it follows, that it does not lie on the party, who produces the sentence, to show that it has proceeded on the ground of enemy's property; but it is incumbent on the other party, who objects to the sentence, to show that it proceeded on some other ground. (1)(0) clusive. Where the sentence professes to be made on particular grounds, When not com which are set forth in the sentence, but which appear not to warrant the condemnation, the sentence will not be conclusive as to such facts. (2) (p) Of if the sentence has not decided the question of property, nor declared whether it be neutral, but condemned the property as prize, solely on the ground, that the ship had violated an ex parte ordinance, to which the neutral country had not assented, or on the ground of a foreign ordinance against the law of nations, such a sentence, though conclusive of the question of prize or no prize, would not be conclusive of the fact, whether or not the ship were neutral. (3) (2) Lastly, sentences of condemnation in foreign courts of prize are Not admissi admissible, only where such courts are constituted according to the ble, when. law of nations, and exercise their functions either in the belligerent country, or in the country of a co-belligerent, or ally in the war. (4) It has, therefore, been determined, that a sentence pronounced by the authority of the capturing power, within the dominions of a neutral country, to which the prize may have been taken, is illegal, (5) and consequently would not be admissible evidence to falsify the warranty of neutrality. (r) courts. The sentence of any other foreign court of competent ju- Sentence of other foreign risdiction, directly deciding a question, which was properly cognizable by the law of the country, seems to be conclusive here, if the same question arise incidentally between the same parties in this country. Thus, the sentence of a foreign court of competent jurisdiction, directly establishing a marriage in (o) See Note 629, p. 884. (p) See Note 630, p. 885. (q) See Note 631, p. 885. (r) See Note 632, p. 896. In civil cases. that country would be conclusive in any of our courts on the validity of the marriage. (1) (s) So, where a party having accepted a bill of exchange drawn upon him at Leghorn, instituted a suit there, in which suit his acceptance was vacated, and, upon his return to this country, being sued again on his acceptance, applied to the Court of Chancery for an injunction and relief against the second action, Lord Chancellor King decided, that the cause was to be determined by the law of the country where the bill was negotiated; and, as the acceptance had been there declared void by a competent jurisdiction, he thought the sentence must here also be conclusive. (2) So, on a criminal charge, (as, for murder committed in a foreign country,) an acquittal in that country might be pleaded here in bar to an indictment for the same offence; (5) (1) because, says Mr. Justice Buller, a final determination in a court of competent jurisdiction is conclusive in all courts of concurrent jurisdiction. (4) (u) From the two last cases the following principle seems to be properly deducible, namely, that a party, who has been once discharged from a criminal charge, or from a legal de mand, by the sentence of a foreign court of competent jurisdiction may protect himself by that sentence against any fresh suit or prosecution, instituted here for the same cause. In criminal. Action on foreign judgment. If an action is brought in this country, as an action of debt or assumpsit, directly upon a foreign judgment, the sentence has been considered prima facie evidence of the debt, but not conclusive. In the case of Sinclair v. Fraser, (5) which was an action in the Court of Session in Scotland, on a judgment of the supreme court in Jamaica, the Court of Session rufused to give any effect to the foreign judgment, and held, that the plaintiff was bound to prove the ground, the nature, and the extent of his demand, on which the judgment in Jamaica had been obtained. But the House of Lords, on an appeal, reversed prim. fac. vi- the decision of the Court of Session, pronouncing the following special order of reversal: "It is declared, that the judgment of Judgment dence. (1) By Ld. Hardwicke, in Roach v. Garvan, 1 Ves. 159. (2) Burrows v. Jemino, 2 Str. 733. S. C. 1 Dickens, 48. See Plumoner v. Woodburne, 4 Barn. & Cress. 625. (3) Hutchinson's case, cited Show. Rep. 6; also in 2 Str. 733. (4) Bull. N. P. 215. Roche's case, 1 Leach Cr. C. 160. (5) 1 Doug. 5, in note. 20 lowell's St. Tr. 468. 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 or unduly obtained." In the case of Walker v. Witter, (1) where the question was, whether the plaintiff in an action or a judgment, obtained by him in the supreme court of Jamaica, ought in pleading to show the ground of the judgment, the Court of King's Bench determined that this was not necessary; that foreign judgments are a ground of action in this country, but that they are examinable, when made the subject of a suit. Lord Kenyon, indeed, in the case of Galbraith v. Neville, (2) which was an action of debt on a judgment in the supreme court of Jamaica, said, he entertained serious doubts concerning the doctrine laid down in the case of Walker v. Witter, (3) that foreign judgments are not binding upon the parties here; and after referring to a case, which might seem to point against his opinion, he added, "that is not an authority for saying, that we can revise the judgments of the lowest courts in foreign countries, where they have competent jurisdiction." However, Mr. Justice Buller in the same case, said, "The doctrine which was laid down in the case of Sinclair v. Fraser has always been considered 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," he continued, "see how far the Court would go, if what was said in the case of Walker v. Witter were departed from. It was there held, that the foreign judgment was only taken to be prima facie evidence, that is, we will allow the same force to a foreign judgment, that we do to those of our own courts not of record: (4) but if the matter were carried farther, we should give them more credit; we should give them equal force with those of courts of record here. Now a foreign judgment bas never been considered as a record: it cannot be declared on (1) I Dong. 1. In the case of Herbert v. Cook, also Willes, 37, in note, Lord Mansfield declared, that a foreign judgment is not conclusive evidence of a debt. (2) 1 Doug. Rep. 5, n. (2); and 5 East, 475, n. (b) S. C. (3) 1 Doug. 5, note . (4) Acc. Ld. Mansfield in Herbert v. Cook, Willes, Rep. 37, n. (a.) Judgment not conclusive. 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 agreements, namely, that it shall be considered as good till it is impeached." In the case of Philips v. Hunter, (1) Eyre, C. J., said, “It is in one way only, that the sentence or judgment of the 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 a consideration prima facie sufficient to raise a promise. We examine it, as we do all other considerations of promises, and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by the law." For certain purposes, indeed, the judgments of foreign courts, even courts of municipal law, will be conclusive, according to their subject-matter; (2) but where such judgments are put in suit, and made the subject of an action in this country, the better opinion seems to be, that they are only prima facie evidence of a debt, and have the force of a simple contract between the parties. Even in the case of judgments of foreign courts of admiralty, which are constituted on the universal law of nations, judges of great authority have doubted, whether it is not from an over-strained amity, that they have been allowed to be conclusive. (3) And, perhaps, on considering the constitution and the conduct of some municipal courts in some foreign countries, it may be deemed amply sufficient, in the way of respect and courtesy, to give their judgments the credit (1) 2 H. Black. 410, in error. 850. (3) See particularly Fisher v. Ogle, 2 Park, Ins. 552. of prima facie evidence, and not to allow them more. It is not unimportant, also, to observe, that this is precisely the degree of credit, which the judgments of our courts of justice receive in some foreign courts; they are treated as prima facie evidence of a debt, but not conclusive. (1) (v) void. When it is said, that a foreign judgment is evidence of a debt, Foreign judgthe rule must obviously be understood with this limitation, that went, when nothing appears in the record of the proceedings, on which the judgment is founded, contrary to reason and justice. If the judgment, for example, should have passed against a defendant, who does not appear to have been served with process, or to have had any opportunity of defending the action, such a judgment would not be enforced by courts of justice in this country. This point occurred in the case of Buchanan v. Rucker, (2) where it appeared from the proceedings, that the summons had been served by nailing up a copy of the declaration on the door of the courthouse; and it was adjudged, that although such might be the practice abroad, it was a practice inconsistent with all principles of justice, and that the judgment therefore could not be made the ground of an action of assumpsit. It will be necessary, therefore, to prove that the party was duly summoned, or, if he is described in the proceedings as an absentee, that he had absented himself from the country. (3) (w) With respect to the proof of his absence, that fact might perhaps be inferred from a return of non est inventus to the process issued against him, if it be proved that he had been in the country. (4) (x) eign judgment Although the foreign judgment is only prima facie evidence Effect of Forof a debt, for which the suit abroad was instituted, yet for many as evidence. purposes it will be conclusive between the parties, according to the nature of the subject matter, and the purposes to which the evidence is applied. Thus, where a covenant had been made by the defendant, to indemnify the plaintiff from all debts due from (1) Such is the law of the United States of America. The decisions upon this point, cited in an American, edition of an English Treatise on Eviduce, are the following; Buttrick v. Allen, 8 Mass. Rep. 273. 9 Mass. Rep. 464. 3 Johns Rep. 163. (2) 1 Campb. 63. 9 Fast, 192, S. C. (3) Buchanan v. Rucker, 9 East, 192. Cavan v. Stewart, 1 Stark. N. P. C. 525 (4) By Lord Ellenborough, Cavan v. Stewart, 1 Stark. N. P. C. 525, (v) See Note 891, p. 891. (w) See No e 903, p. 903. (z) See Note 639, p. 915. VOL. I. 45 |