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September 18, 1905.]
inalienable even by the concurrent will of the parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject matter of decision by the Courts." The Lord Chancellor put the principle in a very different way, He said, "There is no doubt that where a tight of action has accrued, parties cannot by contract say that there shall not be jurisdiction to enforce damages in respect of that right of | sotion. The doctrine depends upon the general policy of the law, that parties cannot enter into contract which gives rise to a right of action for the breach of it, and then withdraw such case from the jurisdiction of the ordinary
··tribunals.”
The question in dispute was whether an agreement that a reference to arbitration| should be a condition precedent to bringing any action on a policy of insurance fell within this principle. Lord Campbell, agreeing with the Lord Chancellor, declared that public policy required that effect should be given to such a contract. He then discussed the principle itself, and said that it probably originated in the contest of the Courts in ancient times for extent of jurisdiction, all of them being opposed to anything that would altogether deprive everyone of them of jurisdiction. There is a saying of Lord
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CHINA OVERLAND TRADE REPORT.
was made within the jurisdiction; and then arose the well known discussion as to what cause of action " meant when applied to con- tracts. In 1875 one set of rules was issued: in 18 3 another; and there may be others in the future. And the rules vary in every Colony, It is therefore impossible to say that it is a recognised principle of law that the Courts of any country have jurisdiction over contracts to be performed within the jurisdiction.
My view that an agreement to submit disputes to the exclusive jurisdiction of a foreign tribunal will be enforced by the English Courts to the ousting of their own jurisdiction in spite of the doctrine of Scott v. Avery, is supported by inference from certain of the cases quoted in the argument before me. In the "Austrian Lloyd Company v. Gresham Assurance Society," | there was a simple agreement to abmit disputes to the Courts of Budapest. It was not exclusive as in the present case. There was no reference to the doctrine of Scott v. Avery, nor even to Thompson v. Charnock, the case cited with doubtful approval by Lord Campbell. It was simply treated as one of interpretation of the words used. Romer L. J. said "The question is this: does the condition merely mean that if one of the parties to the contract is sued by the other in the Court of Budapest, he will not take
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to the judgment of the foreign Court risultin from the submission. Rule 550, for could not apply; itallowsan award to be in the same manner as a judgment of the Court But the judgment of the foreign Court is in no sense an award; and the Legislature certainly never intended to allow execution on a foreign judgment to be obtained in this way. The action on a judgment has obviously no analogy to the procedure indicated in rals 550. It may be that the authorities do not really go farther than that rule 541 applies to much a submission. But even then it cannot apply to an exclusive submission, for that rule is based on the idea that the English Courts have a concurrent jurisdiction with the arbitrator. But the hypothesis in the present case is that the English Courts had no jurisdiction because it has been ousted by agreement. It is therefore difficult to see how a stay of proceedings can possibly be the proper remedy; for that supposon- the possibility of continuing them at some fature date. If, therefore, I am right in my view that the English jurisdiction has been ousted, there is no other way of raising that question effectively except by ples. The Court of Ap peal in Law v. Garrett expressly said that the jurisdiction of the Courts was not ousted by the provisions of the Arbitration Aot; and if
to raise the question would have been by plea as it has been in this case.
foundation of ok, which is the original | any objection to its jurisdiction; or, does it there had been no such legislation the only way
doctrine: it is this, “if a man makes a lo se for life, and by deed grant that if any waste or destruction be done, that it shall be redressed by neighbours, and not by suit or ples; notwithstanding, an action of waste shall lie, f. r the place wasted cannot be recovered without a plea. Where an action is indispensable, you cannot onst the Court of its jurisdiction over the subject, because justict cannot be done without the exercise of that jurisdiction. That is all. and there is no doube about that. This is the foundation of the doctrine that the Counts are not to be outsed of their jurisdiction." He then refers, though hardly with approval, to the cases which admit the posibility of, an action being brought in spite of and agreement to arbitrate, where the arbitration had not been made a condition pre- cedent.
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mean that the parties mutually agree that if any dispute arise under the contract, it shall be determined by the Court in Budapest? Having regard to the nature of the contract and its language, I am of opinion that the latter construction is the correct one."
ご
A similar point arose in Hoerter v. Hanover Caoutchouc Co. (10 Times L.R) The case is much cumbered with questions of procedure; but the following points are to be noticed that in the Court below Pollock B. expressly re- cognised the possibility of an agreement to give a foreign Court exclusive jurisdiction; and in the Court of Appeal, the Master of the Rolls, in dealing with the argument that the agree ment ousted the juris iotion of the English Courts, said that the contract was a German contract, and that this question would bave to be decided by German law.
The argument before me in this case was a little complicated by references to submissions to arbitration, with consequent references to the Arbitration Aot, or the corresponding rules of our Code of Civil Procedure. The special point raised being that by rule 541 power is given to the Court to stay legal proceedings where there is a submission to arbitration: and that there- point in his pleadings and moving to have it fore the defendant's procedure in raising the tried as a point of law was wrong.
Law v. Garrett (L.R. 8 CH. 26) undoubtedly warrants the proposition that an agreement such as the one now under consideration does come within the law as to submissions to arbitration. "Since the passing of the Common Law Procedure Act, s. 11, if parties choose to determine for themselves that they will have a form of their own selection instead of resorting to the ordinary Courts, a prima facie duty is cast upon the Courts to act upon such arrange- ment.' The same rule now applies under the Arbitration Act, and the same principle was acted on in the Austrian Lloyd's case already referred to.
We Lave here, then, the principle; and if Lord Campbell's opinion be followed, there is nothing left of it. But taking, as I am bound to do, the judgments of the other julges, there are two very important terms used by them which cannot be overlooked. The recourse to the jurisdiction of the Courts which is not to be interfered with is that of "the subject": it the Courts referred to are called the "ordinary is this which is the "inalienable right"; and tribunals." Now, if this principle is to be ap- plied to the present case, we must say that the British Courts are the "ordinay tribuna's" for non-resident foreigners to resort to; and also that it is their “inalienable right" to resort to them. It is true that foreigners, whether resident or not, are allowed to sue in the British Courts. When they are resident it is their right, but I doubt whether it can be called their inalienable right. When they are non-resident it is subject to a condition, which is liable to be altered: they have the right, on fulfilling the condition, so long as it is not taken away. I am of opinion that the principle which has been appealed to, if it exists in any other form than that stated by Lord Camptel, does not It is important to bear in mind exactly how apply to foreigners at all; certainly not to non- this question arise. It is proper to raise the ques- resident foreigners. Mr. Sharpe seemed dis tion of res judicata by defence, the question posed to concur in this view, but argued that being tried like that of lis alibi pendens by issue the principle did apply, even between foreigners of law; but as I have already said this defence in the case of a contract to be performed within cannot be maintained in respect of some matters the jurisdiction. The answer to this is that raised in this action. The point is whether the there is no such doctrine as that the Courts exclusive jurisdiction clause can be raised by bave either exclusive or inherent jurisdiction defence when rule 451 has, on the authority of over contracts to be performed within the two cases ci ed, provided a means for dealing jurisdiction. There is a procedure for effecting with legal proceedings commenced in spite of a service of a writ on bsent defendants, and some-submission to arbitration. During the times it applies because a contract, the subject argument I express.d doubts whether the matter of the action, is to be performed within Arbitration Act could be applied at all the jurisdiction. But this cannot be said to be a to an agreement to submit to the decision of a fundamental role of law. The exercise of this foreign tribunal. On further consideration I assumed jurisdiction has for many years been still doubt it, more especially where, as here, the subject to variation depending on the view of agreement is in a foreign contract. As the expediency prevailing at the time, now of Master of the Rolls said in the case cited above, Parliament now of the Rule Committee, the contract being a German contract it must Prior to 1852 it hardly existed at all. be construed according to the law of Germany, By the Common Law Procedure Aof it And again English statutes do not apply to acts was allowed when the cause of action arose done out of England unless expressly so stated. within the jurisdiction or when a contract Further, much of the Act is quite inapplicable
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The defendant is, therefore, entitled to judg. ment on the first issue of law raised by him, the result being that the action in Hongkong must be dismissed with costs.
IN BANKRUPTOY.
CHAN YAM HANG, EXPARTE LO TU KES, Mr. D. Almade e Cartro appeared for the petitioning oreditor. The debt of 8986.63 was due on a promissory note dated 23rd October. The assets amounted to $2,000 and the liabilities to $3,000. He applied for a receiving order.
This was granted.
IN SUMMARY JUBISDICTION,
Monday, 11th September. BEFORE ME. A. G. WISE (PUISNE JUDGE.)
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A PROMISSORY NOTE DISI UTE.
Shi Ya Man brought an sotion against Cheung Sun Tin and the Tai Cheung Yow Ki
dated 16th February, 1905, made by defendants to recover 844.14 being the balance due for principal and interest on a promissory note in favour of plaintiff. The principal was $2,000, and the interest $168.26, a total of $2,168.26. less $1,000 paid on account.
Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist) appeared for plaintiff, and stated that the action was undefended.
His Lordship entered judgment for plaintiff
with costs,
AN UNFULFILLED GUARANTEE. Taoi Chik Nam sued In Kwai Sang for $247,80 for board and lodgings supplied to Chan Lai Yn, the payment of which had been
Mr. O. D. Thomson represented plaintiff, and guaranteed in writing by the defendant. Mr. R. A. Harding appeared for defendant.
Mr. Thomson intimated that Mr. Harding had consented to judgment 84) had been paid and judgment would be for $207,90.
Judgment was entered accordingly,
Tuesday, 12th September.
IN ORIGINAL JURISDICTION.
BEFORE SIE F. T. PIGGOTT (CHIEF JUSTICE)
CHÂU RỒI LAN Ở THU TẤT. BOOT. This was an application for an order to mb- Mr. H. N. Farrera mit certain accounts. appeared for plaintiff, and Mr. E. H. Sharp for defendant.
Mr. Sharp explained that two orders had been made-one on July 1st and the other on November 4th. The former was for an 2000mnt of the receipts and payments of the defendant as compradore to the Hongkong and Steamboat Company, showing the net of defendant as such compradors,
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