in disregarding a judgment "so fraught with injustice"; and similar expressions were used by Lord Hatherley in the same case in the court of first instance: "If, in examining a judgment, as we are at liberty to do, we find on the face of it that a course of procedure has been adopted which is inconsistent with natural justice, then this Court will not give effect to the decisions and to the authority which it would otherwise be perfectly willing to recognise." This is, no doubt, strong language, but the very next paragraph shows what was in Lord Hatherley's mind, and that his view can really be reconciled with the theory of foreign judgments already deduced from Castrique v. Imrie: "It sometimes happens, for instance, that foreign Courts proceed to judgment in the absence of the party against whom proceedings are taken, or after inadequate notice of trial."(a) It is plain that this could only have been said in contemplation of such cases as Buchanan v. Rucker,(b) as to which it was expressly said in Castrique v. Imrie that the judgment of a foreign Court could be reviewed, not because it had made a mistake in law, but because it had acted without jurisdiction.(c) It may be added on this part of the subject, that although it is necessary that the foreign Court should have jurisdiction, it is not necessary, in suing on a foreign judgment, to allege that this requisite has been complied with.(d)

PART. IV. PROCEDURE.

CAP. XI. Judgments.

The jurisdiction which entitles the tribunals of any State Jurisdiction. to pronounce judgment in personam arises from its sovereign territorial power. "All jurisdiction is properly territorial, and extra territorium jus dicenti impune non paretur. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it, but it does not follow them after they have withdrawn from it, and when they are living in another independent country.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 even living were domiciled within the territory. As between different provinces under one sovereignty, the legislation of the sovereign

(a) Liverpool Marine Credit Co. v. Hunter, L. R. 4 Eq. 62, 68. (b) 9 East, 192; ante, p. 560.

(c) On this subject, cf. also the judgment of the Exchequer Chamber in Cammell v. Sewell, 5 H. & N. 728. Other cases in point are Caran v. Stewart, 1 Stark. 525; Obicini v. Bligh, 8 Bing. 335; Frankland v. M'Gusty, I Knapp, 274; Baring v. Clagett, 3 B. & B. 215; Pollard v. Bell, 8 T. R. 444; Bolton v. Gladstone, 2 Taunt. 85; Price v. Dewhurst, 8 Sim. 279; Paul v. Roy, 15 Beav. 440.

(d) Robertson v. Struth, 5 Q. B. 941; Barber v. Lamb, 8 C. B. N. S. 95.

PART IV. PROCEDURE.

CAP. XI.

Judgments.

Notice to the defendant.

may distribute and regulate jurisdiction, but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the Power which legislates."(a) The jurisdiction. over subjects, arising from allegiance, is also territorial in its origin; but it is not in practice exercised in order to enforce personal obligations at any rate, not by English law. The liability of a defendant to be sued, either in contract or in tort, depends upon other considerations than his nationality;(b) but the jurisdiction arising from allegiance is still seen in the rule of practice which provides that service of a writ of summons may in proper cases be ordered upon a British subject abroad, whereas in the case of a foreigner, service of a notice of the writ is substituted.(c) Loid Selborne, in the Faridkote case (just cited), goes on to say that in a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem, by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity.

Closely akin to the question of jurisdiction, with regard to which it has thus been shown that a foreign judgment has been declared by a consensus of authorities to be examinable, is that of notice to the defendant. The fact that no notice, or no sufficient notice, was given to the defendant of the proceedings on which the judgment was founded may be an incident, of course, of the want of jurisdiction referred to, or an element of fraud-the presence of fraud being, as has been stated, sufficient of itself to deprive a judgment so obtained of all validity. Thus, if a defendant is not resident in nor a subject of a foreign country, nor present within its territorial limits, and has no notice of an action brought against him in its tribunals, it is plain that the absence of notice is merged, so to speak, in the absence of jurisdiction, which would be amply sufficient to invalidate the judgment, even if notice was in fact given. But if a defendant is subject to the foreign jurisdiction, either by domicil or submission, and, according to the older opinions, even by nationality, he is of course subject to its laws; and though he has no actual notice of an action commenced against him in its tribunals, and may not have been served with any writ or process, he may have had constructive notice which

(a) Sirdar Singh v. Faridkote (Rajah of) (1894), A. C. 670, at p. 683, per Lord· Selborne.

(b) See, as to jurisdiction in contracts, pp. 341-357; as to torts, pp. 483-487. (c) This is formally expressed in the C. L. P. Act (1852), ss. 18, 19; and remains the practice under the Judicature Act, 1875, and Rules (Ord. XI.).

PROCEDURE

CAP. XI. Judgments.

will satisfy those laws, and be accepted by foreign tribunals, PART IV. as sufficient. If those laws, for instance, provide that notice may be effected on an absent defendant by nailing a copy of the declaration on the court-house door,(a) or by service at the office of a public officer,(b) or by any other notice in law which cannot be said to be notice in fact, those who are properly subject to those laws will be bound by them, and no other; for, as Lord Ellenborough said in Buchanan v. Rucker, they can never be intended for or applied to persons who, for aught that appears, were never present within or subject to the jurisdiction. This subjection or submission to the jurisdiction, as has been already implied, does not depend solely upon the domicil or residence of the defendant, but may be inferred from his acts, where they show an intention to submit, for the purposes of a particular transaction, to the foreign law and the methods of service which it adopts. Such a submission has been implied where a person has joined a foreign company, the statutes or articles of association of which contained special provisions authorising constructive notice of process or action by something which would not or might not be notice in fact:(c) but it appears not to be sufficient that the law of the country to which the foreign company belongs should contain such provisions, if the rules or articles of the company itself do not repeat or adopt them.(d) So, the acceptor in a foreign country of a bill drawn and payable there, though not subject to the jurisdiction by domicil, nationality, or residence, was held to have submitted himself to it in an action on the bill itself, so as to be bound by a judgment obtained in the foreign Jurisdiction tribunal without actual notice or service to the defendant, but and notice to in compliance with the requirements of the foreign law as to service and notice.(e) In the more recent of Schibsby v. Westenholz, (f) which has been already referred to, a foreign judgment was held invalid on the ground that the defendants

were

not subject to the jurisdiction by residence, transient presence, or any other reason, and that there therefore existed nothing which imposed upon them any duty to obey the obligation which the judgment created. In that case, though no personal service of process or summons had been effected on

(a) Buchanan v. Rucker, 1 East, 192.

(b) Schibsby v. Westenholz, L. R. 6 Q. B. 155.

(c) Copin v. Adamson, L. R. 9 Ex. 345; Bank of Australasia v. Harding, 9 C. B. 661; 19 L. J. C. P. 345; Vallée v. Dumerque, 4 Ex. 290; 28 L. J. Ex. 398.

(d) Per Amphlett and Pigott, BB. (Kelly, C.B., dissentiente), in Copin v. Adamson. (e) Meus v. Thellusson, 8 Ex. 638.

(f) L. R. 6 Q. B. 155; Godard v. Gray, ibid. p. 139. Followed in Voinet v. Barrett, 54 L. J. Q. B. 521.

defendant.

PROCEDURE.

CAP. XI.

Judgments.

PART IV. the defendants, notice had been in fact received by the defendants through the French consul in the country where the defendants resided, service having been effected in accordance with the French law at the office of the procureur-impérial. The defendants had, therefore, notice of process in the eye of the foreign law, and notice in fact; but they were not subject to the jurisdiction, and therefore the question of notice became immaterial, as there was no foundation for the action at all. In Reynolds v. Fenton, (a) a plea alleging that the defendant had received no formal notice, by service of process or otherwise, of the action, was held bad; but in that case it was not alleged that the defendant was not subject, by domicil or otherwise, to the jurisdiction, or even that he had not in fact knowledge and notice of the proceedings. The dicta, therefore, to be found in the course of the argument, to the effect that the question for the Court was whether the judgment was obtained contrary to natural justice, and that this was not shown by the plea, are sufficiently justified by the meagreness of its allegations. It is true that in Ferguson v. Mahon,(b) decided before the case last cited, a similar plea was held good, the judgment sued on being an Irish one; but there the question of jurisdiction by general subjection does not appear to have been disputed or suggested to the Court, the sole point being whether the Irish proceedings were regular. Lord Denman said that the question was whether the judgment passed under such circumstances as to show that the Court had properly jurisdiction over the party; and when it appeared that the defendant had never received notice of the proceeding, or been before the Court, it was impossible to allow the judgment to be made the foundation of an action in England. It will be observed that in this case the plea was construed as amounting to an allegation that the defendant had neither received notice in fact of the proceedings, nor constructive notice according to the regulations of a law to which he was properly subject, and the decision must not be viewed as any authority for supposing that knowledge or notice in fact are absolutely necessary, if the defendant is subject or has submitted himself to the local law, and that local law provides a substitute or equivalent for such knowledge or notice. This subjection is, in fact, the test of jurisdiction in the eye of the English law; which, as pointed out by Westlake, (c) recognises the competence of the forum rei, cer

(a) 3 C. B. 187.

(b) 11 A. & E. 179. See also Cowan v. Braidwood, 1 M. & G. 882; 2 Scott, N. R. 138; Douglas v. Forrest, 4 Bing. 686; Smith v. Nicolls, 5 N. C. 208; 7 Scott, 147; Guinness v. Carroll, 1 B. & Ad. 459. (c) Priv. Int. Law, § 380.

PROCEDURE.

CAP. XI.

tainly by domicil or residence, if not by allegiance also.(a) And PART IV. it has already been stated that a defendant who "voluntarily appears" in a foreign action is taken as having submitted himself to the jurisdiction, and is consequently bound by the Judgments. judgment pronounced by the foreign Court; although his motive in appearing may have been only the desire to protect property belonging to himself which was within the jurisdiction. or reach of the foreign Court.(b)

It has thus been seen that error in law, whether domestic, foreign, or international, is not in itself a ground on which a judgment can be reviewed in a foreign Court, unless such error involve an assumption of jurisdiction in violation of ordinary international principles, or the Court pronouncing the judgment has proceeded without due notice against a party who is neither bound nor has consented to accept any substitute for notice in fact which the Court may have deemed sufficient. So far as these requirements are based upon natural justice, the dicta that a foreign judgment contrary to natural justice cannot be recognised may be supported, but there seems no ground for extending them further. Error in law having thus been disposed of, error in fact, as a ground for impeaching a foreign Error in fact, judgment, must next be considered; and as to this it may be said shortly that a foreign judgment, both in respect of the issues of fact found and the grounds on which the findings were arrived at, is now admitted to be conclusive.(c) On this point, however, there has long been a conflict of opinion, and the question has in fact been so involved with the alleged right to examine foreign judgments on other grounds, which has just been discussed, that it is not easy to distinguish the decisions strictly applicable to it. The authorities in opposition to the now accepted opinion, that a foreign judgment is conclusive as to the facts on which it pronounces, will first be recapitulated.

examinable.

It was stated by Eyre, C.J., in Phillips v. Hunter,(d) that a foreign judgment, though it cannot be examined under ordinary Foreign judgcircumstances by an English Court, yet it is so examinable ment-when when the party who claims the benefit of it applies to an English Court to enforce it; and that under such circumstances it is treated as matter in pais, as consideration prima facie sufficient to raise a promise. It may be pointed out at once,

(a) Douglas v. Forrest, 4 Bing. 686, 703.

(b) Rousillon v. Rousillon, 14 Ch. D. 351; Voinet v. Barrett, 54 L. J. Q. B. 521, affirmed 55 L. J. Q. B. 39; De Cosse Brissac v. Rathbone, 30 L. J. Ex. 238, and ante, p. 552.

(c) Godard v. Gray, L. R. 6 Q. B. 139, 149, and infrà.

(d) 2 H. Bl. 410.