Imágenes de páginas
PDF
EPUB

spect to them, the defendants were concluded | exact issues are raised and it is those, and those by the judgment sued on and given in evidence; only, which are decided by the judgment. and that none of those matters, if proved, There are other rules framed to prevent the would be a defense to this action upon that use of any judgment for the purpose of prejudgment. cluding future inquiry, except to the extent of the precise scope and effect of the judgment. Under these rules a judgment can never be employed as an estoppel beyond what has been directly decided by it.

The court declined to admit any of the ev idence so offered by the defendants, and directed a verdict for the plaintiffs in the sum of $277,775.44, being the amount of the French judgment and interest. The defendants, having duly excepted to the rulings and direction of the court, sued out a writ of error. 123] *The writ of error in the action at law and the appeal in the suit in equity were argued together in this court in January, 1894, and, by direction of the court, were reargued in April, 1894.

Messrs. James C. Carter and Elihu Root for plaintiffs in error and appellants: There is scarcely any doctrine of the law which, so far as respects formal and exact statement, is in a more unreduced and uncertain condition than that which relates to the question what force and effect should be given by the courts of one nation to the judgments rendered by the courts of another nation.

In the learned notes to the Dutchess of Kingston's Case, in 2 Smith, Lead. Cas. 424, a very minute_reference is made to the various decisions in England and in this country, and some attempt made to group and classify them, but the reader will scarcely gain any assistance from them, and will, after perusal, feel certain of one thing only, viz., that the subject is involved in great confusion.

The natural and obvious method of doing justice between two contending parties is to examine their allegations, to ascertain the facts respecting the matter in dispute, and to declare the law arising upon these facts. But it would be an intolerable burden and expense, both to the public and to the parties, if the courts of the same country could be continually vexed with trials of the same controversy. Interest reipublicæ ut sit finis litium.

It is necessary that some limitation should be imposed; and the conclusion of state policy in this country and in England has been that the parties should be allowed one full and fair opportunity to try their grievances, and one alone. But justice, nevertheless, is, as it always must be, the overruling consideration; and the doctrine would never have been adopted unless the conclusion had been thought to be a safe one, that the judgment in the first and only trial allowed would be, in the vast majority of cases, a sound and righteous one. The court must be clothed with complete jurisdiction over the subject-matter. It must also be clothed with complete jurisdiction over the parties.

Very numerous rules have been framed for the purpose of securing a righteous judgment after the court has acquired jurisdiction; such as that evidence must be on oath, witnesses subjected to cross-examination, hearsay excluded, irrelevant matters excluded, and appeals and reviews allowed for the purpose of correcting possible error.

The plaintiff is also required to state precisely what his demands are, and the defendant must make his answer to them. In this way

The object of every judicial inquiry is to ascertain, declare, and enforce justice between the parties.

Whenever any former judgment cannot be with certainty assumed to have really done justice between the parties, the reason for allowing it to be an estoppel fails, and the use of it as such should therefore not be permitted.

What is actually administered among men is that approach to absolute justice which imperfect natures can understand and which can be made practicable in the actual business of life.

Whenever a court in the United States refuses to adjudicate upon the rights growing out of an original transaction on the ground that some other tribunal has previously adjudicated upon them, or accepts as the basis of its own adjudication the results which have been reached by another tribunal, it does it upon the ground that the judgment of the other tribunal is, in effect, in accordance with justice, according to our conceptions of justice.

The doctrine of the conclusiveness of domestic judgments rests upon two principal considerations: First. That there is a reasonably safe assurance that the the former judgment, reached only after the employment of precautions carefully devised for the elimination of error, is just and right; Second. The prime importance of the maxim, interest reipublica ut sit finis litium, which deems it a satisfaction of the duty of government to furnish remedial justice, if one fair opportunity has been given.

Both of these considerations are wanting in the case of foreign judgments. Except in the case of England and some of her colonies where the national standards of justice and also the methods of procedure very much resemble our own, we can have no full assurance that a just conclusion has been reached.

Jury trials, exclusion of improper evidence, cross-examination of witnesses, etc., are matters to which comparatively little attention is given.

The maxim, interest reipublicæ ut sit finis litium, applies to our own nation only. It is no part of our policy to restrict litigation in the world generally. In the case where a foreign judgment is set up as conclusive, we have not as yet afforded the one fair opportunity to litigate the question upon its original merits, which it is the obligation of government to furnish.

The suggestion that the comity of nations requires conclusive force to be given to foreign judgments, inasmuch as otherwise they will not give like force to our judgments, is whoily insufficient. This comity does, indeed, have a place in this branch of the law, but by no means the force thus suggested. We can never allow the assumption that Morocco or Turkey or Russia or even Germany, Italy, or

Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445.

France, bave methods of judicial administra- | to do justice by a trial on the original merit tion equal to our own, so as to justify our does not exist in this class of cases. selves in making a tacit agreement that we will enforce their judgments, if they will ours. Our courts cannot show a comity toward England which they would deny to Russia. If a reciprocity in the treatment of judicial proceedings should be thought desirable, it can be safely brought about by treaty alone, where it may be yielded or withheld at pleasure.

If, therefore, foreign judgments are in any case to be held conclusive with us, it must be for other reasons than those upon which we hold domestic judgments conclusive. It cannot be said that foreign judgments are ever so conclusive that no inquiry into them can be allowed; but there are many cases in which they may be justly held substantially conclusive. The common characteristic of all of them is that the obligation of the state to ascertain, declare, and enforce justice according to its own conceptions of justice, does not in such cases exist, or is greatly diminished in force; and that it is wiser, safer, and better to adopt and enforce the judgment of the foreign state.

It is obviously necessary that all acts of the power of one nation over property with in its jurisdiction should be respected in every other nation. If one nation undertakes to give title to property within its jurisdiction and another should declare the title void and take the property away from the holder, it would be a just cause of war. The judg ments, therefore, of prize courts and courts of admiralty, and indeed all judgments in rem, must everywhere be held valid and conclusive in respect to all acts done under them. In such cases the judgment, where one is rendered, may be conclusive everywhere; but it is solely for the reason that the possession of the property affected by it and the right to make a judicial disposition of it draws along with it the right and the duty to make an adjudication.

There are other cases which fall under the same doctrine, such as judgments determining the status of individuals, as being married or single, etc., and judgments in proceedings to administer the property of intestates. There are other cases in which there is no obligation on our own part to do justice between parties who have had a litigation in another nation, result ing in a judgment, because we cannot do justice, or could perform the office so imperfectly that it is far wiser and better to suffer the foreign tribunals to have their way. In these cases again, any inquiry into the justice or injustice of the foreign judgment is unprofitable. It is much more likely to be right than any we could render. Cases affecting or relating to real property in the foreign state are of this character.

There is another class of cases in which we may and do hold a foreign judgment conclusive, because the parties to the controversy have no fair right to invoke the judgment of our courts upon its original merits. In such cases our society is instituted primarily for the purpose of protecting our own citizens in their rights, or sojourners among us in their rights growing out of transactions here, and not of reviewing the merits of foreign adjudications between their own citizens. The obligation

Another class of cases may be found where a party who had voluntarily promoted a suit in a foreign tribunal and was there defeated, afterwards brings a new action in our courts upon the original cause, and thus seeks to renew the same controversy, and his adversary sets up in defense the foreign judgment. It cannot be unjust to him to bind him to the judgment of that jurisdiction which he has deliberately sought.

We now feel warranted in affirming the proposition that the question whether a foreign judgment is conclusive, so as to preclude inquiry into the original merits of the controversy, depends upon the circumstances under which it was rendered; and that it is not thus conclusive where the state is under its ordinary obligation to the party demanding such inquiry to give him at least one full and fair opportunity of having his cause adjudicated upon its original merits.

The general doctrine, as stated in most of the cases in the courts of the United States, declares that foreign judgments are prima facie evidence only. This, if taken literally, would make foreign judgments impeachable in all cases upon their merits.

The alleged exception principally relied upon was the case of Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404. In this the action was to enforce a Canadian judgment. On the trial the record of the judgment was offered in evidence. The only question before the appellate court was whether the record was receivable in evidence, notwithstanding the technical objections. The court held it was; but the learned judge (Davies) who gave the opinion then proceeded to argue a question not raised, namely, whether foreign judgments were conclusive, and held that they were. This opinion is unimportant.

New York, L. E. & W. R. Co. v. McHenry, 21 Blatchf. 400, was a case of precisely the same character. The judgment was in no respect impeached.

A review of the English cases will show that the question whether a foreign judgment should be held conclusive depends upon the circumstances under which it was rendered. Many of the English cases arose upon Scotch, Irish, or colonial judgments, all of which are in English law called foreign. There seems no good reason why these should not be placed upon the same footing as domestic judgments.

Henderson v. Henderson, 3 Hare, 100, was a case where the question arose in respect to a Newfoundland judgment.

In Godard v. Gray, L. R. 6 Q. B. 139, the question was in relation to a French judgment.

Schibsby v. Westenholz, L. R. 6 Q. B. 155, was decided together with Godard v. Gray. The foreign judgment was sued on by the party recovering it. He was a Dane, resident in France, and the contract sued on was one the final performance of which was to be in France. The summons by which the action was begun was served on the Procureur Imperial, in the absence from France of the defendant, and the French consulate in London

French vessel sued the owners of the English vessel in the tribunal of commerce at Havre for damages, charging the fault on the English vessel. The defendants appeared in the suit and contested it, but the judgment went against them. They afterwards sued the owners of the French vessel in England for damages on account of the same collison, charging the fault on them. The defendant pleaded the Havre judgment, but the court, although it was of opinion that the plea was bad in form, intimated a clear opinion that it was bad in substance.

caused a copy to be served on him in London. 'lish and a French vessel. The owners of the This was in accordance with French law. The defendant did not appear in the action and had no property in France. It was admitted that the judgment was regular according to French law. The action was held not maintainable because the defendant was not a person so situated that he was bound to submit himself to the French courts. The court referred to the case of General Steam Nav. Co. v. Guillon, 11 Mees. & W. 877, where it was held that even voluntary appearance in a foreign tribunal by a person not a citizen of the country or bound to obey its laws would not bind him to the judgment rendered.

In Rousillon v. Rousillon, L. R. 14 Ch. Div. 351, the action was to enforce a foreign French judgment awarding the plaintiff damages for breach of a covenant not to engage in trade and to restrain him from further breaches. The defense was that the agreement was void, and that the foreign judgment was erroneous and the defendant not bound by it. The agreement was held to be void and the further question was considered whether the foreign judgment was conclusive. The learned judge (Fry) accepted the doctrine that foreign judgments were conclusive, but with the qualification (entirely sound) which made that statement somewhat meaningless, when the circumstances were such as imposed upon the defendant the duty of obeying the foreign decision.

Nouvion v. Freeman, L. R. 37 Ch. Div. 244, decides that the foreign judgment set up in that case was not such a judgment as could be enforced in England.

Trafford v. Blanc, L. R. 36 Ch. Div. 600, was a case where it was sought to enforce the judgment of a tribunal in Zurich.

Voinet v. Barrett, 55 L. J. Q. B. 39, was a case where British citizens having extensive transactions in France were sued in a French court. So far as appears from the report above referred to, or from that of the case in the court below, reported in 54 L. J. Q. B. 521, no attempt was made to impeach the judgment for error, and the only objection made was that it was not binding upon the defendants because they did not voluntarily appear.

Bank of Australasia v. Nias, 16 Q. B. 717, was on a colonial judgment of New South Wales. It was held conclusive; but upon the ground that an appeal lay from it to the privy council.

In Martin v. Nicolls, 3 Sim. 458, the effort was to impeach the judgment of an English colonial court, that of Antigua. The precise grounds upon which the impeachment was attempted do not appear. The court held it not impeachable.

In the case of Scott v. Pilkington, 2 Best & S. 10, an action had been brought in New York by citizens of New York against citizens of Great Britain, and a judgment recovered, from which an appeal had been taken. The court expressly left the question whether, if it had appeared that the judgment of the New York court was erroneous, that would have been a defense.

In the case of General Steam Nav. Co. v. Guillon, 11 Mees. & W. 877, a collision had taken place on the bigh seas between an Eng159 U. S. U. S., Book 49.

[ocr errors]

The only case which our own research has been able to discover, which appears to fully sustain the doctrine of the conclusiveness of foreign judgments, is that of De Cosse Brissac v. Rathbone, 6 Hurlst. & N. 301. The action was on a French judgment and the question arose whether it could be impeached for error. The defendants had appeared in the suit in which the judgment was recovered, but for the purpose of saving property which they had in France. The court decided in favor of the judgment, simply saying that the question had been settled by the authorities. The only authorities cited by counsel upon the argument in support of the alleged conclusiveness of the foreign judgment was the case of Bank of Australasia v. Nias, 16 Q. B. 717, which decided no such thing.

In Russell v. Smyth, 9 Mees. & W. 810, it was held that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation to pay the sum for which judgment is given which the courts in that country are bound to enforce.

The other ground in the English cases is rather one of policy, namely, that the courts of that country should not engage in the work of retrying cases which have once been tried in a foreign country, for the reason that their judg ments would not probably be any more agreeable to right and justice than the foreign judg ment.

But an excellent opportunity was recently (in 1882) afforded to some English judges to test the soundness of these principles, and the court of king's bench immediately and utterly broke away from them.

In Abouloff v. Oppenheimer, L. R. 10 Q. B. Div. 295, Chief Justice Coleridge said: "I do not think it necessary to inquire for the present purposes what is the strictly accurate mode of stating the principle on which the courts of this country enforce the obligation created by foreign judgments. It has been stated by Parke. B., in Williams v. Jones, 13 Mees. & W. 628, 633, with the assent of Lord Blackburn in Godard v. Gray, L. R. 6 Q. B. 139, 148, and in Schibsby v. Westenholz, L. R. 6 Q B. 155, 159, in one way, and it has been stated by Lord Brougham, in Houlditch v. Donegall, 2 Clark & F. 477, in another."

The falsity of the notion that the general doctrine that fraud vitiates everything which it taints will suffice to impeach a domestic judg ment, where the fraud alleged was or might have been exposed at the trial is manifest. has been clearly pointed out both in England and by this court.

It

Flower v. Lloyd, L. R. 10 Ch. 327; United 101

States v. Throckmorton, 98 U. S. 61 (25: | judgment should be enforced by us in every 93). ! case where the public duty referred to does not exist.

This at least is certain, that in the light of the above decision no one can say that the present doctrine of the English courts is that a foreign judgment is necessarily conclusive, even where there was full jurisdiction and a full opportunity for trial of the very point upon which the judgment is assailed.

When, however, a question arose in relation to the judgments of strictly foreign countries, the general course of English decisions has been to look into the circumstances under which the judgments were rendered, and if they were of such a character and rendered under such circumstances as to make it expedient, upon well-recognized legal principles, to treat them as conclusive adjudications, to accord to them that character, and otherwise to treat them as prima facie evidence only and not precluding an inquiry into the merits of the original controversy.

Foreign judgments are, in general, prima facie evidence only and do not constitute a bar to an examination of the original merits, but in certain cases they may justly be held to be conclusive.

Judgments in rem or those which, in the course of the exercise of a rightful jurisdiction, dispose of property by sale or otherwise, should be held to be unimpeachable in the courts of all countries, so far at least as the title to the property disposed of is concerned. Similar considerations apply to the case of foreign judgments determining the status, and rights growing out of the status, of individuals within their jurisdiction. But this must be subject to an exception when the foreign judgment is based upon laws or policies repugnant to those of the forum in which it is set up. And when the judgment has been rendered between foreigners in the states of which they were citizens, and while they were residents of that state, neither of the parties has any fair right to call upon the tribunals of another country to retry the merits of a controversy once deter mined by those tribunals to which its determination properly belonged.

Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445.

And where a party has promoted a suit in a foreign tribunal he should not, ordinarily at least, if ever, be permitted to impeach the judgment rendered in it.

The ground upon which the last conclusion | rests is that where a party has chosen a foreign tribunal he should rest content with the results of his choice. This doctrine may apply to a defendant as well as to a plaintiff, and, there fore, if a defendant chooses, when under no restraint, and when he might, without peril to himself or his interests, refrain to submit his case to a foreign tribunal, the same reason ex ists for leaving him where the foreign judgment leaves him.

And in those cases where a citizen of our country takes up his residence in another, and is there sued, and appears, it may well be held that the judgment should be deemed conclusive against him in his own country, even when he still retains his nominal and technical citizenship therein.

It does not, however, follow that a foreign

[ocr errors]

We should not, in any case, enforce a judgment based upon a mere local law of a foreign state. We would not entertain an action based directly upon such law, and surely this difficulty could not be surmounted by first procuring the demand to be put into a judgment of the foreign state. Still less should we enforce any judgment based upon a liability repugnant to our local law, or to our established notions of justice and right.

De Brimont v. Penniman, 10 Blatchf. 436. The judgment against A. T. Stewart & Co. cannot be treated as conclusive or as furnishing any bar to an original investigation into the merits of the controversy, for the plain reason that the state of New York and the United States do owe to the complainants the duty of affording to them one full and fair opportunity of having an adjudication by their own courts upon the original merits of the controversy. The plaintiffs in error are and always have been citizens and residents of the United States and of the state of New York, and are entitled to every privilege belonging to such citizens and residents. They did not voluntarily seek the jurisdiction of the French courts or voluntarily submit themselves to that jurisdiction, when called into it by others. They were neither residents of nor commorant in France. They happened to have personal property there, subject to seizure upon judicial process, and were obliged either to appear and litigate in the French tribunals or forfeit their property, or speedily remove it beyond the boundaries of France. They adopted the (supposed) less burdensome alternative. It was, in every substantial sense, a compulsory, and not a voluntary appearance. Judgment by default would have been rendered against them had they failed to appear, and they had property then within the jurisdiction which could have been reached by process in execution of the judgment. The appearance of Stewart & Co. was therefore not voluntary, but compelled.

An appearance by defendants in an action where property has actually been attached is compulsory, and not voluntary.

General Steam Nav. Co. v. Guillon, 11 Mees. & W. 887; Schibsby v. Westenholz, L. R. 6 Q. B. 155.

In Voinet v. Barrett, 55 L. J. Q. B. 39, a case of a French judgment, the defendant appeared in the action. They had no property in France, but had extensive transactions there, and were likely at some time to have, and their appearance was from apprehension in regard to such property. The court held that the appearance was not compelled.

Stewart & Co. did indeed have a storehouse and agent in Paris. It was merely subsidiary to their main business in New York. Their real business had its head, home, and principal scope in New York. Their business was not in any sense removed from New York.

Nor is the circumstance that one of the contracts which created the relations of the parties was made in Paris, and in large part to be performed there, and perhaps to be interpreted according to the law of France, any ground for denying to the plaintiffs their right to a trial

on the original merits in the courts of their | Payments compelled under a garnishee process own country. The courts of America are per fall under the same rule. fectly competent to ascertain and apply for eign law, and do it every day.

Little attention need be paid to the suggestion that most of the evidence bearing upon the controversy was in France. The evidence, wherever it was, was under the control of the parties, and could easily be produced in the tribunals of either country.

That the French judgment in the present case is conclusive cannot be maintained on the ground that Stewart & Co. have not the same rights as other citizens of the United States to at least one adjudication of their case upon its original merits.

Foreign judgments of the character to which the one in question belongs do not preclude an investigation of the controversy upon its original merits. They may, in some instances, have some effect and operation short of this. This judgment was overwhelmingly im peached. Both the bill in equity and the matters offered to be proved most clearly showed it to be wholly erroneous, both in fact and in law. And the injustice inflicted by it, if enforced, would be enormous. This of itself is abundantly sufficient.

Stewart & Co. made every effort to get before the French tribunals every fact which bore upon the merits of the case, and that court would not lend its aid to these efforts and give them the facilities which it had in its power and which were absolutely necessary in order to enable them to bring out the facts; and even upon the limited and partial knowledge of the facts upon which the court acted, its judgment was grossly erroneous.

The case made against the judgment shows that a large part of the claims of Fortin & Co. were originally false, and known to be false, and were consequently fraudulent, and were supported by falsehood at the trial; and the case is therefore clearly within the doctrine laid down in the recent English case of Abouloff v. Oppenheimer, L. R. 10 Q. B. Div. 295, and the judgment consequently impeachable even upon the view of those tribunals which | most strongly assert the conclusiveness of foreign judgments. But the judgment stands impeached upon another ground which de serves special attention. The offer was made to show that it was based upon an alleged agreement between Fortin & Co. and Stewart & Co., designed to secure invoice valuations at rates lower than the market price, which was in direct violation of the laws of the United States, and the offer was rejected.

The absolute denial by the French law to judgments of the courts of other nations of anything in the nature of conclusiveness extends to all cases whatsoever as against French citizens.

This is not the case where our courts are called upon to enforce a statute as in National Steam Nav. Co. v. Dyer ("The Scotland") 105 U. S. 33 (26: 1004), but where they are to declare what the law of comity is and requires. Our courts would not undertake to undo what had been done under a foreign decree; but this is a very different thing from enforcing a purely executory foreign judgment.

Barber v. Lamb, 8 C. B. N. S. 95.

There may also be cases where, from a variety of circumstances, it may be very reasonable to suppose that the judgment of the foreign court would more nearly accord with justice than any which could be reached by our own tribunals. In such cases our courts might fairly say that it would be wise for them to accept the foreign judgment as the ground of decision, not because it was conclusive, so as to preclude original inquiry, but because, after such inquiry, it seemed probable that it was the nearest practicable approach to justice.

When, after an opportunity had been given to the aggrieved party to maintain his claims, it appeared that the task could not be accomplished with any assurance of a result so just as would be effected by adopting the foreign judgment, that judgment might be adopted as the best compliance possible under the circumstances with the supreme obligation to do justice.

Two recent text writers, Pigott (Introduction and first chapter of Foreign Judgments) and Bigelow (Estoppel, 256-266), bave thought that the best way to clear up what they regard as the confusion on this subject, would be to treat foreign judgments as conclusive. It can hardly be said that the efforts of these learned authors have been attended with much success.

A very able judge, Baron Parke, has the credit of establishing what some have supposed to be a solid foundation for the general conclusiveness of foreign judgments. He says: "Where a competent court has adjudicated a certain sum to be due, a legal obligation arises to pay that sum and an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts may be supported and enforced." Williams v. Jones, 13 Mees. & W. 628. But it is not certain that he was the discoverer of this principle, inasmuch as it bad been before stated by Lord Abinger, as well as by himself, in Russell v. Smyth, 9 Mees. & W. 810. This principle has, moreover, been quoted with approval by another very able judge, Mr. Justice Blackburn (Godard v. Gray, L. R. 6 Q. B. 139).

The only other ground upon which the conclusiveness of foreign judgments has been sought to be supported by the dicta of learned judges is what is called comity. When the courts of a nation exercise power over property, real or personal, which is within their grasp, whether such power is judicial or executive, the courts of another country cannot sit in judgment upon it. Such action involves the great issues of peace or war, and the treatment of it must be left to the supreme executive power alone. Whatever one nation thinks it fit to do in relation to persons or property fully and rightfully within its exclusive jurisdiction must be recognized every where. Nearly everything which is correctly disposed of under what is called the rule of comity proper falls within this field of the law. scarcely need be said, therefore, that what is properly called comity can never subsist be

It

« AnteriorContinuar »