Puslapio vaizdai

a right of suit, there are some domestic enactments which seem to render foreigners or foreign corporations amenable to their jurisdiction.

By our own Rules of Court jurisdiction has been assumed in several cases which would seem to depart from the principle of territorial jurisdiction. But wherever this occurs, then, although our Courts are bound by them (Ellis v. McHenry, L. R. 6 C. P. 228) and have jurisdiction to entertain the claim and to pronounce a judgment, yet it cannot be doubted that if the facts proved at the trial indicate to the Court that the real foundation of jurisdiction is wanting, the action would be dismissed. "The Legislature" (to quote the language of Lord Selborne, L.C., in Berkeley v. Thomson, 10 App. Cas. at p. 53) "has not said that a process served under the 4th section (of the Bastardy Act) is to give jurisdiction where there is no jurisdiction without it." See Pennoyer v. Neff, 95 U. S. 714, at p. 727.

The rules are rules of procedure only and are not intended to affect, and do not affect, the rights of parties: British South African Co. v. Compagnie Mocambique, [1893] A. C. 628.

For example, an action might well be brought against a foreigner under our Rule 162 (e) because a breach of a contract to be performed in this Province has occurred within it. But if it were proved that the parties were both foreigners and had in the contract provided that they would be bound only by the jurisdiction of the French Courts, or that by the law of the foreign country where both parties were resident its Courts had sole jurisdiction over them and their contracts (if made there), then it is conceived that the Court would hold that its jurisdiction was ousted.

If a judgment based on service under such a rule were pronounced or were obtained by default, then it would be open to question when proceeded upon elsewhere. Such has been the action of the New York Courts regarding such judgments, as appears from Shepherd v. Wright, 113 N. Y. 582.

Foreign judgments are only treated as evidence of a duty or obligation to pay the amount, and, as was said by Parke, B., in Russell v. Smyth, 9 M. & W. at p. 819, the Court which has to consider the effect of such service may receive evidence

of anything which negatives the duty or forms a legal excuse for not performing it.

The stream can rise no higher than its source, and if the Legislature of Ontario cannot adopt legislation affecting or binding aliens abroad, then it can confer no jurisdiction on its Courts to bind them by a judgment. It can and does, however, arm its Courts with sufficient jurisdiction to notify aliens abroad of proceedings taken against them, which, under some circumstances, it thinks ought to be determined in its Courts. But, if the jurisdiction thus conferred is not submitted to, its exercise is futile.


In respect to the different Provinces of the Dominion, the matter is slightly, though not fundamentally, different. All Canadians are British subjects, but though not aliens, are, if resident outside this Province, foreigners, in the sense of being outside the jurisdiction of our Courts. While an Act of the Imperial Parliament may give a Court jurisdiction over British subjects wherever they are, and while Acts of the Parliament of Canada will bind Canadians in the same way, the same cannot be said of the Acts of any Provincial Legislature as affecting the residents of any other Province. For the purposes of contract and suit they are foreign, and must be treated just as if they resided in a different country. Provincial jurisdiction in such matters is derived from the B. N. A. Act, and is confined to "Property and civil rights in the Province and to the administration of justice in the Province, including the constitution, maintenance, and organization of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those Courts."

It would be an innovation to hold that a resident of Quebec could be sued in Ontario for a tort committed in Quebec, merely because he was a Canadian. But he can be sued in Ontario for a tort committed here by virtue of our Rules. He is treated as subject to jurisdiction only because he has, when within this jurisdiction, committed an unlawful act causing damage here an act for which in his own Province he could not be made amenable, unless it were unlawful there -and thus giving rise to a breach of civil right in Ontario.

There seems no real difficulty in holding that each Province is a separate sovereignty, without power to affect those Canadians living outside its limits, except so far as international law warrants it. This is now the opinion of a Divisional Court in Ontario: Deacon v. Chadwick, 1 O. L. R. 346.

The modern view of the Canadian constitution is in favour of regarding each Province, as to its property and civil rights, as an independent state when contrasted with the Federal jurisdiction. It is only a natural extension of this well accepted principle to treat the inhabitants of the different Provinces as foreigners, in a legal sense, in relation to each other.

It is, of course, the only practical solution of the question of Provincial jurisdiction. It would be intolerable if the civil code of Quebec ran in this Province merely because we lived under the same flag and were British subjects. Those facts would make the Scotch and Irish subject to English law, and liable to suit anywhere in England. But though constituent members by representation of the Imperial Parliament these nationalities are preserved from undue inconvenience by statutes of that Parliament. Instances of this recognition of the rights of different provinces or kingdoms will be found in the following cases: McArthur v. Macdonnell, 3 Man. L. R. 9; Braun v. Davis, 9 Man. L. R. 534; Tottenham v. Barry, 12 Ch. D. 797; Hawkesford v. Giffard, 12 App. Cas. 122 (where an English judgment was treated as a foreign one in the Courts of the Channel Islands); Robey v. Snaefall Co., 20 Q. B. D. 152; New Zealand Loan Co. v. Morrison, [1898] A. C. 349 (in which it is stated that proceedings in an English Court are proceedings in a foreign Court so far as the Victorian Courts are concerned). See also Bateman v. Service, 6 App. Cas. 386, and Dominion Cotton Mills Co. v. General Engineering Co., [1902] A. C. 570.


If, therefore, the jurisdiction as between the several Provinces over their respective inhabitants is to be settled upon the principles of private international law, it will be easier to examine and come to a conclusion as to what Provincial laws apply to contracts which affect individuals or corporations resident or doing business in different Provinces, and

[ocr errors]

to what extent their provisions are annexed to such contracts. It may be premised that where the Court in any particular Province is accepted by both parties as having jurisdiction to enforce the remedy on a contract, there are certain laws of that Province to which all parties must submit. These are stated with some particularity in Don v. Lippman, 5 Cl. & F. 1 and 14. to be those of practice, procedure, evidence, and limitations.

In Huber v. Steiner, 2 Bing. N. C. 202, it is expressed thus: So much of the law as affects the rights and merits of the contract and all that relates ad litis decisonem is adopted from the foreign country, and so much of law as affects the remedy only and all that relates ad litis ordinationem is taken from the lex fori where the action is brought-and the laws of limitation belong to the latter.

There is a qualification suggested that if the limitation statute extinguish not only the right of action, but the claim or title itself ipso facto, and declare it a nullity after the lapse of the prescribed period, and the parties are resident within the jurisdiction during all that period, so that it has actually operated, it becomes part of the construction of the contract.

In Ferguson v. Fyffe, 8 Cl. & F. 121, the principle is thus summed up. The law of the country where the contract is made or is to be performed furnishes the rule for expounding the nature and extent of its obligations. But the law of the country where it is sought to enforce it governs all questions of remedy and the mode of procedure, including the lapse of time.


But in the working out of the rights of the parties in that forum questions arise as to the validity and construction of the contract, the duties and obligations and the rights and remedies of the litigants, which are difficult of solution. In fact the test given as to what law applies to a contract between residents of separate states, where different systems of law prevail, is in itself the best illustration of the confusion attending this subject. It is "the intention of the parties in view of all the surrounding circumstances." Lord Herschell,

in Hamlyn v. Talisker, [1894] A. C. at p. 207, says: "Where a contract is entered into between parties residing in different places, where different systems of law prevail, it is a question, as it appears to me, in each case, with reference to what law the parties contracted, and according to what law it was their intention that their rights either under the whole or any part of the contract should be determined. In considering what law is to govern, no doubt the lex loci solutionis is a matter of great importance. The lex loci contractus is also of importance. In my view they are both matters which must be taken into consideration, but neither of them is, in itself, conclusive, and still less is it conclusive, as it appears to me, as to the particular law which was intended to govern particular parts of the contract between the parties. In this case, as in all such cases, the whole of the contract must be looked at, and the rights under it must be regulated by the intention of the parties as appearing from the contract. It is perfectly competent to those who, under such circumstances as I have indicated, are entering into a contract, to indicate by the terms which they employ, which system of law they intend to be applied to the construction of the contract, and to the determination of the rights arising out of it."

In South African British Brewers Co. v. King, [1899] 2 Ch. 173, [1900] 1 Ch. 273, is found an illustration of the minute circumstances which must be considered in determining the intention of the parties.

See also Spurrier v. LaCloche, [1902] A. C. 446, in which there is no mention of the suggestion, apparent from the language of Lord Herschell and Lord Ashbourne [in Hamlyn v. Talisker], that the law of intention applied to one whole contract may vary as to particular parts of it. No such distinction is apparent in any other decision.


If, however, it be once settled that the law of one Province governs the contract and must be applied to it by the Court, other and scarcely less difficult problems arise. To take a concrete example. An insurance company issues its policy in Ontario in favour of the insured in Manitoba. The policy is payable to the insured's estate. While in Manitoba he

« AnkstesnisTęsti »