CHAPTER XVII.

FOREIGN JUDGMENTS AND PROCEEDINGS.

§ 292. THE judgment of a competent foreign court, by which a party is personally condemned to pay a certain sum, may be sued on in England as a new cause of action in the nature of those called simple contracts. Formerly there was a fiction that the defendant had promised to pay the amount, for which promise the judgment was held to be a sufficient consideration; and he was not allowed to dispute that fiction, if all the circumstances concurred which were necessary to make the judgment a sufficient consideration.

Hence the action might be either debt or indebitatus assumpsit: Walker v. Witter, 1778, 1 Doug. 1; Mansfield, Willes, Ashhurst, Buller.

But now the writ may be simply indorsed thus: "The plaintiff's claim is £1,000, upon a judgment of the Court in the empire

of Russia." Supreme Court of Judicature Act 1875.

§ 293. Or without being made the subject of a personal action, the simple contract debt created by a foreign judgment may be enforced against assets in England in the same way as an English debt.

Dupleix v. De Roven, 1706, 2 Vern. 540, Cowper.

§ 294. And in the admiralty division of the high court, as formerly in the court of admiralty, effect can be given in rem to the sentence in rem of a foreign court having admiralty jurisdiction or what is equivalent thereto. Also, if the writ is indorsed as on a personal sentence, still effect in rem may be given if it appears that the proceedings abroad were on a maritime lien, naturally leading to a sentence in rem.

"'Tis a ruled case that one judge must not refuse, upon letters of request, to execute the sentence of another foreign judge, when the persons or goods sentenced against are within his jurisdiction; and if he do, his superior must compel him to it; else it is a sufficient ground for reprizals against the territory" Sir Leoline Jenkins, 1667, in Wynne's Life of Jenkins, vol. 2, p. 762. In arguing Jurado v. Gregory, 1670, 1 Ventris 32, king's bench, Finch, afterwards lord Nottingham, said with the approval of the court "that where sentence is obtained in a foreign admiralty one may libel for execution thereof here, because all the courts of admiralty in Europe are governed by the civil law, and are to be assistant one to another, though the matter were not originally determinable in our court of admiralty." Sir R. Phillimore, sitting in the admiralty division of the high court, said: "I am of opinion that it is the duty of this court to act as auxiliary to the Portuguese court, and to complete the execution of justice which, owing to the departure of the ship, was necessarily left unfinished by that court. In other words, it is my duty to place the English court in the position of the Portuguese court after its sentence has been given against the defendants." The City of Mecca, 1879, L. R., 5 P. D. 28; at p. 32, after quoting Jenkins and Finch as above, and other old authorities. The Portuguese court was in this case a tribunal of commerce.

In most continental countries foreign judgments are not treated as new causes of action, but are admitted to execution, or declared executory as it is called, after a special proceeding for that purpose. It would seem from the language of Jenkins and Finch that in the ancient forms of the English court of admiralty the mode of proceeding on a foreign sentence was somewhat similar; and what has been said above, p. 131, as to the ancient cooperation of the courts of ditferent countries in bankruptcies, may be compared. The English courts of common law and equity never joined in any such system of express cooperation, but their doctrine that foreign judgments created new debts or causes of action led to results to a large extent similar, and like questions arose under each system as to the conditions of the validity of foreign judgments, and as to the right or duty of examining them before directly or indirectly enforcing them.

§ 295. The foreign judgment in personam which is to be sued on or otherwise enforced as above shown must be such as lays on the defendant a present duty to pay. If in its own country it cannot be executed pending the time allowed for appealing, or pending an appeal, it cannot be enforced in England during the interval; but if there is no such stay of execution in its own country the pendency of an appeal will not be a bar to an action in England, though it may

afford ground for the equitable interposition of the English court to prevent the possible abuse of its process, and on proper terms to stay execution in the action.

No action, where the foreign judgment could be executed in its own country, pending the appeal, only subject to security being given for repayment in case of reversal: Patrick v. Shedden, 1853, 2 E. & B. 14; Campbell, Wightman, Crompton. Where nothing was shown as to effect of appeal in country of judgment, appeal no bar, but might afford ground, &c.: Scott v. Pilkington, 1862, 2 B. & S. 11; Cockburn, Crompton, Blackburn. See also Alivon v. Furnival, 1834, I C. M. & R. 297, Parke and (?).

§ 296. Also the duty to pay laid on the defendant must be a duty to pay in settlement of the cause of action. A foreign order to pay a sum of money into court, to be disposed of according to a judgment thereafter to be given, cannot be enforced in England.

Paul v. Roy, 1852, 15 Beav. 433, Romilly.

§ 297. And a foreign collateral order to pay the costs of any proceeding cannot be enforced in England.

Sheehy v. Professional Life Assurance Company, 1857, 2 C. B., N. S. 211; Cresswell, Cockburn, Crowder.

§ 298. Although a foreign judgment which awards costs while disposing of the cause of action may be enforced in England for the

costs.

Russell v. Smyth, 1842, 9 M. & W. 810; Abinger, Parke, Alderson, Rolfe; where the costs were given in a foreign suit for divorce.

§ 299. The foreign judgment must be for a sum certain.

And therefore, if any costs are to be deducted from the sum awarded by the judgment, they must have been taxed in the foreign court before it can be sued on: Sadler v. Robins, 1808, I Camp. 253; Ellenborough, Grose, Le Blanc, Bayley. But since the original cause of action is not deemed in England to emerge in a foreign judgment, if the latter be for a sum certain with liberty to the defendant to establish a counterclaim, it will none the less be evidence in England in favour of the plaintiff, though the defendant may have ground to apply for a stay of proceedings in order that he may establish his counterclaim abroad according to the liberty reserved: Hall v. Odber, 1809, 11 East 118; same four judges.

§ 300. Coming now to the question of competence reserved in § 292, a court within the jurisdiction of which the defendant has expressly elected a domicile, with a view to legal proceedings relating to certain matters, is competent for such proceedings.

Vallée v. Dumergue, 1849, 4 Exch. 290; Alderson, Pollock, Rolfe, Platt. It is of course only a particular case of this, if the defendant has become party to an instrument by which his domicile, for the purpose of the obligations thereby created, is declared to be at a certain spot, in default of his electing another : Copin v. Adamson, 1874, L. R., 9 Exch. 345, Kelly, Amphlett & Pigott; 1875, L. R., I Ex. D. 17, Cairns, Blackburn & Brett.

§ 301. But where by the proper law of a contract, lex loci contractus or solutionis as the case may be, a party to the contract is deemed to elect a certain domicile for legal proceedings relating to it, it is doubtful whether the court of that domicile, as such, is competent.

In Meeus v. Thellusson, 1853, 8 Exch. 638; Pollock, Parke, Martin; leave to amend a replication was granted, though the amendment would have been useless except on the footing of the affirmative of this question, which however had not been argued. The question arose again in Copin v. Adamson, quoted under the last §, but became unimportant by reason of the decision on the point there mentioned. Kelly was for the affirmative, in the particular case of the contract made by taking shares in a company, and Cairns, though the question was not argued on the appeal, seems to have inclined to the same opinion; but Amphlett and Pigott maintained the negative. The general case appears to me not to be distinguishable from that of § 303, for if the lex contractus does not otherwise carry with it the forum contractus, it can scarcely do so the more because it appoints a certain place, as a domicile deemed to have been elected, at which notices with a view to proceedings in the forum contractus may be served. And the particular case does not appear to me to be distinguishable from the general one.

§ 302. It may probably be considered as now settled that the forum rei is admitted in England as a sufficient ground of competence for a foreign judgment which it is sought to enforce, whether that forum be grounded on political nationality; on domicile in the sense, admitting but of one domicile, in which it must be taken when used as the criterion of personal law; or on domicile in the looser sense in which it may be taken in those countries which are familiar with it as the ground of jurisdiction. "If the defendants had been at the time of the judgment subjects of the country whose judg

ment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the country, so as to have the benefit of its laws protecting them, or as it is sometimes expressed owing temporary allegiance to that country, we think that its laws would have bound them." Blackburn, delivering the judgment of himself, Mellor, Lush and Hannen, in Schibsby v. Westenholz, 1870, L. R., 6 Q. B. 161.

This doctrine long remained obscure, as might be expected from the fact that the competence of the English courts themselves, with regard to personal obligations, has never been based either on allegiance or on domicile. In the older cases, where the foreign judgment had been pronounced against an absent defendant, the endeavour was to determine in each instance whether it was agreeable to natural justice that the defendant should be held to be bound.

In Buchanan v. Rucker, 1807, 1 Camp. 63, Ellenborough, and 1808, 9 East 192, Ellenborough and (?), constructive notice was held not to bind one who had never been "present" in the country; and it may be inferred from some of the expressions used that what was intended was that it should not bind one who had never been "resident" in it. In Cavan v. Stewart, 1816, Star. 525, Ellenborough said: "it is perfectly clear on every principle of justice that you must either prove that the party was summoned, or at least that he was once on the island. In the case before lord Mansfield it was in proof that the person leaving the island left an attorney in his place to act for him." Here again it is not certain that "was once on the island" should not be read as resided once."

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In Becquet v. MacCarthy, 1831, 2 B. & Ad. 951; Tenterden, Parke, and (?) ; the foreign law required the process to be served on a public officer, but made no provision for his communicating with the absent party. This was held sufficient, because "it must be presumed that" the officer "would do whatever was necessary in the discharge of that public duty." Brougham said in Don v Lippmann, 1837, 5 C. & F. 21: “Becquet v. MacCarthy has been supposed to go to the verge of the law, but the defendant in that case held a public office in the very colony in which he was originally sued."

In Obicini v. Bligh, 1832, 8 Bi. 335, where the admiralty court at Malta had given damages and costs against the captor of a ship brought in there, but which did not seem to have been submitted by the captor for adjudication, the proof was defective, but Tindal and Gaselee appear to have considered that it would have been unnecessary to prove actual notice to the captor, because it was his duty to take the cause into the court.

In Douglas v. Forrest, 1828, 4 Bing. 686, Best and (?), it would seem to have been held that the domicile of origin is a competent forum, when the defendant retains property there after establishing a domicile elsewhere, perhaps also