PUBLIC RECORD OFFICE
IC.O.
Reference :-
8855 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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party shall have the same right to apply for a stay of execution by the court as he would have to apply if the action had been originally brought in the court.
(2.) A question may also arise as respects the Statute of Limitations.
A contract may be such that it can be sued on either in a colony or in the United Kingdom. Assuming the action is barred after three years in the colony and after six years in England, an action, though barred in the colony, could be brought in England and the judgment executed in the colony.
(3.) The English Court of Chancery has enjoined persons against instituting legal proceedings for a claim in a court out of England, even where such claims relate to land. Is such an injunction to be executed under the Bill in the place in which such proceedings would otherwise be instituted?
(4.) Conflicts of law may arise in various cases.
Thus a will under an English power of appointment may be valid by English law, although invalid according to the law of the domicile of the testator.
In such a case a conflict may arise between the court of the place of domicile and the English court.
Conflicts may also arise on various questions connected with status, e.g., marriage and legitimacy, the custody of children and of lunatics, the appointment of guardians or trustces, the right of property connected with status and the rules of descent.
For example, is a person appointed by a court in the United Kingdom to be guardian of an infant's estate also to be guardian of his land in Queensland ?
On this question of status the law is unsettled, and although the judgment as to status of a court having jurisdiction is binding on other courts, this rule is limited by another rule that if the deciding court is not the court of the domicile of the person whose status is so determined, it decides without jurisdiction and its judgment does not bind.
Under the heads of Bill a defendant can plead that he was not amenable to the jurisdiction, but not that the court acted without jurisdiction; a person may have been amenable to the jurisdiction, and yet the court may not have jurisdiction to determine his status, because it is not the court of his domicile.
(5.) Are orders attaching persons for contempt of court to be registered and executed by other courts ?
(6.) If arrest on mesne process or similar proceedings, which have been practically abolished in the United Kingdom, continue to exist in a colony are such proceedings to be given effect to in the United Kingdom by registration there ?
(7.) The point as to res judicata has been raised in the previously printed note. That note should also have referred to a lis pendens, as it has been held that a foreign judg- ment is no bar to a pending suit in an English court. It seems hardly right that this should be so as regards courts in the Queen's dominions.
(8.) In the winding up of a partnership, and in the administration of the estate of a deceased person, questions arise very similar to those which arise in the case of bank- ruptcy. For instance, is an order for winding up a partnership in England to have effect as against the assets and creditors in Melbourne without the court in Melbourne being able to make any conditions in favour of Melbourne creditors?
(9.) As respects bankruptcy and the winding up of companies, the following points require consideration :—
(a.) the question of the Statute of Limitations, which has been raised above; (b.) the question of the priority of creditors. This is considered to follow the local law; but if A. is made bankrupt in Queensland and the bankruptcy is registered in England, is the priority of English creditors to be determined according to the law of Queensland or according to the law of England? It is suggested that this is one of the points on which the court might make conditions.
(c.) In some cases, such as insurance, the assets in a colony may be subject to a special lien for the insured in that colony. Should not that special lien be enforced by the colonial court as against creditors in a bankruptcy or winding up elsewhere? (d.) A similar question might arise as to liabilities upon a note issuc.
(10.) It is assumed that courts established under the Foreign Jurisdiction Act, as at Shanghai, or Constantinople, will be treated as respects their judgments as if they were colonial courts.
18th April 1887.
H. JENKYNS.
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No. 11.
ENFORCEMENT OF COLONIAL JUDGMENTS.
NOTE BY PARLIAMENTARY COUNSEL.
The revised heads of the Bill contain two suggestions which were not agreed upon at the Conference.
The first is in Article 5, where it is suggested that the defendant to a judgment may show that the matter is res judicata in the United Kingdom. It is conceivable that an action for (say) a breach of contract might be brought simultaneously in a colony and in the United Kingdom, and be decided differently.
The second is in Article 10, where it is suggested that a defendant may obtain a stay of execution upon showing that there is a conflict of laws, and that he ought to have been sued in the United Kingdom.
*
This point was partly raised in the Conference on the question of omitting the words 'or otherwise after (5), in Article 5.
HEADS OF BILL.-(SECOND DRAFT.)
It is assumed that each colony can legislate for the registration, in its own courts,
of judgments recovered in the United Kingdom, and that Imperial legislation is only required for the United Kingdom.
1. The Act to be applied by Order in Council to judgments recovered in any British Application possession, which appears to the Queen in Council to have made similar provision for of Act. giving effect in that possession to judgments recovered in the United Kingdom.
2. When the Act is applied as respects any British possession, any judgment recovered Registration in that possession may, on production of such certificate of the judgment as is herein- of judgment after mentioned, be registered in a superior court in the United Kingdom, and be in United enforced as if it were a judgment of that court recovered at the date of the recovery of
Kingdom. the judgment in the British possession, and the court shall have the same power over the judgment as it has over its own judgments.
3. The certificate of the judgment is to be given in accordance with the provisions of Contents of
the law of the British possession (which will be set out in the Order in Council), but certificate.
must state-
(.) That the judgment is a subsisting judgment which can at the date of the certificate
be executed in the British possession, and
(b) That there is such substantial reason as is specified in the certificate for the
execution of the judgment in the United Kingdom, and
(c) Either that the process commencing the action which resulted in the judgment was served (personally or in such other manner as the law of the possession requires) on the defendant (whether in the British possession, or in accordance with the law of the British possession for service on the defendant out of the possession), or that the defendant has submitted to the jurisdiction of the court in which the judgment is recovered.
4. Execution not to issue until the court is satisfied by affidavit that the judgment has Issue of not been wholly obeyed.
execution.
5. If the person against whom the judgment is recovered satisfies the superior court Stay of in the United Kingdom in which the judgment is registered that the judgment has been execution. wholly or partly obeyed, the court shall stay execution of the judgment in whole or in
part.
If he satisfies the court either-
(a) that the process commencing the action which resulted in the judgment was not personally served upon him within the jurisdiction of the court in which the judg- ment was recovered, and that he was not amenable to the jurisdiction of that court according to the law administered by that court; or
(6) that he has a right and intention to appeal against the judgment; or
qu. (c) that the matter in respect of which the judgment was recovered had been
already adjudicated upon in the United Kingdom,]
and that for one of the above reasons it is just so to do, the court may, upon the defendant giving security, either by a deposit of money or otherwise to the satisfaction
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