SECTION XXI.-STAYING PROCEEDINGS IN FOREIGN COURTS.

1. Order to stay Proceedings in Holland.

LET the Deft E. H. be restrained from continuing or prosecuting the proceedings commenced by her in the Kingdom of the Netherlands, in respect of the moveable and immoveable estate of the testator, A. H.; and from commencing or prosecuting any proceedings in respect of the moveable or personal estate of the testator, either in the said Kingdom of the Netherlands or elsewhere, and from intermeddling with the said movable or personal estate of the testator, or any part thereof, whether in the said Kingdom of the Netherlands or elsewhere, and from obstructing, by legal proceedings or otherwise, or in any manner intermeddling with the said moveable or personal estate, or with any agent or agents of the exors of the testator in the said Kingdom of the Netherlands or elsewhere, or any person or persons having the custody or management of any part of the said moveable or personal estate, in respect to the management and disposition of the said moveable or personal estate, or any part thereof, or otherwise in relation thereto, until further order.-Plt's next friend to pay to the Deft E. H. her costs of this order and of a former order, such costs to be taxed.-Hope v. Carnegie, V.-C. S., 12 Jan. 1866, A. 76.

2. Order to stay Proceedings in Court of Session in Scotland.

UPON motion &c.-Let the Defts, the N. B. &c. Co., their solrs, advocates, writers, officers, or agents, be restrained until &c., from further prosecuting any proceedings in the Court of Session in Scotland against the Defts H. and B., and the Plt as co-exors of the will of D., which will involve taking the accounts of the admon of the said testator's estate. But this order is to be without prejudice to the said Defts, the N. B. &c. Co., taking or prosecuting any proceedings for the purpose of establishing their right or title to a charge upon the amount, which, upon taking the accounts prayed by the Plt's (bill) in this cause, shall be found to be due to the Deft H. S. B. in respect of his moiety of the residuary estate of the said D., and without prejudice to any question of priority between the said Defts and the Plt.-Baillie v. B., V.-C. M., 3 Dec. 1867, A. 2766.

For order restraining proceedings in Demerara as to property there, on undertaking by Plt to be bound by any order which this Court might make with respect to those proceedings, see Bunbury v. B., 1 Beav. 336.

For order staying suits in Berbice and Essequibo, see Bromwell v. Parr, M. R., 15 Jan. 1810, A. 165.

For order staying proceedings on a bill of foreclosure in the Jamaica Court of Chancery, filed after a decree in the Court of Chancery, directing inquiries as to what was due on the mortgage debt, see Beckford v. Kemble, 1 S. & S. 7.

For similar orders to restrain proceedings in the Courts of Ireland and Scotland, see Harrison v. Gurney, 2 J. & W. 563; Bushby v. Munday, 5

Madd. 297; and in Ireland against executors, pending_admon proceedings in this country: Eustace v. Lloyd, 35 L. T. 900; 25 W. R. 211.

For order restraining proceedings in the Court of Session by a Plt in respect of the same demand for which he had obtained a decree in this country, except for the purpose of procuring security for what might be found due to Plt, see Wedderburn v. W., 4 M. & Cr. 585; 2 Beav. 208.

For order staying a creditor from proceedings in an action in Scotland, commenced by him in ignorance of an admon decree in this country, under which his claim was in course of investigation, see Graham v. Maxwell, 1 Mac. & G. 71.

For orders in bankruptcy restraining actions against a bankrupt or liquidating debtor in foreign Courts, see Exp. Ormiston, 24 L. T. 197; Exp. Tait, 13 Eq. 311.

For order giving leave to Scotch landlord to proceed with sequestration to enforce his hypothec against the property of a company in liquidation, unless sufficient security was given for the rent of the current year, including a period previous to the winding-up, on terms of the landlord paying the costs of the motion (the Court being of opinion that the hypothec gave a security on the goods on the premises), see Re Wanzer, (1891) 1 Ch. 305.

NOTES.

JURISDICTION GENERALLY.

The principles upon which Courts of Equity, by the exercise of jurisdiction in personam (and not by any interference with the action of the foreign tribunal: London, &c. Bank v. Strutton, 18 W. R. 107; L. Cranstown v. Johnston, 3 Ves. 182; 5 Ves. 277; and see Exp. Tait, 13 Eq. 311), have restrained persons within the jurisdiction from improperly or vexatiously instituting or prosecuting proceedings in foreign Courts to determine questions which ought to be adjudicated upon in this country, are discussed and illustrated in Carron Co. v. Maclaren, 5 H. L. C. 416; L. Portarlington v. Soulby, 3 M. & K. 104; Venning v. Lloyd, 1 D. F. & J. 193; McHenry v. Lewis, 22 Ch. D. 397, C. A.; Mercantile Inv. &c. Co. v. River Plate, &c. Co., (1892) 2 Ch. 303; Kerr, 577, &c.; Dan. 1332 et seq.

For cases in which after a decree in this country injunctions have been granted against the prosecution of proceedings in foreign Courts, see Hope v. Carnegie, 1 Ch. 320; Beckford v. Kemble, Sim. & S. 7; Harrison v. Gurney, 2 J. & W. 563; Wedderburn v. W., 4 M. & Cr. 585; 2 Beav. 208; Graham v. Maxwell, 1 Mac. & G. 71; Booth v. Leycester, 1 Ke. 579; 3 M. & Cr. 459 (against prosecuting a suit in Ireland after a decree in this country refusing relief in respect of the same subject-matter).

In order that proceedings in a foreign suit may be restrained there must be some equity to justify the application; mere hardship or inconvenience is not enough: Fletcher v. Rodgers, 27 W. R. 96; and see Moor v. Anglo-Ital. Bk., 10 Ch. D. 681.

Although an admon judgment has been obtained in this country, foreign creditors will not be restrained from proceeding in a foreign Court against the admor: Re Boyse, Crofton v. C., 15 Ch. D. 591; Carron Co. v. Maclaren,

5 H. L. C. 416.

Even though a decree had not been obtained, where the relief would be more complete, or the question more conveniently tried in this country, or the subject-matter of the suit must be governed by the rules of English law, prosecution of the foreign action has been restrained on terms: see Bushby v. Munday, 5 Madd. 297; Baillie v. B., 5 Eq. 175; Bunbury v. B., 1 Beav. 336; Cood v. C., 33 Beav. 314; but quære whether this could be done as against a Deft who before decree has no control in the action: Hyman v. Helm, 24 Ch. D. 531, 540, C. A., per Cotton, L. J.

If the injunction would be ineffectual (see Re Chapman, 15 Eq. 75), or if from the questions of foreign law involved, or from other reasons, the matter can be more conveniently tried in the foreign Court, the proceedings there will not be restrained: see Elliott v. L. Minto, 6 Madd. 16 (where the cause was directed to stand over until the result of the Scotch proceedings should have been determined); Jones v. Geddes, 1 Ph. 724; Venning v. Lloyd, 1 D. F.

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& J. 193; Liverpool, &c. Co. v. Hunter, 4 Eq. 68; S. C., 3 Ch. 479; Re Maudslay, Sons & Field, (1900) 1 Ch. 602; and pending the foreign litigation the English action may be stayed: Transatlantic Co. v. Pietroni, Joh. 604; or direction of accounts in a creditor's admon action postponed with leave to the representative to take proceedings in a foreign Court to ascertain the amount due: Batthyany v. Walford, 36 Ch. D. 269, C. A.; or the Plt in the English proceedings put to elect in which Court he will proceed: Pieters v. Thompson, G. Coop. 294; but in order that the Plt may be put to election, the Deft must show a case of actual vexation, and that there is no necessity for harassing him by a double litigation: Peruvian Guano Co. v. Bockwoldt, 23 Ch. D. 225, C. A.; McHenry v. Lewis, 22 Ch. D. 397, C. A.; and à fortiori, the Plt applying as against the Deft, see Hyman v. Helm, 24 Ch. D. 531, 340, C. A.; see also The Mali Ivo, L. R. 2 A. & E. 356, that if it is established that there is a lis alibi pendens before a (foreign) Court which can afford a complete remedy, whether the proceedings are in rem or in personam, the proceedings in the English tribunal will be suspended, or the parties put to their election; and a Plt who has commenced actions in a foreign (Irish) and in the English Admiralty Court will not be allowed to proceed with the English until he has actually abandoned the foreign action: The Catterina Chiazzare, 1 P. D. 368; The Delta, 1 P. D. 393; and where in a foreign action in rem against a ship, the ship is released on bail given or on a guarantee inter partes, an arrest of the ship in an action by the same Plts in this country is contrary to good faith, and such action may be stayed: The Christiansborg, 10 P. D. 141, C. A.

A plea of judgment recovered in an action in a foreign (consular) Court, and payment by the Deft of the amount, is a bar to an action for the same debt in this country: Barber v. Lamb, 8 C. B. N. S. 95.

On the other hand, the mere pendency of proceedings between the parties for the same cause of action in a foreign Court, where the remedies and forms of procedure are different, is not, where there are substantial reasons for bringing actions in each country, a ground for putting Plt to his election whether he will proceed with the English or the foreign action, or for staying proceedings here: Peruvian Guano Co. v. Bockwoldt, 23 Ch. D. 225, C. A.; Hyman v. Helm, 24 Ch. D. 531, C. A.; M'Henry v. Lewis, 22 Ch. D. 397, C. A.; 21 Ch. D. 202; The Christiansborg, 10 P. D. 141, 148, 153, C. A.; and see Wilson v. Ferrand, 13 Eq. 362; Cox v. Mitchell, 7 C. B. N. S. 55.

Where, as in the case of a colonial Court, an appeal lies to this country, the Court of Chancery declined to suspend the operation of the colonial decree pending the appeal: Henderson v. H., 3 Ha. 100. But semble that relief would be granted if the proceedings sought to be restrained were in a foreign Court from which there was no appeal to this country: S. C., 3 Ha. 118.

LEX FORI AND LEX LOCI.

On the principle that locus regit actum, the lex fori applies to the form of remedy and the order of judicial proceedings, not to the substance of the proceeding, which is governed by the lex loci: see Cope v. Doherty, 4 K. & J. 367; Smith v. Weguelin, 8 Eq. 198; Re Marseilles Ry. Co., Smallpage's case, 30 Ch. D. 598; Lloyd v. Guibert, L. R. 1 Q. B. 115; and cases cited in notes to Mostyn v. Fabrigas, 1 Sm. L. C. 658; Jacobs v. Crédit Lyonnais, 12 Q. B. D. 589, C. A.; and see Hamlyn & Co. v. Talisker Distillery, (1894) A. C. 202; South African Breweries, Ld., v. King, (1900) 1 Ch. 273, C. A.; (1899) 2 Ch. 173; Royal Exchange Ass. Corp. v. Vega, 70 L. J. K. B. 874; but the Court will look at all the circumstances to ascertain by the law of which country the parties intended to be bound, and will enforce the contract accordingly, unless contra bonos mores, or forbidden by positive law: Re Missouri Steamship Co., 24 Ch. D. 321, C. A.; Rousillon v. R., 14 Ch. D. 351; and see Ashbury v. Ellis, (1893) A. C. 339, 344.

That the English Courts will not recognize a state of disability unknown to our law, see Worms v. De Valder, 49 L. J. Ch. 261.

A foreigner resident abroad cannot sue another foreigner in this country in respect of a contract relating to foreign property: Matthaei v. Galitzin, 18 Eq. 340: and it is a valid plea to the jurisdiction that the contract in respect of which the suit was brought was for the sale of land in Ireland,

and entered into in France between Plt, who resided in France, and Deft, who resided in Ireland: Blake v. B., 18 W. R. 944.

But these cases must be taken subject to the rule that where a person against whom relief is sought is within the jurisdiction, Courts of Equity acting in personam could make a decree respecting property situated out of the jurisdiction: see Penn v. L. Baltimore, 2 L. C. Eq. 923, 939; Paget v. Ede, 18 Eq. 118, and cases there cited.

And foreclosure has been decreed of an English mortgage of foreign land, the foreclosure being treated as merely an extinction of the right to redeem: Toller v. Carteret, 2 Vern. 494; Puget v. Ede, 18 Eq. 118; Colyer v. Finch, 5 H. L. C. 915; but there is no jurisdiction to decide a dispute as to title depending on foreign law as to immoveables, although all the parties are resident here: Re Hawthorne, Graham v. Massey, 23 Ch. D. 743; or to entertain an action for damages in respect of trespass to land situated in a foreign Country: Companhia de Moçambique v. British South Africa Co., (1893) A. C. 602, H. L. (reversing C. A. (1892), 2 Q. B. 358, and restoring Div. Court, (1892), 2 Q. B. 358).

JUDGMENT OF FOREIGN TRIBUNAL.

The judgments and procedure of foreign tribunals will be recognized in this country: Wright v. Simpson, 6 Ves. 714; Story, Confl. Laws, 331-337; Rousillon v. R., 14 Ch. D. 351 (where the principles are considered); and the final judgment or decree of a foreign Court of competent jurisdiction will be acted upon, notwithstanding irregularity of procedure, provided the proceedings do not offend against English views of substantial justice: Pemberton v. Hughes, (1899) 1 Ch. 781, C. A. (foreign decree in undefended divorce proceedings); but if there is error apparent on the face of the foreign judgment, by the adoption of a course of procedure inconsistent with natural justice, or by disregard of the lex loci contractús, it is examinable here, and may be disregarded: Simpson v. Fogo, 1 J. & H. 18; and this principle will, it appears, be also applied to a foreign judgment in rem: S. C., 1 H. & M. 195; and fraud of the Plt is a good defence, though not capable of proof without re-trying the case: Vadala v. Lawes, 25 Q. B. D. 310, C. A.; Abouloff v. Oppenheimer, 10 Q. B. D. 295, C. A.

And for the limits and extent of this jurisdiction, see Liverpool, &c. Co. v. Hunter, 4 Eq. 62; 3 Ch. 479; Re Trufort, Trafford v. Blanc, 36 Ch. D. 600; Re Maudslay, Sons & Field, (1900) 1 Ch. 602.

An order of a foreign Court will not be enforced by the Courts of this country unless it is final and conclusive: Nouvion v. Freeman, 15 App. Ca. 1 ; 37 Ch. D. 245, C. A.; Paul v. Roy, 15 Beav. 433; and see Norris v. Chambres, 29 Beav. 246; 1 D. F. & J. 881.

SECTION XXII.-DISCHARGING, CONTINUING, AND GRANTING, OR MAKING PERPETUAL, INJUNCTIONS.

1. Injunction discharged or continued on Motion.

UPON motion &c. by counsel for the Deft [If Plt appears, and upon hearing counsel for the Plt], and upon reading the order dated &c. [Enter affidavits and answers, if any, and if Plt does not appear, an affidavit of &c., filed &c., of service of notice of this motion on the Plt], This Court doth order that so much of the said order dated &c. as restrains &c., be discharged [or be continued until judgment in this action, or until further order].

For form of notice of motion, see D. C. F. 835.

2. Continuing Interim Order on Terms.

day of

WHEREAS by an order dated &c. [Recite interim order]. Now upon motion &c. made unto this Court on the for an injunc tion, and upon hearing &c., and reading &c., and the Defts by their counsel undertaking not to do anything contrary to the terms of the said notice of motion for an injunction in the meantime, and the Plt continuing his undertaking as to damages contained in the said order dated &c., It was ordered that the said motion should stand over till this day; And upon motion for an injunction this day made unto this Court by counsel for the Plt, and upon hearing counsel for the Defts, and upon reading &c., and the Plt continuing his undertaking contained in the said order,―This Court doth order that the said order, dated &c., be continued until judgment in this action.-See Crossman v. Bristol and S. W. Ry., V.-C. W., 23 July, 1863, A. 1693.

3. Injunction made perpetual as to Copyright.

LET the injunction against the Defts, their servants, agents, or workmen, printing, publishing, or vending a book, comedy, or farce, called &c., or any part thereof, be made perpetual; And the Plt (by his counsel) waiving the account prayed by the statement of claim, this Court doth not think fit to direct any account.-Defts to pay Plt his costs of action.

4. Perpetual Injunction as to specific Acts complained of, on Submission of Defts, without Prejudice to future Rights.

"THE Defts submitting &c., without prejudice to the right or position of the Plts or Defts respectively as regards the application to Parliament now pending on behalf of the Defts, Let the Defts &c. be perpetually restrained from executing any works upon the foreshore &c., or any part thereof, which by the (bill) it is alleged the Defts have executed or threatened to execute; And Let the Defts forthwith pull down and remove all works executed by them upon the foreshore &c., or any part thereof as aforesaid."-Direction for taxation and payment by the Defts of the costs of suit.-A. G. v. Boyle, V.-C. W., 22 Jan. 1864, A. 313; 10 Jur. N. S. 309, altered to suit Jackson v. Normanby Brick Co., (1899) 1 Ch. 438, C. A. [Form 10, p. 565].

5. Judgment establishing Right to Oyster Fishery and quieting in Possession, with Perpetual Injunction.

UPON motion, proof of title, and affidavit of service on the Defts; Declare that the Plt and his assigns, and every other the person or persons claiming or to claim under or by virtue of the will of &c., is and are entitled to the exclusive right to use the piece or parcel of