Hilton v. Guyot

after stating- the case, delivered the opinion of the court.

These two cases, the one at law and the other in equity, of Hilton v. Guyot, and the case of Ritchie v. McMullen which has been under advisement at the same time, present important questions relating to the force and effect of foreign judgments, not hitherto adjudicated by this court, which have been argued *163 with great learning and ability, and which require for their satisfactory determination a full consideration of the authorities. To avoid confusion in indicating the parties, it will be convenient first to take the case at law of Hilton v. Guyot.

International law, in its widest and most comprehensive sense — including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions, arising. under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory' and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is part of our law, and must bé ascertained and administered by the cpurts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.

The most certain guide, no doubt, for the decision of such questions is a treaty or.a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid ag they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Fremont v. United States, 17 How. 542, 557; The Scotia, 14 Wall. 170, 188; Respublica v. De Longchamps, 1 Dall. 111, 116; Moultrie v. Hunt, 23 N. Y. 394, 396.

No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of * one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call “the comity of nations.” Although the phrase has. been often criticised, no satisfactory substitute has been suggested.

“ Comity,” in the legal sense, is neither a matter of absolute *164 obligation, on the one. hand, now of mere courtesy and good will, upon the other. But it is ijhe recognition which one nation' allows within its territory tío the legislative, executive or judicial acts of another nation/having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Mr. Justice Story, in his Commentaries on the Conflict of Laws, treating of the question in what department of the government of any State, in the absence of any clear declaration of the sovereign will, resides the authority to determine how far the laws of a foreign State shall have effect, and observing that this differs in different States, according to the organization of the departments of the government of each, says: “In England and America, the courts of justice have hitherto exercised the same authority in the most ample manner: and the legislatures have in no instance (it is believed) in either country interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times as they have arisen; and so far as the practicó of nations, or the Jus gentium privatum, has been supposed to furnish any general principle, it has been followed out.” Story’s Conflict of Laws, §§ 23, 24.

Afterwards, speaking of the difficulty of applying the positive rules laid down by the Continental jurists, he says that “there is indeed great truth” in these remarks of Mr. Justice Porter, speaking for the Supreme Court of Louisiana: “ They have attempted to go too far, to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten that they wrote on a question which touched the comity of nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens; that whether they do or not must depend oh the condition of the country in which the foreign law is sought to be enforced, the particular nature of her legislation, her policy, and the char *165 acter of her institutions; that in the conflict of laws it must often' be a matter of doubt which should prevail; and that, whenever a doubt does exist, the court, which decides, will prefer the laws of its own country to that of the stranger.” Story’s Conflict of Laws, § 28; Saul v. His Creditors, (1827) 5 Martin (N. S.) 569, 596.

Again: Mr. Justice Story says: “ It has been thought by some jurists that the term comity is not sufficiently expressive of the obligation of nations to give effect to foreign laws when they are not prejudicial to their own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation ; that it is not so much~a matter of comity or courtesy, as a matter of paramount moral duty. Now, assuming that such a moral duty does exist, it is clearly one of imperfect obligation, like that of beneficence, humanity and charity. Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded.” And', after further discussion of the matter, he concludes : “ There is then not only no impropriety in the use of the phrase comity of nations,’ but it is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another.” Story’s Conflict of Laws, §§ 33-38.

Chief Justice Taney, likewise, speaking for this court while Mr. Justice Story was a' member of it, and largely adopting his words, said : It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, wThere the rights of individuals are concerned.” “The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to' produce a friendly intercourse between the sovereign-ties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations.” “ It is not the comity of the courts, but the comity *166 of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all bther principles of municipal law are ascertained and guided.” Bank of Augusta v. Earle, (1839) 13 Pet. 519, 589; Story’s Conflict of Laws, § 38.

Mr. Wheaton says: “ All the effect, which foreign laws can havfe in the territory of a State, depends absolutely on the éxpress or tacit consent of that State.” “The express consent of a State, to the application' of foreign laws within its territory, is given by acts passed by its legislative authority, or by treaties concluded with other States. Its tacit consent is manifested by the decisions of its judicial and administrative authorities, as well as by- the writings of its publicists. There is no obligation, recognized by legislators, public authorities, and publicists, to regard foreign laws; but their application is admitted, only from considerations of utility and the mutual convenience of States — ex comitate, ob reciprocam utiHtatem.” Wheaton’s International Law, (8th ed.) §§ 78, 79. “ No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another State; and if execution be sought by suit upon the judgment, or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable. The general comity, utility and convenience of nations have, however, established a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ in different countries.’-’ § 147.

Chancellor Kent says: “ The effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty.” 2 Kent Com. (6th ed.) 120.

In order to appreciate the weight of the various authorities cited at the bar, it is important to distinguish.different kinds of judgments. ' Every foreign judgment, of whatever nature, in order to be entitled to any effect, must have' been rendered *167 by a court having jurisdiction of the cause, and upon regular proceedings and due notice. In alluding to different kinds of judgments, therefore, such jurisdiction, proceedings and notice will be assumed. It will also be assumed that they are untainted.by fraud, the effect of which will be considered later.

A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the court, is treated as valid everywhere. .As said by Chief' Justice Marshall: “The sentence of a competent court, proceeding in rem, is ■conclusive with respect to the thing itself, and operates as -an. absolute change of the property. By such sentence, the right of the former owner is lost, and a complete title given to the person who claims under the decree. No court of coordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no coordinate tribunal is capable of making the inquiry.” Williams v. Armroyd, 7 Cranch, 423, 432. The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law. Croudson v. Leonard, 4 Cranch, 434; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns. Cas. 16. But the same rule applies to judgments in rem under municipal law. Hudson v. Guestier, 4 Cranch, 293; Ennis v. Smith, 14 How. 400, 430; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 291; Scott v. McNeal, 154 U. S. 34, 46; Castrique v. Imrie, L. R. 4 H. L. 414; Monroe v. Douglas, 4 Sandf. Ch. 126.

• A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country; unless contrary to the policy of its own law. Cottington’s case, 2 Swanston, 326; Roach v. Garvan, 1 Ves. Sen. 157; Harvey v. Farnie, 8 App. Cas. 43; Cheely v. Clayton, 110 U. S. 701. It was of a foreign sentence of divorce, that Lord Chancellor Nottingham, in the House of Lords, in 1688, in Gottington’s case, above cited, said : “ It is against the law of nations not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, *168 and according to the form, of those countries wherein they were given. For what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a sentence take place till it be reversed? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences.”

Other judgments, not strictly in rem, under which a person has been compelled to pay money, are so far conclusive that the justice of the payment cannot be impeached in another country, so as to compel him to pay it again. For instance, a judgment in foreign attachment is conclusive, as between the parties, of the right to the property or money attached. Story on Conflict of Laws, (2d ed.) § 592 a. And if, on the dissolution of a partnership, one partner promises to indemnify the other against the debts of the partnership, a judgment for such a debt, under which the latter has been compelled to pay it, is conclusive evidence of the debt in a suit by him to recover the amount upon the promise of indemnity. It' was of such a judgment, and in such a suit, that Lord Nottingham said: “ Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum paid on the sentence for custom, the justice whereof is not examinable here.” Gold v. Canham, (1689) 2 Swanston, 325; S. C. 1 Cas. in Ch. 311. See also Tarleton v. Tarleton, 4 M. & S. 20; Konitzky v. Meyer, 49 N. Y. 571.

Other foreign judgments which have been held conclusive of the matter adjudged were judgments discharging obligations contracted in the foreign country between citizens or residents thereof. Story’s Conflict of Laws, §§ 330-341; May v. Breed, 7 Cush. 15. Such was the case, cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, Mosely, 1; S. C. 2 Stra. 733; 2 Eq. Cas. Ab. 525, pl. 7; 12 Vin. Ab. 87, pl. 9; Sel. Cas. in Ch. 69; 1 Dickens, 48.

In that case, bills of exchange, drawn in London, were negotiated, indorsed and accepted at Leghorn in Italy, by the law of which an acceptance became void if the drawer failed without leaving effects in the acceptor’s hands. The acceptor, accordingly, having received advices that the drawer had failed *169 before the acceptances, brought a suit at Leghorn against the last indorsees, to be discharged of his acceptances, paid the money into court and obtained a sentence there, by which the acceptances were vacated as against those indorsees anti all the indorsers and negotiators of the bills, and the money deposited was returned to him. Being afterwards sued at law in England by subsequent holders of the bills, he applied to-the Court of Chancery and obtained á perpetual injunction. Lord Chancellor King, as reported'by Strange, “was clearly of opinion that this cause was to be determined according to the local laws of the place where the bill was negotiated; and the plaintiff’s acceptance of the bill having been vacated and declared void by a court of competent jurisdiction, he thought that sentence was conclusive and bound the Court of Chancery here;” as reported in Yiner, that “the court at Leghorn had jurisdiction of the thing, and of the persons; ” and, as reported by Mosely, that, though “ the last indorsees had the sole property of the bills, and were therefore made the only parties to the suit at Leghorn, yet the sentence made the acceptance void against the now defendants and all others.” It is doubtful, at the least, whether-such a sentence was entitled to the effect given to it by Lord Chancellor King. See Novelli v. Rossi, 2 B. & Ad. 757; Castrique v. Imrie, L. R. 4 H. L. 414, 435; 2 Smith’s Lead. Cas. (2d ed.) 450.

The remark of Lord Hardwicke, arguendo, as Chief Justice, in Boucher v. Lawson, (1734) that “ the reason gone upon by Lord Chancellor King, in the case of Burroughs v. Jamineau, was certainly right, that where any court, whether foreign or domestic, that has the proper jurisdiction of the case, makes a determination, it is conclusive to all other courts,” evidently had reference, as the context shows, to judgments of a court having jurisdiction of the thing; and did not touch the effect of an executory judgment for a debt. Cas. temp. Hardw. 85. 89; S. C. Cunningham, 144, 148.

In former times, foreign decrees in admiralty im, personam were executed, even by imprisonment of the defendant, by the Court of Admiralty in England, upon letters rogatory from the foreign sovereign, without a new suit. Its right to *170 do so was recognized by the Court of King’s Bench in 1607 in a case of habeas corpus, cited by the plaintiffs, and reported as follows: “ If a man of Frizeland sues an Englishman in Frizéland before the Governor there, and there recovers against him a certain sum ; upon which the Englishman, not having sufficient to satisfy it, comes into England, upon which the Governor sends his letters missive into England, omnes magistratus infra regnum Anglice rogans, to make execution of the said judgment. The Judge of the Admiralty may execute this judgment by imprisonment of the party, and he shall not be delivered by the common law ; for this is by the law of nations, that the justice of one nation should be aiding to the justice of another nation, and for one to execute the 'judgment of the other; and the law of England takes notice of this law, and the Judge of the Admiralty is the proper magistrate for this purpose; for he only hath the execution of the civil law within the realm. Pasch. 5 Jac. B. R., Weir’s case, resolved upon an habeas corpus, and remanded.” 1 Rol. Ab. 530, pl. 12; 6 Vin. Ab. 512, pl. 12. But the only question there raised or decided was of the power of the English Court of Admiralty, and not of the conclusiveness of the foreign sentence; and in later, times the mode of enforcing a foreign decree in admiralty is by a new libel. See The City of Mecca, 5 P. D. 28, and 6 P. D. 106.

. The extraterritorial effect of judgments in personam, at -law or in equity, may differ, according to the parties to the cause. . A judgment of that kind between two citizens or residents of the country, .and thereby subject to the jurisdiction, in which it is rendered, may be held conclusive as between them everywhere. So, if a foreigner invokes the jurisdiction by bringing an action against a citizen, both may be held bound by a judgment in favor of either. And if a citizen sues a foreigner, and judgment is rendered in favor of the latter, both may be held equally bound. Ricardo v. Garcias, 12 Cl. & Fin. 368; The Griefswald, Swabey, 430, 435; Barber v. Lamb, 8 C. B. (N. S.) 95; Lea v. Deakin, 11 Bissell, 23.

The effect to which a judgment, purely executory, rendered *171 in favor of a citizen or resident of the country, in a suit there •brought by him against a foreigner, may be entitled in .an action thereon against the latter in his own country — as is the cáse now before us — presents a more difficult question, upon which there has been some diversity of opinion.

Early in the last century, it was settled in England that a foreign judgment on a debt was considered not, like a judgment of a domestic court of record, as a record or a specialty, .a lawful consideration for which was conclusively presumed; but as a simple contract only.

This clearly appears in Dupleix v. De Raven, (1706) where one of two merchants in France recovered a judgment there against the other for a sum of money,- which, not being paid, he brought a suit in chancery in England for a discovery of assets and satisfaction of the debt; and the defendant pleaded the statute of limitations of six years, and prevailed, Lord Keeper Cowper saying: “ Although the plaintiff obtained a judgment or sentence in France, yet here the debt must be considered as a debt by simple contract. The plaintiff can maintain no action here, but an indebitatus, assumpsit or an insimul computassent; so that the statute of limitations’ is pleadable in this case.” 2 Vernon, 540.

Several opinions of Lord Hardwicke define and illustrate the effect of foreign judgments, when sued on or pleaded in England.

In Otway v. Ramsay, (1736) in the King’s Bench, Lord Hardwicke treated it as worthy of consideration, “ what credit is to be given by one court to the courts of another nation, proceeding both by the same rules of law,” and said, “ It is very desirable, in such case, that the judgment given in one kingdom should be considered as res judicata in another.”. But it was held that debt would not lie in Ireland upon an English judgment, because “Ireland must be considered as a provincial kingdom, part of the dominions of the Crown of England, but. no part of the realm,” and an action of debt on a judgment was local. 4 B. & C. 414-416, note; S. C. 14 Vin. Ab. 569, pl. 5; 2 Stra. 1090.

A decision of Lord Hardwicke as Chancellor was mentioned *172 in Walker v. Witter, (1778) 1 Doug. 1, 6, by Lord Mansfield, who said: “ He recollected a case of a decree on the chancery side in one of the courts of great sessions in Wales, from which there was an appeal to the House of Lords, and the decree affirmed there; afterwards, a bill was filed in the Court of Chancery, on the foundation of the decree so affirmed, and Lord Hardwicke thought himself entitled to examine into the justice of the decision of the House of Lords, because the Original decree was in the court of Wales, whose decisions .were clearly liable to be examined.” And in Galbraith v. Neville, (1789) 1 Doug. 6, note, Mr. Justice Buller said: “I have often heard Lord Mansfield repeat what was said by Lord Hardwicke in the case alluded to from Wales; and the ground of his lordship’s opinion was this: when you call for my assistance to carry into effect the. decision of some other tribunal, you shall not have it, if it appears that you are in the wrong; and it was on that account, that he said, he would examine into the propriety of the decree.” The case before Lord Hardwicke, mentioned by Lord Mansfield, would appear (notwithstanding the doubt of its authenticity expressed by Lord Kenyon in Galbraith v. Neville) to have been a suit to recover a legacy, briefly reported, with references to Lord Hardwicke’s note book, and to the original record, as Morgan v. Morgan, (1737-8) West. Ch. 181, 597; S. C. 1 Atk. 53, 408.

In Gage v. Bulkeley, (1744) briefly reported in.3 Atk. 215, cited by the plaintiffs, a plea of a foreign sentence in a commissary court in France was overruled by Lord Hardwicke, saying, “ It is the most proper case to stand for an answer, with liberty to except, that I ever met with.” His reasons are fully stated in two other reports of the case. According 'to one of them, at the opening of the argument he said: “ Can a sentence or judgment pronounced by a foreign jurisdiction be pleaded in this kingdom to a demand for the same thing in any court of justice here? I always thought it could not, because every sentence, having its authority from the sovereign in whose dominions it is given, cannot bind the jurisdiction of foreign courts, who own not the same authority, *173 and have a different sovereign, and are only bound by judicial sentence given under the same sovereign power by which they themselves act.” “ But though a foreign sentence cannot be used by way of plea in the courts here, yet it may be taken advantage of in the way of evidence.” “You cannot in this kingdom maintain debt upon judgment obtained for money in a foreign jurisdiction; but you may an assumpsit in nature of debt upon a simple contract, and give the judgment in evidence, and have a verdict. So that the distinction seems to be, where such foreign sentence is used as a plea to bind the courts here as a judgment, and when it is made use of in evidence as binding the justice of the case only.” And after-wards, in giving his decision, he said: “ The first question is, Whether the subject-matter of the plea is good ? The second is, Whether it is well pleaded? The first question depends upon this, Whether the sentence or judgment of a foreign court can be used by way of plea in a court of justice in England ? And no authority, either at law or in equity, has been produced to shew that it may be pleaded : and therefore I shall be very cautious how I establish such a precedent.” “ It is true, such sentence is an evidence, which may affect the right of this demand, when the cause comes to be heard; but if it is no plea in a court of law to bind their jurisdiction, I do not see why it should be so here.” Ridgeway temp. Hardw. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves. Sen. (Belt’s Supplt.) 409, 410.

In Roach v. Garvan, (1748) where an infant ward of the Court of Chancery had been married in France by her guardian to his son before a French court, and the son “ petitioned for a decree for cohabitation with his wife, and to have some money out of the bank,” Lord Hardwicke said, as to the validity of the marriage: “ It has been argued to be valid from being established by the sentence of a court in France, having proper jurisdiction. And it is true, that if so, it is conclusive, whether in a foreign court or not, from the law of nations in such cases; otherwise the rights of mankind would be very precarious and uncertain. But the question is, whether this is a proper sentence, in a proper cause, and between proper *174 parties? Of which it is impossible to judge, without looking farther into the proceedings; this being rather the execution of the. sentence, than the sentence itself.” And after observing upon the competency of the French tribunal, and pointing out that restitution of conjugal rights was within the jurisdiction of the ecclesiastical court, and not of the Court of Chancery, he added, “ Much less will I order any money out of the bank to be given him.” 1 Ves. Sen. 157, 159. He thus clearly recognized the difference between admitting the effect of a foreign judgment as adjudicating the status of persons, and executing a foreign judgment by enforcing a claim for money.

These decisions of Lord Hardwicke demonstrate that in his-opinion, whenever the question was of giving effect to a foreign judgment.for money, in a suit in.England between the parties, it did not have .the. weight of a domestic judgment, and could not be considered as a bar, or as conclusive, but only as evidence of the' samo weight as a simple contract, and the propriety and justice of the judgment might be examined.

In Sinclair v. Fraser, (1771) the appellaht, having as' attorney in Jamaica made large advances for his constituent in Scotland, and having been superseded in.office, brought an action before the Supreme Court of Jamaica, and, after appearance, obtained judgment against him; and afterwards brought an action against him in Scotland upon that judgment. The Court of Session determinad that'the plaintiff was bound to prove before it the ground, nature and extent of the demand on which the judgment in Jamaica was obtained; and therefore gave judgment against him. But the House of Lords, (in which, as remarked by one reporter, Lord Mansfield was then the presiding spirit, acting in concert with, or for the Lord Chancellor, in disposing of the Scotch appeals,) “ ordered and declared that the judgment of the Supreme Court of Jamaica ought to be received as evidence prima facie of the debt; and that it lies upon the defendant to impeach the. justice thereof, or to show the same to have been irregularly obtained; ” and therefore reversed the judgment of the Court of Session. 2 Paton, ix, 253; S. C. Morison Dict. Dec. 4542; 1 Doug. 5, note.

*175 Accordingly, in Crawford v. Witten, (1773) a declaration in assumpsit, in an action in England upon a judgment recovered in the Mayor’s Court of Calcutta in Bengal, without showing the cause of action there, was held good on demurrer. Lord Mansfield considered the case perfectly clear. Mr. Justice Aston, according to one report, said, “ The declaration is sufficient ; we are not to suppose it an unlawful debt; ” and, according to another report, “ They admitted the assumpsit by their demurrer. When an action comes properly before any court, it must be determined by the laws which govern the country in which the action accrued.” And Mr. Justice Ashurst said: “I have often known assumpsit brought on judgments in foreign courts; the judgment is a sufficient consideration to support the implied promise.” Lofft, 154; S. C. nom. Crawford v. Whittal, 1 Doug. 4, note.

In Walker v. Witter, (1778) an action .of debt was brought in England upon a judgment recovered in Jamaica. The defendant pleaded nil debét, and nul tiel record. Judgment was given for the plaintiff, Lord Mansfield saying: “ The plea of nul tiel record was improper. Though the plaintiffs had called the judgment a record, yet by the additional words in the declaration, it was clear they did not mean that sort of record to which implicit faith is given by the courts of .Westminster Hall. They had not misled the. court nor the defendant, for they spoke of it as a record of a court in Jamaica. The question was brought to a narrow point; for it was admitted on the park of the defendánt, that indebitatus assumpsit would have lain; and on the part of the plaintiffs, that the judgment Avas only prima facie evidence of the debt. That being so, the judgment Avas not a specialty, but the debt only a simple contract debt; for assumpsit will not lie on a specialty. The difficulty in the case had arisen from not fixing accurately Avhat a court of record is in the eye of the law. That description is confined properly to certain courts in England, and their judgments cannot be controverted. Foreign courts, and courts in England not of record, have not that privilege, nor the courts in Wales, etc.- But the doctrine in the case of Sinclair v. Fraser was unquestionable. Foreign judgments are *176 a ground of action everywhere, but they are examinable.” Justices Will'es, Ashurst and Buller concurred, the two latter saying that wherever indebitatus assumpsit .will lie, debt will also lie. 1 Doug. 1, 5, 6.

In Herbert v. Cook, (1782) again, in an action of debt upon á judgment of an inferior English court, not a court of record, Lord Mansfield said that it was “ like a foreign judgment, and not conclusive evidence of the debt.” Willes, 36, note.

In Galbraith v. Neville, (1789) upon a motion for a new trial after verdict for the plaintiff, in an action of debt on a judgment of the Supreme Court of Jamaica, Lord Kenyon expressed “ very serious doubts concerning the doctrine laid down in Walker v. Witter, that foreign judgments are not. binding on the parties.here.” But Mr. Justice Buller said: “The doctrine which was laid down in Sinclair v. Fraser has always been considered as the true line ever since; namely, that the foreign judgment shall be prima facie evidence of the debt, and conclusive till it be impeached by the other party.” “ As to actions of .this sort, see how far the court could go, if what was said in Walker v. Witter were departed from. It was there held, that the foreign judgment was only to be taken to be right prima facie ; that is, we will allow the same force to a foreign judgment, that we do to those of our own courts' not of record. But, if the matter were carried farther, we should give them more credit; we should give them equal force with those of courts of record here. Novf a foreign judgment has never been considered as a record. It cannot be declared on as such, and a plea of nul tiel record, in such a case, is a mere 'nullity. How then can it have the same obligatory force? In short, the result is this ; that it is prima facie evidence of the justice of the demand in an action of assumpsit, having no more credit than is given to' every species of written agreement, viz. that it shall be considered as good till it is impeached.” 1 Doug. 6, note.- And the court afterwards unanimously refused the new trial, because, “ without entering into the question how far a foreign judgment was impeachable, it was at all events clear that it was prima facie evidence of the debt; and they were of opinion *177 that no evidence had been adduced to impeach this.” 5 East, 475, note.

In Messin v. Massareene, (1791) the plaintiff, having obtained a judgment against the defendants in a French court, brought an action of assumpsit upon it in England, and, the defendants having suffered a default, moved for á reference to a master, and for a final judgment on his report, without executing a writ of inquiry. The motion was denied, Lord Kenyon saying,This is an attempt to carry the rule farther than has yet been done, and as there is no instance of the kind I am not disposed to make a precedent for it; ” and Mr. Justice Buller saying, “ Though debt will lie here on a foreign judgment, the defendant may go into the consideration of it.” 4 T. R. 493.

In Bayley v. Edwards, (1792) the Judicial Committee of the Privy Council, upon appeal from Jamaica, held that a suit in equity pending in England was not a good plea in bar to a subsequent bill in Jamaica for the same matter ; and Lord Camden said: “ In Gage v. Bulkeley,” (evidently referring to the full report in Eidgeway, above quoted, which had been cited by counsel,) “Lord Ilardwicke’s reasons go a great way to show the true effect of foreign sentences in this country. And all the cases show that foreign sentences are not conclusive bars here, but only evidence of the demand.” 3 Swanston, 703, 708, 710.

In Phillips v. Hunter, (1795) the House of Lords, in accordance with the opinion of the majority of the judges consulted, and against that of Chief Justice Eyre, decided that a creditor of an English bankrupt, who had obtained payment of his debt by foreign attachment in Pennsylvania, was liable to an action for the money by the assignees in bankruptcy in England. But it was agreed, on all hands, that the judgment in Pennsylvania and payment under it were conclusive as between the garnishee and the plaintiff in that suit. And the distinction between the effect of a foreign judgment which vests title, and of one which only declares that a certain sum of,money is due, was clearly stated by Chief Justice Eyre, as follows:

*178 “ This judgment against the garnishee in the court of Pennsylvania was recovered properly or improperly. If, notwithstanding the bankruptcy, the debt remained liable to an attachment according to the laws of that country, the judgment was proper; if, according to the laws of that country, the property in the debt was divested out of the bankrupt debtor, and vested in his assignees, the judgment was improper. But this was a question to be decided, in the cause instituted in Pennsylvania, by the courts of that country and not by us. We cannot examine their judgment, and if we could, we have not the means of doing it in this case. It is not stated upon this record, nor can we take notice, what the law of Pennsylvania is upon this subject. If we had the means, Ave could not examine a judgment of a court in a foreign State, brought before us in this manner.

“ It is in one way only, that the sentence or judgment of a court of a foreign state is examinable in our courts, and that is, Avhen.the party who claims the benefit of it applies to oúr courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, "nor as obligatory to the extent to which, by our law, sentences and judgments are obligatory, not as conclusive, but as matter in pais, as consideration prima facie sufficient to raise a promise. We examine it as we do all other considerations or promises, and for that purpose we receive evidence of what the law of the foreign State is, and whether the judgment is • Avarranted by that law.” 2 H. Bl. 402, 409, 410. •

In Wright v. Simpson, (1802) Lord Chancellor Eldon said : “Natural law requires the courtá of this country to give credit to those of another for the inclination and power to do justice; -but not, if that presumption is proved to be ill founded in that transaction,'which is the subject of it; and if it appears in evidence, that persons suing under similar circumstances neither had met, nor could meet, with justice, that fact cannot be immaterial as an answer to the presumption.” 6 Ves. 714, 730.

*179 Under Lord Ellenborough, the distinction between a suit on a foreign judgment in favor of the plaintiff against the defendant, and a suit to recover money which the plaintiff had been compelled to pay under a judgment abroad, was clearly maintained.

In Buchanan v. Rucker, (1807) in assumpsit upon a judgment rendered in the island of Tobago, the defendant pleaded non assumpsit, and prevailed, because it appeared that he was not a resident of the island, and was neither personally .served with process nor came in to defend, and the'only notice was, according to the practice of the court, by nailing up a copy of the declaration at the court-house door. It was argued that “ the presumption was in favor of a foreign judgment, as well as of a judgment obtainedin one of the courts of this country.” To which Lord Ellenborough. answered: “ That may be so, if the judgment appears, on the face of 'it, consistent with reason and justice ; but it is contrary to the first' principles of reason and justice, that, either in civil or criminal proceedings, a man should be condemned before he is heard.” “There might be such glaring injustice on .the face of a foreign judgment, or it might have a vice rendering it so ludicrous, that, it could not raise an assumpsit, and, if submitted to the jurisdiction of the courts of this country, could not be enforced.” 1 Camp. 63, 66, 67. A motion for a new trial was denied. 9 East, 192. And see Sadler v. Robins, (1808) 1 Camp. 253, 256.

In Hall v. Odber, (1809) in assumpsit upon a judgment' obtained in Canada, with other counts on the original debt, Lord Ellenborough-and Justices Grose, Le Blanc and Bayle} agreed that a foreign judgment was not to be considered.' as having the same force as a domestic judgment, but only that of a simple contract between the parties, and did not merge the original cause of action, but was only evidence of the debt, and therefore assumpsit would lie, either upon the judgment, or upon the original cause of action. 11 East, 118.

In Tarleton v. Tarleton, (1815) on the other hand, the action was brought upon a covenant of indemnity in an agreement •for dissolution of a partnership, to recover a sum which the *180 plaintiff had been compelled to pay under a decision in a suit between- the parties in the island of Grenada. Such was the case, of which Lord Ellenborough, affirming his own ruling at the trial, said: “ I thought that I did not sit at nisi prius to try a writ of error in this case upon the proceedings in the court abroad. The defendant had notice of the proceedings, and should have appeared and made his defence. The plaintiff, by this neglect, has been obliged to pay the money in order to avoid a sequestration.” The distinction was clearly brought out by Mr. -Justice Bayley, ,who said : “ As between the parties to the suit, the justice of it might be again litigated ; but as against a stranger it cannot.” 4 M. & S. 20, 22, 28.

In Harris v. Saunders, (1825) Chief Justice Abbott (after-wards Lord Tenterden) and his associates, upon the authority of Otway v. Ramsay, above cited, held that, even since the Act of Union of 39 & 40 Geo. Ill, c. 67, assumpsit would lie in England upon a judgment recovered in Ireland, because such a judgment could not be considered a specialty debt in England. 4 B. & C. 411; S. C. 6 D. & R. 471.

The English cases, above referred to, have been stated with the more particularity and detail, because they directly bear upon the question what was the English law, being then our own law, before the Declaration of Independence. They demonstrate that by that law, as generally understood, and' as declared by Hardwicke, Mansfield, Buffer, Camden, Eyre and Ellenborough, and doubted by Kenyon only, a judgment recovered in a foreign country for a sum of money, when sued upon in. England, was only prima facie evidence of the demand, and subject to be examined and impeached. The law of England, since it has become to us a foreign country, will be considered afterwards.

The law upon this subject, as understood in the United States, at the time of their separation from the mother country, was clearly set forth by Chief Justice Parsons, speaking for the Supreme Judicial Court of Massachusetts, in 1813, and by Mr. Justice Story, in his Commentaries on the Constitution of the Un