Huntington v Attrill

JurisdictionUK Non-devolved
Judgment Date1893
Date1893
Year1893
CourtPrivy Council
[PRIVY COUNCIL.] HUNTINGTON PLAINTIFF; AND ATTRILL DEFENDANT. ON APPEAL FROM THE SUPREME COURT OF APPEAL FOR ONTARIO. 1891 Nov. 18; Dec. 9; 1892 Feb. 17. THE LORD CHANCELLOR (LORD HALSBURY), LORD WATSON, LORD BRAMWELL, LORD HOBHOUSE, LORD MORRIS, and LORD SHAND.

International Law - Foreign Judgment - Penal Actions - Distinction between Public and Private Penalties.

To an action by the appellant in an Ontario Court upon a judgment of a New York Court against the respondent under sect 21 of New York State laws of 1875, c. 611, which imposes liability in respect of false representations, the latter pleaded that the judgment was for a penalty inflicted by the municipal law of New York, and that the action, being of a penal character, ought not to be entertained by a foreign Court:—

Held, that the action being by a subject to enforce in his own interest a liability imposed for the protection of his private rights, was remedial, and not penal in the sense pleaded. It was not within the rule of international law which prohibits the Courts of one country from executing the penal laws of another or enforcing penalties recoverable in favour of the State:

Held, further, that it was the duty of the Ontario Court to decide whether the statute in question was penal within the meaning of the international rule so as to oust its jurisdiction; and that such Court was not bound by the interpretation thereof adopted by the Courts of New York.

APPEAL from a decree of the Court of Appeal (Jan. 13, 1891) affirming a decree of Street, J. (Sept. 15, 1888), and dismissing the appellant's action.

The facts and proceedings are stated in the judgment of their Lordships. The judgment of Street, J., is reported in 17 Ontario Reports, 245, and the judgments in the Appeal Court are reported in 18 Ontario Appeal Reports, 136.

Street, J., held that, according to international law, penalties imposed by statute can only be enforced in the tribunals of the State by the laws of which they are imposed, and that the principle applies to actions upon judgments for such penalties. He further held that the claim this case was an action for a penalty within the above rule, basing his opinion upon New York decisions to that effect.

In the Appeal Court the judges were equally divided in opinion. Burton and Maclennan, JJ.A., held that the question whether the action in New York was for a penalty or not was concluded by the decisions of the New York Courts. Hagarty, C.J., while agreeing that no action is maintainable on the judgment of a foreign State in respect of a penalty inflicted by the laws of such State, dissented from the decisions of the New York Courts, and held that the liability imposed by the statute in question was not a liability in the nature of a penalty. Osler, J.A., agreeing with the conclusion of Hagarty, C.J., held that the liability in question could not be regarded as a penal liability within the meaning of the principles of international law in question, and consequently that the action was maintainable. He was of opinion, however, that no action would have been maintainable in the Canadian Courts upon the cause of action, in respect of which the judgment was given in the New York Supreme Court.

Sir Horace Davey, Q.C., Finlay, Q.C., and Pollard, for the appellant, contended that the liability imposed by the New York State Act was not a liability in the nature of a penalty within the meaning of those provisions of international law which prohibit courts of justice from enforcing penalties inflicted by the laws of a foreign State. The action on the judgment obtained by the appellant accordingly was maintainable. The judgment had been obtained in respect of a liability incurred by the respondent for all the debts of a company under sect. 21 of the New York Act. That liability was in reality and under all the circumstances contractual, and not by way of penalty, and the action in which it was enforced was not a penal action, but one by which a private remedy was sought to be enforced. The appellant contracted with the company, on the faith of the liability imposed in his favour as the respondent, by sect. 21. That liability — resulted in debt by the respondent. [LORD BRAMWELL:— What provision as to limitation would have applied to the case?] The ordinary provision with regard to debt. The action was a civil remedy to enforce payment of debt, not to enforce a penalty due to the public, nor even for the recovery of damages. By the law of the State of New York the action was not a penal action. Nor was it such by the law of the Ontario Court, which ought to decide by the principles of English law whether an action on such a judgment was maintainable against the respondent. By the law of England such action is maintainable; being brought on a judgment of a Court of competent jurisdiction creating an obligation on the part of the judgment debtor to pay the amount. Reference was made to Godard v. GrayF1. With regard to penal laws, Wharton's Law Lexicon defines them as of three kinds: poena pecuniaria, poena corporalis, and poena exilii, all prohibiting an act, and imposing a penalty for the commission of it. Penal actions are those brought by a common informer, or by the public authority, to redress a public wrong; remedial actions are those brought by the party injured to redress a private wrong. See Bones v. BoothF2; Hussey v. MoreF3; Earl Spencer v. SwannellF4; and for American authorities, Merchants Bank v. BlissF5; Stokes v. StickneyF6. Reference was also made to the judgments of the two dissentient judges in Attrill v. HuntingtonF7; Steam Engine Company v. HubbardF8; Flash v. ConnF9.

The Attorney General (Sir R. Webster), Gore and Ackwith, for the respondent, contended that, according to principles of international law, the judgment sued on created no obligation on the part of the respondent which a foreign State will recognise. The Courts of the country where the judgment is sued on must judge for themselves as to the nature of the judgment, although in doing so they will pay great regard to any decisions of the Courts of the country where the judgment was passed, and to the reasons on which such decisions proceed. It was contended that this judgment was of a punitive or penal nature, and as such was enforceable only by the Courts of New York. Here, by universal consent of all the Courts of the country where the Act and the judgment were passed, an action of this kind has been treated as penal. They held that a liability of the kind sought to be enforced in this case is in the nature of a penalty, that it bears no relation to the actual loss or damage sustained by the party to whom the action is given, that it is punitive in its nature and is inflicted upon grounds of public policy. Reference was made to Merchants Bank v. BlissF10; Wiles v. SuydamF11; Easterly v. BarberF12; Knox v. BaldwinF13; Veeder v. BakerF14. In those and other cases, causes of action of this nature have been held to be within a New York Statute of Limitation applicable solely to actions for penalties. Reference was also made to Jones v. JonesF15; Hobbs v. HudsonF16; Attrill v. HuntingtonF17; First National Bank of Plymouth v. PriceF18...

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    ...or indirectly, of a penal law of a foreign state (see Dicey, Morris & Collins, The Conflicts of Law (15th edition) at 5R-019). In Huntingdon v Attrill [1839] Appeal Cases 150, Lord Watson, who gave the judgment of the court, said: The court appealed to must determine for itself in the first......
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    ...law. Thus, whether the foreign law regards the law in question as a penal law, or a revenue law, or a public law is irrelevant: Huntington v. Attrill [1893] AC 150, at 155. "In deciding how to characterise a claim, the court must, of course, examine its substance, and not be misled by appea......
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    ...The term "other public laws" is very uncertain. But so are the terms "penal" and "revenue". The meaning of "penal" was discussed in Huntington v. Attrill (1893) Appeal Cases 150 and Loucks v. standard Oil Co. of New York (1918) 224 NY 99. The meaning of "revenue" was discussed in Governmen......
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5 firm's commentaries
  • Disputes With States
    • United Kingdom
    • Mondaq UK
    • 15 September 2021
    ...by the English court has lead to confusing outcomes. The foundation for this rule was explained by Lord Watson in Huntington v. Attrill [1893] AC 150: "The rule has its foundation in the well-recognised principle that crimes, including in that term all breaches of public law punishable by p......
  • Disputes With States
    • United Kingdom
    • Mondaq UK
    • 15 September 2021
    ...by the English court has lead to confusing outcomes. The foundation for this rule was explained by Lord Watson in Huntington v. Attrill [1893] AC 150: "The rule has its foundation in the well-recognised principle that crimes, including in that term all breaches of public law punishable by p......
  • Enforcement of Foreign Judgments Comparative Guide
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    ...v Ortiz [1984] AC 1 at 20 regarding penal and revenue laws and from [139]-[146], especially [145]. See further Huntington v Attrill [1893] AC 150 and Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR As regards the third factor, a finding of a foreign cour......
  • Enforcement Of Foreign Judgements In England
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    • Mondaq United Kingdom
    • 19 August 2009
    ...by the English court has lead to confusing outcomes. The foundation for this rule was explained by Lord Watson in Huntington v Attrill [1893] AC 150, "The rule has its foundation in the principle that crimes, including in that term all breaches of public law punishable by pecuniary mulct, o......
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9 books & journal articles
  • United Kingdom
    • United States
    • ABA Antitrust Library Obtaining Discovery Abroad. Third Edition
    • 8 December 2020
    ...that, in giving the evidence, they would breach their bankers’ duty of confidentiality to 138 . Id. at 809. 139 . Huntington v. Attrill [1893] AC 150 (PC) at 156-157 (appeal taken from Ontario) (Eng.). 140 . S.A. Consortium Gen. Textiles v. Sun & Sand Agencies Ltd. [1978] QB 279 (CA) (appea......
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    • Irwin Books Archive Conflict of Laws
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    ...(4th) 16, [1993] S.C.J. No. 125......................... 41, 54, 56, 85, 94, 95, 109, 169 , 171, 237, 240, 241–42 Huntington v. Attrill, [1893] A.C. 150 (P.C.) ........................................34, 172, 173 Hurst v. Societe Nationale de L’Amiante (2008), 93 O.R. (3d) 338, 297 D.L.R. (......
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    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...[2004] 1 WLR 692 at [50]; Securities Exchange Commission v Ong Congqin Bobby [1999] 1 SLR 310 at [11] – [12]; Huntington v Attrill [1893] 1 AC 150 at 157; SA Consortium General Textiles v Sun & Sand Agencies Ltd [1978] 1 QB 279 at 299–300. 88 Schnabel v Lui [2002] NSWSC 15 at [177]. Cf Bene......
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    ...Court will take into account in determining whether to exercise its discretion to refuse to give effect to a 67. Huntington v. Attrill, [1893] AC 150 at 156 (appeal taken from Ontario). 68. S.A. Consortium General Textiles v. Sun and Sand Agencies Ltd., [1978] QB 279. 69. It should be noted......
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