with the German view according to which the limitation of actions is part of the substantive law and equivalent to the prescription (viz. the extinction) of the obligation ; this opinion there- fore affects the recognition of the validity of the judgments of German courts on this question. It appears from all these facts, that even in the present state of English legal practice it is possible to contest the legality of the judgments of German courts, of which execution is demanded in an English court, that this can be done by pleas, the admissibility of which is partly undisputed, partly depen- dent on the settlement of controversies which are still in existence, that especially the competence of a German court (supposing it had arrived at a decision under the same circumstances as the English court in the case before us) could not be considered established beyond doubt in England, and that further (which fact has a generally binding significance) the pleas in question include some, which according to their legal intention could be urged against atiy foreign judgment (viz. those alleging apparent error and fraud) and the success of which can in a good many cases only depend on an extensive measure of judicial discretion. In such a state of the law the guarantee of recip7-ocity required by § 66 1 cannot be found. GREECE. 475 Chapter XIII. GREECE. [n.-j. saripolos. [including the IONIAN ISLANDS.] J- "• '• ''• '2^°' p- '73.1 The Justice of the Peace (circnodikcs) has civil and commercial Constitution and juns- . ... 1 1 / /- \ diction of the courts. jurisdiction up to 300 drachmas (^12). The Tribunals {dikasfcrion), composed of three judges, hear final appeals from the Justices of the Peace and have an original jurisdiction in all civil and commercial matters beyond 300 drachmas. There are Courts of Commerce in two districts having a purely commercial jurisdiction. The Court of Appeal {ep/ieteio/i), composed of five judges, hears appeals from the Tribunals in civil matters beyond 500 drachmas, and in commercial matters and from the Courts of Commerce beyond 800 drachmas. The Court of Cassation or iVreopagus {areios pagos\ composed of seven judges, is the supreme tribunal and hears appeals from all the courts. Code of Giuil Procedure. s. 8ic8, the same as Code Napoleon, s. 2123. [p. 449I. ^ . ^ Li ^j Effect of Foreign s. 859. The exequatur is granted Judgments. i. by the President of the tribunal of first instance of the place where both parties where execution is to be issued according to the formula in sections 119 and 857, and without other examination of the merits of the judgment or public document, if all the parties to the cause are foreigners : ii, by the whole tribunal of first instance, and only after exami- where one party a native. nation into the merits of the case if one of the parties is a native. In this latter case the dispositions which have obtained the exequatur, as well as those to which it has been refused, must be signed by all the judges and the clerk, s. 860. In this latter case [s. 859, ii.] the tribunal can only refuse execution when the judgment is found to be in opposition to the facts proved, or when the judgment or other public docu- ment is contrary to the prohibitive laws of the State. s. 861. When in this case the tribunal has refused the exe- quatur, i. the foreign judgment becomes of no effect, and the action must be fought out again before the tribunals of this state. 476 EUROPE. Chapter XIII. ii. the public documents executed abroad when they have been signed by the parties are to be considered in the nature of private agreements drawn up between the parties, agreeably to the Greek law upon the subject. An appeal is allowed within lo days. Loi d'hypotheque. August 11, 1836. Sment': """"'""^ ^''°'" The judgment, when the exequatur is given upon it, assumes the force of res judicata ; and there arises a general hypothec upon immoveables in the country 'presents et a venir.' [ss: 14. 16. 22. 67.] Service on aiiSent defendants. in what cases. Security for costs. IONIAN ISLANDS. The Civil Code is based upon Italian law which prevails in the Island. Giuil Code. s. 8. A foreigner though not residing in the Ionian Islands may be cited before the Ionian tribunals for obligations contracted by him with an Ionian in the Ionian States. s. 9. A foreigner residing in the Islands may be cited before the Ionian tribunals for obligations contracted by him with an Ionian in the Ionian States. s. 10. A foreigner residing in the Islands may be cited before Ionian tribunals for obligations contracted by him in a foreign country provided the subject in dispute exist within the States. s. II. In all matters except those of commerce, a foreigner when plaintiff shall be bound to give security for the payment of the expenses and damages resulting from the process, when he does not possess in the State real property of sufficient value to assure the payment. [m. sanna. cesar norsa. r. d. i. 1877, pp: 78, et seg:] Constitution and juris- diction of the courts. ITALY. [including the States of LOMBARDO-VENETIA, MODENA, PARMA, SAR- DINIA, TUSCANY, TWO SICILIES and the PONTIFICAL STATES, and the Islands SARDINIA and SICILY.] The Conciliator in every commune has jurisdiction up to 30 lire (about jQ\ 5^.) : the Pretor of the division {mandamento) hears appeals from the Conciliator, and has an original jurisdiction in civil and commercial matters up to 1500 lire. The civil courts {Tribunal Civil et correctionnel) hear appeals from the Pretor in his original jurisdiction : and have an original ITALY. 477 jurisdiction in all civil matters which would not come before him : Chapter XIII. Commercial cases are taken before them when there is no Tribunal de Commerce in the district : they then sit with two merchant assessors. The Courts of Commerce also hear appeals from the Pretor in commercial matters, and have an original jurisdiction in such matters beyond 1500 lire. There are twenty Courts of Appeal composed of five judges, which hear appeals from the Civil and Commercial Courts in their original jurisdiction. There are five final Courts of Appeal ( Cour de Cassatmi) com- posed of seven judges. The Cour de Cassation at Rome alone rehears a case after quashing a decision. C'wU Code. s. 10. (^Preliminary ATatters^ The competence of tribunals and the forms of procedure are regulated by the law of the place where the action is being carried on. The manner of proceeding to the execution of deeds and judgments is regulated by the law of the place where execution is proceeded with. s. 12. ( „ ) In no case shall the laws, acts and sentences of a foreign country, nor private dispositions and arrangements derogate from the prohibitive laws of the kingdom which concern the persons, goods and acts ; nor from the laws which in any way affect public order and good manners. s. 1973. the same as Code Napoleon, s. 2123 [p. 449]. Under the provisions of the Franco-Sardinian Treaty, and apparently also generally under this section, the Italian courts have decided that the inscription de Vhypotheque, or registration of the judgment, may be done before the judgment has been rendered executory, subject to the right of obtaining the exequatur at a later date, when it becomes necessary to follow up the effect of the registration. {Duport\. Chateauvillard, ].X}.l.V. 1879, p. 86.) n I j: n- •! rt ^ Service on absent Code of Ciuil Procedure. defendants. s. 105. A foreigner not domiciled in the kingdom may be cited in what cases, before the judicial authorities of the kingdom, although he is not found within it, 478 • EUROPE. Chapter XIII. i- in actions concerning moveables or immoveables situate in the kingdom : ii. concerning obligations arising out of contracts entered into in the kingdom or to be executed there : iii. in all other instances in which it may be effected by reciprocity. s. 1 06. Besides the cases mentioned in the preceding article, a foreigner may be summoned before the judicial authorities of the kingdom for engagements or obligations contracted by him in a foreign country, i. if he has a place of abode in the kingdom even should he not be there at the moment : ii. should he be in the kingdom, although he have no residence in it, provided that he be summoned in propria persona. s. 107. When a foreigner has not a fixed residence nor domicil in the kingdom and a locality has not been determined upon for the execution of the contract, the proceedings against the person or property are initiated before the judicial authority of the place where the plaintiff resides. Mode of service. s. 141. Pcrsons whose domicil, residence or dwelling-place is Psrsons resident or domi- , , ciied. unknown are summoned by posting a copy of the citation on the outside door of the building which is used by the judicial authority before whom the demand is made ; by the insertion of a summary of the citation in the public journal used for judicial announcements ; and by the delivery of a copy of the citation in the office of the proaireur {il minestero publico) attached to the civil tribunal within the jurisdiction of which the said judicial authority is located. Persons not resident nor s. 142. Persons not having a residence, domicil or dwelling- place within the kingdom are summoned in the manner prescribed by the preceding section. The procui-eur transmits the copy of the citation to the minister for foreign affairs. If there be within the state [in which such persons are domiciled or residing] zprocureur general, they may be summoned through him. Effect OF Foreign s. 559. The judgments of foreign tribunals and the decisions jiDGMENTs. obtained out of the kingdom are not executory in the kingdom unless due authorisation has been obtained in accordance with Title xii. Book iii. of this Code. ITALY. 479 Title XII. Booh III. Chapter XIII. Of the Fulfilment and Execution of Decrees and Docu- ments AUTHORISED BY FOREIGN AUTHORITIES. s. 941. The power to carry into effect the judgments of foreign Special proceeding to • J--1 I--' 111^ ., render foreign judgment juQiciai authorities is granted by the Court of Appeal m whose executory, circuit the same are to be executed, provided that the Court examines the decision to see, i. if the sentence has been given by a competent judicial Examination of the . judgment. authority. With reference to the competence of the foreign court, the Italian court should see whether the subject matter of the judg- ment is within the exclusive jurisdiction of the Italian courts. {Avril V. Donandy. J. 1881, p. 538.) ii. if sentence has been pronounced after the parties have been duly summoned, iii. if the parties have been legally represented or were legally absent. These three points are to be decided according to the law of the country whence the judgment comes {Mazefti\. Cist. J. 188 r, jD. 536). Thus in Sottocasa v. Sottocasa-Nolli {]. 1879, p. 82) a French judgment by default was refused execution, under ii, the provisions of the French Code of Civil Procedure, s. 69 (8) not having been complied with. iv. that the judgment does not contain provisions which are contrary to public order, or to the internal laws of the kingdom. These four rules are to be strictly adhered to : the court must go into no questions tending to correct, explain or extend the judgment {re Satit-Cassia. J. 1879, p. 301). With regard to questions of public order the Italian court should see whether the foreign judgment affects the national sovereignty or the laws of public safety and good manners ; whether it affects or hinders the due execution of the laws of the kingdom ; or if it disposes of things situate in the kingdom in a manner different to that established by those laws : in such cases execution should be refused {Avril v. Donaiidy. J. t88i, p. 538). 4So EUROPE. Chapter XIII. Judgments by default. Citation of parties interested. With reference to foreign judgments pronounced in the absence of proof and by default {iiniquemetit ci titre de pei?ie dii defaiit du defendenr), the Court of Appeal at Genoa declared them to have no legal foundation and refused execution : But the judgment being in these terms, ' the defendant not having appeared, it must ' be presumed that he had nothing to say to the plaintiff's case ; ' and moreover, the plaintiff's case having been gone into, it was ' considered just and entitled to support ; ' the Cour de Cassation at Turin reversed the decision, holding that although the theory was good, it was not applicable to this case, proof having been required and given. {Demur re v. Bosso. J. 1879, p. 292.) s. 942. The decree of deliberation (// giudizio di delibazione) is obtained by a summary citation of the parties interested after the prociireiir {il minestero publico) has been consulted. The party asking for the decree must present the judgment in an authenticated form ; that is, according to the law of the country whence it comes. {Freybergv. Benasati. J. 1879, p. 209.) If the execution of a sentence or judgment be demanded through diplomatic agency {nelle vie diploinaiiche), or if the party Solicitor appointed to act interested has not named a solicitor {procuratore) to move for the decree of deliberation, the Court of Appeal at the request of the procureur can appoint a solicitor to act for the party. for party when necessary. Execution of orders of sequestration. Authenticated documents s. 943. As to the execution in the kingdom of orders of sequestration granted by foreign judicial authorities, the provisions of the two preceding articles are followed so far as they may be applicable. s. 944. The power to carry into effect documents authenticated in a foreign country is conferred by the Civil Court of the place where the document is to be carried into effect, provided that the judgment be in accordance with the rules set out in sections 941 and 942 so far as they may be applicable. s. 945. A judgment given or any measure provided by foreign judicial authorities respecting examination of witnesses, valuations, afifidavits, interrogatories or any other legal acts or documents to be performed or executed in the kingdom, is made executory simply by a decree of the Court of Appeal of the place where such acts or documents are to be executed. If execution is asked for direct by the parties interested, then the petition is presented to the court, with an authentic copy ITALY. 481 annexed to it of the sentence or of the measures by which the Chapter XIII. acts aforesaid were ordered. If execution is demanded by the foreign judicial authority then the request must be forwarded through the diplomatic channels, and in this case there is no need for annexing a copy of the judgment. The court deliberates in a private sitting, after hearing the Proceedings of the court, public prosecutor, whether execution shall be allowed of the acts or documents as demanded. Its decision is handed to the judicial authority or to the functionary representing it in order that it may be carried into effect. s. 946. When the request is made through diplomatic channels and the party interested has not appointed any person to act for him in obtaining the execution of the acts or documents men- tioned in the preceding section, then the instructions and measures, summons, writs and notices necessary to carry into effect such acts, are officially ordered by the court that has undertaken the proceedings. If such acts, owing to any special circumstances, require the attendance of the party interested, then the court aforesaid can appoint a person to represent the party. If the presence of the parties interested is required or permitted Noticeofparty if absent. at the drawing up of the act or document and the order which names the day when the act or document is to be executed, they are to be informed of it by simple note of hand delivered by the usher to such of the parties whose residence is known. A copy of the decree is forwarded through diplomatic channels to the foreign authority in order that the other parties may be made acquainted with the proceedings. s. 947. When it is a question of a summons to appear before Leave to serve summons, foreign authorities or of a simple notification of acts coming from abroad, permission to serve it is granted hy the proa/re?/r attached to the court or tribunal in whose circuit or jurisdiction the summons or notice is to be served. If the service of the summons or notice have been demanded through diplomatic channels, then it is to be given by the procureur direct into the hands of the usher or sheriff's officer. s. 948. The execution in the kingdom of the acts mentioned in the three preceding articles does not do away with the necessity of obtaining the decree of deliberation when it is a question of the execution of the final judgment. 2 I 482 EUROPE. Chapter XIII. s. 949. The executory power, as set forth in sections 941-947, when granted by a civil tribunal, Court of Appeal or procureur, is valid in order to obtain execution in any other circuit or jurisdiction. s. 950. The resolutions and dispositions contained in the pre- sent article are subordinate to international treaties and special laws. Apparent error. Fresh documentary evidence admitted. From the above articles it will be seen that a special procedure for enforcing foreign judgments has been provided in Italy, called "• giudizio di delibazione^ {instance en exequatur, or decree of de- liberation) as distinguished from the ^giudizio di merito'' {instance sur le fo7id du droit). By means of this procedure the foreign judgment is rendered executory and can be carried into execution when clothed with the '^ formule d''cxecutivite.'' The principles adopted by the Italian courts as to the examina- tion of the foreign judgment are as follows : It will be examined to see if it bear the character of a veritable decision, and whether it has been given in a contentious suit : that it is executory in its own country, and that it is in accordance with the law of that country. Where jurisdiction has been assumed by the foreign tribunal, the defendant being out of the jurisdiction, the proceedings will be strictly examined to ascertain if sufficient time was allowed for appearance, and whether, the defendant having been regularly cited, the judgment by default was regularly pronounced : also as to the cognizance of the Judges. If there be an apparent error, for example if a Tribunal de Commerce has decided matters solely within the cognisance of the civil tribunals ; or, if the defendant, having been served out of the jurisdiction, appeared and pleaded to the jurisdiction of the court and the plea was rejected, the judgment may be examined ; lastly, fresh documents may be examined, especially if they tend to show that the relations between the parties have altered since the judgment was pronounced. An authorised copy of the foreign judgment is sufficient. The documents on which it is founded need not be produced, but the judge may order them to be produced to clear up any questions raised {Falandriv. Lauthier. J. 1883, p. 87). Pendency of appeal in the foreign country does not operate as a stay of proceedings on the judgment in Italy. Nor does the plea oi lis pendens appear to be recognised by the Italian courts : the principle upon which they act being that if Civil Code, s. 14. TTAT,Y. 483 the Italian tribunal is competent and is duly seized of the action, Chapter XIII. a judgment of an equally competent foreign tribunal cannot be made executory or be considered so long as the Italian tribunals have not decided the questions raised within the limits of their jurisdiction {Morand v. Dehenedetti. J. 1879, p. 212) but this principle was somewhat modified in Huet v. Bouturlinn (J. 1881, p. 547), where it was held that, when the same question has been decided by a foreign court, there is good ground not to declare absolutely that the foreign judgment shall not be enforced, but that execution on it shall be suspended till the Italian decision is pronounced. Section 14 of the Code Napoleon [p. 446] and similar enact- ments, including doubtless the English Order XI, rule i, are not o. xi, r. ;. recognised, and judgments proceeding on them are held to be of no effect in Italy. The provisions of the French code on the Decisions on the French subject of assumed jurisdiction over non-resident aliens have been most severely commented upon. The Italian courts have again and again refused to enforce judgments proceeding upon it (e.g. Ardizojii v. Kidri. J. i8St, p. 542) : in one case where the defendant had appeared before the French court and pleaded its incompetency, and the plea having been rejected, he was allowed to plead the same defence in Italy {re Glisenti. J. 1879, p. 211): and more than once they have taken the extraordinary step of acting upon the provision themselves when an Italian has desired under similar circumstances to summon a Frenchman before the Italian courts to enforce the execution of engagements contracted by him in a foreign country, a procedure not allowed by the Italian code. In Dehenedetti v. Maraud (J. 1879, P- 7 2) the court pronounced this remarkable judgment : — ' This exorbitant ' position of the French law necessitates the ordinary rules of ' competence being considered as at an end. It results if not ^Jure reciprotatis, at least certainly 7// r^ retorsiojiis that the Italian ' is entitled to apply to the Frenchman the same law which ' would be applied to him, an Italian, in France. This is the * principle of the common law ; quod quisqtte juris in alternm ' statuerif, et ipse eo don jure utatur.^ This principle of retaliation was carried still further in Levi v. Pitre (J. 1879, p. 295) : the court, considering that the French courts examine the merits of an Italian judgment, held that it would examine the merits of a French judgment. The Italian courts have, however, endeavoured to be logical and have applied the French rules of renunciation [see page 448] 484 EUROPE. Chapter XIII. to an Italian wlio by electing a domicil in France for the execu- tion of a contract concluded in France with a Frenchman, has created a jurisdiction in that country; he must therefore bring actions against a Frenchman there {Cie: de gaz de Marseilles v. Cie: Bingen. J. 1881, p. 438). The explanatory motif oiiht court on the subject of the lex talionis is interesting as it defines the position taken up by the Italian courts. ' Le droit de retorsion ou de represailles n'est pas et ne pent ' pas etre un titre ou un principe rationnel de droit ou de comp^- * tence. II n'a ete admis que pour prote'ger le citoyen d'un etat ' contre le traitement injuste auquel il pourrait etre expose dans un ' autre etat ; mais il est dt^sormais reconnu qu'il est peu propre k ' atteindre ce but de protection. En effet il rend plus apres, loin de ' les adoucir, les sentiments de defiance, de jalousie ou d'hostilite ' dans lesquels malheureusement les peuples ont ete e'leves. C'est * pourquoi la doctrine et la jurisprudence s'accordent aujourd'hui * a le restraindre dans les limites de la ne'cessite la plus rigoureuse.' When the special pro- cedure to be used. Judgment as to immoveables in Italy. Status. Bankruptcy. Effect of foreign bankruptcy. A foreign judgment relating to immoveables in Italy will be considered under this special procedure of deliberation ; and if the court thinks fit it will be rendered executory : a judgment relating to the status of a stranger residing in the kingdom takes efifect of itself and without the intervention of the procedure {De Maille v. Duchesse de Flaisance. ]. 1879, p. 74) ; but if any of the parties think it necessary and make the formal request, it must be allowed without any enquiry as to the grounds for the application : {id.-) all the general requisites for the grant must however be present ; and similarly, if the judgment be produced only to give its enacting part the force of res judicata, it is not necessary. In Bankruptcy, if the sentence be used as proof of the fact or to serve as a defence in an action by one creditor against the interests of the mass of the creditors the procedure is unnecessary ; but when the decree is used to found execution upon it, it is required : it is required also in an action by the trustees on a con- tract by the bankrupt to render their appointment executory. Where a foreign company is bankrupt the procedure is not necessary in order to affect the branch establishments in Italy. \xv Hoffman v. Mack (J. 1879, p. 77) the plaintiff who had an agency in Milan had been made bankrupt in London : the defen- dant, a creditor, obtained leave to issue a saisie-conservatoire on the plaintiffs effects in the hands of his agent. The English trustee demanded the reversal of the order, or at least a suspension ITALY. 485 till the adjudication had been made executory. The court of Chapter XIII. Milan cancelled the order and sent the defendant to prove in the " English proceedings. Where parties have contracted abroad and have chosen a country for the execution of the contract the jurisdiction of the courts of that country will be admitted. If execution is asked of authentic acts executed in a foreign country, the proper court to apply to for process is the Civil Tribunal of the place where execution is sought. But if execution is asked of a judgment, the Court of Appeal of the district must be applied to. The Court of Appeal however has jurisdiction concerning the granting of executory force only : disputes arising on the actual execution must be settled by the ordinary courts. In order to justify the plaintiff's application, he should have in the jurisdiction of the court applied to, either property moveable or immoveable, or domicil or residence. The judgment must be properly authenticated {legalise par vote diplomatique) and may be produced by the party interested, or by ' commission rogatoire ' from the competent foreign authority : in this case the Court of Appeal assigns counsel if one is not already instructed by the party to present the petition. The writ is to be produced to estabUsh the regularity of the judgment, and all other papers the court may require. If the judgment is not in absolute terms, but is subject to the performance of some condition, for example the taking of an oath, it is not sufficient merely to present the judgment properly attested, there must be a further attestation, in the same form, that the con- dition imposed has been fulfilled {Freyberg \. Betiasatti. J. 1879, p. 209). An appeal is allowed, the foreign judgment itself being pro- duced. Proof of Foreign Judgments. Law H December, 1865, ss: 119-121. An Italian judgment is authenticated in the following manner : Authentication of Italian . 1 • • • judgments. it is to be signed by the Judge of First Instance ; this signature is to be verified by the Judge of the Court of Appeal ; this by the Minister of Justice, and this in its turn by the Minister of Foreign Affairs. A convention exists between France and Sardinia, 24 March treaties. 486 EUROPE. Chapter XIII. 1760, continued with Italy 11 September, i860, as to the * voie ~~ diplomatique "requisite for the mutual authentication of the judg- ments of the two countries [set out on page 456] ; There is also a Treaty between Spain and Sardinia, 30 June, 185 1, which has been declared by the Italian Court of Appeal to relate to Italy [set out on page 502] ; and a convention between Italy and Brazil, 27 May, 1880, for the reciprocal execution of judgments in questions relating to succes- sions and wills. Italian forms. [From Borsarl's edition of the Code.] Forms. No: 1. The power to carry into effect the judgment pronounced by a foreign judicial authority is granted by the Courts of Appeal, [s. 941.] CDXXI. Notice of application to the Court to authorise the execution of a foreign judgment. Before the Court of Appeal of , and at the request of Mr R , resident at , who elects domicil in the kingdom in this city with Mr , repre- sented by the advocate, Mr : Mr Amilcare B , resident at , and Mr Dominic L , resident at , are summoned to appear at the sitting of the court, which will be held on the day of , which day has been appointed by His Excellency the President for the purpose of granting authority to issue execution on the immoveable property of the defendants, and also on any other property belonging to them, in accordance with the laws of this country. CDXXII. Form in which the court authorises the execution. In the name The Court of Appeal of deliberation between has pronounced the following judgment. The plaintiff claims The defendants reply The procureur has appeared and has summed up, that whereas in the suit for decree of The Court declares that the judgment pronounced by the Tribunal de Commerce of Marseilles on the day of be carried into effect. No: 2. The execution of the judgment may be asked through diplomatic agency. [s. 942.] An English subject, who has obtained a judgment against an Italian, remits ITALY. 487 through the English Ambassador to the Italian Minister of Foreign Affairs a Chapter XIII. petition to that effect, which document is forwarded by the said Minister to the ■ Minister of Justice, who in his turn sends it to the "■ Proctiratore Generale'' of Italian forms, the court in whose circuit the execution of judgment has to take place. The judgment then takes another form. CDXXIII. The summing up of the procuretir. To the Honourable Court of Appeal of I have the honour to communicate to this court that His Excellency the Minister of Justice by his letter of the day of has remitted to this office a petition that had been forwarded by the English Government, in which it is asked of the competent judicial authorities of this country to grant the execution of a judgment pronounced by the Tribunal of Commerce at Manchester on day of , in the suit of O. O., British subject, against B. B., Italian subject, resident at Genoa: the purport of the said judgment being that the defendant, B. B. , was ordered to pay 10,000 lire. By our laws Mr O. O., British subject, must be represented by an attorney resident in the place, and this in accordance with section 942 of the existing Code of Procedure, therefore the procuretir requests that this Honourable Court should name officially an attorney to represent the party aforesaid in order to obtain the decree of deliberation. A. B. {Procuratore Generale.) CDXXIV. Order of the court appointing a representative for the foreign plaintiff. The court of , Civil Section, having examined the statement made by the procuretir ; having heard the report made by the judge, Mr ; having deliberated in chambers, in accord- ance with section 942 of the Code, upon the terms of the petition, and for the purpose therein mentioned, nominates the advocate Mr Sigismond A, resident in this city, as representative of Mr O. O., British subject. No: 3. Must a judgment requiring affidavits, interrogatories and proofs to be made, answered or obtained in this country go through the same formalities ? What interests us is not exactly the contents of the judgment, but its tendency, the way in which it is drawn up and the purport of it ; could not all this be made an obstacle to the grant of execution ? It will be necessary in order to determine this to follow precisely the thread of the ideas above expressed ; if the foreign judgment entails some order which requires consideration for the purpose of establishing any principle, or any formality that may arise therefrom — such as an examination of witnesses, a verification by experts, a material and effective verification — these being only consequences of the judgment, we shall then have a decision to which leave of execution cannot be granted till after the study and examination imposed by section 941 and after demonstration of its legahty according to our laws. To the isolated request to allow a proof to be taken in a suit in which judg- ment is not yet pronounced, a decree of the following tenour may answer the purpose : 4S8 EUROPE. Chapter XIII. Italian forms. CDXXV. Form in which the court authorises the examination of witnesses. The court of , Civil Section, having examined the appeal presented by Mr Silvester K , Russian subject, who has elected domicil at the otifices of P. C, his attorney resident in this city, for the purpose of ; having heard the report of the judge, Mr ; having read the authentic copy of judgment pronounced by the Civil Court of Geneva that before any other step be taken as to the merits of the case, the court orders the examination of the witnesses resident at R , situated in this province, to proceed ; and having heard the prociircur ; has decreed in chambers and authorised the execution of the judgment ; and for the purpose of carrying into effect the operations therein mentioned, delegates the Prctore of Ho: 4. Fulfilment of agreements [s. 944.] CDXXVI. Judgment giving power to carry into effect an agreement entered into abroad. In the name of In the matter between Scipio M., resident at Catania, represented by the advocate B., resident in this city, and X., not having any domicil in the king- dom, but residing at Stockholm, an absentee. The Tribunal of has pronounced the following judgment. The plaintiff claims ; — having heard the procureur ; — and finding that on an agreement was entered into at Stock- holm between the plaintiff, Italian subject, and Polinto X., Swedish subject, in accordance with a notarial deed executed by the notary, Mr. H., of that city, of which document a duly legalised copy has been produced : finding also that by the said agreement Polinto X. binds himself to repay to Scipio M. the sum of 20,000 lire which he received in loan with interest at the rate of 6 per cent: per annum, giving a mortgage on the immoveable property that he holds in the province of Cremona : finding also in examination of the docu- ment in its intrinsic value and substance with reference to section 941 of the Civil Code that no objection can be raised to its execution : The court authorises the execution of the agreement entered into between in all respects. [e. de loth. j. d. I. p. 1877, p 121.] Effect of Foreign Judgments. MONACO. The Civil Code is, except as to a very few points, the same as the Code Napoleon. Code of Ciuil Procedure. s. 232. Foreign judgments and documents executed in foreign countries shall not be executory in the principality or on goods situated within it or the profits thereof, except by virtue of a MONACO— NETHERLANDS. 489 ... , . . Cliapter XIII. special ordinance of the Prince on the report furnished to him by the Advocate General. The following is the procedure : — Lavocat defenseur of the Procedure. Monaco bar who is retained to present the petition makes out a request to His Serene Highness setting out the facts succinctly. In support of the petition an engrossed copy of the ' title ' to be ^''°j'J'p°j^, J^^ts'!'*^'^ made executory and all other necessary documents are presented. — This copy and all the other papers should be attested by a minister, a plenipotentiary, a charge' d'affaires, or a consul of Monaco according to the country whence the judgment comes. They are then stamped and registered. The brief is then re- mitted to the Advocate General who examines it to see if all the papers are regular, and that the judgment contains nothing contrary to the laws and customs of Monaco or against good manners. He then prepares a report and form of order which he submits to the Prince. H.S.H. either rejects the demand or endorses the order making the judgment executory, and direct- ing the deposit of the title in the clerk's office where the parties may obtain copies of the order : the judgment may then be executed as a Monagascan judgment. Where the judgment has judgments by default. proceeded by default, an affidavit must be produced stating that it has been given according to the forms and after the necessary delays prescribed by the foreign law : and also that there is no appeal nor opposition pending. The whole decision rests with His Serene Highness the Prince of Monaco, who exercises this right 'avec la plus impartiale justice ' et la plus grande circonspection.' NETHERLANDS. [Colonies :— South America— DUTCH GUIANA or SURINAM. East Indies— JAVA and MADURA, PAPUA, West Coast of SUMATRA or NEW GUINEA, CELEBES, MOLUCCAS, West, South and East parts of BORNEO, BENKULEN, LAMPONGS, PALEMBANG, RIAN, BANCA, BILLITON, MENADO, TIMOR and SUMBA, BALI and LOMBOK. West Indies— CURACOA, ARUBA, SAINT MARTIN, BONAIRE, SAINT EUSTACHE, SABA.] The Court of the Canton composed of a single judge has constitution and jurisdic- jurisdiction in civil and commercial matters up to 200 florins "°" °^ '^^ ''°""'" (^17) : the Court of the Arrondissement, composed of three judges, has an original jurisdiction above 200 florins, and hears appeals from the Court of the Canton where the judgment exceeds 50 florins. 490 EUROPE. Chapter XIII. There are five provincial courts, composed of five judges, which hear appeals from the Courts of the Arrondissement : they have also an original jurisdiction in all actions by consent of parties. The High Court {Hooge Raad), composed of seven judges, is the final appeal court from the provincial courts and from the colonies. It has also an original jurisdiction, among other things, in matters of maritime prize : an appeal, when it sits as a court of first instance, lies to a full court of eleven judges. Service on absent defendants. in what cases. In 1874 M. le baron Gericke de Hercoynen, Minister of Foreign Affairs in the Netherlands, started a project for an International Conference on the subject of foreign judgments ; a circular note was addressed to the Powers but nothing resulted from it. [There is a full account of this project in the Journal de Droit International Vnv€, 1874, p. 159.] The method of service of writ on absent defendants is the same as in France. Code of Oiuil Procedure. s. 127. A foreigner may, though not resident in the kingdom, be cited to appear before a judge in the Netherlands, in respect of obligations contracted with a subject of the kingdom either in the Netherlands or abroad. The suit may be at the instance of either a subject or a foreigner. i^Anoii: J. 1875, p. 318.) PORTUGAL. [Colonies :— CAPE VEEDE ISLANDS, BISSAGOS ISLANDS. Saint THOMAS and PRINCES ISLANDS in the Gulf of Guinea: in Senegambia, BISSAO, &c., AJUNDA, ANGOLA, AMBRIZ, BENGUELA, MOSSA- MEDRES, MOZAMBIQUE, GOA, DAMAUN, DIU, MACAO, part of TIMUR ISLAND, SALSETTE, BARDES and the INDIAN ARCHI- PELAGO.] Constitution and jurisdic- The functions of the Justice of the Peace {juiz de paz) are tion of the courts. ^^^^-^^ Conciliatory. The Judge of First Instance {Juiz ordinario) has jurisdiction in civil matters up to 10,000 reis (^2 55). The Court of First Instance, composed of a single judge {juiz de direito), hears final appeals from the Judge of First Instance, and takes all other civil matters. It has also an original jurisdiction (unless there is a special Court of Commerce in the district) in all PORTUGAL. 491 commercial cases. The Court of Commerce consists of a judge Chapter XIII. and jury. There are five Courts of Appeal {relaco), and two in ' the colonies, from the Courts of First Instance, in civil matters where the amount in dispute exceeds 50,000 reis ; in commercial matters where the amount in dispute exceeds 100,000 reis : this amount varies according to the number on the jury, which in its turn varies according to the importance of the town. From the Commercial Courts of Lisbon and Oporto the amount is 200,000 reis. The Supreme Tribunal, takes appeals on questions of law in all matters : on questions of fact in civil matters beyond 400,000 reis, in commercial matters by the plaintiff, if the amount is more than 1,000,000 reis ; by the defendant if it exceeds 2,000,000 reis. Ciuil Code. 1867. Service on absent DEFENDANTS. s. 28. the same as Code Napoleon s. 14. fp. 440.1 . , — '■ T^ Li ^^ J s in what cases. s. 29. id: s. 15. s. 31. Judgments pronounced by foreign tribunals on civil matters between foreigners and Portuguese subjects may be exe- cuted by order of the tribunals of this country, in conformity with the rules laid down in the Code of Civil Procedure. Notwithstanding this section, foreign judgments in actions between foreigners may be revised by the Court of Appeal before being rendered executory. {Punnet v. Alladinbhog Khoja. J. 1875, P- 54-) Code of Ciuil Procedure. 1876. s. 180. The summons or writ to be served on a person residing Leave to serve out of outside the limits of the jurisdiction of the judge, or out of the ^""^ district of the court that has issued them shall be served by special order. s. 18. Corporate bodies shall be sued before the courts of the Foreign companies. place where their head office is situate. i. The court of the place where the branches, agencies or affiliated establishments of any bank, society or company are situated, is competent to hear and determine suits brought against them, when it is a question of agreements effected or engagements undertaken by the said branches, agencies or affiliated establishments, ii. The provisions contained in the preceding section are equally applicable to branches, agencies or affiliated establishments of banks, societies, companies or any other association 492 EUROPE. Chapter XIII. Service on absent defendants. Execution of Foreign Judgments. Effect of Foreign Judgments. whatsoever, which may liave their residence in a foreign country with reference to deeds or agreements effected in Portugal, s. 19. The action shall be brought in the district wherein the judicial act was executed or where the occurrence happened that has given rise to the suit, s. 20. A Portuguese subject or foreigner resident abroad can be sued before the Portuguese tribunal of the place where he may happen to be, should the suit be for an agreement entered into by him in the kingdom, or with a Portuguese in a foreign country, s. 21. V. Judgments, including inventories for the division of property between married people, may be executed by the Court of First Instance, in which the motion for pro- ceedings is made ; except, vii. (b). the judgments of foreign tribunals which are to be executed by the court of the place where the defendant resides, or where the property is situate, according to section 1087 : When the competence of the court by reason of the situation of property shall have been determined and the property is in more than one district, then the plaintiff can execute the judgment in any one of them ; (d). the judgments of the Court of Commerce which are to be enforced by the court of the place where the defendant resides ; or should he be abroad, then by the court of the place where the proceedings to enforce the judgment may be instituted; and if these should be instituted in a foreign country then the matter is to be considered in the Lisbon Circuit. s. 39. The Supreme Court of Judicature is competent, vi. to examine the judgments pronounced by foreign tribunals and confirm them when the same are to be enforced in its circuit ; to revise judgments pronounced by foreign tribunals, s. 1087. Judgments pronounced by foreign tribunals to which the third section of the Civil Code refers shall not be carried into effect in the kingdom unless they are first examined and confirmed by one of the Supreme Courts of the Judicature, in the presence of the parties interested and of the public prosecutor, except when from some other cause it be stipulated to the contrary. i. Such a revision or confirmation is within the jurisdiction of the Supreme Court of Judicature of the district where the defendant PORTUGAL. 493 resides, or of that where the property is situate should the defen- Chapter XIII. dant have no domicil in the kingdom. The use of the word 'examined' has been considered by the French courts to mean an examination of the merits, without reference to s. 1088. {Smith \. Anderson. J.D.I.P. 1882, p. 168.) s. 1088. When the judgment has been presented and dis- tributed {e distribuida) the person charged to report upon it shall summon the defendant to appear within eight days and make known his defences. The same time is given to the judgment creditor. i. The following defences may be raised : — Defences. (a) Any doubt whatsoever respecting the authenticity of the documents or the clearness of the judgment. (b) That the sentence or judgment was not duly pronounced. (c) That the sentence was pronounced by an incompetent tribunal. (d) That the parties either were not duly summoned, or were not legally absent. (e) That the judgment is contrary to the principles laid down. in the Portuguese laws or is against the laws of public security and order. (f) If the judgment has been given against any Portuguese subject and is contrary to the principles laid down in the Portuguese Civil Code, the question must be determined by that Code. ii. In the suit, evidence is not admitted as to the merits of the case. s. 1089. After the defences have been presented within the Procedure after defences lodged. time allowed, the suit shall be continued in the presence of the parties and of the public prosecutor according to the rules laid down in section 1049, and the case, together with the documents and schedules, shall go for final revision to the reporter {relator) and then to four judges in turn for their approval. i. The judgment or decision shall be pronounced upon in private sitting, in the presence of at least three of the judges who examined the papers, who shall confirm, grant or refuse judgment by three votes at least. s. 1090. The provisions contained in the preceding articles are equally applicable to judgments pronounced in cases where both the parties interested are foreigners or both are Portuguese subjects. 494 EUROPE. Chapter XIII. s. 1091. The judgment having been confirmed, the decision on the case, or a copy of it when a revision intervenes, shall go to the court competent to carry it into execution. Where there is a suit proceeding in Portugal for the same cause of action, a foreign judgment will not be considered a bar to the action unless it has been made executory according to the above rules. {Veiga do Arneiro v. Barroil, J. U. I. P. 1878, p. 448.) From this case it would also appear that the plea of lis alibi pendens is not recognised by the Portuguese courts. OF PETITIONS. s. 86. Petitions shall be presented in the King's name, signed and sealed by the judge in ordinary or by the judge who has reported on the case, and signed by the clerk. s. 87. The judge or court to which the petition is addressed shall refuse the application, in either of the following cases : — i. If it is not competent to grant what is asked. ii. If what is asked is absolutely prohibited by the laws. Procedure on rogatory commission. Proof of Foreign Judgments. OF ROGATORY LETTERS. s. 88. The provisions of section 86 apply also to rogatory letters sent to the Portuguese courts. s. 89. Rogatory letters emanating from foreign authorities if not received through diplomatic channels shall not be attended to without previously being submitted to the procurateur. i. When placed in order and collected, the whole of the docu- ments shall be left for examination for forty-eight hours in the hands of the procurateur^ and afterwards the judge shall decide if they shall be executed. The procurateur has a right to set up any objection to the execution of the rogatory letters, and can have recourse by way of appeal against the orders issued. An appeal lodged by the procurateur against the order to carry out the rogatory request shall suspend the execution thereof. iv. Any summons or writ to be issued if served by the clerk or usher shall be served as laid down in sections 179 & 180. V. In the districts of Lisbon and Oporto the procui'ateur shall be represented by the General Trustees for Orphans when what is requested affects them, s. 213. Documents written in a foreign language shall only be 11. ni. ROU MANIA. 495 considered when accompanied by a translation duly legalised by Chapter XIII. the Consul of the place ; and, if the said documents are forwarded by foreign authorities, shall only be considered as valid if authen- ticated by the diplomatic agent or Portuguese Consul at the place, and the signature attached to them duly verified by the Minister of Foreign Affairs. i. Should there not be in the kingdom a Consul of the nation or country whence the document comes, then it shall be translated by an expert. R O U M A N I A . i879?p.''357 ] ^ '^ ' [including MOLDAVIA and WALLACHIA.] The Communal Courts, composed of a president and two assessors, have civil jurisdiction up to 50 lei {£2). The Courts of the Arrondissements, composed of two judges, hear final appeals from the Communal Courts, and have an original civil jurisdiction up to 1500 lei. The District Courts, composed of two judges, hear final appeals from the Courts of the Arrondissements, and have an original civil jurisdiction beyond 1500 lei The Courts of Commerce, composed of one judge and two assessors, have jurisdiction in all commercial matters. There are four Courts of Appeal, composed of three judges, which hear appeals from the District Courts, and from the Courts of Commerce beyond 555 lei. The Cour de Cassation, composed of seven judges, is the supreme tribunal and hears appeals from all the courts except those of the Communes. Code of Civil Procedure. effect of foreign Judgments. s. 374. Foreign judgments can only be executed in Roumania — in the same way and to the same extent as Roumanian judgments are executed in the foreign country, and after they have been declared executory by the competent Roumanian judges. They are to be declared executory by the full court and not Procedure. by the president alone : no action is allowed on the merits ; and there is no distinction recognised in favour of Roumanians. The process is as follows : — The party by himself or his proxy (compulsory application by attorney being unknown) sends his preliminary petition to the president or presiding judge : the judge notes on it the day of 496 EUROrE. Chapter XIII. receiving it, and the day appointed for hearing : a fee is payable ' to the usher, ss: 69. 94. The tribunal competent to hear the action is that of the defendant's domicil, in the case of moveables : but in the case of immoveables that of the locality where they are situate. In the principal districts the tribunals of first instance comprise several sections : the petition should go to the president of the first section, called ' premier president.' The extrinsic conditions requisite for the enforcement of the judgment are : conformity to the laws of public order. reciprocity. accuracy of the translation of the judgment. [p. MARTENS, J. D. ..P. RUSSIA. 1878, p. 139. Sutlche'Reid' tsss, [including in Europe-RTISSIA PROPER, POLAND and FINLAND, with the pp: 134-183] Islands SPITZBERGEN and NOVA ZEMLA; and in Asia -CAUCASIA, SIBERIA and CENTRAL ASIA.] Constitution and juris- -pj^g Court of the Cauton, composed of a president and two diction of the courts. ^ ^ ; i 1 assessors, exists only in the rural communes, it has jurisdiction up to 100 roubles (;^i6). The jurisdiction of the Justice of the Peace {inirovoy okrouge) extends in civil matters up to 500 roubles, and in all cases by consent of parties ; an appeal in matters exceeding 30 roubles lies to the Assembly of Justices, composed of at least three judges ; in all matters by way of cassation. The Courts of First Instance {pkrougenoie soud), composed of three judges, have a civil jurisdiction beyond 500 roubles. In certain districts there are Courts of Commerce with jurisdiction over all commercial matters. There are seven Courts of Appeal {sotidebnaia palata — coiir judiciaire) from the Courts of First Instance, composed of three judges. A chamber of the Senate has been constituted a Gourde Cassa- tion in all civil matters : a second chamber forms the Court of Appeal from the Courts of Commerce in matters over 1500 roubles (3000 roubles from the courts of Moscow and St. Petersburg). The Courts of Finland are practically the same as those of Sweden. There exist in Russia three distinct Civil Codes : first, the RUSSIA. 497 Russian Code proper : secondly, the Polish Code : thirdly, the Chapter XIII. Code of the Baltic provinces and P'inland. The second of these Codes is the only one however in which foreign judgments are mentioned. In Finland, neither Russian nor foreign judgments are recog- nised. In the Baltic provinces foreign judgments are only executed when there are treaties on the subject with the foreign state, or when there exists complete reciprocity. Foreign judgments, unless it be otherwise settled in political ordinances or treaties, do not carry judicial hypothec till they are clothed with an order of execution given by the ordinary competent tribunal. The judgment of a foreign criminal court entails upon the criminal if he is a Russian subject the consequences according to Russian Law (case of Lieutenant Kitchenkow, J. D. I. P. 1874, P- 47)- Code of Ciuil Procedure. 7864. ^"'jIIc/ieItT''''' s. 1273. Foreign decisions are to be rendered executory in Procedure. Russia according to the rules laid down in international treaties concluded between the Imperial Government and the other powers. In the absence of treaties the Russian tribunals will follow the following dispositions. i. The preliminary authorisation of the Russian tribunal is necessary, (s. 1278.) ii. The tribunal competent to give executory force to a foreign judgment is the court of the arrondissement where execu- tion is to take place, (s. 1275.) iii. The tribunal after having examined whether the cause has in reality been tried abroad by a competent tribunal, is to give its exequatur without any examination as to the merits, (s. 1276.) iv. The judgment may be examined if it is against public order or the laws of the Empire, (s. 1279.) A judgment contravening these laws or relating to the ownership of immoveables in Russia will not be enforced, (s. 1281.) V. The execution of the judgment will be according to Russian law. (s. 1250.) In a recent case the civil-kassations Department of the Senate has decided that these sections only apply to countries with which 2 K 498 EUROPE. Chapter XIII. Russia has treaties ; and that where there is no treaty, no recog- nition will be accorded to the judgment. ss: 923 & 203 et scq: apply to the competence of the plaintiff applying to the court of the arrondissement or court of first instance. The following papers are required by the court : — Proof of Foreign A copy of the judgment Collated by the court in which it was tDGMENT . given, accompanied by the ^for/nitle execuioire ' according to the law of the country. This is to be certified by the Russian Legation or Consul and countersigned by the Russian Minister of Foreign Affairs for the legalisation of the signatures of the Minister Plenipotentiary or Consul abroad. A Russian translation of the judgment : together with copies of these documents. The court does not examine it on the merits, but treats it as an ex parte application {matiere sommaire). Its examination of the competency of the foreign tribunal is to be determined by the law of that country : but this may be examined if it be against international law. It may also enquire into it if it relates to immoveables in Russia : Also to see if the parties were regularly cited and the rights of defence respected : And whether it is of the force of res judicata at home, or whether an appeal is pending. A divorce between Russian subjects belonging to the orthodox Greek Church will not be recognised. There is a treaty with France, 11 January, 1787, [set out on page 457]- [F. SILVELA, J.D.I. P J^PAIN i8Si,p. 20.] or-Mii^i. [Colonies :— BALEARIC ISLANDS, MA JOECA, MINORCA and IVIZA ; CANARY ISLANDS, PHILIPPINE ISLANDS, CUBA, PUERTO RICO, FERNANDO PO and ANNABON, CAROLINE ISLANDS and PALAOS, MARIAN ISLANDS.] Constitution and juris- The judge of the municipality has civil jurisdiction up to zco diction of the courts. j o i j j tr o pesetas {;£\i). The District Court {tribunal de partido), composed of two SPAIN. 499 judges, hears appeals from the judge of the municipality, and is Chapter XIII. the Court of First Instance for all civil matters not coming within ~ his jurisdiction. There are fifteen Courts of Appeal {Audiencia), composed of three judges. The Supreme Tribunal is analogous to the Cour de Cassation in France. C'wil Code. s. 98. All foreigners resident either permanently or temporarily Rights over resident are subject to the laws of Spain and to the Spanish tribunals for ^°''^'sners. misdemeanours and crimes committed in Spanish territory, and also for the fulfilment of obligations contracted by them in Spain ; or even out of Spain should they be in favour of Spanish subjects. \Real Dccrefo. 1852. s. 29.] s. 99. All foreigners resident either permanently or temporarily are entitled to ask the Spanish tribunals to administer justice on their behalf in respect of the fulfilment of obligations contracted by them in Spain or to be executed in Spain, or when they have reference to property situated in Spanish territory. \id: s. 32.] s. 100. In the matter of disputes arising between or against foreigners upon obligations contracted in Spain, although it be in neither a real nor a personal action, the Spanish judges will without doubt be fully competent, when it becomes a question of preventing a fraud, to adopt urgent provisional measures in order to prevent a debtor leaving the country to avoid payment, or in order to allow the sale of goods liable to perish by warehousing, or in order to appoint a keeper provisionally for a madman, or to do anything of a similar nature. \id: s. 33.] Oode of Ciuil Procedure. 1855. [Ley de Enjuiciamento Ciui/.] effect of foreign Judgments. [The Code was remodelled in 1881, but these sections remain — unaltered.] s. 922. Sentences pronounced in foreign countries shall have in Treaties. Spain the force that the respective treaties give them, s. 923. Should there be no special treaties with the nation Reciprocity, wherein they may have been pronounced, they shall have the same force that is given by the laws of that nation to judgments pronounced in Spain. s. 924. Should the judgment proceed from a nation where, by the jurisprudence, fulfilment is not given to judgments pronounced in Spanish tribunals, it shall have no force in Spain. ;oo KUROl'E. Defences. Chapter XIII. s. 925. Not being comprised in either of the cases whereof the three preceding articles speak, judgments shall have force in Spain if they combine in themselves the following circum- stances : — i. That the judgment has been pronounced in consequence of the exercise of a personal action, ii. That it has not been pronounced in contumacious absence, iii. That the obligation for the performance of which it has issued is lawful in Spain. iv. That the judgment contain in itself the requisites necessary in the nation in which it may have been pronounced in order to be considered authentic, and those which the Spanish laws require in order to make it evidence in Spain. Mode of procedure. s. 926. The cxecution of scntcnces pronounced in foreign countries shall be solicited in the Supreme Tribunal of Justice. This court, after translation of the judgment has been made in conformity with law, and after hearing the party against whom it is directed and the fiscal attorney, shall declare whether it ought or ought not to be fulfilled. The procedure more fully is as follows : — A copy of the judgment is to be forwarded to the Supreme Tribunal with an official translation into Spanish. This translation should emanate from the office ' de I'interpretation des langues' attached to the ministry of foreign affairs, and should be accompanied by a succinct statement signed by counsel and attorney, establishing the fact that the judgment fulfils the conditions prescribed by the Code of Civil Procedure. The defendant is then summoned to appear within thirty days and is allowed to file Avritten observa- tions. The fiscal attorney or the procureur may also file written observations. The court decides the question without a public hearing. If the judgment is to be executed it is handed over to the judge of the defendant's domicil : if it is not to be executed the original text of the judgment is returned to the plaintiff indorsed, * no * cause shown \iio ha /ugar] why this judgment should be executed * in Spain.' It is better for the papers to be presented to the Spanish tribunal 'par voie diplomatique ' in accordance with the royal decree of 17 Sept: 1S52 ; either by sending them to the Spanish ambassador in London, or to the English ambassador in Madrid. The Spanish tribunals are competent to decide upon the diffi- SPAIN. 501 culties wliith may arise relating to tlie execution of a foreign Chapter XIII. judgment made executory in Spain. I3ut the method of executing it adopted by the judicial authorities of Spain cannot vary or con- flict in any point with the provisions of the foreign judgment, which must in all cases produce its full and perfect effect {Canipo V. Call. J. D. I. P. 1 88 1, p. 365). s. 230. Should the defendant reside in a foreign country, the Service on absent . . DEFENDANTS. letter of exhortation shall be addressed m the form that may be — laid dovAn by treaties, or in default thereof in the way which the general instructions of the Government may determine. In this case the judge shall extend the term of the summons for the time that, having regard to the distance and greater or less facility of communication, he may deem necessary. s. 23 T. Should the domicil of the defendant not be known, he Publication. shall be summoned by means of edicts which shall be affixed in public places, and inserted in the official daily papers of the place wherein the suit is being prosecuted, of the place wherein he had his last residence, and in the Gaceta de Madrid ; this last when the circumstances of the persons and of the matter require it, according to the opinion of the judge. Without prejudice to this, the preceding summons may be effected in any place where the defendant may be found. Foreign companies are allowed to bring actions before the Foreign companies. Spanish courts, by the provisions of the law of 20 July, 1862, for France, which has since been extended to other countries. Ley HypOteOaha, 1861. [Grain's Translation.] s. K. In the registers may be inscribed documents or titles Lawofhypothecextended f . r 1 / \ , J • '° foreign judgments ni relatmg to realty and certam contracts of lease (s. 2) executed m certain cases. . 1-1 r •r-.-- r • Treaties. a foreign country, which may have force in Spain m conformity with the laws and executory decrees, wherein are declared the legal incapacity to manage property or the presumption of death of absent persons, the passing of the sentence of interdiction or other sentence whatsoever, whereby the civil capacity of persons may be modified as regards the free disposal of their property, pronounced by foreign tribunals, to which fulfilment must be given in the kingdom in conformity with the law of civil procedure. A treaty was entered into between Spain and Sardinia, 30 June, Treaties. 185 1, which has since been held by the Italian Court of Appeal to be still in force as regards Italy ; it provides for the sending of 502 KUkrU'E. Chapter XIII. rogatory letters by the tribunals of one country to those of the ~~~ other for the mutual enforcing of the judgments of the two countries. A treaty was also prepared between France and Spain in 1870, but was never signed owing to some invidious remarks made by Senator Bonjean : there is however a treaty between these two countries, 7 Jan: 1862, to exempt French subjects from being required to find security for costs when they are before the Spanish courts, and vice versa [set out on page 458]. Spanish and Sardinian Treaty, 1851. His Majesty the King of Sardinia and Her Majesty the Queen of Spain, ever intent on promoting the interests of their respective subjects, and render- ing more and more profitable to them the friendly relations happily existing between the two governments, have regarded as conducive to this end the authorisation — each in his (or her) own State, so far as the laws of the country may permit — of the execution of the judgments in ordinary civil or commercial cases issued by the tribunals of the other State. Being therefore determined to come to a special convention between the two governments, in order to lay down the rules by which such execution will have to be reciprocally demanded and conceded, plenipotentiaries have, to this end, been nominated for the stipulation of such agreement ; — s. I. The judgments or orders in ordinary civil and commercial cases issued by the tribunals of First Instance and Appeal of H.M. the King of Sardinia, and by those of Her Catholic Majesty, and duly authenticated, shall be reciprocally executed by the tribunals of the two States in conformity with what is concluded by the following articles. s. 2. The execution shall be demanded by the tribunals of First Instance or of Appeal of the one country from those of the other by means of rogatory commissions. When the judgments in question are final, the com- mission shall be accompanied by the corresponding decree of execution. When, on the other hand, the judgments are not final, before ordering the despatch of the commission the judgment creditor shall ascertain and shall then make express mention of it in his petition that the judgment is no longer open to appeal, if from its nature it requires this condition in order to be capable of execution. s. 3. In order that the judgments or orders of the tribunals of the one country may be executed by the competent tribunals of First Instance or Appeal of the other, the same must be previously declared to be executory by the superior tribunal within whose jurisdiction or territory the execution is to take effect. This declaration, however, shall not be made in the following cases : — i. When the judgment or order bears on its face manifest injustice. ii. When it is null through defect of jurisdiction, of service or of warrant, iii. When it is contrary to the prohibitive laws of the kingdom in which its execution is demanded. s. 4. The judgments pronounced by the tribunals of H.M. the King of Sardinia shall have the effect of creating hypothec on the property situated in the territory of Her Catholic Majesty, and reciprocally, when they shall have been declared executory in the manner indicated above. SPAIN — SWEDEN. $03 s. 5. Authentic documents recorded in the States of II. M. the King of Chapter XIII. Sardinia shall have the effect of conferring a charge on the property situated in the territory of Her Catholic Majesty whenever this property shall have been expressly designated in the contract, or vice versa. s. 6, The charge referred to in the tv^'o preceding sections shall not attach to any property which is incapable of assignment by the laws of the country in which it is situated. The carrying out of all the formalities prescribed by law in order that the charge shall take effect shall rest with and be at the charge of the person in whose favour the same shall have been obtained by consent or otherwise. s. 7. The acts of voluntary jurisdiction passed in the States of His Sardinian Majesty shall take effect in the States of Her Catholic Majesty, and vice versa, whenever it shall be declared that no obstacle exists to the execution of the same by the superior tribunal in whose jurisdiction they are to be executed. s. 8. The present convention is concluded for five years, at the end of which time unless one of the high contracting parties may have declared to the other six months before the expiration of the said term that they desire to put an end to its operation, it shall continue to be in force for one year, and so on failing notice of discontinuance as above. CUBA AND PUERTO RICO. A Code of Civil Procedure was issued in both these colonies I July, 1866, based upon the Spanish Code. SWEDEN. [A. W. BJORCK. K. d'olivecrona. The Courts of First Instance having jurisdiction in all civil and ■'• ^- '; ''■. '^^°' P" ®^-' commercial matters are, for the towns the Radhusriitt, composed diction of the^couits.'^ of the Burgomaster and Mayor and four permanent assessors : and for the country districts, the Ildradsraff, composed of a judge and twelve permanent assessors. There are three Courts of Appeal {Hofriiif), consisting of five judges, which hear appeals in all cases : they have also a jurisdiction in first instance in certain special matters, including all questions of status, succession, wills, and guardianship. The Supreme Tribunal {Kmimgens Hogsta Domstod) sits in two sections, each composed of four or eight councillors accord- ing to the importance of the case, and hears appeals in all matters from the Courts of Appeal. If the decision of the Supreme Tribunal differs on a point of law from the Court of Appeal, the case is re-argued before the full court. The old law of Vestrigothis (xiii century) still binds the courts: — ' Le meme droit que les e'trangers nous accordent, nous voulons ' les accorder.' The Code of 1794 still in force, although partially reformed by 504 KTROPE. Chapter XIII. the Code de Proc(Jdure Executive, 1S77, contains no reference to foreign judgments. Efforts have been made to bring about a treaty between SVveden and Norway for the mutual enforcement of judgments of the two countries, but up to the present time they liave been unsuccessful, the Norwegian Storthing having, ' sous I'influence d'une jalousie ' inexplicable,' refused the advances of the Swedish Diet. There is a treaty between Sweden and Denmark, 15 June, 1861 : but with the exception of Danish, foreign judgments are not recognised in the country : the courts are however said to be gradually advancing towards a general recognition of them. An elaborate process is provided for the purpose of summoning to the courts an absent defendant who is a Swedish subject : but they refuse to assume jurisdiction over foreigners by process of attaching personalty within the jurisdiction. As regards realty, a foreigner who possesses an estate in Sweden is obliged to have an agent there authorised to accept service of writs. The name of the agent must be sent to the judge of the district where the estate is situate. If no such agent is appointed, the judge will appoint one who will have the same powers as the regularly authorised agent. Security for costs. Security for costs is not required from foreigners. Proposed treaty with Norway. Treaty. Effect of Foreign Judgments. Service on absent defendants. [M. HAfSSON.] Constitution and juris- diction of the courts. NORWAY. All disputes are first taken before a Conciliatory Commission {Forligelses-co7nmissio}i) composed of two members. This Com- mission has jurisdiction to decide contested cases up to 120 crowns (about ^d \os.) : and all others if the defendant does not appear or admits the debt. If conciliation is impossible the parties are sent to the Court of First Instance {Ujideret)^ composed of a judge and two assistants, which have jurisdiction in all civil and criminal matters. There are five Superior Courts {Sfiftesoverret), composed of a president and two judges. Appeals from the inferior courts are allowed in all cases over 32 crowns. The Court of Christiania {By ret) is an •inferior court composed of a judge and eleven assessors : the appeal lying direct to the Supreme Court. The Supreme Court (Hoiesterei) is composed of seven judges; appeals from the superior courts are allowed in all cases over 400 crowns : from the Court of Christiania in all cases, and from the Courts of First Instance in certain cases including maritime matters, protested bills of exchange and bankruptcy. NORWAY — SWITZKRI-AXD. 505 Chapter XIII. Prior to 1S15, the Norwegian Common Law was the same as ' '~~~ the Danish, the writings of Anders Sando Orsted being the authoritative commentaries upon it. M. Schwiegaard's writings are considered the best expositions of the law which have come into existence since that date. The 'jalousie inexplicable' of the Norwegian Storthing referred Proposed treaty with to under Sweden as having prevented the conclusion of a treaty between the two countries, is thus explained by M. Hausson, a distinguished member of the Norwegian bar. In Sweden there are no recognised bodies of solicitors and barristers. So long as this continues, the Norwegians, though holding the Swedish judges in the highest respect, feel for obvious reasons that they are not justified in entering into the proposed treaty. Foreign judgments are not recognised, the whole matter being Effect of Foreign a J a o ' o Judgments. gone into again before the Norwegian courts : respect however — being paid to the opinion of the foreign court. Security for costs is not required from foreigners. Security for costs. Where a cause of action arises in Norway, an absent foreigner ^"^o^efInTan?!!'^^ may be summoned by means of a notice served at his last dwell- ing place : there is no further publication of the writ, but the time allowed for appearance is one year and six weeks. If judg- Time for appearance. ment is given against him, execution may issue upon any of his goods to be found in the country. SWITZERLAND. [- -gu:. J. D. I. P. 1883, p. 113. The Federal Tribunal has an original civil jurisdiction, in charles brocher.] ordinary actions on the request of one of the parties if the amount dictfon of "heTouns?^' involved is more than 3000 francs (^120) : and, in divorce, in the case of mixed marriages : it also has an appellate jurisdiction from the Courts of Appeal of the Cantons when federal laws are involved and the amount in dispute is more than 3000 francs. By consent of parties it will hear appeals from the Courts of First Instance of the Cantons. There exist in Switzerland both Federal Law and Cantonal Law ; where there is any conflict the former prevails. The Federal law up to the present time has made no provision towards assimilating the procedure of the Cantons in the matter of foreign judgments ; each Canton having its own code. Final judgments in civil Cantonal judgments. matters given in one Canton are executory throughout the whole of Switzerland. \Constittition Federale, s. 61.] By s. 59 of the same constitution it is provided that a debtor is 5o6 EUROPE. Chapter XIII. Treaty. Procedure to obtain exequatur. always to be sued before the tribunal of his domicil, unless it is ■ otherwise provided by treaty. There is a treaty with France, 15 June, 1869, ' sur la compe'- * tence judi^iaire et I'execution des jugements,' for the mutual en- forcement of the judgments of the two countries. [Set out on page 458.] APPENZELL. The demand for exequatur is carried before the Commission d'Etat (the executive authority of the Canton). There are no special rules to guide the decision, the execution itself being carried out under the supervision of the president of the 'tribunal de la commune.' Procedure to obtain exeqttaiiir. Judgment by default. ARGOVIA. Code of Ciuil Procedure, 1851. ss: 421, 422. In the ordinary case of a foreign judgment, the demand for execution is addressed to the prefect of the district : the only question to be considered being whether the foreign state would enforce an Argovian judgment without examination of the merits : if it would not, execution is refused. An appeal lies to the Ministry of Justice, and thence to the Conseil d'litat. But where the judgment is by default the demand is addressed to the Supreme Court, the defendant being heard but not as to the merits of the case. Effect of Foreign Judgments. Defences. BALE-VILLE. Code of Ciuil Procedure. 1875. Execution of \_awards and] Judgments given by courts outside the Canton. s. 258. The execution of [awards and] foreign judgments should either follow the summary procedure for the recovery of debts, or, in case it is opposed, the usual procedure. The regula- tions provided in these two methods must be followed, subject to the following exceptions : — The merits of the case must not be discussed ; therefore defences based on considerations of justice or equity are in- admissible. Execution will only be refused in the following cases : — i. Absence of jurisdiction. ii. Want of executory forms or proper authentication. BALE-VILLE— ]!ALK-CAMPAGXE— BERN. 507 iii. Defences drawn from the nature or the extent of the Chapter XIII. demand for execution, particularly on the subject of costs. iv. Complete or partial satisfaction. BALE-CAMPAGNE. Code of Ciuil Procedure. 1867. ss: 267-273. A foreign judgment for a sum of money must Procedure to obtain exequatur. receive execution by the ordinary procedure for the recovery of debts : all others must be made the subjects of decrees of execu- tion given by the prefect of the government for the district. The merits of the case are not discussed : the enquiries of the prefect are limited to the jurisdiction and the due fulfilment of the requisite formalities. An appeal lies to the government. BERN. The Justice of the Peace has jurisdiction up to 21; livres (about Constitution and juris- ■" . diction of the courts. jT^i los.) \ and to any amount by consent of parties. The President of the District Court has jurisdiction up to 200 livres. The Court itself in all other cases, and in matrimonial matters. The Supreme Court, composed of the president and six judges, hears appeals in all cases over 200 livres; and in all cases by way of cassation. Code of Ciuil Procedure. 1847. s. 391. With regard to foreign judgments the Court of Appeal Effect of Foreign ...... ... .,..,.,. . Judgments. has in the first instance to decide on its admissibility to execution, — after hearing the defendant. If the court decides that the judg- ment is to be executed, it is to be considered equivalent to a judgment of the Canton. s. II. i. Personal actions must as a rule be instituted in the court of the district in which the defendant is domiciled. ii. Persons not regularly domiciled within the Canton may be sued in the place where they are residing at the time. Law as to Execution for Debts. 1850. On the ex parte statement of the creditor, alleging that he has a Summary procedure, monetary claim against A. B. the court issues a writ for payment [ZahliDigsauffordcrimg). (s. 427.) If the debtor raises any objection within a fortnight, the creditor must bring a regular action (ss: 431, 436) ; if no objection be raised to the writ execution is granted 5o8 r.UROPi:. Chapter XIII. (s. 443). The Code lays down the rules with regard to jurisdic- tion in this special procedure. s. 413. In the case of debts not secured by mortgage the enforcement of the claim must as a rule take place in the district in which the debtor is domiciled. In the case of persons not domiciled within the Canton the WTit may (if miy proceeding against them be permissible in the courts of the Canton*) be issued in the court, in the district of which they happen to reside, or where they have any property. If the debtor's actual place of residence be unknown or if the institution of proceedings against a debtor domiciled outside of the Canton be refused by the authorities of the place in which he is domiciled, the creditor has the option of having the writ issued where he (the debtor) has any property, or in the place of his origin, or in the last place in which he resided. Notice of the issue of the writ shall in that case be given in the official gazette, and shall be posted on the notice-board ; all further steps are effected by notice on the board. If the debtor changes his residence t before execution has taken place the further steps are continued in his new place of residence. In the case of debts secured by mortgage the forum of the subject-matter is the proper forum (s. 17), but the prescribed communications are always to be directed to the place where the debtor resides, if possible by the intervention of the judge who has jurisdiction. FRIBOURG. Code of Ciuil Procedure. Procedure to obtain s. 653. With regard to foreign judgments their right to be admitted to execution must be the subject of a preliminary investigation by the Supreme Court of the Canton. If it is found that the judgment can be executed, it is to be executed in the same manner as a judgment of the Canton. In practice it seems that the enquiry before the Supreme Court is ex parte and limited to a formal proof ; if there is no treaty the condition of reciprocity is required ; the exequatur is then exequatur. * i.e. If the court has any jurisdiction in the matter for instance in action for damages arising out of a tort committed within the district of the court (s. 13), or if a claim be made against the undivided estate of a person who died within the district of the court (s. 15), etc. t This applies only to changes of residence within the Canton of Bern. GENEN'A. 509 granted with a reservation to the defendant to raise any defence Chapter XIII. before one of the inferior courts. ~ GENEVA. The Justices of the Peace have a summary jurisdiction up to Constitution and juns- ^ / /~rs\ diction of the courts. 200 francs {±^0). The Civil Tribunal, composed of a judge and two assessors, has jurisdiction beyond 200 francs. The Court of Commerce, composed of three judges, has jurisdic- tion in all commercial matters. The Court of Justice, composed of two judges and three assessors, has an appellate jurisdiction from the Civil and Com- mercial Courts in matters above 500 francs, and by way of cassation from the Justices of the Peace. Code of Ciuil Procedure. 1819. s. ■?76. Tudarments s;iven and documents reco2:nised out of the Effect of Foreign ... Judgments. jurisdiction of the Canton cannot be executed within it, until — they have been declared executory by the civil tribunal, the parties being heard and duly cited and the public minister heard, without prejudice to contrary dispositions which may exist in treaties or concordats [or in the Federal constitution]. s. 377. All execution shall be null and void which has been followed up in contravention of the preceding article. Law. 28 June, 1830. s. 3. The same conditions are required in order to enable foreign judgments to be entered in the registers of the office of hypothecs and thus to be clothed with the publicity necessary to make them executory. The terms of these sections are generally understood to give authority to the tribunal to enquire into the judgment on the merits, and if necessary to modify it before granting an exequatur upon it. This authority has by custom resolved itself into leaving the whole matter in each case to the prudence and discretion of the tribunal : the competence of the tribunal being always the first matter enquired into. The judgment must come before the Genevese tribunal clothed with all the forms necessary to prove its authenticity. 510 EUROPE. Chapter XIII Assumed jurisdiction. Domicil. Divorce of foreigners. Status. Marriage. Laiu of judicial organisation. 1832. As regards judgments coming from other Cantons, reciprocity is demanded. s. 60. iii. The courts of the Canton assume jurisdiction over non-resident foreigners in respect of obUgations contracted by them with persons domiciled in the Canton. [Those persons only are to be considered as domiciled who have applied for and obtained leave to fix their domicil in the Canton.] Law. 5 April, 1876 (modifying t/ie Civil Code). s. 88. (li.) As regards foreigners in Switzerland, no action for divorce, judicial separation or for nullity of marriage can be allowed to be commenced, unless it be proved that the State whence the parties come will recognise any judgment that may be pronounced in the action. The same principle applies to all actions regarding personal status. s. 135. A marriage contracted abroad under the authority of the laws in force there cannot be declared null unless the nullity shall come into force at the same time according to the laws of the foreign state and the provisions of the present law. [a. l. e. iv. 510.] Procedure to obtain exeguat2ir. Marriage of foreigners. GLARIS. The Commission d'Etat grants the exequatur on foreign judg- ments. The parties are cited and an oral examination taken : but the merits of the case are not investigated. A judgment is not enforced if it is contrar}- to federal or cantonal law. Ciuil Code, 1870. s. 34. A foreigner marrying in the Canton must produce a certificate from the foreign authorities that there is no just impediment, and that the marriage will be recognised together with all its legal consequences. s. 38. Foreigners cannot be married in the Canton without the authorisation of the 'Commission d'Etat.' Effect of Foreign Judgments. GRISONS. Code of Ciuil Procedure. s. 305. Judgments of other Cantons arc to be executed subject to the following conditions : — CRISONS — LUCERNE — NEUCIIATEL. 5 I I i. If its conclusiveness and executory character according to Chapter XIII. the law of the Canton whence it emanates have been certified by ' the competent authority of that Canton. ii. If there is no judgment of a court in Orisons having a con- trary effect, and if those courts according to their own law have not exclusive jurisdiction in tlie matter : unless the defendant has submitted to the jurisdiction of the foreign court. s. 306. Subject to the same conditions, and subject also to treaties, foreign judgments in civil matters are to be executed in like manner at the request of the foreign authority. In all other cases foreign judgments can only be made use of as evidence, as to the value of which the judge is to decide according to the ordinary rules. s. 307. The Government {petit conseil) decides all questions relative to the execution of judgments. LUCERNE. Oode of Ciuil Procedure. 1850. ^"fnn^rf "''' •Z J UDGMENTb. s. 315. With reference to the execution of judgments given by courts outside the Canton, the following rules apply : — (a), (as to judgments coming from other Cantons.) (l>). if the judgment comes from a foreign country, a petition for exequatur must be addressed to the court of the district in which the defendant is domiciled. This court will decide the matter, subject to an appeal to the Superior Court. The judges are required specially to see if the foreign country would enforce a judgment from Lucerne. NEUCHATEL. Code of Ciuil Procedure. 1882. effect ok foreign . . . , Judgments. s. 864. Judgments and final decrees in civd or commercial — matters given by foreign courts or arbitrators, shall be executed in the Canton when they have acquired executory force. s. 865. The demand for exequatur shall be submitted to the Procedure. Court of Appeal, from whose decision there is no appeal. s. 866. The demand shall be brought before the court by a formal petition addressed to the President of the Court of Appeal supported by affidavit (the whole in duplicate) containing, a. A copy of the judgment or decree authenticated by the proper authority of the foreign state ; b. A certificate, also authenticated, from the registrar of the foreign court, that no appeal or stay exists in any form. 512 la'Kui'ic Chapter XIII. Defences. s. 867. The Court of Appeal should authorise the execution of judgments coming from tlie Swiss Cantons, or from countries with whom Switzerland has entered into treaties concerning the execution of judgments. Execution can only be refused in the following cases : — a. If the decision emanates from a court not having jurisdiction. b. If it has been given and the parties were not duly cited, or were not legally represented, or were in default. c. If it would militate against the public law and order of the Canton to enforce it. s. 868. The translation of all the documents may be required according to the provisions of s. 267. s. 869. The President of the Court of Appeal forwards one copy of the petition to the defendant and fixes a time within which he is required to file an answer to it. In all cases, when the regularity or irregularity of the judgment is evident, the petition is submitted by the President to the Court, who may admit or reject it without any previous communication to the opposite party. s. 870. The answer is to be in duplicate, one of the copies being forwarded to the petitioner. s. 871. At the expiration of the time allowed the court decides on the petition, the answer (if any) and the documents transmitted by the parties. If the answer is not received in time, the court will proceed without it. s. 872. The president may summon the parties before the court to hear verbal statements, llie judgment is delivered at once. Effect of Foreign Judgments. SAINT-GALL. Code of Ciuil Procedure. 1850. s. 246. Judgments emanating from tribunals outside the Canton are executory in the Canton, if, a. No judgment of a competent court of a Canton has been given in the same matter ; b. The foreign court had power to decide the case by virtue of the laws of Saint-Gall or international treaties ; c. Reciprocity is established either by a declaration of the foreign state, or in any other positive manner. It would seem that no application to the court for an exe- quatur is necessary. SCHAFFHOUSEN — TIIURGOVIA. 513 SCHAFFHOUSEN. Chapter XIII. The Courts of First Instance entertain all demands for exequatur Procedure to obtain on foreign judgments, subject to appeal to the Superior Court, ^'^^'i"'^^'"'- They are made executory only if they have executory force in their own country, and if the court had jurisdiction at the com- mencement of the suit according to the laws of the Canton. [Code of Civil Procedure, s. 345]. By a decree of the great council, 19 February 1862, the con- dition of reciprocity has been added : in the case of judgments emanating from the Grand Duchy of Baden reciprocity is assumed. SCHWYTZ. The demand for exequatur is taken before the Prefect, who Procedure to obtain ,, .. 11/-1 1 r 1 • exequatur. allows a certam tmie to the defendant to answer, and from his decision an appeal lies to the Conseil d'Etat. SOLEURE. Permission of the judge having been obtained, execution issues Procedure to obtain , . . 1 . ,, 1 . T exequatur. on a foreign judgment m the same way as on a home judgment. TESSIN. CwU Code. 1838. s. 1 153. The same as Code Napoleon, s. 2123 [p. 449]. Code of Giuil Procedure. 1843. effect of foreign Judgments. s. 346. Foreign judgments, not by default, whether they concern , ^ 1 — , , , . D J o J J J Judgment by default. the subjects of the Canton alone, subjects and foreigners, or foreigners alone, cannot be executed without a previous decision authorising it, all parties interested being duly cited. The defendant may not raise any defence on the merits which has been raised and decided upon by the judgment. The petition, addressed to the Court of First Instance, is examined according to the oral procedure. The authorisation having been given, the foreign judgment becomes executory, security being given ; but the decision is subject to appeal. THURGOVIA. Code of Giuil Procedure. 1867. s. 292. With regard to the execution of a foreign judgment, a Procedure to obtain petition must be addressed to the Supreme Court, which decides ^■'^'^^"'*^"^- whether it should be satisfied. 2 L 5H EUROPE. Chapter XIII. Procedure to obtain exeguatur. Procedure to obtain exequatur. UNTERWALDEN. The Conseil d'Etat authorises the execution of foreign judg- ments ; the condition of reciprocity being required. In Oswald, the defendant may attack either the form or tlie merits of the judgment : In NiDWALD, the merits may not be raised, execution being granted if it is expedient. URI. The Prefect of the Government, subject to an appeal to the Government itself, hears all petitions with regard to allowing execution on foreign judgments. Procedure to obtain exequatur. All the documents relating to the foreign judgment are forwarded to the Ministry of Justice : the question is then referred to the Conseil d'etat, the defendant is then summoned, and execution allowed, the condition of reciprocity being required. The merits of the case are not gone into, the enquiries being directed to the competence of the court, and to the regularity in point of /orm. An affidavit may be required to prove that the judgment is final. A decision contrary to federal or cantonal law and public order will not be enforced, nor if it is manifestly unjust, nor if it has been given in violation of the laws of the forum domicilii. Procedure to obtain exequatur. Code of Civil Procedure. 1866. s. 519. A judgment given outside the Canton can only be made executory in virtue of a declaration by the CoJiseil d'Etaf, a right of appeal reserved to the opposite party. The petition and answer are to be in writing : in important cases reasons will be received from both sides. Execution will be refused for informalities ; and after the merits have been gone into, for a violation of the public law and order, or of an inter- national convention. Civil Code. 1871. s. 9. A Vaudois may be summoned if domiciled in the Canton, for obligations contracted with foreigners in foreign countries. s. 674. b. The judge may sequestrate the goods in the Canton of any one though not domiciled there. ZUG — ZURICH. 515 Code of Ciuil Procedure. 1871. chapter xiii. DEFENDANTS. In what cases. s. 4. Absent foreigners may be summoned in the cases men- Serviice on absbnt tioned in section 8 of the Civil Code : that is to say, i. in civil actions resulting from a fault or offence committed in the Canton, ii. in real actions concerning property situated in the Canton, iii. where in an agreement signed in any country there is a stipulation to submit disputes to the tribunals of the Canton, iv. where the defendant having been domiciled in the Canton, has no known domicil, if the action be commenced within three months of his leaving the Canton. ZUG. Execution on a foreign judgment is granted by the Conseil ^_^°^^^^"[^^^'° °'''^'" d'Etat ; the whole question may be re-opened. ZURICH. The Justices of the Peace have a summary jurisdiction up to Constitution and juHs- 50 francs {£2) ; beyond that amount their functions are simply conciliatory. The President of the District Court has summary jurisdiction above 50 and up to 200 francs. The District Court in all other cases, and by way of cassation from the Justices of the Peace. The Court of Commerce has jurisdiction in all commercial matters. The Superior Tribunal is the Court of Appeal from the District Court, and the Cour de Cassation in other cases. The Cour de Cassation, composed of nine judges, is the final Court of Appeal from the Superior Tribunal and the Court of Commerce. Code of Ciuil Procedure. 1874. s. 7=; 2. As regards the execution of foreign judgments in civil Effect of Foseign ' '^ _ ° o J o ^ Judgments. matters, international treaties are conclusive where they exist. — As regards judgments from states with which no treaties exist, the Zurich judge may grant execution at his discretion after examina- tion of all the circumstances, provided that the judgment in question be not subject to any appeal, and provided it be signed by a judge who has jurisdiction according to the law governing him, and where jurisdiction is not excluded by the Zurich law. * The Zurich courts do not easily ignore a foreign judgment, at ' least they do not do so if it is clear that the formal and material 5i6 EUROPE. Chapter XIII. Service on absent defendants. In what cases. 'requirements of a proper procedure have been complied with.' [Meile's Commentary on the Code.'\ s. 215. Persons not domiciled in Switzerland can be sued in the place where the contract ought to have been performed, according to the intention of the parties, in actions for specific performance, rescission or damages, if the defendant resides in that place, or any property of his subject to execution is situated there. This section only applies to actions arising out of contracts. Property includes chattels and choses in action (as well as real property). s. 185. Writs against persons residing outside of the Canton are sent to the competent authority in the place where the person to be served is domiciled, together with a request to serve them. s. 191. If the writ cannot be served on the person concerned, a public citation {Edictalladung) takes the place of the special writ. The same has to be effected by insertion in the official gazette and according to circumstances in other public journals. The documents proving that this has been done must be made part of the record. Jurisdiction over foreign owners of property. TURKEY. [including in Europe— BULGAEIA, EAST EOTTMELIA, and BOSNIA ; and in Asia— ASIA MINOR, SYRIA, PALESTINE, MESOPOTAMIA and WEST ARABIA.] Law of 7 Sepher 1284 [A.D. 1873]. Conceding to strangers the right to possess immoveables in the Empire : and relating to those countries only who have adhered to the Protocol of the Sublime Porte relative to this law : [of which countries Great Britain is one]. s. 2. iii. The owner of the property is to submit to Ottoman tribunals on all questions relating to the property, even if the other party be a foreigner, without being able to plead effectually his own nationality, subject to the reserves and immunities agreed upon by treaties. s. 3. In case of bankruptcy of the foreign proprietor, the syndics of the bankrupt may require from the Ottoman tribunals an order for the sale of property which from its nature and according to law is held answerable for the debts of the owner. TURKEY. 517 The same thing shall happen when a foreigner has obtained a Chapter XIII. ^ jtigement de coiidamnatmi ' before a foreign tribunal against another effect of Foreign foreigner who is owner of immoveables in the Empire. Judgments. To obtain execution of this judgment against the property, the creditor must move the competent Ottoman authority for an order to obtain the sale of such immoveables as are held answerable for the debts of the proprietor. But this judgment shall only be executed by the authorities and tribunals of the Empire when they shall have ascertained that the property required to be sold really belongs to the category of those which may be sold to pay the debt. DEFENDANTS. Time for appearance. Code of Commercial Procedure. 1867. service on absent s. 12. Absent defendants are to enter appearance within the following times : — Cyprus, Crete, and the Archipelago . . 2 months Egypt, Tripoli, Tunis, and States bordering on the Ottoman Empire . . . 4 » Other European States .... 6 „ In time of war these periods are doubled. s. 20. (2). Companies may be sued by their manager, service Companies, being effected at the place of business : if there is no place of business a partner may be served where he is domiciled. (4). For those who have no domicil nor known residence in Defendants with no , . . ^ , known residence. Turkey the writ shall be affixed, by order of the President of the Court, in the hall of the court where the action is brought, and a copy shall be inserted in the papers, chiefly in those which, according to the defendant's circumstances, will be the most likely to be read by him. (6). For those resident in foreign countries, the wTit shall be Defendants resident in . . , - , ,^ 1 foreign countries. transmitted by letter from the President of the Court to the Minister of Foreign Affairs to be sent by him as soon as possible to the defendant's residence. The usher is to take a written re- ceipt from the post-office to assure the letter having been posted. Protocol. 24 February 1873. For the Prouince of Tripoli. The Sublime Porte engages that actions between natives and Tripoli. English, French or Italian subjects shall be tried according to the capitulations in force, and in the same way as in the other Ottoman Provinces. CHAPTER XIV. Chapter XIV. THE LAWS OP THE UNITED STATES OP NORTH AMERICA. PAGE 526 527 NEW YORK ALABAMA ARKANSAS CALIFORNIA COLUMBIA CONNECTICUT DELAWARE* FLORIDA* GEORGIA . ILLINOIS . INDIANA . IOWA KANSAS 530 KENTUCKY 530 LOUISIANA 531 531 532 533 533 533 527 527 527 528 MAINE MARYLAND MASSACHUSETTS MICHIGAN MINNESOTA MISSISSIPI 533 MISSOURI 534 NEBRASKA * NEVADA 534 NEW HAMPSHIRE 534 We have been unable to obtain copies of the Codes 0/ these States. NEW YORK, 519 NEW JERSEY '535 Chapter XIV. NORTH CAROLINA 535 OHIO OREGON 535 535 PENNSYLVANIA . 536 RHODE ISLAND . 537 SOUTH CAROLINA 537 TENNESSEE . 537 TEXAS 538 VERMONT 538 VIRGINIA • 538 WISCONSIN 539 The principles adopted by the courts of the North American States on the subject of foreign judgments closely resemble the English doctrines. As the cases which have been decided both by the Supreme Court of New York and the courts of the individual States are collected in Story's Conflict of Laws, side by side with the English decisions, it has been thought unneces- sary to add to the length of this chapter by referring to them : where any new principle is to be drawn from them, it has been incorporated into the text of the preceding chapters. It will be noticed that in all those States in which constructive Personal service out of notice by publication is allowed when the defendant is non-resident, J""'''^'"'°"- personal service on the defendant out of the jurisdiction is also allowed, and is equivalent to service by publication. The English method of serving only a notice of the writ on a foreigner out of the jurisdiction in lieu of the writ itself has not yet been adopted in the American Codes of Procedure. NEW YORK. In an action on a foreign judgment the defendant may require SecHty for costs in from the plaintiff, whether citizen or alien, security for costs to the ^"'''" °" Judgment. extent of K 2 50. Code of Ciuil Procedure. 1877. statute^op l.m.ta- s. 390. Where a cause of action which does not involve the title iffo^ign statute bars . . remedy (except as to to, or possession of real property within the State, accrues against '"'^^''y) defence is good ; , . , . , . , except in favour of a person who is not then a resident of the State, an action cannot resident. be brought thereon in a court of the State against him or his 520 AMERICA. Chapter XIV. Designation of person to accept service. Service on foreign companies. Proof of service. Service on absent defendant. In what cases. personal representative after the expiration of the time Hmited by the laws of his residence for bringing a like action, except by a resident of the State, and in one of the following cases : — i. Where the cause of action originally accrued in favour of a resident of the State. ii. Where before the expiration of the time so limited, the person in whose favour it originally accrued, was or became a resident of the State, or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. s, 430, A resident of the State may execute a deed designating a person upon whom service may be made in his absence. s. 432. A copy is to be delivered within the State as follows : — i. To the president, treasurer or secretary; or if the corporation lacks either of these officers, to the officer performing corresponding functions under another name. ii. To a person designated for the purpose by the president, iii. If such a designation is not in force, or if neither the person designated, nor an officer specified in (i.) can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein ; to the cashier, a director, or a managing agent of the corpora- tion within the State. s. 433. The last section applies to the service of process or other paper whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law. s. 434 provides the method for proof of service, s. 438. An order directing the service of a summons upon a defendant without the State, or by publication, may be made in either of the following cases : — i. Foreign companies ; or, natural persons not being residents of the State, ii. Absence of defendant from State to avoid service or defraud creditors, iii. Where a resident of the State has been continuously without the United States more than six months next before the granting of the order, and has not designated anybody to accept service, or the person designated cannot be found in the State. NEW YORK. 521 iv. Where the complaint demands judgment against a resident XIV. of the State annulling a marriage, or for a divorce, or a separation. V. In all actions affecting the title to real or personal property, the defendant being a resident of the State or a domestic corporation. vi. In actions commenced sixty days next before the expira- tion of any period Hmiting the action under the statutes of limitation, vii. Where the action is against the stockholders of a cor- poration, or joint stock company, and is authorised by the law of the State, and the defendant is a stockholder thereof s. 439. The plaintiff when he applies for the order, must present Affidavit required. to the judge a verified complaint, showing the cause of action for which judgment is demanded against the defendant to be served. Proof, by affidavit, must also be made of the additional facts required by s. 438. s. 440. The order may be made by a judge of the court, or Order thereon, the county judge of the county where the action is triable. It must direct either publication in two newspapers for a certain Publication. time not less than once a week for six successive weeks ; or, at the option of the plaintiff, personal service upon the defendant without the State : further, that on the first day of publication the plaintiff post to the defendant one or more sets of copies of the summons, complaint and order ; or a statement that the judge dispenses with this, being satisfied that the defendant cannot be found with reasonable diligence. s. 441. The first publication is to be made within three months after the order is granted. For the purpose of reckoning the time within which the Time for appearance, defendant must appear or answer, service by publication is complete upon the day of the last publication pursuant to the order ; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed for publication. ss: 442. 443. Where service is made by publication or without Papers to be filed. the State, the summons, complaint and order, and the papers upon which the order was made, must be filed with the clerk on or before the day of the first publication ; and a notice subscribed by the plaintiff's attorney and directed only to the defendant or defendants to be thus served, substantially in the following form, 522 AMERICA. Chapter XIV. Form of notice. Proof of publication. Defendant's appearance after judgment, within what time. Trustee process. In what actions a warrant of attachment may be granted. What must be shown to procure the warrant. Proof of Foreign Judgments. the blanks being properly filled up, must be subjoined to and published with the summons : " To .... The foregoing summons is served upon you, by publication (or, without the State of New York) pursuant to an order of dated and filed with the complaint, in the office of the clerk of at ." s. 444. Proof of publication is to be by affidavit of the printer or publisher or his foreman or principal clerk. Proof of post- ing or delivery, by affidavit of the person who posted or de- livered it. s. 445. If the defendant does not appear, he may show cause within one year after service of written notice of final judg- ment : or if there has been no such service, within seven years after the filing of the judgment. If he is successful, the court may order restitution : but dona fide purchasers shall not be affected. ss: 635-712 relate to Attachment of Property, or Trustee Process. s. 635. A warrant of attachment against the property of one or more defendants in an action, may be granted upon the applica- tion of the plaintiff" as specified in the next section where the action is to recover a sum of money only as damages for one or more of the following cases : — i. breach of contract, express or implied, other than a contract to marry ; ii. wrongful conversion of personal property ; iii. any other injury to personal property in consequence of negligence, fraud or other wrongful act. s. 636. To entitle the plaintiff" to such a warrant, he must show by affidavit to the judge granting the same, as follows : — i. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must shew that the plaintiff" is entitled to recover a sum stated therein, over and above all counterclaims known to him ; ii. That the defendant is either a foreign corporation or not a resident of the State ; or, if he is a natural person and a resident of the State, that he has departed therefrom with intent to defraud his creditors ; etc: ss: 914-920 relate to depositions taken within the State for use without the State. s. 952. The copy of the record is to be accompanied by, NEW YORK. 523 i. an attestation by the clerk of the court with the seal of the Chapter XIV. court affixed ; or by the officer in whose custody the record is legally kept, under the seal of his office ; ii. a certificate of the chief judge or presiding magistrate of the court, that the person is clerk or officer ; and that his signature to the attestation is genuine ; iii, a certificate under the Great Seal of the Government or Secretary of State or other officer having custody of the Seal, to the effect that the court is duly constituted, specify- ing generally the nature of its jurisdiction : and that the signature of the chief judge is genuine. s, 953 provides an alternative and less elaborate method. Other proof. i. The copy is to be compared by the witness with the original, who is to prove that it is an exact transcript of the whole of the original ; ii. also that the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally in charge ; iii. also that the attestation is genuine. [see the cases Vandervoort v. Smith (2 Caine 155), zxidijarvis v. Sewall (40 Barbour, 449.)] s. 954. Nothing in this article is to be construed, as declaring the effect of a record or other judicial proceeding of a foreign country, authenticated, so as to be evidence. s. 956. A copy of a patent, record or other document remain- Documents from foreign • • rr c r • • c -y Countries ; ing of record m a public office of a foreign country, certified how authenticated. according to the form in use in that country is evidence, when authenticated, as follows : — i. By the certificate under the hand and official seal of a com- missioner appointed by the governor to take the proof or acknow- ledgment of deeds in that country, to the effect that the patent record or document is of record in the public office, and that the copy thereof is correct and certified in due form ; ii. By a certificate under the hand and official seal of the Secretary of State annexed to that of the commissioner, to the same effect as prescribed by law for the authentication of the cer- tificate of such a commissioner upon a conveyance to be recorded within the State. The certificate of the commissioner, thus authenticated, is presumptive evidence that the copy of the patent, record or document is certified according to the form in use in the foreign country. 524 AMERICA. If foreign statute bars remedy, defence good. Chapter XIV. ALABAMA. Code. 1867. s. 291 1. If the laws of another country bar a suit upon a con- tract or act done there whilst the party sought to be charged thereby was a resident of such country, it is barred in the same manner here. Effect of foreign probate. s. 1949. A wiU provcd in another country may be admitted to probate in this State : The will or copy with probate annexed is to be certified by the clerk of the foreign court in which the will was proved ; and a further certificate of the judge that the attesta- tion is genuine. s. 2293. An action may be maintained and property recovered by a foreign administrator by, first, recording a copy of letters of administration duly authenticated according to the law of the U. S. in the office of the judge of probate in the country where the property is situate ; and, secondly, by giving a bond. Action by foreign administrator. ARKANSAS. Laws. c. 106. ss: 15. 19. Actions on home judgments are barred in lo years; and on foreign judgments (presumably) in 5 years. Wills proved beyond the State. Notice of probate of such wills. Effect of such wills. CALIFORNIA. Laws. c. 120. s. 27. All wills which shall have been duly proved, and allowed in any other of the United States, or in any foreign country or State, may be allowed and recorded in the Probate Court of any county in which the testator shall have left any estate, provided it has been executed in conformity with the laws of this State. s. 28. When a copy of the will, and the probate thereof duly authenticated, shall be produced by the executor, or by any other person interested in the will, the court shall appoint a time of hearing, and a notice shall be given in the same manner as in the case of an original will for probate. s. 29. If on the hearing it shall appear to the court that the instrument ought to be allowed as the will of the deceased, a copy shall be filed and recorded, and the will shall have the same force and eff'ect as if it had been originally proved and allowed in the same court. CALIFORNIA. 52$ C. 123. Chapter XIV. s. 30. When the person on whom service is to be made resides service on absent out of the State, or has departed from the State ; or cannot after defendants. due diligence be found within the State ; or conceals himself to avoid the service of the summons, and the fact shall appear by affidavit to the satisfaction of the court or a judge thereof, or a county judge, and it shall in like manner appear, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary and proper party to the action, such court or judge may grant an order that the service g^^^.^^ ^^ p^^,.^^^.^^_ be made by the publication of the summons. s. 31. The order shall direct the publication to be made in a newspaper to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week : Provided that publica- tion against a defendant residing out of the State, or absent there- from, shall not be less than three months. If the residence is known, copies of the summons and complaint are to be posted to him there. Personal service is equivalent to publication and posting. In actions upon contracts for the direct payment of money, the in actions on contracts, court in its discretion may, instead of ordering publication, or may after publication, appoint an attorney to appear for the non-resident, absent or concealed defendant, and conduct the proceedings on his part. s. 451. A copy of the record is to be accompanied by, Proof of Foreign i. an attestation by the clerk of the court with the seal of the udgments. court affixed; or by the officer in whose custody the record is legally kept, under the seal of his office ; ii. a certificate of the chief judge or presiding magistrate of the court, that the person is clerk or officer; and that his signature to the attestation is genuine; and that the certificate is in due form; iii. a certificate of the minister or ambassador of the United States, or of a consul of the United States in the foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and that the signature of the chief judge, or other legal keeper of the record is genuine, s. 45 2 provides an alternative and less elaborate method. Alternative method. i. The copy is to be compared by the witness with the original, who is to prove that it is an exact transcript of the whole of the original ; 526 AMERICA. Chapter XIV. Statute of Limita- tion. Cause of action arising out of the State. ii. also that the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally in charge ; iii. also that the attestation is genuine ; and that the copy is duly attested by a seal which is proved to be the seal of the court, where the record remains, if it be the record of a court ; or if there be no such seal, or if it be not a record of a court, by the signature of the legal keeper of the original. s. 532. When a cause of action has arisen in another State or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favour of a citizen thereof, who has held the cause of action from the time it accrued. Statute of Limita- tion. If foreign statute bars remedy, defence good. Service on absent defendant. In what cases. Publication of notice. COLUMBIA. Laws. c. 97. ss: 2. 3. Actions on home judgments are barred in 10 years and on foreign judgments (presumably) in 5 years. s. 17. If a cause of action has arisen in another country between persons not resident in this State, and is barred there by lapse of time, it is barred here. c. 81. s. 7. If an affidavit is filed that the defendant is non-resident and that a cause of action exists against him, service may be made by publication, in the following cases : — in actions, i. relating to realty. ii. to establish or set aside a will. iii. against non-residents or foreign corporations having pro- perty in the district or debts owing to them subject to the process of the court. iv. to exclude defendant from his interest in any property in the district : and, V. when the defendant avoids service. s. 8. The notice is to be published in some newspaper selected by the court not less than once a week for six weeks. If the defendant's residence abroad is known, the notice is to be posted to him : The service is held to be complete at the end of the time ordered. CONNECTICUT— GEORGIA — ILLINOIS — INDIANA. 527 The publication is to contain a summary of the object and Chapter XIV. prayer of the petition. CONNECTICUT. Laws. Tit: 1. c. 2. s. 23. If the defendant is absent and possesses property in the Service on agent. State, the writ of summons may be left with his agent ; if he possesses land, a copy is to be left at the office of the town clerk where the land lies ; if there is no agent, it may be left on the person in charge : The copy is to be a true and attested copy. From Mlddlehrooks v. Springfield Insurance Co: (14 Conn: Rep: 301) it would seem that a foreign corporation with only an office in the State cannot be served with a writ. GEORGIA. Code. ss: 2854. 2855. Actions on home or United States judgments are barred in 7 years, and on foreign judgments in 5 years. s. 3526. A dormant judgment may be revived against an absent defendant, a notice being pubUshed in the Gazette once a month for 4 months. ILLINOIS. Laws. c. 109. s. 9. A foreign probate may be recorded in the State if accom- Foreign probate. panied by a certificate of due execution and proof according to the laws of its own country. INDIANA. Code. ss: 212. 225. Actions on home or United States judgments are barred in 20 years, and on foreign judgments (presumably) in 15 years. s. 40. If the plaintiff file an affidavit that the defendant is Service on absent unknown and is believed to be out of the State, the court may make such order as to notice and publication as may be deemed proper. s. 41. Where there has only been service by publication, except DEFENDANTS. 528 AMERICA. Chapter XIV. in the case of divorce, the judgment may be opened and a defence '■ admitted within 5 years. ss: 42. 43. Notice in such case is to be given to the heirs : the defence is to be filed and an affidavit that there was no actual notice : dona fide purchasers of property are not to be affected, s. 391. Where there has only been constructive notice, the defendant may appear at any time before judgment; time will then be allowed him to prepare for trial. ss: 392. 393. The plaintiff is required to file an affidavit of the truth of his claim, and may also be required to swear in court, and to answer any interrogatories that may be put to him by the court. s. 394. Any set-off that may thus be disclosed is to be adjusted, s. 395. No personal judgment shall be rendered against a defendant constructively summoned who has not appeared in the action. s. 681. Actions may be brought against a foreign corporation by any person having a cause of action against it within the State where any property belonging to it or debts due to it may be found : If there is no person within the State authorised to transact its business the company may be summoned con- structively. (Act of 1858.) In real actions, the constructive summons is to be published for three weeks successively in a State newspaper in the following cases : — When they may be sued. i. Where the cause of action arises within the State and. the foreign corporation has property in the State : ii. Where a resident of the State is absent in order to avoid service : iii. Where the defendant is non-resident, and the cause of action arises out of a contract, or out of a duty imposed by law, or to enforce or discharge a lien, or to obtain a divorce. IOWA. Statute of Limita- Code. TION. s. 2529. (v. vi.) Actions on home or United States judgments are barred in 20 years, and on foreign judgments m 10 years. If foreign statute bars s. 21534. If a causc of action is fully barred in the country remedy, defence good. where the defendant has previously resided, such bar shall be the same defence in the State. IOWA. 529 s. 2618. Service may be made by publication when an affidavit Chapter XIV. is filed that personal service cannot be made on the defendant ~l ^ _ Service on absent within the State in the following cases : in actions, defendants. i. for the recovery of realty or any interest therein. i" what cases. ii. for the partition of realty. iii. for the sale of realty under mortgage lien or other incum- brance, iv. for specific performance of a contract for the sale of realty within the State ; or to establish or set aside a will, v. against non-residents or foreign companies having within the State property or debts owing to them sought to be appropriated in any way. vi. relating to realty within the State when the defendant has any claim upon it, and the relief claimed in the action is to exclude the defendant from it : This to apply to non-residents and foreign companies, vii. when the defendant is absent in order to defeat his creditors, viii. for divorce. s. 2619. The publication is to be made in a newspaper to be Publication. selected by the plaintiff. s. 2620. The defendant is held to have been personally served: Proof of publicat ion is to be by affidavit of the publisher or his foreman. ss: 2622 — 2625 relate to unknown defendants, ss: 2875 — 2881 relate to the defendant's appearance and to the plaintiff's proof. These sections are the same as in the Indiana Code, ss: 40 — 43; 391—395- [PP: 527- 528.] s. 3715. The same as New York Code of Civil Procedure. Proof of Foreign r - T Judgments. s. 952. [p. 522.] ss: 2351 — 2353. Foreign or United States probates are admitted Foreign probates. to probate fully on production of a copy of the will and the original record of the probate attested by the clerk of the court under seal. The new probate is to be conclusive as to the due execution thereof until set aside by an original or appellate proceeding. 2 M 530 AMERICA. Chapter XIV. If foreign statute bars remedy, defence good. Foreign companies. Service on absent defendants. Foreign probates. KANSAS. c. 80. Code of Ciuil Procedure. s. 2 2. If a cause of action is barred in the State in which it arose by reason of lapse of time, it is barred here between non- residents. s. 70 provides for service of writ on the managing agent of a foreign company. ss: 72 — 77. Constructive service : the same as in the Indiana Code [p. 528], except that actions for divorce are omitted. c. 117. ss: 25 — 27. Foreign probates are admitted fully in this State: On production of copy of will and original probate the court continues the motion to admit such will to probate for two months : The notice is published in the newspapers for three consecutive weeks, the first publication to be forty days before the final hearing. Statute of Limita- tion. If foreign statute bars action on judgment, defence good. If foreign statute bars remedy, defence good. KENTUCKY. Revised Statutes, c. 63. Actions on home or United States judgments are baired in 15 years; and on foreign judgments (presumably) in 10 years. s. 18. Action on a foreign judgment. If the action would be barred in the country where the judgment was pronounced, it is barred here, except in favour of residents in this State, who have had the cause of action from the time it accrued. s. 19. Action on a cause of action. If the action is barred in the country where the cause of action arose, it is barred here as between any parties. Code of Ciuil Procedure. ss: 86, 87 refer to service of writ upon persons out of Kentucky but in the United States. ss: 88 — 92. Service generally on absent defendants, the same as in the Indiana Code. [p. 527.] s. 148. In pleading a judgment the facts giving jurisdiction need not be stated. This section does not apply to foreign judgments : a general LOUISIANA — MAINE. 531 averment of jurisdiction in the foreign tribunal would not be Chapter XIV. sufficient. {Hollister v. Hollister. 10 How: N. Y. 539.) LOUISIANA. Code. s. 165. (b). When defendants are foreigners, or have no fixed or known place of residence in the State, they may be cited wherever they are found. s- 753- When judgments have been rendered in foreign coun- tries, the copies presented shall be considered authentic and admitted in evidence in the tribunals of the State, if they are clothed with all the forms required to prove their authenticity in the countries where they are pronounced. The Laws of Las Siete Partidas are still in force in the State. Part III. Tit: xxii. Law 15 declares that 'judges sometimes ' compel defendants to appear before them who are of another 'jurisdiction, where the former have no power to hear and deter- ' mine causes. We therefore say that every judgment rendered * in such cases is void.' A foreign judgment to be enforced in the State must be in accordance with the laws of the State ; and the defendant must have been personally cited. {Patterson v. Mayfield. 10 Louis: Rep: 220. Warren v. Hall, ib: 377.) Service on absent defendants. Proof of Foreign Judgments. Service on absent defendants. MAINE. Code. Actions on home or United States judgments are barred in 20 years, and on foreign judgments (presumably) in 6 years. c. 81. s. 17. If the defendant was never an inhabitant of the State, or has removed therefrom, service may be effected on his agent, tenant, or attorney. s. 18. If he has neither, the court may order such notice as justice requires, if such order is complied with and obedience to it is proved to the satisfaction of the court, the defendant is held to answer to the suit as in other cases. s. 22. In the case of insurance companies out of the State, the Foreign companies. agent may be served, or the writ may be left at his last and usual place of abode : or it may be served on the person, an inhabitant 532 AMERICA. Chapter XIV. of the State, who signed or countersigned the policy. In eitlier case, the court may direct further notice to the company. Service on absent defendants. Publication. Appeal. Foreign companies. Proof of Foreign Judgments. Foreign probates. MARYLAND. Code. Art: 1 6. ss: 88 — 98. Service against non-residents may be con- structive in suits respecting the sale, partition, conveyance or transfer of any real or personal property lying or being in the State ; or to foreclose any mortgage thereon, or to enforce any contract or lien relating to the same, or concerning any use, trust or other interest therein. The published notice is to contain the substance of the bill and the time appointed for appearance. In case of default the bill or petition may be taken pro confesso, or a commission to take testimony may be issued ex parte, and such decree passed as may be just and equitable. A bill for review may be filed in 12 months: if against an infant, 12 months after he comes of age, or by his representatives 12 months after his death. Foreign companies with no agent in the State may be served constructively. The order is to be published once a week for four weeks, or may be served personally three months before the trial. Art: 75. ss: 99. 100 provide for service on the agent of foreign companies. Art: 37. s. 35. An exemplification of the record under the hand of the keeper of the same, and the seal of the court or office where such record may be made, is good and sufficient evidence in any court of the State, to prove any debt of record, made or entered in any other of the United States, or in any foreign country. Further, no sentence, judgment or decree, final or interlocutory of any judge, court, board, council or tribunal, having or exercising muni- cipal, admiralty or prize jurisdiction without the limits of the United States and its territories, shall be conclusive evidence in any case or controversy in the courts of this State, of any fact, matter or thing therein contained, stated or expressed, except of the acts or doings of such foreign judge, court, board, council or tribunal : — Provided, that nothing herein contained shall impair or destroy the legal effects of any such foreign sentence, judgment or decree on the property affected or intended to be affected thereby. Art: 93. s. 324. A copy of the record of any will according to MASSACHUSETTS— MISSISSIPPI. 533 the laws of the State, under the hand of the keeper of the record Chapter XIV. and the seal of the court shall be good evidence to prove the will. ' MASSACHUSETTS. LOiilS 126 Service on absent Z^'-'. DEFENDANTS. s. I. No personal action may be commenced against a person inwhatcas^ out of the State at the time of service of the summons unless before such absence he had been an inhabitant of the State, or unless an effectual attachment of his goods, estate or effects is made on the original writ. s. 6. If personal service cannot be made, the court may order the action to be continued from time to time until notice of the suit is given in such manner as the court may direct. s. 8. The plaintiff is required to give a bond before execution is issued, to repay the amount if the judgment is reversed within one year. MICHIGAN. Actions on home or United States judgments are barred in lo years, and on foreign judgments in 6 years. MINNESOTA. Laws. c. 66. Actions on home or United States judgments are barred in I o years, and on foreign judgments (presumably) in 6 years. ss: 49 — 51. The procedure as to constructive notice on non- Service on absent resident defendants is the same as in the Indiana Code [p. 528] : the judgment thereon may be opened within one year. MISSISSIPPI. Laws. c. 43. ss: 96. III. Actions on home, United States and foreign judg- ments are barred in 20 years. c. 46. s. 23. Foreign judgments given between persons residing in Proof of Foreign any foreign kingdom, if certified by the court, or mayor or chief magistrate in the manner such acts are usually authenticated by them ; and all foreign judgments as have been given and enregis- tered in due form according to the laws of such foreign kingdom, DEFENDANTS. Judgments. 534 AMERICA. Chapter XIV. and attested by a notary public, with a testimonial from the proper officer of the city where he resides, or the Great Seal of the king- dom, shall be evidence in all the courts of record within this State, as if the same had been proved in the said courts. MISSOURI. Laws. c. 164. Service ON ABSENT ss: I ^ — 17. The procedure as to constructive notice or non- DEFENDANTS. . — resident defendants is the same as in the Indiana Code. [p. 528.] Statute of Limita- tion. If foreign statute bars remedy, defence good. Service on absent defendants. Proof of Foreign Judgments. NEVADA. Laws. c. 49. s. 5. Actions on home or United States judgments are barred in 5 years. s. 8. Actions on foreign judgments or foreign contracts are barred in 2 years. A right of action shall be deemed to have accrued on a judg- ment at the time of its rendition. s. 9. If a cause of action is barred in the country of its origin by reason of lapse of time, it is barred here. c. 88. Constructive notice on non-residents and on foreign companies is allowed when it shall appear that a cause of action exists against the defendant. c. 108. ss: 395- 399- The same as New York Code of Civil Procedure, ss: 952. 953. [pp: 522. 523.] Service on absent defendants. NEW HAMPSHIRE. Laws. c. 207. SS: 3. 4. The court may order an action to be continued where there has been no personal service on the defendant, and may give directions as to notice of pendency being published, or being sent by mail ; and on satisfactory evidence that such order has been complied with, such notice shall be deemed sufficient. s. 9. Where the defendant is non-resident and has no property within the State, the action may be entered in court and such notice ordered as the case requires. NEW JERSEY — NORTH CAROLINA — OHIO — OREGON. 535 Chapter XIV. NEW JERSEY. Laws. Title xxii. c. 3. ss: 3. 4. The copies of any last will or testament made in Great Copies of wills of U.K. -r>-' 1T11 • r ^ -r^ • • 1 ^ • -i ^"^ Colonies good -critain and Ireland, or in any of the British colonies, by which evidence. any lands, tenements, hereditaments, or other estate within this province, are devised or bequeathed, certified under the seal of the office where such will or testament is proved and lodged, may be given, and shall be received in evidence before any of the courts of judicature within this province, and be esteemed as valid and sufficient as if the original will or testament were then and there produced and proved. NORTH CAROLINA. Actions on home or United States judgments are barred in 10 years and on foreign judgments (presumably) in 3 years. The procedure as to constructive notice on non-resident defen- Service on absent _ -^ . . DEFENDANTS. dants is the same as in the Indiana Code. [p. 528.] — OHIO. Code of Civil Procedure. ss: 70. 7q. The procedure as to constructive notice on non- Service on absent resident defendants is the same as in the Indiana Code. [p. 528.] DEFENDANTS. The affidavit filed is to be sworn on positive information : and the published statement of the object of the suit and other par- ticulars is to be very precise. Code of Civil Procedure before Justices of the Peace. s. 1 7 provides for service on managing agent of foreign com- Foreign companies, panies. ' Managing ' is to be construed strictly ; if there is no managing agent the company is not liable to any proceedings m personam. Barney v. New Albion R. R. Co: (i Handy. 571). OREGON. Stat: 2 March 1849. Actions on home or United States judgments are barred in 10 years, and on foreign judgments (presumably) in 6 years. 536 AMERICA. Chapter XIV. Service on absent defendants. Proof of certain foreign documents. Ciuil Code. ss: 55 — 57. The procedure as to constructive notice on non- resident defendants is the same as in the Indiana Code. [p. 528.] s. 4. That it may and shall be lawful for the keepers or persons having the custody of laws, judgments, orders, decrees, journals, correspondence or other public documents of any foreign Govern- ment or its agents, relating to the title to lands claimed by or under the United States, on the application of the head of one of the departments, the solicitor of the treasury, or the commissioner of the general land office, to authenticate the same under his hand and seal, and certify the same to be correct and true copies : and when the same shall be certified by an American minister or consul under his hand and seal of office, or by a judge of one of the United States courts under his hand and seal, to be true copies of the originals, the same shall be sealed up by him and returned to the solicitor of the treasury, who shall file the same in his office, and cause it to be recorded in a book kept for that purpose. Such copy may be read in evidence in all courts, where the title to land claimed by or under the United States may come into question, equally wnth the originals thereof Miscellaneous Laws. c. 64. s. 17. Any person not an inhabitant, but owning property, real or personal, in this State may devise or bequeath such property by last will, executed and proved (if real estate be devised) accord- Law of the place when to ing to the laws of this State, or (if personal estate be bequeathed) govern, and when not. - , . „ ^ , r,, accordmg to the laws of this State, or of the country, State or territory in which the will shall be proved. s. 18. Copies of such wills, and the probate thereof, shall be recorded in the same manner as wills executed and proven in this State, and shall be admitted in evidence in the same manner and with like effect. s. 19. Any such will may be contested and annulled within the same time, and in the same manner, as wills executed and proven in this State. Effect of foreign wills and probates. Copies of foreign wills, record of. Foreign will, how contested. Service on absent defendants. PENNSYLVANIA. Digest, p. 598. In actions relating to realty, or when the court has acquired jurisdiction of the subject matter in controversy by the service of its process on one or more of the principal defendants, the court RHODE ISLAND— SOUTH CAROLINA — TENNESSEE. 537 may order service out of the jurisdiction on the defendants Chapter XIV. wherever they may be found : — Provided, that it shall appear by affidavit before the order is Affidavit. made, in what place the defendant resides or may probably be found, or if it be out of the United States, whether there are any officers of the United States residing thereat or near thereto, and by what means such service may be authenticated. The time is to be limited, dependent on the place where process Time for appearance. is to be served, within which compliance with the requirements thereof must be made by the defendant. A copy of the order is to be served, and also a copy of the bill or a statement of the substance of the proceeding, and the special order for authenticating the service. If the defendant is not to be Publication. found, publication of the notice with full particulars is allowed. RHODE ISLAND. Statutes. 0. 196. s. 4. A writ of summons issued against an insurance company Service on foreign 1-11111 insurance company. mcorporated m any other State or country, which shall have an agency in this State, shall be served by leaving an attested copy of such writ with such agent, or at his last and usual place of abode. SOUTH CAROLINA. Code of Ciuil Procedure. s. is8. The cause of action arising within the State, the pro- Service on absent ^ o _ DEFENDANTS. cedure as to constructive notice on non-resident defendants is the — - same as in the Indiana Code. [p. 528.] TENNESSEE. Code. s. 2783. Where the Statute of Limitations of another State or Statute of Limita- Government has created a bar to an action upon a cause accruing — ' therein, whilst the party to be charged was a resident in such rem°dy?defenceVod. State or under such Government, the bar is equally effectual in this State. s. 2776. Actions on home, United States or foreign judgments are barred in 10 years. s. 2834. When a corporation, company or individual has an Service on foreign com- office or agency in any country other than that in which the prin- 538 AMERICA. Chapter XIV. Proof of Foreign Judgments. cipal resides, the service of process may be made on any agent or clerk employed therein, in all actions growing out of or connected with the business of the office or agency. s- 3797- The same as New York Code of Civil Procedure, s. 952. [p. 522.] Proof of Foreign Judgments. Charges. Effect of Foreign Judgments. Original defences allowed. TEXAS. Code. ss: 3957- 3958- Foreign judgments are required to be under the certificates of the judge and clerk of the court, the chief of the Executive Government of the country, and the Consul of the Republic : and no suit shall be brought on a foreign judgment till an authenticated copy is filed, and all costs likely to accrue are paid, together with a tax fee of K25 cash, payable to the clerk of the court ' for the use of this Republic' s. 3959. Foreign judgments when authenticated ^xq prima facie evidence only and open to all defences that might have been used at any time before judgment. This does not apply to judgments of the United States. [In Paschall's edition of the Code it is stated that these sections are not pursued in practice, but the Editor's own idea is that they still remain in force.] VERMONT. Actions on home or United States judgments are barred in 8 years, and on foreign judgments (presumably) in 6 years. If foreign statute bars remedy, defence good. Absent defendants. VIRGINIA. Laws. c. 149. s. 17. An action on a foreign judgment is barred if it is barred by its own laws and the judgment incapable of being otherwise enforced there, and whether or not so barred, no actions on the judgment shall be brought after 10 years against a person who shall have resided in the State during the ten years next preceding such action. C. 171. s. 7. If the officer return the defendant as non-resident, the suit shall abate if the court have jurisdiction of the case only on the ground of the defendant's residence in the State. VIRGINIA — WISCONSIN. 539 ss: lo. 13. Publication is made in the same manner as in Chapter XIV. Indiana, [see p. 528]. The judgment may be reopened within 5 publication of service, years if no copy of the judgment was served, and in one year if a copy was served. c. 176. s. 17. A foreign judgment is evidence in any court in the State when it has been attested by a notary public under the seal of his office that the judgment was made in due form according to the law of the place, and that the copy is true. The notary public himself is to be certified by the chief magistrate, or under the Great Seal of the country. Proof of Foreign Judgments. WISCONSIN. Actions on home judgments are barred in 20 years, on United States judgments in 10 years, and on foreign judgments (pre- smuably) in 10 years. The procedure as to constructive notice on non-resident de- fendants is the same as in the Indiana Code. [p. 528.] Service on absent defendants. 540 CHAPTER XV. Chapter XV. THE LAWS OF THE REPUBLICS OP SOUTH AMERICA. ARGENTINE CONFEDERATION 541 Rio de la Plata Provinces East Patagonia BOLIVIA 542 BRAZIL 543 CHILI 547 COLOMBIA, UNITED STATES Antioquia Bolivar BOYACA Cauca CUNDINA MARCA Magdalena Panama Santander TOLIMA COSTA RICA ECUADOR GUATEMALA HONDURAS MEXICO 547 Lower California NICARAGUA PARAGUAY It has been found impossible to obtain copies of the Codes of many of the South American Republics. ARGENTINE CONFEDERATION. 54 1 PERU "s^ Chapter XV. URUGUAY 548 VENEZUELA 548 ARGENTINE CONFEDERATION. [m. ASSER, R.D.I, 1873. [including the Provinces of the KIO DE LA PLATA and EAST PATAGONIA,] p- 591] Ciuil Code. 1871. Preliminary Title, i. Capacity or incapacity of persons, denizens or aliens, domiciled domtdieVwuhin""^ in the Republic is decided according to this code, even if it ^^p^^Iic. concern deeds executed or goods situate in a foreign country : if domiciled out of the Republic, according to the law of their domicil, even if it concern deeds executed or goods situate in the Republic. Documents signed, contracts entered into and rights acquired Foreign contracts in a foreign country are governed by the rules of that country : — but they cannot receive effect as regards immoveables in the relating to immoveables Republic if they are not conformable to the laws of the country as '" ' "" ^^" to personal capacity. Parties interested are to prove the existence of foreign laws. Foreign laws are not applicable when they are antagonistic to Effect of foreign laws. the public or criminal law of the Republic, to the religion of the State, to the toleration of worship or to good manners : — when their application is contrary to the spirit of the Code : when they sanction first charges {des privileges): or when the provisions of this Code are more favourable to the validity of the documents than the foreign laws. Title /. s. 2. The validity of a marriage (not incestuous nor polygamous) Validity of foreign is governed by the law of the place where it was celebrated, even '"^''"^^^' if the parties went abroad in order to evade their own laws. [Divorce does not exist in the RepubUc] s. 3. Contracts entered into abroad are governed by the lex loci Foreign contracts. contractus, unless contrary to the rights and interests of the Republic and its inhabitants. Contracts entered into abroad to violate the laws of the Republic, or those entered into in the Republic to violate the laws of another State, are invalid. Chapter XV. 542 AMERICA. Contracts entered into in the Republic to be executed elsewhere are governed by the laws and customs of the place of execution. Contracts entered into abroad to transfer real rights over immove- ables situate in the Republic, have the same force as those entered into in this country, provided they have been made by deed authenticated and duly legalised. Contracts entered into between absent parties shall be inter- preted on behalf of either of the parties to it according to the law of his domicil. Election of domicil in agreement. Title VI. s. 13. Persons in entering into agreements may elect a special domicil for the fulfilment of the same. s. 14. The election of a domicil carries with it the extension of the jurisdiction, which would not otherwise extend to the judges of the place of residence of the parties. BOLIVIA. Civil Code. 1830. s. 7. Foreigners in Bolivia shall enjoy the same civil rights as those which are or may be granted to Bolivians by treaties, or which may arise therefrom. Judicial hypothec. s. 1458. The saiiic as Codc Napoleon, s. 2123. [p. 449]. Treaty. There is a treaty with Peru, 5 November 1863, for the mutual enforcement of the judgments of the two Republics. s. 4. Both contracting parties being desirous of drawing the civil relations of their respective citizens closer, and of establishing between them an intimate union for the common good, declare that the decisions in civil matters issued by the tribunals and courts of the one shall be fulfilled by those of the other, and consequently that the final sentences in civil matters having the force of res judicata, delivered by the Peruvian tribunals shall be executed in Bolivia, and reciprocally those of Bolivia in Peru, provided that the said decisions or sentences be not in opposition, either in regard to matters or persons, to the constitutions or the laws of the country that has to execute them, and that they be duly legalised. The execution can be effected at the request of the parties, or in virtue of rogatory commissions from the respective authorities. s. 9. The subjects of the two countries respectively are to have a free and easy access to the courts of justice, and to enjoy the same rights and ad- vantages accorded to subjects. [This has been held to include an exemption from finding security for costs.] BRAZIL. 543 BRAZIL. ci..^ierXY, Law. 27 July, 1878. \Remla a excaicao das scntencas civeis on cominerciacs, dos tri- 1"^- ';■ ^- '^75. pp: 736- , '-, ' 747-] bunaes estrangciros.\ s. I. Foreign juds;ments in civil or commercial matters shall be Effect of Foreign ... . Judgments. capable of execution in Brazil only when they fulfil the following — conditions : — a. That the nation to which the judges or tribunals belong who reciprocity. have pronounced the judgment admits the principle of reciprocity [repealed, see below, p. 546]. b. That such judgments come before the courts clothed with proof. the extrinsic formalities necessary to render them executory ac- cording to the law of the foreign State. c. That they have the force oi 7-es judicata. d. That they have been duly legalised by the Brazilian consul. e. That they are accompanied by a translation made by a sworn interpreter. s. 2, Notwithstanding the fulfilment of the above conditions, general exceptions. such judgments shall not be executed if they contain any principle contrary to, a. The sovereignty of the nation, as for example if they have withdrawn a Brazilian subject from the jurisdiction of the tribunals of the Empire. b. Laws which are rigorously obligatory being founded on reasons of public order, such as rules which forbid the institution of the Church {Tame) or religious bodies as heirs. c. Laws which affect real property such as those which forbid the creation of entails {^majorats) or perpetuities. d. The moral law ; for example if the foreign judgment has authorised polygamy or customs contrary to public morality. s. 3. Those Brazilian judges are competent to allow execution Procedure, who would be so competent had the judgment been pronounced by judges or tribunals of the Empire. s. 4. The judge to whom the judgment is presented for the purpose of obtaining execution shall see whether it fulfils the con- ditions of s. I, or whether not being contrary to the provisions of s. 2 it is capable of execution. a. If he finds the judgment is capable of execution he will endorse it with the necessary order {cumpra se). b. Against an order refusing the exequatur an appeal is allowed {aggravo de petifao an de instruinentd). 544 AMERICA. Chapter XV. Defences. Suit on same cause of action. Judgments in partition suits. of status. Force of judgment with- out exequatur. Awards. s. 5. If doubts arise as to the existence of principles of recipro- city, the judge shall ask the government through the medium of the Minister of Justice for instructions upon this point. s. 6. The procedure as to execution, and its different processes and incidents, is to be regulated by the laws, customs, and practice in force in the Empire relating to the execution of Brazilian judgments of a similar nature. s. 7. But the interpretation of the judgment and its immediate effects shall be determined by the law of the country where the judgment was given. s. 8. During the six days following the distraint {saisk) in personal actions, or during the ten days allowed to redeem the res in real actions, the party against whom execution has issued may plead exceptions {emhargos) to the judgment, i. Founded on ss : i & 2. ii. Of nullity \de mdiidade] : {that the judgment is null and void). iii. Offensive \tnfringentes, i.e. against the authority of the res judicata^. a. If the exceptions so pleaded are sustained, the judge in setting forth the reason in fact and in law, shall simply state that the judgment is not executory. b. From the order by which the judgment is declared not executory, an appeal is allowed, which shall have the usual two- fold effect {dcvohitif et suspensif). s. 9. When the judgment has been declared not executory, all the papers, pleadings, documents and other proofs which have been made use of to establish it may be produced in actions initiated in the Empire for the same object, and shall be received according to their legal value. s. 10. Foreign judgments in partition suits must be invested with the exequatur [s. 4] before they can be received adminis- tratively as carrying legal effect. s. II. Judgments which are simply declaratory, such as those which decide questions of status must also be invested with the exequatur. s. 12. Although a foreign judgment may not have been invested with the exequatur, yet it shall always have the force of res judicata before the tribunals of the Empire, if it fulfil the conditions of s. I and do not involve any principle contrary to the provisions of s. 2. s. 13. Subject to the provisions of this decree, awards confirmed by foreign tribunals shall also be executory in Brazil. BRAZIL. 545 s. 14. And similarly foreign adjudications in bankruptcy against Chapter XV. traders having their domicil in the country where these judgments Adjudications in bank- have been pronounced. ruptcy. s. 15. The above judgments, after having received the exeqiiahir from the Brazilian judges [ss: i and 2] and after the publication of this exequatur, shall produce in the Empire the legal effects inherent to adjudications in bankruptcy subject to the restrictions set out in ss: 17-20. s. 16. Independently of the exequatur, and simply on production Power of trustees when ^ •' ^ . . exequatur not needed. of the judgment and of the deed nommatmg them m a properly authenticated form, the syndics, administrators, or trustees shall have the power in virtue of their office to institute {provoquer) in the Empire as mandatories, measures for the preservation of the rights of the creditors (droits de la masse), to recover debts, to compromise {transiger) claims if they have power to do so, and to initiate actions. But all actions which may directly necessitate the execution of When ^jr^^?/a/z o 00 _ _ m actions on Act in the country in which such action is brought, the party bringing judgments such action shall not recover or be entitled to any costs or expenses of ordero/ suit unless the court in which such action shall be brought, or some '^°""- judge of the same court, shall otherwise order. 7. It shall be lawful for the judges of the Courts of Queen's Bench, judges to Common Pleas, and Exchequer at Westminster and Dublin respec- l"^"^*^ ^'^^ • I r 1 • 1 /- 1 , • ,- lur execution tively, or any eight or more of them respectively, of whom the chiefs of this Act. of the said courts respectively shall be three, and they are hereby re- quired, from time to time to make all such general rules and orders to 556 APPENDIX. 31 & 32 V. regulate the practice to be observed in the execution of this Act, or in *l£l; any matter relating thereto, including the scale of fees to be charged in the courts of common law in England and Ireland respectively, as they may deem to be necessary and proper ; and it shall be lawful for the Court of Session in Scotland, and the said court is hereby required, from time to time to make such acts of sederunt to regulate the practice to be observed in the execution of the Act, or in any matter relating thereto, including the scale of fees to be charged in Scotland, as such court may deem to be necessary and proper : provided always, that such rules, orders, and acts of sederunt respectively shall be laid before both Houses of Parliament within one month from the making thereof if Parliament be then sitting, or if Parliament be not then sitting, within one month from the commencement of the then next session of Parliament. Acts not to 8. This Act shall not apply to any decreet pronounced in absence in certa^in° ^^ action proceeding on an arrestment used to found jurisdiction in decreets. Scotland. Short title. 9. In citing this Act in any instrument, document, or proceeding it shall be sufficient to use the expression ' The Judgments Extension 'Act, 1868.' SCHEDULE. Certificate issued in terms of ' The Judgments Extension Act, 1868.* Form I. — Where Party applying is Plaintiff or Pursuer, I, , certify that [here state name, title, trade, or profession, and usual or last known place of abode of Plaintiff or Pursuer\ on the day of 18 , obtained judgment against {here state name and title, trade or profession, and jtsual or last knozu7i place of abode of Defendant'^ before the court of for payment of the sum of on account of [state shortly nature of claim or ground of action, with the sum of costs, if any, and in case of a judgment obtained in an action state whether it was obtained after appearance made by the defendant or after service {personal or otherwise) of the action on the defendant, as the case may bc\ [Signed by the proper officer of the cotirt from which the certificate issues. ^ Form II. — Where Party applying is Defendant or Defender. I, , certify that [here state name, title, trade, or profession, and usual or last known place of abode of Defenda7it or Defender^ on the day of 18 , obtained judgment against [state name, title, trade, or profession, and usual or last known place of abode of Plai^itiff or Pursuer^ before the court of for judgment of the sum of £ as costs of suit. [Signed by the proper officer of the court from which the certificate issues. ] Minute of Presentation to be appended to either Form. Presented for registration in terms of 'The Judgments Extension Act, « 1868.' [Signature of (attorney, laio agent, or creditor) presenting for registration.^ APPENDIX. 557 THE INFERIOR COURTS JUDGMENTS EXTENSION ACT, 1882. 45 & 46 Victoria, Chapter 31. An Act to render Judgments obtained in certain Inferior Courts in England, Scotland, and Ireland respectively, effectual in any other part of the United Kingdom. [24th July, 1882.] Whereas it is expedient to extend the principle of the 'Judgments [31 & 32 Vic: 'Extension Act, 1868,' to the judgments of certain inferior courts of '^^ ^'*"'' Great Britain and Ireland : Be it therefore enacted as follows : 1. This Act may be cited for all purposes as the 'Inferior Courts short title. 'Judgments Extension Act, 1882.' 2. In this Act the following words and expressions shall have the interpreta- interpretations and meanings in this section assigned to them re- "onof^^ms. spectively, unless there be something in the subject or context repug- nant to such construction ; (that is to say,) The expression 'judgment' shall include decreet, civil bill decree, dismiss, or order : The expression ' inferior courts ' shall include County Courts, Civil Bill Courts, and all Courts in England and Ireland having jurisdic- tion to hear and determine civil causes, other than the High Courts of Justice; and in Ireland, Courts of Petty Sessions and the Court of Bankruptcy; and in Scotland shall include the Sheriffs' Courts and the Courts held under the Small Debts and Debts Recovery Acts : The expression ' registrar of an inferior court ' shall include the sheriff clerk of a Sheriff's Court in Scotland, and any officer fulfilling the duties of a registrar in an inferior court in England ; and in Ireland shall include the clerk of the peace or other officer whose duty it is to enter the judgment, decree, or order of the court : 'Prescribed' means prescribed by rules made under the provisions of this Act : The expression ' person ' shall include any party or parties to a cause in any inferior court in England, Scotland, or Ireland : The expression ' plaintiff' shall include pursuer, complainer, or any person at whose instance any action or proceeding in an inferior court is instituted ; and the expression ' defendant ' shall include defender, respondent, or other person against whom any such action or proceeding is directed : The expression ' action ' shall mean the action or other proceeding in which any judgment was pronounced ; and the expression ' summons ' shall mean the summons or other initial writ in such action. „ . , . . Registrar of 3. Where judgment shall hereafter be obtained or entered up m inferior any of the inferior courts of England, Scotland, or Ireland respectively g°",^t certifi- for any debt, damages, or costs, the registrar of such inferior court or ca'e of ^ ' 07 ; o judgment. 558 APPENDIX. 45 & 46 V. Other proper officer shall, after the time for appealing against such "Lfl' judgment shall have elapsed, and in the event of such judgment not being reversed upon appeal or of execution thereunder not being stayed, upon the application of the party who has recovered such judgment, and upon proof that the same has not been satisfied, and rf ?lrdficat"e payment of the prescribed fee, grant a certificate in the form in the shall have schedule to this Act annexed. judgment°of 4- On the production to the registrar or other proper officer of a whichlfis'^ county court, or, in the City of London, of the City of London Court registered, in England where a judgment has been obtained in Scotland or Ire- land, or to the registrar or other proper officer of a Sheriffs Court in Scotland where a judgment has been obtained in England or Ireland, or to the registrar or other proper officer of a Civil Bill Court in Ire- land where a judgment has been obtained in England or Scotland of a certificate under this Act purporting to be signed by the registrar or other proper officer of the inferior court where such judgment was obtained, such certificate shall, on payment of the prescribed fee, be registered in the prescribed form by such registrar or other proper officer to whom the same shall be produced for that purpose ; and all reasonable costs and charges attendant upon the obtaining and registering such certificate shall be added to and recovered in like manner as if the same were part of the original judgment. No certificate of any such judgment shall be registered as aforesaid in any inferior court in the United Kingdom more than twelve months after the date of such judgment. Execution of 5. Where a certificate of a judgment of any of the inferior courts judgments, ^foresaid has been registered under this Act, process of execution may issue thereon out of the Court in which the same shall have been so registered against any goods or chattels of the person against whom such judgment shall have been obtained, which are within the juris- diction of such last-mentioned Court, in the same or the like manner as if the judgment to be executed had been obtained in the Court in which such certificate shall be so registered as aforesaid. Jurisdiction 6- The courts of Great Britain and Ireland to which this Act applies te^redTifdg- shall, in SO far as relates to execution under this Act, have and ments exercise the same control and jurisdiction over and with respect to the execution, execution of any judgment, a certificate of which shall be registered under this Act, as they now have and exercise over and with respect to the execution of any judgment in their own courts. Cancellation 7. On proof of the setting aside, or satisfaction, of any judgment of of registry, ^vhich a certificate shall have been registered under this Act, the Court in which such certificate is so registered may order the regis- tration thereof to be cancelled. Costs not to 8. In any action brought in any of the inferior courts aforesaid for be allowed j}^g purpose of enforcing any judgment which might be registered judgments under this Act in the country in which such action is brought, the ordef of^ party bringing such action shall not recover or be entitled to any costs court. or expenses, unless the Court in which such action shall be brought shall otherwise order. APPENDIX. 559 9. Nothing contained in this Act shall authorise the registration in 45 & 46 V. an inferior court of the certificate of any judgment for a greater ' ^' ^'" amount than might have been recovered if the action or proceeding „ . . ° . Existing had been originally commenced m such mferior court. limits of Provided that where a judgment obtained in an inferior court in dicUoiTshaii Scotland cannot be registered in an inferior court in England or not be Ireland, by reason of its being for a greater amount than might have been recovered if the action or proceeding had been originally commenced in such inferior court, it shall be competent to register a certificate of such judgment in the register directed to be kept in the Courts of Common Pleas at Westminster and Dublin respectively, to be called 'The Register of Scotch Judgments,' by section three of the Judgments Extension Act, 1868, in the same manner, to the same effect, and subject to the same provisions, as if the said certificate had been a certificate of an extracted decreet of the Court of Session, registered in the said register under the said Act. 10. This Act shall not apply to any judgment pronounced by any Act not to inferior court in England against any person domiciled in Scotland or f^^ g^es'!^'^' Ireland at the time of the commencement of any action, unless the whole cause of action shall have arisen, or the obligation to which the judgment relates ought to have been fulfilled, within the district of such inferior court, and the summons was served upon the defendant personally within the said district, nor to any judgment pronounced by any inferior court in Scotland against any person domiciled in England or Ireland at the time of the commencement of any action, unless the whole cause of action shall have arisen, or the obligation to which the judgment relates ought to have been fulfilled, within the district of such inferior court, and the summons was served upon the defendant personally within the said district, nor to any judgment pronounced by any inferior court in Ireland against any person domiciled in England or Scotland at the time of the commencement of any action, unless the whole cause of action shall have arisen, or the obligation to which the judgment relates ought to have been fulfilled, within the district of such inferior court, and the summons was served upon the defendant personally within the said district. Provided that it shall be competent to any person against whom any judgment to which this Act does not apply, as aforesaid, is sought to be enforced by registration in the register of an inferior court in England or Ireland, to apply for and obtain from one of the superior courts of England or Ireland, a prohibition or injunction against the enforcement of such judgment, and of any execution thereupon : and that it shall be competent to any person against whom any judgment to which this Act does not apply, as aforesaid, is sought to be enforced by registration in the register of an inferior court in Scotland, to apply for and obtain from the Bill Chamber or Court of Session in Scotland suspension or suspension and interdict of or against the enforcement of such judgment and any diligence thereon, and in any such pro- ceeding as aforesaid the unsuccessful party may be found liable in costs. 56o APPENDIX. 45 & 45 V. c. 31. Rules. 11. Rules for the purpose of this Act may be made and altered from time to time by the like persons and in the like manner in which rules and regulations may be respectively made under and for the purposes of the County Courts Acts in England ; of the Sheriffs' Courts Acts in Scotland, and of the Civil Bill Courts Acts in Ireland ; provided that the said rules and regulations shall not extend the jurisdiction of any inferior court. SCHEDULE. Certificate issued in terms of the ' Inferior Courts Judgments Extension Act, 1882.' I, , certify that {he}'e state name, business, or occupation, and address of person obtaining jiidgDient, and ivhether Plaintiff or Defendant'\ on the day of 18 , obtained judgment against \liere state name, business, or occupation and address of person against whom judgment zuas obtained, and whether Plaintiff or Defendanf] in the Court of for payment of the sum of on account of [^liere state shortly the nature of the claitn with the amount of costs [if any) for which judgment was obtaineii]. [ To be signed by the Registrar or other proper Officer of the Inferior Cotirt from tvhich the certifi- cate issues, and to be sealed with the Seal of the Court. '\ Note of Presentation to be appended to above Form. The above certificate is presented by me for registration in the Court of , in accordance with the provisions of the 'Inferior Courts Judgments Extension Act, 1882.' [Signature and address of Solicitor, Law Agent, or Creditor presenting for Registration.'^ Preamble. Interpreta- tion. The Foreign Probate Act, 1879, of Western Australia, No. 5 of 1879. An Act to give effect in Western Australia to Probates and Letters of Administration granted in any other part of Her Majesty's Dominions. [Assented to, 8th August, 1879.] Where-'VS it is expedient to give to probates and letters of adminis- tration granted in any other part of Her Majesty's Dominions the like force and effect as if originally granted in Western Australia, upon the same being resealed : Be it therefore enacted as follows : — 1. In the construction and for the purpose of this Act, and of all proceedings thereunder, the following terms shall have the respective meanings hereafter assigned to them, except where there is something in the context repugnant to such construction, that is to say — APPENDIX. 561 ' Probate ' shall include ' Exemplification of Probate.' Probate. ' Letters of Administration ' shall include ' Exemplification of Letters of Administration.' Letters of 2. From and after the period at which this Act shall come into tiVn.'"'^ '^^' operation, when any probate or letters of administration granted by a Probates and court of competent jurisdiction in any part of Her Majesty's Dominions tions granted shall be produced to, and a copy thereof deposited with, the Registrar to'^beonlke of the Supreme Court of Western Australia, such probate or letter of f^^ce as if administration shall be sealed with the seal of the last mentioned Western Court, and shall have the like force and effect, and have the same 4big re^ °" operation in Western Australia ; and every executor or administrator sealed. thereunder shall have the same power and authority, rights and privileges, and perform the same duties, and be subject to the same liabilities, as if such probate or letters of administration had been originally granted by the Supreme Court of Western Australia. 3. The Seal of the Supreme Court of Western Australia shall not be c 1 .. t^ ... . Sis^l not to affi.xed to any probate or letters of administration granted in any other be affixed till part of Her Majesty's Dominions so as to give operation thereto as if the " ^ '^ ^^' ' grant had been made by the Supreme Court of Western Australia, until all such probate, stamp and other duties (if any) have been paid as would have been payable if such probate or letters of administration had been originally granted by the Supreme Court of Western Australia ; , and further, such letters of administration shall not be so sealed until administra- a bond has been entered into by such executor or administrator, or his bond'L' attorney or agent, with or without one or more sureties, as the Supreme entered into. Court may in each case direct, conditioned for the due administration of the estate of the testator or intestate (as the case may be). 4. This Act shall come into operation and take effect on such day as ^ . Commence- may be appointed by the Governor in Council. ment of Act. 5. This Act may be cited as ' The Foreign Probate Act.' g^^^^^ ji(,g In the name and on behalf of the Queen I hereby assent to this Act. H. St. George Ord, Governor. 2 O INDEX Each division is divided into hvo parts, the first being the orditiary index, the second the geographical index. Absence of Defendant \see Defendant], consequence of, as to right to serve, 131 definition of absence, 164 intentional, 166 at commencement of suit, 166 during continuance of suit, 166 unintentional, 166 Account, action for of profits of land abroad, 143 Acquittals, 265 considered theoretically, 265 Act of Bankruptcy, judgment by default under Order XI, not, 227 Act of State, proof of foreign, 94 Acte Formel et Respectnetix, required by French law, consequence of non-performance of, 273 Actio in Rem, meaning of, in Roman Law, 245 effect of foreign judgments resembling, 250 Action, on home judgments, discouraged, 184 on judgments of U. K. superseded, 359, 363 stayed or dismissed till the security ordered is given, 187 Action ?'« Personam, concurrent with action in rem, 75, 87 Action /« Rem, principles with regard to concurrent suits, 74 concurrent with action in personam, 75, 87 is an alternative remedy in many cases, 87 rules as to security for costs, 191 meaning of term, as in real actions, 245 ,, ,, as in admiralty actions, 246 564 INDEX. Actor Seqttitiir Foniin Kci, 132 assumed jurisdiction an express variance from, 133, 157 in Scotland, 240 Adjudication in Bankruptcy [see Bankruptcy] Foreign, effect of in England, 325 English, ,, ,, abroad, 331 Administration {see Prodate], effect of in U. K., 366 actions, concurrent, 70 suit pending proceedings, 76, 81 protection as to costs, 81 service in action out of jurisdiction, 136 of assets governed by lex fori, 314, 321, 336 decree maybe made by any country in which the will has been proved, 323 Administrator, appointment governed by lex fori, 208 Admiralty Action in Rem, its origin, 246 is an alternative remedy, 246 consequence of judgment, 246 is conclusive against all the world, 246 how judgment differs from true judgment in rem, 247 ,, ,, judgment /« /^rj-f^z/rtw, 247 service of summons in English, 265 Admiralty Courts, powers of, in war, 253 Admiralty Decisions, in matters of prize, 252, 253 not in ,, ,, 249, 250 Affidavit, proof of foreign, 94 judgment on false, iii, 112, 170 [see Fraud] required by Order XIV, 183 for security, to state absence of knowledge if made after pleading, 195 to shew stage of proceedings, 195 residence abroad to be sworn to positively, 195 on application for leave to issue and serve writ out of jurisdiction, 218 ,, ,, as to residence in Scotland and Ireland, 221 contents of, 222, 223 heading of, 224, 235 of service, 227 Agent [see Defendant. Company]. Alien, temporarily resident, subject to jurisdiction, 63, 130 owners of property, 63, 137 non-resident, right to sue, 63 enemy, compulsory absence of, 172 effect of judgment against, by courts of his own country, 131 allegiance to foreign state, generally denied, 129 but under certain circumstances he is subject, 130 suits between, will be entertained, 131, 142 except as to realty abroad, 131, 139 INDEX. 565 Ali en — contimied. service on, under C. L. P. Act, 135 and subjects, no difference under rules of 1875 between, 135 animus revo-tendi, 136 absent, discretion to make laws aft'ecting, 168 to give security for costs when resident abroad, 186 \see Security for Costs] Allegiance, Englishman cannot throw off, 288, 289 owed by natives, 63 of alien to foreign state, 129 temporary, created by residence, 130 American Law, general principles of, 519 personal service out of jurisdiction, 519 Ambassador, security for costs from, 191 Animus Revertcndi, absence of, in resident aliens, 136 presence of, in aliens ordinarily resident, 136 absence of, to be shewn to obtain security for costs, 188 ,, may be inferred, 189 in questions of jurisdiction in divorce, 286 Apparent error, 121 Appeal, pendency of, effect of, 52 ,, „ colonial judgments, 53 not appealing abroad, effect of, 123 Appeal Court, English court not appeal court from foreign court, 53, loi the principle stated, 102 consequence of principle, 103 in case of wilful error, 115 ,, error generally, 118 ,, ' proveable' error, 119 ,, « apparent ' error, 122, 123 ,, error in its own law, 125 ,, ,, in English law, 126 ,, ,, in law of any other country, 127 ,, ,, as to law properly applicable, 127 ,, ,, in procedure, 127 its bearing on the subject of jurisdiction, 131 Appearance, effect of, 160 case of plaintiff, 161 voluntary by defendant, 161 to save property, 161 real meaning of defence, 163 does not give jurisdiction where none by international law, 162 this rule limited to cases of exclusive jurisdiction, 162 under protest, 163 in bankruptcy, 161 settles all questions of jurisdiction at once, 16 566 INDEX Appearance — continned. to endorsed counterclaim, 221 time for \see Time] Appellant, security for costs from, when out of the jurisdiction, 195, 196 Arrest, for debt in foreign country not noticed, 210 Arrestment, Scotch, judgment on not to be registered U. K. 359 extent of the jurisdiction, 240 Arreshim yurisdictionis Fundanda Causa, 144, 239 Arbitration, analogy of foreign judgment to submission to, 41 analogy oijtigcinent motive to grounds of award, 118 Assignee, [see Bankruptcy] [see Chose in Action] Assignment in Bankruptcy [see Bankruptcy] Foreign, effect of in England, 325 English, ,, ,, abroad, 331 Assumed Jurisdiction [ji-^ Jurisdiction] Attachment, Foreign, 144 Attainder, foreign sentence of disregarded, 209 consequence of ,, 209 Auxiliary Sanction, explained, 17 its position in the theory, 16 action must be brought to obtain, 100, loi practical illustration of, guardianship, 305 „ ,, probate, 311 Aden [see Indian Empire], 379 Africa, 550 AjUNDA [see Portugal], 490 Alabama, Statute of Limitation, 524 foreign probates, 524 action by foreign administrator, 524 Alderney [see Guernsey], 424 in Lord Brougham's Act, 94 Algeria [see France], 445 Algoma [see Ontario], 383 Alsace-Lorraine [see German Empire], 460 Ambriz [see Portugal], 490 Anegada [see Leeward Islands], 411 Angola [see Portugal], 490 Anguilla [see Leeward Islands], 411 Anhalt [see Germany], 460 Annabon [see Spain], 498 Anticosti [see Quebec], 385 Antigua [see Leeward Islands], effect of U. K, probates, 411 INDEX. 567 Antilles, Les [sec France], 445 Antioquia, 540 Appenzell, procedure to obtain exequatur, 506 Arabia, West \see Turkey], 516 Arakan {see Indian Empire], 379 Argentine Confederation, capacity of persons domiciled, 541 foreign contracts, 541 effect of foreign laws, 541 validity of foreign marriage, 541 election of domicil in agreement, 542 Argovia, procedure to obtain exequatur, 506 Arkansas, Statute of Limitation, 524 Aruba \see Netherlands], 489 Ascension Island, 425 Asia Minor \see Turkey], 516 Assam \_sec Indian Empire], 379 Australian Colonies, 395 Austria, constitution and jurisdiction of the courts, 434 effect of foreign judgments, 434 Hungarian judgments, 434 as to commercial relations between foreigners and subjects, 435 proof of foreign judgments, 435 authentication of Austro-Hungarian judgments, 435 security for costs, 435 regulation for admission of foreign assurance companies, 435 Austro-Hungarian Empire, 434 Bankrupt, to sue on judgment according to English rules, 207 status of, 348 not recognised internationally, 349 Bankruptcy, recognition of rights of assignee under foreign, 20, 326 corresponding rights of English trustees recognised abroad, 21 action pending foreign bankruptcy, 73 debts proveable in, 83 injunction to restrain actions pending proceedings, 83 power over English creditor suing abroad pending, 83 ,, foreign ,, ,, 84 power to expunge proof of foreign creditor, 85 ,, order money received to be brought into common fund, 86 concurrent proceedings, 86 effect of appearance in, l6l, 86 effect of orders of U. K., in other parts of the kingdom, 371 power to order examination out of England, 371 568 INDEX. Bankruptcy — continued. British courts to be auxiliary to one another, 372 English warrants enforceable in H. M.'s dominions, 372 effect of foreign bankruptcy, 325 division of the subject, 325 questions of status involved, 325 recognition of status of assignee, 326 effect of notice of foreign bankruptcy during proceedings in England, 328 ,, ,, after proceedings terminated, 328 as to personalty, 328 ,, realty, 328 assumed jurisdiction in, 329 English rule of jurisdiction, 329 ' domicil or usual residence,' 329 acts of bankruptcy committed out of the jurisdiction, 329 banki-uptcy of foreigners, 329 service out of the jurisdiction, 330 debtor's summons by foreigner against a foreigner, 330 effect of English adjudication abroad, 331 ,, judgment abroad ignoring English adjudication, 331 considerations as to nationality of parties, 332 ,, ,, notice of proceedings, 332 ,, ,, whether the money is recovered to the use of the trustees, 334 English trustee going abroad, 334 foreign creditor coming to England, 335 foreigner proving to bring in money received abroad, 335 concurrent bankruptcy proceedings, 336 bankruptcy of partnerships, 336 rule of priority, 337 concurrent commissions of equal degree, 338 where joint and separate commissions are concurrent, 338 application of rule of priority, 338 joint commission after concurrent separate commissions, 339 restrictions against double proof, 339 identity of parties, 340 effect of final discharge on bankrupt's obligations, 340 discharge by courts of country of contract, 340 meaning of country of contract, 340 when obligation is extinguished, 340 question as to nationality of parties, 341 questions whether foreign discharge is absolute, 341 discharge equivalent to cessio bononitn, 341 discharge by courts of country not of contract, 341 conflict of opinion whether obligation extinguished, 342 discharge absolute if foreign creditor has proved, 342 discharge under Act of U. K. absolute throughout U. K., 343 discharge of country with paramount jurisdiction, 344 colonial discharge binding in England by statute of U. K., 344 ,, not binding by colonial statute, 344 obligations discharged in courts of country granting discharge, 346 hypothetical case illustrating the subject, 346 promise to pay debt discharged by bankruptcy, 348 INDEX. 569 Ba'SKRV rrc\— coiUinueiL status of the bankrupt, 348 question of jurisdiction, 348 not recognised internationally, 349 Balance order, on foreign contributory, 153 Blockade, Breach of, condemnation proceeding on, 255 Blood, privies in, 47 Brihery, of judges may be alleged, 116 Brutuni Fiilmen, orders that may be, refused, 64, 84, 89, 142 Baden {see German Empire], 460 Treaty with France, 457 Bahamas, service out of jurisdiction, 406 U. S. probates, 407 Bale-Campagne, execution of foreign judgments, 507 Bale-Ville, execution of foreign judgments, 506 defences, 506 Balearic Islands [see Spain], 498 Bali {see Netherlands], 489 Banca {see Netherlands], 489 Barbados, service on absent defendants, 407 Common Law Procedure Act, 408 foreign probates, 408 Barbuda {see Leeward Islands], 41 1 Bardes {see Portugal], 490 Basuto Land {see Cape of Good Hope], 412 Bavaria {see German Empire], 460 Behar {see Indian Empire], 379 Belgium, service at elected domicil of acceptor of bill of exchange, 173 constitution and jurisdiction of the courts, 438 French judgments, 438 effect of foreign judgments, 439 service on absent defendants, 135, 440 bankruptcy, 441 security for costs, 441 rogatory letters, 442 law relating to foreign companies, 442 Bengal {see Indian Empire], 379 Benguela {see Portugal], 490 Benkulen {see Netherlands], 489 Berar {see Indian Empire], 379 Berbice {see British Guiana], 406 570 INDEX. Bermuda, service on joint contractors, 412 proof of foreign judgments, 412 Bern, constitution and jurisdiction of llie courts, 507 execution of foreign judgments, 507 summary procedure for recovery of debts, 507 BiLLiTON [see Netherlands], 489 BissAGOs Islands [see Portugal], 490 BissAO [see Portugal], 490 Bohemia [see Austria], 434 Bolivar, 540 Bolivia, status of foreigners, 542 judicial hypothec, 542 treaty with Peru, 542 Bombay [see Indian Empire], 379 Bonaire [see Netherlands], 489 Borneo [see Netherlands], 489 Eornholm [see Denmark], 443 Bosnia [see Turkey], 516 Bourbon, Ile de [see France], 445 Boyaca, 540 Brazil, effect of foreign judgments, 543 procedure, 543 defences, 544 bankruptcy, 545 Brazilian creditors, 545 reciprocity abolished, 546 commercial relations of foreigners, 546 security for costs, 546 convention with Uruguay, 546 Bremen [see Germany], 460 British Columbia, Judicature Act, 392 service on foreign companies, 393 Statutes of Limitation, 393 British Guiana, Roman-Dutch law in, 406 service on absent defendants, 406 British Honduras, service out of the jurisdiction, 406 British India [see Indian Empire], 379 British Kaffraria [see Cape of Good Hope], 412 Brunswick [see Germany], 460 BuKOWiNA [see Austria], 434 Bulgaria [see Turkey], 516 Burma [see Indian Empire], 379 Call [see Company. Shareholder] Cause of Action, same may give rise to suits in different countries, 63, 64 INDEX. 571 Cause ok Action — continued. residence gives right to sue for any, 63, 184 English procedure, 3, 22 examination as to true, in action on foreign judgment, 22 actions on original, 23, 30 identity of when pleaded in bar, 45 arising abroad, injunction to restrain action aljroad in respect of, 82 plea of satisfaction, 106 where it relates to land situate abroad, 131 where it arises is of no consequence, 131 in respect of what, service allowed under C. L. P. Act, 135 i-ules, 1875, 135 „ ., » 1883, 135 need not arise in the jurisdiction when defendant domiciled or ordinarily resident within, 136 rule as to security for costs, when admitted and there is a counterclaim, 191 meaning of term, 147 barred \_see Statute of Limitation] where action on judgment is in country where cause of original action arose, 120 Ccssio Bonoritm, foreign discharge equivalent to, effect of, 341 Chairman, of company, rights against under certain colonial laws, 22 Chambers, Master in, procedure before, in action on judgment, 185 jurisdiction of as to service out of jurisdiction, 218 Chancellor, Lord, his jurisdiction in lunacy, 299 further enquiry necessary here to obtain his protection, 297 Chose in Action, mutual recognition of rights of assignee of, 21 Civil Law, definition of, 9 rules of as X.o forum in cases of contract, 149 Civil Sanctions, intermediate, 13 ultimate, 13 Clerical Error, 123 Co-defendant, service out of jurisdiction against, 151 interpretation of ' properly' in the rule, 152 Collision, judgment in case of, 44 Collusion [see Fraud] apparent jurisdiction conferred by, 112 in Divorce, 287 definition of, 287 Colonial Judgment, application of principles of appeal to, 102, 120 Colonies, British, judgment of, 2 Common Law of, 9 572 INDEX. COLOM ES, 13 R IT I S H — lOHlinucd. definition of, in Lord Brougham's Act, 94 documents admissible in same degree as in England, 96 list of, in which Lord Brougham's Act adopted, 97 ,, in which foreign laws prevail, 379 courts of, will assist British courts in the winding uj) of companies, S3 decree as to lands in, 141 general principles of colonial law, 377 charter provides law to be in force, 377 power vested in legislatures to pass laws, 377 imperial statutes extended to, 378 English Judicature Act adopted, 378 evidence of uncivilised people in, 379 Probate Acts of, include probates of U. K., 371 Colonies, Foreign, law in, 433 Comitas Gentium \see Comity] Comity, reciprocity its essential characteristic, 7, 429 definition of, 12 doctrine of, 4 definition of, 14 ,, „ (Blackburn, J.), 5 objections to, 6 principles involved in contrasted willi those involved in doctrine of obligation and comity, 16 extradition, founded in, 14 connexion with principle of appeal, loi effect of judgment totally disregarding, 175 considered theoretically, 17 in bankruptcy, 342 Commissary Court, French, judgment of disregarded, 21 1 Commission Rogatoire, the foundation of comity, 12 replaces formal action on foreign judgment in foreign states, 432 Commission to Examine Witness, example, 31 refused in action on judgment, 120 additional security in consequence of, 186 part of lex fori, 208 no difference when witness a party, 208 Common Law, as used by Blackburn, J., 8 first interpretation, 9 second ,, 9 Blackstone's definition, 8 of England, 9 of other States, 9 in Spanish provinces, 433 taken to a settled colony, 377 Company, suits against, example of identity, 48 INDEX. 573 Company — contimied. winding up, 82, 330 statutory right to restrain actions against, 82, 365 service of summons under Act out of jurisdiction, 216 service on, 232 CoMTANY, Foreign \sce Shareholder] restraint of suit in England after foreign order to wind up, 69 with agency in England, jurisdiction over, 88 security for costs from, 191 when merely to work abroad, 19 1 when balance in bank and shareholders responsible for unpaid calls resident here, 192 when sued or suing to be governed by English law, 208 service on, 232 when notice of writ to be used, 232 ,, agent in England, 232 who may accept service, 232 form of actions against, governed by English law, 208, 233 oi'ders of U. K., effect of, 363 winding up of foreign companies conducting business here, 330 foreign creditors who have recovered must bring in money received, 331 Company Law, mutual recognition of rights under, 22, 155 Concurrent Jurisdiction, 62, 64 Concurrent Suits, 61 administration actions, 70 application by persons who are parties to one suit only, 72 admiralty decisions, 74 actions in rem and hi personam, 75, 87 bankruptcy proceedings, 86, 336 Concurrent Writs, within and without jurisdiction, 219 when to be used, 219, 236 Condemnations, Exchequer, 264 prize, 252 grounds of; — 'enemy's property,' 254 general, 255 breach of blockade, 255 contraband of war, 255 violation of treaties, 256 ,, ,, ordinances, 256 ' enemy's property ' with ordinances, 257 violation of treaties ,, ,, 257 Confirmation, Scotch, effect of in England and Ireland, 367 eik or additional, when it will be sealed, 368 Consular Courts, judgments of, 2, 213 effect of ,, 212 certificate of British Vicc-Consul, 212 574 INDF.X. Contempt of Court, punishment for disobedience to injunction, 70, 89 Contraband of War, condemnation proceeding; on. 256 Contract, foreign judgment formerly treated as simple, 24 jurisdiction in respect of, 62 English, right to sue on abroad, 67 for rent of premises abroad, action on, 67 suits on, illustration of identity of subject matter, 46, 49 nature of, how it will influence the grant of injunction, 73 consequence of wilful application of wrong law in action on, 1 14 affecting property within the jurisdiction, service out of jurisdiction in actions, 137, 145 relating to land abroad, action on dismissed, 140 old cases in which action entertained, 141 when good by foreign law not to be invalidated, 171 in restraint of trade, effect of judgment enforcing, 177 ,, ,, ,, awarding damages, 177 jurisdiction in respect of, 145 contracts made in U. K., 146 contracts wherever made, 147 contracts to be performed within the jurisdiction, 148 interpretation of by /fx /i5i«, 147, 148 ^»a«'-submission to laws of state by making contract within it, 147 the breach of, is the cause of action, 147 where some of the parties only are abroad, 149 the rules of civil law as ioformn, 149 in one country to evade revenue laws of another, 2 1 1 incapacities to make, settled by laws of domicil, 274 marriage not a civil [see Marriage] Contributory [see Shareholder] Convenience, doctrine of in concurrent suits, 71, 73, 77, 81 of the court not of the parties, 72 Convention [see Treaty] Conversion, judgment of country in which doctrine obtains, 139 Copy, proof of judgments, etc., by sealed, 94 Copyright, remedy for infringement, where defendant resident abroad, 138 Costs [see Security for Costs] awarded abroad, action for, 206 ,, ,, when not taxed, 52 when they follow the event, 207 order as to when one of two actions stayed, 72 ,, when action stayed pending administration suit, Si Counter Claim, rules as to security for costs, 191 when concurrent with suit abroad, 81 indorsed, service of out of the jurisdiction, 152, 216, 221 INDEX. 575 County Court, action on judgment of, 212 rules as to such actions not applicable to foreign inferior courts, 212 Cotir lie Cassation, its place in foreign systems, 433 Court, application to, necessary to enforce foreign judgment, 18, 26 of record, foreign, 28, 29, 105 meaning of term, 29 of First Instance, English, should not criticise decision of foreign appeal courts, no impurity of may be alleged, 116 Court of Honour, French, judgment of disregarded, 211 Court of Marshals ; French, judgment of disregarded, 211 Creditor, right to bring action in any country whose law allows him, 67 action by, pending administration, 76 ,, pending winding up, 83 ,, pending bankruptcy, 83 right to prove in English bankruptcy, 83 English, suing abroad pending English bankruptcy, 84 foreign ,, >> >> "4 rights of, who has not proved, 84, 86 ,, who has proved, 85 must bring money received into common fund, 86 execution, his right to security for costs in interpleader, 192 Criminal, escape of to other countries, 14 Criminal Court, foreign, sentence of disregarded, 209 Criminal Law, English, in force in Canada, 388 of Cape of Good Hope, extended to South America, 413 Criminal Sanctions, intermediate, 13 ultimate, 13 Curator Bonis [see Lunacy] Caicos Island [see Jamaica], 405 California, seizure of property to found jurisdiction, 67, 172 foreign wills, 524 proof of foreign judgments, 525 service on absent defendants, 525 statute of limitation, 526 Cam BODGE [see France], 445 Canada, Lower [see Quebec], 385 Canada, Upper [see Ontario], 383 Canadian Provinces, 383 Canary Islands [see Spain], 498 Cape Breton Island [see Nova Scotia], 388 5/6 INDEX. Cape of Good Hoi'e, construction Roman- Dutch law, 412 Dutch ordinances prior to 1815, 413 criminal jurisdiction, 413 Cape Verd Islands [see Portugal], 490 Carinthia [see Austria], 434 Carniola [see Austria], 434 Caroline Islands [see Spain], 49S Cauca, 540 Caucasia [see Russia], 496 Cayenne [see France], 445 Cayman Islands [j^,? Jamaica], 404 Celebes [see Netherlands], 489 Central Asia [see Russia], 496 Central Provinces [see Indian Empire], 379 Ceylon, Roman-Dutch prevails in, 417 proof of foreign judgments, 417 prescription of home judgments, 417 Chandernagore [see France], 445 Channel Islands, 423 Judgment of, 2 Chili, Status of foreigners, 547 Chota Nagpur [see Indian Empire], 379 Clipperton [see France], 445 Cochin China [see France], 445 Colombia, United States of, 540 Columbia, Statute of Limitation, 526 service on absent defendants, 526 Connecticut, service on agent, 527 service on foreign company, 527 Corsica [see France], 445 Costa Rica, 540 Croatia [see Hungary], 435 Cuba [see Spain], 498 Cundina Marca, 540 CURACOA [see Netherlands], 489 Cyprus, Evidence Act, 417 Procedure Act, 417 Damage, case of mutual considered, 44 Damages, in actions relating to land in the jurisdiction, 138 for nuisance within the jurisdiction against defendant abroad, 151 principle of assessing alleged to be contrary to natural justice, 171 awarded on contract in restraint of trade, 176 INDEX. 577 Dam Ac; v.':^— continued. security for, never ordered, 191 counter-claim for greater tiian claim, rule as to security for costs, 191 already incurred, security for, 194 action for recovery omitted from rule of 1SS3, 229 Death, of person domiciled, administration, 136 Debt, nature of foreign judgment, 183, 184 foreign, action for may be brought in England, 184 difference between, and judgment debt, 1S4 Debtor, may be proceeded against in any country whose law allows il, 67 Debtor's Summons, may be taken out by a foreigner against a resident foreigner, 330 Deceased Wife's Sister, marriage with abroad, 272 Deeexces, doctrine of comity, 6 ,, ,, obligation, 8 ,, ,, obligation and comity, 18 Chapter II., 100 fraud of parties, 106 perjury, 1 10 ,, „ court, 113 court's jurisdiction, 129 over the thing, 139 court's error, 118 natural justice, 167 international law, 174 public law, 175 appearance only to save property, 161 real meaning of defence, 163 absence of defendant, 164 to judgment in retn, 258 international law, 259 absence of jurisdiction, 260 how principle of, differs from principle of reply, 39 general principle of, 40, 100 depends on public law, 100, 176 not raised abroad cannot be raised here, 102 general rule of, 103, 104 Lord Blackburn's rule considered, 104 how it affects principle of error, 128 in action on domestic judgment, common to all countries, 105 lists of, given in judgments, 107 where judgment affects land in another country, 139 two groups of, different in their nature, 167 unless good defence alleged, judgment may be signed under Order XIV, 183 Defendant [.iV6' Co-defendant. Service out of Jurisdicitun] . judgment for, abroad, 3 ,, ,, how affected by doctrine of non-merger, 39 position of, how it differs from that of plaiiUitf, 40 2 P 578 INDEX. Defendant — couiinucd. judgment for plaintiff satisfied by, 42 „ » not ,, 43 in concurrent suits reservation in favour of, 71 injunctions where suit abroad by defendant to English suit, 74, 80 must prove English law to foreign court, 116, 126 service on agent of, 166, 232 consequence in outlawry, 134 absent, difficulty in protecting plaintiffs against, 173 security for costs never ordered from, 191 where counter-claim, 191 in actions in rem, 191 in interpleader, right to security for costs, 192 one of two may apply for security, 196 does not waive right of security by simply defending, 194 or entering appearance, 195 submission to tribunal [_see Appearance] absence of, as a defence, 164 form of plea, 164 former presence said to be necessary, 164 knowledge of the action said to influence the question, 165 regularity of service cannot be questioned by, 167 joinder of, 152 within jurisdiction not to be joined for express purpose of catching co-defendant abroad, 152 added or substituted, service on out of jurisdiction, 220, 227 substituted service on, 230 Definitions, foreign court, 2, 3S0 foreign judgments, 2, 380 doctrine of comity, 5 ,, ,, obligation, 8 common law, 8 Hobbe's of civil law, 9 Austin's of duty, 10 Wolsey's of comity, 12 Markby's of sanction, 17 Lord Blackburn's of principle of defence, 18 Vinnius' oi res judicata, 34, 46 Broom's of mil tiel record, 36 Lord Campbell's of apparent error, 121 ordinary residence, 136 cause of action, 147 Baron Bramwell's of defence against natural justice, l6S, 170 Cockburn, C. J.'s, of judgment in rem, 244 Markby's oijus in rem, 247 of collusion, 287 Discharge, absolute by foreign law, effect of, 106 Discharge in Bankruptcy, by courts of country of contract, 340 )) ), not of contract, 341 under Act of United Kingdom, 343 INDEX. 579 Discovery, Bill of, in aid of suit respecting land abroad disallowed, 140 order for after service out of jurisdiction, 225 District Registry, service of writ out of jurisdiction, 229 Divorce, doctrine of indissolubility, 276 ,, ,, lex loci contractus, 276 ,, ,, lex domicilii, 278 marriage in England, divorce abroad, 280 where husband a foreigner domiciled abroad, 2S0 ,, ,) an Englishman ,, in England, 283 ,, ,, a foreigner ,, ,, 287 ,, ,, ^n Englishman ,, abroad, 2S8 marriage abroad, divorce abroad, 288 marriage in England or abroad, divorce in England, 288 where husband an Englishman domiciled in England, 2S9 » 5) a foreigner ,, ,, 289 ,, ,, an Englishman ,, abroad, 289 ,, )) a foreigner ,, ,, 289 case of marriage in England to avoid provisions of French Law, 281 Scotch rule as to jurisdiction, 283 extends to divorce cases, 283 when domicil created for purposes of jurisdiction divorce not recog- nised, 284 jurisdiction in fraudem legis, 284 question involved in decree of nullity, 284 ,, ,, ,, of divorce, 285 intention to evade English law, 285 question where second domicil permanent, 2S5 intention to evade ceremonial law, 285 residence not in fraudem legis, 285 example of animus revertendi, 286 collusion, 287 rules of English jurisdiction, 289 allegiance, 289 case dependent on consular domicil, 290 domicil of petitioner not necessarily regarded, 292 service out of the jurisdiction, 293 act applies to subjects and aliens, 293 service may be dispensed with, 293 note on Mrs Bulkley's case in the French Cour de Cassation, 294 jurisdiction to decree divorce depends on domicil at time of maUimouial wrong, 291 Doctrines, of comity, 4 ;, obligation, 4, 8 ,, obligation and comity, 12, 15 general review cf, 15 of non-merger, 23, 27 ,, />rimd /acie evidence, 23, 24 ,, lex domicilii, in divorce, 168 ,, lex loci contracttis, ,, 169 580 INDEX. Documents, proof of foreign, 94 where several to be proved, 96 degree of admissibility in different parts of United Kingdom, 96 on which judgment proceeded, production of, 55 DOMICIL [see Lex Domicilii^ forntn doviicilii xa. respect of contracts, 149 owner's, in case of personalty, 1 74 application of law of, 272 incapacities affixed by law of, to be recognised by courts of place of contract, 272 in legitimation of children born out of wedlock, to be that of father at time of birth of children, 275 allegiance of English sutijects not affected by change of, 289 meaning of ' domicil of parties ' in questions of marriage, 279 wife's is that of her husband, 279 exception where new one treated for purposes of jurisdiction, 279 at time of marriage in questions relating to validity, 280 at time of matrimonial wrong ,, ,, divorce, 280 a man cannot be without, 280 difficulty in testing true domicil, 287 shareholders domiciled or usually resident in England, 154 to found jurisdiction in divorce, 284 not a true domicil, 284 example of atiimiis rcvcrtcndi, 286 memorandum of, on sealing probate of U. K., 368 Domiciled Persons, when resident, subject to jurisdiction, 63 company abroad, with offices in England, 88 jurisdiction founded on, 135 relief granted against, 136 who are, 136 when subjects abroad, 136 deceased, administration of personalty, 136 foreigner in England, security for costs from, 189 shareholder in English company, 154 marriage of abroad [see Divorce] Dotiiintis Litis, consequence of being, 74 Droit de Retorsion [see Lex Talionis\ Duty, derivation of, Austin, 10 Dalmatia [see Austria], 434 Damaun [see Portugal], 490 Dli.aware, 518 Demerara [see British Guiana], 406 Denmark, constitution and jurisdiction of the courts, 443 effect of foreign judgments, 443 proposed new Code of Civil Procedure, 444 service on absent defendants, 444 saisie-arrct, 444" INDEX. S^^ Denmark — (ontinttcd. foreign companies, 445 treaty with Sweden, 445 decision of Executor's Court of Dealing ignored, 117 Diu [see Portugal], 496 Dominica [see Leeward Islands], 411 Dutch Guiana [see Netherlands], 489 Eadem Causa Pctcndi, 47 Eadcm Conditio Pcrso/iaruni, 50 Eadem Qiiantiias, 46 Edictal Citation [^cv Scotland] EiK [see Confirmation] Election, 69 in concurrent suits, party put to, 70 existence of doctrine doubted, 79 Enemy's Property, effect of condemnation when clearly set out, 254 when not set out, 254 by aid of ordinances, 257 Enforcing, the, 4 English Court, its duty in determining on foreign law, 127 English Law, error in, 125 considered by the light of Lord Blackburn's rule of defence, 104 the defence rested on Natural Justice, 169 policy of [j-i?^' Public Law] too hasty conclusion as to, no ground of defence, 126 defendant's duty to bring it before foreign court, 116, 126 English Procedure, in action on judgment, 3, 22, 185 gives rise to doctrine oi prim A facie evidence, 26 for enforcing payment of calls, 1 53 English Subjects, cannot throw off allegiance, 289 marriage of abroad, 279 Equity, where different equities claimed by two suits, 49 interposition of, where concurrent suits, 64 where second suit contraiy to, 65 between persons within jurisdiction as to land abroad, dealt with, 141 Error of the Court, 118 as distinguished from fraud, 109, II4 on facts or merits, 119 proveable, 119, 118, 125 rule not altered although fresh evidence discovered, I20 apparent, 55, 121, 118, 125 practical illustrations of, 122 which becomes apparent, 125 clerical, 123 582 1X1 )KX. Error ok the Court — coiiliinud. in its own law, 123 " example, 124 in foreign law, 125 English law, 125 opinion in Smith's Leading Cases, 126 of any third country, 126 in law properly applicable, 127 defence rested on violation of International Law, 174 in its own procedure, 127 wilful, 113 in procedure, 113 in law, 113 on the merits, 113 in English law, 113 application of wrong law in action on contract, 114 difficulty of establishing it, 1 15 none, if defendant did not prove English law satisfactorily, 116 with wrongful intent, 116 with no ,, ,, 116 example in Italian decision, 116, 175 apparent, 122 general statements as to, compared with general statements as to jurisdiction, 130 defence rested on violation of International law, 174 Estate, privies in, 47 Evidence, criterion of identity of suits from, 5 1 taken for foreign courts, 89 extrinsic, if allowed to be adduced, 118 further, will not alter principle of error, 120 of uncivilised people in colonies, 379 Exceptio Ret yudicatce, 33 Ex Contractu \see CONTRACT] Ex Delicto \see Tort] Execution, on judgment, effect of stay of, 51 „ of U. K. „ „ 358 part of lex fori, 207 Execution Creditor \see Creditor] Executor, suit by, example of identity, 50 Executor's Court of Dealing, 117, 211 Exequatur, on foreign judgment, action for, 3 French rule as to court before which it is to be taken, 103 in judgment relating to realty in a foreign country, 144 Exigent, award of, in outlawry, 134 Extradition, treaties, 14 considered theoretically, 14 INDEX. 58; Eastern Colonies, 417 Ecuador, 540 Egypt, service on absent defendants, 550 judicial hypothec, 550 jurisdiction of the court, 551 Elba [see France], 445 England, documents admissible in same degree as in Ireland, 96 practice in sealing Irish Probates or Scotch Confirmations, 369 fees ,, ,, ,, 369 proof of foreign and colonial judgments in, 94 effect of Scotch and Irish judgments of superior courts, 358 ,, judgments of superior courts in Scotland and Ireland, 358 ,, Scotch and Irish judgments of inferior courts, 362 ,, judgments of inferior courts in Scotland and Ireland, 362 ,, orders in U. K. under Companies Act, 363 ,, ,, ,, Bankruptcy Act, 371 ,, warrants ,, ,, 372 ,, inquisitions in lunacy, 366 ,, Irish Probate and Administration, 367 ,, Scotch confirmation, 367 EssEQUiBO [st-e British Guiana], 406 Fantastical Courts, judgments of disregarded, 211 Fees, probate, practice in England, 369 ,, ,, ,, Ireland, 369 Foreclosure [see Mortgage] Foreign Attachment, 144 recognition of judgment proceeding on, 144 similar rules in foreign law, 144 effect of judgment in U. K., 145 Foreign Court, English court has no jurisdiction over, 64 Parliament never legislates respecting, 83 evidence for, 90 must be considered capable of administering justice, 103 must be assumed to have properly interpreted foreign law, 123 most competent to determine questions of foreign law, 124 no enquiry allowed as to whether it took proper means to ascertain English law, 126 in suits affecting realty, English courts will consider whether foreign court is not proper tribunal, 139 Foreign Injunction, recognition of, 89 Foreign Judgment, definition of, 2 ,, in Indian Code, 380 preliminary distinction, 2 584 INDEX. Foreign Judgmext — continued. cause of action in action on, 22 what it is evidence of in the action, 26 restraint of action on, 68 ,, ,, consequences of, 68, 85 what it is evidence of in English courts, 44 * action on, English procedure in, 100, 184 general principle, 85 proof of, 54, 105, Chapter III, 94 is final for its own proper purpose, 45 must be final and conclusive, 51 interlocutory, 52 must be definite and capable of being enforced, 52 proceedings in nature of, 52 effect of pending appeal abroad, 53 must have been on the merits, 54 its alleged equivalent in English money may be questioned, 105 non-existence of may be raised, 105 unduly or irregularly obtained, 106 \see Fraud] its form differs from English judgment, 1 18 application of principle of ' error ' to action on judgment in country where cause of action arose, 120 \% prima facie evidence of law laid down in it, 123 must be assumed to be in accordance with foreign law, 123 it will not be disregarded on account of too hasty conclusion as to English law, 126 is not examinable, 128 except to see what it professes to decide, 128 against person resident at time of service of writ will be recognised, 131 service out of jurisdiction in action on, when allowed, 136, 233 of place where realty situate universally recognised as to title, 139 also as to proceeds, 139 of place where realty not situate, not recognised, 139 effect of, when as to rent of premises in England, 143 ,, ,, title of land ,, 143 when proceeding on process resembling foreign attachment, 144 against shareholder where submission to tribunal, 154 ,, ,, to foreign law, 155 ,, where no submission, 155 when by default, and defendant appeared by attorney, 161 to be presumed not against natural justice, 168 effect of when procedure ,, ,, 170 when it proceeds on a violation of International law, 174 should not be recognised anywhere, 174 effect of, as to personalty, when not according to law of owner's domicil, 174 ,, when on a contract in restraint of trade, 176 ,, when on statute of limitation, 202 ,, ,, ,, prescription, 203 time when remedy on barred, 203 no merger of in English judgment, 206 interest on, 205 parties to action on, 207 IXDF.X. 5 '"^5 Vo K V. I ( ; N J U DO M ENT — COtltimii'd. when by default whether a question of procedure or on the merits, 208 is it a debt or liquidated demand under Order III ? 183 application to sign judgment under Order XIV, 183 endorsement on writ in action on, 184 in action on, enquiry whether writ may be served out of jurisdiction, 233 of United Kingdom, statutory enactments as to, Chapter XI, 357 ,, ,, of inferior courts, 362 action on judgments of U. K. superseded, 359, 363 concerning status, Chapter X, 269 proceeding on penal laws not recognised, 209 nor the consequences of such judgment, 209 ,, revenue laws ,, ,, 210 sustaining a claim founded on breacli of English revenue laws, 210 of fantastical courts, 211 of foreign political courts, 211 of inferior courts should be recognised, 212 of consular courts, 212 on registration of patent, 213 for damages of infringement of patent, 213 Foreign Law, proof of, 54 judgment best evidence of, 123 must be assumed to be rightly interpreted by judgment, 123 error in, 123, 126 duty of court in determining, 127 as to domiciliary jurisdiction, 135 ,, contractual, 149 ,, territorial jurisdiction over realty, 139 when alleged to be contrary to natural justice, 171 power of review avoided, exercise of, 172 submission to by shareholder, 155 whether binding on shareholder without submission, 155 consequence if not binding, 156 to determine whether marriages void for ceremonial invalidity, 278 continued in ceded colony, 377 colonies in which foreign law prevails, 379 proof to be given of transmission and registration of ordinance, 387 as to time for appearance, 224 general principles of, 428 Foreign Procedure, general view of systems, 3 when contrary to natural justice, 168 when not recognised in any other country, 1 7 1 exercise of power of review avoided, 172 Foreign Sovereign, general power to restrain prosecution of, 64, 66 restraint of [see Injunction] bill will be entertained to secure property pentling, 69, 72 Foreign Suit, security for costs from, 190 Forfeiture, in outlawry, 134 585 INDIA'. Forms, English, for service out of jurisdiction, 229 Italian, 4S6 American, 522 Forty-Days Rule [see Scotland] J^onim, defendant may attack an application to set aside service or issue of writ, 228 Forum Domicilii, 149 Forum Contractus, 149 Forum Rci St ten, 149 effect of judgment of, as to realty, 139 Forum Rei Gcsta:, 149 Fraud \see Wilful Error] as a ground for an injunction, 68, 72 of parties, 106 of court, 113 C.J. de Grey's dictum, 107, 109, no, 113, 117 in procuring judgment, 108 that defence to suit was fraudulent, 108 may be shown where no re-examination of merits involved, 108 where fact of, involved in issue, 108 where it should have been tried in original suit, 108 not to be raised if a ground of appeal abroad, 108 decisions on, considered, 108, in as distinguished from error, 109, 114 where equivalent to perjury, iio, in no defence in action on domestic judgment, in, 112 apparent jurisdiction conferred by, 112 if a defence abroad, should be defence here, 113 integrity of court or judges may be attacked, 116 interest of judges may be alleged, 117 defence rested on natural Justice, 169 ,, ,, violation of public law, 176 Frauds, Statute of, enquiry whether section 4 a rule of procedure, 200 French Law, colonies in which it prevails, 379 in Canada, 386 interpretation of, 387 Falkland Islands, proof of foreign judgments, 425 Faroe Island \see Denmark], 443 Fernando Po \see Spain], 498 Fiji Islands, Judicature Act, 403 construction of English statutes, 403 Intercolonial Judgments Act, 404 Marriage Act (U. K.), 404 Finland \see Russia], 496 FiuME \see Hungary], 435 I'lorida, 518 IN'DKX. 587 Franck, Ordinance of 1629, 446 judicial lien on judgments, 3 contestations cntrc ct rangers, 63, 131 rule as to courts of equal degree, 103 process criticised, 173 judgment on, 174 contract in restraint of trade in England, 176 constitution and jurisdiction of the courts, 445 service on absent defendants, 446 laws corresponding to s. 14 C. C. not recognised, 447 mode of service, 449 time for defending, 450 lis alibi pendens, 448 law as to foreign companies, 449, 455 security for costs, 449 notice of appeal, 450 saisie-arrei, 451 effect of foreign judgments, 451 by default, 452 procedure thereon, 454 on questions of status, 453 divorce, 453 marriage, 453 bankruptcy, 453 proof of foreign judgments, 454 foreign wills, 455 contestations entre etr angers, 455 law in French colonies, 459 Treaties with England [as to companies], 456 Baden, 457 Italy, 456 Russia, 457 Sardinia, 456 Spain, 458 Switzerland, 458 French Cochin-China \see France], 445 French Guiana \see France], 445 Fribourg, execution of foreign judgments, 50S FuNEN [see Denmark], 443 Furneaux Group [see Tasmania], 398 German Law, colonies in which it prevails, 379 Gentus, laws of, to govern all matters concerning, 201 Guardianship, status of parent or natural guardian, 302 rights governed by lex domicilii, 302 5 217 limits of, of inferior courts of U. K. not altered by Inferior Courts Judgment Extension Act, 363 in divorce {see Divorce] general considerations of, 62 in respect of the person, or residence, 62 property, 63 change of residence, effect of, 63 ' concurrent,' 62, 64 defendant out of {see Assumed Jurisdiction] foreign court, none over, 64 plaintiff out of, right to sue, 63 {see Security for Costs] ' simple,' 62 ' single,' 62 ' exclusive,' 67, 162 ' constructive,' 8S in case of injunctions, 64, 88 person responsible must be within, 89 over foreign companies with agencies in England, 88 submission to, consequence of, 89 apparent conferred by fraud, 112 defence raising, 129 where suit relates to real property abroad, 67 ,, ,, rent of ,, ,, 67 not to be attacked by plaintiff in reply, 40 general statements as to defence, 129 compared with general statements as to error, 130 to pronounce judgment depends on right to summon, 130 difficulty on subject of defence arises from absence from, 132 necessity for rules of extended, 132 domiciliary, 133 territorial, 136 as to realty, 139 as to personality, 144 ex contractu, 62, 145 ex delicto, 150 special, 151 in injunctions, 151 as to co-defendants, 151 in company matters, 152 defence rested on natural justice, 169 the only question to which natural justice api)Iies, 171 defence rested on violation of international law, 174 596 INDEX. Jurisdiction — continued. defence rested on violation of public Inw, 176 ' residential,' 130 ' assumed,' 62, 132 considered generally, 157 as to rules of service, 215 discretion in state to pass laws as to, 157 recognition of its exercise by other states, 157 deci'iionm Schibsby V. IVestenholz con^vXcrcd, 158 case of debts contracted in the country, 159 principle is acted on in all states, 159 the principle and not the instances should Ise the rule of international law, 160 service out of: Order XI ; Chapter VIII, 214 in divorce, 293 in bankruptcy, 330 created in fraiidcin icgis, in divorce, 284 rules of different countries vary, 133 plaintiff absent from, to give security for costs, 186 defence setting up absence of, in action on judgment under foreign attach- ment, 144 contracts to be performed within, 148 of foreign court, questions as to, should be raised abroad, 162 appearance cures defect in, 163 where no jurisdiction by international law, appearance does not create, 162 rule limited to cases of exclusive, 162 the way in which questions as to, should be raised in England, 163 concurrent, consequence of remedy barred in one country only, 198 absence of in judgments in rem, 260 a special instance of breach of international law, 260 principles of in prize matters, 261 distinction between prize and municipal courts, 261 municipal courts to have the res in possession, 261 admiralty courts to sit only in belligerent territory, 261 vessel must be infra pnesidia, 262 case of judgment given in country occupied by foreign power, 262 the notice necessary to owners, 263 formal notice essential, 264 sufficiency of notice not examined, 164 Jtts iox Jus, general principle of considered, with instances of its application, 19-22, 89, 157 Jus Gcntitun, common law equivalent to, 9, 10 Jus in Personam, Admiralty action brought to enforce, 246 difference between, andyVw in rem resulting from judgments, 247 /us in Retn, meaning of term, 244 resulting from judgment in rem, 247 the duty correlative, 248 difference between, andywj- in personam resulting from judgments, 247 INDEX. 597 Jus Retorsionis \see Lex Talionis^ Justice of the Peace, American, judgments of, 211 Jamaica, Judicature Act, 404 service out of the jurisdiction, 404 proof of foreign judgments, 405 foreign probates, 405 reasons of judgments to be preserved, 405 Japan, 460 Java \see Netherlands], 489 Jersey, in Lord Brougham's Act, 94 old Norman law in, 423 Jutland \see Denmark], 443 Knowledge, of action, consequence of, 165 of absence, security to be asked for immediately on, 194 Kansas, Statute of Limitation, 530 service on absent defendants, 530 foreign probates, 530 Karikal \see France], 445 Kentucky, Statute of Limitation, 530 service on absent defendants, 530 Kenvatin \see North-West Territories], 392 King Island \_see Tasmania], 398 KowLOON Peninsula \^see Hong Kong], 417 Land \see Real Property] Law, privies in, 47 Legitimacy, decision as to, follows decision as to validity of marriage, 275 depends generally on lex domicilii, 275 in one instance on lex loci contractus, 275 per subsequcns niatriiiioniitm, 275 rule strictly lex domicilii, 275 immaterial where marriage takes place unless specified by that law, 275 the domicil is that of the father at time of birth of child, 276 child so legitimated cannot take lands in England, 276 Lex for Lex, general principle considered, with examples, 20-22 Lex DoDiicilii, applicable in administration of personalty, 136 ,, in certain suits relating to personalty, 138 598 INDEX. Lex Dom icilii — coniiiuied. to determine capacity to marry, 272 rule doubted, 274 to determine all questions as to marriage contract, 275 determines legitimacy generally, 275 always as to \Q^\\^vi\■^i\ov\ per stibseqiiais »ialri>noiiiu»i, 275 where it gives way to the rule of the matrimonial home, 291 natural status dependent on, 271, 296 rights of natural guardian governed by, 302 questions of testacy or intestacy governed by, 307 probate granted according to, 309 period to which it relates, 309 Lex Fori [see Commission. Costs. Interest. Parties. Statutes of Limitation.] judgment proceeding on, 54 applicable in certain suits relating to personalty, 138 all matters relating to procedure governed by, 197 general examination of rule, 197 enquiry whether fourth section of Statute of Frauds a rule of ino- cedure, 200 when rule of procedure should be waived, 204 whether judgment by default part of lex fori, 208 administration of assets governed by, 314, 336 nature of auxiliary grant of probate governed by, 318 Lex Fori Rei yiidicata:, error in, 123, 124 Lex Loci Contractus, decision of court of, 123 applicable in certain suits relating to personalty, 138 when cause of action barred by, 198 to determine all questions as to solemnities of marriage, 275, 277 determines legitimacy in one case, 275 opinion that marriage is governed by, 276 consequences if the rule obtained, 277 Lex Loci Rei Sitiz, applied in all disputes as to realty, 137 applicable in certain suits relating to personalty, 138 judgment of another country in accordance with, not recognised, 139 Lex Talionis, consequence of adoption by foreign court, 19 example of adoption by Italian court, 116, 160 a violation of International Law, 175 deduced from reciprocity, 430 Lien, on lands abroad, suit respecting, 142 Admiralty decisions as regards maritime, 246 Limitation, Statutes of, effect of judgment on, 54, 202 the real nature of the judgment examined, 202 discharge under foreign, 106 plea dismissed abroad, consequence ot, 124 where remedy barred in one country only, 198 are rules of procedure when debt not barred, 198 INDEX. 599 Limitation, Statutes of — contimied. plea that cause of action barred is bad, 198 they bar remedy or right to sue, 198 colonial statutes where different rule laid down, 199 to be distinguished from Statutes of Prescription, 200 time after which remedy on foreign judgment is barred, 203 what period the time to run from, 203 what is the limiting period, 204 the limit on an English judgment, 204 decision that plaintiff must be diligent, 205 plea that remedy on judgment barred abroad, 205 Lis Alibi Pendens, 69 decision against validity of plea, 7° ,, as to compelling election, 70 consequences of plea, 75 Lunacy \see Chapter II], 6i effect of inquisitions in U. K., 366 appeals to be made in country where inquis ition held, 366 questions of status involved, 296 the country entitled to find lunacy, 296 rule of residence, 296 English rule of jurisdiction, 296 effect of foreign finding, 297 further enquiry necessary to obtain protection of Lord Chancellor, 297 foreign ciiratur bonis may apply for lunatic's money, 297 reference to Master to report, 297 reasons for not granting transfer, 297 judge's discretion, 298 lunatics out of jurisdiction, 298 inquisition before jury, 298 enquiry by master, 299 power of Lord Chancellor extended to colonies, 299 request by foreign court to make enquiry, 299 reasons for refusal, 300 power to remove lunatics from India, 300 effect of Indian inquisition, 300 Lunatics, to sue on judgment according to English rules, 207 property of \see Lunacy] Locus Regit Actum, 200 Labrador {see Newfoundland], 395 Labuan, Courts ordinances, 423 Lagos, service out of the jurisdiction, 414 „,^ service on corporations, 415 ,, absent defendant carrying on business in colony, 415 Lampongs \see Netherlands], 489 Leeward Islands, ser%'ice out of the jurisdiction, 411 Liberia, proof of foreign judgments, 551 6oO INDEX. Liberia — contimied. effect of foreign judgments, 551 judgment by default, 551 LIPPE [see Germany], 460 LoLLAND \see Denmark], 443 Lomhardo-Venetia \sce Italy], 476 LoMBOK \see Netherlands], 4S9 Lorraine \sec German Empire], 460 Louisiana, seizure of property to found jurisdiction, 67, 171 service on absent defendants, 531 proof of foreign judgments, 531 law of Las Siete Partidas, 531 Lubeck \sec Germany], 460 Lucerne, execution of foreign judgments, 511 Mahommedan Countries, judgments of consular courts in, 2 Malicious Prosecution or Suit, abroad, action for, 53, loi Marriage, the foundation of civil society, 272 capacity to marry, 272 depends on lex domuilii, 272 rule doubted, 272 with deceased wife's sister abroad, 272 absence of acieformel et 7'espectneux, 273 review of cases by Sir R. Phillimore, 274 lex r/i3w?V?7/2 to determine questions in relation to the marriage contract, 275 lex loci conti-actiis to determine questions as to the solemnities, 275 where it must take place to legitimise children born out of wedlock, 275 dissolution of \see Divorce] indissolubility of, old view as to English, 276 not a civil contract, 276 ceremonial validity, 278 not void if foreign ceremony not complied with unless void by foreign law, 278 of British subjects abroad, 279 in England to avoid provision of Code Napoleon, 281 Married Woman, to sue on judgment according to English rules, 207 character in which she sues according to foreign law, 207 Masters {see Chambers], reference to, in lunacy, 297 Merger {see also Doctrine of Non-merger], of cause of action in judgment, 23, 27 none of foreign judgments in English judgment, 206 Merits, of case will not be reopened, 31, 119 judgment must be on, 54 INDEX. 6oi Minor, foreign grant of probate to, 315 election of guardian by, 315 emancipated, 315 Minority, depends on lex doi/iiiilii, 271, 302 Mistake [see Error], Mobilia Seqtiuntiir Personam, 138 Moral Obligations, 9, 10 Moral Sanctions, 10 Morality, judge not to enforce, 10, 171 Mortgage, of land abroad, English order to foreclose, 66, 151 ,, ,, where consequence of foreign judgment, 68 said to be purely personal decree, 141 restraint of foreign order to foreclose, 81 action respecting, under rule of 1875, 228 Macao [see Portugal], 490 Madagascar [see France], 445 Madura [see Netherlands], 489 Magdalen Islands [see Quebec], 385 Magdalena, 540 Mah6 [see France], 545 Maine, statute of limitations, 531 service on absent defendants, 531 foreign companies, 531 Majorca [see Spain], 498 Malacca [see Straits Settlements], 420 Malta, assumed jurisdiction, 416 service on absent defendants, 416 service on agents, 416 Man, Isle of, judgment of, 2 English bankruptcy warrants enforced in, 372 included in ' British Colony ' in Lord Brougham's Act, 94 foreign debts recoverable in, 424 execution may issue on judgments of U. K., 424 proof of foreign judgments, 425 Manitoba, 392 Marian Islands [see Spain], 498 Martinique [see France], 445 Maryland, service on absent defendants, 532 foreign companies, 532 foreign probate, 532 proof of foreign judgments, 532 Massachusetts, service on absent defendant 533 602 INDEX. Mauritihs, French law prevails, 419 service on absent defendants, 419 criticised, 173 proof of foreign judgments, 420 Mayotte [see France], 445 Mecklenburg Schwerin [see Germany], 460 ,, Strelitz ,, Mediterranean Colonies, 415 Menado [see Netherlands], 489 Mesopotamia [see Turkey], 516 Mexico, code, 547 security for costs, 547 Michigan, Statute of Limitation, 533 Middle Island [see New Zealand], 399 MiGUELON [see France], 445 Minnesota, Statute of Limitation, 533 service on absent defendants, 533 Minorca [see Spain], 498 Mississippi, Statute of Limitation, 533 proof of foreign judgment, 533 Missouri, service on absent defendants, 534 Modena [see Italy], 476 Moldavia [see Roumania], 495 Molucca [see Netherlands], 489 Monaco, civil code, 488 effect of foreign judgments, 488 proof of foreign judgments, 489 MoNTSERRAT [see Leeward Islands], 411 Moravia [see Austria], 434 Mossamedres [see Portugal], 490 Mozambique [see Portugal], 490 Mysore [j^^ Indian Empire], 379 Natives, subject to jurisdiction by allegiance, 63 owners of property, jurisdiction over, 63 Natural Justice, violation of, under doctrine of comity, 6 wilful error, a violation of, 114 the defence against ' natural justice,' '167 old opinion, 167 Baron Bramwell's proposition, limiting it to procedure, 168, 170 put forward as reason for validity of any defence, 169 INDEX. ^03 Natural Justice — conlhuud. put forward as a defence itself, 169 cases do not support argumentative use, 170 defence alleging damages assessed on principle contrary to, 171 ,, foreign law to be contrary to, 171 reduced to assumed jurisdiction, 171 variance between laws of other states not the test of, 172 foreign procedure criticised on the ground of, 172, 160, 167 general rule, 173, 215 defence rested on violation of public law, 1 76 Negligence, judgment in case of, 44 Ne Litcs Immortalcs essent dum Liliganks Morlales sunt, 32 Nemo AUegans sicam Turpitiidinem est Audiendiis, 106 Nemo debet Bis Vexari pro Eadem Causd, 86 Nemo debet esse Judex in Propria Causd, 117 Neutrality, duties of neutral government, 262 general principles, 263 warrant of, 254 representation of, 254 New Assignment, 35 Non-Merger, doctrine of, 23, 27 effect of res judicata on doctrine, 38 two illustrations of consequences of, 43 Norman Law, colonies in which it prevails, 379 Notice, Absence of, defence rested on natural justice, 169, 173 Notice of Writ, omitted from most colonial statutes, 225 reason for English rule, 225 on foreigner in foreign territory only, 226 service of, 226 what writ to be used with, 226 Nuisance, within the jurisdiction by person abroad, 151 action to restrain common, by two plaintiffs ; security for costs, 193 Nul Tiel Record, the plea in action on foreign judgment, 36 Broom's definition of, 36 old practice, 105 considered generally, 105 Nullity \see Divorce] Natal, 413 Native States \see Indian Empire], 379 Nebraska, 518 Netherlands, constitution and jurisdiction of the courts, service on absent defendants, 490 604 INDEX. Neuchatel, procedure to obtain exequatur, 511 defences, 512 Nevada, Statute of Limitation, 534 service on absent defendants, 534 proof of foreign judgments, 534 Nevis \see Leewaru Islands], 411 foreign probates, 412 New Brunswick, defences in action on foreign judgment, 390 service out of jurisdiction, 390 action against non-residents carrying on business, 391 proof of foreign judgments, 391 decrees against absent persons, 391 service on companies, 391 proof of documents in actions against companies, 391 Newfoundland, service out of jurisdiction, 395 Judicature Act, 395 proof of foreign judgments, 395 New Guinea \see Netherlands], 489 New Hampshire, service on absent defendants, 534 New Jersey, wills of U. K. and colonies, 535 New South Wales, service out of jurisdiction, 395 proof of foreign judgments, 395 Australasian Creditors Act, 396 New York, security for costs, 519 Statute of Limitation, 519 service on foreign companies, 520 ,, on absent defendants, 520 ,, by publication, 521 trustee process, 522 proof of foreign judgments, 522 authentication of documents, 523 New Zealand, English Laws Act, 399 registration of judgments of H.M.'s dominions, 399 service out of the colony, 401 service generally, 401 proceeding without service, 401 security for costs, 403 proof of foreign judgments, 403 Australasian Probate Act, 403 Nicaragua, 540 NinssiNG \sec Ontario], 385 Norfolk Island \sce New South Wales], 395 North America, United States of, 518 INDEX. 605 North Carolina, Statute of Limitations, 535 service on absent defendants, 535 North-West Provinces [see Indian Empire], 379 North-West Territories, service on agent carrying on business for absent defendant, 392 service out of jurisdiction, 392 Northern Island [see New Zealand], 399 Norway, decision of Diocesan Court considered, 37, 171 constitution and jurisdiction of the courts, 504 effect of foreign judgments, 505 service on al:)sent defendants, 505 security for costs, 505 Nossi-Bii [see France], 445 Nova Scotia, effect of foreign judgments, 388 defences in action on foreign judgment, 388 service out of jurisdiction, 388 proof of foreign judgments, 390 foreign probates, 390 service by publication in probate suits, 390 Nova Zemla [see Russia], 496 Obligation, doctrine of, 4, 8 connexion of with principle of appeal, loi definition, Parke, B., 8 its effect on defence raising absence of jurisdiction, 129 imports a sanction, 10 principles involved in doctrine contrasted with those involved in doctrine of obligation and comity, 16 legal, ID moral, 10 temporary, 12 destruction of, li extinguishment of, by discharge in bankruptcy, 340 hypothetical case, illustrating doctrine, 346-7 Obligation and Comity, inception of doctrine of, 12 doctrine of, 15 principles involved, 15 ,, negatived by it, 16 is not open to Lord Blackburn's objections, 18 principle of defence dependent on, 103 Order, foreign [see Foreign Judgment] ex parte on shareholder, a judicial proceeding, 95 Orders in Council, extending to colonies, 377 Ordinances, condemnation proceeding on, 256 6o6 INDKX. Ordi nances— continued. used to guide the Court in condemning ship, 257 violation of foreign, to be valid in colony must be transmitted and registered, 387 Outlawry, old process of, explained, 134 when defendant had agent, 134 Ohio, service on absent defendants, 535 foreign companies, 535 Oldenburg [j^^ Germany], 460 Ontario, service out of the jurisdiction, 383 proof of foreign judgments, 384 judgments of United Kingdom and U. S., 384 Quebec judgments, 384 jurisdiction in certain districts, 385 Oran \see France], 445 Orange Free State, 413 Oregon, Statute of Limitations, 535 service on absent defendants, 536 effect of foreign probates, 536 Orissa \see Indian Empire], 379 Ottoman Empire \see Turkey], 516 OuDH \see Indian Empire], 379 Parliament, no power to legislate concerning foreign courts, 83 Parties \see Third Parties] to the suits, identity of, 45 to one of two concurrent suits may apply for injunction, 72 new, service on out of the jurisdiction, 152 to action on judgment a question of procedure, 207 case of a married woman, 207 character of depends on foreign law, 207 infants, persons of unsound mind, and bankrupts, 207 case of a French prodigal, 208 ,, company, 208 Partnership, where disputes referred to foreign tribunal, action will be restrained here, 70 bankruptcy of [j'<'<' Bankruptcy] Patent, copy of foreign, an act of State, 95 effect of foreign judgment on registration of, 213 ,, ,, ,, for damages for infringement, 213 infringment abroad, sale in England, 220 Peer, resident abroad, security for costs from, 191 INDEX. 607 Penal Laws, not recognised, 209 judgments proceeding on, disregarded, 209 also the consequences of them, 209 Perjury, where fraud equivalent to, no, in, n2 Personal Property, in foreign country, English order to assign, 66 in bankruptcy, administration of, service out of jurisdiction, 136 omitted from rules of 1883, 138, 228 rules of law in actions relating to depends on nature of action, 138 law of owner's domicil, how it affects, 174 no exemption from security for costs on account of, 192 general jurisdiction over foreign owners of, sometimes assumed, 144 attachment of goods and debts due, 144 foreign attachment and similar foreign rules, 144 judgment proceeding on such rules should be recognised, 144 trusts of, service in action for execution of, 145 Perversity, of Court [see WiLFUL Error], example of, in Italian courts, 116 Petition, under Settled Estates Act, 1S56, service out of the jurisdiction, 216 ,, Trustee Relief Act ,, ,, ,, 216 for restitution of conjugal rights ,, ,, ,, 227 Plaintiff, fraud of, 106 judgment for, abroad, 3 „ ,, how affected by doctrine of non-merger, 39 his reply to plea res judicata, 39, 105 position of, how it differs from that of defendant, 40 judgment for, satisfied by defendant, 42 ,, ,, not satisfied ,, 43 in concurrent suits, put to election, 70 reservations in his favour, 71, 77 terms imposed on, 82 protection against absent defendants, 173 absent from jurisdiction, to give security for costs, 186 in interpleader, security from, 192 joinder of, 152 effect of selection of tribunal, 161 joint, security for costs when one only abroad, 193 ,, ,, between themselves, 193 Pleadings, proof of foreign, 94 as to setting out judgment in, 54 service of, 225 Political Courts, judgments of disregarded, 211 Prescription, Statutes of, discharge under foreign, 106 to be distinguished from Statutes of Limitation, 200, 203 6o8 INDEX. Prescription, Statutes of — continued. they extinguish the claim, 200 effect of judgment proceeding on, 203 Prinia Facie Evidence, doctrine of, 23, 24 meaning of term, 25 Privies, to a suit, who are, 47 different kinds of, 47 Privy Council, appeal pending to, effect of, 53 grounds of appeal must be raised before, and not as defence in action on colonial judgment, 102, 120 construction of foreign laws l)y, principles by which it should be guided, 387 Prize Decisions, 252 Prize Money, action to recover share of, 258 Probate, questions of status involved, 307 wills of personalty, 307 the meaning of testacy, 307 capacity to make a will, 307 question whether papers are testamentary, 307 validity of wills as to form, 308 granted according to lex domicilii, 309 effect of foreign decisions on these matters, 310 foreign executor not recognised in England without English grant, 311 but his status recognised as existing abroad, 311 powers of court under s. 73 of Probate Act, 312 the grant under s. 73, 312 general application of theory of foreign judgments, 313 application of rule lex fori, 314 foreign grant to minor, 315 need not have been technical grant abroad, 316 notarial certificate, 316 case where foreign grant not followed, 316 case depending on penal decree, 317 suit will be suspended if proceedings in progress abroad, 316 revocation of English grant on subsequent foreign grant, 317 nature of auxiliary grant governed by lexfoj-i, 318 foreign limitations will be incorporated, 318 probate of codicils, 318 translations, 318 necessai-y to reduce assets into possession, 320 unnecessary to sue for foreign debt, 320 the administration of the estate, 321 rule as to succession, 322 wills of realty, 323 effect in U. K., 367 memorandum of domicil for re-sealing, 368 English practice and fees on re-sealing, 369 Irish ,, ,, ,, 369 ixni'-.x. 609 Scotch practice and fees on re-sealing, 370 Australasian Acts, 370 effect of, of H. M.'s dominions in certain colonies, 371 Probate Action, writ of summons out of Jurisdiction, 216, 222 Procedure [sci: Foreh;n Procedure] against non-resident defendants, examined theoretically, 19 laws of [sc-e Lex J-lvi] P roc L A M AT I O .\ S , proof of foreign, 94 Prodigal, by Frencli law may sue without liis consci! jiidiciaire in LngUmd, 208, 306 Profits, action for, of land al^road \see Rent] Proof, of foreign judgments, 94 Property \sce Real Property. Personal Property], jurisdiction over owner of, 63, 136, 166 suits with reference to, 63, 137 convenient to be tried in the country, 137 within jurisdiction, execution may issue on, 136 possession of, does not extend rule of residential jurisdiction, 137 exemption from security for costs on the ground of, 192 effect of appearance to save, 161 judgments as to, distinguished from judgments as to iiossession, 244 Proveable Error, 119 Public Policy \see Public Law] Public Law, question of defence rests on, 100, loi ,, ,, considered, 176 the defence raising violation of, 175 example in judgment on contract in restraint of trade, 176 judgment sustaining breach of English revenue laws a violation of, 2lQ Purchasers, effect of admiralty decisions, 252 Palaos \see Spain], 498 Palembang \see Netherlands], 4S9 Palestine \sce Turkey], 516 Panama, 540 Papua \scc Netherlands], 489 Paraguay, 540 Parma \see Italy], 476 Patagonia, East \^sce Argentine Confederaiton], 541 Penang \see Straits Settlement], 420 English law applicable to, 422 Pennsylvania, service on absent defendants, 536 Pkrim {sec Indian Empire], 379 Peru, effect of certain foreign judgments, 547 service on absent defendants, 547 2 R 6lO INDEX. Peru —coniimud. treaty with Bolivia, 54 8 form of rogatory commission, 548 Philippine Islands \sec Spain], 498 Poland \sce Russia], 496 PONDICHERRY {sce FRANCE], 445 Pontifical States \see Italy], 476 Portugal, constitution and jurisdiction of the courts 490 service on absent defendants, 491 foreign companies, 491 execution of foreign judgments, 492 effect of foreign judgments, 492 defences, 493 procedure after defences lodged, 493 proof of foreign judgn^ents, 494 of petitions, 495 of rogatoiy letters, 495 Prince Edward Island, service out of the jurisdiction, 393 proof of foreign judgments, 393 service on companies, 394 foreign probates, 394 Prince of Wales Island \see Straits Settlements], 420 Princes Islands [j^^'Portugal], 490 Prussia \see German Empire], 460 Puerto Rico \^sec Spain], 498 Code of Civil Procedure, 503 Punjab {see Indian Empire], 379 Qiiantitas, its meaning in Roman law, 46 Quasi-]\iT>\z\\\. Courts, effect of decision of, 117 Quebec, service out of the jurisdiction, 385 proof of foreign judgments, 385 laws as to companies, 385 French law in, 386 interpretation of, 387 Edict of 1663 constituting courts and law, 387 Roman Codes in force in, 387 English criminal law in, 388 Queen Charlotte Island \see British Columbia], 392 Queensland, service out of the jurisdiction, 397 proof of foreign judgments, 397 Australasian Creditors Act, 398 INDEX. Gil Real Action, object of in English law, 245 effect of foreign judgments resembling, 250 Real Property, 136 in foreign country, English order to convey, 66 restraint of English suit relating to realty abroad, 67 ,, foreign ,, ,, ,, 76 no general right to sue in respect of, 131 in bankruptcy, 136 suits in respect of to be determined by law of place, 137 jurisdiction assumed in such suits over absent defendants, 137, 139 ,, ,, in contracts relating to ,, 137 reason for limiting rule to, 138 suits as to rents and profits of, 138 judgment of country where situate respecting, universally recognised as to title, 139 but is not necessarily a judgment in rem, 249 and as to proceeds, 139 judgment of any other country respecting, not recognised, 139 abroad, English courts decline jurisdiction in suits respecting title to, 139 but will not decline it where action for rent, 140 old cases in which this rule was extended, 141 mortgage suits, 141 principle the same as in injunctions, 143 in England, effect of foreign judgment relating to, 143 in foreign country general ,, 174 exemption from security on account of, 192 must be unencumbered, 192 service in action for execution of trusts of, 145 effect of law giving absolute title to from adverse possession, 200 Reasons, appended to foreign judgments, 115 are to be treated as part of the judgment, 118 Receiver, appointment of, pending foreign suit, 72 leave to defend actions abroad, 84 of profits of lands abroad, appointment of, 142 Reciprocity, still a condition precedent in many countries to enforcing judgment, 429 distinguished from comity, 429 two views of, 429 extends to retaliation, 430 recently excluded from Brazilian Code, 431, 546 essential to comity, 7 Recognising, the, 32 Reconciliation, principle adopted abroad, 433 Reconvention [see Scotland] Record, error apparent in, 118 Record, Court of [see Court]. Registrar [P. D. & A. Div:] jurisdiction of in service out of jurisdiction, 218 6l2 IXDKX. Rkgistkation [av Patent] of judgments of U. K., 35S setting aside, 360 of inferior courts of U. K., 362 Release, as plea to judgment, 36, 105 partial, 106 Relief, identity of, 47 whole, to be prayed in an action, 49 Rent, of premises abroad, English action for, 67 of land in jurisdiction, service out of jurisdiction in action for, 138 ,, abroad, action in England for, 140 ,, in England, effect of foreign judgment for, 143 Reply, of plaintiff, 39, 41, 105 Representation, of neutrality, difference between and warrant, 254 Residence, subjects the person to jurisdiction, 62, 130 gives right to bring action, 63 consequence of change of, 63, 131 rule as to jurisdiction not extended by possession of property, 137 usual, rules respecting resemble those as to domicil, 189 what constitutes, 136 abroad, security for costs on account oflst'c Security for Costs], i5 Res Judicata, with reference to English decisions, 33. 35 full meaning of, 35 absolute doctrine, 36 Vinnius' definition of, 34 difference in its application to home and foreign judgments, 35, 41 the rationale of, 36 the extent of, 45 its application to the subject of injunctions, 68, 87 Res Judicata Exceptionem Parit Perpetuam^ 38 Res Judicata Pro Vcritate Accipitur, 33, 37 Respondent, security for costs never ordered from, 191 Restitution of Conjugal Rights, petition for, not to be served out of jurisdiction, 227 rule as to domicil in suits for, 283 Retaliation \see Lex lalionis] Revenue Laws, of foreign country not noticed, 210 judgments proceeding on, 2IO judgment sustaining breach of English disregarded, 21 Exchequer condemnations, proceed on, 264 Rogatory Letters [see Commission Rogatoire] replace formal action on judgment, 432 their place in foreign systems, 432 INDEX. 61 Roman-Dutch Law, colonies in which it prevails, 379 the law of Holland in Grotius' time is the, 406 construction of, 412 Dutch ordinances prior to 1815, 413 REUNION [see France], 445 Reuss [see Germany], 460 Rhode Island, service on foreign insurance company, 537 Rian [see Netherlands], 489 Rio de la Plata [see Argentine Confederation], 541 RoDRiGUES Island [see Mauritius], 419 ROUMANIA, constitution and jurisdiction of the courts, 495 effect of foj-eign judgments, 495 procedure, 495 RouMELiA, East [see Turkey], 516 Russia, constitution and jurisdiction of the courts, 496 the Civil Codes, 496 effect of foreign judgments, 497 proof of foreign judgments, 498 Saisie-arret, 144 Sanction [see also Auxiliary Sanction] • correlative to obligation, 10 inseparable from ,, 11 legal, 10 moral, 10 avoidance of, 1 1 classification of, 13 Markby's classification, I3n „ definition, 17 tdtiniate, when used, 13 ,, enforcement of criminal cases, 14 intermediate, when used, 13 ,, discretion as to enforcement of in civil cases, 14 an essential characteristic of sovereignty, 17 Satisfaction, as plea to judgment, 36, 42, 105 absence of, 43 partial, 106 Scotch Arrestment, 239 Judgment Extension Act does not apply to decreet on, 359 Scotch Decisions, on injunctions and lis alibi pendens, 89 on foreign lunacy, 300 on foreign bankruptcy, 344 Seal, of court, copy of judgments to bear, 94 where no signature of judge, 95 6 14 imjKX. Seal — continued. where worn, 96 where of another court, 95 Seaman, serving abroad, security for costs from, 188, 189 Security for Costs, plaintiff out of jurisdiction to give, 63, 185, 186 in suits between foreigners, 131 in action on foreign judgment, 185 applications to increase may be made, 185 example, after issue of commission, 186 plaintiff must have actually left the country, 186 usual residence abroad insufficient, 186 intention to go abroad insufficient, 186 never required if within the jurisdiction, 186 intention to reside here permanently not necessary, 186 residence here for conduct of action, 186 overruled cases on these points, 186 will be ordered on leaving the country, 187 rules applicable to subjects and aliens, 187 ordered after argimrent on demurrer, 187 order not rescinded on account of return, 185, 187 action will be stayed if not given, 187 or dismissed, 187 after temporaiy return will be again stayed, 187 ordered as of course if residing abroad, 187 nothing more than residence need be shewn, 187 if residence be permanent here, it will not be ordered on account of temporary absence, 187 therefore absence oi aniimis revertendi must be shewn, 188 ordered in action in for 7n& pauperis, 188 absence must be really temporary, 188 examples, 188 ordered where permanent residence abroad and occasional residence here, 188 case of British subjects on foreign service, 188 ,, ,, in ,, ,, 189 probability of prolonged absence may be inferred, 189 case of permanent residence of foreigner here, 189 ,, occasional absence of foreigner domiciled here, 189 ,, tradesman with two places of business, 189 ordered although action brought without plaintiff's knowledge, 190 will not be ordered where absence is involuntary, 190 examples of plaintiffs ordered abroad on duty, 190 but ordered where plaintiff had been transported, 190 will be ordered although application under Order XIV will be made, 190 unless on defendant's admissions, 196 ordered from foreign sovereigns in commercial suits, 190 not from ambassador residing here, 191 case of peers, 191 ,, executors, 191 ,, plaintiffs suing for another's benefit, 191 foreign company to give, 191 INDEX. 615 Security for Costs — continued. not from English company for working abroad, 191 in actions m rem, 191 never ordered for damages, 191 where defendant has counterclaimed, 191 in interpleader issues, 192 exemption on ground of property here, 192 must be unencumbered realty, 192 not money, 192 case of a company, 192 rule applicable to subjects and aliens, 193 not ordered from joint plaintiffs, one only being abroad, 193 one of several defendants may apply, 193 question between joint plaintiffs themselves, 193 where both plaintiffs abroad, 194 consolidated actions, 194 amount of security, 194 as to costs already incurred, 194 application for increased security, 194 when application to be made, 194 to be made directly after knowledge of absence, 194 what amounts to a waiver of the right, 1 94 after time to plead but before plea, 196 when new case presented by amendment, 194 appellants, 195, 196 affidavits, 195 application to opposite party necessary, 195 not required from plaintiffs residing in U. K., 196 part of the lex fori, 208 not required in proceedings on judgment of U. K., 359 „ from plaintiffs in U. K., 359 except in chancery suits, 360 Service, of order restraining action pending bankruptcy, 83 connexion between rules of, and rules of law, 137 on agent of absent defendant, 166 address for, 225 of summons in Admiralty actions, 263 Service out of the Jurisdiction, 133. Chapter VIII, 214 general procedure considered theoretically, 19 the only question to which natural justice applies, 171 of writ for injunction, 89, 151 when first introduced, 134 in action on foreign judgment, 136, 233 question considered theoretically, 233 against persons domiciled or ordinarily resident, 133 persons to whom rule applies, 136 cases in which ,, 136 in administration actions, where deceased domiciled, 136 in suits relating to realty in jurisdiction, 137 „ ,, stock ,, 137 ,, ,, other property ,, 137 ,, as to contracts relating to pro])crty, 137 6l6 INDIA". Skkvice out of the Jurisdiction — contiuudi. in suits for execution of trusts, 145 ,, in suits in respect of contracts, 145 j> )> >i ,, where some of the parlies only are abroad, 149 ,, ,, ,, of torts, 150 when person necessary or proper party to an action, 151 of third-party notices, 152 on new parties, 152 of notices and summonses on contributories, 153 principles as to general recognition of foreign rules, 215 English rules relate to writs of summons alone, 215 purely a statutory right, 216 of documents other than writs, 215 of common order to tax, 216 of petition under Settled Estates Act, 1856, 216 of endorsed counterclaim, 216, 221 of petition under Trustee Relief Act, 216 of summons under Companies Act, 216 of interpleader summons, 217 of petition for restitution of conjugal rights, 227 issue of writ for service abroad, 218 form of writ ,, ,, 218 two applications for leave to issue and serve, 218 jurisdiction of Masters and Registrars, 218 concurrent writs within and without, 219 when service allowed, 219 land in jurisdiction, 219 liabilities afilecting such lands, 219 slander of title of property within, 219 relief against domiciled persons, 220 administration of personalty, 220 trusts to be executed in England, 220 in contract, 220 as to injunctions, 220 infringement of patent abroad, goods being sent l)y post to England, 220 co-defendants, 220 rule as to Scotland and Ireland, 220, 221 joint effect of rules i {c) and 2, 222 )) J, I (Oj I (^) and 2, 222 ,, ,, I {/) and 2, 222 in Probate Actions, 222 affidavit for leave, 222, 223, 224 heading of, 224 judge to consider nature of suit, 223 propriety of service not to be raised in defence, 223 time for appearance, 224 foreign practice as to time, 224 order to provide for interrogatories if necessary, 225 J) ,, injunction ,, 225 address for service, 225 notice of writ, 225 iNni:x. 617 SK.RVirE Ol'T 0|- TIIF. Jl' KISIUC 1 ION— AV;//y/;/<'(/. reasons for English procedure, 225 case of married woman residing abroad, 225 English subject, 226 foreigner in British territory, 226 ,, foreign ,, 226 nrilinary writ may be issued to be served when possible, 226 how notice to be given, 226 what writ to be used, 226 Chancery practice, 226 affidavit of service, 227 on defendants added or substituted, 227 procedure in default of appearance, 227, 229 application to set aside service, 228 )) ,, issue of writ, 228 forms, 229 third-party notices, 230 substituted service, 230 ,, when personal service not effected abroad, 231 on corporations, 232 on agent of foreign companies, 232 Settlements, example of concurrent suits in respect of, 7 1 Settled Estates, service of petition out of jurisdiction, 216 Shareholder, ex parte order for contribution is a judicial proceeding, 95 rights against under certain colonial laws, 22 bill to be relieved against forfeiture of shares refused, 69 express submission to tribunal, effect of, 154 without 155 compulsory election of domicil, 155 abroad opposing petition to wind up, no security for costs ordered, 191 orders for calls on foreign contributaries, 152 jurisdiction over non-resident, 152 English procedure for enforcing calls, 153 case where domiciled or ordinarily resident, 154 English subjects, 154 foreign ,, 154 effect of foreign judgments against English, 154 agreement in articles as to submission to tribunal, 154 " >> !) foreign law, 155 effect of foreign law where no express submission, 155 consequence if not bound by that law, 156 Sheriff's Court \see Scotland] Ship, sentence of condemnation a title deed of, 253 Signature, of judge, where no seal to prove judgments, etc., 95 to be proved, 95 Signing Judgment, under Order XIV, 183, 190, 227, 229 6l8 INDEX. Slander, of title of property in juiisiliction, 219 action respecting, under rules of 1875, 228 Soldier, serving abroad, security for costs from, 190 Solicitor, service of order to tax out of jurisdiction, 216 Sovereign Authority, duty to enforce sanctions, ii, 14 auxiliary sanctions resident in, 17 Spanish Law, colonies in which it prevails, 379 Status, judgments on, Chapter IX, 269 are judgments in rem, 271 division of the subject, 271 of persons, different kinds of, 271 of a thing, judgments on, 244 Admiralty judgment in rem is not, 246 depends on foreign law, 207 personal, in bankruptcy, 348 not recognised internationally, 349 Statute, construction of Imperial, in colonies, 378 Statute Law, distinguished from Common Law, 8 Stock, within jurisdiction, service out of jurisdiction in respect of, 137 Strangers, to a suit, who are, 47 Subjects, obedience to summons necessary, when resident, 131 ,, ,, not ,, when not resident, 131 British, actions against, service under C. L. P. Act, 135 and aliens, no difference between under rules 1875, 135 absent, domiciled or ordinarily resident abroad, service on, 136 owners of property, jurisdiction over, 137 ,, ,, abroad, English courts will not entertain suits respect- ing the property between, 140 examples, 140 when required to give security for costs, 187 \see Security for . Costs] Submission \see Appearance] shareholder with express, to foreign tribunal, 154 law, 155 ,, without, 155 voluntary appearance, 161 involuntary ,, to save property, 161 selection of tribunal, 161 Substituted Service, of documents other than writs, 216, 231 is not another means of reaching absent defendants, 231 INDEX. 619 SuiisTiTUTED Service— r^w//«//^,/, joint construction of Orders IX and XI, 231 when personal service cannot be effected abroad, 231 Summaries of the English doctrine, Chapter I, 56 of injunctions, ,, II, gi of defences ,, IV, 178 of judgments in rem, „ IX, 266 of status, ,, X, 350 Superior Courts, in U. K., judgments of, 2, 358 St. Bartholomew {see France], 445 St. Christopher {see Leeward Islands], 411 St. Eustache \sec Netherlands], 489 St. Helena, English law in force in, 413 St. John {see Denmark], 443 St. Lucia, French law prevails, 409 service on non-residents, 409 proof of foreign judgments, 410 service on agent of absent defendant, 410 Ste. Marie \see France], 445 St. Martin \see Netherlands], 4S9 St. Pierre \see France], 485 St. Thomas \see Denmark], 443 St. Thomas \see Portugal], 490 St. Vincent, service on absent defendants, 40S proof of foreign judgments, 408 Saint-Gall, execution of foreign judgments, 512 Saba {see Netherlands], 489 Salsette {see Portugal], 490 Salzburg {see Austria], 434 Sandy Island {see Heligoland], 425 Santa Cruz {see Denmark], 443 Santander, 540 Sardinia {see Italy], 476 Sark {see Guernsey], 424 in Lord Brougham's Act, 94 Saxe-Altenburg {see Germany], 460 Saxe-Coburg-Gotha, ,, Saxe-Meiningen, ,, S axe- Wei mar, ,, Saxony ,, Schaffousen, procedure to obtain exequatur, 513 Schaumburg-Lippe [jtY Germany], 460 Schwarzburg ,, Schwytz, procedure to obtain e.xfquatur, 513 620 INDEX. Scotland, Lord Brougham's Act docs not apply to, 96 proof of foreign and colonial judgments, 96 service on defendant in, out of English jurisdiction, 220, 221 practice under Judgments Extension Act, 362 effect of orders in U. K. under Companies Act, 364 ,, ,, Bankruptcy Act, 371 ,, probates, administrations and confirmations in U. K., 367 practice in granting certificate to English or Irish probates, 370 fees ,, ,, ,, „ 370 effect of decreets in England and Ireland, in superior courts, 2, 358 effect of English and Irish judgments in inferior courts, 362 j^ractice under Companies Act, 365 ,, ,, Bankruptcy Act, 372 right of foreign plaintiff to sue, 238 ' Forty days rule,' 238 resident defendant, 238 non „ ,, 238 Edictal citation^ ' furth of Scotland,' 239 old form, 238 new form, 238 three kinds of registers, 238 letters of supplement, 238 . : where two or more defenders, 239 in what cases allowed, 239 immovables, 239 moveables, 239 libel, 240 reconvention, 240 not applicable to status, 241 ceases on death, 241 Scotch arrestment, 239 jurisdiction originis cause!, 240 Jurisdiction of Court of Session, 241 Jurisdiction of Sheriffs' Courts, 241 where party in England or Ireland, 241 service at Market Cross abolished, 241 Seelaxd [see Denmark], 443 Senegal [see France], 445 Senegambia [see France and Portugal], 445, 490 Seychelles Islands [see Mauritius], 419 SiAM, 421 Siberia [see Russia], 496 Sicily [see Italy], 476 Sierra Leone, English law and procedure in force in, 414 judgment of Vice Admiralty court considered, 27, 43 Silesia [see Austria], 434 Sind [see Indian Empire], 379 Singapore [see Straits Settlements], 420 Slavonia [see Hungary], 435 SocoTRA [see Indian Empire], 379 ixDi:x. 621 SOLEURE, procedure to obtain exequatur, 513 South Australia, Judicalure Act, 398 proof of foreign judgments, 399 Australasian Creditors Act, 399 ,, Probate Act, 399 South Carolina, service on absent defendants, 537 South Georgia \sec Falkland Islands], 425 Spain, constitution and jurisdiction of the courts, 498 commercial relations between subjects and foreigners, 499 effect of foreign judgments, 499 defences, 500 procedure, 500 law of hypothec, 501 service on absent defendants, 501 treaty, with Sardinia, 502 Spitzburgen \see Russia], 496 Stewart's Island {see New Zealand], 399 Straits Settlements, service out of the jurisdiction, 420 criminal jurisdiction, 421 Styria \see Austria], 434 Sumatra {see Netherlands], 489 Sumba ,, Surinam ,, Sweden, constitution and jurisdiction of the courts, 503 effect of foreign judgments, 504 service on absent defendants, 504 security for costs, 504 Switzerland {see also the Cantons] constitution and jurisdiction of the courts, 505 federal and cantonal law, 505 treaty with France, 458, 506 Syria [j-c-ir Turkey], 516 Territory, jurisdiction limited by, 63 residence within gives right to bring actions, 63 ,, ,, necessitates obedience to summons, 63, 130 jurisdiction in respect of property within, 136 realty, 139 personalty, 144 Third Parties, how they are affected by a judgment in personam, 47 ,. ,, ,, in rem, 249 service of notice on, out of jurisdiction, 152, 230 distinction between third-party procedure and interpleader, 230 622 l.XDF.X. Time, what period of limitation in action on fcjiciyn jmlynicnt, 203 ,, ,, ,, ,, on English judgment, 204 for appearance, 224 foreign rules as to, 224 Tort, jurisdiction in matters of, 150 ,, in respect of the act, 150 ,, ,, ,, person committing tiie act, 150 Trade, judgment on contract in restraint of, 176 Transit In Rem yiidicatatn, 27 Transitory Cause of Action [jifi? Cause ok Action], 131 Translations, two methods of obtaining probate of, 319 re-translations, 319 Treaty, replacing comity, 13 proof of, 94 violation of, condemnation proceeding on, 256 between foreign countries, defences laid down in, 431 ,, France and England, as to companies, 456 ,, France and Sardinia, 456 ,, France and Russia, 457 ,, France and Baden, 457 ,, France and Spain, 458 ,, France and Switzerland, 458 ,, Spain and Sardinia, 502 ,, Bolivia and Peru, 542 ,, Uruguay and Brazil, 548 Tribunal de Commerce, its place in foreign systems, 433 Trustee, example of concurrent suits by, 7 1 service of petition under Relief Act, out of the jurisdiction, 216 of Scotch settlement, action against, 222 Trustee Process in New York, 144 Trusts, service out of jurisdiction in action for execution of, 145 Tahiti {see France], 445 Tasmania, service out of jurisdiction, 398 Inter-Colonial Judgments Act, 398 ,, Probate Act, 398 Tenasserim \see Indian Empire], 379 Tennessee, Statute of Limitations, 537 foreign companies, 537 proof of foreign judgments, 538 Tessin, Civil Code, 513 execution of foreign judgments, 513 IXDKX. 623 Texas, old law with regard to foreign judgments, 103 proof of foreign judgments, 53S effect ,, ,, 538 Thunder Bay [st'c Ontario], 385 TliURGOVIA, execution of foreign judgments, 513 Timor [see Netherlands], 489 TiMUR Island [j^^ Portugal], 490 Tobago, charter, 409 service out of the jurisdiction, 409 proof of foreign judgments, 409 ToLiMA, 540 ToRTOLA [see Leeward Islands], 41 1 TouAMATOu [see France], 445 TouBOUAi [see France], 445 Transkei [see Cape of Good Hope], 412 Transvaal, 413 Transylvania [see Hungary], 435 Trieste [see Austria], 434 Trinidad, Spanish law prevails, 407 service out of the jurisdiction, 407 proof of foreign judgments, 407 Tripoli, actions between natives and Europeans, 517 Turkey, jurisdiction over foreign owners of property in, 516 effect of foreign judgments, 517 service on absent defendants, 517 Turks Island [j-^^? Jamaica], 404 service on absent defendants, 405 Tuscany [see Italy], 476 Two Sicilies [see Italy], 476 Tyrol [see Austria], 434 Underwriters, effect of Admiralty prize decisions on, 253 question between, and assured, 254 United States of Colombia, 540 United States of North America [see the several Slates], 518 Unterwalden, procedure to obtain exequatur, 514 Uri, procedure to obtain exequatur, 514 Uruguay, civil code, 548 convention with Brazil, 548 624 IXDKX. Vexation, by concurrent suits, prevented, 64, 75 enquiry whether concurrent suits vexatious as of course or not, 78 VicK- Admiralty Court, judgment of, 42, 213 Valais, procedure to obtain excqtialnr^ 514 Van'couver's Island \see British Columbia], 392 Van Diemen's Land \sce Tasmania], 398 Vaud, execution of foreign judgments, 514 service on absent defendants, 515 Vavitou Islands {see France], 445 Vermont, Statute of Limitation, 53S Venezuela, status of foreigners, 548 effect of foreign judgments, 548 procedure, 549 leave to serve writ issued by foreign country, 549 Victoria, service out of the jurisdiction, 396 Australasian Creditors Act, .396 proof of foreign judgments, 396 foreign probates, 397 Virgin Islands [j^;'^ Leeward Islands], 411 Virgin Sorda \jee Leeward Islands], 411 Virginia, Statute of Limitations, 538 absent defendants, 538 proof of foreign judgments, 539 Vorarlberg \see Austria], 434 Wages, nature of actions for, 87 Warrant, of neutrality, difference between and representation, 254 in English bankruptcy enforceable in H. JNI.'s dominions, 372 Wife, domicil of, is husband's, 279 except when he creates one to found jurisdiction, 279 retains her marriage domicil, 279 Wilful Error, 114 Wills, suits respecting, examples of identity, 49 ,, ,, concurrent suits, 77 Witness, examination of abroad \see Commission] Writ of Execution, may issue on property within, although owner without jurisdiction, 136 INDEX. 625 Writ of Inquiry, old practice under, 227, 22S Writ of Summons [av Notice of Writ. Service out of the Juris- diction], service of, out of jurisdiction : Order XI, 88 — 92, ,, ,, ,, C. L. P. Act, 1852, s. 18, 135 may be specially indorsed in action on foreign judgment, 154- ordinary indorsement in ,, ,, ,, 154 obedience to, required from all residents, 63, 130 consequence of cessation of residence, 131 obedience to, not required from owners of property merely, 63, 136 service of documents other than, 215 indorsement of service whether required, 227 specially indorsed, practice under, when served out of jurisdiction, 227. 229 application to set aside issue and service, 228 Waldeck [see Germany], 460 Wales, documents admissible in same degree as in England and Ireland, 96 Wallachia [see Roumania], 498 West African Settlements, 414 West Indies, British Colonies, 404 Danish „ 443 Dutch ,, 489 French „ 445 Portuguese ,, 490 Spanish ,, 498 Western Australia, Judicature Act, 399 proof of foreign judgments, 399 Australasian Creditors Act, 399 ,, Probate Act, 399 Windward Islands, court of appeal of, 407 Wisconsin, Statute of Limitations, 539 service on absent defendants, 539 Wurtemburg [see German Empire], 460 ZUG, procedure to obtain exequatur, 515 Zurich, constitution and jurisdiction of the courts, 515 execution of foreign judgments, 1515 service on absent defendants, 516 2 S 626 REFERENCES. STORY.— CONFLICT OF LAWS. on doctrine of Comity (§ 598)» 7 Extradition, an example of Comity (§ 626), 14 ' the Recognising ' (§ 59S), 33 on doctrine of non-merger (§ 599a), 27, 32, 39n. (§ 599b), 32 (§6i8h), 32 ,, error (§§ 607, 6i8d), 129 ,, judgments on Revenue Laws (§ 257), 211 ,, ,, relating to land or immoveables (§ 591), 139, 249 ,, jurisdiction in respect of contracts by civil law (§ 531 et seq:), 149 ,, assumed jurisdiction (§ 546)? 164 ,, rule 'lexforV (557, et seq:), 197 ,, statutes of limitation (§ 577, et seq:), 199 ,, statutes of prescription (§ 582, et seq:), 200 ,, statute of frauds (§§ 262, 435, 631), 202 „ acquittals (§ 592), 265 ,, status (Ch: iv), 271 ,, wife's domicil (§ 136), 279 ,, personal disqualifications (§ 104), 305 ,, capacity to make a will (§ 465), 310 „ wills of realty (§§ 474—478), 324 ,, effect of English bankruptcy adjudication abroad (§§ 403—409), 331 ,, respect to be paid to Foreign Judgment disregarding English Assign- ment in Bankruptcy (§ 409), 331 ,, id: if recovered by a foreigner, 334 ,, final discharge in bankruptcy (§ 342), 342 id: (§ 348), 343. 347 ,, ,, ,, as to nationahty of parties (§ 340), 341 WESTLAKE.— PRIVATE INTERNATIONAL LAW. on non-merger, 27 ,, actions on original cause of action, 30 ,, mutual damage, 44 ,, lis alibi pendens, ,, pendency of appeal, 53 ,, concurrent suits, 69 ,, maxim mobilia sequunttir personam, 138 ,, jurisdiction ex delicto, 150 ,, judgments on Revenue Laws, 210 ,, substituted service, 231 ,, wills of realty, 324 ,, effect of foreign judgment disregarding English assignment in bank- ruptcy, 331, 336 ,, id: if recovered by a foreigner, 334, 336 ,, final discharge in bankruptcy, 342 Page 162 in side margin. The reference to Edwards v. Warden should be i App: ca: 281. and to Oulton v. Radcliffe, L. R. 9 C. P. 189. Page 10.— The following footnote should be appended to the first paragraph : ' Even Obligation, the term of highest dignity and importance in all juris- ' prudence, is not defined in English law, and is used by our lawyers with reckless ' inconsistency.'— Sir Henry Maine, Lecture on Roman Law and Legal Edu- cation, p. 364. PKINTED BV WILLIAM CLOWES AND SONS. LIMITED, LONDON AND BECCLES. Seventh Edition, royal 8vo., cloth, ^Ss. ROBSON'S LAW OF BANKRUPTCY. Containing a Full Kxpositioii of the Principles and Practice of the Law. I'.y Gi;or(;k Young Robson, Esq., Barrister- at-Law. " We know of no better treatise on this branch of our law, and, looking to the number of editions through which it has passed, our opinion is apparently shared by the profession." — Law Times. Second Edition, demy 8vo., 800 pages, cloth, 30J. THE MERCHANT SHIPPING ACT, 1894. With Copious Notes and References to decided Cases, and an exh;uistive Index. By T. E. Sckutton, M.A., LL.B., K.C., Author of " Chartered Parties and Bills of Lading," &c. The aim of the author has been to render the Act, which is the longest ever passed by Parliament, accessible and intelligible both to lawyers and commercial men ; and by a copious index containing over 1600 entries, and by constant cross references tu other parts of the Act, to make it as easy to find what is wanted as is possible in an Act of 748 clauses and 22 schedules. *,* This Act consolidates all the previous enactments of Merchant Shipping. Royal i2mo., cloth, i2j. 6d. THE LONDON BUILDING ACT, 1894. With Notes and Cross References and an Appendix containing such existing Statutes as still affect building operations within the Administrative County of London ; also the Bye-Laws, Regulations and Orders uf the London County Council and of the Commissioners of Sewers of the City of London. By W. 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Including the American Copyright Act, the Berne Convention, the Consequent Order in Council and Cases to Date. By Thomas Edward Scrutton, M.A., LL.B., K.C, Author of "Charter Parties and Bills of Lading," &c., and Lecturer in Common Law to the Incorporated Law Society. " Mr. Scrutton's book is well written and has been carefully revised, and will be found a safe and acceptable guide through the mazes of the existing law." — Law Journal.^ "We think it is not only the easiest, but the most useful and practical work on copyright." — Law Quarterly Review. Second Edition, demy 8vo., cloth, 10s. THE LAW OF NUISANCES. With Statutory Appendix. By E. W. Garrett, M.A., of the Inner Temple, Metropolitan' Police Magistrate. " Every matter that, in the eyes of the law, is regarded as a nuisance is considered. . . . 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With an Ap- pendix of Precedents of Leases, Forms and a Digest of Cases relating to the Inhabited House Duty. By Walter Clode, Barrister-at-Law, of the Inner Temple ; Associate of the Surveyors' Institution ; Author of" The Law and Practice of Petition of Right." Royal Svo., 700 pages, cloth, £3 2s. INFORMATIONS (Criminal and Quo Warranto),MANDAMUS, and PROHIBITION. By HLs Honour Judge Shortt, Author of " The Law Relating to Works of Literature and Art (Copyright, Libel, txc.]." " A very useful contribution to the lawyer's library." — Law Jmirnal. "Learned and accurate, and must displace all earlier text-writers on the same subject." — Law Times. 7, FLEET STREET, LONDON, E.C Ut bUU I HtHN HbOilUNAL LIbHAHY l-ACILITY AA 000 855 846 2 Wm. CLOWES AND SONS, Limited, LAW PUBLISHERS, Demy 8vo., cloth, los. 6d. PETITION OF RIGHT (The Law and Practice of), under tlie Petitions of Right Act, i860. With Forms and an Appendix containing the Laws Regulating Proceedings by Petition of Right in Ireland, Scotland, and certain Colonies and Dependencies. By Walter Clode, of the Inner Temple, Barristcr-at-Law. Crown 8vo., cloth, js. 6d. WITNESSES (The Practice relating to), in all matters and proceedings, Ci\il anil Criminal, at, after, and before the Tri.il or He.iring, both in the Superior and the Inferior Court,. By Wai.tkk S. Sichel, M.A. (late Exhibitioner of Balliol College), of Lincoln's Inn, Barrister-at-Law. Second Edition, thoroughly revised, demy 8vo., cloth, 18^. APPEALS FROM THE CONVICTIONS AND ORDERS OF JISTICICS. Including Appeals by Special Case to a Superior Court ; the Justices' Protection Act, 1S48 ; and Review of Justices' Decisions Act, 1872. By John G. Tkottek, Assistant Clerk to the Lord Mayor and Justices of the City of London, Mansion House, London. Demy 8vo., cloth, zos. THE LAW OF HUSBAND AND WIFE. By Charles Crawley, M.A., of Lincoln's Inn, Barrister-at-Law, late Fellow of Downing College, Cambridge, and Author of " The Law of Life Insurance." "This book is the most comprehensive and valuable one on the law of husband and wife with which we are acquainted." — Athcnceum. Demy 8vo., cloth, 30J. ; cash price, 24J. (postage td.). THOMSON'S COMPENDIUM OF MODERN EQUITY. Primarily for the use of Practitioners in the Chancery Division — also for Bar Students and Candi- dates for Honours at the Law Institution. By Andrew Thomson, Esq., B.A., LL.D., Barrister- at-Law ; formerly Lecturer in Equity to the Incorporated Law Society ; and afterwards Professor of Equity to the Inns of Court, Author of a treatise on the Equity Practice of the County Court (with Precedents). Third Edition, revised, demy 8vo., cloth, 20J. MOORE'S PRACTICAL FORMS. Containing a variety of Useful and Select Precedents required in solicitors' Offices relating to Convey.