Emily Nunn v Edward W. Nunn — No. 1

• Jurisdiction: Ireland
• Judgment Date: 18 July 1880
• Date: 18 July 1880
• Court: Chancery Division (Ireland)

Appeal.

Before LORD O'HAGAN, C., MORRIS, C. J., DEASY and FITZ GIBBON, L. JJ.

EMILY NUNN

and

EDWARD W. NUNN NO. 1

Booth v. EganUNK 14 Ir. L. T. 48.

Best v. PembrokeELR L. R. 8 Q. B. 363.

Carpenter v. ThorntonENR 3 B. & Ald. 52.

Henley v. Soper 8 B. & Cr. 16.

Russell v. SmythENR 9 M. & W. 810.

Emerson v. LashleyENR 2 H. Bl. 248.

Action upon final decree or order of English Court 20 & 21 Vict. c. 85 (Divorce and Matrimonial Causes, England) ss. 17, 52 36 & 37 Vict. c. 66 (Supreme Court of Judicature, England) ss. 3, 16

LAW REPORTS (IRELAND). [L. R. I. they might have been amended; and the whole course of the proceedings has hitherto been exactly the same as if the statutory defence had. been pleaded, in addition to the equitable defence. "ORDERED-That the appeal should be dismissed with costs; but the Court doth not decide upon the validity or invalidity of the lease in the Defendant's statement of defence mentioned." Solicitor for the Plaintiff : Gerrard. Solicitors for the Defendant : Wawa Weldon. EMILY NUNN v. EDWARD W. NUNN-No. 1 (1). July 15, 18. Action upon final decree or order of English Court-Order for permanent aliÂÂmony made by the Probate and Divorce Division of the High Court of Justice in England after decree for judicial separation-Alimony payable at a fixed rate until further order-Order, whether final or interlocutory-20 6. 21 Vict. c. 85 (Divorce and Matrimonial Causes, England) se. 17, 52 -36 (5. 37 Vict. c. 66 (Supreme Court of judicature, England) ss. 3, 16 -Ord. XLII., R. 20 (England). A decree for judicial separation at suit of a wife in the Probate, Divorce, and Admiralty Division of the High Court of Justice in England, was followed by an order of that Division for permanent alimony, payable by the Respondent to the Petitioner in the suit, at a fixed quarterly rate, until further order. No further order had, in fact, been made : Held, affirming the decision of the Queen's Bench Division, that the order was final and not interlocutory, and that arrears of the alimony were recoverÂÂable by action in Ireland, where the Respondent resided. APPEAL from an order of the Queen's Bench Division, of the 9th of February, 1880, overruling the Defendant's demurrer to the statement of claim. See the ease reported in the Court below, 6 L. R. (Ir.) 115, where the pleadings and arguments are stated. VoL. VIII.] Q. B., C. P., & EX. DIVISIONS. 299 Purcell, Q. C., and Barton, for the Defendant, the Appellant. Appeal. r880. Monroe, Q. C., and Martin Burke, for the Plaintiff, the Respon- Nuxx dent. V. Nuxx. The following additional authorities were cited :-Booth v. Egan (1) ; Best v. Pembroke (2). Cur. adv. melt. LORD O'HAGAN, C. :- July 18. In this case the action was brought for 880, being two gales of alimony,which was payable quarterly. The decree ordering the payment of alimony was a decree of the Probate and Matrimonial Division of the High Court of Justice in England. There had been, in the first instance, a decree of that Court for a judicial separation on account of cruelty and adultery by the Defendant, which was pronounced on the 28th of November, 1878 ; and followÂÂing that, on the 3rd of February, 1879, an order was made for the payment of permanent alimony by the Defendant to the Plaintiff, which was fixed at 1760 a-year, payable quarterly. The present state of facts is this-that one quarter's alimony has been paid, but two quarters, accruing on May 28th, and August 28th, 1879, reÂÂmain due. The husband lives in Ireland ; and whatever property he has is in Ireland; and neither his person nor his property can be attached in England. The statement of claim having set forth these facts, a demurrer was taken on behalf of the Defendant, and that demurrer was grounded simply on the ,point that the comÂÂplaint in question could only be dealt with by the Probate and Matrimonial Division in England. A counterclaim was put in, but that does not come before us here. The Queen's Bench DiviÂÂsion overruled the demurrer, and we are unanimous in this Court in holding that their decision was right. It is admitted, that if there be not this mode of obtaining a remedy for a clear wrong, none other exists, according to our law. If the order of the Probate and Matrimonial Division is only en (1) 14 Ir. L. T. 48. (2) L. B. 8 Q. B. 363. 300 LAW REPORTS (IRELAND). [L. R. I. Appeal. forceable in England, and if neither person nor property can be 1880. attached in that country, it is plain that the decree becomes un NUNN enforceable altogether ; a flagrant failure of justice must take NUNN. place ; and, in spite of all obligation and duty, the Defendant will go scot-free, and leave his wife to starve. If that be the law, it must be carried out ; but, as was observed in the Court below, it would be law in the highest degree discreditable to our system of judicature. Let us see if it is so. For my own part I do not concur with the learned counsel who-supported the case of the Plaintiff, in thinking that if the JudicaÂÂture Act had not passed, they would have had no case. I think otherwise; and I wish it to be understood that my judgment proceeds upon grounds independent of the Judicature Act and its Orders. It might be proper and legitimate to bring in aid that Act and the Orders, in support of their argument ; but if the Act had never passed at all, I am of opinion that the decree of the English Probate and Matrimonial Court was a final decree, and ought to be enforced as such by the Courts of this country. And I so hold, upon the clear ground that that decree having been made by a tribunal of competent jurisdiction, acting within the limits of its powers, establishing a right and declaring a duty, the person in whose favour that right was established, and that declaraÂÂtion made, is entitled to call on the Courts of Ireland to enforce the one and confirm the other, just as much as if the decree had been an Irish and not an English decree. I do not mean to go through the cases which establish that doctrine-it rests on a whole series of decisions which are not now to be quarrelled with, and in my opinion clearly rule this case. A good deal was said as to the case of Carpenter v. Thornton (1) ; and no doubt in that case, under special circumstances, there was a refusal to do the thing which' the Plaintiff here asks the Court to do for her. It was decided that an action was not to be brought on the decree of a Court of Equity. That case is not of force here, for two reasons-in the first place, the doctrine of the Court which decided that an action could not be brought upon a decree of a. (1) 3 B. & Aid. 52. VOL. VIII.] Q. B., C. P., & EX. DIVISIONS. 301 Court of Equity has been overruled. But, besides, there is a substantial distinction between that ease and this, inasmuch as the proceeding there was a proceeding in the country in which the decree had been pronounced. There, no necessity of the case comÂÂpelled a Court in another country for the enforcement of justice to sustain the rights declared by a Court of competent jurisdiction elsewhere. It was within the power of the Court of Equity itself to carry out its own decree ; whilst here, as I have said, the Court which pronounced the decree has no power to act upon it, and it can be made fruitful by no human means if we are' unable to enforce it. The case of Henley v. Soper (1), before Lord Tenterden, is worth consideration. Let us see how he viewed this matter (p. 19)-" I am of opinion that the verdict in this case was right. The action was founded on a decree of a colonial Court, which in substance fixed the amount of a balance due from one of two partners to the other. There is a great difference between the decree of a colonial Court and of a Court of Equity in this country. The colonial Court cannot enforce its decrees here ; a Court of Equity in this country may ; and, therefore, in the latter case there is no occasion for the interference of a Court of Law ; in the former case there is, to prevent the failure of justice." Now, that dictum applies to all the circumstances of this case. Here there must be a failure of justice, unless there is a right to bring this action. This is not a decree of a colonial Court, but of a Court acting beyond the limits of the jurisdiction of the tribunals of this country, and the ratio decidendi in that case applies. That was followed by the case of Russell v. Smyth (2), and from that also I shall only cite some words of Lord Abinger. That was the case of a Scotch decree-a decree of the Court of Session-and is, therefore, very analogous to this. Lord Abinger says (p. 817) :-" I cannot assent to the argument of Mr. Watson, that this is a matter of ecclesiastical jurisdiction, and that, thereÂÂfore, we are precluded from entertaining it. The question arises in Scotland, and the decree of the Court of Session creates a duty on the party to pay a debt, and does not give rise to the question (1) 8 B. & Cr. 16. (2) 9M. &W. 810. VOL. VIII. 2 C LAW REPORTS (IRELAND). [L. R. I. of jurisdiction. It is plain that this is not a decree of an EcclesiÂÂastical Court, but of a Court of competent jurisdiction awarding costs, and. not having the power i)y its own process of enforcing the payment of them in this country. An action of assumpsit, or debt, therefore, lies for the recovery of them. I think we must assume the process and decree to have been perfectly regular ; the examination of the advocate shows them to be so, and the decree is made, not against a party who does not appear, but against one who does appear, and afterwards abandons his defence. The defendant might have offered some defence, but he quits Scotland, so that the plaintiffs had no remedy against him in that country. The action may be sustained on the ground of morality and justice. The maxim of the English law is to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice. Foreign...