cases through their attorneys. By way of dictum in the Hilton case, and with a quote from Story's Conflict of Laws, 28, the Supreme Court does indicate that the law of the country in which the judgment is sought to be enforced should be applied. 159 U.S. at 164-165, 16 S. Ct. 139. Other than this reference, the Supreme Court has not specifically decided this question, and it remains largely an open one in this country. This Court is not, however, without some precedent to guide its resolution of the problem.
A leading English case on this point, Schibsby v. Westenholz, L.R. 6 Q.B. 155, involving an action in England on a default judgment of a French tribunal against British residents, held that English law should decide whether the French court had jurisdiction over the defendant. The Queen's Bench used the following example to illustrate the choice of its own law:
'Should a foreigner be sued (in England while absent) under the provisions of the (British) statute referred to, and then come to the courts of this country and desire to be discharged, the only question which our courts could entertain would be whether the Acts of the British legislature, rightly construed, gave us jurisdiction over this foreigner, for we must obey them. But if, judgment being given against him in our courts, an action were brought upon it in the courts of the United States (where the law as to the enforcing foreign judgments is the same as our own) a further question would be open, viz, not only whether the British legislature had given the English courts jurisdiction over the defendant, but whether he was under any obligation which the American courts could recognize to submit to the jurisdiction thus created. L.R. 6 Q.B. at 159-60.'
American writers agree that our own courts 'require for recognition of the legal effect of foreign judicial proceedings that the foreign courts have jurisdiction, not as measured by the standards abroad but as measured by their own conception of what falls within the scope of permissible exercise of judicial power.' Stumberg, Conflicts of Law 66-67 (3d ed.); Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum.L.Rev. 783, 789; 3 Freeman on Judgments, § 1484.
In addition, several courts in this country have held that the jurisdiction of a foreign country to render a judgment against United States citizens and corporations must be determined under the same standards applied to a judgment of one state in this country sought to be enforced in another. Compagnie Du Port De Rio De Janeiro v. Mead Morrison Mfg. Co., 19 F.2d 163 (S.D.Me.); Pope v. Heckscher, 266 N.Y. 114, 194 N.E. 53, 97 A.L.R. 687; Ryder v. Ryder, 2 Cal.App.2d 426, 37 P.2d 1069.
Therefore, this Court feels that in the interest of affording United States citizens a reasonable degree of certainty as to when our own Courts will, under principles of comity, enforce a judgment rendered against such citizens in foreign countries, the issue of whether the foreign country had jurisdiction over the United States national should be determined by our own standards of judicial power as promulgated by the Supreme Court under the due process clause of the Fourteenth Amendment.
Proceeding to the final question in the present case of whether the Ontario court had jurisdiction over the defendant Frishman to permit it to grant an in personam money judgment against him in favor of the plaintiff, it is noted that the defendant relies on the early case of Pennoyer v. Neff, 95 U.S. 714, decided in 1877, which held that a non-resident of a state must either have been served personally within the jurisdiction or have consented in advance to the mode of service before a state will acquire personal jurisdiction over him, in the absence of his voluntary appearance in the litigation. 95 U.S. at 733.
Even under this narrow standard, it is pointed out that the mortgage contract in the present case contains a covenant by which the defendant, as mortgagor, assented to service by the mortgagee in the manner actually carried out in the Ontario proceeding in the event of his default under the terms of the mortgage-loan agreement.
Thus, it could very well be said that the defendant submitted in advance to the jurisdiction of the Ontario court, where suit was clearly contemplated, and his failure to appear entitled the plaintiff to a default judgment.
However, the United States concept of in personam jurisdiction is no longer as limited as the defendant now argues. In 1945, the Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, established what is today the basic theory of jurisdiction over non-residents, namely, the 'minimum contacts' doctrine. The Court stated that:
'* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." 326 U.S. at 316, 66 S. Ct. at 158.
Mr. Justice Stone, in this opinion, explained that the boundary line which the Court sought to establish should not depend on criteria which were 'simply mechanical or quantitative' but 'must depend rather upon the quality and nature of the activity' performed by the nonresident within the forum state to determine whether he has sufficient 'contacts, ties, or relations.' Id. at 319, 66 S. Ct. at 160.
The policy behind the minimum contacts test was carefully stated by the Court as follows:
'But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.' Ibid.
It is clear that this reasoning applies equally as well to the conduct of an individual within the forum state.
In McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223, the Court applied the minimum contacts doctrine to the performance of a single act or transaction within the state in which suit was brought. The Court upheld a California statute which permits its residents to sue nonresident insurance companies in California courts on policies solicited by mail from outside the state.
Mr. Justice Black held in McGee:
'* * * It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. * * * It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. * * *' 355 U.S. at 223, 78 S. Ct. at 201.
Later in the same term, the Supreme Court qualified the McGee case with its decision in Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283. By distinguishing McGee on two bases, the Court, in effect prescribed the prerequisites for finding personal jurisdiction predicated on the performance of a single act within a state. First, the Court pointed out that the cause of action in the McGee case arose out of 'an act done or transaction consummated in the forum State.' Moreover, it was based on a contract which had a 'substantial connection' with that state. 357 U.S. at 251-252, 78 S. Ct. at 1238. Second, in McGee the Court noted that California had a specific statute to exercise what McGee called its 'manifest interest' in providing an effective remedy for its citizens who had suffered damage as a result of the activity engaged in by the nonresident within the state. Id. at 252, 78 S. Ct. 1228.
Though it is true that these cases are concerned with the permissible limits of jurisdiction of a state of the United States over a nonresident defendant under the Due Process clause of the Fourteenth Amendment, this Court feels that the principles established by these cases apply equally as well to the question of jurisdiction in its present international context, just as our own standards for recognizing judgments of one state sued upon in another under the Full Faith and Credit clause are applied on the basis of comity to judgments of foreign countries. Cf. Hilton v. Guyot, supra.
Applying these standards to the jurisdictional facts of the instant case, it is apparent that the defendant Frishman had substantial contacts with the Canadian Province of Ontario, the forum state for purposes of this discussion. Frishman owned land situated in Ottawa, Ontario. He entered into a mortgage-loan agreement with the plaintiff, a citizen and resident of Ottawa, Ontario, for the sizeable amount of $ 100,000, with the mortgage on his Ontario property being the consideration for the loan. Notwithstanding the fact that the agreement was executed in the District of Columbia, it was drawn on a form prescribed by the Ontario Mortgages Act, and the mortgage was registered in Ottawa, Ontario, Obviously, the defendant and the contract both have a 'substantial connection' with Ontario. Furthermore, the cause of action arose out of the breach of this mortgage-loan agreement, which clearly affected the land situated in Ontario, and the Rules of Practice of Ontario specifically permit service out of Ontario where such a contract is sought to be enforced.
Defendant has taken advantage of his ownership of property in Ontario, Canada to secure a substantial interest of his own. He should not now be allowed to avoid the consequences of his failure to live up to that agreement solely on the ground that he was not physically present in Ontario when suit was brought therein. International Shoe Co. v. State of Washington, 326 U.S. at 319, 66 S. Ct. 164. Ontario has a very definite and substantial interest in providing its citizens with an effective remedy in situations such as this, and its expression of that interest under the present facts cannot be said to be undue. Cf. McGee v. International Life Ins. Co., 355 U.S. at 223, 78 S. Ct. 199; Hanson v. Denckla, 357 U.S. at 252, 78 S. Ct. 1228.
Therefore, all the requirements for in personam jurisdiction under United States concepts of due process are present in this case, and the assumption of such jurisdiction over the defendant by the Supreme Court of Ontario would not, in the opinion of this Court, offend 'traditional notions of fair play and substantial justice.'
Thus, all of the conditions under which United States courts may give full credit and effect to the judgments of the courts of foreign countries have been satisfied, and this Court will enforce the Ontario, Canada judgment sued upon by the plaintiff herein.
Counsel will present an appropriate order to carry out the provisions of this memorandum opinion.