PART IV. PROCEDURE.

CAP. XI.

been stated that a foreign judgment will be reviewed here, if based upon an erroneous interpretation either of private international law (a) or of English law; (b) but the later decisions Judgments, clearly show that this is a misapprehension. There can be no difference, in the words of Blackburn, J., between a mistake made by a foreign Court as to English law, and any other mistake, unless it is to be said that a defence which is easily proved is to be admitted, but that one which would give the Court much trouble to investigate is to be rejected; and, accordingly, no foreign judgment can be impeached by showing that it was wrongly arrived at. Nor does it make any difference that the error alleged appears on the face of the proceedings.(e) The previous authorities, which had been construed by some writers as deciding that a foreign judgment will be invalidated by showing that it was founded upon a mistaken view of English law, are collected and explained in the valuable judgment of Blackburn, J., in Castrique v. Imrie,(d) delivering the opinion of five of the judges. After stating that fraud would vitiate any obligation, even the obligation imposed by a foreign contract, that there was nothing equivalent to fraud in the case before the Court, and that all that was required of a tribunal that had to decide on a question of foreign law was that it receive and consider the evidence as to the foreign law, and bona fide determine on that as well as it can, the learned Castrique v. judge proceeded as follows: "Various cases were cited as Imrie-judg- authorities that where a foreign Court has mistaken or misapplied the English law, the Courts of this country will not regard the foreign judgment; but we think they do not bear out any such general position. One class of cases-such as Pollard v. Bell,(e) Bird v. Appleton,(ƒ) Dagleish v. Hodgson,(g) and others-proceed on a principle not applicable to the present

ment in.

case.

A judgment in an English Court is not conclusive as to anything but the point decided, and therefore a judginent of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is

(a) Westlake, Priv. Int. Law, § 388, citing, Reiniers v. Druce, 23 Beav. 145, 156; Arnott v. Redfern, 2 C. & P. 88; Felix, 327, n. See In re Queensland Merc. Co. (1892), I Ch. 219, as to international law being regarded as part of the law of the Court which adopts it.

(b) 2 Sm. L. C. 7th ed. 448; Westlake, Priv. Int. Law, § 388, citing Norelli v. Rossi, 2 B. & Ad. 757.

(c) Godard v. Gray, L. R. 6 Q. B. 151, 152. In In re Queensland Merc. Agency Co. (1892), 1 Ch. 219, where it was conceded that the controversy was to be decided as the Scotch Courts would have decided it, the English Court of Appeal refused to consider whether the Scotch Court would have been right or wrong in so deciding. (d) L. R. 4 H L. 414. (e) 8 T. R. 434. (g) 7 Bing. 495.

(ƒ) 8 T. R. 562.

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Judgments.

not only not conclusive, but is not even admissible evidence of PART IV. the forgery in an action on the bill, though the conviction must have proceeded on the ground that the bill was forged. But, very early in insurance cases a practice began of treating the judgment of a Prize Court condemning a vessel as being the property of an enemy as not only conclusive evidence that the vessel was condemned, which of course it was, but also as conclusive evidence that the vessel was not neutral. There are many cases which proceed on the principle that, where it can be made to appear that the judgment of the Prize Court did not proceed on the ground that the vessel was an enemy's property, it cannot be conclusive evidence that it was not neutral. In Lothian v. Henderson, (a) the judgment of the House of Lords was that in a policy on a ship, warranted neutral, a stipulation, that a condemnation should not be conclusive evidence that the vessel was not neutral, was effectual. Lord Eldon, in delivering that judgment, expresses a strong opinion that the practice of receiving the sentences of Prize Courts as conclusive of the collateral matter was originally a mistake. And he also intimates an opinion that the cases just alluded to were attempts to graft a vicious exception on a rule originally vicious, but now become law. It is unnecessary to form or express any opinion on these cases, further than that they proceed on a principle that has no bearing on the present question.

"Novelli v. Rossi, (b) which was relied on, also proceeds on a principle not at all applicable to the present case. It is clear that no judgment of a foreign Court can have any effect unless the subject-matter of the decision (whether inter partes or in rem) is within the lawful control of the State whose tribunal has pronounced the judgment. In Novelli v. Rossi a Frenchman had, at Lyons, drawn a bill on an Englishman in London. The defendant had, at Manchester, indorsed it to the plaintiff. Afterwards the defendant instituted a suit in France to have it declared that he and all prior parties were discharged from their obligations on the bill on account of a cancellation of the acceptance in London by mistake; and, notwithstanding the opposition of the plaintiff, the French Court, on mistaken view of the English law, pronounced a judgment to that effect. But though the French tribunals had jurisdiction to declare that no one should sue on the bill in their courts, they had none to

(a) 3 B. & P. 499, at p. 545.

(b) 2 B. & Ad. 757.

PART IV.

determine that the plaintiff should not sue in an English PROCEDURE. Court on an English contract. If they had taken a correct CAP. XI. view of the English law there would have been a defence, because such was the English law, not because the French Court had so decided. Being wrong, there was no defence, not because the French Court made a mistake, but because it had no jurisdiction.

Judgments.

The same principle will, we believe, be found to lie at the bottom of those cases in which our Courts have refused to enforce judgments obtained in a foreign country against a person not resident in that country, and who had no notice of the suit, such as Buchanan v. Rucker.(a) It may very well be held that the foreign country has no jurisdiction to pronounce judgment against a person behind his back who is not subject to its jurisdiction; but it is unnecessary to examine these cases; for in the present one the ship concerned was clearly within the jurisdiction of the empire of France; and the plaintiff had notice, and was heard, though unluckily the French Court made a mistake.

Simpson v. Fogo (b) was also cited, but that case proceeded on a principle very different from any applicable to the present case. There a creditor of Messrs. K., the owners of a British ship, obtained in Louisiana a judgment against them, under which their interest in the ship, and no more, was sold under a process exactly analogous to our fieri facias. There could be no doubt, if that had been all, that the Bank of Liverpool, which held a valid mortgage on the ship, might have taken possession of it as against the purchasers just as much as against the judgment debtors, K. & Co. But the bankers in Liverpool had in Louisiana intervened and endeavoured to prevent the sale of their ship, and a judgment was pronounced against them, on the ground that the Courts in Louisiana wholly disregarded all rights acquired in England on an English ship, unless they were acquired in such a manner as to be valid in Louisiana. The contention before the Vice-Chancellor was that the purchaser of the ship and the bankers in Liverpool were privies to their judgment, and that, therefore, the purchaser was entitled to use it as an estopped to preclude the bankers from setting up in an English Court their English right, though the judgment proceeded on the ground that the English right was to be wholly disregarded. The Vice-Chancellor decided otherwise. We should be sorry to cast any doubt on a

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CAP. XI.

decision which prima facie seems to carry out justice and good PART IV. sense; but all that it is necessary to say in the present case, and therefore all that we do say, is that no such point here arises. The judgment of the French Court decreeing the sale Judgments. of the vessel was not, according to the view of the facts which we take, a judgment that only the interest of C., if any, in the. ship should be sold, but that the particular ship itself should be sold. And finding no authority for saying that the purchaser, under the decree of a foreign Court having competent jurisdiction to decree the transfer, is to be responsible for any mistakes made by that Court either in law or fact, we think we ought to act on the reason given in Hughes v. Cornelius (a): 'We must not set them at large again, for otherwise the merchants would be in a pleasant condition.' In truth, the plaintiff asks an English Court to sit as a court of appeal from the French Court, which is not the province of an English Court."(b)

ment-error

The principles laid down in Castrique v. Imrie (c) have been Foreign judg in no sense questioned, but in a more recent judgment the in law of Common Pleas Division have held that there is one case Court pronouncing it. where an error in law committed by a foreign Court may be corrected. The case referred to is where both parties admit that the foreign Court has wrongly interpreted its own law. (d) Where such an admission is made, either on the pleadings, special case, or otherwise, the Common Pleas Division held that there was no rule of comity and no principle on which they were called upon to give effect to the foreign judgment; though, strangely enough, Archibald, J., in delivering the decision referred to, expressed a doubt whether Castrique v. Imrie would not have compelled the Court to give effect. to the foreign decree, if the mistake admitted had been a mistake in the law, not of the country to which the foreign tribunal belonged, but of a third distinct jurisdiction.(e) The correctness of Meyer v. Ralli can only rest upon the exceptional circumstance that the error of the foreign Court was admitted upon the special case before the Common Pleas Division.(ƒ) The grounds and correctness of the foreign judgment were therefore not examined, nor is the case an authority for the

(a) 2 Show. 232; 2 Sm. L. C. 830.

(b) Castrique v. Imrie, L. R. 4 H. L. (1870), 434-437. See In re Queensland Mercantile Co. (1892), 1 Ch. 219, as to an alleged mistake in international law by a Scotch Court.

(c) L. R. 4 H. L. 434.

(d) Meyer v. Ralli, L. R. 1 C. P. D. 358. (e) Ibid., pp. 370, 371. (f) Scott v. Pilkington, 2 B. & S. 11, 41; Bank of Australasia v. Nias, 16 Q. B. 717; Ricardo v. Garcias, 12 Cl. & F. 368; Castrique v. Imrie, L. R. 4 H. L. 434.

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CAP. XI.

Judgments.

PART IV. proposition that they are examinable. It may be added that the French judgment impeached appears to have had the additional defect of having been founded on proceedings commenced without any actual summons served or notice in fact given to the defendants; nor does it clearly appear how far service of the summons at the bar of the procureur-impérial was so warranted by the position of the parties as to amount to constructive notice.(a)

Foreign judgment-inconsistent with natural justice.

It may therefore be assumed, from the enunciation of the law by Blackburn, J., in Castrique v. Imrie,(b) that the judgment of a foreign Court, if final,(c) is examinable for no error or mistake, except a mistake by which it gave itself jurisdiction although by the principles of private international law it would have none. The earlier dicta,(d) to the effect that a foreign judgment will be reviewed for any error in private international law, or for any violation of natural justice, would seem, upon examination of the authorities, strictly applicable only to this point. An error in jurisdiction is the only error which a foreign Court is allowed to detect and set right.(e) The strongest modern decisions in favour of the theory that no foreign judgment manifestly opposed to natural justice is to be enforced by an English Court are all of earlier date than Castrique v. Imrie, and must be taken subject to the principles followed in that case. The condition, indeed, on which a foreign judgment shall be accepted here, as stated by Lord Ellenborough in Buchanan v. Rucker,(f) namely, that it should appear on the face of it consistent with reason and justice, is said by Blackburn, J., in Schibsby v. Westenholz, to be mere declamation. It may be remarked, however, that in the case of Liverpool Marine Credit Company v. Hunter,(g) which was not referred to or cited in Castrique v. Imrie, it was intimated by Lord Chelmsford that, when there had been “a total disregard of the comity of nations," an English Court would be justified

(b) Ante, p. 558.

(a) Infra, p. 565. (c) Frayes v. Worms, 10 C. B. N. S. 149; Plummer v. Woodburne, 4 B. & C. 625. And a judgment which would not be a bar to further proceedings in the country where it was obtained, between the same parties, is not final: In re Henderson, Nourion v. Freeman, 37 Ch. D. 244; affirmed H. L. 59 L. J. Ch. 337; 15 App. Cas. I.

(d) 2 Sm. L. C. 448; Westlake, s. 388.

(e) The fact, however, that a foreign judgment has been obtained without due notice to the defendant is equivalent to a wrongful assumption of jurisdiction. See the observations of Blackburn, J., upon Buchanan v. Rucker, in Castrique v. Imrie, ante, p. 560; Ferguson v. Mahon, 11 A. & E. 179; Reynolds v. Fenton, 3 C. B. 187; Copin v. Adamson, L. R. 9 Ex. 345; Schibsby v. Westenholz, L. R. 6 Q. B. 155.

(f) Buchanan v. Rucker, 1 Camp. 63; S. C. 9 East, 192; Schibsby v. Westenholz, L. R. 6 Q. B. 155, 160.

(g) L. R. 3 Ch. 479, 484; S. C. L. R, 4 Eq. 62.