franchises, but that these survived and passed, on the dissolution of the company, to its directors, as trustees for the creditors and stockholders, until some competent court should appoint a receiver, and that the legislature acted in violation of constitutional rights of property in attempting to transfer some of the company's assets to the city. The court said that the dissolution of a corporation has not, naturally, any other effect upon its contracts or property rights than the death of a natural person has upon his. In condemning the legal view set up by the attorney-general, the court expressed itself in unmistakable terms. It said: "The contention that securities representing a large part of the world's wealth are beyond the reach of the protection which the constitution gives to property, and are subject to the arbitrary will of successive legislatures to sanction or destroy at their pleasure or discretion, is a proposition so repugnant to reason and justice, as well as the traditions of the AngloSaxon race, in respect to the security of rights of property, that there is little reason to suppose that it will ever receive the sanction of the judiciary, and we desire in unqualified terms to express our disapprobation of such a doctrine.' "'

In order that a judgment may be valid and entitled the recognition of foreign tribunals, it is indispensable that the court pronouncing the judgment should have a lawful jurisdiction over the case, over the subject of the action, and over the parties to the action; that the court had such jurisdiction must be clearly shown; 2 and if the jurisdiction fails in either of these respects the judgment will be a nullity, without obligation and not entitled to be respected or enforced beyond the jurisdiction of the court rendering it, whether the judgment be in rem or in personam.3

But if the judgment of a foreign court contravenes the lex loci, it will not be treated as conclusive in the courts of the State or country whose laws have been disregarded."

Vattel says that it is the province of every sovereignty to admininister justice in all places within its own territory and under its own jurisdiction, to take cognizance of the crimes committed there and by the controCol. & For. Law, pt. 2, ch. 24, pp. 1014 to 1080; 2 Smith, Lead. Cas. (2d ed.) 436, note. Some divide judgments into three classes, to-wit: (1) in rem, (2) in personam, and (3) mixed, in rem and in personam. See Burgundus, Tract. 3, n. 1, 2, pp. 84-85; 1 Boullenois, obs. 25, p. 602. Lord Kames in his work on Equity (see 2 Kames, Eq. (3d ed.) 365), makes another distinction as to foreign judgments, namely: "suits sustaining and suits dismissing a claim." He says: "A foreign suit

FOREIGN JUDGMENTS.

1. Classes of Foreign Judgments.

2. Judgment in rem.

3. Judgments in personam.

4. Judgments in the Courts of Sister States.

5. Judgments in the Federal Courts.

6. Judgments where Court has no Jurisdiction. 7. Attacking Foreign Judgment.

8. Impeaching Record of Foreign Judgment. 9. Denying Authority of Attorney to Appear. 10. Foreign Judgments Simply Evidence of Debt. 11. Privileges and Priorities of Foreign Judgments. 12. Tendency of Decisions to Restrict Foreign Judments.

13. Conclusiveness of Foreign Judgments. 14. Pendency of Suit in Another State.

1. Classes of Foreign Judgments.-Foreign judgments are either in rem or in personam.1

1 Story Confl. L. § 584. See also 3 Burge, Com. on

which ought to be made effectual everywhere. It is a title that depends on the authority of the court whence it issued, and therefore has no coercive authority extraterritorium." But this seems to be a refinnement of distinctions not warranted by the ancient common law and not sanctioned by the modern decisions. See Gelston v. Hoyt, 13 Johns. (N. Y.) 561; Gelston v. Hoyt, 3 Wheat. 246; The Bennet, 1 Dodson, 175-180; Starkie, Ev. pt. 2, § 80.

2 Smith v. Mutual Life Ins. Co., 14 Allen (Mass.), 339: Ferguson v. Mahon, 11 Ad. & El. 179-182-183; 1 Boullenois obs. 25, pp. 618-620. The judgment of a competent Spanish court, having jurisdiction of the case, made after the cession of Louisiana, but whilst the country though ceded was de facto in the possession of Spain, and subject to Spanish law, has been held to be valid, so far as it affects the private rights of the parties. Keene v. McDonough, 8 Pet. 308.

3 Rose v. Himely, 4 Cr. (U.S.) 269-270; Andrews v. Herriot, 4 Cow. (N. Y.) 524 n; Shumway v. Stillman, 6 Wend. (N. Y.) 447; Noyes v. Butler, 6 Barb. (N. Y.) 613; Middlesex Bank v. Butman, 29 Me. 19; Hall v. Williams, 6 Pick. (Mass.) 232; s. c., 17 Am. Dec. 356; Woodward v. Tremere, 6 Pick. (Mass.) 354; Bissell v. Briggs, 9 Mass. 462; s. C., 6 Am. Dec. 88; Buchanan v. Rucker, 9 East, 192; Don v. Lippmann, 5 Clark & Finn. 1-20-21; Cavan v. Stewart, 1 Stark. 525; Ferguson v. Mahon, 11 Ad. & El. 179-182-183, 1 Stark. Ev., pt. 2, p. 214, § 68; Henry on For. Law, 18 n; Id. 23-73; Story, Confl. L. §§ 539-546-547-586.

4 Dias v. Morrell, 2 U. S. Law Mag. 431; Loreilhe v. Dias, 2 U. S. Law Mag. 433.

in

versies that arise within it, and says that, consequence of this right of jurisdiction, the decision made by the judge of the place within the extent of his authority ought to respected, and take effect even in foreign countries. But this doctrine has not been generally accepted.

2. Judgments in rem.-Where the matter in controversy is immovable property, as land, the judgment pronounced in the forum rei sito is of universal obligation as to all matters or right and title which it professes to determine; but a foreign judgment relating thereto will be of no obligation.' And the same principle applies to all proceedings in rem against movable property within the jurisdiction of the court pronouncing the judgment. But the judgment must be bona fide and without fraud, for if fraud intervenes it will avoid the force and validity of the judgment, however well founded the jurisdiction.9 5 Vattel, B. 2 ch. 7, §§ 84-85. 6 See Story Confl. L., § 586.

7 See Cammell v. Sewell, 5 H. & N. 728; Rafad v. Verelst, 2 Wm. Black. 1058; Story, Confl. L. §§ 362, note 3, 532-545-551-591; 1 Boullenois, obs. 25, pp. 618619-623; 1 Hertii Opera, de Collis, § 4, n. 73, pp. 153154; J. Voet, ad. Pand, Tom. 1 lib. 42, tit. 1, n. 41, p. 288.

8 French v. Hall, 9 N. H. 137; s. c., 32 Am. Dec. 341; Croudson v. Loenard, 4 Cr. (U. S.) 434; Gelston v. Hoyt, 3 Wheat. (U.S.) 246; Williams v. Armroyd, 7 Cr. (U.S.) 423; Rose v. Himely, 4 Cr. (U. S.) 241; Hudson v. Guestier, 4 Cr. (U. S.) 293; The Mary, 9 Cr. (U. S.) 126-142-146; Bradstreet v. Neptune Ins. Co., 3 Sumner C. C. 600; s. c., 2 Law. Rep. 262-264-265; Peters v. The Warren Ins. Co., Sumner C. C. 389; s. C., 1 Law Rep. 222; Magoun v. New England Ins. Co., 1 Story C. C. 157; s. C., 3 Law Rep. 127-130-131; The Mary Anne, Ware (U. S.) 104; Whitney v. Walsh, 1 Cush. (Mass.) 29; s. C., 47 Am. Dec. 590; Barrow v. West, 23 Pick. (Mass.) 270; Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 179; Andrews v. Herriot, 4 Cow. (N. Y.) 520, and n.; Grant v. McLachlin, 4 Johns. (N. Y.) 34; Blad v. Bamfield, 3 Swanst. 604-605; Cartrege v. Imrie, L. R. 4 H. L. 414; Harmer v. Bell, 7 Moore, P. C. 267; s. c, 22 Eng. L. & Eq. 62.

9 Magoun v. The New England Ins. Co., 1 Story C. C. 157; s. C., 3 Law Rep. 127-130-131; Bradstreet v. The Neptune Ins. Co., 3 Sumner C. C. 600; s. c., 2 Law Rep. 262-261-265; Duchess of Kingston's Case, 11 State Trials, 261-262; s. c., 20 Howell, State Trials, 355538 note; Bowles v. Orr, 1 Younge & C. 464; Starkie, Ev. pt. 2, §§ 77-79-83; Harg. Law Tracts, 449-479-483. It must appear that the proceedings upon which the judgment is founded were regular, and that the parties interested in rem had notice of the proceedings and an opportunity to appear and defend their interests, either personally or by representative, before the judgment was pronounced. Bradstreet v. The Neptune Ins. Co., 3 Sumner, 600; s. c., 2 Law Rep. 263; Magoun v. New England Ins. Co., 1 Story C. C. 157; 8. C., 3 Law Rep. 127-130; Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 180; Sawyer v. Maine Fire & Marine Ins. Co., 12 Mass. 291.

But fraud practiced in the recovery of a judgment cannot be pleaded in an action thereon brought in another State, unless such a defense could be made in the courts of the State where the judgment was rendered.10

Proceedings by a creditor against the personal property of a debtor in the hands of a third person, or against debts due to him by such third person, are treated as in some sense proceedings in rem, and are regarded as entitled to the same consideration as proceedings in rem.11 In such cases, the existence of the property seized or the debt garnished within the territory constitutes just grounds of proceeding to enforce the rights of the plaintiff and discharge his debt, at least so far as the property or debt will do so.12 If the defendant does not appear in the suit, the proceedings will be regarded as a proceeding in rem and the judgment will bind the property or debt, but not be binding upon the debtor as a decree in personam would be. 13

Such judgments are held conclusive, in

10 Barras v. Bidwell, 3 Woods C. C. 5. A bill in equity for an injunction against the use in one State of a judgment rendered in another State, cannot be maintained on the ground that the judgment was obtained by false and fraudulent testimony. Metcalf v. Gilmore, 59 N. H. 417; s. c., 47 Am. Rep. 217.

11 See Bissell v. Briggs, 9 Mass. 468; s. c.,6 Am. Dec. 88; Ocean Ins. Co. v. Portsmouth Marine Ry. Co., 3 Met. (Mass.) 420; Danforth v. Penny, 3 Met. (Mass.) 564; 3 Burge, Comm. on Col. & For. Law, pt. 2, ch. 24, pp. 1014-1019. To make any judgment effectual the court must possess and exercise the rightful jurisdiction over the res, and also over the person, at least so far as the res is concerned, for otherwise it will be disregarded. If the jurisdiction be well founded over the res but not over the person, except as to the res, the judgment will not be either conclusive or binding upon the party in personam, although it may be in rem. Story Conf. L. § 592a. Respecting the attachment of wages in a foreign State: See Burlington & M. R. R. Co. v. Thompson, 31 Kan. 180; s. c., 47 Am. Rep. 497; Gilbert v. Black, 1 Leg. Chron. 132; Wilson v. Joseph (Ind.), 5 West. Rep. 681; Stevens v. Brown, 20 W. Va. 450; Mooney v. Union Pac. R. R. Co., 60 Iowa, 346; The City of New Bedford, 20 Fed. Rep. 57.

12 Story, Confl. L. § 549.

13 See Ewer v. Coffin, 1 Cush. (Mass.) 24; s. C., 48 Am. Dec. 581; Rangely v. Webster, 11 N. H. 299; McVicker v. Beedy, 31 Me. 317; s. c., 50 Am. Dec. 666; Phelps v. Hoiker, 1 Dall. (U. S.) 261; Kilburn v. Woodworth, 5 Johns. (N. Y.) 37; s. C., 4 Am. Dec. 321; Robinson v. Ward, 8 Johns. (N. Y.) 86; s. c., 5 Am. Dec. 327; Pawling v. Bird's Exrs., 13 Johns. (N. Y.) 192; Bissell v. Briggs, 9 Mass. 462; s. C., 6 Am. Dec. 88; 3 Burge Comm. on Col. & For. Law, pt. 2, ch. 24, pp. 1016-1019. Compare Taylor v. Phelps, 1 Harr. & G. (Md.) 492; Shumway v. Stillman, 6 Wend. (N. Y.) 447; Douglas v. Forrest, 4 Bing. 686-702-703; 1 Boullenois, obs. 25, pp. 609-610-619-620-622-623-624-628.

England, not only in rem, but also as to all the points and facts which are directly or incidentally decided; 14 but in the United States the rule is not uniform, some of the States holding that they are conclusive only in rem, and may be controverted as to all the incidental grounds and facts on which they profess to be founded, while others follow the English courts. 15

3. Judgments in Personam.-It is said that a sovereign is not bound jure gentium to execute any foreign judgment within his dominions, and that if execution of such an one is sought in his dominions, he is at liberty to examine into the merits of the judgment and refuse to give it effect where it appears unjust and unfounded.16 It is otherwise, however, where a foreign judgment is set up as a bar to an action.17

According to the doctrine of the American courts, where a judgment rendered by a foreign court in favor of the plaintiff is relied upon as a bar, it seems that if the foreign tribunal had no jurisdiction of the person of the defendant, a judgment there in favor of the plaintiff would not merge the original cause of action so as to defeat an action in another State upon the same cause. 18 But if the court had full jurisdiction of the person of the defendant, a judgment for the plaintiff therein is a bar to a suit upon the original cause of action in another State of the Union. 19

14 Blad v. Bamfield, 3 Swanst. 604; Tarleton v. M. & S. 20.

15 See Maley v. Shattuck, 3 Cr. (U. S.) 488; Gelston v. Hoyt, 3 Wheat. (U. S.) 246; Peters v. Warren Ins. Co., 3 Sumner C. C. 389; s. C., 1 Law Rep. 281; Andrews v. Herriot, 4 Cow. (N. Y.) 522 note; Vandenheuvel v. United Ins. Co., 2 Cain. Cas. (N. Y.) 217; Vandenheuvel v. United Ins. Co., 2 Johns. Cas. (N. Y.) 451; s. C., 1 Am. Dec. 180; Robinson v. Jones, 8 Mass. 536; s. C., 5 Am. Dec. 114; 2 Kent Comm. 120-121.

162 Kent Com. 119-120; Story, Conf. L., §§ 598-611618; 1 Boullenois, obs. 25, p. 601.

17 Where a judgment has been pronounced by a competent court and carried into effect, the matter then becomes res judicata, and the losing party has no right to institute a new suit elsewhere for the litigation of the same question. 2 Kent Com. 119-120; Story, Conf. L. § 598.

18 Middlesex Bank v. Butman, 29 Me. 19; McVicker v. Beedy, 31 Me. 314; s. C., 50 Am. Dec. 666; Rangely v. Webster, 11 N. H. 299; Whittier v. Wendell, 7 N. H. 257; Kane v. Cook, 8 Cal. 449; Barnes v. Gibbs, 2 Vroom (N. J.), 317; Rogers v. Odell, 39 N. H. 457; North Bank v. Brown, 50 Me. 214; s. C., 79 Am. Dec. 609; Baxley v. Linah, 16 Pa. St. 241; s. C., 55 Am. Dec. 494.

19 See Bank of North America v. Wheeler, 28 Conn. 433; s. c., 73 Am. Dec. 683; Cleaves v. Lord, 43 Me.

The English courts, however, apply the rule even to cases where the court had full jurisdiction over the parties.20

This distinction has been frequently recognized by the courts, and is regarded "as having a just foundation in international justice." 21

But according to the present doctrine in England when the plaintiff has recovered a judgment in a foreign country upon an original cause of action, he may sue either upon the judgment thus obtained or upon the original cause of action, the court there holding that such cause of action is not merged in the judgment thus obtained.22

Whether the effect of a foreign judgment is a merger of this cause of action so as to defeat a recovery in another State upon the same cause of action, where the suits were commenced simultaneously, will depend upon the effect, force, and validity of such judgment in the State where rendered.23

There was formerly a disposition among American courts to regard ex parte judgments obtained on attachment of the debtor's property, and publication of notice, as not wholly void as to the person of the non-appearing defendant.24 But the better opinion, and the one that prevails in the federal and State courts, seems to be that foreign judgment where the defendant did not appear and the

290; Baxley v. Linah, 16 Pa. St. 241; s. C., 55 Am. Dec. 494; Child v. The Eureka Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Me. 214; s. c., 69 Am. Dec. 609; Bank of United States v. Merchants' Bank, 7 Gill (Md.), 415; Curtiss v. Beardsley, 15 Conn. 523; McGilvray v. Avery, 30 Vt. 538.

20 Story, Conf. L. § 5996.

21 See Taylor v. Phelps, 1 Harr. & G. (Md.) 492; Griswold v. Pitcairn, 2 Conn. 85; Rangely v. Webster, 11 N. H. 299; Burnham v. Webster, 1 Wood & M. 174; Tarleton v. Tarleton, 4 M. & S. 20; Burrows v. Jemino, 2 Str. 733; s. C., Cas. T. Hard. 87; Boucher v. Lawson, Cas. T. Hard. 80; 2 Swanst. 326 n; Philips v. Hunter, 2 H. Black. 410; Erskine, Inst., B. 4. tit. 3, § 4; 2 Kent Com. 119-120; Story, Conf. L. § 598.

22 Bank of Australasia v. Harding, 9 C. B. 661; Bank of Australasia v. Nias, 16 Q. B. 717; Smith v. Nicolls, 5 Bing. (N. C.) 208-221-224; Hall v. Odber, 11 East, 118; Reimers v. Druce, 23 Beav. 149. If on an action in a foreign country a judgment in favor of the plaintiff does not merge the original cause therein, why should a judgment in favor of the defendant have that effect? See Story Conf. L. § 599a.

23 McGilvray v. Avery, 30 Vt. 53; Reed v. Girty, 6 Bosw. (N. Y.) 567. 24 Mills v. Duryee, 7 Cr. (U.S.) 481; Hampton v. McConnel, 3 Wheat. (U.S.) 234; Lapham v. Briggs, 27 Vt. 26; Bank of North America v. Wheeler, 28 Conn. 433; s. C.,73 Am. Dec. 683.

court had no jurisdiction over his person, are void. 25

4. Judgments in Courts of Sister States.By the provisions of the federal constitution, 26 it is required that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and an act of Congress.27 Supplementary to the provisions of the constitution declares that the judgments of State courts shall have the same faith and credit in other States as they have in the State where they were rendered. It has accordingly been held that the decree or judgment in a court of competent jurisdiction of a sister State has the same credit, validity, and effect in the courts of another State that it has in the State where it was rendered; 28 but that the question of jurisdiction of the court rendering such judgment is always open,29 as is also the question of vitiating fraud.30

25 D'Arcy v. Ketchum, 11 How. (U. S.) 165; Webster ▼. Reid, 11 How. (U. S.) 437; Hall v. Williams, 6 Pick. (Mass.) 232: s. c., 17 Am. Dec. 356; Kilburn v. Woodworth, 5 Johns. (N. Y.) 37; s. C., 4 Am. Dec. 321; Bissell v. Briggs, 9 Mass. 462; s. c., 6 Am. Dec. 88. Where A, of Vermont, sued B, of Vermont, and C, of Louisiana, in New Hampshire, and service was had by publication, and real estate attached, and defendants were defaulted without appearance, but the property attached did not satisfy the judgment, it was held, that the cause of action was not merged in the New Hampshire judgment so as to prelude A from maintaining a suit in Vermont upon the original cause of action. St. Johnsbury Bank v. Peabody, 55 Vt. 492; s. C., 45 Am. Rep. 632.

26 Article 3, § 4.

27 Act of Congress of May 26, 1790, ch. 11; Story on Const. ch. 29, §§ 1297-1307.

28 Pittsburg & St. L. R. R. Co. v. Rothschild (Pa.), 4 Cent. Rep. 109. See Phillips v. Godfrey, 7 Bosw. (N. Y.) 150; McFarland v. White, 13 La. Ann. 394; Barney v. Patterson, 6 Harr. & J. 182. Under United States constitution, article 4, section 1, and the Act of Congress of May 26, 1790, a writ of error, not operating as a supersedeas from the Supreme Appellate Court of Texas to a judgment of a district court of that State, will be regarded as having the same effect in Virginia as in Texas. Piedmont & Arlington Life Ins. Co. v. Ray, 75 Va. 821. If a scire facias would lie upon a judgment in the State in which it was rendered, an action of debt will lie upon it in another jurisdition. Simonton v. Barrell, 21 Wend. 362. And a judgment of a court of common pleas of a county in another State, in the absence of evidence to the contrary, is to be regarded as a judgment of a court of general jurisdiction, and is entitled to every presumption in favor of its validity and regularity. Pringle v. Woolworth, 90 N. Y. 502.

29 Pittsburg & St. L. R. R. Co. v. Rothchild (Pa.), 4 Cent. Rep. 109.

30 See Gleason v. Dodd, 4 Metc. (Mass.) 333; Ewer Y. Coffin, 1 Cush. (Mass.) 23; s. c., 48 ̧Am. Dec. 587; Carleton v. Bickford, 13 Gray (Mass.), 591; 8. C., 74

These provisions put such judgments on the same footing as domestic judgments; otherwise they would be regarded as foreign judgments.31

5. Judgment in Federal Courts.-The same rule applies to judgments of circuit courts of the United States, when relied upon in a State court, as governs the judgments of courts of sister States.32

6. Judgments where Court had no Jurisdiction. The United States constitution, requiring full faith an credit to be given in each State to the judicial proceedings of every other State, applies only where the court whose judgment is invoked had jurisdiction; and a finding or recital of such jurisdiction will not prevent inquiry; 33 and judgments rendered by the court of a foreign State without having acquired jurisdiction of the case and of the person of the defendant, are still to be regarded as foreign judgments when attempted to be enforced beyond the limits of the State when rendered.34

Am. Dec. 652; Folger v. Columbian Ins. Co., 99 Mass. 273; Taylor v. Bryden, 8 Johns. (N. Y.) 73; Cummings v. Banks, 2 Barb. (N. Y.) 602; Davis v. Smith, 5 Ga. 274; 8. C., 40 Am. Dec. 279; D'Arcy v. Ketchum, 11 How. (U. S.) 165; Pearce v. Olney, 20 Conn. 544; Rogers v. Gwinn, 21 Iowa, 58. However, there are numerous well-considered cases which deny the right to attack the judgment of a sister State on the ground of fraud. See Sanford v. Sanford, 28 Conn. 6, 28; McRae v. Mattoon, 13 Pick. (Mass.) 53; Bicknell v. Field, 8 Paige Ch. (N. Y.) 440; Christmas v. Russell, 72 U. S. (5 Wall.) 290; bk. 18 L. ed. 475.

31 See Dorsey v. Maury, 10 Smed. & M. 298; Seevers v. Clement, 28 Md. 426; Buckner v. Finley, 2 Pet. (U. S.) 586; Smith v. Lathrop, 44 Pa. St. 326.

32 See Barney v. Patterson, 6 Harr. & J. (Md.) 182; Niblett v. Scott, 4 La. Ann. 246.

33 Thompson v. Whitman, 18 Wall. (85 U. S.) 457; bk. 21 L. ed. 897; Pennoyer v. Neff, 95 U. S. 714; bk. 24 L. ed. 565; Sewall v. Sewall, 122 Mass. 156; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30.

34 D'Arcy v. Ketchum, 11 How. (U. S.) 165. Mr. Edmund H. Bennett criticises the doctrine of D'Arcy v. Ketchum, because, as he alleges, it "might seem to imply that the record when presented was liable to contradiction upon any question affecting the jurisdiction of the court." He adds: "But as no such doctrine has yet been declared by that court, we should hesitate to believe they will ever come to a result which we regard so much at variance with well estab lished general principles. For in order to admit evidence to contradict the recitals of the record, we are obliged to adopt a rule of presumption precisely opposite to that which we apply in ordinary judgments; we have to make every possible presumption against their conclusiveness, and virtually treat them all as foreign judgments, until the contrary is established to the satisfaction of a jury. If this rule is to be gener ally recognized, there will be no judgment from any of the American States, when attempted to be enforced in

Thus, when the fact of divorce is sought to be proved by the record of a decree in another State, the decree may be questioned for want of jurisdiction apparent on the record. 35 And it has been held that a decree for the removal of a cloud upon a title, being a decree in personam, can only be supported, against one not a citizen or resident of the State in which the decree is rendered, by actual service within the jurisdiction; hence, where such a decree is rendered by a State court against a non-resident upon a structive service by publication, it is without jurisdiction, and affords no bar to a suit to recover the land brought in the federal court of the district embracing the State.36

con

7. Attacking Foreign Judgments.-Where a judgment is sought to be enforced in the courts of a sister State the defendant may not show that the judgment was founded on a mistake, either of law or of fact.3 37 Neither will the fact that in the State where a foreign judgment is sought to be enforced the cause was barred by the statute of limitations when the suit upon which the judgment was obtained was brought, avail as a defense.38 And foreign judgment are said to be binding although proceedings are pending, but not decided, in the courts of the State where rendered to annul and set them aside.89

any other of the States where it will not be practicable by proper pleas to draw the validity of the whole judgment into controversy before the jury, and thus virtually nullify the provisions of the United States constitution and the acts of Congress in their favor. *

We perceive no necessity for the adoption of any such rule of construction in regard to this class of judgments. All that is required to protect the rights of debtors or defendants in such cases, is to hold such Judgments of no validity, unless acquiesced in by the defendant, until it appears by the record of such judgment that the court had jurisdiction both of the subject-matter and of the parties; and then treat the record as conclusive, the same as that of any domestic judgment." See Bennett's Edition of Story's Conf. L. $ 599ƒ.

85 Morey v. Morey, 27 Minn. 265.

36 Hart v. Sansom, 110 U. S. 151; bk. 28 L. ed. 101. 37 Hassell v. Hamilton, 33 Ala. 280; Rocco v. Hackett, 2 Bosw. (N. Y.) 579; Milne v. Van Buskirk, 9 Iowa, 558; Scott v. Pilkington, 2 B. & S. 11; Godard v. Gray, L. R. 6 Q. B. 139; Castrique v. Imrie, L. R. 4 H. L. 445.

38 A State statute permitting such a defense has been held unconstitutional and void. Sweet v. Brackley, 53 Me. 346; Christmas v. Russell, 5 Wall. (72 U. S.) 290; bk. 18 L. ed. 475.

39 Gunn v. Howell, 35 Ala. 144; 8. C., 62 Am. Dec. 785; Indiana v. Helmer, 21 Iowa, 370; Barringer v. Boyd, 27 Miss. 473; Grover v. Grover, 30 Mo. 400; Merchants' Ins. Co. v. De Wolf, 33 Pa. St. 45; Scott v. Pilkington, 2 Best & S. 11.

8. Impeaching Record of Foreign Judgment. -Whether a defendant who is sued upon a foreign judgment may dispose a recital in the record of personal service upon him, or an appearance by an attorney, thereby denying the jurisdiction of the court rendering the judgment, the cases are divided; some hold that he can," 40 but the better opinion seems to be that the averment in record of personal service or appearance is conclusive in other States.41 And where the record contains no averment of service or appearance, it is always open to the defendant to show want of jurisdiction over his person.

42

9. Denying Authority of Attorney to Appear.-Where the record shows appearance by attorney only, the defendant, although he may not deny the fact of such appearance," he may deny that such attorney had any authority to appear.44

45

10. Foreign Judgments Simply Evidence of Debt. The judgments of courts of record in one State are entitled to recognition by the courts of sister States as evidence of a debt simply, they have no extraterritorial force as judgments. 46 But as the original debt is not merged in a judgment rendered in a foreign court, such judgment may be as evidence by either party, in a suit on the original cause of action, without a formal allegation in the proceedings, and if it settles the

40 See Starbuck v. Murray, 5 Wend. (N. Y.) 148; s. c., 21 Am. Dec. 172; Carleton v. Bickford, 13 Gray (Mass.), 591; s. C., 74 Am. Dec. 652; Rape v. Heaton, 9 Wis. 329; s. c., 76 Am. Dec. 269; Norwood v. Cobb, 24 Tex. 551.

41 See Welch v. Sykes, 3 Gilm. (Ill.) 197; s. C., 44 Am. Dec. 689; Lawrence v. Jarvis, 32 Ill. 304; Baltzell v. Nosler, 1 Clarke (Iowa), 588: Walker v. Lathrop, 6 Clarke (Iowa), 516; Westcott v. Brown, 13 Ind. 83; Wilcox v. Kassick, 2 Mich. 165; Wilson v. Jackson, 10 Mo. 330; Pritchett v. Clark, 3 Harr. (Del.) 241; Lincoln v. Tower, 2 McL. C. C. 473; Thompson v. Emmert, 4 McL. C. C. 96; Hampton v. McConnel, 3 Wheat. (U. S.) 234.

42 Gunn v. Howell, 27 Ala. 663; s. c. 62 Am. Dec. 785; Nunn v. Sturges, 22 Ark. 389; Dunbar v. Hollowell, 34 Ill. 168; Pollard v. Baldwin, 22 Iowa, 328; Bissell v. Wheelock, 11 Cush. (Mass.) 277; Reid v. Boyd, 13 Tex. 241; 8. C., 65 Am. Dec. 61; D'Arcy v. Ketchum, 11 How. (U. S.) 165.

43 Roberts v. Caldwell, 5 Dana (Ky.), 512; Gilbert v. Lane, 3 Porter, 267.

44 Aldrich v. Kinney, 4 Conn. 380; s. c., 10 Am. Dec. 151; Lawrence v. Jarvis, 32 Ill. 304; Harshey v. Blackmarr, 20 Iowa, 161; Kerr v. Kerr, 41 N. Y. 272; Watson v. New England Bank, 4 Metc. (Mass.) 343; Shelton v. Tiffin, 6 How. (U. S.) 163.

45 Elizabethtown Savings Institution v. Gerber, 34 N. J. Eq. 130. 46 Id.