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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wotherspoon & Birrell v. Conolly [1871] ScotLR 8_349_1 (10 February 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0349_1.html
Cite as: [1871] ScotLR 8_349_1, [1871] SLR 8_349_1

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SCOTTISH_SLR_Court_of_Session

Page: 349↓

Court of Session Inner House First Division.

Friday, February 10. 1871.

8 SLR 349_1

Wotherspoon & Birrell

v.

Conolly.

Subject_1Suspension
Subject_2Judgments Extension Act 1868
Subject_3Jurisdiction
Subject_4Citation — Process — Sist.
Facts:

Suspension of a charge on an extract certificate of a judgment of the Court of Queen's Bench in Ireland, registered for execution in Scotland under the provisions of the Judgments Extension Act (31 and 32 Vict., c. 54), on the ground that the complainers were not subject to the jurisdiction of the Irish Court, and bad not been validly cited,— refused simpliciter, but process sisted till the complainers should have had an opportunity of applying to the Court of Queen's Bench in Ireland to be heard on their objections.

Headnote:

The circumstances of this case were as follows:— The complainers, who are shipowners in Glasgow, contracted by bill of lading, dated Almeria, 19th October 1868, to deliver 60 barrels of grapes to the respondent in Dublin by the ship “Fitzwilliam.” The ship arrived in Glasgow on the 3d November, and, there being a large number of packages to be delivered there, the complainers proposed to send on the grapes to Dublin by another vessel. The respondent declined to receive them except from on board the “Fitzwilliam,” and, consequently, the grapes, being of a perishable nature, were sold by public auction in Glasgow for £72, 6s. Id. The respondent thereupon commenced proceedings against the complainers in the Court of Queen's Bench in Ireland. An affidavit was made by him, setting forth the non-delivery of the grapes, and proceeding:—“Saith that the said defendants reside in Glasgow, out of the jurisdiction of this Court; that Mr William Scott, of Eden Quay, Dublin, is their agent in Ireland, and is in constant communication with the defendants; and deponent says that if a copy of the summons and plaint in this cause shall be served upon the said William Scott, for the defendants, it will be sure to reach them in due course: saith that the cause of action herein arose

Page: 350↓

within the jurisdiction of this honourable Court.” Service was accordingly made on Mr Scott, and the complainers were cited by registered letters. It was now denied that Mr Scott was the agent of the complainers. No appearance was made for the latter, and after some further procedure the respondent obtained judgment for £202, 16s. of damages, with £34, 15s. 6d. of costs. It appears that the damages were assessed by a jury. A certificate of the judgment was registered under the provisions of the Judgments Extension Act, 31 and 32 Vict., c. 54, for execution in Scotland. The complainers prayed the Court to suspend the certificate simpliciter. The grounds on which they pleaded that they were entitled to suspension were stated in their pleas, as follows:—“(1) In respect the judgment on which the said certificate proceeds was obtained by the respondent in a foreign Court having no jurisdiction over the complainers; (2) In respect the said judgment proceeded in absence, and without any proper or valid citation of the complainers; and (3) In respect the said judgment is unfounded on its merits, and that the complainers are not liable to the respondent for the amount decerned for.”

The note was passed on caution, and a proof allowed. On resuming consideration thereof, the Lord Ordinary ( Jerviswoode) refused the note of suspension.

The complainers reclaimed.

Shand and Lancaster, for them, argued—The complainers are domiciled Scotchmen, and the mere fact that the contract was to be fulfilled in Ireland could not give the Courts there jurisdiction. Moreover, there was no valid citation, the affidavit stating that the complainers had an agent in Ireland being false. The object of the Judgments Extension Act was to facilitate execution, and not to give jurisdiction where it did not exist before.

The Solicitor-General and Brand, in answer —By the law of Ireland the Courts there had jurisdiction, in respect that Dublin was the locos solutionis. The procedure and citation were in accordance with the Act 15 and 16 Vict., c. 113, which regulates common law procedure in Ireland. The judgment complained of was one pronounced causa cognita. In any view, the questions which the complainers seek to raise are for the Irish Court to decide. The Judgments Extension Act excludes review by the Court of Session.

After the debate the complainers obtained leave, under reservation of expenses, to amend their record. They now inserted an alternative prayer, to sist execution till they should have had an opportunity of applying to the Court of Queen's Bench in Ireland to be heard on their objections to the competency of the proceedings.

At advising—

 Judgment:

Lord President—The respondent obtained a judgment against the complainers in the Court of Queen's Bench, Ireland, dated 8th March 1869, by which they were adjudged to pay a sum of damages for breach of contract. This judgment being issued, a certificate was sent to this Court and registered according to the statute. We have the extract, on which the respondent was preparing to do diligence when this note of suspension was presented. The extract bears that the proper officer in the Irish Court of Queen's Bench certifies that the respondent obtained judgment in that Court against the complainers in respect of the non-delivery of a cargo of grapes. The grounds on which the complainers seek to suspend are stated in their pleas in law.—( Reads pleas as above.) In short, the complainers proposed that the judgment should be examined by us as a foreign decree. This appears to me irreconcileable with the object and provisions of the Judgments Extension Act. Its object is to exempt decrees of the Courts of one part of the United Kingdom from such examination by the Courts of another part, and to give them the same force and efficacy in that other part as they would have received in the territory in which they were pronounced. The provisions of the statute are not exactly commensurate with its object, but they are intended to effect that object as nearly as possible consistent with justice. On one point I am quite clear, that the provisions of the statute have the effect of preventing an English or Irish decree being examined like a foreign decree. To enforce a foreign decree an action is necessary, and the defences proper to an action are competent. But the statute provides that the judgments to which it applies, when registered, shall he put to execution. It is important to attend to the exact words —( reads sect. 2). The only judgments dealt with are debts, damages, or costs, in short, money decrees; they are to be enforced as if on the date of legislation this Court had pronounced a decree for the money. It is contended that it must always be competent to a party, against whom decree has passed in absence, to open it up. That is not the intention of the statute, as is clear from the exception in sect. 8, which provides that the Act shall not apply to any decree pronounced in absence in an action proceeding on an arrestment used to found jurisdiction in Scotland; implying that it does apply to other decrees in absence. Moreover, section 3 extends the provisions to decrees of registration. Even if this could truly be said to be a decree in absence, it would be no reason that we should examine it as the complainers propose. Their remedy, if there is one, must be sought in the Irish Courts. I regard, then, the third branch of their plea as quite untenable. There remains the allegation that the Court in Dublin had no jurisdiction over the complainers because they were resident Scotchmen. I am not prepared to say that it is impossible to raise a question of jurisdiction which we might entertain. But it must appear clearly on the face of the certificate that the Court had gone manifestly beyond its jurisdiction. Such a case is not likely to occur; and certainly we are not dealing with such a case here. The complainers are seeking to raise a question of jurisdiction by no means of a clear nature. What they contend for comes to this, that where a question of a Court's jurisdiction has arisen and been disposed of, then when the judgment comes to be executed in another part of the United Kingdom, the question is to be opened up in the Courts of that other part. The question here is, whether the fact that Dublin was the place where the contract was to be fulfilled was sufficient to give the Irish Court jurisdiction. That, in the first instance, is a question for the Court whose jurisdiction is impeached. It may be that their judgment is subject to review. But it is not intended that it should be reviewed by the Court of Session merely because the judgment is sought to be put in execution in Scotland. There is an Imperial Court of last resort to which the party may appeal. I cannot doubt that the Legislature in framing this statute had in view the existence of this one Imperial Court to which

Page: 351↓

the Courts of all three parts of the United Kingdom are subject.

The complainers have been allowed to amend their prayer. They now ask the Court, as they have allowed judgment to go against them in absence, to allow them an opportunity of raising the question in Ireland. If there is such a remedy in Ireland, I think it is not incompetent for us to sist procedure till the complainers have had time to make application to the Irish Court. I propose that we sist process for this purpose, but the complainers must be found liable for the expenses incurred.

Lord Deas—I concur. We cannot examine this judgment as a foreign decree, but we can examine it to the extent of satisfying ourselves whether we ought to give a sist to enable the complainers to make application to the Irish Court.

Lord Ardmillan—I had some difficulty whether, without putting an end to this process, we should even grant a sist, but I do not oppose.

Lord Kinloch—I am of opinion that, at the time the Lord Ordinary's interlocutor was pronounced, he rightly refused this note of suspension.

It is true, speaking generally, that by our law the judgment of a foreign Court is examinable; and if found to have gone out against a person over whom the foreign Court had no jurisdiction, the judgment will not receive effect. But I think the object and effect of the Judgments Extension Act of 1808 (which was an Act of the Imperial Parliament) is to take away the character of a foreign judgment from the judgments of the Supreme Courts of England and Ireland in the matters to which the statute refers; and to give to these, without further inquiry, the full effect as to execution of a judgment of this Court. The statute intended no review of the judgments by this Court, whether on the point of jurisdiction or any other. On the contrary, the theory of the statute is, that each of the Courts is alike competent to pronounce on this as on the other points of the case; and the judgment, if ex facie regular, is to receive immediate execution in the three countries alike. It is as to execution, and this alone, that the judgment is put on a footing of identity with a judgment of this Court. By the sixth section of the statute the Courts are authorised to exercise “the same control and jurisdiction” over the judgments presented to them as over their own judgments; but it is added, “in so far only as relates to execution under this Act.” I can put no meaning on these words, other than that the respective Courts are debarred from exercising any control or jurisdiction over the judgments presented to them, except to the effect of regulating or suspending execution.

But, under this reserved power, I think the Court is entitled to stay execution till an opportunity is afforded of applying for redress to the Court which pronounced judgment, or to any other Court holding appellate jurisdiction over that Court. This follows, partly from the express language, partly from the general tenor, and, I think, clear intendment of the statute. Under this power, I think we may and ought to comply with the proposition now made to us of sisting procedure to afford the complainers an opportunity to apply to the Irish Courts. But, up to this date,

I think we must hold the complainers to have maintained an ill-founded case.

Process sisted for fourteen days, and complainers found liable in expenses.

Solicitors: Agents for Complainers— J. & R. D. Ross, W.S.

Agent for Respondent— A. Kirk Mackie, S.S.C.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0349_1.html