8. 5. CH. XXIII. it accrued upon a specialty), it will be a good defence, that he has already recovered judgment against the defendant for the same cause of action (y). Judgment County Court judgments. Joint debtors. Kendall v. Sometimes a judgment for principal money merges on covenant to pay interest; but this depends on the construction, whether the covenant to pay interest is incidental or independent (z). Judgment recovered in a County Court, is a good defence to an action in the High Court, for the same cause (a); and if the plaintiff has sued in the County Court, and, to bring the case within the jurisdiction of that Court, has abandoned part of his claim judgment recovered in that suit, will be a bar to any action to recover the part so abandoned (b). But, to a plea of judgment recovered in an inferior Court, it is a good answer, that the cause of action was one over which the Court had no jurisdiction (c). Again: a judgment, even without satisfaction, recovered against one of several partners, or other joint debtors, is a good bar, both at law and in equity, to an action against the other (d), and even the consent of one joint debtor against whom judgment has been signed to such judgment being set aside, will not enable the plaintiff to evade this rule, and have his writ amended by adding another joint debtor as defendant (e). So, where the declaration in the first action was framed so as to admit of evidence of debts then existing, but which were sought to be recovered in a second action, and the defendant had suffered judgment by default in the first action; it was held that, as against the plaintiff, it was to be presumed that he had recovered such debts in that action (f). And where a precise issue is joined between the parties, and a verdict is found thereon, the judgment on such verdict will be a bar to a second action for the same cause, although the party against whom the issue was found, offered no evidence in support thereof at the trial of the former action (g). (y) Id. (z) Ex parte Fewings (1883), 25 Ch. D. (a) Austin v. Mills (1853), 9 Exch. 288; and see Webster v. Armstrong (1885), 54 L. J., Q. B. 236. (b) Vines v. Arnold (1849), 8 C. B. 632. (c) Briscoe v. Stephens (1824), 2 Bing. 213; and see Webster v. Armstrong (1885), 54 L. J., Q. B. 236, where defendant's judgment or counterclaim exceeding County Court jurisdiction, he was held not estopped from pursuing in High Court. (d) Kendall v. Hamilton (1879), 4 App. Cas. 504; but see further WeggProsser v. Evans, [1895] 1 Q. B. 108, C. A., and Ch. V., sect. 9 (b), ante. (e) Hammond v. Schofield, [1891] 1 Q. B. 452. (f) Lord Bagot v. Williams (1824), 3 B. & C. 235. (g) See Eastmure v. Laws (1839), 7 Scott, 461, 471; Outram v. Morewood (1803), 3 East, 346; 7 R. R. 473. s. 5. Judgment Recovered. So, judgment recovered in a Consular Court, and payment of CH. XXIII. the sum recovered, is a good bar to the same cause of action (h). And it has been held, that if the assignee of a debt recover judgment in a foreign country, by the law of which such assignee may sue for the debt in his own name, such judgment will be a good bar to an action brought in this country for the same debt, at the suit of original creditor (i). When colo When parties have once litigated a matter, the same parties Estoppel by cannot again relitigate the same matter; and this is a substantial record. doctrine, independent of the question of its being "matter of record," and depends on interest reipublicæ ut sit finis litium (k). But, in general, a judgment in a foreign or colonial Court does not operate as a merger of the original cause of action; and it is not, even primâ facie, a bar to an action, brought by the same plaintiff for the same cause, in the Courts of this country; unless the pleadings show, that such judgment would be final and conclusive in the place where it was pronounced (1). So, if it appear that the plaintiff could not recover full compensation on the record in the former action, a verdict and judgment in such action will be no bar to a second action for the same cause (m). If the ground of the former verdict was, that the action was prematurely brought, -as in the case of an action brought for the price of goods, sold upon a credit which has not expired,—such verdict will not prevent a recovery in a subsequent action for the same cause, which is brought in due time (n). So where, in an action on contract against an administratrix, she pleaded in abatement that others were jointly liable, but failed to prove her plea; and the plaintiff, in consequence thereof recovered a verdict with 18. damages; it was held that such verdict did not bar the plaintiff from recovering against the other contractors (o). (h) Barber v. Lamb (1860), 8 C. B., N. S. 95. (i) Thompson v. Bell (1854), 3 E. & B. 236. (k) See Serrao v. Noel (1885), 15 Q. B. D. 549, C. A.; Priestman v. Thomas (1884), 9 P. D. 210, C. A.; Houstoun v. Sligo (Marquis of) (1885), 29 Ch. D. 448, C. A.; Caird v. Moss (1886), 33 Ch. D. 22, C. A.; Gandy v. Gandy (1885), 30 Ch. D. 57, C. A.; Concha v. Concha (1886), 11 App. Cas. 541. (Smith v. Nicholls (1839), 7 Scott, 147, 169, recognising Plummer v. Woodburne (1825), 4 B. & C. 625; Bank of Australasia v. Harding (1850), 9 C. B. 661; Same v. Nias (1851), 16 Q. B. 717; and see Godard v. Gray (1870), L. R., (m) Florence v. Jenings (1857), 2 C. B., (n) Palmer v. Temple (1839), 9 A. & E. 508, 521. (0) Godson v. Smith (1818), 2 Moore, 157; 19 R. R. 553. nial or foreign judgment is no bar. Other cases in which judg ment re covered is no bar. CH. XXIII. s. 5. Judgment Recovered. Effect of judgment for defendant. Judgment on So where one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered: it was held, in an action of covenant against the three, that such judgment was no defence: for though it was stated in the plea that the bill was given in satisfaction of the debt, it was not averred that it had been accepted in satisfaction, or that it had, in fact, produced it (p). And a judgment recovered against one of two joint and several debtors, is no bar to an action against the other, unless such judgment has been satisfied (q). If the plaintiff has previously sued the defendant upon the same supposed causes of action, and judgment has been given for the defendant in that suit, the plaintiff cannot have a second action for the same cause (r); and, in such case, the former judgment operates against the plaintiff as an estoppel (s). So, where a verdict passes against a defendant upon a plea of plea of set-off, set-off, or counter-claim, he is estopped from setting up the same demand in a fresh action (t). or counter claim. Judgment for one of several joint debtors. Foreign judg ment in personam, how when action brought thereon in this country. But judgment recovered by one of several joint debtors, is not a defence to a subsequent action against the others, unless it be shown that the judgment was recovered on a ground which operated as a discharge of all (u). Considerable doubt was formerly entertained on the question, whether a judgment recovered in a foreign Court is conclusive far conclusive, between the parties, or is subject to be re-agitated, in an action brought thereon in the Courts of this country (x). But the rule may now be taken to be ;-that if a question has been decided by such a Court, in a proceeding in personam, between parties properly brought before it, this will preclude an inquiry in our Courts, between the same parties, into the merits of the case, upon the facts so found; for this reason, that whatever constituted a defence in the foreign Court, ought to have been pleaded there (y). But a judgment obtained in a foreign Court in default of appearance against a defendant who is neither a subject of nor (p) Drake v. Mitchell (1803), 3 East, 251; 7 R. R. 449. (q) King v. Hoare (1844), 13 M. & W. 494; Lechmere v. Fletcher (1833), 1 C. & M. 623, 635. (r) Overton v. Harvey (1850), 9 C. B. 324, 337; and see Vin. Abr. tit. Judg ment (Q. 4); per North, C.J., Lampen v. Kedgewin (1676), 1 Mod. 207. (8) Vooght v. Winch (1819), 2 B. & Al. 662. (t) Eastmure v. Laws (1839), 7 Scott, 461. (u) Phillips v. Ward (1863), 2 H. & C. (x) Per Tindal, C.J., Smith v. Nicholls (1839), 7 Scott, 147, 167. (1) See per Cur., Bank of Australasia v. Nias (1851), 16 Q. B. 717, 737; Henderson v. Henderson (1844), 6 Q. B. 288, 298, 299; and see Ricardo v. Garcias (1845), 12 C. & F. 368, H. L.; Cammell v. Sewell (1858), 3 H. & N. 617; 5 id. 728; Simpson v. Fogo (1860), 29 L. J., Ch. 657; Imrie v. Castrique (1860), 8 C. B., N. S. 405, Ex. Ch. ; In re Trufort (1887), 36 Ch. D. 600; Concha v. Concha (1886), 11 App. Cas. 541; and see Piggott on Foreign Judgments. resident in the country of the forum, will not be enforced in England (2), aliter if such defendant voluntarily submit himself to the jurisdiction (a). Nor is the pendency of an appeal in the foreign Court, a bar to an action on the judgment, in the Courts of this country (b). But it is a good defence to an action on a foreign judgment, that it was obtained by fraud (c). So, if it appear on the face of a foreign judgment, that the foreign law, or some part of the proceedings of the foreign Court, is repugnant to natural justice, such judgment will not be conclusive between the parties in this country (d); and where it was admitted by the parties, that the law of the foreign tribunal had not been correctly declared by its judgment, it was held that such judgment was not binding on an English Court (e). CH. XXIII. s. 5. Judgment Recovered. ment in rem. If the proceeding in the foreign Court be in rem, e.g., in the Foreign judg case of the condemnation of a ship, by the sentence of a foreign Court of Admiralty of competent jurisdiction,-this is binding upon all parties, and in all countries, as to the existence of the facts upon which the condemnation proceeded (f). At the same time, however, it is well established that, in order to conclude the parties from contesting the ground of condemnation in an English Court of Law, such ground must appear clearly upon the face of the sentence; and that it must not be left uncertain, or to be collected by inference only, whether the ship was condemned upon one ground, which would be a just cause of condemnation by the law of nations; or on another, which would amount only to a breach of the municipal regulations of the condemning country (g). But a judgment in rem, of a foreign tribunal, which has jurisdiction over the subject-matter, and has acted within its jurisdiction, cannot be questioned by the Courts of this country, merely because such judgment has proceeded on a mistaken view of the law of England (h); although, perhaps, where there appears on the face of the judgment, a perverse and deliberate refusal to (1840), 1 M. & G. 882; Ferguson v. (f) Simpson v. Fogo (1860), 29 L. J., (g) Per Tindal, C.J., Dalgleish v. (h) Castrique v. Imrie (1870), L. R., 4 H. L. 414; and see Concha v. Concha (1886), 11 App. Cas. 541 (domicil). 42 recognise that law, it would be the duty of our Courts to refuse to recognise the efficacy of the foreign judgment (i). And it would seem that the same rule applies, even to the case of a foreign judgment in personam (k). Agreement for arbitration no bar. Application for stay of proceedings. Stay of proceedings under s. 4 of Arbitration Act, 1889. Award may be a condition precedent to the right to bring an action. SECT. 6.-Submission to Arbitration. A mere agreement to refer a certain matter, or all matters in difference between two parties, to arbitration, cannot be pleaded in bar of an action brought in respect thereof (1). But where there is a submission to arbitration, and any party commences an action, a party to such legal proceeding may apply to a Court to have such proceeding stayed under sect. 4 of the Arbitration Act, 1889, 52 & 53 Vict. c. 49 (replacing sect. 11 of the Common Law Procedure Act, 1854), which provides that: If any party to a submission, or any person claiming through or under him, commences any legal proceedings (m) in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings (n), apply to that Court to stay the proceedings, and that Court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may (o) make an order staying the proceedings. By sect. 1 of the Arbitration Act, 1889, a submission is irrevocable except by leave of the Court (p); and by sect. 27 "Court" and "Judge" mean respectively the High Court or a Judge thereof, "unless the contrary intention appears "-and no contrary intention appearing, the above section does not apply to County Courts. By agreement between the parties, however, it may be made a condition precedent to the right to bring an action, that the (i) Per Wood, V.-C., Simpson v. Fogo (1863), 32 L. J., C. 249, 257; and see per Lord Hatherley, C., Castrique v. Imrie (1870), L. R., 4 H. L. 414, 445; and see In re Trufort (1887), 36 Ch. D. 600; Nouvion v. Freeman (1889), 15 App. Cas. 1. (k) Godard v. Gray (1870), L. R., 6 Q. B. 139. (1) Scott v. Avery (1855), 5 H. L. C. 811. (m) Including counterclaim: Chappell v. North, [1891] 2 Q. B. 252. (n) As a summons for particulars, or interrogatories: Chappell v. North, supra ; but not an application by letter for extension of time: Brighton, &c., Pier Co. v. Woodhouse, [1893] 2 Ch. 486. (0) Not "must": Carlisle, In re, Clegg v. Clegg (1890), 44 Ch. D. 200. (p) For previous law as to revoking submission, see East and West India Docks v. Kirk and Randall (1887), 12 App. Cas. 738; James v. James (1889), 23 Q. B. D. 12, C. A. |