if in Pennoyer v. Neff (and other authorities) the judicial opinions are founded on the view that service ex juris is wrong on principles of international law, then the default judgment in the postulated case clearly would and should be against American views of substantial justice, and should not be enforced. That is, the American courts would be clearly justified in the international sense in taking this position.

'We refuse to allow any validity to default judgments on service of our process beyond the territorial limits of the state, as such service we hold contrary to the principles of international law, therefore we must also refuse to enforce such judgments of a foreign court founded on service contrary to our view of substantial justice.'

This discussion of the question, a priori, may seem somewhat too academic, but it has been purposely introduced to help in the elucidation of some of the questions which will be considered a little further on.

As to how the American courts do regard this question, the decision in Shepard v. Wright is quoted in the American notes to Dicey on Conflict of Laws 1. In that case it was held that a personal judgment rendered in Canada against a resident of New York would not, though the defendant was a 'citizen' of Canada, be enforced against him in New York, unless he had been served with process in Canada, or voluntarily appeared in the action.

That this is a correct statement of the law, and moreover that it is founded on general principles of substantial justice and of international law, according to American views, is supported by the judgment of the New York Court of Appeals in Ward v. Boyce2, a very interesting case in connexion with the whole subject now under discussion.

To an action on a promissory note held and sued on by a married woman in a county circuit of the State of New York, a judgment of a justice's court of the State of Vermont was pleaded, whereby in a proceeding commenced by 'trustee service' in Vermont against the plaintiff's husband and the defendant (the maker of the note) by a creditor of the husband, and to which the plaintiff was made a party, it was adjudged that the note was not the property of the wife but of her husband, by the law of Vermont, and that the wife should pay the amount to the husband's creditor in satisfaction of his claim or judgment pro tanto. At the time of the trial of the Vermont action, the husband and wife resided in the State of New York. The service of summons on Ward (the husband) was

1 Dicey, Conflict of Laws (1896), p. 383 (these notes are omitted in the second edition); 59 How. Pr. 512. 2 (1897) 152 N. Y. 191.

effected by serving the defendant Boyce, 'as trustee of the said Eugene Ward, said Ward being a non-resident of the State.' The wife does not appear to have been served at all.

O'Brien J., in delivering the opinion of the Court of Appeals, lays down the following general propositions of law:

'The judgment of a court of a sister state, recovered upon trustee process or attachment proceedings, in which the defendant is not personally served with process, and does not appear, is effectual only to bind such property as is found within the jurisdiction. It can form no basis for a personal judgment, and cannot affect the title of property not seized or attached, and not within the jurisdiction of the sovereignty where the proceedings are had. A party cannot be deprived of property without 'due process of law1,' and that term in its application to judicial proceedings means a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of our private rights. If the proceedings involve the determination of the personal liability of the defendant, he must be brought within the jurisdiction by service of process within the state or voluntary appearance 2.

The proceedings in Vermont were substantially in accordance with the statutes of that state. It is not enough, however, to show that the judgment was authorized by statute. In order to entitle it to full faith and credit in another jurisdiction, it must appear that the statute contemplated a judicial proceeding in conformity with the principles above stated."

From the above it will be seen what a very important modification of the rule that English courts never investigate the propriety of the proceedings in the foreign court' is contained in the concluding words of the paragraph, per Lindley M.R. (in Pemberton v. Hughes, ante), unless they offend against English views of substantial justice,' and how effectually this language can be used in America to support the interpretation placed by American courts on the principles of international law that should govern this somewhat vexed question.

It may be objected that this case, Ward v. Boyce, is not in point, because the defendants in the Vermont action (Ward and his wife) were not citizens' of Vermont, and therefore do not come within Dicey's Rule 80, Case 2. It is submitted, however, that the decision is not based on the ground that the defendants were not 'citizens' 1 'Due process of law.' See the Fifth Amendment to the Constitution of the United States.

2 Citing, inter alia, Pennoyer v. Neff, 95 U. S. 714.

3 Full faith and credit.' See Constitution of United States, Article 4, s. 1. The nature of this objection, however, becomes of great importance when decisions based on the relations of the several States of the Union to each other and to the United States' are quoted as analogies in questions based upon the relations of the several Provinces of Canada to each other and to the Dominion. See Shepard v. Wright, 59 How. Pr. 512, ante.

of Vermont, but on the ground that personal service within the state or voluntary appearance is in all cases essential to found jurisdiction in a personal action, by the principles of international law and the jurisprudence of the United States, so as to make the judgment 'effective' when sued upon, or valid when pleaded as res judicata, in a foreign jurisdiction.

IB. Conflict between (a) Local' or Territorial' Law, and (b) Private International Law as interpreted by the same Court.

English courts quite unblushingly give judgment in cases, under that branch of the law that Prof. Dicey calls 'Local' or ' Territorial,' while they admit at the same time that the judgment cannot be supported on principles of private international law, even as interpreted by themselves. The Court almost admittedly claims for itself a jurisdiction more extensive than it would concede to foreign tribunals 1.' This has been referred to (ante, p. 416) incidentally, in connexion with the rule that English courts will not enforce a default foreign judgment against a British subject not resident within the jurisdiction of the foreign court at the time of the judgment.

It may be here noted, in passing, that English courts adopt the same rule in regard to Colonial judgments, even where service has been made out of the jurisdiction under the authority of a Colonial statute, or Rule of Court, in precisely the same terms as Order XI of the English Rules of Court.

...

Rule 3

A good example of the conflict between the two branches of law, and the rather anomalous position that Parliament has placed the English Courts in, is furnished by cases arising under Order XLVIII A. This is admittedly one of the most complicated and difficult Orders to interpret and to apply. Rule 1 of the Order provides that any two or more persons . . . being liable as copartners and carrying on business within the jurisdiction may be sued in the name of the respective firms, &c., &c. provides that the writ may be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and . . . such service shall be deemed good service upon the firm. . . whether any of its members are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary.

The view taken by Sir T. Piggott 2 that these rules do not apply

1 Dicey, 2nd ed., p. 47; cf. also p. 49.

2 Service out of the Jurisdiction (1892), p. 92.

to foreign firms is not supported by the later cases, and so far as Grant v. Anderson 1 supports this view, it must be considered overruled by Worcester City and County Banking Co. v. Firbank & Co.2 and subsequent cases. We have the result, then, that a judgment may be recovered against 'two or more persons,' though foreigners, in the name of the firm, without any service on them, without the necessity or pretence of an order for service ex juris, and in any class of personal action whether coming within the classes of action mentioned in Order XI or not. This judgment would be enforceable in England by execution, not only against the firm's property, but also by leave against any members (though foreigners) of the partnership, so far as they possessed property within the jurisdiction; and not only this, but semble that the judgment would be res judicata and a good basis of an action in England against the individual members of the firm, supposing that they came within the jurisdiction at any subsequent date 3.

6

Now it was practically admitted by Lord Esher M.R., in Western National Bank, &c. v. Perez, as argued by counsel (though this case was under the old rule and the majority of the court followed Russell v. Cambefort), that no foreign court would enforce in its own country a judgment obtained in this country, procured under the rules and orders in the manner above described. That may be so as to the partners not actually served and as to their shares in the partnership property.' Then he adds: 'But, supposing the judgment would be ineffectual abroad, it may well stand as a valid judgment in this country, effectual against any partnership or personal property which may hereafter come into this country.'

The new rules introduced in June, 1891 (Order XLVIII A) not only adopt Lord Esher's views, but, it is submitted, extend the effect of the judgment as stated. Foreigners might perhaps be excused for saying that English courts thus appear in the ambiguous position of declaring that such a judgment is contrary to their own principles of international law, and yet granting it under the Rules of Court, with all the consequences before pointed out; and they might add with some degree of plausibility, that it would appear to be one of those cases where the proceedings of their own courts offend against English views of substantial justice.

II A. English and Colonial Default Judgments compared.

Colonial judgments are treated in England, and in the different colonies among themselves, as also in the different Provinces of the

Dominion of Canada, as between each other, as foreign judgments1. Conversely, English judgments are treated in the Colonies as foreign judgments, but with a distinction to be presently noted 2.

A Colonial default judgment against an Englishman (or British subject) not resident in the Colony is not deemed an effective' judgment when sued on in England. The English courts do not admit that Englishmen (or British subjects?) resident in England can be made subject to the jurisdiction of Colonial courts by virtue of a Colonial statute authorizing service out of the jurisdiction, though in terms identical with the English Order XI. This seems to be so firmly established as the view of English jurisprudence that there do not appear to be any direct authorities in the books 3.

The converse, however, is not true; and English judgments founded on service ex juris against a British subject are generally recognized as valid and effective where sued on in the Colonies. This again seems to be so generally accepted as a matter of course that there appear to be no express authorities *.

Unless we are estopped by the maxim,' Communis error facit jus,' the rationale of these positions seems worth investigating, however great the temerity of the present writer in attacking the subject.

If an English default judgment is to be held valid in the Colonies, and a Colonial default judgment invalid in England, it can only be (1) on account of some superior virtue in the English Order XI over the corresponding Rules of Court in the Colonies; or (2) on account of some superior and extra-territorial powers in the English courts that are absent from Colonial courts; otherwise the generally accepted notion that English default judgments are effective everywhere in the British dominions must be wrong in international law.

1 Houlditch v. Marquis of Donegal, 2 Cl. & F. 470.

2 McFarlane v. Derbishire, 8 U. C. Q. B. 12.

The principle is involved in Sirdar Gurdyal Singh v. Rajah of Faridkote [1894] A. C. 670; Deacon v. Chadwick, 1 O. L. R. 346. That Deacon v. Chadwick (1 0. L. R. 346) is too broad in its terms-the decision, it is submitted, should have been limited to the 'effectiveness' of the judgment in the international sense, the American authorities followed being false analogies in municipal law of a British colony-and that the law laid down by Sirdar Gurdyal Singh v. Rajah of Faridkote was not then considered settled, see Ashbury v. Ellis [1893] A. C. p. 344.

See Moritz v. Canada Wood Specialty Co., 9 O. W. R. 522, 887. Service ex juris was allowed by Jelf J. in an action in the H. C. of J. in England, and interlocutory judgment entered in default of appearance-damages were assessed by the sheriff of the county of London, and final judgment entered for damages so assessed and costs. The defendants were sued on the judgment in Ontario and set up in their defence that the Court had no jurisdiction. The reply set out that defendants were a British corporation, and subject to the jurisdiction of the English court. The report of the case is very imperfect, but the 'effectiveness' of the judgment in Ontario (assuming that it was a proper case for service ex juris under Order XI) does not seem to have been considered either by counsel or the learned judge (Riddell J.) open to question. (It is assumed that the head office of the defendant corporation was not in England, though it is not clear from the report what is meant by the allegation in the reply that the company was a British corporation.)