living out of the jurisdiction, why make it a condition to the substituted service by the post that there should be an agent who can *236] properly be served within the jurisdiction? What authority has the Court of Queen's Bench in Ireland to direct a service upon an agent in London?] Such authority is probably conferred by the 8th section of the 43 G. 3, c. 53, the words of which are very large, and which is not repealed. [CRESSWELL, J.-When the case was before the court on the former occasion, my Brother Maule suggested that this amounted to mere irregularity at the most. The special verdict does not find whether the defendants knew of the issuing of the writ of summons or not.] It is found that they moved to set aside the appearance entered under it. [CRESSWELL, J.-It may have come to their knowledge after the judgment was signed. There are numerous cases to show that a foreign judgment will not be enforced in our courts, where the party has not been served with process,-proceeding upon the notion that it is contrary to natural justice that a man should be condemned without having had an opportunity of being heard.] It is difficult to conceive that there could be anything contrary to natural justice in a judgment founded upon a service such as that shown to have been made upon Ramsay. If there were any irregularity in the course pursued in the Irish court, that is not a matter which this court can inquire into.

Then, as to the second count, which seeks to recover the costs awarded to the plaintiff on the dismissal of the motion to set aside the proceedings in the Court of Queen's Bench,-it will be said that no action lies for those costs, the order being interlocutory. It is true, that, in general, an action will not lie in our courts to enforce a decree or order of a foreign court which is not in its nature final: Patrick v. Sheddon, 2 Ellis & B. 14 (E. C. L. R. vol. 75): neither will an action lie upon an interlocutory order of one of our own courts, because there is a more appropriate mode of enforcing it, viz. by attachment, or by *execution. But, in Russell v. Smyth, 9 M. & W. 810,† it was *237] held that an action of assumpsit or debt might be maintained against a defendant resident in this country, for costs awarded against him, after appearance, by a decreet of the Court of Session in Scotland in a suit for a divorce. Lord Abinger there says: "The action may be sustained on the ground of morality and justice. The maxim of the English law, is, to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice. Foreign judgments are enforced in these courts, because the parties liable are bound in duty to satisfy them. The principles relating to this subject are well laid down by Lord Mansfield in his judgment in Robinson v. Bland, 2 Burr. 1077. Mr. Watson urges that no action for costs has ever been brought on a foreign judgment. I cannot quite assent to that; but, supposing it were so, I must own I should be

disposed to set an example of such an action. Suppose litigation arises in France relating to real property, and costs are given against a party who comes to this country: if the English law gives no remedy, the debt would be lost. In such a case, I should be disposed to say that an action for those costs may be maintained in this country."

Bovill, Q. C. (with whom was Byles, Serjt.), contrà.(a)*—The

43 G. 3, c. 53, has no bearing upon this case. The 13 & 14 [*238

Vict. c. 18, relates to a new sort of process, and an entirely new mode of procedure: and, where it was intended to save the provisions of former acts, it is done by express enactment as in s. 4. The former statute is therefore virtually repealed, and is altogether inapplicable. All the provisions of the recent act contemplate personal service of the process,—as in s. 2, which provides that the writ "may be served personally in any place in which the defendant or defendants may be found, within the jurisdiction of the court," and s. 7, which enables the plaintiff to enter an appearance for the defendant in default of appearance on personal service. Then comes section 8, which provides, amongst other things, for the service of process upon incorporated bodies having a known or responsible officer or agent," by personal service on such officer or agent, and notice in the Dublin Gazette and in a local newspaper. The 9th section applies to cases where the defendant cannot be personally served under s. 7, but may be properly served through or upon some agent or representative within the jurisdiction. It has no application at all to section 8: if it had applied to section 8, it would have altogether repealed it. The 8th section precisely applies to this case, assuming Ramsay to have been the agent of the company, which is sufficiently found by the special verdict. There is an incorporated company, and there is an agent residing within the jurisdiction through whom the service can be properly effected, and he has been personally served. The statute (s. 8) requires notice in the Dublin Gazette and in a local newspaper. This the special verdict finds has not been given. The 9th section contemplates a case where there can be personal service on the defendant, and not to a case where somebody else is to be served for him: it contemplates the case of a natural person who may be served, and *who may reside. [CROWDER, [*239 J. Suppose there had been no agent in Dublin?] Still, it is submitted, the section would not apply: if there be no agent within the jurisdiction, there can be no reason why a foreign corporation should be sued there. This subject is very elaborately discussed in

(a) The points of law intended to be argued by the defendants, are, "that the surrejoinder neither traverses nor confesses and avoids the rejoinder; that, the defendants being a corporation aggregate, the writ of summons could not properly have been served on an agent until the 8th section of the statute requiring the service to be on the mayor or other head officer, townclerk, clerk, treasurer, or secretary; or at least it should have been alleged that the agent was a known and responsible agent of the defendants, or an agent of their real and personal estate, or an agent within the true intent and meaning of the statute."

N. S., VOL. II.—12

Story's Conflict of Laws. In § 539, that learned jurist thus lays down the general rule:- Considered in an international point of view, jurisdiction, to be rightfully exercised, must be founded either upon the person being within the territory, or upon the thing being within the territory; for, otherwise, there can be no sovereignty exerted, upon the known maxim, Extra territorium jus dicenti impune non paretur: Dig. Lib. 2, tit. 1, 1. 20. Boullenois (1 Boullenois, Pr. Gen. 1, 2, pp. 2, 3), puts this rule among his general principles. The laws of a sovereign rightfully extend over persons who are domiciled within his territory, and over their property which is there situate. Vattel (B. 2, Ch. 8, § 84), lays down the true doctrine in clear terms. The sovereignty (says he), united to domain, establishes the jurisdiction of the nation in its territories or the country which belongs to it. It is its province, or that of its sovereign, to exercise justice in all places under its jurisdiction, to take cognisance of the crimes committed, and the differences that arise in the country.' On the other hand, no sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals:" Picquet v. Swan, 5 Mason (American), 35, 42; Russell v. Smyth, 9 M. & W. 810.† Further, in § 556, he says: "Having stated these general principles in relation to jurisdiction (the result of which is, that no nation can rightfully claim to exercise it, except as to persons and property within its own domains), we are *next led to the consideration of the question *240] in what manner suits arising from foreign causes are to be instituted and proceedings to be had till the final judgment. Are they to be according to the law of the place where the parties or either of them live? Or, are they to be according to the modes of proceeding and forms of suit prescribed by the laws of the place where the suits are brought? Fortunately, here there is scarcely any ground left open for controversy either at the common law, or in the opinions of foreign jurists, or in the actual practice of nations. It is universally admitted and established that the forms of remedies, and the modes of proceeding, and the execution of judgments, are to be regulated solely and exclusively by the laws of the place where the action is instituted, or, as the civilians uniformly express it, according to the lex fori."(a) Again, in § 557, the learned commentator says: "The reasons for this doctrine are so obvious that they scarcely require any illustration. The business of the administration of justice by any nation, is, in a peculiar and emphatic sense, a part of its public right and duty. Each nation is at liberty to adopt such forms and such a course of proceeding as best comport with its convenience and interests, and the interests of its

(a) Citing 1 Burge Comm. 24, Fergusson v. Fyffe, 8 Clark & F. 121, General Steam Naviga tion Company v. Guillou, 11 M. & W. 877.†

own subjects, for whom its laws are particularly designed. The different kinds of remedies, and the modes of proceeding best adapted to enforce rights and guard against wrongs in any nation, must materially depend upon the structure of its own jurisprudence. What would be well adapted to the jurisprudence, either customary or positive, of one nation, for rights which it recognised, or for duties which it enforced, or for wrongs which it redressed, might be *wholly unfit for that of another nation, either as having gross defects, or steering [*241 wide of the appropriate remedial justice. A nation acknowledging the existence of peculiar rights and privileges, either personal or real, such as seignorial rights, or trusts in the realty, would naturally introduce correspondent remedies. While other nations, in which such rights and privileges and trusts did not exist, might well dispense with the formalities which they might require. The jurisprudence of one nation may be very refined and artificial, with a multitude of intricate and perplexed proceedings: that of another may be rude, uninformed, and harsh, consisting of an undigested mass of usages. It would be absolutely impracticable to apply the process and modes of proceeding of the one nation to the other. Besides, there would be an utter confusion in all judicial proceedings, by attempting to engraft upon the remedies of one country those of all other countries whose subjects should be parties or be interested therein. No tribunal on earth, however learned, could hope by any degree of diligence to master the laws and processes and remedies of all other nations, and the qualifications and limitations properly belonging thereto. A whole life might be passed in obtaining little more than a few unconnected elements; and litigation would thus become unnecessarily complicated, if not absolutely interminable. All that any nation can, therefore, be justly required to do, is, to open its own tribunals to foreigners in the same manner and to the same extent as they are open to its own subjects; and to give them the same redress as to rights and wrongs which it deems fit to acknowledge in its own municipal code for natives and residents." [COCKBURN, C. J.-Suppose a writ issued here against a person resident in Ireland, and service was effected upon an agent,would a judgment obtained thereon be valid?] Clearly not. [CRESSWELL, J.—The usual ground for *declining to give effect to a [*242 foreign judgment obtained against a party in his absence, is, that it is contrary to natural justice. What is there contrary to natural justice in saying that a party shall be bound by the judgment, where he has had notice of the proceeding, and might have appeared? COCKBURN, C. J.-What say you to the 19th section of the Common Law Procedure Act, 1852?(a)] The judgment might fix the party and

(a) “In any action against a person residing out of the jurisdiction of the said courts (the three superior courts), and not being a British subject, the like proceedings may be taken as against a British subject resident out of the jurisdiction [s. 18], save that, in lieu of the form of writ of

his property within the jurisdiction; but out of the country it would be unavailing. Story emphatically says (§ 539), "No sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions." [CRESSWELL, J.-The question is, what effect a foreign court will give to a judgment so obtained.] In Jeffreys v. Boosey, 4 House of Lords Cases, 815, 926, Parke, B., says: "It is clear that the legislature has no power over any persons except its own subjects, that is, persons natural born subjects or resident, or whilst they are within the limits of the kingdom. The legislature can impose no duties except on them; and when legislating for the benefit of persons, must primâ facie be considered to mean the benefit of those who owe obedience to our laws, and whose interests the legislature is under a correlative obligation to protect.' And Lord St. Leonard's says,-p. 980: "It is quite clear as an abstract proposition, that an act of parliament of this country having within its view a municipal operation, having, as in this particular case, a territorial operation, and being therefore limited to the kingdom, cannot be considered to provide for foreigners, except as both *statute and common law do provide for foreigners when they *243] become resident here, and owe at least a temporary allegiance to the sovereign, and thereby acquire rights just as other persons do; not because they are foreigners, but because, being here, they are here entitled, in so far as they do not break in upon certain rules, to the general benefit of the law for the protection of their property, in the same way as if they were natural born subjects." That is the general principle which will be found to pervade all the cases on the subject. Thus, in The Dundalk Railway Company v. Tapster, 1 Q. B. 667, 1 Gale & D. 657, a public local act, 1 Vict. c. xcvi., for making a railway in Ireland, provided that, if any proprietor of shares should refuse to pay a call, it should be lawful for the company to sue for it in any of the Queen's courts of record in Dublin, and gave a general form of declaration and it was held, that, the debt and the remedy being created by the statute, the company were bound to pursue the remedy pointed out by it, and could not bring an action for a call, and declare in the general form, in an English court. [COCKBURN, C. J.-The Court of Queen's Bench in Ireland clearly had jurisdiction over the subject-matter, inasmuch as the company carried on business by means of an agent in Dublin. Your argument is, that there is an irregularity,

summons in the schedule A. to this act annexed, marked No. 2, the plaintiff shall issue a writ of summons according to the form contained in the said schedule A. marked No. 3, and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defendant therein mentioned, which notice shall be in the form contained in the said schedule also marked No. 3; and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and, by leave of the court or a judge, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon."