In re Henderson, Nouvion v. Freeman

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37 Ch.D.

[COURT OF APPEAL]

In re HENDERSON.

NOUVION v. FREEMAN.

[1883 H. 2042.]

1887 Nov. 1, 2, 3, 5; Dec. 6.

COTTON, LINDLEY and LOPES, L.JJ.

Foreign Judgment.

According to the law of Spain a person in whose favour documents of a certain class have been executed can commence "executive" proceedings in which the defendant can only plead defences not disputing the original right of action, and the plaintiff; if successful, obtains a "remate" judgment which is an order for execution to issue for a sum of money and costs. A "remate" judgment does not preclude either party from taking "plenary" or "ordinary" proceedings as to the same subject-matter, and in such ordinary proceedings all defences are open, and neither party call set up the "remate" judgment as a res judicata, or even as giving, him a primâ facie case, and the rights of the parties are not affected by it. The plaintiff can, however, on giving security enforce the "remate" judgment though plenary proceedings are pending:-

Held, reversing the decision of North, J, that a "remate" judgment, as it did not, according to the law of Spain, decide the rights of the parties, was not a final and conclusive judgment which could be sued upon in this country, and did not enable the Plaintiff to maintain a suit here for administration of the estate of the Defendant in the executive proceedings, who had since died.

THIS was an appeal by the Defendants from a decision of North, J.(1), that a judgment in Spain of the 5th of April, 1878, was a judgment on which, apart from fraud, the claim of the Plaintiff as a creditor to have the estate of W. Henderson administered could be sustained.

The judgment was what is termed in Spanish law a "remate" judgment obtained in "executive" proceedings. The nature of these proceedings is set forth in the report below and in the judgments. It may be shortly stated that they can be taken only upon documents of particular characters executed in favour of the plaintiff, and that certain defences only can be taken by the defendant, being defences not disputing the original cause of action. The judgment given, if the plaintiff is successful, is that execution do issue for a certain sum of money and

(1) 35 Ch. D. 704.

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costs. A judgment in "executive" proceedings does not preclude either party from commencing "ordinary," or "plenary," or "declarative" proceedings in respect of the same subject-matter. In such ordinary proceedings all defences are open and the judgment in the executive proceedings cannot be relied on for any purpose by either party, though if the plaintiff has obtained judgment for execution he may, on giving security, enforce it, notwithstanding the pendency of the plenary proceedings.

Mr. Justice North, held, that the "remate" judgment was a final judgment which could be sued upon in this country. The Defendants, the executors of Henderson, appealed, and the appeal was heard on the 1st, 2nd, 3rd, and 5th of November, 1887.

Rigby, Q.C., Kenelm E. Digby, and Davenport, for the Appellants:-

The evidence of the Spanish lawyers shews that a "remate" judgment in Spain is not a final and conclusive judgment for any purpose. It does not define the rights of the parties, it is a mere interim order making a party pay what it is probable he will have to pay, without deciding that he will ultimately have to pay it, or that the plaintiff will have a right to retain it. If plenary proceedings are taken for ascertaining the rights of the parties the "remate" judgment is not looked at in them. There was, formerly, some obscurity as to the principle of our enforcing foreign judgments, but the law is settled by Godard v. Gray (1) and Schibsby v. Westenholz (2). The judgment to be enforced here must be final and conclusive, which this judgment is not.

Napier Higgins, Q.C., and Yate Lee, for the Respondent, relied on the grounds taken by Mr. Justice North.

1887. Dec. 6. COTTON, L.J.:-

This is an appeal from a decision of Mr. Justice North on the trial of an issue which had been directed by the late Mr. Justice Pearson, in an action by a creditor who has sought to rely upon a judgment obtained by him in Spain; and the question which had to be decided on the issue was whether it was such a judgment

(1) Law Rep. 6 Q. B. 139.

(2) Law Rep. 6 Q. B. 155.

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as would entitle the Plaintiff in the action to rely upon it as cause of action in England.

The judgment was what is called in Spain a "remate" judgment. Whether that means a closing judgment or not I do not know, apparently it does. The judgment, however, and the proceedings in which it was obtained were certainly of a very peculiar character.

According to the law of Spain a man in whose favour documents of a particular character have been executed is entitled to institute what are called in Spain executive proceedings, in which he may obtain a judgment such as that relied upon by the Plaintiff.

In the present case the deceased, Mr. Henderson, had executed in favour of the Plaintiff, Nouvion, two documents of such a character that the Plaintiff was entitled to institute an executive proceeding in order to obtain against him the judgment which he has obtained. It is not suggested there was any irregularity in the proceedings or in the obtaining of that judgment.

Now what are "executive" proceedings? They are proceedings so called in order to distinguish them from other proceedings in Spain which are called "ordinary," or "plenary," or "declarative." In the ordinary, plenary, or declarative proceeding every defence which can be taken is open to the defendant, but in the executive proceedings the only defences which can be taken by the defendant are defences which admit the original right of action on the document which is sued upon, and although certain defences can be pleaded by the defendant, and can be considered, yet they are only of this nature - that the plaintiff has lost his original right of action, either by a contract not to proceed, or in consequence of payment, or of his having released his cause of action. The grounds of defence, therefore, are very limited. And we find in the evidence (of which there is a good deal on both sides) that a judgment obtained in an executive proceeding can never be relied upon to found a plea of res judicata, that is to say, it is no bar in any other proceeding. Not only so, but, if the defendant or the plaintiff in the executive proceedings is dissatisfied with the result, he can take proceedings in the plenary or ordinary jurisdiction and the judgment

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which has been obtained is no defence and no primâ facie ground of action.

It is stated in the evidence taken on behalf of the Defendants, and it is not in any way contradicted by the evidence on behalf of the Plaintiff, that the rights of the parties with reference to the original cause of action are in no way affected by any judgment obtained in the executive proceedings. In the evidence on behalf of the Defendants are quoted two articles in the Code which are clear: "The judgment passed in the executive judicial courses does not produce the exception of a matter decided" (that is to say, it cannot be used as a plea of res judicata) "the parties being left in the free possession of their rights to proceed with the ordinary course on the same question." And, then, art. 972 is this: "Whatever may be the judgment which may put an end to this judicial proceeding" (that is the executive proceeding) "both the plaintiff and the defendant have their rights left free to proceed with the ordinary course." It is also on the evidence that even matters which were capable of being brought forward in the executive proceeding, and which were so brought forward, can be tried over again just as if there had been no judgment upon them in the executive proceeding.

Now such a judgment strikes one as not likely to be a good cause of action in a foreign country. But it was argued that it merely comes to this - that such a judgment is like a judgment in an old action at law which would be liable to be interfered with by proceedings in Equity to impeach it upon equitable grounds. In my opinion there is no analogy between the two cases. The Common Law action was in a Court which could not take cognisance of any equitable grounds of defence, and the judgment at law was conclusive as to the legal right, a Court of Equity neither impeached nor disregarded it, but on equitable grounds prevented a party from availing himself of it. This has no analogy to a judgment in executive proceedings, which can in no way be relied upon as giving to the plaintiff who has obtained it a ground of action, or to the defendant who has obtained it a defence against other proceedings. If we look at the judgments which are sought to be made the cause of action in the present proceedings, they, in my opinion,

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support the view to be arrived at on the evidence, for, as far as I can construe them, they do not in any way purport to decide any question between the parties, but merely to give a right to the plaintiff in the action to get execution on the assumption that he has got a good cause of action by the document on which he sues.

Mr. Yate-Lee, who argued the points very fully, said that there were three judgments upon which he relied, and he particularly pressed upon us the letter of request sent by the Spanish Court to the judicial authorities in England and in Scotland, requesting the Judges in the English and Scotch Courts to enforce the order which had been made by the Spanish Court. But that is no judgment. It merely proceeds on the footing of what has been already done in Spain, and requests the Courts in this country to give effect to those proceedings and to the orders which had been obtained. There are two such orders, one of them made in December, 1874, and the other on the 5th of April, 1878. But when we look at them they do not purport on their face in any way to decide any question between the parties so as to determine their rights under the original agreement. The first one (that of December, 1874) is this: "Let an order of execution be issued against the property and goods of Mr. William Henderson and Mr. William, Percival Partington, the first an inhabitant of Glasgow, in Scotland, and the second of Madrid, at present residing in London, for the principal amount of - reales, and also for the amount of the legal interest thereon." That does not purport to decide between the parties any question which may arise on their contract, it is only an order giving a right of execution against the property in Spain of the defendant. In the judgment of the 5th of April, 1878, the Judge says: "I decree .that I ought to order, and I do hereby order, that the distraint is to be carried into effect, and in virtue thereof that sale and auction of the property sequestrated be made, and that with the proceeds thereof entire and complete payment be made to the executive plaintiff of the amount of principal sought, interest due and to become due, until the payment and effective discharge with costs, in which the defendant is condemned." That order, proceeding on the assumption, which the defendant is not at liberty to dispute, that there is due this sum

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from the defendant to the plaintiff, is an order simply giving execution against the goods and property of the defendant. As far as we can learn, the material question now between the parties is whether the Plaintiff can by virtue of that judgment get rid of any obstacle under the Statute of Limitations to his suing on the original contract.

It has been urged, and the judgment in the Court below seems to go on that ground, that it would be reasonable to let the remate judgment be considered primâ facie evidence of the Plaintiff's right to have a decree, and that he should therefore be allowed to sue upon it subject to any objections which the Defendants may take, so as to shew that it does not give effect to the true rights of the parties, and it was said that this is what would happen in Spain, viz., that the Defendants would only be at liberty to get rid of the remate judgment by taking plenary proceedings. But, as I have already said, those plenary proceedings are not proceedings to impeach the remate judgment. They are entirely independent proceedings, and in them the defendant and plaintiff are both of them at liberty to obtain, without regard to the remate judgment, a decision on matters which have been already discussed, and, so far as they could be, have been made the subject of decision in the executive proceedings. To give effect, therefore, in this country to a remate judgment, would enable the Plaintiff to obtain in this country a greater benefit from it than he could obtain from it in Spain. It would be entirely contrary to the principle on which English Courts proceed in enforcing a foreign judgment, if we were to adopt that course. When a foreign judgment is made a cause of action in England, the defendant, though he is at liberty to shew that the Court had no jurisdiction, or that the judgment was obtained by fraud, cannot enter into the question whether the judgment was obtained on a right view of the law, even though the law may be the law of England. This is strongly shewn by Godard v. Gray (1), in which both parties in a foreign Court had proceeded on a wrong assumption as to the effect which would be given in Englandto a particular document; but the Court would not allow that question to be gone into so as to shew that the judgment on

(1) Law Rep. 6 Q. B. 139.

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which the plaintiff founded his cause of action was an erroneous judgment. In my opinion that is an absolute and conclusive answer to the suggestion that this judgment (which admittedly can be displaced by plenary proceedings in Spain) ought to be allowed as giving a primâ facie right of action in this country.

What is required in England in order that a foreign judgment may be sued upon here as giving a good cause of action? A foreign judgment does not, in the view of an English Court, merge the original cause of action, but if the party likes to proceed here on his original cause of action, he may do so, notwithstanding the foreign judgment. If he elects to proceed on the foreign judgment, then he must shew that the matter has been adjudicated upon by a competent Court, and that the adjudication is final and conclusive.

Now, in so stating the law, I do not think that I at all differ from the law as laid down by Mr. Justice North. Amongst other authorities he quotes(1) what was said in the case of Paul v. Roy (2) by the then Master of the Rolls(3): "It has not been questioned, and I have no doubt, that this Court has jurisdiction to enforce a foreign judgment, and, in ordinary cases, when the parties to them are here, to enforce the rights and obligations arising out of contracts entered into in foreign countries. But the first question to be considered is, whether this is a final foreign judgment adjudicating on the rights of the parties litigant here, because, I conceive, it would be new in practice for this Court to enforce a foreign judgment, unless it were final and conclusive." And(4) Mr. Justice North quotes the passage from the judgment of Lord Blackburn in Godard v. Gray (5), in which Lord Blackburn quotes this passage from the judgment of Baron Parke in Williams v. Jones (6): "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." Mr. Justice North quotes those passages, and he agrees with the law as laid down by those decisions.

(1) 35 Ch. D. 717.

(2) 15 Beav. 433.

(3) Ibid. 439.

(4) 35 Ch. D. 714.

(5) Law Rep. 6 Q. B. 139, 148.

(6) 13 M. & W. 633.

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Now, first of all, was this judgment final? I think there is a little misapprehension as to what is meant by the word "final." We require a foreign judgment to be a final one, that is to say, it must not be merely what we should call here an interlocutory order, an order not purporting to decide the rights of the parties, but merely requiring something to be done pending the prosecution of the action, either for the purpose of security or of keeping things as we say in statu quo until the trial of the action. Is this remate judgment final? Mr. Justice North thought it was, but I think that is an erroneous view of the word "final" as applied in English Courts to a judgment which can be sued upon. It was final in this sense, that it was an end of the executive proceedings, and moreover it could not be suspended, if security was given by the Plaintiff, in consequence even of an appeal, or of any plenary proceeding; but it was not final in the sense of its being a decision as to the rights of the parties, for, as I have said, in executive proceedings there can be no binding final decision as to the rights of the parties.

Then was there here an adjudication? That is required according to what is stated by Lord Romilly and Lord Bramwell in the passages to which I have referred, and such I understand to be the law of England. In my opinion there was not, because the remate judgment did not purport to decide, and it was not possible to decide in these executive proceedings, any question arising as to the validity of or the rights flowing from the original obligation. Therefore there was no adjudication at all, except a decision according to the practice allowed in the Spanish Courts, that on that document not impeached leave should be given to the Plaintiff in the executive proceedings to issue out execution as against the property of the person who had bound himself by the instrument sued upon. I think Mr. Justice North considered it was to be treated as an adjudication, and as therefore deciding the matter, in consequence of some evidence which he refers to. At p. 714 of the report he says: "It struck me at one time that the judgment of the 5th of April, 1878, merely directed execution to issue against Henderson's goods, and did not amount to a personal judgment against him for payment, but this difficulty is removed by the evidence, as all the witnesses on both sides agree

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that the effect of that remate judgment was, according to the law of Spain, to make Henderson personally, and his estate in the hands of his executors, responsible for the payment of principal interest, and costs."

Now undoubtedly, both in the evidence for the Plaintiff and for the Defendant there are passages which say that the judgment bound the Defendant personally, and that his executors are also bound to the extent of the assets which came to their hands. In the Defendant's evidence I find this: "To the third cross-question, I answer the said judgments made the Defendant personally liable for the sum for which execution was ordered against him." Then there is a similar passage further on in the Defendant's evidence: "Mr. Henderson became responsible for the payment of the amount for which the execution was ordered against himself:" and then the Plaintiff's evidence says that the executors are answerable to the extent of the goods which came into their hands. Now if we had that evidence alone, it would be difficult not to assent to what is laid down by Mr. Justice North, but we must read it together with the rest of the evidence, and we find that there was not and could not be in executive proceedings any decisive adjudication of the matter. What I think is meant in those passages is this, that so long as no plenary proceedings are taken which decide the rights of the parties contrary to the judgment in the executive proceedings, neither the defendant nor his executors to the extent of the assets come to their hands can object to his goods being seized, and being made answerable for the amount for which execution is directed to be levied.

In my opinion, therefore, we ought to come to the conclusion that this is not such a judgment as the law of England will allow to be made a cause of action, so as to found on it alone a proceeding in this country.

Therefore, in my opinion, the decision ought to be reversed, and we ought to answer the question which is raised by the issue in the negative.

The judgment before us is: "The Court doth decide in favour of the Plaintiff, and doth find that the judgment or decree dated the 5th of April, 1878, in the amended statement of claim mentioned,

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is a judgment or decree upon which the claim of the Plaintiff can (apart from the question of fraud) be sustained." I think we ought to reverse that, and decide in favour of the Defendant that neither the judgment of April, 1878, nor that of December 2, 1874, are judgments or decrees upon which the claim of the Plaintiff can be sustained.

LINDLEY, L.J.:-

The Plaintiff in this case claims, as a creditor of a Mr. Henderson, deceased, to be entitled to the usual judgment for the administration of his estate.

The Plaintiff bases his claim on certain orders or judgments obtained by him in Spain against Henderson in his lifetime, and which judgments and orders the Plaintiff contends entitles him to rank as a creditor in this country against Henderson'sexecutors.

The substantial question raised by the Plaintiff's claim is whether the Spanish orders or judgments are of such a kind as to be a foundation for an action in this country. The Plaintiff purposely does not sue in this country on any contract or cause of action anterior to the orders or judgments obtained by him in Spain. The Plaintiff sues on those orders and judgments, and contends that they are of themselves sufficient to entitle him to maintain an action in this country. Mr. Justice North has decided this question in the Plaintiff's favour, and from that decision the Defendants have appealed.

In the first place it is necessary to understand exactly the nature and effect of the Spanish orders or judgments which the Plaintiff has obtained in Spain, and on which he sues in this country. A full account of them will be found in Mr. Justice North's judgment(1).

The principal judgment or order sued upon is dated the 5th of April, 1878. The others are either preliminary or ancillary to that, and without dwelling upon them it is enough to say that they cannot from any point of view be regarded as more favourable to the Plaintiff than the main order or judgment of the 5th of April, 1878. That order or judgment is technically termed

(1) 35 Ch. D. 710

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a remate judgment, and is of a very peculiar nature. It is in effect an order for execution to issue for a certain sum of money with interest and costs. It is an order made in what we should call a summary proceeding - it is made on the production of documents executed in the presence of and attested by a notary public and primâ facie entitling the plaintiff to be paid the sum demanded. The defendant in that summary proceeding can avail himself of any defence he may have which is consistent with the document sued upon, e.g., he can defend himself by proving that he has paid the sum demanded, or has been released but he is not at liberty to dispute the execution of the document nor to impeach it on the ground of fraud, misrepresentation, failure of consideration, or the like. A remate judgment or order can be appealed from, but except in that respect it is final and conclusive between the parties in the summary proceeding in which it is made.

But on the other hand a remate judgment decides nothing as to the rights of the parties. If the plaintiff fails in the summary proceeding he can bring a plenary action, and the decision against him in the summary proceeding is no bar to such action. If the plaintiff succeeds in the summary proceeding, and re. covers a remate judgment, the defendant can nevertheless bring a plenary action, and have the rights of the parties determined, and the remate judgment is no bar to such action. In short, the remate judgment, whether in favour of the plaintiff or against him, is not res judicata, nor does it extinguish the original cause of action which the plaintiff may have had against the defendant or vice versa. This is plain from the Spanish Code of Civil Procedure and from the evidence of the Spanish lawyers called on both sides. Their evidence also shews that no action can be brought in Spain on any foreign judgment which is not res judicata according to the law of the country in which it was pronounced.

The fact that a remate judgment is not res judicata by the law of Spain is, in my opinion, all important in the present controversy.

The next point for consideration is, can a remate judgment be the foundation of an action in this country? In my opinion it

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cannot, for the simple reason that such a judgment does not decide, or purport to decide, the rights of the parties. Not amounting to res judicata in Spain it cannot be regarded as res judicata here. There is no authority for saying that an action will lie in this country on a foreign judgment which is not res judicata in the country in which that judgment is pronounced. The authorities are really all the other way. The cases collected in 2 Sm. L. C. in the notes to Doe v. Oliver, shew that no action can be brought in this country on a foreign judgment unless, if not appealed against, it is final and conclusive in the country in which it is pronounced. The fact that a judgment or order may be appealed from, or that it is made in a summary proceeding, does not prevent it from being res judicata and actionable in this country. But an order or judgment which decides nothing as to the true rights of the parties is not final and conclusive in the sense in which those words are used in the authorities referred to. Thus in Paul v. Roy (1), where money was ordered by a Scotch Court to be paid into the Scotch Court, the order was held not to be final and conclusive.

The evidence of the Spanish experts goes to shew that the remate judgment imposed upon Henderson a personal obligation to pay the sum claimed by the Plaintiff, and this point was much relied upon by the Plaintiff's counsel. In one sense I think it is shewn that an obligation to pay, i.e., to hand over the money in dispute, was imposed by the remate judgment. But the obligation thus imposed was not an obligation to pay in satisfaction of an established debt or demand, it was simply an obligation to hand over the money, the right to it when handed over being left open and undecided.

The test of finality and conclusiveness of any judgment is to be found in the view taken of it by the tribunals of the country in which it is pronounced, and if a judgment leaves the rights of the parties uninvestigated and undetermined, and avowedly leaves those rights to be determined in some other proceeding, the judgment cannot be treated here as imposing an obligation which our tribunals ought to enforce.

The tribunals of this country go further than any others in

(1) 15 Beav. 433.

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enforcing foreign judgments. But English Courts have never yet gone so far as to recognise as a good cause of action a foreign judgment obtained in a proceeding in which the rights of the parties have not been, and could not have been, investigated or determined. Such judgments are provisional and not final, although it may be true that they must be obeyed, and are final to that extent, just like an order to pay money into Court to abide the result of further inquiry.

The principle on which an action can be brought on a foreign judgment is that the rights of the parties have been already investigated and determined by a competent tribunal, or that if such rights have not been in fact investigated and determined, it is because the parties, or one of them, have made default and not availed themselves of the opportunities afforded them by the foreign tribunal. In an action on a foreign judgment not impeached for fraud, the original cause of action is not re-investigated here, if the judgment was pronounced by a competent tribunal having jurisdiction over the litigating parties: Godard v Gray (1); Schibsby v. Westenholz (2). The judgment is treated as res judicata, and as giving rise to a new and independent obligation which it is just and expedient to recognise and enforce.

A remate judgment is not, in my opinion, like an old common law judgment against which the defendant could have obtained equitable relief in the old Court of Chancery. The common law judgment decided the legal rights of the parties and was res judicata, and was so treated by the Court of Chancery, which nevertheless gave relief against it on equitable grounds. The remate judgment decides no rights. It is based upon an assumption of liability made for the purpose of a particular form of procedure and of that only. The judgment is in no sense res judicata, and the analogy between a Spanish remate judgment and an old common law judgment fails in the most material particular.

But although the remate judgment does not decide the liability of the defendant to pay the principal sum or interest claimed by the plaintiff, it is contended that it imposes on the defendant

(1) Law Rep. 6 Q. B. 139.

(2) Law Rep. 6 Q. B. 155.

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a liability to pay the costs of the proceedings instituted by the plaintiff, and that the plaintiff is a creditor for the amount of those costs, and as such is entitled to an administration judgment. It appears to me, however, that the liability to pay these costs depends on the liability to pay the principal sum claimed, and that until this is determined the order for costs cannot be regarded as final or conclusive so as to serve as the foundation of an action.

Upon these grounds the Plaintiff cannot in my opinion sustain his action on the remate judgment. He must fall back on his original contract, and if his remedy on that is barred by the Statute of Limitations he will be without redress unless he can avail himself in Spain of the order of April 1878.

The orders appealed from must be discharged and judgment on the issue raised be entered for the Defendants with costs here and below.

LOPES, L.J.:-

The question is whether this action brought on a Spanish remate judgment of April, 1878, obtained upon two notarial instruments in accordance with Spanish law dated, respectively the 15th of April, 1872, and the 19th of October, 1872, will lie. A foreign judgment to be a good cause of action in this country must be given by a Court of competent jurisdiction and be final and conclusive in the country where it was pronounced. It must be an adjudication of the rights and liabilities of the parties.

Apply this doctrine to the present case: the Spanish rematejudgment sued on, to afford a good cause of action, must be given by a Court of competent jurisdiction in Spain, and must bind the liabilities of the parties upon the original contract.

It is only necessary to deal with the judgment of 1878. That judgment was pronounced in summary proceedings in a District Court of the city of Seville. The summary proceedings in question are called executive. There are two kinds of proceedings, summary or executive proceedings and plenary, also called declarative or ordinary proceedings. In the former, upon proof of a primâ facie case, the Judge without notice to the debtor makes an order for execution against the defendant by attaching

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his property. Notice of attachment is given to the debtor and he is cited to appear, and may appear and put in his defence. It is not every defence however which he can plead; he can plead payment, want of consideration, fraud, release, compromise, and other defences in the nature of confession and avoidance, but he cannot set up any defence that puts in issue the contract itself, the validity of which is assumed in summary proceedings.

If the plaintiff is right the Court pronounces what is called a remate judgment directing execution to issue. From this judgment there is an appeal to the Court of Appeal, but none to the Supreme Court or Court of Cassation.

If the defendant has a good defence to the plaintiff's claim which is not available by way of answer in the summary proceeding he may commence a plenary or ordinary proceeding of his own triable before the same judge, and in this every legal answer to his opponent's claim is available, and he may test in every way the validity of the contract or instrument upon which he is sued. In such an action no plea can be set up of res judicatafounded on the judgment in the summary proceeding. In the plenary action also any points already set up, even unsuccessfully, by a defendant in the summary action may be again set up and relied upon.

It seems to me unnecessary to state more than this to shew that this remate judgment is not a final judgment adjudicating on the rights and liabilities of the parties here litigant.

Suppose the Plaintiff had sued in this country not on the remate judgment but on the original cause of action, could this judgment have been set up as an answer on the ground of its being res judicata? It is clear it could not. It would be contended successfully that there had never been any adjudication of the rights and liabilities of the parties. Again, if the defendant in the remate judgment had instituted plenary proceedings in Spain, it is clear the remate judgment would have been no answer for the same reason.

An analogy was suggested between a judgment of a Court of Common Law before the Judicature Act and a remate judgment. It was said that a judgment of a Court of Common Law could not have been considered final if a remate judgment was not

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final, because a Court of Equity could interpose and prevent the plaintiff from reaping the fruits of his judgment, and that the relation between a Court of Equity and a Common Law Court was very similar to the relation between executive and plenary proceedings.

I think the analogy fails. Equity and Common Law were two distinct systems, unlike any existing in any foreign country. The judgment of a Court of Common Law was complete and final, and adjudicated upon and settled the rights and liabilities at law, and the legal final effect of the common law judgment was in no way impaired because there was a remedy in equity.

The defendant at law could set up every possible defence which would be an answer at law, whereas in the executive proceedings he was precluded from availing himself of any defence which tested the validity of the instrument or contract upon which he was sued.

I am of opinion that the executive are in the nature of interlocutory proceedings, and that the remate judgment pronounced in such proceedings is not such a final and conclusive judgment binding the rights and liabilities of the parties as will support an action.

The appeal must be allowed, and the finding of the issue by North, J., reversed.

Solicitors: Ewbank & Partington; Freeman & Bothamley.

H. C. J.