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in the Tewkesbury & Malvern Rail. Co., in respect of which Issue as to
ownership the Midland Rail. Co. have paid £1200 and £11 16s. into
of shares. Court.
2. That they are entitled to be registered as the holders of the said shares.
3. And that the said sums of £1200 and £11 16s, are the property of the plaintiffs as against the defendants.
And the defendants affirm, and the plaintiffs deny :
1. That they (the defendants) are the holders, or one of them is the holder of the said shares.
2. That they are entitled to be registered as the holders, or one of them is entitled to be registered as the holder of the said shares.
3. And that the said sum of £1200 and £11 168. are the property of the defendants, or one of them, as against the plaintiffs.
And it has been ordered by the Honourable Mr. Baron Huddleston that the truth of the matters aforesaid shall be tried by a jury in Middlesex.
Therefore let a jury come, &c.
Interpleader Issue on Claim to Goods seized by Sheriff.
The 8th day of December, in the year of our
Lord, 1877. London, E.C. affirms and S. M. and C. M. deny that certain Issue as to to wit. goods or chattels and effects in and about certain ownership
of goods rooms and premises in the occupation of N. G., situate and taken in being at —, in the city of London, seized in execution by
execution. the sheriffs of London under a writ of fieri facias dated the twenty-eighth day of November, one thousand eight hundred and seventy-seven, and issued out of the Queen's Bench Division of the High Court of Justice, directed to the said sheriffs for the having of execution of a judgment of that Court, recovered by the said S. M. and C. M. in an action at their suit against the said N. G., were at the time of the said seizure the property of the said E. C. as against the said S. M. and C. M. And it has been ordered by the Honourable
Issue on claim to goods seized by sheriff.
Mr. Justice Lush, pursuant to the statutes in that behalf, that the truth of the matters aforesaid shall be tried by a jury.
Therefore let a jury come, &c.
Issue on adverse claims to the same property.
Interpleader Issue on Adverse Claims to the same Property.
The 28th day of December, in the year of our
to wit. SP. S. and A. Company, Limited, deny that the said R. B. F. is entitled as against the said P. S. and A. Company, Limited, to certain goods, videlicet, 6000 iron bars, weighing 96 tons, which were delivered by the said company to the L. and N. W. Railway Co. for conveyance from their station at W., in the county of S., to their P. station, in the county of M., to be delivered to the order of one H. L., No. 95, H. Street, London. And it has been ordered by the Honourable Mr. Justice Field, pursuant to the statutes in that behalf, that the truth of the matters aforesaid shall be tried by a jury.
Therefore let a jury come, &c. ·
Action on a foreign judgment.
Judgments (a). Action on a Judgment obtained in the Isle of Man. 1. The plaintiffs in this action are T. K., surviving partner of the firm of C. & K., and L. W., administrator of the estate of the late J. C., formerly a member of the said firm.
(a) Before the Judicature Acts came into force, actions on judgments of a Court of record must have been brought in the county where the Court which the record was enrolled was situate, the reason being that the venue was local. See now, however, Order XXXVI. r. 1, which
abolishes the old rule as to local venue, and ante, p. 93. On what
An action lies on the judgment of an inferior Court other than a judgments, County Court. (Berkeley v. Elderkin, 22 L. J. Q. B. 281.) “Prima &c., an
facie, an action will lie on the judgment of any court of competent action jurisdiction.". Ibid. Per Lord Campbell, C. J. An aotion did not will lie. in general lie on the decree of a Court of equity. As under the
Judicature Acts there are now no separate superior Courts, but only divisions of the High Court, that doctrine will no longer be held to apply. An action lies on the decree of a colonial Court of equity. (Henderson v. Henderson, 6 Q. B. 288.) No action lies on a Judge's order or rule of Court. (Hookpayton v. Bussell, 10 Ex. 24 ; Sheehy V. Professional Life Assurance Co., 26 L. J. C. P. 301.) But an action will lie on an agreement, though an order is superadded. (Lievesley v. Gilmore, L. R. 1 C. P. 570 ; 35 L. J. C. P. 351.)
In the case of judgments recovered in a foreign or colonial Court, the 2. The defendant is a coach builder carrying on business On a
plaintiff may sue either on the judgment or the original cause of action. (Hall y. Odber, 11 East, 118. And see per Tindal, C.J., in Smith v. Nicholls, 5 Bing. N. C. 208, 221 ; Bank of Australasia v. Harding, 9 C. B. 661.)
A statement of claim in an action on the judgment of a foreign Court need not state that the Court had jurisdiction over the parties or the cause, as every presumption is made in favour of foreign judgments (Robertson v. Štruth, 5 Q. B. 941; Henderson v. Henderson, 6 Q. B. 288.)
As to the mode of proving foreign and colonial judgments, see 14 & 15 Vict. c. 99, s. 7.
The 43 Geo. 3, c. 46, s. 4, provides that in actions on judgments the Plaintiff plaintiff shall not recover or be entitled to any costs, unless the Court or suing on a judge thereof shall otherwise order. Such an order will not, as a rule, judgment be made where the plaintiff could have realized the amount of his judg. not enment by execution. (Chitty's Precedents, 18th ed., 493.) The above titled to provision does not apply to an action on a judgment and also on a dis- costs with. tinct cause of action ; and in such a case, if the plaintiff succeeds, he out order does not require an order for his costs under this statute. (Jackson v. of the Everett, 31 L. J. Q. B. 59.)
Court. Defences. The following are the most usual defences in actions on judgments :- Defence
Nul tiel record.]—This is an assertion by the defendant that there was that the no such judgment
as that set forth. If there is a judgment but its effect judgment is misdescribed in the statement of claim, it would not be wise to rest in sued on a simple denial of its existence ; but the defendant should deny the does not allegation in the statement of claim, except so far as related to the exist. recovery of a judgment by the plaintiff against the defendant, and then state that its effect was wrongly described, and in what respect.
Payment.] - By the 4 & 5 Anne, c. 16, s. 12, "Where any action of Of pay. debt shall be brought upon any judgment, if the defendant has paid the ment. money due thereon, such payment may be pleaded in bar of the action.” Such a defence could not have been set up before the statute, as the payment was a matter in pais, which could not be pleaded to matter of record. Of course such a defence is now available, only the mode of stating it has been modified. The statement of defence should simply state the fact of payment, giving as nearly as may be the date. Release.]- This defence could be pleaded in bar before the passing
of Of release. the Judicature Acts. (Barker v. St. Quintin, 12 M. & W. 441.) The date, form, &c., of the release should be set forth in the statement of defence. A debt of record can only be released by deed.
Discharge.]-One defence formerly available on this ground, viz. the arrest of the defendant under a ca. sa., is no longer open to him, imprisonment for debt being now abolished except under certain circumstances. See p. 423.
Where a person is imprisoned for a debt in any of the cases in which he is still liable to arrest, the debt is not discharged.
There can be no defence of accord and satisfaction to this action. (1 Chitty's Pleadings, 9th ed., 464.)
The judg. Matter impeaching ralidity of judgment.]—The defendant is not at ment sued liberty to plead any facts which might have been set up as a defence in on cannot the original action (1 Chitty, 7th ed., 512.) Neither can facts which may be imafford ground for an application to set aside the judgment be raised by way peached on
the merits. p. 732.
3. On or about the 1st day of 1877, in the Isle of Man, in a suit depending between the now plaintiffs and the
The judg. of defence in an action on the judgment. But a matter which would be ment sued a ground for an absolute and unconditional injunction against the conon cannot tinuance of this action, and which even formerly might have been set up be im- as an equitable defence, may be set up as a defence; or the defendant peached on may claim an injunction on the strength of it in his statement of the merits. defence.
Whether the former requirement, viz., that the facts must be such as to be ground for an absolute and unconditional injunction, would now be necessary for the purpose of a defence, it is not easy to determine. This would not, however, apparently be necessary to found a claim to an injunction, as by the 25th section, sub-section 8, of the Judicature Act of 1873, injunctions may be granted, either conditionally or unconditionally, by all the divisions of the High Court.
A matter which is the subject of error cannot be set up as a defence to
an action on the judgment. (Dick v. Tolhausen, 4 H. & N. 695.) This rule The principle already laid down that any matter which could have applies to been set up as a defence on the merits in the original action cannot be foreign pleaded to an action on the judgment, applies to actions on the judgments judgments.
of foreign Courts. (Ilenderson v, Henderson, 6 Q. B. 288; De Cosse Bressac v. Rathbone, 6 H. & N. 301 ; 30 L. J. Ex. 238 ; Munroe v. Pilkington, 31 L. J. Q. B. 81, 89 ; Castrique v. Imrie, 29 L. J. C. P. 321 ; 8 C. B. N, S. 1, 405.)
Neither will a defendant be permitted to defend on the ground that the foreign judgment was erroneous in point of law and on the merits ; or that fresh evidence had been discovered since the judgment, showing it to be erroneous; or for a mistake in the law of the foreign state which the judgment was given (Munree v. Pilkington, 31 L. J. Q. B. 86, 89) ; or that evidence was admitted which would not be admis
sible by English law. (De Cosse Bressac v. Rathbone, supra.) Grounds on A foreign judgment may, however, be impeached on any of the fol. which a lowing grounds, viz. : (1) that the Court had no jurisdiction in respect foreign of the matter of the suit or of the parties (Ferguson v. Mahon, 11 A. & judgment E. 179; and see Robertson v. Struth, 5 Q. B. 941); (2) for errors on the
face of the judgment, and for this purpose the reasons assigned in the impeached. judgment form part of it (Reimers v. Druce, 26 L. J. Chan. 196 ; 23
Beav. 150); (3) for repudiating English law where it was necessary to decide the case (Reimers v. Druce, supra ; Semson v. Fogo, 29 L. J. C. 657 ; Munroe v. Pilkington, 31 L. J. Q. B. 81); (4) that the judgment was contrary to natural justice (Buchanan v. Rucker, 1 Camp. 63); (5) that the judgment was not final and conclusive (Patrick v. Sheddon, 2 E. & B. 14 ; Frayes v. Worms, 10 C. B. N. S. 149; Plummer v. Woodburne, 4 B. & C. 625); (6) that the defendant was not summoned, and had no notice of the proceedings (Buchanan v. Rucker, supra ; Reynolds v. Fenton, 3 C. B. 187). It was laid down in Schibby v. Westenholz, L. R. 6 Q. B. 155, that a judgment of a foreign Court obtained in default of appearance against a defendant, cannot be enforced in an English Court where the defendant, at the time the suit commenced, was not a subject of nor resident in the country in which the judgment was obtained, for there existed nothing imposing on the defendant any duty to obey the judgment, (7) That the judgment was obtained by fraud. (Ochsenbein v. Papelier, L. R. 8 Ch. 695.) Other grounds on which foreign judgments may be controverted will be found stated 2 Smith's L. Cas., 7th ed., 823-825. And see Story's Conflict of Laws, 7th ed.,
defendant in the Court of Chancery, being a Court of the said on a Island duly holden at C., and having jurisdiction in that foreign
judgment. behalf, the plaintiffs recovered against the defendant by the judgment of the said Court, and according to the laws of the said Island, the sum of £200, with interest thereon from the 3rd day of December, 1877, until payment, and the amount of taxed costs of the suit, which sums of money, interest, and costs the defendant was by the said Court adjudged and ordered to pay.
4. The said judgment is still in force and unsatisfied. The plaintiffs claim :
Statement of Defence. 1. As to paragraph 3 of the statement of claim, the de- Defence. fendant denies that the said Court of Chancery was a Court duly holden and having jurisdiction as alleged.
2. As to paragraphs 3 and 4, the defendant says that the said action was commenced according to the laws then and still in force in the said Isle of Man, by process and summons, and that the defendant was not at the time of the commencement thereof or for many years previously, namely, for ten years or thereabouts, domiciled within the jurisdiction of the said Court, and the defendant was not at any time before the recovery of the said judgment served with any process or summons in the said action, nor did the defendant appear in the said action, nor had he before the recovery of the said judgment any notice or
It has been recently held in Godard v. Gray, L. R. 6 Q. B. 139, that a defendant cannot 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 English law, and that it made no difference that the mistake appeared on the face of the proceedings.
The fact that an appeal is pending against the judgment cannot be Appeal made the ground of a defence to an action thereon, though it can be pending made the ground for staying execution on the judgment in such action. no defence. (Munroe v. Pilkington, 31 L. J. Q. B. 81.).
Formerly, if it was desired to have execution on a judgment obtained in England on property in Ireland or Scotland, or conversely, it could not be done without first bringing an action on the judgment in the country in which it was sought to have execution. Now, however, by 31 & 32 Vict. c. 54, the holder of a judgment in one country can have execution on it by registering it in the country in which he wishes to issue execution.