[CHANCERY DIVISION]

In re TRUFORT.

TRAFFORD v. BLANC.

[1881 T. 527.]

Jurisdiction - Nationality - Foreign Subject - Succession to Property - Decision of Foreign Tribunal - Swiss Court at Zurich - Comity of Courts - Naturalization Act, 1870 (33 & 34 Vict. c. 14), s. 6 [Revised Ed Statutes, vol. xvi., p. 271].

Although the parties claiming to be entitled to the estate of a deceased person may not be bound to resort to the tribunals of the country in which he was domiciled, and although the Courts of this country may be called upon to administer the estate of a deceased person domiciled abroad, and may in such a case be bound to ascertain as best they can who according to the law of the domicil are entitled to the estate, yet where the title has been adjudicated upon by the Courts of the domicil, such adjudication is binding upon and must be followed by the Courts of this country (Enohin v. Wylie (1) Ewing v. Orr Ewing(2) Doglioni v. Crispin(3)); even if the judgment of the foreign Court has by the default of the party complaining of the judgment proceeded on a mistake as to the English law ( Castrique v. Imrie(4) Godard v. Gray(5)), or the whole of the facts were not before the foreign tribunal (De Cosse Brissac v. Rathbone (6)); for the Courts of this country do not sit to hear appeals from foreign tribunals, and if the decision of the foreign tribunal is wrong, recourse must be had to the mode of appeal provided in the foreign country (Bank of Australasia v. Nias (7)).

A testator who was by birth a British subject, and was the father of the Plaintiff, went to reside in Switzerland, and in the year 1842 acquired the

(1) 10 H. L. C. 1.

(2) 10 App. Cas. 453.

(3) Law Rep. 1 H. L. 301.

(4) Law Rep. 4 H. L. 414.

(5) Ibid. 6 Q. B. 139.

(6) 6 H. & N. 301.

(7) 16 Q. B. 717.

"Landrecht" or "Indigenat" in the canton of Zurich, without being required to renounce his English nationality, which in the then state of English law he could not have effectually done; and he thereby became of Swiss nationality. With the sanction of the cantonal authorities he could have relinquished this "Landrecht" or "Indigenat," but he never effectually did so, although he afterwards left Switzerland and went to reside in France, where he died with a French domicil in the year 1878:-

Held, that the 6th section of the Naturalization Act, 1870, applied to the testator; that at the time of his death he was a Swiss, and not a British subject; and that, having regard to the French law, under which the Swiss tribunals were the proper forum, the Courts of Zurich had jurisdiction to decide upon the right of succession to his personal estate:-

Held, also, that notwithstanding an attempted disposition by the testator of the whole of his personal estate in favour of a stranger, the Plaintiff was, in accordance with a judgment of the Courts of Zurich, entitled as the testator's only child to nine-tenths of such estate as his compulsory portion.

THIS was an action to have the judgment of a Swiss Court enforced in this country, and for a declaration that the testator, Francis Clement Trafford Trufort, died in France a Swiss subject, and that his estate ought to be administered in accordance with the law of France.

The Plaintiff Fran�ois Guillaume ClŽment Trafford claimed to be the legitimate son of the testator, who died in France in the year 1878, having by his will (which made no mention of the Plaintiff) given all his property to his godson, the Defendant, J. A. F. Henri Blanc, whom he constituted his executor.

The testator died possessed of considerable personal estate, which was locally situate in England, Switzerland, Italy and elsewhere. The Plaintiff alleged by his pleadings that the testator was a Swiss subject domiciled in France at the time of his death; that according to the law of France the succession to his estate was governed by the law of Switzerland; that under that law he, the Plaintiff, was entitled to nine-tenths of the testator's personal estate as his compulsory portion, and that to that extent the disposition attempted to be made by the will of the testator was inoperative, so far as it would defeat the Plaintiff's right to such portion.

The facts of the case, so far as is material for the purposes of this report, were shortly as follows:-

The testator was born at Lakenham, in the county of Norfolk,

in the year 1792, and was consequently by birth a British subject. He left England in the year 1816, and never afterwards returned, except on short visits. He was originally named Clement Trafford, but in or about the year 1840 he assumed the additional Christian name of Francis and the additional surname of Trufort, and thenceforth generally called himself Francis Clement Trafford Trufort.

For some time previously to 1821 the testator was resident at Naples; and the Plaintiff, who was born there on the 8th of March, 1821, was admitted to be the son of the testator by a Neapolitan woman named Carmela Pedata. There was no certicate or direct evidence of their marriage, but there was the evidence of an aged witness named Lorenzo Foglia to the effect that the testator and Carmela Pedata lived openly together as husband and wife in the years 1819 to 1821; and the civil register of births kept at Naples contained an entry, signed by the testator, of the birth of the Plaintiff on the 8th of March, 1821, wherein the testator declared that the Plaintiff was born to him of Signora Carmela Pedata "sua moglie legittima," i.e. his lawful wife; while the register of baptisms at Naples for the corresponding time contained an entry of the Plaintiff's baptism, in which he was described as the son of the testator and Carmela Pedata, "conjugi," i.e., man and wife; and this evidence was before the District Court of Zurich when that Court delivered the judgment of the 5th of February, 1884, hereinafter mentioned.

The testator and Carmela Pedata ceased to live together some time after the birth of the Plaintiff, who, so far as appeared from the evidence, was from his earliest years maintained and educated by the testator. In 1829 the testator took up his residence in Lausanne, in Switzerland, and there the Plaintiff continued to reside with him down to March, 1840. In that month the Plaintiff left his father and went to Hamburg, and the father and son did not appear to have subsequently lived together, though they maintained, with some considerable interruptions, a correspondence by letter.

On the 5th of May, 1840, the testator intermarried with one Caroline Schulthess, a native of the canton of Zurich. By her he had one child, a son named Gustav, who was born in 1844.

On the 12th of June, 1842, the testator was, on his own petition, admitted a citizen of the commune of Riesbach in the canton of Zurich, and on the 25th of August following the governing council of the canton granted him upon his own petition the right of naturalization in the canton, and at the same time sanctioned his being admitted to the right of citizenship in the commune of Riesbach.

The exact effect of these proceedings was in dispute. On the one hand the Plaintiff contended, and produced the evidence of five Swiss lawyers to shew that under the circumstances the testator had acquired the "bŸrgerrecht" of Reisbach and a Swiss "landrecht," and had thus become a naturalized Swiss, and the Plaintiff further contended that inasmuch as the testator did not, after the passing of the Naturalization Act, 1870, make a declaration of British nationality in accordance with sect. 6 of that Act, he had previously to his death ceased to be a British subject, and had become a Swiss by nationality.

On the other hand the Defendant contended and produced the evidence of two Swiss lawyers, Dr. Locher (who had acted as the legal adviser of the testator in his lifetime, and of the Defendant since his death), and Mr. Tondury, to shew that all that the testator had acquired was an "indigenat," and that in the year 1842 a foreigner could acquire a Swiss "indigenat" without losing or renouncing his native nationality, and could relinquish or renounce the "indigenat," when acquired, at his own pleasure. The conclusions which the learned Judge drew as to the effect of the evidence on this point will appear in his judgment.

On the 4th of June, 1853, the testator and Caroline Schulthesswere divorced by a judgment of the District Court of Zurich;and in the following year the testator went to reside at St. Julien,a village not far from Geneva, but situated in Upper Savoy, which at that time formed part of the kingdom of Sardinia, but which in 1859 was ceded to France. There, in 1855, the testator's son Gustav died and was buried, and there the testator continued to reside down to his own death in 1878.

It was not disputed that the testator's domicil at the time of his death was French, and that according to the law of France

the right of succession to the personal estate of a foreigner (as the testator was in France) is governed by the law of his nationality; and the Plaintiff produced evidence to shew that under a treaty concluded between France and Switzerland in the year 1869 the rights of the parties claiming to share in the estate of a Swiss subject dying domiciled in France were to be determined according to the law and by the tribunals of Switzerland.

Shortly after the death of the testator litigation commenced between the Plaintiff and the Defendant in the Courts of Switzerlandand Italy with reference to the legitimacy of the Plaintiff and his rights to a portion of the property of the testator.

The litigation in Switzerland commenced in the year 1879, and proceeded with varying results. The Plaintiff not being at the outset in possession of some of the evidence he afterwards adduced, was at first unsuccessful, and his claim was rejected by the District Court of Zurich on the 25th of March, 1882. On the 30th of August, 1882, the Defendant successfully applied to the Court of first instance at St. Julien in France to have this judgment of the District Court of Zurich declared executory in France. However, upon the discovery and production by the Plaintiff of fresh evidence, the District Court of Zurich on the 5th of February, 1884, granted revision of their former judgment, and declared that the Plaintiff, as the lawful son of the testator, was entitled to ninetenths of the testator's estate as the compulsory portion due to him.

The Defendant appealed from this judgment, and on the 19th of May, 1885, the Zurich Court of Appeal, after deciding that the evidence newly adduced in the Court of first instance was such as to render a revision of the former judgment necessary, held that the question of the "family rights" or "status" of the Plaintiff was to be decided according to English law; and that according to that law a presumption of legitimacy arose from the fact that the parents of a child in recording its birth in the register of births or of baptisms had described the child as lawful and themselves as husband and wife. So that the burthen of proof did not lie upon the child to prove his legitimacy, but upon the party who disputed it to prove his illegitimacy. From

this basis the Court came to the conclusion that the entries in the Neapolitan registers of birth and baptism coupled with other evidence afforded sufficient proof of the legitimacy of the Plaintiff, subject to evidence to the contrary being given; and that the Defendant had failed to adduce such proof to the contrary; and the decision of the Court of first instance in favour of the Plaintiff was affirmed.

An appeal from this decision to the Court of Cassation was dismissed on the 4th of December, 1885, and two subsequent applications by the Defendant to obtain from the Court of Appeal in Zurich rescission of the judgments of the 5th of February, 1884, and the 19th of May, 1885, upon production of fresh evidence, were rejected, as was also an application made by him on the 7th of February, 1887, to the Court of Cassation for the amendment of their judgment.

This concluded the litigation between the parties in the Swiss Courts, and there was in evidence a certificate of the Supreme Court of the canton of Zurich that the judgment of the Court of Appeal of the 19th of May, 1885 (affirming that of the District Court of the 5th of February, 1884) was legally valid and executable, inasmuch as the application for nullity brought against it was rejected by the Court of Cassation on the 4th of December, 1885, and no other kind of opposition, appeal, or other legal means was admissible or existed.

Contemporaneously with these proceedings in Switzerland,litigation between the same parties was prosecuted in Italy.By a judgment of the Court of Appeal at Lucca, given on the 20th of July, 1885, it was held (1) that the testator was at the time of his death a naturalised Swiss, and that the right of succession to his personal estate was governed by the law of Zurich; (2) that the judgment of the Zurich Court of Appeal of the 19th of May, 1885, constituted an adjudication on the legitimacy of the Plaintiff to which regard must be had by foreign tribunals; (3) that as the testator was an English subject at the time of the Plaintiff's birth the Plaintiff's legitimacy was to be determined according to English law; and (4), and that according to that law, whether regard was had to the decision of the Court of Zurich, or to the evidence adduced in the case, the

Plaintiff's legitimacy was made out, and he was entitled, according to the law of Zurich to nine-tenths of the personal estate.

On the 30th of March, 1886, an appeal from this decision to the Court of Cassation was dismissed.

On the 3rd of May, 1886, an application was made by the Defendant to the Court of Appeal of Lucca to revoke their former judgment, on the ground of their discovery of fresh evidence, including a certificate of the death of Carmela Pedata (described as the wife of an Italian named Angelo Pesce) on the 8th of January, 1864, and also on the ground of fraud.

This application, after being argued, was refused on the 15th of July, 1886, mainly on the ground that it was not made within the time prescribed by Italian law.

During this litigation and at the hearing of the present action the Defendant relied on the fact that in the year 1840 the testator had married Caroline Schulthess, which marriage he contended shewed that there had been no previous marriage with Carmela Pedata as alleged by the Plaintiff, seeing that the Plaintiff had not proved the death of Carmela Pedata before 1840, and that if she were not then dead the second marriage of the testator would have been bigamous; and he adduced evidence to shew that in 1825 Carmela Pedata married Angelo Pesce, and that this marriage was made with the knowledge of the testator. The Defendant also contended that if the testator ever acquired a Swiss nationality he abandoned it in 1856 when he left Switzerland and took up his permanent abode in Savoy, which then belonged to the kingdom of Sardinia, but at the time of the testator's death was French territory.

Everitt, Q.C., and Curtis Price, for the Plaintiff:-

The testator was naturalised in Switzerland in 1842, and took no step after the passing of the Naturalization Act, 1870, to retain his British nationality; he accordingly became a Swiss subject. He continued to be a Swiss subject, and was such at the time of his death; and by the operation of the Franco-Swiss Treaty he and the succession to his estate were amenable to the jurisdiction of the Swiss Courts. The Swiss Courts, viz., those of Zurich, have decided that the testator was a Swiss subject, and that the Plaintiff

was his legitimate son, and is entitled to nine-tenths of his estate. And according to the comity of Courts that decision will be adopted and followed by the Courts of this country, who will treat the matter as res judicata.

It will be said that the foreign Courts decided the case upon a mistaken view of the weight attached by the English Courts to the presumption in questions of legitimacy. But even if this were true, which we do not admit, the English Courts would be equally bound by the judgment of the foreign Court: Castrique v. Imrie (1); Godard v. Gray (2); Schibsby v. Westenholz (3); In re May (4); Henderson v. Henderson (5); De Cosse Brissac v. Rathbone (6); Castrique v. Behrens (7); Messina v. Petrococchino (8). Again, the judgment was a judgment given in an action to which both the Plaintiff and Defendant were parties, and which was fought out between them both in the Swiss Courts of first instance and of appeal.

Doglioni v. Crispin (9) shews what weight is attributable to a judgment of the Court of the domicil. A judgment on a subject of personal status is a judgment in rem, and is binding even on third parties: Brett, L.J., Niboyet v. Niboyet (10).

There is nothing to entitle the Defendant to repudiate the judgments of the Zurich Courts. He himself enforced the Zurichjudgment so long as it was in his own favour, at the Court of St. Julien in France.

If it is requisite to argue the question of legitimacy, the certificates of birth and baptism and the treatment of the Plaintiff by his father are strong evidence in favour of his legitimacy: Slaney v. Wade (11); Lord Braybroke v. Inskip (12); Monkton v. Attorney-General (13). The statutes validating foreign marriages, 4 Geo. 4, c. 91, and 12 & 13 Vict. c. 68, s. 20, were relied on by the foreign Courts, and we rely on them here. We also claim as authorities in our favour on this point: Piers v. Piers (14); De Thoren v.

(1) Law Rep. 4 H. L. 414, 427, 445.

(2) Ibid. 6 Q. B. 139.

(3) Ibid. 155.

(4) 25 Ch. D. 231.

(5) 6 Q. B. 288, 298.

(6) 6 H. & N. 301.

(7) 30 L. J. (Q.B.) 163.

(8) Law Rep. 4 P. C. 144.

(9) Ibid. 1 H. L. 301.

(10) 4 P. D. 1, 12.

(11) 1 My. & Cr. 338, 357.

(12) 8 Ves. 417, 429, 430.

(13) 2 Russ. & My. 147.

(14) 2 H. C. 331.

Attorney-General (1); Lyle v. Ellwood (2); Whicker v. Hume (3); Marriott v. Hampton (4); Geyer v. Aguilar (5).

Hastings, Q.C., and Nasmith, for the Defendant:-

The argument for the Plaintiff assumes a prim‰ facie case of legitimacy in his favour, which it lies on us to rebut. This is not so. The facts on both sides must be looked at and dealt with as a whole by the Court in this country, for the whole of the facts were not before the Swiss Court at the time it delivered the judgment of the 25th of May, 1885, which is sought to be enforced in this action, nor in fact until October, 1886: Andrewes v. Uthwatt (6). The result might have been different if all the facts had been before the Court in May, 1885.

[STIRLING, J.:- They were all brought before the Court, and unsuccessfully, by your client on a subsequent occasion.]

Our Courts have never hitherto accepted as final the judgment of a foreign Court upon a question of marriage: Sinclair v. Sinclair (7), and there is here the further circumstance that neither of the persons whose marriage was in question were subjects of the country the Courts of which gave the decision. Such Courts therefore can hardly be said to be the proper forum for the purpose: Westlake on International Law(8); De Mora v. Concha (9); Abouloff v. Oppenheimer (10).

Indeed their incompetency to decide the question was admitted by the Court of Appeal at Zurich in the judgment of the 5th of February, 1884, on the ground that they had no machinery of their own, but must go to the French law.

The Swiss Court accordingly had no jurisdiction, and there is no judgment of a competent foreign tribunal such as this Court will regard or enforce. The proper Courts to determine the nationality of a British subject are the Courts of this country.

Naturalization cannot be conferred except by a nation, and the canton of Zurich not having the power of declaring war or

(1) 1 App. Cas. 686, 689.

(2) Law Rep. 19 Eq. 98.

(3) 13 Beav. 366.

(4) 7 T. R. 269.

(5) Ibid. 681.

(6) 2 Times L. R. p. 895.

(7) 1 Hag. Con. 294, 297.

(8) Ed. 1880, p. 319.

(9) 29 Ch. D. 268.

(10) 10 Q. B. D. 295.

making peace is not a "foreign state" within the meaning of the 6th section of the Naturalization Act, 1870 (33 & 34 Vict. c. 14): Phillimore's International Law(1); Wheaton's International Law(2). Consequently the testator never ceased to be a British subject.

Everitt, in reply, cited on the question of legitimacy, In re Goodman's Trusts (3); Hervey v. Hervey (4) Goodman v. Goodman (5); and as to the independence and sovereign character of the Swiss cantons, Wheaton's International Law(6).

1887. July 26. STIRLING, J. (after fully stating the facts of the case, continued):-

The Plaintiff alleges that the judgment of the Court of Zurichof the 19th of May, 1885, is a judgment in rem, binding on the Defendant, and is conclusive in this country, and ought to be enforced by the Court, and he seeks to have it enforced accordingly, and I have now to determine what effect ought to be given by an English Court to this judgment. The law on the subject is thus stated by Lord Westbury in Enohin v. Wylie (7): "I hold it to be now put, beyond all possibility of question, that the administration of the personal estate of a deceased person belongs to the Court of the country where the deceased was domiciled at his death. All questions of testacy and intestacy belong to the Judge of the domicil. It is the right and duty of that Judge to constitute the personal representative of the deceased. To the Court of the domicil belongs the interpretation and construction of the will of the testator. To determine who are the next of kin or heirs of the personal estate of the testator is the prerogative of the Judge of the domicil. In short, the Court of the domicil is the forum concursusto which the legatees under the will of a testator or the parties entitled to the distribution of the estate of an intestate are required to resort." This statement of the law has not in its entirety met with complete acceptance, and in particular it has

(1) 2nd Ed. vol. i., pp. 152, 380; 3rd Ed. pp. 183, 446.

(2) 2nd Ed. p. 109.

(3) 17 Ch. D. 266, 293.

(4) 2 W. Bl. 877.

(5) 28 L. J. (Ch.) 745.

(6) 6th Ed. pp. 80, 81.

(7) 10 H. L. C. 1, 13.

been more than once criticised by Lord Selborne, whose views are perhaps most fully stated in the case of Ewing v. Orr Ewing (1): "So far as relates to domicil, it has always appeared to me to be clear, that the domicil of a deceased testator or intestate cannot, in principle, furnish any governing or necessary rule, except for the purpose of determining the succession to moveable estate. For that purpose, recourse must be had, not always or necessarily to the Courts but, always and necessarily to the law of the domicil. The succession being once ascertained, the rights resulting therefrom belong to, and follow the person of, the living successor; and not the dead predecessor. It has never been held that the forum, in which such rights may be vindicated, depends on the domicil (as distinguished from the place of residence for the time being, which is sometimes inaccurately so denominated) either of the plaintiff or of the defendant, in any action or suit; and if the domicil of the living man, whose rights and liabilities are in question, is for that purpose immaterial, I am unable to understand how the place in which those rights are to be protected, or those liabilities enforced, can necessarily depend upon the domicil of the deceased." His Lordship then refers to the opinion expressed by Lord Westbury in Enohin v. Wylie (2), to which I have already alluded, as being unsupported by any other authority and inconsistent with the general tenor of the English, Scotch, and American cases, and notices that both Lord Cranworth and Lord Chelmsford dissented from Lord Westbury, the former saying in his judgment(3), "The duty of administration is to be discharged by the Courts of this country, though in the performance of that duty they will be guided by the law of the domicil."

The next authority bearing on the subject is that of Doglioni v. Crispin (4), and in that case Lord Cranworth(5) expresses himself thus: "No principle can be better established than that the administration of the personal estate of a deceased person belongs exclusively to the country in which he is domiciled at his death. The Courts of that country must decide who is entitled, and from

(1) 10 App. Cas. 453, 502.

(2) 10 H. L. C. 1, 13.

(3) 10 H. L. C. 19.

(4) Law Rep. 1 H. L. 301.

(5) Law Rep. 1 H. L. 314.

their decision there can be no appeal. It does not always happen, as is the case here, that the claim of the party litigating in our Courts has been actually raised and decided in the Courts of the country of the domicil. It is, therefore, often matter of necessity that our Courts should receive evidence from learned foreigners as to what the law of the domicil is. Such evidence is in general far from satisfactory, but it often happens that no better evidence can be obtained, and then the Courts here must ascertain, from conflicting testimony, as well as they can, what the law is on which they must act. But here we are left in no doubt. The title of the respondent has been fully adjudicated upon by the Courts of his domicil after long and careful consideration, and by their decision we are bound."

The rule to be extracted from these cases appears to be this, that although the parties claiming to be entitled to the estate of a deceased person may not be bound to resort to the tribunals of the country in which the deceased was domiciled, and although the Courts of this country may be called upon to administer the estate of a deceased person domiciled abroad, and in such case may be bound to ascertain as best they can who, according to the law of the domicil, are entitled to that estate, yet where the title has been adjudicated upon by the Courts of the domicil, such adjudication is binding upon, and must be followed by, the Courts of this country.

It is contended that this rule applies to the present case. It is indeed admitted that the domicil of the testator was French, but according to the law of France (as stated by the Defendant's own witnesses) the right to his succession depends on his nationality. That nationality it is said was Swiss, and by virtue of the treaty between France and Switzerland in 1869 the right of succession falls to be determined by the tribunals of Zurich, who have decided in favour of the Plaintiff. It is obvious that this argument cannot prevail unless the testator's nationality was Swiss, and this is a point which at the trial was made the subject of considerable argument and which demands close examination. [His Lordship then stated in detail the evidence on this point, and continued:-]

In this state of the evidence, I conclude -

1. That at the time when the testator acquired the "landrecht"in Zurich he was not required formally to renounce his English nationality, and indeed, if he had been so required, he could not in the then state of English law have effectually done so as between himself and the government of this country, though it may be a question whether regard ought to be had to that in administering his estate according to the law of his domicil, i.e.,France.

2. That the "landrecht" or "indigenat" could only be relinquished with the sanction of the cantonal authorities: and that, in the case of the testator, it never was effectually relinquished.

3. That there is no substantial difference between "indigenat"and nationality; any difference arises solely from the fact that down to 1848 the Swiss cantons constituted a group of independent states united by federation for certain purposes.

These conclusions are substantially those arrived at by the Court of Appeal at Lucca in their judgment of the 20th of July, 1885, and rest on similar reasons.

Under these circumstances I think that sect. 6 of the Naturalization Act, 1870, applied to the testator, and that he was at the time of his death a Swiss and not a British subject.

The testator's nationality then being Swiss at the time of his death it follows that the Zurich tribunals are those which according to the law of the testator's domicil have jurisdiction to decide on the right of succession to his estate, and in fact they have at the instance of the Defendant been recognised as such by the Court of St. Julien.

This being so, I have here an advantage similar to that which the Court had in Doglioni v. Crispin (1), that the claim of the party litigating in this Court has been actually raised and decided in the Courts which according to the law of the testator's domicil were the proper and competent tribunals to decide on their rights. Those tribunals have decided that the Plaintiff is entitled to nine tenths of the testator's personal estate, of which the funds which form the subject-matter of the present action are part, and in accordance with the principle laid down in Doglioni v. Crispin, I consider that I am bound by their decision.

(1) Law Rep. 1 H. L. 301.

Various objections have, however, been raised to this decision, and on them it may be right that I should say a few words.

First it is said that the decision is founded on English law, and that the foreign tribunals have taken an erroneous view of our law.

The complaint in substance is to this effect. It was not contended that according to English law the entries of birth and baptism in the civil and ecclesiastical registers kept at Naplesare inadmissible as evidence; and in fact upon the evidence given by the Defendant's Italian expert witnesses it would seem that both registers were public documents kept by public officers within the meaning of the rule laid down by Lord Blackburnin Sturla v. Freccia (1), and consequently both entries were admissible. It was said, however, that an improper weight was attached to these documents, that the tribunal dealt with them as establishing a prim‰ facie case on behalf of the Plaintiff which it was incumbent on the Defendant to displace, whereas the true mode of dealing with the evidence was that indicated by Mr. Justice Chitty in Andrewes v. Uthwatt (2): "To his Lordship's mind it was an erroneous mode of trying such a case as that before him by picking out a few facts and isolating them, and thus to endeavour to raise from them a presumption of marriage, and then challenge the other side to produce evidence to the contrary, at the same time arguing that the other side was required by law to produce so strong a case as to render it reasonably impossible that a marriage did take place. The proper mode was rather to take the evidence as a whole and thus to see whether the presumption of marriage was sufficiently rebutted."

To this it was answered that there was nothing in the proceedings of the foreign Courts so inconsistent with English law as to render it improper to recognise or enforce their judgments in this country; and that in truth and substance the Zurich Court of Appeal did in the judgment of the 2nd of October, 1886, deal with all the facts, and arrive at an honest and bon‰ fide conclusion adverse to the Defendant. This observation appears to be of considerable weight; but I do not consider it necessary to determine whether it is to any extent well founded; for it was further

(1) 5 App. Cas. at pp. 623, 643-4.

(2) 2 Times L. R. 897.

urged, and it seems to me correctly, that it is established by the decisions in Castrique v. Imrie (1) and Godard v. Gray (2) that a foreign judgment cannot as between the same parties be impeached in this country on the ground that it proceeded on a mistake as to the English law; at all events, if the party who seeks to impeach the judgment has failed to bring to the knowledge of the foreign tribunal the provision of the English law on which he relies.

In the former case, Blackburn, J., in advising the House of Lords says(3): "We think ... that all that can be required of the tribunal that has to decide on a question of foreign law is that it should receive and consider all the evidence as to what the foreign law is, and bon‰ fide determine on that as well as it can." And Lord Hatherley says(4): "Without expressing any opinion (for I purposely wish to avoid doing so) with reference to a decision of my own which has been cited, in the case of Simpson v. Fogo (5), as to what might be done in the case of a Court wilfully determining that it will not, according to the usual comity, recognise the law of other nations when clearly and plainly put before it, without saying anything as to what would justify the Courts in our own country in hesitating to give effect to a foreign judgment if obtained by fraud or misrepresentation, it is enough for me to say upon the present occasion, that, in this case, the whole of the facts appear to have been inquired into by the French Courts judicially, honestly, and with the intention to arrive at the right conclusion, and having heard the facts as stated before them they came to a conclusion which justified them in France in deciding as they did decide."

Then Lord Colonsay says(6): "It appears to me that we cannot enter into an inquiry as to whether the French Courts proceeded correctly either as to their own course of procedure, or their own law, nor whether, under the circumstances, they took the proper means of satisfying themselves with respect to the view they took of the English law. Nor can we inquire whether they were right in their views of the English law. The question

(1) Law Rep. 4 H. L. 414.

(2) Ibid. 6 Q. B. 139.

(3) Ibid. 4 H. L. 434.

(4) Law Rep. 4 H. L. 445-6.

(5) 1 J. & H. 18; 1 H. & M. 195.

(6) Law Rep. 4 H. L. 448.

is, whether under the circumstances of the case, dealing with it fairly, the original tribunal did proceed against the ship, and did order the sale of the ship."

In Godard v. Gray (1), Blackburn, J., after citing the passage from Lord Hatherley's speech in the House of Lords already quoted, proceeds to examine certain dicta and opinions to the effect that the defendant in an action on a foreign judgment is at liberty to shew that the judgment was founded on a mistake, and he concludes this part of the judgment of himself and Mellor,L J., as follows(2): "But we think it unnecessary to discuss this point, as the decisions of the Court of Queen's Bench in Bank of Australasia v. Nias (3), of the Court of Common Pleas in Bank of Australasia v. Harding (4), and of the Court of Exchequer in De Cosse Brissac v. Rathbone (5), seem to us to leave it no longer open to contend, unless in a Court of error, that a foreign judgment can be impeached on the ground that it was erroneous on the merits; or to set up as a defence to an action on it, that the tribunal mistook either the facts or the law." He then proceeds to discuss the doctrine laid down by the author of Smith's Leading Cases, "that if the judgment appears on the face of the proceedings to be founded on a mistaken notion of English law, it would not be conclusive;" and holds it to be not well founded. This view appears to have subsequently met with the approval of Lush, J. (Schibsby v. Westenholz (6)), and if it be well founded, the Defendant's objection fails. Sir James Hannen, however, did not agree. His Lordship says(7): "I do not think that any authority binds us, nor am I prepared to decide that a defendant not guilty of any laches, against whom a foreign judgment in personam has been given, is precluded from impeaching it on the ground that it appears on the face of the proceedings to be based on an incorrect view of the English law, even though there may be no evidence that the foreign Court, knowingly or perversely, refused to recognise that law. I do not, however, enter at length upon the consideration of this question, because I have arrived at the conclusion that the defendants in this case were guilty of

(1) Law Rep. 6 Q. B. 139.

(2) Ibid. 150.

(3) 16 Q. B. 717.

(4) 9 C. B. 661.

(5) 6 H. & N. 301.

(6) Law Rep. 6 Q. B. 159.

(7) Law Rep. 6 Q. B. 154.

laches. It does not appear upon the face of the proceedings, nor at all, that the French Court was informed of what the English law was. It was the duty of the defendants to bring to the knowledge of the French Court the provision of the English law on which they now for the first time rely, and having failed to do so, they must submit to the consequences of their own negligence. The French Courts, like our own, can only be informed of foreign law by appropriate evidence, and the party who fails to produce it cannot afterwards impeach the judgment obtained against him on account of an error into which the foreign Court has fallen, presumably in consequence of his own default." It appears to me that this applies to the present case. The Defendant did not, so far as appears, take any steps to bring before the Zurichtribunals evidence as to the English law on which he now relies, and having failed to do so he must take the consequences of the error (if such there be) into which these tribunals have fallen. On this view of the law (no less than on the former) the Defendant's objection fails.

It was said, however, that the whole of the facts were not before the Zurich Courts when the judgment of the 19th of May, 1885 (that relied on by the Plaintiff in his statement of claim), was given, and that the cases of Castrique v. Imrie (1) and Godard v. Gray (2) shew that all the facts must be brought before the foreign tribunal. In support of this argument the language of Lord Hatherley in Castrique v. Imrie, cited in Godard v. Gray (3), was relied on. His Lordship says: "The whole of the facts appear to have been inquired into by the French Courts, judicially, honestly, and with the intention to arrive at the right conclusion, and having heard the facts as stated before them they came to a conclusion which justified them in France in deciding as they did decide." I am of opinion, however, that the language of the very learned Judges, when fairly construed, does not warrant the conclusion sought to be derived from it; a conclusion which seems to me not to be in accordance with the decision in De Cosse Brissac v. Rathbone (4), in which the fifth plea was as follows(5): "And the defendants further say that the enforcement

(1) Law Rep. 4 H. L. 414.

(2) Ibid. 6 Q. B. 139.

(3) Law Rep. 6 Q. B. 149.

(4) 6 H. & N. 301.

(5) 6 H. & N. 304, 308.

of the said judgment in England is contrary to natural justice on the following grounds: That since the hearing of the said suit in which the said judgment was pronounced, and after the pronouncing of the said judgment, the defendants have discovered fresh evidence which was not known to them, or either of them, before the pronouncing of the said judgment, and which, with reasonable diligence, they could not have discovered before the pronouncing of the said judgment, and which said evidence shews and proves that the said judgment is erroneous, in fact and law on the merits."

This plea was overruled, and Baron Martin's judgment was as follows: "We are all of opinion that this question is so concluded ky the authorities that it is impossible for us to decide contrary to them, and the case must go to a Court of error. I may observe that the question does not come before me for the first time: for many years past I have had occasion to consider it."

Consequently this is a decision that a foreign judgment binds, notwithstanding the discovery of fresh evidence, and although the whole of the facts were not before the foreign tribunal at the time it delivered its decision. No reasons are given, but the grounds of the decision do not appear to be very far to seek. The principle on which Bank of Australasia v. Nias (1) was decided appears to be that the Courts of this country do not sit to hear appeals from foreign tribunals, and that if the judgment of a foreign Court is erroneous, the regular mode, provided by every system of jurisprudence, of procuring it to be examined and reversed ought to be followed. Neither do the Courts of this country sit to rehear causes which have been tried abroad. Every system of jurisprudence provides a mode by which a judgment may be reviewed and a cause reheard on the discovery of fresh evidence; and to the regular mode so provided recourse ought to be had, as in fact has been unsuccessfully done by the Defendant in the present case.

It was further said that the Courts of this country will not accept as conclusive the decision of a foreign Court as to the validity of a marriage, and in support of this proposition the case of Sinclair v. Sinclair (2) was relied on. Whether this

(1) 16 Q. B. 717.

(2) 1 Hag. Con. 294, 297.

proposition be or be not well founded, it does not appear to me to apply, for this Court is not called upon to give effect to the decision of a foreign Court as to the validity of a marriage, but as to the right of succession to the estate of a testator. What the Swiss Court has decided is not the validity of the marriage of the testator and Carmela Pedata, but the right of the Plaintiff to a share of the testator's personal estate, although the decision may have been based on the existence and validity of such a marriage.

Lastly, it is said that the judgment of the Zurich Court of the 5th of February, 1884, if not contrary to natural justice shews at all events on the face of it an admission of incompetence to decide the question at issue, inasmuch as it is laid down that Swiss law contains no provisions applicable to the case, and consequently the Court had recourse to French law. I understand this simply to mean that, failing to find any express provisions in the Swiss law, the Court in arriving at its decision was guided by the French law, which is said to be on this subject the mother of modern law. In like manner our own Courts in the absence of express decision are sometimes guided by Roman law: Acton v. Blundell (1). But however this may be, it does not lie with the Defendant now to raise this objection, for it is stated that (whatever their motives may have been) both parties expressly consented to the application of French law.

I am of opinion, therefore, that effect ought not to be given to the Defendant's objections to the decisions of the Swiss tribunals and that those decisions are binding on this Court, and ought to be recognised and have effect given to them in the distribution of the testator's estate.

I shall accordingly declare that the judgment of the ZurichDistrict Court of the 5th of February, 1884, affirmed by the Zurich Court of Appeal on the 19th of May, 1885, is and ought to be deemed and taken as of legal force and effect in this action; and that under or by virtue of the said judgment the Plaintiff is entitled to nine tenths of the testator's estate.

Solicitors: Heales & Son; Frederick Rolt; Lambert, Petch & Shakespear.

(1) 12 M. & W. 324, 353.

W. W. K.