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Published online by Cambridge University Press: 27 January 2016
A Judgment inter partes has two uses in subsequent proceedings: as a defence against a plaintiff whose case is inconsistent with its correctness, or as a weapon of attack against the party condemned by it. The basis of the first use is not that the judgment made any difference to the rights of the parties, still less that the pronouncement of a court, domestic or foreign, is infallible, but that, whether or not their rights are truly as declared, that declaration will not be allowed to be contradicted.
1 General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894. The previous judgment here was French: for an exactly similar decision where it had been English, see Doe v. Huddart (1835: Ex.), 2 Cr.M. & E. 316.
2 Dupleix v. de Boven (1705) 2 Keb. 511.
3 Williams v. Jones (1845: Ex.), 13 M. & W. 628, 633, quoted with approval by Blackburn J. in Godard v. Gray (1870: Q.B.), L.E. 6 Q.B. 139, 148.
4 8 C.B.(N.S.) 95.
5 At p. 100.
6 The two are enumerated separately in the well-known catalogue given by Fry J. in Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371, and repeated by Buckley L.J. in Emanuel v. Symon (1907: C.A.), [1908] 1 K.B. 302, 309.
7 Law v. Garrett (1878: C.A.), 8 Ch.D. 26—the agreement was to refer disputes to the Commercial Court at St. Petersburg, and an action in England was stayed expressly on the analogy of agreements for arbitration, under s. 11 of the Common Law Procedure Act (17 & 18 Vict. c. 125), now reproduced in s. 4 of the Arbitration Act, 1889 (52 & 53 Vict. c. 49) under which was similarly decided Austrian Lloyd Steamship Go. v. Gresham Life Assurance Society (1903: C.A.), [1903] 1 K.B. 249, followed by Kirchner v. Gruban (1908: Ch.), [1909] 1 Ch. 413, and The Cap Blanco (1913: P.—appeal abandoned), [1913] P. 130. In Hart v. Furness, With y & Co. (1904: Nova Scotia, App.), 37 N.S.E. 74, it was even held that the courts in Nova Scotia had no jurisdiction over a dispute when it was agreed that it should be determined in England.
8 Austrian Lloyd v. Gresham Life (above).
9 Vallée v. Dumergue (1849: Ex.), 4 Ex. 290, where an English merchant having shares in a French company had in accordance with French law chosen an address in Paris. Process was served there and never in fact reached him, but he was held bound by the ensuing judgment. Similarly in Montgomery v. Liebenthal (1898: C.A.), [1898] 1 Q.B. 487, an English court upheld its own jurisdiction to proceed on service of a writ in accordance with a previous contract on the office of the London Corn Exchange coupled with the posting of a copy of the proceedings to stipulated addresses in Scotland or Ireland.
10 Tharsis Sulphur Co. v. Société des Métaux (1889: Q.B.), 58 L.J.Q.B. 435, where the contract contained an express undertaking by the French party to maintain authority to a firm in the City to accept service of English process on its behalf. A less direct illustration is Bank of Australasia v. Harding (1850: C.P.), 9 C.B. 661, where a partner failed in resisting an action on a judgment recovered in Sydney against his firm represented in accordance with the contract of partnership by its chairman. The contract was embodied in a Colonial Act and was held to have had the same effect on strangers as the Articles of Association of a Company.
11 e.g., in France service on the Procureur attached to the court: Copin v. Adamson (1875: C.A.), 1 Ex.D. 17.
12 Harbican v. Kennedy (1937: Manitoba King's Bench), [1937] 2 D.L.E. 541.
13 But such a judgment does not give validity to a judgment entered without any such confession by a court whose law dispenses with it: Grover v. Radcliffe (1890: U.S. Supr.), 137 U.S. 287.
14 Meeus v. Thellusson (1852: Ex.), 8 Ex. 638.
15 Copin v. Adamson (1874: Ex.), L.E. 9 Ex. 345—there was no appeal against this part of the decision.
16 Feyerick v. Hubbard (1902: K.B.s.), 71 L.J.K.B. 509 (action on a Relgian judgment), and Jeannot v. Fuerst (1909: K.B.s.), 25 T.L.E. 424 (action on a French judgment).
17 It was held in Anderson v. Hodgson (1747: I.H.), Mor. 4779, to be a good foundation for jurisdiction that the cause of action arose in Scotland even without the defendant having been resident there. So also in Mullins v. Ditchburne (1874: Victoria), 5 A.J.E. 119, purporting to rest on Schibsby v. Westenholz, below (New South Wales judgment enforced); but contra in Brisbane Oyster Co. v. Emerson (1877: New South Wales), Knox 80 (Queensland judgment not enforced). This point seems only to have been argued once in England, in Turnbull v. Walker (1892: Q.B.s.), 67 L.T. 767, an action on a New Zealand judgment on a contract alleged to have been made in New Zealand by an English party through his local agent. Wright J. held that this gave no jurisdiction, and this is now English law, a fortiori from the Court of Appeal's decision in Emanuel v. Symon (below).
18 4 Bing. 686, 703.
19 Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 161. In this opinion he was followed in Berry v. Sheed (1886: New South Wales), 7 N.S.W.(law) 39, a Victorian judgment was enforced, the contract sued upon having been made while the defendant was resident there, though Victorian process had been served on him in New South Wales.
20 At the risk of being obvious, it is practicable to sue on a judgment on the other side of the world where it may be impracticable to sue on the original cause of action because of the expense of witnesses.
21 [1908] 1 K.B. 302. The defence in England was in part that the partnership had been already wound up before the defendant left Australia, but this was disbelieved.
22 So also when the Rajah of Faridkote sued his own former treasurer in his own courts for defalcations committed in that office, the treasurer being then no longer present, resident or domiciled in Faridkot, it had been held that the court derived no jurisdiction from the contract having been made there, while the defendant was resident there, and having been for performance there, nor from the breach of contract or tort (whichever it might be) having taken place there—Sirdar Gurdyal Singh v. Rajah of Faridkote (1894: P.O., Lahore), [1894] A.C. 670.
23 Thus in Papadopoulos v. Papadopoulos (1929: P.D.), [1930] P. 55, the consent of the parties was held to have given no jurisdiction in nullity to a British court in Cyprus in 1914, set up under the Ottoman Capitulations by an Order in Council expressly excluding nullity from its purview. But where the foreign court had jurisdiction over the class of dispute though not over the class to which the defendant belongs, the judgment will be respected until set aside in the country of its origin. Thus in Vanquelin v. Bouard (1863: C.P.), 15 C.B.(N.S.) 341, 368, the defendant in Prance had not been a trader and so was not properly sued in the Commercial Court, but had raised no objection there and was not allowed to do so in England. If the question is whether an English court has jurisdiction the answer is naturally different: thus in Forsyth v. Forsyth (1947: C.A.), [1948] P. 125, a Scots husband in Scotland submitted through his solicitor to English magistrates, but this did not supply the jurisdiction which English legislation had withheld to order him to pay maintenance to his wife, and he could raise the point in a n English appeal, though he might not have been able to do so in Scotland.
24 Suggested by Parke B. in General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894, and by Blaokburn J. in Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 161; and so held in Barber v. Lamb (above). Burpee v. Burpee (1929: British Columbia), [1929] 2 W.W.E. 128, is cited by Read (Recognition, etc., of Foreign Judgments) at p. 160 and by Dicey, 6th ed., pp. 352, 357, as illustrative of this proposition; but there the plaintiff resisted enforcement of the court's judgment against him not on the ground of want of jurisdiction but because it was (he alleged) against the public policy of the later court to recognise it.
It should hardly have been necessary to decide that after a collision in the Dardanelles between a British and a Prussian ship the British captain's application for redress to the British Consul did not constitute submission to a tribunal convened by the Prussian Embassy in the same place without British assent—The Griefswald (1859: Adm.), Swab. 430.
25 The Gemma (1899: C.A.), [1899] P. 285, and The Dupleix (1911: P.), [1912] P. 8Google Scholar: defendants who had counterclaimed were held liable in full for what was found against them, and not merely to the extent of the arrested vessel's value.
26 General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894.
27 Forty years later Bowen L.J. suggested in Voinet v. Barrett (1885: C.A.), 55 L.J.Q.B. 39, 42, that the defendants there might have appeared in order to protect property already seized, but no breath of this has found its way into the original report.
28 1 Hem. & M. 195.
29 As summarised by Blackburn J. in Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 162.
30 Schibsby v. Westenholz (above), at p. 162.
31 34 L.T. 688.
32 At p. 689.
33 55 L.J.Q.B. 39.
34 So also Gaboriau v. Maxwell (1908: K.B.s.), The Times, Dec. 12, and Poissant v. Poissant (1941: Saskatchewan, s.), [1941] 3 W.W.E. 646, where a judgment in Manitoba waa held to bind the defendant who had appeared, since no property was yet seized, though the manifest purpose of the Manitoban proceedings was to found a garnishment in Manitoba of his pension payable there.
35 And to some extent relying on De Gosse Brissac v. Rathbone (1861: Ex.), 6 H. & N. 301, where the defendant to an action on a French judgment had indeed relied unsuccessfully on his appearance in France being due to a need to protect his property; but his argument was that this made the French judgment examinable on the merits, and the court's decision, in a few lines, was that no foreign judgment is so examinable. No point of jurisdiction was taken at all.
38 At p. 41. Simpson v. Fogo (above) was not noticed.
37 In Guiard v. de Clermont (1914: K.B.s.), [1914] 3 K.B. 145, property had indeed been seized—money had been garnished in a bank—but it was only a few pounds, and the court did not believe that that was the cause of the defendant's appearance. This was probably the reason for the similar (very briefly reported) decision of Marshall C.J. in Mayhew v. Thatcher (1821: U.S. Supr.), 6 Wheat. 129.
38 So much may be inferred from the judgment of SirSamuel Evans, P. in The Dupleix (1911: P.), [1912] P. 8, at pp. 14 and 15Google Scholar. Cheshire (4th ed., p. 107) says the contrary, relying on The Gemma (above), [1899] P. 285, where the defendants had counterclaimed; on The Joannis Vatis (2) (1922: P.), [1922] P. 213, where they had expressly contracted to submit (see pp. 222–223); and on a note in 18 B.Y.I.L. 232—3 which says: “The owners of the ship may … appear and defend the action and obtain the release of their ship by depositing … bail. If they do so they are personally liable for the full amount of any judgment given against them.” Neither the cases nor the note support his view.
39 M'Lean v. Shields (1885: Ontario, C.P.), 9 Ont.R. 699, an action in Ontario on such a judgment obtained in Manitoba.
40 Esdale v. Bank of Ottawa (1920: Alberta), 51 D.L.E. 485, an action in Alberta on such a judgment obtained in Ontario.
41 [1914] 3 K.B. 145.
42 Davies v. Price (1864), 84 L.J.Q.B. 8.
43 Ringland v. Lowndes (1864) 33 L.J.C.P. 337.
44 At p. 338.
45 Harkness v. Hyde, 8 Otto 476.
46 At P. 479.
47 So in Ex p. Indiana Transportation Co. (1917: U.S. Supr.), 244 U.S. 456, Holmes J. handed down the court's ruling to the effect that a plea of no cause of action is no waiver of a simultaneous plea to the jurisdiction.
48 22 Ch.D. 456.
49 39 Ch.D. 249.
50 At p. 252.
51 On the same page.
52 In Keymer v. Reddy (1911: C.A.), [1912] 1 K.B. 215, 219, a decision'on a protest to the jurisdiction of the English court which was overruled as unfounded.
53 In Cookney v. Anderson (1863: L.C.App.), 1 De G.J. & S. 365, an appearance coupled with a demurrer to the bill was held not to preclude the defendants from arguing on the demurrer that service of English process on them in Scotland was bad. The decision on this point was not overruled by Drummond v. Drummond (1866: Ch.App.), L.E. 2 Ch. 32.
54 6 T.L.K. 85.
55 55 L.J.Q.B. 39.
56 Compare the views (obiter) of Evershed M.R. in Dulles' Case (2) (1951: C.A.), [1951] Ch. 842, 847: “Where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst oomes to the worst, that the court has no jurisdiction to decide against him.”
57 [1915] 2 K.B. 580. Oddly enough, Boissière v. Brockner (above), 6 T.L.E. 85, though cited by both sidea in argument, wag not even mentioned in the judgments.
58 Cheshire, 3rd ed., p. 787, misunderstood one of these as a plea to the merits, but the mistake is corrected in the 4th edition, p. 605.
59 The evidence was that there is no such thing in Manx procedure as a conditional appearance, and the detailed examination of that procedure by the Court of Appeal was due to the need to explain away the entry on the Manx record that there had been no appearance. The attention paid to this point led Read (at p. 167) to suggest that a protest to the jurisdiction will constitute submission only where no conditional appearance provided for—an explanation quoted in Dicey, 6th ed., p. 358, in spite of its unlikeliness.
60 At pp. 424–5.
61 At p. 587.
62 This explanation was not suggested to the Court of Appeal in Dulles' Case (1951), [1951] Ch. 842, where Evershed M.E. cautiously (and obiter) disapproved of Harris v. Taylor (above), and Denning L.J. (also obiter) stepped round it.
63 e.g., Ocean Steamship Co. v. Queensland State Wheat Board (1940: C.A.), [1941] 1 K.B. 402; Re Dulles' Settlement (2) (1951: C.A.), [1951] Ch. 842.
64 Dulles' Case (2), above, at p. 851.
65 34 W.L.E. 606.
66 At p. 618.
67 At. p. 619.
68 The French view.
69 The American view: Hilton v. Guyot (1894: U.S. Supr.), 159 U.S. 113. As between themselves the states of the Union are bound to respect each other's judgments, if the court pronouncing them had jurisdiction, by the “full faith and credit” Article of the Constitution.
70 Michigan Trust Co. V. Ferry (U.S. Supr.), 228 U.S. 346, 356. In Ex p. Indiana Transportation Co. (1917: U.S. Supr.), 244 U.S. 456, 457, he said more carefully: “The foundation of jurisdiction is physical power.”
71 The Michigan Case, above, at p. 353.
72 Compare the remark which first appeared in th e third edition of Dicey (in which Berriedale Keith collaborated), at p. 243: “… whether his presence there is voluntary or involuntary (e.g., as a prisoner of war), and whatever his nationality (e.g., even if he is an alien enemy interned as a precautionary measure).” No authority is given for this, but it survives in the sixth edition, p. 172, and is repeated by Wolff, 2nd ed., p. 65. Though a domestic court might well assume jurisdiction over a prisoner of war it is unlikely that any other court would respect its judgment.
73 General Principle No. III, 1st ed. (1896), p. 38; 6th ed., p. 22.
74 British South Africa Co. v. Companhia de Moçambique [1892] 2 Q.B. 358; [1893] A.C. 602.
75 1 Cowp. 161, 176.
76 Tallack v. Tallack (1927: P.), [1927] P. 211.
77 p. 22; and Cheshire, 4th ed., p. 104.
78 It is true that there was also a prayer in personam for th e bringing of money into court to be dealt with there, which was refused first on the ground that the defendant had not submitted on this point, the prayer having been changed after submission, and secondly that a judgment against her could not be enforced in England and would not be enforced in Holland. If this wa s ever binding authority that “when the principles of effectiveness and of submission conflict… the principle of effectiveness prevails” (Cheshire, 4th ed., p. 103), it is no longer so since Liddell's Case (1936: C.A.), [1936] Ch. 365, where an injunction was granted against a defendant safe in America. Romer L.J. said (admittedly obiter) at p. 374: “It is not the habit of this court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed.”
79 If so, what becomes of the appearance under duress which we have already considered? A judgment delivered by a court in possession of a defendant's property is perhaps even more “effective” than if it has only his body, but that does not entitle it to respect. And if this is condemned as duress, then possession of the defendant's body is even more to be condemned.
80 1st ed., p. 48; 6th ed., p. 28.
81 1st ed., p. 49.
82 Dicey misunderstands it as obedience to the command in the judgment—1st ed., p. 48, 6th ed., p. 28–9.
83 3 East 192.
84 It was still necessary in 1837 for Lord Brougham in Don v. Lippmann (H.L., So.), 5 Cl. & F. 1, 21, to point out that the case was even stronger when the defendant was “a foreigner and is not within the jurisdiction, but is by force kept out of it before the action.”
85 Lord Ellenborough decided again in the same sense in Cavan v. Stewart (1816: N.P.), 1 Starkie N.P. 525, an action on a Jamaican judgment. Similarly in Bartlett v. Knight (1805: Massachusetts), 1 Mass. 401, a judgment given in New Hampshire against a resident of Massachusetts not served with process was held entitled to no respect despite the “full faith and credit” Article.
86 2 Dickens 587, amplified by Lord Chelmsford's reference to the registrar's book in Drummond v. Drummond (1866: Ch.App.), L.E. 2 Ch. 32, 37. The decision was misquoted in Scott v. Hough (1793: L.C), 4 Bro.C.C. 213, as a decision by Lord Thurlow that service abroad was good, and in that sense followed.
87 18 Ves. 496: the entry in the registrar's book appears at L.E. 2 Ch. 32, 38. This decision was also misquoted as authority for the validity of such service in Nichol v. Gwynn (1827: V.-C), 1 Sim. 389, and in that sense relied on together with the cases of Bourke (misquoted) and Scott. I n Fernandez v. Corbin (1829: V.-C), 2 Sim. 544, disobedience to an English subpoena served in Guernsey was held insufficient to attract the penalty of attachment.
88 2 Will. 4, c. 33, related only to certain matters; 4 & 5 Will. 4, c. 82, added others; and in 1845 Order 33 of the General Orders extended it to all. Lord Westbury L.C. in Cookney v. Anderson (1863: L.C.App.), 1 De G.J. & S. 365, thought the Order ultra vires, but this view was reversed by Drummond v. Drummond (1866: Ch.App.), L.E. 2 Ch. 32.
89 The Common La w Procedure Act, 1852 (15 & 16 Viet. c. 76), ss. 18, 19. This was not altogether an innovation: it had always been possible to outlaw an absent defendant (after distringas on his English property if he were a foreigner), and then proceed to judgment and execution on hia English property —Jackson v. Spiffall (1870: C.P.), L.E. 5 C.P. 542, 550. But this procedure can hardly have been regarded as founding a personal liability.
90 And the possibility of it did not affect the rule that limitation did not run in favour of a defendant beyond the seas—a rule based on the impossibility of serving process on him—Musurus Bey v. Gadban (1894: C.A.), [1894] 2 Q.B. 352.
91 This does not supersede the Crown Suits Act, 1865, s. 37, under which a writ of subpoena may be taken out by the Crown against a British subject with an indorsement that it is for service abroad, and may be served there without leave—Att.-Gen. v. Prosser (1938: C.A.), [1938] 2 K.B. 531.
92 L.R. 6 Q.B. 155—service of French process on a Dane in England.
93 Bischoff v. Wethered, 9 Wall. 812.
94 So in Turnbull v. Walker (1892: Q.B.s.), 67 L.T. 767, a New Zealand court had given judgment against an Englishman in circumstances where the New Zealand equivalent of Order 11 (so it was assumed) conferred jurisdiction, but Wright J. found this irrelevant. So in Deacon v. Chadwick (1901: Ontario), 1 Ont.L.E. 346, recognition was denied to a Manitoban judgment founded on process served on an Ontarian in Ontario. But it has been held in Maryland, in Harryman v. Roberts (1879), 52 Md. 64, and might be accepted here, that service of the process of one state in another which permitted such service would be as good as service in its own territory.
None of this authority was brought to the notice of Denning L.J. when he said (obiter) in Dulles' Case (2) (1951: C.A.), [1951] Ch. 842, 851: “I do not doubt that our courts would recognise a judgment properly obtained in the Manx courts for a tort committed there, whether the defendant voluntarily submitted to the jurisdiction or not; just as we would expect the Manx court in a converse case to recognise a judgment obtained in our courts against a resident in the Isle of Man on his being properly served out of our jurisdiction for a tort committed here.” It is not perhaps impertinent to regard this dictum as an example of what may happen when matters are considered which have not been argued.
95 Residence for forty days is the domestic rule in Scotland; but it was not always so. In An Englishman v. Angelo (1564), Mor. 4825, jurisdiction was assumed over an Italian casually present in Scotland and objecting; and more recently, where the defendant was a wandering Greek, residing neither in Scotland nor anywhere else, it was held that he could be served where found—Linn v. Casadinos (1881: I.H), 8 E. 849.
96 General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894.
97 12 T.L.E. 59.
98 It is true that the Englishman submitted by defending and even counterclaiming, but no attention was paid to that in the judgment. Similarly in Forbes v. Simmons (1914: Alberta, s.) 20 D.L.E. 100, an Albertan who was in British Columbia to visit his wife in hospital there was held well served with British Columbian process, and bound by the resulting judgment, though refusing to appear.
99 Stein v. Valkenhuysen (1858: Q.B.), E.B. & E. 65, approved in Watkins v. North American Land A Timber Co. (1904: H.L.), 20 T.L.E. 534, in which however it was held that if the defendant was induced to come in for a genuine declared object, the additional concealed object of serving a writ on him will not make him immune from service.
page 527 note 1 Logan v. Bank of Scotland (2) (1905: C.A.), [1906] 1 K.B. 141, 152.
page 527 note 2 Re Norton's Settlement, Norton v. Norton [1908] 1 Ch. 471, approving Egbert v. Short (1907: Ch.), [1907] 2 Ch. 205.
page 527 note 3 Fisher, Brown it Co. v. Fielding, 67 Conn. 91.
page 528 note 4 McDonald y. Mabee (1917: U.S. Supr.), 243 U.S. 90. The circumstances were that an action was begun in Texas against a defendant who was then resident and domiciled in Texas, but not present, for he was looking for a new home in Missouri. Having found one he came back to Texas for long enough to pack up, and left for good. Meanwhile he had been cited by substituted service, namely publication in a local newspaper for four successive weeks.
page 528 note 5 2 B. & Ad. 951.
page 528 note 6 This was all the “property” he had: Fry J. mistook the basis of the decision as being the possession of property within the jurisdiction—Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371.
page 528 note 7 In Don v. Lippmann (1837: H.L., So.), 5 Cl. & F. 1, 21.
page 528 note 8 In Sirdar Gurdyal Singh v. Rajah of Faridkote (1894: P.O., Lahore), [1894] A.C. 670, 685.
page 528 note 9 2 B. & Ad. 951, 955.
page 528 note 10 1 M. & G. 882.
page 529 note 11 General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894: the word used is domicile, but from its equation with residence two lines earlier it is plain that it is not meant technically.
page 529 note 12 In Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 161.
page 529 note 13 Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371.
page 529 note 14 Emanuel v. Symon (1907: C.A.), [1908] 1 K.B. 302, 309.
page 529 note 15 15 In Jay v. Budd (1897: C.A.), 77 L.T. 335, the defendant had been within—and apparently resident within—the jurisdiction when the writ was sued out, but had departed before it could be served on him. Though it was not suggested that he was evading service, the court held that substituted service on his English solicitor was rightly allowed. The question, however, was not of international jurisdiction, but only whether the plaintiff must have another writ with permission under Ord. 11 to serve it abroad, since it had been held in Wilding v. Bean (1890: C.A.), [1891] 1 Q.B. 100, that substituted service cannot be allowed of a writ issued for service in England if the defendant is not in England.
page 529 note 16 Mor. 4780—though the reverse had been held in Anderson v. Hodgson (1747: I.H.), Mor. 4779.
page 529 note 17 4 Paton 421. The question was whether the Scots courts should assume jurisdiction.
page 529 note 18 He had in fact defended on the merits, but this was not relied upon, nor even mentioned, by counsel in the Lords.
page 529 note 19 4 Bing. 686.
page 529 note 20 5 Cl. & F. 1—an action on a French judgment.
page 529 note 21 Gavin Gibson A Co. v. Gibson [1913] 3 K.B. 379, an action on a French judgment.
page 529 note 22 At p. 393.
page 530 note 23 Marshall v. Houghton (1923), [1923] 2 W.W.E. 553.
page 530 note 24 But in Dakota Lumber Co. v. Rinderknecht (1905: North Wes t Territories, App.), 2 W.L.E. 275, an American citizen resident for the last fourteen years in the North-West Territories was held not subject to the courts of South Dakota where he was not born, though his last residence in the United States had been there. Domicile is nowhere mentioned.
page 530 note 25 General Steam Navigation Co. v. Guillou (1843: Ex.), 11 M. & W. 877, 894.
page 530 note 26 Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 161.
page 530 note 27 Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371.
page 530 note 28 Turnbull v. Walker (1892: Q.B.s.), 67 L.T. 767, 769.
page 530 note 23 Emanuel v. Symon (1907: C.A.), [1908] 1 K.B. 302, 309.
page 530 note 30 British Nylon Spinners v. Imperial Chemical Industries (1952: C.A.), [1952] 2 All E.R. 780, 782.
page 530 note 31 Gavin Gibson & Co. v. Gibson (1913: K.B.s.), [1913] 3 K.B. 379, 388.
page 530 note 32 4 Upper Canada Appeals 267, adopting the opinion of Blackburn J.
page 530 note 33 Dakota Lumber Co. v. Rinderknecht, above, note 24, is sometimes quoted as contrary to this, but there it was thought that the American would be subject to the Federal Courts by reason of his nationality.
page 530 note 3 Joyce v. Director of Public Prosecutions (1946: H.L.), [1946] A.C. 347.
page 531 note 35 At p. 155.
page 531 note 36 4th ed., p. 607.
page 531 note 37 Cheshire's pathetic Romanian (4th ed., p. 607) may draw some comfort from the fact that any decision of his national courts would probably be contrary to natural justice.
page 531 note 38 [1930] A.C. 688.
page 531 note 39 67 L.T. 767, 769.
page 531 note 40 In modern Admiralty practice proceedings begin with a writ and not with arrest, but such a writ nailed to the mast of a foreign vessel gives jurisdiction (to the extent of their rights in her) over all claimants as before—The Nautik (1895: P.), [1895] P. 121Google Scholar.
page 531 note 41 Galbreath v. Cunningham (1626: I.H.), Mor. 4813; Blantyre v. Forsyth (1626: I.H.), Mor. 4813; Hepburn v. Monteith (1627: I.H.), Mor. 4814; Wilkie v. Muirhead (1629: I.H.), Mor. 4814; Douglas v. Cunninghame (1642: I.H.), Mor. 4816. In all these cases the defendant was a Scot by origin though domiciled abroad. In two cases, however, in the same circumstances, jurisdiction was declined—Case of Brog's Heir (1639: I.H.), Mor. 4816, and Broomley v. Frazer (1682: I.H.), Mor. 4817.
page 532 note 42 London & North, Western Ry. v. Lindsay, 3 Macq. 99.
page 532 note 43 Kibbe v. Kibbe (1786: Connecticut), Kirby 119 (attachment of a pocket handkerchief); and Kilburn V. Woodworth (1809: New York), 5 Johns. 37 (attachment of a bedstead). The judgment sought to be enforced had in each case been obtained in Massachusetts.
page 532 note 44 4 Bing. 686.
page 532 note 45 At p. 702.
page 532 note 46 This doctrine must not be confused with the assumption by most States of exclusive jurisdiction to decide questions of title to their own land, which was the basis of Lamb v. Heath (1624: I.H.), Mor. 4812, and also of Ord. 11, r. 1 (a).
page 532 note 47 Schibsby v. Westenholz (1870: Q.B.), L.E. 6 Q.B. 155, 163.
page 532 note 48 Fry J., also obiter, in Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371, found the question still in doubt.
page 532 note 49 [1908] 1 K.B. 302.
page 533 note 50 15 & 16 Vict. c. 76, s. 16; now E.S.C., Ord. 9, r. 8. According to Black-burn J., in Newby v. Van Oppen (1872: Q.B.) L.E. 7 Q.B. 293, 296, this only re-enacted the common law. It s silence about the nature of the corporation has been held to mean that both English and foreign corporations are contemplated (Haggin v. Comptoir d'Escompte de Paris (1889: C.A.), 23 Q.B.D. 519); but its silence about the place of service does not imply service beyond the jurisdiction (Ingate v. Lloyd Austriaco (1858: C.P.), 4 C.B. (N.S.) 704), for such arrogated power requires express words.
page 533 note 51 The statute need not be public nor even English, so long as it is an Imperial Act. Thus in Palmer v. Caledonian Ry. (1892: C.A.), [1892] 1 Q.B. 823, service was held bad on the English office of a Scottish railway company set up by an Act of Parliament incorporating by reference the Companies Clauses (Scotland) Act, 1845, which last Act provided that service must be at the company's principal place of business. This Act for Scotland would not of itself prevent service on the English branch of a Scots company, but by incorporation in an Imperial Act (though private) it had that effect for this company.
page 533 note 52 Newby v. Van Oppen (1872: Q.B.), L.E. 7 Q.B. 293, 297.
page 533 note 53 Mackereth v. Glasgow & South Western Ry. (1873: Ex.), L.E. 8 Ex. 149.
page 533 note 54 Newby v. Van Oppen, above, at p. 296.
page 533 note 55 Otherwise it. might be impossible to appear by attorney and protest the jurisdiction, for the attorney could be served on the spot.
page 533 note 56 Newby v. Van Oppen, above, at p. 295.
page 534 note 57 Newby v. Van Of pen, above, at p. 295.
page 534 note 58 Sugden, at (1928) 72 S.J. 603, 604, does not notice the first point and divides the third into two.
page 534 note 59 Badcock v. Cumberland Gap Park Co. (1892: Ch.) [1893] 1 Ch. 362; but similar activities in London on behalf of a moribund Eussian company were held to make it amenable because that was the only “business” it did—Sabatier v. Trading Co. (1926: Ch.), [1927] 1 Ch. 495.
page 534 note 60 Nutter v. Messageries Maritimes (1885: Q.B.), 54 L.J.Q.B. 527.
page 534 note 61 Grant v. Anderson & Co. (1891: Q.B.; 1891: C.A.), [1892] 1 Q.B. 108—the principals in this case were a firm, not a company, but the point at issue was the same.
page 534 note 62 Okura A Co. v. Forsbacka Jernverks A/B. (1914: C.A.), [1914] 1 K.B. 715.
page 534 note 63 A/S. Dampskib Hercules v. Grand Trunk Pacific Ry. (1911: C.A.), [1912] 1 K.B. 222.
page 535 note 64 Allison v. Independent Press Cable Association of Australasia (1911: C.A.), 28 T.L.E. 128.
page 535 note 65 Saccharin Corporation v. Chemische Fabrik von Heyden A/G. (1911: C.A.), [1911] 2 K.B. 516.
page 535 note 66 In the same circumstances service had been held bad in The Princesse Clémentine (1896: P.), [1897] P. 18Google Scholar, but that was because service had been effected on a servant of the agent (a firm) and not on any partner, and therefore in no sense on a servant of the foreign company itself. This case was cited, and the Saccharin Case (above) was not cited in Donovan v. North German Lloyd (1932: Ir. s.), [1933] Ir.K. 33, where the defendants were held not amenable in spite of their nam e being blazoned across their Irish agent's premises and having a number in the telephone directory: this misleading behaviour did no worse than lose them their costs.
page 535 note 67 At p. 520. A case well within the border was La Bourgogne (1899: H.L.), [1899] A.C. 431, where the French principal paid for its London agent's office.
page 535 note 68 The Lalandia (1932: P.), [1933] P. 56Google Scholar.
page 535 note 69 Thames & Mersey Marine Insurance Co. v. Societa di Navigazione a Vapore del Lloyd Austriaco (1914: C.A.), 111 L.T. 97, 98. The agent was held to be doing the foreign principal's business by issuing tickets, making contracts of carriage and insuring goods carried “in a separate part of the agent's building, by a separate staff of clerks and with the use of a special notepaper bearing the name of the Austrian Lloyd Company. “Where they did the same sort of thing, but as brokers merely and with no special place or staff allotted to their principals they were held to be merely selling their principals' contracts and the latter were not amenable—The Holstein (1936: P.). 155 L.T. 466.
page 536 note 70 Haldane v. York Building Co. (1724: I.H.), Mor. 4818 (Scottish branch of English corporation).
page 536 note 71 Lloneux, Limon & Co. v. Hongkong & Shanghai Banking Corporation (1886: V.-C), 33 Ch.D. 446 (London “agency” of Hongkong bank).
page 536 note 72 In United States v. Imperial Chemical Industries (1951: U.S. Dist.), 100 Fed. supra, 504, the presence within the jurisdiction of a wholly owned subsidiary was held to subject the parent company. In British Nylon Spinners v. Imperial Chemical Industries (1952: C.A.), [1952] 2 All B. E. 780, this point was not challenged.
page 536 note 73 Hoggin v. Comptoir d'Escompte de Paris (1889: C.A.), 23 Q.B.D. 519 (English branch of a French bank).
page 536 note 74 Mackereth v. Glasgow & South Western Ry. (1873: Ex.), L.E. 8 Ex. 149.
page 536 note 75 Dunlop v. Cudell (1902: C.A.), [1902] 1 K.B. 342.
page 536 note 76 At p. 348.
page 537 note 77 Littauer Glove Corporation v. F. W. Millington (1920) (1928: K.B.s.), 44 T.L.R. 746, an action on a New York judgment against an English company. This is the only case on a foreign judgment against an English company in these circumstances, and the explanation is sometimes given that England is not willing to accord to other countries the jurisdiction which she claims for herself. This derives no support from the judgment itself.
page 536 note 78 Ord. 48A, rr. 1 and 3. Until this Order was compiled by consolidation of the various rules concerning partnerships the matter of these two rules was contained in Ord. 16, r. 14, and Ord. 9, r. 6, and because it was not there qualified by the need to carry on business in England, the courts read into it the qualification that partners neither domiciled nor resident in England could not be affected by service on an agent (Grant v. Anderson (1891: Q.B.), [1892] 1 Q.B. 108, 111–15—where, however, it was also held that the agent's activities in England did not amount to business), or on the manager of the English head office (Russell v. Cambefort (1889: C.A.), 23 Q.B.D. 526), or on another partner if only casually present in England (Western National Bank v. Perez & Triana (1890: C.A.), [1891] 1 Q.B. 304). These two decisions were twice distinguished by Cave J. in 1891, in Lysaght v. Clark [1891] 1 Q.B. 552, and in Heinemann v. Hale [1891] 2 Q.B. 83, where it was held that service on a partner resident in England subjected the firm; but the second of these went to the Court of Appeal and was there reversed. Since the enactment of Ord. 48A these decisions are all obsolete (Worcester City & County Bank v. Firbanks, Pauling & Co. (1894: C.A.), [1894] 1 Q.B. 784), though this does not seem to have been always understood.
page 536 note 79 Ord. 48A, r. 8.
page 537 note 80 Except that a simple procedure is provided for making partners in England personally liable after a judgment against the firm—Ord. 48A, r. 8.
page 537 note 81 In Hall v. Lanning (1875: U.S.Supr.), 1 Otto 160, it was held that service on a partner after dissolution and during winding up would not bind partners abroad, each partner's authority for the other being limited to the actual winding up. The implication of this is that, given authority in the partner served, the others would be affected.
In England since 1920, Ord. 9, r. 8A, has permitted service on an agent in England of individual foreign principals, more or less as r. 8 permits service on the agent of (inter alia) foreign companies; but with two qualifications, that the action must relate to a contract made by the agent, and that such service is not to be allowed of course. There have been no decisions under this rule, but it seems from the Memorandum in the White Book that the exercise of the judge's discretion would depend on the standing of the agent, and that like r. 8 this rule is pure machinery, not concerned with the principal's amenability.
page 537 note 82 D'Arcy v. Ketchum (1850: U.S.Supr.), 11 How. 165—despite the “full faith and credit” Article.
page 537 note 83 s. 407 (1) (c) of the present Companies Act, requiring foreign companies to file with the Registrar an address in,the United Kingdom for service of process, was regarded in Employers' Liability v. Sedgwick Collins (1926: H.L.), [1927] A.C. 95, as a requirement of voluntary submission—so expressly per Lord Parmoor, at p. 115.
page 537 note 84 Logan v. Bank of Scotland (1904, 1905: C.A.), [1904] 2 K.B. 495; [1906] 1 K.B. 141.
page 538 note 85 It is unlikely that an English court would agree with Holmes J. that this is a question for the law of the state in which the proceedings were begun—Michigan Trust Co. v. Ferry (1913: U.S.Supr.), 228 U.S. 346.
page 537 note 86 Burns v. Munro (1844: I.H.), 6 D. 1352.
page 537 note 86 Sultan of Johore v. Abubakar (1952: P.C., Singapore), [1952] A.C. 318, where this was assumed: the question was whether the further proceedings were to be treated as an appeal.
page 537 note 87 Guiard v. de Clermant (1914: K.B.s), [1914] 3 K.B. 145, an action on a French judgment.
page 537 note 88 Re a Debtor (1939: C.A.), [1939] 2 All E.R. 400, did not decide this, for the only effect of the appeal was to alter the description of the payment adjudged from “damages” to “refund,” so as not to attract taxation, and this was a matter of indifference to the judgment debtor.
page 537 note 90 Griendtoveen v. Hamlyn (1892: Q.B.), 8 T.L.E. 231. This is the obvious meaning of the third rule enunciated by Fry J. in Rousillon v. Rousillon (1880: Ch.), 14 Ch.D. 351, 371, and quoted by Buckley L.J. in Emanuel v. Symon (1907: C.A.), [1908] 1 K.B. 302, 309, that the court has jurisdiction over a person who “in the character of plaintiff has selected the forum in which he is afterwards sued.” There is no need to interpret these words, as Cheshire has (1st ed., p. 496), followed now by Dicey (6th ed., p. 353), as “in which he would sue.”
page 537 note 91 Eschger, Ghesquiver & Co. v. Morrison, Kehewich & Co. (1890: C.A.), 6 T.L.E. 145.
page 537 note 92 South African Republic v. La Compagnie Franco-Belge de Chernin de Fer du Nord (1897: C.A.), [1897] 2 Ch. 487, where an action for appointment of a new trustee in place of one deceased was held not to be submission by the plaintiff to a “counterclaim” for damages for libel, even though the libel was connected with the trust. The plaintiff was a foreign sovereign, but all three Lords Justices decided as if it were a private person, and in Factories Insurance Co. v. Anglo-Scottish General Commercial Insurance Co. (1913: C.A.), 29 T.L.E. 312, a similar result was reached where the plaintiff was a private foreigner. So also Thompson v. Whitehead (1862: I.H.), 25 D. 331, which decided that the jurisdiction from reconvention did not extend so far as to enable the Scots defender in an action on an English judgment to cite the English pursuer in an action for damages for assault. Quaere, whether an action ever gives jurisdiction to entertain a cross-action, even if it could have been (but was not) made a counterclaim—Yorkshire Tannery v. Eglington Chemical Co. (1884: Ch.), 54 L.J.Ch. 81.
page 538 note 93 Michigan Trust Co. v. Ferry (1913: U.S.Supr.), 288 U.S. 346—decided as a question of Michigan law.
page 538 note 94 Robinson V. Ward's Executors (1811: N.Y.), 8 Johns. 86.
page 538 note 95 Fenton v. Garlick (1811: N.Y.), 8 Johns. 194.
page 538 note 96 Exp. Indiana Transportation Co. (1917: U.S.Supr.) 244 U.S. 456.