1. By a competent tribunal; and,

2. Between parties either duly appearing, or cited, and legally represented, or defaulting.

2

The record is nevertheless open to contradiction in respect to any jurisdictional fact alleged therein.

'It seems impossible to give this rule its proper effect, if it is applied to foreign judgments only. If an English surety should sue his American principal in Scotland for money obtained from the surety under the compulsory process of a suit in Scotland without, due appearance or citation, the judgment in that suit ought not to be evidence against the principal, even in Scotland.

2 By the declaration of September 11, 1860, between France and Sardinia, for the reciprocal execution of decrees and judgments of superior courts, (8 De Clercq, 118,) it was provided that a court in considering a foreign judgment, can question it only in the three following points: First, whether the decision was that of a competent tribunal; second, whether it was rendered between parties duly cited and legally represented or defaulting; third, whether the rules of public law or the interests of public order in the country where the execution of the judg ment is demanded are opposed to the enforcement of the decision of the foreign tribunal.

The enactment of a provision creating a presumption in favor of the competency of a superior tribunal does not seem desirable, particularly as it is easier to prove the competency of a court than to disprove it. See Laws of New York, 1865.

By the rule which prevails among the American States, however, a judgment of a superior court of another State is presumed to have been rendered in a case where the court had jurisdiction unless the want of jurisdiction affirmatively appears by the record or by other proof. Bissell v. Wheelock, 65 Massachusetts Rep., 277; Buffman v. Stimpson, 87 Id., 591; Dunbar v. Hallowell, 34 Illinois Rep., 138; Sanford v. Sanford, 28 Connecticut Rep., 6; Gordon v. Robinson, 15 Maine Rep., 167; Rankin v. Goddard, 54 Id., 33. This appears also to be the rule applied by the English courts to foreign judgments. Barber v. Lamb, 8 Common Bench Rep., 95, and cases there cited.

Some earlier authorities tend to the conclusion that a foreign judg ment can not be disputed where the court by which the judgment was rendered has jurisdiction of the subject of the suit and of the parties.

These rules are only applied by the English courts, where it appears that the judgment was on the merits, and that by the law of the place where it was recovered, the decision was final. Frayes v. Worms, 10 Common Bench Rep., (N. S.,) 153.

Impeachment of foreign judgment.

668. A foreign judgment may be impeached for fraud or collusion.

The authorities restrict the rule to fraud or collusion which could not

have been proved in the action. But it is suggested that this qualification should be omitted.

Foreign judgment, forbidden to be enforced.

669. No nation is bound to give effect to a foreign judgment, if the enforcement thereof is forbidden by an express' provision of its own law.

See Article 666.

Consent to execution of foreign judgment.

670. A foreign judgment cannot be executed within the territorial jurisdiction of a nation, without a judicial inquiry as to its existence, local validity, and extent.

Judgment in rem.

671. A judgment against a specific thing, whether it expressly determines the title to the thing or merely directs specifically its sale,' is conclusive upon all the world as to the title under the judgment or under the sale had pursuant to it.

'Judgments directing sale for satisfaction of a debt, were held to be in the nature of judgments in rem, and governed by the rule above stated in Imrie v. Castrique, 8 Common Bench Rep., (N. S.,) 405.

Judgment as to status of a person.

672. A judgment in respect to the personal, political or legal condition or relation of a particular person is conclusive upon all persons.

Judgments on pedigree have been held within the rule that the record of a judgment in rem is evidence of the facts adjudicated against all the world. Ennis v. Smith, 1852, 14 Howard's U. S. Supreme Ct. Rep., 400.

Effect of foreign judgments of divorce, insolvency and succession.

673. The effect of a judgment, rendered in a case of divorce, or of the administration of the estate of an insolvent or decedent, is subject to the provisions of the next three Chapters.

TITLE XXXI.

RULES APPLICABLE TO PARTICULAR SUBJECTS.

CHAPTER L. Divorce.

LI. Bankruptcy and insolvency.

LII. Estates of decedents.
LIII. Admiralty.

CHAPTER L.

DIVORCE.

ARTICLE 674. Power of divorce.

675. Jurisdiction unaffected by change of domicil.
676. The domicil required for jurisdiction.

677. Judgment of divorce for defendant.

678. Judgment of divorce everywhere valid.
679. Sufficiency of cause of divorce.

680. Evasion of law.

681. Obligations.

682. Disabilities.

683. "Divorce" defined.

The following Articles on the vexed subject of divorce have been framed with a general regard to the principle suggested by Westlake, (Private Intern. L.. p. 342,)" that divorces should not be granted when they will not be internationally respected, nor refused when they are demanded by the policy and morals of the forum."

As the law now stands, hardly any state observes the same rule in re cognizing the validity of divorces, granted by other states, which it asserts in the exercise of its own jurisdiction to grant divorces. The decided tendency of the English and American decisions, however, is toward the simple and uniform principle, that the jurisdiction to grant a divorce should depend upon the domicil of the parties, or of one of them, at the time of suit.

The contradictory or conflicting rules which various states have adopted as defining their own jurisdiction in this respect may be contrasted as follows:

1. That a State may grant divorces to its own citizens or subjects. 2. That a State where a marriage is contracted may dissolve the marriage.

3. That the State where the husband was domiciled at the time of his marriage, may dissolve the marriage.

4. That a State within which an offense against the marriage tie is committed may dissolve the marriage.

5. That a State in which the parties, (that is to say the husband,) had a domicil at the time of the offense, wherever the offense may have been committed, has jurisdiction.

6. That the State where the injured party is domiciled at the time of the offense, has jurisdiction.

7. That the State in which the parties, (that is to say the husband,) has domicil at the time of suit, has jurisdiction.

This rule is, by some authorities, qualified, by conceding that the husband can not, after the offense, change his domicil so as to prevent the wife from proceeding in the previous domicil.

8. That the State in which a plaintiff is domiciled has jurisdiction without respect to the domicil of the defendant.

9. That the State in which either party is domiciled at the time of suit has jurisdiction,

In many States, particularly those which refer to the domicil at the time of suit, an actual domicil for all intents and purposes is not required, but a residence for a longer or shorter period prescribed by posi tive rule.

The first rule is asserted on the principles that the status of persons must be determined by the domicil of origin, the land of their birth, and that subjects, wherever they are, must be regarded, at least by the courts of their own country, as retaining their original character.

The third rule is asserted by some authorities as the exclusive ground of jurisdiction, upon the principle that the law of the place should be regarded as a part of the contract.

The fifth rule is asserted as the exclusive rule of jurisdiction, on the ground that the offense is against the law which governs the status of the parties.

The seventh, upon the ground that it is for each State to regulate the status of persons domiciled within it; and that, as the law which may be in force at the time of suit ought to govern, so the law of the place, where the parties are subject at the time of suit, ought to govern.

The other rules asserted are embodied, either singly or in combination, in the legislation of various States, but have not been the subject of so much discussion in an international point of view.

The provisions of the statutes of a few of the American States are as follows:

The rule in Massachusetts in reference to the granting of judicial de clarations of the nullity of marriages, void under the statute, is as fol· lows: Upon proof of the fraud or other cause of nullity, the marriage is to be declared void by a sentence of divorce or nullity, notwithstanding that such marriage was solemnized out of the State, if the libellant had

his domicil here when the marriage was so solemnized and when the libel was filed. Gen. Stat. of Massachusetts, of 1860, p. 532, § 4.

In reference to divorces, strictly so called, the rule is as follows: When the libellan: has resided in the State five consecutive years next preceding the time of filing the libel, a divorce may be decreed for any cause allowed by law, whether it occurred in the commonwealth or else. where; unless it appear, that the libellant has removed into this State for the purpose of procuring a divorce. Id., § 11.

The law of Connecticut is as follows: "6 If the petitioner shall have removed from any other State or nation to the State, or shall not have statedly resided in the State three years next before the date of the petition, the petitioner shall not take anything by the petition, unless the cause of divorce shall have arisen subsequently to the removal into this State, or unless the adverse party shall have statedly resided in this State three years next before the date of the petition, and actual service of the petition shall have been made upon such party, in which cases the petitioner may maintain the petition, although he or she shall not have removed into this State, nor resided therein, three years next before the date of the petition." Gen. Stat. of Connecticut, of 1866, p. 306, § 35.

In Pennsylvania, the statute which formerly allowed divorces to be granted only on the application of a citizen of the State who has resided for a year within it has been modified to allow divorces to be granted toa plaintiff who either is a citizen or has resided in the State for one year previous to filing the petition. Purdon's Digest, by Brightly, 346–7.

The law of the place of the actual bona fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local laws without reference to the law of the place of the original marriage. This is the rule laid down, as that established in Pennsylvania, in Colvin v. Reed, 55 Pennsylvania State Rep., 375.

But the courts held that the power is only to be exercised where the parties at the time of the injury were actually domiciled within the State. Dorsey v. Dorsey, 7 Watts (Pennsylvania) Rep., 349. This rule has been extended in the case of desertions, to those taking place in other States of the Union, but not to those taking place abroad. Bishop v. Bishop, 30 Pennsylvania State Rep., 412.

In New York, in cases of adultery, &c., the courts have jurisdiction: 1. Where both husband and wife were inhabitants of this State, at the time of the commission of the offense;

2. Where the marriage has been solemnized, or has taken place in this State, and the injured party, at the time of the commission of the offense, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this State;

3. Where the offense has been committed in this State, and the injured party, at the time of exhibiting the bill of complaint, is an actual inhabitant of this State. 2 New York Revised Statutes, p. 144, § 38.

The statute of Ohio requires the petitioner to be a resident of the State at least one year before filing the petition, and allows a divorce whether the marriage took place or the cause of divorce occurred within the State