Page images
PDF
EPUB

place;" and on proof that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction or the breach within the jurisdiction of a contract wherever made, or in respect of property within the jurisdiction, and that the writ has been personally served on the defendant, or that reasonable efforts were made to effect service, and that it came to his knowledge, the judge may allow the plaintiff to proceed in the action. There is a similar law in New South Wales (Common Law Procedure Act, 1899, sec. 18).

It has been held that this procedure applies to individuals and not to corporations. (Connell v. Neill and Co., 7 W. N. [N.S. W.] 6; Lempriere v. New Pinnacle Group S.M. Co. No Liab., 21 A.L.T. 182 [Vic.].)

Another provision for the extra-territorial service of civil process, applicable to minor courts, has been made by several Australian Legislatures. By the Victorian Intercolonial Debts Act, 1887, re-enacted in the County Court Act, 1890, secs. 142-4, authority is given to serve County Court Summonses on defendants out of the jurisdiction, in Australian colonies, in which there are laws in force by which effect may be given, by the local courts of such colonies, to the judgments of the County Court of Victoria. On recovering judgment against an absent defendant, within any of the reciprocating provinces or colonies, the plaintiff is enabled to procure a certificate of judgment; this certificate is sent on to the clerk of the local court of the other colony in which the absent defendant is resident, and in which execution is then issued. Similar and reciprocal Acts were passed in South Australia (Intercolonial Debts Act, 1887), and in New South Wales (Intercolonial Debts Act, 1889).

The ineffectiveness of this kind of legislation, and the necessity of a federal law regulating service of process and execution of judgment, has been recently illustrated in a striking manner in the case of Elkan v. De La Juvenay, decided by the Full Court of Victoria on the 10th August, 1900.

In March of that year, Madame De la Juvenay, of Camberwell, near Melbourne, was served at her residence with a summons issued from the local court of South Australia, claiming £9 as the amount of two promissory notes. She was domiciled and resident in Victoria, and endorsed the promissory notes there, but they were payable in Adelaide. She did not appear to answer the summons, and judgment was entered up in Adelaide by default. It was transferred to the Victorian County Court, and on 8th May Madame De la Juvenay was served with a notice of the judgment. This was followed up next morning by a writ of execution. Under protest, she paid the money, and afterwards applied to have the judgment set aside. Mr. Justice A'Beckett, however, held that the Intercolonial Debts Act of 1887, now represented by sections 138 to 145 of the County Court Act of 1890, established a system of reciprocity between Victoria and any colony as to which a proclamation had been issued. An appeal was made on the ground that as the defendant was domiciled in Victoria, and had not submitted in any way to the South Australian jurisdiction, the judgment was not enforceable against her in Victoria, and was null by international law. The Full Court allowed the appeal. The Chief Justice (Sir John Madden) pointed out that it was a well understood proposition of international law that a subject of one State was not bound to obey the judgments of another State unless he chose to submit himself to its jurisdiction. The colonies were, for a purpose of this kind, as much apart as if they were foreign States. It was now contended, practically, that whenever a cause of action arose in South Australia against a Victorian, although the Victorian had never been in the other colony at all, the South Australian court had as much jurisdiction against him as if he had lived all his life there. This would be a striking change in the ordinary principles of law, and what had happened was wrong. The Act only applied to cases in which a resident of one colony had gone to another colony; not to cases in which the defendant had never submitted to the jurisdiction of the colony in which the plaintiff sued. In the view the court took, Madame De la Juvenay was a person not liable to be sued effectually in the circumstances. The judgment was set aside, and the money paid

upon the unlawful execution was ordered to be handed back. (The Age, 11 August, 1900; 22 A.L.T. p. 34.)

The New Zealand Parliament passed an Act (New Zealand Code, 46 Vic. No. 29, Rule 53) authorizing the courts of that colony, in any action founded on a contract made or to be performed within the colony, to decide whether they will allow a plaintiff to issue a writ and proceed against an absent defendant without service of the writ. In Ashbury v. Ellis (1893), App. Cas. 339, the Privy Council held that this was a valid law, and that it was competent for the legislature of New Zealand, under the Constitution of that colony, to subject to its tribunals persons who were neither by themselves nor their agents present in the colony, in actions founded on any contract made or entered into or wholly or in part to be performed within the colony. Referring to the argument that a judgment so obtained could not be enforced beyond the limits of New Zealand, their lordships said that "when a judgment of any tribunal comes to be enforced in another country, its effect will be judged by the courts of that country with regard to all the circumstances of the case. For trying the validity of New Zealand laws, it is sufficient to say that the peace, order, and good government of New Zealand are promoted by the enforcement of the decrees of their own courts in New Zealand."

In reference to the second of the above questions the answer may be gleaned from numerous cases decided in England. In Simpson v. Fogo, 32 L.J. Ch. 249, it was held that the same rules are applicable in the enforcement of colonial judgments as in the enforcement of foreign judgments. In Buchanan v. Rucker, 9 East 192, the facts were that a law of the island of Tobago, a British colony, enacted that if a defendant were absent from the island he might be summoned by nailing up a copy of the declaration at the Court-house door, and this should be deemed good service. Lord Ellenborough, C.J., held that on a fair construction of the Act this must be intended to apply to one who had been present and subject to the jurisdiction; and that if it had been meant to reach strangers to the jurisdiction, it would not have bound them. The principle affirmed was that an action is not maintainable on a colonial judgment, unless it appears that the defendant was regularly served with process, and had an opportunity of defending the suit, even although it appears to be the practice of that court not to give personal notice. The rule to be deduced from the cases is, that where the defendant against whom a judgment has been obtained in a colonial court, under such local Acts as we have been considering, authorizing service of process in absentem, is, or even has been, subject to the jurisdiction of the colony, such judgment will be recognized in the courts in England where otherwise it would not be. (Lefroy, Leg. Pow. in Can. p. 332.)

Under this sub-section of the Constitution a most important power is conferred on the Federal Parliament. It will enable that Parliament to provide procedure for the service, throughout the Commonwealth, of the civil process of the courts of the States, such as writs, summonses, notices of legal applications issued in and by the courts of the States. This includes the service of the civil process of the inferior as well as the superior courts of the States; so that it will be as competent to provide for the service in one State of a summons issued by a local court or a court of petty sessions in another State, as for the service of Supreme Court writs. Such a law would appropriately specify the mode of service, whether personal or substituted, to be observed. It could also define the persons, whether private individuals or public officers, who are qualified to effect service. Another essential would be proof of service, sufficient to satisfy the adjudicating tribunal and give it jurisdiction. (Bank of Australasia v. Nias, 16 Q.B. 717.)

§ 207. "Execution."

Legal process includes not only the writ and summons to appear, but all the steps taken by the court in execution of its judgment; hence seizure, sale, and sequestration are, in the natural meaning of the words, comprehended in the term process. (Per Lynch, J., in re Delahoyd, 11 Ir. Ch. R. 407.) The power to legislate concerning

66

'the execution throughout the Commonwealth of the civil process and judgments of the Courts of the States" clearly extends to all these matters.

This sub-section does something more than provide for the inter-state recognition of judgments; it means the inter-state execution of judgments. Under this power a law could be passed authorizing the enforcement, within one State, of a judgment recovered in a civil action in another State; so that a writ of execution issued by the Supreme Court of one State, or a warrant of distress issued by a court of petty sessions therein, could be enforced by seizure and sale, in another State, of the assets of a person against whom a judgment or order has been recorded. It might go so far as to authorize the sheriff and constables of each State to execute writs and warrants issued by the courts of the other States. (Conv. Deb., Adel., p. 1006.)

Without this sub-section a judgment recovered in one State would not carry with it into another State the efficacy of a judgment, affecting property or persons, which could be enforced by direct execution; to give it such force in another State it would have to be made a judgment there under local laws; which could only be executed in that State as its laws permitted. (Baker, Annot. Const. p. 152.)

[blocks in formation]

Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz., the transfer of persons charged with crime from one colony to another. This disability is founded on the territorial limitations to which the Colonial legislatures are restricted.

In 1855 the law officers of the Crown in England, on being asked to give their opinion with reference to a case arising in British Guiana, said-"We conceive that the Colonial legislature cannot legally exercise its jurisdiction beyond its territorial limits-three miles from the shore-or, at most, can only do this over persons domiciled in the colony who may offend against its ordinances even beyond those limits, but not over other persons." (Forsyth, Constitutional Cases, p 24.)

In 1861 a Canadian Act was passed and assented to by the Governor which purported to give jurisdiction to Canadian magistrates, in respect of certain offences committed in New Brunswick by persons afterwards escaping to Canada. By order of the Queen in Council, 7th January, 1862, this Act was disallowed, as being in excess of the jurisdiction belonging to the Canadian Parliament, and only to be properly effected by Imperial legislation; or by an arrangement in the nature of an agreement of extradition between the two provinces, to be carried into effect by Acts of the two provincial legislatures. (Todd's Parl. Gov. in the Col. 2nd ed. p. 177.)

In Ray v. MacMackin (1875), 1 V.L.R. (L.) 274, it was decided that the power of extradition, from one part of the British dominions to another, was not inherent in the legislature of any colony, but required the sanction of the Imperial Parliament; that a Colonial legislature may authorize the exclusion from its territory of a person charged with having committed an offence in another colony, and it may order his punishment unless he leaves, but it cannot authorize the sending him in custody out of its territory into another colony. This was the case of a man arrested in New South Wales on a warrant issued by a magistrate in Victoria. The warrant was endorsed in New South Wales by a justice of that colony, who directed a constable to remove the accused in custody to Melbourne. The endorsement was made by the Sydney justice on the authority of a New South Wales Act (14 Vic. No. 43, s. 4). This section was passed before the separation of Victoria from that colony, and applied the provisions of Jarvis'

Act (11 and 12 Vic. c. 42) as to backing warrants. It was intended to authorize the backing of intercolonial warrants, making them operate in the same manner as was the case between England and Ireland. In an action afterwards brought in Victoria by the arrested man against the arresting constable, for false imprisonment in placing him in a vessel and in conveying him over the high seas from Sydney to Melbourne, it was held by the Supreme Court of Victoria that the Act was ultra vires and was no defence to the action. "It was distinctly enunciated that the superior Courts in England will regard Acts of Colonial Legislatures in the same way as they regard Acts of foreign countries legislating with respect to their inhabitants within the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries of their own territory, domestic or distant, by either one or the other, is treated as being beyond the powers of their legislatures. Whatever power or authority the Legislature of New South Wales has to frame laws to cause persons charged with the commission of misdemeanours in other countries, to be apprehended within that colony, and to be detained in prison there, it is a totally different thing to say that it can give a magistrate power to expel such persons from the colony, and send them across the seas to another part of the world." (Per Barry, J., 1 V.L.R. (L) p. 280.)

In 1863 the New Zealand Legislature passed the Foreign Offenders Apprehension Act, which authorized the deportation of persons charged with indictable misdemeanours committed in other Australian colonies, and their surrender to the authorities of the colony where the offence was committed. Doubts were at the time entertained as to its validity, but it was not disallowed. In 1879 one Gleich, an absconding bankrupt from South Australia, was arrested in New Zealand, and it was proposed to deport him back to South Australia. He was brought before the Supreme Court of New Zealand, which decided that a colonial legislature had no power to authorize the conveyance on the high sea to another colony, and the detention outside its jurisdiction, of any person whatever; that such power could be only exercised either directly by the authority of an Imperial Act, or in the exercise of power expressly conferred on legislature, by an Imperial Act. (Todd, Parl. Gov. in Col. 2nd ed. p. 303.)

a colonial

In the case of Regina v. Call, ex parte Murphy (1881), 7 V.L.R. (L.) 113, the Supreme Court of Victoria decided that the power given by section 63 of the Justices of the Peace Statute, 1865 (Vic.), to a justice in Victoria, to endorse a warrant for the apprehension of an offender, "whether such warrant has been issued in Victoria or elsewhere," was not ultra vires, as it did not direct any act to be done beyond the territorial limits of Victoria. It was, further, the opinion of the court that on the production of a warrant issued in New South Wales, and proof of the handwriting of the justices issuing it, and that the person bringing it is one of the persons to whom it was originally addressed, it is the duty of the justices to whom it is produced to endorse it; but the last few lines of the form in the 13th schedule referred to in the margin of sec. 63 are not warranted by that section, and are incongruous. Such endorsement will then authorize the person holding the warrant to take the offender to the border of the colony, where the warrant itself will authorize him to complete the execution of it. Per Higinbotham, J.: The endorsement would authorize the taking of the offender into New South Wales to the justice who issued the warrant." (7 V.L.R. [L.] 113.)

66

Owing to the difficulties arising from the territorial limitations of the power of Colonial legislatures, it has been the practice of late years for fugitive offenders, escaping from one colony into another, to be arrested and returned under the provisions of Imperial Acts relating to the extradition of criminals.

IMPERIAL FUGITIVE OFFENDERS ACT.-By the Fugitive Offenders Act, 1843 (6 and 7 Vic. c. 34), provision was made for the apprehension in the United Kingdom, or in the Colonies, of persons charged with felony committed in a colony. By the Foreign Jurisdiction Act, 1878 (41 and 42 Vic. c. 67), this Act was extended to places to which the Foreign Jurisdiction Act, 1843, applied. After the decision of the Supreme Court of

New Zealand in Gleich's case, holding that the New Zealand Foreign Offenders Apprehension Act, 1863, was ultra vires, the Governor of the colony in reporting the case to the Secretary of State for the Colonies expressed a hope that the Imperial Parliament would remedy the defect in the law, disclosed by that decision, by extending the procedure provided by the Fugitive Offenders Act, 1843. Shortly afterwards the Imperial Parliament passed the Fugitive Offenders Act, 1881 (44 and 45 Vic. c. 69), which formulated a uniform plan, facilitating the apprehension and trial of persons committing crimes in one part of the British dominions and escaping to another. This Act provides that a person, accused of having committed an offence in one part of the Empire, may, if found in another part, be apprehended and returned to the part from which he is a fugitive. A warrant issued in the part of the Empire from which the accused is a fugitive, and endorsed by the proper authority in the part of the Empire in which the accused is found, is sufficient authority for his arrest. A person found in one part of the British dominion and suspected of having committed an offence in another part, may also be arrested on a provisional warrant, signed by a magistrate in that part of the dominion in which he happens to be found. Upon his apprehension the accused must be brought before a magistrate, by whom he may be remanded pending the arrival of an endorsed warrant. After the expiration of fifteen days the Governor of the possession in which the arrest is made, or if the arrest is made in the United Kingdom, the Secretary of State, is authorized to issue a warrant ordering the fugitive to be returned to that part of the dominions from which he has escaped. The above provisions of the Act apply to all offences punishable, in the place where committed, by imprisonment with hard labour for a term of twelve months or more. By part II. of the Act a procedure of a simpler character is formulated and made applicable to groups of contiguous colonies, in which it may by Order in Council be declared in force. Under this part, the inter-colonial backing of warrants by magistrates, and the return of fugitives without the formality of a warrant signed by the Governor of a colony in which the fugitive is found, was legalized. This law was declared applicable to the Australian colonies by Order in Council, dated 23rd August, 1883.

The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what now can only be done under the authority of the Imperial Fugitive Offenders Act, and to authorize the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. Inter-British and inter-national extradition will still be governed by Imperial legislation, although auxiliary laws may be passed by the Federal Parliament under 51-xix., "External Affairs," facilitating the enforcement of the Imperial legislation. (See Notes, § 214, infra.)

66

INTER-STATE EXTRADITION IN AMERICA.-The part of this sub-section relating to inter-state arrest on criminal process provides a summary method of accomplishing inter-state extradition. The same object was aimed at by Art. IV. sec. ii. sub-sec. 2 of the Constitution of the United States of America, which enacts that A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." The difference between the two procedures is, that under the Constitution of the Commonwealth, inter-state fugitives may be arrested and returned from one State to another without the intervention of the Executive Government of any State; the whole process may be a judicial one, superintended by the courts, and uncontrolled by the Executive in either State. In America the return of a fugitive offender from one State of the Union to another depends upon the will of the Executive Government of the State in which the offender is found.

« PreviousContinue »