asking whether the party came there merely for the purpose of obtaining the divorce. (0)

In this country, the law on this subject is regulated very generally by statutes; and those differ very much, and are *606 still subject to not unfrequent change. to not unfrequent change. In the absence of statutory provision, we should incline to think, that the courts would generally hold a divorce which was valid where granted, and was obtained in good faith, valid everywhere. Perhaps it may be said, that the tendency of American law is towards a recognition of a divorce obtained in another State, for causes which would be sufficient ground for divorce in the State whose tribunal tries the question, but not otherwise. For the courts of each State go behind a cause of divorce in another State, so far as to inquire into the sufficiency of the cause; but not so

(0) There is but little uniformity among our different States, either as to statutory provisions on this subject, or the principles belonging to it as settled by adjudication, or the application of these principles to cases, or in the practice and usage of legislatures in relation to legislative divorces. Mr. Bishop, from a very full consideration of the American cases, deduces the following rules: "1. The tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicil within its territory. Nor is this proposition at all modified by the fact, that one or both of them may be temporarily residing within reach of the process of the court, or that the defendant appears and submits to the suit. This is the firmly established doctrine both in England and America." As authorities for this rule he cites Conway Beazley, 3 Hagg. Eccl. R. 631; Rex v. Lolley, Russ. & Ry. Cr. Cas. 237; Sugden e. Lolley, 2 Clark & F. 567, n.; Fellows v. Fellows, 8 N. H. 160; Hanover v. Turner, 14 Mass. 227; Barber v. Root, 10 Mass. 200: Pawling v. Bird, 13 Johns. 192; Jackson v. Jackson, 1 Johns. 424; Bradshaw v. Heath, 13 Wend. 407; Maguire v. Maguire, 7 Dana, 181; Tolen v. Tolen, 2 Blackf. 407; Freeman v. Freeman, 3 West. Law Jour. 475; White White, 5 N. H 476.-2. To entitle the court to take jurisdiction, however, it is sufficient that one of the parties be domiciled in the country; it is not necessary that both should be, nor that the citation, when the domiciled party is plaintiff, should be served personally upon the de

.

fendant, if such personal service cannot be made." Hartean v. Harteau, 14 Pick. 181; Harding v. Alden, 9 Greenl. 140; Mansfield v. McIntyre, 10 Ohio, 27; Tolen v. Tolen, 2 Blackf. 407; Hull v. Hull, 2 Strobh. Eq. 174.—“3. The place where the offence was committed, whether in the country in which the suit is brought, or a foreign country, is quite immaterial. This is the universal doctrine; it is the same in the English, Scotch, and American courts, and there is no conflict upon the point.-4. The domicil of the par. ties, at the time the offence was committed, is of no consequence; the jurisdiction depends upon their domicil at the time the proceeding is instituted, and judg ment rendered. A contrary doctrine has been maintained in New Hampshire and Pennsylvania, in which States it is held, that the tribunals of the country in which the parties were domiciled when the delic tum occurred, have alone the jurisdiction." In support of the New Hampshire and Pennsylvania rule, he cites Clark r. Clark, 8 N. H. 21; Frary v. Frary, 10 id. 61; Smith . Smith, 12 id. 80; Greenlaw v. Greenlaw, id. 200; Batchelder v. Batchel der, 14 id. 380; Dorsey v. Dorsey, 7 Watts, 349; Hollister v. Hollister, 6 Pa. 449. "5. It is immaterial to this question of jurisdiction, in what country, or under what system of divorce laws the marriage was contracted. — 6. The view we have taken is in no way controlled by that provision in the United States Constitution which prohibits the States from passing laws impairing the obligation of contracts." See Bishop on Marriage and Divorce, § 721 et seq.

far as to deny the existence of the cause, if ascertained by a competent tribunal, on a regularly conducted trial. (00) 1

1

In many of our States a woman divorced for her adultery cannot marry again whilst her husband lives. But it is also provided that she may marry, with leave of the court; and it has been said that she may have this leave on proof of good conduct since the divorce, and in the absence of any especial objection to her marrying. (op)

SECTION IX.

FOREIGN JUDGMENTS.

The principle, that questions which have been distinctly settled by litigation shall not be again litigated, has been in many cases extended to foreign judgments; and, although the whole law on this subject is not perhaps definitely settled, (p) it may be considered as the rule, both in England and in this country, that a question settled abroad, by courts of competent jurisdiction, between actual parties, after trial, will not be opened at home. (q) It will be presumed, that all the defences which the losing party has, were made, and were insufficient.

(00) See on this subject, Hood v. Hood, 11 Allen, 196; Kirrigan v. Kirrigan, 2 M'Carter, 146; Weatherbee v. Weather bee, 20 Wis. 499; Winship v. Winship, 1 Green, 107.

276.

(op) Cochrane, petitioner, 10 Allen,

(p) Smith v. Nicolls, 7 Scott, 147, 167.

(9) Henderson ". Henderson, 6 Q. B. 288; Ellis v. M'Henry, L. R. 6 C. P. 228; Smith v. Lewis, 3 Johns. 157; Emory v. Greenough, 3 Dall. 369, 372, n. In Burrows v. Jemino, Stra. 733, a foreign decree avoiding the acceptance of a bill of exchange, was held good.

1 A divorce by a State court having jurisdiction will be upheld unless set aside by the same court. Cheever v. Wilson, 9 Wall. 108; Hunt v. Hunt, 72 N. Y. 217. If a husband has a domicil in one State and the wife in another, the courts of either have jurisdiction concerning the party resident, Wright &. Wright, 24 Mich. 180; Dutcher v. Dutcher, 39 Wis. 651; but if neither party has a domicil in the State, the courts of which grant a divorce, it is void, Sewall v. Sewall, 122 Mass. 156; Hood v. State, 56 Ind. 263; Gettys v. Gettys, 3 Lea, 260; Litowich y. Litowich, 19 Kan. 451; [and a subsequent marriage on the faith of such a divorce is invalid and will not legitimate a child of the parties. Adams v. Adams, 154 Mass. 290], a residence for the mere purpose of suing for a divorce being insufficient, Whitcomb . Whitcomb, 46 Ia. 437. See Eaton v. Eaton, 122 Mass. 276. A divorce against one domiciled in another State, no process being served or notice given, is of no effect out of the State in which it is granted. Doughty v. Doughty, 1 Stewart, 581. See People v. Baker, 76 N. Y. 78. Where there is no proof that a husband, seeking a divorce in another State, went there for that purpose, where the wife is served with notice, and appears by counsel, and where she subsequently, in a release reciting the divorce, gives up every claim against him, she cannot treat his subsequent marriage as a violation of his marital obligations to her. Loud v. Loud, 129 Mass. 14. — K.

VOL. II.

46

721

But it may be said, that the foreign judgment will not be entitled to this respect, when it appears that the foreign law, or foreign process on which the foreign judgment rested, conflicts

with reason and justice; (r) or that the foreign court, in *607 deciding a question depending more or less upon the law of that other country in which the foreign judgment comes under consideration, is found to have mistaken the law of that country. (s)1 And it is obviously essential to the application of the general rule, that the foreign judgment be definite, exact, final, and conclusive, in the court and country in which it was rendered. (t) Nor can it be necessary to say, that if the foreign judgment can be shown to have been obtained by, or to be founded upon fraud it can have no force.

On the general ground stated above, a collection by a foreign. attachment or trustee process, in a foreign country, is a bar. (u)

(r) Henderson v. Henderson, 6 Q. B. 288, 298; Vallee v. Dumergue, 4 Exch. 290; Reynolds v. Fenton, 3 C. B. 187; Cowan v. Braidwood, 12 Scott, N. R. 138; Ferguson v. Mahon, 11 A. & E. 179; Alivon v. Furnival, 1 Cromp. M. & R.

277.

(s) Novelli v. Rossi, 2 B. & Ad. 757. (t) Sadler v. Robins, 1 Camp. 253; Maule. Murray, 7 T. R. 470.

(u) Holmes v. Remsen, 4 Johns. Ch. 460, 20 Johns. 229; M'Daniel v. Hughes, 3 East, 367; Philips . Hunter, 2 H. Bl. 402. In Hull v. Blake, 13 Mass. 153, in an action by the indorsee of a promissory note against the maker, the defendant pleaded in bar a judgment rendered against him by a county court in the State of Georgia, having jurisdiction of the cause as the garnishee or trustee of the promisee, the defendant having in the said cause disclosed the said notes, the action, in which said judgment was rendered, having been commenced after the actual indorsement of the note to the present plaintiff; and the plea was holden to be a good bar. And see Gould . Webb, 4 Ellis & B. 933, 30 Eng. L. & Eq. 331, which was an action of assumpsit to recover damages for the breach of a special contract, made by defendant to pay plaintiff a certain salary as European correspondent of a newspaper called the "New York Courier and Enquirer." The

declaration also contained the common counts. The defendant, among other things, pleaded as to £50, part of the plaintiff's demand in the money counts, that an action had been brought against the plaintiff in the Supreme Court of New York, for a sun exceeding £50; that process duly issued out of said court, and executed on the defendant, the said sum of £50, due and owing from defendant to plaintiff, was attached in defendant's hands according to the laws of said State, to satisfy the demand in the action; that judgment was afterwards recovered in the said court, and execution was issued to the Sheriff of New York, whereupon the defendant was obliged by the laws of the State to pay, and did pay over to the sheriff, the value of the said sum of £50, deducting the necessary expenses of the attachment. The plea further alleged that the defendant and the plaintiff were citizens of the said State, and the defendant was resident there, and subject to the jurisdiction and process of the said court; and that by the laws of the State the defendant was discharged and acquitted of the said sum of £50. Held, upon demurrer, that the plea was sufficient, and a good defence pro tanto. See also the reporter's learned note to Andrews v. Heriot, 4 Cowen, 521; Bank of North America v. Wheeler, 28 Conn. 433.

1 A defendant cannot set up as an excuse for not paying money awarded by a judg ment of a foreign tribunal having jurisdiction over him and the cause, that the judg ment proceeded on a mistake as to the English law, which was really a question of fact; and it makes no difference that the mistake appears on the face of the proceedings. Godard v. Gray, L. R. 6 Q. B. 139. — K.

So the pendency of a foreign attachment or trustee process in a foreign country may be pleaded in abatement. (v) But the *pendency of a suit in a foreign country, which began by 608 process against the person, has not the same force with a foreign attachment; and will not abate a suit at home, before the foreign suit is carried to judgment. (w) And an action brought in this country directly on a foreign judgment, for the purpose of enforcing it, may be defeated by evidence going to set that judgment aside. Indeed, according to the weight of authority, it is no more than prima facie evidence, when an action is brought to enforce it; but where an action is brought for a cause of action which was litigated abroad between the same parties, then the foreign judgment against such cause of action is a bar to the new action brought at home. (x)

(v) Embree v. Hanna, 5 Johns. 101. In this case the defendant pleaded a foreign attachment pending in Maryland for the same demand. And Kent, C. J., said: "If the defendant would have been protected under a recovery had by virtue of the attachment, and could have pleaded such recovery in bar, the same principle will support a plea in abatement of an attachment pending, and commenced prior to the present suit. The attachment of the debt in the hands of the defendant fixed it there, in favor of the attaching creditors; the defendant could not after wards lawfully pay it over to the plaintiff. The attaching creditors acquired a lien upon the debt, binding upon the defendant; and which the courts of all other governments, if they recognize such proceedings at all, cannot fail to regard. Qui prior est tempore potior est jure. In Brook v. Smith, 1 Salk. 280, Lord Holt held, that a foreign attachment before writ purchased in the suit, was pleadable in abatement. If we were to disallow a plea in abatement of the pending attachment, the defendant would be left without protection, and be obliged to pay the money twice; for we may reasonably presume, that if the priority of the attachment in Maryland be ascertained, the courts in that State would not suffer that proceeding to be defeated, by the subsequent act of the defendant going abroad, and subjecting himself to a suit and recovery here." And see Wheeler v. Raymond, 8 Cowen,

311.

(w) Bowne v. Joy, 9 Johns. 221. In this case the defendant pleaded the pendency of another action, between the same parties and for the same cause, in the Commonwealth of Massachusetts. And

upon demurrer, judgment was given for the plaintiff. The court said: "The exceptio rei judicata applies only to final definitive sentences abroad, upon the merits of the case. Goix v. Low, 1 Johns. Cas. 345. Nor is this analogous to the case of the pendency of a prior foreign attachment, at the suit of a third person; for here the defendant would not be obliged to pay the money twice, since payment at least, if not a recovery in the one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even proceed pari passu to judgment and execution, a satisfaction of either judgment might be shown upon audita querela, or otherwise, in discharge of the other." In Maule r. Murray, 7 T. R. 470, a foreign judgment was disregarded, because it was taken subject to a case which had not then been decided, in respect to the amount.

(x) This distinction is clearly stated by Eyre, C. J., in Philips v. Hunter, 2 H. Bl. 410. "It is," said he, "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 judg ments are obligatory, not as conclusive, but as matter in pais, as 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 very first essential to this, or to any efficacy of a foreign judgment, is, that the court by which it is pronounced has unquestionable jurisdiction over the case. (y) And