Dillon v.

Ch. D. 614; Cotton, Lindley and Lopes, reversing North. Alvares and Cox v. Mitchell were commented on by the court of appeal in McHenry v. Lewis, where it was laid down that the vexatious character of double litigation will be more easily established when the other action is in Scotland or Ireland, and probably also where it is in a British dependency, than where it is in a country politically foreign. But in Cohen v. Rothfield, [1919] 1 K. B. 410, C. A., Scrutton and Eve, reversing Shearman, the court refused to restrain a plaintiff in England from proceeding with an action against a defendant who had already instituted proceedings against him in Scotland, not being satisfied that the continuous prosecution of the action was oppressive or vexatious. Scrutton, L.J., said, at p. 415: "The same rule of procedure applies, whether the action to be stayed is in another court in the King's dominions or in a foreign country." And in Heilmann v. Falkenstein, [1917] 33 T. L. R. 383, Astbury, the court granted an injunction to the plaintiff in England to restrain an American defendant from taking proceedings in America concerning English trusts till the trial of the English action. The distinction between parts of the British Empire and countries politically foreign on this head does not appear therefore to be maintainable.

As to the defendant in foreign proceedings commencing proceedings in England having an intimate connection with their subject, see Transatlantic Co. v. Pietroni (1860), Johns. 604, Wood; Law v. Garrett (1878), 8 Ch. D. 26, Bacon affirmed by Baggallay, James and Thesiger; The Manar, [1903] P. 95, Bucknill. The second case shows that an agreement to refer disputes to a foreign court is an agreement to refer to arbitration within the meaning of the Common Law Procedure Act, 1854, s. 11. And this was followed in effect in Kirchner & Co. v. Gruban, [1909] 1 Ch. 413, Eve, and in The Cap Blanco, [1913] P. 130, Evans, P., where proceedings in England were stayed because of a clause in a bill of lading that any dispute should be decided in Hamburg according to German law; and in Johannesburg Municipal Council v. Steward, H. L., [1909] W. N. 161, where proceedings were stayed in Scotland concerning a contract to be performed in South Africa which was made in Scotland but to be determined according to English law, in order that the proceedings in England might continue undisturbed. See, too, Pena Copper Mines, Lim. v. Rio Tinto, Lim., [1912] 105 L. T. 846, C. A., Cozens-Hardy, Moulton, Farwell. Defendant in a proceeding in rem in a British dependency having commenced an action in personam in England, his proceedings were stayed as a matter of discretion: The Peshawur (1883), 8 P. D. 32, Phillimore.

If there was only lis pendens abroad at the date of the commencement of the English action, a judgment rendered abroad during the progress of the latter will not be deemed to constitute res judicata; the English court should have been applied to, to compel an election between the two proceedings: The Delta, The Erminia Foscolo (1876), 1 P. D. 393, Phillimore.

And it would seem that lis pendens in personam abroad is not a reason for so much as putting the plaintiff in rem in England to his election: The Bold Buccleugh (1851), 7 Mo. P. C. 267, Jervis.

As to proceedings in England for the preservation of property pending litigation abroad, see Cruikshank v. Robarts (1821), 6 Mad. 104, Leach, and Transatlantic Co. v. Pietroni, as above.

In The Mannheim, [1897] P. 13, Gorell Barnes, a guarantee given

W.I.L.

26

abroad for payment of what might be adjudged by a competent court was held not to be equivalent to the commencement of proceedings abroad.

As to the effect of lis pendens abroad in case of an application for leave to serve a writ out of the jurisdiction, see The Hagen, [1908] P. 189, Alverstone, Farwell and Kennedy, overruling Bargrave Deane.

§ 339. When the English proceedings are the first commenced, “there can be no doubt that the general rule precludes parties from proceeding in any other court for the same purpose for which they are proceeding in this court, whether the other proceedings are taken in this or in any other country; and if the party conceives there are any circumstances in his case which constitute an exception to the rule, I think that his proper course is not to take proceedings in another court of his own authority, but to apply to this court for permission to take such proceedings" Cottenham in Wedderburn v. Wedderburn (1840), 4 M. & Cr. 596. The principles on which it will be determined whether the double litigation will be allowed are the same as in the case of § 338: in Peruvian Guano Company v. Bockwoldt, there quoted, the English action was the first commenced. See Armstrong v. Armstrong, [1892] P. 98, Jeune.

:

In the following cases the second litigation was commenced abroad by the defendant in England, and the court weighed the circumstances in its discretion.

Hyman v. Helm (1883), 24 Ch. D. 531; Brett, Cotton and Bowen, affirming Chitty; where the defendant in England took proceedings abroad, and it was held that a special case of vexation must be made out in order to restrain him: Dawkins v. Simonetti, 50 L. J. P. 30, Jessel, Cotton and Lush affirming Hannen: The Jasep, [1896] 12 T. L. R. 375, Jeune : Vardopulo v. Vardopulo, [1909] 25 T. L. R. 518, Cozens-Hardy, Buckley, Kennedy, reversing Bigham; where a husband who had acquired a foreign. domicile was not restrained from taking proceedings for divorce in the courts of his domicile, after proceedings for judicial separation had been commenced by his wife in England.

A creditor who had come in before the master after decree in an administration suit was restrained from proceeding with an action afterwards commenced by him in Scotland for the same debt: Graham v. Maxwell (1849), 1 M. & G. 71, Cottenham affirming Shadwell. See Heilmann v. Falkenstein, u. s., p. 401).

A second debenture holders' action commenced in the Lancaster Palatine Court after notice of similar proceedings already commenced in the High Court was restrained: Re Connolly Bros., Lim., Wood v. Connolly Bros., Lim., [1911] 1 Ch. 731, Parker, Cozens-Hardy, Moulton, Buckley.

§ 340. The authority of a foreign judgment in rem on the property in a movable has been considered in § 149, and that of a foreign sentence of divorce in §§ 50 and 51. The conditions. under which authority will be allowed in England to a foreign

judgment on the validity of a marriage have not been thoroughly discussed. That such a judgment, by a court "having proper jurisdiction," would be conclusive, was said by Hardwicke in Roach v. Gartan (1748), 1 Ves. Sen. 159; but the opportunity for saying what was proper jurisdiction did not arise. Finch (Nottingham)'s remarks in Cottington's Case (1678), 2 Sw. 326, are not less vague, and the foreign sentence which gave occasion to them was one of divorce. Simpson in Scrimshire v. Scrimshire (1752), laid great stress on the forum contractus celebrati: 2 Hagg. Cons. 408, 419. And Scott (Stowell) in Sinclair v. Sinclair (1798), 1 Hagg. Cons. 297, did the same, not however like Simpson on the ground of the supposed competence of the forum, but because "the validity of marriage must depend in a great degree on the local regulations of the country where it is celebrated," which the courts of that country can best appreciate; and he added that he was "not prepared to say that a judgment of a third country, on the validity of a marriage not within its territories, nor had between subjects of that country the italics are mine-" would be universally binding." Keyes v. Keyes, [1921] P. 204, Duke, P., where the English court refused to recognize the jurisdiction of the Indian courts to decree dissolution of marriage between parties not domiciled in India, though the marriage was celebrated and the parties were resident there.

Cf.

CHAPTER XVIII.

PROCEDURE.

§ 341. THE procedure of the English court is governed exclusively by English law.

That procedure is governed by the lex fori is a matter of private international law that has never been questioned in theory, though doubts have occurred on some of its applications. Aut quæris, says Bartolus, de his quæ pertinent ad litis ordinationem, et inspicitur locus judicii. It would be impossible to import into any court a new system of procedure for every case in which foreign things or acts might be involved, since there would exist neither the machinery nor the minute and curious learning necessary for it. Nor is there any reason why it should be desired to do so, for the principle of enforcing foreign rights, be it comity or justice, can be carried no higher than to place them on a level with domestic rights, entitling the party to the same remedies and subject to the rules incident to those remedies. It may be in some cases doubtful whether a particular rule of the lex fori is a rule of substantive law or a rule of procedure. This question would naturally be determined according to the lex fori.

The 4th section of the Statute of Frauds which declares that no action shall be brought in respect of certain agreements is a rule of procedure: Leroux v. Brown (1852), 12 C. B. 801. The same character has been attributed to the Gaming Acts of 1845 and 1892; Moulis v. Owen, [1907] 1 K. B. 746, at p. 753, Collins. But the Moneylenders Act, 1900, which provides that "where proceedings are taken in any court" certain rules are to apply, is not a rule of procedure: Schrichand & Co. v. Lacon, [1906] 22 T. L. R. 245, Ridley.

It remains to mention certain applications of the maxim, and to guard against certain errors which might be made in applying it.

§ 342. The lex fori determines in what name an action must be brought, so far as that question can be separated from the question of the title sued on.

See § 135, and the cases on the name in which a foreign republic must sue, under § 192. See also Wolff v. Oxholm (1817), 6 M. & S. 92, at p. 99; judgment of court delivered by Ellenborough.

§ 343. The term of prescription for personal actions is held in England to depend on the lex fori, but this rule is not universally received, and is questionable in principle: see §§ 238 and 239. The term of prescription for immovable property, however, depends on the lex situs: § 171. And see pp. 188, 189, as to the prescription of corporeal chattels.

§ 344. The lex fori determines whether any particular kind of claim, as that on a bill of exchange, is entitled to the benefit of a special procedure.

§ 345. The lex fori determines whether any personal constraint can be used, as by arrest or the writ ne exeat regno.

It was at one time supposed that there ought to be no arrest of the person on a contract the proper law of which gave no such procedure. Talleyrand v. Boulanger (1797), 3 Ves. 447, Loughborough: Melan v. Fitzjames (1797), 1 Bos. & Pul. 138; Eyre and Rooke, against Heath who laid down the true principles.

The true view was maintained by Ellenborough in Imlay v. Ellefsen (1802), 2 East 455; in De la Vega v. Vianna (1830), 1 B. & Ad. 284, Tenterden and (?); in Brettillot v. Sandos (1837), 4 Scott, 201, Tindal and Vaughan; and by Chelmsford in Liverpool Marine Credit Co. v. Hunter (1868), L. R. 3 Ch. Ap. 486.

§ 346. The lex fori determines whether a set-off can be pleaded, this being distinct from any defence to the claim itself that may be available.

Allen v. Kemble (1848), 6 Mo. P. C. 314, Pemberton Leigh; explained by Cockburn in Rouquette v. Overmann (1875), L. R. 10 Q. B. 541: Willes in Meyer v. Dresser (1864), 16 C. B. (N. S.) 646, at p. 655.

But where the law of a bankruptcy lays down a rule of set-off as between the trustees, or by whatever other name the persons administering for the creditors may be called, and a debtor to the estate who is also a creditor of the bankrupt, the former are bound by that rule wherever they sue, because they take or represent the debtor's estate only subject to it.

Macfarlane v. Norris (1862), 2 B. & S. 783, Cockburn, Wightman, Blackburn, Crompton.

§ 347. When, by the proper law of a contract made with an unincorporated firm, each partner in that firm may be made liable on it in solidum by some mode of procedure or other, the lex fori determines whether any partner may be sued individually before the others have been sued.

Bullock v. Caird (1875), L. R. 10 Q. B. 276, Blackburn, Mellor, Field. The principle was applied in the administration of a deceased partner's estate Re Doetsch, Matheson v. Ludwig, [1896] 2 Ch. 836, Romer.