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2. Of lis pendens. A lis pendens, before the tribunals of another jurisdic
without any examination of the merits. The principle in the civil and French law is, that a judgment is conclusive only between the parties.
It has, however, been a vexed question, whether foreign judgments, as between strangers, were entitled to any notice whatever, or were to receive a blind execution, without looking into their merits. There seem to have been much vibration of opinion, and doubt, and uncertainty, on thls point.
In the elaborate argument, which M. Merlin delivered before the court of cassation, in the case of Spohrer v. Moe, and which he has preserved entire in his Questions de Droit, tit. Jugement. sec. 14, he showed, by many judicial precedents, that the French law, ( jurisprudence des arrets) had been uniform from the date of the royal ordinance down to this day; that nothing which had been judicially decided under a foreign jurisdiction, had any effect in France, and did not afford any ground or colour, even for the exceptio rei judicate. He maintained that the law did not distinguish between cases, for that all foreign judgments, whoever might be the parties, whether in favour or against a Frenchman with a stranger, or whether between strangers, and whether the judgment was by default, or upon consession or trial, were of no avail in France, and the jurisprudence des ar. rets rejected every such distinction. Whenever this rule had been suspended, it had been occasioned by the force of special treaties, such as that between France and the Swiss cantons, in 1777; or accorded by way of reciprocity to a particular power, such as in the case of the Duke of Lorrain, in 1738. The judgment of the court of cassation, on appeal, rendered in the year 12 of the French republic, was, that the foreign judgment, in that case, in which a Frenchman was one of the parties, and a Norwegian the other, was of no effect whatever. (Vide Repertoire de Jurisprudence, tit. Judgment, sec. 6. Questions de Droit, h. t. sec. 14.) Afterwards, in the case of Holker v. Parker, decided in the court of cassation, in 1819, it was settled, upon the authority of the new Code Civil, No. 2123, and 2128, and of the Code de Procedure, No. 546, that the ordinance of 1629 no longer applied, and that the codes made no distinction among foreign judgments, and rendered them all executory, or capable of execution in France, after being subject to re-examination; and whoever sought to enforce a foreign judgment, must show the reasons on which it was founded. (Vide Questions du Droit, par M. Merlin, tit. Jugement, sec. 14.) In that very case, it had been previously decided, by the court of the first instance, at Paris, in 1815, that a foreign judgment was to be regarded as definitive between strangers, and to be executed in France, without their courts being permitted to take cognizance of the merits. The royal court of Paris, in 1816, on appeal, decided otherwise, and declared, that foreign judgments had no effect in France, and that the principle was unqualified and absolute, and
tion has, in cases of proceedings in rem been held to be
a good plea in abatement of a suit. Thus, where *123 a creditor of A. *a bankrupt, had bona fide, and
by regular process, attached in another state a debt due to A. and in the hands of B., it has been held, that the assignees of the bankrupt could not, by a subsequent suit, recover the debt of B. The pendency of the fo
was founded on the sovereignty and independence of nations, and could be invoked by all persons, subjects and strangers, without distinction. The court of cassation, on a further appeal, decided, that they were to be regarded sub modo ; they were not to be of any force without a new investigation of the merits, for a blind submission to them would be repugnant to the nature of judicial tribunals, and strike at the right of sovereignty within every independent territory. I have said that the rule was settled in that but it seems to be difficult to know when or how the rule on this subject can be deemed settled in France, for the conflict of opinions between their various tribunals, and at different periods of time, is extraordinary. This very question, whether a foreign judgment between two strangers could receive execution in France without revision or discussion, was raised in January, 1824, before a tribunal, at Paris, between Stackpoole v. Stackpoole and others, and it was decided in the negative, after a discussion on each side, distinguished for depth of learning, and a lustre of eloquence, not to be surpassed. M. Toullier ventures to consider the French jurisprudence, or the droit public of France, as being irrevocably established by the decree of the court of cassation, in 1819, and he consid. ers it as resting on sound foundations. Foreign judgments are no longer absolute nullities, since they can be declared executory, after the French courts have taken cognizance of the merits of them, and have acted, in respect to them, in the nature of a court of appeal. The rule applies to all foreign judgments without distinction, and the French courts will admit the proofs taken in the foreign courts-locus regit actum. Vide Toullier's Droit Civil Francais, suivant l'ordre du Code, tom. x. No. 76 to 86. The French and the English law have now, at last, approached very near to each other on this interesting head of national jurisprudence. They agree perfectly when the foreign judgment is sought to be enforced; but the French courts will not permit, as they certainly ought, a plea of a foreign judgment in bar of a new suit for the same causo, to be conclu. sive, if fairly pronounced by a foreign court, having a jurisdiction confessedly competent for the case. So far the French jurisprudence still wants the true spirit of international comity. See Merlin, Repertoire, tit. Jugement, sec. 6. Pardessus, Droit Commercial, tom. v. p. 1488.
· Le Chevalier v. Lynch, Doug. Rep. 170.
reign attachment is a good plea in abatement of the suit.a In such a case, the equity of the maxim, Qui prior est tempore potior est jure, forcibly applies. Unless the plea in abatement was allowed in such a case, the defendant would be left without protection, and would be obliged to pay the debt twice; for the courts which had acquired jurisdiction of the cause by the priority of the attachment, would never permit the proceeding to be defeated by the act of the party going abroad, and subjecting himself to a suit and recovery against him in another state; or by instituting proceedings, in order to avoid or arrest the course of the suit first duly commenced against him. But generally, a personal arrest *and holding to bail in a foreign country, cannot *125 be pleaded in abatement; and it is no obstacle to a new arrest and holding to bail for the same cause in the English courts, and they will not take judicial notice of an arrest in a foreign country, or in their own planta
• Lord Holt, in Brook v. Smith, 1 Salk. Rep. 280. Embree & Collins v. Hanna, 5 Johns. Rep. 101. Carrol v. M'Donogh, 10 Marten's Louis. Rep. 609. This is now the recognized doctrine in the supreme court of the United States. Wallace v. McConnell, 13 Peters, 136. The priority of suit will determine the right. See Irvine v. Lumbermen's Bank, 2 Watts of Serg. 190. Lowry v. The Same, ib. 210. But in West-Syndic v. McConnell, 5 Miller's Louis. Rep. 424, it was held, that the pendency of a suit by foreign attachment, for the same cause of action, in another state, could not be pleaded in abatement of the action instituted in Louisiana ; though it might tend to modify the relief, so as to stay execution until the party credits and accounts for the proceeds of the property seised abroad, or else dismisses the foreign attachment.
The court of chancery of New York will not restrain, by injunction, a defendant from prosecuting a foreign suit previously commenced. Mead v. Merrit, 2 Paige's Rep. 402; though this has been done in the English chancery under special circumstances. Bushby v. Munday, 5 Mad. Rep. 297. It has been done where the proceeding in a foreign court was instituted by the same party, as to the same matter. 1 Simon f. Stewart, 16.
b Parker, Ch. J., in Tappan v. Poor, 15 Mass. Rep. 433. S. P. in Embreo & Collins v. Hanna, 5 Johns. Rep. 103, 104.
tions;a and the same rule of law has been declared in this country.b
(4.) Of divorce a mensa et thoro.
The statute of New-Yorkc authorized the court of chancery to allow qualified divorces a mensa et thoro founded on the complaint of the wife, of cruel and inhuman treatment, or such conduct as renders it unsafe and improper for her to cohabit with her husband; or for wilful desertion of her, and refusal or neglect to provide for her. The court may decree a separation from bed and board forever, or for a limited time, in its discretion, and the decree may be revoked at any time by the same court by which it was pronounced, under such regulations and restrictions as the court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation. d
• Maule v. Murray, 7 Term Rep. 470. Imlay v. Ellefsen, 2 East, 453. Bayley v. Edwards, 3 Swanston's Rep. 703. Salmon v. Wootton, 9 Dana's Rep. 423. The court of appeals in Lower Canada, in the case of Russell v. Field, (1833,) followed the English rule, and held that the plea of a suit pending in Vermont, between the same parties, for the same cause of action, was no bar to the new suit in the Canadian court.
b Bowne v. Joy, 9 Johns. Rep. 221. Mitchell v. Bunch, 2 Paige's Rep. 606. Godfrey v. Hall, 4 Miller's Louis. Rep. 158. Peyroux v. Davis, 17 Louis. Rep. 479. But where there are two tribunals under the same gove ernment, of concurrent and complete jurisdiction, the jurisdiction of that tribunal which first takes cognizance, by process, of the subject matter of controversy, is conclusive. Smith v. McIver, 9 Wheaton, 532. The ship Robert Fulton, 1 Paine C. C. U. S. 620. Slyhoof v. Flitcraft, 1 Ashmead's Rep. 171. Whether a lis pendens in another state, between the same parties, for the same cause, was a good plea in abatement, was left as a doubtful question, in Casey v. Harrison, 2 Dev. N. C. Rep. 244. Ch. J. Gibson, in Ralph v. Brown, 3 Watts f Serg. 399, assumes that such a plea in such a case would be good. In the case of torts or joint contracts, a plea in abatement of another action pending for the same cause against a co-trespasser or joint contractor is bad. There may be several recoveries, but only one satisfaction. Henry v. Goldney, in the Exch. June, 1846. N. Y. Legal Observer, for August, 1846.
c N. Y. Revised Statutes, vol. ii. p. 146.
To entitle the court to sustain such a suit, (1.) the parties must be, inhabitants of the state; (2.) or the marriage must have taken place in the state, and the wife must be an actual resident at the time of exhibiting the complaint; (3.) or the parties must have been inhabitants of the state at least one year, and the wife an actual resident at the time of filing the bill.a
These qualified divorces are allowed by the laws of almost all countries, and it is assumed that they prevail generally in these United States, in cases of extreme cruelty, though they are unknown in some of them, as for instance in New-Hampshire, Connecticut, Ohio, Indiana, and South Carolina.b In England, they are allowed only propter sævitiam aut adulterium; and where there is a separation *for such a cause, if the parties come *126 together again, the same cause cannot be revived.c
In determining what is sævitia, by the ecclesiastical
· Ibid. 146, sec. 50.
o In Louisiana, the divorce a mensa leads to the divorce a vinculo, if the parties be not reconciled in iwo years. Savoie v. Ignogoso, 7 Louis. Rep. 281; and in Virginia in seven years; act of 1841. In Massachusetts, divorces from bed and board are allowed for cause of extreme cruelty in either party, and in favour of the wife when the husband shall utterly desert her, or grossly, or wantonly and cruelly refuse or neglect to provide (if able) suitable maintenance for her. Mass. Revised Statutes, 185. In Vermont, New-Jersey, Kentucky, Mississippi, Tennessee, Alabama, and Michigan, divorce a mensa et thoro may be granted for extreme cruelty, and in some of those states for wilful desertion for two years. Act of Michigan, April 4th, 1833. Lockridge v. Lockridge, 3 Dana's Ken. Rep. 28. Holmes v. Holmes, Walker's Miss. Rep. 474. Elmer's Digest, 140. Laws of Vermont, p. 364. 4 Aikin's Ala. Dig. 2d edit. 131. Statute Laws of Tennessee, 1836, p. 261. In the Dutch law and in Scotland, wil. ful abandonment of either party without due causes for a long time, is ground for a decree of divorce. Van Leeuwen's Roman Dutch Law, 85. Ersk. Inst. 6. 1. tit. 6, sec. 14. Divorces from bed and board were unknown to the ancient church, and were first established by the decrees of the council of Trent.
c Lord Eldon, 11 Vesey, 532. Cohabitation is not always a condona. tion for cruelty on the part of the husband under gross circumstances. Snow v. Snow, consistory court, London, Hil. 1842.