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[QUEEN'S BENCH DIVISION] |
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SCHIBSBY v. WESTENHOLZ AND OTHERS. |
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Action
- Foreign Judgment - Judgment for default of Appearance against a Defendant
not Resident nor a Subject of the Country. |
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A
judgment of a foreign court, obtained in default of appearance against a
defendant, cannot be enforced in an English court, where the defendant, at
the time the suit commenced, was not a subject of nor resident in the country
in which the judgment was obtained: for there existed nothing imposing on the
defendant any duty to obey the judgment. |
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DECLARATION, that in parts beyond the seas,
out of the dominions of the Queen, viz., in the empire of France, in a suit
depending between the now plaintiff and the defendants, in the Tribunal of
Commerce at Caen, being a court duly holden, and having jurisdiction in that
behalf, the plaintiff recovered against the defendants, by the judgment of
the court, the sum of 11,537 francs and 60 centimes, in English money, 461l.
10s., which the now defendants were, by the court, ordered to pay to the now
plaintiff, and interest. Averments of conditions precedent, and breach that
the defendants did not pay the money. |
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Pleas: 1. Never indebted. 2. That the court of
the Tribunal of Commerce at Caen was not a court duly holden and having
jurisdiction as alleged. 3. That the action was commenced according to the
laws then and still in force in the empire of France by process and summons,
and that the defendants were not, nor were any of them, at the time of the
commencement thereof, or at any time previous to the recovery of the judgment
resident or domiciled within the jurisdiction of the court, nor are the
defendants, nor any of them, natives of the empire of France; and they were
not at any time before the recovery of the judgment served with any process
or summons in the action, nor did the defendants appear in the action, nor
had they, before the recovery of the judgment, any notice or knowledge of any
process or summons, or of any proceedings in the action, or any opportunity
of defending themselves therein. |
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Issue thereon. |
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At the trial, before Blackburn, J., at the
London sittings after Hilary Term, 1870, a verdict was found for the
plaintiff with leave |
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to
move to enter a verdict for the defendants, on the ground of want of
jurisdiction. |
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The evidence and course of the trial are fully
stated in the judgment of the Court. |
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A rule having been obtained pursuant to the
leave, |
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Nov. 22. Brown, Q.C., and Murphy, shewed
cause. |
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Nov. 26. Sir G. Honyman, Q.C., and Watkin
Williams,
in support of the rule. The arguments are fully noticed in the judgment of
the Court. In addition to those mentioned in the judgment, the following
authorities were cited: Cavan v. Stewart (1); Crawford
v. Whittal
(2); Maubourquet v. Wyse (3);
Bank of Australasia v. Nias (4); Becquet v.
MacCarthy
(5); Don v. Lippmann (6); Vallee v.
Dumergue
(7); Meeus v. Thellusson (8); Bissell
v. Briggs
(9); Jefferys v. Boosey (10); Yelverton
v. Yelverton. (11)
Story on the Conflict of Laws, ss. 547, 609, 610; Wheaton's International
Law, 288-291. |
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Dec. 10. The judgment of the Court (Blackburn,
Mellor, Lush and Hannen, JJ.) was delivered by |
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BLACKBURN, J. This was an action on a judgment
of a French tribunal given against the defendants for default of appearance. |
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The pleas to the action were, amongst others,
a plea of never indebted, and, thirdly, a special plea asserting that the
defendants were not resident or domiciled in France, or in any way subject to
the jurisdiction of the French court, nor did they appear; and that they were
not summoned, nor had any notice or knowledge of the pending of the
proceedings, or any opportunity of defending themselves therefrom. On these
pleas issue was joined. |
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On the trial before me the evidence of a
French avocat was |
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(1)
1 Stark. N. P. 525. |
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(2)
1 Doug. at p. 4, n. 1. |
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(3)
Ir. Rep. 1 C. L. 471. |
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(4)
16 Q. B. 717; 20 L. J. (Q.B.) 284. |
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(5)
2 B. & Ad. 951. |
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(6)
5 C. & F. 1. |
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(7)
4 Ex. 290; 18 L. J. (Ex.) 398. |
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(8)
8 Ex. 638; 22 L. J. (Ex.) 239. |
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(9)
9 Mass. R. 462. |
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(10)
4 H. L. C. 815; 23 L. J. (Ex.) 350. |
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(11)
1 Sw. & Tr. 574; 29 L. J. (P. M. & A.) 34. |
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given,
by which it appeared that by the law of France a French subject may sue a
foreigner, though not resident in France, and that for this purpose an alien,
if resident in France, was considered by the French law as a French subject.(1) The mode of
citation in such a case, according to the French law, is by serving the
summons on the Procureur Imp_rial. If the foreign defendant thus cited does
not within one month appear, judgment may be given against him, but he may
still, at any time within two months after judgment, appear and be heard on
the merits. After that lapse of time the judgment is final and conclusive.
The practice of the imperial government is, in such a case, to forward the
summons thus served to the consulate of the country where the defendant is
resident, with directions to intimate the summons, if practicable, to the
defendant; but this, as was explained by the avocat, is not required by the
French law, but is simply done by the imperial government voluntarily from a
regard to fair dealing. |
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It appeared by other evidence that the
plaintiff in this case was a Dane resident in France. The defendants were
also Danes, resident in London and carrying on business there. A written
contract had been made between the plaintiff and defendants, which was in
English, and dated in London, but no distinct evidence was given as to where
it was signed. We think, however, that, if that was material, the fair
intendment from the evidence was that it was made in London. By this contract
the defendants were to ship in Sweden a cargo of Swedish oats free on board a
French or Swedish vessel for Caen, in France, at a certain rate for all oats
delivered at Caen. Payment was to be made on receipt of the shipping
documents, but subject to correction for excess or deficiency according to
what might turn out to be the delivery at Caen. From the correspondence it
appeared that the plaintiff asserted, and the defendants denied, that the
delivery at |
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(1)
See Article 14 of the Code Civil: "L'_tranger m_me non residant en
France pourra _tre cit_ devant les tribunaux fran_ais, pour l'ex_cution des
obligations par lui contract_es en France avec un fran_ais; il pourra _tre
traduit devant les tribunaux de France pour les obligations par lui
contract_es en pays _tranger envers des fran_ais." |
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Codes
Annot_s de Sirey: Code Civil, Art. 14, Note 42: "Un _tranger qui a une
maison de commerce _tablie et patente en France, peut, aussi bien qu'un
fran_ais, assigner un autre _tranger devant un tribunal fran_ais." |
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Caen
was short of the quantity for which the plaintiff had paid, and that the
plaintiff made some other complaints as to the condition of the cargo which
were denied by the defendants. The plaintiff very plainly told the defendants
that if they would not settle the claim he would sue them in the French
courts. He did issue process in the manner described, and the French
consulate in London served on the defendants a copy of the citation. |
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The following admissions were then made,
namely: that the judgment was regular according to French law; that it was
given in favour of the plaintiff, a foreigner domiciled in France, against
the defendants, domiciled in England, and in no sense French subjects, and
having no property in France. |
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I then ruled that I could not enter into the
question whether the French judgment was according to the merits, no fraud
being alleged or shewn. |
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I expressed an opinion (which I have since
changed) that, subject to the third plea, the plaintiff was entitled to the
verdict, but reserved the point. |
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The jury found that the defendants had notice
and knowledge of the summons and the pendency of the proceedings in time to
have appeared and defended the action in the French court. I then directed
the verdict for the plaintiff, but reserved leave to enter the verdict for
the defendants on these facts and this finding. |
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No question was raised at the trial as to the
sufficiency of the pleas to raise the defence. If there had been, I should
have made any amendment necessary, but, in fact, we are of opinion that none
was required. |
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A rule was accordingly obtained by Sir George
Honyman, against which cause was shewn in the last term and in the sittings
after it before my Brothers Mellor, Lush, Hannen, and myself. During the
interval between the obtaining of the rule and the shewing cause the case of Godard v. Gray (1),
on which we have just given judgment, was argued before my Brothers Mellor,
Hannen, and myself, and we had consequently occasion to consider the whole
subject of the law of England as to enforcing foreign judgments. |
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(1)
Ante, p. 139. |
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My Brother Lush, who was not a party to the
discussions in Godard v. Gray (1), has, since the argument in
the present case, perused the judgment prepared by the majority in Godard v. Gray (1),
and approves of it; and, after hearing the argument in the present case, we
are all of opinion that the rule should be made absolute. |
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It is unnecessary to repeat again what we have
already said in Godard v. Gray. (1) |
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We think that, for the reasons there given,
the true principle on which the judgments of foreign tribunals are enforced
in England is that stated by Parke, B., in Russell v. Smyth (2), and again
repeated by him in Williams v. Jones (3), that the
judgment of a court of competent jurisdiction over the defendant imposes a
duty or obligation on the defendant to pay the sum for which judgment is
given, which the courts in this country are bound to enforce; and
consequently that anything which negatives that duty, or forms a legal excuse
for not performing it, is a defence to the action. |
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We were much pressed on the argument with the
fact that the British legislature has, by the Common Law Procedure Act, 1852,
(15 & 16 Vict. c. 76), ss. 18 and 19, conferred on our courts a power of
summoning foreigners, under certain circumstances, to appear, and in case
they do not, giving judgment against them by default. It was this
consideration principally which induced me at the trial to entertain the
opinion which I then expressed and have since changed. And we think that if
the principle on which foreign judgments were enforced was that which is
loosely called "comity," we could hardly decline to enforce a
foreign judgment given in France against a resident in Great Britain under
circumstances hardly, if at all, distinguishable from those under which we,
mutatis mutandis, might give judgment against a resident in France; but it is
quite different if the principle be that which we have just laid down. |
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Should a foreigner be sued under the
provisions of the statute referred to, and then come to the courts of this
country and desire to be discharged, the only question which our courts could
entertain |
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(1)
Ante, pp. 139, 147. |
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(2)
9 M. & W. at p. 819. |
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(3)
13 M. & W. at p. 633. |
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would
be whether the Acts of the British legislature, rightly construed, gave us
jurisdiction over this foreigner, for we must obey them. But if, judgment
being given against him in our courts, an action were brought upon it in the
courts of the United States (where the law as to the enforcing foreign
judgments is the same as our own), a further question would be open, viz.,
not only whether the British legislature had given the English courts
jurisdiction over the defendant, but whether he was under any obligation
which the American courts could recognize to submit to the jurisdiction thus
created. This is precisely the question which we have now to determine with
regard to a jurisdiction assumed by the French jurisprudence over foreigners.
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Again, it was argued before us that foreign
judgments obtained by default, where the citation was (as in the present
case) by an artificial mode prescribed by the laws of the country in which
the judgment was given, were not enforceable in this country because such a
mode of citation was contrary to natural justice, and if this were so,
doubtless the finding of the jury in the present case would remove that
objection. But though it appears by the report of Buchanan
v. Rucker
(1) that Lord
Ellenborough in the hurry of nisi prius at first used expressions to this
effect, yet when the case came before him in banco in Buchanan
v. Rucker
(2) he
entirely abandoned what (with all deference to so great an authority) we
cannot regard as more than declamation, and rested his judgment on the ground
that laws passed by our country were not obligatory on foreigners not subject
to their jurisdiction. "Can," he said, "the Island of Tobago
pass a law to bind the rights of the whole world?" |
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The question we have now to answer is, Can the
empire of France pass a law to bind the whole world? We admit, with perfect
candour, that in the supposed case of a judgment, obtained in this country
against a foreigner under the provisions of the common Law Procedure Act,
being sued on in a court of the United States, the question for the court of
the United states would be, Can the Island of Great Britain pass a law to
bind the whole world? We think in each case the answer should be, No, but
every country can pass laws to bind a great many persons; and therefore |
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(1)
1 Camp. 63. |
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(2)
9 East, 192. |
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the
further question has to be determined, whether the defendant in the
particular suit was such a person as to be bound by the judgment which it is
sought to enforce. |
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Now on this we think some things are quite
clear on principle. If the defendants had been at the time of the judgment
subjects of the country whose judgment is sought to be enforced against them,
we think that its laws would have bound them. Again, if the defendants had
been at the time when the suit was commenced resident in the country, so as
to have the benefit of its laws protecting them, or, as it is sometimes
expressed, owing temporary allegiance to that country, we think that its laws
would have bound them. |
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If at the time when the obligation was
contracted the defendants were within the foreign country, but left it before
the suit was instituted, we should be inclined to think the laws of that
country bound them; though before finally deciding this we should like to
hear the question argued. But every one of those suppositions is negatived in
the present case. |
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Again, we think it clear, upon principle, that
if a person selected, as plaintiff, the tribunal of a foreign country as the
one in which he would sue, he could not afterwards say that the judgment of
that tribunal was not binding upon him. |
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In the case of General
Steam Navigation Company v. Guillou (1), on a demurrer to a plea,
Parke, B., in delivering the considered judgment of the Court of Exchequer,
then consisting of Lord Abinger, C.B., Parke, Alderson, and Gurney, BB., thus
expresses himself: "The substance of the plea is that the cause of action
has been already adjudicated upon, in a competent court, against the
plaintiffs, and that the decision is binding upon them, and that they ought
not to be permitted again to litigate the same question. Such a plea ought to
have had a proper commencement and conclusion. It becomes, therefore,
unnecessary to give any opinion whether the pleas are bad in substance; but
it is not to be understood that we feel much doubt on that question. They do
not state that the plaintiffs were French subjects, or resident, or even
present in France when the suit began, so as to be bound by reason of
allegiance or temporary presence by the decision of a |
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(1)
11 M. & W. 877, 894. |
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French
court, and they did not select the tribunal and sue as plaintiffs, in any of
which cases the determination might have possibly bound them. They were mere
strangers, who put forward the negligence of the defendant as an answer, in
an adverse suit in a foreign country, whose laws they were under no
obligation to obey." |
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It will be seen from this that those very
learned judges, besides expressing an opinion conformable to ours, also
expressed one to the effect that the plaintiffs in that suit did not put
themselves under an obligation to obey the foreign judgment, merely by
appearing to defend themselves against it. On the other hand, in Simpson
v. Fogo
(1), where the
mortgagees of an English ship had come into the courts of Louisiana, to
endeavour to prevent the sale of their ship seized under an execution against
the mortgagors, and the courts of Louisiana decided against them, the
Vice-Chancellor and the very learned counsel who argued in the case seem all
to have taken it for granted that the decision of the Court in Louisiana
would have bound the mortgagees, had it not been in contemptuous disregard of
English law. The case of General Steam Navigation Company
v. Guillou
(2) was not
referred to, and therefore cannot be considered as dissented from; but it
seems clear that they did not agree in the latter part of the opinion there
expressed. |
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We think it better to leave this question
open, and to express no opinion as to the effect of the appearance of a
defendant, where it is so far not voluntary that he only comes in to try to
save some property in the hands of the foreign tribunal. But we must observe
that the decision in De Cosse Brissac v. Rathbone (3) is an
authority that where the defendant voluntarily appears and takes the chance
of a judgment in his favour he is bound. |
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In Douglas v. Forrest (4) the Court,
deciding in favour of the party suing on a Scotch judgment, say: "We
confine our judgment to a case where the party owed allegiance to the country
in which the judgment was so given against him, from being born in it, and by
the laws of which country his property was, at the time those |
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(1)
1 John. & H. 18; 29 L. J. (Ch.) 657; 1 Hem. & M. 195; 32 L. J. (Ch.)
249. |
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(2)
11 M. & W. 877. |
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(3)
6 H. & N. 301; 30 L. J. (Ex.) 238. |
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(4)
4 Bing. at p. 703. |
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judgments
were given, protected. The debts were contracted in the country in which the
judgments were given, whilst the debtor resided in it." Those
circumstances are all negatived here. We should, however, point out that,
whilst we think that there may be other grounds for holding a person bound by
the judgment of the tribunal of a foreign country than those enumerated in Douglas v. Forrest (1), we doubt very much whether
the possession of property, locally situated in that country and protected by
its laws, does afford such a ground. It should rather seem that, whilst every
tribunal may very properly execute process against the property within its
jurisdiction, the existence of such property, which may be very small,
affords no sufficient ground for imposing on the foreign owner of that
property a duty or obligation to fulfil the judgment. But it is unnecessary
to decide this, as the defendants had in this case no property in France. As
to this, see London and North Western Railway Company v.
Lindsay.
(2) |
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We think, and this is all that we need decide,
that there existed nothing in the present case imposing on the defendants any
duty to obey the judgment of a French tribunal. |
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We think, therefore, that the rule must be
made absolute. |
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Attorneys for plaintiff: Stibbard &
Beck. |
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Attorneys for defendants: Thomas &
Hollams. |
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(1)
4 Bing. at p. 703. |
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(2)
3 Macq. 99. |
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(3)
See the preceding case. |
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