081-NLR-NLR-V-03-OLIVER-v.-THE-CEYLON-COMPANY-,-LIMITED.pdf
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1878.
February, 22.
OLIVER v. THE CEYLON COMPANY, LIMITED.
D. C., Colombo, 68,520.
Judgment of foreign Court—Action thereon—Plea of want of jurisdictionof foreign Court—Conduct of defendant in foreign Court—Liabilityof defendant.
Where, on an agreement between plaintiff and defendant bymeans of letters and telegrams that plaintiff should ship certainquantities of rice at certain prices f. o. b. at Negapatam in SouthIndia to the defendants in Colombo, and that defendants shouldpay the prices stipulated to the plaintiff at Negapatam by means ofbills of exchange, plaintiff sued the defendants in the Munsiff’sCourt at Negapatam for the recovery of a balanoe sum of Rs. 810,and the defendants appeared by a duly authorized attorney, tookpart in the settlement of issues, and no issue was framed as to thejurisdiction of the Court, but on the trial day they objected bycounsel to the jurisdiction of the Court and declined to take part-in the trial,—
Held, that the Munsiff rightly rejected the plea of jurisdiction atso late a stage of the case, and the judgment entered by him wasobligatory on defendants.
Per Pheab, C.J.—The law of the place where the contract is tobe fulfilled is the law to which recourse must be had for all thatconcerns the discharge of the obligation, as well as probably for themeans and forms by which the creditor can compel the debtor topay the debt.
T
HE plaintiff set out in his libel that on the 18th February,1875, in the MunsifFs Court of Negapatam, in the District
of Tanjorc, the plaintiff brought an action against the defendantsand recovered the sum of Rs. 810 82 by the judgment of the saidCourt, together with costs amounting to the sum of Rs. 142-50, andthe said judgment was still in force and unsatisfied. The plaintiffalso claimed from the defendants the said sum of Rs. 810-82 underthe common money counts.
The defendant pleaded inter alia that the Munsiff’s Court ofNegapatam had no jurisdiction to entertain the subject-matter ofthe suit, and that no cause of action by the plaintiff against the
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defendants ever arose within the jurisdiction of the said Court,nor were the defendants ever resident or possessed of any propertywithin the said jurisdiction.
Issue thereon.
From the proceedings had before the Munsiff, it appearedthat the action at Negapatam was for the recovery of thebalance of rice consigned by the plaintiff to the defendants inColombo under a contract entered into entirely by means ofletters and telegrams between the defendants in this countryand the plaintiff at Negapatam. After the plaintiff had filed hisplaint the defendants appeared, but before they pleaded theplaintiff applied for and obtained leave to amend his plaint, andaccordingly on the 20th November, 1874, the plaintiff filed anamended plaint, to which the defendants did not formally plead,but agreed to the settlement of certain issues which were dulycommitted to writing. The trial of these issues was fixed for the15th February, 1875. The defendants appeared on the trial day bycounsel, but objected to the jurisdiction of the Court, and declinedto take any part in the trial. The issues were all found in favourof the plaintiff.
The learned District Judge of Colombo upheld the jurisdictionof the Munsiff’s Court and entered up judgment for plaintiff asprayed.
On appeal, Cayley, Q. A., and Broume appeared for defendantsand appellants.
Grenier, for respondents.
The following authorities were refereed to in the argument:—Indian Act VIII. of 1859, section 5; Schisby v. Westeriholz (40L. J. N. S. C. L. 73); Buchanan v. Rucker (9 Bast 192) ; Story onConflict of Laws, 733; Borthurch v. Walton (24 L. J. C. P. 83);Wild v. Sheridan (21 L. J. Q. B. 260); De Cosse Brissac andRathbone (30 L. ex. N. S. 238); Munroe v. PeUdngton (31 L. J,Q. B. 88) ; Vaughan v. Eldon (44 L. J. C. P. 64) ; Bank ofAustralia v. Nias (16 Q. B. 717).
The judgment of the Court, having been reserved, was deliveredby Phear, C.J., as follows, on the 22nd February, 1878 :—
The plaintiff's libel alleges that the Munsiff’s Court of Nega-patam, in India, on the 18th February, 1874, in an action thenpending in that Court at the suit of the present plaintiff againstthe present defendants on a cause of action specified, did adjudgeand order the present defendant to pay the present plaintiff asum of money equivalent to Rs. 810'82, together with a furthersum of money by way of costs equivalent to Rs. 142*50, and thatthis judgment still remains unsatisfied.
18-
1878.
February 22-
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1878. And on this ground the plaintiff sues the defendant in theFebruary 82. District Court of Colombo to enforce payment by them of theaggregate sum of Rs. 953*32 with interest in discharge of theobligation arising from this adjudication and order.
The defendants in effect answer that the Munsifi’s Court hadno jurisdiction to make the order as alleged, and that if it wasin fact made, it has no legal force as against them.
There is no dispute between the parties as to the facts, and thesole question for this Court is whether or not the decree, whichthe Munsiff’s Court did unquestionably affect to pass as betweenthe present plaintiff and the present defendants, operated tosubject the defendants to such an obligation to pay to the plaintiffthe amount of money mentioned, as the Courts of this countryought to enforce or give effect to (WiUiam v. Jones, 13 M. <fc IF..633 ; Goddard v. Gray, 6 L. S. Q. B. 139).
Now, the cause of action upon which the suit in question wasinstituted in the Munsiff’s Court is stated in the amended plaintfiled by the plaintiff therein, as follows :—
“ On the 17th December, 1873, plaintiffs consigned to defendants" 1,142 bags of rice, as per vessel called ' The Chaldea.’ The“ value of each of the bags was Rs. 7-12-0, and each bag“contained 1741b. of rice. But in the account sent by plaintiff“ it was by mistake entered that each bag contained 164 lb., and“ the value was drawn from the bank at Negapatam accordingly“ on the day the rice was consigned by plaintiff on behalf of the“ defendants. Afterwards it was discovered by plaintiff that“ there was a deficiency of 10 lb. in each of the bags, and the“ plaintiff informed it to the defendants on the 30th January,
“ 1874, and the defendants have acknowledged the mistake by“ their letter of 31st January, 1874. The total value of the rice“ thus sent in excess of 10 lb. per bag is 'Rs. 700, of which“ the defendants have paid Rs. 41-7-5, and the balance due is“ Rs. 658-8-7, and which he now seeks to recover.
“ Plaintiff consigned to defendants 800 bags of rice on 3rd“ January, 1874, as per ‘ Assyria,’ each of those bags contained“ 174 lb. of rice, but in the accounts sent by plaintiff it was by“ mistake entered that each of the bags contained 164 lb. of rice ;“ that error, too, was discovered on the 30th January, 1874, and“ the defendants were informed of it. And the defendants“ acknowledged that each of the bags contained 170 lb. of rice, and“ paid the plaintiff the value thereof ; they have not paid the value“ of difference of 4 lb. of rice : the value under th^t head for 3,200 lb.“ of rice on the 800 bags at the rate of 4 lb. per.-bag is Rs. 175-0-7,“ and this is another item which is sought to recover.
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“ The total of both items amounts to Es. 814-3-2, and the 1878.
‘ interest thereon amounts to Rs. 80, and the plaintiff sues the February 22.“defendants to reoover the same. Total amount of olaim is“ Rs. 894-15-9.
“ That the value of rice consigned by plaintiff to defendants as“ per * Asia ’ mentioned in the libel has been paid in full value of“ the rioe sent by ‘ Chaldea.’ The defendants, says the plaintiff,
“ wrote to say that the rioe sent by ‘ Asia ’ was found deficient.
“ Therefore the plaintiff says that it should have been entered‘ Chaldea ’ and consignment per her instead of ‘ Asia ’ and‘' consignment per her, which the plaintiff now amends and“ brings his suit as stated above.”
The original plaint itself does not appear among the copyproceedings of the Negapatam Court.
The defendants appeared by a duly authorized attorney in bissuit. They did not file a written statement in answer to theplaint, but they were present at the hearing for the settlementof issues; and it was at thpir instance that the two first issues,whioh are directed to the jurisdiction of the Court to adjudicateupon the matter of suit, were framed.
The following are the issues whioh were thus settled in theirpresence oo the 18th December, 1874 :—
“ (1) Has the plaintiff sufficient status to maintain this action in“ this Court or not ?
“ (2) In what place jwas plaintiff bound to deliver to defendants“ the rice, for the value of which claim is made in the libel ?
“ (3) In the place in which plaintiff was bound to deliver rice“ to defendant, how much was it he delivered through ‘ Chaldea,’
’ “ what is the amount- he received upon it, and what is the“ balance ?
“ (4) In the place where plaintiff was bound to deliver rice to“ defendant, how much he did deliver through ‘ Assyria,’ what is“ the amount received thereupon, and what is the balance due ?”
And at the same time it was ordered that: “ The further inquiry“ in this matter will take place on the 13th February, 1875, when“ the parties will have to be ready with their witnesses.”
It is noteworthy (iu passing) that the objection to the jurisdictionof the Munsiff’s Court, which has been pressed before us on theground of the defendants being foreigners not resident within theterritorial jurisdiction of that Court (in effect a claim of personalexemption to the jurisdiction, independent of the matter of suit),finds no place among these issues.
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1878. After this settlement of issues, namely, on the 27 th December,
F tbrvary 22.. 1874, the professional gentleman who represented the defendantsin the suit in the Munsiff’s Court wrote to his clients in Colombothe following letter :—
Your favour of the 8th instant is to hand. I put in the grounds of ourobjections on the 18th, and the Court recorded the issues, as wouldappear from the copy of the issue papers I have herein enclosed for yourinformation. The case is to come on for trial hearing on the 15thFebruary, 187 5. You will on perusal of the said papers be pleased to letme have a list containing all the names of the witnesses whose evidencemay appear to you to be of use in the case, so that I may take outsummons for their appearance before the Court. The list must also showthe several facts each of those witnesses will be able to bear out. I begyou will spare no time in sending up the list, as I will have to put ininterrogatories as soon as possible to enable the Court to send outCommission for the examination of those witnesses that may live inCeylon. I think it will save much dalay and inconvenience if you couldkindly manage to send over a person to me who will be able to furnishme with the necessary information I may require. You have probablyno documentary evidence to adduce ?
It is plain from this letter that up to this stage of the suit thedefendants, whether well advised or not, had taken no step torepudiate the authority of the Munsiff’s Court to entertain thesuit, nor, indeed, had they in any degree withdrawn from theproceedings. On the contrary, although they no doubt objeotedto the. jurisdiction of the Munsiff to hear and determine thesubject of dispute laid in the plaint, they raised an issue on thisvery subject for trial and submitted it to the Court for judicialdetermination. And there is nothing on the record which isbefore us to show that they were even absent from the Courtwhen the trial of issues took place. But, however this may be,we are of opinion that, after having taken part in the suit up toand inclusive of the stage of framing the issues and submittingthem to the Court for trial and determination, it is too late forthem to say that they will not be bound by the decision of theCourt beoause they are not subject to its jurisdiction (see judg-ment of Hannen, J., in Goddard v. Gray already cited).
And if we turn to the contract which the defendants admit thatthey made with the plaintiff, as evidenced by the letters of thedefendants themselves filed in the record, we see very strongreason to think that the Munsiff’s Court at Negapatam was entirelyright in entertaining the plaintiff’s suit. The substantial featuresof that contract were on the one side the shipment by the plaintiffof certain specified quantities of rice at certain specified rates ofpayment f. 0. b. at Negapatam to the defendants in Colombo, andon the other the payment by the defendants on their receivingtlie rice of the price thereof to the plaintiff at Negapatam. The
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machinery of the bills of exchange merely served to regulate themeans, mode, and time by whiefy and when this payment- shouldbe effected. The price agreed upon covered delivery on boardshipat Negapatam, but the freight and insurance were additionalcharges to be borne by the defendants. Clearly, the transit toColombo was at their risk. Negapatam appears to have been the“ home ” of the contract in all respects. The whole matter ofit began and ended there. At any rate it was there that thedefendants undertook to perform their part of it, namely, thepayment of the money; and in undertaking to pay the money tothe plaintiffs at Negapatam, the defendants must be taken tohave subjected themselves as regards any question relative to thatpayment to the law of that place, and by consequence have agreedto submit to the authority of the tribunals which are thereconcerned with the interpretation and enforcement of that law.It seems to be the very general opinion of text writers onInternational Law, that the law of the place where the contractis to be fulfilled is the law to which recourse must be had for allthat concerns the discharge of the obligation, as well probablyas for the means and forms by which the creditor can compelthe debtor to pay the debt. Voet says (lib. 5, tit. 1, section 73):Rations contractus forum competens sortitur reus eo in loco in quocontractus vd quasi contractus edebratvs, seu perfectus est simodo reus iUic inveniatur, &c. It may be a question whether,had the case in fact been that the defendants did not appearin suit instituted against them by the plaintiff in the NegapatamCourt, they could have been compelled to come in, or, in defaultof so doing, could have been in any manner proceeded againstas if they were present. But we are not concerned with thatquestion now, for they did in fact appear in the suit and, as wehave seen, took considerable part in it. Being in this wayactually present in the Court, as the subject of suit being such asthe Court was in all respects competent to adjudicate upon, theydid not escape liability to the final consequences of the suit bymerely leaving Court (if they did so) before the issues on themerits came to be considered.
On these grounds we are of opinion that the defendants arebound by the decree passed against them by the Munsiff’s Courtof Negapatam, and that the judgment given by the DistrictCourt in favour of the plaintiff for the amount of that is right.
187S.
February 22.