Hilton v. GuyotAnnotate this Case
159 U.S. 113 (1895)
U.S. Supreme Court
Hilton v. Guyot, 159 U.S. 113 (1895)
Hilton v. Guyot
Nos. 130, 34
Argued April 10, 1894
Decided June 3, 1895
159 U.S. 113
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK
A citizen and resident of this country who has his principal place of business here but has an agent in a foreign country and is accustomed to purchase and store large quantities of goods there, and, in a suit brought against him by a citizen and in a court of that country, appears and defends with the sole object of preventing his property within the jurisdiction, but not in the custody of that court, from being taken in satisfaction of any judgment that may be recovered against him there cannot, in an action brought against him in this country upon such a judgment, impeach it for want of jurisdiction of his person.
The admission at the trial in a court of a foreign country, according to its law and practice, of testimony not under oath and without opportunity of cross-examination, and of documents with which the defendant had no connection and which by our law would not be admissible against him, is not of itself a sufficient ground for impeaching the judgment of that court in an action brought upon it in this country.
When an action is brought in a court of this country by a citizen of a foreign country against one of our own citizens to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged, and the judgment is conclusive upon the merits tried in the foreign court unless some special ground is shown for impeaching it, as by showing that it was affected by fraud or prejudice or that, by the principles of international law and by the comity of our own country, it is not entitled to full credit and credit.
A judgment for a sum of money, rendered by a court of a foreign country, having jurisdiction of the cause and of the parties, in a suit brought by
one of its citizens against one of ours, is prima facie evidence only, and not conclusive of the merits of the claim in an action brought here upon the judgment if by the law of the foreign country, as in France, judgments of our own courts are not recognized as conclusive.
The first of these two cases was an action at law, brought December 18, 1885, in the Circuit Court of the United States for the Southern District of New York, by Gustave Bertin Guyot, as official liquidator of the firm of Charles Fortin & Co., and by the surviving members of that firm, all aliens and citizens of the Republic of France, against Henry Hilton and William Libbey, citizens of the United States and of the State of New York and trading as copartners in the cities of New York and Paris and elsewhere under the firm name of A. T. Stewart & Co. The action was upon a judgment recovered in a French court at Paris, in the Republic of France, by the firm of Charles Fortin & Co., all of whose members were French citizens, against Hilton & Libbey, trading as copartners, as aforesaid, and citizens of the United States and of the State of New York.
The complaint alleged that in 1886 and since, during the time of all the transactions included in the judgment sued on, Hilton and Libbey, as successors to Alexander T. Stewart and Libbey, under the firm name of A. T. Stewart & Co., carried on a general business as merchants in the Cities of New York and Paris and elsewhere, and maintained a regular store and place of business at Paris; that during the same time, Charles Fortin & Co. carried on the manufacture and sale of gloves at Paris, and the two firms had there large dealings in that business, and controversies arose in the adjustment of accounts between them.
The complaint further alleged that between March 1, 1879, and December 1, 1882, five suits were brought by Fortin & Co. against Stewart & Co. for sums alleged to be due, and three suits by Stewart & Co. against Fortin & Co., in the Tribunal of Commerce of the Department of the Seine, a judicial tribunal or court organized and existing under the laws of France, sitting at Paris and having jurisdiction of suits and controversies between merchants or traders growing
out of commercial dealings between them; that Stewart & Co. appeared by their authorized attorneys in all those suits, and that, after full hearing before an arbitrator appointed by that court and before the court itself, and after all the suits had been consolidated by the court, final judgment was rendered on January 20, 1883, that Fortin & Co. recover of Stewart & Co. various sums, arising out of the dealings between them, amounting to 660,847 francs, with interest, and dismissed part of Fortin & Co.'s claim.
The complaint further alleged that appeals were taken by both parties from that judgment to the Court of Appeal of Paris, Third Section, an appellate court of record organized and existing under the laws of the Republic of France and having jurisdiction of appeals from the final judgments of the Tribunal of Commerce of the Department of the Seine, where the amount in dispute exceeded the sum of 1,500 francs, and that the said Court of Appeal, by a final judgment rendered March 19, 1884, and remaining of record in the office of its clerk at Paris, after hearing the several parties by their counsel, and upon full consideration of the merits, dismissed the appeal of the defendants, confirmed the judgment of the lower court in favor of the plaintiffs, and ordered, upon the plaintiffs' appeal, that they recover the additional sum of 152,528 francs, with 182,849 francs for interest on all the claims allowed, and 12,559 francs for costs and expenses.
The complaint further alleged that Guyot had been duly appointed by the Tribunal of Commerce of the Department of the Seine official liquidator of the firm of Forth & Co., with full powers, according to law and commercial usage, for the verification and realization of its property, both real and personal, and to collect and cause to be executed the judgments aforesaid.
The complaint further alleged that the judgment of the Court of Appeals of Paris, and the judgment of the Tribunal of Commerce, as modified by the judgment of the appellate court, still remain in full force and effect;
"that the said courts respectively had jurisdiction of the subject matter of the controversies so submitted to them, and of the parties, the
said defendants having intervened, by their attorneys and counsel, and applied for affirmative relief in both courts; that the plaintiffs have hitherto been unable to collect the said judgments or any part thereof, by reason of the absence of the said defendants, they having given up their business in Paris prior to the recovery of the said judgment on appeal, and having left no property within the jurisdiction of the Republic of France out of which the said judgments might be made;"
and that there are still justly due and owing from the defendants to the plaintiffs upon those said judgments certain sums, specified in the complaint, and amounting in all to 1,008,783 francs in the currency of the Republic of France, equivalent to $195,122.47.
The defendants, in their answer, set forth in detail the original contracts and transactions in France between the parties and the subsequent dealings between them modifying those contracts, and alleged that the plaintiffs had no just claim against the defendants, but that, on the contrary, the defendants, upon a just settlement of the accounts, were entitled to recover large sums from the plaintiffs.
The answer admitted the proceedings and judgments in the French courts and that the defendants gave up their business in France before the judgment on appeal, and had no property within the jurisdiction of France out of which that judgment could be collected.
The answer further alleged that the Tribunal of Commerce of the Department of the Seine was a tribunal whose judges were merchants, ship captains, stockbrokers, and persons engaged in commercial pursuits, and of which Charles Fortin had been a member until shortly before the commencement of the litigation.
The answer further alleged that in the original suits brought against the defendants by Fortin & Co., the citations were left at their storehouse in Paris; that they were then residents and citizens of the State of New York, and neither of them at that time, or within four years before, had been within, or resident or domiciled within, the jurisdiction of that tribunal or owed any allegiance to France, but that
they were the owners of property situated in that country which would by the law of France have been liable to seizure if they did not appear in that tribunal, and that they unwillingly, and solely for the purpose of protecting that property, authorized and caused an agent to appear for them in those proceedings, and that the suits brought by them against Fortin & Co. were brought for the same purpose, and in order to make a proper defense, and to establish counterclaims arising out of the transactions between the parties, and to compel the production and inspection of Fortin & Co.'s books, and that they sought no other affirmative relief in that tribunal.
The answer further alleged that, pending that litigation, the defendants discovered gross frauds in the accounts of Fourtin & Co., that the arbitrator and the tribunal declined to compel Fortin & Co. to produce their books and papers for inspection, and that, if they had been produced, the judgment would not have been obtained against the defendants.
The answer further alleged that without any fault or negligence on the part of the defendants, there was not a full and fair trial of the controversies before the arbitrator, in that no witness was sworn or affirmed; in that Charles Fortin was permitted to make, and did make, statements not under oath containing many falsehoods; in that the privilege of cross-examination of Fortin and other persons who made statements before the arbitrator was denied to the defendants, and in that extracts from printed newspapers, the knowledge of which was not brought home to the defendants, and letters and other communications in writing between Fortin & Co. and third persons, to which the defendants were neither privy nor party, were received by the arbitrator; that without such improper evidence, the judgment would not have been obtained, and that the arbitrator was deceived and misled by the false and fraudulent accounts introduced by Fortin & Co. and by the hearsay testimony given, without the solemnity of an oath and without cross-examination, and by the fraudulent suppression of the books and papers.
The answer further alleged that Fortin & Co. made up their statements and accounts falsely and fraudulently, and with
intent to deceive the defendants and the arbitrator and the said courts of France, and those courts were deceived and misled thereby; that owing to the fraudulent suppression of the books and papers of Fortin & Co. upon the trial and the false statements of Fortin regarding matters involved in the controversy, the arbitrator and the courts of France
"were deceived and misled in regard to the merits of the controversies pending before them, and wrongfully decided against said Stewart & Co., as hereinbefore stated; that said judgment, hereinbefore mentioned, is fraudulent, and based upon false and fraudulent accounts and statements, and is erroneous in fact and in law, and is void; that the trial hereinbefore mentioned was not conducted according to the usages and practice of the common law, and the allegations and proofs given by said Fortin & Co., upon which said judgment is founded, would not be competent or admissible in any court or tribunal of the United States, in any suit between the same parties involving the same subject matter, and it is contrary to natural justice and public policy that the said judgment should be enforced against a citizen of the United States, and that, if there had been a full and fair trial upon the merits of the controversies so pending before said tribunals, no judgment would have been obtained against said Stewart & Co."
"Defendants, further answering, allege that it is contrary to natural justice that the judgment hereinbefore mentioned should be enforced without an examination of the merits thereof; that by the laws of the Republic of France, to-wit, article 181  of the Royal Ordinance of June 15, 1629, it is provided namely:"
"Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties, for any cause whatever shall give rise to no lien or execution in our Kingdom. Thus, the contracts shall stand for simple promises, and, notwithstanding such judgments, our subjects against whom they have been rendered may contest their rights anew before our own judges."
"And it is further provided by the laws of France, by article 546 of the Code de Procedure Civile, as follows:"
" Judgments rendered by foreign tribunals shall be capable of execution
in France only in the manner and in the cases set forth by articles 2123 and 2128 of the Civil Code."
"And it is further provided by the laws of France, by article 2128  of the Code de Procedure Civile [Civil Code]:"
" A lien cannot, in like manner, arise from judgments rendered in any foreign country, save only as they have been declared in force by a French tribunal, without prejudice, however, to provisions to the contrary, contained in public laws and treaties."
"[And by article 2128 of that Code: 'Contracts entered into in a foreign country cannot give a lien upon property in France if there are no provisions contrary to this principle in public laws or in treaties.']"
"That the construction given to said statutes by the judicial tribunals of France is such that no comity is displayed towards the judgments of tribunals of foreign countries against the citizens of France, when sued upon in said courts of France, and the merits of the controversies upon which the said judgments are based are examined anew, unless a treaty to the contrary effect exists between the said Republic of France and the country in which such judgment is obtained. That no treaty exists between the said Republic of France and the United States, by the terms or effect of which the judgments of either country are prevented from being examined anew upon the merits, when sued upon in the courts of the country other than that in which it is obtained. That the tribunals of the Republic of France give no force and effect, within the jurisdiction of the said country, to the duly rendered judgments of courts of competent jurisdiction of the United States against citizens of France, after proper personal service of the process of said courts is made thereon in this country."
The answer further set up, by way of counterclaim and in detail, various matters arising out of the dealings between the parties, and alleged that none of the plaintiffs had since 1881 been residents of the State of New York, or within the jurisdiction of that state, but the defendants were, and always had been, residents of that state.
The answer concluded by demanding that the plaintiffs'
complaint be dismissed, and that the defendants have judgment against them upon the counterclaims, amounting to $102,942.91.
The plaintiffs filed a replication to so much of the answer as made counterclaims, denying its allegations and setting up in bar thereof the judgment sued on.
The defendants, on June 22, 1888, filed a bill in equity against the plaintiffs setting forth the same matters as in their answer to the action at law and praying for a discovery and for an injunction against the prosecution of the action. To that bill a plea was filed setting up the French judgments, and upon a hearing, the bill was dismissed. 42 F. 249. From the decree dismissing the bill an appeal was taken, which is the second case now before this Court.
The action at law afterwards came on for trial by a jury, and the plaintiffs put in the records of the proceedings and judgments in the French courts, and evidence that the jurisdiction of those courts was as alleged in the complaint and that the practice followed and the method of examining the witnesses were according to the French law, and also proved the title of Guyot as liquidator.
It was admitted by both parties that for several years prior to 1876, the firm of Alexander T. Stewart & Co., composed of Stewart and Libbey, conducted their business as merchants in the City of New York, with branches in other cities of America and Europe; that both partners were citizens and residents of the City and State of New York during the entire period mentioned in the complaint, and that in April, 1876, Stewart died, and Hilton and Libbey formed a partnership to continue the business under the same firm name, and became the owners of all the property and rights of the old firm.
The defendants made numerous offers of evidence in support of all the specific allegations of fact in their answer, including the allegations as to the law and comity of France. The plaintiffs, in their brief filed in this Court, admitted that most of these offers
"were offers to prove matters in support of the defenses and counterclaims set up by the defendants in the cases tried before the French courts, and which, or most
of which, would have been relevant and competent if the plaintiffs in error are not concluded by the result of those litigations, and have now the right to try those issues, either on the ground that the French judgments are only prima facie evidence of the correctness of those judgments, or on the ground that the case is within the exception of a judgment obtained by fraud."
The defendants, in order to show that they should not be concluded by having appeared and litigated in the suits brought against them by the plaintiffs in the French courts, offered to prove that they were residents and citizens of the State of New York, and neither of them had been, within four years prior to the commencement of those suits, domiciled or resident within the jurisdiction of those courts; that they had a purchasing agent and a storehouse in Paris, but only as a means or facility to aid in the transaction of their principal business, which was in New York, and they were never otherwise engaged in business in France; that neither of them owed allegiance to France, but they were the owners of property there which would, according to the laws of France, have been liable to seizure if they had not appeared to answer in those suits; that they unwillingly, and solely for the purpose of protecting their property within the jurisdiction of the French tribunal, authorized an agent to appear, and he did appear in the proceedings before it, and that their motion to compel an inspection of the plaintiffs' books, as well as the suits brought by the defendants in France, were necessary by way of defense or counterclaim to the suits there brought by the plaintiffs against them.
Among the matters which the defendants alleged and offered to prove in order to show that the French judgments were procured by fraud were that Fortin & Co., with intent to deceive and defraud the defendants, and the arbitrator and the courts of France, entered in their books, and presented to the defendants, and to the French courts, accounts bearing upon the transactions in controversy which were false and fraudulent, and contained excessive and fraudulent charges against the defendants in various particulars, specified; that the
defendants made due application to the Tribunal of Commerce to compel Fortin & Co. to allow their account books and letter books to be inspected by the defendants, and the application was opposed by Fortin & Co., and denied by the tribunal; that the discovery and inspection of those books were necessary to determine the truth of the controversies between the parties; that before the Tribunal of Commerce, Charles Fortin was permitted to and did give in evidence statements not under oath relating to the merits of the controversies there pending, and falsely represented that a certain written contract made in 1873 between Stewart & Co. and Fortin & Co. concerning their dealings was not intended by the parties to be operative according to its terms, and in support of that false representation made statements as to admissions by Stewart in a private conversation with him, and that the defendants could not deny those statements, because Stewart was dead, and they were not protected from the effect of Fortin's statements by the privilege of cross-examining him under oath, and that the French judgments were based upon false and fraudulent accounts presented and statements made by Fortin & Co. before the Tribunal of Commerce during the trial before it.
The records of the judgments of the French courts, put in evidence by the plaintiffs, showed that all the matters now relied on to show fraud were contested in and considered by those courts.
The plaintiffs objected to all the evidence offered by the defendants on the grounds that the matters offered to be proved were irrelevant, immaterial, and incompetent; that in respect to them the defendants were concluded by the judgment sued on and given in evidence, and that none of those matters, if proved, would be a defense to this action upon that judgment.
The court declined to admit any of the evidence so offered by the defendants, and directed a verdict for the plaintiffs in the sum of $277,775.44, being the amount of the French judgment and interest. The defendants, having duly excepted to the rulings and direction of the court, sued out a writ of error.
The writ of error in the action at law and the appeal in the suit in equity were argued together in this Court in January, 1894, and, by direction of the Court, were reargued in April, 1894, before a full Bench.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the Court.
These two cases -- the one at law and the other in equity -- of Hilton v. Guyot, and the case of Ritchie v. McMullen, which has been under advisement at the same time, present important questions relating to the force and effect of foreign judgments not hitherto adjudicated by this Court, which have been argued
with great learning and ability and which require for their satisfactory determination a full consideration of the authorities. To avoid confusion in indicating the parties, it will be convenient first to take the case at law of Hilton v. Guyot.
International law, in its widest and most comprehensive sense -- including not only questions of right between nations, governed by what has been appropriately called the "law of nations," but also questions arising under what is usually called "private international law," or the "conflict of laws," and concerning the rights of persons within the territory and dominion of one nation by reason of acts, private or public, done within the dominions of another nation -- is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination.
The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Fremont v. United States, 17 How. 542, 58 U. S. 557; The Scotia, 14 Wall. 170, 81 U. S. 188; Respublica v. De Longchamps, 1 Dall. 111, 1 U. S. 116; Moultrie v. Hunt, 23 N.Y. 394, 396.
No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree shall be allowed to operate within the dominion of another nation depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested.
"Comity," in the legal sense, is neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons was are under the protection of its laws.
MR. JUSTICE Story, in his Commentaries on the Conflict of Laws, treating of the question in what department of the government of any state, in the absence of any clear declaration of the sovereign will, resides the authority to determine how far the laws of a foreign state shall have effect, and observing that this differs in different states according to the organization of the departments of the government of each, says:
"In England and America, the courts of justice have hitherto exercised the same authority in the most ample manner, and the legislatures have in no instance (it is believed) in either country interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times as they have arisen, and so far as the practice of nations, or the jus gentium privatum, has been supposed to furnish any general principle, it has been followed out."
Story's Conflict of Laws §§ 23, 24.
Afterwards, speaking of the difficulty of applying the positive rules laid down by the Continental jurists, he says that "there is indeed great truth" in these remarks of Mr. Justice Porter, speaking for the Supreme Court of Louisiana:
"They have attempted to go too far to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten that they wrote on a question which touched the comity of nations, 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 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 stranger."
Story's Conflict of Laws § 28; Saul v. His Creditors (1827), 5 Martin (N.S.) 569, 596.
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 interests. 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, be 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's Conflict of Laws §§ 33-38.
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 countries, the laws of the one will, by the comity of nations, be recognized and executed in another where the rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary 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 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 ascertained and guided."
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 within its territory is given by acts passed by 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 commitate, ob reciprocam utilitatem."
Wheaton's International Law (8th ed.) §§ 78, 79.
"No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another state, and if execution be sought 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 judgment, and to give effect to it or not, as may be found just and equitable. The general comity, utility, and convenience of nations have, however, established a usage among most civilized 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."
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 jurisdiction 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.
A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the court, is treated as valid everywhere. As said by Chief Justice Marshall:
"The sentence of a competent court proceeding in rem is conclusive with respect to the thing itself, and operates as an absolute change of the property. By such sentence, the right of the former owner is lost and a complete title given to the person who claims under the decree. No court of coordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no coordinate tribunal is capable of making the inquiry."
Williams v. Armroyd, 7 Cranch 423, 11 U. S. 432. The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law. Croudson v. Leonard, 4 Cranch 434; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns.Cas. 16. But the same rule applies to judgments in rem under municipal law. Hudson v. Guestier, 4 Cranch 293; Ennis v. Smith, 14 How. 400, 45 U. S. 430; Wisconsin v. Pelican Ins. Co.,127 U. S. 265, 127 U. S. 291; Scott v. McNeal,154 U. S. 34, 154 U. S. 46; Castrique v. Imrie, L.R. 4 H.L. 414; Monroe v. Douglas, 4 Sandf.Ch. 126.
A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country unless contrary to the policy of its own law. Cottington's Case, 2 Swanston 326; Roach v. Garvan, 1 Ves.Sen. 157; Harvey v. Farnie, 8 App.Cas. 43; Cheely v. Clayton,110 U. S. 701. It was of a foreign sentence of divorce that Lord Chancellor Nottingham, in the House of Lords, in 1678, 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 countries till they be reversed by the law,
and according to the form, of those countries wherein 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 another 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 attached. Story on Conflict of 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 whereof is not examinable here."
Gold v. Canham (1679), 2 Swanst. 325, 1 Cas. in Ch. 311. See also Tarleton v. Tarleton, 4 M. & 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 residents thereof. Story on Conflict of Laws §§ 330-341; May v. Breed, 7 Cush. 15. Such was the case cited at the bar of Burroughs or Burrows v. Jamineau or Jemino, Mosely 1, 2 Strange 733, 2 Eq.Cas.Ab. p. 525, pl. 7, 12 Vin.Ab. p. 87, pl. 9 Sel.Cas. in Ch. 69; 1 Dickens 48.
In that case, bills of exchange drawn in London were negotiated, endorsed, and accepted at Leghorn, in Italy, by the law of which an acceptance became void if the drawer failed 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 endorsees to be discharged of his acceptances, paid the money into court, and obtained a sentence there by which the acceptances were vacated as against those endorsees, and all the endorsers and negotiators of the bills, and the money deposited was returned to him. Being afterwards sued at law in England by subsequent holders of the bills, he applied to the Court of Chancery, and obtained a perpetual injunction. Lord Chancellor King, as reported by Strange,
"was clearly of opinion that this cause was to be determined according to the local laws of the place where the bill was negotiated, and, the plaintiff's acceptance of the 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 Mosely, that though
"the last endorsees 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 B. & A. 757; Castrique v. Imrie, L.R. 4 H.L. 414, 435; 2 Smith's 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.temp.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 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 governor sends his letters missive into England, omnes magistratus infra regnum Angliae rogans, to make execution of the said judgment, the judge of the admiralty may execute this judgment by imprisonment 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 a habeas corpus and remanded."
1 Rol.Ab. p. 530, pl. 12; 6 Vin.Ab. p. 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 sentence, and in later times the mode of enforcing a foreign decree in admiralty is by a new libel. See The City of Mecca, 5 P.D. 28, 6 P.D. 106.
The extraterritorial effect of judgments in personam at law or in equity may differ according to the parties to the cause. A judgment of that kind between two citizens or residents of the country, and thereby subject to the jurisdiction in which it is rendered, may be held conclusive as between them everywhere. So if a foreigner invokes the jurisdiction by bringing an action against a citizen, both may be held bound by a judgment in favor of either, and if a citizen sues a foreigner and judgment is rendered in favor of the latter, both may be held equally bound. Ricardo v. Garcias, 12 Cl. & Fin. 368; The Griefswald, Swabey 430, 435; Barber v. Lamb, 8 C.B. (N.S.) 95; Lea v. Deakin, 11 Bissell 23.
The effect to which a judgment, purely executory, rendered
in favor of a citizen or resident of the country, in a suit there brought by him against a foreigner, may be entitled in an action thereon against the latter in his own country, as is the case now before us, presents a more difficult question, upon which there has been some diversity of opinion.
Early in the last century, it was settled in England that a foreign judgment on a debt was considered not like a judgment of a domestic court of record, as a record or a specialty, a lawful consideration for which was conclusively presumed, but as a simple contract only.
This clearly appears in Dupleix v. De Roven (1705), where one of two merchants in France recovered a judgment there against the other for a sum of money, which not being paid, he brought a suit in chancery in England for a discovery of assets and satisfaction of the debt, and the defendant pleaded the statute of limitations of six years, and prevailed, Lord Keeper Cowper saying:
"Although the plaintiff obtained a judgment or sentence in France, yet here the debt must be considered as a debt by simple contract. The plaintiff can maintain no action here but an indebitatus assumpsit or an insimul computassent, so that the statute of limitations is pleadable in this case."
2 Vernon 540.
Several opinions of Lord Hardwicke define and illustrate the effect of foreign judgments when sued on or pleaded in England.
In Otway v. Ramsay (1736), in the King's Bench, Lord Hardwicke treated it as worthy of consideration "what credit is to be given by one court to the courts of another nation, proceeding both by the same rules of law," and said: "It is very desirable in such case that the judgment given in one kingdom should be considered as res judicata in another." But it was held that debt would not lie in Ireland upon an English judgment, because "Ireland must be considered as a provincial kingdom, part of the dominions of the crown of England, but no part of the realm," and an action of debt on a judgment was local. 4 B. & C. 414-416, note; s.c., 14 Vin.Ab. 569, pl.;, 2 Stra. 1090.
A decision of Lord Hardwicke as Chancellor was mentioned
in Walker v. Witter (1778), 1 Doug. 1, 6, by Lord Mansfield, who said:
"He recollected a case of a decree on the chancery side in one of the courts of great sessions in Wales, from which there was an appeal to the House of Lords, and the decree affirmed there. Afterwards, a bill was filed in the Court of Chancery, on the foundation of the decree so affirmed, and Lord Hardwicke thought himself entitled to examine into the justice of the decision of the House of Lords, because the original decree was in the court of Wales, whose decisions were clearly liable to be examined."
And in Galbraith v. Neville (1789), 1 Doug. 6, note, Mr. Justice Buller said:
"I have often heard Lord Mansfield repeat what was said by Lord Hardwicke in the case alluded to from Wales, and the ground of his lordship's opinion was this: when you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it if it appears that you are in the wrong, and it was on that account that he said he would examine into the propriety of the decree."
The case before Lord Hardwicke mentioned by Lord Mansfield would appear (notwithstanding the doubt of its authenticity expressed by Lord Kenyon in Galbraith v. Neville) to have been a suit to recover a legacy, briefly reported, with references to Lord Hardwicke's note book, and to the original record, as Morgan v. Morgan (1737-1738), West.Ch. 181, 597; s.c., 1 Atk. 53, 408.
In Gage v. Bulkeley (1744), briefly reported in 3 Atk. 215, cited by the plaintiffs, a plea of a foreign sentence in a commissary court in France was overruled by Lord Hardwicke, saying: "It is the most proper case to stand for an answer, with liberty to except, that I ever met with." His reasons are fully stated in two other reports of the case. According to one of them, at the opening of the argument, he said:
"Can a sentence or judgment pronounced by a foreign jurisdiction be pleaded in this Kingdom to a demand for the same thing in any court of justice here? I always thought it could not, because every sentence, having its authority from the sovereign in whose dominions it is given, cannot bind the jurisdiction of foreign courts, who own not the same authority,
and have a different sovereign, and are only bound by judicial sentence given under the same sovereign power by which they themselves act. . . . But though a foreign sentence cannot be used by way of plea in the courts here, yet it may be taken advantage of in the way of evidence. . . . You cannot in this Kingdom maintain debt upon judgment obtained for money in a foreign jurisdiction, but you may on assumpsit in nature of debt, upon a simple contract, and give the judgment in evidence, and have a verdict, so that the distinction seems to be, where such foreign sentence is used as a plea to bind the courts here as a judgment, and when it is made use of in evidence as binding the justice of the case only."
And afterwards, in giving his decision, he said:
"The first question is whether the subject matter of the plea is good. The second is whether it is well pleaded. The first question depends upon this: whether the sentence or judgment of a foreign court can be used by way of plea in a court of justice in England, and no authority, either at law or in equity, has been produced to show that it may be pleaded, and therefore I shall be very cautious how I establish such a precedent. . . . It is true such sentence is an evidence which may affect the right of this demand when the cause comes to be heard, but 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 temp. Hardw. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves.Sen. (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 having proper jurisdiction, and it is true that, if so, it is conclusive, whether in a 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
parties, of which it is impossible to judge without looking further 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 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.Sen. 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.
These decisions of Lord Hardwicke demonstrate that, in his opinion, whenever the question was of giving effect to a foreign judgment for money in a suit in England between the parties, it did not have the weight of a domestic 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 presiding spirit, acting in concert with or for the Lord Chancellor in disposing of the Scotch appeals)
"ordered and declared that the judgment 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 of Session. 2 Paton ix, 253; s.c., 6 Morison Dict.Dec. 4542; 1 Doug. 5, note.
Accordingly, in Crawford v. Witten (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." Loft, 154; s.c., nom. Crawford v. Whittal, 1 Doug. 4, note.
In Walker v. Witter (1778), an action of debt was brought in England upon a judgment recovered in Jamacia. 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 court of record in Jamaica. The question was brought to a narrow point, for it was admitted on the part of the defendant that indebitatus assumpsit would have lain, and on the part of the plaintiff that the judgment was only prima facie evidence of the debt. That being so, the judgment was not a specialty, but the debt only a simple contract debt, for assumpsit will not lie on a specialty. The difficulty in the case had arisen from not fixing accurately 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. Fraser was unquestionable. Foreign judgments are
a ground of action everywhere, but they are examinable."
Justices Willes, Ashurst, and Buller concurred, the two latter saying that wherever indebitatus assumpsit will lie, debt will also lie. 1 Doug. 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. Neville (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 true line ever since -- namely that the foreign judgment shall be prima facie evidence of the debt, and conclusive till it be impeached by the other party. . . . As to actions of this sort, see how far the court could go if what was 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 further, 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 Doug. 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 debt, and they were of opinion
that no evidence had been adduced to impeach this."
5 East 475, note.
In Messing 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 judgment on his report, without executing a writ of inquiry. The motion was denied, Lord Kenyon saying: "This is an attempt to carry the rule further 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 Swanston 703, 708, 710.
In Phillips v. Hunter (1795), the House of Lords, in accordance with the opinion of the majority of the judges consulted and against that of Chief Justice Eyre, decided that a creditor of an English bankrupt, who had obtained payment of his debt by foreign attachment in Pennsylvania, was liable to an action for the money by the assignees in bankruptcy in England. But it was agreed on all hands that the judgment in Pennsylvania and payment under it were conclusive as between the garnishee and the plaintiff in that suit, and the distinction between the effect of a foreign judgment which vests title, and of one which only declares that a certain sum of money is due, was clearly stated by Chief Justice Eyre as follows:
"This judgment against the garnishee 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 divested 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."
"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 voluntarily 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. 714, 730.
Under Lord Ellenborough, the distinction 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 (1808), in assumpsit upon a judgment rendered in the Island of Tobago, the defendant pleaded non assumpsit and prevailed because it appeared that he was not a resident of the island, and was neither personally served with process nor came in to defend, and the only notice was, according to the practice of the court, by nailing up a copy of the declaration at the courthouse door. It was argued that "the presumption was in favor of a foreign judgment, as well as of a judgment obtained in one of the courts of this country," to which Lord Ellenborough answered:
"That may be so if the judgment appears, on the face of it, consistent with reason and justice, but it is contrary to the first principles of reason and justice that, either in civil or criminal proceedings, a man should be condemned before he is heard. . . . There might be such glaring injustice on the face of a foreign judgment, or it might have a vice rendering it so ludicrous, that it could not raise an assumpsit, and, if submitted to the jurisdiction of the courts of this country, could not be enforced."
1 Camp. 63, 66-67. A motion for a new trial was denied. 9 East 192. And see Sadler v. Robins (1808), 1 Camp. 253, 256.
In Hall v. Odber (1809), in assumpsit upon a judgment obtained in Canada, with other counts on the original debt, Lord Ellenborough and Justices Grose, Le Blanc, and Bayley agreed that a foreign judgment was not to be considered as having the same force as a domestic judgment, but only that of a simple contract between the parties, and did not merge the original cause of action, but was only evidence of the debt, and therefore assumpsit would lie, either upon the judgment or upon the original cause of action. 11 East 118.
In Tarleton v. Tarleton (1815), on the other hand, the action was brought upon a covenant of indemnity in an agreement for dissolution of a partnership to recover a sum which the
plaintiff had been compelled to pay under a decision in a suit between the parties in the Island of Grenada. Such was the case of which Lord Ellenborough, affirming his own ruling at the trial, said:
"I thought that I did not sit at nisi prius to try a writ of error in this case upon the proceedings in the court abroad. The defendant had notice of the proceedings, and should have appeared and made his defense. The plaintiff, by this neglect, has been obliged to pay the money in order to avoid a sequestration."
The distinction was clearly brought out by Mr. Justice Bayley, who said: "As between the parties to the suit, the justice of it might be again litigated, but as against a stranger it cannot.
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