Earl Nelson v Lord Bridport

JurisdictionEngland & Wales
Judgment Date04 November 1845
Date04 November 1845
CourtHigh Court of Chancery

English Reports Citation: 50 E.R. 207

ROLLS COURT

Earl Nelson
and
Lord Bridport

S. C. 10 Jur. 871.

[527] earl nelson v. lord bridport. July 4, 5, 7, 9, 10, Nov. 4, 1845. [8. C. 10 Jur. 871.] As to the mode in which a foreign law ought to be proved in an English Court of Justice, and observations on the difficulties in adjudicating thereon. It is a rule of English law, that no knowledge of foreign law is to be imputed to an English Judge sitting in a Court of mere English jurisdiction. As cases arise, in which the rights of parties litigating in English Courts cannot be determined, without ascertaining, to some extent, what is the foreign law applicable in such cases, foreign law and its application, like any other results of knowledge and experience in matters of which no knowledge is imputed to a Judge, must be proved as facts are proved, by appropriate evidence, i.e., by properly qualified witnesses, or by witnesses who can state, from their own knowledge and experience, gained by study and practice, not only what are the words in which the law is expressed, but also what is the proper interpretation of those words, and the legal meaning and effect of them as applied to the case in question. There may be cases in which a Judge may take upon himself to construe the words of a foreign law, and determine their application to the case in question, especially if there should be a variance or want of clearness in the testimony. Semble. Witnesses, in giving their testimony on foreign law, may, if they think fit, refer to laws or to treatises, for the purpose of aiding their memory upon the subject of their examination; but in general, it is the testimony of the witness, and not the authority of the law or of the text writer, detached from the testimony of the witness, which is to influence the Judge. A party is not bound to produce a written law or decree which his witness, in proving a foreign law, refers to. Witnesses, in proving a foreign law, referred to certain passages in law books. Held, that this did not give the opposite party a right, without further proof, of reading any other passages from the same works. On a question of foreign law, a joint written opinion given by two jurists, was exhibited to them on their examination, which they verified as being according to the law of the foreign country. Held, that this evidence was receivable. This case, which is reported ante (6 Beavati, 295, and 7 Beavan, 195), on other points, now came before the Court upon exceptions to the Master's report. Those relating to the reception of evidence were first taken. The statement of the case contained in the judgment of the Court requires no further additions. Mr. Tinney, Mr. Gardner, and Mr. R. Palmer, for the Plaintiff. Mr. Turner, Mr. Hodgson, and Mr. Bowyer, for the Defendants Lord and Lady Bridport. Mr. Lewin, for another Defendant. [528] Nov. 4. the master of the rolls [Lord Langdale]. This case was heard on exceptions taken to the Master's report, claterl the 17th of December 1844, and made in pursuance of the decree of the 28th of April 1841, whereby it was 208 EARL NELSON V. LORD BRIDPORT 8 BEAV. 829. referred to him to make various inquiries as to the effect of the law of Sicily, upon several points, which were thought to be important in the consideration of the claims of the parties to the cause. In the year 1842 the states of facts were carried into the Master's office, and the parties were at liberty to examine their witnesses. The Plaintiff having stated his case, in a manner of which no substantial complaint baa been made, procured the joint opinion of Kuggiero arid Gacace, two Sicilian lawyers, upon several questions proposed to them on that case; and Ruggiero and Cacace being examined in the examiner's office, the case and joint opinion were produced to them severally, and each of them said, that he had deliberately and with much reflection considered the contents; that the opinion was the joint opinion of himself and the other witness, that it was given bond fide and conscientiously, according to the best of his experience, judgment, and ability, and was, as far as he knew or believed, in accordance with the law of Sicily in the manner therein expressed. A commission was issued to examine witnesses in Sicily, and under that commission, the Plaintiff and the Defendants, Lord and Lady Bridport, respectively, examined several Sicilian lawyers as witnesses, and in the year 1844 (the depositions being published), the parties carried in their further states of facts and charges. [829] The Plaintiffs further statement and charge was left on the 19th of March and amended on the 26th of June 1844. In this state of facts, the Plaintiff submitted to the consideration of the Master various writings and books, of which he set forth a list entitled "documentary evidence." That list comprised the case and joint opinion to which I have already referred, and several printed books, which, according to the description of the Plaintiff's witness Viola, consist, partly of compilations of the Roman civil law, the common feudal law of Europe, and the ancient and modern laws of Sicily, and partly of treatises on the ancient feudal laws. The same witness describes them as being, to the best of his knowledge and belief, all of them genuine publications, such as they purport to be, and held in estimation by the Judges and other members of the legal profession in Sicily ; and he says, that such of them as contain compilations of laws, are commonly received as evidence, in the Courts of law in Sicily, of the text of the laws which they respectively purport to set out, and that such of them as are treatises, are often referred to as useful commentaries upon the laws, and are considered to contain authoritative explanations of the law. For the laudable purpose (as it would seem) of relieving the subject from the vagueness of this general testimony, and shewing what particular parts or passages of these voluminous works were intended to be referred to, an exhibit marked Z was produced to the witness. It contains a list of the books which had been referred to by the witness, with references to particular passages, sufficiently marked by pages or other appropriate indications, and the witness stated, that the laws which he had quoted would be found at the pages [530] specified in the exhibit, and that, at each of the passages or places set forth in the exhibit, would be found an authority or confirmatory opinion in support of the answers he had given. The Defendants, Lord and Lady Bridport, carried in their further state of facts and charge on the 27th of March 1844; and they also submitted to the consideration of the Master the depositions of their witnesses, and certain documentary evidence, including certain Sicilian laws and decrees dated in the year 1818, and also the civil code of laws of the two Sicilies. The witnesses of the Defendants, Lord and Lady Briclport, in their depositions, referred to several law books, which they did not produce or authenticate; but, as it would seem, assuming them to be genuine and authentic books, they refer to them with more or less particularity, sometimes stating the law and then adding to the statement a mere reference to the books, sometimes stating the law to be as appearing in the books, and sometimes setting forth extracts or passages from the books. Amongst the books referred to by the witnesses of the Defendants, Lord and Lady Bridport, are some which are not mentioned by the Plaintiff's witness Viola, or in the exhibit Z produced to him, and in particular, certain works or publications of Rosenthal, Cutelli, Milanensis, and Eochetti. The Plaintiff afterwards carried in two further statements :- SBEAV.B1. EARL NELSON V. LORD BRIDPORT 209 I. On the 7th of June he carried in a statement of that which he called his " documentary evidence " as adduced on his behalf. [631] This further statement contains, at length, the case and opinion upon which Ruggiero and Cacaee were examined, and several extracts or passages from many of the books specified in the exhibit Z. I think that the further statement does not contain all the passages, nor even mention all the books specified in the exhibit Z ; but it does contain several passages purported or alleged to be contained in books which are specified in the exhibit Z, although such passages are not therein specifically referred to. Thus, it contains an annotation of Yeernia upon the " Constitutio divas memorise," to titles from the Book of Feuds, and several passages from Struvius, Cannetius, Cumia, Intrigliolus, Giurba, Gastotie, arid De Neapoli, which annotation titles and passages, are none of them specified in the exhibit Z, though the books from which the same passages purport to be taken, are therein specified. II. On the 10th of June 1844 the Plaintiff carried in a further statement as to the feudal common law text writers, and Sicilian feudal law text writers, and reporters of Sicilian decisions, cited or referred to in the depositions of the witnesses of the Defendants, Lord and Lady Bridport, as authorities for them. This statement contains extracts from the books of Rosenthal, Cotelli, Milanensis and Rochetti, and these extracts were submitted to the consideration of the Master, as qualifying, explaining, correcting or contradicting the effect of the passages from the same books, which are referred to or cited by the witnesses of the Defendants, Lord and Lady Bridport. And at the close of the statement, the Plaintiff insists on- his right to refer to and make use of all works or authorities, or, as I understand it, any passage of any work or authority cited [532] for the Defendants, Lord and Lady Bridport, which he (the Plaintiff), has not used in that statement. Questions being raised as to the admissibility of the evidence, it appears that the Master admitted every book which was produced to him as evidence of the written law of...

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38 cases
  • O'Callaghan v O'Sullivan
    • United Kingdom
    • Privy Council
    • 1 January 1926
    ...Bode's Case, 8 Q. B. 208, and Nelson v. Bridport,ENR 8 Beav. 527, applied. The judgment of Lord Langdale, M. R., in Nelson v. Bridport,ENR8 Beav. 527, having regard to the approval it has received, is to be taken as an exposition of the settled principles upon which the Court will deal with......
  • O'Callaghan v O'Sullivan
    • Ireland
    • Supreme Court (Irish Free State)
    • 31 March 1925
    ...Bode's Case, 8 Q. B. 208, and Nelson v. Bridport,ENR 8 Beav. 527, applied. The judgment of Lord Langdale, M. R., in Nelson v. Bridport,ENR8 Beav. 527, having regard to the approval it has received, is to be taken as an exposition of the settled principles upon which the Court will deal with......
  • Sterling (Eileen Beverley) v Frank Arthur Sterling
    • Jamaica
    • Court of Appeal (Jamaica)
    • 13 November 2009
    ...in Canada. To support this submission, he relied on the case of Chiwell v Carlyon (1897) 14 S.C. 61. Relying also on the case of Earl Nelson v Lord Bridport (1845) 8 Beav 527, he further submitted that the Canadian court did not have jurisdiction to compel a transfer of the property because......
  • The Kyrgyz Republic v Stans Energy Corporation and Another
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 13 October 2017
    ...sources in order itself to decide between the conflicting testimony:" Dicey & Morris, vol. 1, p. 223. See Earl Nelson v. Lord Bridport, 8 Beav. 527, 537, per Lord Langdale M.R.: "Such I conceive to be the general rule; but the cases to which it is applicable admit of great variety. Though a......
  • Request a trial to view additional results
1 firm's commentaries
3 books & journal articles
  • Pleading and proving foreign law in Australia.
    • Australia
    • Melbourne University Law Review Vol. 31 No. 2, August 2007
    • 1 August 2007
    ...Warnick J, 13 October 2005) (Chinese professor); Mokbel [2006] VSC 137 (16 March 2006) (US professor). (192) Nelson v Bridport (1845) 8 Beav 527, 539-41; 50 ER 207, 212 (Lord Langdale MR); Lazard Bros & Co v Midland Bank Ltd [1933] AC 289, 208 (Lord (193) Guaranty Trust of New York v Ha......
  • Establishing the Content of Foreign Law: A Comparative Study
    • United Kingdom
    • Maastricht Journal of European and Comparative Law No. 20-1, March 2013
    • 1 March 2013
    ...International Law, Shaheeza Lalani112 20 MJ 1 (2013)p.101, 105; Section 4 of the Civil Evi dence Act 1972; Nelson v. Bridgeport, (1845) 8 Beav. 527; Parkash o v. Sin gh, (1968), p.233, 250 (per Cairns , J.). Information pertai ning to the United Ki ngdom was veri ed by Professor Paul Bea......
  • Succession
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • 21 June 2016
    ...to movables, there is support for using 80 Above note 35. See Chapter 20. 81 Above note 70. 82 Nelson v Bridport (1845), 8 Beav 537, 50 ER 207. 380 CONFLICT OF the law of the testator’s domicile.83 It is unclear, however, whether it is the testator’s domicile at the time of making the will ......

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