appear to have acted "judicially, honestly, and with the intention to arrive at the right conclusion;" and a result thus reached ought not to be disturbed. The following view of the rule in England was expressed by Lord Herschell in Nouvion v. Freeman, L. R. 15 App. Cas. 1, 9, quoted in the principal opinion: "The principle upon observing in the present case, as in that 'the whole of the facts appear to have been inquired into by the French courts, judicially, honestly, and with the intention to arrive at the right conclusion, and having heard the facts as stated before them, they came to a conclusion which justified them in France in deciding as they did decide.' Indeed, it is diffi which I think our enforcement of foreign judg-cult to understand how the common course of comity of our nation does not require us to 4. General averments that a judgment is irregular ments must proceed is this: that in a court of competent jurisdiction, where according to its established procedure the whole merits of the case were open, at all events, to the parties, however much they may have failed to take advantage of them, or may have waived any of their rights, a final adjudication has been given that a debt or obligation exists which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a higher tribunal. In such a case it may well be said that giving credit to the court of another country we are prepared to take the fact that such adjudication has been made as establishing the existence of a debt or obligation." But in that connection the observations made by Mr. Justice Blackburn in Godard v. Gray, L. R. 6 Q. B. 139, 148, and often referred to with approval, may usefully again be quoted: "It is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgments of a foreign tribunal. Several of the continental nations (including France) do not enforce the judg 232] ments of other countries, *unless where there are reciprocal treaties to that effect. But in England and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones, 13 Mees. & W. 633: 'Where a court of competent jurisdiction had adjudicated a certain sum to be due from one person to an other, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced.' And taking this as the principle, it seems to follow that anything which negatives the existence of that legal obligation, or excuses the defendan: from a performance of it, must form a good defense to the action. It must be open, therefore, to the defendant to show that the court which pronounced the judgment had not jurisdiction to pronounce it, either because they exceeded the jurisdiction given to them by the foreign law, or because he, the defendant, was not subject to that jurisdiction; and so far the foreign judgment must be examinable. Probably the defendant may show that the judgment was obtained by the fraud of the plaintiff, for that would show that the defendant was excused from the performance of an obligation thus obtained; and it may be that where the foreign court has knowingly and perversely disregarded the rights given to an English subject by English law, that forms a valid excuse for disregarding the obligation thus imposed on him; but we prefer to imitate the caution of the present Lord Chancellor in Castrique v. Imrie, L. R. 4 H. L. 445, and to leave those questions to be decided when they arise, only pleading is consistent with any notion that the judgment was only evidence. If that were so. every count on a *foreign judgment must [233 be demurrable on that ground. The mode or pleading shows that the judgment was considered, not as merely prima facie evidence of that cause of action for which the judgment was given, but as itself giving rise, at least prima facie, to a legal obligation to obey that judgment and pay the sum adjudged. This may seem a technical mode of dealing with the question, but in truth it goes to the root of the matter. For if the judgment were merely considered as evidence of the original cause of action, it must be open to meet it by any counter evidence negativing the existence of that original cause of action. If, on the other hand, there is a prima facie obligation to obey the judgment of a tribunal having jurisdiction over the party and the cause, and to pay the sum decreed, the question would be, whether it was open to the unsuccessful party to try the cause over again in a court, not sitting as a court of appeal from that which gave the judgment. It is quite clear that this could not be done where the action is brought on the judgment of an English tribunal; and, on principle, it seems the same rule should apply, where it is brought on that of a foreign tribunal." In any aspect, it is difficult to see why rights acquired under foreign judgments do not belong to the category of private rights acquired under foreign laws. Now the rule is universal in this country that private rights acquired under the laws of foreign states will be respected and enforced in our courts unless contrary to the policy or prejudicial to the interests of the state where this is sought to be done; and although the source of this rule may have been the comity characterizing the intercourse between nations, it prevails to-day by its own strength, and the right to the application of the law to which the particular transaction is subject is a juridical right. And, without going into the refinements of the publicists on the subject, it appears to me that that law finds authoritative expression in the judgments of courts of competent jurisdiction over parties and subject-matter. It is held by the majority of the court that defendants cannot be permitted to contest the validity and effect of this judgment on the general ground that it was erroneous in law or *in fact; and the special grounds relied on [234 are seriatim rejected. In respect of the last of these, that of fraud, it is said that it is unnecessary in this case to decide whether certain decisions cited in regard to impeaching foreign judgments for fraud could be followed consistently with our own decisions as to impeaching domestic judgments for that reason, "because there is a distinct and independent ground upon which we are satisfied that the 1894. give conclusive effect to the judgments of the courts of France, and that ground is the want of reciprocity on the part of France as to the effect to be given to the judgments of this and 5. To warrant the impeaching of a foreign judg. and void and entered without any jurisdiction by the court to enter it on the facts and pleadings, are averments only of legal conclusions. ment because procured by fraud, fraud must be distinctly alleged and charged. other foreign countries." And the conclusion is announced to be" that judgments rendered in France, or in any other foreign country by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiff's claim." In other words, that although no special ground exists for impeaching the original justice of a judgment, such as want of jurisdiction or fraud, the right to retry the merits of the origi nal cause at large, defendant being put upon proving those merits, should be accorded in every suit on judgments recovered in countries where our own judgments are not given full effect, on that ground merely. I cannot yield my assent to the proposition that because by legislation and judicial decision in France that effect is not there given to judgments recovered in this country which, according to our jurisprudence, we think should be given to judgments wherever recovered (subject, of course, to the recognized exceptions), therefore we should pursue the same 6. In an action upon a Canadian judgment, an answer not denying the court's jurisdiction of the cause or of the defendant, nor alleging fraud in procuring it, or other special ground for not allowing it full effect, but setting up the same defenses which were pleaded and might have been tried in the foreign court, and attempting to reopen and try anew the whole merits, cannot be allowed, since, by the law of England, prevailing in Canada, a judgment of an American court. under like circumstances, would be allowed full and conclusive effect. [No. 15.] Argued November 10, 14. 1893. Decided June IN ERROR 3, 1895. to the Circuit Court of the United States for the Northern District of Ohio, to review a judgment sustaining a demurrer, and in favor of James B. McMullen et al., plaintiffs, against Samuel J. Ritchie, defendant, for the amount of a foreign judgment rendered in the province of Ontario and dominion of Canada. line of conduct as respects the judgments of Affirmed. French tribunals. The application of the doctrine of res judicata does not rest in discretion; and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances de sirable or necessary. As the court expressly abstains from deciding whether the judgment is impeachable on the ground of fraud, I refrain from any observations on that branch of the case. 235] *Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Jackson concur in this dissent. (See S. C. Reporter's ed. 235-243.) Competency of court-authority of attorneyvoluntary appearance-general averments impeaching foreign judgment-defense of same. 1. An allegation in a complaint that a court is a duly and lawfully constituted court of record, having jurisdiction over all civil matters, and an admission in the answer that the suit was brought in that court, establish the competency of the court. 2. Where an answer expressly admits that certain attorneys entered, or undertook to enter, the appearance of defendant, and does not allege that they were not authorized, it will be taken that they were authorized to do so. 8. Where the answer in one action shows that defendant appeared and answered in another ac tion, and it is not alleged that he did so under compulsion, he will be taken to have voluntarily submitted himself to the jurisdiction of the U. S., BOOR 40. court. 9 See same case below, 41 Fed. Rep. 502. Statement by Mr. Justice Gray: This was an action brought September 21, 1888, in the circuit court of the United States for the northern district of Ohio, by James B. McMullen, a citizen of the state of Illinois, and George W. McMullen, a citizen of the province of Ontario in the Dominion of Canada, against Samuel J. Ritchie, a citizen of the state of Ohio, upon a judgment for the *sum [236 of $238,000 recovered by the plaintiffs against the defendant on February 26, 1888, in the queen's bench division of the high court of justice for the province of Ontario. The petition alleged that by a contract in writing, dated January 13, 1886, the plaintiffs, being the owners of 210 first-mortgage bonds of the Central Ontario Railway, a corporation of the province of Ontario, for $1,000 each, and of certain coupons thereof, amounting to the sum of $71,250, agreed to sell, and the defendant agreed to purchase, those bonds and coupons for the price e of of $210,000 of the fully paid-up stock of the Canadian Copper Company, a corporation of the state of Ohio; that on the same day, in part performance of the contract, the defendant accepted five bills of exchange for $5,000 each, drawn by one of the plaintiffs, payable to the other plaintiff's order, at the Bank of Montreal at Picton in the province of Ontario, on July 1, 1886, with an indorsement thereon that the five bonds of the Central Ontario Railway attached to the billa were to be delivered to the defendant upon his paying the acceptances; and it was agreed that the payment by the defendant of those bills should be considered as payment of a like sum upon the contract, and the delivery by the plaintiff of the bonds attached to the bills should be considered as a delivery of so many bonds under the contract. 'The petition further alleged that before Ос133 tober 8, 1887, all things necessary to entitle the plaintiff to the performance of the contract had happened, and the plaintiffs were ready to perform it on their part, and the defendant neg lected and refused to perform it on his part; and that on that day the plaintiff commenced an action in the queen's bench division of the high court of justice for Ontario, a duly and lawfully constituted court of record, having jurisdiction over all civil and criminal matters in and for that part of the Dominion of Canada called the province of Ontario," and caused a writ of summons to be personally served upon the defendant on November 8, 1887; and that on November 28, 1887, the defendant "duly entered his appearance in said action in said court;" that that action was brought upon the contract aforesaid, and that the plaintiffs, in 237] their statement of claim, *"duly delivered to said defendant or his duly constituted solicitors and attorneys, in accordance with the laws of said province of Ontario," prayed for specific performance of the contract, or for damages for the breach thereof. The petition further alleged that in that action, on November 28, 1887, the defendant, in accordance with those laws, delivered to the plaintiffs his answer, denying the allegations of the plaintiffs' claim, and averring that, before the making of the contract aforesaid, the plaintiffs jointly and the defendant were each the owners of a large number of the bonds of the Central Ontario Railway, and agreed, in order the better to effect a sale of all the bonds, that the plaintiffs' bonds should be assigned to the defendant, in order to enable him to deal with them as the apparent owner, accounting to the plaintiffs for their share of the proceeds; that the contract aforesaid was executed in order to carry out that understanding, and that, if it purported to be an absolute sale to him of the plaintiffs' bonds for a certain sum to be paid by him, it did not faithfully express the agreement between the parties, and should be reformed; that it was no part of the agreement that he should pay the plaintiffs any money in respect of the assignment until he had sold the bonds and received the proceeds; that the defendant's acceptances were given solely for the plaintiffs' accommodation; and that the defendant had not sold any of the bonds, although he had used his best endeavors to do so. The petition further alleged that on December 18, 1887, issue was joined upon that answer; that on February 29, 1888, that action came on for trial in said court, and judgment was rendered that the plaintiffs recover of the defendant the sum of $238,000 and costs; that the judgment was unreversed and unsatisfied, in whole or in part; and that, by reason of the premises, the defendant became indebted to the plaintiffs in that sum, with interest, and, although payment had been demanded, had not paid the same or any part thereof. To this action on the judgment, the defend ant filed an answer containing the following statements: The defendant "admits that on January 13, 238]1886, he entered *into a contract in writ ing with the plaintiffs"-a copy of which was made part of the answer, showing that it was a contract of sale and purchase, as alleged in the petition, and that the bonds and coupons were to be delivered, and the I rice paid, at the Bank of Montreal at Picton. "And he denies that he entered into any other contract in writing with them upon any subject or touching any matter in contention in this action. "He admits that an action was commenced against him in the province of Ontario, Canada, for the general purpose stated in the petition, and that service of a summons was in form made upon him in Summit county, Ohio, and that certain attorneys entered, or undertook to enter, the appearance of this defendant in said action. "He admits that a formal, but an irregular and void, judgment was entered up against him in said court on or about the 29th day of February, 1888, which judgment was entered without his knowledge and in his absence, and without any hearing whatever. "And this defendant denies each and every other fact, statement, and allegation in said petition. "And for a further defense this defendant alleges that the said contract entered into between the parties was entered into for the purposes stated in his answer in said original action in the province of Ontario, and for no other purpose; that the contract was altogether an accommodation contract, made between the parties with the full understanding and agreement that it was never to be performed between them; that it was made for the accommodation and convenience of the plaintiffs, to enable them to make use of the bonds described in the petition, and to aid them in the raising of money thereon. "And this defendant further alleges that the said plaintiffs did not, at the time stated in the petition, nor at any other time, ever undertake to or in fact perform, said contract upon their part, or any part thereof. They never at any time demanded performance upon the part of this defendant of said contract, unless the bringing of said action was a demand of such performance. They never, at any time, tendered the bonds *or coupons in the contract [239 and in the petition mentioned to this defendant, and they never delivered any of the said bonds to this defendant, nor did they ever make delivery nor attempt to make delivery of said bonds in accordance with the terms of said written contract, the said plaintiffs well knowing at all times what the real purpose of said contract was, and that the same was not to be performed upon the part either of the plaintiffs or of this defendant. "This defendant says that he was not present at the time that said pretended judgment was rendered; but he states the fact to be that there were no facts existing or presented to the court which justified such judgment; that no bonds nor coupons were brought into court for delivery to this defendant, nor are any bonds or coupons upon deposit in the office of the clerk of said court, or in any other depositary, to be delivered to the defendant upon the performance of said contract upon his part, nor is it in the power of the said plaintiffs, or either of them, to make such delivery." The defendant further alleges that, if he were compelled to pay the judgment, he would be compelled to pay it without any consider 1894. RITCHIE V. MCMULLEN. ation whatever; that by the wrongful act of the plaintiffs he was compelled to pay three bills of exchange of $5,000 each, which the plaintiffs had delivered to bona fide purchasers; that he never received but ten of the bonds; that the conditions of the contract were dependent conditions; and that the plaintiffs had not performed their part of the contract. said judgment was The defendant also "denies that any hearing occurred before said court;" and "denies that there was any showing made by the plaintiffs of their readiness or their ability to perform their contract; but says that said irregular and without evidence, without per formance upon the part of the plaintiffs, en tered up against him in his absence, without his knowledge, and without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings in said action." The plaintiffs demurred to the answer, "be cause the same does not state facts sufficient to 240 constitute a defense." The *circuit court sustained the demurrer, and rendered judgment for the plaintiffs for the sum sued for, with interest and costs. 41 Fed. Rep. 502. The defendant sued out this writ of error. Messrs. Jeremiah M. Wilson and Samuel Shellabarger for plaintiff in error. Mr. Samuel E. Williamson for defendants in error. the court: Mr. Justice Gray delivered the opinion of The judgment of the Canadian court is, beyond all doubt, sufficient to support this action, unless it is successfully impeached. Testing the answer in this case by the rules laid down in Hilton v. Guyot, just decided, no adequate ground for impeaching that judgment is shown. before it by enter the defendant's appearance in that action, was The defendant, indeed, in the first part of his answer, alleges that the "judgment was entered without his knowledge and in his absence, and without any hearing whatever;" and, likewise, in the second part of his answer, "says that he was not present at the time that said pretended judgment was rendered," and "denies that any without hearing occurred before said court," and "says irregular and that said judgment evidence," and "entered up against him in his absence, and without his knowledge." But, as he had once submitted himself to the jurisdiction of the court, all these allegations and denials are quite consistent with the position taken by the plaintiffs at the argument here, that the defendant at the time appointed for the hearing failed to appear and made default, and therefore no hearing or evidence was necessary to entitle the court to proceed to judgment. The general averments, in the first part of the answer, that the judgment was "an irregular and void judgment," and, in the second part, that "said judgment was irregular," and "without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings in said action," are but averments of legal conclusions, and wholly insufficient to impeach the judggrounds upon ment without specifying the the which it is supposed to be *irregular and [242 void, or without jurisdiction or authority to enter it. Cowan v. Braidwood, 1 Man. & G. 882, 2 Scott, N. R. 138. Upon this record, the queen's bench division of the high court of justice of the province of Ontario must be taken to have been a competent court, so far as the subject-matter or cause of action was concerned, to entertain jurisdiction of the action brought plaintiffs against the defendant. The petition in the present case alleges that the plaintiffs brought in that court, described as "a duly and lawfully constituted court of record, having jurisdiction over all civil matters" in and for the province of Ontario, an action upon a certain contract in writing between the parties. The defendant, in his answer to this petition, expressly admits that "an action was com menced against him in the province of Ontario, Canada, for the general purpose stated in the petition." The competency of the Canadian court must therefore be deemed to be admitted, and, indeed, was hardly denied at the bar. Giving to the answer the construction, most favorable to the defendant, of setting up two distinct and independent defenses separated by the words, "And for a further defense," real purpose of the contract, which is referred as incidental to there is nothing in it to show that the Canadian to, not as a ground for charging fraud in pro court had not jurisdiction of the person of the defendant. The first part of the answer expressly admits that "certain attorneys entered, 2411*or undertook to enter, the appearance of this defendant in said action." As it does not allege that the attorneys were not authorized to Mutual To warrant the impeaching of a foreign judgment because procured by fraud, fraud must be distinctly alleged and charged. White v. Hall, 12 Ves. Jr. 321; Wallingford v. Society, L. R. 5 App. Cas. 685, 697, 701; Ambler v. Choteau, 107 Ú. S. 586, 591 [27:322, 324]. This answer does not even contain a general charge that the judgment was procured by fraud, or any equivalent allegation. And the only matters specified, from which fraud is sought to be inferred, are those already considthe plaintiffs had of ered, which have no tendency to prove it; and the knowledge which the the curing the judgment, but only this answer as duly setting up a defense of fraud would be inconsistent with all precedent, and would ignore the duty of giving the other party notice of the defenses which he must be prepared to meet. By the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect. Scott v. Pilkington, 2 Best & S. 11; Abouloff v. Oppenheimer, L. R. 10 Q. B. Div. 295, 307; Vadala v. Lawes, L. R. 25 Q. B. Div. 310, 316; Nouvion v. Freeman, L. R. 15 App. Cas. 1, 10; Fowler v. Vail, 27 U. C. C. P. 417, 4 Ont. App. Rep. 267. The defenses set up in the answer to this action upon the Canadian judgment reduce themselves to an attempt, without any sufficient allegation of want of jurisdiction of the cause or of the defendant, or of fraud in procuring that judgment, or of any other special ground for not allowing the judgment full effect, but upon general allegations setting up the same 136 |