SOME ASPECTS OF THE LAW OF FOREIGN JUDGMENTS, WITH SPECIAL REFERENCE TO DEFAULT JUDGMENTS OF ENGLISH AND COLONIAL COURTS INTER SE. Τ IT is proposed in this essay to first state some principles that, while familiar enough to students of international law, may be conveniently referred to by way of introduction to the subject here discussed, and then to pass to a more particular consideration of the effectiveness' of default judgments of Colonial courts in England and of English courts in the Colonies. It must be remembered that it is only in cases of default judgments that the question of 'effectiveness' in its international sense can arise 1, and 'default judgment,' as used in this essay, means a judgment entered in default of appearance by a defendant, in a personal action, founded on service beyond the jurisdiction of the court in which the judgment is entered. The division into heads and sub-heads adopted is for convenience only, and does not profess to be entirely scientific, and no doubt the topics discussed will be found to overlap to some extent. IA. The Conflict between Municipal and International Law. To a clear understanding of the intricacies of the law of foreign judgments, it is essential to have an accurate conception of the difference in principle as the several questions are regarded from the view-point of municipal law on the one hand, and of private international law on the other 2. In the ultimate analysis, of course, what is or what is not the proper rule or principle of private international law to be applied to the particular case under consideration must be determined by the court in accordance with the principles or rules to be found in the law of its own country. 'These rules make up that department of English law which deals with the conflict of laws, and may be provisionally described as principles of the law of England governing the extra-territorial operation of law or recognition of rights. This branch of English law is as much part of the law of England as the Statute of Frauds or the Statute of Distributions 3. 1 See Voinet v. Barrett, 55 L. J. Q. B. 39. 2 See Pemberton v. Hughes [1899] 1 Ch. p. 791. * Dicey on Conflict of Laws, 2nd ed., Introduction, p. 3. Thus the law of England (as of any other country) may be divided into two branches : (a) Territorial' or 'Local' law. (b) That part of the law (of England) which provides directions for the judges when called upon to adjudicate upon any question in which the rights of foreigners, or the effect of acts done, or to be done, in a foreign country, or with reference to a foreign law, require determination 1.' A mastery of this twofold division of the law of England (or for that matter of any civilized country) puts a student on his guard against an ambiguity of language which, unless clearly conceived, introduces confusion into every discussion concerning the conflict of laws 2. The laws of most countries provide for some method of service of process beyond the jurisdiction of their respective courts. The individual States of the United States do not, as 'Countries' 3, claim the right of service of process beyond the territorial limits of the State. Indeed the Supreme Court of the United States has held that the State cannot legalize service of process in a personal action on non-residents of the State. 'Where the defendant is a non-resident, a personal judgment by default cannot be rendered against him merely upon service by publication. Such a judgment is authorized only on the personal service of process within the State or on the defendant's voluntary appearance. This is a rule of Municipal Law. Under the American rule a default judgment in a purely personal action founded on service ex juris is not valid even in the State whose courts have rendered the judgment; but it does not by any means follow, as a necessary 1 Dicey on Conflict of Laws, 2nd ed., Introduction, p. 5. Ibid. cf. Westlake on Private International Law (1890), p. 7; Savigny's Conflict of Laws (Trans. of Wm. Guthrie), Edin., 1880, pp. 68-9, Note B, p. 75. 3 Country' is the whole of a territory, subject under one sovereign to one system of law, and generally the definitions given by Prof. Dicey (Dicey on Conflict of Laws (1908), pp. 67, 68) of 'Country,' 'State,' 'Foreign,' 'Foreign Country,' 'England,' 'United Kingdom,' 'British Dominions,' &c., &c., are adopted for the purposes of this article, except where the context shows them inapplicable. Encl. of Pleadings and Practice, vol. vi, p. 34; Pennoyer v. Neff, 95 U. S. 714; Anderson v. Goff, 72 Cal. 69. 5 This difficulty is partially got over in the States by the method of 'Attachment' of the assets of the non-resident defendant, which the courts hold is a proceeding in rem. The rule in question applies to purely personal actions only. It must not be supposed from this that there is no method of proceeding in the United States when the parties in an action reside in different States. In these cases the Federal Courts have jurisdiction; and even when an action is instituted in the State Court under these conditions it can be 'removed' (on the application of either party, I think) into the Circuit Court of the United States for the appropriate Federal district. consequence, that such a judgment, if sued on in England or France, would be held invalid on principles of private international law. Assuming that the person served ex juris, although a non-resident, was a citizen of, and therefore owed allegiance to, the 'country' (i.e. the particular State, e.g. New York) in which the default judgment was obtained, in an action on the judgment in England it might be held, on principles of private international law, as interpreted by the courts in England, that the case came within the rule that 'In an action in personam the courts of a foreign country have jurisdiction where the defendant is at the time of the judgment in the action a subject of the sovereign of such country '.' 'It is clearly not sufficient, in order to impeach a foreign judgment, to show that the court which pronounced it had no jurisdiction by its own rules, if it had jurisdiction according to the principles of international law over the person of the defendant, and the subjectmatter of the action 2.' 'Assuming that the decree 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 upon which English courts act in regarding or disregarding foreign judgments is 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 3.' Lindley M.R. A, adds in the same case: 'The defendant's contention entirely ignores the distinction between the jurisdiction of tribunals from an international and their jurisdiction from a purely municipal point of view 3.' This subject was discussed before the Supreme Court of the North-West Territories (Canada) in an interesting case-Dakota Lumber Co. v. Rinderknecht 4. The defendant was born in the State of Wisconsin, he removed to South Dakota, where a cause of action accrued against him upon which he was sued. He was personally served with the summons in the South Dakota action in the North-West Territories, where he had been residing for 1 Dicey on Conflict of Laws, Rule 83, Case 2. 2 Foote, Private International Jurisprudence, p. 550; Vanquelin v. Bouard, 33 L. J. C. P. 78-84; see also Henderson v. Henderson, 6 Q. B. 288, 66 R. R. 384; Bank of Australasia v. Nias, 16 Q. B. 717, 83 R. R. 698. Pemberton v. Hughes [1899] 1 Ch. per Lindley M. R. 781-7; and cf. Dicey on Conflict of Laws, 2nd ed., pp. 395-6. 42 Western Law Reporter (Canada), p. 275 some fourteen years. Judgment was entered in the South Dakota Court on default of appearance, and an action was then brought on this default judgment in the Supreme Court of the North-West Territories. The trial judge found that he was still a subject of the United States, and held the South Dakota judgment binding upon him, on the assumption that the case was governed by Schisby v. Westenholz1 and Rousillon v. Rousillon.2 The Court in banc reversed this judgment on the ground that the defendant, although a citizen of the United States, was not shown to be a 'citizen,' or subject to the sovereignty, of the State of South Dakota, and in this connexion adopted Dicey's definition of 'country'-'the whole of a territory subject under one sovereign to one system of law.' The soundness of the decision seems indisputable on the main point at issue, and in giving the judgment of the Court Scott J. says in reference to Pennoyer v. Neff 3: This case, in deciding that a State court cannot under any circumstances exercise any authority over any person who is beyond the limits of its territory, or bind him by its judgments, is not in accord with our laws respecting the powers of the courts of the different law districts of the Empire.' It is a fair inference from the decision that if Rinderknecht, the defendant, had been shown to have been a citizen' of the State of South Dakota at the time of the judgment, the Court would have affirmed the judgment of the trial judge, Wetmore J., notwithstanding the fact that the judgment sued upon was invalid in the 'country' in which it was given. The converse of this question is involved in the consideration of the regard or disregard with which the courts of the different States, that collectively make up the United States, will treat 'default judgments' of those countries (e. g. England) whose laws expressly provide for service ex juris of a writ in a personal action. Take the case of an Englishman, a British subject, resident in New York, against whom a 'default judgment' has been entered in the High Court of Justice in England, founded solely upon service under Order XI made upon the defendant in New York. According to the municipal law of England, the judgment is valid; according to the municipal law of New York, a judgment under analogous circumstances is invalid. What are the principles of international law which should govern the New York courts? Is this a case in which the New York courts should investigate the IL. R. 6 Q. B. 155. 3 95 U. S. 748, cited ante. 2.49 L. J. Ch. 338. See 2 Western Law Reporter (Canada), p. 481. propriety of the proceedings in the foreign court' on the ground that they offend against their views of substantial justice 1'? This would seem to be a particular case under the general proposition that a judgment may be valid by the municipal law of the country where it was pronounced (e. g. so as to be enforceable against assets of the defendant in such country), but invalid when it is attempted to sue on it in a foreign country, on principles of private international law. This is well illustrated by the apparently anomalous attitude of English courts (including colonial) in regard to an action on a foreign default judgment against a British subject, which they treat as being without jurisdiction, and therefore not enforceable in England, in spite of the fact that English courts are authorizing service on foreigners by notice of writ, and entering default judgments founded on such service practically every day of the week. The Rajah of Faridkote's case must now be considered the locus classicus on this subject. 'No territorial legislation can give jurisdiction which any foreign court ought to recognize against absent foreigners who owe no allegiance or obedience to the power which so legislates 2.' The validity of the foreign judgments in England (assuming that they were invalid in the countries where pronounced), considered in Vanquelin v. Bouard and Pemberton v. Hughes, depended on three considerations: (1) That the foreign court had jurisdiction of the subject-matter. (2) That the foreign court had jurisdiction of the person. (3) That the proceedings did not offend against English views of substantial justice. Now to apply these tests to our supposed action in New York :the jurisdiction of the English court over the subject-matter is assumed ex hypothesi. Whether the New York court should hold that the English Court, also, had jurisdiction over the person depends on the question whether the proceedings (i. e. by service ex juris) do or do not offend against American views of substantial justice. If the reason for the holding in Pennoyer v. Neff-that service of process beyond the territorial limits of the State is a nullity-is founded purely on municipal law, on something peculiar to the constitutions of the several States or to their particular systems of law, it is submitted that logically there is no violence to American views, or what on principles of international law should be American views, of substantial justice, in holding that the English judgment in the postulated case is a valid judgment as the foundation of an action in the State courts, i. e. an 'effective 'judgment. On the other hand, 1 See per Lindley L.J. in Pemberton v. Hughes cited ante. |