BERRY V. SHEAD. 1885-86. defendant resident in this colony, and to empower the plaintiff to proceed to judgment by default if the defendant declines to appear. Such judgment will, of course, be efficacious in Victoria; Martin C.J. but it can have no force here should this Court be of opinion that it ought not to be acted on. And that brings us to the question whether the judgment ought to be acted on in the present case. Lord Chelmsford has supplied us with an answer in these words, already quoted:-" It may justly be considered to be an invasion of the jurisdiction of a country whenever an attempt is made to force one of its subjects, or anyone under its protection and temporary allegiance, before a foreign tribunal.” That is precisely the invasion that has taken place in this case. The defendant was settled in this colony, and carried on a business in it. The plaintiff, while the defendant was so residing and carrying on such business, issued a writ of summons against him in the Supreme Court of Victoria, and caused it to be served personally upon him in this colony, where he was under the protection of and owned allegiance to our law. It cannot for a moment be doubted that a resident in this country who simply owes a debt to a person resident in another country cannot be held liable to be sued in the Courts of the country where the plaintiff resides, or in any extra-territorial Court whatever, unless he should, by some temporary presence within the foreign jurisdiction, give the plaintiff the opportunity to serve process upon him. While, however, this may be admitted, it is contended that the fact of the debt, in this case, having been contracted in Victoria, removes all objection to the course taken by the plaintiff in dragging the defendant before the foreign tribunal. There is no case to support this contention. Mr. Justice Fry, in the carefully-considered judgment delivered by him in Rousillon v. Rousillon (p. 371), says: "What are the circumstances which have been held to impose upon the defendant the duty of obeying the decision of a foreign Court? Having regard to that case (Schibsby v. Westenholz), and to Cohen v. Adamson, they may, I think, be stated thus. The Courts of this country consider the defendant bound when he is a subject of the foreign country in which the judgment has been obtained; where he was resident 1885-86. BERRY v. SHEAD. in the foreign country when the action began; where the defendant in the character of plaintiff has selected the forum in which he is afterwards served; where he has voluntarily appeared; where he has contracted to submit himself to the forum in which Martin C.J. the judgment was obtained; if Becquet v. MacCarthy be right, where the defendant has real estate within the foreign jurisdiction, in respect of which the cause of action arose whilst he was within that jurisdiction." "Now," to use Mr. Justice Fry's words, "none of these cases include the present case." Reference was made during the argument to a passage in Mr. Justice Blackburn's judgment in Schibsby v. Westenholz (p. 161), in which he says: "If at the time when the obligation was contracted the defendants were within the foreign country, but left it before the suit was instituted, we should be inclined to think the laws of that country bound them; though before finally deciding this we should like to hear the question argued." This, I need not say, is no decision. The point has not hitherto been argued or determined except in this Court in the Brisbane Oyster Fishery Company v. Emerson (3). In that case Mr. Justice Faucett (p. 89) says; “I also think that the mere fact of making a contract in another country does not involve an agreement to be bound by the decision of the Courts of that country." The other members of the Court took the same view, and the decision went upon the ground that the making of the contract in Queensland did not give the plaintiffs the right by service of process in the colony to drag the defendant into the Queensland tribunal. This Court so decided, having the passage from Mr. Justice Blackburn's judgment before it, and in my opinion that decision was correct. Where a person makes an express agreement to be bound by the law and practice of a foreign tribunal, as in one of the reported cases, he may well be estopped from disputing the force of a judgment obtained in accordance with that agreement. But it is a very different thing to hold that the mere fact of making a contract in a foreign country binds the persons making it to submit any controversy arising under it to the special modes of procedure in force in the place where it was made. The interpretation of the contract is one thing, the enforcement of it is another. The moment the defendant in the 1885-86. BERRY v. SHEAD. present case came to reside in this colony he ceased to be amenable to the jurisdiction of the Courts in Victoria, and all coercive remedies against him for breach of contract could be Martin C.J. had only in our Courts so long as he remains here and does not visit Victoria. The process of all other Courts than our own he is entitled in the absence of express agreement to ignore; and it cannot on any rational principle be held that the fact of the contract being made in Victoria gives the Courts of that colony power to serve their process in this. In no case can such process so served be anything more than a mere notice, which may be obeyed or not at the will of the party served with it. Under such circumstances we cannot regard a judgment by default obtained after such a notice as one which we ought to enforce. If it be said that the course taken by the defendant in withdrawing himself from the jurisdiction of the Courts of the colony where he contracted the debts ought to be a ground for granting the present application, it is a sufficient answer to say that his bad conduct cannot be regarded as a reason for allowing a foreign tribunal to coerce a resident in the colony into appearing before it. The proper course for the foreign creditor to take is to follow his absconding debtor, and sue him in the Court which has jurisdiction over him. Faucett J. For these reasons, on both the grounds taken, I am of opinion that the application should be dismissed. FAUCETT, J. I agree with his Honour the Chief Justice that the application in this case must be dismissed on the technical grounds stated by him; but as his Honour has given his opinion upon the general and more important question that has been argued, I think it right to give my opinion also. The facts, as collected from the affidavits, and about which there is really no dispute, are these:-The respondent Shead resided with his wife and carried on business as a storekeeper at Silver Creek, in the colony of Victoria. While so resident and carrying on business he became indebted to Henry Berry, the present applicant, upon two bills of exchange for the price of goods sold and delivered, &c. After he had so become indebted he left the colony of Victoria and came to this colony, BERRY SHEAD. Faucett J. travelling under an assumed name, and eventually went to 1885-86. Gosford in this colony, where, upon enquiries instituted by Berry, he was found living with his wife on a piece of land which he said he had purchased, and where he was carrying on the business of a baker. Berry then caused a writ of summons, such as under the Victorian law is used for service out of the colony, to be issued out of the Supreme Court of Victoria against Shead. The writ was served personally on Shead at Gosford; but he did not appear to it, and in due course judgment was entered up against him. The plaintiff, Berry, having filed a memorial of the Victorian judgment in this Court, now applies, under statute 19 Vic. No. 12, for leave to issue execution upon it here. The memorial is irregular in form, but for the purposes of the present question I assume that it is regular. Assuming then-as indeed has been throughout admitted— that the Supreme Court of Victoria has, as this Court has, power by statute to issue a writ to be served on a defendant out of the jurisdiction, and that all the proceedings in the case from the service of the writ to the entering up of the judgment were regular and in accordance with the law of Victoria, it is contended for the defendant that we ought not to allow the judgment to be enforced, on the ground that when the writ was issued out of the Supreme Court of Victoria the defendant was, and ever since has been, resident in this colony, and therefore not amenable to the process of that Court. Two cases decided in our Court are relied on as being in favour of the defendant, viz.: Warner v. Fischer (2); and The Brisbane Oyster Company v. Emerson (3). These cases, I think, are distinguishable from the present case. In the first the defendant never had any notice of the proceedings, and the proceedings were consequently treated as being contrary to the principles of natural justice; that case, therefore, has scarcely any applicability to the present case. In the second case, which comes nearer to the present, the defendant, while temporarily on a visit in Queensland, made a contract with the plaintiffs. On his return to Sydney, were he had resided for several years, the plaintiffs commenced an action on the contract in the Supreme Court of Queensland, and served the defendant with the writ of 1885-86. summons in Sydney, where he was residing. The defendant did not appear to the writ, and the plaintiffs obtained judgment. This Court refused to direct execution to issue on the memorial Faucett J. of the judgment filed in this Court. BERRY v. SHEAD. In the present case we have the additional circumstance that the defendant had been resident, and had been carrying on business in Victoria, and when he made the contract in question and incurred liability upon it-in other words, when the obligation arose was not on a temporary visit, but was still resident and carrying on business there. The question to be considered is, whether that circumstance will make any difference in the result. No case has been found in which the same state of facts existed, and we have therefore no actual decision upon the question. In Schibsby v. Westenholz (4), and Godard v. Gray (8), the case preceding it in the same volume, it was considered on what principles and in what circumstances a foreign judgment would be enforced, or rather might be sued on in the English Courts. Instead of saying that the English Courts enforce foreign judgments through a regard for what is called the comity of nations," or that they refuse to enforce them on the ground of a supposed invasion of national rights by the foreign Courts or foreign States, the judges say (p. 159) that "the true principles on which the judgments of foreign tribunals are enforced in England is, that the judgment of a Court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the Courts in this country are bound to enforce; and consequently that anything which negatives that duty, or forms a legal excuse for not performing it, is a bar to the action." The question is thus brought within very narrow limits, namely, whether the foreign tribunal had jurisdiction over the defendant was the defendant such a person as to be bound by the judgment, which it is sought to enforce? If such be the case then the English Courts when called upon will enforce the judgment. Accordingly, in p. 161, Blackburn, J., in delivering the judgment of the Court, says :-" Now, in this we think some things are quite clear in principle. If the defendants had been |