Foreign and Domestic Law

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to see if it is competent in fact to entertain the suit, and enforce its own decree. "Territorial jurisdiction," says Lord Selborne, "attaches (with special exceptions) upon all persons CAP. VIII. either permanently or temporarily resident within the territory Contractswhile they are within it; but it does not follow them after Jurisdiction. they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory; and in questions of status or succession governed by domicil, it may exist as to persons domiciled, or who when living were domiciled within the territory but no territorial legislation can give jurisdiction, which any foreign State ought to recognise, against foreigners who owe no allegiance or obedience to the Power which legislates." (a)

The element of the English Common Law, which as a matter of fact prevented these questions from ever arising in its administration, was the technical rule of venue, which divided Rules of all actions into two exhaustive classes, local and transitory, venue. Local actions were those connected in any way with the soil, which it was always necessary to bring in the country where the cause of action arose, and the distinction arose in the following way. By the old Common Law the jurors were to be summoned from the particular place or neighbourhood (vicinetum, visne) where the facts happened, it being then thought highly desirable that they should be cognisant of their own knowledge,(b) apart from the evidence, of the matters in dispute. It was therefore necessary, for the guidance of the sheriff in executing the writ of venire facias, that the pleadings should show what the place or neighbourhood was, (c) and the term "laying the venue was given to the required allegation. But in course of time the jury began to be summoned no longer as witnesses, but as judges, to receive the facts from the testimony of others judicially examined before them,(d) and the necessity of their being summoned from the vicinetum where the facts occurred-in other words, the necessity for that reason of the venue being truly laidceased. It was from this time that the distinction between local and transitory actions began; the former including all matters necessarily involving the idea of a certain place or part of the soil, the latter those which affected the person, or

(a) Sirdar Singh v. Rajah of Feridkote (1894), A. C. 670, 683.

(b) Co. Litt. by Harg. 125 a, n. (1).

PART III. the movables which follow the person, and which might thereACTS. fore have happened anywhere. With regard to local actions, CAP. VIII. it was held that if the venue alleged in the margin of the Contracts pleadings was untruly laid-i.e., if on trial the action Jurisdiction. appeared to be connected with the soil of some place outside the county of the venue as laid-the variance was fatal, and the plaintiff failed. If, on the other hand, the facts of the action were transitory-i.e., such as might have occurred anywhere the fact that the venue, as laid, was not the place where they were actually proved to have happened, was immaterial.(a) The consequence was that any contract, not directly connected with the soil, could be sued on in an English court without regard to the place where it arose or was to be performed, if the defendant could be only rendered amenable to the Court's process, and service could be effected upon him according to its regulations.

Effect of

Common Law
Procedure
Acts.

The former practice of the Common Law and Chancery Courts differed in several essential points. At common law personal service within the realm was necessary until 1852. The Common Law Procedure Act of that year permitted service abroad (except in Scotland or Ireland) in actions against both British subjects (s. 18) and foreigners (b) (s. 19), when there was a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction; and the Court or a judge, on being satisfied by affidavit of these facts, and that reasonable efforts were made to effect service of the writ, which had come to the defendant's knowledge, were empowered to dispense with service altogether.(c) It will be seen that the limitation confining this statutory power to cases in which there was a cause of action which arose within the jurisdiction, or in respect of a breach of a contract made within the jurisdiction, may be construed in two ways: first, as confining the statutory power in respect of actions on contract to cases where the contract was made within the jurisdiction; and secondly, as including cases where the contract was made abroad, but the breach took place in England—this second construction regarding the breach of a contract as a "cause of action" within the meaning of the first part of the limitation. Upon this question the Courts at Westminster at first

(a) Mostyn v. Fabrigas, 1 Sm. L. C. 607, and cases cited in note. So for torts to realty abroad, no action lay in England; secus, as to personal wrongs, Skinner v. East India Co., cited in Cowper, 167, 168.

(b) Foreigners resident in Scotland or Ireland might be served there, though British subjects were exempt: Day's C. L. P. Acts, p. 58, n.

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held divided views; the Queen's Bench adhering to the view that it was insufficient that the breach of a contract should take place within the jurisdiction, if the contract itself was CAP. VIII. made abroad,(a) while the Courts of Common Pleas and ContractsExchequer acted upon the opposite construction.(b) In con- Jurisdiction. sequence of these conflicting decisions a conference of the judges was ultimately held upon the subject, and the view taken by the Court of Common Pleas in Jackson v. Spittall was accepted as binding once for all:(c) so that according to this, the latest authority, a plaintiff was entitled under the Common Law Procedure Act, 1852, to serve the defendant abroad, if he could show that the contract was either made or broken within the jurisdiction.

The subject, however, is now regulated by Order XI. rr. 1–7, of the Rules made under the Judicature Acts, 1873, 1875, which is intended by the Legislature to be exhaustive, and to supersede the former practice.(d) By r. I service out of the jurisdiction may be ordered wherever (inter alia) "the action is founded on any breach or alleged breach within the jurisdiction of any contract, wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland." Under this rule the breach is the only

(a) Allhusen v. Malgarejo, L. R. 3 Q. B. 340; Cherry v. Thompson, L. R. 7 Q. B. 573; and see Sichel v. Borch, 2 H. & C. 954

(b) Jackson v. Spittall, L. R. 5 C. P. 542; Durham v. Spence, L. R. 6 Ex. 46; Vaughan v. Weldon, L. R. 10 C. P. 48.

(d) Re Eager, 22 Ch. D. 86; Supreme Court Rules, 1883, Order XI. r. 1 (e) "Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever:

(a) The whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits); or

(b) Any act, deed, will, contract, obligation or liability affecting land or hereditaments situate within the jurisdiction is sought to be construed, rectified, set aside, or enforced in the action; or

(d) The action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the laws of England;

(e) The action is founded on any breach or alleged breach within the jurisdiction of any contract, wherever made, which according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland; or

(f) Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof;

(g) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction.

See, as to (g), Wilted v. Galbraith (1893), 1 Q. B. 431, 577.

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PART III. essential; and it has been held that an order was rightly made limiting the plaintiff's right of action after service was effected CAP. VIII. to the subject-matter in respect of which the writ could be Contracts properly served under this rule.(a) The rule is therefore one Jurisdiction. dealing with jurisdiction, not with procedure. There must be

a breach within the jurisdiction of a contract which by its terms ought to be performed within the jurisdiction; but it is not, of course, necessary that this should appear in express words. It must follow from the language. Thus, where an act has to be done by a person resident within the jurisdiction, or a payment made, the contract for the act or payment is within the rule.(b) But it is not sufficient that damages should accrue within the jurisdiction; (c) or that a letter amounting to a breach of contract, posted out of the jurisdiction, should be received within it.(d) It is also insufficient to show that the contract may or should be performed in England. The circumstances must be such that the contract must be performed wholly, or in part, in England.(e)

The exception as to defendants domiciled or ordinarily resident in Scotland or Ireland is not based on any principle of international law, but is due to the energetic guardianship by Scotch and Irish members of the interests of their constituencies. There can be no reason in the nature of things why a Scotchman who has contracted to pay money in London should not be as amenable to the process of the English Courts as a Frenchman in a like position would be; but it has already been seen that under the Common Law Procedure Acts there was no power of serving Scotchmen or Irishmen in Scotland or Ireland, although foreigners in those countries could be so served; and as against Scotchmen and Irishmen, Parliament has never given this extended process to the English Court.(ƒ) It is obvious that the words of the exception in the rule would

(a) Thomas v. Duchess of Hamilton, 19 Q. B. D. 592. Cf. Harris v. Fleming, 13 Ch. D. 208.

(b) Reynolds v. Coleman, 36 Ch. D. 453; Roly v. Snaefell Co., 20 Q. B. D. 152; Daniell v. Oakley, 28 Sol. Journ. 477.

This has been held otherwise under

the Rules of 1875, which were superseded by those cited. See also Moritz v. Stephan, 36 W. R. 779; and, for examples, see Call v. Oppenheim, 1 Times Law Rep. 623; Hassall v. Lawrence, 4 Times Law Rep. 23; Watson v. Dreyfus, ibid. 148; Nathan V. Seitz, ibid. 670; Barrow v. Myers, ibid. 441; Wancke v. Wingien, 5 Times Law Rep. 696.

(d) Holland v. Bennett (1901), 1 K. B. 867.

(e) Rein v. Stein (1892), 1 Q. B. 753; Bell v. Antwerp (1891), I Q. B. 103.

Watkins v. Scottish Imperial Co., 23 Q. B. D. 285; Jones v. Scottish Accident Co., 17 Q. B. D. 421; Lenden v. Anderson, 12 Q. B. D. 56. This sub-section is imperative; and the exception as to Scotland and Ireland cannot be enlarged by agreement, British Wagon Co. v. Gray (1896), 1 Q. B. 35 ; Montgomery v. Liebenthal (1898), I Q. B. 487.

prevent service of an English writ in France upon a Scotchman PART III. temporarily or even ordinarily resident in France, provided that

ACTS.

he retained his Scotch domicil-a consequence which was prob- CAP. VIII. ably not contemplated, as the Scotch grievance was based upon Contractsthe hardship of taking Scotch defendants away from their own Jurisdiction. courts. The effect of s. 62 of the Companies Act, 1862, which provides for service generally upon companies by post, is to make the same principle applicable to Scotch and Irish corporations.(a)

The order giving leave to serve a writ abroad is made on affidavit (Order XI. r. 4), and it is directed that the order shall limit a time after service or notice within which the defendant is to enter appearance (r. 5). When the defendant is neither a British subject nor in British dominions, notice of the writ is to be served on him, and not the writ itself (r. 6). And service of a writ on a foreigner not in British dominions is a nullity, not a mere irregularity.(b) Foreign corporations are for this purpose in the same position as foreign natural persons, and should be served with notice of the writ only.(c) If the defendant is a British subject residing abroad, the writ itself may be served.(d) An "originating summons cannot be served out of the jurisdiction under this Order,(e) nor a petition for restitution of conjugal rights,(ƒ) nor a summons to tax costs.(g) Leave has been given to serve abroad petitions under the Trustee Acts, (h) but leave has been refused under the Settled Estates Act.(i)

It should be noted that when leave is asked under Order XI. Scotland and

Ireland

r. I, to serve a writ in Scotland or Ireland, if it shall appear Order XI. r. 2. to the Court or judge that there may be a concurrent remedy

(a) Watkins v. Scottish Imperial Co., 23 Q. B. D. 285, per Mathew, J.; Wood v. Anderston Foundry Co., 36 W. R. 918.

(b) Hewetson v. Fabre, 21 Q. B. D. 6; Field v. Bennett, 28 Sol. Journ. 477; Westman v. Aktiebolaget, &c., 1 Ex. D. 237.

(c) See cases cited in the Annual Practice, note to Order XI. r. 6. Under the C. L. P. Acts, foreign corporations could not be served abroad: Ingate v. Austrian Lloyd's, 4 C. B. N. S. 704.

(d) Great Australian Co. v. Martin, 5 Ch. D. 1. This has been ordered even when the defendant was a woman, English by nationality, who was married to a foreigner Padley v. Camphausen, 10 Ch. D. 551, but semble, without the attention of the Court being drawn to the Naturalisation Act 1870 (33 Vict. c. 14), s. 10 (1). See ante, chap. i. See, as to personal jurisdiction under this order in respect of movable property, ante, p. 228.

(e) Re Busfield, 32 Ch. D. 123.

(f) Chichester v. Chichester, 10 P. D. 186.

(9) Ex parte Brandon, 34 W. R. 352.

(h) In re Harvey's Trusts, 10 Ch. 275, and cases there cited; Re Bonelli's Trusts, 18 Eq. 655.

(i) Re Mewburn, 22 W. R. 752. See Re Nayler's Estate, 28 L. T. Rep. N. S. 18; and under the Companies Act, s. 165, see In re British Imperial Corporation, 5 Ch. D. 749. As to procedure for revocation of patent, see Re Drummond, 43 Ch. D. 80.

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Foreign and Domestic Law: A Concise Treatise on Private International ...