foreign

principle, that a final judgment, rendered in a personal action, ness of in the courts of competent jurisdiction of one State, ought to judgments have the conclusive effect of a res adjudicata in every other in personal State, wherever it is pleaded in bar of another action for the same cause (n).

But 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 (o). 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 (p).

By the law of England, the judgment of a foreign tribunal, of competent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicatæ, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is primâ facie evidence, where the party claiming the benefit of it applies to the English courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt, for which a new judgment is rendered in the English court, and execution awarded. But if it appears by the record of the proceedings, on which the original judgment was founded, that it was unjustly or fraudulently obtained, without actual personal notice to the party affected by it; or if it is clearly and unequivocally shown, by extrinsic evidence, that the judgment has manifestly proceeded upon false premises or inadequate reasons, or upon a palpable mistake of local or

(n) Vattel, liv. ii. ch. vii. §§ 84, 85. Martens, Droit des Gens, §§ 93, 94, 95. Klüber, Droit des Gens, § 59. Deutsche Bundes Recht, § 366. (0) Kent's Comm., vol. ii. p. 119, 5th edit. (p) Felix, §§ 292-311.

actions.

$148. English law as to

foreign

judgments.

$149. American law.

§ 150.

Law of
France.

foreign law; it will not be enforced by the English tribunals (q).

The same jurisprudence prevails in the United States of America, in respect to judgments and decrees rendered by the tribunals of a State foreign to the Union. As between the different States of the Union itself, a judgment obtained in one State has the same credit and effect in all the other States, which it has by the laws of that State where it was obtained; that is, it has the conclusive effect of a domestic judgment (r).

The law of France restrains the operation of foreign judg ments within narrower limits. Judgments obtained in a foreign country against French subjects are not conclusive, either where the same matter comes again incidentally in controversy, or where a direct suit is brought to enforce the judg ment in the French tribunals. And this want of comity is even carried so far, that, where a French subject commences a suit in a foreign tribunal, and judgment is rendered against him, the exception of lis finita is not admitted as a bar to a new action by the same party, in the tribunals of his own country. If the judgment in question has been obtained against a foreigner, subject to the jurisdiction of the tribunal where it was pronounced, it is conclusive in bar of a new action in the French tribunals, between the same parties. But the party who seeks to enforce it must bring a new suit upon it, in which the judgment is primâ facie evidence only; the defendant being permitted to contest the merits, and to show not only that it was irregularly obtained, but that it is unjust and illegal (s).

The execution of foreign judgments in personam is reciprocally allowed, by the law and usage of the different States of the Germanic Confederation, and of the European continent in general, except Spain, Portugal, Russia, Sweden, Norway,

(q) Frankland v. McGusty, 1 Knapp, P. C. 274; Novelli v. Rossi, 2 Barn. & Adol. 757; Becquet v. M'Carthy, 3 ib. 951. [Godard v. Gray, L. R. 6 Q. B. 139; Ochsenbein v. Papelier, L. R. 8 Ch. Ap. 695; Messina v. Petrococchino, L. R. 4 P. C. 144.]

(r) Mills v. Duryee, 7 Cranch, pp. 481-484; Hampton v. M'Connel, 3 Wheaton, 234.

(s) Code Civil, art. 2123, 2128. Code de Procédure Civil, art. 546. Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 2, No. 1488. Merlin, Répertoire, tom. vi. tit. Jugement. Questions de Droit, tom. iii. tit. Jugement. Toullier, Droit Civil Français, tom. x. Nos. 76-86.

France, and the countries whose legislation is based on the
French civil code (t).

A decree of divorce obtained in a foreign country, by a fraudulent evasion of the laws of the State to which the parties belong, would seem, on principle, to be clearly void in the country of their domicile, where the marriage took place, though valid under the laws of the country where the divorce was obtained. Such are divorces obtained by parties going into another country for the sole purpose of obtaining a dissolution of the nuptial contract, for causes not allowed by the laws of their own country, or where those laws do not permit a divorce à vinculo for any cause whatever. This subject has been thrown into almost inextricable confusion, by the contrariety of decisions between the tribunals of England and Scotland; the courts of the former refusing to recognise divorces à vinculo pronounced by the Scottish tribunals, between English subjects who had not acquired a bonâ fide permanent domicile in Scotland; whilst the Scottish courts persist in granting such divorces in cases where, by the law of England, Ireland, and the colonies connected with the United Kingdom, the authority of parliament alone is competent to dissolve the marriage, so as to enable either party, during the lifetime of the other, again to contract lawful wedlock (u).

In the most recent English decision on this subject, the House of Lords, sitting as a Court of Appeals in a case coming from Scotland, and considering itself bound to administer the law of Scotland, determined that the Scottish courts had, by the law of that country, a rightful jurisdiction to decree a divorce between parties actually domiciled in Scotland, notwithstanding the marriage was contracted in England. But the Court did not decide what effect such a divorce would have, if brought directly in question in an English court of justice (x).

In the United States, the rule appears to be conclusively settled that the lex loci of the State in which the parties are bonâ fide domiciled, gives jurisdiction to the local courts to

(t) Fœlix, Droit International Privé, §§ 293-311.

(u) Dow's Parliament. Cases, vol. i. p. 117; Tovey v. Lindsay, p. 124. Lolly's case, 2 Clark & Fin. 567. See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim.

(x) Warrender v. Warrender, 9 Bligh, 89; S. C. 2 Clark & Fin. 488.

§ 151. Foreign divorces.

§ 151a. Validity of a foreign divorce in England.

$151b. Divorce

decree a divorce, for any cause recognised as sufficient by the local law, without regard to the law of that State where the marriage was originally contracted (y). This, of course, exIcludes such divorces as are obtained in fraudulent evasion of the laws of one State, by parties removing into another for the sole purpose of procuring a divorce (z).

When two persons have been married in England and are afterwards divorced abroad, the validity of this divorce in England will depend upon three considerations. (1) The divorce must have been pronounced upon grounds which would be sufficient to enable an English court to divorce the parties. (2) The parties must be domiciled in the country whose courts decree their divorce. (3) The divorce must not have been obtained by collusion or by a fraudulent evasion of British law. If these conditions are not complied with, the divorce will not be recognised in England. The first condition was expressly laid down in Lolley's case (a). Lolley was married in England. He afterwards took his wife to Scotland in order to institute a suit for divorce there, and with a view to this suit Lolley committed adultery in Scotland. He was throughout a domiciled Englishman. The Scotch court decreed a divorce, and Lolley then married again in England, and was indicted for bigamy. He pleaded his Scotch divorce, but this was held to be of no effect in England. The twelve judges were "unanimously of opinion that no sentence or act of any foreign country or State could dissolve an English marriage à vinculo, for ground on which it was not liable to be dissolved à vinculo in England." Lolley was accordingly convicted and sent to the hulks (b). It seems to be now a settled rule of English law, that a divorce decreed abroad of persons who married in England, and were domiciled British subjects at the time of their marriage, will not be recognised in England, if at the time of their divorce the parties were not domiciled in the country decreeing the divorce (c). The same rule appears to hold good in the United States (d). Whether, if so domiciled, the English courts would recognise and act upon such a divorce appears to be a question not wholly free from doubt; but the better opinion seems to be that they would do so if the divorce be for a ground of divorce recognised as such in this country, and the foreign country be not resorted to for the collusive purpose of calling in the aid of its tribunals (e).

The only fair and satisfactory rule to adopt as regards jurisdiction is

(y) Dorsey v. Dorsey, Chandler's Law Reporter, vol. i. p. 287.

(2) Kent's Comm. vol. ii. p. 107, 5th edit.

() [Russ. & Ry. 237].

(b) [2 Cl. & F. 569].

(c) [Conway v. Beazley, 3 Hagg. Ecc. 639; Dolphin v. Robins, 7 H. of L. Cas. 391; Pitt v. Pitt, 4 Macqueen, Scotch Ap. 627].

(d) [Kerr v. Kerr, 41 New York, 272; Phelps v. Baker, 60 Barbour, 107. Field, Int. Code (2nd edit.), ch. 1. p. 448. Bishop on Marriage (5th edit.), vol. ii. § 144].

(c) [Shaw v. Att.-General, L. R. 2 P. & D. 161. See Maguire v. Maguire 7 Dana (Kentucky), 185].

the country

of domicile.

to insist upon the parties in all cases referring their matrimonial differ- should be ences to the courts of the country in which they are domiciled. decided in Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes that should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An adherence to this principle will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another (f). Though there can be no doubt of the soundness of this principle, it cannot, unfortunately, be considered as absolutely established in English law, though there has been a tendency to adopt it in recent cases (g). Nor would it, even if firmly established, in every case prevent collision between the courts of different countries, because there would still, in each case, remain the fact of domicile to be established ; and as all countries do not adopt the same rules of evidence, the evidence on this question might be very different in one country to what it would be in another ().

§ 151c. Domicile necessary

tion to

divorce.

Another difficulty surrounding the question of domicile for purposes of divorce arises from its being doubtful whether a domicile for all purposes is necessary to give a foreign Court such jurisdiction as will to give ensure the recognition of the divorce in England. Lord Colonsay said jurisdicin a case before the House of Lords in 1868, " It was said that a foreign Court has no jurisdiction in the matter of divorce, unless the parties are domiciled in the country; but what is meant by 'domicile?' I observe that it is designated sometimes as a bona fide domicile, sometimes as a real domicile, sometimes as a complete domicile, sometimes as a domicile for all purposes. But I must, with deference, hesitate to hold that on general principles of jurisprudence, or rules of international law, the jurisdiction to redress matrimonial wrongs, including the granting of a decree of divorce à vinculo, depends on there being a domicile such as seems to be implied in some of these expressions. Jurisdiction to redress wrongs in regard to domestic relations does not necessarily depend on domicile for all purposes." His lordship observed that if the divorce was obtained in fraudem legis, it would not be given effect to in England. "But if you put the case of parties resorting to Scotland with no such view, and being resident there for a considerable time, though not so as to change the domicile for all purposes, and then suppose that the wife commits adultery in Scotland, and that the husband discovers it, and immediately raises an action of divorce in the Court in Scotland, where the witnesses reside, and where his own duties detain him, and that he proves his case and obtains a decree, which decree is unquestionably good in Scotland, and would, I believe, be recognized in most other countries, I am slow to think that it would be ignored England, be

(ƒ) [Wilson v. Wilson, L. R. 2 P. & M. 442].

(g) [Niboyet v. Niboyet, 3 P. D. 59, but see S. C. 4 P. D. 1]. (h) [Wilson v. Wilson, ubi sup. ].