Puslapio vaizdai
[merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small]
[ocr errors]

Entered according to Act of the Parliament of Canada, in the year one

thousand nine hundred and four, by THE CARSWELL COMPANY, Limited, in the office of the Minister of Agriculture.

R 2 4 1969



JANUARY, 1903.




HE suing of an individual or a corporation in a foreign country involves less inconvenience now, owing to the facilities of travel, than formerly. On the other hand, in the vast increase of business, it may affect many more people. While the discomfort attending a suit in a foreign country will never disappear, yet the phase which on this continent gives more trouble to the lawyer than any other, is that the legislation of the country in which the action is brought may prove much different, if not more onerous than the home enactments. For this reason, it is of great importance to know how far contracts entered into in one of the Provinces of the Dominion are enforceable outside its jurisdiction, and by what law they are governed.

Jurisdiction, as stated by Lord Watson in Hamlyn v. Talisker, [1894] A. C. 202, is a pre-judicial question. When it is established, certain consequences follow the recognition of the right of the Court to enforce the contract.


The prime fact may be said to be that residence within the territorial limit gives jurisdiction. Thus in Re Busfield, 32 Ch. D. 123, Lord Justice Cotton makes this remark, p. 131: "Service outside of the jurisdiction is an interference with



the ordinary course of the law, for generally Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction."

In a later case, Sirdar Gurdyal Singh v. The Rajah of Faridkote, [1894] A. C. 670, at p. 683, the Judicial Committee laid it down that all jurisdiction is properly territorial, and that territorial jurisdiction attaches, with special exceptions, upon all persons either permanently or temporarily resident within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory, and in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. They further state that "in a personal action to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorized by special local legislation) in the country of the forum by which it was pronounced."

See Pennoyer v. Neff, 95 U. S. 714; Rand v. Hanson, 154 Mass. 87; Deacon v. Chadwick, 1 O. L. R. 346.

There is one exception to that doctrine, and that is, that foreigners or foreign corporations may be sued here if they submit to the jurisdiction, but it has been pointed out that while the parties cannot by their agreement give jurisdiction which the Court does not possess itself, yet a contract may be made to provide for the jurisdiction of the Courts of a special country, and if that agreement forms part of a contract, the Court will enforce it. The Moxham, 1 P. D. 107, Law v. Garrett, 8 Ch. D. 26, and Johnstone v. Machielsne, 3 Camp. 44, decide that where the parties have chosen a home or foreign Court as their forum, it is the prima facie duty of our Courts to act upon that arrangement.

It may safely be considered that a foreign corporation with a general agent or manager within a Province of this Dominion (whether it is "foreign" in the sense of being incorporated by the Dominion of Canada, or by any other Province, with its head office out of this Province, or because it is formed by a foreign sovereignty) will be considered as resident within the jurisdiction where that general agent lives, or that office exists.

This appears from the following cases: Newby v. Van Oppen, L. R. 7 Q. B. 293; Pattison v. Mills, 2 Bligh N. C. 519; Parker v. Odette, 16 P. R. 69; Re West Cumberland J. & S. Co., [1893] 1 Ch. 713; McArthur v. Cornwall, [1892] A. C. 75; Harris v. Bank of B. N A., 19 P. R. 51; In re Benfield and Stevens, 17 P. R. 300, 339; In re Confederation Life Assn. and Cordingly, 19 P. R. 16, 89.

If it has no office in Ontario or has only an agent with limited powers, the rule is, of course, different: Pritchard v. Standard Ins. Co., 7 O. R. 188; Armstrong v. Lancashire Ins. Co., 3 O. L. R. 395; McArthur v. Macdonell, 1 Man. L. R. 334; Jones v. Scottish Acc. Ins. Co., 17 Q. B. D. 421.

There are to be found in Rousillon v. Rousillon, 14 Ch. D. 351, at p. 371, and in Schibsby v. Westenholz, L. R. 6 Q. B. 155, some more extended details as to the circumstances which may give the Courts of one country jurisdiction.

They are as follows:

1. When the defendant is a subject of that country.

2. When he was resident there when the action was begun. 3. Where he, as plaintiff, has selected the forum in which he is afterwards sued.

4. Where he has voluntarily appeared.

5. Where he has contracted to submit himself to the forum in which judgment was obtained.

6. And (possibly) where he has real estate within the jurisdiction in respect of which a cause of action has arisen while he was within the jurisdiction.


Starting, however, generally, with the proposition that the Courts have territorial jurisdiction only, and that there must be sufficient residence within the jurisdiction to found

« AnkstesnisTęsti »