PROCEDURE. CAP. X. Courts in one part of her dominions 1. If in any action depending in any Court within her Majesty's PART IV. dominions, (a) it shall be the opinion of such Court that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the case as administered in any other part of her Majesty's dominions on any point on which the law of such other part of her Majesty's dominions is different from that in which the Majesty's Court is situate, it shall be competent to the Court in which such action may remit a may depend to direct a case to be prepared setting forth the facts, as case for the these may be ascertained by verdict of a jury or other mode competent, of a Court in opinion in law or may be agreed upon by the parties, as settled by such person or any other persons as may have been appointed by the Court for that purpose in part thereof. the event of the parties not agreeing, and upon such case being approved of by such Court or a judge thereof, they shall settle the questions of law arising out of the same on which they desire to have the opinion of another Court, and shall pronounce an order remitting the same, together with the case, to the Court in such other part of her Majesty's dominions, being one of the Superior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act; and it shall be competent to any of the parties to the action to present a petition to the Court whose opinion is to be obtained, praying such last-mentioned Court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel; and the Court to which such petition shall be presented, shall, if they think fit, appoint an early day for hearing parties or their counsel on such case, and shall thereafter pronounce their opinion upon the questions of law as administered by them which are submitted to them by the Court; and in order to their pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper.(b) 2. Upon such opinion being pronounced, a copy thereof, certified by Opinion to be authenticated an officer of such Court, shall be given to each of the parties to the and certified action by whom the same shall be required, and shall be deemed and copy given. held to contain a correct record of such opinion. 3. It shall be competent to any of the parties to the action, after Opinion to be applied by the having obtained such certified copy of such opinion, to lodge the same Court making with an officer of the Court in which the action may be depending who the remit. may have the official charge thereof, together with a notice of motion setting forth that the party will, on a certain day named in such notice, move the Court to apply the opinion contained in such certified copy thereof to the facts set forth in the case hereinbefore specified, and the said Court shall thereupon apply such opinion to such facts in the same manner as if the same had been pronounced by such Court itself upon (a) The Act is extended, mutatis mutandis, to the Ottoman dominions, by Order in Council dated May 13, 1882 (London Gazette, p. 2209). (b) See as to case sent for opinion of Scotch Court, Lord v. Colvin, 1 Dr. & S. 24; and to Supreme Court of Calcutta, Logan v. Coorg, 30 Beav. 632. PART IV. PROCEDURE. CAP. X. Her Majesty in Council or House of Lords on appeal may adopt or reject opinion. Interpretation of terms. a case reserved for the opinion of the Court, or upon special verdict of a 5. In the construction of this Act, the word "action shall include every judicial proceeding instituted in any Court, civil, criminal, or ecclesiastical; and the words "Superior Courts" shall include, in England, the Superior Courts of Law at Westminster, the Lord Chancellor, the Lords Justices, the Master of the Rolls or any ViceChancellor, the judge of the Court of Admiralty, the judge ordinary of the Court for Divorce and Matrimonial Causes, and the judge of the Court of Probate; in Scotland, the High Court of Justiciary, and the Court of Session acting by either of its divisions; in Ireland, the Superior Courts of Law at Dublin, the Master of the Rolls, and the judge of the Admiralty Court; and in any other part of her Majesty's dominions, the Superior Courts of Law or Equity therein. 22 & 23 Vict. c. 63. 24 VICT. C. II. An Act to afford Facilities for the better Ascertainment of the Law of (a) No convention as contemplated seems in fact to have been entered into. dominions when pleaded in actions depending in the Courts of such foreign country or State: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows; viz. PART IV. PROCEDURE. CAP. X. remit a case, with made a con for ascertain 1. If, in any action depending in any of the Superior Courts (a) Superior within her Majesty's dominions, it shall be the opinion of such Court Courts within her Majesty's that it is necessary or expedient, for the disposal of such action, to ascer- dominions tain the law applicable to the facts of the case as administered in may any foreign State or country with the Government of which her Majesty queries, to a shall have entered into such convention as aforesaid, it shall be com- Court of any foreign State petent to the Court in which such action may depend to direct a case with which to be prepared setting forth the facts as these may be ascertained by her Majesty verdict of jury or other mode competent, or as may be agreed upon by may have the parties, or settled by such person or persons as may have been vention for appointed by the Court for that purpose in the event of the parties not that purpose, agreeing; and upon such case being approved of by such Court or a ment of law judge thereof, such Court or judge shall settle the questions of law of such State. arising out of the same on which they desire to have the opinion of another Court, and shall pronounce an order remitting the same, together with the case, to such Superior Court in such foreign State or country as shall be agreed upon in said convention, whose opinion is desired upon the law administered by such foreign Court as applicable to the facts set forth in such case, and requesting them to pronounce their opinion on the questions submitted to them; and upon such opinion being pronounced, a copy thereof, certified by an officer of such Court, shall be deemed and held to contain a correct record of such opinion. which action depends to facts set forth 2. It shall be competent to any of the parties to the action, after Court in having obtained such certified copy of such opinion, to lodge the same with the officer of the Court within her Majesty's dominions in which apply such the action may be depending who may have the official charge thereof, opinion to the together with a notice of motion setting forth that the party will, on a in cases, &c. certain day named in such notice, move the Court to apply the opinion contained in such certified copy thereof to the facts set forth in the case herein before specified, and the said Court shall thereupon, if it shall see fit, apply such opinion to such facts, in the same manner as if the same had been pronounced by such Court itself upon a case reserved for opinion of the Court, or upon special verdict of a jury; or the said last-mentioned Court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the jury with the other facts of the case as conclusive evidence of the foreign law therein stated, and the said opinion shall be so submitted to the jury: Provided always, that if after having obtained (a) By Order in Council (London Gazette, Nov. 20, 1863, p. 5559) ss. 1 and 2 of this Act are extended to the Mayor's Court, London. And the Act is extended, mutatis mutandis, to the Ottoman dominions by Order in Council, May 13, 1882 (London Gazette, p. 2209). PART IV. CAP. X such certified copy the Court shall not be satisfied that the facts had PROCEDURE. been properly understood by the foreign Court to which the case was remitted, or shall on any ground whatsoever be doubtful whether the opinion so certified does correctly represent the foreign law as regards the facts to which it is to be applied, it shall be lawful for such Court to remit the said case, either with or without alterations or amendments, to the same or to any other such Superior Court in such foreign State as aforesaid, and so from time to time as may be necessary or expedient. Courts in her dominions may pronounce opinion on case remitted by a foreign Court. Interpretation of terms. 3. If in any action depending in any Court of a foreign country or State with whose Government her Majesty shall have entered into a convention as above set forth such Court shall deem it expedient to ascertain the law applicable to the facts of the case as administered in any part of her Majesty's dominions, and if the foreign Court in which such action may depend shall remit to the Court in her Majesty's dominions whose opinion is desired a case setting forth the facts and the questions of law arising out of the same on which they desire to have the opinion of a Court within her Majesty's dominions, it shall be competent to any of the parties to the action to present a petition to such last-mentioned Court whose opinion is to be obtained, praying such Court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel; and the Court to which such petition shall be presented shall consider the same, and if they think fit, shall appoint an early day for hearing parties or their counsel on such case, and shall pronounce their opinion upon the questions of law as administered by them which are submitted to them by the foreign Court; and in order to their pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper, and, upon such opinion being pronounced, a copy thereof, certified by an officer of such Court, shall be given to each of the parties to the action by whom the same shall be required. 4. In the construction of this Act, the word "action" shall include every judicial proceeding instituted in any Court, civil, criminal, or ecclesiastical; and the words "Superior Courts" shall include, in England, the Superior Courts of Law at Westminster, the Lord Chancellor, the Lords Justices, the Master of the Rolls or any Vice-Chancellor, the judge of the Court of Admiralty, the judge ordinary of the Court for Divorce and Matrimonial Causes, and the judge of the Court of Probate; in Scotland, the High Court of Justiciary, and the Court of Session acting by either of its divisions; in Ireland, the Superior Courts of Law at Dublin, the Master of the Rolls, and the judge of the Admiralty Court; and in any other part of her Majesty's dominions, the Superior Courts of Law or Equity therein; and in a foreign country or State, any Superior Court or Courts which shall be set forth in any such convention between her Majesty and the Government of such foreign country or State. CHAPTER XI. FOREIGN JUDGMENTS. (i.) Generally, and more particularly, Foreign Judgments in personam. PART IV. PROCEDURE. CAP. XI. Judgments. how enforced. THE judgments or decrees of any tribunal have obviously no Foreign right to claim recognition beyond the jurisdiction of that judgmentstribunal on any principle akin to that which renders them binding within it. They are in fact the judicial orders of the sovereign power in the State, pronounced by the mouth of one of its tribunals, and can only claim to be carried into effect by the executive officers of that State within its limits.(a) The comity of nations does, however, accord them a certain recognition, and it has been said by a celebrated American judge(b) that the Courts of England give as full effect to foreign. sentences as is given to them in any part of the civilised world. Recognition may be accorded in three ways. The foreign judgment may either be adopted by the domestic Court as its own, and admitted to execution within its jurisdiction; or it may be received as evidence of the creation of an obligation; or lastly, it may be received as evidence of the original obligation, in a suit brought on the primary cause of action. The first of these methods, according to Westlake,(c) is that generally followed on the continent of Europe; though several of the Continental nations, including France, enforce the judgments of other countries only where there are reciprocal treaties to that effect; the second is the mode adopted in England and America, and in countries which possess a cognate system of jurisprudence; while in some few States, such as Sweden, Spain, and Norway, the plaintiff is relegated to his original cause of action. In England then, a foreign judgment is ordinarily enforced by bringing an action upon it; and it Enforcement is to be remarked that, though it has been said that this by action. (a) As to the proof of foreign judgments, see 14 & 15 Vict. c. 99, s. 7, and ante, p. 532. (b) Marshall, C.J., in 4 Cranch, 270; Story, Conflict of Laws, § 590. (c) Westlake, Priv. Int. Law, § 374. |