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)

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[1897 P. 1701.]
*781 Pemberton v Hughes.
Court of Appeal
M.R.

Lindley, Rigby, and Vaughan Williams
1899 Jan. 24, 26, 27; Feb. 16.

International Law-Conflict
of Laws-Foreign
Judgment-Divorce-Procedure-IrregularityEnglish Court, Recognition by.
A judgment or decree pronounced by the Court of a
foreign country will be treated and acted upon here as
final, notwithstanding any irregularity of procedure
under the local law, provided the foreign Court had
jurisdiction over the subject-matter and over the persons brought before it, and the proceedings do not
offend against English views of substantial justice.
Thus, where a decree for divorce had been pronounced by the proper Court in Florida in an undefended action by the husband against the wife on the
ground of her violent and ungovernable temper, both
the parties being domiciled and resident in Florida, an
alleged irregularity in service of process was held not
to be a ground for questioning the validity of that
decree in an action brought by the wife in the English
Courts to enforce a claim arising out of her alleged
second marriage to a British subject.

for life in possession of the devised estates, and the
above-mentioned deed-poll was subsequently executed by him in assumed exercise of a power given to
him by a second codicil of the testator, whereby, after
settling some further estates, the testator empowered
every tenant for life who might be in possession of
the settled estates under the limitations in his will and
second codicil, either in contemplation of or after
marriage, by deed "to appoint to or in favour of any
woman whom he should marry or have married a
yearly*782 rent-charge of 2001. or not exceeding that
sum, to be issuing out of his said estates or any part
thereof, and to commence from the decease of such
tenant for life," to be payable half-yearly during the
life of such woman for her jointure and in bar of
dower.
Francis A. R. Pemberton died on August 2, 1892,
without issue, whereupon the plaintiff claimed to be
entitled to her jointure under the deed-poll. Her claim
was however disputed by the defendants, persons
who on F. A. R. Pemberton's death became entitled in
possession to the settled estates. The dispute arose
under the following circumstances.
In February, 1884, the plaintiff and one Holmes Erwin, who were both domiciled and resident in the
State of Florida, were married in that country according to the laws thereof. On January 18, 1888, Erwin he and the plaintiff being then in Florida - obtained
from the Florida Court a decree against the plaintiff
for divorce on the ground of her violent and ungovernable temper. The plaintiff did not appear to the
proceedings, so that they were unopposed.

Decision of Kekewich J. reversed.
THIS was an action brought by Mrs. "Sarah Elizabeth Pemberton," who claimed to be the widow of
Francis Alexander Richard Pemberton, deceased,
asking for a declaration that under a deed-poll executed by him on April 15, 1891, she was entitled to a
jointure or rent-charge of 2001.per annum issuing out
of certain estates in Cambridgeshire devised by the
will of one Christopher Pemberton, who died in
1850, to Francis A. R. Pemberton for life with remainder to his first and other sons in tail. On December 20, 1890, the plaintiff went through the ceremony
of marriage with F. A. R. Pemberton, then the tenant

At the date of the plaintiffs alleged marriage with
Francis A. R. Pemberton, which took place in Florida, Erwin was still living, and he had, since the divorce, married again; and what the defendants now
contended was that the Florida divorce was invalid,
because the rules of the Florida Court required that
"ten days" should "intervene" between the day on
which process was issued, by writ of subpoena
against the defendant, and the day on which it was
"returnable" - called "terminal" days - and that in the
present case only nine clear days, in fact, intervened
between the day on which the writ of subppena was
issued and the day on which it was returnable. The

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defendants therefore alleged that at the time when the
plaintiff went through the form of marriage with
Pemberton she was still the wife of Erwin, and that
consequently she was not the widow of Pemberton
and not entitled to the jointure as such. Hence the
present action. On the plaintiffs behalf it was contended that, taking the above rule in connection with
another rule, which required "ten days' service" of
notice, the "terminal" days might be included for the
purpose of effective*783 process, and that therefore
the Florida decree was valid. At the trial of the action
before Kekewich J. on July 12, 1898, American lawyers were called on both sides to prove the law and
practice of divorce in the Court of Florida, and from
their evidence it appeared that the following is the
procedure in divorce suits under the law of Florida.
A suit for divorce is commenced by a bill (i.e., a
petition) presented to a judge of a circuit Court sitting
in Chancery. The statements are verified by a short
affidavit by the plaintiff made before a notary of the
Court. The bill and affidavit are then filed in the office of the clerk of the Court. A subpoena to appear,
addressed to the defendant, is then issued under the
seal of the Court. The time for appearance must not
be less than ten clear days from the issue of the subpoena. The subpoena is sent to the sheriff for service,
and it must be served ten days before the time for
appearance. When served, the subpoena is returned
and filed in the office of the clerk of the Court which
issued it. If the defendant does not appear, a precipe
for a decree pro confesso is obtained by the plaintiff
and filed with the clerk of the Court, and after a certain time a decree pro confesso under the seal of the
Court is entered by him. This, however, is not the
final decree. Before that is obtained evidence in support of the plaintiffs case is taken before the master.
He certifies it to the Court, and the evidence and his
certificate are then filed in the proper office. Before
the case is brought before the Court for final decision
a short summary of the proceedings with their dates
(called "step notes") is prepared, and is signed by the
clerk of the Court and is filed. The papers and proofs
are then laid before the judge, and if he is satisfied
with them a decree for divorce is pronounced and is
drawn up and signed by him and filed. The above
procedure was followed by Erwin, and, save in one
alleged respect, everything was perfectly regular. His
bill was duly presented and filed in the proper Court
on November 25, 1887; a writ of subpoena was issued and duly served on the wife (therein called
"Catherine Erwin") by the sheriff on the same day.

She however never appeared to the bill; and on January 2, 1888, the husband obtained a precipe for a
decree*784 pro confesso for her want of appearance,
and this precipe was filed the same day and entered
on the next. On January 18, 1888, a final decree was
pronounced against the wife in the following form:"In the Circuit Court, 5th Judicial Circuit of Florida,
Putnam County.
"Upon an examination of the papers and proofs in
this cause, the Court is satisfied that the allegations of
the said Bill have been established, and it is therefore
ordered, adjudged and decreed that the bonds of matrimony existing between Holmes Erwin, the complainant herein, and Catherine Erwin, the defendant
herein, be and the same are hereby dissolved, because
of the habitual indulgence in violent and ungovernable temper on the part of the defendant, Catherine
Erwin, towards the complainant, Holmes Erwin."
This decree was duly filed and entered in the Chancery Order Book on January 28, 1888.
The alleged irregularity in the proceedings was, as
already intimated, that the subpoena to appear did not
leave - as, it was said, was required by the rules of
the Court - ten clear days between the date of the
writ, November 25, 1887, and the time thereby fixed
for the wife's appearance, December 5, 1887, but
only nine clear days.
This alleged irregularity was, it was now contended,
sufficient to render the whole of the subsequent proceedings null and void, and the decree for divorce,
therefore, of no effect whatever.
After considering the expert evidence - which was
conflicting as to whether the day of service should be
counted as one of the "ten" days - and the rules of the
Florida Court, Kekewich J. came to the conclusion
that the evidence adduced on behalf of the defendants
must prevail, and that "intervening" days meant
"clear" days, so that the "terminal" days must be excluded from the computation. He also came to
the*785 conclusion that this defect in procedure went
to the root of the jurisdiction of the Florida Court and
was fatal to the validity of the divorce. He accordingly held that the plaintiffs case failed, and dismissed the action with costs.

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The plaintiff appealed.
The appeal was heard on January 24, 26, 27, 1899.
During the arguments the expert evidence given in
the Court below was read at length. Its effect, in addition to what has already been given above, will be
found stated in the judgments of the Court of Appeal.
Jelf, Q.C, Dicey, Q.C, and John Henderson, for the
appellant. In this case there is no question as to the
competence of the Florida Court to pronounce a decree of divorce, nor as to its jurisdiction over the parties to the proceedings in which the decree was made.
There is no allegation that the lady was in ignorance
of the proceedings, or was in any way taken by surprise, or had no opportunity of defending herself
therein. On the contrary, the evidence shews that she
wanted the divorce, and never intended to appear at
all in the proceedings. She has herself never questioned the validity of the decree, but has always upheld it. The decree of the Florida tribunal is now in
evidence before this Court. It is a final decree, in due
form and correct upon the face of it, and no step has
ever been taken by anyone to set it aside.

It is said, however, that there was an irregularity or
slip in the course of the proceedings leading up to the
decree which rendered it absolutely void according to
the law of Florida, and obliges the Courts of this
country so to regard it. That one alleged slip or irregularity constitutes the whole of the respondents'
case.
Now, the evidence does not establish that the decree
was void even by the law of Florida; but, however
this may be, an English Court cannot go behind the
final decree of a foreign Court upon the ground that
the foreign Court made a slip in its own procedure.
According to the authorities upon international law
and the comity of nations, the competence of a foreign Court does not depend upon the exact observance of*786 the rules of procedure which the foreign Court has itself framed. That Court is the master
of its own process, and must be treated as capable of
moulding and applying it to the particular case before
it. If the foreign Court has jurisdiction over the parties and subject-matter, its decision cannot be impeached in this country, at all events, by third parties
in collateral proceedings, for a mere technical flaw in

the process which led up to the decision: Vanquelin
v. Bouard] ; Buchanan v. Rucker'[ ; Reynolds v. Fentonl ; Ferguson v. Mahone ; Schibsby v. Westenholzl; Castrique v. Imriee ; Godard v. Grayl ; In re
Trufort .~
[VAUGHAN WILLIAMS L.J. referred to Henderson
v. Henderson. 2]
It is now well established that the Courts of this
country will treat the final judgment of a foreign
Court as valid, unless (1.) the foreign Court has assumed a territorial competence and jurisdiction which
it did not possess; (2.) the judgment was obtained by
fraud or collusion; or (3.) the decision is contrary to
English views of natural justice. A foreign judgment
cannot be impeached merely on its merits, nor upon
the ground of a mistake in law: Castrique v. ImrielO ;
Vanquelin v. Bouardll ; Green v. Green12 ; Foote on
Private International Jurisprudence, 2nd ed. p. 547;
Westlake on Private International Law, 3rd ed. § 328;
Woolsey on International Law, 3rd ed. § 77. We
challenge the respondents to produce any authority
which shews that this decree for a divorce is invalid.
Warrington, Q.C, and Ingpen, for the respondents.
We do not dispute that a valid existing judgment by a
foreign Court of competent jurisdiction will be
treated as valid by the Courts of this country unless it
comes within the exceptions which have been mentioned by the appellant's counsel; but we say that
there is no such judgment in this case, and that the
parties*787 were not divorced in Florida. The Court
of Florida pronounced a judgment when it had no
properly initiated process before it.

[VAUGHAN WILLIAMS L.J. referred to Anlaby v.
Praetorius. U]
The judgment there was good till it was set aside; but
in this case the Court had no jurisdiction, and there
could be no judgment: Dicey's Conflict of Laws, pp.
402,403; Story's Conflict of Laws, 8th ed. p. 829.
[RIGBY L.J. Doglioni v. Crispin14 seems to be a
case like the present. There Sir Cresswell Cresswell
said he could not inquire into the validity of a decree
of the Portuguese Court; and the House of Lords
agreed with him, saying that they must take the decree as they found it, and could not question it in any
way. It seems that, if the foreign court has jurisdic-

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tion over the subject-matter and the person, the validity of its decree cannot be questioned.]
In the case cited the Portuguese Court had come to a
decision in accordance with its own procedure, and in
such a case the decision must be taken as you find it that is, assuming there has been a proper process. But
if there has been no valid process in the foreign court,
the decision is not really the decision of a court of
justice at all, but merely the decision of persons purporting to act in the execution of their office. In cases
where a foreign judgment has been held to be binding
here, it was either assumed or proved that the judgment was a valid judgment according to the law of
the particular country. The judgment is open to examination as to whether it has been pronounced in
accordance with the law of that country.
Now, we contend here that this judgment or decree is
not the judgment of a court of competent jurisdiction.
The real question is whether this Florida Court was a
court at all. We say it had no jurisdiction by reason of
the irregularity. It is just as if the party summoned
before that Court had never been summoned at all: in
that case the matter would come before a person who
had no jurisdiction as a judge; and we submit the
evidence establishes that the Court had in fact no
jurisdiction. *788
[VAUGHAN WILLIAMS L.J. It is said in Story on
the Conflict of Laws, 8th ed. § 607, p. 829, and by
other writers, that it is open to the defendant to impeach the foreign judgment on the ground, amongst
others, that "it is irregular and bad by the local law,
fori rei judicatre."]
That passage is referred to by Archibald J. in Meyer
v. Ralli15 ; but that was a peculiar case, in which
both parties agreed that the judgment was not in accordance with French law.
[RIGBY L.J. Since that passage in Story was written, has there been any decision touching the point?]
Certainly Castrique v. Imrie16 does not. The nearest
is Vanquelin v. Bouard. 17
[LINDLEY M.R. That the judgment of a foreign
Court may be impeached on the ground of want of
jurisdiction is also stated in Smith's Leading Cases,

10th ed. vol. ii. p. 770.
RIGBY L.J. Suppose the judge made a mistake:
what then?]
We agree, a mistake would not be enough to invalidate the jurisdiction. The only jurisdiction given to
the foreign Court is a jurisdiction given by statutory
enactment: if the Court does not conform to that enactment it has no jurisdiction. The defendants here
are not bound by estoppel of record. Taking the analogy of proceedings in the English Courts, irregularity
in process makes the whole subsequent proceedings
void, so that they may be disregarded: Hawthorn v.
Harris 18 ; Phillipson & Son v. Emanue1l9 ; Maddock's Chancery Practice, 3rd ed. vol. ii. pp. 242-3,
391. In the present case the Florida Court had no jurisdiction to make a decree of divorce ex parte: the
Florida statutes require divorce proceedings to be
inter partes. Any omission to comply with the rules
of procedure go to the very root of the jurisdiction,
and therefore this case must be treated as if there had
been no judgment at all.

Jelf, Q.C, in reply. A final judgment of a foreign
Court having jurisdiction over the parties and the
subject-matter of*789 the suit is conclusive: Bullen
& Leake's Precedents of Pleadings, 5th ed. p. 748. It
is therefore too late now to question this decree.
Cur. adv. vult.
Feb. 16. LINDLEY M.R.
after stating the facts, and pointing out that the decree for divorce had been made by a Court having
jurisdiction in Florida to pronounce divorces between
persons domiciled and resident in Florida, and had
never been set aside or reversed, and now stood as a
final and subsisting decree, proceeded:There are no grounds whatever for saying that the
plaintiff did not know of the proceedings, nor that she
had not time to enter an appearance on or before December 5, the time fixed for her appearance; nor that
she had no opportunity of defending herself. Moreover, she is not herself questioning the validity of the
decree of divorce; on the contrary, she maintains it
was and is perfectly valid. The defendants, however,
contend, and they have adduced expert evidence to

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prove, that as the subpoena to appear did not give the
wife ten clear days for appearance the subpoena was
not irregular only, but absolutely void, so that all
subsequent proceedings were void also, and that the
Court had no jurisdiction to pronounce any decree
against the wife. The defendants further contend that,
the decree being wholly void by the law of Florida, it
must be treated as wholly void by this and all other
civilised countries. The evidence of the law of Florida is not to my mind so clear as to convince me that
the decree, standing as it does unimpeached, could be
treated in a collateral proceeding as wholly null and
void even in Florida. Mr. Struntz, the plaintiffs expert, does not take that view of the law. It is true that
in two passages of his cross-examination he says that
if proper proceedings were not taken the Court would
not have jurisdiction, but he insists that as the wife
was served in time the defect in the subpoena was not
fatal to the jurisdiction of the Court. The defendants'
expert, Mr. Wurtz, unquestionably goes much further, and says that Mrs. Pemberton and Mr. Erwin,
who also married after the divorce, could be
both*790 convicted in Florida of bigamy, notwithstanding the decree. But even Mr. Wurtz says that the
defect in the writ of subpoena would have been cured
by the wife's appearance, which makes me hesitate in
saying I am satisfied that the decree is void, even by
the law of Florida, for want of jurisdiction. The Court
which pronounced the decree ought to be credited
with knowing what irregularities (if any) were fatal to
its jurisdiction and what were not, and the Court had
before it all the materials necessary for forming a
judgment, and oversight or carelessness ought not to
be presumed by us. Although, therefore, Kekewich J.
considered Mr. Wurtz a more satisfactory witness
than Mr. Struntz, I could not myself, without further
information, come to the same conclusion as the
learned judge as to the utter worthlessness, even in
Florida, of the decree which the defendants impeach.
Further information on this point could be procured,
if necessary, under the provisions of 24 & 25 Vict. c.
11, but, in my opinion, it is not necessary to pursue
this question further.
Assuming that the defendants are right, and that the
decree of divorce is void by the law of Florida, it by
no means follows that it ought to be so regarded in
this country. It sounds paradoxical to say that a decree of a foreign Court should be regarded here as
more efficacious or with more respect than it is entitled to in the country in which it was pronounced. But
this paradox disappears when the principles on which

English Courts act in regarding or disregarding foreign judgments are borne in mind. If a judgment is
pronounced by a foreign Court over persons within
its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the
propriety of the proceedings in the foreign Court,
unless they offend against English views of substantial justice. Where no substantial justice, according to
English notions, is offended, all that English Courts
look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent namely, its competence to entertain the sort of case
which it did deal with, and its competence to require
the defendant to appear before it. If the Court had
jurisdiction in this sense and to this extent, the Courts
of this country never*791 inquire whether the jurisdiction has been properly or improperly exercised,
provided always that no substantial injustice, according to English notions, has been committed.
There is no doubt that the Courts of this country will
not enforce the decisions of foreign Courts which
have no jurisdiction in the sense above explained i.e., over the subject-matter or over the persons
brought before them: Schibsby v. Westenholz 20 ;
Rousillon v. Rousillon21 ; Price v. Dewhurst22 ; Buchanan v. Rucker23 ; Sirdar Gurdyal Singh v. Rajah
of Faridkote. 24 But the jurisdiction which alone is
important in these matters is the competence of the
Court in an international sense - i.e., its territorial
competence over the subject-matter and over the defendant. Its competence or jurisdiction in any other
sense is not regarded as material by the Courts of this
country. This is pointed out by Mr. Westlake (International Law, 3rd ed. § 328) and by Foote (Private
International Jurisprudence, 2nd ed. p. 547), and is
illustrated by Vanquelin v. Bouard. 25 That was an
action on a judgment obtained in France on a bill of
exchange. The Court was competent to try such actions, and the defendant was within its jurisdiction.
He let judgment go by default, and in the action in
this country on the judgment he pleaded that by
French law the French Court had no jurisdiction, because the defendant was not a trader and was not
resident in a particular town where the cause of action arose. In other words, the defendant pleaded that
the French action was brought in the wrong court (see
the 13th plea). The Court of Common Pleas held the
plea bad, and that the defence set up by it should
have been raised in the French action. The French
action in Vanquelin v. Bouard26 was an action in
personam, and the parties to the action in France

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were also the parties to the action brought in this
country on the French judgment. The decision, therefore, does not exactly cover the present case, but it
goes far to shew that the defendants' contention in
this case cannot be supported.*792
The defendants' contention entirely ignores the distinction between the jurisdiction of tribunals from an
international and their jurisdiction from a purely municipal point of view. But that distinction rests on
good sense, and is recognised by modem writers on
private international law: see Westlake and Foote
(ubi sup.) and Piggott on Foreign Judgments, 2nd ed.
p. 129 et seq. He says (p. 130):
"The jurisdiction to pronounce judgment in a suit
depends solely on the right to summon a person before the tribunal to defend the suit."
Wharton's Conflict of Laws, § 792 et seq., contains a
careful review of the question by a learned American
lawyer, and brings out the distinction very clearly:
see §§ 801, 812. In § 812 he says: "The true test
seems to be, competency according to the rules of
international law": and it is plain that these do not
include mere rules of procedure.
In Dicey's Conflict of Laws there are some valuable
chapters - xi. p. 361, and xvi. p. 400 - on thejurisdiction of foreign courts; and in them will be found
various meanings of the expression, "court of competent jurisdiction." These various meanings shew the
danger of using that expression without taking care to
avoid the confusion to which they otherwise give
rise.
It may be safely said that, in the opinion of writers
on international law, and for international purposes,
the jurisdiction or the competency of a Court does not
depend upon the exact observance of its own rules of
procedure. The defendants' contention is based upon
the assumption that an irregularity in procedure of a
foreign Court of competent jurisdiction in the sense
above explained is a matter which the Courts of this
country are bound to recognise if such irregularity
involves nullity of sentence. No authority can be
found for any such proposition; and, although I am
not aware of any English decision exactly to the contrary, there are many which are so inconsistent with it
as to shew that it cannot be accepted.

A judgment of a foreign Court having jurisdiction
over the parties and subject-matter - i.e., having jurisdiction to summon the defendants before it and to
decide such matters as it has decided - cannot be impeached in this country on its merits:*793 Castrique
v. Imrie27 (in rem); Godard v. Gray28 (in personam);
Messina v. Petrococchinozv (in personam). It is quite
inconsistent with those cases, and also with Vanquelin v. Bouard30 , to hold that such a judgment can be
impeached here for a mere error in procedure. And in
Castrique v. Imrie'[] Lord Colonsay said 32 that no
inquiry on such a matter should be made.
A decree for divorce, altering as it does the status of
the parties and affecting, as it may do, the legitimacy
of their after-born children, is much more like a
judgment in rem than a judgment in personam: see
Niboyet v. Niboyet. 33 And where there are differences between the two, the decisions on foreign
judgments in rem are better guides for the determination of this case than decisions on foreign judgments
in personam. The leading cases on foreign judgments
in rem are Doglioni v. Crispin34 ; Castrique v. Imrie35 ; In re Trufort.36 There is nothing, however, in
the decisions in these cases to assist the defendants.
On the contrary, the judgments delivered in them are,
in my opinion, adverse to the defendants' contention.
In Doglioni v. Crispin 37 a Portuguese Court decided that the respondent was the natural son of a
deceased man domiciled in Portugal, and not a "noble," and that the respondent was consequently entitled to succeed to his father's personal estate. The
appellant was a party to those proceedings, but she
afterwards claimed the property in question under a
will of the deceased. She was held precluded from
disputing the Portuguese decree. Lord Cranworth
distinctly stated 38 that the decision, having been
pronounced by a court of competent jurisdiction, was
one which English Courts were "bound to receive
without inquiry as to its conformity or nonconformity
with the laws of the country where it was pronounced"; and a little lower Lord Cranworth stated
that, in his opinion, evidence to shew that the decision was not in accordance with Portuguese law
ought not to have been received. Lord*794 Cranworth's judgment did not, as I understand it, tum on
the fact that the appellant was personally estopped
from disputing the Portuguese judgment because she
was a party to the proceedings in Portugal: his decision was based on the competence of the Court and

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the nature of the controversy before it. It is necessary,
however, to bear in mind that undefended proceedings for divorce require to be very narrowly scrutinized, for such divorces may be easily connived at. It
is unnecessary to consider whether an English Court
would recognise a foreign divorce proved to have
been obtained by collusion, even if the parties divorced were foreigners domiciled and resident within
the jurisdiction of the foreign Court. No collusion is
relied upon or proved in the present case. If, therefore, the principles above explained are correct, I see
no ground on which an English Court can refuse to
recognise the validity of the divorce in question in
this case, unless it be on one or other of the two following grounds - namely, (1.) that a foreign divorce
decree pronounced in an undefended action will
never be recognised in this country; or (2.) that the
Courts of this country will not recognise any divorce
even of foreigners for any causes other than those for
which a divorce can be obtained in this country. To
lay down now for the first time either of these doctrines is, in my judgment, quite impossible, nor were
they alluded to by counsel. I thought it, however,
desirable to mention them, in order that it might not
be supposed that they had been overlooked.

rie39 (a case of a judgment in rem) and Vanquelin v.
Bouard40 are two of the most important authorities
on the point. I think that the result of all the cases is
that a decision of a proper Court having, in accordance with general principles of law recognised by
our Courts, sole jurisdiction over the subject-matter
of the action and the parties thereto must, by the
Courts of this country, be treated as the only competent tribunal to deal with the question raised in the
divorce action. Even though it were possible to point
out some mistake as to the municipal procedure or
law, the Courts of this country ought not, on that
ground, to override the actual decision. The objection
taken is that the Court of Florida had, according to
the municipal law, no jurisdiction to pronounce a
decree; but such an objection as that, I think, ought
not to be entertained by us. Mrs. Erwin had all the
notice of the proceedings which the law of the State
required, though if we had a right to inquire further it
might well be that there was an irregularity in fixing
the day for appearance. The effect of a judgment such
as this, determining the status of Mrs. Erwin to be
that of a feme sole, has as much effect as against persons not parties to the action as a judgment in rem in
analogous circumstances would have had.

In the result the appeal must be allowed and the
judgment reversed, and a declaration be made that the
plaintiff is entitled to the 2001. a year, with an account and order for payment. The defendants must
pay the costs of the action and of the appeal,

VAUGHAN WILLIAMS L.J.

RIGBYL.J.
I entirely agree, and I base my judgment on the
ground that we have no right in this action to inquire
into the question whether or not the Court of Florida
did or did not act upon a correct view of the law and
procedure of its own State.
The State had exclusive jurisdiction to deal with
divorces of*795 persons domiciled and resident
within its territory, and (if that be material) the Court
which pronounced the decree for a divorce was the
proper court, and the only proper court, for entertaining and deciding upon divorce actions within the territory. It seems to me that, on principle and authority,
the Courts of this country are bound to assume that
the Florida Court understood its own procedure and
law, and that the evidence of experts ought not to
have been resorted to. I think that Castrique v. Im-

I agree with the rest of the Court that the divorce
decree in the Court in Florida must be treated as the
judgment of a foreign court of competent jurisdiction,
and cannot be examined or impeached on any of the
grounds suggested. That the Florida Court is, from an
international point of view, a court of competent jurisdiction is not*796 questioned. The parties were
married in Florida and domiciled there and present
within the jurisdiction.
It is said that the evidence of the foreign experts
shews that the judgment is a nullity by reason of the
defective process, and that we are bound by their
evidence as to what the foreign law is; but this evidence does not shew, in regard to judgments generally, that if, in civil proceedings in Florida, the judgment had been relied on, the party against whose interest it was set up would not have had to shew that
the judgment had been set aside. It is clear, in the
case of a judgment of a superior court on a personal
action in England, that if a plaintiff, arrested on a
process, sued in trespass and the defendant justified
under process under a judgment of a superior court,

© 2011 Thomson Reuters.

Page 8

[1899] 1 Ch. 781
[1899] 1 Ch. 781 [1899] 1 Ch. 781
(Cite as: [1899] 1 Ch. 781)

the plaintiff, if he impeached this judgment, even on
a ground that the action was wrong in its inception,
would have had to allege and prove that the judgment
had been set aside, or that error had been successfully
brought.

l. (1870) L. R. 6 Q. B. 155.

There is no evidence that this law is not the same in
Florida, and I think that we ought, in favour of the
foreign judgment, to make this presumption, that is to
say, to treat it in a civil proceeding as we should treat
the judgment of a superior court.

~. (1887) 36 Ch. D. 600,617.

§. (1870) L. R. 4 H. L. 414, 448.

1. (1870) L. R. 6 Q. B. 139.

2. (1843) 3 Hare, 100.
10. (1870) L. R. 4 H. L. 414, 448.

The present case is analogous to the case where, in a
foreign country, the proceedings have been taken
against a person subject to the jurisdiction, but not in
the proper court. In Vanquelin v. Bouard41 and
Doglioni v. Crispin42 the defendant was properly
served and had the opportunity in the suit of pleading
to the jurisdiction of the Court, which was not the
proper court.
Here it is alleged there was no proper service. The
true principle seems to me to be that a judgment,
whether in personam or in rem, of a superior court
having jurisdiction over the person, must be treated
as valid till set aside either by the Court itself or by
some proceeding in the nature of a writ of error,
unless there has been some defect in the initiation of
proceedings, or in the course of proceedings, which
would make it contrary to natural justice to treat the
foreign judgment*797 as valid, as, for instance, a
case where there had been not only no service of
process, but no knowledge of it. The allegation of no
service alone would not in such a case avail the defendant: Buchanan v. Rucker43 ; Ferguson v. Mahon
44 ; Bullen & Leake's Precedents of Pleadings, 5th
ed. p. 748.(G. I. F. C.)

ll. (1863) 15 C. B. (N.S.) 341.
12. [1893] P. 89.

U. (1888)

20

Q. B. D. 764.

14. (1866) L. R. 1 H. L. 301.

ll. (1876) 1 C. P. D. 358, 370.
16. L. R. 4 H. L. 414.
17. 15 C. B. (N.S.) 341; 33 L. J. (C.P.) 78.
18. (1875) 23 W. R. 214.
19. (1887) 56 L. T. 858.
20. L. R. 6

Q. B. 155.

21. (1880) 14 Ch. D. 351.
22. (1838) 4 My. & Cr. 76.
23. 9 East, 192.
24. [1894] A. C. 670.

1. (1863) 15 C. B. (N.S.) 341.
25. 15 C. B. (N.S.) 341.

2. (1807-8) 1 Camp. 63, 180 b; 9 East, 192.
26. 15 C. B. (N.S.) 341.

1. (1846) 3 C. B. 187.
27. L. R. 4 H. L. 414.

1. (1839) 11 Ad. & E. 179.
28. L. R. 6

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Q. B. 139.

Page 9

[1899] 1 Ch. 781
[1899] 1 Ch. 781 [1899] 1 Ch. 781
(Cite as: [1899] 1 Ch. 781)

29. (1872) L. R. 4 P. C. 144.
30. 15 C. B. (N.S.) 341.

11. L. R. 4 H. L. 414.
32. L. R. 4 H. L. 448.
33. (1878) 4 P. D. 1, 12.
34. L. R. 1 H. L. 301.
35. L. R. 4 H. L. 414.
36. 36 Ch. D. 600.
37. L. R. 1 H. L. 301.
38. L. R. 1 H. L. 315.
39. L. R. 4 H. L. 414.
40. 15 C. B. (N.S.) 341.
41. 15 C. B. (N.S.) 341.
42. L. R. 1 H. L. 301.
43. 9 East, 192 .
44.11 Ad. & E. 179.

END OF DOCUMENT

© 2011 Thomson Reuters.

EXHIBIT 13

/'

!..:.--~ ~

THE

LAW TIMES REPORTS
OJ!'

~a5e5 glecibeb
IN

THE

THE HOUSE OF LORDS,

r-mv r

OOUNOIL

THE OOURT OF.1l.PPEAL,
,THE CHANCERY DIVISION, THE KING'S BENCH DIVISION,

rrHE

PROBATE, DIVORCE', AND ADMIRALTY DIVISION,
THE

KING'S
l'HE

BENCH

DIVISION

IN

BANKRUPTCY,

COURT OF CRIMINAL APPEAL,

AND THE, RAILWAY AND CANAL COMMISSION OOURT.

VOLUME
FROJY-[ JY-[ARC:a:

TO

C.
AUGUST

LONDON:

.

'1909.

THE LAW TIMES.

816-Vol. o.i
CHA.N.

Drv.]

JEA.NNOT

V. FUERST.

such an industry having grown up in the United
Kingdom if no preference had been conferred on
foreigners.
Possibly a manufacturer
in this
country might have had to be content with smaller
profits than a manufacturer abroad, but even this
. is not proved. It was said that the demand here
was too small to justify the expense entailed in
laying down the necessary plant, but there is no
evidence, or at any rate, no satisfactory evidence,
that this demand would not have been much
greater than it is but for the manner-in which the
patentee has used his monopoly. It is to my
mind abundantly clear that, if these patents had
been granted after the passing of the Act of
1907, they ought to have been revoked; and the
only question is whether, having regard bo the
fact that they were granted in 1900 and to what
occurred before the passing of the Act of 1907,
indulgence ought to be granted to the patentee.
It is to be observed that on the 26th Jan. 1905
the patentee granted what is in effect an exclusive
licence for this country to a manufacturing
company in Belgium. The licence provided that
the Belgian company might either import into
this country goods made by them in Belgium or
erect factories here, but the licensee precluded
himself from granting licences here. The licensee
has exercised the powers granted to him by the
licence not to erect factories here, but to import
his foreign made goods into this country, excluding any competition between such goods and
goods made in this country or elsewhere abroad.
The state of things which has resulted would, I
think, have rendered the patent revocable under
the Act of 1902, for it does not seem to me that
the patentee could have discharged the onus
imposed on him by that Act any more than, in
my opinion, he has discharged the onus imposed
on him by sect. 27 of the existing Act. There is
no reason, therefore, why the patentee should be
entitled to any indulgence, even if indulgence
oould be granted~·-Stress
was laid on the fact
that the patentee, in conjunction with his licensee,
has recently, in advertisements
and circulars,
expressed his willingness to sell or enter into
working arrangements
for the manufacture
of
goods in this country under the patent process.
This was, however, done at the last moment, and I
am not surprised that under the circumstances no
one willing to buy or take a licence has been
found. Even if it had been done forth with after
the Act, and the possibility of a sale being made
or licences being granted had been made known
much more thoroughly, I do not think the fact of
no one being found willing to buy or take up a
licence and manufacture here would have proved
much. I do not know what the terms were upon
which the patentee and licensee contemplated
selling or granting licences, or' whether the terms
of the licences included protection against Belgian
imports.
If they did not, possible manufacturers
might well be deterred by the fact that the Belgian
firm had had so long. a start, and an intending
purchaser or licensee might well be deterred also
by the uncertainty of the patent remaining under
the circumstances unrevoked for a sufficient time
to start a new industry.
Under all the circum.
. stances, I think that the revocation of the patent
was amply justified, and, further, I am of opinion
that the refusal of the comptroller to suspend
the revocation was also right. It would be wrong
,j.,..

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[July 2~, 1909.

[K.B. Drv.

the chance of an industry springing up here
under some licence which some one may possibly
in future be willing to take. If the patentee
himself or the Belgian licensee had been prepared
to start the industry here, and had utilised their
year of grace in bond fide preparations with that
end in view, but had found the year too short a
period, the revocation might well have been suspended. But upon the evidence I do not believe
that either the patentee or the Belgian firm has
now or ever had any intention of manufacturing
under the patented process in this country, or of
allowing anyone else to do so, unless he purchases
or accepts a licence from them on terms which
they may consider reasonable, but which possibly'
no prudent purchaser or licensee could accept,
and as to the nature of which I am not informed.
I therefore affirm the comptroller's decision, and
dismiss the appeal with costs.
.
Solicitors for the appellant, Burn and Ber?·idge.
Solicitors for Zerenner, Lloyd George, Roberts,
and 00.
Solicitor for Attorney-General, Solicito?' to the·
Board of Trade.

t

KING'S BENCH DIVISION.
Nov. 22, 23, Dec. 1,1908, and March 19,1909.
(Before BRA.Y, J.)
JEANNO T V. FUERST. (a)
Foreiqti judgment-French
court-Persons
domiciled in EnglandFinal judgment-Natural
justice.
The plaintiff and defendants
entered into an
aqreement
whereby the latter obtained
the
exclusive right to sell the plaintiff's
products
in Great Britain and her colonies for a period
of five yea1'S from the 1st Jan. 1906. The
defendants agreed to do business with the plain.
tiff to the amount of 10,000f. the first year and
15,OOOj. thereafter, and to pay an indemnity of
5000f, in the event of a breach of contract. It
was further provided that the French tribunals
of commerce were alone to have jU1·isdiction.
On the 2nd May 1907 a writ was issued by the
plaintiff in the Tribunal de Oommerce de Lyon
requi1'ing the defendants
to appear on the
2nd June 1907, and claiming
a penalty of
50,)0]. The .writ was served in accordance with
the French Code of Oivil Procedure and left at
the offiee of the Procureur-General
on the
.2nd May.
On the 31st May the writ was sent to the French ';
Consulate in London, and, although notice was i
given to and received by the defendants the same;
day, they ignored it.
On the 2nd June the defendants did not appear '
before the Tribunal
de Commerce de Lyon, .
and, without
notice to them, the case was,
adjourned till the 18th June, when in their"
absence judgment by default was given for the
amount claimed.
The. judgment was served at,
the office of the Procureur- General, and on the.;
8th Aug. the defendants received notice of it:
throuqli the French Consulate in London, buf;
iqnored. it. Notice of the execution of the judg·~
meni and a certificate of nulla bona were sent to.
the defendants in November, and the plainti
afterwards sued the defendants in England on t .
F·rench judgment.
.

tJUlj'

VJ..,

.L..,vtJ.J

JEANNOT

K.B. DIY.]

Held,that, as the proceedings were not contrary to
natural justice and there was a final Judgment eroisting in France binding on the defendants at the time th-eEnglish action was br ouqh»,
the defendants we1'eliable.
OOMMERCIAL LIST.

by default effected
1 The service of judgmentleaving it atisthe office in
such a case as this by
or

-

Action tried before Bray, J.,l sitting without a
jury.
Action brought by the plaintiff on a judgment
of the Tribunal de Commerce de Lyon. The facte
and arguments are sufficiently stated in the
written judgment.
Hawk~ for the plaintiff.
Atkin, K;.C.and F. M. Abrahams £01' the defendants.
BRAY, J--In
this case the plaintiff sued upon
_a judgment of the Tribunal de Commerce de
Lyon dated the 18th June 1907. On the Ist Jan.
1906he had entered into an agreement with the
defendants by which he gave them the exclusive
sale in Great Britain and her colonies of his pro-ductsfor five years from the Lst Jan 1906. The
defendants undertook to do a yearly business with
the plaintiff to the amount of 10,000£.the first
year and 15,000f. afterwards, and, in case of
breach of contract by one of the parties, the latter
wasto pay an indemnity of 5000£. nd the Tribunal
a
of Commerce were alone to have jurisdiction. On
the 2nd l\1:ay1907 the plaintiff commenced proceedings by a writ of summons of that date in the
Tribunal de Commercede Lyon. A question arose
whether the writ was dated the 2nd or 8th May,
but the writ and. duplicate were ultimately produced and were both found to be dated the 2nd
May. This writ required the defendants to appear
on the 2nd June. It recited the agreement and
stated that the turnover for the year 1906 had
been only 796£.,and claimed the penalty of 5000f.
According to the French Codeof Civil Procedure,
art. 69, in a case like this, where the defendants
had no domicile or residence in France, service of
the writ is effected by leaving the writ at the
officeof the -Procureur-General. This was done
on the 2nd May. No further service is l'equired,
but by way of information the writ is sent to the
Consulate of the country where the defendants
reside, and it is the practice then for the Consul
(in the case of England) to send by registered
letter a notice in the following form: "Consulate-General of France, London.- You are
requested to be so good as to call at the Chancery
of the Consulate-General, 4, Christopher-street,
Pinsbury-equare, for a matter -eonceming you.
The officesare open from eleven to four. To take
away a Judicial Act." No period is limited within
which the writ should be sent or notice given. In
this case the writ was received at the French
Consulate in London on the 31st May, and notice
given in the usual form to the defendants the
same day. The defendants received the notice,
but ignored it. On the 2nd June the defendant
not appearing before the Tribunal de Commerce
de Lyon, the case was adjourned to the 18th,
when it came on in the absence of the defendants, and judgment by default was given
for the amount claimed. No notice was given
to the defendants of the adjournment. Evidence by French experts was given before me
as to the effect of their judgment by default, and
the French Code of Civil Procedure was referred
to. The evidence was to some extent conflicting.
Vol. C.~2594.

-

[K.B. DIY.

'V. FUERST.

the Procureur-GeneralThis is a good service,
but the same procedure is adopted of sending it
to the Consulate and of the Consulate giving
notice. This was done, and a similar notice was
sent to the defendants on the 8th Aug., whichthey
also ignored. In the case of judgments by default
" opposition" may be made at any time before
execution of the judgments, Opposition is made
by appearance before the court, and in that case
there are pleadings, and the case is tried in the
ordinary way. If the judgment is not executed
within six months the judgment is void.
Art. 159 of the code provides for the mode of
execution. In this case the plaintiff alleged that
the judgment had been executed by his procuring'
a certificate of nulla. bona and leaving the same at
the office of the Proeureur-General on the
6th Nov. 1907. This certificate was put in
evidence, and it recites what was done. It was
said by the expert on the part of the plaintiff that
the leaving this certificate at the office of the
Procureur-General was sufficient,and that thereafter no opposition could be made. On the other
hand the defendants' expert said, while admitting
that a certificate or nulla bona is equivalent to
execution, that it was necessary that the
defendants should have actual knowledge or the
execution and that opposition could be made
before or immediately after the defendants knew
of the execution. Looking at the words or
art. 159, I think opposition could certainly be
made at any time before notification to the
defendants, but I am inclined to think if made
afterwards, even immediately afterwards, it was
a matter for the discretion or the court, and
that the defendants would not be entitled as a
matter of right to" oppose" after notification
of the execution of the judgment. The first
notification the defendants receiveil. of the
execution was in this manner: Towards the
end of November they received from the Oonsulate a notice similar to the other two. On
receiving this the defendants consulted their
solicitor, and on his advice sent to the Consulate
.and received a copy of the certificate of nulla
bona. I do not think either the defendants or
their solicitor were aware of the effect of this
certificate, but I think it must be taken that, when
they received it, the execution of the judgment
had been made known to them within the meaning of art. 159. These being the facts, I have
to decide whether an action will lie in these
courts on the judgment soobtained and sonotified.
The first question is whether the defendants submitted to the iurisdiction of the French tribunal.
It is claimed that they did so by virtue of the
clause in this agreement. This seems to be
decided by the case of Feyerick v. Hubbard (86
L. T, Rep, 829; 71 L. J., K. B. 509),provided
that there was nothing in the proceedings contrary to natural justice. VVas there anything
so contrary? Certainly the defendants had no
such notice of the proceedings as is necessary in
our courts. The form of letter sent bv the
French Consulate contains no indication of the
nature of the proceedings nor the name of the
plaintiff, and it was sent at a time when it would
be practically impossible for the defendants to
have appeared before the tribunal on the day
named. The defendants were called. I am
U

S1B-Vol.

H. OF L.]

THE LAW TIMES.

c.]

[July 31. 1909.

[H. OF L.

BROOK AND OTHERS V. MELTHAM'URBAN DISTRICT COUNCIL.

satisfied that they did not realise at that time
that an action had been commenced against them
by the plaintiff.
Although the plaintiff was at
this time actually corresponding with the defendants, not a word was said by him of his having
commenced proceedings.
I cannot help thinking
that both he and his solicitor were careful not to
inform the defendants of the proceedings until
after the execution, when it would be too late to
make opposition.
Notwithstanding
all this, how-ever, I do not feel able to say that the proceedings were contrary to natural justice.
The
French courts in the case of foreigners residing
abroad do not take the same precautions as we
do to avoid inj ustice. There is an absolute right
to come in and defend before execution, and
even after execution I gather from the expert's
evidence that in a proper case the defendant
might be allowed to come in and defend.
I
have nothing to show that if at the end of
November he had chosen to appear and ask for
leave to defend he would not on the facts before
me have been allowed to do so. The remaining
question is whether the judgment of the 18th June
was a final judgment on which an action would
lie in our courts. It is clear that according to
the case of Nouvion v. Freeman (62 L. T. Rep.
189; 15 App. Cas. I) it was not final when
pronounced on the 18th June, because the defendants had an absolute right to appear and defend
and have the case tried in the same court on its
merits and not by way of appeal. But it was
said for the plaintiff that it became a final judg-ment on notification of the execution, and the
action was not commenced till after that. I
can find no authority on this point.
It was
argued that it was not the case of a judgment
becoming final after a fixed period.
It was after
an uncertain period-viz.,
at such a time as it
could be proved that the defendants were notified
of the execution, a matter to be determined by
evidence in· the-present
action. There remains
the fact, however, that in France there was a
final judgment
in existence and binding on
the defendants at the time this action was
brought.
That being so; I think an action will
lie on it in this country.
There must, therefore,
be judgment for the plaintiff for the amount of
the judgment, and I think I must say with costs.
Solicitor for the plaintiff, Joseph W. Astrey ..
Solicitors for the defendants, Michael Abrahams,
Sons, and Co..

3!l OUSt of I.orbs.
Thursday, May 20.
(Before the LORD OHAN0ELLOR (Loreburn),
Lords MACNAGHTEN, GORELL, and SHAW.)
BROOK AliD OTHERS v. MELTHAM URBAN
DISTRICT OOUNCIL.«(.(,)
ON APPEAL FROM THE COURT OF APPEAL
IN ENGLAND.

Sewer-Facilities for manufactories to drain into
sewer-Sufficiency of sewer-Purification
works
-Rivers Pollution Prevention Act 1876 (39 & 40
Viet. c. 75), s. 7.
The Rivers Pollution Prevention Act 1876 enacts
by sect. 7: "Every sanitary or other local autho-

rity having sewers under their control shall give
facilities for enabling manufacturers within
their district to carry the liquids proceeding
from their factories . . . into such sewers
. . . provided that no· sanitary authority
shall be required. to give such facilities as aforesaid where the sewers of such authority.are only
sufficient for the requirements of their district."
Held, that the word "sewers" in the proviso
means the sewage system as a whole, and not
only the pipes in which the-sewage is carried j
and when sewage is passed into purification
works, and such works are only sufficient for the
requirements oj the district, the sanitary authority cannot be required to give facilities to
manufacturers for carrying the liquids from
their factories into the sewers, though the actual
pipes may be sufficient to ca1'ry off such liquids.
Judgment of the Court of .Appeal affirmed.
Guthrie, Craig, and Co. v. M.agistrates of Brechin
(15 R. 385) distinguished by Lord Shaw.
ApPEAL from a decision of the Court of Appeal
(Vaughan Williams, Moulton,andBuckley,L.JJ.),
reversing a judgment of the Divisional
Court
(Channell and Sutton, JJ.) which allowed an
appeal from an order of the County Court of
Yorkshire, sitting at Huddersfield.
The hearing below is reported 99 L. T. Rep.
641; (1908) 2 K. B. 780.
The appellants
were thread manufacturers
carrying on business at the Meltham. Mills, in the
West Riding of Yorkshire, and the respondents
were the sanitary authority of the district.
In April 1907 the appellants commenced proceedings in the Oounty Court uuder the Rivers
Pollution Prevention Act 1876 claiming an order
to enable them to carry the liquids proceeding
from their factories into the sewers under the
control of the respondents,
and to allow the
appellants to cause the drain containing such
liquids to empty into the sewers, and to allow
the appellants to make all necessary communi
cations between their drain and the sewers for
the purpose aforesaid
on condition
of the
appellants
complying with the respondents'
regulations (if any) in respect of the mode in
which such communication was to be made, or
otherwise to give to the appellants such facilities
for such purposes in the terms of the Act and
on such terms and conditions as to the court
might seem proper.
Sect. 7 of the Rivers Pollution Prevention
1876 enacts as follows:

A.ct

Every sanitary or other local authority having
sewers under their control shall give facilities for
enabling manufacturers within their district to carry the
liquids proceeding from their factories or ma.nufacturing
processes into such sewers: Provided that this section
shall not extend to compel any sanitary or other local
authority to admit into their sewers any liquid which
would prejudicially affect such sewers or the disposal
by sale, application to land, or otherwise, of the
sewage matter conveyed along such sewers, or which
would from its temperature or otherwise be injurious
in a sanitary point of view. Provided also, that no
sanitary authority shall be required to give sueh
facilities as aforesaid where the sewers of such authority are only sufficient for the requirements of their
district, nor where such facilities would interfere with
any order of any court of competent jurisdiotion

._ ••.•.•__

.••.L! __
.

.L1....•.•.

.-J!

1...

__ Lt.. __

!._

EXHIBIT 14

TIlE

REPORTS

ENGLISH
VOLUThiE

OLlY

EXCIIEQUER

DIVISION
X

CONTAINING

EXCHEQUEH
(WELSBY,

R.EPOl~TS

HUHLSTONE
VOLS.

AND

GORDON)

1 TO 4:

W. GR·EEN & SON , LIMITED , EDINBURGH
STEVENS
&- SONS, LIMITED,
LONDON
LAW PUBLISHERS

1915

1221

87.

4 EX. 289.

td

alone chargeable with it; [289] and that, his interference with them having been
entirely gratuitous, could not operate to extend the liability to him. But the invariable usage proved at the trial, and the futility of making chargeable the merchant to
whom the goods may belong, and who, at the time of the importation, may be altogether
unknown to the Corporation, may reside in a foreign country, or at a distance from
the port, within her Majesty's dominions, shew that the word" owner," as used in the
charter, cannot receive so limited a construction.
Payment of the primage within the
port appears to be contemplated by the charter; and one, under whose claim to the
possession of them the goods are imported, may not improperly be deemed, for the
purpose of importation and its incidents, the owner; and accordingly, in claiming
the primage confirmed to the plaintiffs by the charter, the invariable usage had been
to treat as the owner the importer; and, until the resistance of the defendant originating the present action, the importer had invariably paid it
In the course of the
argument, the defendant's counsel observed, that the existence of the usage was not
found by the jury.
But it is evident from the Judge's notes, that, after the jury
had found that the duty had been legitimately established, the learned counsel, who
was not likely to forego the chance of their negativing the existence of the usage, if
he could have entertained the slightest expectation of their doing so, was content to
rest his defence on the general ownership of Pinto & Co., and the gratuitous nature
of the defendant's interference; he could not have done otherwise, as the evidence
upon the subject of the usage was wholly uncontradicted.
The case then stood thus: -The duty was demandable from persons designated in
the charter as owners of the goods imported; the usage shews, ~ha.:tby such designation the importers were intended.
The defendant was the importer of the lead. The
Judge at the trial held, that, under [290] such circumstances Hammond was liable.
We think the learned Judge was right; that the defendant's having acted gratuitously
for Pinto & Co. did not abridge his liability; and consequently, that the rule for a
nonsuit or a new trial should be discharged.
Rule discharged.

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V ALLEE

V. DUMERGUE

AND OTHERS v. DUMERGUE.
July 6, 1849.--To an action on a French
judgment, the defendant pleaded that he was not, during the accruing of the
cause of action, or any part of the proceedings, nor from thence hitherto, resident
in France, or within the jurisdiction of the Court, nor subject to the laws of
France; that he was never served with any process or notice whatever; nor had
he any notice whatever of any proceedings in the action; nor did he appea.r in
Court, or have any opportunity of defending himself against the claim, and the
proceedings were taken in his absence, and without his knowledge, privity, and
consent.
Replication, that the defendant became a shareholder in a certain
Company in France, subject to all the liabilities and rights attaching thereto.
That the defendant was resident in England, and bv reason thereof it became
necessary, by the law of France, for the defendant to"elect a domicile in France,
at which the directors of the Company might notify to him all proceedings
relative to the Company, or the defendant as such shareholder.
That, by the
law of France, all legal proceedings affecting any party having his real domicile
out of that kingdom, left for him at such elected domicile, were as valid as if
left at his real domicile in France. . That the defendant made election of domicile
at a place in Paris, and gave notice thereof to the plaintiffs. That the assets of
the Company being insufficient to discharge their debts, the defendant, as a
shareholder, was, by the law of France, liable to pay a certain sum, and to be
sued for the same by the plaintiffs. That the plaintiffs, for the recovery thereof,
caused a summons to be left at his elected domicile, requiring him to appear in
Court at a certain time and place, That the defendant did not appear, according
to the exigency of the summons, whereupon the plaintiffs recovered judgment by
default.
On special demurrer to the replication-Held,
first, that the facts stated
in the replication afforded an answer to the plea.-Secondly,
that the word
"notice" in the plea, meant actual notice alone, and, consequently, the replication did not amount to an argumentative denial of that notice, but consisted of
a statement of facts shewing that no such notice need be given.- Whether the
plea was bad for omitting to state that the defendant was never resident in, or

VALLEE

1222

V ALLEE

V. DUMERGUE

4 EX. 291.

a native of France, nor at the time of the proceedings bad property therequan·e.
[So C. 18 L. J. Ex. 398. Referred to, Copin v. Adamson, 1874, L. R. 9 Ex. 352.J
Assumpsit on a judgment for 272,767 fr. 60 cent. recovered by the plaintiffs
against the defendant, in the Court of the Civil Tribunal of First Instance of the
department of the Seine, sitting at the Palace of Justice at Paris, in the kingdom of
France.
Plea, that the defendant was not, at any time during the accruing of the supposed
cause of action upon which the supposed judgment WR.S founded, nor from thence
continually during any part of the said proceedings towards the supposed judgment,
and upon wbich it is founded, nor from thence hitherto, resident in or within the
kingdom of France or the jurisdiction of the Court in whicb the supposed judgment
was recovered; nor was he the defendant, [291] during any part of the abovementioned period, subject to the laws of the kingdom of France, or any of them, or
liable to be proceeded against therein.
That the defendant was not, at any time
before the recovery of the supposed judgment, served with any process or notice whatever; nor had he any notice whatever of any proceeding in the action or suit in which
the supposed judgment was recovered; nor did nor could he the defendant in any
manner appear in the said Court during the course of the proceedings in tbe said
action or suit, or any part thereof; nor had he the defendant, at any time before
the recovery of the supposed judgment, any knowledge or notice whatever of the
said proceedings, or any of them; but, on the contrary thereof, he the defendant
was wholly and entirely ignorant of the proceedings in the said action or suit, and
every of tbem, or that tbe same or any was or were about to be taken against him ;
nor had he the defendant time, nor has he bad any opportunity whatever, of
opposing the said proceedings or of objecting to them, or of defending himself from
and against the supposed claim or demand upon which the supposed judgment was
obtained.
And the defendant further says, that the said proceedings were taken
and the supposed judgment was obtained against him in his absence and behind
his back, and without his knowledge, privity, or consent. Verification.
Replication, that, before the commencement of the action or suit in whicb the
judgment was so recovered, and before and at the time of the execution of the act or
instrument of conveyance hereinafter next mentioned, one Alexander Mechin, then
being a subject of and domiciled and resident in the kingdom of France, was a partner
and shareholder of and in a certain Company then lawfully establisbed and existing
in the kingdom Of France, for the supply of military beds to the Government of the
said kingdom, called or known by a certain name or firm, to wit, the firm of Martin
Vallee & Company, the social pro-[292]-perty whereof was tben divided into divers,
to wit, twelve shares, called and known in the kingdom of France by the name of sols,
and which shares or sols were tben, according to the law of France and the regulations of the Company, transferable by the holders thereof ; and tbe said A. Meehin
was then tbe holder and lawfully possessed of, to wit, one share or sol and the quarter
of another share or sol in tbe said Company; and, being so possessed and such partner
and shareholder, tbe said A. Mechin, long before tbe commencement of the said action
or suit, to wit, on &c., by a certain act or instrument of conveyance then duly made
and acknowledged in the kingdom of France, and according to the laws thereof,
for the considerations therein mentioned, to wit &c., sold and conveyed to one
Nicholas Baignieres, with power of repurchase or redemption during five years, to
commence from the date thereof, all the rights of him A Meehin in tbe said Company, to wit, one sol and one quarter of another sol therein, whereby N. Baignieres
then became and was, according to the laws of France, tbe lawful holder of the said
shares and interest of and in the said Company, subject to the right of repurchase
and redemption.
And thereupon afterwards, and before the commencement of the
said action &c., and within five years from tbe date of the aforesaid act or instrument •
of sale and conveyance, to wit, on &c., A. Meehin, by a certain other act or instrument of sale and conveyance then duly executed &c., for tbe considerations thsrein
mentioned, to wit &c., sold, made over, and conveyed to the defendant tbe rigbt and
power of redemption so reserved to him A. Mechin by the said act or instrument
of conveyance, of and in the said one sol and a quarter of another sol of the social
property of the Company, togetber with all the rigbt and claims whatsoever of

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4 EX:. 293.

VALLEE

V.

DUMERGU.m

1223

him A. Mechin of and in the Company.
That, at the time of the execution of
the last-mentioned act or instrument of sale and conveyance, the defendant was
present in the kingdom of France and had full notice and know-[293]-ledge
thereof, and then duly and according to the law of France accepted the same and the
benefit and liabilities thereof, and thereby then became and was, according to the law
of France, duly entitled to the said right and power of repurchase and redemption of
and in the said one sol and a quarter, &c. And thereupon afterwards, and whilst the
defendant was so interested and entitled, and within five years from the date of the
act or instrument of sale and conveyance first mentioned, and whilst the same was in
full force, to wit, on &c., by a certain other act or instrument in writing, then duly
made, executed, and acknowledges by the parties thereto and the defendant in &c.,
for the considerations therein mentioned, to wit, &c., the defendant was thereby duly,
and according to the laws of France, put into possession of, and placed and substituted
into the rights, titles, and privileges in the said Company, against the said Company
and all whom it might concern, for him the defendant to exercise the said rights in
the same manner as A. Mechin would have been entitled to do; and the said
N. Baignieres thereby gave up to the defendant the exercise of all rights in the
Company; whereby, and by the law of France, the defendant then became and was
the lawful holder of the said share and interest, to wit, the said one sol and one
quarter, &c., freed and discharged from all the rights, claims, and demands of the
last-mentioned person in respect thereof, and thereby then became and was, by the
law of France, subject to all the liabilities, rights, and privileges then attaching upon
or belonging to the holders of shares in the Company; that, at the time of the
execution of the said several acts or instruments, and when the-defendant so became
and was the holder of such share and interest of and in the Company, the Company
was still lawfully existing and established in the kingdom of France, and the seat and
place of business thereof then was in Paris, in the said kingdom, whereof the defendant then had notice; and that the defendant, at, the several times, was resident and
[294] domiciled in England, and not in the kingdom of France; and that, by reason
and in consequence thereof, it became and was, at the time of the making and execution
of the act or instrument of conveyance thirdly mentioned, necessary, according to the
law of France, for the defendant, and he the defendant was then bound and obliged
by such law, upon his so becoming the holder of such share and interest of and in
the Company so then established and existing in the kingdom of France, to elect a
domicile within the kingdom of France, to wit, in Paris, at which the directors or
administrators of the affairs of the Company might and should, in case of need, notify
to the defendant all instruments and other proceedings relative to the Company, or
relating to or affecting the defendant as a shareholder in the same ; and also, that the
defendant should cause notice to be given to the Company and the directors thereof,
of the place of such elected domicile; of all which &c. (notice); that, before and at
the times of the execution of the several acts &c., and from thence until and at the
time of the recovery of the judgment, it was and still is the law of and in force in the
kingdom of France, that, wben any person, not having an actual and real domicile
within the kingdom of France, was desirous of electing a domicile within the said
kingdom, for carrying into execution within the said kingdom any act or instrument
in writing to which he was a party, or for any other purpose or matter relating to 01'
arising out of such instrument, such election of domicile might and could be lawfully
made by such party, by a statement and declaration in writing by him in and by
such act or instrument, of the place within the said kingdom at which he then elected
domicile for the execution of such act or instrument, and such place then thereby
became and was by and according to the law of France, the elected domicile of such
party within the said kingdom for the carrying into execution of the said act or
instrument, and for all purposes and matters relating to or arising out of such act or
instrument, and the [295] consequences thereof, until some change or alteration were
made by such party in the place of sl1ch elected domicile; that, before and at the
said several times, it also was and still is the law of and in force in the kingdom of
France, that, when an act contained on behalf of the par-ties thereto, or one of them,
an election of domicile, for the execution of the same act in a different place from that
of the real domicile, the notifications, demands, and proceedings relative to such act
might be made at the domicile agreed on, and before the judge of the place; that is
to say, before the judge within whose jurisdiction
the place of such elected domicile

-1224

VALLEE

'U.

DUMERGUE

4 EX. 296.

situate;
that, by the law of France, Itt the several times aforesaid, all notices and
all legal and judicial proceedings
for or concerning or affecting any party having his
real and actual domicile out of the kingdom of France, but having an elected domicile
for any purpose within the said kingdom, and relating to and concerning
the acts or
matters in respect whereof such domicile had been and was so elected, or the consequences of such acts or matters, addressed to and left for such party at such elected
domicile, were and are as valid and effectual in law, as if the same had been and were
addressed to and left for him at the real and actual domicile of such party, within the
jurisdiction
of the judge of that place; of all which &c. (notice).
Averments,
that, in and by the act or instrument
in writing thirdly mentioned,
and whereby the defendant became the holder of the said one sol and one quarter, &c.,
the defendant, for the execution and the carrying
into execution of the same act or
instrument
in writiug, and according to and in pursuance of the law of France in that
behalf, made election of domicile at a certain place in Paris, within the jurisdiction of
the court and tribunal in the declaration mentioned, to wit, at Mons. Callaghan's bank,
Hue N euve des Mathurins, in Paris aforesaid, to wit, by declaring and stating, in and
by such last-mentioned
act or instrument
in writing, that he the defendant did then
elect domicile, for the execution
of the same instrument,
at the [296] said Mons.
Callaghan's, at the place last aforesaid;
that such election of domicile by the defendant
in manner aforesaid was, at the time of the execution of the last-mentioned
act or
instrument
in writing, and from thence until and at the time of the recovery of the
said judgment,
an election of domicile by the defendant,
good, valid, and effective,
according to the law of the kingdom of France, so as to constitute
the said place, to
wit, Mons. Callagban's &c., the elected domicile of the defendant,
within the kingdom
of France, for the execution and carrying into execution of the said last-mentioned
act
or instrument
within the said kingdom, and for all that should relate to the same, or
the consequences thereof, and for all matters relating to or arising out of the same act
or instrument,
within the said kingdom and the elected domicile of the defendant
within the kingdom of France, at which, according to the law of France, all notifications,
demands, and proceedings to, from, or against the defendant in the said kingdom relative
to such act, or arising out of the same, might lawfully be made and left for the defendant; that the defendant, afterwards
and before the commencement
of the said action
&c., to wit, on &c., as he the defendant was then bound and required by the law of
France to do, caused notice to be given to the said Company, and the directors and
administrators
thereof, and to the plaintiff, as and then being one of such directors,
that his the defendant's
domicile had been and was elected, for all which should relate
to the execution eWthe said act or instrument
thirdly mentioned, at Mons. Callaghan's,
&c.; and the said Company and the directors and administrators
thereof then had
notice from the defendant of his election of the said domicile for the purposes aforesaid.
The replication
then stated, that, from the time the defendant
became such
shareholder,
the business of the Company was carried OIl within the kingdom of France;
that the defendant
continued
a shareholder;
that the directors
of the Company
caused to be paid at the banking-house
of Mons. Callaghan, for the de-[297]-fendant,
sums of money in respect of dividends payable. to the defendant as such shareholder;
and that such sums were so paid at the said banking-house
as such elected domicile
of the defendant;
and that, by reason of having such elected domicile and of
the said payments,
the defendant
actually
received
such dividends;
that the
plaintiffs
were, according
to the law of France, appointed
by the shareholders
as
liquidators,
to examine the affairs of the Company, and it was found by them, that
the funds of the Company were insufficient to pay the debts; and it became necessary
that the debts should be discharged
by the shareholders,
who were by the law of
France liable to pay the same by a fund raised according to their several interests in
the Company;
and that the amount
payable by the defendant
was found to be
272,767 fr. 60 cent., for which the defendant
was liable to be sued by the plaintiffs,
as such liquidators:
that the plaintiffs, for the recovery of such sum, afterwards, to
wit, on &c., duly and according
to the law of France, and the practice of the Court
of the Civil Tribunal of First Instance &c., being the Court then having jurisdiction
thereof, and within which jurisdiction
the said elected domicile of the defendant was
so then situate, caused to be issued out of the said Court a certain summons or
precept, addressed to the defendant,
whereby the defendant was summoned to appear
in the said Court, sitting at &c., at a day and time therein named, to wit, in eight
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4 EX. 298.

VALLEE

'v. DUMERGUE

1225

clear days from the service thereof, with the addition of the term of two months, in
consideration of the distance, to answer the now plaintiff in an action or claim for the
sum of 272,767 fr, 60 cent., with interest &c., the same being a demand relative to
and arising out of the said act or instrument in writing thirdly mentioned; which
said summons the plaintiff, then and long before the recovery of the judgment in the
declaration mentioned, to wit, on &c., duly caused to be left, served, and delivered
for the defendant, at the said elected domicile of the defendant, to wit, at the said
Mons. Oallaghan's; that the defendant [298] did not, from the time when he in
manner aforesaid so elected his domicile at the place aforesaid, in the kingdom of
France, make or notify to the plaintiffs or the Oompany any change in his said elected
domicile, but the same, from the time of such election until and at the time of the
service and delivery of the said summons, continued to be and was the elected
domicile of the defendant in the kingdom of France for the purposes hereinbefore
mentioned.
That the summons of the plaintiffs in the said action or proceedings was
in all respects regular and valid according to the law of France and the practice of
the said Oourt; and that the service thereof for the defendant at the real and actual
domicile of the defendant, within the jurisdiction of the said Oourt, would have been,
according to the law of France and the practice of such Oourt, notice to the defendant
of such summons and proceedings, and the defendant would have been bound in such
case to appear in the said Court at the time mentioned in the said summons.
That,
according to the law of France, the said summons was, at the time of such service
thereof at the elected domicile of the defendant, and until and at the time of the
recovery of the said judgment, a notification and proceeding relative to the act or
instrument in writing thirdly mentioned; and that, according to such law and
practice, the said delivery and service of the summons for the defendant, at the
elected domicile of the defendant, was equivalent to, and as effective and valid, as
a delivery and service thereof for him at the real and actual domicile of the defendant
within the jurisdiction of the said Court, and then amounted to and was, according
to the law of France, notice to the defendant of such summons and proceedings, he
the defendant then having his real and actual domicile out of the kingdom of France,
to wit, in England; and that the defendant then was, according to the law of France,
bound to appear and ought to have appeared in the said Court at the time mentioned
in the said summons, for the purpose [299] therein mentioned.
The replication then
stated, that the defendant did not appear in Court according to the exigency of the
summons, whereupon the Judges of the Court, according to the law of France and
the practice of the Court, granted default against the defendant for not appearing,
and such proceedings were thereupon had, that the plaintiffs recovered judgment for
272,767 fr. 60 cent., which is the same judgment in the declaration mentioned.
Averment, that the judgment, so in manner recovered, then was and still is, according
to the law of France, regular, and valid, and conclusive, and binding upon the
defendant and the plaintiffs, and not in any respect impeachable by the parties
thereto, or either of them, or otherwise howsoever.
Verification.
Special demurrer, assigning for causes (amongst others) that the replication
amounted to an argumentative denial of the notice stated in the plea.
Needham argued in support of the demurrer (June 4). First, as to the plea.
A foreign judgment recovered behind the back of a party not resident in the country,
is a judgment from which the law will not imply an assumpsit: Buchanan v. Rucker
(1 Camp. 63). This plea states facts shewing that the judgment was obtained
contrary to natural justice: Fisher v. Lane (3 Wils. 297 ; S. C. 2 W. £1. 834), Cauam.
v. Steuart (1 Stark. 525), Bruce v. Wait (1 M. & G. 1). Douglas v. Forrest (4 Bing.
686) will, perhaps, be relied on by the other side; but that was the case of a Scotch
judgment of horning, which proceeding is recognised in English Acts of Parliament.
In Ferquson. v. Mahon (11 A. & E 179), the facts alleged in the plea were less strong
than in the present case; and Lord Denman, C. J., in delivering judgment, says,
" When it appears, as here, that the defendant has never had notice of the proceeding
or been before the Oourt, it [300J is impossible for us to allow the judgment to be
made the foundation of an action in this country."
Secondly, the replication amounts to an argumentative denial that the defendant
had notice of the proceedings in the action on which the judgment was founded.
It
will, perhaps, be argued, that the replication admits a want of notice in fact, but
shews a sufficient notice in law; the meaning, however, of the plea is, that the
Ex. DIV. x.-39*

1226

V ALLEE

tv.

DUMEB,GUE

4 EX. 301.

never had such notice as rendered the judgment
valid: Dresser v. SLan,~fiel(l
Wriqh; (7 M. & VV. 359).
Where, to a declaration
in
case for a fraudulent
representation,
the defendant
pleaded that the representation
was not in writing signed by him, according to the 9 Geo. 4, c. 14, s. 6, and that it
W~tS made after the passing
of that Act, the plea was held bad, as amounting
to an
argumentative
denial of the representation
charged
in the declaration:
T'itrnley
v. 1vlacgrego), (6 M. & G. 46).
It is difficult to say, whether the replication means to
set up an excuse for notice, or to allege the law of France as to notice.
If the latter,
it contains a mere argumentative
and inferential
statement
of the French law, upon
which no certain issue can be taken.
The proper mode of pleading is to state the
foreign law as a fact, and then to aver the facts to bring the case within it: Benham
v. The Bad of lVfo1'nington (3 C. B. 133).
[He also cited Astley v. Fishe1' (6 C. B. 572).J
Phipson, contra.
First, the plea ought to have stated, in addition,
that the
defendant
was never resident in nor a native of France,and
that, at the time of the
proceedings,
he had no property there: HerlCleJ'son v. Hendereo» (6 Q. B. 288); Story's
Conflict of Laws, ch. xv. s, 607; Onlve1'son v. Melum. (12 A. & E. 753), Cowan
v. Draidwood (1 M. & G. 882).
Secondly, the replication shews a state of circumstances
[301] which, according to
the law of France, renders the judgment
valid.
If the plaintiff had taken issue on
the allegation of notice in the plea, or replied de injuria, he must have proved a notice
in fact.
If the plea means that the defendant
had no notice in fact, the replication is
good in confession and avoidance, for it states that the plaintiff did something, which,
according
to the law of France, was notice of the proceedings:
ReynolcZs v. Fenton

defendant

(14 M. & W. 822), Wheelerv,

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(3 C. B. 187).
Needham replied.
Cur. adv, vult.
The judgment of the Court was now deli vered by
ALDERSON,
B. In this case, which was argued before the Lord Chief Baron,
my Brothers
Rolfe and Platt" and myself, I am now to deliver the judgment
of
the Court.
The declaration states, that the plaintiff heretofore, on the 17th of December, 1846,
at the Court of Civil Tribunal
of First Instance:
for the department
of the Seine,
sitting at the Palace of .J ustice at Paris, before the judges of that Court, recovered
against the defendant
a debt amounting
to the sum of 272,767 fro 60 cent., which
sum of money remains wholly due and unpaid.
To this the defendant has pleaded,
that he was not, a,t ~ny time during the accruing of the supposed cause of action upon
which the said supposed judgment was founded, nor from thence continually during any
part of the proceedings
towards such supposed judgment,
resident in or within the
kingdom of France &c. To this plea, which is in substance, that the foreign judgment
does not bind the defendant
in an English Court, as being pronounced
contrary to
natural justice, the plaintiff, by his replication, sets out that the defendant had become
a member of a Company
in France by holding shares therein, upon certain terms
named in the replication;
and that, being so, and being n resident
in England, it
became tle-[302}cessary,
according
to the law of France, for the defendant, as such
holder of shares, to elect. a domicile in France, to wit, in Paris, at which domicile the
directors
and administrators
of the affairs of the Company might, in case of need,
notify to the defendant all instruments
and proceedings relating to the said Company,
or to the defendant, as such shareholder
in it; and that the defendant
should give
notice to the directors of such elected domicile.
The replication proceeded to state,
that, by the law of France, the domicile contained in an instrument
and declaration in
writing became the elected domicile of the party, and that all proceedings might, by
that law, be regularly
served at such elected domicile on the party.
It then set
out an election
of domicile duly made, according
to the law of France, by the
defendant,
and then proceeded
to shew that the suit in question in which the judgment was obtained was one rela,ting to the Company, and that the proceedings were
in due course ,served at the place of the defendant's
elected domicile, and w ere
in all respects regular according to the law of France.
This replication concludes with
a verification.
To this there was a special demurrer,
the ground being, that this
replication
was, in fact, an argumentative
denial of the want of notice of the proceedings to the defendant,
stated in the plea.
There is no doubt that the facts stated in the replication, if true, afford an answer

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to the defendant's plea, aud that the q uestion before us is one only of form. But, lJO
doubt, if by the word" notice" in the plea, that which amounts in point of law to
notice is to be intended, the defendant is right in the objection he makes, and the
plaintiff ought directly to take issue all the notice, and support his issue by proving
the facts stated in his replication.
But, after considering this plea, we think, that,
by the word" notice" is to be understood actual notice alone. The defendant states,
he was not served with any process, which clearly means not actually served,
and then adds, nor had he any notice whatever of the said proceedings;
[303] adding, afterwards, that he had not any knowledge or notice whatsoever of
them. All these averments point to actual notice alone. Now, if this be so, the
replication is not an argumentative denial of this notice, but consists of a statement of
facts which shew, that, by the agreement to which the defendant has become a party,
no such notice need be given to him, and that the plea, which is in substance that the
circumstances under which the judgment was obtained were contrary to natural
justice, cannot be supported; for that it is not contrary to natural justice that a man
who has agreed to receive a particular mode of notification of legal proceedings should
be bound by a judgment in which that particular mode of notification has been
followed, even though he may not have had actual notice of them.
We, therefore, think the replication sufficient; and it is not necessary, consequently, to give any opinion on the objections made by Mr. Phipson to the plea.
Judgment for the plaintiff

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PARTRIDGE

'V.

GARDNER

v. GARDNER.
July 6, 1849.-To a declaration in assumpsit the defendant
pleaded several pleas, .upon which issues were joined; and also a plea, to which
the plaintiff demurred.
The issues were tried, and found for the plaintiff, and,
afterwards, judgment was given for the defendant on the demurrer, the Court
holding the declaration insufficient :-Held,
that the plaintiff was not entitled.
under the 4 Anne, c. 16, s. 5, to the costs of the issues found for him, as no issue
in fact had been found for the defendant also.

PARTRIDGE

[So C. 7 D.

& L. 106; 18 L. J. Ex. 415: affirmed, 6 Ex. 621.

Callander

V.

Howard,

Overruled,

1850, 10 C. B. 313.J

Phipson had obtained a rule calling upon the defendant to shew cause why the
plaintiff's costs should not be taxed on the issues found for him, and be paid by the
defendant, after deducting the amount allowed to the defendant.
The plaintiff had
declared in assumpsit.
The defendant pleaded seven pleas. The first was non
assumpsit. The second, third, fourth, fifth, and sixth respectively, traversed allegations in the declaration.
The seventh W~tS a plea in confession and avoidance.
The
plaintiff having [304] joined issue on the first five pleas, and demurred to the sixth
and seventh, obtained a verdict on all the issues in fact, with contingent damages;
but afterwards, on argument of the demurrer, failed, the Court holding that his
declaration was insufficient, and expressly giving judgment against him accordingly,
on the ground of such insufficiency.
Keating and Ogle shewed cause (May 23). The 4 Anne, c. 16, enables defendants
to plead several matters.
By sect. 5 it is provided, "that, if any such matter shall.
upon a demurrer joined be judged insufficient, costs shall be given at the discretion
of the Court; Of', if a verdict shall be found upon any issue in the said cause, for the
plaintiff or demandant, costs shall be given in like manner, unless the .J udge who tried
the issue shall certify."
According to the true construction of that section, the
verdict must be round upon issues in respect of which there may be judgment.
Bird
V. Higginson
(5 A. & E. 1)3) is relied upon by the other side. There the declaration
contained two counts, and there were two pleas to the first count, and one to the
second. Issues were joined on one plea to the first count, and on the plea to the
second count; the other plea to the first count was demurred to. The issues in fact
were tried, and a verdict was found for the plaintiff Oil the issue on the first count,
and damages assessed, and for the defendant on the issue on the second count.
Afterwards the defendant had judgment on the demurrer, and it was held that the
plaintiff was entitled to the costs of the issue on which he had succeeded. That case
is generally considered as overruling Cooke V. Sayer (2 BUrT. 753), where the defendant
pleaded to the whole declaration two pleas, upon one of which the plaintiff joined