between them, and that the plaintiffs' right to sue on these bills is against Fleming & Alden with whom his contract was made. But even supposing this matter is to be determined by the American law, the decision of the Court there was erroneous, and proceedings in appeal are now pending. [Cockburn C. J. How can we decide such a question? As to an appeal being pending, that cannot be the subject of a plea, however it might be for the equitable interference of this Court.] It is true that English Courts will not question the decisions of foreign Courts on the ground that thay have mistaken their own law, or have come to a wrong conclusion on the facts; Bank of Australasia v. Nias (a); but they will do so in many other cases, instances of which are to be found in the books: Rothschild v. Currie (b), Lewis v. Owen (c), Novelli v. Rossi(d), Reimers v. Druce (e). Nicholson v. Ricketts(ƒ) is very like this case, and is an authority for the defendants. [Crompton J. Ricardo v. Garcias (g) shews that we cannot go into the merits of the decision of a foreign Court. How can we review the judgment of an American Court on the question of privity or no privity? Blackburn J. You are really asking us to say that the American Court was wrong in holding that there was evidence of a contract.] Baylis, contrà.-The case ought to be determined by the American law. The principle laid down by Story, in the passage adduced by the other side (Confl. Laws, (a) 16 Q. B. 717. (c) 4 B. & Ald. 654. (e) 26 L. J. Ch. 196; 23 Beav. 145. (b) 1 Q. B. 43. (d) 2 B. & Ad. 757. 1862. SCOTT V. § 280), is stated too broadly, and is not borne out by the authorities cited in support of it. Westlake, in his Private Intern. Law, p. 156, § 167, lays down the following prin- PILKINGTON. ciples, deduced from a passage in Bartolus Com. in Cod. lib. 1. tit. 1. 1. 1., "The litis ordinatio, the mode of procedure, depends on the law of the forum: the solemnities necessary to contracts, and the obligations which result at the time of contracting from the nature of the contract itself, depend on the law of the place of celebration : those which result from the combination of a posterior fact with the original contract depend on the law of that place where the posterior fact occurs: the non-performance of the contract by the omission or delay of one of the parties is to be regarded as such a posterior fact, and its juridical consequences deduced accordingly: if the parties stipulate for the performance of their contract at a certain place, it is by the law of that place, as that where the omission to perform is committed, that the obligations flowing from non-performance must be ascertained and if they name no place of performance, or stipulate for several in the alternative, so as to leave the choice to the promisee, the obligations flowing from nonperformance must be ascertained by the law of the forum, whether the promisor's domicile, or any one of the stipulated places of performance, have been chosen as the forum by the plaintiff." And at p. 195, § 208. The jurisprudence which binds the contractor in the inception of his contract determines the nature and extent of the liabilities he incurs, and, if any of them are conditional, the circumstances in which they are to arise and though those circumstances may afterwards occur within another jurisdiction, they can have no other legal effect than by relation to the contract, or, therefore, 1862. SCOTT v. PILKINGTON. than was traced out for them in the beginning by the law which then bound the contractor." In Tudor's Leading Mercantile Cases, 238, also, in the notes to Don v. Lippmann (a), we find, "If by the law of the country where a contract is made, no personal obligation is created, but a right only is conferred of proceeding in rem, such contract will not be held to raise a personal obligation in the country where the contract is enforced:" for which he cites Melan v. The Duke de Fitz James (b). [Blackburn J. In that case the contract was a French contract altogether.] Trimbey v. Vignier (c) is also an authority in favour of the defendant [Blackburn J. There the note sued on was made in France, and was both payable and indorsed there.] Even if this question is to be determined by the English law, there is nothing on this record to negative the fact of privity between the parties. [Blackburn J. I do not think the record shews that there was privity.] The arbitrator has found there was; and the Court will not review his decision. In the cases cited by the other side, in which the Courts here have reviewed foreign judgments, the judgments of the foreign Courts were clearly wrong. If the English law is to prevail in this case, the parties would be bound by the award, seeing that it was made by consent; Ashton v. Poynter (d). [Blackburn J. That does not clearly appear from the record. Crompton J. Besides, if the declaration is bad, as shewing no cause of action, the plaintiff cannot recover.] (a) 5 Cl. & F. 1. (b) 1 Bos. & P. 138. COCKBURN C. J. In each of these cases the same question arises. The plaintiff sues upon a judgment obtained by him against the defendant in the Supreme Court of the county and city of New York. The defendant in his plea sets out the record of the judgment at length, and concludes with an averment that the judgment is erroneous according to the law of New York, and is liable to be reversed, and that the defendant is prosecuting proceedings in appeal which are now pending. As far as regards this part of the plea, we expressed our opinion, in the course of the argument, that though the pendency of an appeal in the foreign Court might afford ground for the equitable interposition of this Court to prevent the possible abuse of its process, and on proper terms to stay execution in the action, it could not be a bar to the action itself. A question of greater difficulty arises on the contention of the defendant, that on the face of the judgment of the Court of New York, as set forth on the record, there appears to be such error that the judgment could not be enforced here. It was not denied that, since the decision in the case of The Bank of Australasia v. Nias (a), we were bound to hold that a judgment of a foreign Court, having jurisdiction over the subject-matter, could not be questioned on the ground that the foreign Court had mistaken their own law, or had come on the evi(a) 16 Q. B. 717. PILKINGTON. 1862. SCOTT v. PILKINGTON. dence to an erroneous conclusion as to the facts; but it was contended, that in the present case the record of the judgment shewed that the Court of New York ought to have decided the case before them according to English law, and that they had either disregarded the comity of nations by refusing to apply the English law, or erred in their view of the English law; and that when either of these alternatives appeared on the face of a foreign judgment, such judgment ought not to be enforced in this country. It is not, in our view of the case, necessary to decide how far these objections would prevail if they were founded in fact; and, as the question how far a foreign judgment may be examined is one of admitted difficulty, we do not desire to express any opinion upon it further than may be necessary to decide the present case. In the present case, construing the record of the Court of New York in the way most favourable to the defendants, we find there that the cause was referred by order of the Court. We do not understand the referee to have been a private arbitrator selected by the parties, but an officer of the Court directed to ascertain the facts. We find on the record that this referee reports that one of the defendants being in New York, wrote and delivered to Messrs. Fleming & Alden a letter of credit, in the following terms: "Messrs. Fleming & Alden, 94, Wall Street, New York, New York, 16th February, 1856. Gentlemen, In reply to your communication made to me this morning, respecting your drawing exchanges upon us, I would state that you have our authority to do so, and all such exchanges drawn upon us will be duly honoured and protected. This power, however, is subject to being withdrawn at any future time. Yours very truly, Daniel Pilkington, of and for the firm of |