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PUBLIC RECORD OFFICE

Reference :-

TTENCO. 885 /

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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

5 PUBLIC RECORD OFFICE, LONDON

No action on judgment.

Fees. United Kingdom Judgments. Limitation of time.

Definition of

judgment,

execution,

&c.

Application

of Act to inferior courts.

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of the court, to obey the judgment, suspend the execution of the judgment until an application to set it aside has been made to and determined by the court in which the judgment was recovered, or a court of appeal from such court, or until the appeal has been determined, or until the defendant has failed within a reasonable time to make or with due diligence to prosecute the application or appeal.

6. No action on a judgment of the British possession shall be brought in a court in the United Kingdom except by leave of such court; and no costs shall be recovered in such action except such court otherwise direct.

7. Provision must be made for the payment of fees on registration.

8. Provision must be made for rules of court and the procedure for giving certificates of United Kingdom judgments.

9. A judgment not to be registered more than 12 months after it is recovered, except by leave of the court in which it was recovered, which leave should be specified in the certificate of the judginent.

10. A judgment includes any decree or order of a court, exclusive of—

(a.) A decree or order relating to the recovery of land in the United Kingdom;

and

(6.) any decrec or order in proceedings in bankruptcy [qu. other than a decree or order in any action for the recovery of a sum of money due to the bankrupt]; and

(c.) any proceedings for the winding up of a company other than a decree or order for the payment of money [qu. due to the company, or] due from members of the company for the payment of the debts of the company; and

(d.) a decree or order in any matrimonial proceedings other than a decree or order for

the payment of money; and

(e) a degree for grant of probate or letters of administration.

[Qu. Provided that where the judgment as so defined is not for the payment of recovered by way of debt or damages or costs, and the person against whom the judg

money ment is recovered satisfies the court in the United Kingdom that there is a conflict between the laws of the possession in which judgment was recovered and those of the United Kingdom, and that the action resulting in the judgment ought to have been brought in the United Kingdom, and that it is just so to do, the court may stay execution upon the same conditions as above provided (see Article 5).]

Expressions referring to a judgment being obeyed shall be construed to mean that an amount ordered to be paid has been paid, or that the act required or enjoined to be done has been done, or that the act prohibited has not been done.

Expressions referring to the execution of a judgment shall be construed to include any process or means for enforcing the judgment.

11. The Act to apply to superior courts only; but if the Queen in Council is satisfied that, under the circumstances of the inferior courts of any British possession and the regulations for appeal from their judgments, it is expedient to extend the provisions of this Act to judgments of those inferior courts, and that certificates of those judgments will be issued by the superior courts of that possession, the Queen in Council may extend the provisions of the Act to judgments of those inferior courts upon reciprocal arrange. ments being made by the possession.

No. 12.

ENFORCEMENT OF COLONIAL JUDGMENTS.

Letter from Nottinghamshire and Midland Merchants' and Traders' Association.

2, King John's Chambers, Bridlesmith Gate, Nottingham, April 14, 1887.

SIR,

We beg to inform you that the directors of this Association, at a meeting held on the 5th instant, passed the following resolution:-

"That a communication be addressed to the Conference on Colonial Confederation now sitting, calling the attention of the Conference to the desirability of arrangements being made, so that a judgment having been obtained in any court in Great Britain or Ireland, or in India, or in the Colonies, should be enforceable in any portion of the United Kingdom, or in any Colony, or in India, as the case may be, upon the registration

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of a certificate of the judgment in the court of the country to which a debtor may have removed."

We respectfully request that you will submit this resolution to the Conference over which you are presiding, in the hope that some practical steps may be taken to attain the end as described in the resolution.

We have, &c.,

To the Right Hon.

Sir H. T. Holland, G.C.M.G., Her Majesty's Secretary of State

for the Colonies.

(Signed)

No. 13.

HENRY M. BAINES, President. SAML. H. GELL, Vice-President. ROBT. MELLORS, Secretary.

ENFORCEMENT OF COLONIAL JUDGMENTS.

OBSERVATIONS IN REPLY TO PREVIOUS NOTE OF 18TH APRIL.

(1.) Third parties are never bound by a judgment in personam.

Para. I. If they have been made parties to the action by a process resembling the English "Third party notice," the service of this notice out of the jurisdiction, if allowed by the Colonial Law, will become equivalent to the service of a writ out of the jurisdiction, and the ordinary rules will apply.

An order could not be made on the Bank of England, or an English company, by a Colonial Court.

If the judgment is in rem third parties will be bound by the existing law. Para. 2. A Colonial Court would be entitled to make such an order, if properly seized of the suit; or,

The bankruptcy principle would apply; an auxiliary administration order would be made in England, under which English secured creditors would get their rights.

Para. 3. This would be an Admiralty judgment in rem, and the existing law would apply, but the judgment would not have to be executed in England, because the ship would have first been seized, and the sale would take place in the Colony. If the ship had been released, bail would have been given.

Para. 4. No one has a right to apply for a stay of execution unless he is a party to the suit. If he sets up an adverse title the sheriff would interplead; and the rules as to interpleader would naturally be those of the country in which the judgment is to be executed.

(2.) This is an open point now, as it has never been raised; but Scotch limitation is not identical with English, and the Scotch Act does not consider the question.

(3.) The injunction would only have issued against a person within the jurisdiction. The question would only arise in the case of concurrent suits, and there would generally be a condition, that if the Colonial suit were continued, the English suit would be stayed. The defendant would therefore apply to the English Court to stay the English suit. The plaintiff, on the other hand, might wish to abandon the English suit and continue the Colonial suit, which he would be entitled to do.

(4.) Would it not be better to leave all judgments of status to be dealt with by the existing law. At any rate, they would not require registration, as they are operative everywhere until upset by a third party.

It is not quite true to say that the law of the domicile alone governs the questions, or that a judgment of the Court of the domicile alone will be recognised; e.g., as to marriage questions, the English law is entirely based on the matrimonial home; in bankruptcy, on usual residence; in lunacy and guardianship, on actual residence.

(5.) and (6.) These laws are penal in their nature, and judgments proceeding on such laws are never recognised.

(7.) Res judicata, as by a colonial or foreign judgment, is a good plea now; it is practically an absolute bar, and registration is unnecessary to make it more effectual than it is. Lis alibi pen·lens is not a good plea in bar or otherwise; where there are concurrent suits, if they are identical, as to cause of action and parties, an application to stay one of them will now be entertained. (8.) The bankruptcy principle will apply.

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