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the most material decisions which have taken place, and stating the principles which have been judicially recognized. (a)
(3.) Effect of foreign judgments and suits. 1. Foreign judgments.
In cases not governed by the constitution and laws of the United States, the doctrine of the English law generally, and with some few exceptions, is the law of this country, as to the force and effect to be given to foreign judgments. I shall probably take occasion, in subsequent parts of these lectures, to consider the effect to be given here to foreign contracts, foreign assignments,
foreign official acts, and other various transactions in the * 119 course of business, as the subjects to which * they can be
applied may render easy and pertinent the consideration of this branch of municipal and general jurisprudence. At present it will be sufficient to show, in connection with this inquiry, that the English law is exceedingly if not peculiarly liberal, in the respect which it pays to foreign judgments, in all other cases, except the case of a foreign divorce of an English marriage. As early as the reign of Charles II., Lord Chancellor Nottingham maintained, in the House of Lords, in Cottingham's case, (a) that a foreign decree of divorce, in the case of a foreign marriage, was conclusive, and could not be opened, or the merits reëxamined. It was against the law of nations, he observed, not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, and according to the forms of those countries wherein they were given. He referred to Wier's case, 5 Jas. I., (6) wherein a judgment in debt having been rendered in Holland against an Englishman, he fled from execution to England, and the judgment being certified, the defendant was imprisoned in the admiralty for the debt, and the K. B., upon habeas corpus, held
(a) In Tolen v. Tolen, 2 Blackf. Ind. 407, a divorce a vinculo for adultery was sus. tained in Indiana, though the parties were married in another state, where they resided, and the cause of divorce arose there, and the defendant continued to reside there, and had constructive notice only of the suit of his wife for a divorce by publication; but she had for some years been a bonâ fide citizen of Indiana, and acquired a domicil animo manendi. The decision was founded upon the authority of the statute of 1831, which allowed suits for a divorce for just cause to all persons who had resided in the state one year, and as against non-residents, on giving constructive notice by publication.
(a) Note to 2 Swanst. 242, from Lord Nottingham's MSS. (6) i Rol. Abr. 530, pl. 12.
the imprisonment to be lawful and that "it was by the law of nations that the justice of one nation should be aiding to the justice of another nation, and the one to execute the judgments of the other.” It has become a settled principle in the English courts, that where a debt has been recovered of a debtor, under the process of foreign attachment, fairly and not collusively, the recovery is a protection to the garnishee against his original creditor, and he may plead it in bar. (c)
A distinction has been taken, since the time of Lord Nottingham, between a suit * brought to enforce a foreign * 120 judgment, and a plea of a foreign judgment in bar of a fresh suit for the same cause. No sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by a suit upon the judgment, or otherwise, he is at liberty, in his courts of justice, to examine into the merits of such judgment; for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty. In the former case of a suit to enforce a foreign judgment, the rule is, that the foreign judgment is to be received, in the first instance, as prima facie evidence of the debt, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly and unduly obtained. This was the principle declared and settled by the House of Lords, in 1771, in the case of Sinclair v. Fraser, upon an appeal from the court of session in
(c) Le Chevalier v. Lynch, Doug. 170. Cleve v. Mills, Cooke's B. L. 243. Allen v. Dundas, 3 Term Rep. 125. M’Daniel v. Hughes, 3 East, 367. Huxham v. Smith, 2 Campb. N. P. 19. Embree v. Hanna, 5 Johns. 101. Holmes v. Remsen, 4 Johns. Ch. 460. Where proceedings are in rem, all persons who could have asserted a right to the property become parties by the monition; and all judgments founded upon such proceedings, whether they regard real or personal property, being within the jurisdiction of the court, are held valid and binding, as being res judicata in every other country, in respect to all matters of right and title, transfer and disposition of the property. Rose v. Himely, 4 Cranch, 241. 7 Ibid. 429, S. P. Grant v. M’Lachlin, 4 Johns. 34. Curia Philipica, part 2, sec. 22, cited and proved on trial as containing the same and the true Spanish law on the point. 3 Binney, 230, note. Bauduc v. Nicholson, 4 Louis. 81. Castrique v. Imrie, 8 Com. B. N. S., 1-405.
1 Cummings v. Banks, 2 Barb. (N. Y.) 602.
1 Noyes v. Butler, 6 Barb. (N. Y.) 613. Though the judgment is only primâ facie evidence of facts, which go to establish the jurisdiction of the court rendering the judgment, yet it is conclusive as to other facts.
Scotland. (a) But if the foreign judgment has been pronounced by a court possessed of competent jurisdiction over the cause and
(a) Cited in the case of The Duchess of Kingston, 11 State Tr. by Harg. 222; and also in Walker v. Witter, Doug. 1; and in Galbraith v. Neville, Ibid. 6, note. See, also, Lord Kenyon's opinion in this latter case, 5 East, 475, note ; and also Lord Mansfield's opinion in Walker v. Witter, and the opinion of Buller J., in Galbraith v. Neville, and the opinion of Lord Ch. J. Eyre, in Philips v. Hunter, 2 H. Blacks. 410. Hall. v. Odber, 11 East, 124. But in Martin v. Nicolls, 3 Sim. 458, the vice-chancellor has undertaken to controvert the doctrine in Sinclair v. Fraser, and he held that a foreign judgment could not be questioned, not merely when it comes in collaterally, or by way of defence, but in a suit brought directly upon it to enforce it. It is requisite, however, in order to recognize and give effect in any way to a foreign judgment, that the court which pronounced it was competent to the case, and had due and lawful jurisdiction over the cause and the parties, and that there had been regular judicial proceedings ; and this is the case whether the proceedings which led to the judgment be in rem or in personam.2 Sawyer v. The Maine F. & M. Ins. Co. 12 Mass. 291. Bradstreet v. Neptune Ins. Co. 3 Sumner, 600. Story's Com. on the Conflict of Laws, \\ 586590. See, also, supra, vol. i. p. 251, n. b. The present inclination of the English courts is in conformity with the opinion of the vice-chancellor. Lord Ellenborough, in Tarleton v. Tarleton, 4 M. & S. 21. Guinness v. Carwell, 1 B. & Aldol. 429. Becquet v. McCarthy, 2 Ibid. 951. See, also, Starkie Evidence, vol. 1, p. 297. The arguments and authorities for and against the latter doctrine of the English courts, that a foreign judgment, regularly obtained, is conclusive ex comitate gentium, as well where it is sought to be enforced as when it is interposed by way of plea, are fully and ably stated and considered in Southgate v. Montgomerie, in the Scotch court at Edinburgh, in 1835. The lord ordinary (Jeffrey) decided that foreign judgments were only primâ facie evidence of the claim, and the discussions alluded to were on appeal from that decision. It would seem, from the case of Smith v. Nicolls, 5 Bing. N. C. 208, that the English courts are returning to the old doctrine of Mansfield, Eyre, and Kenyon, that in assumpsit on a foreign judgment, the judgment is only primâ fucie evidence of the debt. In Houlditch v. Donegal, (8 Bligh, 301,) the result of the judgment of the House of Lords was, that there were cases in which it was competent for the court to look into the ground and reasons of the foreign judgment, and satisfy itself as to the law of the country. And in Koster v. Sapte, (1 Curteis, 691,) in the prerogative court of Canterbury, Sir Herbert Jenner admitted, that under certain circumstances, as where there was a question as to jurisdiction, or whether the party was cited according to law, and for some other purpose, a foreign decree might be examined, but that it could not be opened, in order to examine by your own lights and knowledge whether a foreign judgment was pronounced on good ground or not. See, also, on this subject, Bradstreet v. Neptune Ins. Co. 3 Sumner, 600. The Law Reporter, No. 2, for January, 1840. Price v. Dewhurst, 8 Sim. 279. Mr. Justice Story reasons strongly in favor of the latter doctrine of the absolute conclusiveness of foreign judgments; (Com. on the Conflict of Laws, \ 607;) and that is certainly the more convenient and the safest rule, and the most consistent with sound
• A plea of foreign judgment, must show that the judgment was final and conclusive between the parties by the law of the place where it was pronounced. Frayes v. Worms, 10 Com. B. N. S. 149.
the parties, and carried into effect, and the losing parties institute a new suit upon the same matter, the plea of the former judgment constitutes an absolute bar, provided the subject, and the parties, and grounds of the judgment, be the same. It is a res judicata, which is received as evidence of truth; and the exceptio rei judicatæ, as the plea is termed in the civil law, is final and conclusive. (6) This is a principle of general jurisprudence, founded on public convenience, and sanctioned by the usage and courtesy of nations. (c) The rule of the English law has been * very * 121 generally recognized in the courts of justice in this country,
principle, except in cases in which the court which pronounced the judgment has not due jurisdiction of the case, or of the defendant, or the proceeding was in fraud or founded in palpable mistake or irregularity, or bad by the law of the rei judicatæ ; and in all such cases the justice of the judgment ought to be impeached. Not only Vattel, but Huberus and other civilians cited by Henry on Foreign Law, maintain the entire validity of foreign judgments in every other country. Vattel, b. 2, ch. 7, sec. 84, 85. Haberus de Conflictu Legum, lib. 1, tit. 3, sec. 36. Henry on Foreign Law, 74, 75, 76. In Boston India Rubber Factory v. Hoit, 14 Vermont, 92, it was held that assumpsit was not the proper action on a judgment of another state, but it should be debt on the record of the judgment. See, supra, vol. i. p. [260.] *
(6) Hughes v. Cornelius, Raym. 473. S. C. 2 Show. 232. Burrows v. Jemino, Str. 733. Hamilton v. The Dutch East India Company, 8 Bro. C. P. by Tomlins, p. 264. Lothian v. Henderson, 3 Bos. & Pull. 499. Graham v. Maxwell, 2 Dow, 314. Lord Ch. J. Eyre, in Philips v. Hunter, 2 H. Blacks. 410. Tarleton v. Tarleton, 4 M. & S. 20. Thompson v. Tolmie, 2 Peters U. S. 157. Lalanne v. Moreau, 13 Louis. 437. De Cosse Brissac v. Rathbone, 6 Exch. (N. S.) 301.
(c) Vattel, b. 2, ch. 7, sec. 84, 85. Martens's Summary of the Law of Nations, b. 3, ch. 2, sec. 20. Ersks. Inst. of Scots's Law, vol. ii. p. 735. Kame's Pr. of Equity, vol. ii. p. 366, or, b. 3, ch. 8, sec. 6. Notes to vol. i. p. 6, of More's edit. of Lord Stair’s Institutions. A judgment, while it stands, cannot be impeached by the parties or privies to the record, in a collateral action, or in another court. This is a general principle.
: It is now held in England that the record of a foreign judgment is primâ facie evidence so far only as to admit the defendant to show either that the court which pronounced it had not jurisdiction, or that the judgment was obtained by fraud; but that upon the merits it is conclusive. Bank of Australasia v. Nias, 4 E. L. & Eq. 252. The declaration on a foreign judgment need not show that the court had jurisdiction over the parties or the cause, Robertson v. Struth, 5 Q. B. 941, and every presumption is to be made in favor of a judgment of a foreign court of competent jurisdiction. Henderson v. Henderson, 6 Q. B. 288.
The court inclined to the same opinion as to the conclusiveness of a foreign judgment on the merits, in Cummings v. Banks, 2 Barb. (N. Y.)602, though in that case it was sufficient to regard the foreign judgment as only primâ facie evidence. And see Wood v. Gamble, 11 Cush. 8. Monroe v. Douglas, 4 Sandf. Ch. 126. In the latter case, the whole subject of foreign judgments was discussed by the assistant vice-chancellor (Sanford) with perspicuity and learning. A foreign judgment does not merge the original cause of action. Lyman v: Brown, 2 Curtis C. C. 559. Barber v. Lamb, 8 Com. B. (N. S.) 95.
in cases not affected by the constitution and law of the United States. (a) There is one exception in the jurisprudence of some of the states, as to the force and effect of foreign sentences in the prize courts of admiralty, bearing upon neutral rights. While those sentences are regarded in the courts of the United States as binding and conclusive upon the same questions, (6) there has been some difference of opinion, and some collisions on this point, in the decisions in the state courts. (c) The weight of judicial authority appears, however, to be decidedly in favor of the binding force and universal application of the doctrine of the English law. (d)
De Medina v. Grove, 10 Ad. & El. (N. S.) 152. This case has been affirmed in the Exchequer Chamber, Id. 172.4
(a) Hitchcock & Fitch v. Aickin, 1 Caines, 460. Goix x. Low, 1 Johns. Cas. 341. Taylor v. Bryden, 8 Johns. 178. Aldrich v. Kinney, 4 Conn. 380. Bissell v. Briggs, 9 Mass. 463. Washington, J., 4 Cranch, 442. Taylor v. Phelps, 1 Harr. & Gill, 492. Barney v. Patterson, 6 Harr. & Johns. 182. Story's Com. on the Conflict of Laws, $ 586, et seq., and the numerous cases there collected. A judgment on a trustee process, in one state, will protect the trustee in a suit in another state for the same debt. Ocean Ins. Co. v. Portsmouth R. R. Co. 3 Metcalf, 420.
(6) Croudson v. Leonard, 4 Cranch, 434. Rose v. Himely, Ibid. 241. Hudson v. Guestier, Ibid. 293. Bradstreet v. The Neptune Ins. Co. 3 Sumner, 600.
(c) They were declared to be conclusive, according to the English rule, upon the question of neutral property, in a subsequent suit upon the policy of insurance, by the courts of law in New York. Ludlows v. Dale, 1 Johns. Cas. 16. Vandenheuvel v. United Insurance Company, 2 Ibid. 127. But the doctrine in those cases was reversed in the Court of Errors, 2 Ibid. 451. They were declared to be conclusive, by the Supreme Court of Pennsylvania, in 1 Binn. 299, note; but the legislature of that state, by an Act passed in March, 1809, declared that they should not be held conclusive. They were held to be binding in South Carolina, 2 Bay, 242; in Connecticut, 1 Day, 142; in Massachusetts, 6 Mass. 277; in Maryland, Gray v. Swan, 1 Harr. & Johns 142; but an Act of the legislature of Maryland, in 1813, ch. 164, reduced the sentences of condemnation of foreign prize courts to the character of primâ facie proof. They were held conclusive in Cucullu v. Louisiana Ins. Co. 17 Martin (Louis.) 464.
(d) Admiralty courts, being courts of the law of nations, their seal is judicially taken notice of in the courts of other countries, without positive proof of its authenticity; Yeaton v. Fry, 5 Cranch, 335, 343. Thompson v. Stewart, 3 Conn. 171; though the rule is different as to the seal of other foreign courts, and it must be proved, like any other fact. Delafield v. Hand, 3 Johns. 310. De Sobry v. De Laistre, 2 Harr & Johns. 192. Henry v. Adey, 3 East, 221. The question touching the effect of for
• But a judgment, whether it be of foreign or domestic origin, may be impeached as baring been obtained by collusion and fraud. Perry v. Meddowcroft, 10 Beavan, 122. Meddowcroft v..Huguenin, 4 Moore P. C. Cases, 386. Bandon v. Becher, 3 Clark & Fin. 479. Dobson v. Pearce, 2 Kernan (12 N. Y.) 156.