PUBLIC RECORD OFFICE
Reference:-
C.O. 885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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(9.) (6.) Priority will be settled by the law of the place where the principal pro- ceedings are carried on.
(c.) Secured creditors will be entitled to have their rights under their securities determined in the ordinary way by the ler loci contractus.
(10.) Yes; but how will the reciprocal arrangements be provided for?
Temple,
May 1887.
No. 14.
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F. T. PIGGOTT.
ENFORCEMENT OF COLONIAL JUDGMENTS.
NOTE on the subject of ASSUMED JURISDICTION, or the effect to be given to JUDGMENTS in ACTIONS Commenced by service of a WRIT out of the JURISDICTION.
I venture to suggest that the difficulty raised by the various rules for serving absent defendants which obtain in the United Kingdom and the different Colonies may be met in one of the following ways.
Even if no satisfactory solution of the difficulty is arrived at now, a Bill limited to judgments in actions commenced against persons present within the jurisdiction at the time of service of the writ (either personal service or substituted service by order of court) would still be a very useful measure; it would meet the hardship of cases similar to the one I referred to in my letter to the Secretary of State, No. 7 in the first printed paper issued on this subject.
I.
The principle on which the Bill as it stands proceeds, is this: Each country has recognised the necessity of making people amenable to the jurisdiction of its courts notwithstanding their absence from the country in certain cases; although there is an unfortunate want of uniformity in the cases prescribed by cach country, yet it does not seem contrary to natural justice to recognise the rules adopted in each country, trusting to the discretion of each Legislature not to make an unwarrantable use of the power which it arrogates to itself. Experience has shown that the majority of colonial laws on this subject follow the English law in principle, though not in every detail, Each Colony in which the Bill was adopted would recognise the necessity for these rules on which it had itself acted, and would create an obligation on all people within its territory to obey writs properly served on them by the courts of other Colonies.
England (and Ireland where the rules now in force are almost identical with the English rules of 1875, but not with those of 1883) being willing to leave this matter to the discretion of the Colonial Legislatures, the Bill might be left to stand as it is. Its operation would, of course, be limited to those Colonies willing to act in a reciprocal manner towards England. The discussions have shown that a considerable number of thrm approve of the principle. The force of example might be left to do the rest.
II.
The Bill might still proceed on the "discretion principle, but a clause might be introduced cutting out of its operation the more advanced forms of assumed juris- diction.
For example
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No judgment shall be enforced under this Act which shall have been given in any action commenced against an absent defendant by means of an arrestment to found jurisdiction (unless the cause of action arose within the jurisdiction); or, in any action commenced against an absent defendant solely because the obligation which it is sought to enforce in the action has been contracted with a person domiciled or usually resident within the jurisdiction.
This would strike out the only two forms of assumed jurisdiction against which any strong protests have been made on the ground of inherent injustice. The first is the Scotch system; the second the French, in force in Quebec and St. Lucia. [I have substituted" person domiciled or usually resident" for "subject."] The discretion would then be exerciseable within fairly narrow limits.
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III.
The Bill might proceed on the strict reciprocity principle by means of a clause such the following:-
No judgment shall be enforced in England (or in a Colonial Act, e.g., in Tasmania] under this Act which shall have been given in any action commenced against an absent defendant, when the cause of such action is one in respect of which an action could not, at the time the writ in such action was issued, have been brought in an English for in a Colonial Act, e.g., in a Tasmanian] Court against an absent defendant.
The operation of such a clause may be illustrated by examples :-
(i) If the English rules with regard to service out of the jurisdiction aro a, b, c, and ; and the Victorian rules are a, y, and z; then a Victorian judgment in an action commenced in accordance with rule x, or rule, or rule z, would not be registrable in England; and rice versû, an English judgment under either rules a, b, c, or d, would not be registrable in Victoria.
(.) If the Canadian rules are a, b, d, and e, and the Tasmanian rules are e, i, x, y, and then a Canadian judgment under rules a or b, would not be registrable in Tasmania, but a Canadian judgment under rules dorz, would be; and vice versâ, a Tasmanian judgment under rules r, y, or z, would not be registrable in Canada, but a Tasmanian judgment under rules d, or a, would be.
I think the ultimate effect of such a clause would be the gradual assimilation of the rules throughout the Empire.
IV.
It would be possible to draw up a Code of cases which are now common to the procedures of the United Kingdom and the Colonies, and to incorporate this Code into the Bill. Apart from the difficulty of the task, the result would be a very limited one, as there are not many rules among the different sets at present in force which are absolutely identical.
But this method would tend seriously to check the development of the system of service out of the jurisdiction; a result much to be deplored, though it would be better. than nothing at all.
V.
It would be possible to draw up a Code of cases ignoring those at present in force, and to incorporate their Code into the Bill. If the Colonies were willing to accept such a Code it would be exceedingly useful, and there would be no difficulty in at once allowing judgments based upon it to be registered. But apart from the time which it would take to settle such a Code agreeable to all parties, it seems doubtful whether some confusion would not arise from having, in each Colony, two sets of rules; the new one for defendants in any part of the Empire; the existing one for defendants in foreign countries.
VI.
It would be possible to draw up a Code of broad principles, settling the limits within which one country would recognise the rules adopted by any other, leaving the actual cases to be settled by each Colony, and to incorporate this Code in the Bill; c.g., the broad principles for jurisdiction over people domiciled, but not actually present in the country; for jurisdiction in action relating to land, to contracts, to torts, and so on. This would be feasible, but the absolute identity of detail which has been contended for by one at least of the delegates to the Conference would not be attained.
Temple, May 1887.
F. T. PIGGOTT.
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