[QUEEN'S BENCH DIVISION]

GODARD AND ANOTHER v. GRAY AND ANOTHER.

Foreign Judgment, Action on - How far Foreign Judgment examinable in English Court - Mistake of English Law apparent on Proceedings - Laches of Party in Foreign Court.

It is no bar to an action, on a judgment in personam of a foreign court having jurisdiction over the parties and cause, that the foreign tribunal has put a construction erroneous, according to English law, on an English contract.

Declaration on a judgment of a French court having jurisdiction in the matter. Plea setting out the judgment, from which it appeared that the suit was for the breach by the shipowner of a charterparty made in England, in which was a clause: "Penalty for the non-performance of this agreement, estimated amount of freight;" and that the court had treated this clause (contrary to the English law), as fixing the amount of damages recoverable, and had given judgment accordingly for the amount of freight. The proceedings shewed that both parties had appeared and been heard before the judgment was pronounced, but no objection was taken by the defendant to the mode of assessing the damages:-

Held, by Blackburn and Mellor, JJ., that the defendant could not set up, as an excuse for not paying money awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to the English law, which was really a question of fact; and that it made no difference that the mistake appeared on the face of the proceedings.

By Hannen, J., that the French court could only be informed of foreign law by evidence; and the defendant, having neglected to bring the English law to the knowledge of the French court, could not impeach the judgment given against him on the ground of error as to that law.

DECLARATION that, on the 17th of April, 1867, in a suit between the plaintiffs and defendants in a French court, viz., the Civil Tribunal of First Instance, at Savenay, having jurisdiction in that behalf, the plaintiffs obtained judgment against the defendants for 17,812 francs, being 712l. 10s. in English money; and afterwards on appeal by the defendants, according to the law of France, to the Imperial Court of Rennes, having jurisdiction in that behalf, the Court reduced the judgment, and gave judgment for the plaintiffs for 8,921 francs, being 356l. 17s. 6d. in English money, which judgment is still in force and unsatisfied.

Pleas, 2: That the following is the record and tenor of the judgment and proceedings in the Court of Civil Tribunal of First Instance, and the proceedings in that court, and the judgment of the Imperial Court. [The plea set out the judgments, &c., in the

original French, and then gave a translation at length; the following is an abstract of the judgment.] The Civil Tribunal of First Instance sitting at Savenay, &c., delivered the following judgment at its public sitting on the 17th of April, 1867:- Between Messrs. Charles Godard and Benjamin Coquard [the now plaintiffs], merchants, residing at St. Nazaire, plaintiffs, and Messrs. Gray Brothers [the now defendants], merchants, residing at Sunderland, England, defendants. Facts: The defendants, on the 12th and 16th of September, 1865, chartered to the plaintiffs the steamer Como for the conveyance of coal from Cardiff to St. Nazaire. After the first voyage the owners were to inform the freighters if they were willing to continue the charter for a year; and if they were not willing, the freighters reserved to themselves the right to require that the vessel should make two more voyages on the same conditions. This stipulation was for the purpose of securing supplies of coal to the plaintiffs' manufactory of patent fuel [briquettes de charbon]. In spite of the most urgent demands of the plaintiffs, the defendants did not place the Como at the disposal of the plaintiffs until the 12th of December, 1865. On the 15th of December she entered the port of St. Nazaire, and on the 20th she was discharged, and her freight settled. The owners having given notice that they did not intend to charter their vessel for a year, the plaintiffs required that she should make two more voyages on their account from Cardiff to St. Nazaire as agreed. Notwithstanding this express declaration, the Como, by order of the defendants, left on the 30th of December with a cargo of flour for Liverpool, and was thence chartered to Portugal. This non-performance of the agreement, and the delay in the first voyage, caused so great a loss and disturbance in the plaintiffs' business that they were driven to demand reparation. The defendants not having satisfied their just demands, the plaintiffs caused the defendants to be served with a summons on the 25th of January, 1866, to appear before the Civil Court of Savenay, judging in a commercial matter, to hear sentence by an executory judgment, by proceedings without security, and by arrest of the body [pour s'entendre condamner par jugement exécutoire par provisions sans caution et par corps], to pay to the plaintiffs by way of damages 50,000 francs for the injury caused to them by the non-performance of the agreements in the charter of

the Como, and for the delay from the 12th of September to the 12th of December, 1865, in the first voyage.

The defendants not appearing, judgment, on the 22nd of February, 1866, was given against them by default for the 50,000 francs. The defendants applied to have the judgment set aside, and took exception to the competency of the Court. The Court overruled the exception; and the case was heard on the merits on the 17th of April, 1867, both parties being present by their attorneys and counsel. The Court, after hearing both sides, pronounced judgment, finding that the delay on the first voyage was not, under the circumstances proved, owing to the defendants' default, and that there were grounds for declaring that the plaintiffs' action was not maintainable on this head [il y a lieu de les déclarer non recevables de ce chef dans leur action]. On the second point, the Court found that the defendants had wilfully refused to allow the Como to proceed on the two other voyages; and the judgment proceeded: "Considérant qu'il y a done eu de leur part une violation évidente du contrat qui les rend passibles de dommages intérêts: Considérant, quant au chiffre de ces dommages intérêts, qu'en présence de la clause pénale contenue à la charte-partie, le tribunal n'a point à rechercher le préjudice réel éprouvé par Godard et Coquard, et à examiner si la demande de 50,000 francs, au quel ils l'evaluent, est justifiée: Considérant en effet que la charte-partie contient une clause ainsi conçue, 'l'amende pour inexécution à ce présent contrat est estimée au montant total du fret'(1): Considérant que Godard et Coquard, ayant été privé deux voyages, c'est done une somme égale au fret de ces deux voyages à laquelle ils ont droit; qu'en prenant pour base la somme payee pour le fret du voyage qui a été effectué et qui s'élève, ainsi qu'il en a été justifié, au chiffre de 8,921, c'est done une indemnité total de 17,812(2) que les frères Gray doivent être condamnées à leur payer ..."

"Par ces motifs statuant en matière commerciale et en premier ressort, Le Tribunal reçoit les frères Gray opposants en la forme au jugement par défaut, du 22 Fèvrier, 1866; au fond rèduit à 17,812

(1) It will be observed that these are not the exact words of the clause: see post, p. 143.

(2) This is the sum given in words, but it ought to have been 17,842.

francs la condemnation en dommages intérêts prononcée contre eux par le dit jugement," &c.

The judgment of the Imperial Court of Rennes, described as a final decree [arrêt définitif] of the 25th of August, 1867, recited, that the defendants appealed against the judgment of the civil tribunal of Savenay of the 17th of April, 1866, and prayed the Court to discharge the appellants from all the sentences pronounced against them. Further [subsidiarement], to reduce the damages to the amount of a single freight, that is to say, to 8921 francs, &c. The respondents [the plaintiffs], who also incidentally appealed, prayed the Court to declare that there were grounds for awarding them damages for the three months delay in the first voyage, and to award them damages accordingly; and to confirm the judgment appealed against, &c. The judgment then recited the facts and the judgment of the Court below, and that the following were the points of law to be decided: 1. Shall it be decided, as a matter of principle, that no damages can be claimed from the appellants on account of the chartering of the Como, and that they should be released from all the condemnations pronounced against them? 2. Shall it be declared, in any case, that the damages to which the respondents would be entitled cannot, by the terms of the penal clause, exceed the amount of a single freight? 3. Shall it be declared, in the cross-appeal, that the respondents are entitled to the damages claimed for the delay on the first voyage? &c. The judgment then proceeded, after hearing the allegations and arguments of the advocates of either party, and having duly deliberated according to law:-

"Considérant que la charte-partie, contractée entre Gray et Godard et Coquard, fixait l'indemnité à laquelle chacune des parties aurait droit pour inexécution de la convention par la faute de l'autre: Que cette indemnité, qualifiée d'amende dans le texte anglais, était de 8921 francs: Que moyennant paiement de cette indemnité chacune des parties avait le droit de rompre la convention; mais que l'inexécution du contrat et par suite sa rupture étant un fait unique, il ne pouvait y avoir lieu à autant d'indemnités que de manquements partiels dans le cours de l'affrêtement, ou à une indemnité pour la rupture et à dommages intérêts pour les griefs particuliers que chacune des parties pourrait imputer à

l'autre: Qu'en un mot, quelsque fussent les griefs d'une partie (à moins de cas sortant des provisions sous l'empire desquelles on avait traité), elle n'avait droit à rien, tant qu'elle ne justifiait pas que l'inexécution des clauses du contrat par la partie adverse était de nature à motiver la rupture et l'allocation à son profit des dommages intérêts réglés par la convention: Que du reste, l'indemnité de 8921 francs a été suffisante pour réparer le préjudice résultant de la non-livraison des deux cargaisons de charbons que le Comoeut été tenu de transporter de Cardiff à Saint Nazaire: Adoptant au surplus les motifs des premiers juges sur le retard du navire à prendre la première cargaison: La Cour, corrigeantet reformant, dit que les dommages intérêts à payer par Gray frères à Godard et Coquard seront réduits à 8921 francs; et condamne Gray frères à leur payer cette somme avec les intérêts de droit à partir de la demande. Déclare mal fondé l'appel incident de Godard et Coquard, les en déboute ainsi que de leur offre de preuve," &c.

The plea then set out the charterparty, which was dated Sunderland the 12th of September, London the 16th of September, 1865, and was between the defendants, owners of the steamship Como, and S. Bregeon [agent of the plaintiffs], that the ship being tight, &c., shall with all convenient speed proceed to Cardiff, and take a full cargo of coals, which the merchants undertake to provide, and proceed to St. Nazaire. ... "Penalty for non-performance of this agreement estimated amount of freight. This charter to be in force for one voyage, with option to owners of twelve months, commencing on the day she is delivered in Cardiff. ... The owners are to declare, on the completion of the first voyage whether they will retain this charter for the twelve months; and in case they decline to do so, the charterer reserves to himself the right of retaining the boat for two more voyages on same conditions."

The plea, after setting out the charterparty, proceeded: "And the defendants further say, that the charterparty was made in England, and that defendants and Bregeon, in the charter mentioned, then were and still are British subjects, and domiciled and resident in England; and that the said judgments are erroneous, and ought to have been pronounced in favour of defendants, and that the same ought to have been pronounced and

given according to the law of England and not of France; and that by the law of England, plaintiffs had no right to maintain any action or suit against defendants for any breach of the charterparty; and that there does not appear to have been, and was not, any breach of the charterparty entitling plaintiffs to have judgments pronounced in their favour in the said suit or on the said appeal.

Demurrer and joinder.(1)

May 6. J. Brown, Q.C., (with him, Murphy) for the plaintiffs. The plea raises no defence. It appears from the French judgments that the plaintiffs sued the defendants for a breach of a charterparty by delay in sending the vessel on her first voyage under the charterparty, and also by not complying with the plaintiffs' demand, that she should go two more voyages on their account. In the first instance, judgment was given against the defendants by default for 50,000 francs; but, on the hearing, the Court of First Instance decided that the delay in the first voyage was not by the defendants' default, and as to the other breach, the Court gave judgment for the plaintiffs, and relying on the clause, "penalty for the breach of this agreement estimated amount of freight," awarded the estimated amount of freight on two voyages. On appeal to the Imperial Court, the defendants prayed for a reversal of the judgment, or that the damages might be reduced to the amount of freight of one voyage. And this latter was the view that the Court adopted; The defendants are therefore clearly estopped from now setting up that this judgment was erroneous. It was the view of the law which they themselves propounded to the French court.

Matter which is ground for writ of error cannot be pleaded in bar to an action on a judgment: Dick v. Tolhausen; (2) Horsy v. Daniel; (3) Snook v. Mattock; (4) Bradley v. Eyre; (5) 1 Roll. Abr. 604, l. 20; [cited in Vin. Abr. Debt (X.) pl. 3, and Com. Dig. Pleader (2 W. 39)]; Com. Dig. Error, D. Matter which might have been

(1) There were also two replications and demurrers thereto; but the arguments and judgments proceeded on the plea only.

(2) 4 H. & N. 695.

(3) 2 Lev. 161.

(4) 5 A. & E. 239.

(5) 11 M. & W. 432, 451.

pleaded by way of defence in the foreign court cannot be set up as a defence to an action on a foreign judgment: Vanquelin v. Bouard. (1) The objection here set up amounts to saying the judgment is erroneous on the merits, and that is not an admissible defence: De Cosse Brissac v. Rathbone (2); Bank of Australasia v. Nias (3); Scott v. Pilkington (4); Notes to Doe v. Oliver. (5) Had there been a perverse disregard of the English law apparent on the proceedings, possibly there would have been a defence: see Novelli v. Rossi (6); Simpson v. Fogo (7); Castrique v. Imrie  [2v(8); and the law is so laid down in the Notes to Doe v. Oliver. (9)

[BLACKBURN, J. In the original notes by Mr. Smith [see 2nd ed. p. 448], there is no such qualification.]

There is no authority for the proposition that a judgment, appearing on the face of the proceedings to be founded on a mistake of English law, can be questioned. Foreign law is a fact, and must be proved like any other fact: Story's Conflict of Laws [§§ 637-8, note, citing Trasher v. Everhart (10), and Lord Mansfield in Mostyn v. Fabrigas (11): "The way of knowing foreign laws is by admitting them to be proved as facts."] The defendants therefore having omitted to bring evidence of the English law before the French court, cannot now set up as a defence what they have omitted to avail themselves of in the French court.

Shield (Manisty, Q.C., with him), for the defendants. The question is, is the Court constrained by considerations of comity to give effect to a foreign judgment without any examination into the grounds of it? As to this, Story in his Conflict of Laws, § 598, says: "As to judgments in personam. And here a distinction is commonly taken between suits brought by a party to enforce a foreign judgment, and suits brought against a party who

(1) 15 C. B. (N.S.) 341, 368; 33 L. J. (C.P.) 78, 84.

(2) 6 H. & N. 301; 30 L. J. (Ex.) 238.

(3) 16 Q. B. 717, 737; 20 L. J. (Q.B.) 284, 292.

(4) 2 B. & S. 11; 31 L. J. (Q.B.) 81.

(5) 2 Sm. L. C. 6th ed. p. 732.

(6) 2 B. & Ad. 757.

(7) 1 John. & H. 18; 29 L. J. (Ch.) 657; 1 Hem. & M. 195; 32 L. J. (Ch.) 249.

(8) 8 C. B. (N.S.) 405, 419; 30 L. J. (C.P.) 177, 184.

(9) 2 Sm. L. C. 6th ed. at p. 726.

(10) 3 Gill & John. (U. S. Rep.) 234, 242.

(11) Cowp. at p. 174.

sets up a foreign judgment in bar of the suit by way of defence. In the former case it is often urged, that no sovereign is bound jure gentium to execute any foreign judgment within his dominions; and, therefore, if execution of it is sought in his dominions, he is at liberty to examine into the merits of the judgment, and to refuse to give effect to it, if upon such examination it should appear unjust and unfounded. He acts in executing it upon the principles of comity; and has therefore a right to prescribe the terms and limits of that comity." Story then points out that it is otherwise when a foreign judgment of a competent tribunal is set up as a defence to an action, for it is then res judicata; and he proceeds to shew that this distinction has been frequently recognized; and he cites (§ 599) from the judgment of Eyre, C.J., in Phillips v. Hunter (1): "If we had the means we could not examine a judgment of a Court in a foreign state brought before us in this manner." [That is, by the defendant as a bar]. "It is in one way only that the sentence of a judgment of the court of a foreign state is examinable in our courts, and that is when the party, who claims the benefit of it, applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, nor as obligatory to the extent to which by our law sentences and judgments are obligatory; not as conclusive, but as matter in pais; as a consideration primâ facie sufficient to raise a promise. We examine it as we do all other considerations or promises; and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by law." In Reimers v. Druce (2), the Master of the Rolls held that a foreign judgment was impeachable for error apparent on the face of it; and the reasons attached to a foreign judgment are part of the record for this purpose.

J. Brown, Q.C., in reply. No answer has been attempted to the proposition that the defendants are estopped by their conduct in the French court from now saying there has been a mistake in the English law.

(1) 2 H. Bl. at p. 410.

(2) 23 Beav. 145, 154; 26 L. J. (Ch.) 196, 200.

Dec. 10. The following judgments were delivered:-

The judgment of Blackburn and Mellor, JJ., was delivered by

BLACKBURN, J. In this case the Plaintiffs declare on a judgment of a French tribunal, averred to have jurisdiction in that behalf.

The question arises on a demurrer to the second plea, which sets out the whole proceedings in the French court. By these it appears that the plaintiffs, who are Frenchmen, sued the defendants, who are Englishmen, on a charterparty made at Sunderland, which charterparty contained the following clause, "Penalty for non-performance of this agreement, estimated amount of freight." The French court below, treating this clause as fixing the amount of liquidated damages, gave judgment against the defendants for the amount of freight on two voyages. On appeal, the superior court reduced the amount to the estimated freight of one voyage, giving as their reason that the charterparty itself "fixait l'indemnité à laquelle chacune des parties aurait droit pour inexécution de la convention par la faute de l'autre; que moyennant paiement de cette indemnité chacune des parties avait le droit de rompre la convention," and the tribunal proceeds to observe that the amount thus decreed was after all more than sufficient to cover all the plaintiffs' loss.

All parties in France seem to have taken it for granted that the words in the charterparty were to be understood in their natural sense; but the English law is accurately expressed in Abbott on Shipping, part 3, c. 1, s. 6, 5th ed., p. 170, and had that passage been brought to the notice of the French tribunal, it would have known that in an English charterparty, as is there stated, "Such a clause is not the absolute limit of damages on either side; the party may, if he thinks fit, ground his action upon the other clauses or covenants, and may, in such action, recover damages beyond the amount of the penalty, if in justice they shall be found to exceed it. On the other hand, if the party sue on such a penal clause, he cannot, in effect, recover more than the damage actually sustained." But it was not brought to the notice of the French tribunal that according to the interpretation put by the English law on such a contract, a penal clause of this sort was in fact idle and inoperative. If it had been, they would, probably, have interpreted the English

contract made in England according to the English construction. No blame can be imputed to foreign lawyers for not conjecturing that the clause was merely a brutum fulmen. The fault, if any, was in the defendants, for not properly instructing their French counsel on this point.

Still the fact remains that we can see on the face of the proceedings that the foreign tribunal has made a mistake on the construction of an English contract, which is a question of English law; and that, in consequence of that mistake, judgment has been given for an amount probably greater than, or, at all events, different from that for which it would have been given if the tribunal had been correctly informed what construction the English contract bore according to English law.

The question raised by the plea is, whether this is a bar to the action brought in England to enforce that judgment, and we are all of opinion that it is not, and that the plaintiff is entitled to judgment.

The following are the reasons of my Brother Mellor and myself. My Brother Hannen, though agreeing in the result, qualifies his assent to these reasons to some extent, which he will state for himself.

It is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgment of a foreign tribunal. Several of the continental nations (including France) do not enforce the judgments of other countries, unless where there are reciprocal treaties to that effect. But in England and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty, nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones (1): "Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced." And taking this as the principle, it seems to follow that anything which negatives the existence of that legal obligation, or excuses the defendant from the performance

(1) 13 M. & W. at p. 633.

of it, must form a good defence to the action. It must be open, therefore, to the defendant to shew that the Court which pronounced the judgment had not jurisdiction to pronounce it, either because they exceeded the jurisdiction given to them by the foreign law, or because he, the defendant, was not subject to that jurisdiction; and so far the foreign judgment must be examinable. Probably the defendant may shew that the judgment was obtained by the fraud of the plaintiff, for that would shew that the defendant was excused from the performance of an obligation thus obtained; and it may be that where the foreign Court has knowingly and perversely disregarded the rights given to an English subject by English law, that forms a valid excuse for disregarding the obligation thus imposed on him; but we prefer to imitate the caution of the present Lord Chancellor, in Castrique v. Imrie (1), and to leave those questions to be decided when they arise, only observing that in the present case, as in that, "the whole of the facts appear to have been inquired into by the French Courts, judicially, honestly, and with the intention to arrive at the right conclusion, and having heard the facts as stated before them they came to a conclusion which justified them in France in deciding as they did decide."

There are a great many dicta and opinions of very eminent lawyers, tending to establish that the defendant in an action on a foreign judgment is at liberty to shew that the judgment was founded on a mistake, and that the judgment is so far examinable. In Houlditch v. Donegall (2), Lord Brougham goes so far as to say: The language of the opinions on one side has been so strong, that we are not warranted in calling it merely the inclination of our lawyers; it is their decision that in this country a foreign judgment is only primâ facie, not conclusive evidence of a debt." But there certainly is no case decided on such a principle; and the opinions on the other side of the question are at least as strong as those to which Lord Brougham refers.

Indeed it is difficult to understand how the common course of pleading is consistent with any notion that the judgment was only evidence. If that were so, every count on a foreign judgment must be demurrable on that ground. The mode of pleading shews

(1) Law Rep. 4 H. L. at p. 445.

(2) 2 Cl. & F. at p. 477.

that the judgment was considered, not as merely primâ facie evidence of that cause of action for which the judgment was given, but as in itself giving rise, at least primâ facie, to a legal obligation to obey that judgment and pay the sum adjudged. This may seem a technical mode of dealing with the question; but in truth it goes to the root of the matter. For if the judgment were merely considered as evidence of the original cause of action, it must be open to meet it by any counter evidence negativing the existence of that original cause of action.

If, on the other hand, there is a primâ facie obligation to obey the judgment of a tribunal having jurisdiction over the party and the cause, and to pay the sum decreed, the question would be, whether it was open to the unsuccessful party to try the cause over again in a court, not sitting as a court of appeal from that which gave the judgment. It is quite clear this could not be done where the action is brought on the judgment of an English tribunal; and, on principle, it seems the same rule should apply, where it is brought on that of a foreign tribunal. But we think it unnecessary to discuss this point, as the decisions of the Court of Queen's Bench in Bank of Australasia v. Nias (1), of the Court of Common Pleas in Bank of Australasia v. Harding (2), and of the Court of Exchequer in De Cosse Brissac v. Rathbone (3), seem to us to leave it no longer open to contend, unless in a court of error, that a foreign judgment can be impeached on the ground that it was erroneous on the merits; or to set up as a defence to an action on it, that the tribunal mistook either the facts or the law.

But there still remains a question which has never, so far as we know, been expressly decided in any court.

It is broadly laid down, by the very learned author of Smith's Leading Cases, in the original note to Doe v. Oliver (4), that "it is clear that if the judgment appear on the face of the proceedings to be founded on a mistaken notion of the English law," it would not be conclusive. For this he cites Novelli v. Rossi (5), which does not decide that point, and no other authority; but the great

(1) 16 Q. B. 717; 20 L. J. (C.P.) 284.

(2) 9 C. B. 661; 19 L. J. (C.P.) 345.

(3) 6 H. & N. 301; 30 L. J. (Ex.) 238.

(4) 2 Sm. L. C. 2nd ed. at p. 448.

(5) 2 B. & Ad. 757.

learning and general accuracy of the writer makes his unsupported opinion an authority of weight; and accordingly it has been treated with respect. In Scott v. Pilkington (1), the Court expressly declined to give any opinion on the point not then raised before them. But we cannot find that it has been acted upon; and it is worthy of note that the present very learned editors of Smith's Leading Cases have very materially qualified his position, and state it thus, if the judgment "be founded on an incorrect view of the English law, knowingly or perversely acted on;"(2) the doctrine thus qualified does not apply to the present case, and there is, therefore, no need to inquire how far it is accurate.

But the doctrine as laid down by Mr. Smith does apply here; and we must express an opinion on it, and we think it cannot be supported, and that the defendant can no more set up as an excuse, relieving him from the duty of paying the amount awarded by the judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to English law, than he could set up as an excuse that there had been a mistake as to the law of some third country incidentally involved, or as to any other question of fact.

It can make no difference that the mistake appears on the face of the proceedings. That, no doubt, greatly facilitates the proof of the mistake; but if the principle be to inquire whether the defendant is relieved from a primâ facie duty to obey the judgment, he must be equally relieved, whether the mistake appears on the face of the proceedings or is to be proved by extraneous evidence. Nor can there be any difference between a mistake made by the foreign tribunal as to English law, and any other mistake. No doubt the English Court can, without arrogance, say that where there is a difference of opinion as to English law, the opinion of the English tribunal is probably right; but how would it be if the question had arisen as to the law of some of the numerous portions of the British dominions where the law is not that of England? The French tribunal, if incidentally inquiring into the law of Mauritius, where French law prevails, would be

(1) 2 B. & S. at p. 42; 31 L. J. (Q.B.) at p. 89.

(2) See 2 Sm. L. C. 5th & 6th edd. by Maude and Chitty, at pp. 683 & 726 respectively.

more likely to be right than the English Court; if inquiring into the law of Scotland it would seem that there was about an equal chance as to which took the right view. If it was sought to enforce the foreign judgment in Scotland, the chances as to which Court was right would be altered. Yet it surely cannot be said that a judgment shewn to have proceeded on a mistaken view of Scotch law could be enforced in England and not in Scotland, and that one proceeding on a mistaken view of English law could be enforced in Scotland but not in England.

If, indeed, foreign judgments were enforced by our Courts out of politeness and courtesy to the tribunals of other countries, one could understand its being said that though our Courts would not be so rude as to inquire whether the foreign Court had made a mistake, or to allow the defendant to assert that it had, yet that if the foreign Court itself admitted its blunder they would not then act: but it is quite contrary to every analogy to suppose that an English Court of law exercises any discretion of this sort. We enforce a legal obligation, and we admit any defence which shews that there is no legal obligation or a legal excuse for not fulfilling it; but in no case that we know of is it ever said that a defence shall be admitted if it is easily proved, and rejected if it would give the Court much trouble to investigate it. Yet on what other principle can we admit as a defence that there is a mistake of English law apparent on the face of the proceedings, and reject a defence that there is a mistake of Spanish or even Scotch law apparent in the proceedings, or that there was a mistake of English law not apparent on the proceedings, but which the defendant avers that he can shew did exist.

The whole law was much considered and discussed in Castrique v. Imrie (1), where the French tribunal had made a mistake as to the English law, and under that mistake had decreed the sale of the defendant's ship. The decision of the House of Lords was, that the defendant's title derived under that sale was good, notwithstanding that mistake: Lord Colonsay pithily saying, "It appears to me that we cannot enter into an inquiry as to whether the French Courts proceeded correctly, either as to their own course of procedure or their own law, nor whether under the circumstances they

(1) Law Rep. 4 H. L. 414, 448.

took the proper means of satisfying themselves with respect to the view they took of the English law. Nor can we inquire whether they were right in their views of the English law. The question is, whether under the circumstances of the case, dealing with it fairly, the original tribunal did proceed against the ship, and did order the sale of the ship."

The question in Castrique v. Imrie (1) was as to the effect on the property of a judgment ordering a ship, locally situate in France, to be sold, and therefore was not the same as the question in this case as to what effect is to be given to a judgment against the person. But at least the decision in Castrique v. Imrie (1) establishes this, that a mistake as to English law on the part of a foreign tribunal does not operate in all cases so as to prevent the courts of this country from giving effect to the judgment.

In the course of the arguments in that case the point now under consideration was raised. In the opinion I delivered at the bar of the House(2), the cases which are commonly referred to as authorities for the opinion expressed by Mr. Smith in his note to Doe v. Oliver (3), are referred to. We have nothing to add to what is there said. And in the case of Novelli v. Rossi (4), it will be found on perusing the judgment of Lord Tenterden that it does not contain one word in support of the doctrine for which it is cited. We think that case was rightly decided for the reasons given in Castrique v. Imrie (5); but at all events it does not bear out Mr. Smith's position.

For these reasons we have come to the conclusion that judgment should be given for the plaintiffs.

HANNEN, J. I agree that our judgment should be for the plaintiffs in this case, but as I do not entirely concur in the reasoning by which my Brothers Blackburn and Mellor have arrived at that conclusion, I desire shortly to explain the ground on which my judgment is founded.

I think that the authorities oblige us (not sitting in a court of error) to hold that the defendants, by appearing in the suit in

(1) Law Rep. 4 H. L. 414.

(2) Law Rep. 4 H. L. at pp. 434-435.

(3) 2 Sm. L. C. 2nd ed. at p. 448.

(4) 2 B. & Ad. 757.

(5) Law Rep. 4 H. L. at p. 435.

France, submitted to the jurisdiction of the French tribunal, and thereby created a primâ facie duty on their part to obey its decision; but I do not think that any authority binds us, nor am I prepared to decide that a defendant, not guilty of any laches, against whom a foreign judgment in personam has been given, is precluded from impeaching it on the ground that it appears on the face of the proceedings to be based on an incorrect view of the English law, even though there may be no evidence that the foreign Court, knowingly or perversely, refused to recognize that law.

I do not, however, enter at length upon the consideration of this question, because I have arrived at the conclusion that the defendants in this case were guilty of laches. It does not appear upon the face of the proceedings, nor at all, that the French Court was informed of what the English law was. It was the duty of the defendants to bring to the knowledge of the French Court the provision of the English law on which they now for the first time rely, and having failed to do so, they must submit to the consequences of their own negligence. The French Courts, like our own, can only be informed of foreign law by appropriate evidence, and the party who fails to produce it cannot afterwards impeach the judgment obtained against him on account of an error into which the foreign Court has fallen presumably in consequence of his own default. Suitors in our own courts, in similar circumstances, must suffer a like penalty for their negligence. A defendant who has omitted to produce evidence which was procurable at the trial of a cause cannot have a rehearing on that account; and in an action on a judgment of one of our own Courts, we do not permit the defendant to plead any facts which might have been pleaded in the original action. These instances offer analogies by which I think the present case is governed, and on this ground I am of opinion that the defendants are precluded from impeaching the decision of the French tribunal, and that our judgment should be for the plaintiffs.

Attorneys for plaintiffs: Abrahams & Roffey.

Attorney for defendants: Hickin.

(1) See the next case.