ought to be given? A number of embarrassing questions of this kind may be raised on this subject of interfering jurisdictions, and some of them may, probably, hereafter exercise the talents, and require the application of the utmost discretion and wisdom of the courts of justice. I have done as much as becomes the duty which I have assumed, in bringing into view the most material decisions which have taken place, and stating the principles which have been judicially recognized.a (3) Effect of foreign judgments and suits. 1. Foreign judgments. In cases not governed by the constitution and laws of the United States, the doctrine of the English law generally, and with some few exceptions, is the law of this country, as to the force and effect to be given to foreign judgments. I shall, probably, take occasion, in subsequent parts, of these lectures, to consider the effect to be given here to foreign contracts, foreign assignments, foreign official acts, and other various transactions in the course of business, as the subjects to which *they *119 can be applied may render easy and pertinent the consideration of this branch of municipal and general jurisprudence. At present it will be sufficient to show, in connexion with this inquiry, that the English law is exceedingly, if not peculiarly liberal, in the respect which it pays to foreign judgments, in all other cases, except the case of a foreign divorce of an English marriage. As early as the reign of Charles II., Lord Chancellor Notting a In Tolen v. Tolen, 2 Blackf. Ind. Rep. 407, a divorce a vinculo for adultery was sustained in Indiana, though the parties were married in another state, where they resided, and the cause of divorce arose there, and the defendant continued to reside there, and had constructive notice only of the suit of his wife for a divorce by publication; but she had for some years been a bona fide citizen of Indiana, and acquired a domicil animo manendi. The decision was founded upon the authority of the statute of 1831, which allowed suits for a divorce for just cause to all persons who had resided in the state one year, and as against non-residents, on giving constructive notice by publication. ham maintained, in the House of Lords, in Cottington's case, that a foreign decree of divorce, in the case of a foreign marriage, was conclusive, and could not be opened, or the merits re-examined. It was against the law of nations, he observed, not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, and according to the forms of those countries wherein they were given. He referred to Wier's case, 5 Jas. I.,b wherein a judgment in debt having been rendered in Holland against an Englishman, he fled from execution to England, and the judgment being certified, the defendant was imprisoned in the admiralty for the debt, and the K. B., upon habeas corpus, held the imprisonment to be lawful, and that "it was by the law of nations that the justice of one nation should be aiding to the justice of another nation, and the one to execute the judgments of the other." It has become a settled principle in the English courts, that where a debt has been recovered of a debtor, under the process of foreign attachment, fairly and not collusively, the recovery is a protection to the garnishee against his original creditor, and he may plead it in bar.c A distinction has been taken since the time of *120 Lord Nottingham, between a suit *brought to enforce a foreign judgment, and a plea of a foreign a Note to 2 Swanst. Rep. 242, from Lord Nottingham's MSS. b 1 Rol. Abr. 530, pl. 12. Cleve v. Mills, Cooke's B. L. Embree & Collins v. c Chevalier v. Lynch, Doug. Rep. 170. 243. Allen v. Dundas, 3 Term Rep. 125. 367. Huxham v. Smith, 2 Campb. N. P. Rép. 19. Hanna, 5 Johns. Rep. 101. Holmes v. Remsen, 4 Where proceedings are in rem, all persons who could have asserted a right to the property become parties by the monition, and all judgments founded upon such proceedings, whether they regard real or personal property, being within the jurisdiction of the court, are held valid and binding, as being res judicata in every other country, in respect to all matters of right and title, transfer and disposition of the property. Rose v. Himely, 4 Cranch, 241. 7 Ibid. 429. S. P. Grant v. M'Lachlin, 4 Johns. Rep. 34. Curia Philipica, part 2, sec. 22, cited and proved on trial as containing the same and the true Spanish law on the point. 2 Binney's Rep. 230, note. Bauduc's Syndics v. Nicholson, 4 Miller's Louis. Rep. 81. judgment in bar of a fresh suit for the same cause. No sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by a suit upon the judgment, or otherwise, he is at liberty, in his courts of justice, to examine into the merits of such judgment; for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty. In the former case of a suit. to enforce a foreign judgment, the rule is, that the foreign judgment is to be received, in the first instance, as prima facie evidence of the debt, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly and unduly obtained. This was the principle declared and settled by the House of Lords, in 1771, in the case of Sinclair v. Fraser, upon an appeal from the court of session in Scotland. But if the foreign judgment has Cited in the case of the Dutchess of Kingston, 11 State Tr. by Harg. 222; and also in Walker v. Witter, Doug. Rep. 1; and in Galbraith v. Neville, ibid. 5, note. See also Lord Kenyon's opinion in this latter case, 5 East, 475, note; and also Lord Mansfield's opinion in Walker v. Witter, and the opinion of Buller, J., in Galbraith v. Neville, and the opinion, of Lord Ch. J. Eyre, in Philips v. Hunter, 2 H. Blacks. Rep. 410. Hall v. Odber, 11 East, 124. But in Martin v. Nicolls, 3 Simon's Rep. 458, the vice-chancellor has undertaken to controvert the doctrine in Sinclair v. Fraser, and he held that a foreign judgment could not be questioned, not merely when it comes in collaterally or by way of defence, but in a suit brought directly upon it to enforce it. It is requisite, however, in order to recognize and give effect in any way to a foreign judgment, that the court which pronounced it was competent to the case, and had due and lawful jurisdiction over the cause and the parties, and that there had been regular judicial proceedings; and this is the case whether the proceeding which led to the judgment be in rem or in personam. Sawyer v. The Maine F. and M. Ins. Co., 12 Mass. Rep. 291. Bradstreet v. Neptune Ins. Co., U. S. C. C. Boston, October, 1839, 3 Sumner, 600. Story's Com. on the Conflict of Laws, p. 492, 493, 494. See also supra, vol. i. p. 261. n. b. The present inclination of the English courts is in conformity with the opinion of the vice-chancellor. Lord Ellenborough, in Tarleton v. Tarleton, 4 Maule & Selw. 21. Guinness v. Carwell, 1 B. & Adolph. Rep. 459. Bequet v. M'Carthy, 2 Ibid. 951. See also Starkie on Evidence, vol. i. p. 208. The arguments and authorities for and against the latter doctrine of the English courts, that a foreign judgment regularly obtained been pronounced by a court possessed of competent jurisdiction over the cause and the parties, and carried into effect, and the losing parties institutes a new suit upon the same matter, the plea of the former judgment constitutes an absolute bar, provided the subject, and the parties, and grounds of the judgment, be the same. It is a is conclusive ex comitate gentium, as well where it is sought to be enforced as when it is interposed by way of plea, are fully and ably stated and considered in Southgate v. Montgomerie, in the Scotch court at Edinburgh in 1835. The lord ordinary (Jeffrey) decided that foreign judgments were only prima facie evidence of the claim, and the discussions alluded to were on appeal from that decision. It would seem from the case of Smith v. Nicolls, 5 Bingham, N. C. 208, that the English courts are returning to the old doctrine of Mansfield, Eyre and Kenyon, that in assumpsit on a foreign judgment, the judgment is only prima facie evidence of the debt. In Houlditch v. Donegal, (8 Bligh. 301,) the result of the judgment of the house of lords was, that there were cases in which it was competent for the court to look into the ground and reasons of the foreign judgment, and satisfy itself as to the law of the country. And in Koster v. Sapte, (1 Curteis, 691,) in the prerogative court of Canterbury, Sir Herbert Jeuner admitted that under certain circumstances, as where there was a question as to jurisdiction, or whether the party was cited according to law, and for some other purpose, a foreign decree might be examined, but that it could not be opened, in order to examine by your own lights and knowledge, whether a foreign judgment was pronounced on good ground or not. See also on this subject, Bradstreet v. Neptune Ins. Co., U. S. C. C., Boston, October, 1839, 3 Sumner, 600. The Law Reporter for January, 1840. Price v. Dewhurst, 8 Simons, 279. Mr. Justice Story reasons strongly in favour of the latter doctrine of the absolute conclusiveness of foreign judgments; (Com. on the Conflict of Laws, p. 506, 507,) and that is certainly the more convenient and the safest rule, and the most consistent with sound principle, except in cases in which the court which pronounced the judg ment, has not due jurisdiction of the case, or of the defendant, or the proceeding was in fraud, or founded in palpable mistake or irregularity, or bad by the law of the rei judicate; and in all such cases the justice of the judgment ought to be impeached. Not only Vattel, but Huberus and other civilians cited by Henry on Foreign Law, maintain the entire validity of foreign judgments in every other country. Vattel, b. 2. ch. 7. sec. 84, 85. Huberus de Conflictu Legum, lib. 1, tit. 3, sec. 3, 6. Henry on Foreign Law, 74, 75, 76. In Boston India R. Factory v. Hoit, 14 Vermont R. 92, it was held that assumpsit was not the proper action on a judgment of another state, but it should be debt on the record of the judgment. See supra, vol. i. p. 260. res judicata, which is received as evidence of truth; and the exceptio rei judicatæ, as the plea is termed in the civil law, is final and conclusive. This is a principle of general jurisprudence, founded on public convenience, and sanctioned by the usage and curtesy of nations.b The rule of the English law has been *very gen- *121 erally recognized in the courts of justice in this country, in cases not affected by the constitution and law of the United States. There is one exception in the jurisprudence of some of the states, as to the force and effect of foreign sentences in the prize courts of admiralty, bearing upon neutral rights. While those sentences are regarded in the courts of the United States as binding and conclusive upon the same questions,d there has been some difference of opinion, and some collisions on this point, in the decisions in the state courts.e The weight a Hughes v. Cornelius, Raym. 473, S. C. 2 Shower, 232. Burrows v. Jemino, Str. 733. Hamilton v. The Dutch East India Company, 8 Bro. C. P. by Tomlins, p. 264. Lothian v. Henderson, 3 Bos. & Pull. 499. Graham v. Maxwell, 2 Dow. Par. Cases, 314. Lord Ch. J. Eyre, in Philips v. Hunter, 2 H. Blacks. Rep. 410. Tarleton v. Tarleton, 4 Maule & Selw. 20. Thompson v. Tolmie, 2 Peters' U. S. Rep. 157. Labanne v. Moreau, 13 Louis. Rep. 437. Notes to vol. b Vattel, b. 2. ch. 7, sec. 84, 85. Martens' Summary of the Law of Nations, b. 3. ch. 3. sec. 20. Ersks. Inst. of Scots. Law, vol. 2. p. 735. Kame's Pr. of Equity, vol. ii. p. 366, or, b. 3, ch. 8, sec. 6. i. p 6, of More's edit. of Lord Stair's Institutions. A judgment while it stands, cannot be impeached by the parties or privies to the record, in a collateral action or in another court. This is a general principle. De Medina v. Grave, Q. B. Feb. 1846. N. Y. Legal Observer for August, 1846. • Hitchcock & Fitch v. Aikin, 1 Caines' Rep. 460. Johns. Cas. 393. Taylor v. Bryden, 8 Johns. Rep. 178, ney, 4 Conn. Rep. 380. Bissel v. Briggs, 9 Mass. Rep. 463. J., 4 Cranch, 442. Taylor v. Phelps, 1 Harris & Gill, 492. Barney v. Patterson, 6 Harr. & Johns. 182. Story's Com. on the Conflict of Laws, 508, and the numerous cases there collected. A judgment on a trustee process in one state, will protect the trustee in a suit in another state for the same debt. Ocean Ins. Co. v. Portsmouth R. R. Co., 3 Metcalf, 420. Goix v. Low, 1 d Croudson v. Leonard, 4 Cranch, 434. Rose v. Himely, ibid. 241. Hudson v. Guestier, ibid. 281. Bradstreet v. The Neptune Ins. Co., 3 Sumner's Rep. 600. e They were declared to be conclusive, according to the English rule, |