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Report No. 65

VIII History

1.33. History of recognition in England.-

The theoretical bases for recognition have, thus, remained controversial. Let us now look at a few historical aspects. Though certain particular judicial proceedings may have been recognised earlier,1 it appears that English courts began enforcing foreign judgments somewhere in the 17th century.2-3 In the seventeenth century, English courts decided that it was "against the law of nations not to give credit to the judgments and sentences of foreign countries."4

As to what was the law of nations, Jonkins, a judge of the Prize Court in the mid-1600s, though it was not the Civil Imperial Law, but "the generally received customs among the European governments which are most renowned for their justice, valour and civility."5 However, a requisite which was raid down was that the foreign court must have possessed "proper jurisdiction."6 It has been suggested that there were originally no specific jurisdictional requirements. The foreign court was merely required to have observed the elementary precepts of natural justice. However, with the acceptance of the obligation or "vested rights" theory in the nineteenth century, the jurisdiction requirements crystallised.

1. Sack Conflict of Laws in the History of English Law, in the book Law; Century of progress, 1835-1935, Vol. 3, pp. 342-382.

2. Newland v. Hors ran, (1681) 23 English Reports 275 (Annotation and see Hosworth History of English Law, Vol. II, pp. 269, 270).

3. Contington's Case in Kemmedy v. Caseillis, (1878) 2 Swans 313 (326): 36 ER 635 (640); see also Reach v. Garyan, (1748): 1 Ves See 157 (159): 27 SR 954 (955). This view also found favour in the United States; see Rose v. Himely, 8 US (4 Cranch) 240: 2 L Edn. 608 (1808).

4. Holdsworth H.E.L., Vol. 3, p. 654.

5. (a) Ex v. Yewis, (1749) 1 Ven 298: 27 SR 1043;

(b) Ex v. Oillian, (1795) 2 Ven Jun 587: 30 ER 790;

(c) Burchanan v. Rucker, (1908) 9 East 192: 103 MR 546.

6. Para. 1.163, supra.

1.34. There cannot be any doubt that as early as 1845, a foreign judgment in favour of the defendant, if final and conclusive, was a good defence to an action in England for the same matter.1

Later developments were-(i) statutory, particularly in regard to monetary judgments, and (ii) judicial, particularly in regard to divorce.

1. Hicarde v. Garcias, (1845) 12 Cl&F 368 (406).

Recognition of Foreign Divorces Back

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