Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 7

Westlaw,
(1870-71) L.R. 6 Q.B. 155
(1870-71) L.R. 6 Q.B. 155 (1870-71) L.R. 6 Q.B. 155
(Cite as: (1870-71) L.R 6 Q.B. 155)

c

*155 Schibsby v Westenholz and Others
Queen's Bench Division
JJ.

Blackburn, Mellor, Lush, and Hannen
1870 Dec. 10

Action-Foreign
Judgment-Judgment
for default
of Appearance against a Defendant not Resident nor
a Subject of the Country.

Page 1

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.
Issue thereon.
At the trial, before Blackburn, J., at the London sittings after Hilary Term, 1870, a verdict was found for
the plaintiff with leave *156 to move to enter a verdict for the defendants, on the ground of want of jurisdiction.

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.

The evidence and course of the trial are fully stated
in the judgment of the Court.

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,
4611. lOs., 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.

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], ; Crawford v.
Whittalz ; Maubourquet v. WyseJ.; Bank of Australasia v. Nias~ ; Becquet v. MacCarthy~ ; Don v.
Lippmanne ; Vallee v. Dumergue'[ ; Meeus v. Thellussonx ; Bissell v. Briggsy ; Jefferys v. BooseylO ;
Yelverton v. Yelverton.I], Story on the Conflict of
Laws, ss. 547, 609, 610; Wheaton's International
Law, 288-29l.

Pleas: l. 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,

A rule having been obtained pursuant to the leave,
Nov. 22. Brown, Q.c., and Murphy, shewed cause.

Cur. adv. vult.
Dec. 10. The judgment of the Court (Blackburn,
Mellor, Lush and Hannen, JJ.) was delivered by
BLACKBURN, J.
This was an action on a judgment of a French tribunal given against the defendants for default of appearance.
The pleas to the action were, amongst others, a plea

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Page 2

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 swnmoned, 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.

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.

On the trial before me the evidence of a French avocat was *157 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 subjectl2 The mode of
citation in such a case, according to the French law,
is by serving the swnmons on the Procureur Imperial.
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.
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 *158 Caen was short of the quantity for
which the plaintiff had paid, and that the plaintiff

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.
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.
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.
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 fmding.
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.
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. GrayU , 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.*159
My Brother Lush, who was not a party to the discussions in Godard v. Grayl4 , has, since the argument

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Page 3

in the present case, perused the judgment prepared by
the majority in Godard v. Gray15 , and approves of
it; and, after hearing the argwnent in the present case,
we are all of opinion that the rule should be made
absolute.

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.

It is unnecessary to repeat again what we have already said in Godard v. Gray.16
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. Smyth17 , and again repeated by him in
Williams v. Jones18 , 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.
We were much pressed on the argwnent with the fact
that the British legislature has, by the Common Law
Procedure Act. 1852, (15 & 16 Viet. 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.
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 *160 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

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.
Rucker19 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.
Rucker20 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?"
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
*161 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.
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 defen-

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Page 4

dants 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.

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. Fog022 , 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. Guillou23
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.

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.
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.
In the case of General Steam Navigation Company
v. Guillou21 , 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 *162 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."
It will be seen from this that those very learned
judges, besides expressing an opinion conformable to

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. Rathbone24
is an authority that where the defendant voluntarily
appears and takes the chance of a judgment in his
favour he is bound.
In Douglas v. Forrest25 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 *163 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.
Forrest26 , 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

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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.27

Page 5

etranger envers des francais." Codes Annotes
Sirey: Code Civil, Art. 14, Note 42: "Un etranger
a une maison de commerce etablie et patente
France, peut, aussi bien qu'un francais, assigner
autre etranger devant un tribunal francais."

de
qui
en
un

11. Ante, p. 139.
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.

14. Ante, pp. 139, 147.

We think, therefore, that the rule must be made absolute.

16. Ante, pp. 139, 147.

15. Ante, pp. 139, 147.

17.9 M. & W. atp. 819.

Rule absolute28

18. 13 M. & W. at p. 633.
19. 1 Camp. 63.

1. 1 Stark. N. P. 525.

20. 9 East, 192.

2.. 1 Doug. at p. 4, n. 1.

21. 11 M. & W. 877, 894.

J Jr. Rep.

22. 1 John. & H. 18; 29 L. J. (Ch.) 657; 1 Hem. & M.
195; 32 L. J. (Ch.) 249.

1 C. L. 471.

1. 16 Q. B. 717; 20 L. J. (Q.B.) 284.
23. 11 M. & W. 877.
~. 2 B.& Ad. 951.
24. 6 H. & N. 301; 30 L. J. (Ex.) 238.
2..5 C. & F. 1.
25. 4 Bing. at p. 703.

1. 4 Ex. 290; 18 L. J. (Ex.) 398.
26.4 Bing. at p. 703.

s 8 Ex. 638; 22 L. J. (Ex.) 239.
27. 3 Macq. 99.

2. 9 Mass. R. 462.
28. See the preceding case.
10.4 H. L. C. 815; 23 L. J. (Ex.) 350.
END OF DOCUMENT

11 1 Sw. & Tr. 574; 29 L. J. (p. M. & A) 34.
12. See Article 14 of the Code Civil: "L'etranger
meme non residant en France pourra etre cite devant
les tribunaux francais, pour l'execution des obligations par lui contractees en France avec un francais; il
pourra etre traduit devant les tribunaux de France
pour les obligations par lui contractees en pays

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EXHIBIT 8

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THE

ENGLISH
VOI.JUME eLII

EXCHEQUER
DIVISION
VIII

CONTAINING

MEESON

w. GREEN

..

STEVENS

AND

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TO

12

& SON, LIMITED, EDINBURGH
& SONS,
LIMITED,
LONDON
LAW PUBLISHERS

1915

RUSSELL

V. SMYTH

343

i:,there would be this further question, whether it means that he should make
.' ngement with the unknown principal to postpone it, and not consider it as
,very: and if that be so, then the plaintiffs must fail, because there has been
ivery. If it means, that the broker, without consulting his principal, although
roker had received the goods to deliver to the defendant, was to postpone them
r 8.ry to his duty to his principal, I am strongly impressed with the opinion that
would amount to a dealing with the goods so as to make it a delivery, and render
'defendant liable for them as goods sold and delivered.
All these are questions of
" which, from a misunderstanding
at the trial, appear not to have been submitted
" e jury. The case is one of consider-[809]-able importance to the parties, and it
s to me to be right that the matter should undergo further investigation, when
points will be presented for the consideration of the jury; for, after all, this is
ure question of fact.
!:ALDERSON,
B. I also think there ought to be a new trial. It seems to me that
s is a question of fact; but, as at present advised, I do not entertain much doubt
to the meaning of the words" put off." Another point which presses on my mind
whether an arrangement to postpone the delivery of the goods, without consulting
interest of the plaintiffs, can be considered a delivery to the defendant.
On that
int I entertain great doubt.
, i ROLFE,B. I concur in thinking there ought to be a new trial. I must confess,
;::'lljf:l were a juryman, I should have little doubt what was the meaning of the term
"':~~~put ff." Judging from the context, the meaning a~pears to. be, .t~at the de~ivery
o
•. rfrom Thornton should be postponed.
At the same time, I thmk It IS a question of
)lact, and therefore there cannot properly be a nonsuit.
I inferred from the notes of
the trial, that all the parties proceeded on the ground of this being the true construe·:tion of it, but that does not appear to have been the case, and I think, therefore,
;.thereshould be a new trial.
,i.
LORD ABINGER, C. B. I have purposely avoided giving any opinion about the
.question of the bought and sold notes, but I desire it to be understood that I adhere
to the opinion given by me, that when the bought and sold notes differ materially
from each other, there is no contract, unless it be shewn that the broker's book was
known to the parties.
With respect to the other point, I did not imagine that any
doubt existed as to the witness's explanation of the phrase "put off," after I had
pointed out to [810] him the distinction between the delivery of the goods by the
broker, or the holding of them by him as the agent of the defendant, and the undertaking not to deliver them to the defendant.
I thought nobody doubted that the
witness's explanation was that which I put upon it, namely, that the broker undertook
not to deliver the goods. I thought that as he was the agent to deliver, and was
dealing with unknown principals on both sides, he had a discretion as to when or
whether he would deliver the goods; that if he delivered them to other persons,
expecting to get the price for them, then he complied with the undertaking not to
deliver them to the defendant.
I thought the point intended to be raised was,
whether, when he, being the middleman, and the agent of both parties, received the
whole of the 200 casks, which included the 50 bought by the defendant, his mere
reception of them was the reception of the defendant.
I think that the delivery of
the bill of parcels was a delivery to him as agent of the plaintiffs, which he might
deliver to the buyer.
The rule for a new trial will however be made absolute.
Rule absolute.

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RUSSELL, AND WIFE v. SMYTH. Exch. of Pleas.
May 2, 1842.-An
action of
assumpsit or debt may be maintained against a defendant resident in this country,
for costs awarded against him, after appearance, by a decreet of the Court of
Session in Scotland, in a suit for a divorce.

[So C. 1 Dow1. (N. S.) 929; 11 L. J. Ex. 308. Applied, Schibsby v. Westenholtz, 1870,
L. R. 6 Q. B. 159. Referred to, Rousillon v. Rdusillon, 1880, 14 Ch. D. 370; Be
Henderson ; Nouoion. v. Freeman, 1887, 35 Ch. D. 715. Hasris v. Taylor, [1915]
2 Q.

B. 591.]

Assumpsit to recover the sum of 931. 5s. 8d., for costs due to the plaintiffs by
virtue of a decreet made by the Lords of Council and Session in Edinburgh, whereby

344

RUSSELL

v.

8M YTH

they divorced the plaintiff, Elizabeth, from the defendant, and found the defe .
liable to the said. Elizabeth in the costs and expenses. ~'he.,defendant pln
first, non assumpsit ; secondly, that the defendant was not In Scotland at the
of the summons and action or proceedings, or at the time of pronouncing the dee'
within the jurisdic-[811}tion of the said Court j that he had not been sunnnon
appear, and had not any heritable property in Scotland. This plea was struck'
on the understanding that the defendant should be at liberty to give the facts s'
therein in evidence under the general issue. The cause came on for trial at the Li
pool Summer Assizes, 1840, before Rolfe, B., when a verdict was found for
plaintiffs, damages 931. 5s. 8d., subject to the opinion of the Court on the folIo
case :-Examined copies of the summons, proceedings, and decreet, in an actio'
divorce in the Scotch courts, prosecuted by the female plaintiff, by her then na
E. N., against William Gray Smith, or Smyth, were proved at the trial, and co"
thereof are contained in the appendix to this case, and may be referred to by ei
party as part thereof.
At the trial, the plaintiffs proved, by the evidence of an advocate at the Scotch
that the practice of the Scotch courts as to entering appearances is as follows:~"
process being in the custody of the clerk of the court, the procurator or agent of:
defendant applies to the clerk of the court in the name of an advocate, to bon
the process out for the purpose of taking it to the advocate's chambers, to examin
on the part of the defender, in order to see whether any defence can be made. clerk on this sends the process to the party so applying, and at the time of so do"
makes a marking in the margin according to the following form, "alt. Thomson:
see," which he signs by his, the clerk's, initials, Robt, Welsh. It appears by 't·
appendix, that the examined copy of the summons proved in the evidence Was"
"
marked, and the witness explained the meaning of such marking to be, that Rob~Welsh, as agent of the other side or defender, had, in the name of Thomson, "
advocate, obtained the process, to see it on behalf of the defender. The word" act.
immediately preceding, in the margin, means actor (the pursuer), and" alt." mea ..
alter, i.e., the party who is to appear on the other side. [812] The agent then tak
the process to the advocate's chambers, to consult whether it is a case to be defend")
or not. This is a regular method of entering appearances according to the practice ot"
the Scotch courts. It would not be consistent with the duty of the clerk of the courf
to make such a marking on the margin, unless Welsh had in fact applied as agent ot;
the defender, and unless in pursuance of such application the clerk in court had in::
fact lent him the process, in order to its being taken to Thomson as the advocate, to .
consider j and if by any mistake an erroneous marking were made, it would be the
duty of the clerk in court to amend it; and such marking, according to the practice
of the Scotch courts, shews that an appearance has been entered. If the advocate
does not think it a case in which a defence" should be made, the case is n-ot defended,
and the process is returned to the clerk. The inquiry then proceeds, not in respect
to the defendant's absence, but in respect that no defences are given in. The marking
on the margin of the said proceedings in the Scotch court at the suit of Elizabeth
Smith against William Gray Smith, indicates that an appearance was entered for the
defender, but that no defence was made in the above action, and the proofs were taken
and lent, and the decreet in question made, as in a case in which there Wereno defences,
and not in absence or for want of appearance j and the said proceedings and decreet
produced appeared to be perfectly regular according to the Scotch law. The same
witness (the Scotch advocate) proved that there is no rule of Court which would
prevent an advocate who happened to know that proceedings had been instituted
against a friend absent from the kingdom, from applying to the clerk in court to see
the summons, even though he (the advocate) had no authority to appear for the absent
party; but the clerk in court would not be warranted in lending the summons for
any purpose except that of enabling the party applying for it to appear in regular
form; and if, [813] after it is returned, the clerk should discover that it had been
obtained not in the ordinary course, it would be his duty to make an entry in the
margin accordingly, so as to correct the mistake. No proof was given to shew that
the person who lent the process, and made the marking, was a clerk authorized to
enter appearances j or that either Thomson or We18h had any authority from William
Gray Smith or Smyth to appear for him; but it was proved that there was, at the
time of the proceedings in question, a writer to the signet of the name of Welsh. It

RUSSELL

345

V. SMYTH

yed by the same Scotch advocate, that by the Scotch law a wife may institute
,iogs in the Court of Session, called a summons and action of divorce, against
sband to obtain a divorce, and, on proof of his adultery, may obtain a divorce
ul II1~trimonii from her husband, and may lawfully marry again; that if the
d o a Scotchman, and have left the realm of Scotland, the wife may lawfully
be
. te such proceenings in the absence of the husband, although the husband be not
, nallyserved with notice of such .proceedings, and have no property within the
of Scotland; and the WIfe may 10 such case proceed, and on competent proof of
usbarid's adultery, obtain a divorce from her husband, in the absence of the said
, nd : but the husband may, if he so please, appear by his procurator in the manner
stated, and may, if he so please, defend the action by his procurator, though
oually prayed
.
..'
Jt was absent. at the trial that the plaintiff ElIzabeth Russell, was formerly the
'of William Gray Smyth, the defender in the said action of divorce, and it was
proved that he had lived at Dumfries, where his parent-s and the family resided,
he was a medical man, and reputed to have obtained his diploma as a surgeon,
that he never practised his profession at Dumfries, and that he is now about
ty-six years of age. The plaintiffs, in order to identify him with the defendant
this action, [814] called Henry Jenneret, the clerk to the defendant's attorney, and
ved by him that he had known William Gray Smyth, the defendant in the present
ion, three or four years in London; that the witness did not know of his own
,,' owledge that the now defendant was a Scotchman, nor had he heard it from him,
,~':;~~tthat the defendant had tol~ him that h.e had been in Scotland, and had lived at
::,pumfries; that the defendant IS now a medical man, apparently forty years of age.
"tt: The questions for the opinion of the Court are-first, whether the present action
-is. maintainable against the defendant on the said decreet; and secondly, whether
.therewas evidence from which the jury ought to have inferred that the defendant in
,.this action is the same person as the defender in the action in the Court of Session;
tbe Court to be at liberty to draw any inference which a jury might have drawn. If
the Court are of opinion in the affirmative, the verdict is to stand, otherwise a nonsuit
-isto be entered. of the proceedings in the Court of Session contained the summons,
, The copies
with the above marginal marking; the return of the summoning officer, that he had
summoned the defendant; the appointment to the pursuer of fourteen days to appeal'
snd remit her oath of calumny; her appearance and deposition;
the allowance of
proof to the pursuer; a petition by the pursuer for a commission to examine a witness,
"alt. not compearing or objecting;" the grant of the commission; the appointment
for the proof to proceed; the following entry :"9th March, 1833.

"10. Mackenzie. Act. Pyper.
adduced, and whole process.
"And lastly, the judgment

Alt. absent.

finding the defendant

Advisandum.
"J.

With

H.

the proof

MACKENZIE."

guilty of adultery,

and liable to

the pursuer in expenses."
(815] Crompton for the plaintiffs. An action is maintainable in the Courts of
this country, for costs awarded by a Scotch Court.
It appears, in this case, that a
regular appearance was entered on the roll, and that no defences were made to the
suit. The defendant appears to have allowed a judgment similar to that of nil dicit
to be signed against him. It is suggested in the case that there might have been
some deception, but credence must be given to the judgment-roll in this respect, there
being nothing on the face of it, or anything stated in the case, to shew that it was
not regular. The proceedings were therefore valid. In Cowan v. Braidwood (1 Man.
& Gr. 882; 2 Scott, N. R. 138), all these questions were very much discussed, and
there it was held that it must be shewn that there was something wrong in the mode
of proceeding.
Maule, J., there says,-"The
Courts of Westminster, in sustaining
decrees of foreign courts against absent persons, have decided that, in their judgment,
~ decree may not be contrary to natural justice, although made against a party who
IS absent, for absence alone is not -sufficient to invalidate the proceedings.
He also
referred to DOlbglas v. Eorresi (4 Bing. 686; 1 M. & P. 663), and Becquet v. M'Carthy
(2 B. & Adol. 951)." Secondly, it was thrown out on the trial, that an action could
not lie on a decreet of this kind, and Oarpenter v. Thornton (3 B. & Ald. 52) will be

346

RUSSELL

V. SMYTH

relied upon. It was there beld, that an action at law is not maintainable 11
decree of a court of equity for a specific sum of money, founded on equitable con
tions only: but the argument to be deduced from tbat case is answered by .
Henley v. Soper (8 B. & Cr. 16; 2 Man. & R. 153). It was tbere held, that de
on tbe decree of a colonial Court, made for payment of a balance due on a partQj
account. And Lord Tenterden says,-'! There is a great difference between a
of a colonial court, and of a court of equity in this country.
The colonial [816'
cannot enforce its decrees here-a court of equity in this country may; and th
in the latter case, there is no occasion for the interference of a court of law .."
former there is, to prevent a failure of justice."
Thirdly, there is abundant ~ .
of the identity of the present defendant, and of the party named in the pro
in the Court of Session. There is not only the double name, but the professio'
the place of residence.
On this point he cited Simpson v. Dismore (ante, 47). ..
W. H. Watson, contra.
This Court will not give effect to this decreet"
ground that all the proceedings took place in the absence of the defendant,-a;
a
from the entries, "alt. not compearing or objecting;"
"alt. absent;" and are f.
fore, contrary to natural justice.
It might be different if it had appeared t
defendant had property in Scotland, or resided there, so as to be witbin its j
tion. It is clear, according to a variety of authorities, that the Courts of this .
will not give effect to judgments obtained in the absence of the party : Obicini v~;'
(8 Bing. 335; I M. & Scott, 477); Houlditch v. Marquis oj Donegal (8 Bligh, N. S.:
Buchanan v. Rucke1' (1 Camp. 63; S. C. 9 East, 192); Ferguson v. Mahon (11
Ell. 179; 3 P. & D. 143); Smith v. Nicholls (5 Bing. N. C. 208 j 7 Scott, 147). ('
case of Douglas v. Forrest is distinguisbable, for that case proceeded on the gran '.,
the defendant being a Scotchman born, having heritable property in Scotland.
.
it appears, very indistinctly indeed, that the defendant was a Scotchman born;
he has no domicile or property there.
Cowan v. Braiduood does not affect this a:
ment at all, because in that case it did not appear on the plea that the defendant.
not accessible to the jurisdiction of the Court; he might have been a Scotchman '
and possessed of heritable property in that country.
Secondly, no action ean :
maintained in this country for costs awarded [817] by a foreign ·Court. Costs'
accessary to a judgment, and although an action might be brought for them '.
Scotland, it does not follow that it can be maintained in this country.
Costs "
awarded against a party by way of punishment, for having made a false charge; .'
there is no implied promise that a party residing in England will pay such as bar'
been awarded by a foreign Court. He also contended that the suit being for a divo ..
'
which was matter of ecclesiastical cognizance, this Court could not entertain it; aD:
that, on the face of the proceedings, there did ·not appear to be any valid judgme "
of divorce. As to these points, he cited Carpenter v. Thornton, Henley v. Soper, Sadler v.'
Robins (1 Campb. 253), 11 Geo. 4 & 1 Will. 4, .c. 69, s. 31, Warrender v. Warrerul .
(9 Bligh, 89), Coot v. Lynch (5 Mod. 421), Bac. Abr, "Prohibition"
(L.), 5, Fit
N. B. 52, Emerson v. Lashley (2 H. Bl. 248), Fry v. Malcolm (4: Taunt. 705).
.
Crompton, in reply, was stopped by the Court.
.,
LORD ABINGER, C. B. I cannot assent to the argument of Mr. Watson, that th· •.
is a matter of ecclesiastical jurisdiction, and that therefore we are precluded from entertaining it. The question arises in Scotland, and the decree of the Court of Sessio
creates a duty in the party to pay a debt, and does not give rise to the question o.
jurisdiction.
It is plain that this is not a decree of an ecclesiastical Court, but 0
a Court of competent jurisdiction awarding costs, and not having the power by its o'!d:
process of enforcing the payment of them in this country.
An action of assumpslf~
or debt, therefore, lies for the recovery of them.
I think we must assume the procesS:
and decree to have been perfectly regular j the examination of the advocate shews
them to be so, and the decree is made, not against a party who does not appear, but
against one [818] who does appear, and afterwards abandons his defence.
~e
defendant might have offered some defence, but he quits Scotland, so that the plaintIffs
had no remedy against him in that country.
The action may be sustained on t~e
ground of morality and justice.
The maxim of the English law is to amplify Its
remedies, and, without usurping jurisdiction, to apply its rules to the advancement.of
substantial justice. Foreign judgments are enforced in these Courts, because the partIes
liable are bound in duty to satisfy them. The principles relating to this subject are
well laid down by Lord Mansfield, in his judgment in Robinson v. Bland (2 Burr. 107.7),
I

DE MEDIN A

·v. NORMAN

347

tson urges, that no action for costs has ever been brought on a foreign judg.Icannot quite assent to that; but supposing it were so, I must own I should
sed to set an example of such an action. Suppose litigation arises in France
to real property, and costs are given against a party who comes to this country:
e.English law gives no remedy, the debt would be lost. In such a case, I should
_ sed to say that an action for those costs may be maintained in this country.
this decree to be regular in all its parts; and I do not enter upon the
'ou how far judgment may be pronounced against a party in his absence, so as
.e ~nother the right of enforcing it against him in this country. As to the main
;on in this case I entertain no doubt, and think that it is governed by the
'~'plesthat were laid down in Eme?'son v. Lashley. As to the question of identity,
.,.'is ample evidence on which the jury would have found tbat point against the
. dant. The name, residence, and profession were the same, and the party
... ding the action must have known that his identity would be disputed, and yet
led no witnesses to shew that he was not the party who was alleged to have
ied the female plaintiff. Our judgment will therefore be for the plaintiffs.
.[819] PARKE, B. I am of the same opinion. There appears to me to be ample
.enceof identity. The defendant in the present action bore the same Ohristian
, .surname with the defendant in the Scotch suit: both had resided at Dumfries;
there was a correspondence in their ages and professions. As to the second point
.:;: :unnecessaryto deliver an opinion as to the effect of a judgment upon a party who
-:'lfab
, and has no property in the country where the judgment is pronounced.
1,?esent must assume that the defendant entered an appearance, and that the agent
we
.jJlo took that step for hi!? had authority for ~hat. purpose. If this had not been
.\he case,the appearance might have been set aside m Scotland, and the party would
~ve had a remedy against his attorney. But then it is said, that divorce is matter
'1t:ecclesiasticaljurisdiction, and that the Oourts of this country will not enforce a
;«ecr made by the Court of Session in Scotland in such a matter. This was a Scotch
ee
marriage; and assuming, as we must, that this decree was regular, I agree with Lord
~\linger in thinking that an action will lie for the recovery of costs awarded by'
.iJoreign Oourt of competent jurisdiction. Where the Oourt of a foreign country
ilPposes duty to pay a sum certain, there arises an obligation to pay, which may be
a
@nfo in this country. The case of Ca?-pente1'v. Tlwrnton is distinguishable, because
rced
Qourtsof equity have the power of enforcing their decrees by a process of their own.
Whether the decree be final or not, it is unnecessary to determine; nor need we say
howfar the judgment of a Court of competent jurisdiction, in the absence of all fraud,
~ conclusiveupon the parties. It is enough to determine that the present action may
be maintained, and that our judgment must be for the plaintiffs.
:. ALDERSON, B. I think there was ample evidence of identity, founded upon the
resemblancebetween the names, professions, places of abode, and ages of the parties.
Secondly,[820] this was not a decree made in the absence of the defender, but a judgmentby default, and I think an action can be maintained upon it in this country, on
the grounds stated in the case of Emerson v. Lashley. The defendant was bound, by
the decision of a Oourt of competent jurisdiction, to pay a sum of money, and thereforean action will lie to recover it. In Carpenter v. Thurnton the decree was founded
on equitable considerations only, and might have been enforced by process out of
Chancery.
.
ROLFE, B.. The doubt created in my mind by Mr. Watson's argument was, how
!ar an action for the same subject matter might be maintained in Scotland; but that
18 ~ut of the question when the defendant is in this country.
Here there is an
obligationto pay the costs, which may be made the foundation of an action.
Verdict to be entered for the plaintiffs.
-.

I

DE

v. NORMAN.
Exch.of Pleas. May 4, i842.-The
declaration stated,
that the plaintiff, before and at the time of the agreement thereinafter mentioned,
was lawfully possessed for the residue of a term, whereof twenty-one years from
the 24th June, 1841, were then unexpired, of a certain dwelling-house; and
thereupon, on the 21st March, 1841, by an agreement made between the plaintiff
and defendant, it was agreed that the plaintiff should, on or before the 24th June,
184: 1, let the same to the defendant, by a lease to be granted to the defendant

MEDINA