PART IV. practice does not strictly rest upon "what is loosely called PROCEDURE. international comity,"(a) it does rest strictly upon international CAP. XI. comity, properly understood. According to Parke, B.," Where Judgments. a Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial Courts are supported and enforced."(b) This statement of principle was cited and adopted by Blackburn, J., in Godard v. Gray(c) and Schibsby v. Westenholz just referred to, and is in reality only a variation of the general rule that obligations which have once been duly created by a competent and appropriate law will be recognised in all tribunals alike. The phrase "comity of nations" does emphatically mean this, or it means nothing.(d) But though the most usual mode of enforcing a foreign judgment in England is by bringing an action upon it, the plaintiff is not obliged to take this course. A foreign judgment involves no merger of the original cause of action; and it is therefore open to the plaintiff to sue upon that if he chooses.(e) "This, being only a foreign judgment," said Bayley, J., in Hall v. Odber, " did not merge or extinguish the plaintiff's simple contract debt, which can only be done by converting it into a debt of a higher nature; it is only evidence of the debt." "If, then," says Tindal, C.J., in Smith v. Nicolls, "the judgment has not altered the nature of the rights between the parties, it appears to me that the plaintiff has his option, either to resort to the original ground of action, or to bring an assumpsit on the judgment recovered." It was suggested as a moot point before the Judicature Acts (f) whether, in cases where the plaintiff elected to sue on the original cause of action, it would not be open to the defendant to controvert the ground of action notwithstanding the production of the foreign judgment as evidence; on the same principle on which it has been held that where there is an opportunity of placing a domestic judgment on the record, and it is not placed there, it will not be conclusive.(g) It is hardly probable (a) Per Blackburn, J., in Schibsby v. Westenholz, L. R. 6 Q. B. 159. For the mode of proof of foreign judgments, see 14 & 15 Vict. c. 99, s. 7, and ante, p. 532. (b) Williams v. Jones, 13 M. & W. 633; Russel v. Smyth, 9 M. & W. 819. (c) L. R. 6 Q. B. 139. (d) Story, Conflict of Laws, §§ 38, 38a; Westlake, § 148; Huber, De Conflictu Legum, s. 2; Dalrymple v. Dalrymple, 2 Hagg. Cons. 59. (e) Smith v. Nicolls, 5 Bing. N. C. 208; Hall v. Odber, 11 East, 124; Bank of Australasia v. Nias, 15 Q. B. 717; Bank of Australasia v. Harding, 19 L. J. C. P. 345 9 C. B. 661; Castrique v. Behrens, 30 L. J. Q. B. 163; Kelsall v. Marshall, I C. B. N. S. 241. (f) Doe v. Oliver, 2 Sm. L. C. 813, n. (g) Vooght v. Winch, 2 B. & Ald. 162; Doe v. Huddart, 2 C. M. & R. 316. that the point will arise under the new practice, as it is most unlikely that the statement of claim in such a case would be framed without setting out both the original cause of action and the foreign judgment; but should a foreign judgment be relied upon only as evidence, and not as an original cause of action, it is quite clear that it would at least be evidence, and strong prima facie evidence, of the obligation on which it was based. Speaking of the ordinary practice of suing on a judgment, Blackburn, J., says in Godard v. Gray(a): "The mode of pleading shows that the judgment was considered, not as merely prima facie evidence of that cause of action for which the judgment was given, but as in itself giving rise, at least prima facie, to a legal obligation to obey that judgment and pay the sum adjudged. This may seem a technical mode of dealing with the question, but in truth it goes to the root of the matter. For if the judgment were merely considered as evidence of the original cause of action, it must be open to meet it by any counter evidence negativing the existence of that original cause of action."(b) On this principle it has been held that the summary procedure in cases of contract given by Order XIV. under the Judicature Acts is applicable to an action on a foreign judgment.(c) But a foreign judgment which in its own forum creates a personal obligation only, will not be enforced in England by proceedings in rem.(d) And of course a foreign judgment which is not a bar to subsequent proceedings between the same parties, even in the country where it was obtained, is not a final judgment which can be sued upon in England.(e) There is one well-recognised exception to the principle that the legal obligation to pay a judgment pronounced by a competent tribunal will be recognised in all other States. No action lies upon a foreign judgment obtained on a foreign penal statute.(f) The meaning of " penal" in this connection is best conveyed by citing the words of an American judge, adopted by the Privy Council in the recent case of Huntington v. Attrill. "The rule that the Courts of no country execute the law of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favour of the State (a) L. R. 6 Q. B. 139, 150. (b) See also Phillips v. Hunter, 2 H. Bl. 410; Sinclair v. Fraser, Dougl. 5, n.; Hall v. Odber, 11 East, 124. (c) Grant v. Easton, 13 Q. B. D. 302. Cf. Hodsoll v. Baxter, E. B. & E. 884, under the Common Law Procedure Act, 1852. (d) The City of Mecca, 6 P. D. 106. (e) In re Henderson, Nouvion v. Freeman, 37 Ch. D. 244; affirmed H. L. 59 L. J. Ch. 337. (f) Folliott v. Ogden, 1 H. Bl. 1, 124; Ogden v. Folliott, 3 T. R. 734. PART IV. PROCEDURE. CAP. XI. Judgments. Judgments. PART IV. for the recovery of pecuniary penalties for any violation of PROCEDURE. statutes for the protection of its revenue or other municipal CAP. XI. laws, and to all judgments for such penalties." The rule has its foundation "in the well-recognised principle that crimes, including in that term all breaches of public law punishable by pecuniary mulct or otherwise, at the instance of the State Government or of some one representing the public, are local in this sense, that they are only cognisable and punishable in the country where they were committed."(a) Foreign validity of. Excess of The ordinary mode adopted in England of enforcing a foreign judgment judgment being, then, to bring an action upon it, as creating a substantive legal obligation, it becomes important to consider what objections may be taken to its validity. Anything which negatives the existence of that legal obligation, or excuses the defendant from the performance of it, must form a good defence to the action. It must be open, therefore, to the defendant to show that the Court which pronounced the judgment had not jurisdiction to pronounce it, either (a) because they exceeded the jurisdiction given to them by the foreign law, or (b) because jurisdiction. he, the defendant, was not subject to that jurisdiction.(b) That the foreign court should have had jurisdiction in the first instance is the essential condition implied by Parke, B., in his enunciation of the principle on which foreign judgments are recognised here, cited above,(c) and, indeed, hardly stands in need of authority to confirm it. But it is clearly not sufficient, in order to impeach a foreign judgment, to show that the Court which pronounced it had no jurisdiction by its own rules, if it had jurisdiction according to the principles of international law over the person of the defendant and the subject-matter of the action.(d) Thus a plea to an action on a judgment of the French Tribunal of Commerce, that the Court was not a Court of competent jurisdiction in that behalf, according to the French law, because the defendant was not a trader, and was not resident in a particular town when the cause of action arose, was held bad.(e) It is obvious that these defences, being admittedly defences by the French law, should have been pleaded in the French court, and it is well established that defences which might have been raised in the court where the judgment was (a) Huntington v. Attrill (1893), A. C. 150, per Lord Watson, delivering the judgment of the Court. This is also the rule of the Supreme Court of the United States (Wisconsin v. Pelican Insurance Co., 8 Supr. Cont. Rep. 1370). On the question of the locality of crime, see per Lord Halsbury, C., in Macleod v. A.-G. for New South Wales, 60 L. J. P. C. 55; and ante, p. 505. (b) Godard v. Gray, L. R. 6 Q. B. 149. (c) Russel v. Smyth, 9 M. & W. 819; Williams v. Jones, 11 M. & W. 633. (e) S. C. PROCEDURE. obtained, cannot be brought forward afterwards to impeach it.(a) PART IV. And mere irregularity of procedure under the local law in the foreign court will not be a ground for impeaching a judgment CAP. XI. obtained under it, even though the defect be such that the Judgments. judgment might have been successfully invalidated in such foreign court. "It sounds paradoxical to say that a decree of a foreign court should be regarded here as more efficacious or with more respect than it is entitled to in the country in which it was pronounced. But this paradox disappears when the principles on which English courts act in regarding or disregarding foreign judgments are borne in mind. If a judgment is pronounced by a foreign court over persons within its jurisdiction, and in a matter with which it is competent to deal, English courts never investigate the propriety of the proceedings in the foreign court, unless they offend against English views of substantial justice. . . . . The jurisdiction which alone is important in these matters is the competence of the Court in an international sensei.e., its territorial competence over the subject-matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the courts of this country."(b) There may, however, be cases in which both parties have admitted that the law of the foreign tribunal has been incorrectly declared by its judgment; and where this was expressly stated in the special case by which both litigants were bound, an English court has refused to give effect to a judgment so pronounced.(c) Want of due notice in fact to a defendant in a foreign court is of course more than an irregularity in procedure or error in law; and unless the defendant has agreed to dispense with such notice, this will be a defect fatal to the jurisdiction of the Court pronouncing the judgment.(d) The rule that the person of the defendant must be properly subject to the jurisdiction has been put by modern cases in the clearest possible light, and has been summarised in a recent judgment as follows: "The Courts of this country consider the defendant bound (a) Henderson v. Henderson, 6 Q. B. 288; Bank of Australasia v. Nias, 16 Q. B. 717; Ricardo v. Garcias, 12 Cl. & F. 368; Vanquelin v. Bouard, 33 L. J. C. P. 78; 15 C. B. N. S. 341. (b) Per Lindley, M.R., in Pemberton v. Hughes (1899), 1 Ch. 781, 790; who cites (inter alia), Wharton's Conflict of Laws, §§ 801, 812. The phrase quoted arguendo in the same case from Story (8th ed. § 607) is not supported by authority, and appears to have been written alio intuitu. (c) Meyer v. Ralli (1876), 1 C. P. D. 358. (d) Schibsby v. Westenholz, L. R. 6 Q. B. 155; Fracis v. Carr, 82 L. T. Rep. 698, and infrà, p. 553. PART IV. PROCEDURE. CAP. XI. Judgments. “(i.) Where he is the subject of the foreign country in which the judgment has been obtained; (ii.) Where he was resident in the foreign country when the action began; "(iii.) Where the defendant, in the character of plaintiff, has selected the forum in which he is afterwards sued; (iv.) Where he has voluntarily appeared; "(v.) Where he has contracted to submit himself to the forum in which the judgment was obtained; in it. and, possibly, if Becket v. M'Carthy (2 B. & Ad. 951) be right, Upon the same principle, that a litigant who takes his chance of a decision in his favour ought to be bound by a decision against him, it has been decided that an appearance under protest, pleading both to the jurisdiction and to the merits of the case, is a voluntary appearance within this rule, (a) Per Fry, J., in Rousillon v. Rousillon, 14 Ch. D. 351, 371. Becquet v. M'Carthy, however, is practically overruled (so far as this general proposition is concerned) by the judgment in Sirdar Singh v. Rajah of Feridkote (1894), A. C. 670, 685; and case (vi.) put by Fry, J., seems to fall with it. (b) Per Wills, J., in Voinet v. Barrett, 54 L. J. Q. B. 521; following De Cosse Brissac v. Rathbone, 30 L. J. Ex. 238. Cf. Gen. Steam Nav. Co. v. Guillou, II M. & W. 877; 13 L. J. Ex. 168; and Duflor v. Birmingham, 43 L. T. 688. (c) 55 L. J. Q. B. 39. |