HOUSE OF LORDS

The British South Africa Company, Appellants; and The Companhia De Moçambique and Others, Respondents

[1893] A.C. 602


COUNSEL:
Cohen Q.C. and Lord Robert Cecil (Hollams with them) for the appellants
Sir Henry James Q.C. and Bompas Q.C. (T. Willes Chitty with them) for the respondents

SOLICITORS: For appellants: Hollams, Sons, Coward, & Hawksley.
For respondents: Bompas, Bischoff, Dodgson, Coxe, & Bompas.

JUDGES: LORD HERSCHELL L.C., LORD HALSBURY., LORD MACNAGHTEN., LORD MORRIS.

DATE: 1893 Sept. 8.


Jurisdiction — Trespass to Land — Land in Foreign Country — Declaration of Title to Land in Foreign Country — Defendant within Jurisdiction — Local Venue — Rules of Supreme Court Order XXXVI. r. 1.

The Supreme Court of Judicature has no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad; the rules of procedure under the Judicature Acts with regard to local venue (Order XXXVI. r. 1) did not confer any new jurisdiction.

The decision of the Court of Appeal ([1892] 2 Q. B. 358) reversed and the decision of Lawrance and Wright JJ. restored.

APPEAL from an order of the Court of Appeal(1).

In an action by the respondents against the appellants the plaintiffs by their statement of claim alleged (inter alia) that the plaintiff company was in possession and occupation of large tracts of land and mines and mining rights in South Africa; and that the defendant company by its agents wrongfully broke and entered and took possession of the said lands, mines and mining rights, and ejected the plaintiff company, its servants, agents and tenants therefrom; and also took possession of some of the plaintiffs’ personal property and assaulted and imprisoned some of the plaintiffs.

Alternatively the plaintiffs alleged in paragraph 16 that the defendants did the above acts maliciously and without any just cause or excuse and with intent to injure and destroy the plaintiffs’ trade and to deprive the plaintiffs of their lands, mines and mining rights and to put an end to their existence as a trading company in South Africa.

The plaintiffs claimed (inter alia) (1.) a declaration that the

(1) [1892] 2 Q. B. 358.

[*603] plaintiff company were lawfully in possession and occupation of the lands, mines and mining rights and other property; (2.) an injunction restraining the defendant company from continuing to occupy or from asserting any title to the said lands, mines and mining rights, and from withholding and keeping possession of the said other property; (3.) £250,000 damages.

The statement of defence in paragraph 1 — as to so much of the statement of claim as alleged a title in the plaintiff company to the lands, mines and mining rights, and alleged that the defendants by their agents wrongfully broke and entered the same, and claimed a declaration of title and an injunction — whilst denying the alleged title and the alleged wrongful acts, said that the lands, mines and mining rights were situate abroad, to wit in South Africa, and submitted that the Court had no Jurisdiction to adjudicate upon the plaintiffs’ claim; and in paragraph 2 submitted that as matter of law paragraph 16 of the statement of claim disclosed no valid cause of action. The allegations in paragraph 9 of the defence are sufficiently stated at the close of the judgment of Lord Herschell L.C.

In paragraph 2 of the reply the plaintiffs objected that paragraphs 1 and 9 of the defence were bad in law, and alleged that paragraph 1 did not shew that there was any Court other than that in which this action was brought having jurisdiction to adjudicate on the plaintiffs’ said claims; and the plaintiffs further alleged that there was no competent tribunal having jurisdiction to adjudicate on the said claims in the country where the acts complained of were committed; and that the acts complained of were illegal according to the laws of the country where the same were committed.

An order having been made for the disposal of the points of law thus raised by the pleadings, the Queen’s Bench Division (Lawrance and Wright JJ.) made an order that judgment be entered for the defendants dismissing the action so far as it claimed a declaration of title to land, and also so far as it claimed damages or an injunction in relation to trespass to land, and also as to such portion of paragraph 16 of the statement of claim as referred to trespass to land; the objections raised by paragraph 2 of the reply being overruled. [*604]

The Court of Appeal (Fry and Lopes L.JJ., Lord Esher M.R. dissenting) made an order which — after reciting that the plaintiffs by their counsel had abandoned their appeal so far as it related to a declaration that the plaintiff company were lawfully in possession and occupation of the lands, mines and mining rights and other property in the statement of claim mentioned, and also so far as it related to an injunction restraining the defendant company from continuing to occupy or from asserting any title to the said lands, mines and mining rights and from withholding and keeping possession of the said other property — ordered that the order of the Queen’s Bench Division do stand affirmed as regards so much of the relief sought by the statement of claim as aforesaid; but as to the residue of the relief sought by the statement of claim declared that Her Majesty’s Supreme Court has jurisdiction to entertain the same; and ordered that the question as to the plaintiffs’ demurrer to the 9th paragraph of the defence do stand over until the trial of the action, to be dealt with by the judge at the trial.

The defendants appealed against this order except as to that part which affirmed so much of the decision of the Queen’s Bench Division as aforesaid.

May 4, 5, 8, 12, 15, 16, 18. Cohen Q.C. and Lord Robert Cecil (Hollams with them) for the appellants:—

The question was in the first instance one of title, but the prayer for a declaration of title was abandoned and the case is now confined to trespass. The Courts have always refused to entertain cases of trespass to lands abroad; and apart from express words such as are not to be found in the Judicature Acts, the High Court cannot determine an action which previously to 1873 was outside its competence. Lopes L.J. held that the Courts of this country always had the inherent jurisdiction to try an action for trespass abroad; and Fry L.J. partly based his decision on the absence of any other Court which could entertain the action. But no change in the law of venue can supply the want of jurisdiction. By 3 & 4 Wm. 4 c. 42 s. 22 local actions were made triable in any county. It cannot be said that either this section or the Judicature Acts [*605] increase the area of jurisdiction of our Courts. A legal fiction was it is true introduced, and jurisdiction was claimed and exercised in transitory actions which purported to be based either on statutes which could be found, or as Lord King said, on those which “had undoubtedly been lost.” Consult 2 Bac. Abr. tit. Courts 384-5; Lord Hale’s History of the Common Law p. 7-9. At one time it was thought that our Courts had no jurisdiction over transitory actions abroad: Co. Litt. book iii. c. 7, s. 440. Coke there referring to Dowdale’s Case (1) said an obligation made beyond seas might be sued in England in what place the plaintiff will: e.g. at Bourdeaux in France, in Islington in the county of Middlesex. So in Ward’s Case (temp. Charles I.)(2) it is said that Antwerp or “Callis Sands” may be taken to be a house in London. If not in England, it would be outside the jurisdiction. The Courts took cognisance of locality to this extent, that they could not hold Dovedale to be in London. It was not merely a question of venue — but one of jurisdiction. In Jennings v. Hankyn (2 James II.)(3) it was said: “This Court is of an universal jurisdiction and superintendency”; but that language was expressly confined to this country and did not apply to such a case as that of a plaintiff’s declaring on a bond which “was made at Bourdeaux in France, for in such case this Court never had any jurisdiction.” See Selden, Mare Clausum book ii. c. 24. In Skinner v. East India Company (4) it was held that the part of the claim which dealt with an island under the dominion of a foreign prince could not be maintained. But Lopes L.J. held that case inapplicable because there restitution and not damages was sought. In Shelling v. Farmer (5) Eyre C.J. held that the seizure of a house in the East Indies was not triable in England. Wright J. observed below that Lord Mansfield in Mostyn v. Fabrigas (6) seems to have had a mis-report of Shelling v. Fanner (5) before him and declined to follow some of the dicta of Lord Mansfield in that case. Mostyn v. Fabrigas (6) and the cases there cited by Lord Mansfield have no application to a case where the title to land is raised. In

(1) 6 Rep. 47 b.

(2) Latch, 4.

(3) Carth. 11.

(4) 6 State Trials, 710.

(5) 1 Str. 646.

(6) 1 Cowp. 161.

[*606] Doulson v. Matthews (1) it was held that trespass will not lie in this country for entering a house in Canada. Eyre C.J. in Ilderton v. Ilderton (2) said (at p. 161): “Our books are full of cases upon the subject of venues and the doctrine is very nice and curious. It was anciently the opinion of lawyers, that a jury of one county could not try any matter arising within another county, and a foreign county was almost as formidable a thing in point of jurisdiction to try as a foreign country. … Of matter arising in a foreign country …. we have no proper original jurisdiction.” In that case a marriage in Scotland was held to entitle to dower in England, but it was because the marriage only arose incidentally in the suit in dower “of which we have original jurisdiction.”

[LORD HERSCHELL L.C. referred to the note to Parker v. Crook (3): “The words 'In Indibus Orientalibus’ do not necessarily import the place to be out of England. There is a place called Holland in Lincolnshire, and there may be a Fort St. George in the parish of St. Martin's.”]

In Rafael v. Verelst (4) De Grey C.J. speaks of crimes being in their nature local. Wright J. has sufficiently dealt with that case below. In Can v. Cary (5) it is said that “where an agreement is at land and a performance is at sea, it shall be tried where the agreement is made.” And see Buron v. Denman (6). The true view of the law is expressed by Marshall C.J. in Livingston v. Jefferson (7); and see Rundle v. Delaware and Raritan Canal (8). Jurisdiction must not be assumed to exist, it must be proved in each case: Mayor of London v. Cox (9). In The M. Moxham (10) the question of jurisdiction was waived and the law of Spain was held to apply to a tort committed in Spain. In Whitaker v. Forbes (11) an action for arrears of rent-charge issuing out of land in Australia was held not to be maintainable. The decision was affirmed on appeal(12). Where

(1) 4 T. R. 503.

(2) 2 H. Bl. 145.

(3) 10 Mod. 255.

(4) 2 W. Bl. 1055.

(5) 12 Mod. 34.

(6) 2 Ex. 167.

(7) 1 Brockenbrough, 203, 206.

(8) 1 Wallace Jun. 275.

(9) Law Rep. 2 H. L. 239, 261.

(10) 1 P. D. 107-9.

(11) Law Rep. 10 C. P. 583.

(12) 1 C. P. D. 51.

[*607] jurisdiction has been acquired by a legal fiction the Courts will not extend it: Norris v. Chambres (1); Reg. v. Keyn (2). White v. Sanborn (3) decides that an action of covenant founded on privity of estate is local. In Watts v. Kinney (4) it was held that an action on the case for injury to real property situated in another State could not be maintained in the State of New York. Blackstone (vol. 3 p. 107) says: “As the Courts of Common Law have obtained a concurrent jurisdiction with the Court of Chivalry with regard to foreign contracts by supposing them made in England, so it is no uncommon thing for a plaintiff to feign that a contract really made at sea was made at the Royal Exchange or other inland place in order to draw the cognisance of the suit from the Courts of Admiralty to those of Westminster Hall. This the civilians exclaim against loudly as inequitable and absurd: and Sir Thomas Ridley hath very gravely proved it to be impossible for the ship in which such cause of action arises to be really at the Royal Exchange in Cornhill.” In Reg. v. Keyn (2) Lindley L.J. expresses his opinion that the 28 Hen. 8, c. 15 did not extend the jurisdiction of the Commissioners either over a larger district or a larger class of persons; and see the observations of Lord Coleridge C.J. at p. 151. In that case all the judges who held that there was jurisdiction thought it necessary to prove that the particular Court had the jurisdiction.

The contention of the respondents, that the jurisdiction depends, not upon the place where the cause of action has arisen, but upon whether the person or thing against which the judgment is sought is within the territory of the nation in which the courts are situated, is too wide. The jurisdiction cannot depend simply on whether the defendant ie or is not in England. At common law when the defendant was abroad the remedy was distringas or outlawry: see Report of Commissioners on Pleading 1851 pp. 5-7. The Court cannot order service of process abroad without statutory authority: per Bowen L.J. in In re King & Co.’s Trade-mark (5). No Court in this country has direct

(1) 3 D. F. & J. 583.

(2) 2 Ex. D. 63, 87.

(3) 6 New Hampshire Rep. 220.

(4) 6 Hill’s New York Rep. 82.

(5) [1892] 2 Ch. 462, 482.

[*608] original jurisdiction with respect to real estate abroad: Attorney-General v. Stewart (1); Story’s Conflict of Laws ss. 550-555.

[LORD HERSCHELL L.C. referred to Erskine’s Institutes vol. 1 bk. i. tit. Jurisdiction, pp. 25, 33.]

The Courts may in some instances have extended their jurisdiction by a fiction; but if they recognised the claims of the respondents there would be no limit to their jurisdiction: Norris v. Chambres (2).

The respondents contend that the only difficulty in the jurisdiction to entertain an action for trespass to land abroad was one of procedure and has been removed by the Judicature Acts. Brett L.J. in Britain v. Rossiter (3) said: “The true construction of the Judicature Acts is that they confer no new rights: they only confirm the rights which previously were to be found existing in the Courts either of Law or of Equity; if they did more they would alter the rights of parties, whereas in truth they only change the procedure.” So Bowen L.J. in Macdonald v. Tacquah Gold Mines Company (4) said that the Judicature Acts “do not give any right which did not previously exist, but only another mode of procedure.” In Westbury Rural Sanitary Authority v. Meredith (5) Baggallay L.J. said at p. 309: “The Judicature Act does not confer on the High Court a jurisdiction which neither the Court of Chancery nor the Courts of Common Law possessed before it was passed.” See per Cotton L.J. in In re Mills’ Estate (6); and In re Hawthorne (7), where at p. 747 Kay J. said that he was not aware that a contested claim to foreign lands had ever been entertained by an English Court. See also Ellis v. McHenry (8).

[LORD HERSCHELL L.C. referred to Ewing v. Orr Ewing (9) per Earl of Selborne L.C. at p. 40.]

In Earl of Derby v. Duke of Athole (10) Lord Hardwicke held that in a plea to the jurisdiction it must be shewn what other

(1) 2 Mer. 143, 156.

(2) 29 Beav. 246, 53; 3 D. F. & J. 583.

(3) 11 Q. B. D. 123, 129.

(4) 13 Q. B. D. 535, 539.

(5) 30 Ch. D. 387.

(6) 34 Ch. D. 24, 33.

(7) 23 Ch. D. 743.

(8) Law Rep. 6 C. P. 228.

(9) 9 App. Cas. 34.

(10) 1 Ves. Sen. 202.

[*609] Court has jurisdiction; but that was explained in the same case in 2 Ves. Sen. at p. 356, where Lord Hardwicke expressed doubts. On this point see also Nabob of Arcot v. East India Company (1). The cases just cited only shew that a proper plea to the jurisdiction must specify the Court which has jurisdiction; but a plea in bar would be that no municipal Court had jurisdiction: Doulson v. Matthews (2); Livingston v. Jefferson (3). In Penn v. Lord Baltimore (4) it is said (at p. 446) that a plea to the jurisdiction must be offered at the outset. The actual decree in Penn v. Lord Baltimore Pike v. Hoare (5) Lord Henley held that a will affecting lands in the Colonies “is not triable” in this country. If the respondents’ contention were upheld the Courts would have unlimited jurisdiction in all cases everywhere arising between British subjects. In 2 Kent’s Commentaries pp. 463-4 it is laid down that trespasses on real property are properly referable to the forum rei sitae. The limits of the jurisdiction are laid down in Story’s Conflict of Laws s. 544. “The doctrine,” he says, “of the English Courts of Chancery on this head of jurisdiction seems carried to an extent which may perhaps in some cases not find a perfect warrant in the general principles of international public law;” and he cites Lord Cranstown v. Johnston (6). See also Taylor v. Barclay (7).

To sum up, (1.) the Courts at Westminster had no original jurisdiction outside the realm, though in some cases they acquired jurisdiction by legal fiction. (2.) They have always refused to extend the fiction to cases of trespass to land. (3.) The Judicature Acts have only changed procedure and not extended jurisdiction; and such jurisdiction does not exist over lands abroad. (4.) Crimes are strictly local, and the Judicature Acts cannot have given jurisdiction over crimes wherever committed. The distinction between local and transitory actions is well illustrated in Rogers v. Woodbury (8). The jurisdiction in these matters is

(1) 3 Bro. C. C. 292, 302.

(2) 4 T. R. 503.

(3) 1 Brockenbrough, 203.

(4) 1 Ves. Sen. 444.

(5) 2 Eden, 182; Amb. 428.

(6) 3 Ves. 170; 5 Ves. 277.

(7) 2 Sim. 213.

(8) 15 Pickering (32 Massachusetts) 156.

[*610] decided, not by principles of international law, but by those of our own municipal law: see per Cockburn C.J. in Reg. v. Keyn (1). Co. Litt. book iii. c. 7, s. 440; Selden’s Mare Clausum (1635); Vaughan’s Reports (1677 tit. “Process into Wales” 404) of which Lord Hardwicke said that they contained “a great deal of sound and useful learning”; the case cited in Dowdale’s Case (2); Sadock v. Burton (3); Ward’s Case (4); Jennings v. Hankyn ( 5); Ilderton v. Ilderton (6) (nearly twenty years after Mostyn v. Fabrigas (7)); Skinner v. East India Company (8); Shelling v. Farmer (9); Rafael v. Verelst (10); Doulson v. Matthews (11); Mayor of London v. Cox (12); Phillips v. Eyre (13); The M. Morham (14); White v. Sanborn (15); all shew that actions affecting real property and crimes are strictly local in their character and cannot be tried, when they affect foreign countries, in this country. The Court of Chancery extended the jurisdiction; but that extension was only within such limits as it could conveniently enforce. The jurisdiction was confined to cases of trust, fraud and contract. No case has been or can be cited in which there has been a declaration of title to land abroad. In Fryer v. Bernard (16) no doubt Lord Macclesfield granted a sequestration against the defendant in Ireland, but it was only after a sequestration in England and nulla bona returned; and it was based on the ground, no longer tenable, that “the Courts of justice here have a superintendent power over those in Ireland.” In Northern Indiana Railroad Company v. Michigan Central Railroad Company (17) it was held that one State has no jurisdiction in a case in which the matter of controversy lies in another. In Boyse v. Colclough (18) it was held that a decree of the Court of Chancery in Ireland could not be pleaded in bar to a suit in the Court of Chancery in England. See R. v. Harris (19) as to

(1) 2 Ex. D. 63, at pp. 159, et seq.

(2) 6 Rep. 47 b.

(3) Yelv. 202.

(4) Latch, 4.

(5) Carth. 11.

(6) 2 H. Bl. 145, 162.

(7) 1 Cowp. 161.

(8) 6 State Trials, 710.

(9) 1 Str. 646.

(10) 2 W. Bl. 1055.

(11) 4 T. R. 503.

(12) Law Rep. 2 H. L. 239.

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

(14) 1 P. D. 107.

(15) 6 New Hampshire Rep. 220.

(16) 2 P. Wms. 261.

(17) 15 Howard (Sup. Ct. U.S.) 233.

(18) 1 K. & J. 124.

(19) 3 Burr. 1330.

[*611] changing the venue of a criminal information. An elaborate discussion on the question of jurisdiction under the old law will be found in Prynne’s “Brief Animadversions” on the Fourth Part of the Institutes (1669) c. 22 pp. 90-97.

Sir Henry James Q.C. and Bompas Q.C. (T. Willes Chitty with them) for the respondents:—

There are two causes of action: first trespass, and secondly injury to business. No doubt the question of title comes in incidentally by way of evidence to prove the case. The following propositions, for which there is ample authority, establish the respondents’ claim. (1.) The Queen’s Courts have jurisdiction over all persons within the realm. (2.) Those Courts are open to all suitors who can enforce the jurisdiction against all subjects against whom personally effectual relief can be given. (3.) All personal actions can be maintained if the defendants are within the jurisdiction. Now an action of trespass to real property — an action quare clausum fregit — is a personal action. Actions are of three kinds — real, personal and mixed: 3 Steph. Com. 2nd ed. pp. 430, 466. A mixed action is defined in 2 Bracton (ed. by Juris) p. 137 as being for a thing and against a person. This action in no sense answers to that definition. The same principle applies in French law. See Code de Procédure Civile, liv. 2, tit. 2, s. 59; Boullenois, Traité de la Personalité, etc. 601. In Holmes v. Barclay (1) it was held that an action would lie in Louisiana, where French law prevails, for damage done to property in another State, though by the laws of the latter the action would be local. By the law of Louisiana it was personal. There is, however, another classification of actions into 1. Local: 2. Transitory. According to our law quare clausum fregit is a local action — but it is also personal and is sometimes called a personal-local action. It is indisputable that our Courts have jurisdiction in all personal actions where the defendant is domiciled in this country. The objection that the action is local is only one of procedure. There is no want of jurisdiction, and the difficulty of procedure is removed where there is a defendant domiciled in this country against whom judgment can

(1) 4 Louisiana Annual Rep. 63.
[*612] be enforced. The mere circumstance that the subject-matter of the action is abroad does not take away the jurisdiction. The case of crime committed abroad of course stands on a different basis, because the offence is against a foreign State. But the effect of holding that such an action as the present will not lie would be in many instances to prevent justice being done. If the wrong has been done, where is the action to be brought? If it was committed in a civilized country, the defendant might not be resident there. In the case of trespass to land in France, where is the Frenchman’s remedy if the wrong-doer returns to England? In Erskine’s Institutes of the Law of Scotland, i. p. 35 jurisdiction is said to be given by the defendant’s being domiciled within the jurisdiction; and in Graham v. Stevenson (1788)(1) an action between Englishmen was entertained in the Court of Session — the cause of action being a combination to shut up an English inn on the ground that the defender was domiciled in Scotland.

The mere absence from the reports of cases in which the cause of action arose abroad is evidence, not of want of jurisdiction, but of defect of procedure. When that obstacle was removed, the jurisdiction became exercisable. The fact that a local action could not be tried in a different county was not due to any want of jurisdiction — the King’s Courts had jurisdiction everywhere in the realm. Originally the jurors were witnesses: Stephen’s Pleading, 7th ed. 429. The first case of a witness other than a juror is given in the Livre des Assises (ed. 1679) 23rd Edw. iii. p. 110, No. 11. The evil of trying transitory actions elsewhere than in the place of contract was remedied by the statute of 6 Rich. 2, c. 2. The distinction between “local” and “transitory” is explained in Stephen’s Pleading, ed. 1824, p. 306 and in Gilbert’s History of the Practice of Civil Actions to be one of venue and not of jurisdiction. It is the same rule which prevented a Warwickshire action from being tried in Worcestershire. You could not speak of “Capetown in the county of Warwick,” because there would be a variance. In 2 Co. Litt. s. 440 it is said that a trial could be held by certificate without a jury where the thing was done beyond sea. See also Mullineux’s Case (Michaelmas, 24 Eliz.)(2); Viner’s Abridgment tit. Trial (m.f.)

(1) Hume’s Decisions, 250.

(2) Moore (1675), 178.

[*613] Verdict. There was held to be no variance if a videlicet were inserted between the name of a foreign place and the county in which it was proposed to found jurisdiction. See per Willes J. in Mayor of London v. Cox (1); 2 Y. B. Edw. 4, p. 9; Richardson v. Locklin (2); Warren v. Webb (3). In Rex v. Burdett (4) Abbott C.J. said: “There was a time, however, when it was supposed that a jury could not even in a civil action inquire into a matter that did not take place in their own county.” In Bruckshaw v. Hopkins (5) a plaintiff was allowed to bring back the venue after plea pleaded. On the jurisdiction of Courts of Equity in such cases see Story’s Conflict of Laws, ss. 531, 538, 550, 552, where he says: “Personal actions may rightfully be brought between natives in any competent tribunal of the realm: and between foreigners also, who have submitted to the jurisdiction, wherever the laws allow its exercise; and between natives and foreigners in like manner. But in all these cases the domicil of the party defendant is commonly supposed to be within the jurisdiction.” There is no more difficulty in principle in trying the title to land than to a ship. In Scott v. Lord Seymour (6) it was held that a British subject may maintain an action against a fellow-subject for an assault committed abroad. In Lloyd v. Guibert (7) Willes J. says: “Exceptional cases, should they arise, must be dealt with upon their own merits”; and it was held that the law of a ship’s nationality governed the contract of affreightment. In Brown v. Gracey (8), where a promissory note was made in Scotland and sued on in England, it was held incumbent on the defendant to shew any difference between the laws of the two countries. In Whitaker v. Forbes (9) Blackburn J. said: “I do not think this case raises any question as to jurisdiction. … The case turns on the technical distinction between local actions, where the trial must be local, and transitory actions, and the question is one of venue only.” The same principle was adopted in Way v.

(1) Law Rep. 2 H. L. 239, 252.

(2) 6 B. & S. 777; 34 L. J. (Q.B.) 225.

(3) 1 Taunt. 379.

(4) 4 B. & Ald. 95, 171.

(5) 1 Cowp. 409.

(6) 1 H. & C. 219.

(7) Law Rep. 1 Q. B. 115, 129.

(8) Dow. & Ry. N. P. 41, note.

(9) Law Rep. 10 C. P. 583; 1 C. P. D. 51.

[*614] Yally (1) and in Dutch West India Company v. Van Moses (2). In all these cases the difficulty was one of procedure — of variance. If the jurisdiction claimed involved an actual interference with foreign land, it would not be exercised. It is abundantly clear that there is an inherent jurisdiction in the Court, where, as here, the remedy sought is in personam; and that the only hindrance to its exercise is one of procedure which has been removed: Livingston v. Jefferson (3). Pike v. Hoare (4), where the Court refused an issue to try the validity of an English will because it affected lands in Pennsylvania, is doubted by the learned editors of the reports.

The jurisdiction of the Court is that of the Crown, which is complete over its subjects everywhere. That jurisdiction can be extended by Parliament. Down to Lord Mansfield’s time it was doubted whether a tort committed abroad could be tried here. That doubt is now removed, and even an assault by a foreigner on a foreigner committed abroad may be tried by the Courts of this country. See Wheaton’s International Law, 3rd Eng. edn. by Boyd, s. 140; Burge’s Commentaries on Colonial and Foreign Laws, vol. 3, p. 1016. In Castrique v. Imrie (5) Blackburn J. at p. 429 and Lord Chelmsford at p. 448 approve Story’s words in Conflict of Laws, s. 592; see also Code de Procédure Civile, liv. 2, tit. 2, s. 59; Story’s Conflict of Laws, s. 550; Dalloz Jurisprudence Générale, Action, s. 2; Hart v. Herwig (6); Schibsby v. Westenholz (7) per Blackburn J. p. 159. That our Courts are the proper forum, the defendants being domiciled here, is shewn by Roussillon v. Roussillon (8) and Copin v. Adamson (9). Cookney v. Anderson (10) decided that Consolidated Order x. r. 7, empowering the Court to order service of a copy of a bill “in any suit” upon a defendant out of the jurisdiction, applies only to suits concerning land, stock or shares within 2 Wm. 4 c. 33 and 4 & 5 Wm. 4 c. 82. The jurisdiction was affirmed, but the restriction in the character of

(1) 2 Salk. 651.

(2) 1 Str. 612.

(3) 1 Brockenbrough, 203, 208.

(4) 2 Eden, 182; Amb. 428.

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

(6) Law Rep. 8 Ch. 860.

(7) Law Rep. 6 Q. B. 155.

(8) 14 Ch. D. 351, 370.

(9) 1 Ex. D. 17.

(10) 1 D. J. & S. 365.

[*615] the suit overruled by Lord Chelmsford L.C. in Drummond v. Drummond (1). It is sufficient if the Court at home has jurisdiction over either the person or the thing: In re King & Company’s Trade-mark (2) per Bowen L.J. Down to the Judicature Acts, though there was no difficulty with respect to jurisdiction, there was a difficulty in regard to local actions and venue. That obstacle, by the abolition of local venue effected by Order XXXVI. r. 1, has now been removed.

[LORD HERSCHELL L.C. referred to Whitaker v. Forbes (3), Doulson v. Matthews (4) and Neal v. DeGaray (5).]

Whether the jurisdiction existed or not, the decisions in those cases must have been the same on the ground of procedure. Mostyn v. Fabrigas (6) distinctly lays down that these questions are not of jurisdiction, but of procedure. See, too, Jackson v. Mayor of Barwick (7).

There is no competent Court where the land is situate: there is no Court in the world, except in this country, where the action can be tried. In R. v. Johnson (8) Lord Ellenborough C.J. held that a plea to the jurisdiction cannot be merely negative but ought to give some other Court by which the matter may be tried. In re Hawthorne, Graham v. Massey (9) in which Kay J. refused to entertain an action for the purchase-money of foreign land is distinguishable, because there was no satisfactory evidence of the foreign law of real estate. But English Courts constantly enforce contracts made abroad, though the interpretation of the contract is governed by the local law. Paragraph 16 of the statement of claim is founded upon Bowen L.J.’s observations in Mogul Steamship Company v. McGregor, Gow & Co. (10). See also Keeble v. Hickeringill (11). The plaintiffs have not only local injuries but also transitory injuries to complain of: loss suffered in trade — breakage of furniture, assault and imprisonment, which are not the less personal and

(1) Law Rep. 2 Ch. 32.

(2) [1892] 2 Ch. 462, 483.

(3) Law Rep. 10 C. P. 583; 1 C. P. D. 51.

(4) 4 T. R. 503.

(5) 7 T. R. 243.

(6) 1 Sm. L. C. 9th Ed. p. 665.

(7) Sid. 381.

(8) 6 East, 583, 597.

(9) 23 Ch. D. 743.

(10) 23 Q. B. D. 598, 613.

(11) 11 East, 574, n.

[*616] transitory because they arise out of trespass to land. In Harvey v. Mayne (1) the detention of a plaintiff was held illegal though he had defendant’s goods in his possession. With respect to the allegations in paragraph 9 of the defence, the distinction between recognised and unrecognised foreign States is discussed in Thompson v. Barclay (2); Thompson v. Powles (3); Taylor v. Barclay (4). These cases are not altogether consistent with each other; but it is established that if the Sovereignty of an unrecognised State is set up in opposition to a recognised state — such as Portugal in the present case — the former will be disregarded: Jones v. Garcia del Rio (5), per Lord Eldon C.; Dolder v. Bank of England (6); City of Berne v. Bank of England (7); Republic of Peru v. Dreyfus (8); Republic of Peru v. Peruvian Guano Company (9). In Martin v. Martin (10) a mortgage of land in Demerara which was void by the law of Demerara, was enforced: the equity being held to attach only to the person and not to the estate. The Court had no difficulty in deciding though the title to foreign real estate was involved. So in Cood v. Cood (11) a contract between domiciled Englishmen relating to land abroad was held to be governed by English law and therefore cognisable by Courts in England, though it had been adjudicated upon by the Courts where the land was situate. A good title, if possession be held, is not necessary to maintain an action for trespass: Graham v. Peat (12). See also Holmes v. Reg. (13). Ind, Coope & Co. v. Emmerson (14) shews the enlargement of jurisdiction effected by the Judicature Acts.

If a judgment of a foreign Court was relied upon, it is admitted there would be jurisdiction: and it follows from this admission that if proof is given of the personal and transitory injuries the Court may award damages. If the respondents are not entitled

(1) Ir. Rep. 6 C. L. 417.

(2) 6 L. J. (O.S.) Ch. 93; 9 L. J. (O.S.) (Ch.) 215.

(3) 2 Sim. 194.

(4) 2 Sim. 213.

(5) 1 Turn. & R. 297, 299.

(6) 10 Ves. 352.

(7) 9 Ves. 347.

(8) 38 Ch. D. 348.

(9) 36 Ch. D. 489, 497.

(10) 2 Russ. & M. 507.

(11) 9 Jur. (N.S.) 1335.

(12) 1 East, 244.

(13) 31 L. J. (Ch.) 58.

(14) 12 App. Cas. 300.

[*617] to the whole of this claim, they are at least entitled to the relief claimed in paragraph 16.

Cohen Q.C. in reply.

The House took time for consideration.

Sept. 8. LORD HERSCHELL L.C.:-

My Lords, the principal question raised by this appeal is whether the Supreme Court of Judicature has jurisdiction to try an action to recover damages for a trespass to lands situate in a foreign country.

It is not in controversy that prior to the Judicature Acts no such jurisdiction could have been exercised; but it is asserted on behalf of the respondents that the only barrier to its exercise was the technical one, that the venue in such a case must be local, and that the rules made under the Judicature Acts which have abolished local venues have removed the sole impediment which prevented the Courts entertaining and adjudicating on cases of this description. This contention has been sustained by a majority of the Court of Appeal, reversing the judgment of the Queen’s Bench Division, with which, however, the Master of the Rolls agreed.

The nature of the controversy between the parties renders it necessary to consider the origin of the distinction between local and transitory actions, and the development of the law which determined the venue or place of trial of issues of fact.

It was necessary originally to state truly the venue — that is, the place in which it arose — of every fact in issue, whether those on which the plaintiff relied, or any matter stated by way of defence; and if the places were different, each issue would be tried by a jury summoned from the place in which the facts in dispute were stated to have arisen. After the statute 17 Car. 2, c. 8, which provided that “after verdict judgment should not be stayed or reversed for that there was no right venue, so as the cause were tried by a jury of the proper county or place where the action was laid,” the practice arose, which ultimately became regular and uniform, of trying all the issues by a jury of the [*618] venue laid in the action, even though some of the facts were laid elsewhere. When juries ceased to be drawn from the particular town, parish, or hamlet where the fact took place, that is, from amongst those who were supposed to be cognisant of the circumstances, and came to be drawn from the body of the county generally, and to be bound to determine the issues judicially after hearing witnesses, the law began to discriminate between cases in which the truth of the venue was material and those in which it was not so. This gave rise to the distinction between transitory and local actions, that is, between those in which the facts relied on as the foundation of the plaintiff’s case have no necessary connection with a particular locality and those in which there is such a connection. In the latter class of actions the plaintiff was bound to lay the venue truly; in the former he might lay it in any county he pleased. It was, however, still necessary to lay every local fact with its true venue on peril of a variance if it should be brought in issue. Where a local matter occurred out of the realm, a difficulty arose, inasmuch as it was supposed that the issue could not be tried, as no jury could be summoned from the place, and it was by the general rule essential that a jury should be summoned from the venue laid to the fact in issue. It was, however, early decided that, notwithstanding the general rule, such matters might be tried by a jury from the venue in the action, and thus the difficulty was removed and the form was introduced of adding after the statement of the foreign place the words, “To wit at Westminster in the county of Middlesex,” or whatever else might happen to be the venue in the action.

The point arose in 30 & 31 Eliz., in an action of assumpsit on a policy of assurance(1). The plaintiff declared that the defendant at London “did assume that such a ship should sail from Melcomb Regis, in the county of Dorset, to Abvile in France safely, and that the said ship in sailing towards Abvile, scilicet in the river of Soame in the realm of France, was arrested by the King of France.” The parties came to issue whether the ship was so arrested or not, and this issue was tried before the Chief Justice in London, and found for the plaintiff. It was moved in arrest of judgment, that this issue, arising from a place without the

(1) Cited in Dowdale’s Case, 6 Rep. 47 b.

[*619] realm, could not be tried; and, if it could, it was contended the jury should come from Melcomb, “for by common intendment they may have best knowledge of the arrest.” But it was resolved that the issue should be tried where the action was brought. “Here.” it was said, “the promise was made here in London, which is the ground and foundation of the action; and therefore there is in this case of necessity it shall be tried, or otherwise it should not be tried at all.”

It is, I think, important to observe that the distinction between local and transitory actions depended on the nature of the matters involved and not on the place at which the trial had to take place. It was not called a local action because the venue was local, or a transitory action because the venue might be laid in any county, but the venue was local or transitory according as the action was local or transitory. It will be seen that this distinction is material when the Judicature Rule upon which so much turns comes to be examined.

My Lords, I cannot but lay great stress upon the fact that whilst lawyers made an exception from the ordinary rule in the case of a local matter occurring outside the realm for which there was no proper place of trial in this country, and invented a fiction which enabled the Courts to exercise jurisdiction, they did not make an exception where the cause of action was a local matter arising abroad, and did not extend the fiction to such cases. The rule that in local actions the venue must be local did not, where the cause of action arose in this country, touch the jurisdiction of the Courts, but only determined the particular manner in which the jurisdiction should be exercised; but where the matter complained of was local and arose outside the realm, the refusal to adjudicate upon it was in fact a refusal to exercise jurisdiction, and I cannot think that the Courts would have failed to find a remedy if they had regarded the matter as one within their jurisdiction, and which it was proper for them to adjudicate upon.

The earliest authority of importance is Skinner v. East India Company (1). The House of Lords in that case referred it to the judges to report whether relief could be obtained in respect of

(1) 6 State Trials, 710, 719.

[*620] the matters mentioned in the petition, either at law or in equity, and if so in what manner. The judges answered, “that the matters touching the taking away of the petitioner’s ship and goods and assaulting of his person, notwithstanding the same were done beyond the seas, might be determined upon by His Majesty’s ordinary Courts at Westminster. And as to the dispossessing him of his house and island, that he was not relievable in any ordinary Court of Law.”

Notwithstanding the opinion thus expressed, Lord Mansfield entertained and acted on the view that where damages only were sought in respect of a trespass committed abroad, an action might be maintained in this country, although it was one which would here be a local action(1). He referred to two cases which had come before him. One was an action against Captain Gambier for pulling down the houses of some sutlers. Objection was taken to the action founded on the case just referred to of Skinner v. East India Company (2). Lord Mansfield overruled the objection, on this principle, that the reparation was personal and for damages, and that otherwise there would be a failure of justice, for it was on the coast of Nova Scotia, where there were no regular Courts of Judicature, and if there had been, Captain Gambier might never go there again, and therefore the reason of locality in such an action in England did not hold. The other case was that of Admiral Palliser, who was sued for destroying fishing huts on the Labrador Coast, where, it was said, there were no local courts, and therefore whatever injury had been done there by any of the King’s officers would have been altogether without redress if the objection of locality would have held. The consequence of that circumstance shewed (said Lord Mansfield) that “where the reason fails, even in actions which in England would be local actions, yet it does not hold to places beyond the seas within the King’s dominions.” It does not appear clear from the language used by Lord Mansfield that he would have regarded a trespass to land committed beyond the seas and outside the King’s dominions as within the cognizance of our Courts.

(1) See Mostyn v. Fabrigas, 1 Cowp. 161, 180.

(2) 6 State Trials, 710, 719.

[*621] The view acted on by Lord Mansfield in the two cases referred to has not been followed. It came before the Court of Queen’s Bench for consideration in Doulson v. Matthews (1), which was an action of trespass for entering the plaintiff’s house in Canada and expelling him therefrom. The decisions of Lord Mansfield were relied on by the plaintiff, but the action was held not to lie. Buller J. in delivering judgment said: “It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions: it is sufficient for the Courts that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here which are in their nature transitory, though arising out of a transaction abroad; but not such as are in their nature local.”

In saying that we may not try actions here arising out of transactions abroad which are in their nature local, I do not think that the learned judge was referring to the mere technical difficulty of there being no venue in this country in which these transactions could be laid, but to the fact that our Courts did not exercise jurisdiction in matters arising abroad “which were in their nature local.” The case of Doulson v. Matthews (1) has ever since been regarded as law, and I do not think it has been considered as founded merely on the technical difficulty that in this country a local venue was requisite in a local action.

In the case of Mayor of London v. Cox (2), that very learned judge, Willes J., said: “And even in superior Courts themselves, where the subject-matter is such as to imply a local limit of jurisdiction, the exception is peremptory; there is no necessity for a dilatory plea, nor is the objection waived by pleading in chief. Thus, if an action of trespass to land situate abroad were brought in the Queen’s Bench, the defendant need not plead a dilatory plea shewing what Court has jurisdiction; but if the foreign locality appeared upon the count he might demur, and if it did not appear he might plead in chief or bar a denial of the trespass (which would be assumed as alleged within the jurisdiction), and at the trial the plaintiff would be nonsuited or

(1) 4 T. R. 503.

(2) Law Rep. 2 H. L. at p. 261.

[*622] lose the verdict; and whether upon demurrer or plea the ordinary judgment would be given for the defendant (Doulson v. Matthews).”

It is clear that Willes J. regarded an action of trespass to land situate abroad as outside the local limit of jurisdiction of the Court of Queen’s Bench. The same learned judge, in Phillips v. Eyre (1), said: “Our Courts are said to be more open to admit actions founded upon foreign transactions than those of any other European country; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land; and even with respect to those not falling within that description, our Courts do not undertake universal jurisdiction.”

In the case of The M. Moxham (2), where injury had been caused to a pier belonging to an English company, but situated in a Spanish port, the ship, by the alleged negligent navigation of which the damage had been caused, was arrested in Spain, but was released on an agreement with the owners that their liability should be determined by proceedings in the English Courts. James L.J. said, that but for the agreement come to between the parties “very grave difficulties indeed might have arisen as to the jurisdiction of this Court to entertain any jurisdiction or proceedings whatever with respect to injury done to foreign soil.”

The distinction between matters which are transitory or personal and those which are local in their nature, and the refusal to exercise jurisdiction as regards the latter where they occur outside territorial limits, is not confined to the jurisprudence of this country. Story, in his work on the Conflict of Laws (s. 551), after stating that by the Roman law a suit might in many cases be brought, either where property was situate or where the party sued had his domicil, proceeds to say that “even in countries acknowledging the Roman law it has become a very general principle that suits in rem should be brought where the property is situate; and this principle is applied with almost universal approbation in regard to immovable property. The same rule

(1) Law Rep. 6 Q. B. at p. 28.

(2) 1 P. D. 107.

[*623] is applied to mixed actions, and to all suits which touch the realty.”

In section 553, Story quotes the following language of Vattel: “The defendant’s judge” (that is, the competent judge) says he, “is the judge of the place where the defendant has his settled abode, or the judge of the place where the defendant is when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In such a case, as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends.” He adds, in the next section: “It will be perceived that in many respects the doctrine here laid down coincides with that of the common law. It has been already stated that by the common law personal actions, being transitory, may be brought in any place where the party defendant can be found; that real actions must be brought in the forum rei sit34; and that mixed actions are properly referable to the same jurisdiction. Among the latter are actions for trespasses and injuries to real property which are deemed local; so that they will not lie elsewhere than in the place rei sit34.”

The doctrine laid down by foreign jurists, which is said by Story to coincide in many respects with that of our common law, obviously had relation to the question of jurisdiction, and not to any technical rules determining in what part of a country a cause was to be tried. Story was indeed regarded by one of the learned judges in the Court below(1) as sanctioning the view that our rules with regard to venue in the case of local actions offered the only obstacle to the exercise of jurisdiction in actions of trespass to real property. The passage relied on is as follows (s. 554): “Lord Mansfield and Lord Chief Justice Eyre held at one time a different doctrine, and allowed suits to be maintained in England for injuries done by pulling down houses in foreign unsettled regions, namely, in the desert coasts of Nova Scotia and Labrador. But this doctrine has been since overruled as untenable according to the actual jurisprudence of England,

(1) Lopes, L.J., [1892] 2 Q. B. 420.

[*624] however maintainable it might be upon general principles of international law, if the suit were for personal damages only.”

By the words “untenable according to the actual jurisprudence of England,” I do not think Story was referring to the rule which in this country regulated the place of trial in the case of local actions. Nor am I satisfied that either Lord Mansfield or Story would have regarded an action of trespass to land as a suit for personal damages only, if the title to the land were in issue, and in order to determine whether there was a right to damages it was necessary for the Court to adjudicate upon the conflicting claims of the parties to real estate. In both the cases before Lord Mansfield, as I understand them, no question of title to real property was in issue. The sole controversy was, whether the British officers sued were, under the circumstances, justified in interfering with the plaintiffs in their enjoyment of it.

The question what jurisdiction can be exercised by the Courts of any country according to its municipal law cannot, I think, be conclusively determined by a reference to principles of international law. No nation can execute its judgments, whether against persons or movables or real property, in the country of another. On the other hand, if the Courts of a country were to claim, as against a person resident there, jurisdiction to adjudicate upon the title to land in a foreign country, and to enforce its adjudication in personam, it is by no means certain that any rule of international law would be violated. But in considering what jurisdiction our Courts possess, and have claimed to exercise in relation to matters arising out of the country, the principles which have found general acceptance amongst civilised nations as defining the limits of jurisdiction are of great weight.

It was admitted in the present case, on behalf of the respondents, that the Court could not make a declaration of title, or grant an injunction to restrain trespasses, the respondents having in relation to these matters abandoned their appeal in the Court below. But it is said that the Court may inquire into the title, and, if the plaintiffs and not the defendants are found to have the better title, may award damages for the trespass committed. My Lords, I find it difficult to see why this distinction should [*625] be drawn. It is said, because the Courts have no power to enforce their judgment by any dealing with the land itself, where it is outside their territorial jurisdiction. But if they can determine the title to it and compel the payment of damages founded upon such determination, why should not they equally proceed in personam against a person who, in spite of that determination, insists on disturbing one who has been found by the Court to be the owner of the property?

It is argued that if an action of trespass cannot be maintained in this country where the land is situate abroad a wrong-doer by coming to this country might leave the person wronged without any remedy. It might be a sufficient answer to this argument to say that this is a state of things which has undoubtedly existed for centuries without any evidence of serious mischief or any intervention of the legislature; for even if the Judicature Rules have the effect contended for, I do not think it can be denied that this was a result neither foreseen nor intended. But there appear to me, I confess, to be solid reasons why the Courts of this country should, in common with those of most other nations, have refused to adjudicate upon claims of title to foreign land in proceedings founded on an alleged invasion of the proprietary rights attached to it, and to award damages founded on that adjudication.

The inconveniences which might arise from such a course are obvious, and it is by no means clear to my mind that if the Courts were to exercise jurisdiction in such cases the ends of justice would in the long run, and looking at the matter broadly, be promoted. Supposing a foreigner to sue in this country for trespass to his lands situate abroad, and for taking possession of and expelling him from them, what is to be the measure of damages? There being no legal process here by which he could obtain possession of the lands, the plaintiff might, I suppose, in certain circumstances, obtain damages equal in amount to their value. But what would there be to prevent his leaving this country after obtaining these damages and re-possessing himself of the lands? What remedy would the defendant have in such a case where the lands are in an unsettled country, with no laws or regular system of government, but where, to use a familiar [*626] expression, the only right is might? Such an occurrence is not an impossible, or even an improbable, hypothesis. It is quite true that in the exercise of the undoubted jurisdiction of the Courts it may become necessary incidentally to investigate and determine the title to foreign lands; but it does not seem to me to follow that because such a question may incidentally arise and fall to be adjudicated upon, the Courts possess, or that it is expedient that they should exercise, jurisdiction to try an action founded on a disputed claim of title to foreign lands.

Reliance was placed on the decisions of Courts of Equity, as shewing that our Courts were ready, when no technical difficulty of venue stood in the way, to adjudicate on the title to lands situate abroad. If the refusal of the Common Law Courts to exercise jurisdiction in cases of the nature now under consideration had been regarded as the result of a mere technical difficulty, I cannot help thinking that the Courts of Equity, which were, in early days, at all events, keen to supplement the deficiencies of the Common Law, when the requirements of justice were impeded by technical difficulties, would have found some means of affording a remedy. Lord Mansfield, in his judgment in Mostyn v. Fabrigas (1), refers to a case of an injury in the East Indies similar to that with which he had to deal in the case of Captain Gambier, in which Lord Hardwicke in a Court of Equity had directed satisfaction to be made in damages. But in this exercise of jurisdiction he has not been followed by any judge of the Court of Chancery.

Whilst Courts of Equity have never claimed to act directly upon land situate abroad, they have purported to act upon the conscience of persons living here. In Lord Crawstown v. Johnston (2), Sir R. P. Arden, Master of the Rolls, said: “Archer v. Preston, Lord Arglasse v. Muschamp, and Lord Kildare v. Eustace, clearly shew that with regard to any contract made, or equity between persons in this country, respecting lands in a foreign country, particularly in the British dominions, this Court will hold the same jurisdiction as if they were situate in England.”

Story, in his Conflict of Laws, ss. 544, 545, although he says

(1) 1 Cowp. 161, 180.

(2) 3 Ves. 170, 182.

[*627] that to the extent of the decision in Crawstown v. Johnston (1) there may, perhaps, not be any well-founded objection, nevertheless expresses the view that the doctrine of the English Courts of Chancery on this head of jurisdiction seems carried to an extent which may perhaps in some cases not find a perfect warrant in the general principles of international public law, and therefore it must have a very uncertain basis as to its recognition in foreign countries so far as it may be supposed to be founded upon the comity of nations. My Lords, the decisions of the Courts of Equity do not, to my mind, afford any substantial support to the view that the ground upon which the Courts of Common Law abstained from exercising jurisdiction in relation to trespasses to real property abroad was only the technical difficulty of venue.

In the case of Whitaker v. Forbes (2) — where the action was begun before but the demurrer was heard in the Court of Appeal after the Judicature Acts came into operation — the question arose whether the plaintiff could recover against a defendant resident in this country the arrears of a rent-charge issuing out of lands in Australia. The opinion expressed by Lord Blackburn in the course of the appeal in that case was much relied on by the respondents: “I do not think that this case” (said the learned judge) “raises any question as to jurisdiction, though in some respects it has been argued as if it did. The case turns on the technical distinction between local actions where the trial must be local, and transitory actions, and the question is one of venue only.” It is unnecessary to consider whether in circumstances such as gave rise to the action of Whitaker v. Forbes (2) an action might, since the Judicature Rules came into force, be maintained in the Courts of this country. I do not think the dictum of the learned judge in that case can be regarded as of any great weight in determining the question with which your Lordships have to deal.

The terms of rule 1 of Order XXXVI., which are relied on by the plaintiffs, are as follows: “There shall be no local venue for the trial of any action except where otherwise provided by statute.” The language used appears to me important. The

(1) 3 Ves. 170.

(2) Law Rep. 10 C. P. 583; in C. A. 1 C. P. D. 51.

[*628] rule does not purport to touch the distinction between local and transitory actions — between matters which have no necessary local connection, and those which are local in their nature. It deals only with the place of trial, and enables actions, whatever their nature, to be tried in any county. But it is, in my opinion, a mere rule of procedure, and applies only to those cases in which the Courts at that time exercised jurisdiction. It has been more than once held that the rules under the Judicature Acts are rules of procedure only, and were not intended to affect, and did not affect, the rights of parties. Thus in Kendall v. Hamilton (1) it was suggested that the law laid down in King v. Hoare (2) had been altered by the Judicature Acts owing to the abolition of a plea in abatement. Lord Cairns said: “I am unable to agree to this suggestion. I cannot think that the Judicature Acts have changed what was formerly a joint right of action into a right of bringing several and separate actions. And although the form of objecting, by means of a plea in abatement to the non-joinder of a defendant, who ought to be included in the action, is abolished, yet I conceive that the application to have the person so omitted included as a defendant ought to be granted or refused on the same principles on which a plea in abatement would have succeeded or failed.”

Again, in Britain v. Rossiter (3) Lord Esher M.R. said: “I think that the true construction of the Judicature Acts is that they confer no new rights; they only confirm the rights which previously were found to be existing in the Courts either of Law or Equity.”

According to the contention of the respondents in this case the rule under consideration had the effect of conferring upon them a right of action in this country which they would not otherwise have possessed. As I have already pointed out, a person whose lands, situate in this country, were trespassed upon always had a right of action in respect of the trespass. The rules relating to venue did no more than regulate the manner in which the right was to be enforced. But in respect of a trespass to land situate abroad there was no right of action,

(1) 4 App. Cas. 503, 516.

(2) 13 M. & W. 494.

(3) 11 Q. B. D. at p. 129.

[*629] for an alleged right which the Courts would neither recognise nor enforce did not constitute any right at all in point of law.

My Lords, I have come to the conclusion that the grounds upon which the Courts have hitherto refused to exercise jurisdiction in actions of trespass to lands situate abroad were substantial and not technical, and that the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before. If this conclusion be well founded, I do not think that the allegation contained in paragraph 16 of the statement of claim, “that the defendant company did and committed the acts above mentioned and complained of with intent to injure and destroy the trade of the plaintiff company, and to deprive it of its aforesaid lands, territories, mines, minerals, and mining rights and property,” disclosed a cause of action cognizable by our Courts any more than the paragraph complaining of trespass.

The 9th paragraph of the statement of defence alleged that the lands in question were in the possession of a certain native chief named Umtasa, who exercised sovereignty over the same, and that by a concession or treaty granted by Umtasa and his indunas or council to the defendants, they acquired the right to possession and occupation of the lands, and that the plaintiffs were wrongfully attempting to take possession of the lands, and that the defendants did the acts complained of in order to prevent the plaintiffs from so wrongfully taking possession of them. This defence was demurred to by the 2nd paragraph of the reply. The Queen’s Bench Division overruled the demurrer; but the Court of Appeal varied this judgment by ordering the demurrer to stand over until the trial of the action, to be dealt with by the judge at the trial. The Master of the Rolls thought the decision of the Divisional Court on this point correct. And I do not understand that either of the learned judges who concurred in varying the order doubted that, if proved, the paragraph in dispute disclosed a valid defence in point of law. The case of Thompson v. Barclay (1) and others of the same description, in which it is said the Courts have

(1) 6 L. J. (O.S.) Ch. 93; 9 L. J. (O.S.) Ch. 215.

[*630] refused to recognise the sovereign rights of provinces which had revolted from a State at amity with Great Britain, and whose independence was not shewn to have been recognised by the proper authorities in this country, appear to me to have no application to the circumstances of the present case. I do not see any sufficient ground for disturbing the judgment of the Queen’s Bench Division on this point. Whether the plea can be proved, and whether the determination of any question raised by it will be for the judge and not the jury, is a question which does not arise at the present time.

For the reasons with which I have troubled your Lordships at some length, I think the judgment appealed from should be reversed and the judgment of the Divisional Court restored, and that the respondents should pay the costs here and in the Court below, and I move your Lordships accordingly.

LORD HALSBURY:-

My Lords, although I am unable to concur with the conclusion at which Lopes L.J. arrived, I think he stated very clearly the only real question which is in debate. That learned judge said that in his opinion the Courts of this country have and always had the inherent jurisdiction contended for, namely, the jurisdiction to try an action for trespass to land situated in a foreign country, and that the only objection to doing so arose from the technical rule of local venue: that is the question very plainly stated, and, if that be the correct view of the law, the legislation of 1873 having altered the technical rule, the action might be tried in England. I am, however, unable to concur in that view. It is true that the phrase “local venue” is technical, and would not, I think, have been intended by the learned persons responsible for the legislation of 1873 to have been understood to refer to any question of jurisdiction at all. Rules of procedure and practice in England would not, I think, in the contemplation of any one, touch questions of territorial or international jurisdiction. The word “venue” has come to be used as if it were literally equivalent to the word “place”; but that was not its original meaning, although the idea of place is included [*631] within it; but it is not accurate to speak of “venue” as though it referred to place in an unlimited sense.

No two questions can be more distinct than the question whether a matter is in the jurisdiction of the English Courts at all, and whether a matter undoubtedly within the jurisdiction of the Courts shall be assigned for trial to particular Courts in England. There is a concurrence of opinion of most jurists, if not all, as to the difference between what we call realty and personalty, by whatever words those things are distinguished in the jurisprudence of foreign countries, which affects very materially the right to try. Vattel distinguishes the questions which may properly be tried where defendant has his settled place of abode, but always subject to this, that if the matter relates to an estate in land or to a right annexed to such an estate, “in such a case, inasmuch as property of the kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends.” I am quoting Story’s version of Vattel’s language(1). That very learned lawyer proceeds to point out that the distinction between local and transitory actions is one which is known to the common law. I somewhat doubt whether Story J. intended by his language to enter into the controversy as to whether the principle expressed in the maxim, “Debitum et contractus sunt nullius loci,” is coeval with what we know as the common law. Lord Coke undoubtedly does say so in Bulwer’s Case (2); but, as Serjeant Stephen points out, it is difficult to reconcile that view with the known history of our jurisprudence in respect of the original functions of the jury to whom was at one time committed the proof as well as the determination of a cause; and it is not consistent with the observations of Gilbert C.B. (Gilbert’s History of Civil Actions p. 84). I think that what Story J. intended to refer to was the actual system of our common law at the time he wrote; and undoubtedly the current of authority at that time was all in one direction. Although the original state of our law may not be very important in respect of the controversy now before your

(1) Story’s Conflict of Laws, s. 553.

(2) 7 Rep. 3 a.

[*632] Lordships, there is one view of it that seems to me to throw a considerable light upon the question now in controversy.

The invention of fictions and the limit within which they were permitted is discussed at length in Prynne’s Animadversions on, Amendments of, Additional records to, the fourth part of the Institutes, a mine of learning upon the subject of legal antiquities which the diligence of the learned counsel who argued this question at your Lordships’ Bar has turned to skilful account. Prynne boldly states that no such fiction was permitted before the date of Henry VIII.; but the reasons given for the permitting of the fiction and the limitation within which it was permitted seem to me more important than its date. It was a principle of pleading well understood and rigorously enforced, that a traverse must not be taken on an immaterial point. Where therefore the actual place of, for instance, a debt or contract was alleged (though contrary to the fact) to be some place in England, the defendant was not at liberty to deny that the place alleged was in England, since in such matters the place was immaterial. But wherever the place was material, as the unvarying current of authorities establishes that it was in all controversies relating to land, the defendant might traverse the place, and, even if he did not, if it appeared in proof that the place was out of England, the plaintiff was nonsuited.

I do not think that one authority has been cited to your Lordships to the contrary, with the single exception of Lord Mansfield’s references to what took place before himself and at Nisi Prius. My Lords, I confess that the authority of Lord Mansfield appears to me to prove too much. He appears to have surmounted the difficulty of local venue in a manner which is wholly irreconcilable with the argument so much pressed upon your Lordships, that the absence of precedent in the present action is accounted for throughout all English legal history by the objection that the rule of local venue formed a bar to an action being brought. But it appears to have been omitted to be considered that Lord Mansfield decided in the plaintiff’s favour, and, so far as I can judge from the phrase used by his Lordship, “which in England would be local actions,” he must have decided upon the ground that inasmuch as the action before [*633] himself was for trespass to realty abroad the action would not be limited by the rule of local actions in England. Whether the argument be good or bad, it certainly is not one which sustains the contention that it was the law of local venue which prevented such actions being tried in England. I further doubt very much whether the observations attributed to Lord Mansfield can be quite accurately recorded. His Lordship undoubtedly seems to have misunderstood the case of Shelling v. Farmer (1), since he attributes to Eyre C.J.’s decision the very reverse of what that learned judge decided. The plaintiff in that case sued for trespass to his person and to his house in the East Indies; and Eyre C.J. rejected evidence as to the house, though Lord Mansfield quotes him as overruling the objection. This was in 1739; in 1774 the case of Mostyn v. Fabrigas (2) was decided; and in 1792, in Doulson v. Matthews (3), Lord Kenyon and Buller J., in judgments which were supposed to have settled the law, held that as a matter of settled practice actions of trespass to land were local. In the opinions of the judges delivered to your Lordships’ House by Willes J. it is stated, without any qualification, that an action of trespass to land abroad did not lie. It is difficult to construe Lord Mansfield’s own language consistently with the view which he is supposed to have entertained; but whatever account may be given of his Lordship’s utterances, which in respect of the matters before him in Mostyn v. Fabrigas (2) were undoubtedly obiter, I must say that I could not yield to his authority, when it is opposed to the views of so many judges from 1667 downwards.

There is one observation made by Fry L.J. in the Court of Appeal which appears to me to be subject to very much the same criticism which I have suggested in respect of Lord Mansfield’s utterance, namely, that it proves too much. After describing the limitations upon the jurisdiction of the King’s Courts the Lord Justice says that “gradually their jurisdiction was extended, especially by the legislation and the quo warranto proceedings of Edward I., until, in the lapse of time, it burst the barriers within which it was originally confined and came to be not inaptly described as 'a universal jurisdiction and

(1) 1 Str. 646.

(2) 1 Cowp. 161.

(3) 4 T. R. 503.

[*634] superintendency.'” The Lord Justice was too severe a logician not to have measured the extent of the language which he thus quotes; but I am satisfied that he would himself have admitted that in thus speaking of the jurisdiction of the English Courts the words “universal” and “superintendency” must receive some limitation; and the only limitation that to my mind they are properly susceptible of would be by the addition of the words “over all Courts and causes in England.” If they were to be understood according to the exact and precise meaning of the language employed without some such limitation, they would to my mind be so obviously inaccurate as not to require to be further dealt with.

I am therefore of opinion that the judgment of Wright J. and of the Master of the Rolls was correct, and I think therefore that the judgment on this point should be reversed.

With respect to the alteration made in the order of the Queen’s Bench Division as to the other point raised, I confess I have been a little at a loss to understand either the meaning of the alteration or the argument by which that alteration was sought to be supported. I cannot doubt that the defence if proved is a good one. Whether it can be proved or not is a question to be determined at the trial, and if by the argument it is suggested (and so far as I understand it at all it seems to be suggested) that as a matter of law it cannot be proved, I repeat I do not even understand what is meant.

I think therefore the original order should be restored.

LORD MACNAGHTEN:-

My Lords, I concur in the motion which has been proposed and in the reasons upon which it is founded.

LORD MORRIS:-

My Lords, I have had the advantage of reading the judgment of the Lord Chancellor, and I may say that I entirely concur in it and could not hope usefully to add anything.

Order of the Court of Appeal reversed so far as appealed from and judgment of the Queen’s [*635] Bench Division restored with costs here and below; cause remitted to the Queen’s Bench Division.

Lords’ Journals 8th September 1893.