it. may afford ground for the equitable intervention of an English court (q), to prevent the possible abuse of process of such foreign court, and on proper terms to stay execution in an action brought in England on such foreign judgment, is not a bar to the action itself ().

However, where there is a litigation pending in a foreign court, and instituted there by parties seeking to establish their title to property situated within the jurisdiction of such foreign court, it is contrary to all the rules of the comity of nations, for an English court actively to interfere on behalf of the plaintiffs, bringing an action in an English court to enforce rights respecting such property, and who are or might be parties to the action in the foreign court (s). But nevertheless the question whether a court having ample authority to decide the matter brought before it, should await the expected adjudication of another tribunal, having only similar authority, by a stay of proceedings, is merely one for the exercise of judicial discretion (t).

Co. Rep., vol. iii., 123; Dudfield v. Warden, Fitzgibbon, 313. And as to the practice in staying proceedings, see McHenry v. Lewis, L. R. 21 Ch. D. 202; L. R. 22 Ch. D. 397, and the cases there cited. Some distinction appears to be drawn between the practice applicable in cases in rem and in personam, per Chitty, J.

(q) The Peshawur, L. R. 8 P. D. 32.

(r) Scott v. Pilkington, Munroe v. Pilkington, 4 B. & S. at p. 41.

(s) Norton v. Florence Land & Public Works Co., L R. 7 Ch. D. 332.

(t) Phosphate Sewage Co. v. Molleson, L. R. 1 App. Cas. 780.

CHAPTER VI.

FOREIGN JUDGMENTS IN REM.

THE distinction between judgments in rem and in personam has already been adverted to (a), but in the case of foreign judgments under which property has been sold, it appears to have been, in many cases, a matter of some difficulty to determine whether such judgments should be regarded as judgments in rem or in personam. For instance, in Simpson v. Fogo (b), the judgment of the Court of Louisiana was held to be a judgment in personam, as it only decreed the sale of the mortgagor's interest in the ship, and was a proceeding analogous to an English fi. fa. Now, a sale by a sheriff under a fi. fa. (against A.) of a particular chattel, does not prevent B. from setting up a title to the chattel, either against the sheriff or against the purchaser from the sheriff, and therefore it is properly considered to be a proceeding in personam, whereas a sale, under an order of a Court of Admiralty, of perishable property in their hands, which has been attached, confers a title against all the world (c).

(a) Ante, p. 75.

(b) 29 L. J. Ch. 657; 32 L. J. Ch. 249.

(c) See per Blackburn, J., in

Castrique v. Imrie, L. R. 4 H. L. 414, at pp. 427, 428; and per Lord Hatherley, ibid, pp. 442,

443.

Again, in Cammell v. Sewell (d), there was a difference of opinion amongst the judges as to whether the sale in Norway was a proceeding in rem or in personam. The judges of the Court of Exchequer held that it was a proceeding in rem. The judges of the Court of Exchequer Chamber, however, held it to be a proceeding in personam, as they were not satisfied that the proceeding at the auction was a judicial proceeding, although it appears to have been treated as such by the law of Norway (e). On the other hand, in Castrique v. Imrie (ƒ), the sale under an order of the French court, was held to be a proceeding in rem. And in the latter case, Blackburn, J., in the course of his judgment in the House of Lords (9), made some valuable remarks, in which he points out what are the necessary criteria for determining in cases of this kind, whether the transaction operates in rem or in personam. After stating the difference that exists between judgments for the sale of property by tribunals which have jurisdiction merely over the rights of the parties, and by tribunals which have jurisdiction to determine, not merely the rights of the parties, but the disposition of the property itself, he says, that to constitute a judgment in rem in a case of this kind, it is not essential that there should be an actual adjudication

(d) 3 H. & N. 617; 5 H. & N. 728.

(e) Byles, J., however, in his judgment in the Exchequer Chamber (5 H. & N. 728), pointed out that the sale under the alleged law of Norway may be distinguished from a sale in Eng

land (a.) of a stranger's goods under a distress for rent, (b.) in market overt, as it was an international and not a domestic transaction.

(ƒ) L. R. 4 H. L. 414.

(9) L. R 4 H. L. 414, at pp. 427, 428.

upon the status of the thing. He then cites a passage from Story's Conflict of Laws (h), as follows:

"The same principle (viz. that a judgment in rem is conclusive) is applied to all other cases of proceedings in rem, against movable property, within the jurisdiction of the Court pronouncing the judgment. Whatever the

Court settles as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer, or other act, will be held valid in every other country, where the same question comes directly or indirectly in judgment before any other foreign tribunal. This is very familiarly known in the cases of proceedings in rem in foreign courts of admiralty, whether they are causes of prize, or of bottomry, or of salvage, or of forfeiture (2), or of any of the like nature over which such courts have a rightful jurisdiction, founded on the actual or constructive possession of the subject matter (res)." He then says: "We may observe that the words as to an action being in rem or in personam, and the common statement that the one is binding on third persons, and the other not, are apt to be used by English lawyers without attaching any very definite meaning to those phrases. We apprehend the true principle to be that indicated in the passage from Story. We think the inquiry is, first, whether the subject matter was so situated as to be within the lawful control of the State, under the authority of which the Court sits, and secondly, whether the sovereign authority of that state

(h) (7th ed.) § 592.

(i) Or by damage by collision. See a paragraph inserted by the

last editor of Story, and reference in note thereto.

has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world" (k).

An exception to the conclusiveness of foreign judgments, which may be noticed here, arises in the case of foreign criminal proceedings. Thus it has been laid down (7) that crimes are in their nature local, and the jurisdiction of crimes is local. And similarly Lord Loughborough, in another case (m), says, "The penal laws of foreign countries are strictly local, and affect nothing more than they can reach, and can be seized by virtue of their authority; a fugitive who passes hither comes with all his transitory rights; he may recover money held for his use, stock, obligations, and the like; and cannot be affected in this country by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend.”

Thus, in a case in Chancery, where defendant, a foreigner sojourning in this country, declined to produce certain documents, on the ground that their production

(k) As to the nature and effect of proceedings in rem, see also the judgment of Jervis, C. J., in The Bold Buccleuch, 7 Moore's P. C. 267; and as to whether the decree of a foreign court, declaring the status of a person, and placing him or her, as an idiot or prodigal, under guardianship, should be treated as a judgment in rem or not, see Story's Conflict of Laws (7th ed.), § 594, p. 740, and

references there given.

(1) Per De Grey, C. J., in Rafael v. Verelst, 2 Sir W. Bl. at p. 1058.

(m) Folliott v. Ogden, 1 H. Bl. 123, at p. 135; see also Buller, J., in Ogden v. Folliott, 3 T. R. at pp. 733, 734; per Lord Ellenborough in Wolff v. Oxholm, 6 M. & S. 99; and Warrender v. Warrender, 2 Cl. & Fin. 488.