that the judges consulted by the House of Lords in Marsh v. Keating (s) thought such a rule existed, though it was not applicable to the case in hand; and that in Ex parte Elliott (t) it was effectually applied to exclude a proof in bankruptcy. of wrong court. Lastly we have to see under what conditions there may Locality be a remedy in an English court for an act in the nature ful act as of a tort committed in a place outside the territorial juris- remedy in affecting diction of the court. It is needless to state formally that English no action can be maintained in respect of an act which is justified or excused according to both English and local law. Besides this obvious case, the following states of things are possible. wrongful if by English law. 1. The act may be such that, although it may be Acts not wrongful by the local law, it would not be a wrong done in England. In this case no action lies in an English court. The court will not carry respect for a foreign municipal law so far as to "give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed" (u). fied by local law. 2. The act, though in itself it would be a trespass by Acts justithe law of England, may be justified or excused by the local law. Here also there is no remedy in an English court (r). And it makes no difference whether the act to his knowledge; and I do not know why it is the duty of the party who suffers by the felony to prosecute the felon, rather than that of any other person: on the contrary, it is a Christian duty to forgive one's enemies; and I think he does a very humane and charitable and Christian-like thing in abstaining from prosecuting." (s) 1 Bing. N. C. 198, 217 (1834). (t) Mont. & A. 110 (1837). (u) The Halley (1868) L. R. 2 P. C. 193, 204, 37 L. J. Adm. 33; The M. Moxham (1876) 1 P. Div. 107. (x) Blad's Case, Blad v. Bamfield (1673-4) in P. C. and Ch., 3 Swanst. 603-4, from Lord Nottingham's MSS.; The M. Moxham, 1 P. Div. 107. 1 Act wrongful by both laws. was from the first justifiable by the local law, or, not being at the time justifiable, was afterwards ratified or excused by a declaration of indemnity proceeding from the local sovereign power. In the well-known case of Phillips v. Eyre (y), where the defendant was governor of Jamaica at the time of the trespasses complained of, an Act of indemnity subsequently passed by the colonial Legislature was held effectual to prevent the defendant from being liable in an action for assault and false imprisonment brought in England. But nothing less than justification by the local law will do. Conditions of the lex fori suspending or delaying the remedy in the local courts will not be a bar to the remedy in an English court in an otherwise proper case (z). And our courts would possibly make an exception to the rule if it appeared that by the local law there was no remedy at all for a manifest wrong, such as assault and battery committed without any special justification or excuse (a). 3. The act may be wrongful by both the law of England and the law of the place where it was done. In such a case an action lies in England, without regard to the nationality of the parties (b), provided the cause of action is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby made between local and transitory actions: but it seems to involve matter of real principle, though since the Judicature Acts abolished the technical forms an occasion of re-stating the principle has not yet arisen (c). It cannot well have (3) Ex. Ch. L. R. 6 Q. B. 1, 40 L. J. Q. B. 28 (1870). (z) Scott v. Seymour (1862) Ex. Ch. 1 H. & C. 219, 32 L. J. Ex. 61. (a) Ib. per Wightman and Willes JJ. (b) Per Cur., The Halley, L. R. 2 P. C. at p. 202. (c) See per Lord Cairns, Whitaker v. Forbes (1875) 1 C. P. Div. at been the intention of the Judicature Acts to throw upon our courts the duty of trying (for example) an action for disturbing a right to use a stream in Bengal for irrigation, or to float timber down a particular river in Canada; the result of which would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as must now and then unavoidably happen in various cases), but as the very substance of the issues (d). Judgment of Ex. Ch. in Phillips We have stated the law for convenience in a series of distinct propositions. But, considering the importance of the subject, it seems desirable also to reproduce the con- v. Eyre. tinuous view of it given in the judgment of the Exchequer Chamber delivered by Willes J. in Phillips v. Eyre: "Our courts are said to be more open to admit actions founded upon foreign transactions than those of any other European country; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land: Doulson v. Matthews (e); and even with respect to those not falling within that description our courts do not undertake universal jurisdiction. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England: therefore, in The p. 52, and the notes to Mostyn v. Fabrigas in Smith's Leading Cases. (d) It was doubted by James L. J. (since the Judicature Acts) whether the Court could entertain proceedings in respect of an injury done to foreign soil. The M. Moxham (1876) 1 P. Div. at p. 109. The other members of the Court (e) 4 T. R. 503 (1792: no action Halley (f) the Judicial Committee pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom, therefore, as not being his agent, he was not responsible by English law. Secondly, the act must not have been justifiable by the law of the place where it was done. Therefore in Blad's Case (g), and Blad v. Bamfield (h), Lord Nottingham held that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmarka matter proper for remonstrance, not litigation. And in Dobree v. Napier (i), Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving under a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment Act. And in Reg. v. Lesley (k), an imprisonment in Chili on board a British ship, lawful there, was held by Erle C. J., and the Court for Crown Cases Reserved, to be no ground for an indictment here, there being no independent law of this country making the act wrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of (f) L. R. 2 P. C. 193, 37 L. J. Adm. 33 (1868). (g) 3 Swanst. 603. (h) 3 Swanst. 604. (i) 2 Bing. N. C. 781 (1836). (k) Bell C. C. 220, 29 L. J. M. C. 97 (1860). limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own Legislature. This distinction is well illustrated on the one hand by Huber v. Steiner (1), where the French law of five years' prescription was held by the Court of Common Pleas to be no answer in this country to an action upon a French promissory note, because that law dealt only with procedure, and the time and manner of suit (tempus et modum actionis instituendae), and did not affect to destroy the obligation of the contract (valorem contractus); and on the other hand by Potter v. Brown (m), where the drawer of a bill at Baltimore upon England was held discharged from his liability for the non-acceptance of the bill here by a certificate in bankruptcy, under the law of the United States of America, the Court of Queen's Bench adopting the general rule laid down by Lord Mansfield in Ballantine v. Golding (n), and ever since recognized, that, 'what is a discharge of a debt in the country where it is contracted is a discharge of it everywhere.' So that where an obligation by contract to pay a debt or damages is discharged and avoided by the law of the place where it was made, the accessory right of action in every court open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation ex delicto to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided. Cases may possibly arise in which distinct and independent rights or liabilities or defences are created by positive and specific laws of this country in respect of foreign transactions; but there is no such law (1) 2 Bing. N. C. 202. (m) 5 East 124. (n) Cooke's Bankrupt Law, 487. |