Paul v. Roy.

in medio, in other words to bring it into court. Mr. Roy has complied with the order to the extent of 5697., the sum he had received, which exhausted his liability. The rest had been received by Mr. Paul, who was the party to bring it back. The fund, however, was ample to satisfy the claims of the creditors upon the estate, as Mr. Thompson's representatives have been held to have no claim for their debt in consequence of its not being duly registered. Malcolm v. Mansfield, 6 Bell's Ap. Cases, 359. This, therefore, is not a case in which this court will entertain a suit to carry out by its forms, elaborated from its dealings with trusts, the claim made by the plaintiff. Neither can the court deal with the forms of proceedings in the Scotch courts, or get rid of them. An assignment has been made behind the back of Mr. Roy, but no final decree has been made. How can this court, therefore, inform itself of the foreign law? No action at law can be brought upon an assigned decree. The plaintiff either can or cannot get final judgment: if he gets it, he can then proceed at law; but if he cannot, why is he to call upon a court of equity to support his claim? The courts of Scotland, therefore, are competent to enforce their own decrees, and no original jurisdiction has arisen in this country. The deed of assignment of the order to deposit gave rise to processes peculiar to the laws there. The defendant also is not personally liable. He was only the agent of Major Anstruther. The plaintiff also was merely the agent of C. Wood, whose consent was necessary to the institution of this suit, to which Major Anstruther was a necessary party. The bill, therefore, must be dismissed. Houlditch v. Lord Donegal, 8 Bligh, (N. s.) 301, 337; s. c. 2 Cl. & F. 470 ; Price v. Dewhurst, 8 Sim. 279; s. c. 4 Myl. & Cr. 76; 8 Law J. Rep. (N. S.) Chanc. 57; Bent v. Young, 9 Sim. 180; s. c. 7 Law J. Rep. (N. s.) Chanc. 151; Earl Nelson v. Lord Bridport, 8 Beav. 527; Yates v. Thompson, 3 Cl. & F. 544.

Anderson, in reply.

The MASTER OF THE ROLLS. After considering this case, my opinion is, that the plaintiff is not entitled to the relief he asks, and I do not think that the case made would sanction my making a decree. The facts, so far as it is necessary for me to state them, are that Major Anstruther, in the year 1835, being entitled to an estate, or the life interest in an estate in Scotland called Caiplie, which was heavily incumbered, borrowed the sum of 10,000l. from C. Wood, which, by a memorandum of agreement, was to be applied in the discharge of several incumbrances or charges affecting the estate. The estate itself was to be conveyed to Mr. Renton, in trust that the rents arising therefrom might be applied for the purposes there specified. 7,9001. was accordingly applied, and the remaining sum of 2,1002. was deposited in the Bank of Scotland, in the names of the plaintiff, who was the agent of C. Wood, and the defendant, who was the agent of Major Anstruther in this transaction, for the purpose of carrying out the stipulations expressed in the memorandum.

In the years 1835 and 1836, payments were made by Messrs. Paul and Roy out of this fund; and Major Anstruther being still indebted,

Paul v. Roy.

certain of his creditors by inhibition commenced proceedings by arrestment, which is analogous to the proceedings in this country by attachment, and a suit of forthcoming having been instituted to compel Messrs. Paul and Roy to redeposit the funds, that they might be made available for the purposes of the creditors, the Court of Session determined that many of these payments had been improperly made; and the rights and claims of all the parties interested in the funds having been ascertained in this suit, the court directed Messrs. Paul and Roy to bring back and redeposit certain sums specifically enumerated. Under an order made in July, 1841, Mr. Roy redeposited a sun of 569., asserting, at the same time, that it was the utmost amount that had not been properly applied; but, subsequently, in the year 1845, the Lord Ordinary directed the sum of 7951. 7s. 5d., then in the bank, to be made up to 1,981/. 15s. 2d., and this order was made jointly upon both parties. After this order, Mr. Roy came to England, and Mr. Paul paid in the whole amount, and obtained an assignment of the decree from the creditors in the suit in the Court of Session; and this enables him, in the terms of the decree, to call upon Mr. Roy to repay not merely one half, but the whole amount which he had paid into court, according to the order. Mr. Paul upon this took out letters of horning, but not having obtained any satisfaction from the goods or movable estate of Mr. Roy, he obtained letters of caption, which entitled him to take the defendant himself, and imprison him until the whole amount claimed was satisfied; but as Mr. Roy had come to England, Mr. Paul was unable to execute the letters of caption; he, therefore, instituted this suit.

I was early embarrassed in the case when considering in what way the court had jurisdiction, if it had any. Whether it was upon the ground of its being a foreign judgment, or that it was a contract which I was called upon to enforce, between strangers, the subjects of a foreign country, one or both of whom had come afterwards into this country. This court has jurisdiction to enforce a foreign judgment, and in the great majority of cases to enforce the debts and rights which may arise on a contract made between two persons of another country when they come afterwards into this country and reside here. I first thought whether it was a foreign judgment which must be considered final, as it would be new to find that this court would enforce a foreign judgment unless it were final. I have not found, nor have I been referred to, any case in which this or any court, in similar cases, would enforce a merely interlocutory judgment, and give relief which must be enforced by final judgment in another country. By so doing, the court might do great injustice. If there is a final judgment to pay a certain sum of money, the courts of this country can compel the debtor, if residing here, to pay the foreign judgment creditor. But, considering this case either as a final judg ment or not, in no way can this be considered as a suit for enforcing a foreign judgment. The decree, in the first place, directs the plaintiff and the defendant jointly and severally to pay the money into the Bank of Scotland, that is, as between the creditors and the plaintiff and defendant themselves. They were jointly liable to pay the whole

Paul v. Roy.

amount; but then, upon one paying in the whole amount and obtaining an assignment of the decree, this singular result takes place, that if by order of the Court of Session the plaintiff obtains such an assignment of the decree, it enables him and gives him a right to obtain repayment from the other, not of the proportion of the amount ordered to be paid jointly, but of the whole amount he has paid into the bank. In such a case, the court, no doubt, would inquire into the propriety of the foreign judgment. Even if this were the case of a final judgment in a foreign court, the case of Houlditch v. Lord Donegal shows that it is to be treated as primâ facie evidence of the right in the party who had obtained the judgment, and that its propriety may be inquired into; and therefore that the court has jurisdiction. If so, then the only case to be considered is, that of contribution; and the ground brought forward is, that the court having ordered two persons jointly and severally to pay a sum of money into court, it is inequitable that one of them, the plaintiff, should pay in the whole amount; but so, on the other hand, it must be considered equally inequitable that the other, the defendant, should be called upon to repay the whole amount to him. Yet the effect of it would be, if I were to make a decree in favor of the plaintiff, to make the defendant pay the whole amount of the money into court. That is a result so monstrous that the court has not been asked to give such relief or effect to the judgment pronounced in Scotland; and I consider, if I were to act upon it, it would be treating it as the final judgment of a foreign court and not an interlocutory order of the Court of Session. In that court relief and justice might be. administered between the parties, notwithstanding such a decree; and therefore I am not able to consider this as a case of enforcing a foreign judgment. It would be unjust to do so, and the bill, although it states the proceedings in the court of Scotland, and asks that effect may be given to the whole of the judgment of the Court of Session, only asks this court to give effect to a portion of it.

Independently of the question of not enforcing a foreign judgment, I have then to consider whether any thing has arisen upon the proceedings in Scotland which enables the plaintiff in this court to require the defendant to pay, either as the prayer of the bill puts it, the sums of money which have been improperly paid out of the 2,1007., or to pay half of the sum of money which has been paid into the Bank of Scotland. In the first place, as to the money which has been paid out of the 2,100l. for the purposes mentioned in the memorandum. From the evidence that has been given, there was paid out with propriety a sum of 5517. 19s. for inhibition debts; upon that no question is raised on either side or with respect to the necessary sums which were paid out, but there are various sums, amounting altogether to 1,019, which according to the statements in the bill and the whole of the evidence, seem to have been paid to the plaintiff himself. One sum was for costs, another sum was to replace premiums on policies which the plaintiff had paid, and which fact he not merely mentions, but also states that the money paid to him included the interest from the time when he advanced the money; and the aggregate sum paid out of the money in the bank consists of the capital amount of the

Paul v. Roy.

premiums and the interest due to the plaintiff. The observation is material as showing that the money was not paid out merely to be applied in payment; but that the premiums on the policies had been actually paid by the plaintiff at that time, and that he then came to make the trust fund available to repay him, with interest upon the amount so paid, without considering the sums received or paid by Mr. Roy. There could be no question, the Court of Session having determined that these sums of money were improperly paid, that the person who received them ought to replace them; in that manner this court, and I have no doubt the Court of Session, will ultimately work out the rights of the parties and the equity of the case. There were some sums of money advanced by the plaintiff out of his own pocket, which, he says, were properly payable out of the rents; and he makes this sum of 2,100l. available to repay himself. The Court of Session having decreed that sum to be replaced, both the plaintiff and the defendant must, as against the creditors, make it good. But, suppose this solely a trust fund, and that the money had not been applied for any other purpose, it would rest simply between the plaintiff and the defendant, and each would have to pay the sums he had received. These sums were paid out to repay debts, in respect of which the plaintiff was a creditor; but an elaborate account has been gone through on both sides, and the plaintiff says, that, in fact, although the plaintiff paid this annuity to Lady Anstruther, the rents of the estate were applicable to this purpose; and that the defendant Roy has had credit in his account for that express application of the rents. I assume that to be so; observing that Mr. Roy was in possession of the estate, as factor to the trustee; and according to the law of England the factor could only be answerable to his trustee, and not to the cestuis que trust, for any of those rents; the factor, being nothing more than what we in England call a steward, a person who, by authority, receives the rents, having misapplied those rents. trustee, as between himself and the factor, would equally remain answerable and liable for the due application of the rents received by himself, his factor, or agent. In fact, were the case different, it would be totally impossible for me to take an account of the rents to see whether they had been properly applied. It could not be done, because it is obvious that Mr. Renton would be and is a necessary party to a suit for that purpose, and also that Major Anstruther should be a party, or else the court would be taking accounts which would not bind absent parties, and it would have to take them over and over again for every one of those parties as they instituted proceedings in this court.

The

It is impossible, therefore, that I can, in a suit constituted as this is, regard any question arising upon the rents, of the estate for the purpose of considering whether it is true or not that the defendant, Mr. Roy, has, in the account of those rents, had allowance for those very sums advanced by Mr. Paul, which were repaid to him out of the 2,1007. improperly, and which the Court of Session has ordered to be replaced. In this view of the case, therefore, I consider that this suit is not constituted in a form which would enable me to look at any thing except the 2,1007.

Paul v. Roy.

The other alternative of the prayer is, that the plaintiff may have contribution, that is to say, that the defendant may be compelled to pay into the Bank of Scotland or into the Court of Session one half of the sum which Messrs. Paul and Roy were ordered jointly to repay. Upon what ground can I do that? Not upon the ground that it is a foreign judgment, because it is not a final judgment; not on the ground that it is shown to be the proper amount between the parties, because it is not possible for me to ascertain that it is the proper amount; but it is only upon the ground that a foreign court has directed two persons to pay a sum of money into court, jointly and severally, and has thought proper to make a decree under which this court is asked to say they ought to pay it into the Bank of Scotland separately, while the Court of Session has jurisdiction, and while proceedings are going on in that court to work out full and complete justice. If I were to deal with the case in its present state I should be carrying on the suit concurrently with the Court of Session; not having before me the whole of the parties who are before the Court of Session, or the evidence which is before the Court of Session, or the means of obtaining that evidence, or the means of doing justice between the parties. When the arguments were proceeding I put this question; supposing I should order Mr. Roy to pay to Mr. Paul one half of what I should consider was due, or any other sum, and the Court of Session would not afterwards look upon that decision as correct, and should determine that it was not the proper amount to be paid, and should call upon Mr. Paul to repay it, how could I enable Mr. Roy to get it back? Were I to make such an order I should be making a final decree in a case pending in another court, when that court has made no final decree in that case. I am also of opinion that it would be necessary for the plaintiff to ascertain, by proceedings in the foreign court, the amount properly due from the defendant. I am not satisfied that he has not the means of efficiently doing that, or that by means of an account taken against the defendant in the foreign court the plaintiff has not the means of discovering whether he has property. I am not satisfied that there is not property in Scotland belonging to Mr. Roy which might give a right of jurisdiction against him. I do not call upon Mr. Roy to show that he has property; but if it is true that the plaintiff could not obtain a final decree against the defendant, the burden would lie upon him to prove that; and if a final decree had been obtained in Scotland and accounts taken ascertaining what was the sum due, there would have arisen a question, which it is not necessary for me to discuss, whether the plaintiff could have enforced his claim in this court or whether he might not have gone to a court of law. As I have expressed my opinion that no case of a foreign judgment is made out upon which I could act; and as I have gone into the other questions, I do not stay to inquire whether this is the proper tribunal or not, or whether this is one of those peculiar cases which relate to the accounts of rents in a foreign country in which this court would have jurisdiction to enforce a contract entered into by foreigners alone, because I am of opinion that no case for relief has been made out; and therefore the bill must be dismissed with costs.