, ■ ■ j ■ ■. ■ " ^^^ 1 - r -i ----.'■ I ■■" ■ I'y-m Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDQE D0UQLA5S BOARDMAN F(R9T DEAN OF THE sni^OOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Cornell University Library KD 7121.P63 ^breian ludqments :thek 3 1924 021 725 134 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® FOREIGN JUDGMENTS THEIR EFFECT IN THE ENGLISH COURTS. FRANCIS TAYLOR PIGGOTT, M.A., LL.M. OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. 'A Theory ought, I think, to bide its time, until the free conflict of discovery, argument and opinion has won for it recognition ." Professor Tyndall. LONDON : STEVENS AND SONS, 119, CHANCERY LANE, 1879. Digitized by Microsoft® LONDON : STEVENS AND RICHARDSON, PRINTERS, 5, GREAT QUEEN STREET, LINCOLN'S INN FIELDS, W.C. Digitized by Microsoft® TO LORD BLACKBURN Digitized by Microsoft® Digitized by Microsoft® PREFACE. 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 sufificiently account for what may appear the somewhat ai'bitrary 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. 4, Essex Court, Temple, June, 1879. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS. PAGE Introduction . ... . . xxvii CHAPTER I. THE ENGLISH DOCTRINE. A. The Enforcing 3 doctrine of Comity . 4 „ Obligation. 7 „ Obligation and Comity - i6 1 B. The Recognising 23 General Doctrine of Res Judicata. 23 a. The Rationale 26 lies Judicata 27 absolute doctrine 29 modified „ 32 ' not absolute ' , 35 doctrine of non-merger 39 „ primA facie evidence 42 concurrent suits, lis alibi pendens and injunctions 50 8. The Extent 61 Statutes of Limitation . 66 Proof of Foreign Judgments , 68 Practice in Foreign States .... 70 Summary 71 Digitized by Microsoft® VIU TABLE OF CONTENTS. CHAPTER II. DEFENCES. PAGE Conduct of Plaintiff . . . . . . . 79 Proceedings of Court 80 I. Jurisdiction. A. over tke person. General Proposition — . . . 82 1st: modification — submission to tribunal 82 2.nd: „ assumed jurisdic- tion. Order XI. rules i and la. 88 — 91 \st : variation — contract made abroad 87 ind : „ — temporary alle- giance ... . . 87 yd: „ — alien . . . 88 B. over the thing. General Proposition — . . 92 Exceptions: 93 II. Error. A. on facts or merits . .... 96 1*. 'proveable' 96 /3. ' apparent ' . . -97 B. in its own law ... . . 100 C. in foreign law ..... 103 D. in its own procedure . . . . 106 III. Fraud. wilful error . ' 107 integrity of the Court 112 Judgments not recognized . . . .114 Revenue Laws . . . . . . 114 IV. Natural Justice. old doctrine 115 doctrine of ' proceedings ' . . 116. 118 absence of defendant . . . . 120 a. intentional 120 /3. unintentional . . . .121 English method of citation to foreigners 128 Orders II. XI. and LIV. . . 129 V International Law 130 Digitized by Microsoft® TABLE OF CONTENTS. IX PAGE Application to sign Judgment under Order XIV. . .131 Statutes of Limitation . . . . . . . 131 Nul Tiel Record . . . . . . . .133 Interest on Foreign Judgments 133 Costs 135 Summary ... 136 Note on the Summary — Judicial misconduct . .139 CHAPTER III. JUDGMENTS IN REM. 142 I4S 147 149 157 159 160 161 161 163 The English Doctrine A. Judgments referring to land or immoveables B. Admiralty decisions in prize. a. as regards underwriters .... Neutrality . . .... 5. „ purchasers .... C. Admiralty decisions not in prize . Principles for determining if a judgment in rem . . .... D. Condemnations in Exchequer Acquittals Summary ... .... ■ CHAPTER IV. STATUS. I. Marriage. Divorce. Legitimacy . . .167 i. effect of foreign sentences between foreign subjects 167 ii. effect of sentence of one country dissolving marriage solemnized in another country . .168 assumed jurisdiction, as by Scotch Courts, Yo. Shaw \. Gould 171 note on Mrs: Bulkley's case in French Cour de Cassation 181 II. Lunacy 184 Lunacy Regulation Act, 1853 .... 185 III. Guardianship 18S Digitized by Microsoft® X TABLE OF CONTENTS. PAGE IV. Probate .192 Minority . . . 196 20 & 21 Vic : c. 77. . . . . 197 V. Bankruptcy . . . . 200 i. Adjudication and assignment. u. effect of foreign adjudication in England 201 e- effect of English adjudication abroad 204 ii. Injunctions pending proceedings . . . 209 iii. Final discharge ; effect on the bankrupt's obligations. (past part:) and the Italian dovere, from ' the Latin debere. It is, therefore, equivalent to id quod ' debitum est, rather than to obligatio.' Digitized by Microsoft® OBLIGATION. 1 1 Chapter I. This dictum of Lord Abinger much resembles that ' example from Lord Mansfield, of the tendency to confound ' positive law with positive morality, and both vi^ith legisla- ' tion and deontology ' — which Austin quotes. ' By the p. 224. ' English law, a promise to give something or to do some- ' thing for the benefit of another is not binding without 'what is called a consideration, that is, a motive assigned ' for the promise, which motive must be of a particular ' kind. Lord Mansfield, however, overruled the distinct ' provisions of the law by ruling that moral obligation was ' a sufficient consideration. Now moral obligation is an ' obligation imposed by opinion, or an obligation imposed ' by God : that is, moral obligation is anything which we ' choose to call so, for the precepts of positive morality are ' infinitely varying, and the will of God, whether indicated 'by utility or by a moral sense, is equally matter of dispute. ' This decision of Lord Mansfield, which assumes that the ' judge is to enforce morality, enables the judge to enforce ' just whatever he pleases.' Now, every obligation imports a sanction : Obliga- A moral obligation, a moral sanction : — a legal gaTcUon. obligation, a legal sanction. Let us for one moment revert to the two phases of the doctrine of obligation which we have been considering. In the first, we found the obligation of obedience to the judgment out of the country- was based upon an all-pervading Jus Gentium : — there must also exist a Jus Gentium sanction ; the power of enforcing which resides in the Sovereign Authority of all states under the influence of this Jus Gentium. In the second we have the foreign obligation with its foreign sanction : but when the obligation leaves the country of its origin, and comes into England, its sanction remains behind ; and coming before the English Courts, it is regarded by them as a moral obligation, and is clothed with a new sanction^ one of English Common Law ; the power of en- Digitized by Microsoft® 12 OBLIGATION. Sanction and obli- gation are insepar- able. The juri- dical unit. Con- clusion, Destruc- tion of ob- ligation, and avoid- ance of sanction. forcing which resides in the Sovereign Authority of Chapter I. England. But these notions are altogether inconsistent with the proposition that every obligation imports a sanction : This proposition implies that not only is a sanction connected with every obligation that is created, but that it is inseparably connected with it. The obligation cannot exist without its sanction ; nor the sanction without its parent obligation. To shift one, is also to shift the other ; to destroy, or avoid one, is also to destroy or avoid the other. Can then either obligation or sanction be shifted from one jurisdiction to another ? The judgment is pronounced in the foreign state : — the sanction comes into being in the foreign state : — but the sanction, that is, the liability to evil, not only resides in the foreign state, but is enforced by the Sovereign Authority of that state ; and by that Sovereign Authority alone : The enforcement is of the essence of the Sovereignty ; it cannot be taken out of it : Therefore, since the enforcement cannot be removed, neither can the sanction ; neither can the obligation : The whole system, Judgment, Obligation, Sanction, Enforcement of the Sanction, forms the unit, which is indivisible. Therefore, we arrive at the conclusion, that a judgment debtor of a foreign state, leaving that state, leaves behind the legal obligation (using this term in its strict sense) of obedience to that judg- ment : and that coming into this country, he cannot be considered a legal debtor here, but only a legal debtor of and in the foreign state. How then is the obligation destroyed; that is, how is the sanction to be avoided .' There are two ways : — first : by obedience to the judgment. Digitized by Microsoft® OBLIGATION. 13 Chapter I Secondly : by leaving the country, (that is, having once been within the territory : — the case of a defendant resident abroad, being subject to the jurisdiction of the Court by submission or other- wise need not be noticed at this stage). This destruction and avoidance, which will of course be revived by a return to the country, will continue so long as the defendant's absence continues. But it is manifestly unjust that such a simple inception expedient of avoiding the sanction should be doctrine tolerated : some remedy must be found : — The of'ot>liga- ' •' tion and debtor has fled to another state ; that state must comity.' be asked to enforce a sanction which is foreign to its authority ; it must be asked to lend the aid of its Courts to do so ; this will be a great convenience to the country whose sanction is to be enforced ; in return, the position being reversed, it also will enforce the sanctions of the other state. This, though a purely theoretical view of the case, does in fact take place in some cases. Sir R. Phillimore — International Law — Vol. IV. Philli- MDCCCCXXX : ' General Axiom — No state allows a foreign "1"^^ ^ , , . , , , . , . . . ^ General 'judgment to be executed withm its territory, except under Axiom. ' the authority, and by order of its own tribunal. The ' practice of states varies, whether the judgment is executed at the instance of the party, {simple demande or requete) : ' or by formal requisition of the Foreign Tribunal, (co»t- ' mission rogatoire).' Now this process of inter-state arrangement being repeated between these and other states, would in time become an inter- state, or interna- tional custom : and, being a custom, which is essentially courteous ; and being reciprocal ; it is a custom which falls under the head of Inter- national Courtesy or Comity : in other words, what is generally understood by Comity of Nations : Digitized by Microsoft® 14 OBLIGATION— SANCTION. Woolsey. Int: Law, §24. Further conclu- Treaty. Sanc- tions classified. Markby, p. 241. Sanction in civil cases. Sanction in criminal cases. the widest definition of which is — ' all those praise- Chapter I. ' worthy acts of one nation towards another which ' are not stricti juris : i.e., all that the refusal or with- ' holding of which, although dictated by malevolence ' is not an injury, and so, not a ground of war.' To the conclusion at which we have already arrived, that the judgment-debtor of one state cannot be regarded as a legal debtor in another, we may therefore add ; that a state where such debtor is found, will lend its aid to enforce the sanc- tion ; or rather, will clothe the foreign obliga- tion with a sanction, which will stand in the place of the one the foreign state is powerless to enforce. [Between some states, there exist treaties by which they mutually enforce the judgments of each other : It is easy to see how Comity is here re- placed by Treaty.] Nor is this practice unreasonable or impolitic : — for sanctions are intermediate ; which merely com- mand a person to do something, with the prospect of incurring certain further consequences if he do " not : and ultimate ; the evil consequence of disobe- dience to the command, (whether it be in the form of a law, or of a judgment), which it is supposed the person would be desirous of avoiding. In the Courts of Civil Procedure, the sanction made use of in the first instance is always the one we have termed intermediate : the ultimate sanction of penalty, or rarely imprisonment, is only made use of as the last resource. But in the Courts of Criminal Procedure, the ultimate sanction is in- variably used. In the case therefore of an escaped criminal, it would be unreasonable and impolitic to ask a foreign state to enforce the ultimate sanction of im- prisonment or death ; no benefit could accrue there- Digitized by Microsoft® SANCTION. 15 Chapter I. from, for the man has committed no crime in the foreign state : it is in the state to which he is subject that he has committed the offence ; and it is in that state, and by the Sovereign Authority of that state alone that the penalty can be inflicted, and the wrong to that community be vindicated. Moreover, Austin I. the sanction in criminal cases is enforced at the ^' discretion of the sovereign. In order therefore that such vindication may be Extradi- effectually consummated, there have been made Extradition Treaties between states. By these Treaties, not only are escaped criminals handed over to their governments, but also suspected persons, in order to take their trial. This result might also have been arrived at, by Con- 1 I /• 1 1 -sidered the same process as before : thus the recovery of theoreti- criminals may have been effected, first, by mutual '^^^^^' arrangement ; which, having solidified into a rule of International Comity, has finally given way to Treaty. But, on account of the paramount im- portance to the community of each state, of having its own violated laws vindicated before its eyes, Treaties have become almost universal between civilised states. Indeed, Story asserts that the practice has ' beyond question, prevailed as a f^''P' § ' matter of Comity, and sometimes of Treaty, be- ' tween some neighbouring states ; and sometimes ' also between distant states having much inter- ' course with each other.' (Conflict of Laws, § 626.) But in civil cases there is no such necessity ; the Sanction wrong is not against the community at large, but cases? against an individual. The sanction, though re- sident in the Sovereign Authority, is enforced at the instance and discretion of the injured party. So long as he has redress, it is a matter of little moment how or where he obtains it : the com- Digitized by Microsoft® 1 6 OBLIGATION AND COMITY. tnunity has really no interest in the matter, for Chapter I . although the remote or paramount end of a civil sanction is the prevention of offences generally, yet it does not affect the interests of the com- munity that the redress was obtained through the instrumentality of another state, whose course of action has been guided by the principles of an In- ternational Courtesy. The pro- Our conclusion may now be stated in the form stated. of ^ proposition : — States lend their aid mutually to enforce each other's judgments : — There is a legal xibligation existing against the debtor in the state where the judgment has been pronounced ; by reason of the debtor's absence from the jurisdiction of its Courts, the state is unable to enforce the sanction. By virtue of the Comity of Nations, a foreign state, to which the debtor has gone, will clothe the obligation deprived of its correlative sanction, with another sanction auxiliary to it ; and by so doing will endue it with the power it has lost. This I have called the doctrine of OBLIGATION AND Comity. A third Before fully considering this new doctrine, its suggested, advantages may be briefly stated : but we must bear in mind that a doctrine, however advan- tageous, should not be accepted, if it is based upon erroneous principles. Its chief It will be observed to combine the earlier and the later doctrines : adding to the broader inter- national principle of Comity, the precision of the legal principle of Obligation. Summing up the arguments that have been used, the principles upon which the doctrine is founded are as follows : — advantage. Digitized by Microsoft® THE DOCTRINES REVIEWED. 1 7 Chapter I. a. A Court of competent jurisdiction has pro- Principles nounced a judgment :— '^\^;^^ therefore, an obligation and sanction have doctrine of Obligation arisen. and i. The defendant is out of the jurisdiction of the Comity. Court : the sanction is absolutely fixed in the Sovereign Authority : — therefore, the Sovereign cannot enforce the sanction. c. The defendant is within the jurisdiction of a Foreign State : The Comity of Nations has created a second, or auxiliary sanction, resident in the Foreign Sovereign Autho- rity : — therefore, this sanction may be enforced against the defendant, at the discretion and instance of the judgment cre- ditor. And the principles which it negatives are those con- Principles tained in the two views of Lord Blackburn's theory, tives: ' above enunciated : viz : — a.'' A Court of competent jurisdiction has pro- '^'"^^ "«w of doctrine nounced a judgment : — of Obliga- 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 this Jus Gentium : The same Jus Gentium sanction which has once been created, is also resi- dent in the Foreign Sovereign Authority : — therefore this sanction may be enforced C Digitized by Microsoft® THE AUXILIARY SANCTION. Second view of doctrine of Obliga- tion. ■ Doctrine of Comity not en- tirely negatived. The auxiliary sanction. against the defendant, at the discretion Chapter I . and instance of the judgment creditor. Or— rt." A Court of competent jurisdiction has pro- nounced a judgment : — therefore a debt and universal duty to pay- have arisen. 3" The defendant is out of the jurisdiction of the Court : — therefore he carries with him the debt and duty to pay. c.^^ 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 any- where creates an ' English Common Law ' sanction, resident in the Foreign Sovereign Authority : — therefore this sanction may be en- forced 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 dis- cussed : c remains to be more fully considered. A second or auxiliary sanction is created : — this at first sight seems to create the difficulty, that we have a sanction resident in and enforced by a Sovereign Authority, created by its Courts, but without a corresponding obligation created in the jurisdiction of that Authority : In reality, this is not so : the word ' auxiliary ' tends to remove the apparent difficulty. Digitized by Microsoft® THE AUXILIARY SANCTION. jn Chapter I. Now, a sanction is understood to reside in the Sovereign Authority of the State : 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 political society, Markby, is called Sovereignty. ^' ^' The origin of this aggregate of powers is that An habitual obedience to the government which is ^^^^(P rendered by the bulk of the community. The between Law habitual obedience is partly the consequence of proper custom, and partly the consequence of prejudices, ['"^adonal It is this obedience that causes the government to Law. exist in the form of a monarchy, or of a popular S^ ' ^"^^"' government, according to the tendency of these p. 302 and prejudices. This obedience is also bottomed in the "° principle of utility ; — for positive moral rules are uncertain, scant, and imperfect : Hence the neces- sity 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«j/-government would merely recommend or utter laws of imperfect obligation (in the sense of the Roman Jurists). But however perfect and universal 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 citizens of this great Family are the Governments of the various States. There is no Supreme Sovereign Authority, for all the members are considered equal : but there is a body of rules to which all profess habitual obedience, called C 2 Digitized by Microsoft® 20 THE AUXILIARY SANCTION. International Law, the ultimate sanction of which is Chapter I. war: and a lesser body of rules, simply regulating the courteous intercourse between the members, which all do habitually obey, called the rules of Inter- national Courtesy, or the Comity of Nations ; these rules have not war as their ultimate sanction. The origin of this qziasi-sovereignty (the personality of which does not exist) is also habitual obedience rendered by the bulk of the Community of States. This obedience is partly the consequence of custom (but not of pre- judices), and is also bottomed in the principle of utility. Now we have seen that a power resides in every member of the Community of States, to enforce the judgments of other states, by means of an auxiliary sanction which has been created by theComity of Nations. Result of The result is, that not only is an oblisfation the theory. , , . , . ■' , . , . 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, the Sovereign Authority of that State clothes with an auxiliary sanction— enforceable 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 appUca- origin, is always enforceable without further applica- tion to the tion to the Courts : in this case, application to the Courts of _,.,„.„ . the Courts of the Foreign State is necessary, in order Digitized by Microsoft® OBLIGATION AND COMITY. 21 Chapter I. to establish to the satisfaction of the Sovereign Foreign Authority in whom the auxiliary sanction is ^''^'^■ resident, that the foreign obligation does in fact exist. The doctrine of Obligation and Comity is there- fore, we venture to think, complete in all its parts : The theory of the auxiliary sanction created by Comity ; and the theory of the existing obligation both appear to be sound : There is no difficulty in at once adopting Lord Blackburn's definition of the essentials to a good defence, because the The i^rin- practical part of the doctrine of obligation exists a^ence to entire. Therefore, as before stated, we take those '^^ action, essentials to be, 'to negative the existence of the ' obligation ; or to excuse the performance of it.' — What these defences may be, will be considered in the next Chapter. Lastly ; is the doctrine of Obligation and Comity Comity open to the objection taken by Lord curately^ Blackburn to the earlier doctrine of Comity pure defined, J ■ , , ' tribunal has clearly jurisdiction over the matter, ' and both parties being before the tribunal which ' adjudged between them, that is a bar to a sub- ' sequent suit in this country for the same cause.' In favour of this proposition we have also the Cammell dictum of Martin, B., in Cammell v. Sewell, deliver- 27 L. J :' ingthejudgmentofthe Court: (Pollock, C.B., Martin, Ex; 447. 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 Digitized by Microsoft® 28 RES JUDICATA. Martin, B. rent. The conclusion of the judgment was as Chapter I. follows : — 'But, assuming that the judgment is not ' one in the nature of a judgment in rein, 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 plain- ' tiffs, and we think they are conclusively bound by ' it : interest rei publiccz ut sit finis litiuni! There is That this should be so, does not seem inconsis- paren't *^'^'- '^^'^ principle ; for, all that has been advanced stretch of as regards the finality of an English decision seems to extend to apply equally to a foreign decision : That there resjudi- may be an end of controversy, seems as applicable foreign when the first adjudication upon it is that of a judgments, poj-eign Court as when it is that of an English Court: And there is no apparent stretch of the prin- ciple, that one Court of Justice presumes another Court of Justice to have acted rightly, to say, that when the decisions of that other Court come before it in any way, it will extend to them also the appli- James, L. cation of its Common Law doctrine res judicata * prqneritate habetur. In the words of James, L.J. : — ' It would be impossible to carry on the business of ' the world, if the Courts in every country refused to ■ act upon what had been done by other Courts of ■ competent jurisdiction.' {re Davidson's Settlements^ re The doctrine was very fully expounded in the smu-''^ ^ argument for the respondent in the case of Hamil- ^^"t^- ton V. Dutch East India Co: in the House of Lords, Eq: 383. 1732. The following argument was accepted by '^'*^^'^" Argument the House : — 'For that the cause had been judged East India of Lmd? ' ^"'^ determined by the Courts of Malacca and f^j.^. p Hamilton ' Batavia, their sentences could not be reviewed by C- 264. \fsTlndia ' the Court of Admiralty in Scotland, which has no C" : ' jurisdiction over these Courts, and that this plea Digitized by Microsoft® RES JUDICATA. 29 Chapter I. < or exception (of res judicata) is, by the law of ' nations, available in all Courts, it being an estab- ' lished maxim quod res judicata proveritate kabetur. ;4t ' And though, when a decree pronounced in one ' country is sought to be carried into execution in ' another, the judge whose interposition is demanded ' ought not to afford it, without a previous inquiry ' 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 satisfac- ' tion under it, from restitution, which it does with ' the same effect, whether such restitution is sought ' in the nation where the sentence is pronounced, or ' in any other : it being a perpetual rule without ' any limitation that res judicata exceptionem parit ' perpetuam! If this be the true doctrine, then also in the case Conclusion of foreign judgments, the plea res judicata, the doctrine, record existing as the defendant states, is absolute ; and the plaintiff has no reply beyond the right of putting the record itself in issue. Mr. Starkie's view seems to coincide with this doctrine : — Starkle. ' The 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 vexa- ' tious. 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 "i 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 'nothing more than an ex parte statement and proof?' — [Starkie — 'Law of Evidence,' I. p. 273.] Sir R. Phillimore's conclusion is 'that the exception res Sir R. ^judicata ought to be in all, and is in most states, admitted Philh- Digitized by Microsoft® 30 RES JUDICATA. Int:Law, 'as a complete bar to a second litigation upon the subject Chapter I. MDoccoxxxv. (jQ ^g adjudicated upon,' certain conditions being fulfilled. 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 6i . The learned author and judge stands midway between the two doctrines, asserting MDocccxLin. that the plea of res judicata should be admitted as a cotnplete bar, but only on certain conditions ; some of which condi- tions 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 not belonging to the country, either by birth or domicil, or temporary resi- dence, unless he has property or incurred some liability in the state. III. The Foreignermust have been fairly heard accord- ing 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. This con- Let US Consider if this conclusion is consistent con- with results we have already arrived at : — When an sidered. action is brought upon the foreign judgment we have ventured to assert as the true principle, that to a certain extent only, the foreign decision shall be received as absolutely binding; in the Chapter on Defences to the Action, we shall ascertain as accu- rately as possible, what this extent really is : but so far as we have gone already we find that our Courts have established a difference between English and Foreign decisions, when they come to be enforced ; the English judgment produced by the plaintiff is synonymous with Truth; the Foreign Digitized by Microsoft® RES JUDICATA. 3 1 Chapter I. judgment will be taken as true, so long as the obligation that has arisen upon it abroad is not negatived. But, when the defendant produces it, the plaintiff having brought an action on the original cause of action, if the doctrine just dis- cussed be accurate, the full force of the maxim res judicata pro veritate habetur is to apply; that is, the Foreign Judgment, will be, in its effect, identical with an English Judgment under similar conditions; in other words, it will be a synonym for Truth. The use of well-known algebraical symbols may perhaps The result make this clearer. of the The Judgment, produced by plaintiff in an action upon stated it : — alge- an English Judgment = Truth. braically. a Foreign Judgment = Truth, if the obli- gation is not negatived. The Judgment produced by defendant : — Foreign Judgment = Truth ^= Enghsh Judgment. Now, the very same judgment may come before The same the Court in either way: and the result is, that if the l^^f "'™' defendant produces it as a defence to an action on receive the original course of action, it is absolute ; but, if treatment. the plaintiff exercises his alternative right and brings an action on the judgment, then it is not absolute ; for the defendant may negative the exist- ence of the obligation, or excuse the performance of it. It may be said, that in the one case, the plaintiff voluntarily submits the judgment to our Courts ; whereas in the other, the defendant is obliged to appear, and only uses it as a means of self-defence ; and that for this reason, more favour should be shewn Phillips V. to the defendant : This indeed appears to be the 2 h" B?: ground of Chief Justice Eyre's judgment in Phillips 402. Digitized by Microsoft® 32 RES JUDICATA. An as- sumption for the sake of argument. The assump- tion modified. Analogy between rules as to English and Foreign judgments V. Hunter cited above ; but the same remark applies Chapter i. with equal force to the case of an English judgment: indeed, with greater ; for an action on an English judgment though allowed, is not looked upon with any favour : yet here, there is a fixed rule, which is applied to either case : The record, irrespec- tive of the manner in which it comes before the Court, imports credit and verity. Now, for the purpose of making the doctrine of Foreign Judgments parallel with the doctrine of English Judgments ; let us assume, that the same rules hold for recognising, as for en- forcing the Foreign Judgment : The as- sumption however, is not quite correct, because there is a distinction between the cases of the plaintiff and the defendant : it is this ; the plaintiff selected, and therefore submitted to the jurisdiction of the Foreign Tribunal ; the defendant was obliged to appear before it, or suffer judgment by default: Therefore, although the defendant may be able, where judgment has gone against him by default, to negative the existence of the obligation, by proving that the Foreign Court had no jurisdic- tion ; the plaintiff cannot do so, for he himself created the jurisdiction. The assumption must therefore be slightly modified: — the same rules hold for recognising as for enforcing a Foreign Judg- ment ; with this exception, where it is raised by way of defence, the plaintiff cannot negative the jurisdiction of the Foreign Court. Again, let us consider what analogy exists between the rules for English and Foreign Judg- ments : For the English Judgment, the rule is, that it is res judicata, and therefore absolute : For the Foreign Judgment ; the rule is, that the obligation may be negatived. The difference may Digitized by Microsoft® RES JUDICATA. 33 Chapter I. ^g ^j^us explained : All those defences, which in the case of a Foreign Judgment may be used by the defendant to negative, or excuse, are, in the case of an English Judgment, grounds for appeal, and are therefore not admitted as a defence to the action on the judgment ; for, on those same grounds, if established, the Court would have set the judgment aside, or would have reversed it : But it is otherwise with a Foreign Judgment ; the English Courts do not sit on appeal from the Foreign Courts, nor can they reverse the decision ; therefore, as will be seen, they will not admit de- fences, which, as to the merits of the case, would be fit ground for appeal in the Foreign Country ; but only such as are not grounds for appeal there, or, if they were, would not be entertained there. Let us examine now, by an elementary alge- braical process, whether our assumption holds good : — There is an English Judgment : — k ^^^ 1 if produced by the plaintiff, — a certain rule test of obtains. f.=»"™P- tion. 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 Eng- lish to a Foreign Judg- ment : i.e., algebraically. Digitized by Microsoft® 34 Stated in algebraical symbols. The doctrine has been modified. The doctrine of non- merger. ALGEBRAICAL TEST OF ASSUMPTION. The Foreign rule is to the English rule, as the Chapter I. Foreign Judgment is to the English Judgment. Therefore, if produced by the defendant, — the same rule obtains. This may be made very plain by the use of Algebraical Symbols. Thus :— Let, English Judgment = E. Foreign Judgment = F. rule for English Judgment = ri rule for Foreign Judgment = r2 produced by plaintiffs p. produced by defendants d. Now and Exp = ri Exd=rri or Exd = Exp. FXp = r2 but r^: ri = F : E .-.—=— .•.Fxd = ExdX — E rj ri =ri.-2. .-. Fxd=r2 or Fxd = Fxp. Let us take another view of the case. If this doctrine formerly existed : namely, that a Foreign Judgment, the defendant producing it, was abso- lutely binding on our Courts ; the plaintiff produc- ing it, was not absolutely binding, but the existence of the obligation might be negatived by the defen- dant ; it has certainly undergone some modifications ih recent cases — although the distinction between enforcing and recognisirig the judgment has not always been kept perfectly clear. — The arguments haVfe been somewhat of this nature : — It has been held that there is not a merger of the original cause of action by reason of the judgment pronounced by the Digitized by Microsoft® THE DOCTRI>fE OF NON-MERGER. f hapter I. Foreign Court : but that the plaintiff has his option of suing in our Courts either on the judgment, or on the original cause of action. — (This doctrine has been adopted in the preceding argument ; and for the present we must assume its correctness, and postpone any discussion of it). ' Now,' says Story, ' if the original cause of action is not merged in a ' case where the judgment is in favour of the f'"''-^' § S99a. ' plaintiff, it is difficult to assert that it is merged by ' a judgment in the Foreign Court in favour of the ' defendant' (Conflict of Laws, § 599^.) It must be noticed however, that whereas the judgment which comes before our Courts for recognition may be either in favour of the plaintiff or the defendant ; a judgment for the defendant could hardly ever come here to be enforced. Bankoj In the case of the Bank of Australasia v. Hard- traiasia v. ^^'.^i the defendant pleaded a judgment already Harding, recovered in the Supreme Court of New South a P.' 345. Wales. Wilde, C.J., said: — 'This judgment '\s wude, ' pleaded by way of merger or extinguishment of J' ' the cause of action. Now, if a Court of competent 'jurisdiction has given judgment, that judgment at ' the place where it was given is conclusive against ' the parties, if not appealed against. At that place ' it must be taken as a merger or extinguishment. ' But in all the cases on the effect of a foreign 'judgment, it has been treated only zs primA facie ' evidence of the cause of action. — The judgment ' may be a merger in the Colony, because it is ' conclusive there ; but when it is sued on in another Country, it is only primd facie evidence of the debt. For these reasons, I think the plea is bad.' Now, since there is no merger, and the plaintift coming to our Courts sues, at his option, either on the original cause of action, or on the judgment ; it D 2 35 Digitized by Microsoft® ,6 THE DOCTRINE OF NON-MERGER. Conse- follows, that if he choose the former alternative, Chapter I. doct'dne°of the foreign judgment being in his favour, the plea res judicata implies there is a merger. According to this view of the case therefore, the plea is inadmissible, and the foreign judgment is no bar to the action. The defendant's plea may be more than merely judgment recovered; he may plead also satisfac- tion ,of the judgment. On the authority of Barber v. Lamb, and in accordance with the Barbery. most elementary principles of justice, there can 29 l. J: be no doubt that such a defence would be good : C. P. 234. that judgment recovered, and payment, is an extinguishment of the original cause of action : In this case then, where the plea res judicata is coupled with satisfaction, it is absolute— (the dictum of Keating, J., in Barber v. Lamb, as to the plaintiffs reply will be noticed when the question what may be replied is discussed : this, it may be observed, is the difficulty lying at the foundation of this enquiry). non- merger: res judi- cata a bad defence. Unless coupled with satis faction. Judg- ment for defendant. Story's argument. Res judi- cata bad defence. Conclu- sion from doctrine. Let us consider lastly, if the case is in any degree altered by the fact of the judgment having been in favour of the defendant. Now, following Story's argument, judgment in the foreign Court for the plaintiff does not merge the original cause of action here : Therefore, judgment in the foreign Court for the defendant does not extinguish the original cause of action here. So, in this case also, should the plaintiff bring an action on the original cause of action, since the foreign judgment is no bar, res judicata cannot be pleaded. The conclusion is therefore, that, except where the judgment has been satisfied, — with regard to foreign sentences, the plea of res judicata has not the same effect as it has with regard to English sentences ; but that the plaintiff may reply to it. The question arises, What 1 Digitized by Microsoft® THE PLAINTIFF'S REPLY. ,7 Chapter I. We have seen that in the case of enforcing a foreign judgment, the principles of defence are : — to negative the existence of the obligation, or excuse the performance of it — the several defences being reserved for future discussion. Now, when the defendant sets up the judgment What are by way of defence, What are to be the principles of principles reply .? — Once it is conceded that a reply is to be °^^^'" allowed, it is difficult to understand wny, mutatis reply ? mtitmidis, these same principles of defence should not again apply : and this seems to have been Barbery, the view taken by Keating, J., in Barber ^i. Lamb 29 L.J: above referred to: — ' Our decision,' he says,' does j?"^flftK^,y. C. P. 234. ' not interfere with those cases which have decided ' that a foreign judgment may be examined into ' under certain circumstances. If there were facts ' which would have deprived the foreign Court of ' jurisdiction, they might have been replied.' But the principle of Chief Justice Erie's judgment in Phillips V. Phillips v. Hunter is, that the jurisdiction of the 2 H. Bl: Court cannot be attacked by the plaintiff, because 4°2- he himself has chosen the tribunal, and thus sub- mitted to it : — ' It seems to me to be analogous to Erie, c.j. ' the case where parties have referred the question ' in dispute to an arbitrator and he has made an ' award, (and the sum which he has awarded has ' been duly paid according to the award). It would ' be contrary to all principles 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 suggested that the words ' and got what was awarded,' though lending strength to the principle from the facts of the The prin- particular case, may be removed without diminishing submission the truth of the doctrine, — Submission to the tri- t° tribunal cannot be bunal cannot be withdrawn i>y the party submittmg. with- drawn. Digitized by Microsoft® 38 THE DOCTRINE OF NON-MERGER. A prin- ciple of reply ob- tained by a modifica tion of principle of de- fence. for plain, tiff. Taking the case therefore simply ; if the judg- chapter i . ment pleaded be for the defendant, we have the plaintiff by his reply, negativing the existence of the obligation (a negative one), or excusing the performance of it : if, by his reply, the plaintiff attacks the Court's jurisdiction, the defendant rejoins, a submission on the plaintiff's part to the tribunal. Here, then, a modification of the principle of defence, will serve as the principle of reply : (still bearing in mind that the judgment is for the defendant) : — The plaintiff may by his reply, nega- tive the existence of the obligation, or may set up an excuse for the performance of it ; but may not, Judgnient jjj gQ doing, attack the jurisdiction of the Court. dant. If the judgment pleaded be for the plaintiff, the Judgment process is as follows : — The plaintiff brings an action on the original cause of action, producing the foreign judgment as primA facie evidence of the debt : or, the defendant produces the judgment, pleading res judicata ; and the plaintiff replies that there is no merger of the cause of action in the judgment. Now, up to the present time, it will be observed that we have, on authority, assumed that the original cause of action abroad is not merged in the Foreign Judgment ; and that the plaintiff in this country may therefore proceed either upon that original cause of action, or upon the Foreign Judg- ment itself. Before going further, this doctrine needs some examination. First, as to the authorities against it. We have seen that to admit the plea res judicata, implies that there is a merger of the original cause of action in the judgment. Those judges, therefore, who have held this plea admissible, have also by implication held, that there is a merger. The doctrine of non- merger exarnined. Autho- rities against it. Digitized by Microsoft® THE DOCTRINE OF NON-MERGER. 39 Chapter I, Phillips y. Hunter. 2 H. Bl: 402. Ricardo v. Garcias. 12 CI: &Fin: 368. Plummer V. Wood- burne. 4 B. & C. 625. Frayes v. Worms. 10 C. B: N. S. 149. Becquet v. M'Carthy, 2B. & Ad: 951. Duchess of King- ston's Case. 2 Sm: L. C. 813. Smith V. Nicolls. 7 Sc: 147. We have already cited Eyre, C.J., in Phillips V. Hunter; Lord Campbell, CJ., with Lord Lynd- hurst, L.C., in Ricardo v. Garcias, and others : We have now to cite authorities in favour of a slight modification of the same principle: — that res judicata A slight is admissible, that is, that the foreign judgment tion of the is conclusive in England, if it is (proved to be) ^ioctrme of conclusive in the country where it was pronounced. y«<^z^ai;a. Thus Bayley and Holroyd, J.J., in Plummer v.Sayiey,y. Woodburne : — ' The difficulty we have had is, that y. ' 'we are ignorant of the law of S. Cristopher, 'whether a judgment in that Island would be ' conclusive or not. It would be hard to hold that ' that which is not conclusive there should be con- ' elusive here. The plea should state that by the ' S. Cristopher law such a decision would be final ' and conclusive there.' With this Erie, C.J., agrees, in Frayes v. Worms : — ' There is no allegation here -S>-/.f, 'that the judgment in the Court of San Francisco, 'assuming it to be in a proceeding between the same parties, was final and conclusive.' And Lord Tenterden, C.J., in Becquet v. M'Carthy \s somewhat to the same effect : — ' The French law prevailed in ^d'- .. ^ r^ 1 Tenterden, ' Mauritius then : and the French Court there was c.y. ' much more competent to decide questions arising ' on that law than we can be.' (We see the full force of this judgment where the original cause of action is one depending on the Foreign law.) But on the other hand, there is this statement Autho- in Smith's Leading Cases, in the able note to the favour of Duchess of Kingston's Case — p. 8 1 3 — ' Foreign j udg- !' ^ 8?Xf " ' ments certainly do not occasion a merger of the Leading ' original ground of action.' The cases cited in support, are the following: — Smith v. Nicolls: where, to an action of trover the defendant pleaded, that he being in the jurisdiction of the Vice- Cases. Digitized by Microsoft® 40 THE DOCTRINE OF NON-MERGER. Tindal, C.J. Note on Smith V. NicolU. Vaitghaii^ 7- [Query'] Ld. Ellen- borough, C.J. Admiralty Court of Sierra Leone, the Flaintify Chapter I. recovered a judgment against him in that Court for the same cause. The plea was held ill : and Tindal, C.J., after giving as the ground on which a judgment recovered in an English Court bars the plaintiff from any further action, to be, that the original nature of the debt or damage is changed, and that there comes into existence .a higher remedy; continues: — 'This Vice- Admiralty Court ' in a Colony is not a Court of Record. If the 'judgment has not altered the nature of the rights ' between the parties, why is the plaintiff to be ■ deprived of the right which every subject has to ' sue in the Courts of this country for the debt or ' damage. The original ground of action is not ' extinguished and merged between the parties. 'When it becomes necessary to enforce foreign 'judgments in this country, the plaintiff has his ' option either to resort to the original ground of ' action, or [sue] on the judgment recovered.' (Although the last sentence points to the existence of such a general doctrine, the judgment seems to proceed on the ground that the decision before the Court was of a foreign Court of inferior jurisdiction, and therefore not entitled to respect.) And in the same case, Vaughan, J. : — ' In order ' to bar an action here, the judgment in the Colonial ' Court must be final and conclusive between the ' parties : which Hall v. Obder and Plummer v. plummet ' Woodburne shew clearly it is not.' Y- ^'""^' •' burne. Hall V. Obder: — 'Foreign Judgments strictly 4 B. & C. ' speaking are not, to be considered on the same ^^' , r ■ - T • ^ Hall V. tootmg as judgments m our own Courts of Record ; obder. ' they are but evidence of the debt, and do not bar or "^*^'' ' stay an action on simple contract' (Lord Ellen- borough, C.J.) Digitized by Microsoft® THE DOCTRINE OF NON-MERGER. 4I ChaTftei I. Ba?ik of Australasia v. Harding: — During the Bank of argument Wilde, CJ., expressed a doubt whether Wilde, lasia^T '* followed ' that when the original cause of action '•'■ Harding. ' is merged, that must be treated as conclusive C P.34S. 'everywhere,' and in his judgment he said : — 'The ' judgment may be a merger in the Colony, because ' it is conclusive there : but when sued on in another ' country, it is only prima facie evidence of the ' debt.'— and Creswell, J. : — ' There is nothing to prove that the Cressweli, ' original contract is extinguished or merged, or ■'■ 'any higher remedy given, or that the right of ' action is taken away.' Talfourd, J., also concurred ; but Maule, J., Taifourd, doubted. Maule, J. Bank of Bank of Australasia v. Nias : — lasiay. The judgment of Lord Campbell, C.J., hardly Nias. supports the proposition. Q.^.z%^.Kelsall V. Marshall: — Cressweli and Crowder, Crma/^// Kelsallv. JJ.^ held that they were bound by the previous crcm others is considered res judi- {Sardinian and Papal States) ) cata : and also of any other state in which the rule prevails of allowing the force of res judicata to judgments of another country (with or) without demanding reciprocity. France : the judgment appears to be always examined, unless by Treaty arrangement it receives additional force. Belgium : a foreign judgment is considered res judicata ; — except a French judgment ; by the Law of Sept : 9 — 1814. Sweden ) The judgment is received as evidence of the Spain \ original obligation in the suit on the original Norway ) cause of action. United States : generally the same rules as in England. Digitized by Microsoft® n SUMMARY OF THE ENGLISH DOCTRINE. Definition, i The preliminary division into ' The Enforcing ' and ' The Recognising.' 2 The Enforcing. 3 The conflicting doctrines examined : 3 Doctrine of Comity defined. 4 Authorities in its favour : 4 its uncertainty and apparent limits ; and vagueness. 5. 6 Examination of ' Comity ' — reciprocity is essential. 6 Doctrine of Obligation defined. 7 Authorities in its favour : 7 its capacity of sharp definition. 8 Examination of terms used in Lord Blackburn's definition : ' Common Law.' 8 equivalent to fus Gentium, 9 or to English Common Law. 10 consequence of these principles. 9. 10 'Obligation.' 11 Obligation and sanction inseparable; the enforcement is of the essence of sovereignty. 12 conclusion : — a legal debtor can only be so considered in his own country. 12 methods of destroying obligation and avoiding sanction, obedience to judgment. 12 leaving the country. 1 3 the consideration of this last method is the inception of the Doctrine of Obligation and Comity. 13 Interstate arrangement of enforcing judgments for each other tends to the formation of an Interstate Comity. 13 conclusion : — a state where a legal debtor of another state is found, will clothe the foreign obligation with a sanc- tion standing in the place of the foreign sanction, during the debtor's residence in the state. 14 Digitized by Microsoft® 72 SUMMARY OF THE ENGLISH DOCTRINE. Treaty may replace Comity. 14 Sanctions classified : — 14 this interstate arrangement is not unreasonable or im- politic : 14 difference between civil and criminal cases : 14 Extradition considered theoretically. 15 in civil cases the wrong not being against the community at large, it is not affected by redress being obtained in another state : x 5 states lend their aid mutually to enforce each other's judgments. 16 Doctrine of Obligation and Comity stated. 16 The English Sanction is auxiliary to the Foreign Sanction : its advantage in combining the former doctrines : 17 the three doctrines reviewed in juxtaposition : 17 examination of the auxiliary sanction. 18 an analogy traced between Law proper and International Law : 19 result of the theory : — a bare obligation exists which is clothed with the auxiliary sanction. 20 Lord Blackburn's principles of defence applied. 21 ' If what is loosely termed a comity' is no longer a term of reproach to be applied to a theory involving the principle of Comity. 21 the theory applied to the consideration of procedure against absent defendants. 22 The logical deduction from the principle is, that the courtesy which in reality is exchanged is jtis for jus, rather than lex for lex. 22 The Recognising. 23 The English doctrine of res judicata stated, following Knight Bruce, V.C. 23 considerations involved in the doctrine, ' The Rationale ' and ' The Extent.' The Rationale. 26 The old doctrine extends the English principle of res judicata to foreign judgments : 27 there is no apparent stretch of principle in this extension. conclusion from absolute doctrine : 28 Plaintiff has no reply beyond putting the record itself in issue. 29 Digitized by Microsoft® SUMMARY OF THE ENGLISH DOCTRINE. 73 consideration, whether this is consistent with former results : 30 by an algebraical method, a modified doctrine is arrived at, which is a logical deduction from former results, coupled, for the sake of the argument, with an assumption. 32 — 34 conclusion from modified doctrine : — a foreign judgment should receive the same effect in an English Court, whether an action is brought upon it, or whether it is pleaded in bar to an action. 33 The absolute doctrine has been modified in practice, — iry the doctrine of non-merger ; i. e., that the plaintiff has his option of suing in our Courts, either on the judgment, or on the original cause of action. 3^ this is diametrically opposed to the plea of res judicata, which implies that there is a merger of the original cause of action in the judgment. 36 but the judgment is a bar to the action if coupled with satisfaction. 36 consideration of case of judgment for defendant : 36 effect of doctrine of non-merger in the plaintiff's case is that judgment for the defendant does not extinguish the original cause of action here ; and, therefore, that res judicata cannot be pleaded. 36 consideration of plaintiff's reply. 37 submission to a tribunal cannot be withdrawn. 37 a principle of reply obtained by a modification of principle of defence : 38 the modification being, that the plaintiff may not attack the Court's jurisdiction. 38 The authorities against the doctrine of non-merger include those in favour of the plea res judicata being admissible: 38 Authorities in favour of a modification of the doctrine of res judicata, — if the judgment is conclusive abroad it is conclusive here. 39 Authorities in favour of the doctrine of non-merger as given in Smith's Leading Cases. 39 — 41 difficulty of ascertaining precisely the effect of the doctrine : 42 the solution is found in the doctrine oi prima facie evidence : but is very unsatisfactory. 42 Some confusion is apparent between an action on a judg- Digitized by Microsoft® 74 SUMMARY OF THE ENGLISH DOCTRINE. ment, and on the original cause of action : the authorities in favour of the judgment being prinjd facie evidence in the latter, being adapted to the former case. 43 The doctrine oi primd facie evidence completely demolished by Lord Blackburn. 44 Enquiry as to what the judgment is evidence of. conclusion : — primd facie evidence of foreign obligation and sanction. 44 case of mutual damage considered separately. 45 The doctrines reviewed, and the results and anomalies pointed out. 46 — 48 The anomaly resulting from the doctrine of primd facie evidence may be, somewhat illogically, modified by the application of general principles, and assimilated to the logical modification of the absolute doctrine. 48 this modification seems to have been the practice of the Courts. 49 Considering this, and seeing that when the judgment is for the defendant, both practice and theory point, to the same conclusion, an assimilation between the principles of recognising and enforcing is suggested. 49 Concurrent suits, lis alibi pendens and injunctions considered, for convenience of discussion the subject is divided into cases where the English suit is commenced first, and where the Foreign suit is commenced first. 50 The power of the English Court to restrain, depends on there being absolute jurisdiction over the person to be restrained. 51 Lord Cranworth's propositions in the case of the Carron Iron Company are followed. 52 — 56 constructive jurisdiction over the party discussed. 52 identity of suits necessary. 5 3 There is some conflict of authority on the subject of lis alibi pendens ; also as to whether a party will be put to his election. 57 The general result is that the Courts, proceeding equitably, will endeavour to prevent vexatious harassing ; and pro- ceeding on grounds of convenience, will select that course by which it is most likely the truth will be ascer- tained. 59 An application by persons, parties only in one of two con- current suits, may be entertained. 59 Digitized by Microsoft® SUMMARY OF THE ENGLISH DOCTRIKE. 75 Evidence may be taken for Foreign Courts. 58 19. 20. Vic : c. 113. The Extent. 61 principles as to identity of suits. 61 judgment to be conclusive abroad ; and final. 62. 62, pendency of appeal does not affect judgment. 64 case of maliciously and without reasonable and probable cause setting the law of a foreign state in motion : — action cannot be maintained. 65 English Court does not sit as a Court of Appeal from the Foreign Court. 65 proceedings in nature of judgment, not enforced, unless proved to be equivalent abroad to a judgment. 65 judgment to be on the merits. 66 judgment on Foreign Statutes of Limitation not recog- nised ; 66 nor on any Foreign Procedure Act. 67 Proof of Foreign Judgments. 68 14. 15. Vic: c. 99. ss : 7. 11. Practice of Foreign States. 70 Digitized by Microsoft® 7^ CHAPTER II.— DEFENCES. Chapter II. Page Conduct of Plaintiff . . ... 79 Fraud 79 Proceedings of Court ...... 80 I. Jurisdiction. A. over the person. General Proposition — . . 82 1st : modification : — submission to tribunal 82 0. shareholder with express sub- mission to particular tribunal. 82 /8. shareholder without submis- sion 83 y. voluntary appearance . . 84 S. involuntary appearance to save property . . .84 c. selection of tribunal . . 86 2nd: modification : — assumed juris- diction. Order XI. rules I and la. .... 88. 91 ist : variation : — contract made abroad 87 2nd : variation : — temporary alle- giance 87 yd: variation : — alien . . .88 £• over the thing General Proposition — . . 92 Exceptions: 1. nature of the suit . , . 93 II. „ „ „ thing . . 93 i. realty . . . -93 ii. personalty . . .93 a. Scotch arrestment . 94 fl. Foreign attachment . 94 Digitized by Microsoft® DEFENCES. n Chapter II. II. Error. Page A. on facts or merits . .... 96 u. ' proveable ' 96 0. ' apparent ' 97 B. iri its own law 100 C. in foreign law 103 a. English law ..... 103 /3. law of any other country . . 106 D. in its own procedure .... 106 III. Fraud. wilful error 107 'apparent' . . . . . .110 ' proveable ' 1 1 1 integrity of the Court . . . .112 interest of Judges 113 Judgments not recognized . . . .114 Revenue Laws .114 IV. Natural Justice. old doctrine doctrine of ' proceedings ' . . .116. absence of defendant a. intentional subject to jurisdiction . technically correct knowledge of action ' absence '..... /3. unintentional i. not served with process . ii. served with process according to Foreign procedure artificial citation criticism of Foreign law English method of citation to foreigners Orders II. XL and LIV. . V. International Law IIS 118 120 121 121 121 122 124 127 128 129 130 131 Application to sign Judgment under Order XIV. . Statutes of Limitation 131 Nul Tiel Record 133 Interest on Foreign Judgments 133 Costs 135 Summary 136 Note on the Summary— Judicial misconduct . . 139 Digitized by Microsoft® 78 DIVISION OF THE SUBJECT. In this Chapter we propose to consider what Chapter defences may be set up by the defendant, in an ! action on a foreign judgment. The Court abroad, of competent jurisdiction, having adjudicated a certain sum to be due, a legal obligation has arisen in the foreign country, 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 pay that deference which is due to jurisdictions co-equal in rank with themselves, they must of necessity pay some attention to the defence ; and the difficulty edways present in an action upon a Foreign judgment is, how extensive shall be the enquiry suggested as requisite by the 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 the judgment. The sub- There are two persons before the English Court dT'd d '^^ which the action upon the Foreign judgment is brought : — The plaintiff who has obtained it ; — The Court that has pronounced it : — The conduct of either, at the trial of the original action, may have been such as to cause the English Court to look with disfavour upon the result : A convenient division therefore, for the consideration of the subject, will be to inquire how far the English tribunal will sift, first: the conduct of the plaintiff; secondly, the proceedings of the Court. The principle of the inquiry will be the same in both cases. We have seen that a legal obligation arises abroad upon the judgment, to pay the sum adjudi- Biackburn, catcd by the Foreign Couit to be due : — ' It follows ■'■ ' that anything which negatives the existence of Digitized by Microsoft® THE PLAINTIFF'S FRAUD. 7g Chapter ' that legal obligation, or excuses the performance 'of it, must form a good defence to the action.' Godardy. (Blackburn, J., Godard v. Gray.) Thus, the defences Two tests Gray. . -^ ' ' to be L. R. 6 that may be raised, group themselves under these applied to Q. B. 139. ^.^Q heads or tests : defences. i. does it negative the existence of the obligation ? ii. is it sufficient to excuse the performance of it ? First, as to the conduct of the plaintiff : — if it Conduct of has been fraudulent, if he has irregularly and P^^*^' ■ 11 1-11 -I , . , . Bramwell, unduly obtamed the judgment he is seekmg to B. enforce ; that undoubtedly, the defendant proving it, will be sufficient to excuse the performance of his fraud. the obligation. Upon this point, there is no conflict of authority, as will be seen on reference to the following cases : — 1 26 L. J : Reimers v. Druce ^ 220 T T. Bank of Australasia v. Nias^ Q. B. 284. Messina v. Petrococchino ^ p^c^ "^ Crawley v. Isaacs * ^ 10 L. T: Bowles v. Orr ^ N. S. S29. Castrique v. Imrie * g. ■ ■ and many others ; it would be impossible, so * 30 L. J: numeroiio are they, to refer to every decision, or '^^" every judgment, in which the Judge has expressed his concurrence with this 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. In Godard v. Gray alone, has any ■^''appears hesitation to admit the proposition been apparent ; to have a hesitation somewhat inexplicable. Blackburn, J., in accept- in giving a careful classification of defences, says, '"g *^. 'probably the defendant may shew that the judg- tion. Digitized by Microsoft® 8o THE PLAINTIFF'S FRAUD. Ld; Lynd- hurst, L.C, 'merit was obtained by the fraud of the plaintiff' — but this dictum cannot be regarded as throwing any real doubt upon the proposition. Martin, B. This fraud must be fraud in procuring the judg- ment, such as collusion or the like ; it cannot be set up that the defence to the suit was fraudulent. (Martin, B., Cammell v. Sewell) ' The judgment obtained by the creditor abroad 'is — (subject to the exceptions we are now con- ' sidering) — as conclusive here as it is in the country ' in which it was obtained — for it may be recovered ' in an action either there or here according as the ' judgment debtor can be got at abroad or in Eng- ' land. It therefore becomes a security here, and ' like any other security available in this country, • must be affected by fraud ; and a bill may be filed ' for relief Perhaps it might be said that on shew- ' ing a strong case, the party might defeat the 'judgment even at law.' (Lord Lyndhurst, L.C, Bowles V. Orr). For example : — Frankland v. M' Gusty : — an appeal against a decree pronounced in Demerara upon judgments given in S. Vincent's, in respect of considerations arising in that Island. The judgment in S. Vincent had been confessed on a warrant of attorney, there being no such power. The decree was reversed. Blake V. Smith : — a partnership action. The Court by means of an injunction, set aside a Portuguese judgment which had been obtained by the fraud of one of the partners. Chapter II. Cammell V. Sewell. 27 L. J: Ex; 447. Examples of judg- ments set aside for fraud. Bowles V. Orr. I You: & C. 464. Frankland V. M' Gusty. I Kn; P. C. 274. Blake V. Smith. cit: 8 Sim: 303- Proceed- ings of the Court. Its juris- diction. Secondly, as to the proceedings of the Court : — I. The Court's Jurisdiction. The defence attacking the Court's jurisdic- tion will be considered under two heads : — Digitized by Microsoft® THE COURT'S JURISDICTION. 8l Chapter A. its jurisdiction over the person. B. its jurisdiction over the thing. A. That the Foreign Court had no jurisdiction ^^^"^ ^^ , ., r 1 1 r 1 > person. over the person of the defendant. There seems to be no break in the authorities, tracing them back from the present time, in favour of the defendant's successfully raising this defence. More generally stated, the proposition is, that the judgment will be disregarded if the Court had not jurisdiction of the subject-matter of the suit — as in Bk:of the Bank of Australasia v. Nias and The Huldah. lasia This includes both divisions. V. Nias. With regard to the first, absence of jurisdiction 20 L. J: ° ^ Q. B. 284. over the person forming a good defence, as a The Hul- general proposition, rests upon the most elementary 3 Rob: A. principles of justice ; that a man, not in any way R- 23S- 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 judg- ment : The existence of the obligation may there- fore be at once negatived : — ' An inquiry is open Ld-. Dm- 111-1 11 1 • man, C.y. ' whether the judgment passed under such circum- ' stances as to shew that the Court had properly 'jurisdiction over the party.' (Lord Denman, C.J. — Ferguson Ferguson v. Mahon.) And to the same effect, II A. & E. Blackburn, J., in Castrique v. Imrie : — ' It may very Blackburn, 179- ' well be held that the foreign country has no juris- ■'' y Imrie ' Miction to pronounce judgment against a person 30L. J^ 'behind his back, who is not subject to its 'jurisdiction.' But circumstances very frequently exist by reason of which a subject of one state is under the laws of a foreign state ; and therefore a judgment pro- nounced against him by the Courts of that foreign C. P. 177. Digitized by Microsoft® 82 SUBMISSION TO TRIBUNAL. state, does raise the legal obligation to obey that Wijpter judgment. The general proposition may be thus stated : — General A, a Subject of, and residing in a state Y, is not Pi™P°^'' bound by a judgment obtained against him by B, a subject of and residing in a state Z, in the Courts of Z. Modifica- We must proceed to consider what modifications considered. '" these Conditions are necessary to raise the legal obligation of obedience to the judgment : — taking for our guide, the judgment of Lord Blackburn in First Schibsby v. Westenholz. ^mstm- "' tion ' "^^ The conditions remaining the same, they may be ioh. Conditions modified : — by g' '^ ^' which de- SUBMISSION TO THE TRIBUNAL, fendant a. Submission implied — by becoming a share- bound^ holder in a foreign Company, with agreement s .are- in Articles to submit to jurisdiction of some s^Sn particular Court : to particu- the shareholder in such Company, is in all things, bunal. 1^^^ the Company, subject to the foreign law and procedure iCopin v. Adamson). Copinv. In this case, there was a provision in the French l. R. 9 Ex: Company's Articles, under which the shareholders 345- agreed that all disputes which might arise during the existence of the Company, or during its liqui- dation, should be submitted to the jurisdiction of the Tribunal de Commerce of the Department of the Seine. The Lord Chancellor, affirming the de- cision of the Exchequer, decided that the existence of such provisions 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. A direct submission therefore will render the shareholder liable to obey a judgment of even an Digitized by Microsoft® ItSUBMISSION TO TRIBUNAL. 83 Chapter inferior foreign tribunal ; by which he otherwise '. would not have been bound. /8. Submission itnplied— doubtful : — by be- share- coming a shareholder in a foreign Company; ^"Jj^^^j without any special agreement as to submis- submission, sion to a tribunal. Where there is no such agreement in the articles, a more difficult point arises : the Lord Chancellor, Copin V. in his judgment in Copin v. Adamson, hinted at the L. R.gEx: possibility of the case arising, without suggesting 345- /Xf^an answer. The real principle of that case was ''^'^-^Ij the express submission to an inferior tribunal : no argument therefore can be deduced from that de- cision in any way preventing the affirmance of this proposition; and that submission should be implied by the fact of taking shares in a foreign Company, does not appear unreasonable ; for why should a man be entitled to take profits, and to become in all other respects, qu& the Company, like one subject to the Foreign State, and not at the same time incur the liabilities of the subject ? The shareholder is in the same position as a Partner in partner in a foreign firm with an elected foreign g"'^'^" domicil. There appears to be no case at present in which this point has been expressly decided ; but the Practice in general practice of the English Chancery Courts Chancery, seems to be, to make an order for payment of calls on Foreign Contributories to an English Company, for what it is worth : It is believed that Foreign Courts do enforce these orders, upon proof that the English procedure has been complied with. I am informed that this was the course pursued by the French Courts in the case of the General Inter- national Agency. G 2 Digitized by Microsoft® 84 SUBMISSION TO TRIBUNAL. 14. & 15. Vic: c. 99, ss: 7. II. A^oliintaiy appear- ance. Involun- taiy ap- pearance to save property. Blackburn, 7- In Leishman v. Cochrane, an ex parte order of the Supreme Court of Calcutta on a shareholder in Mauritius, to contribute to the assets of an Indian Company, was upheld. It was also held to be an 'order or other judicial proceeding' within the provisions of 14. & 15. Vic : c. 99. ss. 7. 11 : and was therefore proveable by certified copy. 7. Submission implied — by having appeared voluntarily to take the chance of a judgment in his favour. {De Cosse Brissac v. Ratkbone). In this case, there is an almost direct submission to the foreign tribunal ; for there is an evident in- tention on the part of the defendant to make use of the judgment, should it be in his favour. It would be manifestly unjust to allow him to make a conditional appearance : if he does appear, he must by so doing, be taken to submit to the jurisdiction ; a submission which he himself would be the first to make use of, and justly, if the plaintiff being un- successful abroad were to bring an action in Eng- land upon the original cause of action. Therefore, if the decision be adverse to him, this submission cannot be withdrawn. 8. Submission implied— doubtful : — by having appeared, in order to endeavour to save pro- perty in the hands of the Foreign Court, and so far, not voluntarily. The effect of such an appearance is very doubtful^- Lord Blackburn in Schibsby v. Westenholz, while expressing an opinion strongly in favour of the defendant not being bound in such a case, thought it better, the authorities appearing conflicting, to leave the question open. He said that in Simpson V. Fogo, the mortgagees of an English ship had come into the Courts of Louisiana, to endeavour to Chapter 11. Leishman V. Coch- rane. 12W.R. 181. Brissac v. Rathbone. 30 L. J: Ex: 238. Schibsby v. Westen- hoh. L. R. 6 Q. B. 155. Simpson v. Fogo. 32 L. J: Ch: 249. Digitized by Microsoft® SUBMISSION TO TRIBUNAL, 85 Chapter prevent the sale of their ship seized under an exe- '. cution against the mortgagors, and the Courts of New Orleans disregarded their claim ; that it was taken for granted by the Vice-Chancellor and the very learned counsel who argued in the case, that the mortgagees would have been bound by the decision, although they had only appeared to try and save their property ; but that there had been a contemptuous disregard of English law by the Foreign Court : — He said further that the case of Gen: The General Steam Navigation Co : v. Guillon sup- ^fflOT^ffi on pQj.j.g ^j^g proposition that the defendant would be Guillon. bound ; and that not being referred to in Simpson 13 L. J: ° Ex; 168. v. Fogo, it cannot be considered as dissented from. re S. Malins, V.C, held, in re the S. Nazaire Co : Malins, Co: exp: Limited; — ex parte the European Bank (not re- Etcropean ported), that the S. Nazaire Company, having ap- peared to protest against the jurisdiction of the French Court, were so far bound, as to be precluded from setting-up that the judgment had been obtained irregularly. The point is one of great difficulty: but this A doctrine difficulty is in 'some degree diminished by the "ui^ect ^ admission of a doctrine founded upon the judgment generally ^ .• o approved. of the Court of Exchequer in the above-mentioned case, The General SteaiH Navigation Co: v. Guillon (Lord Abinger, C.B.-— Parke, Alderson and Gurney, BB:), and approved by the Queen's Bench, in Schibsby v. Schibsbv V. Westenholz. (Blackburn, Mellor, Lush Westen- . holz. and Hannen, JJ :) — viz : that appearing to defend O B ce '^''srsly' does not import a legal obligation to obey the judgment. Is then the legal obligation to obey raised in this case, where, together with the appearance, there is also a protest against the jurisdiction of the Court ; or rather, where the appearance itself is a protest ; Digitized by Microsoft® 86 SUBMISSION TO TRIBUNAL. that being the only method of endeavouring to Chapter prevent the Court from exercising an authority which does not properly belong to it ? It certainly would seem that no stronger case short of absolute compulsion, could be imagined of an appearance which does not carry with it a submission to the jurisdiction of the Tribunal : moreover, it is a pro- Blackburn, position which appears to be absolutely necessary ^- to the safety of property, which might otherwise be seized and adjudicated on in the most arbitrary manner in some Foreign Country ; and it is neces- sary to protect our citizens so far, that they ' shall ■ not be in a worse position in one state than in 'another.' (Blackburn, J.) Arguments The arguments deducible from the doctrine last ce°Ung'^^ discussed, do not tend to bring us here to any discussion, definite conclusion : on the one hand, voluntary appearance importing submission, would seem to imply that involuntary appearance would not import submission ; and on the other hand, a remark then made seems equally applicable here ; that, if the judgment abroad should by any chance be given in favour of the defendants, they would be justified in making use of it, if the unsuccessful plaintiff were to bring an action in England, upon the original cause of action. Selection £. Submission implied— hy selecting the tri- of tribunal. ^^^^^ j^ ^^j^j^j^ ^^ ^^.j^^^ ^.j^^ action. As, by appearing voluntarily to take the chance of a favourable judgment in a Court which has no jurisdiction over his person, the defendant is bound by an adverse decision ; so the plaintiff, making a choice of the tribunal in which to bring the action, Pai-ke, B. and selecting one which would otherwise have no jurisdiction over his person, thereby submits to its authority, so as to be bound by its decision whether Digitized by Microsoft® JURISDICTION OVER FOREIGNERS. 87 Chapter it be for, or whether it be against him. (Parke, B. — General Steam Navigation. Co : v. Guillen). Gen-.Navi- Thus in NovelH V. Rossi, the defendant, without gation Co: . . ^ , V. Guillon. waiting for the decision of an Engush Court, which Ex- 168 would in all probability have been in his favour, and Novelli V. would have guided the French Court in its decision, ^^"'o , , went at once to the French Courts : the decision, 2 B. &Ad: 757- 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 conditions of the general proposition may also be varied — i. A is within the state Z at the time oi]^^^""^^^' entering into the contract ; but leaves it before general the institution of the suit. tiom— ' We are inclined to think,' said Blackburn, J., ' that "^onfact •' made ' the laws of the country where the contract was abroad. ' made would bind the defendant— though,' he adds, Blackburn, ' before finally deciding the question we should like ^' ' to hear it argued.' There seems to be here a quasi-suhmission to the laws of the foreign state, by making a contract under its auspices. Moreover, should the same contract come before English Courts, all ques- tions decided upon it would be governed by the lex loci contractus ; there can be therefore very little doubt that a judgment loci contractus would be received in England as binding on the parties. i i. A, a subject of state Y, but owing tern- 2nd: varia- porary allegiance to state Z ; . 'empOTary that is, resident — not necessarily domiciled — in the allegiance, foreign country ; by which residence he obtains the benefit of the protection of the foreign laws : for the protection he receives, he owes submission to them ; and he is therefore bound by a judgment Digitized by Microsoft® 88 JURISDICTION OVER FOREIGNERS. pronounced under those laws by the Courts of the Chapter foreign country. A resident alien is in almost every respect treated as a subject : the same protection is afforded him, the same obedience required of him, as well as the same knowledge of the laws of the land : he is entitled to make use of the Courts, and a judg- ment recovered by him will be enforced by the same process as one recovered by a subject ; so also he must submit to the decision of the Courts if it be against him. 3rd: vaiia- iii. A, subject of the state Z, an alkn ^^ ^^^ time of the judgment which is sought to be enforced against him : An alien is clearly bound in England by a judgment pronounced against him by the Courts of his own country : his change of residence after the legal obligation to obey has once been raised by the judgment, cannot possibly have the effect of removing or in any way altering that obligation. Variations It can also make no difference to A's obligation status. to P^Y' what B's status is at the time of bringing the action to enforce that obligation ; that is to say, whether B is a subject of the states Y or Z ; or whether he merely owes temporary allegiance to the state Y. The consideration of Order XL, rules i and la, of the Judicature Acts, forms a fitting conclusion to the discussion of the question of impeaching the ' -Jurisdiction of the Foreign Court over the person of the defendant. Order XI. mle i. O. xi. r. I. Service out of the jurisdiction of a writ of summons or Service out notice of a writ of summon s may be allowed by the Court or lurisdic- ^ Judge whenever the whole or any part of the subject matter Digitized by Microsoft® JURISDICTION OVER FOREIGNERS. 89 Chapter of the action is land or stock or other property situate Hon: in 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, an- nulled, 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 juris- diction, 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 la. Whenever any action is brought in respect of any con- o. xi. i. la. tract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such action, or for the Circum- breach whereof damages or other relief are or is demanded , in such action, when such contract was made or entered sidered by into within the jurisdiction, or whenever there has been a *^^ Judge. breach within the jurisdiction of any contract wherever made, the Judge in exercising his discretion as to granting leave to serve such writ or notice on a defendant out of the jurisdiction, shall have regard to the amount or value of the property in dispute or sought to be recovered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local Court of limited Scotland, jurisdiction, having jurisdiction in the matter in question, "'j, , and to the comparative cost and convenience of pro- ceeding in England, or in the place of such defend- ant's residence, and in all the above-mentioned cases no such leave is to be granted without an affidavit stating Affidavit. the particulars necessary for enabling the Judge to exercise his discretion in manner aforesaid, and all such other par- ticulars (if any) as he may require to be shown. We will suppose a judgment given in England Hfpo- against a foreigner not resident in England, nor a case, fol- Schibsbv V. shareholder in an English Company — under these 1°7™S rrr ^ . .11 1 . • 1 Blackburn^ westen- j-uJes, and an action brought upon this judgment j., in i!r.6 in the Courts, say of the United States— (where ^;'^^/4_ Q. B. 155. ^^ j^^ ^g ^Q ^jjg enforcing foreign judgments is the hoh. Digitized by Microsoft® 90 ASSUMED JURISDICTION. same as our own). The defendant impeaches the Chapter jurisdiction of the English Court over his person ' The question for the American Court would be ;- Is the defendant under any obligation which that Court could recognise, to submit to the jurisdiction created by the English Act of Parliament ? [It is with submission, suggested that the prior question as put by the learned Judge, ' whether the Acts of ' the British legislature, rightly construed, gave us ' jurisdiction over this foreigner,' could not be dis- cussed by the American Court ; for, as we shall see hereafter, the Court that has pronounced the judg- ment must in all things be presumed to have acted rightly, and to have rightly construed the law of its own country : — ' We must give credit to a foreign 'tribunal for acting within the jurisdiction con- ' ferred on it by its own law.' (Blackburn, J. — Castrique v. Imrie)'] The American Courts then Castrique would properly ask ;— Can the Island of Great \J^'y Britain pass a law to bind the whole world .' and C. P. 177. the answer should be ; — no — but every country can pass laws to bind a great many persons. Was this person such an one — not as would come within the statute, that being the question of construction — but, against whom such a statute could be enforced .' Now, Order XI, rule \a, is not an arbitrary enactment, to the effect that any one in England, supposing himself to have a cause of action against a foreigner not resident within the jurisdiction of Cases the English Courts, may issue the writ of summons writTs o*" notice in lieu of writ therein provided, and pro- issued out ceed upon it : but it is coupled with rule i, which of the . : ' jurisdic- lays down m what cases the writ will be issued : ^'°"- they are, i. where the Court has jurisdiction over the Digitized by Microsoft® ASSUMED JURISDICTION. 9I Chapter thing, in respect of which, or in respect of O. xi. s. i. -- ... anything affecting which, the action is brought. ii. in actions the subject of which is a con- tract ; where the contract was made, or where the breach of contract occurred, within the jurisdiction. iii. where the act or thing sought to be re- strained or removed, or for which damages are sought to be recovered, was or is to be done, or is situate within the jurisdiction. Under the Common Law Procedure Act, 1852. s. 18. C. L. P. the cases in which the writ could be issued out of the Act. 1852. ..... . , S. IS. jurisdiction were either, i. where the cause of action arose within the jurisdic- tion; or, ii. where the cause of action was in respect of the breach of a contract made within the jurisdiction. Thus the effect of the question to be asked by the foreign Court is narrowed within very small limits : — Is the Island of Great Britain right in passing such a statute for the protection of its sub- jects .' Are the cases for which it provides a remedy such, that the raising of the legal obligation to obey a judgment given in accordance with such a statute, is not unreasonable nor at variance with natural justice .'' These questions being considered by tribunals, whose decisions are received as of weight, it is believed that the judgment of the English Court, deciding that the defendant was within the scope of the statute, would be sup- ported : This leads us to frame a second modifica- tion of the general proposition : — If the judgment obtained by B against A Second . /-It 111,, modifica- is founded upon a statute passed by the state tion of the Z, which, on being considered by the Courts general ' ' ° •' propo- of the state Y, is found not to be an unreason- sition. Digitized by Microsoft® 92 JURISDICTION OVER THE THING. Necessary assump- tion that justice is not ex- clusively resident in England. Jurisdic- tion over the thing. General proposi- tion. The con- verse proposi- tion not strictly true. able protection afforded to the subjects of Z ; Chapter nor at variance with the principles of Natural Justice ; A will be bound. This is the ultimate conclusion from the general theory. I have advanced to it somewhat hesitat- ingly, being fully conscious that the decision of Schibsby v. Westenholz does not support it : But it Schibsby v. has been arrived at in the first instance, by the aid ^j^/^ of many of the arguments used in the judgment L. R- 6 delivered in that case ; and it seems to be the legitimate consequence, not merely of the Comity of Nations having entered into the theory, but also of the principle which presumes that justice is of necessity resident in the Legislatures and in the Courts of all States. The reader is referred to the discussion in the First Chapter upon ' the courtesy interchanged,' page 22 ; in thisChapter,upon thedefence of 'absence,' page 120; and to the Note upon the Summary to this Chapter, page 139. B. ' T/iat the Foreign Court had no jurisdiction ' over the thing.' The general rule may be thus stated : — A is not bound by a judgment obtained by B in the Courts of a state Z ; where Z has no jurisdiction over the thing. The rule has been expressed as a negative pro- position, because the positive proposition, its converse, is not strictly true : — for, although a state has jurisdiction over all property within its borders ; yet the proposition, that A is bound by a judgment obtained by B in the Courts of a state Z, where Z has jurisdiction over the property ; has to be thus far qualified ; that a jurisdiction by Z over A does not necessarily exist, merely on account of his possessing property within the territory of Z. Digitized by Microsoft® JURISDICTION OVER THE THING. 93 Chapter ' We doubt very much,' said Blackburn, J., in Bicukburn ' Schibsby v. Westenholz, ' whether the possession of ^' SMisiyv. 'property locally situated in the country and Aolz. ' protected by its laws makes him bound : — it O B f« ' ^^^^l'^ rather seem that whilst every tribunal may ' very properly execute process against the property ' within its jurisdiction ; the existence of such pro- ' perty, which may be very small, affords no suffi- ' cient ground for imposing on the foreign owner ' of that property a duty or obligation to fulfil the 'judgment.' Circumstances may exist, apart from the posses- sion of the property, which would render the possessor subject to the jurisdiction. Any of those for instance which have been considered under the head of ' Jurisdiction over the person ' may be com- bined with such possession of property : they Circum- would of themselves render the owner liable. But ^'f-?'^^^ none of these existing, it is necessary to inquire render the what is requisite beyond the mere possession ofp™^erty property, to render the possessor liable to the juris- 1^^^^^ '° ,. - r 1 1 ... , the juris- diction of the country where it is situated. diction First ; as to the nature of the suit itself : — If it °^ ''^f ■ ' countiy in involve a question as to the right to land; on that which it is point the decision of the Foreign Court will be j^ , " , final ; and the foreign owner will be bound by it. the suit. Coadv. (Romilly, M.R. — Good v. Good.) 33 L J: Secondly ; as to the nature of the thing : — Nature of Ch: 273. j If it; be realty, or any heritable property, its -^ , ™^' existence in the foreign country will create L. &= N. a jurisdiction over its owner — {L. &■ N. W. Tindsay'. Railway v. Lindsay). 3 Macq: ii. If it be personalty, it is doubtful whether Personalty, gg'. ' " this jurisdiction would be created, or whether the law of the owner's domicil would not attach to it. Digitized by Microsoft® 94 JURISDICTION OVER THE THING. Scotch Arrest- ment. Foreign Attach- ment. Trustee Process. Example. X^: Camp- bell, C.J. Conclu- sions. In two cases however, it may be considered as settled that a jurisdiction over personalty is created in the foreign country : a. Scotch Arrestment: — as to which, see the judgments of the Lord Chancellor and Lord Brougham in the London &• North Western Railway V. Lindsay. /3. Foreign Attachment in the City of London, (or rather any similar custom of attaching property which may obtain in any Foreign City — as for example — Trustee Process, in the City of New York). Suppose, for instance, money attached according to the custom of the City of London. In an action in the Courts of a country (following the same principles with regard to enforcing foreign judg- ments as our own Courts), — that the money was so seized, would be a good reply to a defence setting up want of jurisdiction in the English Courts over the thing. The case of Gould v. Webb is an example : — the plea stated that part of the amount claimed had already been attached in the defendant's hands, and had been paid according to the law of New York ; and therefore that the defendant was discharged and acquitted of the said sum. It was held a good defence pro tanto. Lord Campbell, C.J., said : — 'The plea substantially avers that the law of ' Foreign Attachment prevails at New York.' The conclusions are therefore; that where the thing is not in the territory of the Foreign Country, the defence is good : that, where the thing is within the territory of the Foreign Country, the defence may be good, but only in the case of personalty ; that even in the case of personalty, there are two instances where Chapter n. L. &> N. W. R. V. Lindsay. 3 Maeq: H. L. ca: 99- Gould V. Webb. 24 L. J: Q. B. 205. Digitized by Microsoft® ERROR OF THE COURT. 55 Chapter the defence cannot be set up ; and that, as to other '. cases, considerable doubt on the subject exists. II. Error on the part of the Court. An Error in the proceedings is either apparent The on the face of the record ; or requires to be proved E°"or.^ by the aid of extrinsic evidence. The defence, setting up error of the Court will be considered under the following heads : — A. an erroneous conclusion from the facts, or Division as to the merits of the case. subject. B. a mistake in its own law. C. a mistake in the law of another Country which it has professed to declare. D. a mistake in its own procedure. The enquiry under the head of Error, or mistake on the part of the Foreign Court, is attended with many and great difficulties, so varying are the dicta of the eminent Judges who have expressed opinions on the subject. The preliminary division, into what I shall call Prelimi- ' apparent,' and ' proveable ' error, has been objected °^^of "' to by Lord Blackburn, in the elaborate judgment of ' e"or.' himself and Mellor, J., in the case to which such Godardv. frequent reference has been made — Godard v. Gray. l'^r'6 But the division, at least for the consideration of Q. B. 139. the subject, is a convenient and not unnatural one. The principles already enunciated as the guide for determining whether a defence is good or bad, will most materially assist us here, and must never be lost sight of. For convenience they may be re-stated : i does the defence raised negative the existence Principles . , of defence of the foreign obligation .'' re-stated. ii. is it sufficient to excuse the performance of that obligation ? Digitized by Microsoft® 96 PROVEABLE ERROR. ['record' has been here used for con- venience, and not strictly.] Power of the English Court. Error on the facts, or on the merits. Proveable error. But now, for the first time, the English Court has the foreign record itself before it. The defences . already considered, — the plaintiff's fraud — the Court not having jurisdiction — are preliminary to the consideration of the contents of the record : —but, the record now lying open before the Court, to the above principles must be added that equally important one discussed in the first chapter : iii. The English Court does not sit as a Court of Appeal from the Foreign Court. The assistance of the English Court has been invoked to clothe the legal obligation which has arisen abroad upon the judgment of the Foreign Court, with the auxiliary international sanction which is resident in the English Sovereign Authority. It cannot go beyond the power accorded to it by International Comity, and constitute itself a Court of Appeal, by going into the merits of the case which the Foreign Court has already adjudicated upon. A. That the Foreign Court has come to an erroneous conclusion from the facts of the case, or as to its merits. a. A PROVEABLE ERROR. The effect of this defence is, the defendant asserts that the 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. Such a defence cannot be entertained : — Acting upon the last-mentioned principle, not sitting in appeal from the Foreign Court, it will not go into the merits of the case ; — ' Since the decision in the Chapter II. Digitized by Microsoft® APPARENT ERROR. 97 Chapter ' case of the Bank of Australasia v. Nias, we are Ccckbum, II c ^ ' bound to hold that a judgment of a foreign Court B/i: of • having jurisdiction over the subject matter cannot Austra- , . , , , , , . lasia V. be questioned on the ground that the foreign ^^'t^' J ' Court had come on the evidence to an erroneous 20 L. J: Q. B. 284. ' conclusion as to the facts' — (Cockburn, C.J. — Munroey. Muiiroe V. Pilkifigton). The case of the Bank of Pilking- . ton. Australasia v. Nias appears to be the first express O B 81 '^^'^ision upon this point. Lord Campbell, C.J., in -^^^ ^^"^P' 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.' /8. AN APPARENT ERROR. Were it not for the dictum above referred to of Apparent error. Godardi. Blackburn and Mellor, J J., in Godard v. Gray, it L. R.'6 would appear from the authorities to be settled Q. B. 139. ^jjg^j. ^ t foreign judgment of a competent Court may 'be impeached, if it carries on the face of it a Messina v. ' manifest error ' — (Sir R. Phillimore — Messina Decision chinc!"^' V. Petrococchino, delivering the judgment of the p^L^ i. R. 4 Privy Council : Sir J. W. Colville, Sir R. Phillimore, Council. Sir J. Napier, Sir Montague Smith, and Sir R. P. Collier). This opinion follows the judgment of Romilly, Reimets v. M.R., in Reiimrs v. Druce : — ' It is clear that a Romilly, fei^'j. foreign judgment sought to be enforced in this-^-'^" Ch: 196. ' country, is, in addition to the grounds referred to ' by Lord Campbell, C.J., in the Bank of Australasia ' V. Nias, impeachable for error apparent on the face ' of it, sufficient to show that such judgment ought not H Digitized by Microsoft® 98 APPARENT ERROR. 'to have been pronounced. But this leaves open Chapter ' the nature and extent of the apparent error suffi- Definition ' cient to invalidate the judgment. By that, I mean, ^^£^j_ ernn-^"^" ' such error as shews upon the face of the judgment asiav. ' itself, without any extrinsic evidence, that the ^^'^ j. 'Judges had come to an erroneous conclusion Q- B. 384. ' (either of law or) of fact.' ^- ' A Foreign sentence, though not strictly pleadable, yet has ch.es er. i j^ggjj jjgj^ y^y Lgj-d Kenyon to be conclusive evidence, and ' only to be falsified by shewing error apparent ' — (Lord Colchester's MSS: — cited, 3 Swanston, p. 712). Conflict of These are the most important decisions supporting the principle : there remains to be stated the very eminent opinion against it. [It will be well to bear in mind the order of date in which these three judg- ments were delivered — Reimers v. Druce, 1857; Godardv. Gray, 1870; Messina v. Petroccockino,i?>y2i\ Blackburn, 'It can make no difference that the 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 primd facie duty to 'obey the judgment, he must be equally relieved 'whether the mistake appears on the face of the 'proceedings, or is to be proved by extraneous ' evidence.' (Blackburn, J. — Godard v. Gray). Godardy. With dicta so conflicting before us, it is impos- l ^'g sible to lay down with certainty any rule upon the Q- B. 139 subject ; to anticipate the decision of the Courts when the point comes expressly before them. A few suggestions only can be offered towards the solution of this most difficult question ; pre- mising only, that the possibility of the case arising — an illogical or erroneous conclusion from the facts of the case being apparent on the face of Digitized by Microsoft® APPARENT ERROR. 99 Chapter II. Reimers V. Druce, 26 L. J: Ch : 196. Bk: Of Austral- asia V. Mas. 20 L. J : Q. B. 284. the record — is not so remote as might at first sight appear. We will consider a simple illustration : — 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 plus y equals 5 — X and y being unknown quantities. This is in illustration of the principle of the Bank of Australasia v. Nias : — There is a conclu- sion from certain facts ; but there is nothing upon the face of the judgment to shew that this conclusion is palpably erroneous. For all that the English Court can tell, it may be perfectly logical and accu- rate: 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 defend- ant indeed says that that conclusion is wrong, and that he will prove it to be wrong, shewing — by extrinsic evidence — that, say x was equivalent to 2, and y was also equivalent to 2 ; and that there- fore yiplus y cannot equal 5. The answer of the English Court is evident. We cannot go into the merits of the case. If it is as the defendant says, that x phis 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. H 2 Illustra- tions. Digitized by Microsoft® lOO ERROR IN ITS OWN LAW. The prin- ciples of defence appear to conflict. Direct conse- quence of principle of Appeal But the former case seems very different : The principles (i and ii) of negativing and excusing, _ conflict so with the principle (iii) of appeal ; the case hangs so evenly between them, that without an express decision it is impossible to decide which applies : On the one hand there is that which should manifestly negative the existence of the legal obli- gation ; or at least abundantly excuse the perfor- mance of it : On the other hand, to correct the apparent error, would be performing the functions of a Court of Appeal from the Foreign Court. It may possibly be that the three principles are to be read together : 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 : — if this be so, the last consideration would seem to preponderate to make the defence inadmis- sible. The direct consequence of the principle of Appeal, is that nothing that could have been raised by way of defence in the Foreign Court, can be received in England as a defence to an action on the judgment. Chapter II. Error in its own law. Prelimi- nary pro- position. Parke, B. Cockburn, C.J- ■B. That the Foreign Court has made a mistake in the interpretation of its own law : that is, a mistake in the law fori rei judicat'ce. There appears to be no clearer proposition relating to the enforcement or recognition of foreign judgments than that the 'Foreign Judg- ' ment is prima facie evidence of the law therein Alivon v. • laid down '—(Parke, ^.—Alivon v. Furnival). And f l jrE^ the dictum of Cockburn, C.J., in Munroe v. Pilking- 241- ton is to the same effect :— ' It is enough that, being ^7%>^7" ' satisfied that the question of the defendant's '"»• ' liability must be determined by the lex loci of the q. b. "81. ' contract, we have the decision of a local Court of ' Competent jurisdiction as to what that law is.' Digitized by Microsoft® ERROR IN ITS OWN LAW. lOi Chapter The proposition is still clearer, where the _ decision is one from which the unsuccessful party might have appealed in the Courts of Appeal [qy: might of the Foreign Country, and he has not done so : in "ntiThzyt such a case ' the decision is about the best evidence appealed.] ' you can have of the law of the country ' — Dent V. (Hayes, J., Dent v. SmitJi). Hayes, J. L. R.'4 The expansion of the proposition also holds Expansion Q. B. 414. good : — ' The Foreign judgment must be assumed nary pro- ' to be in accordance with the Foreign law ' — (Lord P°s'"on- Becquet v. Tentcrdcn, Q,.] .— Becquet v. McCarthy). Or ;— ' It Ld-. Ten- M' Car thy. ' J 2 J' J y terden C 'T 2 B. &Ad: ' must be presumed that the Foreign Court rightly ' '■'' ^^'' ' interpreted and applied the Foreign law.' — (Sir R. Sir R. Messina v. Phillimore — Messina v. Petrococchino.) more Petrococ- ' chino. From these propositions the deduction easily P.' c' 144 follows :— that a foreign judgment, when it is brought into English Courts to be enforced or recognised, is not examinable on the ground of a mistake in the interpretation and application of its Bk-.ofAiis- ovjn law — iBank of Australasia v. Nias, followed v'^Nias. by Cockburn,C.J., in Munroe v. Pilkington ; Romilly, Cockbum, r? \ ^8 ^•^- — Reimers v. Druce ; Lord Colonsay — Cas- j^g,',^iii Munroe\jmue^-Imrie). M.R. Pilkins- For the Foreign Court is much more competent ^f ' ^''^°"' ton. . . . . , , '"■y- 31 L. J: to decide questions arising on its own law than our Q. B. 81. Cpyrj-g can be — (Lord Tenterden, C.J. — Becquet Ld-. Ten Reimers v. , , ^ , x terden, CJ. Druce. V. M'Carthy). 26 L. J: -p]^ same result is arrived at by the aid of the Appiica- Cn : 196. ■' tion of Castrii/ue general principles of defence : — The English Court, general V. Imie. jjj making such an enquiry would be performing the P"nciples. C. P. 177. functions of a Court of Appeal. Hfeyer v. The case of Meyer v. Ralli remains to be considered. Meyer v. RalU. There had been a decree in France which sidered°" C. p! d. was erroneous according to French law. The ^5^' French Court had held that freight was due in its Digitized by Microsoft® I02 ERROR IN ITS OWN LAW. entirety upon the cargo, as if the whole voyage chapter 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 destina- tion. 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 :) held 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 law fori rei judicat<2. 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 propo- sition that a third party may attack a foreign judg- ment 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 Archibald, 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 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 fi'om the judgment of Black- Biackbum, burn, J., in Castrique v. Imrie : — ' We must (at least Cc^striqm •'■ ' until the contrary be clearly proved) give credit Iq iHY'- ' to a foreign tribunal for knowing its own law, ^- ^- '77- ' and acting within the jurisdiction conferred on it ' by that law ; ' and one from the judgment of Lord Ld: Ten- Tenterden, C.J., in Becquet v. M'Cartky : — ' We £eci/uei v. '''"''*"' '"•^' 'ought to see very plainly that that Court has2B.XAd': ' decided against the French law before we say that 95'- Digitized by IVIicrosoffb- ERROR IN ENGLISH LAW. 103 Chapter ' 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 ' appa- 'Apparent' rent ' and ' proveable ' error, which was adopted for ^proveable' the consideration of errors of fact : 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 in foUow- Meyerv. jng the decision of Meyer v. Ralli, it is with all L. R. I 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. C. That the Foreign Court has made a mistake i7i Error in the interpretation of the law of another country, ™''^'Sn which it has professed to declare, nnd upon which the judgment is founded. a. AN ERROR IN ENGLISH LAW. The earlier opinion upon this point seems to have in English been, that if the judgment were not in rem, it ^^' C. P. D. 358. Digitized by Microsoft® I04 ERROR IN ENGLISH LAW. Earlier opinion. might be disregarded if a mistaken English law Chapter had been administered. '. Applica- tion of prelimin- ary prin- ciples. This was the decision of Wood, V.C, in Simpson Simpson v. Fogo, V. Fogo : another example of this doctrine was 32 L. J: there cit&A—Novelli v. Rossi. (Whether this case ^^' ^49- is an example or not seems doubtful ; Blackburn, J., ^^„j_ Godard v. Gray denied its application.) Rut ifzB. &Ad: m 757- 6 139- as before, we here apply the preliminary principles, ^.^^^^^ ^ the same result is arrived at as in the preceding Gray. case of an error by the Foreign Court in its own q' b. law : — To open the judgment ; to discover that the method by which the Court arrived at its conclu- sion was an application of English law ; to ascer- tain what part of that law was applied, and 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 is the opinion of Lord Colonsay, in Cos- CastHque triqtie v. Imrie : — ' We cannot enquire whether they l. r. 4' ' were right in their views of the English Law.' In ^' ^' ''^'^ Munroe v. Pilkington, although the point was raised Munroe v. during the argument, the Court declined to give ^/„ '"'^' an opinion upon it, as it was not directly before 3' L. J: them. But the proposition as laid down by the very learned author of Smith's Leading Cases in Opinion in the original note to Doe v. Oliver — ' It is clear that Doey. lA: Colonsay. Smith's Leading Cases. Blackburn 7. ' if the judgment appear on the face of the proceed- 2 Sin-" ' ings to be founded on a mistaken notion of ^•, *-■• ,^'^' , 7tni ed; ' English law, it would not be conclusive,' — drew from Lord Blackburn, in Godard v. Gray, that very Godard v. strong expression of dissent that we have already ^'^^^ § noticed : and which applied not only to errors of Q- B. 139 fact, but to all other errors : — ' Nor can there be 'any difference,' he adds to what has already been quoted (page 98), ' between a mistake made ' by a Foreign tribunal as to English law, and Digitized by Microsoft® ERROR IN ENGLISH LAW. 105 Chapter 'any other mistake.' It is more than probable that the very learned Judge had in view the extreme improbability of an apparent error in English law arising : and it will be remembered that it was this consideration that led us under the head of ' Error in its own Law ' (B), to discard the division of ' apparent ' and ' prove- able ' : the same course has been pursued in this case. Should the case of an ' apparent ' error however 'Apparent' arise; that is, should there be on the face of the ^"°'' proceedings a palpable error in English law, we Navelli v. need not consider whether Novelli v. Rossi is or is 2 b"^^j[. not an authority for Mr: Smith's proposition : the 757- same considerations arise as in the case of an ' apparent' error of fact ; and an express decision upon the point must be awaited. To this principle must be added an extension of Extension it : No enquiry can be entertained as to whether, cipie!" under the circumstances, the Foreign Court took Whether the proper means of satisfying themselves with ployed respect to the view they took of the English LawP'^°P^^' Castrique administered by them — (Lord Colonsay — Castrique ascertain V. Imrie. r ■ \ English L. R. 4 V. Imne). l^^^ H. L. 414. 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 consequences. For example, the judgment will not be dis- regarded, although the Foreign Court too hastily concluded what the law of England was : e.g. that it must be what, according to their view, the law of every mercantile country ought to be — (Cockburn, (in Exch; C.J. — Castrique v. Imrie, in the Exchequer). L J- c* P. In connection with this discussion, there remains Wilful 177- one point which has often to be considered, whether ^''™''' the foreign judgment can be considered binding. Digitized by Microsoft® I06 ERROR IN ENGLISH LAW. when the error in the English law has been wilful; Chapter when the Foreign Court has knowingly and per- versely disregarded the English law : or, following Blackburn, J., in Godard v. Gray: — 'When the Godardv. 'Foreign Court has knowingly and perversely l. r." 6 ' disregarded the rights given to an English subject Q- ■^- '39- ' by English law.' — Proper This discussion, though coming naturally in this the dis- place, seems to fall within the defence ' against cussion. Natural Justice ' : and it is as being against natural justice, that 'wilful error ' is generally raised : but it will be found that that defence has been of necessity restricted to an enquiry into the nature of the proceedings in the Foreign Court : It has been thought better therefore to discuss ' wilful error ' under the head of 'Fraud on the part of the Court.' /9. AN ERROR IN THE LAW OF ANY OTHER COUNTRY. Error in The defence that the Foreign Court has made a any other mistake as to the law of some third country inci- country in- dentally involved, cannot be raised ; the same cidentally . . , , . , . , involved, prmciples applymg to this as to the precedmg cases. (Blackburn, J., Godard v. Gray) Thus Archibald, Archibald, J., in Meyer v. Ralli : — ' If this judgment Meyer v. ' (of a French Court) had professed to declare what is l"r| j ' the law of Austria, though equally wrong, we might ^■^- ^■ ' have been bound by Castrique v. Imrie to give caltrique ' effect to it.' v. Imrie. L. R. 4 D. That the Foreign Court has made a mistake ' ' ^^'^' in its own course of procedure. t^e Court Following the same principles that have guided in its own US in the foregoing discussions, we must assume proce ure. ^^^ ^^ Foreign Court is best capable of knowing Digitized by Microsoft® ERROR IN PROCEDURE. I07 Chapter 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 Ld-. ' enquiry as to whether the Foreign Court proceeded " '^^'^y- 'correctly as to their own course of procedure.' (Lord Colonsay — Castrique v. Imrie.) '■>' III. Fraud on the part of the Court. Cammell In the case of Cammell v. Sewell in the Ex- Fraud of av L. J: chequer, Martin, B., said that a foreign Jiidgment Ex : 447. might be avoided for fraud, which might be on the part of the plaintiff in procuring the judgment, Castrique or on the part of the Court itself And, in Castrique Possibility L. R."^' V. Imrie, Blackburn, J., also recognises the possi- °f jj^'J" H. L. 414. bility of there being fraud on the part of the Court. Court 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 raised. Since also it is possible that there may be a Possibility defence raised, of a wilful disregard of its own forms disregard of procedure ; of its own law ; or of the merits of matter, the case ; it has been thought advisable to make ' Fraud on the part of the Court ' a separate head of discussion ; including under it ' wilful error ' generally. Although in the cases reported, a wilful disregard Authorities of English law is the defence most frequently foi error in occurring ; and although there appears to be no English case at present decided, in which a wilful error jn applicable the other divisions of the preceding section has been '° ""' Digitized by Microsoft® I08 WILFUL ERROR. error raised ; yet it is suggested that the authorities, Chapter generally. a^-j^Q^gi^ referring specifically to the former case, [ may, without any violation of the principles con- tained in them, be referred generally to the latter case; that is, to a wilful error in facts, law, or procedure. 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 principles of Natural Justice : For the others, the ground can be no less a violation of those principles. The defence 'wilful error ' generally, will there- fore be considered by the aid of the authorities upon the defence ' wilful disregard of English law.' Opinion in In Smith's leading cases, in the note to the L^di'ng Duchess of Kingston's case (p. 817) there is the Cases. following paragraph : — ' There is considerable ' authority for saying, that where a judgment of a ' Foreign Court is given in perverse and wilful dis- ' regard 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 de- ' feet be not apparent on the face of the proceed- ' ings.' The authorities are as follows : — Cockburn, C.J., in Castrique v. Itnrie in the Ex- Castrique chequer, discussed the subject, but forbore giving io £'.'7': any express decision upon it ; he merely remarked, ^- '^- '77- Cockburn, that if the fact were that the French Court 'know- ^^' ' ingly 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 Digitized by Microsoft® WILFUL ERROR. IO9 ehapter ' 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 Different the other hand, that other members of the Court — members" 'if it could be shewn that, in a case in which the °f'^^ a- c Court in effect of a contract was to be determined by the Castrique ' lex loci contractus, a Foreign Court perversely in- ^l^'-^.^ '" 'sisted on applying its own law, being in conflict chequer. ' with the former, thereby outraging the principles application "of International Comity in a manner amounting, of wrong ' in fact, to a species of judicial misconduct '■ — 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 eflfect of such ' a judgment ; not indeed, by way of reprisal to- ' wards the foreign tribunal, but to protect our own 'fellow-subjects from injustice.' Castrique In the same case before the House of Lords, Lord V. Imrie. ■ ■, ■, ■ -.. (in H. L.) Hatherley also avoided any expression of opinion H L '^i ^^ ^° what might be done in such a case ; saying only that ' it appeared in this case that the whole Ld: ' of the facts had been enquired into judicially, " " '^' ' honestly, and with the intention to arrive at the 'right conclusion.' Simpson In Simpson v. Fogo, Lord Hatherley, then Vice- iVood.v.C. 32 L. J : Chancellor Wood, said : — ' Here is a case of a foreign Ch: 249. 'judgment which distinctly states our law, and says ' that it diregards it, giving reasons for so doing 'which are entitled to great weight. I confess I 'yield to those judges constituting the Court in ' Castrique v. Imrie, who considered that a perverse 'and deliberate refusal would justify our Courts ' from being bound by the foreign judgment, even 'though it were a judgment in rem! Digitized by Microsoft® i i^ WILFUL ERROR. It is not clear whether Blackburn, J., in Godard Chapter V. Gray, approves or disapproves of this principle. ' . Applica- Now considering this point by the aid of the ^"'^''^'-'^ v. tion of ^ Gray. general general principles ; it is manifest that the perform- L. R. 6 principles, ^jj^e of the obligation might reasonably be held to ^' " '39' be excused by the wilful perversion by the Foreign Court of English law or of any other fact : The im- portant consideration is therefore, will the English Court, in disregarding the judgment be acting as a 'Apparent ' Court of Appeal .' and further, must this wilful 'proveable' error be apparent on the face of the record ; or may wilful it; bg proved by the defendant by extrinsic evidence .■' error. , With regard to the latter question, a further con- sideration arises. Reasons To Foreign Judgments are often appended the appended ^asons which led the Court to the decision at to Foreign which it arrived : We must ascertain whether these (cf- Mr ■ reasons form part of, and are to be received as, the Bulkeley's judgment ; or whether they are to be considered ca.se. jy I i I jjjgfgjy j^g appendages to it, for the information of the parties. In Simpson v. Fogo there were reasons Simpson v. Wood, v.c. appended to the judgment; and Wood, V.-C, said : ja'^'. j. — ' I have clearly a right to look at these reasons as ^^'- ^45- ' signed by the Judges, as part of the judgment, ap- ' pearing as they do on the face of the record, like ' the jugements motives of the French Judges.' If this be so, the English law and the reason for not following it, will very probably appear in the ap- pended reasons ; or the wilful disregard as to other points will be manifest in some way or other : and as they form part of the judgment, we have here a wilful mistake apparent on the face of the proceed- ings. It will be remembered, that in the case of an ap- parent error of fact, it was found impossible to arrive at any definite conclusion ; the case appear- Digitized by Microsoft® WILFUL ERROR. 1 1 1 Chapter ing to be exactly midway between the two principles ' of defence. The same difficulty exists here as to 'Ap^a- principle : the weight of authority however turns the scale in favour of refusing to acknowledge the Foreign judgment where there has been an ' ap- parent ' wilful disregard. If the wilful disregard is not 'apparent,' but 'Prove- merely ' proveable,' the excuse for non-perform- ance of the obligation does not appear to exist in such a marked manner. The authorities seem cer- tainly in favour of an application of the same doc- trine : That is, that if the defendant raising by way of defence Error of the Court, suggest also that the error was wilful ; the principles usually acted upon in the case of ' Error ' will be waived, and the de- fendant will be admitted to proof of his defence : — It is suggested however that the most positive proof of the wilfulness of the error will be re- quired, lest the English Court overstep the limits of their authority and act as a Court of Appeal. In the case of a judgment in rem, we have had Jup- Lipptnan.. ^ 6C1:&"" »^««-> Fin: i.' By the Belgian law, where there is a bill payable Belgium. at a particular place, that place is considered the elected domicil of the acceptor, and process may Meeus v. be Served there. {Meeus v. Tkellusson.) TheUusson. ^^^ ^^^ plaintiffs reply, relying on such law, it Ex: 239. should clearly appear that it was the law, not only at the time of the acceptance, but also at the time of the recovery of the Judgment.] Copin V. And in Copin v. Adamson we have another varia- Cqmpul- Adatmon. tjon, which was provided by the articles of the domicil qf EJc: 345. Company and agreed to by persons taking shares ; ^^^ Digitized by Microsoft® r24 FOREIGN PROCEDURE. — ' Any shareholder provoking a contest, must elect Chapter ' a domicil at Paris ' : if not, process is to be left for '. — him at the office of the Procureur-Generale, as in the first method. The question to be considered is, whether such a purely artificial form of procedure is in violation of the principles of Natural Justice: whether the defence in cases where this procedure has been followed, that the defendant did not appear ; was not summoned ; had no notice or knowledge of the proceedings ; nor had any opportunity of defending himself, can be maintained. Where this artificial process has been made use of, the defence set up in England is 'absence of notice'; If there has really been no knowledge of the action proceeding in the Court abroad, this is the only defence that can be made use of; but if there has been knowledge of the suit, and the pro- cess has not been served personally, the better course to pursue, if any hope is entertained of successfully attacking the procedure as being con- trary to Natural Justice, would appear to be to raise that defence at once. The judgment of Maule, J. Maule, J., in the Bank of Australasia v. Harding is Bank oj to this effect : — 'You insist here on the absence of ^^^ ^ ' notice of process. But there is nothing in that Harding. 'contrary to Natural Justice, if there has been some c P. 345. ' other kind of notice : for example, a proclamation, ' or verbal notice.' The regularity of the Judgment in such cases is usually admitted. Conclusion In discussing this question a former conclusion j^udgment ^lust be borne in mind: — If the judgment is founded obtained founded upon a statute passed by the Foreign Foreign State, which, on being considered here, is cf-^p^'qi. f°"""^ "°t to be an unreasonable protection to be Digitized by Microsoft® FOREIGN PROCEDURE. Chapter afforded by such Foreign State to its own subjects, ' nor at variance- with the principles of Natural 125 Justice, the English Courts will enforce it. Is then, this artificial mode of citation at variance Becquet v. with these principles .'' In Becquet v. McCarthy 2B.& Ad; Lord Tenterden, C.J., held that the Court could not Ld-. 9SI- take upon itself to say that the law upon which the ^^«'^''«'««. foreign judgment had proceeded .was so contrary to natural justice, as to render it void. And this decision was in the case where there was 'a ' deficiency in the law in not requiring the Pro- ' cureur-G^n^rale to communicate with the absent ' defendant' Reynolds In Reynolds v. ■ Fenton, Maule, J., said: — ' For Mauk,y. i6 L. J: ' ' aught we can tell the proceedings of the Court of C. P. 15. ' Brussels may be regularly commenced by mere ' verbal notice without any regular process.' It can easily be understood how difficult it is to The deal with a defendant who is not within the terri- -^ ™. ^ tory of the country, and that some protection must tecting be afforded to plaintiffs in the country, so that they against should not be compelled to follow debtors into any ^^^™' part of the world where they may choose to reside : dants. That the protection thus afforded by the State to its subjects should be very materially in the plain- tiff's favour is not unreasonable, 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 three months, it should be six months or even a year. That is a matter which must be left to the discretion of the legislature passing the Statute. A general rule may however be deduced : That, A general so long as that discretion is exercised not unwisely, dedudble. nor unreasonably, the Courts of this country will bow to the authority and jurisdiction which is Digitized by Microsoft® 126 FOREIGN PROCEDURE. claimed by this Foreign government over English Chapte? subjects : — — — Not making reciprocity a condition, but expecting a reciprocal recognition of its own Statutes : This rule supposes therefore a power existent in all Courts of judging whether the discretion has besn exercised, not wisely and reasonably, but, not unwisely and unreasonably ; and also that all CourtSj in their wisdom, will not overstep the limits of this power; O.xi.r. I. We must notice here that the provision in Order XL Rule i of the Judicature Acts for allowing service of the Writ out of the Jurisdiction, when the Breach of breach of contract occurred within the jurisdiction, the con- , . , , , tract wherever such contract was made, might be supposed within ^ J.Q exceed the recognised principles of International diction. Law. The provision was framed in accordance with the decision of the Common Pleas in Jackson v. Spittal, Jackson v. upon sections i8 and 19 of the Common Law if r^ 5 Procedure Act, 1852, and which was ultimately ^- P- 542. assented to by the majority of all the Judges as the practice to be recognised by the three divisions of the High Court, (see Vaughan v. Weldon.) Vaugkan But whether it does exceed the recognised prin- l. r. 10 ciples of International Law, or not, it is suggested ^" ^" ^'^' that it is not an unreasonable exercise of the dis- cretion vested in the English Legislature ; and it is confidently believed that an English judgment pro- ceeding on this order would be supported abroad. Considera- Jhe general rule above enunciated leads us also tion of the general to consider whether, the time allowed for the "^®- defendant to appear being unquestionably too short, the judgment would be recognised in England : as, that judgment by default might be signed at once, or within a day or two. The case of Don v. Digitized by Microsoft® FOREIGN LAW. 127 Chapter II. Don V. Lipfman. 6C1:& Fin: I. Cammell V. SewelL 29 L. J; Ex: 350. Liverpool Cr: Co: V. Hunter. L. R. 3 Ch: 479. Simpson V. Fogo. 32 L.J: Ch: 249. Lippman. comes nearest to the point : — The appellant was an alien enemy, and could not appear in the French Courts. The notice of citation was affixed in a public office. Lord Brougham refused to enforce the French judgment, 'because the defend - ' ant was by force kept out of the action.' It would appear therefore that in extreme cases the English Courts will criticise the discretion exercised by the Foreign legislature, and will treat a judgment so obtained as of no effisct. Nevertheless, the Courts avoid as much as pos- sible reviewing the laws of another State ; and a defence attacking the law (not of procedure) upon which the judgment is founded, as being contrary to Natural Justice is regarded with no favour. Thus Crompton, J., in Cammell 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 in the same case, 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.' So in the Liverpool Marine Credit Co : v. Hunter, Cairns, L.C. : — ' The Louisiana law does not ' recognise the transfer of chattels without delivery. ' In the argument, the law of Louisiana was treated ' as being itself contrary to Natural Justice : there 'is no such inherent injustice as absolutely to dis- • entitle it to disregard when brought into question ' here. It is the application of it to foreigners that ' is open to the reproach of injustice.' In Simpson V. Fogo, also a case in which the law of New Orleans came before the Court, Wood, V.C, said that ' any peculiar legislation of foreign countries ' with regard to a special subject-matter (e. g. Ld: Broug- ham. Foreign judgments on laws not re- lating to procedure. Crompton, Cockburn, C.J. CairHSj L.C. Wood, V.-C.,in Simpson v. Fogo, Digitized by Microsoft® 128 ORDER XI. reviewed by Cairns, L.C. c(. p. Compul- sory elec- tion of domicil by share- holder in Foreign Company. English method of serving process out of the juris- diction. Order xi. 'matters of prize) which has not been generally ' recognised or adopted, if it appears on the face of 'the record, is to be disregarded.' In reviewing this decision, the Lord Chancellor continued : — ' It 'was therefore the application of the peculiar law 'of Louisiana to a case which by the Comity of 'Nations ought to have been excluded from its ' operation which makes the decision of Wood, V.C, ' in Simpson v. Fogo, quite correct.' This decision coincides with the question suggested by Blackburn, J., in the hypothetical case of assumed jurisdiction in Schibsby v. Westenholz. Lastly, there is the case of the shareholder of a foreign company, being compelled by the articles of association to elect a domicil, in order that process may be left for him there ; or, failing this, being subject to the law of the foreign country, and having to submit to the more artificial citation through the Procureur-G^n^rale: — 'There is no ' means of finding him out ; therefore the law of ' France is reasonable in making him elect a ' domicil.' (Kelly, C.B. — Copin v. Adamson, in the Exchequer ; see also ValMe v. Dumergue^ The English method of serving process on a non-resident defendant is an example of that dis- cretion, which we have supposed vested in the Government of every State, being exercised wisely and reasonably ; and we may suppose that a judg- ment obtained under this method would be sup- ported in a foreign country whose Courts are governed by the same principles as our own. The method is as follows : — Rules I and l« of Order XI. prescribe in what case notice of service out of the jurisdiction will be allowed to be given. Chapter II. Schibsby v. Westen- holz. L. R. 6 Q. B. 155. Copin V. Adamson, L. R. 9 Ex: 345. VallSey. Dumergue. i8L.J:Ex: 398- Digitized by Microsoft® ORDERS II. AND XI. 1 29 Chapter Application for leave to give notice is to be made '. to the Court or Judge, and is to be supported by affidavits, — shewing clearly that the cause of action is one falling within rule i ; by evidence ; or by any other means, from which the Judge may learn the whole facts connected with the case, and be able properly to exercise the discretion vested in him by rule la. No fixed limit is laid down in the rules, within which the defendant is required to appear ; but the order giving leave to give notice of service is to state the time for appearance, depending upon the place or country in which the defendant is to be found. If the defendant does not appear within the time fixed, the plaintiff may ' proceed in the action, and judgment will be given in his absence.' The plaintiff does not sign judgment by default, but the action proceeds in the usual way in the de- fendant's absence. The following are the rules upon the subject : — Order II. rule 4. No writ of summons for service out of the jurisdiction, or O. ii. r. 4. of which notice is to be given out of the jurisdiction, shall Writ for be issued without the leave of a Court or Judge. ^abroad rule 5. A writ of summons to be served out of the jurisdiction O. ii. r. 5. or of which notice is to be given out of the jurisdiction, shall Form of be in Form No: 2 in Part i of Appendix(A)hereto,with such ™"^f'"' . . . service variations as circumstances may require. Such notice shall abroad. be in Form No: 3 in the same part, with such variations as circumstances may require. Order XI. For rules i and la, see pages 88 & 89. O. xi. rr: i and la. rule 2. In Probate actions service of a writ of summons or o. xi. r. 2. notice of a writ of summons may by leave of the Court or p,-obaic Judge be allowed out of the jurisdiction. adion. K Digitized by Microsoft® 130 ORDERS XI. AN!) LIV. O. xi. r. 3. Affidaini to obtain leave. O. xi. I. 4- Time for appearance. O. xi. r. 5. Service of notice in lieu of writ. O.liv. r.2a. District Registrars and Masters have no jurisdic' tion. Order XI. rule 3. 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, show- ing in what place or country such defendant is or pro- bably may be found, and whether such defendant is a British subject or not and the grounds upon which the ap- plication is made. rule 4. Any order giving leave to effect 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. rule 5. Notice in lieu of service shall be given in the manner in which writs of summons are served. Order LIV. rule la. The authority and jurisdiction of the District Registrar or of a Master of the Queen's Bench, Common Pleas, or Exchequer Divisions shall not extend to granting leave for service out of the jurisdiction of a writ of summons or of notice of a writ of summons. The reader is referred to the notes on these Orders in Wilson's Judicature Acts, and the cases there cited. Chapter II. V. The Judgment contrary to Interna- tional Law. The judg- ment con- trai-y to Inter- national Law. The defence relying on a breach of International Law is frequently raised : but the field of enquiry under this head is as large and unwieldy as that opened by the old defence ' 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. It has been thought advisable therefore to deal Digitized by Microsoft® APPLICATION UNDER ORDER XIV. 131 Chapter with the cases imputing a violation of International '. Law as they arise : these cases will be found under the following heads : — Assumed jurisdiction over non-resident foreigners : especially by the English Courts under Order XL rule I. Wilful error in English law. Admiralty prize decisions. Divorce. Application to Sign Judgment under Order XIV. In a case now proceeding — Hubert v. Wallis — an AppUca- application was made at Chambers b^' the Plaintiff '!°" '^°, . signjudg- for leave to sign judgment under Order XIV. ; it ment being an action on a judgment of a French Tribunal, q" xlv. in affirmed by the Court of Appeal of the district. action on Field, J., refused to make an order, on the ground judgment, that the defendant had not been served with notice. In such an application, it seems that the first Applica- question to be considered is whether a foreign general judgment comes within the terms of Order III. *eory. rule 6 — ' a debt or liquidated demand in money ' payable by the Defendant, with or without interest, ' arising upon a contract express or implied ' ; — and it is with submission suggested, that an action on a foreign judgment not being an action to recover what is a debt in this country, such an application cannot be entertained. Statutes of Limitation. The consideration whether in an action on a Considera- foreign judgment, the English Statutes of Limita- ^^ether tion may be pleaded, involves two questions of English some difficulty : ^'^'"'" K 2 Digitized by Microsoft® 132 STATUTES OF LIMITATION. may be pleaded to foreign judgment. What period time to run from? i. From what period is the time to be calculated .' ii. What length of time bars the action ? According to the words of the Statute, the ' cause of such action ' appears to be the foreign judgment, and this being so, the time 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 could not be raised. But supposing the time to run from the date of the foreign judgment, is the limiting period to be Chapter II. What is to be the limiting period ? twenty years as on an English judgment ( Watson v. Watsony. Shadwell, V.-C. Birch) ; or six years, the judgment being treated as ^^'''^^'■^ a simple contract debt .'' In two old cases indeed- 5 Sim: 523- Dupleix v. De Roven Dupieix v. and Atkinson v. Lord Braybrooke — it has been ^y^^^"" held that a foreign judgment, when it comes before S4o- the English Courts, is nothing but a simple con- ^''^^"■^''" .... , '^ V. Bray- tract debt : but, m accordance with the general brooke. theory, it is suggested that the idea of a debt^g^^^P' cannot be entertained in the slightest degree, and that, if the English Statute can be pleaded, the limit must be twenty years as on an English judg- ment: for in Watson v. Birch, Shadwell, V.-C, expressly held that the twenty years ran on an English judgment under 3. &4. Will: IV. c. 27. s.40, and that there was ' nothing in the word judgment ' as there used to confine its meaning to a judgment ' which, owing to the nature of the assets of the ' party indebted, might affect land, but could not ' operate on personalty.' Digitized by Microsoft® NUL TIEL RECORD.— INTEREST. 133 Chapter From the discussion on judgments abroad pro- Defence ceeding on foreign statutes of Limitation, it is Foreign"^ I. clear that a defence setting up a Foreign Statute of Statute T • ■ . , . . '^. , , , . ... bad. Limitation as having extinguished the time within which the foreign judgment might have been sued upon abroad, is bad. NuL TiEL Record. It will appear from what has been advanced in The old the first chapter, that, as in the case of an English '^^^^^""ord judgment the opposite party may put the existence of the record itself in issue, so in the case of a foreign judgment, the non-existence of the judg- ment may be set up. Walker v. It was held however in Walker v. Witter and Witter. I Dougl: Pliilpott v. Adams, that the old plea nul tiel record was bad in an action on a foreign judgment ; but V. Adams, these decisions proceeded on the ground that a 31 L. J: foreign judgment was not equivalent to, and was not properly called, a record. Now that technical pleas have been abolished, it is suggested, that the defendant will 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. Interest on a Foreign Judgment. Interest on a foreign judgment must evidently Interest on be regulated by the rules of the foreign country in judgment which the judgment was pronounced. If interest is t° be regu- given abroad on the judgment, whatever the rate rules of may be, it becomes an integral part of the foreign '^°'^^ig" debt to enforce which the action is brought in the English Courts ; if no interest is given by the Digitized by Microsoft® 134 INTEREST. foreign law, none can be recovered here : the dapter question depends entirely on the foreign law, which will have to be proved upon this point in the usual manner. This is in accordance with Arnott v. Redfern and Arnottv. Douglas v. Forrest. 3 Bing: Interest So too, if by the foreign judgment, interest has 353- by foreien ^een given on the contract which was the founda- porfesT. " Court can tion of the actlon, that interest will be recoverable. jJI'"^" be re- ooo. covered. In Amott v. Redfern it was contended that, 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. What rate The only difficulty appears to be when the English English Court by its judgment gives effect to the judgment foreign judgment ; Is the after-accruing interest to nounced ? be governed 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, accord- ing to the Foreign law, should continue to accrue. Digitized by Microsoft® COSTS. 135 Chapter Cyg-pg^ If the Foreign Court by its judgment has awarded Costs r , , ,1 awarded costs to the successful party, they also become an by foreign integral part of the foreign debt to enforce which ^°^^^[ '^^^ Russell V. the action is brought in the English Courts, and as covered. Smyth. . 9 M. & w. such can be recovered. 810. This is in accordance with Russell v. Smyth. Digitized by Microsoft® iS6 SUMMARY OF DEFENCES. THE plaintiff's FRAUD — good. 79 ABSENCE OF COURT'S JURISDICTION over the person — good, 8 1 except ; — where the contract was entered into abroad ; 87 in the case of temporary allegiance, 87 and in the case of a subject of the Foreign Country- resident in England. 88 also, where there has been a submission to the Foreign Tribunal; 82 which will be implied, where there was a voluntary ap- pearance, 84 where the tribunal was selected in which to sue, 86 but doubtfid, where there was an involuntary appearance merely to save property. 84 also, in the special case of a share- holder in a Foreign Company with express submission in the Articles of the Company, 82 and most probably, in the case of an ordinary shareholder in a Foreign Company. 83 lastly, where the Foreign Court has assumed juris- diction over a person, in accordance with its own laws of procedure. 89 The question as to the construction of the Foreign Statute cannot be raised ; but the statute itself may be attacked as being contrary to Natural Justice : the defence will only be entertained in extreme cases. Digitized by Microsoft® SUMMARY OF DEFENCES. 1 37 over the thing — good, 92 the defendant not being in any other way subject to the jurisdiction. 93 Personalty being in the Foreign Country does not create a jurisdiction over it : 93 cases of assumed jurisdiction over personalty, e.g. Scotch arrestment, and Foreign attachment, 94 cannot be attacked. 94 THE court's error. — bad, 95 as to its own law, English law, or the law of any other nation incidentally involved : 100. 103. 106 as to its own procedure: 106 as to ' proveable ' error in facts or merits : 96 doubtful, as to ' apparent ' error. 97 THE court's fraud. — good, 107 as to integrity of the Court, 112 and interest of the Judges : 1 1 3 also as to an ' apparent ' wilful error : 108. in but somewhat doubtful as to a ' proveable ' wilful error. 1 1 1 AGAINST NATURAL JUSTICE. — bad: II6 but THAT THE PROCEEDINGS WERE AGAINST NATURAL JUS- TICE, — good. 116. 118 defendant's absence simply, — bad. 120 bad also, if, subject to the jurisdiction, he is inten- tionally absent, 120 whether his absence is technically correct, or not. 121 probably good, if not subject, and absence techni- cally correct. 121 unintentional absence, — good, 121 where defendant, subject to the jurisdiction, has no knowledge of suit : 122 but bad, where, not subject, the foreign procedure for non-resident defendants has been strictly followed. 122 that the Foreign Law (not of procedure) is against Natural Justice, good — but the defence is not regarded with any favour. 1 27 Digitized by Microsoft® 138 SUMMARY OF DEFENCES. CONTRARY TO INTERNATIONAL LAW. — very uncertain. 1 30 The English method of serving notice on non-resident defen- dants. 128 That the Foreign Judgment proceeded on Penal Laws — good. 114 Revenue Laws — good. 114 Statutes of Limitation — good. 1 3 1 Application to sign Judgment under Order XIV, should not be made. 131 English Statutes of Limitation to run on judgment, 132 most probably from date of judgment : 132 time of limit — 20 years — uncertain. 132 Nul Tiel Record. 133 Interest on Judgment, to be calculated according to Foreign Law. 134 Costs awarded abroad may be sued for. 135 Digitized by Microsoft® NOTE ON THE SUMMARY. 139 NOTE. It is impossible to attach too much importance to the con- sideration involved in almost every section of the Chapter on Defences, — that one Court of Justice must of necessity presume another Court of Justice, irrespective of its nationality, to have acted well and justly: — and that 'judicial misconduct' therefore is sufficient to excuse the performance of the legal obligation. This is entirely consistent with the result that must be apparent from the discussion upon absence of the Court's jurisdiction over the person, that the general proposition is in effect reduced in its application to some case of judicial misconduct, or negli- gence. The cases in which the jurisdiction over the person cannot be attacked, are ; primarily, those where the Foreign Court has no need of assuming jurisdiction, that having been already granted to it by the Courts of the defendant's country, acting upon the principles of International Law, or of general justice ; and secondarily, those where the Foreign Court has assumed juris- diction, not necessarily in accordance with the principles of International Law, but rather with those of general justice, which are sufficiently large to admit of a free yet just use of the dis- cretion vested in the Foreign Legislature. Now the case of ' judicial misconduct ' that perhaps suggests itself most naturally is, where a man abroad with a purely ficti- tious cause of action, makes such affidavits as may be necessary to establish his claim, and the Foreign Court, aiding and abetting him, or simply shutting its eyes, and acting negligently does not conform to its own procedure ; and without giving even that Digitized by Microsoft® 140 NOTE ON THE SUMMARY. meagre notice which some Foreign Countries require, allows the plaintiff to sign judgment by default. Should he bring his judg- ment to England, and endeavour to enforce it, — not being within any of the exceptions to the general rule, and the Court not having assumed jurisdiction in conformity with its own law, the defence of absence of jurisdiction could be successfully sus- tained. But, it is absolutely necessary to assume, if the Foreign Court has put its artificial process into operation, thereby assuming jurisdiction over the absent defendant, that it has required sufficient evidence — or rather that the law of the country has declared so much evidence to be necessary as to compel the plaintiff to establish at least a prima facie cause of action, upon which, if the defendant does not appear, he may justly be allowed to sign judgment by default. One other case only need be mentioned ; — where the plaintiff has wilfully kept back from the Foreign Court the fact that the defendant is not resident within its jurisdiction, and he has thereby been enabled to obtain judgment by default : but this falls within the good defence of unintentional absence, through not having been served with process : This is the case suggested by Crompton, J., in Castrique v. Behrens : where, 'by the contri- 'vance of the plaintiffs, the proceedings were such that the ' defendant had no opportunity to appear in the Foreign Court ■ and dispute the allegations.' Digitized by Microsoft® 141 Chapter III. CHAPTER 1 1 1.- JUDGMENTS IN REM. Page The English Doctrine 142 A. Judgments referring to land or immoveables Defences B. Admiralty decisions in prize a. underwriters Defences Neutrality Conclusions ' Enemy's property ' . simple condemnation other grounds violation of Treaty . „ Foreign ordinances ' enemy's property' with ordinances ' violation of Treaty ' „ breach of International Law 3. purchasers Defences C. Admiralty decisions not in prize . Defences Examples Cammell v. Sewell Castrique v. Imrie Principles for determining if ment is in rem D. Condemnations in Exchequer . Acquittals Summary judg 145 146 147 148 149 152 152 153 153 1 54 155 156 IS7 158 159 159 1 59 160 160 161 161 163 Digitized by Microsoft® 142 JUDGMENTS IN REM. We have hitherto confined our attention solely to Chapter judgments in personam : there remain to be con- Definition, sidered judgments in rem. These are 'judgments Cackburn, . jg^gj-j^j^jng the Status of the chattel with reference ' to property, or vesting the property at once in the ' claimant as a condemnation of the Court of Ex- ' chequer 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.' (Cockburn, C.J. — Castrique v. Imrie.) Castrique From a judgment in rem, — which may be given in 30 L. J:' a suit on a cause of action arising out of the viola- ^- ^- i77- Jus in rem tion of either a jus in rem. or a jus in personam, — from'Mg- ^^"^^ results to the successful claimant 2. jus in rem ; ment in that is, the property is vested in him as against everybody else ; or, using the more common ex- pression, as against all the world ; which evidently must 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 juris- diction of the English Courts : — [This is of larger Markby's application than Mr : Markby's definition, ' against e mtion. . ^jj pgj-sons, members of the same 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 ; and the right to this property, all other Courts under the same Sovereign Authority, will protect, should it be called in question by anyone. Differences Now, from a judgment z« personam there results )u7^lem °"^y ^J^^^ "'■ personam : This right also is in a certain and Jus in person, but it is in him only as against one particular resulting' and definite person, (or particular and definite ju°dgments. P^''sons, or their representatives) : To this jus in Jus in personam, there is a correlative obligation ; The sanc- tersonam. tion attaching to the obligation is resident in the Digitized by Microsoft® JUDGMENTS IN REM. I43 Chapter Sovereign Authority of the State : But it is only when ' the subject of this obligation — a party to the original When the 111- .1 . . 1 right is action — attempts to call this right in question, that considered the Courts will consider the right as established by f-^^^*?^' the first adjudication, and will not reopen the merits of the case. But to the jus in i'em resulting from a 'yxd^^- Jus in rem. ment 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, from the very nature of the right : The decision of the Court is that the right to the thing is in a certain person only, and in no one else : To this jus in rem there is a correlative duty — to The duty which no definite name, as opposed to ' obligation ' has been given : — and as before, the sanction attaching to it is resident in the Sovereign Autho- rity of the State. We arrive at a result similar to that arrived at in the case of judgments in personam : — When any when the one, a subject of this duty — (that is, any one with- '^^^\'f in the jurisdiction, everybody having been parties as estab- to the original action ; the citation to all the world '^ ^ ' being in effect artificial, and being recognised as sufficient notice to all, or any, having any claim to make to the goods) — attempts to call this right in question, the Courts will consider the right as established by the first adjudication, and will not reopen the merits of the case. The judgment in personam is therefore a special case of the judgment in rem. So far we have considered the English recogni- Foreign tion of a judgment in rem pronounced by an ^^ ^f"' English Court : we will proceed to the case of a judgment in rem pronounced by a Foreign Court. Digitized by Microsoft® 144 JUDGMENTS JN REM. Recapitu- -phg Conclusion arrived at in the first Chapter was, Chapter lation: con- , . . . Ill, elusion as that in addition to the obligation and sanction menuw' resident in the Sovereign Authority which arose personam, upon a judgment in personam, there also came into being in every other etate a bare obligation — re- sembling somewhat the nudum pactum of the Roman Law — which, when the subject of the obli- gation enters any Foreign State, the Sovereign Authority of that State, clothes with an auxiliary sanction, enforceable 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 as"o 'ude" resident in the Sovereign Authority which arise upon ment in a judgment in rem — 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 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 principles of Inter- national 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 Again, before the Courts of the Foreign State, at continued, the instance and discretion of the possessor of the Judgments right in personam, clothe with this international Tersonam. auxiliary Sanction the bare obligation consequent Digitized by Microsoft® ]VV)GMENrS /JV ^EM. 145 Chapter upon a judgment m personam, the subject of the ! — obligation may negative its existence, or excuse the performance of it ; — so, it follows that. Before the Courts of the Foreign State, at the Ultimate instance and discretion of the possessor of the right ^° j^ "^'° m rem, clothe with this international auxiliary sane- judgments , . , , . , , . . in rem. tion, the bare negative obligation consequent upon the judgment in rem, as against any subject of the negative duty, — (the subject of the Foreign State who has disobeyed that duty by violating the right in rem) — that subject may negative the existence of that negative duty, or may excuse his disobedience to it. That is to say, a foreign judgment in rem may be met with the same defences that may be raised to a judgment in personam : The difference between Real dis- the two classes of judgments being, that whereas ^'"("^^'^g" third parties are entitled to have a judgment ?'« judgments personam entirely disregarded as against them- i^pgy. selves ; they are bound by a judgment in rem, so •'''««'«• far absolutely, as that they can do no more than negative the existence of the duty imposed by it. This is the theoretical view of the case : we must now examine how far this view is supported by authority. It will be convenient to consider the subject Division under the following heads : — subject. A. Judgments referring to land or immoveables. B. Admiralty decisions in matters of prize. C. Admiralty decisions not in matters of prize. D. Condemnations of Exchequer Courts. A. Foreign Judgments referring to land OR IMMOVEABLES. In all cases where the matter_ in controversy is Judgments L Digitized by Microsoft® 146 LAND OR IMMOVEABLES. referring to land or immove- ables. Story. §591- DE- FENCES. Juris- diction. Fraud. De Grey, C.J. Error. land, or other immoveable property, ' the judgment Chapter 'pronounced in the forum rei sites is held to be of Natural Justice. ' universal obligation, as to all matters of right and ' title which it professes to decide in relation thereto. ' This results from the very nature of the case; for no ' other Court can have a competent jurisdiction to ' inquire into or settle such right or title. By the ' general consent of nations, therefore, in the case of ' immoveables, the judgment of the forum rei sitcB ' is held absolutely conclusive.' (Story — Conflict of Laws, § 59 1.) To apply the theory of defence : — The jurisdiction of the Court cannot be attacked ; for the subject of the action is necessarily within the jurisdiction : It is impossible therefore to negative the existence of the duty : In what manner can the disobedience to it be excused .-' We are here guided by authority : Fraud may be set up : — ' Fraud is an extrinsic, ' collateral act : which vitiates the most solemn pro- ' ceedings of Courts of Justice. — Lord Coke says, ' it avoids all judicial acts, ecclesiastical or tem- 'poral.' (Sir William de Grey, C.J. — Duchess of Duchess of Kingston's case) ^ ingstons ° ' . case. The Fraud, as in the case of judgments in per- 2 Sm: sonam may be either on the part of the plaintiff, or ^' '"' ^^°' of the Court. Error on the part of the Court was found to be a bad defence to a judgment in personam, and therefore bad also as a defence to a judgment in rem. Two cases were considered doubtful : ' apparent ' error ' and ' wilful error.' The doubt also exists here and will remain, till there is an express deci- sion by the Courts. Lastly, that Natural Justice has been violated Digitized by Microsoft® ADMIRALTY DECISIONS. I47 Chapter by tjjg proceedings in the Foreign Court, was ^ found in the case of judgments in personam to reduce itself almost entirely, to the considera- tion of the peculiar method of citation used for absent defendants : — In the case of judg- ments in rem, as regards the actual parties to the foreign action, the considerations are the same ; as regards third parties, from the nature of the case, this defence cannot be raised, for the citation being to all the world, is of necessity an artificial one. Thus, although the judgment is conclusive ' by ' the general consent of nations,' the principle is in strict accordance with the Theory advanced. The converse case is where a judgment has been Converse pronounced in any country, referring to lands or '^^'^^' immoveables in any other country. ' On the other hand,' Story continues, ' a judg- Story. ' ment in any Foreign Country, touching such im- ^ ^^'' ' moveables, will be held of no obligation.' For the Court had no jurisdiction over the subject matter of the action ; therefore the existence of the duty may be at once negatived, by attacking the jurisdiction of the Court. B. Admiralty decisions in matters of PRIZE. a. As regards underwriters. In time of war. Foreign Admiralty decisions in Effect of matters of prize very frequently came before the dedsions^ Enfflish Courts. Nearly all the cases cited will be '" '^^^^^ ... r 1 • oetween found to have arisen m the early part of this assured century, during the wars between England and ^"^tgj"^^'' France. The condemnations of the Foreign Court were usually made use of in actions between the assured and the underwriters : The owner of the L 2 Digitized by Microsoft® 148 ADMIRALTY PRIZE DECISIONS. captured vessel claiming the amount of the insur- Chapter ance : The underwriters alleging a violation of the warrant of neutrality in the policy, and producing the foreign condemnation as proof. The The Foreign Condemnation, determining the Condem- Status of the vessel with reference to property, is a nation pro- judgment in rem, and vests the property in the captors : — we must inquire how far the authorities accord with the principles of the general theory. DE- The non-existence of the negative duty may be ' shewn by the party against whose property the judgment was pronounced, by attacking the Juris- Jurisdiction of the Foreign Court. DICTION. As in the case of The Huldah, in 1801 : which The was one 01 several cases of ships and cargoes , Rob: carried into S. Domingo, and proceeded against in ^- ^- 235- a Court of Admiralty which was held not to be vested with competent authority to proceed in prize causes. 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 adju- dication. Sir William Scott held, that although the Court had apparently authority, and distribu- tion had taken place ; yet, it not having authority, the proceedings were null and of no legal effect whatever. Admiralty The judgment of condemnation must evidently to°con- ^^ ^y ^^ courts of the belligerent power, within d'emnonly their own territory. Such a sentence therefore, territory pronounced by a Court of Admiralty sitting under ofbelh- a commission from a belligerent power in a neutral gerent. o jr Country will not be regarded : As in the case of Donaldson v. Thompson : where Donaldson a Russian Court sitting at Corfu pronounced the ]oJ.^'"^' condemnation : and similarly in the case of the ' Campi 429. Digitized by Microsoft® NEUTRALITY. I49 Chapter Flad Oyen : where a ship was taken by a French ' Privateer and carried into Bergen, she underwent Ji^^, ^ there a sort of process endinsr in the sentence of Flad Oyen. , 8 T. R. condemnation by the French Consul. Sir WilHam ^7°"- 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.' This Haveiock decision was followed in Havelock v. Rockwood. ^wooT^' From the judgments of Lord Ellenborough, C.J., 8 T. R. in the first case, and of Sir William Scott in the 277 ' Flad Oyen, some important principles may be gathered. Neutrality. ' That country is to be considered neutral in General ■' principles ' which the forms of an independent neutral of ' government are preserved, although the bellige- "^"''^ ''y- ' rent has troops there as in reality to possess the Ld- EUen- ' Sovereign Authority.' ^^"y";^'"' 'The Russians were visitors at Corfu, and not ' Sovereigns. While a government subsists as this ' did at Corfu, we can't look to the degree in which ' it might be overawed by a foreign force.' But if the country has become a co-belligerent by enduring a hostile aggression, — that is, has been overawed, — the conderrination pronounced there Donaldson wiU be received. {Donaldson v. Thompson.) V. Thomfi- < -pj^g j.^jg J ^^^^ .^j^g j.^^ should be in the ports Sir W. son. ' ^ ^ ff 1 Camp: ' of the belligerent nation : very few deviations son. iC 429, ' have 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/ Digitized by Microsoft® 150 ADMIRALTY PRIZE DECISIONS. ' A neutral country has no cognisance whatever, CiAoter ' except in the single case of an infringement of its ' own territory.' The necessity of such a rule is evident : if there were no such rule, every port of every nation would become a port of condemnation. (The ^^' *^ Flad Oven. tlad Oyen.) 8 T. R. The remarkable words of Lord Ellenborough as ^''on- to the general principle of receiving these con- Ld: Ellen- demnations must be here noticed : — ' I am by no borough, . ^^gJ^J,s disposed to extend the Comity which has ' been shewn to these sentences of Foreign Admi- ' ralty 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 ' Hughes V. Cornelius, which does not fully support Hughes v. ' it ; and the practice of receiving them often leads ^ Sm^ ^"'' ' in its consequences to the grossest injustice.' L. C. 773. Fraud. The second defence to be considered is Fraud. The question of fraud does not appear ever to have been raised : and it is somewhat doubtful in what manner it could arise : Should the question however come to be discussed, there can be no doubt that the judgment of De Grey, C.J., in the [page 146] Duchess of Kingston's case, cited above, would apply to foreign condemnations ; and that fraud, either of the parties or of the Court, would render the sentence void : — Parke, B., in the argument in « J'lace. re Place, where an English judgment in rem had g^: 241. been produced, said that fraud might be set up against it. Natural The remarks as to the defence against Natural Justice, j^g^j^g jn the case of judgments referring to land, apply to Admiralty prize decisions. Digitized by Microsoft® ADMIRALTY PRIZE DECISIONS. iSi Chapter III. Baring v. Clagett. 3 B. & P. 201. Lothian v. Hender- son, 3 B. & P. 499- Marshall V. Parker. 2 Camp: 69. Von V. Dubois. 2 Camp: 151- The effect of these decisions must now be more fully considered. ' These sentences are admissible and conclusive ^'■ ' between the assured and the underwriters with c.y. ' respect to every fact which they profess to decide.' (Lord Alvanley, C.J., Baring v. Clagett^ The Question question between the assured and the underwriters assured is : Has the warrant of neutrality been violated .? ^"t "'^'^®''' ■' . writers. Was the ship at the time of her capture doing such things as a neutral vessel might do .'' The under- writers produce the condemnation of the Foreign Prize Court : if therefore this sentence says abso- lutely, 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 under- writers. The right of the underwriters to produce the sentence was questioned in Lothian v. Henderson. The majority of the Judges held that they were clearly entitled to do so. In Marshall V. Parker, Lord Ellenborough, C.J., held that it was necessary to lay a foundation for the sentence, by proving that the vessel was cap- tured : till that had been done, the sentence was merely in vacuo : — And in Von Tungeln v. Dubois the same learned Judge decided that a ship being merely represented neutral, there was no warrant of neutrality ; and that therefore a condemnation for a violation of the laws of neutrality, was not evidence to falsify the representation. As to the difference between a representation and a warrant of neutrality, — cf: Marshall on Insurance. 4th ed : p. 346. Digitized by Microsoft® 152 ADMIRALTY PRIZ£ DECISIONS. The first conclusion at which we arrive is therefore ; Chapt« 'Enemy's If the ground of condemnation be clearly set forth property.' ^^ ^^ ^^^^ ^^^ ^^^^ ^^ enemy's property, it will be held conclusive. Cases. Bernardiv.Motteux} Lord Mansfield, C.J. 575°°"^^' Calvert V. Bovill? Lawrence, J. «7T. R. Geyer v. Aguilar? Lord Kenyon, C.J. S^S- Christie v. Secretan.'^ „ gg, ' Pollard V. Bell-" „ * 8 T. R. Kindersley v. C/^aj^.« Sir W. Grant, M.R. ^9^^ ^ Baring v. Clagett"} Lord Alvanley, C.J. 434.. Lothian v Henderson? Le Blanc, J. * Park on _, , T Insurance Chambre, J. 8th ed: 743- '38. & P. 'Enemy's The next consideration is, where the ground of 201. noi^sSed. enemy's property is not clearly set forth: nothing * 3 B. & P. appearing but the mere condemnation. Autho- There is a conflict of authority as to the conclu- favourof siveness of the sentence. inference In Lothian v. Henderson, Lord Eldon, L.C., said : Lothian v. made. ' The question would be whether such sentence of ^ g^ ^p ' Ld: Eldon, ' condemnation must not be presumed to have been 499- ' founded on the only legitimate ground on which ' they can be founded, viz : — the property not being 'neutral but hostile.' And in Pollard v. Bell, l^e. Pollard v. Le Blanc, Blanc, J., said : — ' If there be a general sentence of g r^ ^ ^' ' condemnation, without assigning any reason, the 434- ' Courts here will consider that it proceeded on the ■ ground of the ship's being the property of an ' enemy.' In Bernardi v. Motteux, Lord Mansfield, Bemardi C.J., appears to have doubted whether the inference aDougl: Ld:Mans- should be made: he remarked that the ' inconve- S7S- field, C.J. , nience would be entirely obviated if the foreign y^.ivood- ' Courts would say in their sentences, — condemned ""'^■ ! . > 1 , - 1 ^ , . Park on as enemy s property — but m a later case, Saloucct insurance, V. Woodmas, he held that the ship being condemned ^* ^^' Digitized by Microsoft® ADMIRALTY PRIZE DECISIONS. 153 Chapter III. Dalghish V. Hodson. 7 Bing: 495- Fisher v. Ogle. I Camp: 418. Christie v. Secretan. 8T. R. 192. 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, C.J., in Fisher v. Ogle, are entirely against this inference being made. The last consideration is where grounds other than ' enemy's property ' are set forth : — Of these the first to be noticed is, iPark on Insurance, Sthed: 431—730. ''id: 725. 37 T. R. 681. 08 T. R. 434- ^8T.R. 562. • I East, 663. ' 3 B & P. 201. * 7 Bing: 495- Authori- ties against the in- ference being made. Other grounds. VIOLATION OF TREATIES : — ' We should not be Violation of ' able to extricate ourselves from the effect of such a Treaties. ' sentence.' (Lord Kenyon, C.J., Christie v. Secretan}) ^'' „ A most common ground of condemnation appears c.jf. to have been, OF ORDINANCES of the Foreisn Violation ^ of ordi- VIOLATION Country. nances. English Judges have been almost unanimous in rejecting such condemnations, and refusing to be bound by them. The reason for this refusal being that these ordinances 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 ^'l- ^^'"• ' persons and mercantile people are bound to take ' notice of them for their own safety.' (Lord Mansfield, C.J : — Barzillay v. Lewis ^.) Mayne v. Walter} Lord Mansfield, C.J. Lord Kenyon, C.J. Barzillay v. Lewis?- Geyer v. Aguilar? Pollard V. Bell} Bird V. Appleton-' „ Price V. Bell? Baring V. Clagett} Lord Alvanley, C.J. Dalgleish v. Hodson? Tindal, C.J. It is evident that the breach of the warrant of Digitized by Microsoft® 154 ADMIRALTY PRIZE DECISIONS. Lawrence, neutrality cannot possibly be proved by a sentence Chapter Pollard y °^ condemnation proceeding on the ground of non- ; Bdl. compliance with certain peculiar ordinances of a foreign country : the sentence for this purpose is therefore rejected. For example, the French ordinance on which the condemnation in Bird v. Appleton proceeded, re- Birdv. quired that the lists of crew and despatches should gx! k"' be regular. That is neither required by the Law of 562. Nations, nor was it by Treaty between the two powers — France and the United States. Con- But these conditions may be again varied : — < enemy's By the aid of these Foreign ordinances, the Court property ' ^^y have arrived at the conclusion that- the ship was by the aid ofor-di- enemy's PROPERTY. The English Courts have held nances. themselves bound by such sentences 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. Sir w. ' AH these ordinances meant was to lay down rules Grant, ' q[ decision conformable to what lawyers and M.J(. ■' 'statesmen of the country understood 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. Kindersley Ld- Chase) And again ; — ' Looking at the whole of the Park on" Ellen- . sentence, it is impossible not to see that the French Insurance, borough, ' ^ 8th ed: C.y. ' Court canvassed and decided on the probability 743. ' 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 estab- Digitized by Microsoft® ADMIRALTY PRIZE DECISIONS. 155 Chapter ' Ushed indicia on that head, collected together in III. ' the ordinances it refers to.' (Lord EUenborough, Bolton Y. C.J. — Bolton V. Gladstone.) And in the same 5 East " *^3-ss on appeal, Lord Mansfield, C.J., said: — ' \i Ld: Mans- 'SS- ' the Court comes to the conclusion that the vessel '^ ' '^' ' is not neutral, it is quite immaterial through what Hobbsy. ' media it arrived at it.' So also, Erie, C.J., in Hobbs 34 L. J: V. Henning: — ' We have no jurisdiction to inquire Erie, c. P. 117. ( jj^^Q ^jjg validity of the legal grounds of the judg- ' ' ment.' Baringy. The decision in Baring v. Royal Exchange Assur- 'Infrac- Ass: Co: <^i^'^^ Co : proceeds on the same ground : the condem- Treaty' 5 East 99. nation was for infraction of a Treaty requiring ships ^y ^^^f"^ to be properly documented : but the inferences nances. were drawn in the sentence from ex parte ordinances in aid of the conclusion of such infraction of Treaty. Lord EUenborough, C.J., held that the Court was bound to give credit to the sentence, although the Foreign Court had ' construed the Treaty iniqui- tously.' Briefly, the conclusions at which we have arrived Conclu- sions. are these : — i. The Foreign Condemnation is conclusive, when it declares the vessel prize, as being enemy's property ; irrespective of the grounds 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 on the Foreign Country. But these conclusions are drawn from cases be- Conclu- tween underwriters and the owners suing for the reviewed. assurance on account of the loss of the vessel by Digitized by Microsoft® 156 ADMIRALTY PRIZE DECISIONS. capture : in which the foreign sentence has been Chapter made use of merely for the purpose of deciding the question of the violation of neutrality : if therefore the doubt contained in the second conclusion should ever be decided against the conclusiveness of the condemnation, it will not in any way interfere with the theory of the conclusiveness of Foreign Judgments generally. It would appear that not being absolute in favour of the underwriters, it is absolute in favour of the assured. The difficulty lying in the solution of the question, does the Judg- ment 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. This consideration would apply also to the third conclusion, viewing it merely as deciding the ques- tion in issue between the underwriters and the as- sured. But the Judges have implied more than this ; The ground given primarily for the rejection of the sentence has been certainly that the warrant of neutrality cannot be negatived by a condemna- tion proceeding on purely arbitrary ordinances ; but the inference to be drawn from the tenor of the judgment is, that English Courts refuse to recog- nise such decisions, based upon ordinances not in accordance with International Law. Breach of It will be remembered that in the Chapter on natSnal Defences, the defence relying on a breach of Inter- Law, national Law was not dealt with generally ; it being foreseen that such a definite conclusion as that a breach of International Law would be, with- out exception, a good ground for rejecting the foreign judgment could not be arrived at. This case must therefore be separately considered. Now in these cases proceeding on Foreign ordin- Digitized by Microsoft® ADMIRALTY PRIZE DECISIONS. Chapter ances, there is an assumption on the part of the Foreign Court : And the English Courts have held 157 that assumption to be, not a mere breach of Inter- national Law, but a breach arbitrary and oppressive upon the owners of merchantmen : that the discre- tion vested in the Foreign Government has been unwisely and unreasonably exercised ; that this exercise has been dictated merely upon grounds of war : Therefore they have refused to be bound by the decision. It must be borne in mind that this refusal has never been actuated by warlike feelings on the part Geyerv. of the English Courts. (Ashhurst, J. — Geyer v. Agmlar. ^ ., s . , , . . , , , ^ , 7 T. R. Agmlar) And this is borne out by the fact that ™'' in those cases where the ordinances — although arbi- trary and not in conformance with International Law — led the Courts to the conclusion that the ship was enemy's property, or that a Treaty had been violated, the decisions have been recognised. /3. as regards purchasers. Effect of The effect of these Admiralty prize decisions , Z7 iiimpson V. pogo. D. Condemnations of Foreign Exchequer Courts, The last division of Foreign Judgments in rem Condem- , . , 1 • 1 ^ , nations of comprises those which correspond with Condemna- Exchequer tions in the English Court of Exchequer. Courts. These condemnations depending upon the Revenue Revenue Laws of the Foreign Country, it is pre- sumed they will not be regarded. Finally, we must consider the converse of Judg- ments in rem, Acquittals. Cookey. The subject was argued in the case of Cooy^^ v, Acquittals. 5 T. R Shall, where an acquittal in the Exchequer was 255- given in evidence. Lord Kenyon, C.J., said ' that Ld-. ' he conceived that the judgment of acquittal, being cJj.""' ' a judgment in rem, was conclusive as to the ques- M Digitized by Microsoft® 1 62 ACQUITTALS. • tion of the illegality of the seizure, and precluded Chapter * all reasoning upon the construction of the permit.' 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 Sir R. being absolute has been questioned : — ' For the Philli' ... ... . . fnore. ' acquittal does not, like a conviction, ascertain any 'precise fact, and may have proceeded on the 'ground of insufficient evidence.' Theo- Now a judgment in rem vests a right in a certain view of the person ; and imposes on every one else the negative case. duty correlative to the right : An acquittal vests a right in a certain person ; but the obligation correlative is positive, and is imposed exclusively upon the officer who has seized the goods, to deliver them up to the owner : It would appear therefore, that an acquittal is in reality a judgment in personam. Digitized by Microsoft® t63 SUMMARY OF JUDGMENTS IN REM, Definitions. 142 DifTerence between y«j in personam and jus in rem resulting from judgments. 142 Jus in personam only considered established where party to the action calls it in question : 143 Jus in rem considered established when, any one calls it in question ; because all are parties to the action, as the jus in retn resulting from the judgment is against all the 'world,' the correlative duty attaching to everybody. 143 Judgment in personam, is a special case of judgment in rem.. 143 Conclusion as to bare obligation and auxiliary sanction in the case of judgment in personam recapitulated : 144 parallel conclusion in the case of judgment in rem. 144 Conclusion as to defences to judgment z'?«/^rj(?«a»« recapitu- lated : 144 parallel conclusion in the case of judgment in rem. 145 Conclusion : — real distinction is that while third parties are entitled to have a judgment in personam disregarded, they are bound by a judgment in rem. 145 Judgments referring to land or immoveables : — 145 the defences. 146 Admiralty decisions in matters of prize — 147 Foreign condemnation produced by underwriters to negative warrant of neutrality contained in policy : 148 it must do this proceeding on grounds not at variance with International Law : 148 — 157 the defences. 148 The condemnation must be pronounced within the Foreign territory : 148 Neutrality considered 149 M 2 Digitized by Microsoft® 164 SUMMARY OF JUDGMENTS IN REM. conclusions from these cases reviewed ; although some apparently are not consistent with the theory, in reality they do not affect it. 155 As between purchasers, the condemnation is one of the title-deeds of the ship. 157 Admiralty decisions not in matters of prize : 159 two recent decisions considered. 159. 160 principles for determining whether a judgment is in rem or in personam. 160 Condemnations of Foreign Exchequer Courts: 161 proceeding on Foreign Revenue Laws, not conclusive. 161 Acquittals, formerly considered as equivalent to judgments in rem : 162 in reality they are judgments in personam. 162 Digitized by Microsoft® i6s Chapter IV. CHAPTER IV.— STATXrS. Page I. Marriage. Divorce. Legitimacy . . .167 i. effect of foreign sentences between foreign subjects. 167 a. marriage celebrated in the country to which parties subject . . 167 /3. marriage celebrated in any other country. . . . . .167 ii. effect of sentence of one country dissolving marriage solemnized in another country . 168 AozXxvn^ oi lex domicilii . . .168 „ „ lex loci contractus . .169 assumed jurisdiction, as by Scotch Courts in Shaw v. Gould. .... 171 note on Mrs: Bulkeley's case in the French Cour de Cassation II. Lunacy Lunacy Regulation Act, 1853 III. Guardianship review of cases IV. Probate review of cases minority 20 & 21 Vic : c. 77. V. Bankruptcy i. Adjudication and assignment a. effect of foreign adjudication in England ... .201 /3. effect ofEnglish adjudication abroad 204 184 i8s 188 188 192 193 196 197 Digitized by Microsoft® 1 66 STATUS. ii. Injunctions pending proceedings . . 209 chapter iii. Final discharge ; effect on the bankrupt's IV. obligations o. discharge by country of contract . 214 yS. discharge by country not of contract 216 iv. Personal status of bankrupt . . . 224 Summary ........ 225 We must now proceed to the consideration of those quasi judgments in rem deciding questions of status : Division The division of the subject will be as follows -.-^ of the T n/r • T^- T subject. I- iVlarnage. Divorce. Legitimacy. II. Lunacy. III. Guardianship. IV. Probate. V. Bankruptcy. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 167 Chapter I. MARRIAGE. DIVORCE. LEGITIMACY. Being intimately associated, it has been thought Mama-e. 1 • , , , , . , Divorce, best to consider these three subjects under one Legiti- division. '"^'=y- Briefly, the questions involved are : — i. What effect is given to foreign sentences '^^^ . ° ° questions upholding or annulling marriages between involved. the subjects of the Foreign Country .'' ii. Can a marriage solemnized in one country be dissolved in another.? If this is done, will the sentence of divorce be recognised by the Courts of the Country in which the marriage was solemnized .-' i. The discussion of the first question is not The effect of foreign involved in any difficulty. The only two cases that sentences -rise are ;- _ ^^^ a. Where the marriage was celebrated in the subjects. country to which the parties are subject. /3. Where the marriage was celebrated in a forei'gn country. a. In this case there can be no doubt that the Where the decree will be recognised : for the Courts of the celebrated Foreign Country having jurisdiction over the '" country ■ , , ■ • , , 1 • , ■ to which parties, and having considered the question, their parties decision must have effect given to it by the Courts ^"'^J'^'^'- of another Country before which it comes ; whether that decision upholds or annuls the marriage ; and the children of a second marriage will be considered illegitimate or legitimate according to that decision. SAaw V. (Lord Cranworth — Shaw v. Gould.) L. R. 3 ;3- The second case is not quite so free from doubt. Where H. L. 55. j^ j^j^y jjg stated in another form : — Can an English marriage marriage between two foreigners be annulled by celebrated the Courts of their own Country } coimt?y."^" Digitized by Microsoft® of another counliy. 1 68 STATUS. Lord Cranworth however expressed his opinion Chapter that such a divorce would be binding on the- English Courts ; and that the children of a second marriage would be held legitimate. Effect of ii. The second question remains to be considered, olone'^^ For convenience we may take the parties to be country English ; the marriage to have been in England ; dissolving ° , ,. 1 • c 4. marriage and the sentence of divorce to have been m boot- land. (The Enghsh Divorce Laws not being in operation in Scotland.) To what extent is this sentence entitled to respect from the English Courts .■■ The whole subject was elaborately discussed in the House of Lords, in i868, in the case of Shaw ShaWY. V. Gould ; and judgments were delivered by Lords l r. '3 Cranworth, Chelmsford, Westbury, and Colonsay. H.L. 55. It will be convenient to follow the line of argument propounded in their Lordships' judgments. Effect of Lolley's case, which has been repeatedly con- LoUff^ LoUey's sidered and reviewed, decided this point, and no 2 CI: & ""''■ more: . Fin: 567. ■worth. ' The Scotch Court has no power to dissolve an ' English marriage, where the parties are not ' domiciled in Scotland, but have gone there only ' for such a time as would render them amenable to 'the jurisdiction of the Scotch Courts.' The old The old doctrine, that a Foreign Court has no doctrine of 1. 1 t- i- 1 indissolu- power to dissolve an English marriage, does not rfEn lish ^^^^ °" ^^y recognised rule of International marriage Law, and Cannot be supported. It seems indeed not main- j. „ i ■ • r . 1 , tainable. *° regard marriage as a species of judgment which Foreign Courts have no power to review. Marriage The marriage contract does not stand on the not a civil . . contract; Same footing as Ordinary busmess Contracts ; and the Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 169, Chapter lex loci contractus is not the sovereign rule for lexdomi- ' determining, and is not necessarily to be adopted governing by the Foreign Court whilst it is determining ' all principle. ' questions as to the rights, duties and obligations co'ionsay. '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 Colon- say.) In certain cases however it may be necessary to Where take the lex loci contractus as the governing prin- contractus "^Pl^^ , folWd. for example ; if the enquiry be whether the formali- ties necessary 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 is it not to be applied. — ' If a divorce is to be regarded as a remedy for the Ld-. ' breach of the matrimonial contract, it is a general y^^^""' 'principle of International Law that all remedies ' depend upon the lex fori, and not on the lex loci ' contractus! (Lord Chelmsford.) .Sanowra v. [^i^ Svmonin V. Mallac however. Sir C. Cresswell The other 29 L. j": said that the contract of marriage was to be judged uxhci P. & M. q£^ g^g g^j^y othcr contract, by the lex loci contractus ; /contractus except in certain cases where it would give way to governing the lex domicilii: viz : in ' marriages involving ^""^''' ^' ' polygamy and incest ; those positively prohibited Cresswell. ' by the law of a country from motives of policy, ^^^l^llii^ ' e.g. by our Royal Marriage Act.' to befol- The result appears to be the same as that of the principle just enunciated.] We are therefore to consider a foreign .divorce in Foreign the same manner as any other foreign judgment ; gal^'eas and, marriage not being strictly a contract, the any other defences that the lex loci contractus, that is the judgment. Digitized by Microsoft® 170 STATUS. Error. Ld: Colonsay, DE- law of England, has been misinterpreted either Chapter FENCES, ' . .• \t .t^ ■,-, <• 1 IV unintentionally or wilfully are at once negatived. " Before leaving the subject of error, there is one paragraph in Lord Colonsay's judgment which must be noticed The respondents denied that the decree was valid according to the law of the country where it was pronounced. His Lordship said : — ' If 'we are to go into that enquiry, we must deal with ' it upon the evidence, and the evidence, so far as it ' goes, is in favour of the validity of the decree. I ' therefore presume that we must deal with the case ' upon the footing that the decree is or may be, a ' valid decree of divorce in Scotland.' It is sub- mitted, that the validity of the decree according to Scotch law cannot be questioned or gone into ; and that there is no reason for not treating the judgment of divorce in the same way in this respect as all other judgments : — that they cannot be reviewed on account of an error in their own law or procedure. We come now to the consideration of the impor- tant defence by which the Jurisdiction of the Court pronouncing the divorce is attacked. The person against whom the divorce has been pronounced may have been either — i. dond fide in the country, and have received notice : or ii. not in the country, but have received notice : or iii. not in the country, and not have received notice : or iv. the divorce may have been granted ex parte. In the latter case the Court's jurisdiction may be attacked. {Colliss v. Hector.) In the other cases, C<7/&jv. should they arise, it is presumed that the principles ^'^d'"^' applying to other judgments would also apply here ; Eq: 334. the proceeding ex parte however, from its nature. Juris- diction, Divorce granted ex parte. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 171 Chapter IV. ^haw V. Gould. L. R. 3H. L ss- acting parties in fraudem seems to be the one which would most frequently arise. But although the Court apparently had jurisdic- Jurisdic tion over the parties, this jurisdiction may have created by been created by the parties themselves in fraudem legis. For example, by the law of Scotland, a residence Assumed there of forty days gives the Scotch Court jurisdic- ]^™vorce" tion to entertain a suit for divorce against the ^y Scoteh person who has so resided. A man desirous of marrying a married woman, might induce her or her husband to reside in Scotland for this period, and for this purpose ; and then to proceed to obtain a divorce from the Scotch Tribunals. These were the facts in Shaw v. Gould. In that case it was held that the divorce was Not valid only by the laws of Scotland, and therefore j'^S^^'^^'i was restricted in its effect to Scotland ; but that in England. England it could not be regarded as having any binding effect, as one of the parties was not really domiciled in Scotland, but had gone there for the sole purpose of founding a jurisdiction, and of evading the laws of England. The question whether and what domicil would be Domicil. sufficient to found a jurisdiction in the foreign Court is involved in many difficulties : The domicil requisite to give the Courtjurisdiction to pronounce the divorce has sometimes been called '^(5i;2fl_^(/i?:' sometimes ' real ' — or ' complete '— or ' for all ' purposes ' (Lord Colonsay) ; but the better opinion seems to be, that where the dissolution of marriage has been obtained, whether with or without an acquired domicil in the Foreign Country, in fraudem legis, it will not be recognised. ' But, if you put the case of the parties resorting Temporary 'to Scotland with no such view, and being resident scotlan"™ Digitized by Microsoft® 172 STATUS. not in fraudem legis. Ld: Colonsay. Example of animus revertmdi. Lolley's case and Shaw V. Gould identical. ' there for a considerable time, though not so as to Chapter IV ■ change the domicil for all purposes ; and then ; ' suppose that the wife commits adultery in Scot- ' land, and that the husband discovers it, and imme- ' diately raises an action of divorce in the Court in ' Scotland where the witnesses reside, and where ' his own duties detain him, and that he proves his ' case and obtains a decree, which decree is unques- 'tionably 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, be- ' cause it had not been pronounced by the Court of ' Divorce here. How would the Court of Divorce ' here deal with the converse case ?' (Lord Colonsay.) This question was raised as a very doubtful one by Lord Chelmsford ; and also in Conway v. BeazLey. Conway y. But in Pitt V. Pitt, which was decided by the ^gf-^-. House of Lords in 1864, the counsel for Colonel E. R. 639. Pitt, the Respondent, admitted that the sentence of -^^.J^^- divorce which he had obtained in Scotland could 4 Macq: not be upheld unless it could be shewn that before ' ' ^^' and during the suit Colonel Pitt was permanently domiciled in Scotland ; and the Lords, being of opinion that he had no such domicil, by reason of there existing an animus revertendi, — he having gone there merely to evade his creditors, — held Lolley's that the Scotch Court had no jurisdiction to pro- '^'^^^; „ ^2 Cl: & nounce the decree of divorce. Fin: 567. The decisions then in Lolley's case and in Shaw •^'''««'v. 1 -1.1 Gould. V. Gould must be taken as identical. l. R. 3 From the expressions which fell from Lord ^" ^' .^5' Cranworth at the close of the latter case, his lord- Robin" ^' ship's judgment in Dolphin v. Robins is now to be ^ \-}; taken as not exceeding the principle of these n. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. Chapter Conway v. Beazley is to the same effect : and see " also Brook v. Brook and Tollemache v. Tolleniache. 173 P. &M IIS- Conway v. "p^e principle therefore enunciated by Kindersley, 3 Hagg : V.C, when Shaw v. Gould was before him {in re E. R. 639. f^2'/r^^'j Trusts), and which was also held by Lord Btook v. Brook. Eldon, L.C., in Tovey v. Lindsay, and by Lord ca^ioV Brougham, L.C., in M'Carthy v. Decaix, as to the Tollemache indissolubility of an English marriage by a decree V. ro//«- pronounced by a Foreign Court, must now be taken 30 L.J: to be overruled. So too the judgment of Lord Penzance in Shaw v. the Attorney-General, that ' in Ld: re ' no case can a foreign divorce invalidate an English '"■'''^"'^'- f^°i"^ 'marriage between English subjects, where the 35 L. J: ' parties were not domiciled in the foreign Country ' „ must be taken to be qualified in the manner sug- Lindsay. gested by Lord Colonsay. Lord Penzance seems 11-°^' also to have doubted whether even domicil itself M'Carthy would give the foreign Court jurisdiction : but that Ir.&Iw. ^f the divorce proceeded on grounds of divorce re- 614- cognised in this country, there being no collusion, ^aw V. ^jjg tribunals here would act upon the decree. This L. R. 2 appears also to have been the ground of the deci- , |.'g_ ■ sion in the goods of Harriet Crofts, goods of , It will be seen however that the conclusions we ^"fl^-^ have arrived at lead us to consider this distinction P. & D. unnecessary : — domicil not obtained in fraudem legis being sufficient to make the foreign decree valid. As to the wife's domicil, ' in general she is deemed Domicil of ' to have the same domicil as her husband : and she ^' ' cttory. ' can during the coverture acquire none other, suo § 136. 'jure! (Story — Conflict of Laws, § 136.) A more difficult question arises however in considering whether without exception the wife's domicil fol- lows that of the husband : It would appear that where the husband has acquired a new domicil as Digitized by Microsoft® 174 STATUS. Fraud. The mutual ar- rangement to found jurisdiction is not collusion. Example of coUu- cf: p. 127, above, infraudem legis, the domicil of the wife will Chapter remain unchanged. " Again, that Fraud in the ordinary acceptation of the word, that is, concert or connivance in the acts upon which the decree proceeds, will invalidate the proceedings, there can be no doubt : but Fraud may- be greatly extended so as to include collusion in obtaining the decree, and it has been argued that if a just cause of divorce exist, any arrangement to bring the facts before a Court of competent jurisdiction however purchased or obtained is un- objectionable. (Lord Chelmsford.) We have been considering the case of a mutual arrangement to found a jurisdiction in the Court ; this of itself is sufficient to invalidate the decree : but their Lord- ships carefully avoided calling this collusion, even though it were stipulated that the party going thus into the Foreign Country should receive a sum of money when the divorce was obtained. But there was collusion in Shaw v. Gould : the Shaw v. stipulation was that a sum of money should be l" r \ paid when the parties were divorced, but the reci- H. L. 55. pient was restrained from any attempt to defeat the proceedings, by the imposition of a forfeiture of the money in case he should, ' by himself, or by ' anyone through him, give information which should 'be prejudicial to the divorce.' And in Dolphin v. Dolphiny. Robins the agreement was similar. A Divorce ob- ^''^""■ tained under such circumstances, being ' a mere P. & M. ' mockery and collusion from beginning to end,' "" cannot be supported. This is a parallel case with Don v. Lippman, -^f" v. where the defendant was an alien enemy, and was 6cfr&"' therefore by force prevented from appearing to de- -^'"= '■ fend the action abroad. Whether the Court has jurisdiction is therefore the important question to Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 175 Chapter be affirmed or negatived : and the consideration '. — is not altered by the fact of the parties having been of different nationalities. In all respects then the general theory of foreign judgments applies to the case of foreign divorces : — In one point only do the rules applying to divorces appear to exceed the theory : — That Rules as to although the Foreign Court apparently had juris- apparently diction over the persons of the parties, yet this may exceed the be met by proof that the jurisdiction was created theory. by the parties themselves in fraudem legis ; taking advantage of the peculiar provisions of the Law of Divorce in the Foreign Country, and the differ- ence between that law and the law of their own country. The reason assigned by Lord Westbury for this Ld-. is, that ' Marriage is the very foundation of civil ' society, and no part of the laws and institutions ■ of a country can be of more vital importance to ' its subjects than those which regulate the manner 'and condition of forming, and, if necessary, of ' dissolving, the marriage contract.' That ' no ' nation 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 their domicil, bringing back with them cf: Ld: Brook V. 'a foreign judgment so obtained, the tribunals ofj/^^^v. £>^ok. , ^j^ domicil are entitled, or even bound, to reject ^^ook. 9 xl. J-i. ca: _ -■ p. 220. ' 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.' Now the difficulty we are in is, that this rule This ap- seems to be fully accounted for by the doctrine fitfference Digitized by Microsoft® 1/6 STATUS. may be accounted for by reason of a wilful disregard of lex loci contractus. But this explana- tion must be re- jected. cf: p. 91. Assumed jurisdic- tion. that the lex loci contractus ought to govern the case when it is adjudicated on by a foreign tribunal ; and that there has been a wilful disregard of that law by the tribunal : This by many judges, it will be remembered, has been considered a sufficient ground for a rejection of the judgment. But all their Lordships concurred, as we have seen, in declaring that the lex loci contractus is not the sovereign rule in judging of the marriage contract. Indeed, if it were the sovereign rule, English Courts would be bound, for example, to divorce Germans married in Germany and domiciled in England on the ground of incompatibility of temper. (Lord Brougham — Warrender v. War- render^ This explanation must therefore be rejected. An explanation may however still be found in agreement with the general theory. Once more, let us revert to a former conclusion : — That if the judgment is obtained in accordance with a Statute passed by a Foreign Country, which, being considered here, is not an unreasonable pro- tection to be afforded by such Foreign Country to its own subjects (and therefore also to its domiciled subjects), nor at variance with the principles of Natural Justice, the English Courts will enforce it. Nearly all the cases then considered involved the principle of assumed jurisdiction ; and the question to be asked and answered was, whether the discretion supposed to be vested in the Foreign Sovereign Authority had been exercised wisely and reasonably. In many, if not in all the cases, the English Courts refused to say that the Foreign Country had exercised its discretion unwisely or unreasonably : — But in this case, the assumption of jurisdiction to Chapter IV. Warrsnder V. War- render. 9BI: N. S. 89. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 177 Chapter IV. Phillips V. Hunta: 2 H. Bl: 402. Simonin v. Mallac. 29 L. J: P. &M.97. Sottomayor V. De Barros. L. R. 2 P. &D. Div: 81. (on app:) 47 L. J: P. & M. 23- Shaw V. Gould. L. R. 3 H. L. 55. sever the social tie which has been formed in one Unwise country by a method, amounting almost to an reasonable invitation to people to cross the border for the mere assumption purpose of setting the laws of their own country at Foreign defiance, is an exercise of that discretion so un- *-°"'f- wise and so unreasonable, that although the foreign judgment may be perfectly valid and binding in that country, and as touching any question exclu- sively in that country, would be considered as such all over the world, even in this country whose laws had been so set at naught ; yet, as touching any question in this country, the English Courts would be justified in refusing to acknowledge that validity and to be bound by it. Note however Lord Chief Justice Eyre's remarks in Phillips V. Hunter, ridicuhng the proposition that a British subject shall not be allowed to contravene a British Act of Parliament, (page 207). We must proceed one step farther : — The case of Simonin v. Mallac, decided by Sir Cresswell Cresswell, which was followed by Sir R. Phillimore in Sottomayor v. De Barros, erroneously, as the Court of Appeal afterwards held, remains to be considered. The parties were French, and came to England ■Jt'"'!'"" ■^• to avoid certain provisions of the Code Napoleon. So far, the case is the converse of Shaw v. Gould; (except as to the relations between the countries) : and agreeably with that decision, if the woman had continued to live in England, the English Courts would have pronounced the mar- riage valid : if she had returned to France, the French Courts would have pronounced it null and void. But in point of fact, the French Courts did pro- nounce against the marriage : . and it was this deci- N Mallac. Digitized by Microsoft® 178 STATUS. Sir C. Cresswell. Sir JR. Philli- more. General sumtrary of doctrines to be deduced from cases. sion, and not the validity of the marriage itself, that came before the English Courts. The learned Judge Ordinary refused to recognise the decision : — ' What right,' he said, 'has one independent nation 'to call upon any other nation to surrender its own ' laws in order to give effect to such restrictions and ' prohibitions. If there be such right, it must be 'found in the Law of Nations.' [The judgment, it will be remembered, proceeded on the ground that the lex loci contractus and not the lex domicilii was to be adopted by the Court.] The result of this decision, as applied to Shazv V. Gotild, is that the Courts in Scotland would have been justified in disregarding that decision, should the woman they had divorced have returned to Scotland. Sir Robert Phillimore certainly followed this decision in Sottomayor v. De Barros, but it seems reluctantly^ if this important question had not been embarassed by precedents of former de- cisions, especially as his Lordship supposed by the judgment on Simonin v. Mallac, it appears that he would undoubtedly have held that ' theyV^j gentium ' would require the lex fori, which is also the lex ' loci contractus, to adopt for the occasion as its own ' law the lex domicilii ; as in an analogous case — ' Dalrymple v. Dalryinple — -Lord Stowell speaks of 'the law of England withdrawing altogether and ' leaving the ^egal question to the exclusive judg- ' ment of the law of the foreign country.' The result of the decided cases is, as his Lordship stated, 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 doc- Chapter IV. Sottomayor V. De Barros. L. R. 2 P. & D. Div: 8i. Simonin v. Mallac. 29 L. J: P. & M. 97- Dalrymple V. Dal- rympk. zHagg: C. R. 54. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. Chapter trine goes further — neither is the marriage itself '. recognised, nor a judgment of the Courts of tlie 179 ca: 193. foreign State estabhshing the marriage; because such a judgment ought never to have been pro- nounced, being a wilful application of the wrong law, the lex loci contractus for the lex domicilii. Brook y, cf: Lord Campbell's judgment in -5riP(7,5 v. ^riJCiZ' — Brook. ' I am by no means prepared to say, that the marriage now £,/; ra- To^" ''" question (between a man and his deceased wife's sister) Campbell. * ought to be or would be held valid in the Danish Courts, ' proof being given that the parties were British subjects • domiciled in England at the time of the marriage, that ' England was to be their matrimonial residence, and that ' by the law of England such a marriage is prohibited as ' being contrary to the law of God.' ' But the decided cases,' continued Sir R. Philli- ■^'r.^' ,,.,,' , . , Philli- more, do not establish the converse doctrine, that more. ' 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 ' according to the jus gentium the latter proposition ' is a consequence of the former, and I remember ' addressing such an argument to the full Court of Sivtonin v. ' Divorce in Simonin v. Mallac, but in vain.' 29 L. J: It was on this point that the Court of Appeal P. & M. reversed the decision ; Cotton, L. J., holding that Cotton, the learned Judge had not fully appreciated the ^' ^' Sottomayor reasons given by Sir C. Cresswell in Simonin v. ^Barros. Mallac for refusing to recognise the French judg- 47 L. J: ment : that consequently this second proposition 23. ' was not an accurate statement of the law, but that the decided cases and all jurists agree in estab- lishing the converse doctrine, that the incapacities fixed by the law of the domicil on the parties to N 2 Digitized by Microsoft® l8o STATUS. the contract are to be recognised by the Courts of Ck^ter the place of the contract. -, But it is evident, whether we take the doctrine as stated by the House of Lords — the lex domicilii the guiding principle, except in matters of form and ceremonial — or whether we take it to be as enunciated by Sir C. Cresswell — the lex loci con- tractus the guiding principle, except in polygamy, incest (as universally accepted in Christian States being contrary to God's law, or as specially declared to be contrary to that law by the Legislature of the Country), or statutory prohibitions, that the incapacity mentioned in this doctrine must be a personal incapacity. Per-ional Now, in Sinioniu V. Mallac the incapacity was Simonin v. incapacity. i /- i Mallac. not personal, but arose merely from the non-per- 29 l. J: formance of the ' acte respectueux et formcV required by the Code Napoleon, asking the father's consent ; and also the absence of the necessary two publi- cations : It was therefore strictly in accordance with the doctrine that the validity of the marriage should be decided by the lex loci contractus, that is, the law of England : but the decision goes further — neither are such incapacities themselves recognised, nor a judgment of the Courts of the domicil annulling the marriage on those grounds. It might possibly appear that the jus gentium would require a judgment annulling a marriage thus obtained in fraudem legis to be recognised by the Courts of the country where the marriage was celebrated, as it would be, without doubt, in any other country : but the decided cases do not warrant such a doctrine. The proposition laid down by Sir R. Phillimore, that legal incapacity by the law of the domicil should be recognised by Courts of the country of P. &M. Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. igj Chapter the contract, is therefore too broad ; and it was for '. — this reason that the learned judge's argument, when counsel before the full Court of Divorce, was in vain, and that the jus gentium did not require the lex fori, which was also the lex loci contractus, to adopt for the occasion as its own law the lex domicilii. NOTE ON MRS: BULKLEY'S CASE. Appendix to PxTT v. PiTT. (4 Macqueen's H.-L. cases. 6y6). Mrs : Bulkley having married a resident of Note on Holland, was divorced there : The inferior Courts Buitiey's in France held that she was incapable of contracting case in marriage in that country : The Cour de Cassation France. however reversed this decision, and held that having been legally divorced abroad, she was free to marry again in France. Judgment of the Cour de Cassation. The references were to Articles 3, 6, and 147 of Judgment the Code Napoleon ; and to Article i of the Law °f Cow de of May 8, 18 16. The Court proceeded — ' Attendu que Ic mariage, en France, est un contrat ' civil ; qu'il ne pent ^tre interdit qua ceux qui ont • en eux un motif d'emp^chement 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 rapport^e ; ' Que cette preuve est faite de la part de I'etranger, • mari6 a I'etranger, lorsqu'il ^tablit que son mariage '•a dt^ dissous dans les formes et seloiv les lois du Digitized by Microsoft® 1 82 STATUS. ' pays dont il ^tait sujet ; — Que telle est la cons^- Chapter ' quence du principe, reconnu par I'Art : 3, Code ' ' Napoleon, de la distinction des lois r^elles et des ' lois personnelles, que celles-5i, qui regissent I'^tat et 'la capacite des personnes, suivent les Frangais, 'meme rdsidants en pays etranger; et suivent]^gale- ' ment en France I'etranger qui y reside ; — ' Que c'est done par les lois de son pays, par les ' faits accomplis dans ce pays conformdment a ses ' lois, que doit etre appr^ciee la capacity de I'^tran- ' ger pour contracter manage en France ; qu'ainsi, ' I'etranger, dont le premier mariage a 6te legale- ' ment dissous dans son pays, soit par le divorce, ' soit par toute autre cause, a acquis d^finitivement 'sa libertd et porte avec lui cette liberie partout ' ou il lui plaira de rdsider :— ****** ' La loi Frangaise a confirm^ le respect du aux •legislations ^trang^res statuant sur I'^tat et la 'capacity des personnes soumises k leur souve- ' rainetd ; Facts of ' Attendu, en fait, qu'il 6tait constate, et qu'il n'est the case. < p^s contest^ par I'arr^t attaqu^ que Mary Anne ' Bulkley, Anglaise d'origine, marine en Hollande ' avec Anthony Bouwens, sujet Hollandaise, avait ' 6t6 divorcee en 1858 par jugement du tribunal de ' La Haye, inscrit sur les registres de I'^tat civil ' conform^ment ^ la loi du pays.' ' Que, par consequent, Mary Anne Bulkley, lors- 'qu'elle se pr^sentait en 1859 devant I'officier de 'I'^tat civil du 10""= arrondissement de Paris, pour ' contracter mariage, justifiait de la dissolution de • son precedent mariage, et ne se trouvait pas dans ' le cas de prohibition de TArt : 147 du Code ' Napol&n : ****** 'Par ces motifs, la Cour casse et annulle I'arret 'de la Cour Impdriale de Paris du 4 Juillet, 1859 ; ' et remet les parties en m^me ^tat qu'avant le dit ' arret ; ****** From this judgment we see that in France marriage being essentially a civil contract, the kx Digitized by Microsoft® MARRIAGE. DIVORCE. LEGITIMACY. 183 Chapter loci contractus, where the contract takes place in ^^' the country of the parties, governs the French Courts when foreigners apply to them for a decree of divorce. We may presume therefore that an English divorce between French subjects not being in accordance with the law of France would not be regarded. Digitized by Microsoft® 1 84 STATUS. II. Lunacy. chapter IV. Lunacy. The authorities are unanimous in holding that an English Court will recognise the validity of a finding in lunacy by a competent Foreign Court. The short note in Vezey's Reports to ex parte cxp-. Foreign Otto Lewis is as follows : — ' One found non compos j vez : lunacy ' before a proper jurisdiction, the Senate of Ham- S^"- 2°^- recognised. < burg, where he resided, and a curator and guardian ' appointed ; the Court took notice of it.' This case was approved and followed by Lord Lough- borough, L.C., in ex parte Gillam. ^^P- But further In re Hoiistomt however it was held that a 2 Vez:' re'^dsite ^^natic residing in England, having property in 5^^- here to Jamaica where he was found lunatic, must still be ^ffoustonn. protection the subject of an enquiry in England, in order to ' R"ss : of Lord obtain the protection of the Lord Chancellor. (See cellor. Elmer's Practice in Lunacy, 6th: ed: p. 15.) 'The J-ii-- ' Commission now existing in Jamaica is no reason • why a commission should not issue here. On the ■contrary, it is evidence of the absolute necessity ' 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, L.C.) Foreign The result seems to be that if a curator bonis\\a.s curator . .,,,_, bonis been appomted by the Foreign Court he will be Sranf/ entitled to apply to the English Courts to have fer of transferred to him any money standing in the mone? English funds, as of right. (;r Stark) In Xh.{sreSia:. had found a man non compos mentis, and had j ve?,! appointed a guardian or curator. An action Sen: 208. 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 by Lord Hardwicke to convey. Ex parte Watkins : — The Governor of the Lee- exp -. ward Islands had appointed guardians: It waSgVezT"" held that the appointment failed as soon as the Sen: 470 infant came to England ; another guardian was therefore appointed. Digitized by Microsoft® GUARDIANSHIP. 189 Chapter IV. Potin!;er V. IVi^ht- maii. 3 Mer: 67. Johnson V. Bcattie. 10 CI: & Fin: 42. Dawson v. Jay. SHeG. M. t: G. 764. Lord Campbell, L.C., in Johnson v. Beattic, ex- plained that this case really was not against the principle of the conclusiveness of the appointment, for ' we are not informed in the slightest degree Ld: ' 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.' Potingerv. Wightman : — The widow was appointed guardian of 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 kx domicilii, because the children's domicil followed the mother's, unless there were fraud. But that fraud might be presumed where no reasonable cause appeared for the removal. Johnson v. Beattic: — In this case the Lords were not unanimous : the effect of the decision however was that ' the status of guardian not being a status Ld-. dan- ' recognised by the law of this country unless con- """■''^• 'stituted in this country, it was 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 consideration.' (Lord Cranworth — Stuart V. Bute.) The case did not go to either extremity by holding that the appointment was to be absolutely followed, or absolutely ignored. Dawson v. Jay : — The appointment of the Foreign Guardian was ignored ; but the case may be thus explained : — ' The infant came to England with Zd: ' the entire concurrence of the guardian originally "■'"P""'- ' appointed by the Supreme Court of New York, ' who continued guardian at the time of the ' removal : It was another guardian, afterwards Digitized by Microsoft® 1 90 STATUS. ' appointed with doubtful regularity, who wished to Chaptftr ' get possession of the infant and carry her back ' ' to America.' (Lord Campbell, L.C., Stnart v. Btite) The Marquis of Buies case. {Stuart v. Bute. Ms: ^ Stuart V.Moore): — In this important case nearly ^g"/'' all the authorities were reviewed and explained, 9 H. L. especially Johnson v. Beattie. The Lords were , ~,^^,^^^ ^ unanimous in acknowledging the foreign guardian. Beattie. ^' , „ Lord Campbell, L.C., said : — ' An alien father Ym- li Camfbell. i- ' ' rin. 42. ' whose child had been so earned away from him ' and brought into England, would undoubtedly ' have the child restored to him in England by writ ' of habeas corpus : and I believe that the same ' remedy could be afforded to a foreign guardian 'standing in loco parentis on the ravishment of his ' ward.' See the Marquis of Bute's case before the Court of Session. (Sc : Ses : Ca: 2nd Ser: Vol : xxii, p. 1504.) Wood, v.c. Nugent V. Vetsera : — ' I think,' said Wood, V.-C, Nugent v. ' having regard to the principles of Liternational Xf'^'''^^ ' Law, and the course that all Courts have taken Eq: 704. ' of recognising the proceedings in other countries ' of regularly constituted tribunals, provided these ' other countries be civilised communities, especially 'if they are communities with which we are in ' amicable connexion, as we are with the Empire of ' Austria, it is impossible for me to disregard the ' appointment by an Austrian Court of this guar- * dian to these children, who are Austrian subjects, ' children of an Austrian father, merel)' because this 'guardian has continued the course which those ' who preceded him in that office adopted — sending ' their wards for a certain time over here for educa- ' tion in this country.* Digitized by Microsoft® GUARDIANSHIP. I9I Chapter But on very special grounds the English Courts f'^ounds ' will act against the Foreign guardians ; as for following instance, neglect of the children ; or danger to their °point- property. mcnt. From these cases it will be gathered that the practice of the Courts with regard to guardians appointed by Foreign Courts agrees with the general theory of Foreign Judgments ; and we have, in this custom, a practical illustration of the doctrine of the auxiliary sanction : — The guardian, possessed of rights given to him Guardian- by a Foreign Court, in virtue of the office with pj^j^(,j,j which it has vested him, fs clothed by the English illustration Courts with an auxiliary office or guardianship, by auxiliary which he is enabled to exercise those rights in this sanction. country. Digitized by Microsoft® 192 STATUS. General application of the theory of the conslusive- ness o( Foreign Probate. Sir y. Hanncn. IV. PROBATF. Chapter .IV. One of the most recent expositions on the subject of the admissibility and conclusiveness of Foreign Probates in the English Probate Court, was given by Sir James Hannen in Miller v. James. In that MHierv. case the executor propounded a will alleging that j^'r^', the deceased died domiciled in Jersey, and that P-^^- 4- Probate had been granted by a competent Court in Jersey. The next of kin pleaded undue execu- tion ; incapacity ; and undue influence. The learned Judge said : — ' It is the established practice ' that where a will has been proved in a foreign ' Court, a duly atithenticated copy will be admitted ' to probate in this country without further evidence ' of the validity 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 expressions ' 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 in- 'vestigate 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 application to the proper Court, what- 'ever that may be, having jurisdiction to revoke ' the probate which has been granted.' Digitized by Microsoft® PROBATE. ig2 Chapter This judgment is in every respect in accordance L_ with the general Theory of Foreign Judgments. In the eariier cases there appears to have been a Review of sHght hesitation on the part of the Courts as to cases, whether they were bound ' in all cases, and under ' all circumstances, to follow the grant of probate ' made by a Court of competent jurisdiction.' Larpt-ntv. This doubt was expressed in Larpent v. Sindry, i^Hagg: ^'^ the goods of Read, and in Viesca v. D' Arambura. E. R. 383. In these cases however the foreign probate was goods of followed : in the last, Sir Herbert Tenner said that sir H. Ketzd, * •* tenner, 1 Hagg: he did not know whether the decree of the Court ' ""' of Cadiz were binding on the Prerogative Court Viesca v. 00 D'Aram- of Canterbury : but that if it were discretionary, ''"^' I T7 he would follow it for its convenience. 2 Curt: E. R. 277. The following cases support the doctrine that the English Court will pronounce in favour of the will, or that the deceased died intestate, according ' I Add- ^^ ^hat question is determined by the foreign Cases in E. R.25. Court:— support of ^ I Hagg: conclusive- 'E.R. 221- Hare v.Nasmyth} nessof E. R^^48. ^^ ^^^ goods of De Cunha. ^ * I Curt: E. in fjig goods of Cringafi. ^ ^2 Curt: E. in the goods of Stewart.^ 88 cl^*& ^^ the goods of, Rogerson.^ Fin: I. Prestofi V. Lord Melville.^ Ch:402.' Enohin V. Wylie? !,3?,^'J-^' Crispin v. Doglioni.^ & M. 109. -^ ° "33 L.J: Vanqnelm v. Bouard. "I^'r^'i i'"' the goods of Eariy^ P. & D. in the goods of Smith. ^^ fiig-w. R. in the goods of Gutiierez.^^ 1 130. jn the mods of Smith, Lord Penzance (then Sir ^ 38L. T:P. & M. 48! ' J. P. Wylde) said : — ' It is a general rule on which sir 7. p. goods of 'I have already acted, that where a person dies.^^'*- 16 w. r. ' domiciled in a foreign country, and the Court of 1130- o Digitized by Microsoft® , 194 STATUS. ' that country invests anybody, no matter whom, Chapter ■ with the right to administer the estate, this Court ^— ' ought to follow the grant simply because it is the ^snJth. ' grant of a foreign Court, without investigating the '^ W. R. ' grounds on which it was made, and without refer- ■ ence to the principles on which grants are made ' in this country.' The Foreign Probate indeed will be followed even where the English Courts would have hesi- tated, {in the goods of Rogerson^ goods of There is one case however in which, at first sight, ^"Sf''^"^- this doctrine appears not to have been followed : — in R. 656. the goods of H.R.H. the Duchess of Orleans. %fj£ H.R.H. In the first place, the general principle was i Sw: & Or/W "-^recognised that the Probate Court, in granting '^''- ^53- cc^e- administration of the effects of a 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. Foreign But the foreign administration had been granted trado™ to a minor : {i.e., a minor according to the lex granted to domicilii^. Sir C. Cresswell said : — ' Is there any minor. . .,^ ri- i-i ^^y ^ ' mstance of the Courts of this country, whilst Cressiveli. ' 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 .' ' Principle The principle apparently deducible from this case d ducible is therefore, that the Foreign Probate will not be from the followed in cases where the English Courts would, case. . ° by granting an English Probate, be proceeding contrary to English law. Sir J. P. Wylde in the goods of Earl, discussing ^'""^•;^/ the application of the doctrine of conclusiveness as l. r. i p. applied to probate, drew a distinction between the '-^ ^- '5°- Digitized by Microsoft® PROBATE. 19s Chapter practice of the old Prerogative Court and that of '. the Probate Court : — ' The result of the cases is *^> 7- P- Wvlde. ' that in the Prerogative Court the tendency was to ' follow the foreign grant where it could be done, < but there was a reluctance to lay down any abso- ' lute rule in the matter, while the decisions in the ' Court of Probate have militated against the rule ' of following the foreign grant.' The only case cited in support of this proposition as regards the Probate Court was that of the Duchess of Orleans. But it is very doubtful whether the Court has ever directly negatived the doctrine : in Laneii- LanmvilU ville V. Anderson it appears to have generally V. Ander- . son. approved of it. JP /';/■' Let us examine the Duchess of Orleans' case'? ^^rams.- P. &M. 25. ■^. don of jOs:of more attentively: If the real principle deducible (ijigp^jj^. Orleans' from the decision be that which is stated above, it cip'e- I Sw: & appears also to muitate agamst the pnnciple laid Tr: 253- down in the Chapter on Defences — that an error in English law, where the case is to be decided by the English law, will not (so long as it is not a wilful error) be sufficient ground for our Courts to refuse to be bound by the Foreign Judgment ; although the enforcing of such a judgment must necessarily be equivalent to acknowledging a right to exist in England, not in accordance with English law. It is suggested however that the case is governed by a very different principle. An administrator is, strictly speaking, an officer An of the Court, appointed by the Court (following, if^^f^' where it is possible, the expressed intention of the being an testator ; or rather, -whose appointment by the tes- the Court, tator is sanctioned by the Court), to administer the Ii's^P- r ^ , 1 TT- ■ ... pomtment estate of the deceased. His appointment is inti- is mately connected with the procedure of the Court; ^y'thT'^'^' and the law which governs procedure — even with lex fori. O 2 Digitized by Microsoft® 196 STATUS. Foreign appoint- ment not followed if person incapable of per- forming duties of office in England. Suggested as the real prin- ciple of the case. regard to Foreign judgments — is always the lex Chapter fori. The English Probate Court therefore will \ not follow the Probate of the Foreign Court so far as the appointment of the administrator is con- cerned, if he is a person — for example, a minor — who cannot under the English procedure perform the duties of the office. This appears to be the real principle deducible from the case of the Duchess of Orleans, and it agrees with the rules relating to Foreign Judg- ments proceeding on Statutes of Limitation. It is indeed the best illustration of the necessity that the lex fori should govern all questions of proce- dure : For supposing in this case the Foreign Probate had been followed, and administration granted to the minor — 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 in no case have bound himself by a deed. [The minority of a person, it must be remem- bered, depends upon the law of his domicil. If he is a major in his own country, he will be considered a major in this country, irrespective of whether he is twenty-one or not. The Comte de Paris was an emancipated minor, but bad not reached his majority, which in France is, as in England, twenty- one years.] But the Foreign Probate, so far as the validity of the will is concerned, will be followed, and ad- ministration granted to the proper person, (in the goods of goods of Cosnakait) Cosnahan. ^ ' According to the practice, the only person whom P" & ^• Electionof '^ minor is entitled to elect is his next of kin. The '^^" guardian 'Queen Dowager would therefore be the Drooer by minor r i /-. 1 t^ "±"-i appointed ' person for the Comte de Pans to elect as guardian, Minority. Probate followed qud validity of will. Sir C. Cresswell. Digitized by Microsoft® PROBATE. 197 Chapter • and if he does so ' (which course was afterwards adminis- ly ^ . trator. ^_ adopted), ' I shall have no hesitation in granting ' administration to her.' {Sir C. Cresswell.) goods of Sir J. P. Wylde continued, in the goods of Earl : — L. R. I ' There was no power in the old Ecclesiastical ^^yj^f' P. & D. < Courts to make a grant except in the direction 150. ° ^ 'indicated by the practice of those Courts. The Powers of ' Court of Probate however is armed with a special court 'power by the 73rd section of 20 and 21 Vic : "'^'^?^ ■ C. TJ,' 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 administra- tion 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, sir j. p. ' and to make a grant in all such cases as the pre- '^^'^''• ' sent to the person who has been clothed by the ' Court of the country of domicil with the power ' and duty of administering the estate, no matter ' who he is, or on what ground he has been clothed ' with that power.' Digitized by Microsoft® 198 The grant under »■ 73- Ground for attack- ing probate: lex domi- cilii not followed. Ld: West- bury. Breach of Inter- national Law. STATUS. 'The grant under the 73rd section will describe ' him as a person having that power, and thus the ' difficulty will be avoided of declaring that a per- ' son is executor who according to the practice of ' the Court is not executor, and of continuing a ' chain of executorship by persons who are execu- ' tors according to the law of a foreign country, but ' not according to the law of this country.' From the cases that have been cited, and from many other decisions decreeing Probate merely, where no Probate had been originally granted by a Foreign Court, it will be gathered that a Foreign Probate may be attacked successfully on the ground that the law of the domicil has not been followed with respect to the administration of the personal estate of a deceased person : — ' The utmost confu- "sion 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 representatives ' of the deceased and as many varying int-jrpretations ' of his will as there are countries in which he is ■ possessed of personal property. It was to prevent ' this that the law of the domicil was introduced ' and adopted by civilised Nations.' (Lord West- bury, L.C. — Enohin v. Wylie^ See also Pipon v. Pipoii.) Here then we have another breach of Inter- national Law. Jurisdiction to grant probate being assumed by the Foreign Court contrary to the rules adopted by civilised nations : So universal is the rule which the Foreign Court has violated ; or, if sanctioned by the laws of the country, so un- Chapter IV, Enohin v. Wylie. 31 L. J: Ch: 402. Pipon V. Pipon. I Ambl: 25- Digitized by Microsoft® PROBATE. 199 Chapter IV. Lancuville V. Ander. son. 30 L. J: P. & M. 25. E^iohin V. Wylu. 31 L.J: Ch: 402. wisely has that country exercised its discretion, that the English Courts are justified in refusing to follow the foreign grant of probate. We have here another very practical illustration of Probate a the Theory of the Auxiliary Sanction : — The Foreign fuustration Probate, which of itself would be useless in this °f theory . , . -1 of auxi lary country, is clothed with an English Probate which sanction. is auxiliary to it, and by which it is made effectual here. cf: Sir C. Cresswell in Laneuville v. Anderson: — ' In granting Sir C. ' probate here of a foreign will, the Court is auxiliary to the Cresswell. ' Courts of the testator's country ; ' and Lord Westbury mEnohin v. Wylie : — ' When the Court of Probate was satisfied that the testator Ld: West- ' died domiciled in Russia, and that his will containing a ^"'y- ' general stppointment of executors had been duly authenti- ■ cated 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 auxiliary letters of probate to have enabled them to ' get possession of that personal estate which was situate in ' England.' re Mac- Nichol. L. R. 19 Eq: 81. In re MacNichol — MacNichol v. MacNichol is another instance of the respect paid by the English Courts to a Foreign Administrator duly appointed. A judgment had been obtained in a Foreign Country by the Foreign Administrator of a creditor against an English debtor who had since died, and whose estate was being administered in England. Malins, V.C, held that the foreign administrator could prove his debt without taking out English administration to his intestate. Digitized by Microsoft® 200 STATUS. V. Bankruptcy. chapter Bank- Lastly, we must consider what respect will be ruptcy. paid to the bankruptcy proceedings of another country. Proceedings in bankruptcy consist of two parts, — the adjudication, 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. Division The international effect of bankruptcy will there- subject, fo''^ ^^ considered under the following heads : — i. The adjudication and assignment. a. the effect of a foreign adjudication in England. /3. the effect of an English adjudication abroad, ii. Pendency of the proceedings during the in- terval between the adjudication and final dis- charge, iii. The final discharge, and its effect on the bankrupt's obligations. a. where the discharge is by the Courts of the country of the contract. /S. where the discharge is by the Courts of any other country, and lastly iv. the personal status of the bankrupt. Digitized by Microsoft® ASSIGNMENT IN BANKRUPTCY. 20I Chapter i. THE ADJUDICATION AND ASSIGNMENT. The ad- IV. judication a. The effect of a Foreign adjudication in ^"'^ assign- England. The general principle is that the Foreign assign- Effect of a ment will be recognised in England, even if the adjudica- property of the bankrupt has been attached by England. an English creditor after the adjudication in bank- story. ruptcy, ,with or without notice of the foreign pro- §§ 403— ceedings. re Blith- In re Blithman the bankrupt was entitled to a L. R. I share of residue, consisting of a sum in Chancery Eq: 23. £j^ England ; he had been adjudged insolvent under an Act of the Australian legislature, by which per- sonalty of insolvents vests in the trustees by virtue of their appointment. The fund was claimed both by the assignees and by the executrix. It was argued that as there had been an in- solvency abroad, it was equivalent to a foreign judgment, and the Court would by Comity give effect to it, irrespective of the question of domicil. To this argument Romilly, M.R., said he was dis- posed to assent ; but not so as to give effect to it in the way asked by the petition : — ' I think that Romilly, ' the legal personal representative must receive the ' fund in the 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 representa- ' tive here for the debt : but questions of priority ' might then arise between the foreign judgment ' and other judgments here ; those could only be Digitized by Microsoft® 202 STATUS. Chapter IV. James, L.J. Conclu- sions. Effect of notice of foreign bank- ruptcy during proceed- ings in England. After pro- ceedings . termi- nated. Assumed jurisdic- ' settled in a regular suit against the representa- ' tive.' Full effect was therefore to be given to the foreign assignment, but it was to be treated exactly as any other foreign judgment, and an action brought upon it. This case lays the foundation of the doctrine which received its completion in re Davidson's " David- ^ _ son s Settlements. James, L. J., held that ixre.s'p&ctvvQ oi Settlements. the question of domicil, the fact of there having ^ 'g^ been an adjudication in insolvency in Queensland, and 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 pay- ment of the debts proved in Australia, in priority to any claim by an English administrator. The conclusions may be stated to be, that if during the course of English proceedings affecting personal property, notice is given that the owner of the property has been adjudicated bankrupt by a foreign Court, the English Court will recognise, and, if requested, will give effect to the foreign adjudi- cation, by staying the English proceedings ; and in a suit by the foreign trustees, by ordering the pro- perty to be handed over for the benefit of the cre- ditors under the foreign insolvency : — And that, even if the English proceedings have terminated, and the property has been attached in ignorance of the insolvency abroad, yet that in- solvency will be recognised, and effect will be given to it in an action by the trustees against the at- taching creditor, on the foreign order of insolvency as on a foreign judgment. Where jurisdiction in bankruptcy has been assumed by the Foreign Court, it is presumed Digitized by Microsoft® ASSIGNMENT IN BANKRUPTCY. 203 Chapter that the question must be considered in the J'™/" IV , . bank- '- same manner as assumed jurisdiction in other mptcy. cases. cf: p. 88. The principle must be taken to apply to Realty. personal property alone : As regards realty, cf: the rule that it must be governed by the /ex § ^28! ret sties is of universal application, and it cannot therefore be considered to pass to the assignees under an adjudication of a foreign Court ; although 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 15 th section of the English Bankruptcy Act of 1869— (32 & 33 Vic : c. 71). ^.^^ 33 ^ s. 15. Solomons ' In Salomons v. Ross, money attached by an indi- I H "bi- ' vidual creditor after an assignment in Holland, 1 3 in. 'was decreed by Lord Hardwicke to be paid to the 'attorney of the assignees for the benefit of the ' creditors ; plainly considering each creditor as ' bound by the assignment, and the money recovered ' here as referable to Holland, the country of the >//rf V. ' debtor. The same is to be inferred from Jollet v. tUni. ' Deponthieu and Neale v. Cottingham! (Majority I H. Bl: . Qf ^-jig Court — Phillips v. Hunter^ J -5 211. Keaie v. ' The determinations of the Courts of this country Ld-. Cotting- ' have been uniform to admit the title of foreign ^^"^o\ 1 H. Bl: 'assignees: As in Solomons v. Ross and Jollet v. C.J. 13211. ^Deponthieu, where the laws of Holland, having, in Phillii)s V. Hunter. ' like manner as a commission of bankrupt here, 2 H. Bl; 'taken administration of the property, and vested it ' in the curators of desolate estates, the Court of ' Chancery held that they had immediately on ' their appointment a title to recover the debts due 'to the insolvent in this country, in preference to Digitized by Microsoft® 204 STATUS. Peculiar^ rights of foreign trustees recog- nised. ' the diligence of the particular creditor seeking Chapter 'to attach those debts.' (Lord Loughborough, C.J. — '- — —Sillv. Worswick.) Warwick. Further, if any special or peculiar right is given i H. Bl: by the foreign law to the trustees, the English Courts will respect it ; — As in Alivon v. Furnival, ^ZTiJai. where the right of two out of three syndics to sue 3 L. J: Ex: under a French bankruptcy was recognised. Effect of English adjudica- tion abroad. Story. §§ 403- 409. Ld: C.J. Ld: Mans- field, C.J. Ld: ThurlcfW. Judgment abroad without regard to, or in /S. The effect of an English adjudication abroad. In countries where the same principles as to the recognising foreign judgments obtain as in England, there is no doubt that an English assignment in bankruptcy will be acknowledged. '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. Worswick^ See also Le Chevalier v. Lynch, in Le ■ which case Lord Mansfield said : — ' If a bankrupt y. Lynch. ' has money owing to him out of England, the ' Dougl: ' 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 accountable ' to the bankrupt' ; and ex parte Blake in which it exp-. appeared that the American Courts had not recog- ^^^'- nised an English assignment ; Lord Thurlow said : 398. — ' 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 English assignment, there has been a judg- ment by attachment given abroad, great complica- Digitized by Microsoft® ASSIGNMENT IN BANKRUPTCY. 205 Chapter tions arise ; and the form of the enquiry in reality ignorance IV. . .-„ . , ., , . . . , of, English IS : — What respect is to be paid to the foreign judg- assign- ment under such circumstances ? ™™'' If intimation of the EngUsh bankruptcy is given respect to to the Foreign Court, it ought, as we have seen, to ^^v^^^ 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 attach- ing creditor recovers, both Story and Westlake are agreed that the English Courts will abide by the foreign decision ; ' if the local laws (however incor- -^'"'^ . . § 409- ' rectly on principle) confer on him an absolute 'title': — 'Although,' adds Story, 'it skould be ' disregarded.' This agrees with the general theory of Foreign Nation- Judgments : But here a distinction is drawn depen- paX" dent upon the nationality of the party who has recovered under the foreign judgment. If the Where the creditor be an Englishman, he will be held to have ^covered recovered to the use of the assignees. W ^Jl The principle upon which this distinction rests man. seems to be that the English creditor should have, Difference and perhaps has, proved under the English Com- EngUsh mission : —The object of his suit in the foreign ?^^. •^ _ ° foreign Court is therefore to obtain an unfair advantage, creditor, which the English Courts, proceeding on the principle of equality among the creditors, 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. Digitized by Microsoft® 2o6 STATUS. Before considering the cases, it will be necessary Chapter to carry the doctrine one step further : Notice It is immaterial, in the case of an English creditor, material whether the trustees gave notice of their claim to EViish°' ^^^ Foreign Court, or not : — for the question of man. notice cannot affect the motives of the creditor in attaching the property by the aid of the Foreign Court. The leading cases upon the point are Si/lv. Wars- ■^^,^^^^, zvick and Phillips v. Hunter [on appeal from s. c. i H. Bl: stib nom : Hunter v. Potts]. The doctrine was also pllm,^ ^ acted upon in Ireland in re Robinson. Hunter. Majority In Phillips V. Hunter the majority of the Court — L2 ' Ot ths T" ' Court in Macdonald, C.B., Thompson, Perryn, Hotham, BB : Hunter v. ^Hunir' Rooke, Heath, J J :— held that, with or without ^?p'\ notice by the assignees, an English creditor, having 182. recovered money by process of attachment in a "^^^ " '"" foreign country, received it to the use of theiili:ni: Eyre,c.y. English assignees. Eyre, C. J., however dissented, ^P'3 3- treating the question on the general principles of the recognition of foreign judgments, and refusing to take into consideration the fact that the judg- ment had been obtained in contravention of the English Laws. But this principle always has been recognised, and to such an extent that in Macintosh Macintosh V. Ogilvie ' Lord Hardwicke, by a writ of ne exeat ^^^.f'Y^-^^ ' prevented the creditor from going to sue in Scot- i9i- ' land after the bankruptcy. By giving this pre- ' ventive remedy against an unconscientious prefer- ' ence, 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 this country ; and had ' that creditor effectuated his payments in Scotland, ' it would seem that his Lordship, in order to be Digitized by Microsoft® ASSIGNMENT IN BANKRUPTCY. 207 Chapter ■ consistent, would have obliged him to have ' accounted with the assignees if the fund had been ' brought within his jurisdiction.' (Majority ot the Phillips V. Court — Phillips v. Hunter}, 2 H. Bl: Lord Chief Justice Eyre however ridiculed the 402. proposition that a British subject shall not be allowed to contravene a British Act of Parlia- ment : — ' It is a specious and very splendid pro- ^y^<^^ C.J. ' position ' 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 proposition 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 } 1 have heard no answer to that ' question.' The answer seems to be that it would be the duty of the assignees to get possession of the money for the benefit of the creditors. It must however be noticed that the majority of The judg- the Court declared that the judgment was not dis- in reality regarded, but rather regarded ; for since 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 between the parties : — ' In an action Digitized by Microsoft® 208 STATUS. ' for money had and received, the receipt shall be Chapter '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, CJ., 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.' Judg- ment recovered by a foreigner. Westlake. Division of subject for con- sideration: a. English trustee going abroad. Policy of English Bank ruptcy I^aws. The last question to be considered is — Will a foreigner who has recovered without notice of the English bankruptcy be held to have recovered to the use of the trustees 1 To this Westlake gives an affirmative answer ; but Story does not distinguish this from a recovery by a foreigner with notice, in which case, it will be remembered, the foreignjudgment willbe respected. Eyre, C.J., in Phillips v. Hunter did not approve oi Phillips v. the principle that the foreigner should be held to 2 h. si: have recovered to the use of the trustees ; nor did 4°2- Lord Loughborough, C.J., in Sill v. Worswick. Sill v. Let us consider first what would result from the i h. B1: ' English trustee going abroad to recover the debt : ^^^' He finds it has been already recovered by a foreign creditor before notice could have been given : it must be very doubtful whether the creditor would be compelled to refund to the trustees ; for the foreign Courts cannot be expected to take notice of the policy of our Bankruptcy Laws, the insuring of absolute equality arhong the creditors : which policy alone guides our Courts in holding the English creditor to have recovered to the use of the trustees, so as to prevent his obtaining a larger proportion of his debt than the other creditors. Digitized by Microsoft® ASSIGNMENT IN BANKRUPTCY. 209 Chapter Next, let us consider what would be the effect S- Foreign '. — of the foreign creditor, who has recovered abroad coming^to without notice, coming into this country. The England same result seems to be arrived at: For when the recovery. English creditor sues 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 toprove under the English Commission. Nevertheless, an English creditor having recovered a debt in the English 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. The paragraph from Westlake is as follows : — 4. And lastly, we may probably add that if no intima- Wesilake. tion was given previous to the completion of the recovery by attachment, the same presumption — (that the money was recovered to the use of the assignees) — will be raised, and the creditor, whether 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 dis- tinctions there suggested on the creditor's nationality refer only to the case of an intimation actually given.] Hunter V. Potts. 4T. R. 182. Sill V. Worswick. 1 H. Bl: 665. Phillips V. Hunter. 2 H. Bl: 402. ii. Injunctions during the Pendency of injunc- Bankruptcy Proceedings. pending During the pendency of the bankruptcy pro- \^^_^ ceedings and before the final order of discharge, the Power of Court will protect the bankrupt from any vexatious °"" '° Digitized by Microsoft® 2IO STATUS, protect harassing on the part of his creditors, under sec- bankrupt. tion 13 of the Bankruptcy Act, 1869. Chapter IV. 32 & 33 Vic: c. 71, s. 13. Pmver of Cottrt to restrain proceedings against bankrupt. Prrtection against foreign creditors. Identity of parties. Applica- ti 'Hs for iniunction where foreign creditor not party to bank- ruptcy. 32&33 Vic: c. 71, s. 13. The Court may, at any time after the presentation of a bankruptcy petition against the debtor, restrain further proceedings in any action, suit, execution or other legal process against the debtor in respect of any debt prove- able in bankruptcy, or it may allow such proceedings, whether in progress at the commencement of the bank- ruptcy or commenced during its continuance, to pro- ceed upon such terms as the Court may think just. The Court may also, at any time after the presentation of such petition, appoint a receiver or manager of the property or business of the debtor against whom the petition is pre- sented or of any part thereof, and may direct immediate possession to be taken of such property or business or any part thereof. The question we have to consider is, how far the Enghsh Court is able to protect the bankrupt from proceedings taken by his foreign creditors in foreign Courts. The discussion under the head of Injunctions and the plea lis alibi pendens must be remem- bered : — It is presumed that the principles there eniinciated will, so far as they are applicable, bear upon the point now under consideration : Their application will be to those bankruptcy cases in which there exists an identity of parties : that is, where the person who is sought to be restrained from suing is a party to the English bankruptcy. Attempts have however been made to induce the Court to issue an injunction to restrain foreign 'cre- ditors from suing in a foreign Court, irrespective of the question whether they have proved under the English Commission. Lord Cranworth, L.C., in Maclaren v. Stainton, Maclareu v. the Carron Iron Digitized by Microsoft® INJUNCTIONS IN BANKRUPTCY. 211 Chapter Co : said that ' there must be a very strong case to ' induce the Court to restrain a foreigner, domiciled Maclaren ' Jq another country, from proceeding to obtain V. Stainton ' payment of debts according to the law of the v.^Carnn 'country in which he is domiciled, thus appearing C": ' to admit the possibility of such an injunction Ch: 332. ' being granted ; but, as was pointed out by Bacon, re Chap- CJ., in re Chapinan, ■ the Court will not make an L. R. 15 order which must of necessity be brutitm fidmen, El- 75- as it has no means of enforcing its order against the foreigner. Penneiiy. The Court acted upon this principle in Pennellv. 3 De G. ^oy : An action was brought by a Scotch creditor M & G. jn Scotland, who had not proved under the English bankruptcy, against the assignees to recover out of the bankrupt's Scotch realty an amount equal to the dividend which would have been payable on the debt : The proceedings were shown to be frivo- lous, but the English Court refused to interfere : — ' It is not the duty or function, or within the power Knight- 'of the Court to restrain men from prosecuting ^""'' ■^' ' frivolous, litigious, and desperate suits, merely be- ' cause 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 ' obligation, nor owes any more duty to the assig- ' nees, or the other creditors, than he would if he 'were no creditor at all, and consequently, 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 ima- 'ginary grievance.' (Knight-Bruce, L.J.) And from Turner, L.J., we have once more a recognition of that principle which underlies the whole subject of foreign judgments : — ' I have less hesitation in J"';"^''. r 2 Digitized by Microsoft® 212 STATUS. ' refusing to grant the injunction, because it is the Chapter cf: p. 92. ' duty of this Court to give credit to foreign Courts ' for doing justice in their own jurisdiction.' Where gut^ jf the creditor has become a party to the creditor is English bankruptcy by proving his debt under it, ban"-'''" ^^^ Court will then have jurisdiction over him, and ruptcy. will therefore have the power of enforcing any order it may make against him. This principle fully appears from the cases already quoted ; it was also acted upon to some extent in the following, the only difference being that in the case of the foreign creditor, his express submission to the jurisdiction, by proving his debt, is requisite. In ex parte Ormiston, re Distin, an injunction was ^'^P- granted against an English creditor who was suing „ Distin. in a foreign Court for a debt incurred in England. ?4 L. T: . „ . , . . . N. S. 197. In ex parte Tait, re Tait, the mjunction was ^^, granted to restrain the prosecution of an action Tait, re in Ireland upon a claim which, if due, was proveable l. R. 13 under a deed of inspection ; and the question neces- ^1- S"- sarily to have been decided here. Corollaiy. As a Corollary from this doctrine we have the Money ^^gg Qf Selkrip V. Davis, where it was held that a Selkrig v. already Davis received to person cannot come under an English commission ^ j^^gj into com- ' ^'''•^°^^ bringing into the common fund any money 291- mon fund, that he may have already received abroad. See also Cockerell v. Dickens. Cockerell Bank- With regard to the bankruptcy of partners, or I'm.*d!'& Dartners "^ persons partners in firms carrying on business ^^ ^- 45- in two or more different countries, the same rules •Identity hold good as to the identity of the parties to the -fP-'-- two bankruptcies. ^^.^,^^^^ In Brickwood v. Miller, one of the partners of a v. Miller. West India firm resided in London and became 279,**^' Digitized by Microsoft® INJUNCTIONS IN BANKRUPTCY. 213 Chapter bankrupt. A creditor both of the firm and 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. exp\ So, in ex parte Cridland, a joint commission of 3 V. & b'. bankruptcy here was not superseded on the ground 94- of a separate commission against one of the partners proceeding in Ireland. Similarly as to the restrictions against double Restric- . tions proof. against exp: In ex parte Chevalier, re Vanzeller, there was a ^°'^]^ Chevalier • proof. re Van- ' proccss of insolvency abroad against the foreign firm, ^^m'' ^^^ ^ commission against an English partner. The & Ayr: foreign firm had dravim bills on the partner who was ^^^' trading on his own account in England, payable to an agent of the foreign government : he was re- strained from receiving dividends here, unless he exp: elected not to prove under the insolvency abroad. ^foZn^ And in ex parte Goldsmith, re Deane, bill-holders De G. & of a firm in Pernambuco, having received a dividend T 67 . ' under a concordata by 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 in England. Analogous to the plea lis alibi pendens, is an Appiica- application to expunge a proof under the English expunge bankruptcy because the foreign creditor has P™"^ ™- ■ 1- ■ r English already instituted proceedmgs m the foreign proceed- exf country for the recovery of his debt. This appli- ™S^" worth re cation was made in ex parte Cotesworth, re Van- Vanzeller. seller : but the Court refused to expunge the proof Oh: 281. in the absence of all evidence as to the nature of Digitized by Microsoft® 214 STATUS. the process abroad ; as it did not appear whether chapter that process was a satisfaction or security, and \ — it would be unjust to expunge proof, and turn it into a claim :~An injunction was not asked for. Foreign If the foreign Court has suspended a claim, this -PrM v. suspension . .,, , . , , .■■ ,i Wollasion. recog- suspension will be recognised, and an action m the 21 l. j: tiised. English Courts on the claim will be stayed. {Frith ^^'- i°^- V. Wollaston.) iii. The Final Discharge, and its Effect ON the Bankrupt's Obligations. Effect of Hitherto we have considered only the effect of discharge ^ bankruptcy on the bankrupt's own property, and on his on the debts owing to him ; we now advance to the tions. last stage of the proceedings — the order given by the Court that the debtor be discharged from his obligations. a. Where the discharge is by the Courts of the cou7itry of the contract. Discharge There is no doubt that an obligation is extin- of co" ™ ^ guished by a discharge under the laws of the tract. country where the contract was entered into, and obligation that this discharge will be recognised by the Courts extin- of every other Country. Ballantyne guished. ^, . . . , , . „ 77 '*'• Goldtng, This principle was acted on in Ballantyne v. Cookt's Golding : but in Pedder v. Macmaster it appears to gthed^AS? have been thought an open question. It was how- Pedder y. ever finally established by Lord EUenborough, C.J., ^^^„. I.d: Ellen- in Potter V. Brown : — ' The bankruptcy and certifi- 8 T. R. C.y"^ ' ' cate would have been a discharge of the debt in p^a^y ^_ ' America, and it must by the Comity of the Law ■^'^''»- of Nations be the same here.' This was followed, 124. Digitized by Microsoft® DISCHARGE IN BANKRUPTCY. 215 Chapter in Quelin v. Moisson, Gardiner v. Houghton; and IV. Gierke v. Emery at Nisi Prius. (^elin V. ' xj^ig general form in which the doctrine is ex- No ques- I Knapp. ' pressed, seems to preclude any consideration of j,'°t"onal-° ^ '°- ' the question between what parties it is made : ity of V. Hough- ' whether between citizens, or between a citizen and J^ • " 23 & s ' ^ foreigner, or between foreigners. § 34°- 743. ' The rule is not founded upon the allegiance due Clerke v. < from citizens or subjects to their respective govern- Amery. -" jr o I F. & F. ■ ments, but upon the presumption 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 question always to be considered is, Foreign whether the foreign discharge is absolute in the ^'Sfl^^i'se ° ° to be country where it was given. absolute. Thus, in Quelin v. Moisson, the Privy Council held that a bankrupt discharged under the laws of France could not be sued in England either fora debt proved under it, or for a debt not proved under it. Before coming to a decision, the following ques- tions 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 contmnace ' as a fraudulent bankrupt .'' The answers were: — i. He could not be sued even by one who had not proved, ii. The sentence 'par contmnace ' 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 will not be recog- nised as a discharge in any other country. Digitized by Microsoft® 2l6 STATUS. Discharge In ex parte Burton, this question was raised as to Chapter to cOTzo" a composition in Holland : In that country pro- \ — noTreco '^ss'i'ngs are adopted similar to the cessio bonorum ^^^^^^ nised. among the Romans, by which the debtor is only 3 M. D. & exempt from imprisonment, his debts remaining ' ^ ''' until fully paid. The composition was therefore held not to have discharged the obligation. But Discharge /3. Wliere the discharge is by the Courts of a not'^of™ "^^ country not the country of the Contract, contract. ^^ question is very difficult of solution: — Is an obligation, contracted in one country, extinguished by a discharge under the laws of another country ? Westlake. ' There seems to be no juristic principle,' says Comity Westlake, 'which compels an affirmative answer. declare ' But the case is eminently one for the application extin^ ^°" ' °f Comity between those nations which have insti- guished. ' tuted 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.' Story, But Story very positively asserts that the opposite The^obli- doctrine, namely, ' that a discharge of a contract by gation is ' the law of a place where the contract was not guished. ' made, or to be performed, will not be a discharge § 1267, ' of it in any other country. egz.^StV The authorities in support of Story's proposition ed: are. Bell's Commentaries ; Surge's Commentaries pt: 2^^ch: on Colonial and Foreign Law ; and the followincr "' PP" ° 924 — 929. cases : — /I ■ E' jf 1 12 H. Blr Qum V. Keefe^ ^53. Smith V. Buchanafi'^ ^i East, 6. Lewis V. Oiven^ ''A ?v* Aid: 654. Digitized by Microsoft® DISCHARGE IN BANKRUPTCY. 217 Chapter IV. *8B. &C. 477- ^30 L. J: Q. B. 352. "4 Shaw & Dun: 308. Smith V. Buch- anan. I East, 6. Wolff y. Oxholm, 6 M. & S. 92. Phillips V. Allan^ Bartley v. Hodges^ and the Scotch case Rose v. M'Leod.^ Of these, the most important is Smith v. Buchanan : The contract was entered into in England : the discharge was under an 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 Ld-. Ken- ' 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 condition of their having ' relinquished all their property to their creditors. 'But how is that an answer to a subject of this ' country, 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 ? ' Thus, in Wolff v. Oxholm, a receipt in accordance with an arbitrary ordinance made by the govern- ment 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 Extension ' should by its own laws provide that a discharge of "rine!*^" Digitized by Microsoft® 2l8 STATUS. Story, ' an insolvent debtor under its own laws should be a Chapter ' 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.' 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 contends for : and he takes the case of Edwards Edwards V. Ronald before the Privy Council, as finally estab- iKnapp. ' lishing the doctrine. ^59- Dis- But Edwards v. Ronald is one of a class of cases undCT^Act which apparently go some length towards support- of United ing this principle, but which were explained in Sute"" Bartley v. Hodges, three years after Mr: Westlake's f,^^'''^''- throughout book appeared ; and again in Ellis v. M' Henry. 30 L. J: Kingdom. The Privy Council held that a certificate of con- ^ ' ^^'^' formity obtained under a commission of Bankruptcy M' Henry. in England was a bar to an action for a debt ^' p ^23 contracted by the bankrupt in Calcutta previous to his bankruptcy ; although the creditor had no notice of the commission, and was resident in Calcutta. So in Sidaway v. Hay, a debt contracted in Sidaway England by a trader residing in Scotland was held ^'g. &'c_ to be barred by a discharge under a sequestration '2. in conformity with 54 G. III. c. 137 ; in like manner as debts contracted in Scotland. The principle upon which these cases proceeded Phillips v. was pointed out by Bayley, J., in Phillips v. Allan, ^^^"^ q and his explanation was approved in the two recent 477- Bayley, J. cases mentioned above : — ' A discharge of a debt ' pursuant to the provisions of an Act of Parliament Digitized by Microsoft® 219 DISCHARGE IN BANKRUPTCY. Chapter ' of the United Kingdom, which is competent to '. — ' legislate for every part of the kingdom, and to 'bind the rights of all persons residing either in ' England or Scotland, and which purports to bind ' subjects in England and Scotland, operates as a ' discharge in both countries.' Philpotts Thus, in Philpotts v. Read, an insolvent's certificate 9Mo':623. ill Newfoundland under 49 G. III. c. 27, s. 8 was pleaded in bar to an action in England for a debt contracted in England prior to the insolvency : Section 8 provides ' that a certificate obtained under a 49 G. III. ' declaration of insolvency in Newfoundland, shall, when '^' ^7; s- 8. 'pleaded, be a bar to all suits for debts contracted in ' Newfoundland and in Great Britain prior to the insol- ' vency.' We may now proceed to notice some of the decisions of the Scotch Courts. Ferguson In Ferguson v. Spencer, the right to sue in an Scotch \olT]T English Court on an English contract was held to d^^^''^^^- ' C. ?. 20. pass to the assignees under an Irish Bankruptcy Act ; ' the Act being that of the Imperial Parlia- Bartky v. > ment.' (Wightman, J. — Bartley v. Hodges.) 30 L. J: In the Royal Bank of Scotland v. Cuthbert (or Q. B. 352. gfgifi's case) and in Selkrig v. Davis, the Court of V. Cuth- Session held that the Commission of Bankruptcy bo'L vested the personalty of the bankrupt in the 462. App: assignees wherever situate : And in the former case Selkrig V. ^g f^^d that the Court were also unanimously of 2 Rose, 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 Digitized by Microsoft® 220 STATUS. the Court, since he says that the case is overruled ''^^P**'^ by Rose v. M'Leod. If the Court meant to confine - this expression of opinion merely to English or M'Leod. Scotch debts, then it falls within the same principle 4 Shaw & Ti T 1 Dunlop, as Ferguson v. Spencer. And since Lord Meadow- 308. bank was one of the judges both in Stem's case and in Rose v. M'Leod, it may be presumed that this is Ferguson , . . ^ , , . . V. spencer. the correct mterpretation of the decision. 10 L. j: In Rose v. M'Leod, a debt contracted and pay- '-• ^- '^°- able in Berbice was held not to be discharged by a certificate under an English Commission of Bank- ruptcy. The following also are important Scotch decisions on the subject of a Foreign Bankruptcy : — Colvillev. James (Sc : Ses : Ca : 3rd Ser : Vol I., p. 41). Young V. Bucket ( „ „ „ „ II., p. 1077). Goetze V . Aders ( „ 4th „ „ II., p. 153) citing, Strother v. Read, and Maittand v. Hoffman, Phosphate Sewage Co : V . Lawson [, „ „ „ V.,p. 1125). Doctrine Bartley V. Hodges and Ellis v. M' Henry have Bartiey v. setliled.^ ^ *^^S" completely established the doctrine that an Hodges obligation is not destroyed by a discharge under Q. B. 352. the laws of a country not the country of the con- ^'■^" '^■ tract: all the judges, Wightman and Blackburn, L. R: 6 JJ.; Bovill, C.J., Brett and Willes, JJ., approving "^^ P- 22^- Story's proposition, and Lord Kenyon's reasoning BucJi- in Smith v. Buchanan. anon. I East, 6. Result. We have therefore this result : — Hypo- a contract entered into in France : — a dis- case'.'^'^ charge under the Bankruptcy Laws of Eng- land : — in an action in the French Courts on the contract, they will be justified in Digitized by Microsoft® DISCHARGE IN BANKRUPTCY. 221 Chapter refusing to acknowledge the English dis- '■ — charge. But, since foreign debts are proveable under the AH obli- ffEitions English Bankruptcy Laws, and the discharge and discharged certificate under those laws protect the goods and i° /courts ^ ° or country the person from all debts proveable under the granting z>avis V. commission (Davis v. Shapley) ; in the English '^'^ ^^^^' I R ScAd: Courts the debtor will be held to be discharged 54- from all his debts and obligations whether English Armani \. or foreign. Thus in Armani v. Castrique, Pollock, 14 L. J: C.B., said: — 'I have no doubt that if this were a^"^"'^'^. Ex: 36. ' 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 pro- ' perty 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 cm V. ' every contract by the bankrupt made in any part Barron. - Qf ^j^g world.' This was approved by the Privy P. C. 157. Council in Gill v. Barron. Continuingthe hypothetical case suggested above, Result, the further result is, that in an action in the English Courts on the Hypo- same contract, they will be justified in cjg'^con- acknowledging the English discharge. tinued. But, supposing an action brought in the French Courts, and judgment recovered : and then an action in England on the French judg- ment : 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 Digitized by Microsoft® 222 STATUS. recognised by our Courts ; namely, that a Chapter Story's extension of the doctrine applies to England. cf: p. 217. Hypo- thetical case con- cluded. discharge by the laws of a country which is not the country of the contract does not release the debtor from the obligation. England therefore is one of those States ' by its ' own laws providing that a discharge of an insolvent ' debtor under its own laws is a discharge of all the ' contracts, even of tho.se made in a foreign country. ' Its own Courts have declared this to be the law.' 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 Eng- ,land : the defendant's plea of bankruptcy and discharge held good : The French Courts would be justified in refusing to acknowledge such judgment, and in allowing the plaintiff to recover on his contract. General summary. It is believed that the bankruptcy laws of France and of Germany are similar in this respect to the English. A discharge under the laws of either of these States is therefore not recognised in the English Courts (although, it is to be remembered, the principle of the judgment is in accordance with the English practice), because it proceeds upon a violation of International Law ; — one State depriv- ing of his rights a subject of another State who has not in any way submitted to its jurisdiction. It is believed also that the laws of the United States do not arrogate to themselves that right of discharging foreign obligations which is claimed by the English laws. A discharge under such laws therefore, coming Digitized by Microsoft® DISCHARGE IN BANKRUPTCY. 223 Chapter before the English Courts is in reality recognised ' so far as it goes : that is to say, the English Courts do not refuse to be bound by it, because it does not profess to bind them. But, were it possible to ascertain the laws of every country, it is not improbable that among the majority of States the result might be found to be, that a similarity exists in their laws to those of England : — Were this so, then it is suggested, with all submission, that the case is indeed ' eminently cf: p. 216. one for the application of comity.' Odwin V. The case of Odwin v. Forbes must be noticed, as fsn^ ^* ^^ "^^ °"^y °"^ '" which the opposite doctrine C. B. 57. appears to have been acted upon, and a foreign discharge admitted. A very careful and elaborate judgment was delivered by the President of the Court in Demerara, which was appi-oved by the Privy Council. The judgment concluded thus : — ' On the strength of cases and opinions, and on the Judgment ' principle of comity and reciprocity which had been dent of ' shewn to exist between England and Holland in ^°"''' °^ ° Demerara. ' matters of bankruptcy, and still further 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 effect to the certificate, and not leave 'him liable to the actions of the foreign creditors.' The English certificate was admitted accordingly. It must however be remembered that whereas the assignment deals with the property of the debtor, the discharge affects the property of his Digitized by Microsoft® 224 STATUS. creditors, which consideration might be sufficient to Chapter account for any diiiference in the effect accorded to " them. Applica- In Heather v. Webb, the Court of Common Pleas Heather v. principle ^eld that an action could not be maintained on a ^^^'^ oiHeather promise to pay a debt from which the debtor had C. P.D. i. V. Webb to l^ foreign been released by a discharge in bankruptcy. judgments, -pj^g principle of the case being that the English release from obligation is absolute, it is presumed that the same principle will apply to foreign bank- ruptcies when the discharge by the foreign Court is also absolute. iv. Personal Status of the Bankrupt. Personal The Courts of one country do not regard in any bankriipt: '^^'V ^^ personal status of the bankrupt of another Not recog- country. In some States bankruptcy is regarded inter- as a criminal act, and the debtor liable to imprison- nationaUy. ment ; but this is a matter concerning the State alone, provided by it as a deterrent to its subjects ; it therefore can have no extra-territorial effects Judgments Xhe judgments we have been considermg deter- determm- . ' ^ ^ , .,..,,. , \rv^ status mme the status of the mdividual, m the same ^rem"^ manner as judgments in rem determine the status of the chattel with reference to property; they clothe him with that status as against everybody else ; It follows that they also are in rem, and must therefore be recognised as binding, not only as mboyet v. between the parties to the suit, but in all suits and ^'■'>°y«t- L. R. 4 P. by all parties, (cf: Brett, L.J. — Niboyet v. Niboyet) Div: i. Digitized by Microsoft® 225 SUMMARY OF STATUS. Division of the subject. i66 I. Marriage. Divorce. Legitimacy. i68 The questions involved depend both on the place where the sentence upholding or annulling the marriage is pronounced, and on the place where the marriage was solemnized. 167. 168 effect of Lolley's case. 168 the old doctrine of indissolubility of English marriages. 168 the doctrine of lex domicilii — 169 marriage not a civil contract ; but lex loci contractus to prevail in cases of form or ceremonial. 169 the doctrine of lex loci contractus. 169 marriage a civil contract ; but lex domicilii to prevail in cases of polygamy, incest and statutory prohibi- tions. 169 Error. 170 Jurisdiction of the Court. 170 divorce granted ex parte. 170 jurisdiction created in fraudem legis : e.g. by taking advan- tage of the assumed jurisdiction in forty days by Scotch Law. 171 a divorce obtained under such circumstances may be valid in Scotland but will not be recognised in England. 171 question as to what domicil sufficient to found jurisdiction in a foreign Court :, 1 7 1 whether temporary residence not in fraudem legis sufficient or not appears doubtful. 171 Lolley's case and Shaw v. Gould are identical. 172 short review of other cases. 173 wife's domicil. 173 Fraud and collusion. 174 a mutual arrangement to found jurisdiction is not collusion ; but example of collusion in Shazv v. Gould, 174 Q Digitized by Microsoft® 226 SUMMARY OF STATUS. the doctrine of recognition of divorce reconciled to the general theory of foreign judgments. 176 Simonin v. Mallac considered ; and the recent decisions in Sottomayor v. De Barros. 177. 179 general summary of doctrines to be deduced from the cases. 178 a marriage abroad, not in conformity with incapacities of law of domicil, though lawful abroad, not recognized, nor a judgment in favour of the marriage. converse doctrine. 179 personal incapacities of law of domicil recognised by Courts of country of contract : — but other incapacities, e.g. of ceremonial, are not recognised, nor a judgment annulling the marriage on account of such incapacities. note on Mrs: Bulkley's case and the French law. i8r II. Lunacy. 184 Foreign finding in Lunacy recognised in England : but further enquiry requisite here to obtain protection of Lord Chancellor. 184 Foreign curator bonis may apply for transfer of lunatic's money in funds. 184 in the case of a foreigner as of right ; 184 in the case of an English subject, reference to the master directed, and application usually granted, if report is favour- able : 18s reasons assigned for not granting transfer, although report is favourable. 185 Lunacy Regulation Act, 1853 (16. & 17. Vic: c. 70), ss.'Ss. 141 — 186 re .Sottomayor considered. 1 86 III. Guardianship. 188 Foreign appointment usually followed in England. 188 review of the cases. 188 — 190 ground for not following the appointment. 191 guardianship a practical illustration of the theory of the auxiliary sanction. 191 IV. Probate. 192 general theory of conclusiveness of foreign probate. 192 review of earlier cases 193 cases in support of conclusiveness of probate. 193 Digitized by Microsoft® SUMMARY OF STATUS. 227 H.R.H, the Duchess of Orleans' case considered. 194 — 196 Foreign administration granted to a minor will not be followed, but he will be allowed to elect his guardian. 194 an administrator is an officer of the Court, and therefore his appointment is governed by the lex fori. 195 General principle : — Foreign appointment not followed, if the person appointed is incapable of performing the duties of the office in England. 196 minority depends on the lex domicilii. 196 Powers of Court of Probate under 20. & 21. Vic: c. T"]. s- ;3--i97 ground of attacking probate : the lex domicilii was not followed ; a breach of International Law. 198 Probate a practical illustration of the theory of the auxiliary sanction. 199 V. Bankruptcy. 200 Division of the subject. 200 a foreign adjudication, and assignment is recognised in England with or without notice of the forefgn proceedings, either to stay an English action to attach property ; or in all action brought by the foreign trustees. 201 assumed jurisdiction in bankruptcy. 202 the doctrine applies to personalty only. 202 peculiar rights of foreign trustees will be recognised. 204 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: 205 nevertheless if the attaching creditor be English, he will be held to have recovered to the use of the trustees, with or without notice : 205. 206 but otherwise if the creditor be a foreigner, with or without notice. 208 Phillips V. Hunter considered. 206 An injunction pending proceedings will be granted against a foreign creditor only if he has submitted to the jurisdiction, by proving under the commission : 209 the injunction in any other case would be brutum fulmen. 211 if a foreigner intends to prove in England he must bring into the common fund any money he may have already received abroad. 212 Q 2 Digitized by Microsoft® 228 SUMMARY OF STATUS. bankruptcy of partners and of firms in different countries considered. 212 a foreign suspension will be recognised. 214 a discharge by the country of the contract dissolves the bankrupt's obhgation, and the discharge will be recognised everywhere. 214 no question as to nationality, but only as to absoluteness of discharge: 215 a discharge, similar to the cessio bonorum of the Romans is not recognised out of the country. 216 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: 216 but some countries declare that a discharge under their laws dissolves in their own Courts all obligations wherever contracted : 217 as for example, England : such judgments will not be recognised by other countries. 222 a discharge under an Act of the United Kingdom is absolute in every part of the United Kingdom. 218 Scotch decisions considered. 219 The whole doctrine illustrated by means of a hypothetical case. 220 — 222 Odwin V. Forbes considered. 223 The principle of Heather v. Webb applied to foreign bankruptcy. 224 The personal status of the bankrupt is not recognised inter- nationally. 224 Digitized by Microsoft® 229 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. In conclusion, it may therefore not be inappropriate to trace the ' asymptotic growth towards certainty ' which this Theory of Foreign Judgments has undergone. Springing immediately from Lord Blackburn's judgments in Godard v. Gray and Sthibsby v. Westenholz, it seemed to be the most appropriate solution of the conflict between the numerous authorities upon the subject of ' Enforcing ' a Judgment : It appeared of its own strength, capable of solving the difficulty attending the reception of the many doctrines on the subject of ' Recognising' a Judgment: It supplied a ready answer to all the difficult problems arising from the varying defences which have emanated from the fertile brain of advocates : Expanded, it included in its application Judgments in Rem : And finally, Judgments of Status ; coinciding in this last step with all the authorities. Digitized by Microsoft® 230 CONCLUSION. It has to contend with many received notions upon the subject : more especially with that which endows the foreign judgment creditor with power to treat the judgment as a debt in England To remove this idea has been the object of the theoretical con- siderations contained in the first Chapter ; and once removed, many difficulties attending the rejection of certain defences seem also to disappear. It must now bide its time, until that free conflict of discovery, argument and opinion has taken place, and won for it recognition. Digitized by Microsoft® 231 INDEX. Absence of Defendant, definition of absence, 121 intentional, 120 subject to jurisdiction, 120 technically correct, 121 knowledge of action, 121 unintentional, 121 not served with process, 121 served with artificial citation, 122 Acquittals, 161 Adjudication in Bankruptcy, Foreign, effect of in England, 201 English, „ „ abroad, 204 Administration, when foreign grant followed, 193 — 196 foreign grant to a minor, 194 Administrator, appointment governed by lex fori, 195 Admiralty Courts, powers of, in war, 148 Admiralty Decisions, in matters of prize, 147 not in „ „ 159 Affidavit, required by Order XL, 89, 129, 130 Alien, resident, rights and duties of, 88 enemy kept out of action, 127 effect of judgment against, by Courts of his own country, 88 Allegiance, temporary, effect of, 87 Digitized by Microsoft® 233 INDEX. Appeal, pendency of, effect of, 64 not appealing abroad, effect of, loi Appeal Court, English Court not Appeal Court from Foreign Court, 33, 65, 96 consequence of principle, 100 Appearance, generally, 85 voluntary, effect of, 84 involuntary, „ „ 84 Arrestment, Scotch, 94 Assignment in Bankruptcy, , Foreign, effect of in England, 201 English, „ „ abroad, 204 Attachment, Foreign, 94 Auxiliary Sanction, explained, 18, 20 its position in the theory, 16 practical illustration, Guardianship, 191 „ „ Probate, 199 Bankruptcy, 200 adjudication and assignment, 201 injunction pending proceedings, 209 final discharge, 214 Status of bankrupt, 224 policy of English Bankruptcy Laws not regarded abroad, 208 Belgium, effect of foreign judgment in, 70 procedure against absent foreigners, 123 Chancellor, Lord, his jurisdiction in Lunacy, 184 Channel Islands, judgment of, 2 Collusion, in Divorce, 174 Colonies, British, judgment of, 2 Common Law of, 9 proof of Foreign Judgments in, 69 Digitized by Microsoft® INDEX. 233 Comity, definition of, 14 doctrine of, 3, 4—6, 18 definition of, 14 „ „ (Blackburn, J.), 4 considered theoretically, 20 in Bankruptcy, 216, 218, 223 Common Law as used by Blackburn, J., 8 first interpretation, 9 second „ 10 Blackstone's definition, 8 of England, 8 of other states, 9 Company, Foreign, effect of becoming shareholder in, 82, 83 Concurrent Suits, 50—61 Condemnations, Exchequer, 161 Prize, 147 grounds of ; — 'enemy's property,' 152 general, 152 violation of Treaties, 153 „ „ Ordinances, 153 'enemy's property' with ordinances, 154 violation of Treaties „ „ 155 Contract, effect of making, abroad, 87 breach of, wherever entered into: Order XI., 126 CONTRIBUTORIES, order on Foreign, effect of, 83 Costs, awarded abroad, action for, 135 Defences, doctrine of Comity, 5 „ „ Obligation, 8 „ „ Obligation and Comity, 21 tests to be applied to, 79, 95, 100 Chapter II., 76 Plaintiff's fraud, 79 Court's jurisdiction over the person, 82 Digitized by Microsoft® 234 INDEX. Defences — coiiHnued. over the thing, 92 Court's Error, 96 „ Fraud, 107 Natural Justice, 1 1 5 International Law, 130 in Judgments referring to Land or Immoveables, 145 „ Admiralty decisions in prize, 148, 150, 158 „ „ „ not in prize, 159 „ Marriage, Divorce, and Legitimacy, 170, 174 „ Lunacy, 187 „ Guardianship, 191 „ Probate, 198 Defendant, absence of, intentional, 120 unintentional, 121 non-resident, procedure against, 22, 122 in Belgium, 123 „ England, 128 „ France, 122 „ Mauritius, 123 Denmark, effect of Foreign Judgment in, 70 Discharge in Bankruptcy, by courts of country of contract, 214 „ ,. „ not of contract, 216 under Act of United Kingdom, 218 District Registrars, service of writ out of jurisdiction, 130 Divorce, effect of foreign sentences between foreign subjects, 167 marriage celebrated in the country to which parties subject, 167 marriage celebrated in any other country, 167 effect of sentence of one country dissolving marriage solemnised in another country, 168 doctrine of lex domicilii, 168 „ „ lex loci contractus, 169 assumed jurisdiction by Scotch Courts, as in Shaw v. Gould, 171 note on Mrs: Bulkley's case in the French Cour de Cassation, 181 Digitized by Microsoft® INDEX. 23s Doctrines, of Comity, 3, 4 — 6. „ Obligation, 3, 7— 12 „ Obligation and Comity, 16 — 22 general review, 17 res judicata absolute, 27-^32 modified, 33 'not absolute,' 35 of non-merger, 35, 39 — 42 ., prima facie evidence, 4 1 — 44 „ lex domicilii, in Divorce, 168 „ lex loci contractus, „ 169 DOMICIL, owner's, in case of personalty, 93 shareholder's, compulsory, 123, 128 to found jurisdiction in divorce, 171 of wife, 173 of children, 189 example of animus revertendi, 173 for injunctions in bankruptcy, 2 1 1 Election, in concurrent suits, party put to, 57, 59 Enemy's Property clearly set out in condemnation, 152 not set out, 152 by aid of ordinances, 154 Enforcing, the, 3 English Law, error in, 103 defendant's duty to bring it before Foreign Court, 105, III Error of the Court, 95 on facts or merits, 96 proveable, 96 apparent, 97 in its own law, 100 in foreign law, 103 English law, 103 of any third country, 1 06 in its own procedure, 106 wilful, 105, 107 Digitized by Microsoft® 2?,6 INDEX. Error of the CovRT—coniiuuea. in judgments relating to land or immoveables, 146 „ Admiralty decisions, 158 „ Divorce, 170 Extradition Treaties, 15 considered theoretically, 1 5 Foreign Attachment, 94 France, effect of Foreign Judgment in, 70 procedure against absent foreigners, 122 Fraud of plaintiff, 79 of Court, 107 in judgments relating to land or immoveables, 146 „ Admiralty decisions in prize, 1 50 „ „ „ not in prize, 1 59 „ Divorce, 174 Germany, Common Law of, 9 effect of Foreign Judgment in, 70 Guardianship, 189 Identity of Suits what constitutes, 61 Vinnius, 24 in the case of Injunctions, 53 „ „ Lis alibi petidais, 57 „ „ injunctions in bankruptcy, 210 „ „ bankruptcy of partners, 2 1 2 Immoveables, judgments relating to, 145 Injunctions, to restrain proceedings in Foreign Courts, 50 ). >, » English „ 57 proposition i. — vexatious harassing, 52 „ ii. — terms imposed, 54 „ iii.— contrary to equity, 5 5 „ iv. — in discretion of Court, 56 general result, 58 following foreign decision, 59 obtained by persons, parties only in one suit, 59 to next of kin in administration, 60 during pendency of bankruptcy proceedings, 209 Digitized by Microsoft® INDEX. 237 Integrity of Court, 112 Interest of Judges, 113 Interest on Foreign Judgment, 133 Interlocutory Judgment, not enforced, 63 International Law, considered theoretically, 19 breach of contract wherever made: Order XI, 126 the defence, ' Contrary to International Law,' 130 breach of, in Admiralty Prize decisions, 1 56 „ „ Probate, 198 „ „ Bankruptcy, 223 Ireland, judgment of Courts in, 2 , service out of jurisdiction to : Order XI, 89 Judgment, Foreign definition, i what it is evidence of in English Courts, 44 those not recognised, 114 Judgments in Personam compared with judgments in rem, 142 — 145 Judgments in Rem, Chapter III, 141 Jurisdiction, not to be attacked by plaintiff, 38 of Court, in case of injunctions, 5 1 „ constructive, „ „ 5^ , the defence attacking, 80 „ over the person, 81 „ „ thing, 93 assumed, 22, 89 „ in Divorce, 171, 176 „ „ Bankruptcy, 202 service out of: Order XI, 88, 128 in judgments relating to land or immoveables, 146 „ Admiralty decisions in prize, 148 „ „ „ not in prize, 159 „ Divorce, 170 created infraudem legis, in Divorce, 171, Land, judgments relating to, 145 Digitized by Microsoft® 238 INDEX. Legitimacy, 167 Liens, Maritime Admiralty decisions as regards, 161 Limitation, Statutes of effect of judgment on, 66 consideration as to pleading, 131 English, extend to India, 67 Lis Alibi Pendens, 50, 57 Lunacy, 184 Man, Isle of judgment of, 2 Marriage, 167 [see Divorce] doctrines as to law governing the contract, 169 Masters, reference to, in Lunacy, 185 service of writ out of Jurisdiction, 130 Mauritius, procedure against absent foreigners, 123 Minor, foreign grant of probate to, 194 election of guardian by, 196 Minority, 196 Natural Justice, violation of, 5 the defence ' against Natural Justice,' 1 1 5 old opinion, 1 1 5 Baron Bram well's proposition, 116, 11 8 in judgments relating to land or immoveables, 146 „ Admiralty prize decisions, 1 50 Neutrality, general principles, 149 warrant of, 151 representation of, 151 New Assignment, 26 New York, Trustee Process in, 94 Non-Merger, doctrine of, 35, 39 — 42 Norway, effect of Foreign Judgment in, 70 Digitized by Microsoft® INDEX. 239 NulTiel Record old practice, 25 considered generally, 133 Obligation, doctrine of, 3, 7 — 12 definition, Parke, B., 7 principles negatived, 1 7 legal, II destruction of, 12 extinguishment of, by discharge in Bankruptcy, 214 hypothetical case, illustrating doctrine, 220 — 222 Obligation and Comity, inception of doctrine of, 13 doctrine of, 16 — 22 principles involved, 17 „ negatived by it, 17, 1 8 Ordinances, violation of, 153 used to guide the Court, 154, 155 Partner in foreign firm, 83 bankruptcy of, 212 Penal Laws, judgments proceeding on, 114 Personalty in foreign country, 93 in bankruptcy, 203 Plaintiff, conduct of, 79 fraud of, 80 Prize Decisions, 147 Probate, 192 Probate Action, writ of summons out of Jurisdiction, 129 Procedure, against non-resident defendants, 22, 122 Proof, of Foreign Judgments, 68 Prussia, effect of Foreign Judgment in, 70 Purchasers, admiralty decisions as regards, 157 Digitized by Microsoft® 240 INDEX. Realty, in foreign country, 93 in bankruptcy, 203 Reasons, appended to Foreign Judgment, no Recognising, the, 23 Reply, of plaintiff, 37 Res Judicata, with reference to English decisions, 23 full of effect of defence, 27 earlier absolute doctrine, 27 — 32 modified doctrine, 32 Revenue Laws, judgments proceeding on, 114 Exchequer condemnations, 161 Sanction, [see also Auxiliary Sanction] inseparable from obligation, 11, 12 avoidance of, 12 classification, 14 ultimate, when used, 14 intermediate, „ ,14, 15 an essential characteristic of sovereignty, 19 Sardinian States, effect of Foreign Judgment in, 70 Satisfaction, 36 Scotch Arrestment, 94 Scotland, judgment of Courts, 2 service out of Jurisdiction to : Order XI, 89 Scotch decisions, in bankruptcy, 219 Shareholder in Foreign Company, express submission to tribunal, effect of, 82 without „ „ „ 83 compulsory election of domicil, 123, 128 Signing Judgment, under Order XIV, 131 Spain, effect of Foreign Judgment in, 70 Status, judgments on. Chapter IV., 165 Digitized by Microsoft® Digitized by Microsoft® ByMtrosoft®