LORD PRESIDENT (Normand).—This application is presented by a party who was successful in a suit in England in obtaining a judgment for a principal sum of £276 and taxed costs of £96, 6s. 10d. The application is for authority to proceed with diligence for the enforcement of that judgment. On the same day in which the High Court of Chancery in England pronounced that judgment an application was made to it in accordance with the rules of the English Court, which closely correspond with our Act of Sederunt in this matter, for leave to enforce the judgment, and that leave was granted by the Court of Chancery. Thereafter a certificate of judgment was obtained in accordance with the Judgments Extension Act, 1868, and was registered in Scotland in the Books of Council and Session, and an extract is now before us, and is the basis of the present application for leave to do diligence upon it. The Judgments Extension Act authorises the grant of a certificate where judgment has been given for a sum of money; and the certificate, while bearing that a judgment was pronounced for the principal sum and taxed costs, says nothing of the application for leave to enforce the judgment or of the granting of that application. The result is that in the extract from our Books of Council and Session there is likewise no mention of leave to enforce having been granted by the English Court. It was in these circumstances that the application was made to the Outer House, and the applicant proceeded on the view that he had now to obtain leave to do diligence in accordance with the terms of subsection (2), section 1, of the Act, that the appropriate Court for the exercise of any remedies under subsection (2) was, as is prescribed by the Act of Sederunt, "Any Court which according to present practice has jurisdiction to deal with causes or matters of the nature and value involved in the application," and that the form of the application should be, in accordance with the Act of Sederunt (section 2), a petition to the Outer House of the Court of Session. The petition accordingly came before the Lord Ordinary. Before the Lord Ordinary no mention was made of the fact that the English Court had granted leave to enforce its judgment, with the result that the Lord Ordinary considered the merits of the application and of the opposition to it by the respondents, and he thereafter granted leave to proceed with diligence. The interlocutor pronounced by the Lord Ordinary has now come before us by way of reclaiming motion. Now, there is one thing which I think we cannot and must not do, and that is to rehear the application to enforce upon its merits. These have been conclusively dealt with by the English Court, and we cannot possibly review or revise what the English Court has done. Both by our rules and by the English rules the appropriate Court to grant leave to enforce a judgment is the Court which pronounces the judgment.
But there is a supposed technical difficulty which may remain, and it is this: The extract upon which a messenger-at-arms in Scotland may be invited to proceed contains no reference to the leave which was granted by the English Court in consequence of the procedure which I have described. It can do no harm for us now to affirm the interlocutor of the Lord Ordinary and so cover the successful party with our authority, if that is required, to do diligence upon a decree which the English Court has pronounced and which the English Court has given leave to enforce, and I think that ob majorem cautelam that is what we ought to do in the special circumstances of the present case. It will not have escaped your Lordships' notice that neither in the Act of Parliament nor in the Act of Sederunt is there any distinct reference to the procedure which should be followed in the not very unusual case where a decree or judgment is obtained in Scotland or England which must ultimately be enforced against a defender in the other country. I am afraid that the result is that the successful party has been put to some additional expense in obtaining from us leave to proceed to do diligence after he has obtained the substance of the thing in the English Court when he got leave to enforce its judgment.
LORD FLEMING , LORD MONCRIEFF and LORD CARMONT concurred.
