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ASSUMED JURISDICTION OVER NON-RESIDENT ALIENS. 71
1868, “to render Judgments or Decrees obtained in certain courts in England, Scotland, and Ireland respectively effectual in any other part of the United Kingdom.” Before the passing of this Statute, a Scotch or Irish judgment was treated in the English courts as a foreign judgment; it could only be made effectual in England by bringing an action upon it: now, a certificate of the judgment obtained in one country registered in either of the other countries has the effect of a judgment of the Court in which it is so registered. A very similar provision exists among the Australasian Colonies of Great Britain, known as “The Australasian Creditors' Act.” It is an Act to give further remedies to creditors against persons removing from one Australasian Colony to another, and was passed between 1855 and 1858, in Queensland, New Zealand, Tasmania, South Australia, Western Australia, and New South Wales, and in Victoria in 1865. By this Act a memorial of a judgment under the seal of the Superior Court of one Colony, by being filed in the Superior Court of another Colony, becomes a record of that Colony, and execution may issue thereon.
It is singular that such a wise enactment should not have been copied into the Statute Books of other groups of Colonies, as for example the North American.
The step is not a great one from these two enactments influencing portions only of the kingdom of Great Britain, to a similar enactment binding together all the judicial tribunals which acknowledge the appellate supremacy of the Privy Council and the House of Lords.
The next step is a more difficult one, and one indeed of greater magnitude : from inter-colonial recognition to inter-national recognition. It is at this stage that the difficulties attending assumed jurisdiction over non-resident aliens are felt. To make the system complete this doctrine must sooner or later be recognised. I have insisted on it at various times; it must suffice now to state the proposition shortly :--That it should be left to the discretion of all Legislatures to determine in what cases they consider it expedient to assume jurisdiction over, and pronounce judgment in respect of, an alien defendant not resident within the jurisdiction ; and that the judgment consequent thereon should be upheld and enforced by the Courts of all other countries.
It is a very easy step to replace such a Comity by a Treaty. I venture to indicate what appear to be some of the essential ingredients of such a Treaty, bearing more especially upon this assumed jurisdiction :
The causes of action in which process shall issue out of the jurisdiction should be agreed upon.
The form of process should be settled, care being taken to ensure the defendant receiving some notice of the action.
In case of the defendant not appearing, the plaintiff should be allowed to proceed in the action, and judgment should be allowed to be given in the defendant's absence.
A scale of costs should be drawn up to meet all the circumstances of the case.
The course to be adopted by the successful plaintiff for enforcing his judgment in the courts of the foreign country should be determined; as also the technical proof of the record to be required, and the defences to be admitted.
The defences should not go to the merits of the case; nor to the jurisdiction of the court, assumed in accordance with the Treaty.
Execution should be allowed to issue as on a home judgment.
I look forward with confidence to the existence at no far distant date of such an enactment for the benefit of Great Britain and her Colonies, of such Treaties between England and the great commercial kingdoms of the world.
F. T. PIGGOTT.
V. SELECT CASES: SCOTTISH.
By Hugh BARCLAY, LL.D.
Bankrupt. A partner of a firm was called on for examination; another partner moved that the examination should be postponed or taken in private, because it might prejudice him (the objector) in an approaching criminal trial. The Sheriff refused the motions. Held that he was right, because the Statute ordered the examination to proceed without delay, and under sec. 9 the trustee alone could require the examination to be in private. 7 Dec., 1878. Wright v. Guild, 6 S.C., No. 52, p. 289
Bond of Annuity-Mineral Rent. It was questioned whether the rent of minerals was to be reckoned as part of the rental of an entailed estate. Held that the rent of the minerals was to be taken, and an inquiry into their value could not be allowed. Per Lord Deas: “ Minerals are undoubtedly pars soli. When carried away or consumed a portion of the heritable estate is gone.” “There was a sufficient degree of permanency in the lease to make the rent the measure of the value of the minerals in estimating the value of the annuity to the widow.” 10 Dec., 1878. Christie v. Christie, 6 S.C., p. 301.
Companies Act, 1862–Winding-up. An application by the provisional liquidator before an order for winding-up had been pronounced, to have an action at the instance of a creditor restrained, Refused, because sufficient cause was not shown, and no offer was made for surety against damages. Per Lord Young : “ According to the practice of the English Courts, the customary condition on which restraint is ordered is security for any damage that may be sustained by the party restrained." 13 Dec., 1878. Benhar Coal Co. v. Sime, 6 S.C., p. 316.
Slander-Privilege. Two policemen, when calling at the house of the defender, were informed by her of a theft from a neighbouring house, and she blamed the pursuer as being the thief. In an action for slander the defender denied the words, but pled privilege. Malice and want of probable cause was not averred. The Sheriffs held the words proved, and repelled the plea of privilege and awarded damages. The Court (Lord Young dissenting) Held the words to police officers were privileged, and assoilzied. Per Lord Ormidale: “I have always regarded it as a settled rule, on principle of law, that where an individual gives information or makes a statement to an officer of the law whose duty it is to detect and prosecute criminals, such has the protection of privilege. This is for the best of interests of society, and the repression of crime could not otherwise be enforced. To entitle the pursuer to recover damages it was incumbent on him to establish that the defender acted maliciously and without probable cause." Per Lord Young : “While I agree in holding that the occasion of the alleged defamation was privileged, I am unable to see how the defender was thereby benefited. If she did not make the charge against the pursuer, she has no occasion for the protection of privilege. If she did, I think it is clearly proved that it was a false charge, made maliciously and without probable cause which deserves the protection.'
“ She made a false charge of a serious nature against her neighbour, without any excuse whatever, and without, as she confesses, having any reason to think it true.”' 12 Dec., 1878. Green v. Chalmers, 6 S.C., p. 318.
River-Primary use of Water-Water Closets. The Magistrates of a Burgh disposed to A. a piece of ground with a right to use the water in a mill-lade. B. who possessed houses in the Burgh but not adjacent to the stream, introduced a pipe above A.'s conduit to draw water from the stream for water closets which was thereafter sent down to the sea. Held that B. was not entitled to this use of the water as the use was novel and inconsistent with the grant to A. 13 Dec., 1878. Bonthrone v. Downie, 6 S.C., p. 324.
Bill-Conditional Delivery. A. a foreign correspondent of B. sent him a bill drawn by A. on B. and endorsed to C. with instructions to accept it and give it to C. in exchange for an equal number of bills maturing in C.'s hands. B. gave the bill unaccepted to C. with a written memorandum of the condition ; C. endorsed it to D. for value informing him of the condition and communicating the memorandum. D. sent the bill to B. for acceptance. In an action by D. for delivery of the bill : Held B. was entitled to retain it. Per Lord Shand: “In the general case, admitting of very rare exceptions, if a document is sent to a party for a special purpose and a question arises between the parties as to their respective rights to possession of it, the document must ante omnia be returned to the person who sent it, so that he may be in the position of holding it for whatever legal purpose he may." 18 Dec., 1878. Martini & Co. v. Steel and Craig, 6 S.C., p. 342.
Excise-Penalty. A dealer was convicted of having failed to enter spirits received on four different days and spirits sent out on seventeen different days, three of them on the same days on which he had failed to enter spirits received. Held that these constituted twenty-one distinct offences on each of which a penalty fell to be imposed. A quantity of spirits was found in possession of a dealer extracted by a process called "grogging” by extracting the spirits from the wood of casks. Held, that forfeiture and penalty was incurred for non-entry in a book. 21 Dec., 1878. McIntosh Brothers v. Wilson, 6 S.C., p. 443.
Poor Law-Settlement. A farm servant keeps a house in which his wife and family resided while he worked in neighbouring parishes, returning occasionally to his house. Held that his house was his residence in a question of acquiring and retaining a settlement. 21 Dec., 1878. Simpson v. Kennedy, 6 S.C., p. 446.
Trade Name. Coal was raised from a pit and sold under a certain name, coal raised by another trader from a neighbouring pit was interdicted from using the same name except with a distinction. 15 Jan., 1879. Lochgelly Iron and Coal Co. v. Lumphinnans Iron Co., 6 S.C., p. 482.
Principal and Agent-Usage of Trade. Held that an architect employed to prepare plans for a building has implied authority to employ a surveyor to measure the plans and issue schedules for the use of the tradesmen, and the surveyor if not paid has a good claim against the employer of the architect. Per Lord Gifford: “I think that the architect is a general agent of the employer for all purposes necessary for carrying out the works.” 24 Jan., 1879. Black v. Cornelius, 6 S.C., p. 581.
Arbitration-Disqualification of Arbiter. In a contract for works the engineer was named as arbiter. During the progress of the works he reported grounds of