$148. English law as to foreign judgments. § 148a. sought by suit upon the judgment, By the law of England, the judgment of a foreign A foreign judgment in personam, to be recognized in England, must be final and conclusive between the parties litigating the same issue in England. And the plaintiff in England cannot, when he relies on (a) Kent's Comm., vol. ii. p. 119, 5th edit. (b) Fœlix, §§ 292-311. (c) Frankland v. McGusty, 1 Knapp, P. C. 274; Novelli v. Rossi, 2 Barn. & Adol. 757; Becquet v. M'Carthy, 3 ib. 951. the foreign judgment as his cause of action, obtain a greater benefit here than the foreign judgment gave him abroad. In an action on a foreign judgment not impeached for fraud, the original cause of action is not re-investigated here, if the judgment was pronounced by a competent tribunal having jurisdiction over the litigating parties. For the Courts of this country do not sit to hear appeals from foreign tribunals, and if the judgment of a foreign Court is erroneous the regular mode, provided by every system of jurisprudence, of procuring it to be examined and reversed, or re-heard, ought to be followed. But no judgment will be recognized in England which was obtained by the fraud of the party relying on it here; or if the foreign Court, although it affected to decide on the merits, was, in view of English law, without jurisdiction (d). law. § 149. The same jurisprudence prevails in the United States American 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 (e). $ 150. France. The law of France restrains the operation of foreign Law of judgments 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 judgment 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 (d) [Re Henderson, 37 Ch. D. 244; Hawksford v. Giffard, 12 App. Cas. 122; Re Trufort, 36 Ch. D. 600; Abouloff v. Oppenheimer, 10 Q. B. D. 295; Voinet v. Barrett, 55 L. J. Q. B. 39; Godard v. Gray; Schibsby v. Westenholz, L. R. 6 Q. B. 139, 155; Nelson, Private Inter national Law, 338 et seq., and cases (e) Mills v. Duryee, 7 Cranch, pp. 481 $151. Foreign divorces. 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 prima 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 (ƒ). 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, France, and the countries whose legislation is based on the French civil code (g). 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 recognize divorces à vinculo pronounced by the Scottish tribunals, between English subjects who had not acquired a bona 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, (f) 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. 7686. (9) Fœlix, Droit International Privé, §§ 293-311. so as to enable either party, during the lifetime of the other, again to contract lawful wedlock (h). 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 (i). 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 decree a divorce, for any cause recognized as sufficient by the local law, without regard to the law of that State where the marriage was originally contracted (k). This, of course, excludes 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 (1). divorce in § 151a. A marriage is regarded in England as indissoluable by a foreign Validity of a Court when it is an English domiciled marriage ab initio down to the foreign time of the foreign decree. And where the domicile of the husband is England. English at the time of the sentence in the foreign Court, such sentence is ineffective in England. But the English courts will recognize as valid the decision of a foreign tribunal dissolving a marriage celebrated in England between a man domiciled at the date of the marriage and thenceforward till the date of the decree in the country where such tribunal exercises jurisdiction and an Englishwoman, although the sentence is for a cause insufficient by the law of England. And a domicile of the husband acquired after marriage but before decree, and without ulterior motive, is probably enough to found the foreign jurisdiction so that the foreign sentence may be (h) 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. (i) Warrender v. Warrender, 9 Bligh, (1) Kent's Comm., vol. ii. p. 107, 5th § 151b. Divorce should be country of domicile. allowed here. When neither the domicile or place of celebration is or has been English, a sentence pronounced by a Court of the matrimonial domicile will be deemed of effect here, and a sentence of a Court of the place of celebration is sufficient if so regarded by the law of the domicile. A foreign sentence in a matrimonial cause, as any other foreign judgment, is vitiated by fraud or collusion (m). The only fair and satisfactory rule to adopt as regards jurisdiction is decided in the to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled. 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 (n). 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 (o). 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 (p). § 151c. Domicile necessary to tion to divorce. Another difficulty surrounding the question of domicile for purposes give jurisdic- of divorce arises from its being doubtful whether a domicile for all purposes is necessary to give a foreign Court such jurisdiction as will ensure the recognition of the divorce in England. Lord Colonsay said, in 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." (m) [Harvey v. Farnie, 8 App. Cas. 43; Turner v. Thompson, 13 P. D. 37; Dolphin v. Robins, 7 H. L. C. 391; Scott v. Att.-Gen., 11 P. D. 128; Briggs v. Briggs, 5 P. D. 163; Lolley's case, R. & Ry. 237; Nelson, 128 et seq., and cases there cited.] (n) [Wilson v. Wilson, L. R. 2 P. & M. 442.] (o) [Niboyet v. Niboyet, 3 P. D. 59; but see S. C., 4 P. D. 1.] (p) [Wilson v. Wilson, ubi sup.] |