[HOUSE OF LORDS.]

AND

Bankruptcy - Jurisdiction - Foreigner resident Abroad but Trading in England - Act of Bankruptcy - "Debtor" - Assignment executed Abroad for Benefit of Creditors generally - Notice of Suspension of Payment - Bankruptcy Act, 1883 (c. 52), s. 4, sub-s. 1 (a), (h); s. 6, sub-s. 1 (d).

The Court of Bankruptcy has no jurisdiction to make a receiving order against a foreigner resident abroad who, without coming into the jurisdiction, has in this country had a place of business, contracted debts, and acquired assets, and has executed abroad an assignment of his property for the benefit of his creditors generally. Such a person is not "a debtor" within the meaning of the Bankruptcy Act, 1883, s. 6, sub-s. 1 (d).

The decision of the Court of Appeal, reported as In re A. B. & Co., [1900] 1 Q. B. 541, affirmed.

THE respondent company consisted of two American subjects who resided and traded at Baltimore, U.S. Through their manager, Geddes, they carried on a branch of their business in England and had assets there, but they had never resided in England. In December, 1899, the respondents executed in Baltimore a deed of assignment of all their property to Dulaney, their manager there, in trust to pay their debts. In January, 1900, Geddes wrote to the appellant (to whom the respondents owed a large sum for debts contracted in England) that he could not pay. The appellant, who resided in England, presented a petition for a receiving order against the respondents (Devries and wife), alleging that they had committed acts of bankruptcy, namely, (1.) given notice that they had suspended or were about to suspend payment of their debts; (2.) made an assignment of their property to a trustee for the benefit of their creditors generally. The registrar dismissed the petition with costs, and this decision was affirmed by the Court of Appeal (Lindley M.R., and Rigby and Vaughan Williams L.JJ.). (1)

(1) [1900] 1 Q. B. 541.

By the Bankruptcy Act, 1883 (c. 52), s. 4, sub-s. 1, "A debtor commits an act of bankruptcy in each of the following cases:-

"(a) If in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally: ....

"(h) If the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts."

By s. 6, sub-s. 1, "A creditor shall not be entitled to present a bankruptcy petition against a debtor unless - ....

"(d) The debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England."

Aug. 2. Sir R. T. Reid, Q.C., and Herbert Reed, Q.C. (Muir Mackenzie with them), for the appellant. The respondents were debtors within the meaning of ss. 4, 5, and 6 of the Bankruptcy Act, 1883. Sect. 4, sub-s. 1, (a), (b) and (c), specifies as acts of bankruptcy certain acts if committed "in England or elsewhere." It is not contended that the territorial law will bind people who are not within the jurisdiction, but for the purposes of bankruptcy the respondents were within the jurisdiction, as within a year of the bankruptcy petition they had a place of business in England. If the foreigner is here he can be served; if not there are rules made for service abroad. A foreigner may be served with a writ and is liable to execution for debt. Bankruptcy is nothing more than statutory execution, and from an international point of view there is no difference between an individual execution and an equitable cessio bonorum or bankruptcy. An English bankruptcy would be no answer to a claim for debt in America, nor would a colonial or foreign bankruptcy be a good plea here. There are many cases of double bankruptcy. Doubtless bankruptcy is a status: but a status in England and nowhere else. The only object is to prevent the scramble of a cessio bonorum: there is no interference with international comity in making a foreigner

bankrupt. The respondents are "debtors" within the meaning of the Act. They come clearly within s. 6 of the Act of 1883, of which, though the words are negative, the effect is positive. No person is to present a petition unless within a year the debtor has had "a place of business in England." The respondents had such a place. The decision below makes s. 6, sub-s. (d), meaningless.

[LORD DAVEY referred to Lindley on Companies, p. 622 and p. 652, with respect to foreign companies with an office in this country.]

The procedure in bankruptcy is analogous to that in winding up; and a winding-up order has been made of an Australian company with an office in London: In re Commercial Bank of South Australia (1); and the pendency of a foreign litigation does not affect the jurisdiction: In re Matheson Brothers, Limited. (2) An instance of a foreign company so wound up is the Mexican and South American Mining Co. (3); Madrid and Valencia Ry. Co. (4)

[LORD DAVEY referred to Gibbs & Sons v. SociŽtŽ des Metaux. (5)]

The broad proposition is that those who are liable to English process are liable to bankruptcy. There is a "commercial" domicil for this purpose, and those who enjoy liberty to trade must be amenable to bankruptcy - the inevitable issue of unsuccessful trade. There is no reason why foreigners should enjoy the exceptional privilege of exemption from the bankruptcy laws.

The cases before the Act of 1883 are in strictness irrelevant. That Act was intended as a code, and its scheme is different from that of the Act of 1869. Sect. 9 deals with the receiving order - a new element in the law. A receiving order does not at once alter status, and thus that argument is not available to the respondents. The official receiver is in the position of a receiver in the Court of Chancery. The effect of the Act of 1883, in the words of Brett M.R. in Ex parte Reynolds (6), is

(1) (1886) 33 Ch. D. 174.

(2) (1884) 27 Ch. D. 225.

(3) (1858) 26 Beav. 172.

(4) (1849) 3 De G. & Sm. 127.

(5) (1890) 25 Q. B. D. 399.

(6) (1885) 15 Q. B. D. 169, 186.

that "the whole previous legislation was swept away: the whole thing was made a tabula rasa." This being so, the reasoning in Ex parte Pearson (1), founded on Ex parte Blain (2), falls to the ground, and the earlier case, which the Court of Appeal followed, was wrongly decided. Ex parte Blain (2) was founded on s. 6 of the Bankruptcy Act, 1869, which is substantially different from s. 4 of the Act of 1883, read in conjunction with s. 6 (d). These sections expressly provide, as the Act of 1869 did not, for the case of a foreigner, as the debtor need not be domiciled if he has "a place of business in England." Moreover, both in Blain's case and Pearson's case the meaning of the term "debtor" is unduly limited. There is no authority for saying that the locus of the act of bankruptcy is the test. In Ex parte Crispin (3), where both petitioning creditor and debtor were foreigners, the question did not directly arise; but the observations of Mellish L.J., that a foreigner may be made a bankrupt here, are in the appellant's favour: see also Ex parte Pascal. (4) The Court of Appeal have in effect added to the statutory conditions by requiring that the act of bankruptcy must be committed here; whereas the Act says "in England or elsewhere." That the notice of the assignment made at Baltimore constituted an act of bankruptcy is shewn by Crook v. Morley. (5)

C. A. Russell, Q.C., and Danckwerts, Q.C. (A. H. Carringtonwith them), for the respondents. There is absolutely no authority for the proposition that a foreigner who has never been in this country is amenable to bankruptcy jurisdiction. To come within the process, the foreigner must either commit an act of bankruptcy here, or, having committed the act elsewhere, come to this country: see 1 Cooke on Bankrupt Laws, ch. 3, s. 4. There is nothing in later legislation or decisions to qualify this principle. Doubtless the status of bankruptcy is only a status in this country, but the man must be here for it to attach to him. This has been the rule in all the decisions from 21 Jac. to our own time, and is embodied in the reference found in the

(1) [1892] 2 Q. B. 263.

(2) (1879) 12 Ch. D. 522.

(3) (1873) L. R. 8 Ch. 374.

(4) (1876) 1 Ch. D. 509.

(5) [1891] A. C. 316.

Bankruptcy Acts, including that of 1849, to "aliens and denizens," who for the first time were left out in the statute of 1869. In Ex parte Blain (1) the alleged act of bankruptcy was committed here, though, as in this case, the person proceeded against had not been in the country. But Brett L.J. says (2) distinctly that a non-resident foreigner cannot be made a bankrupt. In Ex parte Crispin (3) the debtor was in England and the act committed here: see also Ex parte O'Loghlen. (4) Further, there was no authority to Geddes to give notice of the suspension. In no case can the proceedings be of avail against the respondent, Mrs. Devries, who is a married woman not trading separately from her husband; and the Married Women's Property Act, 1882, does not apply.

Sir R. T. Reid, Q.C., in reply. The respondents' argument deprives of meaning the words "in England or elsewhere," and makes this country a sort of Alsatia, in which foreigners, if they are so minded, may cheat their creditors wholesale.

The House took time for consideration.

EARL OF HALSBURY L.C. My Lords, in this case the broad question arises whether a foreigner, who has never been in this country and has himself personally done no act within the jurisdiction of the Bankruptcy Court of this country, can be made bankrupt by reason of his having traded through an agent in this country, and having done an act in his own country which, if he had done it here, would undoubtedly be an act of bankruptcy. [His Lordship stated the facts.]

My Lords, the question is not a new one, and I think it has been uniformly decided that under such circumstances our bankruptcy law does not apply.

The question has been doubtless argued that the earlier decisions under the Act of 1869 are no longer decisive of the question, since the Act of 1883 uses different language, and in fact makes a different provision from that which was involved in the earlier statute.

(1) 12 Ch. D. 522.

(2) 12 Ch. D. at p. 529.

(3) L. R. 8 Ch. 374.

(4) (1871) L. R. 6 Ch. 406.

My Lords, I think the whole question must turn upon the language of the two statutes. I am by no means prepared to say that it might not be a reasonable thing to apply the English law of bankruptcy to a trader who, though himself personally abroad, exercised a trade through the instrumentality of an agent, and possessed assets in this country capable of being reached by bankruptcy administration. But a court of law has nothing to do with the reasonableness or unreasonableness of a provision, except so far as it may help them in interpreting what the Legislature has said. And although I think it might be very plausibly contended that if a trader chose by agent to come and engage in trade he ought to be made responsible, when he is unable to pay his debts, to the ordinary administration of the English law, since he had both property to be administered and had carried on his trading adventure in this country; on the other hand it must be admitted that bankruptcy and its incidents are intended to operate upon all the property that a defaulting debtor possesses, and further that the debtor himself is intended to be subject to an alteration of status by the fact of adjudication.

As I have said, however, I do not think it is the function of a court of law to choose between the alternatives presented by such considerations. If the law has intended, and has expressed its intentions, that a foreigner may be made a bankrupt under the circumstances of this case, no Court has any jurisdiction to disregard what the Legislature has enacted. And if, on the other hand, it is manifest that the language of the statute does not reach the case supposed, no Court has jurisdiction to enlarge the ambit of English legislation beyond what the Legislature has permitted.

I think the judgments of James L.J. and Sir George Mellish lay down a broad substantial rule in dealing with such questions, which I should be sorry to see departed from. English legislation is primarily territorial, and it is no departure from that principle to say that a foreigner coming to this country and trading here, and here committing an act of bankruptcy, is subject to our laws and to all the incidents which those laws enact in such a case; while he is here, while he is trading,

even if not actually domiciled, he is liable to be made a bankrupt like a native citizen. And so, an Englishman by reason of his nationality is subject to the laws of his Sovereign wherever he may be. But the territoriality, so to speak, of the bankruptcy law is by necessary inference imported into both of the Acts to which I have referred, by the generality of its phrases. The words "debtor" and "creditor" certainly cannot be sufficient to give jurisdiction to the English Court of Bankruptcy, because if unlimited they would give jurisdiction all over the world in respect of debts, petitions, or acts of bankruptcy committed anywhere; and it is a familiar maxim of the law, "Extra territorium jus dicenti non impune paretur."

Once it is admitted that a limit must be placed upon those words, it must follow that the limit must be "debtor" and "creditor" respectively who are subject to the jurisdiction of the English bankruptcy law. And this is not an assuming of the question or a mere inverting of the proposition, because if one sees what jurisdiction is expressly created it will be seen that the limitation to the English bankruptcy jurisdiction is necessarily local. It does not include Great Britain. It is limited in its terms to England; and I think it would be impossible to suppose that if the Legislature had intended so broad a jurisdiction as is contended for here, it would not have conferred it by express enactment.

The whole argument, I think, depended upon the generality of the word "debtor." I will deal hereafter with the question of whether the Bankruptcy Act of 1883 has made any difference in this respect. But the sixth section of the Act of 1869 came under review before Lord Selborne and Sir George Mellish in 1873, and in that judgment I find that those very learned judges were of opinion "that a foreigner domiciled in England, and not carrying on trade in England, who quits England without having committed an act of bankruptcy, cannot be made a bankrupt upon an alleged act of bankruptcy committed out of England." "We think that the Legislature" (the judgment continues) "cannot have intended to enact that if a foreigner who is not subject to the laws of England was something in his own country which may be perfectly lawful and

innocent by the laws of that country, the effect should be that his property should be vested in a trustee in England for the benefit of his creditors." Their Lordships then considered the effect of particular acts which were made acts of bankruptcy when committed out of England. "The first is that a debtor has, in England or elsewhere, made a conveyance or assignment of his property to a trustee for the benefit of his creditors generally. This seems clearly intended to relate to a conveyance which is to operate according to English law, which a conveyance executed by a domiciled Englishman, although out of England, may do; but a conveyance executed by a domiciled foreigner in his own country must necessarily operate according to the foreign law, and we think it was never intended that such a conveyance should be an act of bankruptcy. The second is, that the debtor has in England or elsewhere made a fraudulent conveyance, &c., of his property or any part thereof. This clearly means, and has always been interpreted as meaning, fraudulent by the law of England, and therefore cannot properly apply to a conveyance which is executed in, and is to operate according to the law of, a foreign country": Ex parte Crispin, In re Crispin. (1)

My Lords, the whole of the reasoning of the learned judges in that case seems to me so cogent that, if the case was to be decided upon the Act of 1869, I confess I should not have been able to entertain a doubt on the subject. But the facts in Ex parte Crispin (1) raised a different question, and it might be said that the opinions, however strongly expressed in that case, were not necessary for its decision, since it turned upon the fact that no act of bankruptcy had been committed in this country.

However, the question in debate came before a Court consisting of James L.J., the late Master of the Rolls (Lord Esher), and Cotton L.J.; and upon principles which, I think, were established by Ex parte Crispin (1), they held, in terms, that an act of bankruptcy must be a personal act or default, and it cannot be committed through an agent nor by a firm as such; and that the English statute could only affect English

(1) L. R. 8 Ch. 374, 379.

subjects or foreigners who come, either permanently or temporarily, within the allegiance of the English Crown: Ex parte Blain, In re Sawers. (1)

I do not think anything can be gained by referring further to Ex parte Blain. (1) I entirely agree with the reasoning of all the three learned judges who constituted the Court, and it only remains to consider whether the Act of 1883 has made any difference in the law. That exact question came before the Court of Appeal in 1892, and Lord Esher, Fry L.J. and Lopes L.J. decided, without any doubt, that upon the question now under debate, the Act of 1883 had made no difference.

The whole argument there turned on s. 6, sub-s. (d), but the Court pointed out (I think with irresistible force) that s. 4, which enacted what acts were to be acts of bankruptcy, used the word "debtor"; and the same argument, which was decisive on the earlier Act, appears to me to be decisive here. The word is general; some limitation must be placed upon it, and sub-s. (d) of s. 6 has no relation to, and cannot give any artificial meaning to the word "debtor" in s. 4. As Lord Esher pointed out, s. 4 states affirmatively what are to be acts of bankruptcy. Sect. 6 is a negative section, and does not in any way affect the construction of s. 4.

Fry L.J. points out that the word "debtor" in sub-s. 1 (g) of s. 4 does not mean a debtor all the world over, but that it means only a debtor who is subject to the law of England, and that you must find such a debtor before an act of bankruptcy can be committed. And he goes on to add what in my view is perfectly well founded, that the decision in Ex parte Blain (1) was based not on the particular words of the bankruptcy statute then in force, but upon general principles applicable to the construction of all statutes: In re Pearson, Ex parte Pearson. (2)

My Lords, it would, I think, be a serious thing to overrule so strong a body of judicial authority dealing with this very question. These decisions have been given many years ago, and in my view it is impossible without express legislation on the subject to lay down any other rule than is deducible from

(1) (1879) 12 Ch. D. 522.

(2) [1892] 2 Q. B. 263.

all these various decisions; and in view of the opinion I entertain upon that subject, I move your Lordships that this appeal be dismissed with costs.

LORD MACNAGHTEN. Mr Lords, I have had the advantage of reading in print the opinion which has just been delivered by my noble and learned friend on the woolsack, and also the opinion which will presently be delivered by my noble and learned friend Lord Davey. I agree with them, and I have nothing to add.

LORD DAVEY. My Lords, the respondents are citizens of the United States domiciled and residing in the State of Maryland, but for some years they have carried on business and had an office in this country. The appellant is a creditor of the respondents, and has sued in the Court of Bankruptcy for a receiving order against them. The learned judges in the Court of Appeal have held that the case was covered by authority binding upon them, and confirmed the order of the registrar dismissing the application. I agree with the learned judges in thinking that if Pearson's Case (1) is rightly decided, the case is concluded against the appellant.

My Lords, in the view which I take of the law, it is essential to consider whether the alleged act of bankruptcy was committed in this country or abroad. The facts are these: on December 18, 1899, the respondents executed an assignment of all their property to one Dulaney, in trust for their creditors. Dulaney on the following day wrote to Geddes, the manager in this country of the respondents' business, instructing him not to pay the creditors of the respondents whose debts were incurred before December 18, and these instructions were communicated to one or more of the creditors. It was argued that this was a notice by the respondents to their creditors that they had suspended, or were about to suspend, payment of their debts within the meaning of s. 4, sub-s. 1 (h), of the Bankruptcy Act, 1883. I am not of that opinion; I think there is no evidence of any direct authority from the respondents to give those instructions, or give any notice to the

(1) (1892) 2 Q. B. 263.

effect alleged, and that the instructions given by Dulaney must be taken to have been given by him as assignee of the business and property, and not as agent for the respondents. The only act which can be relied on as an act of bankruptcy is the assignment, which was executed in Baltimore, and was intended to have effect according to the law of Maryland, and not that of this country.

Now, what is the law applicable to this state of facts? My noble and learned friend has referred to the case of Ex parte Crispin (1), decided by Lord Selborne and Mellish L.J. in the year 1873 under the Act of 1869. I will not trouble your Lordships by reading again the passages from the judgment of the Court delivered by the Lord Justice, which have already been read. It was there laid down that a foreigner trading in England is subject to the bankruptcy law, but that it is the act of bankruptcy which gives the Court jurisdiction, and that in the case of a foreigner that act of bankruptcy must be committed in this country or be an act intended to operate according to the law of this country.

It was contended that the Lord Justice's observations were not applicable to the case of a foreigner carrying on trade in England. I do not think so. It was not necessary to deal with that case for the purpose of the decision, and the Lord Justice's remarks are not pointed to it. But I think the principle enunciated so clearly and fully in his judgment is equally applicable whether the foreigner be brought within the reach of the bankruptcy law by his residence in this country, or from the fact of his trading here.

In Ex parte Pascal (2) it was decided by the Court of Appeal (including Mellish L.J.) affirmatively that a debtor summons may be taken out against a foreigner who is at the time in England although the debt was contracted abroad.

In Ex parte Blain (3), decided in 1879, also under the Act of 1869, it was held that the Court of Bankruptcy has no jurisdiction to make an adjudication against a foreigner domiciled and resident abroad who has never been in England, but is a

(1) L. R. 8 Ch. 374.

(2) 1 Ch. D. 509.

(3) 12 Ch. D. 522.

member of an English firm which has traded and contracted debts in England. The act of bankruptcy relied on was the levy of an execution by writ of fi. fa. on the goods of the firm. It was held that this was not an act of bankruptcy by the foreign partners of the firm, for that a firm as such cannot commit an act of bankruptcy, and such an act must be the personal act or personal default of the person who is to be made a bankrupt. I have some doubt whether the foreigners might not have been held responsible for the default of their partners in the course of carrying on the business. But, whether that be so or not, my doubt does not affect the case before your Lordships. Brett L.J. repeated what had been decided in Ex parte Crispin (1): "It is the act of bankruptcy which gives the Bankruptcy Court jurisdiction, and unless that act be committed in England, if the debtor is a foreigner and not domiciled in England, the English Court has no jurisdiction over him."

Such was the state of the law before the Act of 1883 was passed. It is contended that there is something in that Act which has altered the law as laid down in the cases to which I have referred, and what is chiefly relied on is s. 6. That section provides that a creditor shall not be entitled to present a bankruptcy petition against a debtor unless (inter alia) (d) the debtor is domiciled in England, or within a year before the date of the presentation of the petition has ordinarily resided or had a dwelling-house or place of business in England. It was argued that this was equivalent to an enactment that the Court shall have jurisdiction over a foreigner who within a year has had a place of business in England. The first observation that occurs to one on this provision is that it is negative and restrictive. It says what are the conditions in the absence of which the Court cannot exercise its jurisdiction, but does not confer any new or increased jurisdiction. But, further, assuming (as I think is the fact) that the Court has a limited jurisdiction over foreigners residing abroad but trading in this country, there is no provision in the Act which purports to alter or has the effect of altering the law as to the conditions

(1) L. R. 8 Ch. 374.

on which or the limits within which that jurisdiction should be exercised. If, therefore (as I also think), one of the conditions and limitations on the exercise of bankruptcy jurisdiction against a foreigner domiciled and resident abroad is that the act relied on as an act of bankruptcy must have been done by the bankrupt within the jurisdiction, or at any rate (which is sufficient for the present purpose) if the execution of an assignment of his property by a foreign debtor in his own country is not an act of bankruptcy within the meaning of the statute - if that be so, I say, the jurisdiction has never arisen.

My Lords, this was the substance of the decision of the Court of Appeal in Pearson's Case (1), although the details were different. I think that case was rightly decided on the authorities, and the Court of Appeal was also right in thinking it governed the present case. It is, in my opinion, too late for this House to reverse such a uniform course of decision even if your Lordships were disposed to do so.

I am, therefore, of opinion that the appeal should be dismissed with costs.

LORD JAMES OF HEREFORD. My Lords, I concur in the judgments of my noble and learned friends for the reasons given by them.

LORD BRAMPTON. My Lords, the sole question involved in this case is whether the High Court of Justice in Bankruptcy, in granting, at the instance and on the petition of the appellant, a receiving order against the respondents, acted without jurisdiction.

The respondent company, consisting only of two American subjects named Devries, were traders at Baltimore, U.S., where they resided. Through Mr. Geddes, their manager, they carried on a branch of that business in England, but neither of them had ever been personally present in England, and they were not subjects of Her Majesty the Queen. To this branch establishment the appellant, on the order of Geddes, supplied goods in respect of which the respondents became indebted to

(1) [1892] 2 Q. B. 263.

him to the amount of 4000l. In December, 1899, the respondents in Baltimore executed a deed of assignment of all their property to a Mr. Dulaney, their manager there, in trust, to apply the proceeds thereof to the payment of all their debts, and, at the instance of Dulaney, Geddes gave to the appellant a notice of suspension of payment. Both the assignment and notice were treated by the appellant as acts of bankruptcy, and in respect of them it was that the petition for the receiving order was presented and granted. After discussion, however, before the Registrar in Bankruptcy, it was subsequently discharged. The Court of Appeal upheld the decision of the Registrar. The appellant, being dissatisfied, has appealed to your Lordships. The case in the Court of Appeal is reported in the L. R. [1900] 1 Q. B. 541, as In re A. B. & Co.

It seems to me that, unless your Lordships are prepared to overrule the three cases chiefly relied upon for the respondents, Ex parte Crispin (1), decided by Lord Selborne and Mellish L.J.; Ex parte Blain, In re Sawers (2), by James, Brett, and Cotton L.JJ.; and Ex parte Pearson (3), by Lord Esher M.R. and Fry and Lopes L.JJ., this case is concluded by them in favour of the respondents. It is quite true that the two first of these cases were decided upon the Bankruptcy Act, 1869, but I do not think the value of them is at all affected by the Bankruptcy Act, 1883. Ex parte Pearson (3), decided upon that Act, practically held that it is not.

In dealing with this case, the one fact never to be lost sight of is that neither of the respondents was ever personally in England, and therefore never within the jurisdiction of the High Court of Bankruptcy. It follows that neither was ever in a position to commit within that jurisdiction an act of bankruptcy. It is true that through their agent, Geddes, they traded in England; in the course of that trading became indebted in England, and were possessed of goods which were within the jurisdiction, and they might be sued to judgment, and execution might be levied upon such goods, as was pointed out by James L.J. in Blain's Case (2); but to make a foreigner

(1) L. R. 8 Ch. 374.

(2) 12 Ch. D. 522, at p. 526.

(3) [1892] 2 Q. B. 263.

subject to the bankruptcy law of England two things are essential, both of which are absent in this case, namely, that the person sought to be made liable to that law should have been in England, and there committed an act of bankruptcy. There is great force and truth in the language of James L.J. that "the whole question is governed by the broad general principle that English legislation, unless the contrary is expressly enacted, or so plainly implied as to make it the duty of an English Court to give effect to an English statute, is applicable only to English subjects, or to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction." Later on he added (1): "It is not consistent with ordinary principles of justice or the comity of nations that the legislature of one country should call on the subject of another country to appear before its tribunals when he has never been within their jurisdiction."

One passage in the judgment of Sir G. Mellish in Crispin's Case (2) seems peculiarly applicable to the alleged act of bankruptcy by the execution of the assignment of the respondents' goods at Baltimore. He says (3): "We think that the Legislature cannot have intended to enact that if a foreigner who is not subject to the laws of England does something in his own country which may be perfectly lawful and innocent by the laws of that country, the effect should be that his property should be vested in a trustee in England for the benefit of his creditors."

With the law so clearly stated as it was in Crispin's (2) and Blain's Cases (4), if the Legislature had in the Act of 1883 intended to make any alteration in it as regarded foreigners, I cannot doubt it would have done so in unmistakable language. Its silence in regard to the matter satisfies me that it had no such intention, and that it at least recognised and was content with the law as so laid down.

Before I conclude I desire to say one word about ss. 4 and 6 in the Act of 1883, which, it has been suggested, effect an

(1) 12 Ch. D. at p. 527.

(2) L. R. 8 Ch. 374.

(3) L. R. 8 Ch. at p. 380.

(4) 12 Ch. D. 522.

alteration as regards any debtor having a place of business in England: s. 6 (d). Sect. 4 simply enumerates the cases in which "a debtor" commits an act of bankruptcy. Sect. 6 provides that a creditor shall not be entitled to present a bankruptcy petition against "a debtor" unless (d) the debtor is domiciled in England, or within a year has ordinarily visited or had a dwelling-house or place of business in England. But this provision has obviously no application unless "a debtor" has first committed an act of bankruptcy. Now Sir George Mellish, in Crispin's Case (1), distinctly stated that the word "debtor" in the Bankruptcy Act of 1869 must be construed to mean "debtor" properly subject to the laws of England. If the word "debtor" is to be similarly construed in the Act of 1883 as the Court ruled - and, as I think, rightly - in Pearson's Case (2), the respondents never having been in England at all, were never subject to the bankruptcy laws of England. The 4th section had no application to them, and the 6th section is unimportant to the question before this House.

I think the judgment of the Court of Appeal affirming the order of the registrar is right, and that this appeal should be dismissed with costs.

LORD ROBERTSON. My Lords, I have had an opportunity of reading the written judgments of my noble and learned friends, and I entirely agree in what they have said.

Solicitors: Bentwich, Watkin-Williams & Gray; J. Arscott Bartrum.

(1) L. R. 8 Ch. 374.

(2) [1892] 2 Q. B. 263.