2. Of lis pendens.

A lis pendens, before the tribunals of another jurisdiction, has, in cases of proceedings in rem, been held to be a good plea in abatement of a suit. Thus, where a creditor of A., a

eign judgments has been frequently and very extensively and profoundly discussed before the French tribunals; and it is surprising to observe the very little respect or comity which has hitherto been afforded to the judicial decisions of foreign nations, in so enlightened, so polished, and so commercial a country as France.

The French jurisprudence on this subject disclaimed any authority derived from the jus gentium, and it was placed entirely upon the basis of the royal ordinance of 1629. That ordinance declared, that foreign judgments, for whatever cause, should not be deemed to create any lien, or have any execution in France; and that, notwithstanding the judgments, Frenchmen, against whom they might have been rendered, should not be affected by them, but be entitled to have their rights discussed de novo, equally as if no such judgment had been rendered. Opinions to that effect, given by several celebrated advocates of the parliament of Paris, as early as 1664, are published in the appendix to Henry's Treatise on Foreign Law, published at London, 1823.

Emerigon (Traité des Ass. ch. iv. sec. 8, ch. xii. sec. 20) said that the rule applied equally in favor of strangers domiciled in France, and it applied whether the Frenchman be the plaintiff or defendant; but as to foreign judgments between strangers, they might be executed in France, without any examination of the merits. The principle in the civil and French law is, that a judgment is conclusive only between the parties.

It has, however, been a vexed question, whether foreign judgments, as between strangers, were entitled to any notice whatever, or were to receive a blind execution without looking into their merits. There seems to have been much vibration of opinion, and doubt and uncertainty, on this point.

In the elaborate argument which M. Merlin delivered before the court of cassation, in the case of Spohrer v. Moe, and which he has preserved entire in his Questions de Droit, tit. Jugement, sec. 14, he showed, by many judicial precedents, that the French law (jurisprudence des arrets) had been uniform from the date of the royal ordinance down to this day; that nothing which had been judicially decided under a foreign jurisdiction had any effect in France, and did not afford any ground or color even for the exceptio rei judicata. He maintained that the law did not distinguish between cases, for that all foreign judgments, whoever might be the parties, whether in favor or against a Frenchman with a stranger, or whether between strangers, and whether the judgment was by default, or upon confession or trial, were of no avail in France, and the jurisprudence des arrets rejected every such distinction. Whenever this rule had been suspended, it had been occasioned by the force of special treaties, such as that between France and the Swiss cantons, in 1777; or accorded by way of reciprocity to a particular power, such as in the

1 The pendency of a replevin in a state court to settle a right of property in a vessel is a bar to a libel in admiralty to settle the same right between the same parties, though not technically a bar as a lis pendens, yet effectively so to prevent a conflict of jurisdiction. Taylor v. The Royal Saxon, 1 Wallace Jr. C. C. 311. The pendency of a prior suit cannot be pleaded in suspension of another suit, if the two are in their nature different; so that a plea of lis alibi pendens upon proceedings instituted in personam in a court of Scotland was held to be no bar to a suit in rem in the Admiralty Court of England. Harmer . Bell, 22 E. L. & Eq. 62.

*123 *bankrupt, had, bond fide and by regular process, attached in another state a debt due to A. and in the hands of B.,

case of the Duke of Lorraine, in 1738. The judgment of the court of cassation, on appeal, rendered in the year 12 of the French republic, was, that the foreign judgment, in that case, in which a Frenchman was one of the parties and a Norwegian the other, was of no effect whatever. (Vide Répertoire de Jurisprudence, tit. Jugement, sec. 6. Questions de Droit, h. t. sec. 14.) Afterward, in the case of Holker v. Parker, decided in the court of cassation in 1819, it was settled upon the authority of the new Code Civil, Nos. 2123 and 2128, and of the Code de Procedure, No. 546, that the Ordinance of 1629 no longer applied, and that the codes made no distinction among foreign judgments, and rendered them all executory, or capable of execution in France, after being subject to reëxamination; and whoever sought to enforce a foreign judgment must show the reasons on which it is founded. (Vide Questions de Droit, par M. Merlin, tit. Jugement, sec. 14.) In that very case it had been previously decided, by the court of the first instance, at Paris, in 1815, that a foreign judgment was to be regarded as definitive between strangers, and to be executed in France, without their courts being permitted to take cognizance of the merits. The Royal Court of Paris, in 1816, on appeal, decided otherwise, and declared that foreign judgments had no effect in France, and that the principle was unqualified and absolute, and was founded on the sovereignty and independence of nations, and could be invoked by all persons, subjects and strangers, without distinction. The court of cassation, on a further appeal, decided that they were to be regarded sub modo; they were not to be of any force without a new investigation of the merits; for a blind submission to. them would be repugnant to the nature of judicial tribunals, and strike at the right of sovereignty within every independent territory. I have said that the rule was settled in that case; but it seems to be difficult to know when or how the rule on this subject can be deemed settled in France, for the conflict of opinions between their various tribunals, and at different periods of time, is extraordinary. This very question, whether a foreign judgment between two strangers could receive execution in France without revision or discussion, was raised in January, 1824, before a tribunal at Paris, between Stackpoole v. Stackpoole and others, and it was decided in the negative, after a discussion, on each side, distinguished for depth of learning and a lustre of eloquence not to be surpassed. M. Toullier ventures to consider the French jurisprudence, or the droit public, of France, as being irrevocably established by the decree of the court of cassation, in 1819, and he considers it as resting on sound foundations. Foreign judgments are no longer absolute nullities, since they can be declared executory, after the French courts have taken cognizance of the merits of them, and have acted, in respect to them, in the nature of a court of appeals. The rule applies to all foreign judgments without distinction, and the French courts will admit the proofs taken in the foreign courts ·locus regit actum. Vide Toullier's Droit Civil Français, suivant l'ordre du Code, tom. x. Nos. 76-86. The French and the English law have now, at last, approached very near to each other on this interesting head of national jurisprudence. They agree perfectly when the foreign judgment is sought to be enforced; but the French courts will not permit, as they certainly ought, a plea of a foreign judgment in bar of a new suit for the same cause, to be conclusive, if fairly pronounced by a foreign court having a jurisdiction confessedly competent for the case. So far the French jurisprudence still wants the true spirit of international comity. See Merlin Répertoire, tit. Jugement, sec. 6. Pardessus, Droit Commercial, tom. v. p. 1488.2

2 It is stated in Wheaton's Elements of International Law, ed. 1855, p. 207, that the exe

it has been held, that the assignees of the bankrupt could not, by a subsequent suit, recover the debt of B. (a) The pendency of the foreign attachment is a good plea in abatement of the suit. (b) In such a case, the equity of the maxim, Qui prior est tempore, potior est jure, forcibly applies. Unless the plea in abatement was allowed in such a case, the defendant would be left without protection, and would be obliged to pay the debt twice; for the courts which had acquired jurisdiction of the cause, by the priority of the attachment, would never permit the proceeding to be defeated by the act of the party going abroad, and subjecting himself to a suit and recovery against him in another state; or by instituting proceedings, in order to avoid or arrest the course of the suit first duly commenced against him. (c) But generally, a per

*

sonal arrest and holding to bail in a foreign country can- *125 not be pleaded in abatement; and it is no obstacle to a

new arrest and holding to bail for the same cause in the English courts, and they will not take judicial notice of an arrest in a

(a) Le Chevalier v. Lynch, Doug. 170.

(b) Lord Holt, in Brook v. Smith, 1 Salk. 280. Embree v. Hanna, 5 Johns. 101. Carrol v. M'Donogh, 10 Martin (Louis.) 609. This is now the recognized doctrine in the Supreme Court of the United States. Wallace v. M'Connell, 13 Peters (U. S) 136. The priority of suit will determine the right. See Irvine v. Lumbermen's Bank, 2 Watts & Serg. 190. Lowry v. The Same, Ib. 210. But in West, Syndic, v. McConnell, 5 Louis. 424, it was held, that the pendency of a suit by foreign attachment, for the same cause of action, in another state, could not be pleaded in abatement of the action instituted in Louisiana; though it might tend to modify the relief, so as to stay execution until the party credits and accounts for the proceeds of the property seized abroad, or else dismisses the foreign attachment.

The Court of Chancery of New York will not restrain, by injunction, a defendant from prosecuting a foreign suit previously commenced. Mead v. Merritt, 2 Paige 402; though this has been done in the English chancery under special circumstances. Bushby v. Munday, 5 Mad. 297. It has been done where the proceeding in a foreign court was instituted by the same party as to the same matter. 1 Sim. & Stu. 16.

(c) Parker Ch. J., in Tappan v. Poor, 15 Mass. 423. S. P. in Embree v. Hanna, 5 Johns, 103, 104.

cution of foreign judgments in personam is reciprocally allowed by the law and usage of the different states of the Germanic Confederation, and of the European continent in general, except Spain, Portugal, Russia, Sweden, Norway, France, and the countries whose legislation is based on the French Civil Code.

foreign country or in their own plantations; (a) and the same rule of law. has been declared in this country. (b) 1

divorce a mensa et thoro.

The statute of New York (c) authorized the Court of Chancery to allow qualified divorces a mensa et thoro founded on the complaint of the wife, of cruel and inhuman treatment, or such conduct as renders it unsafe and improper for her to cohabit with her husband; or for wilful desertion of her, and refusal and neglect to provide for her. The court may decrée a separation from bed and board forever, or for a limited time, in its discretion; and the decree may be revoked at any time by the same court by which it was pronounced, under such regulations and restrictions as the

(a) Maule v. Murray, 7 Term, 470. Imlay v. Ellefsen, 2 East, 453. Bayley v. Edwards, 3 Swans. 703. Salmon v. Wootton, Dana, 423. The Court of Appeals in Lower Canada, in the case of Russell v. Field, (1833,) followed the English rule, and held that the plea of a suit pending in Vermont, between the same parties, for the same cause of action, was no bar to the new suit in the Canadian court. (b) Bowne v. Joy, 9 Johns. 221. Mitchell v. Bunch, 2 Paige, 606. Godfrey v. Hall, 4 Louis. 158. Peyroux v. Davis, 17 Louis. 479. But where there are two tribunals under the same government, of concurrent and complete jurisdiction, the jurisdiction of that tribunal which first takes cognizance, by process, of the subject-matter of controversy, is conclusive. Smith v. M'Iver, 9 Wheaton, 532. The Ship Robert Fulton, 1 Paine C. C. 620. Slyhoof v. Flitcraft, 1 Ashmead, 171. Whether a lis pendens in another state, between the same parties, for the same cause, was a good plea in abatement, was left as a doubtful question, in Casey v. Harrison, 2 Dev. N. C. 244. Ch. J. Gibson, in Ralph v. Brown, 3 Watts & Serg. 399, assumes that such a plea in such a case would be good. In the case of torts or joint contracts, a plea in abatement of another action pending for the same cause, against a co-trespasser or joint contractor, is bad. There may be several recoveries, but only one satisfaction. Henry v. Goldney, 15 M. & W. 494.2

(c) N. Y. Revised Statutes, vol. ii. p. 146.

1 The principle of lis pendens is, that the proceedings must be of such a character as to point out to all the world the property or rights affected by them. It can only affect rights acquired subsequently to such proceedings; and to defeat the claims of a bonâ fide purchaser, the suit must be prosecuted with reasonable diligence. Lewis v. Mew. 1 Strob. Eq. 180. Clarkson v. Morgan, 6 B. Mon. 441.

2 The plea of lis pendens, in a state court or in a foreign court, is not a good plea in abatement of a suit in personam in the Circuit Court. White v. Whitman, 1 Curtis C. C. 494. Lyman v. Brown, 2 Curtis C. C. 559. But see Earl v. Raymond, 4 McLean, 233. Nor is a suit in a court of another state. McJilton v. Love, 13 Ill. 486. Drake v. Brander, 8 Texas, 351. Williams v. Ayrault, 31 Barb. (N. Y.) 364. Nor in England is the pendency of a suit in one of the Superior Courts in the United States a bar to a suit in the English courts. Cox v. Mitchell, 7 Com. B. (N. S.) 55.

court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation. (d)

To entitle the court to sustain such a suit, (1.) the parties must be inhabitants of the state; (2.) or the marriage must have taken place in the state, and the wife must be an actual resident at the time of exhibiting the complaint; (3.) or the parties must have been inhabitants of the state at least one year, and the wife an actual resident at the time of filing the bill. (e)

These qualified divorces are allowed by the laws of almost all countries, and it is assumed that they prevail generally in the United States, in cases of extreme cruelty, though they are unknown in some of them, as, for instance, in New Hampshire, Connecticut, Ohio, Indiana, and South Carolina. (ƒ) In England, they are allowed only propter sævitiam aut adulterium; and where there is a separation *for such a cause, if the *126 parties come together again, the same cause cannot be revived. (a)

(d) N. Y. Revised Statutes, vol. ii. pp. 146, 147, sec. 50, 51, 56.

(e) Ibid. 146, sec. 50.

(ƒ) In Louisiana, the divorce a mensa leads to the divorce a vinculo, if the parties be not reconciled in two years. Savoie v. Ignogoso, 7 Louis. 281; and in Virginia in seven years; Act of 1841. In Massachusetts, divorces from bed and board are allowed for causes of extreme cruelty in either party, and in favor of the wife when the husband shall utterly desert her, or grossly or wantonly and cruelly refuse or neglect to provide (if able) suitable maintenance for her. Mass. Revised Statutes, 1836.3 In Vermont, New Jersey, Kentucky, Mississippi, Tennessee, Alabama, and Michigan, divorce a mensa et thoro may be granted for extreme cruelty, and in some of those states for wilful desertion for two years. Act of Michigan, April 4th, 1833. Lockridge v. Lockridge, 3 Dana (Ken.) 28. Holmes v. Holmes, Walker (Miss.) 474. Elmer's Digest, 140. Laws of Vermont, p. 364. 4 Aiken's Ala. Dig. 2d edit. 131. Statute Laws of Tennessee, 1836, p. 261. In the Dutch law, and in Scotland, wilful abandonment of either party without due causes for a long time, is ground for a decree of divorce. Van Leeuwen's Roman-Dutch Law, 85. Ersk. Inst. b. 1, tit. 6, sec. 20. Divorces from bed and board were unknown to the ancient church, and were first established by the decrees of the Council of Trent.

(a) Lord Eldon, 11 Vesey, 532. Cohabitation is not always a condonation for cru

By ch. 228 of the Laws of 1857, it is enacted in Massachusetts, that when parties have lived apart for five consecutive years, after a divorce a mensa, a divorce a vinculo may be granted upon the petition of the party at whose instance the former divorce was decreed; and after a separation of ten years, such a divorce may be granted, under certain conditions, on the petition of either party.

In Connecticut, divorces a vinculo may be decreed, for wilful, continued, and obstinate