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 utilitatem." Wheat. International Law (8th ed.) §§ 78, 79. "No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribu

question which touched the comity of nations, | within its territory, is given by acts passed by 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 on the condition of the country in which the foreign law is sought to be enforced, the particular nature of 165]her legislation, her policy, and the character 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 strannals of another state; and if execution be sought ger." Story, Conf. Laws, § 28; Saul v. His Creditors (1827) 5 Mart. N. S. 569, 596, 16 Am. Dec. 212.

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 judg ment, and to give effect to it or not, as may be found just and equitable. The general comity, utility, and convenience of nations have, how

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.

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 in-ever, established a usage among most civilized terests. 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, Conf. Laws, §§ 33-38.

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 *by a court having jurisdic [167 tion 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.

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 A judgment in rem, adjudicating the title to countries, the laws of the one will, by the a ship or other movable property within the comity of nations, be recognized and executed custody of the court, is treated as valid everyin another, where the rights of individuals are where. As said by Chief Justice Marshall: concerned. . . . The comity thus extended to "The sentence of a competent court, proceedother nations is no impeachment of sovereignty.ing in rem, is conclusive with respect to the It is the voluntary act of the nation by which thing itself, and operates as an absolute change it is offered, and is inadmissible when contrary of the property. By such sentence, the right 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 sovereignties 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 166]courts, but the comity* of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascer tained and guided." Bank of Augusta v. Earle (1839) 38 U. S. 13 Pet. 519, 589 [10: 274, 308]; Story, Conf. Laws, § 38.

Mr. Wheaton says: "All the effect which foreign laws can have in the territory of a state depends absolutely on the express or tacit consent of that state. . The express consent of a state, to the application of foreign laws

of the former owner is lost, and a complete title given to the person who claims under the decree. No court of co-ordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no co-ordinate tribunal is capable of making the inquiry." Williams v. Armroyd, 11 U. S. 7 Cranch, 423, 432 [3: 392, 395]. The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law. Croudson v. Leonard, 8 U. S. 4 Cranch, 434 [2: 670]; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns. Cas. 16. But the same rule applies to judg ments in rem under municipal law. Hudson v. Guestier, 8 U. S. 4 Cranch, 293 [2: 625]; Ennis v. Smith, 55 U. S. 14 How. 400, 430 [14: 472, 485]; Wisconsin v. Pelican Ins. Co. 127

U. S. 265, 291 [32: 239, 243]; Scott v. Mc Neal, 154 U. S. 34. 46 [38: 896, 901]; Castrique v. Imrie, L. R. 4 H. L. 414; Monroe v. Douglas, 4 Sandf. Ch. 126.

ances were vacated as against those indorsces and all the indorsers and negotiators of the bills, and the money deposited was returned to bim. Being afterwards sued at law in England A judgment affecting the status of persons, by subsequent holders of the bills, he applied such as a decree confirming or dissolving a to the court of chancery and obtained a permarriage, is recognized as valid in every coun-petual injunction. Lord Chancellor King, as try, unless contrary to the policy of its own reported by Strange, "was clearly of opinion law. Cottington's Case, 2 Swanst. 326, note; that this cause was to be determined according Roach v. Garvan, 1 Ves. Sr. 157; Harvey v. to the local laws of the place where the bill was Farnie, L. R. 8 App. Cas. 43; Cheely v. Clay-negotiated, and the plaintiff's acceptance of the ton, 110 U. S. 701 [28: 298]. It was of a foreign sentence of divorce, that Lord Chancellor Nottingham, in the House of Lords, in 1688, in Cottington's Case, above cited, said: "It is against the law of nations not to give credit to the judgments and sentences of foreign coun168]tries, till they be reversed by the law,*and according to the form, of those countries where in 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 an other 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 at tached. Story, Conf. Laws (2d ed.) § 592a. 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 where of is not examinable here." Gold v. Canham (1678-9) 2 Swanst. 325, 1 Ch. Cas. 311. See also Tarleton v. Tarleton, 4 Maule & 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 resi dents thereof. Story, Conf. Laws, SS 330341; May v. Breed, 7 Cush. 15, 54 Am. Dec. 700. Such was the case, cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, Moseley, 1, 2 Strange, 733, 2 Eq. Cas. Abr. 525, pl. 7, 12 Vin. Abr. 87, pl. 9, Sel. Cas. Ch. 69, 1 Dick. 48.

In that case, bills of exchange drawn in London were negotiated, indorsed, and ac cepted at Leghorn in Italy, by the law of which an acceptance became void if the drawer failed 169]*without leaving effects in the acceptor's hands. The acceptor, accordingly, having received advices that the drawer had failed 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 accept

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 Viner, that "the court at Leghorn had jurisdiction of the thing, and of the persons;" and, as reported by Moseley, 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 Barn. & Ad. 757; Castrique v. Imrie, L. R. 4 H. L. 414, 435, 2 Smith, 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 cases, 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. t. Hardw. 85, 89, Cunningham, 144, 148.

In former times, foreign decrees in admiralty in 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 do so was recognized by the court of[170 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 Frizeland 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 gov ernor sends his letters missive into England, omnes magistratus infra regnum Angliæ rogans, to make execution of the said judgment,—the judge of the admiralty may execute this judg ment by imprisoument 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 Rolle, Abr. 530, pl. 12; 6 Vin. Abr. 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 sen- | side in one of the courts of great sessions in tence; and in later times the mode of enforcing & foreign decree in admiralty is by a new libel. See The City of Mecca, 5 Prob. Div. 28, and 6 Prob. Div. 106.

dence which may affect the right of this de- | of session. 2 Paton, IX. 253, Morison Dict. mand when the cause comes to be heard; but Dec. 4542, 1 Dougl. 5, note. 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 Cas. t. Hardw. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves. Sr. (Belt's Supp.) 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 baving proper jurisdiction. And it is true that, if so, it is conclusive, whether in & 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 the 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. Sr. 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.

*Accordingly, in Crawford v. Witten [175 (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, same case, nom. Crawford v. Whittal, 1 Dougl. 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 debet, 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 part of the defend ant, that indebitatus assumpsit would have lain; and on the part of the plaintiffs, that the judg These decisions of Lord Hardwicke demon- ment was only prima facie evidence of the debt. strate that, in his opinion, whenever the ques- That being so, the judgment was not a specialty, tion was of giving effect to a foreign judgment but the debt only a simple contract debt; for asfor money in a suit in England between the sumpsit will not lie on a specialty. The difficulparties, it did not have the weight of a domes-ty in the case had arisen from not fixing accutic judgment, and could not be considered as a bar, or as conclusive, but only as evidence of the same weight as a simple contract, and the propriety and justice of the judgment might be examined.

In Sinclair v. Fraser (1771) the appellant, 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 determined 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 presid ing spirit, acting in concert with or for the Lord Chancellor, in disposing of the Scotch appeals) "ordered and declared that the judg ment 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

rately what 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. Frazer was unquestionable. Foreign judgments are a *ground of action everywhere, but they [17€ are examinable." Justices Willes, Ashurst, and Buller concurred, the two latter saying that wherever indebitatus assumpsit will lie debt will also lie. 1 Dougl. 1, 5, 6.

In Herbert v. Cook (1782), again, in an action of debt upon a 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. Nerille (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

*This judgment against the garnishee[178 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 devested 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, we could not examine a judgment of a court in a foreign state, brought before us in this manner.

true line ever since; namely, that the foreign | distinction between the effect of a foreign judgment shall be prima facie evidence of the judgment which vests title, and one which debt, and conclusive till it be impeached by only declares that a certain sum of money is the other party." As to actions of this sort, due, was clearly stated by Chief Justice Eyre, see how far the court could go, if what was as follows: 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. Now 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 Dougl. 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 177] debt; and they were of opinion *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 a reference to a master, and for a final judg. ment on this 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 Ridgeway, above quoted, which had been cited by counsel) "Lord Hardwicke'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 Swanst. 703, 708, 710.

"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, when the party who claims the benefit of it applies to our courts to enforce it. When it is thus vol untarily 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 warranted by that law." 2 H. Bl. 402, 409, 410.

In Wright v. Simpson (1802) Lord Chancellor Eldon said: "Natural law requires the courts 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. Jr. 714, 730.

*Under Lord Ellenborough, the distinc [179 tion 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 In Phillips v. Hunter (1795) the House of upon a judgment rendered in the island of Lords, in accordance with the opinion of the Tobago, the defendant pleaded non assumpsit, majority of the judges consulted, and against and prevailed, because it appeared that he was that of Chief Justice Eyre, decided that a cred not a resident of the island, and was neither itor of an English bankrupt, who had obtained personally served with process nor came in to payment of his debt by foreign attachment in defend, and the only notice was, according to Pennsylvania, was liable to an action for the the practice of the court, by nailing up a copy money by the assignees in bankruptcy in Eng of the declaration at the court house door. It land. But it was agreed, on all hands, that was argued that "the presumption was in favor the judgment in Pennsylvania and payment of a foreign judgment, as well as of a judg under it were conclusive as between the garment obtained in one of the courts of this nishee and the plaintiff in that suit. And the country." To which Lord Ellenborough an