Hilton vs. Guyot Full Text PDF

HILTON v. GUYOT.
Syllabus.
HILTON v. GUYOT.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
HILTON v. GUYOT.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES! FOR
THE SOUTHERN DISTRICT OF NEW YORK.
Nos. 130, 34. Argued April 10, 1894. -Decided June 8, 1895.
A citizen and resident of this country, who has his principal place of busi-
ness here, but has an agent in a foreign country, and is accustomed to
purchase and store large quantities of goods there, and, in a suit brought
against him by a citizen and in a court of that country, appears and de-
fends with the sole object of preventing his property within the jurisdic-
tion, but not in the custody of that court, from being taken in satisfaction
of any judgment that may be recovered against him there, cannot, in an
action brought against him in this country upon such a judgment,
impeach it for want of jurisdiction of his person.
The admission, at the trial in a court of a foreign country, according to
its law and practice, of testimony not undnr oath and without opportunity
of cross-examination, and of documents with which the defendant had no
connection and which by our law would not be admissible against him, is
not of itself a sufficient ground for impeaching the judgment of that
court in an action brought upon It in this country.
When an action is brought in a court of this country, by a citizen of a
foreign country against one of our own citizens, to recover a sum of
money adjudged by a court of that country to be due from the defendant
to the plaintiff, and the foreign judgment appears to have been rendered
by a competent court, having jurisdiction of the cause and of the parties,
and upon due allegations and proofs, and opportunity to defend against
them, and its proceedings are according to the course of' a civilized juris-
prudence, and are stated in a clear and formal record, the judgment is
prima facie evidence, at least, of the truth of the matter adjudged; and
the judgment is conclusive upon the merits tried in the foreign court,
unless some special ground is shown for impeaching it, as by showing
that it was affected by fraud or prejudice, or that by the principles of
international law, and by the comity of our own country, it is not en-
titled to full credit and effect.
A judgment for a sum of money, rendered by a court of a foreign country,
having jurisdiction of the cause and of the parties, in a suit brought by
voy,. crx -8
OCTOBER TERM, 1894.
Statement of the Case.
one of its citizens against one of ours, is prima facie evidence only, and
not conclusive of the merits of the claim, in an action brought here upon
thes judgment, if by the law of the foreign country, as in France, judg-
ments of our own courts are not recognized as conclusive.
THE first of these two cases was an action at law, brought

December 18, 1885, in the Circuit Court of the United States
for the Southern District of New York, by Gustave Bertin
Guyot, as official liquidator of the firm of Charles Fortin &
Co., and by the surviving members of that firm, all aliens and
citizens of the Republic of France, against Henry Hilton and
William Libbey, citizens of the United States and of the State
of New York, and trading as copartners, in the cities of New
York and Paris and elsewhere, under the firm name of A. T.
Stewart & Co. The action was upon a judgment recovered
in a French court at Paris in the Republic of France by the
firm of Charles Fortin & Co., all whose members were French
citizens, against Hilton and Libbey, trading as copartners as
aforesaid, and citizens of the United States and of the State
of New York.
The complaint alleged that in 1886, and since, during the
time of all the transactions included in the judgment sued on,
Hilton and Libbey, as successors to Alexander T. Stewart and
Libbey, under the firm of A. T. Stewart & Co., carried on a
general -business as merchants in the cities of New York and
Paris and elsewhere, and maintained a regular store and place
of business at Paris; that during the same time Charles Fortin
& Co. carried on the manufacture and sale of gloves at Paris,
and the two firms had there large dealings in that business,
and controversies arose in the adjustment of accounts between
them.
The complaint further alleged that between March 1, 1879,
and December 1, 1882, five suits were brought by Fortin &
Co. against Stewart & Co. for sums alleged to be due, and
three suits by Stewart & Co. against Fortin & Co., in the
Tribunal of Commerce of the Department of the Seine, a
judicial tribunal or cpurt organized and existing under the
laws of France, sitting at Paris, and having jurisdiction of
suits and controversies between merchants or traders growing
HILTON v. GUYOT.
out of commercial dealings between them; that Stewart &

Co. appeared by their authorized attorneys in all those suits;
and that, after full hearing before an arbitrator appointed by
that court, and before the court itself, and after all the suits
had been consolidated by the court, final judgment was ren-
dered on January 20, 1883, that Fortin & Co. recover of
Stewart & Co. various sums, arising out of the dealings
between them, and amounting to 660,847 francs, with interest,
and dismissed part of Fortin & Co.'s claim.
The complaint further alleged that appeals were taken
by both parties from that judgment to the Court of Appeals
of Paris, Third Section, an appellate court of record, organized
and existing under the laws of the Republic of France, and hav-
ing jurisdiction of appeals from the final judgments of the Tri-
bunal of Commerce of the Department of the Seine, where the
amount in dispute exceeded the sum of 1500 francs; and that
the said court of appeal, by a final judgment, rendered March
19, 1884, and remaining of record in the office of its clerk at
Paris, after hearing the several parties by their counsel, and
upon full consideration of the merits, dismissed the appeal of
the defendants, confirmed the judgment of the lower court in
favor of the plaintiffs, and ordered, upon the plaintiffs' appeal,
that they recover the additional sum of 15-2,528 francs, with
182,849 francs for interest on all the claims allowed, and
12,559 francs for costs and expenses.
The complaint further alleged that Guyot had been duly
appointed, by the Tribunal of Commerce of the Department
of the Seine, official liquidator of the firm of Fortin & Co.,
with full powers, according to law and commercial usage, for
the verification and realization of its property, both real and
personal, and to collect and cause to. be executed the judg-
ments aforesaid.
The complaint further alleged that the judgment of the
Court of Appealsof Paris, and the judgment of the Tribunal
of Commerce, as modified by the judgment of the appellate
court, still remain in full force and effect; "that the said
courts respectively had jurisdiction of the subjebt-matter of
the controversies so submitted to them, and of the parties, the
OCTOBER TERM, 1894.
said defendants having intervened, by their attorneys and

counsel, and applied for affirmative relief in both courts; that
the plaintiffs have hitherto been unable to collect the said
judgments or any part thereof, by reason of the absence of
the said defendants, they having given up their business in
Paris prior to the recovery of the said judgment on appeal,
and having left no property within the jurisdiction of the
Republic of France. out of which the said judgments might
be made;" and that there are still justly due and owing from
the defendants to the plaintiffs upon those said judgments
certain sums, specified in the complaint, and amounting in all
to 1,008,783 francs in the currency of the Republic of France,
equivalent to $195,122.47.
The defendants, in their answer, set forth in detail the orig-
inal contracts and transactions in France between the parties,
and the subsequent dealings between them, modifying those
contracts; and alleged that the plaintiffs had no just claim
against the defendants, but that, on the contrary, the defend-
ants, upon a just settlement of the accounts, were entitled to
recover large sums from the plaintiffs.
The answer admitted the proceedings and judgments in the
French courts; and that the defendants gave up their business
in France before'the judgment on appeal, and had no property
within the jurisdiction of France, out of which that judgment
could be collected.
The answer further alleged that the Tribunal of Commerce
of the Department of the Seine was a tribunal whose judges
were merchants, ship captains, stockbrokers and persons
engaged in commercial pursuits, and of which Charles Fortin
had been a member until shortly before the commencement
of the litigation.
The answer further alleged that in the original suits
brought against the defendants by Fortin & Co. the citations
were left at their storehouse in Paris; that they were then
residents and citizens of the State of New York, and neither
of them at that time or within four years before had been
within, or resident or domiciled within, the jurisdiction of
that tribunal, or owed any allegiance to France; but that
HILTON v. G UYOT.
they were the owners of property situated in that country,

which would by the law of France have been liable to seizure
if they did not appear in that tribunal; and that they unwill-
ingly, and solely for the purpose of protecting that property,
authorized and caused an agent to appear for them in those
proceedings; and that the suits brought by them against
Fortin & Co. were brought for the same purpose, and in order
to make a proper defence, and to establish counter claims
arising out of the transactions between the parties, and to
compel the production and inspection of Fortin & Co.'s books;
and that they sought no other affirmative relief in that tribunal.
The answer further alleged that pending that litigation the
defendants discovered gross frauds in the accounts of Fortin
& Co.; that the arbitrator and the tribunal declined to compel
Fortin & Co. to produce their books and papers for inspection;
and that if they had been produced, the judgment would not
have been obtained against the defendants.
The answer further alleged that, without any fault or negli-
gence on the part of the defendants, there was not a full and
fair trial of the controversies before the arbitrator, in that no
witness was sworn or affirmed; in that Charles Fortin was
permitted to make, and did make, statements not under oath,
containing many falsehoods; in that the privilege of cross-
examination of Fortin and other persons who made state-
ments before the arbitrator was denied to the defendants;
and in that extracts from printed newspapers, the knowledge
of which was not brought home to the defendants, and letters
and other communications in writing between Fortin & Co.
and third persons, to which the defendants were neither privy
nor party, were received by the arbitrator; that without such
improper evidence the judgment would not, have been ob-
tained; and that the arbitrator was deceived and misled by
the false and fraudulent accounts introduced by Fortin & Co.,
and by the hearsay testimony given without the solemnity of
an oath and without cross-examination, and by the fraudulent
suppression of the books and papers.
The answer further alleged that Fortin & Co. made up their
statements and accounts falsely and fraudulently, and with
OCTOBER TERM, 1894.
intent to deceive the defendants and the arbitrator and the

said courts of France, and those courts were deceived and mis-
led therpby; that, owing to the fraudulent suppression of the
books and papers of Fortin & Co., upon the trial, and the false
statements of Fortin regarding matters involved in the contro-
versy, the arbitrator and the courts of France "were deceived
and misled in regard to the merits of the controversies pend-
ing before them and wrongfully decided against said Stewart
& Co. as hereinbefore stated; that said judgment hereinbefore
mentioned is fraudulent, and based upon false and fraudulent
accounts and statements, and is erroneous, in fact and in law,
and is void; that the trial hereinbefore mentioned was not
conducted according to the usages and practice of the common
law, and the allegations and proofs given by said Fortin &
Co., upon which said judgment is founded, would not be com-
petent or admissible in any court or tribunal of the United
States in any suit between the same parties involving the same
subject-matter; and it is contrary to natural justice and pub-
lic policy that the said judgment should be enforced against a
citizen of the United States; and that, if there had been a full
and fair trial upon the merits of the controversies so pending
before said tribunals, no judgment would have been obtained
against said Stewart & Co.
"Defendants, further answering, allege that it is contrary
to natural justice, that the 'judgment hereinbefore mentioned
should be enforced without an examination of the merits
thereof; that by the laws of the Republic of France, to wit,
article 181 [121] of the Royal Ordinance of June 15, 1629, it
is provided, namely: 'Judgments rendered, contracts or obli-
gations recognized, in foreign kingdoms and sovereignties,
for any cause whatever, shall give rise to no lien or execution
in our kingdom. Thus the contracts shall stand for simple
promises,, and notwithstanding such judgments our subjects
against whom they have been rendered may contest their
rights anew before our own judges.'
"And it is further provided by the laws of France, by
article 546 of the Code de Procedure Civile, as follows: ' Judg-
ments rendered by foreign tribunals shall be capable of execu-
HILTON v. GUYOT.
tion in France, only in the manner and in the cases set forth
by articles 2123 and 2128 of the Civil Code.'
"And it is further provided by the laws of France, by
article 2128 [2123] of the Code de Procedure Civile [Civil
Code], 'A lien cannot, in like manner, arise from judgments
rendered in any foreign country, save only as they have been
declared in force by a French tribunal, without prejudice,
however, to provisions to the, contrary, contained in public
laws and treaties;' [and by article 2128 of that code, ' Con-
tracts entered into in a foreign country cannot give a lien
upon property in France, if there are no provisions contrary
to this principle in public laws or in treaties.']
"That the construction given to said statutes by the judi-
cial tribunals of France is such that no comity is displayed
toward the judgments of tribunals of foreign countries against
the citizens of France, when sued upon in said courts of
France, and the merits of the controversies upon which the
said judgments are based are examined anew, unless a treaty
to ,the contrary effect exists between the said Republic of
France and the country in which such judgment is obtained,;
that no treaty exists between the said Republic of France and
the United States, by the terms or effect of which the judg-
ments of either country are prevented from being examined
anew upon the merits, when sued upon in the courts of the
country other than that in which it is obtained; that the tri-
bunals of the Republic of France give no force and effect,
within the jurisdiction of the said country, to the duly ren-
dered judgments of the courts of competent jurisdiction of the
United States against citizens of France after proper personal
service (if the process of said courts is made thereon in this
country."
The answer further set up, by way of counter claim, and in
detail, various matters arising out of the dealings between the
parties; and alleged that none of the plaintiffs had since 1881
been residents of the State of New York, or within the juris-
diction of that State, but the defendants were and always had,
been residents of that State.
The answer concluded by demanding that the plaintiffs'
OCTO3ER TERM, f894.
complaint be dismissed, and that the defendants have judg-

ment against them upon the counter claims, amounting to
$102,942.91.
The plaintiffs filed a replication to so much of the answer
as made counter claims, denying its allegations, and setting
up in bar thereof the judgment sued on.
The defendants, on June 22, 1888, filed a bill in equity
against the plaintiffs, setting forth the same matters as in
their answer to the action at law, and praying for a discovery,
and for an injunction against the prosecution of the action.
To that bill a plea was filed, setting up the French judgments;
and upon a hearing the bill was dismissed. 42 Fed. Rep.
249. From the decree dismissing the bill an appeal was
taken, which was the second case now before this court.
The action at law afterwards came on for trial by a jury;
and the plaintiffs put in the records of the proceedings and
judgments in the French courts; and evidence that the juris-
diction of those courts was as alleged in the complaint, and
that the practice followed and the method of examining the
witnesses were according to the French law; and also proved
the title of Gayot as liquidator.
It was admitted by both parties that, for several years prior
to 1876, the firm of Alexander T. Stewart & Co., composed of
Stewart and Libbey, conducted their business as merchants in
the city of New York, with branches. in other cities of Amer-
ica and Europe; that both partners were citizens and residents
of the city and State of New York during the entire period
mentioned in the complaint; and that in April, 1876, Stewart
died, and Hilton and Libbey formed a partnership to continue
the business under the same firm name, and became the owners
of all the property and rights of the old firm.
The defendants made numerous offers of evidence in sup-
port of all the specific allegations of fact in their answer, in-
cluding the allegations as to the law and comity of France.
The plaintiffs, in their brief filed in this court, admitted that
most of these offers "Were offers to prove matters in support
of the defences and counter claims set up by the defendants
in the cases tried before the French courts, and which or most
HILTON v. GUYOT.
of which would have been relevant and competent if the plain-

tiffs in error are not concluded by the result of, those litiga-
tions, and have now the right to try those issues, either on the
ground that the French judgments are only prima ofacie evi-
dence of the correctness of those judgments, or on the ground
that the case is within the exception of a judgment obtained
by fraud."
The defendants, in order to show that they should not be
concluded by having appeared and litigated in the suits
brought against them by the plaintiff in the French courts,
offered to prove that they were residents and citizens of the
State of New York, and neither of them had been, within four
years prior to the commencement of those suits, domiciled or
resident within the jurisdiction of those courts; that they had
a purchasing agent and a storehouse in Paris, but only as a
means or facility to aid in the transaction of their principal
business, which was in New York, and they were never other-
wise engaged in business in France; that neither of them
owed allegiance to France, but they were the owners of prop-
erty there, which would, according to the laws of France, have
been liable to seizure if they had not appeared to answer in
those suits; that they unwillingly, and solely for the purpose
of protecting their property within the jurisdiction of. the
French tribunal, authorized an agent to appear, and he did
appear in the proceedings before it; and that their motion to
compel an inspection of the plaintiffs' books, as well as the
suits brought by the defendants in France, were necessary by
way of defence or counter claim to the suits there brought by
the plaintiffs against them.
Among the matters which the defendants alleged, and of-
fered to prove, in order to show that the French judgments
were procured by fraud, were that Fortin & Co., with intent to
deceive and defraud the defendants, and the arbitrator and the
courts of France, entered in their books, and presented to the
defendants, and to the French courts, accounts, bearing upon
the transactions in controversy, which were false and fraudu-
lent, and contained excessive and fraudulent charges against
the defendants, in various particulars specified; that the
OCTOBER TERM, 1894.
defendants made due application to the Tribunal of Commerce

to compel Fortin & Co. to allow their account books and let-
ter books to be inspected by the defendants, and the applica-
tion was opposed by Fortin & Co., and denied by the tribu-
nal; that the discovery and inspection of those books were
necessary to determine the truth of the controversies between
the parties; that, before the Tribunal of Commerce, Charles
Fortin was permitted to and did give in evidence statements
not under oath, relating to the merits of the controversies
there pending; and falsely represented that a certain written
contract, made in 1873, between Stewart & Co. and Fortin &
Co., concerning their dealings was not intended by the parties
to be operative according to its terms; and, in support of
that false representation, made statements as to admissions
by Stewart in a private conversation with him; and that the
defendants could not deny those statements, because Stewart
was dead, and they were not protected from the effect of
Fortin's statements by the privilege of cross-examining him
under oath; and that the French judgments were based upon
false and fraudulent accounts presented and statements made
by Fortin & Co. before the Tribunal of Commerce during the
trial before it.
The records of the judgments of the French courts, put in
evidence by the plaintiffs, showed that all the matters now
relied on to show fraud were contested in and considered by
those courts.
The plaintiffs objected to all the evidence offered .by the
defendants, on the grounds that the matters offered to be
proved were irrelevant, immaterial, and incompetent; that,
in respect to them, the defendants were concluded by the
judgment sued on and given in evidence; and that none of
those matters, if proved, would be a defence to this action
upon that judgment.
The court declined to admit any of the evidence so offered
by the defendants, and directed a verdict for the plaintiffs in
the sum of $277,775.44, being the amount of the French judg-
ment and interest. The defendants, having duly excepted to
the rulings and direction of the court, sued out a writ of error.
HILTON v. GUYO'.
Argument for Plaintiffs in Error.
,The writ of error in the action at law and the appeal in the
suit in equity were argued together in this court January 19,
22, and 23, 1894; and, by direction of the court, were reargued
in April, i894, before a full bench.
Mr. Jame8 C. Carter and Mr. Eiku Root for plaintiffs in

error and appellants. Mr. Horace Russell was on their
briefs.
There is scarcely any doctrine of the law which, so far as
respects formal and exact statement, is in a more unreduced
and uncertain condition than that which relates to the ques-
tion what force and effect should be given by the courts of
one nation to the judgments rendered by the courts of another
nation. Very numerous decisions have been had, especially
in England, relating to this question in the various forms in
which it has arisen; but if we should undertake to learn from
the opinions of the courts in these cases what principles had
been decided, we should find ourselves in utter confusion. On
some occasions judges have said that the judgments of foreign
tribunals should be treated as being as conclusive as those of
our own; on others, that they are at most but prima facie
evidence, and are subject to examination generally to ascertain
whether justice has been done in them or not; and on others,
that whether they are open to examination or not depends
upon the circumstances under which they were pronounced.
In the learned notes to the Duchem of Kingston'8 cace, in
Smith's Leading' Cases, a very minute reference is made to
the various decisions in England and in this country, and some
attempt made to group and classify them; but the reader will
scarcely gain any assistance from them, and will, after perusal,
feel certain of one thing only, viz.: that the subject is involved
in great confusion.
The natural and obvious method of doing justice between
two contending parties is to examine their allegations, to
ascertain the facts respecting the matter in dispute, and to
declare the law arising upon these facts. Aside from reasons
of policy, this is the only course which should be pursued.
It would be quite irrelevant for one of the parties to say,
OCTOBER TERM, 1894.
"This same process has once been pursued before, and "the
result then reached ought to preclude further inquiry." To
this answer it. would be quite sufficient to reply that if justice
had been done before, it could be again, and if it had. not been
done, it ought to be done now. But it would be an intoler-
able burden and expense, both to the public and to the parties,
if the courts of the same country could be continually vexed
with trialg of the same controversy. "Interest reipubliec ut
sit finis litiumn." It is necessary that some limitation should
be imposed; and the conclusion of state policy in this country
and in England has been that the parties should be allowed
one full and fair opportunity to try their grievances, and one
alone. This. is sufficient to prevent attempts at the private
redress of injuries. Hence, the general rule applicable to
domestic judgments, that the judgment of a court of com-
petent jurisdiction is conclusive between the same parties
upon the same question in another court, whether as a plea, a
bar, or as evidence.
In reaching this conclusion, some concession is perhaps made
from strict and ahsolute justice in favor of convenience, But
justice nevertheless is, as it always must be, the overruling
consideration; and the doctrine would never have been adopted
unless the conclusion had been thought to be a safe one, that
the judgment in the first and only trial allowed would be, in
the vast majority of cases, a sound and righteous one.
This doctrine has been established among us in view of the
fact that rules and safeguards have been adopted which, if
followed, will make the judgment one which; may be en-
forced without further inquiry. It rests upon two principal
considerations: (1) That there is a reasonably safe assurance
that the former judgment, reached only after the employ-
ment of precautions carefully devised for the elimination of
error, is just and right; .and (2) that the maxim "interest
reipubliea ut 8it finis litium," which deems it a satisfaction
of the duty of government to furnish remedial justice, if one
fair opportunity has been given, has been duly considered.
Both of these considerations are wanting in the case of for-
eign judgments.
HILTON v. GUYOT.
Except in the case of England and some of her colonies,

where the national standards of justice, and also the methods
of procedure, very much resemble our own, we can have no
full assurance that a just conclusion has been reached. In
many, perhaps most, other instances, there are substantial
differences in the general conceptions of justice, manifested
sometimes by peculiar local laws, and sometimes by pecul-
iar doctrines of general jurisprudence, and sometimes by both.
And, generally, the methods deemed essential by us to the
working out of a just conclusion are not enforced. Jury
trials, exclusion of improper evidence, cross-examination of wit-
nesses, etc., are matters to which comparatively little attention
is given. And if we may believe what has often been alleged
upon good authority, in many countries there is a scandalous
amount of partiality, favor and even bribery, in the adminis-
tration of justice.
The maxim, "interest reipublicw ut sit finis litium," applies
to our own nation only. It is no part of our policy to restrict
litigation in-the world generally. In the case where a foreign
judgment is set up as conclusive, we have not as yet afforded
the one fair opportunity to litigate the question upon its orig-
inal merits, which it is the duty of governments to furnish.
The suggestion that the comity of nations requires con-
clusive force to be given to foreign judgments, inasmuch as
otherwise they will not give like force to our judgments,- is
wholly insufficient. This comity does, indeed, have a place in
this branch of the law, but by no means the force thus sug-
gested. We can never allow the assumption that Morocco,
or Turkey, or Russia, or even Germany, Italy, or France has
methods of judicial administration equal to our own, so as to
justify ourselves in making a tacit agreement that we will
enforce their judgments, if they will ours.
Our courts cannot show a comity toward England which
they would deny to Russia. If a reciprocity in the treatment
of judicial proceedings should be thought desirable, it can
be safely brought about by treaty alone, where it may be
yielded or withheld at, pleasure. We shall consider this more
at length later.
126 OCTOBER TERM, 1894.
If,therefore, foreign judgments are in any case to be held

conclusive with us, it must be for other reasons than those
upon which we hold domestic judgments conclusive. It can-
not be said that foreign judgments are ever so conclusive that
no inquiry into them can be allowed; but there are many
cases in which they may be justly held substantially conclu-
sive. The common characteristic of all of them is that the
obligation' of the State to ascertain, declare, and enforce jus-
tice according to its own conceptions of justice does not in
such cases exist, or is greatly diminished in force; and that
it is wiser, safer, and better to adopt and enforce the judg-
ment of the foreign State.
A careful examination of all the cases warrants us in assum-
ing that the question whether a foreign judgment is conclu-
sive, so as to preclude inquiry into the original merits of the
controversy, depends upon the circumstances under which it
was rendered; and that it is not thus conclusive where the
State is under its ordinary obligation to the party demanding
such inquiry to give him at least one full and fair opportu-
nity of having his cause adjudicated upon its original merits.
It is well settled that wherever a domestic judgment is inter-
posed as a bar to an original investigation, it must appear
that such judgment was the result of a proceeding so insti-
tuted and prosecuted as to show that the party sought to
be precluded from original inquiry did have, in .the suit in
which the judgment was rendered, this full and fair opportu-
nity. The American courts never can have any such complete
assurance that the party against whom a foreign judgment
has been rendered did have a full and fair opportunity for.
an adjudication of his cause, according to our conceptions
of justice; and consequently, if, in any case, a foreign judg-
ment is held conclusive, it must be because there is'not, in the
particular case, any such obligation on the part of the State
to that party to afford him even one such full and fair oppor-
tunity to have his cause adjudicated according to its concep-
tions of justice.
Indeed, the general doctrine, as stated in most cases in the
courts of the United States, goes much further than any of
HILTON v. GUYOT.
the necessities of the present controversy require; and per-

haps further than would be allowed in a precise statement of
its extent. It declares that foreign judgments are prima
facie evidence only. Only two cases are cited to the con-
trary. Lazier v. Westcott, 26 N. Y. 146; and New York,
Lake Erie & Western Railroad v. Henry, 21 Blatchford, 400.
In the first case the only question before the appellate court
was whether the record was receivable in evidence notwith
standing the technical objections. The court held it was;
but the learned Judge (Davies) who gave the opinion, then
proceeded to argue a question not raised, namely, whether
foreign judgments were conclusive, and held that they were.
This opinion is unimportant. The second was a case of pre-
cisely the same character. 'The judgment was in no respect
impeached.
A review of the English cases will show that the doctrine
in England never has been, and is not now, inconsistent
with the rule herein maintained; but that, on the contrary,
the question whether a foreign judgment should be held con-
clusive depends upon the circumstances under which it was
rendered.
First, as to the cases decided before A.D. 1800. Isquiredo
v. Forbes, 1 Doug. 6 (n.). This is cited as a decision by Lord
Hardwicke, that foreign judgments, when an action is brought
upon them, are merely prima facie evidence on behalf of the
plaintiffs.
Gage v. Bulkeley, 3 Atk. 215. On a plea of a foreign
sentence in a Commissionary Court in France relating to the
same matters for which a bill vas brought in England, Lord
Hardwicke said: "It must be overruled, for it is the most
proper case to stand for an answer, with liberty to except,
that I ever met with."
Sinclair v. Fraser (1768), 1 Doug. 5 (n.); more fully in
Morison's Dec. 4542 (House of Lords). Mrs. Fraser, of Scot-
land, succeeded to an estate in Jamaica, and, being under age,
her tutors appointed Sinclair to manage it. The estate was
sold in 1763, and Sinclair procured a judgment in the Supreme
Court of Jamaica for a balance due him upon an account cur-
OCTOBER TERM, 1894.
rent, and then brought suit in Scotland on the Jamaica judg-

ment. The defendant prayed that plaintiff should produce
the vouchers of the debts claimed, in order to introduce a
fair count. The Lord Ordinary ordered the vouchers to be
produced. The plaintiff appealed to the Lords of Sessions,
who sustained the Lord Ordinary; upon an appeal to the
House of Lords they held that the judgment of the Supreme
Court of Jamaica ought to be received as evidence primafacie
of the debt, and that it lay upon the defendant to impeach
the justice thereof, or to show the same to have been irregu-
larly or unduly obtained.
The decision went only upon the question of evidence and
the burden of proof. Morison so treats it. In his head note
he epitomizes the decision as follows: "Found that a foreign
decree bearing to have been in foro contentio, had not the
effect of rejudicatain Scotland, but entitled the party claim-
ing under it to plead that the oniu probandi rested on his
opponent."
This decision is an authority for the claim that the merits
of a foreign judgment may be attacked. The Scotch courts
did not give it the effect of even prima facie evidence. In
this, held they were in error, but in this alone.
Herbert v. Cook, Willes, 36 (n.), Lord Mansfield, in speaking
of the judgment of the Hundred Court (a domestic tribunal),
said: "Besides, it is not a judgment of a court of record, but
like a foreign judgment, and not conclusive evidence of the
debt."
Walker v. Witter (1778), 1 Doug. 1, was an action of debt
brought in Middlesex County, England, upon a judgment of
the Supreme Court of Jamaica. The question was whether
nil debet or nul tiel record was the proper plea. Lord Malis-
field held that th former was the proper plea, and said :
"Foreign judgments are a ground of action everywhere, but
they are examinable. le recollected a case of a decree on
the chancery side in one of the courts of great sessions of
Wales, from which there was an appeal to the House of Lords,
and the decree affirmed there, and Lord Hardwicke thought
himself entitled to examine into the justice of the decision of
HILTON v. GUYOT.
the House of Lords, because the original decree was in the

court of Wales, whose decisions were clearly liable to be ex-
amined. He also mentioned a case on the mortmain acts."
In this decision Justices Willes, Ashurst, and Buller, all con-
curred.
Galbraith v. Neville (A.D. 1789), 1 Doug. 6 (n.); S. 0. 5 East,
475-9 (n.): This was an action of debt on a judgment recov-
ered in the Supreme Court of Jamaica. There was a verdict
for the plaintiff. An order to show cause was made why there
should not be a new trial. The reporters are in conflict as to
the decision made upon the return of this order. Douglas has
it, that there was a new trial granted. East says- in a note ol
5 East, 475 - "It is there [Douglas 5 and 6] stated that the
rule for a new trial . . . was absoltite. But, aceording
to my note of the case, it stood over from Easter 29 to Michael-
mas 31 Geo. 3 for the court to advise upon it, when Lord
Kenyon, C. J., said that the court had considered the matter,
and were all of opinion that no new. trial ought to be granted.
He added that, without entering into the question how far a
foreign judgment was impeachable, it was at all events clear
that it was primafacie evidence of the debt,; and they were
of opinion that no evidence had been adduced to impeach
this; and, therefore, discharged the rule."
It is apparent from these reports that if East was correct,
as he probably was, in point of fact the judgment had been
attacked on its merits, and the court finally determined to
discuss the weight of evidence; and, upon this proposition it
came to the conclusion that the weight of the impeaching
evidence was not sufficient to overthrow the presumption in
favor of the judgment. In this case Justice lBuller said, and
his opinion only is quoted, because if the report is correct in
East, the court took a position side by side with him instead
of with Lord Kenyon. He says: "The doctrine which was
laid down in Sinclair v. Fraserhas always been considered as
the true line ever since; namely, that the foreign judgment
shall be prima facie evidence of the debt, and conclusive till
it be impeached by the other party. 'I have often heard Lord
Mansfield repeat what was said by Lord Hardwicke in the
VOL. CLIX- 9
OCTOBER TERM, 1894.
case alluded to from Wales, and the ground of his Lordship's

opinion was this: when you call for my assistance to carry
into effect the decision of some other tribunal, you shall not
-have it, if it appears that you are wrong, and it was upon that
account that he said he would examine into the propriety of
the decree.
"As to actions of this sort, see how far the court could
go,
if what was said in Walker v. Witter were departed from; it
was there held that a foreign judgment was only to be taken
to be right, prihna facie, that is, we will allow the same force
to a foreign judgment that we do to those of our courts not
of record; but if the matter were carried further we should
give them more credit; we should give them equal force with
the courts of record here; now a foreign judgment has never
been considered as a record."
The next case in order is .Messin v. Massareene, 4 T. R. 493
(1791). The plaintiff having obtained a judgment against the
defendant in the Chhtelet of Paris, brought an action of
assumpsit in King's Bench upon that judgment. Judgment
was allowed to go by default. Walton, counsel of plaintiff,
obtained a rule or order to show cause why it should not be
referred to a master to see what was due for principal and
interest without executing a writ of inquiry. It was con-
tended that there was no instance in which such course had
,been taken. Kenyon, C. J., said: "This is an attempt to
carry the rule further than has yet been done, and as there
is no instance of the kind I am not disposed to make a prec-
edent." Buller, J., said: "Though debt will, lie here on a
foreign judgment, the defendant may go into consideration
of it."
The judgment involved in the Duchess of Kingston's case
was a domestic judgment, and not that of a foreign court.
This brings us to the close of the century with the follow-
ing result: We have Hardwicke, Mansfield, Ashurst, Buller,
and Willes holding that a foreign judgment was examinable
upon the merits. There were dicta by Lord Kenyon to the
contrary, but overruled by his court, if East is correct.
In no case do any of the judges combat the position, that
HILTON v. GUYOT.
if it'appears that there has not been a fair trial upon the merits
the judgment has no force as a bar.
Since 1800 we have the following cases, which appear to
have been relied upon below: llender8on v. Ilenderon, 3
Hare, 100; Godard v. Gray, L. R. 6 Q. B. 139; Schibsby v.
Weetenholtz, L. R. 6 Q. B. 155; Rousillon v. Rtoasillon, 14 Ch.
D. 351; General Steam .Navigation Co. v. Guillou, 11 M. &
W. 877; Becytaet v. McCarthy, 2 B. & Ad. 951; Nouvion v.
Freeman, 3T Ch. D. 244; Tjaqford v. Blanc, 36 Ch. D. 600;
Voinet v. Barrett, 55 Law Journal (N. S.) Q. B. 39; Scott v.
-Pilkington,2 B. & S. 11 ; Bank of Australasia v. Nias, 16
Q. B. 717; iMlati4n v. Nicolls, 3 Sine. 458.
These cases, however, (To not support the decigion below.
On the contrary, a further search would have disclosed cases
which rejected it. De Cosse Brisac v. Rathbone, 6 H. & N.
301, is the only case which appears to fully sustain the conclu-
siveness of a foreign judgment.
The cases in which it has been determined in England that
the foreign judgment under consideration in them was conclu-
sive happen to have been of a character in which there was no
very good reason for allowing the judgment to be impeached;
but the courts in pronouncing their decisions, have sometimes
announced a doctrine much broader than the case before them;
and, instead of saying that the foreign judgments, in the
particularcases they were considering, were not open to im-
peachment, declared generally that such judgments were con-
clusive.
In declaring this large conclusion there has sometimes been
an attempt to formulate a principle, or principles, which would
sustain the doctrine in the eye of reason; and two principles
have been laid down as sufficient to justify the broad deter-
mination.
The first was originated by a judge of high authority, Air.
Baron Parke, in the case of Russell v. Smyth, 9 M. & W. 810,
that the judgment of a court of competent jurisdiction over
the defendant imposes a duty or obligation on the defendant
to pay the sum for which judgment is given which the courts
in England are bound to enforce. This was the principle
OCTOBER TERM, 1894.
maiiily relied upon in the court below by the counsel for the
plaintiff in that court.
The other ground upon which the doctrine has been sup-
ported in the English cases is rather one of policy, namely,
that the courts of that country should not engage in the work
of retrying cases which have once been tried in a foreign
country, for the reason that their judgments would not prob-
.ably be any more agreeable to right and justice than the
foreign judgment; which is the view which the learned judge
in the court below preferred.
But an excellent opportunity was afforded to some English
judges in 1882 to test the soundness of these principles, and
the Court of King's Bench immediately and utterly broke away
from them. Aboulof v. Oppenheimer, 10 Q. B. D. 295.
This action was brought on a Russian judgment rendered in
an action where the plaintiff charged that the defendant had
property in his possession which he refused to restore, and
asked that its restoration on payment of its value by the
defendant be compelled; and where the court decided in
favor of the plaintiff and adjudged the defendant to pay the
value of the goods. The defendant sought to impeach this
judgment by a separate defence which alleged that it was
obtained by the gross fraud of the plaintiff in representing
to the court that the goods were in the defendant's possession,
whereas they were at all times in the plaintiff's possession,
as he well knew. To this defence a demurrer was interposed,
and the argument was on this demurrer. It was not pre-
tended that the Russian court had not full jurisdiction, or that
a Russian judgment was not as conclusive as any other foreign
judgment, or that the defendant in Russia was in any manner
so deceived or imposed upon that he -had not had a perfectly
full and fair opportunity to defend himself, or that any artifice
was employed by which the court was in any manner disabled
or impeded in the discharge of its function of determining the
truth. It was the simple case of the bringing of an action
by a plaintiff who knew he had no good cause of action and
supporting it by the falsehood of himself and witnesses, one
or both.
HILTON v. GUYOT.
The entire breaking down in this case of the rule, not

founded upon the adjudications, but upon the dicta, of Eng-
lish cases, as well as of the erroneous principle upon which
that rule had been said to rest, namely, that a foreign judg-
ment created an obligation, is a prQof of the falsity of the
doctrine. In the presence of the fact, which the demurrer
seemed to present, that the Russian judgment could not be
enforced without committing a palpable wrong, the court
determined not to enforce it. The iiistake made was in not
perceiving that the doctrine had been too largely stated, and
that the true way of meeting the case was by limiting the
doctrine to its just proportions, and making a discrimination
between the cases where a foreign judgment should properly
be held conclusive, and those where it should not.
This case was followed by Vadala v. iLawes, 25 Q. B. D.
310, in which the court, referring to Abouloff v. Oppenheimer,
said: "I. cannot fritter away that judgment, and I cannot
read the judgments without seeing that they amount to this:
that if the fraud upon the foreign court consists in the fact that
the plaintiff has induced that court by fraud to come to a
wrong conclusion you can reopen the whole case, even al-
though you will have in this court to go into the very facts
which were investigated, and which were in issue in the for-
eign court. The technical objection that the issue is the same
is technically answered by the technical reply that the issue
is not the same, because in this court you have to consider
whether the foreign court has been imposed upon. That, to
my mind, is only meeting technical argument by a technical
answer, and I do not attach much importance to it; but, in
that case, the court faced the difficulty that you could not give
effect to the defence without retrying the merits. The fraud
practised on the court, or alleged to have been practised on
the court, was the misleading of the court by evidence known
by the plaintiff to be false. That was the whole fraud. The
question of fact, whether what the plaintiff had said in the
court below was or was not false, was the very question of
fact that had been adjudicated on in the foreign court; and,
notwithstanding that was so, when the court came to con-
O(YiO13ER TERM, 1894.
sider how the two rules, to which I have alluded, could be

worked together, they said: 'Well, if that foreign judgment
was obtained fraudulently, and if it is necessary, in order to
prove that fraud, to retry the merits, you are entitled to do
so according to-the law of this country.' I cannot read that
case in any other way. Lord Coleridge uses language which
I do not think is -capable of being misunderstood. In order
to understand the judgment it is well to look at the argument
for the defence- an argument conducted by Mr. Benjamin
and Mr. Cohen, and an argument which I understand to have
been accepted by the court: ' Even if the Russian courts had
inquired into the existence of the fraud and had been induced
by fabricated evidence to come to a wrong conclusion, the
circumstances under which the judgments were given could
be investigated in an English court.'"
Thus it is plain that, in the light of the above decisions, no
one can say that the present doctrine of the English courts
is that a foreign judgment is necessarily conclusive, even
where there was full jurisdiction, and a full opportunity
for trial of the very point upon which the judgment is
assailed.
The leading decisions of the state and federal courts will
be found reported in the following cases, and are not in con-
flict with our contentions: BisselI v. Briggs, 9 Mass. 462;
Wood v. Gamble, 11 Cush. 8; fall v. Williams, 6 Pick. 232;
Buttrick v. Allen, 8 Mass. 273 ; McKim v. Odom, 3 Fairf. 12
Maine 94; Williams v. Preston, 3 J. J. Marsh. 600; Tayler v.
Barron, 10 Foster (30 N. H.) 78; Aldrich v. Kihney, 4 Con-
necticut, 380; Olden v. Ballet, 2 Southard, 466; Taylor v.
Phelps, 1 ilar. & Gill, 492; Robinson v. Prescott,4 N. H. 450;
Hitchcock v. Aicken, 1 Caines, 460; Taylor v. Bryden, 8 Johns.
173; Pawling v. Bird, 13 Johns. 192; Pease v. floward, 14
Johns. 479; icElmoyle v. Cohen, 13 Pet. 312, 324; Croudson
v. Leonard, 4 Cranch, 434; Burnham v. Webster, 2 Ware, 236;
DeBrimont v. Penniman, 10 Blatchford, 436; Ianley v.
.Donoghue, 116 U. S. 1; New York, Lake Erie & Western
Railway Co. v. McHenry, 21 Blatchford, 400; Wiggins Ferry
Co. v. Chicago & Alton Railroad,11 Fed. Rep. 381.
HILTON v. GUYOT.
Argument for Plaintiffis in Error.
Thus far nothing has been said in relation to the effect of

the absolute denial by the French law to judgments of the
courts of other nations of anything in the nature of conclu-
siveness. And this denial extends to all cases whatsoever
as against French citizens. If the alleged conclusiveness of
foreign judgments is placed upon grounds of comity, how can
the doctrine apply to the judgments of the courts of a nation
which absolutely refuses reciprocity ?
This is not the case. where our courts are called upon to
enforce a statute, as in The Scotland, 105 U. S. 24, 33; but
where they are to declare what the law of comity is and
requires. If a legislature passes a law the judicial tribunals
are bound to execute it, even in favor of the citizens of a
nation which has no similar law. A legislature may dispense,
if it chooses, with the benefit of reciprocity.
The literal meaning of the word "comity" is "courtesy "
- a disposition to accommodate -but the word is seldom
employed, in juridical discussions, in that sense. No court
is at liberty to deny or to refuse a claim made before it,
according as mere courtesy or a disposition to accommodate
shall require. What comity requires is as much required in
courts of justice as anything else; and the inquiry, therefore,
what comity is, is only another mode of inquiring what the law
is in respect to the force which the laws, judicial proceedings
or other acts done in one State ought to have in another State.
Says Chief Justice Taney in Bank of Augusta v. Earle, 13
Pet. 519, 589, "It is needless to enumerate here the instances
in which, by the general practice of civilized countries, the laws
of the one will, by the comity of nations, be recognized and exe-
cuted inanother, where the rights of individuals are concerned.
The cases of contracts made in a foreign country are familiar
examples; and courts of justice have always expounded and
executed them, according to the law of the place in which
they were made; provided that law was not repugnant to the
laws or policy of their own country. The comity thus ex-
tended to other nations is no impeachment of sovereignty.
It is the voluntary act of the nation by which it is offered;
and is inadmissible when contrary to its policy, or prejudicial
OCTOBER TERM, 1894.
to' its interests. But it contributes so largely to promote

justice between individuals and to produce a friendly inter-
cdurse between the sovereignties to which they belong, that
.courts of justice have continually acted upon it as a part of
the voluntary law of nations. It is truly said in Story's
Conflict of Laws (p. 37), that 'in the silence of any positive
rule affirming or denying, or restraining the operation of
foreign laws, courts of justice presume the tacit adoption.
of them by their own government, unless they are repugnant
to its policy or prejudicial to its interests. It is not the
comity of the courts, but the comity of the nation which is
administered and ascertained in the same way and guided by
the same reasoning by which all other principles of munic-
ipal law are astcertained and guided.'"
Our main contention, as already argued, is that it was the
duty of the United States, and of each of the States, to fur-
nish to their citizens one fair and full opportunity of establish-
ing their claims by a trial upon the original merits; that a
foreign judgment could not be made the occasion for denying
this right, unless it could be said that it was certain that such
judgment was as effective as our own in securing justice to the
litigants; and that with our notions of the essential merits of
our own judicial procedure it was impossible to assent to the
view that the procedure of foreign nations, indiscriminately,
was as well calculated to secure justice as our own.
If we are right in this contention, it follows that the ques-
tion of cofuity has nothing to do with this case; because, the
giving effect here to the law of France which makes her own
judgments conclusive there, would be prejudicial to our own
policy and to the rights and interests of our own citizens.
Assuming that our contention is correct, that foreign judg-
Inents are, in general, not conclusive, but may be so under
some circumstances, there is nothing in the circumstances of
the present case making this particular judgment conclusive
upon the defendants therein. In no just sense could the ap-
pearance of Stewart & Co. in the French suit be deenied to
be a voluntary one, so as to charge them with the responsi-
bility of the litigation. If they had conceived that they
HILTON v. GUYOT.
could carry on the dry goods business in France also as well

as in America, that they could cater to the wants of the
French as well as French merchants, and thereby make
money, and had, in pursuance of such a view, gone abroad
and established a mercantile storehouse there, and, offered
to sell goods to the people of Paris, and thus to come in com-
petition with other merchants of Paris; in other words, to do
in France just the same thing that Frenchmen are doing, then,
indeed, a very different case would be presented. They would
then be doing something not required by any of the necessi-
ties of a New 'York business. The French themselves have
drawn this distinction with great clearness by refusing general
access to their courts as suitors to all foreigners who are not
actually domiciled in France. Code Civil, Art. 13, 14, 15;
Wheaton Int. Law, 192.
The defendants in error have been forced to partially abandon
this ground of international comity, because France gives no
effect to the judgments of our courts. Can they do so without
endangering the stability of their entire structure?
Reciprocal comity is the only ground upon which any
civilized nation in the world, aside from England and the
United States, gives or ever has given conclusive effect to
foreign judgments.
M. Foelix, a French author of high authority, in his Trait6
du Droit International Priv6, gives an exhaustive review
of the laws and usages .of all civilized nations in respect of
the effect given to foreign judgments. It appears, that aside
from England and the United States, there are but, two views
followed. France, Spain, Portugal, Russia, Sweden and Nor-
way, and some minor countries which derive their laws from
France, such as Belgium, the canton of Geneva, Greece and
Hayti, give no effect whatever to a foreign judgment as re8
judicata.
On the other hand, all the other countries of Europe, in-
cluding Germany, Austria, Prussia, Denmark and a multitude
of smaller States, have adopted the principle of reciprocity,
and give the effect of re8 judicata to the judgments of other
States which give a similar effect to their judgments.
OCTOBER TERM, 1894.
The principle has been adopted and enforced alike by the

decisions of the courts under the common law of Germany,
and by the statutes of the other nations mentioned, but no
nation whatever gives such effect to any foreign judgment
except upon the express ground of reciprocal treatment.
The grounds upon which the German courts proceed are
well illustrated by the reasons which this author recites as
given by the court of Cologne, in Rhenish Prussia, in deciding
that a native who has been defeated before a foreign tribunal
can try anew his rights before "his natural judges, called
upon to give execution to the foreign judgment." The prin-
cipal reasons stated are, in substance: "That a new exami-
nation into the merits of the cause can alone assure to the
subject that protection to which he has a right, and that
foreign judgments ought not to receive their execution in
Rhenish Prussia except as Prussian judgments receive equally
their execution in the country where the judgment the exe-
cution of which is in question was rendered."
Many of the countries mentioned have express statutes em-
bodying this reciprocal principle, and in all the others the
author says "the jurisprudence and the opinion of authors
have sanctioned the same principle."
The French theory is well stated in decisions of the courts
of Nimes and Bordeaux. They say: "It is considered that
it is a principle of the public law of France . . . that
the right of the tribunals of the Kingdom to order or refuse
the execution of foreign judgments draws with it that of
verifying the correctness of the judgment in matters of fact
as in matters of law: . . . that the party brought before
the tribunals to have a judgment rendered in a foreign coun-
try put into execution against him has the right to defend
himself by all the means of the law, both as to form and as
to the merits, and in the same manner as if the judgment did
not exist."
The entire weight of European authority, aside from Great
Britain, therefore, is that no State should ever enforce against
one of its own citizens the judgment of another State except
upon the ground of reciprocal advantage.
HILTON v. GUYOT.
It is to be observed that every d6cision in the United States

upon which the defendants in error rely as illustrating what
they claim to be a tendency towards a new rule, ,relates to an
English or a Canadian judgment; that is, a judgment of. a
country which does, in fact, profess to give the effect of res
judicata to our judgments.
In Lazier v. Wescott, 26 N. Y. 146, the judgment sued upon
was recovered in Canada. In Dunston v. Higgins, 138 N. Y.
70, the judgment sued on was rendered by the High Court bf
Justice of England, Queen's Bench Division. In Baker v.
Palmer, 83 Illinois, 568, the judgment sued on was Canadian.
In Fisher v. Fielding,in the Superior Court of Connecticut,
decided January. 4, 1894, the judgment sued on was English.
The fact that England and Canada- do give effect to our
judgments, added to the fact that they proceed according to
the course of the common-law and dispense the same kind of
justice in the same way as our own tribunals, may be supposed
to have influenced the minds of the courts before whom these
judgments were brought. Two at least of those courts (in the
latest case in New York, and in the Illinois case) put their
judgments upon the express ground of comity.
The Michigan case was a clear case of a voluntary appear-
ance, the defendant having apparently gone to Canada for the
express purpose of uniting with plaintiff to invoke the ju-
risdiction of the Canadian court, which could not otherwise
have attached either to him or to his property.
The Connecticut case was decided by a single judge of: a
subordinate state court within the Second Circuit, and may
be regarded as following rather than adding to, the decision
of the Circuit Court of that circuit now under review.
The general expression of judicial opinion in this country
;n recent years has included this question of reciprocity as an
important element in determining the treatment to be given
to foreign judgments.
Judge Woodbury, in-Burnham v. Webster, 1 Wood. & Min.
172 (see also 2 Ware, 236), says: "When offered and considered.
elsewhere than in their own jurisdiction they (foreign judg-
ments) are ex comitate treated with respect according to the
OCTOBER TERM, 1894.
nature of the judgment and the character of the tribunal

which rendered it and the reciprocal mode, if any, in which
that government treats our judgments."
Judge Woodruff, in De Brimont v. Penniman, 10 Blatch-
ford, 436, says: "The principle upon which foreign judgments
receive any recognition in our courts is one of comity."
Judge Coxe says, in New York, Lake Erie c. Railroad
v. MlHenry, 21 Blatchford, 400: "The rule as to foreign
judgments rests upon considerations of comity."
Mr. Justice Cooley, in McEwen v. Limmer, American Law
Register, speaking of the force and effect due Canadian judg-
ments, says: "We should certainly never have assurance to
demand from them more than we would freely and voluntarily
concede to them. True comity is equality. We should de-
mand nothing more and concede nothing less."
In the foregoing reference to the American authorities relied
upon by the defendants in error we have omitted as having
no real bearing upon the question the case of Silver Lake Bank
v. Harding, 5 Ohio, 544, where the Supreme Court of Ohio
held that the judgment of a Justice of the Peace in Pennsyl-
v ania was within the meaning of the constitutional provision,
requiring full faith and credit to be given to the judgments of
other States, and was entitled to receive effect as resjudicata;
and the case of Glass v. Blackwell, 48 Arkansas, 50, in which
a judgment of a Justice of the Peace in Tennessee received a
similar effect; and the case of Jones v. Jamison,15 La.Ann. 35,
in which a plaintiff, who had himself brought suit -against a
defendant in the island of Jamaica, where both parties were
domiciled, and obtained a judgment, was held not entitled to
sue. again here on the original demand which he had by his
own act caused to be merged in the judgment.
It may fairly be said that in America, as well as in Europe,
the general weight of opinion and of practice tends to the
result that if foreign judgments are to receive any effect at
all as res judicata, that effect should be limited to judgments
rendered by the courts of a country which gives similar effect
to the judgments of that country in which the proceeding is
brought.
HILTON v. GUYOT.
Argument for Defendants in Error.
Mr. William, G. Choate, (with whom was .Mr. William D.

Shv/pman on the brief,) for defendants in error and appellees.
I. The French courts having jurisdiction of the subject

matter and of the parties, their judgments are conclusive to
the same extent as domestic judgments, unless impeached for
want of jurisdiction or for fraud in procuring the same.
The modern rule both in England and this country, over-
ruling the earlier decisions which made a foreign judgment
primafacie evidence only of a debt, is that a foreign judgment
in personam is conclusive as to the existence of the debt es-
tablished thereby, provided the court had jurisdiction of the
subject matter and of the parties; and such judgment can be
impeached only for fraud.
It having been contended by the plaintiffs in error upon
the first argument of this case that the law is nQt settled in
favor of the conclusiveness of foreign judgments we submit
a statement of the English cases from the earliest times to
the present day.
Wier's case, 1 Rolle's Abr. 530, is the earliest case. The
plaintiff, a native of Friesland, attempted to enforce in Eng-
land, by execution, a judgment obtained in Friesland against
the defendant, an Englishman. The court said: "It is by
the law of nations that the justice of one nation will be an
aid to the justice of another nation, and the one execute the
judgment of the other; and the law of England takes notice
of this law and the Judge of Admiralty is the proper magis-
trate for this purpose, for he [sits] solely for the execution of
the civil law in this realm." The Court bf King's Bench,
on habeas corpus, refused to release the defendant, who was
taken in execution.
In Cottington's case, 2 Swanston, 326,. n where the validity
of a sentence of divorce by the Archbishop .of Turin was
involved, Wier's case was approved, the court sayiug: "In
Wytred's [ Wier's] case, 5 Jac., a judgment given in Hol-
land for debt was executed here by the Admiralty of Eng-
land upon the person who' fled from execution there, and this
was allowed upon a habeas corpus in B. R., so long as the
OCTOBER TERM, 1894.
Argument for Defendants in Eiror.
judgment there remained in force; wherefore, if the peti-

tioner can either by the laws of Savoy or of Rome repeal
that sentence at Turin, let him do so,; but till that be done
it is not possible for the Arches or the delegates to give any
other sentence than what they have given."
In Gold v. Canham, 2 Swanston, 325, the facts shown were
that the plaintiff had been a member of a partnership at
Leghorn with the defendant and one Lee, and upon its dis-
solution had received a certain sum of money and an agree-
ment from his copartners to indemnify him against claims
against the partnership, and afterwards went into a new
partnership with others, and was forced by sentence of the
court at Florence to pay custom to the Great Duke for goods
imported during the time of the former copartnership. The
defendant alleged that there were no customs due to the
Duke after seven years, and that there had been a reference
of all differences to arbitrators, before whom the matter of
the customs was not insisted upon.
But the court said: "Let the plaintiff receive back so
much of the money brought into court as may be adequate
to. the sum paid on the sentence for custom, the justice
whereof is not examinable here."
In Dupleix v. De Roven, 2 Vernon, 543 (1705), the plaintiff
filed a bill for discovery of assets and satisfaction of a judg-
ment debt obtained in France against the defendant, an ad-
ministrator. The court said : "Although the plaintiff obtained
a judgment or sentence in France, yet here the debt must be
considered as a debt by simple contract. The plaintiff can
maintain no action here, but an indebitatas aaunpdSit or an
ineumul computaaset, so that the statute of limitations is
pleadable in this case."
In Burrows v. Jemino (cited as Jamereau, Jamineau, and
Jemi'neau) (1726), 2 Stra. '733; S. C. 2 Eq. Cas. Ab. 476, a suit
had been brought at Leghorn against the plaintiff as the accep-
tor of a bill of exchange drawn there, and the judges of the
court being of the opinion that the acceptance was not valid
by the law of the country, so adjudged. Both parties after-
wards happening to come to England, the plaintiff in the
HILTON v. GUYOT.
suit at Leghorn brought his action here, but the defendant in

that suit brought his bill in chancery for an injunction, and
Lord Chancellor King held that " the court at Leghorn having
a general and proper jurisdiction of the cause, their judgment
was binding and conclusive with the court here," and granted
a perpetual injunction.
In -Boucher v. Lawson (1734), Cas. temp., Ilardwicke, 85,
the. plaintiff brought an action on the case against the defend-
ant as owner of a ship for his failure to deliver Portuguese
gold, which defendant undertook to carry from Portugal to
London, and there deliver to plaintiff. On the trial a special
verdict was found, which determined among other things that
it was unlawful according to the laws of Portugal to export
gold. The counsel for defendant contended that if the courts
of England held the particular determination of courts abroad
to be conclusive in England, they should have more regard for
the general laws of the foreign country declaring anything an
unlawful trade, and not give any countenance to actions brought
upon illicit commerce, citing the case of Burr'ows v. Jami-
neau. Lord Hardwicke on this point said: "The reason gone
upon by King, Lord Chancellor, in the case' of Burrows v.
Jamineau, was certainly right, and where any court, whether
foreign or domestic, that has the proper jurisdiction of the cases
makes a determination, it is conclusive to all other courts." He
then criticised the decision of the chancellor, on the ground that
the party could have set up the defence in the suit at law, and
that on that ground the bill should have been dismissed. He
then refers to the case of Cottington's appeal in the time of
Charles II. as supporting the same conclusion.
In Otway v. Ramsay, 2 Stra. 1090 (1737), in the King's
Bench, it was held that debt does not lie in Ireland on an
English judgment. The case is more fully reported in a note
to 4 B. & C. 414.
In Gage v. Buikeley, 3 Atk. 215 (1744). This was a plea
of a foreign sentence in a Commissary Court in France relat-
ing to the same matters, for which the bill mvims brought here.
Lord 11ardwicke said: " It must be oyerruled, for it is the
most proper case to stand for an answer with liberty to ex:
OCTOBER TERM, 1894.
cept that I ever met with; and the more so as it is the sen-
tence in a commissary court only, which is of a political
nature, in order to determine disputes which might arise in
relation to French actions."
This case is referred to by Lord Chancellor Camden in
Bayley v. Edwards, 3 Swanston, 703 (1192), as "going a great
way to show the true effect of foreign sentences in this coun-
try." Yet it seems only to rule that a defence of a foreign
judgment should be taken by answer and not by plea, and it
is evident that Lord Hardwicke doubted whether the court
was a competent court.
In Roach v. Garvan, 1 .Ves. Sen. 157 (1748), before Lord
Iardwicke, an infant, a ward of the court, having in France
intermarried with the son, of her guardian at that time, the
husband petitioned for a decree for cohabitation with his wife,
who was kept from him by her mother, who had lately been
appointed her guardian. Lord Hardwicke: "Where a mar-
riage is in fact had, or in a contract ib prcwenti or in a suit for
restitution of conjugal rights, a sentence in the Ecclesiastical
Court, (unless there be collusion which will overturn the
whole,) will be conclusive and bind all; but not if given in a
collateral suit, as for a criminal action, for it will only bind
the rights of the marriage in the three cases above. This was
in a criminal court in the Ch~telet in Paris, and it is strange
if they have no other jurisdiction in France for marriage than
a criminal court."
Lord Hardwicke seems to have doubted in this case also
whether the court could be considered as a competent court
whose judgment would be conclusive and held binding in
England.
Up to this time in the reported decisions, while the courts
refused to give to the record of a-foreign judgment the full
effect of a record of the superior courts of Westminster, there
seems to have been no diversity in the opinions of the judges
that a foreign judgment-of a competent court having jurisdic-
tion over the party and the subject matter was to be held
binding and conclusive.
The case of Sinclair v. _Fraser (1771), reported in 1 Doug.
HILTON v. GUYOT.
5, note, appears to be the earliest case containing a dictum

to the effect that a foreign judgment is only prima facie
evidence of a debt. The actual question there involved was
not to what extent a foreign judgment could be redxamined
on the merits, but whether it could be made the basis of
an action without proof of the original consideration. It is
entirely consistent with the decision, and with anything said
by the judges, that the court might have held that where the
parties to a foreign suit had both been within the jurisdiction,
and the court had jurisdiction of the subject matter, and the
cause was tried on its merits, it would have been held bind-
ing upon the parties although the defendant offered to try
it over again.
This idea is suggested by Lord Campbell, in his opinion in
the case of Bank of Australasia v. Nias, 16 Q. B, 717 (1851);
and the suggestion is supported by the very words of the dec-
laration of the House of Lords, above cited, that it lies upon
the defendant to impeach the justice thereof, or to show the
same to have been irregularly or unduly obtained.
The case of Sinclair v. Fraserwas followed in 1775 by the
case of Grawford v. Witten, Lofft, 154; in which it was de-
termined that although the original cause is not considered as
merged in a foreign judgment the foreign judgment could be
sued on alone in assumpeit, as implying a promise.
The Duchess of Kingston's case, 11 Hargrave's St. Trials,
198, hardly touches upon this controversy.
Walker v. Witter (1778), 1 Doug. 1, was debt on a judg-
ment of the Supreme Court of Jamaica. The pleas were nil
debet and nul tiel record. The real question in the case was
whether debt would lie on a foreign judgment. On the plea
of nil debet the plaintiff took issue and a verdict was found
for him. On the plea of nul tiel record, the plaintiff replied
that there was such a record and made. profert of what pur-
ported to be a record of the court in Jamaica. The decision,
in which all the judges of the King's Bench concurred, was
that debt would lie upon a foreign judgment because it was
for a sum certain. The dicta of Lord Mansfield in this case
seem to have been substantially the liasis for the notion that
VOL. CLIX-1O
OCTOBER TERM, 1894.
afterwards prevailed, that a foreign j'udgment was only prima

facie evidence of a debt, even to the extent of authorizing in
all cases a retrial of the merits.
The case of Ilerbert v. Cook (1782), Willes, 36, note, also
turns upon a question of pleading. It contains a dictum by
Lord Mansfield that the judgment of a court not of record in
"England, 'like a foreign judgment,' is not conclusive evi-
dence of the debt." But neither in the case of Sinclair v.
Fraser, or Walker v. Witter, or Herbert v. Cook was the
question involved of what effect is to be given to a judgment
of a foreign court or of an inferior court of England, having
jurisdiction of the cause and of the parties.
In Galbraith v. -eville (1789), 1 Doug. 6, note, Lord
Kenyon reviews and dissents from the conclusions of Lord
Mansfield as reported in the case of Walker v. Witter. He
says: "I cannot help entertaining serious doubts concerning
the doctrine laid down in Walker v. Witter that foreign
judgments are not binding upon the parties here."
It is true that Mr. Justice Buller dissents from these views
and insists that the result of the authorities is, that a foreign
judgment has no more credit than is given to every species
of written agreement: that is, that it should be considered
as good till it is impeached.
In a note on this case, 5 East, 475, it is said that the case
stood over from the Easter Term, 29th, to Mich. Term, 31st
George III , for the court to advise upon it, when Lord
Kenyon said that the court had considered the matter and
were of opinion that no new trial ought to be granted. He
added that without entering into the question how far a
foreign judgment was impeachable it was at all events clear
that it was primafacie evidence of the debt, and they were
of opinion that no evidence had been, adduced to impeach
this, and therefore discharged the rule.
In Messin v. Massareene (1791), 4 T. R. 493' the plaintiff
having obtained a judgment against the defendant in the
Chtelet of Paris, brought an action of assumpsit in England
on that judgment, in which the defendant suffered judgment
to go by default. A motion to refer it to the Master to com-
HILTON v. GUYOT.
pute the amount due and for final judgment without exe-
cuting a writ of enquiry was denied.
In Bayley v. Edwards (1793), 3 Swanston, 703, before the
Privy Council, the point being whether a suit pending in
Jamaica could be. pleaded in abatement of a suit in England,
Lord Camden said: "As to the inconvenience, considering the
difficulties of administering justice between parties occa-
sionally living under the separate jurisdiction, I think the
parties ought to be amenable to every court possible, . .
and we must thentendeavor to correct the mischiefs of these
double suits as much as we can, by allowing in each country
the benefit of all the other proceedings in the other part of
the King's dominions."
In Phillips v. Ihunter (1795), 2 H. Bl. 402, the question
before the court being to whom money collected under a
judgment recovered in Pennsylvania belonged, and not at
all involving the question of the effect of the judgment as
binding upon the parties or otherwise, Chief Justice Eyre
said: "It is in one way only that the sentence or judgment of
th. 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 sub-
mitted 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 judgments
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 or promises, and
for that purpose we receive evidence of what the law of the
foreign state is, and whether .the judgment is warranted by
that law."
In Buchanan v. Rucker (1807), 1 Campbell, 63, which was
assumpsit on a judgment of a court in the island of Tobago,
where the objection was that the judgment was obtained by
default, the defendant never having been resident in the
island, and the only service of the declaration made by the
nailing a copy of the same on the court-house door in accord-
OCTOBER TERM, 1894.
ance with the alleged law of the island, Lord Ellenborough, in

answer to the suggestion that the presumption was in favor of
a foreign judgment as well as of a: judgment obtained in one
of the courts of England, said: "That may be so if the judg-
ment appears on the face of it consistent with reason and
justice; but it is contrary to the first principles of reason and
justice that either in civil or criminal proceedings a man
should be condemned before he is heard."
In the same case on a motion for a new trial, 9 East, 192,
an affidavit having been produced showing a law of the colony
that in case of a defendant absent from the island, the declara-
tion could be so served, Lord Ellenborough said: "There is
no foundation for this motion, even upon the terms of the law
disclosed in the affidavit."
In flall v. Odber (1809), 11 East, 118, the plaintiff sued
upon a balance due upon a foreign judgment and also upon
the original cause of action in assumysit. The judgment was
the judgment of the province of Lower Canada. The court in
directing the judgment ordered a stay of proceedings by execu-
tion for six months, in order to enable the defendant to prove
a counterclaim, if he had any. The six months had elapsed
before the commencement of this action, and no proceedings
had been taken by the defendant for the proof of his counter-
claim in the foreign court. The court held that both counts
were good, the one upon the judgment and the other upon the
balance of accounts.
That the general expressions used in this case as to the judg-
ment being only evidence of the debt were not intended by
the court as determining how far a foreign judgment upon the
merits would conclude a party appears plainly from the case of
Tarleton v. Tarleton (1815), 4 M. & S. 20, before the same
court. The case was covenant on a bond by the defendant and
one D. B., conditioned to indemnify the plaintiff against the
debt of the copartnership which had existed between the three.
The breach alleged was that certain credito's of the firm had
recovered judgment against the defendants in' the island of
(renada for their claim, which plaintiff had been obliged to
satisfy on execution in Grenada. On the trial the defendant
HILTON v. GUYOT.
proposed to show that the proceedings in the court of Grenada

were erroneous, inasmuch as the account was incorrectly stated.
His Lordship, however, ruled that the defendant could not go
into that question, inasmuchi as the foreign court being a court
of competent jurisdiction, what was done in it must, for the
purpose of this action, be taken to be rightly done and the
plaintiff had a verdict.
A motion for a new trial, made on the ground that the pro-
ceedings in the foreign court were not conclusive evidence,
that it was primafacie only, and the defendant might impeach
the justice of it, was denied.
In Cavan v. Stewart (1816), 1 Starkie, 525, the judgment of
a Jamaica court, whereby the balance due from the defendant
to the plaintiffs had been attached and sequestered at the suit
of a creditor, was offered in evidence as a bar. The papers re-
cited that the plaintiffs were absentees. It was held that as
there was a default in the case, and no proof of notice, the
judgment was not a bar. Lord Ellenborough : "It is'per-
fectly clear on every principle of justice that you must either
prove that the party was summoned or at least that he was
once on, the island."
And in the case of Power v. Tlitmore (1815), 4 M. & S.
141, Lord Ellenborough says : "By the comity which is paid
by us to the judgment of other courts abroad of competent
jurisdiction, we give a full and binding effect to such judg-
ments so far as they profess to bind the persons and property
immediately before them in judgment, and to which their
adjudications properly relate."
In Kennedy v. Earl of Cassilis (1818), 2 Swanston, 313,
Lord Eldon says: "The court is bound to presume that for-
eign tribunals will proceed regularly and administer the justice
of the case."
Arnot v. Redfern (1825), 2 C. & P. 88, was a suit on a
Scotch judgment which gave interest from 1811 to date on a
contract governed by English law, by which interest was not
allowed. Best, 0. J. Judgment given excluding this interest.
On appeal, affirmed.
Harris v. Saunders (1825), 4 B. & C. 411: Held that an
OCTOBER TERM, 189&.
Irish judgment since the Union is not a record in England,

and remedy is by as8ump8it. So held on authority of Otway
v. Ramsay, sutpra.
Douglas v. Forrest (1828), 4 Bing. 686. Best, C. J., dis-
cusses the necessity for service of summons upon the party
objecting to a foreign judgment in order to bind him, and
gives effect to a Scotch judgment, though without actual
notice, in a proceeding similar to our foreign attachment,
where the debtor was a native-born Scotchman, and left
property in Scotland. He approves the views expressed by
Lord Ellenborough in Buchanan v. Rucker and Cavan v.
Stewart.
Guinness v. Carroll(1830), 1 B. & Ad. 459, touches on the
effect of a foreign judgment (Irish), but decides nothing on
the subject.
-Martinv. Nicolls (1830), 3 Sim. 458, before Vice-Chancellor
Shadwell, appears to be the first case in which the question
of the binding effect of a foreign judgment not impeachable
for want of proper jurisdiction over the party, or for fraud
in obtaining the same, was passed upon. The bill was filed,
representing in effect that an action had been brought by
the defendant in Antigua, and that a judgment had been
recovered, and that afterwards an action was commenced in
the Common Pleas in England upon that judgment against
the plaintiff in this suit in equity, and the object of the bill
was to obtain a discovery and a commission to examine wit-
nesses in Antigua. The Vice-Chancellor said: "If. I were to
allow this bill to stand, I should be in effect saying that the
judgment 6btained in Antigua may be overruled by the Com-
mon Pleas. I must, therefore, allow this demurrer."
Novelli v. Rossi (1831), 2 B. & Ad. 757, has been supposed
to be an authority that a foreign judgment could be impeached
for a clear mistake in applying the law of England, where the
case was or should have been governed by the English law.
Since the case of Godard v. Gray, hereafter referred to, it
cannot be considered authority for that position.
Becquet v. McCarthy (1831), 2 B. & Ad. 951, was an
action in the King's Bench, on a judgment obtained by the
HILTON v. GUYOT.
plaintiff against the defendant's testator in the island of

,Mauritius. The trial was before Lord Tenterden, C. J. The
record showed that the action was between the plaintiff and
one McCarthy, defendant's testator, at present residing at
the Cape of Good Hope, cited at the domicil of the substitute
of the King's Attorney General in the tribunals and courts
of this colony, defendant, and the Paymaster General of Her
Majesty's forces also defendant.
It also appeared by the minute of the court that the de-
fendants in the suit had been cited to answer touching a fire
which was alleged to have broken out in the paymaster's
office and consumed a house and other property of the plain-
tiff, and damages were claimed in accordance with the law of
the colony. Defendant's testator having made (lefault, a sec-
ond citation issued and the defendant did not appear. The
tribunal then went .on and determined the case in favor of
the plaintiff. It was objected that the judgment was invalid
by the law of the colony itself, there being no allegation
of negligence. Also that it appeared by the judgment that
McCarthy was absent from the colony at the time of the pro-
ceedings against him, and it was claimed that it was contrary
to justice that a man should be condemned unheard.
Lord Tenterden, C. J., said, that the island belonged to Eng-
land, but the French law prevailed there. To the point that
negligence was essential by that law, he said: "The law of
France being the law of the colony, the French court was
much more competent toldecide questions arising upon that
law than we can be. We ought to see very plainly that
that court has decided against the French law before we say
that their judgment is erroneous upon such ground. .
Another objection, and not an unimportant one, was that the
testator, when the proceedings were instituted against him,
was absent from the island, and it was urged that it was con-
trary to the principles of natural justice that any one should
be condemned unheard and in his absence. Proof, however,
was given that by law of the colony, in the case of a person
formerly resident in the island absenting himself and not
leaving any attorney upon whom process in the suit might be
OCTOBER TERM, 1894.
served, the procurator general or his deputy was bound to take

care of the interests of such absent party. . . . It must
be presumed that he would do whatever was necessary on the
discharge of that public duty; and we cannot take upon our-
selves to say that the law is so contrary to natural justice as
to render the judgment void."
In Alivon v. Furnival (1834), 10. M. & R. 277, 293; S. C.
4 Tyrwh. 751, the Court of Exchequer enforced the sentence
of a French tribunal of commerce in favor of syndics of a
bankrupt against a party who had owed the bankrupt a
certain sum in an action of debt. Parke, B. : "We must
assume the judgment of the court to be according to the French
law, at least until the contrary was distinctly proved, according
to the principle laid down in Becquet v. McCarthy, 2 B. &
Ad.;" and as to the rule of damages allowed, he said: "And
it is impossible for us to say that this principle of adjusting
the damages is wrong as being contrary to natural justice, and
there is no evidence that it is not conformable to the law of
France."
In Houlditch v. Donegal (1834), 8 Bligh, N. S. 301; 5. C.
2 C1. & Fin. 470, sub norm. Iloulditch v: Donegall before the
House of Lords, upon an appeal from the Chancellor in Ire-
land upon a bill filed in the Irish court to enforce against the
defendant decrees of the English chancery court, the defend-
ant answered that the decrees were irregular and erroneous,
and ought not to be taken as binding on him. The bill was
dismissed, not on the merits, but on the ground that the bill
would not lie in the court of chancery in Ireland for the pur-
pose of carrying out and enforcing the decrees of the chancery
court in England. While this case may be taken to represent
the individual opinion at that time of Lord Brougham, it does
not represent the opinion of the House of Lords, and the man-
ner in which he disposed of the question seems to indicate that
he had some misgivings that after all he might be wrong, or
at least that the subject required a more careful examination
than he gave it at that time.
Don v. Lippmann (1837), 5 C1. & Fin. 1, was an appeal
from the Scotch court. Lord Brougham's opinion is evi-
HIITON v. GUYOT.
dence that he still entertained the same opinion expressed by

him in Htoulditch v. Donegal, that a foreign judgment is only
primafacie evidence of a debt. But the case before the court
was clearly one in which, upon admitted principles with re-
gard to the necessity'of the service of process upon a party or
other proper notice of the suit, the judgment was a nullity out-
side of the country where it was rendered.
In Price v. Dewhuret (1837), 8 Sim. 279, Sir L. Shadwell,
Vice-Chancellor, held that the decisi6n of what was called
the Executor's Court of Dealing in the island of St. Croix,
consisting of the executors themselves, as to the disposition of
personal property, would not be recognized as valid, as against
an adverse party who was entitled to property by the law of
England where the last will of the testator bad been admitted
to probate. This was affirmed (1838), 8 Sim. 617.
In Fergutsonv. Mahon (1839), 11 Ad. & El. 179, in an action
on an Irish judgment, the plea was, that the defendant was
not arrested or served with process, nor had notice of process,
nor appeared. The replication was that the defendant had
had notice of certain process, to wit: a writ of summons issu-
ing out of the court, etc. Demurrer to replication. The de-
murrer was overruled. On the plea judgment was given the
defendant.
In Smith v. Nicolls (1839), 5 Bing. N. C. 208; S. C. 7 Scott,
147, it was held that a foreign judgment was void where
defendant was not summoned., was neither present in the
country, nor had an agent there. The judges review the
cases and state it as a matter of some doubt whether a for-
eign judgment is conclusive or e~xaminable on the merits.
Russell v. Smyth (1842), 9 M. and W. 810, was an action
to recover on a judgment for costs rendered in a Scotch court.
Abinger, C. B.: "Foreign judgments are enforced in these
courts, because the parties against whom they are pronounced
are bound in duty to satisfy them."
Williams v. Jones (1843), 13 M. & W. 628. The action
was on a judgment of a county court. Parke, B.: "The prin-
ciple on which this action is founded is that where a court of
competent jurisdiction has adjudicated a certain sum to be due
OCTOBER TERM, 1894.
from one person to another, a legal obligation arises to pay

that sum on which an action of debt to enforce the judgment
may be maintained. It is in this way that the judgments of
foreign and colonial courts are supported and enforced, and
the same rule applies to inferior courts in this country, and
applies whether they be courts of record or not."
These two cases, and especially the views taken by Baron
Parke in them, are referred to in the later English cases as
establishing the principle on which foreign judgments are
held to be conclusive on the merits.
General Steam Navigation Co.. v. Guillou (1843), 11 li. &
W. 877. Plaintiff sued in case for injuries to plaintiff's ship
by a ship of the defendant, under charge of the defendant's
servants. It was pleaded that the company to which the de-
fendant's ship belonged, and of which defendant was a mem-
ber, brought suit in a court of France against the plaintiffs
for negligence of their officers and crew, whereby she was
sunk; that the plaintiffs appeared and defended themselves
against the claim of the company, and insisted that the colli-
sion proceeded from the negligence of the defendant's servants,
and that the court adjudged that the plaintiff's ship did, by
the negligence of the plaintiff's officers and crew, run on board
of and sink the ship of the company, and condemned the
plaintiff in damages. The plea was held bad in form, so that
it was unnecessary to determine whether it was bad in sub-
stance. Parke, B.: "But it is not to be understood that we
feel much doubt on that question. They (the pleas). do not
state that the plaintiffs were French subjects, or resident, or
even present in France when the suit began, so as to be bound
by reason of allegiance or domicil, or temporary presence, by a
decision of a French court; and they did not elect the tribunal
and sue as plaintiffs; in any of which cases the determination
might have possibly bound them. They were mere strangers
who put forward the negligence of the defendant as an answer,
in an adverse suit in a foreign country, whose laws they were
under no obligation to obey."
In Henderson v. ttenderson (1843), 3 Hare, 100, the next of
kin of an intestate filed their bill in equity in the Supreme
HILTON v. GUYOT.
Court of Newfoundland against the plaintiff, and obtained a de-

cree for a certain sum due them and afterwards brought their
actions in England against him on the decree. The plaintiff
thereupon brought this bill in England against the next of kin
for an accounting concerning not only the same matters that
had been passed upon in the colonial court, but other matters
which might have been litigated in that suit, and alleged
irregularities and errors in the proceedings in that court, and
asked that the next of kin be restrained by injunction from
proceeding with their action. The defendants demurred to
the bill for want of equity. Vice-Chancellor Wigram held
that the suit in Newfoundland was between the same parties
as those in the present suit; that most of the matters concern-
ing which an accounting was prayed for had been passed upon
in that suit, and as to the remainder they were such as might
have been litigated in it, and were therefore res judicata also.
Henderson v. Ilender8on (1843), 6 Q. B. 288, was an appeal
by the plaintiff in the preceding suit from a judgment in the
suit brought by the next of kin to enforce the Newfoundland
decree. One of the points raised on the appeal was whether
a foreign decree in equity could be enforced, the objection
being that a decree for payment of money by a court of equity
is not a declaration that the plaintiff has any legal right to
the money, but only that upon certain views peculiar to the
court the payment ought to be made.
The Court, per Lord Denman, C. J., after examining the
authorities, was of the opinion that there was no doubt but
that such a decree might be enforced where the chancery suit
terminates in the simple result bf ascertaining a clear balance
and an unconditional decree that an individual must pay, but
that there might be instances where such a decree would be
enforceable nowhere but in courts of equity, because they in-
yolve collateral and provisional matters to which a court of
law could give no effect.
Another point made on the appeal was that the defendants
in the suit in chancery in Newfoundland had not had justice
done them. Lord Denman, C. J.: "This is never to be pre-
sumed; but the contrary principle holds unless we see in the
OCTOBER TERM, 1894.
clearest light that the foreign law or at least some part of the
proceedings of the foreign court are repugnant to natural jus-
tice; and this has been often made the subject of inquiry in
our courts. But it steers clear of an inquiry into the merits
of the case upon the facts found; for whatever constituted a
defence in that court ought to have been pleaded there," etc.
In Vallee v. Dumergue (1849), 4 Exch. 290, plaintiff obtained
a judgment in France against the defendant. The defendant
claimed he had never resided or been in France nor subject to
its laws, nor served with any process or notice whatever, nor
did he have any notice or knowledge of any proceeding, nor
did he appear. He claimed that the circumstances under which
the judgment was obtained were contrary to natural justice.
But it appeared that the defendant was a shareholder in a
certain company in France; that by the law of France it was
necessary for the defendant to elect a domicil in France if he
resided abroad, at which the directors of the company might
notify him of all proceedings relative to the company or him
self as a shareholder; that by the law of France all legal pro-
ceedings affecting any party having his real domicil out of
the kingdom, left for him at such elected domicil, were as
valid as if left at his real domicil; that the defendant made
election of domicil at Paris, and gave notice thereof to the
plaintiff; and the plaintiff caused the summons to be left at
the elected domicil in Paris. The court, by Alderson, B.,
held that whether the defendant had had actual notice of the
proceedings was unimportant, as he had waived that by be-
coming a shareholder and thereby agreeing to accept a partic-
ular form of notification less than actual notice.
Notwithstanding the seeming approval by Chief Justice
Wilde in Bank of Australasiav. IHarding(1850), 9 C. B. 661,
of Lord Brougham's views as expressed in Houlditch v. Don-
egal, supra, the case is referred to in subsequent cases as sus-
taining the rule of the conclusiveness of foreign judgments
upon the merits, and indeed, it was held that the declaration
which set forth the colonial judgment as establishing his
liability was good.
In the Bank qf Australasia v. Nias (1851), 16 Q. B. 717,
HILTON v. GUYOT.
which was assumpsit on. the same judgment of .the court of

.New South Wales, it was held that the judgment was binding
on a member of the company sued in England. The question
of the conclusiveness of the foreign judgment was fully argued.
In Reimers v. Druce (1856), 23 Beavan, 145, a bill by a for-
eign creditor to enforce a judgment obtained in the kingdom
of Hanover was dismissed on the ground of laches, but the
Master of the Rolls, Sir John Romilly, discussed at some length
the extent to-which a foreign judgment is impeachable when
sought to be enforced in- England, and after a review of the
principal cases, and especially of the cases of the Bank of A us-
tralasiav. Nias and Ricardo v. Garcias,said it could be im-
peached for error apparent on the face of it, sufficient to show
that such judgment ought not to have been pronounced, but
that this error cannot be shown by extrinsic evidence.
It was held in Skeehy v. Professional Life Ass. Co. (1857),
3 C. B. (N. S.) 597, affirming 2 C. B. (N. S.) 211, that a
foreign judgment could be enforced notwithstanding an irreg-
ularity in the service of process, where the defendant volun-
tarily appeared during the argument. Erle, J., said: "I have
always understood that the only ground upon which our courts
can refuse to give effect to a foreign judgment is that the
whole foundation of the proceeding in the foreign court fails."
In De Cosse Brissac v. Rathbone (1861), 6 H. & N. 301, the
suit was on a French judgment. The plea that it was errone-
ous on the merits. This plea was held bad. Wilde, B.:
"Ricardo v. Garciasis an authority that the judgment of a
foreign court of competent jurisdiction cannot be impeached
upon the merits." Martin, B.: *"We are all of opinion that this
question is so concluded by the authorities that it is impossible
for us to decide contrary to them, and the case must go to the
Court of Errors. I may observe that the question does not come
,before me for the first time. For many years I have had oc-
casion to consider it." In this case also it was ruled that a
plea to the effect that a defendant appeared in the French
action and defended the same for the purpose of protecting
his property in France, which was subject to sequestration in
case of a judgment, was bad.
OCTOBER TERM, 1894.
Scott v. Pilkington (1862), 2 B. & S. 11. Suit on a New

York judgment. Held, that the fact that an appeal is pend-
ing is not a bar, but may be a ground for delay; and that a
plea that the court mistook the law of the forum was bad.
Simpson v. Fogo (1862), 1 Johns. & Hem. 18, on demurrer,
and 1 Hem. & Mill. 195, on motion for a decree. In chan-
cery. A ship being subject to a valid mortgage in England,
went to Lbuisiana and was there attached by a creditor of the
mortgagor. The mortgagee intervened and proved his rights,
which were superior by the law of England, but they were
disregarded, and the ship was sold and the proceeds paid to
the attaching creditor. The purchaser having brought the
ship to England, it was decided that the mortgagee might
seize and sell her, and that the Louisiana decree was not bind-
ing, because founded on a perverse disregard of the English
law, though a case properly subject to that law by the comity
of nations.
In Crawley v. Isaacs, 16 Law Times, (N. S.) 529 (1867), it
is said that the repugnancy to natural justice, spoken of in
the cases, refers not to the decision on the merits of the case,
but to matters of procedure.
The syllabus of G(odard v. Gray, L. R. 6 Q. B. 139 (1870),
gives a clear idea of the points decided..
"It is no bar to an action, on a judgment ia peronam of a
foreign court having jurisdiction over the pafties aiid cause,
that the foreign tribunal has put a construction erroneous ac-
cording to English law on an English contract.
"Declaration on a judgment of a French court having juris-
diction in the matter. Plea setting out the judgment, from
which it appeared that the suit was for the breach by the ship-
owner of a charter party made in England, in which was a
clause: ' Penalty for the non-performance of this agreement,
estimated amount of freight'; and that the court had treated
this clause (contrary to the English law) as fixing the amount
of damages recoverable, and had given judgment accordingly
for the amount of freight. The proceedings showed that both
parties had appeared and been heard before the judgment was
pronounced, but no objection was taken by the defendant to
HILTON v. GUYOT.
the mode of assessing the damages. Held, by Blackburn and

Mellor, JJ., that the defendant could not set up, as an excuse
for not paying money awarded by a judgment of a foreign
tribunal having jurisdiction over him and the cause, that the
judgment proceeded on a mistake as to the English law, which
was really a question of fact; and that it made no difference
that the mistake appeared on the face of the proceedings.
By Hannen, J., that the French court could only be informed
of foreign law by evidence, and the defendant, having neg-
lected to bring the English law to the knowledge of the French
court, could not impeach the judgment given against him on
the ground of error as to that law." See also Castrique v.
Jmrie, L. R. 4 I. L. 414 (1870).
In Rousillon v. Rousillon, 14 Ch. D. 351 (1880), Fry, J.,
undertakes to state with precision the circumstances under
which the courts of England will hold the judgment of the
foreign tribunal conclusive, viz.: 1. Where the defendant is
a subject of a foreign country in which the judgment has been
obtained. 2. Where he was resident in the foreign country
when the action began. 3. Where the defendant in the char-
acter of plaintiff has selected the forum in which he is after-
wards sued. 4. Where he has voluntarily appeared. 5. Where
he has contracted to submit himself to the forum in which the
judgment was obtained, and possibly, 6. Where the defendant
has real estate within the foreign jurisdiction, in respect to
which the cause of action arose whilst he was within that
jurisdiction.
The Court of Queen's Bench, in Schibsby v. Westenholtz,
L. R. 6 Q. B. 155 (1870), which follows and reinforces the
decision in Godard v. Gray, also said: "Now, on this, we
think some things are quite clear on principle. If the defend-
ants had been at the time of the judgments subjects of the
country whose judgment is sought to be enforced against
them, we think that its laws would have bound them. Again,
if the defendants had been at the time when the suit was
commenced resident in the country, so as to have the benefit
of its laws protecting them, or, as it is sometimes expressed,
owing temporary allegiance to that country, we think that its
OCTOBER TERM, 1894.
laws would have bound them. Again, we think it

clear, upon principle, that if a person selected, as plaintiff, the
tribunal of a foreign country as the one in which he would
sue, he could not afterwards say that the judgment of that
tribunal was not binding on him." Per Blackburn, J.
In Meina . v. Petrococchino (1872), L. R. 4 P. C. 144,
Sir Robert Phillimore says: "If the Greek Consular Tribu-
nal was a competent court, having jurisdiction over the ship
and cargo, then the sentence of that court was not open to
examination by the court at Malta, but would be properly
enforced by it, or in the clear language of Lord Ellenborough
in the case of Power v. Whitmore, 4 M. & S. 150, 'By the
comity which is paid by us to the judgments of other courts
abroad of competent jurisdiction, we give a full and binding
effect to such judgments, so far as they profess to bind the
persons and property immediately before them in judgment,
and to which their adjudications properly relate.'"
In-Traford v. Blanc, 36 Ch. D. 600, it is said: "The princi-
ple on which Bank of Australasia v. Nias was decided ap-
pears to be that the courts of this country do not sit to hear
appeals from foreign tribunals, and that 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 ought to be followed. Neither do the courts of this
country sit to rehear causes which have been tried abroad.
Every system of jurisprudence provides a mode by which
a judgment may be reviewed, and the cause reheard on the
discovery of fresh evidence, and to. the regular -mode so pro-
vided recourse ought to be had, as in fact has been unsuc-
cessfully done by the defendant in the present case."
The cases of Abouloff v. Oppenheimer, 10 Q. B. D. 295
(1882), and Vadala v. Lawes, 25 Q. B. D. 310 (1890), do not
impair the authority of the. above decisions. They apply to
foreign judgments the principle of English law, that it is a
defence that the plaintiff procured the former. judgment by a
fraud practised on the court in the trial, a defence which, by
the decisive authority of this court, is not open to a domestic
Ju.1 ment here.
HILTON v. GUYOT.
Counsel also cited and commented on the following cases

decided in British colonial courts on the same subject: Buk-
shee v. Samunt (1871), Appellate Civil, Sutherland's Weekly
Reporter, 500; Mammi v. Ialandan (1874), Appellate, 8
Madras H. C. R. 14; Pillai v. Saib (1880), Appellate Civil,
Indian Law Reports, 2 Madras Series, 337; She vakram v.
Kdlidds (1882), Appellate Civil, Indian Law Reports, 6 Bom-
bay Series, 292; Mudaliar v. Pallai (1879), Appellate Civil,
Indian Law Reports, 2 Madras Series, 400; Parry v. Pillai
(1880), Appellate Civil, Indian Law Reports, 2 Madras Series,
407; Maubourquet v. Wyse_ (1867), 1 Irish C. L. 471; -Bowler v.
Vail(1877), 27 U. Canada C. P..417; S. C. 4 Canada App. 267;
Woodruff v. -IcLennan,14 Ontario App. 242; Victorian &c.
Photo. Litho. Co. v. Davis (1890), 11 New South Wales, 257;
Star Kidney Pad Co. v. McCarthy (1886), 26 New Brunswick,
107; British Linen Co. v. McEwan (1892), 8 Manitoba (Law),
99; Corse v. Moon (1890), 22 Nova Scotia (10 Russ. & Gel.),
191; Denoon v. Northway (1883), 5 Sup. Ct. Circular, Ceylon,
133; Blaine v. Col. Mar. Ass. Co. (1882), 1 Juta (Cape of Good
Hope), 402; Jones v. Reed (1890), 16 Victoria, 372.
Counsel also cited, with comments, the following American
cases: Buttrick v. Allen, 8 Mass. 273; Rankin v.1 Goddard,
54 Maine, 28; S. C. 55 Maine, 389; Thurber v. Blackbourne,
1 N. H; 242; Konitzky v. lMeyer, 49 N. Y. 571; Lazier v.
Westcott, 26 N. Y. 146; Taylor v. Bryden, 8. Johns. 173;
ianley v. Donoghue, 116 U. S. 1; Christmnas v. Russell, 5
Wall. 290, 304; McMullen v. JRichie, 41 Fed. Rep. 502;
De Brimont v. Penniman, 10 Blatchford, 437; Silver Lake
Bank v. ttarding,5 Ohio, 545; Glass v. Blackwell, 48 Arkan-
sas, 50; Fisher v. Fielding,Connecticut, (1894); H7opkins v.
Lee, 6 Wheat. 109; Penningtonv. Gibson, 16 How. 65..
II. The fraud which will vitiate a judgment is fraud ex-
trinsic to the matter tried in the cause, and fraud upon the
party or upon the court whereby judgment was improperly
procured to be entered; not a fraud committed in the matter
tried or examinable in the action. United States v. Throck-
morton, 98 U. S. 64; Vance v. Burbank, 101 U. S. 514;
Zofat v. United States, 112 U. S. 24; United States v. AMinor.
VOL. MLIX-11
-OCTOBER TERM, 1894.
Opinion of the Court.
114 U. S. 233; Jttarshall v. Hlolmes, 141 U. S. 589; Greene v.

Greene, 2 Gray, 361; Ross v. Wood, 70 N. Y. 8; Ward v.
Southfeld, 102 N. Y. 287; Sanders v. Soutter, 126 N. Y. 193;
Price V. Dewhurst,. 8 Sim. 279; Ochsenbein v. Paelier,L. R.
8 Ch. 695.
III. The point made by the plantiffs in error that
France
does not enforce judgments of foreign states against its own
subjects is wholly immaterial.
While the efficacy of foreign judgments rests partly on
principles of comity, or friendly dealing between nations at
peace, or was formerly held to do so, the modern doctrine of
their conclusi eness rests on the same general ground of pub-
lic policy which makes domestic judgments equally conclusive,
viz.: that the public interest is that there be an end of litiga-
tion -that one fair chance to prove his cause to be just, in a
competent court, is all that the good of society or the general
principles of justice demand or permit a litigant to enjoy.
Nor should the well-grounded and consistent principles of
our law be marred by introducing under the cover of "comity "
the principle of "retaliation." That principle has been repu-
diated as a ground of decision by this court where the law of
this country is positive and established. The Scotland, 105
U. S. 24. See also Baker v. Palmer, 83 Illinois, 568; Cross
v. United States Trust Co., 131 N. Y. 330; Dammert v. Osborn,
140 N. Y. 30.
.Mr. George A. Black, by leave, filed a brief on behalf of

Bailey and others, to which Mr. Choate and lMr. Shipman
filed suggestions in reply.
M R. JrsTIcE GRAY, after stating- the case, delivered, the

opinion of the court.
These two cases, the one at law and the other in equity, of
Hilton v. Guyot, and the case of Ritchie v. McMullen which has
been under advisement at the same time, present important
questions relating to the force and effect of foreign judgments,
not hitherto adjudicated by this court, which have been argued
HILTON v. GUYOT.
with great learning and ability, and which require for their
satisfactory determination a full consideration of the author-
ities. To avoid confusion in indicating the parties, it will be
convenient first to take the case at law of Hilton v. Guyot.
International law, in its widest and most comprehensive
sense -including not only questions of right between nations,
governed by what has been appropriately called the law of
nations; but also questions arising under what is usually
called private international law, or the conflict of laws, and
concerning the rights of persons within the territory and
dominion of one nation, by reason of acts, private or public,
done within the dominions of another nation -is part of our
law, and must be ascertained and administered by the courts
of justice, as often as such questions are presented in litigation
between man and man, duly submitted to their determination.
The most certain guide, no doubt, for the decision of such
questions is a treaty or a statute of this country. But when,
as is the case here, there is no written law upon the subject,
the duty still rests upon the judicial tribunals of ascertaining
and declaring what the law is, whenever it becomes necessary
to do so, in order to determine the rights of parties to suits
regularly brought before them. In doing this, the courts
must obtain such aid ap they can from judicial decisions,
from the works of jurists and commentators, and from the
acts and usages of civilized nations. '1Fremont v. United States,
17 How. 542, 557; The Scotia, 14 Wall. 170, 188;'Respub-
lica v. De .Longehamps, 1 Dall. 111, 116; Moultrie v. Hunt,
23 N. Y. 394, 396.
No law has any effect, of its own force, beyond the limits
of the sovereignty from which its authority is derived. The
extent to which the law of -one nation, as put in force within
its territory, whether by executive order, by legislative act,
or by judicial decree, shall be allowed to operate within the
dominion of another nation, depends upon what our greatest
jurists have been content to call "the comity of nations."
Although the phrase has been often criticised, no satisfac-
tory substitute has been suggested.
"Comity," in the legal sense, is neither a matter of absolute
OCTOBER TERM, 1894.
obligation, on the one hand, nor of mere courtesy and good

will, upon the other. But it is the recognition which one
nation allows within its territory to the legislative, executive
or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its
own citizens or of other persons who are under the protection
of its laws.
Mr. Justice Story, in his Commentaries on the Conflict of
Laws, treating of the question in what department of the gov-
ernment of any State, in the absence of any clear declaration
of the sovereign will, resides the authority to determine how
far the laws of a foreign State shall have effect, and observing
that this differs in different States, according to the organ-
ization of the departments of the government of each, says-:
"In England and America, the courts of justice have hitherto
exercised the same authority in the most ample manner: and
the legislatures have in no instance (it is believed) in either
country interfered to provide any positive regulations. The
common law of both countries has been expanded to meet the
exigencies of the times as they have arisen; and so far as the
practice of nations, or the jus gentiumprivatum, has been sup-
posed to furnish any general principle, it has been followed
out." Story's Conflict of Laws, §§ 23, 24.
Afterwards, speaking of the difficulty of applying the posi-
tive rules laid down by the Continental jurists, he says that
"there is indeed great truth" in these remarks of Mr. Justice
Porter, speaking for the Supreme Court of Louisiana: "They
have attempted to *go too far, to define and fix that which
cannot, in the nature of things, be defined and fixed. They
seem to have forgotten that they wrote on a question which
touched the comity of nations, and 'that that comity is, and
ever must be, uncertain; that it must necessarily depend on
a variety of circumstan ces which cannot be reduced to any
certain rule; that no nation will suffer the laws of another
to interfere With her own to the injury of her citizdns; that
whether they do or not must depend on the condition of the
country in which the foreign law is sought to be enforced, the
particular nature of her legislation, her policy, and the char-
HILTON Q). GUYOT.
acter of her institutions; that in the conflict of laws it must

often be a matter of doubt which should prevail; and that,
whenever a doubt does exist, the court, which decides, will
prefer the laws of its own country to that of the stranger."
Story's Confliot of Laws, § 28; Saul v. Hiis Creditors, (1827)
5 Martin (N. S.) 569, 596.
Again: Mr. Justice Story says: "It has been thought by
some jurists that the term comity is not sufficiently expressive
of the obligation of nations to give effect to foreign laws when
they are not prejudicial to their own rights and interests. And
it has been suggested that the doctrine rests on a deeper founda-
tion ; that it is not so muchca matter of comity or courtesy, as
a matter of paramount moral duty. Now, assuming that such
a moral duty does exist, it is clearly one of imperfect obliga-
tion, like that of beneficence, humanity and charity. Every
nation must be the final judge for itself, not only of the nature
and extent of the duty, but of the occasions on which its exer-
cise may be justly demanded." And; after further discussion
of the matter, he concludes: "There is then not only no im-
propriety in the use of the phrase 'comity of nations,' but it
is the most appropriate phrase to express the true foundation
and extent of the obligation of the laws of one nation within
the territories of another." Story's Conflict of Laws, §§ 33-38.
Chief Justice Taney, likewise, speaking for this court while
Mr. Justice Story was a member of it, and largely adopting
his words, said : "It is needless to enumerate here the instances
in which, by the general practice of civilized countries, the
laws of the one will, by the comity of nations, be recognized
and executed in another, where the rights of individuals are
concerned." "The comity thus extended to other nations is
no impeachment of sovereignty. It is the voluntary act of
the nation by which it is offered, and is inadmissible when con-
trary to its policy, or prejudicial to its interests. But it con-
tributes so largely to promote justice between individuals,
and to produce a friendly intercourse between the sovereign-
ties to which they belong, that courts of. justice have
continually acted upon it, as a part of the voluntary law of
nations." "It is not the comity of the courts, but the 'comity
OCTOBER TERM, 1894.
of the nation, which is administered and ascertained in the

same way, and guided by the same reasoning, by which all
other principles of municipal law are ascertained and guided."
Bank of Augusta v. Earle, (1839) 13 Pet. 519, 589; Story's
Conflict of Laws, § 38.
Mr. Wheaton says: "All the effect, which foreign laws
can have in the territory of a State, depends absolutely on
the express or tacit consent of that State." "The express
consent of a State, to the application of foreign laws within
its territory, is given by acts passed by its legislative authority,
or by treaties concluded with other States. Its tacit consent is
manifested by the decisions of its judicial and administrative
authorities, as well as by the writings of its publicists. There
is no obligation, recognized by legislators, public authorities,
and publicists, to regard foreign laws; but their application
is admitted, only from considerations of utility and the mutual
convenience of States - ex comitate, ob reci]rocamutilitatem."
Wheaton's International Law, (8th ed.) §§ 78, 79. "No sovqr-
eign 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. 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." § 147.
Chancellor Kent says: "The effect to be given to foreign
judgments is altogether a matter of comity, in cases where
it is not regulated by treaty." 2 Kent Com. (6th ed.) 120.
In order to appreciate the weight of the various authorities
cited at the bar, it is important to distinguish different kinds
of judgments. "Every foreign judgment, of whatever nature,
in order to be entitled to any effect, must have been rendered
HILTON v. GUYOT. 167
by a court having jurisdiction of the cause, and upon regular

proceedings and due notice. In alluding to different kinds
of judgments, therefore, such jurisdiction, proceedings and
notice will be assumed. It will also be assumed that they
are untaintedby fraud, the effect of which will be considered
later.
A judgment in rem, adjudicating the title to a ship or other
movable property within the custody of the court, is treated
as valid everywhere. As said by Chief Justice Marshall:
"The sentence of a competent court, proceeding in rem, is
-conclusive with respect to the thing itself, and operates as -an.
absolute change of the property. By such sentence, the right
of the former owner is lost, and a complete title given to the
person who claims under the decree. No court of cotrdinate
jurisdiction can examine the sentence. The question, there-
fore, respecting its conformity to general or municipal law
can never arise, for no cotrdinate tribunal is capable, of making
the inquiry." Williams v. Armroyd, 7 Cranch,.423, 432. The
most common illustrations of this are decrees of courts of
admiralty and prize, which proceed upon principles of inter-
national law. Oroudson v. Leonard, 4 Cranch, 434; Williams
v. Armroyd, above cited; Ludlow v. Dale, 1 Johns. Cas. 16.
But the same rule applies to judgments in rem under munici-
pal law. Hudson v. Guestier, 4 Cranch, 293 ; Ennis v. Smith,
14 How. 400, 430; Wisconsin v. Pelican Ins. Co., 127 U. S.
265, 291; Scott v. McAieal, 154 U. S. 34, 46; Castrique v.
Jmrie, L. R. 4 11. L. 414; Monroe v. Douglas, 4 Sandf. Ch.
126.
A judgment affecting the status of persons, such as a decree
confirming or dissolving a marriage, is recognized as valid in
every country, unless contrary to the policy of its own law.
Cottington's case, 2 Swanston, 326 ; Roach v. Garvan, 1 Ves.
Sen. 157; Harvey v. Farnie,8 App. Cas. 43; Cheely v. Clay-
ton, 110 U. S. 701. It was of a foreign sentence of divorce,
that Lord Chancellor Nottingham, in the House of Lords, in
1688, in Cottington's case, above cited, said: "It is against the
law of nations not to give credit to the judgments and sen-
tences of foreign countries, till they be reversed by the law,
OCTQBER TERM, 1894
and according to the form, of those countries wherein they

were given. For what right hath one kingdom to reverse the
judgment of another? And how can we refuse to let a sen-
tence take place till it be reversed ? And what confusion
would follow in Christendom, if they should serve us so
abroad, and give no credit to our sentences."
Other judgments, not strictly inrein, under which a person
has been compelled to pay money, are so far conclusive that
the justice of the payment cannot be impeached in another
country, so as to compel him to pay it again. For instance, a
judgment in foreign attachment is conclusive, as between the
parties, of the right to the property or money attached. Story
on Conflict of Laws, (2d ed.) § 592 a. And if, on the dissolu-
tion of a partnership, one partner promises to indemnify the
other against the debts of the partnership, a judgment for
such a debt, under which the latter has been compelled to pay
it, is conclusive evidence of the debt in a suit by him to
recover the amount upon the promise of indemnity. It was
of such a judgment, and in such a suit, that Lord Nottingham
said: "Let the plaintiff receive back so much of the money
brought into court as may be adequate to the sum paid on the
sentence for custom, the justice whereof is not examinable
here." Gold v. Canham, (1689) 2 Swanston, 325; S. C. 1
Cas. in Ch.311. See also Tarleton v. Tarleton, 4 M. & S.20;
Konitzky v. .Meyer, 49 N. Y. 571.
Other foreign judgments which have been held conclusive
of the matter adjudged were judgments discharging obliga-
tions contracted in the foreign country between citizens or
residents thereof. Story's Conflict of Laws, §§ 330-341 ; May
v. Breed, 7 Cush. 15. Such was the case, cited at the bar, of
Burroughs or Burrows v. Jamineau or Jemino, Mosely, 1;
S.C. 2 Stra. 733; 2 Eq. Cas. Ab. 525, pl. 7; 112 Vin. Ab. 87,
pl. 9; Sel. Cas. in Ch. 69 ; 1 Dickens, 48.
In that case, bills of exchange, drawn in London, were nego-
tiated, indorsed and accepted at Leghorn in Italy, by the law
of which an acceptance became void if the drawer failed .with-
out leaving effects in the acceptor's hands. The acceptor, ac-
cordingly, having received advices that the drawer had failed
HILTON v. GUYOT.
before the acceptances, brought a suit at Leghorn against the

last indorsees, to be discharged of his acceptances, paid the
money into court and obtained a sentence there, by which
the acceptances were vacated as against those indorsees an-d
all the indorsers and negotiators of the bills, and the money
deposited was returned to him. Being afterwards sued at law
in England by subsequent holders of the bills, he applied to
the Court of Chancery and obtained a perpetual injunction.
Lord Chancellor King, as reported by Strange, " was clearly
of opinion that this cause was to be determined according to
the local laws of the place where the bill was negotiated, and
the plaintiff's acceptance of the bill having been vacated and
declared void by a court of competent jurisdiction, he thought
that sentence was conclusive and bound the Court of Chancery
here;" as reported in Viner, that "the court at Leghorn had
jurisdiction of the thing, and of the persons;" and, as reported
by Mosely, that, though "the last indorsees had the sole prop-
erty of the bills, and were therefore made the only parties to
the suit at Leghorn, yet the sentence made the acceptance
void against the now defendants and all others." It is doubt-
ful, at the least, whether such a sentence was entitled to the
effect given to it by Lord Chancellor King. See Novelli v.
Rosi, 2 B. & Ad. 757; Castriquev. Ifrie, L. R. 4 1-. L. 414,
435; 2 Smith's Lead. Cas. (2d ed.) 450.
The'remark of Lord Hard wicke, arguendo, as Chief Justice,
in Boucher v. Lawson, (1734) that "the reason gone upon by
Lord Chancellor King, in the case of Burroughs v. Janineau,
was certainly right, that where any court, whether foreign or
domestic, that has the proper jurisdiction of the case, makes
a determination, it is conclusive to all other courts," evidently
had reference, as the context shows, to judgments of a court
having jurisdiction of. the thing; and did not touch the effect
of an executory judgment for a debt. Cas. temp. Hardw. 85,
89; S. C. Cunningham, 144, 148.
In former times, foreign decrees in admiralty inpersonam
were executed, even by imprisonment of the defendant, by
the Court of Admiralty in England, upon letters rogatorv
from the foreign sovereign, without a new suit. Its right to
OCTOBER TERM, 1894.
do so was recognized by the Court of King's Bench in 1607 in

a case of habeas corpus, cited by the plaintiffs, and reported
as follows: "If a man of Frizeland sues an Englishman in
Frizeland before the Governor there, and there recovers
against him a certain sum; upon which the Englishman, not
having sufficient to satisfy it, comes into England, upon which
the Governor sends his letters missive into England, omne8
magietratusinfra regnum Anglice rogans, to make execution
of the said judgment. The Judge of the Admiralty may
execute this judgment by imprisonment of the party, and he
shall not be delivered by the common law; for this is by the
law of nations, that the justice of one nation should be aiding
to the justice of another nation, and for one to execute the
judgment of the other; and the law of England takes notice
of this law, and the Judge of the Admiralty is the proper
magistrate for this purpose; for he only hath the execution
of the civil law within the realm. Pasch. 5 Jac. B. R., Ifeir'8
case, resolved upon an habeas corpus, and remanded." 1 Rol.
Ab. 530, pl. 12; 6 Vin. Ab. 512, pL 12. But the only ques-
tion there raised or decided was of the power of the English
Court of Admiralty, and not of the conclusiveness of the
foreign sentence; and in later times the mode of enforcing
a foreign decree in admiralty is by a new libel. See The
City of Mecca, 5 P. D. 28, and 6 P. D. 106.
The extraterritorial effect of judgments in personam,at
,law or in equity, may differ, according to the parties to the
cause. A judgment of that kind between two citizens or
residents of the country, and thereby subject to the juris-
diction, in which it is rendered, may be held conclusive as
between them everywhere. So, if a foreigner invokes the
jurisdiction by bringing an action against a citizen, both may
be held bound by a judgmqnt in favor of either. And if a
citizen sues a foreigner, and judgment is rendered in favor
of the latter,, both may be held equally bound. Ricardo v..
Garcias, 12 Cl. & Fin. 368; The Grieqfwald, Swabey, 430,
435; Barber v. Lamb, 8 C. B. (N. S.) 95; Lea v. Deakin, 11
Bissell, 23.
The effect to which a judgment, purely executory, rendered
HILTON v. GUYOT.
in favor of a citizen or resident of the country, in a suit there

brought by him against a foreigner, may be entitled in an
action thereon against the latter in his own country - as is
the case now before us -presents a more difficult question.
upon which there has been some diversity of opinion.
Early in the last century, it was settled in England that
a foreign judgment on a debt was considered not, like a judg-
ment of a domestic court of record, as a record or a specialty,
a lawful consideration for which was conclusively presumed;
but as a simple contract only.
This clearly appears in Dupleix v. De Roven, (1706) where
one of two merchants in France recovered a judgment there
against the other for a sum of money, which, not being
paid, he brought a suit in chancery in England for a discov-
ery of assets and satisfaction of the debt; and the defendant
pleaded the statute of limitations of six years, and prevailed,
Lord Keeper Cowper saying: "Although the plaintiff obtained
ajudgment or sentence in France, yet here the debt must be
considered as a debt by simple contract. -The plaintiff can
maintain no action here, but an indebitatu8 a88UmPSit or an
insimul computassent; so that the statute of limitations is
pleadable in this case." 2 Vernon, 540.
Several opinions of Lord Hardwicke define and illustrate
the effect of foreign judgments, when sued on or pleaded in
England.
In Otway v. Ramsay, (1736) in the Kifig's Bench, Lord
Hardwicke treated it as Worthy of consideration, "what credit
is to be given by one court to the courts of another nation,
proceeding both by the same rules of law," and said, "It is
very desirable, in such case, that the judgment given in one
kingdom should be considered as res judiodta in another."
But it was held that debt would not lie in Ireland upon
an English judgment, because "Ireland must be considered
as a provincial kingdom, part of the dominions of the Crown
of England, but no part of the realm," and an action of debt
on a judgment was local. 4 B. & C. 414-416, note; S. C.
14 Vin. Ab. 569, pl. 5; 2 Stra. 1090.
A decision of Lord Hardwicke as Chancellor was mentioned
OCTOBER TERM, 1894.
in Walker v. Witter, (1778) 1 Doug. '1, 6, by Lord Mansfield,

who said: "He recollected a case of a decree on the chancery
side in one of the courts of great sessions in Wales, from
which there was an appeal to the House of Lords, and the
decree affirmed there; afterwards, a bill was filed in the Court
of Chancery, on the foundation of the decree so affirmed, and
Lord Hardwicke thought himself entitled to examine into the
justice of the decision of the House of Lords, because the
driginal decree was in the court of Wales, whose decisions
.were clearly liable to be examined." And in Galbraith v.
Neville, (1789) 1 Doug. 6, note, Mr. Justice Buller said: "I
have often heard Lord Mansfield repeat what was said by
Lord Hardwicke in the case alluded to from Wales; and the
ground of his lordship's opinion was this: when you call for
my assistance to carry into effect the decision of some other
tribunal, you shall not have it, if it appears that you are in
the wrong; and it was on that account, that he said, he
would examine into the propriety of the decree." The case
before Lord Hard wicke, mentioned by Lord Mansfield, would
appear (notwithstanding the doubt of its authenticity ex-
pressed by Lord Kenyon in Galbraith v. Neville) to have been
a suit to recover a legacy, briefly reported, with references to
Lord Hardwicke's note book, and to the original record, as
Morgan v. Morgan, (1737-8) West. Ch. 181, 597; S. C. 1 Atk.
53, 408.
In Gage v. Bulkeley, (1744) briefly reported in 3 Atk. 215,
cited by the plaintiffs, a plea of a foreign sentence in a com-
missary court in France was overruled by Lord Hardwicke,
saying, "It is the most proper case to stand for an answer,
with liberty to except, that I ever met with." His reasons
are fully stated in two other reports of the case. According
'to one of them, at the opening of the argument he said:
"Can a sentence or judgment pronounced by a foreign juris-
diction be pleaded in this kingdom to a demand for the same
thing in any court of justice here? I always thought it
could not, because every sentence, having its authority from
the sovereign in whose dominions it is given, cannot bind the
jurisdiction of foreign courts, who own not the same authority,
HILTON v. GUYOT.
and have a different sovereign, and are only bound by judicial

sentence given under the same sovereign power by which they
themselves act." " But though a foreign sentence cannot be
used by way of plea in the courts here, yet it may be taken
advantage of in the way of evidence." "You cannot in this
kingdom maintain debt upon judgment obtained for money
in a foreign jurisdiction; but you may an assumpsit in nature
of debt upon a simple contract, and give the judgment in evi-
dence, and have a verdict. So that the distinction seems to
be, where such foreign sentence is used as a plea to bind the
courts here as a judgment, and when it is made use of in evi-
dence as binding the justice of the case only." And after-
wards, in giving his decision, he said: "The first question is,
Whether the subject-matter of the plea is good? The second
is, Whether it is Well pleaded? The first question depends
upon this, Whether the sentence or judgment of a foreign
court can be used by way of plea in a court of justice in
England? And no authority, either at law or in equity, has
been produced to shew that it may be pleaded: and therefore
I shall be very cautious how I establish such a precedent."
" It is true, such sentence is an evidence, which may affect the
right of this demand, when the cause comes to be heard; but
if it is no plea in a court of law to bind their jurisdiction, I
do not see why it should be so here." Ridgeway temp. llardw.
263, 264, 2'70, 273. A similar report of his judgment is in 2
Ves. Sen. (Belt's Supplt.) 409, 410.
In Roach v. Garvan, (1748) where an infant ward of the
Court of Chancery had been married in France by her guar-
dian to his son before a French court, and the son "petitioned
for a decree for cohabitation with his wife, and to have some
money out of the bank," Lord Hardwicke said, as to the va-
lidity of the marriage: "It has been argued to be valid from
being established by the sentence of a court in France, having
proper jurisdiction. And it is true, that if so, it is conclusive,
whether in a foreign court or not, from the law of nations in
such cases; otherwise the rights of mankind would be very
precarious and uncertain. But the question is, whether this
is a proper sentence, in a proper cause, and between proper
114 OCTOBER TERM, 1894.
parties? Of which it is impossible to judge, without looking

farther into the proceedings; this being rather the execution
of the.sentence, than the sentence itself." And after observ-
ing upon the competency of the French tribunal, and point-
ing out that restitution of conjugal rights was within the
jurisdiction of the ecclesiastical court, and not of the Court of
Chancery, he added, "Much less will I order any money out
of the bank to be given him." 1 Ves. Sen. 157, 159. He
thus clearly recognized the difference between admitting the
effect of a foreign judgment as adjudicating the status of per-
sons, and executing a foreign judgment by enforcing a claim
for money.
These decisions of LQrd Hardwicke demonstrate that in his
opinion, whenever the question was of giving effect to a foreign
judgment for money, in a suit in England between the parties,
it did not have the weight of a domestic judgment, and could
not be considered as a bar, or as conclusive, but only as evidence
of the same weight as a simple contract, and the propriety
and justice of the judgment might be examined.
In Sinclairv. Fraser, (1771) the appellant, having as attorney
in Jamaica made large advances for his constituent in Scotland,
and having been superseded in:office, brought an action before
the Supreme Court of Jamaica, and, after appearance, obtained
judgment against him; and afterwards brought an action
against him in Scotland upon that judgment. The Court of
Session determined that the plaintiff vas bound to prove before
it the ground, nature and extent of the demand on which the
judgment in Jamaica was obtained; and therefore gave judg-
ment against him. But the House of Lords, (in which, as re-
marked by one reporter, Lord Mansfield was then the presiding
spirit, acting in concert with, or for the Lord Chancellor, in
disposing of the Scotch appeals,) "ordered and declared that
the judgment of the Supreme Court of Jamaica ought to be
received as evidence primafacieof the debt; and that it lies
upon the defendant to impeach the justice thereof, or to show
the same to have been irregularly obtained;" and therefore
reversed the judgment of the Court of Session. 2 Paton, ix,
253; S. C. Motison Dict. Dec. 4542; 1 Doug. 5,note.
HILTON v. GUYOT.
Accordingly, in Crawford v. Witten, (1773) a declaration in

assumpsit, in an action in England upon a judgment recovered
in the Mayor's Court of Calcutta in Bengal, without showing
the cause of action there, was held good on demurrer. Lord
Mansfield considered the case perfectly clear. Mr. Justice
Aston, according to one report, said, "The declaration is suffi-
cient; we are not to suppose it an unlawful debt;" and,
according to another report, "They admitted the assumpsit by
their demurrer. When an action comes properly before any
court, it must be determined by the laws which govern the
country in which the action accrued." And Mr. Justice
Ashurst said: "I have often known assumpsit brought on
judgments in foreign courts; the judgment is a sufficient con-
sideration to support the implied promise." Lofft, 154; S. C.
non. Crawford v. Whittal, 1 Doug. 4, note.
In Walker v. Witter, (1778) an action of debt was brought
in England upon a judgment recovered in Jamaica. The
defendant pleaded nil debet, and nul tiel record. Judgment
was given for the plaintiff, Lord Mansfield saying: "The plea
of nul tiel record was improper. Though the plaintiffs had
called the judgment a record, yet by the additional words in
the declaration, it was clear they did not mean that sort of
record to which implicit faith is given by the courts of West-
minster Hall. They had not misled the. court nor the defend-
ant, for they spoke of it as a record of a court in Jamaica. The
question was brought to a narrow point; for it was admitted
on the partof the defendant, that indebitatusassumpsit would
have lain; and on the part of the plaintiffs, that the judgment
was only prima facie evidence of the debt. That being so,
the judgment was not a specialty, but the debt only a simple
contract debt; for assumpsit will not lie on a specialty. The
difficulty in the case had arisen from not fixing accurately
what a court of record is in the eye of the law. That de-
scription is confined properly to certain courts in England,
and their judgments cannot be controverted. Foreign courts,
and courts in England not of record, have not that privilege, nor
the courts in Wales, etc, But the doctrine in the case of Sin-
clair v. Fraser was unquestionhble. Foreign judgments are
OCTOBER TERM, 1894.
a ground of action everywhere, but they are examinable."

Justices Willes, Ashurst and Buller concurred, the two latter
saying that wherever indebitatus assumpsitwill lie, debt will
also lie. 1 Doug. 1, 5, 6.
In Herbert v. Cook, (1782) again, in an action of debt upon
a judgment of an inferior English court, not a court of record,
Lord Mansfield said that it was "like a foreign judgment, and
not conclusive evidence of the debt." Willes, 36, note.
In Galbraith v. Neville, (1789) upon a motion for a new trial
after verdict for the plaintiff, in an action of debt on a judg-
ment of the Supreme Court of Jamaica, Lord Kenyon expressed
"very serious doubts concerning the doctrine laid down in
Walker v. Witter, that foreign judgments are not binding on
the parties here." But Mr. Justice Buller said: "The doc-
trine which was laid down in Sinclair v. Fraser has always
been considered as the true line ever since; namely, that the
foreign judgment shall be prin facie evidence of the debt,
and conclusive till it be impeached by the other party." "As
to actions of this sort, see how far the court could go, if what
was said in Walker v. Witter were departed from. It was
there held, that the foreign judgment was only to be taken to
be rightprimafacie; that is, we will allow the same force to
a foreign judgment, that we do to those of our own courts.
not of record. But, if the matter were carried farther, we
should give them more credit; we should give them equal
force with those of courts of record here. Now a foreign
judgment has never been considered as a record. It cannot
be declared on as such, and a plea of nul tiel record, in such
a case, is a mere -nullity. How then can it have the same
obligatory force? In short, the result is this ; that it is pritoa
facie evidence of the justice of the demand in an action of
assumpsit, having no more credit than is given to, every
species of written agreement, viz. that it shall be considered
as good till it is impeached." 1 Doug. 6, note. And the
court afterwards unanimously refused the new trial, because,
" without entering into the question how far a foreign judg-
ment was impeachable, it was at all events clear that it was
primaf4cie evidence of the debt. and they were of opinion
HILTON v. GUYOT.
that no evidence had been adduced to impeach this." 5 East,

475, note.
In Messin v. 3Massareene, (1791) the plaintiff, having ob-
tained a judgment against the defendants in a French court,
brought an action of assumpsit upon it in England, and, the
defendants having suffered a default, moved for a reference
to a master, and for a final judgment on his report, without
executing a writ of inquiry. The motion was denied, Lord
Kenyon saying,. This is an attempt to carry the rule farther
than has yet been done, and as there is no instance of the
kind I am not disposed to make a precedent for it;" and Mr.
Justice Buller saying, "Though debt will lie here on a foreign
judgment, the defendant may go into the consideration of it."
4 T. R. 493.
In Bayley v. Edwards, (1792) the Judicial Committee of
the Privy Council, upon appeal from Jamaica, held that a
suit in equity pending in England was not a good plea in bar
to a subsequent bill in Jamaica for the same matter; and Lord
Camden said: "In Gage v. Bulkeley," (evidently referring to
the full report in Ridgeway, above quoted, which had been
cited by counsel,) "Lord Iardwicke's reasons go a great way
to show the true effect of foreign sentences in this country.
And all the cases show that foreign sentences are not conclu-
sive bars here, but only evidence of the demand." 3 'Swans-
ton, 703, 708, 710.
In Phillips v. Hunter, (1795) the House of Lords, in accord-
ance with the opinion of the majority of the judges consulted,
and against that of Chief Justice Eyre, decided that a creditor
of an English bankrupt, who had obtained payment of his
debt by foreign attachment in Pennsylvania, was liable to an
action for the money by the assignees in bankruptcy in Eng-
land. But it was agreed, on all hands, that the judgment in
Pennsylvania and payment under it were conclusive as
betWeen the garnishee and the plaintiff in that suit. And
the distinction between the effect of a foreign judgment which
vests title, and of one which only declares that a certain sum
of, money is due, was clearly stated by Chief Justice Eyre, as
follows:
VOL. cLsx-12
OCTOBER TERM, 1894.
Order of the Court.
"This judgment against the garnishee in the court of Penn-

sylvania was recovered properly or improperly. If, notwith-
standing the bankruptcy, the debt remained liable to an
attachment according to the laws of that country, the judg-
ment was proper; if, according to the laws of that country,
the property in the debt was divested out of the bankrupt
debtor, and vested in his assignees, the judgment was im-
proper. But this was a question to be decided, in the cause
instituted in Pennsylvania, by the courts of that country and
not by us. We cannot examine their judgment, and if we
could, we have not the means of doing it in this case. It is not
stated upon this record, nor can we take notice, what the law
of Pennsylvania is upon this subject. If we had the means,
we could not examine a judgment of a court in a foreign State,
brought before us in this manner.
"It is in one way only, that the sentence or judgment of a
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 judgments are obligatory, not as
conclusive, but as matter in pais, as consideration primafacie
sufficient to raise a promise. We examine it as we do all
other considerations or promises, and for that purpose we
receive evidence of what the law of the foreign State is, and
whether the judgment is warranted by that law." 2 I. Bl.
402, 409, 410.
In Wright v. impaon, (1802) Lord Chancellor Eldon said:
"Natural law requires the court§ of this country to give
credit to those of another for the inclination and power to do
justice; but not, if that presumption is proved to be ill founded
in that transaction, which is the subject of it; and if it appears
in evidence, that persons suing under similar circumstances
neither had met, nor could meet, with justice, that fact can-
not be immaterial as an answer to the presumption." 6 Ves.
714, 730.
HILTON v. GUYOT.
Under Lord Ellenborough, the distinction between a suit on

a foreign judgment in favor of the plaintiff against the defend-
ant, and a suit to recover money which the plaintiff had been
compelled to pay under a judgment abroad, was clearly main-
tained.
In :Buohanan v. Rucker, (1807) in assumpsit upon a judg-
ment rendered in the island of Tobago, the defendant pleaded
non asmumpsit, and prevailed, because it appeared that he was
not a residenL of the island, and was neither personally.served
with process nor came in to defend, and the'only notice was,
according to the practice of the court, by nailing up a copy of
the declaration at the court-house door. It was argued that
"the presumption was in favor of a foreign judgment, as well
as of a judgment obtained in one of the courts of this country."
To which Lord Ellenborough answered: "That may be so,
if the judgment appears, on the face of- it, consistent with
reason and justice ; but it is contrary to the first principles of
reason and justice, that, either in civil or criminal proceedings,
a man should be condemned before he is heard." "There
might be such glaring injustice on the face of a foreign judg-
ment, or it might have a vice rendering it so ludicrous, that,
it could not raise an assumpsit, and, if submitted to the juris-
diction of the courts of this country, could not be enforced."
1 Camp. 63, 66, 67. A 'motion for a new trial was denied.
9 East, 192. And see Sadler v. Robin8, (1808) 1 Camp.
253, 256.
In Hall v. Odber, (1809) in assumpsit upon a judgment ob-
tained in Canada, with other counts on the original debt, Lord
Ellenborough and Justices Grose, Le Blanc and Bayley agreed
that a foreign judgment was not to be considered as having
the same force as a domestic judgment, but only that of a
simple contract between the parties, and did not merge the
original cause of action, but was only evidence of the debt,
and therefore assumpsit would lie, either upon the judgment,
or upon the original cause of action. 11 East, 118.
In Tarleton v. Tarleton,(1815) on the other band, the action
was brought upon a covenant of indemnity in an agreement
for dissolution of a partnership, to recover a sum which the
OCTOBER TERM, 1894.
plaintiff had been compelled to pay Under a decision in a suit

between the parties in the island of Grienada. Such was the
case, of which Lord Ellenborough, affirming his own ruling at
the trial, said: "I thought that I did not sit at nisi prius to
try a writ of error in this case upon the proceedings in the
court abroad. The defendant had notice of the proceedings,
and should have appeared and made his defence. The plain-
tiff-, by this neglect, has been obliged to pay the money in
order to avoid a sequestration." The distinction was clearly
brought out by Mr. Justice Bayley, -who said: "As between
the parties to the suit, the justice of it might be again liti-
gated; but as against a stranger it cannot." 4 M. & S. 20,
22, 23.
In Aarris v. Saunders, (1825) Chief Justice Abbott (after-
wards Lord Tenterden) and his associates,'upon the authority
of Otway v. Ramsay, above cited, held that, even since the
Act of Union of 39 & 40 Geo. III, c. 67, assumpsit would lie
in England upon a judgment recovered in Ireland, because
such a judgment could not be considered a specialty debt in
England. 4B.&C.411; S. C. 6D.&R. 471.
The English cases, above referred to, have been stated with
the more particularity and detail, because they directly bear
upon the question what was the English law, being then our
own law, before the Declaration of Independence. They
demonstrate that by that law, as generally understood, and
as declared by Hardwicke, Mansfield, Buller, Camden, Eyre
and Ellenborough, and doubted by Kenyon only, a judgment
recovered in a foreign country for a sum of money, when sued
upon in England, was only primafacie evidence of the de-
mand, and subject to be examined and impeached. The law
of England, since it has become to us a foreign country, will
be considered afterwards.
The law upon this subject, as understood in the United
States, at the time of their separation from the mother coun-
try, was clearly set forth by Chief Justice Parsons, speaking
for the Supreme Judicial' Court of Massachusetts, in 1813, and
by Mr. Justice Story, in his Commentaries on the Constitu-
tion of the United States, published in 1833. Jotlh tiose
HILTON v. GtUYOT.
eminent jurists declared that by the law of England the gen-

eral rule was that foreign judgments were only primafacie
evidence of the matter which they purported to decide; and
that by the common law, before the American Revolution, all
the courts of the several Colonies and States were deemed
foreign to each other, and consequently judgments rendered
by any one of them were considered as foreign judgments, and
their merits redxaminable in another Colony, not only as to
the jurisdiction of the court which pronounced them, but also
as to the merits of the controversy, to the extent to which
they were understood to be refxaminable in England. And
they noted that, in order to remove that inconvenience, stat-
utes had been passed in Massachusetts, and in some of the other
Colonies, by which judgments rendered by a court of compe-
tent jurisdiction in a neighboring Colony could not be im-
peached. Bissell v. Briggs, 9 Mass. 462, 464, 465; Mass. Stat.
1773-4, c. 16, 5 Prov. Laws, 323, 369; Story on the Constitu-
tion, (1st ed.) §§ 1301, 1302; (4th ed.) §§ 1306, 1307.
It was because of that condition of the law, as between the
American Colonies and States, that the United States, at the
very beginning' of their existence as a nation, ordained that
full faith and credit should be given to the judgments of one
of the States of the Union in the courts of another of those
States.
By the Articles of Confederation of 1777, art. 4, § 3, Full
faith and credit shall be given, in each of these States, to the
records, acts and judicial proceedings of the courts and magis-
trates of every other State." 1 Stat. 4. By the Constitu-
tion of the United States, art. 4, § 1, "Full faith and credit
shallbe given in each State to the public acts, records and
judicial proceedings of every other State; and the Congress
may by general laws prescribe the manner in which such acts,
records and proceedings shall be proved, and the effect there-
of." And the first Congress of the United States under the
Constitution, after prescribing the manner in which the records
and judicial proceedings of the courts of any State should be
authenticated and proved, enacted that "the said records and
judicial proceedings, authenticated as aforesaid, shall have
OCTOBER TERM, 1894.
such faith and credit given to them in every court within the
United States, as they have by law or usage in the courts of
th State from whence the said records are or shall be taken."
Act of May 26, 1790, c. 11, 1 Stat. 122; Rev. Stat. § 905.
The effect of these provisions of the Constitution and laws
of the United States was at first a subject of diverse opinions,
not only in the courts of the several States, but also in the
Circuit Courts of the United States; Mr. Justice Cushing, Mr.
Justice Wilson and Mr. Justice Washington holding that
judgments of the courts of a State had the same effect through-
out the Union as within that State; but Chief Justice Mar-
shall (if acurately reported) being of opinion that they were
not entitled to conclusive effect, and that their consideration
might be impeached. Armstrong v. Carson, (1794) 2 Dall.
302; Green v. Sarmiento, (1811) 3 Wash. C. C. 17, 21; S. C.
Pet. C. C. 74,78; Peck v. Williamson, (reported as in Novem-
ber, 1813, apparently a mistake for 1812,) 1.,Carolina Law
Repository, 53.
The decisions of this court have clearly recognized that
judgments of a foreign state are prima facie evidence only,
and that, but for these constitutional and legislative provisions,
judgments of a State of the Union, when sued upon in another
State, would have no greater effect.
In Croudson v. Leonard, (1808) in which this court held that
the sentence of a foreign court of admiralty in rem., con-
demning a vessel for breach of blockade, was conclusive evi-
dence of that fact in an action on a policy of insurance, Mr.
Justice Washington, after speaking of the conclusiveness of
domestic judgments generally, said: "The judgment of a
foreign court is equally conclusive, except in the single instance
where .the party claiming the benefit of it applies to the courts
in England to enforce it, in which case only the judgment is
primafacie evidence. But it is to be remarked, that in such
a case, the judgment is 'no more conclusive as to the right it
establishes, than as to the fact it decides." 4 Cranch, 434, 442.
In Mills v. Duryee, (1813) in which it was established that,
by virtue of the. Constitution and laws of the United States,
the judgment of a court of one of the States was conclusive
HILTON v. GUYOT.
evidence, in every court within the United States, of the mat-

ter adjudged; and therefore nul tiel record, and not nil debet,
was a proper plea to an action brought in a court of the
United States in the District of Columbia upon a judgment
recovered in a court of the State of New York; this court,
speaking by Mr. Justice Story, said: "The pleadings in an
action are governed by the dignity of the instrument on which
it is founded. If it be a record, conclusive between the par-
ties, it cannot be denied but by the plea of nul tiel record; and
when Congress gave the effect of a record to the judgment, it
gave all the collateral consequences." "Were the construc-
tion contended for by the plaintiff in error to prevail, that
judgments of the state courts ought to be considered prima
facie evidence only, this clause in the Constitution would be
utterly unimportant- and illusory. The common law would
give such judgments precisely the same effect." 7 Cranch,
481, 484, 485.
In flampton v. M Connel, (1818) the point decided in iille
v. Duryee was again adjudged, without further discussion, in
an opinion delivered by Chief Justice Marshall. 3 Wheat,
234.
The obiter dictum of Mr. Justice Livingston in floykin8 V.
Lee, (1821) 6 Wheat. 109. 114, repeated, by Mr. Justice Daniel
in Pennington v. Gibson, (1853) 16 How. 65, 78, as to the
general effect of foreign judgments, has no important bearing
upon the case before us.
In McElmoyle v. Cohen, (1839) Mr. Justice Wayne, discuss-
ing the effect of the act of Congress of 1790, said, that "the
adjudications of-the English courts have now established the
rule to be, that foreign judgments are primafacie evidence of
the right and matter they purport to decide." 13 Pet. 312,
325.
In D'Arcy v. Ketchum, (1850) in which this court held that
the provisions of the Constitution and laws of the United
States gave no effect in one State to judgments rendered in
another State by a court having no jurisdiction of the cause
or of the parties, Mr. Justice Catron said: "In construing
the act of 1790, the law as it stood when the act was passed
OCTOBER TERM, 1894.
must enter into that construction; so that the existing defect

in the old law may be seen, and its remedy by the act of Con-
gress comprehended. Now it was most reasonable, on general
principles of comity and justice, that, among States and their
citizens united as ours are, judgments rendered in one should
bind citizens of other States, where* defendants had been
served with process, or voluntarily made defence. As these
judgments, however, were only prima facie evidence, and
subject to be inquiihed into by plea, when sued on in another
State, Congress saw proper to remedy the evil, and to provide
that such inquiry and double defence should not be allowed.
To this extent, it is declared in the case of Mills v. -Duryee,
Congress has gone in altering the old rule." 11 How. 165,
175, 176.
In Christinasv. Russell, (1866) in which this court decided
that, because of the Constitution and laws of the United
States, a judgment of a court of one State of the Union,
when sued upon in a court of another, could not be shown
to have been procured by fraud, Mr. Justice Clifford, in de-
livering the opinion, after stating that, under the rules of the
common law, a domestic judgment, rendered in a court of
competent jurisdiction, could not be collaterally impeached
or called in question, said: "Common law rules placed for-
eign judgments upon a different footing, and those rules re-
main, as t general remark, unchanged to the present time.
Under these rules, a foreign judgment was prima facie evi-
dence of the debt, and it was open to examination, not only
to show that the court in which it was rendered had no juris-
diction of the subject-matter, but also to show that the judg-
ment was fraudulently obtained." 5 Wall. 290, 304.
In Bischo, v. Wethered, (1869) in an action on an English
judgment rendered without notice to the defendant, other than
by service on him in this country, this court, speaking by Mr.
Justice Bradley, held that the proceeding in England "was
wholly without jurisdiction of the person, and whatever valid-
ity it may have in England, by virtue of statute law, against
property of the defendant there situate, it can have no validity
here, even of aprimafaciecharacter." 9 Wall. 812, 814:
HILTON v. GUYOT.
Iii Itanley v. Donoghue, (1885) 116 U. S. 1, 4,.and in Wis-

consin v. Pelican Ins. Co., (1888) 127 U. S. 265, 292, it was
said that judgments recovered in one State of the Union, when
)roved in the courts of another, differed from judgments re-
covered in a foreign country in no other respect than in not
being re~xaminable on their merits, nor impeachable for fraud
in obtaining them, if rendered by a court having jurisdiction
of .the cause and of the parties.
But neither in those cases, nor in any other, has this court
hitherto been called upon to determine how far foreign judg-
ments may be reexaimined upon their merits, or be impeached
for fraud in obtaining them.
In the courts of the several States, it was long recognized
and assumed, as undoubted and indisputable, that by our law,
as by the law of England, foreign judgments for debts were
not conclusive, but only prima facie evidence of the matter
adjudged. Some of the cases are collected in the margin.'
In the leading case of Bissell v. Briggs, above cited, Chief
Justice Parsons said: "A foreign judgment may be produced
here by a party to it, either to justify himself by the execu-
tion of that judgment in the country in which it was rendered,
or to obtain the execution of it from our courts." "If the for-
eign court rendering the judgment had jurisdiction of the cause,
yet the courts here will not execute the judgment, without first
1 Bartlet v. Knight, (1805) 1 Mass. 401, 405; Buttrick v. Allen, (1811)

8 Mass. 273; Bissell v. Briggs, (1813) 9 Mass. 462, 464; Hall v. Williams,
(1828) 6 Pick. 232, 238; Gleason v. Dodd, (1842) 4 Met. 333, 3836; Wood v.
Gamble, (1853) 11 Cush. 8; McKim v. Odom, (1835) 3-Fairf. 94, 96, Mid-
dlesexc Bank v. Butman, (1848) 29 Maine, 19, 21; Bryant v. Ela,(1815) Smith
(N. H1.) 396, 404; Thnrber v. Blackbourne, (1818) 1 N. H. 242; Robinson v.
Prescott, (1828) 4 N. H. 450; Taylor v. Barron, (1855) 10 Foster, 78, 95;
King v. Tan Gilder, (1791) 1 1). Chip. 59; Bathbone v. Terry, (1837) 1 Rhode
Island, 73, 76; Aldrich v. Kinney, (1822) 4 Connecticut, 380, 382; H1itchcock
'v. Aicken, (1803) 1 Caines, 460; Smith v. Lewis, (1808) 3 Johns. 157, 159
Taylor v. Bryden, (1811) 8 Johns. 173; Andrews v. Montgomery, (1821) 19
Johns. 162, 165; Starbuck v Murray, (1830) 5 Wend. 148, 155; Benton v.
Burgot, (1823) 10 S. & It. 240, 241, 242; Barney v. Patterson, (1824) 6 Har.
& Johns. 182, 202, 203; Taylor v. Phelps, (1827) 1 Har. & Gill, 492, 503;
Rogers v. Coleman, (1808) Hardin, 413, 414; Williams v. Preston, (1830)
3 J. J. Marsh. 600, 601.
OCTOBER TERM, 1894.
allowing an inquiry into its merits. The judgment of a for-

eign court, therefore, is by our laws considered only as pre-
sumptive evidence of a debt, or asprimafaoie"evidence of a
sufficient consideration of a promise, where such court had
jurisdiction of the cause; and if an action of debt be sued on
any such judgment, nil debet is the general issue; or, if it be
made the consideration of a promise, the general issue is non
assumpsi. On these issues, the defendant may impeach the
justice of the judgment, by evidence relative to that point.
On these issues, the defendant may also, by proper evidence,
prove that the judgment was rendered by a foreign court,
which had no jurisdiction; and if his evidence be sufficient for
this purpose, he has no occasion to impeach the justice of the
judgment." 9 Mass. 463, 464.
In a less known case, decided in 1815, but not published
until 1879, the reasons for this view were forcibly stated by
Chief Justice Jeremiah Smith, speaking for the Supreme
Court of New Hampshire, as follows:
"The respect which is due to judgments, sentences and
decrees of courts in- a foreign State, by the law of nations,
seems to be the same which is due to those of our own courts.
Hence the decree of an admiralty court abroad is equally con-
clusive with decrees of our admiralty courts. Indeed, both
courts proceed by the same rule, are governed by the same
law -the maritime law of nations: Coll. Jurid. 100; which
is the universal law of nations, except where treaties alter it.
"The same comity is not extended to judgments or decrees
which may be founded on the municipal laws of tle State
in which they are pronounced, Independent States do not
choose to adopt such decisions without examination. These
laws and regulations may be unjust, partial to citizens, and
against foreigners; they may operate injustice to our citizens,
whom we are bound to protect; they may be, and the decisions
of courts founded on them, just cause of complaint against the
supreme power of the State where rendered. To adopt
them is not merely saying that the courts, have decided
oorrectly on the law, but it is approbating the law itself.
Wherever, then, the court may have proceeded on municipal
HILTON v. GUYOT.
law, the rule is, that the judgments are not conclusive
evidence of debt, but prima facie evidence only. The pro-
ceedings have not the conclusive quality which is annexed
to the records or proceedings of our owli courts, where we
approve both of the rule and of the judges who interpret
and apply it. A foreign judgment may be impeached; de-
fendant may show that it is unjust, or that it was irregularly
or unduly obtained. Doug. 5, note." Bryant v. ELa, Smith
(N. H.) 396, 404.
From this review of the authorities, it clearly appears that,
at the time of the separation of this country from England,
the general rule was fully established that foreign judgments
inpersonam were prima facie evidence only, and not con-
clusive of the merits of the controversy between the parties.
But the extent and limits of the application of that rule do
not appear to have been much discussed, or defined with any
approach to exactness, in England or America, until the
matter was taken up by Chancellor Kent and by Mr. Justice
Story.
In Taylor v. Bryden, (1811) an action of assumpsit, brought
in the Supreme Court of the State of New York, on a judg-
ment obtained' in the State of Maryland. against the defend-
ant as indorser of a bill of exchange, and which was treated
as a foreign judgment, so far as concerned its effect in New
York, (the decision of this court to the contrary in Mills v.
Duryee, 7 Cranch, 481, not having yet been made,) Chief
Justice Kent said: " The judgment in Maryland is presump-
tive evidence of a just demand; and it was incumbent upon
the defendant, if he would 6bstruct the execution of the
judgment here, to show, by positive proof, that it was irregu-
larly or unduly obtained." "To try over again, as of course,
every matter of fact which had been duly decided by a
,competent tribunal, would be disregarding the comity which
we justly owe to the courts of other States, and would be
carrying the doctrine of refxamination to an oppressive ex-
tent. It would be. the same as granting a new trial in every
case, and upon every question of fact. Suppose a recovery
in another State, br in any foreign court, in an action for a
OCTOBER TERM, 1894.
tort, as for an assault and battery, false imprisonment, slander,

etc., and the defendant was duly summoned and appeared,
and made his defence, and the trial was conducted orderly
and properly, according to the rules of a civilized jurispru-
dence, is every such case to be tried again here on the merits?
I much doubt whether the rule can ever go to this length.
The general language of the books is that the defendant
must impeach the judgment by showing affirmatively that
it was unjust by being irregularly or unfairly procured."
But the case was decided upon the ground that the defend-
ant had done no more than raise a doubt of the correctness
of the judgment sued on. 8 Johns. 173, 177, 178.
Chancellor Kent, afterwards, treating of the same subject
in t he first edition of his Commentaries, (1827) put the right
to impeach a foreign judgment somewhat more broadly, say-
ing: "No sovereign is obliged to execute, within his dominion,
a sentence rendered out of it; and if execution be sought by a
suit upon the judgment, or otherwise; he is at liberty, in hi
courts of justice; to examine into the merits of. such judgment
[for the effect to be given to foreign judgments is altogether
a matter of comity, in cases where it is not regulated by
treaty]. In the former case, [of a suit to enforce a foreign
judgment,] the rule is, that the foreign judgment is to be
received, in the first instance, as _prima facie evidence of the
debt; and it lies on the defendant to impeach the justice of
it, or to show that it was irregularly and unduly obtained.
This was the principle declared and settled by the House of
Lords, in 1771, in the case of Sinclair v. Fraser,upon an
appeal from the Court of Session in Scotland." In the second
edition, (1832) he inserted the passages above printed in brack-
ets; and in a note to the fourth edition, (1840) after citing
recent conflicting opinions in Great Britain, and referring to
Mr. Justice Story's reasoning in his Commentaries on the Con-
flict of Laws,-§ 607, in favor of the conclusivehess of foreign
judgments, he added, "and that is certainly the more conven-
ient and the safest rule, and the most consistent with sound
principle, except in cases in which the court which pronounced
the judgment has not due jurisdiction of the case, or of the
HILTON v. GUYOT.
defendant, or the proceeding was in fraud, or founded in palpa-

ble mistake or irregularity, or bad by the law of the rei judi-
catw; and in all such cases the justice of the judgment ought
to be impeached." 2 Kent Com. (1st ed.) 102; (later eds.) 120.
Mr. Justice Story, in his Commentaries on the Conflict
M
of
Laws, first published in 1834, after reviewing many English
authorities, said, "The present inclination of the English
courts seems to be to sustain the conclusiveness of foreign
judgments"-to which, in the second edition in 1841, he
added, "although certainly there yet remains no inconsider-
able diversity of opinion among the learned judges of the
different tribunals." § 606.
He then proceeded to state his own view of the subject, on
principle, saying: "It is, indeed, very difficult to perceive
what could be done, if a different doctrine were maintainable
to the full extent of opening all the evidence and merits of
the cause anew on a suit upon the foreign judgment. Some
of the witnesses may be since dead; some of the vouchers
may be lost or destroyed. The merits of the cause, as for-
merly before the court upon the whole evidence, may have
been decidedly in favor of the judgment; upon a partial pos-
session of the original evidence, they may now appear other-
wise. Suppose a case purely sounding in damages, such as an
action for an assault, for slander, for conversion of property,
for a malicious prosecution, or for a criminal conversation; is
the defendant to be at liberty to retry the whole merits, and
to make out, if he can, a new case upon new evidence? Or is
the court to review the former decision, like a court of appeal,
upon the old evidence? In a case of covenant, or.of debt or
of a breach of contract, are all the circumstances to be reex-
amined anew? If they are, by what laws and rules of evi-
dence and principles of justice is the validity of the original
judgment to be tried? Is the court to open the judgment,
and to proceed ex mquo et bono ? Or is it to administer strict
law, and stand to the doctrines of the local administration of
justice? Is it to act upon the rules of evidence acknowledged
in its own jurisprudence, or upon those of the foreign juris-
prudence? These and many more questions might be put to
OCTOBER TERM, 1894;
show the intrinsic difficulties of the subject. Indeed, the rule

that the judgment is to be primafaoie evidence for the plain-
tiff would be a mere delusion, if the defendant might still
question it by opening all or any of thi original merits on his
side; for under such circumstances it would be equivalent to
granting a new trial. It is easy to understand that the defend-
ant may be at liberty to impeach the original justice of the
judgment'by showing that the court had no jurisdiction, or
that he never had any notice of the suit; or that it was pro-
cured by fraud; or that upon its face it is founded in mistake;
or that it is irregular and bad by the local law, fori rei judi-
catw. To such an extent the doctrine is intelligible and prac-
ticable.. Beyond this, the right to impugn the judgment is in
legal effect the right to retry the merits of the original cause
at large, and to put the defendant upon proving those merits."
§ 607.
He then observed: "The general doctrine maintained in
the American courts in relation to foreign judgments certainly
is that they areprimafacieevidence, but that they are impeach-
able. But how far and to what extent this doctrine is to be
carried does not seem to be definitely settled. It has been
declared that the jurisdiction of the court, and its power over
the parties and the things in controversy, may be inquired
into; and that the judgment may be impeached for fraud.
Beyond this no definite lines have as yet been drawn." § 608.
After stating the effect of the Constitution of the United
States, and referring to the opinions of some foreign jurists,
and to the law of France, which allows the merits of 'foreign
judgments to be examined, Mr. Justice Story concluded his
treatment of the subject as follows: "It is difficult to ascertain
what the prevailing rule is in regard to foreign judgments in
some of the other nations of continental Europe; whether
they are deemed conclusive evidence, or only primafacie evi-
dence. Holland seems at all times, upon the general principle
of reciprocity, to have given great weight to foreign judg-
ments, and in many cases, if not in all cases, to have given to
them a weight equal to that given to domestic judgments,
wherever the like rule of reciprocity with regard to Dutch
HILTON v. GUYOT.
judgments has been adopted by the foreign country whose

judgment is brought under review. This is certainly a very
reasonable rule, and may perhaps hereafter work itself firmly
into the structure of international jurisprudence." § 618.
In Bradstreet v. Neptune Ins. Co., (1839) in the Circuit
Court of the United States for the District of Massachusetts,
Mr. Justice Story said: "If a civilized nation seeks to have
the sentences of its own courts held of any validity elsewhere,
they ought to have a just regard to the rights and usages
of other civilized nations, and the principles of public and
national law in the administration of justice." 3 Sumner,
600, 608, 609.
In Burnham.v. Webster, (1845) in an action of assumpsit
upon a promissory note, brought in the Circuit Court of the
United States for the District of Maine, the defendant pleaded
a former judgment in the Province of New Brunswick in his
favor in an action there brought by the plaintiff; the plaintiff
replied that the note was withdrawn from that suit, by consent
of parties and leave of the court, before verdict and judgment;
and the defendant demurred to the replication. Judge Ware,
in overruling the demurrer, said: "Whatever difference of
opinion there may be as to the binding force of foreign judg-
ments, all agree that they are not entitled to the same author-
ity as the judgments of domestic courts of general jurisdiction.
They are but evidence of what they purport to decide, and
liable to be controlled -by counter evidence, and do not, like
domestic judgments, import absolute verity and remain incon-
trovertible and conclusive until reversed." And he added
that, if the question stood entirely clear from authority, he
should be of opinion that the plaintiff could not be allowed to
deny the validity of the proceedings of a court whose authority
he had invoked. 2 Ware, 236, 239, 241.
At a subsequent trial of that case before a jury, (1846) 1
Woodb. & Min. 172, the defendant proved the judgment in
New Brunswick. The plaintiff then offered to prove the facts
stated in his replication, and that any entry on the record of
tile judgment in New Brunswick concerning this note was
therefore by mistake or inadvertence. This evidence was
OCTOBER TERM, 1894.
excluded, and a verdict taken for the plaintiff, subject to the

opinion of the court. Mr. Justice Woodbury, in granting a
new trial, delivered a thoughtful and discriminating 'opinion
upon the effect of foreign judgments, from which the following
passages are taken:
"They do, like domestic ones, operate conclusively, exproprio
vigore, within the governments in which they are rendered, but
not elsewhere. When offered and considered elsewhere, they
are, ex comitate, treated with respect, acco rding to the nature
of the judgment, and the character of the tribunal which
rendered it, and the reciprocal mode, if any, in which that
government treats our judgments, and according to the party
offering it, whether having sought or assented to it voluntarily
or not, so as to give it in some degree the force of a contract,
and hence to be respected elsewhere by analogy according to
the lex loci contractus. With these views, I would go to the
whole extent of the cases decided by Lord Mansfield and Buller;
and where the foreign judgmenlt is not in remn, as it is in ad-
miralty, having the subject-matter before the court, and acting
on that rather than the parties, I would consider it onlyprima
facie evidence as between the parties to it." p. 175.
"By returning to that rule, we are enabled to give parties,
at times, most needed and most substantial relief, such as in
judgments abroad against themh without notice, or without a
hearing on the rrierits, or by accident or mistake of facts, as
here, or on rules of evidence and rules of law they never assented
to, being foreigners and their contracts made elsewhere, but
happening to be travelling through a foreign jurisdiction, and
being compelled in inviunrb to litigate there." p. 177.
"Nor would I permit the primafacie force of the foreign
judgment to go far, if the court was one of a barbarous or semi-
barbarous government, and acting on no established principles
of civilized jurisprudence, and not resorted to willingly by both
parties, or both not inhabitants and citizens of the country.
Nor can much comity be asked for the judgments of another
nation, which, like France, pays no respect to those of other
countries - except, as before remarked, on the principle of the
parties belonging there, or assenting to a trial there." 1. 7).
HILTON v. GUYOT.
"On the other hand, by considering a judgment abroad as

only primafacie valid, I would not allow thee plaintiff abroad,
who had sought it there, to avoid it, unless for accident or
mistake, as here. Because, in other respects, having been
sought there by him voluntarily, it does not lie in his mouth
to complain of it. Nor would I in any case permit the whole
merits of the judgment recovered abroad to be put in evidence
as a matter of course; but beingprimafaciecorrect, the party
impugning it, and desiring a hearing of its merits, must show
first, specifically, some objection to the judgment's reaching
the merits, and tending to prove they had not been acted on;
or [as?] by showing there was no jurisdiction in the court, or
no notice, or some accident or mistake, or fraud, which pre-
vented a full defence, and has entered into the judgment; or
that the court either did not decide at all on the merits, or
was a tribunal not acting in conformity to any set of legal
principles, and was not willingly recognized by the party as
suitable for adjudicating on the merits. After matters like
these. are proved, I can see no danger, .but rather great safety
in the administration of justice, in permitting, to every party
before us, at least one fair opportunity to have the merits of
his case fully considered, and one fair adjudication upon them,
before he is estopped forever." p. 180.
In De Brimont v. Penniman,(1873) in the Circuit Court of
the United States for the Southern District of New York,
Judge Woodruff said: "The principle on which foreign judg-
ments receive any recognition from our courts is one of comity.
such a recogni-
It does not require, but rather forbids it, where
tion works a direct violation of the policy of our laws, and
does violence to what we deem the rights of our citizens."
And he declined to maintain an action against a citizen of the
United States (whose daughter had been married in France to
a French citizen) upon a decree of a French court requiring
the defendant, then resident in France -and duly served with
process there, to pay an annuity to his son-in-law. 10 Blatch-
ford, 436, 441.
Mr. Justice Story and Chancellor Kent, as appears by the
passages above quoted from their cominentaties, concurred in
VOL. cLIX-13
OCTOBER TERM, 1894.
the opinion that, in a suit upon a foreign judgment, the whole

merits of the case could not, as matter of course, be retixamined
anew; but that the defendant was at liberty to impeach the
judgment, not only by showing that the court had no jurisdic-
tion of the case, or of the defendant, but also by showing that it
was procured by fraud, or was founded on clear mistake or irreg-
ularity, or was bad by the1aw of the place where it was rendered.
Story's Conflict of Lalws, § 607; 2 Kent Coim. (6th C(.) 120.
The word " mistake " was evidently used by Story and Kent,
in this connection, not in its wider meaning of error in judg-
ment, whether upon the law or upon the facts; but in the
stricter sense of misapprehension or oversight, and as equiva-
lent to what, in Bfurnham v. Vebster', before cited, Mr. Justice
Woodbury spoke of as "some objection to the judgment's
reaching the merits, and tending to prove that they had not
been acted on;" "some accident or mistake," or "that the
court did not decide at all on the merits." 1 Woodb. & Min.
180.
The suggestion that a foreign judgment might be impeached
for error in law of the country in which it was rendered is
hardly consistent with the statement of Chief Justice Mar-
shall, when, speaking of the disposition of this court to adopt
the construction given to the laws of a State by its own courts,
he said: "This course is founded on the principle, supposed
to be universally recognized, that the judicial department of
every government, where such department exists, is the ap-
propriate organ for construing the legislative acts of that gov-
ernment. Thus, no court in the universe, which professed to
be governed by principle, would, we presume, undertake to say,
that the courts of Great Britain, or of France, or of any other
nation, had misunderstood their own statutes, and therefore
erect itself into a tribunal which should correct such misunder-
standing. We receive the construction given by the courts -of
the nation as the true sense of the law, and feel ourselves no
more at liberty to depart from that construction, than to de-
part from the words of the statute." Elmendorf v. Taylor,
(1825) 10 Wheat. 152, 159, 160.
In recent times, foreign judgments rendered within- the do-
HILTON v. GUYOT.
minions of the English Crown, and under the law of England,

after a trial on the merits, and no want of jurisdiction, and
no fraud or mistake, being shown or offered to be shown,
have been treated as conclusive by the highest courts of New
York, Maine and Illinois. Lazier v. Wescott, (1862) 26 N. Y.
146, 150; Dunstan v. Higgins, (1893) 138 N. Y. 70, 74; Ran-
kin v. Goddard, (1866) 54 Maine, 28, and (1868) 55 Maine,
389; Baker v. Palmer, (1876) 83 Illinois, 568. In two early
cases in Ohio, it was said that foreign judgments were conclu-
sive, unless shown to have been obtained by fraud. Silver
Lake Bank v. Iarding,(1832) 5 Ohio, 545, 547; Anderson v.
Anderson, (1837) 8 Ohio, 108, 110. But in a later case in
that State it was said that they were only prima facie evi-
dence of indebtedness. Pelton v. Platner, (1844) 13 Ohio,
209, 217. In Jones v. Jamison, (1860) 15 La. Ann. 35, the de-
cision was only that, by virtue of the statutes of Louisiana,
a foreign judgment merged the original cause of action as
against the plaintiff.
The result of the modern decisions in England, after much
diversity, not to say vacillation of opinion, does not greatly
differ (so far as concerns the aspects in which the English
courts have been called upon to consider the subject) from the
conclusions of Chancellor Kent and of Justices Story and
Woodbury.
At one time, it was held that, in an action brought in Eng-
land upon a judgment obtained by the plaintiff in a foreign
country, the judgment must be assumed to be according to the
law of that country, unless the contrary was clearly proved -
manifestly implying that proof on that point was competent.
Becquet v. McCarthy, (1831) 2 B. & Ad. 951, 957; Alivon v.
Furnival,(1834) 1 Cr., M. & R. 277, 293; S. C. 4 Tyrwh.
751, 768.
Lord Brougham, in the House of Lords, as well as Chief
Justice Tindal and Chief Justice Wilde (afterwards Lord
Chancellor Truro) and their associates, in the Common Bench,
considered it to be well settled that an Irish or Colonial judg-
ment, or a foreign judgment, was not, like a judgment of a
domestic court of record, conclusive evidence, but only, like a
OCTOBER TERM, 1894.
simple contract, primafacie evidence of a debt. Jioulditoh

v. Donegal, (1834) 8 Bligh N. R. 301, 342, 346; S. C. 2 Cl. &
Fin. 470, 476-479; Don v. Lipmann, (1837) 5 Cl. & Fin. 1,
20-22; Smith v. N'icolls, (1839) 7 Scott, 147, 166-170; S. C.
5 Bing. N. C. 208, 220-226; 7 Dowl. 282; Bank of Australasia
v. Htarding,(1850) 9 C. B. 661, 686, 687.
On the other hand, Vice Chancellor Shadwell, upon an
imperfect review of the early cases, expressed the opinion that
a foreign judgment was conclusive. Martin v. NIicolls, (1830)
3 Sim. 458.
Like opinions were expressed by Lord Denman, speaking
for the Court of Queen's Bench, and by Vice Chancellor Wig-
ram, in cases of Irish or Colonial judgments, which were
subject to direct appellate review in England. Ferguson v.
Mahon, (1839) 11 Ad. & El. 179, 183; S. C. 3 Per. & Day.
143, 146; Hlenderson v. Henderson, (1844) 6 Q. B. 288, 298,
299; Henderson v. Ienderson, (1843) 3 Hare, 100, 118.
In Bank of Australasia v. Nias, (1851) in an action upon
an Australian judgment, pleas that the original promises were
not made, and that thos6 promises, if made, were obtained by
fraud, were held bad on demurrer. Lord Campbell, in deliver-
ing judgment, referred to Story on the Conflict of Laws, and
adopted substantially his course of reasoning in § 607, above
quoted, with regard to foreign judgments. But he distinctly
put the decision upon the ground that the defendant might
have appealed to the Judicial Committee of the Privy Coun-
cil, and thus have procured a review of the colonial judg-
ment. And he took the precaution to say: "How far it
would be permitted to a defendant 'to impeach the compe-
tency, or the integrity, of a foreign court from which there
was no appeal, it is unnecessary here Itoinquire.' 16 Q. B.
717, 734-737.
The English courts, however, have since treated that decis-
ion as establishing that a judgment of any competent foreign
court could not, in an action upon it, be questioned, either
because that court had mistaken its own law, or because it
had come to an erroneous conclusion upon the facts. De Cosse
Brissac v. Rathbone, (1861) 6 H. & N. 301; cott v. Pilking-
HILTON v. GUYOT.
ton, (1862) 2 B. & S. 11, 41, 42; JFanquelin v. Bouard, (1863)

15 C. B. (N. S.) 341, 368; Castrique v. Imrie, (1870) L. R. 4
1H. L. 414, 429, 430; Godard v. Gray, (1870) L. R. 6 Q. B.
139, 150; Ochsenbein v. Pavelier,(1873) L. R. 8 Ch. 695, 701.
In Meyer v. Ralli, (1876) a judgment in rem, rendered by a
French court of competent jurisdiction, was held to be re~x-
aminable upon the merits, solely because it was admitted by
the parties, in the special case upon which the cause was sub-
mitted to the English court, to be manifestly erroneous in
regard to the law of France. 1 C. P. D. 358.
In view of the recent decisions in England, it is somewhat
remarkable that, by the Indian Code of Civil Procedure of
1877, "no foreign judgment" (which is defined as a judgment
of "a civil tribunal beyond the limits of British India, and
not having authority in British India, nor established by the
Governor General in Council ") "shall operate as a bar to a
suit in British India," "if it appears on the face of the pro-
ceeding to be founded on an incorrect view of international
law," or "if it is, in the opinion of the court, before which it
is produced, contrary to natural justice." Piggott on Foreign
Judgments, (2d ed.) 380, 381.
It was formerly understood in England that a foreign judg-
ment was not conclusive, if it appeared upon its face to be
founded on a mistake or disregard of Engligh law. Arnott v.
Redfern, (182'5-6) 2 Car. & P. 88, and 3 Bing. 353; S. C. 11
J. B. Moore, 209; AVovelli v. Rossi, (1831) 2 B. & Ad. 757;
3.Burge on Colonial and Foreign Laws, 1065; 2 Smith's Lead.
Cas. (2d ed.) 448; Reimers v. Druce, (1856) 23 Beavan, 145.
In Simpson v. Fogo, (1860) 1 Johns. & Hem. 18, and (1862)
1 Hem. & Mil. 195, Vice-Chancellor Wood (afterwards Lord
Hatherley) refused to give effect to a judgment in personam
of a court in Louisiana, which bad declined to recognize the
title of a mortgagee of an English ship under the English
Jaw. In delivering judgment upon demurrer, he said: "The
State of Louisiana may deal as it pleases with foreign law;
but if it asks courts of this country to respect its law, it
must be on a footing of paying a like respect to ours. Any
comity between the courts of two nations holding such
OCTOBER TERM, 1894.
opposite doctrines as to the authority of the lex loci is im-

possible. While the courts of Louisiana refuse to recognize
a title acquired here which is valid according to our law,
and hand over to their own citizens property so acquired,
they cannot at'the same time expect us to defer to a rule
of their law which we are no more bound to respect than a
law that any title of foreigners should be disregarded in
favor of citizens of Louisiana. The answer to such a demand
must be, that a country which pays so little regard to our laws,
as to set aside a paramount title acquired here, must not expect
at our hands any greater regard for the competing title so
acquired by the citizens of that country." 1 Johns. & Hem.
28, 29. And upon motion for a decree, he elaborated the
same view, beginning by saying, "Whether this judgment
does so err or not against the recognized principles of what
has been commonly called the comity of nations, by refusing
to regard the law of the country where the title to the ship
was acquired, is one of the points which I have to consider;"
and concluding that it was "so contrary to law, and to what
is required by the comity of nations," that he must disregard
it. 1 Hem. & Mil. 222-247. See also Liverpool Co. v.
iunter, (1867) L. R. 4 Eq. 62, 68, and (1868) L. R. 3 Ch.
479, 484.
In Scott v. Pilkington,(1862) Chief Justice Cockburn treated
it as an open question whether a judgment recovered in
New York for a debt could be impeached on the ground
that the record showed that the foreign court ought to
have decided the case according to English law, and had
either disregarded the comity of nations by refusing to apply
the English law, or erred in its view of English law. 2 B. &
S. 11, 42. In Castrique v. Imrie, (1870) the French judgment
which was adjudged not to be impeachable for error in law,
French or English, was, as the House of Lords construed it,
a judgment ii rem, under which the ship to which the plain-
tiff in England claimed title had beei sold. L. R. 4 H. L.
414. In Godard v. Gray, (1870) shortly afterwards, in which
the Court of Queen's Bench held that a judgment in personam
of a French court could not be impeached because it had put
HILTON v. GUYOT.
a construction erroneous, according to English law, upon an

English contract, the decision was put by Justices Blackburn
and Mellor upon the ground that it did not appear that the
foreign court had "knowingly and perversely disregarded the
rights given by the English' law;" and by Justice Hannen,
solely upon the ground that the defendant did not appear to
have brought the English law to the knowledge of the foreign
court. L. R. 6 Q. B. 139, 149, 154. In Jfessina v. Petro-
coochino, (1872) Sir Robert Phillimore, delivering judgment
in the Privy Council, said: " A foreign judgment of a com-
petent court may indeed be impeached, if it carries on the
face of it a manifest error." L. R. 4 P. C. 144, 157.
The result of the English decisions, therefore, would seem
to be that a foreign judgment inpersonam may be impeached
for a manifest and wilful disregard of the law of England.
Lord Abinger, Baron Parke and Baron Alderson were wont
to say that the judgment of a foreign court of competent juris-
diction for a sum certain created a duty or legal obligation to
pay that sum; or, in Baron Parke's words, that the principle
on which the judgments of foreign and colonial courts are sup-
ported and enforced was, "that where a court of competent
jurisdiction has adjudicated a certain sum to be due from one
person to another, a legal obligation arises to pay that sum,
on which an action of debt to, enforce the judgment may be
maintained." Russell v. Smyth, (1842) 9 M. & W. 810, 818,
819; Williams v. Jones, (1845) 13 M. & W. 628, 633, 634.
But this was said in explaining why, by the technical rules
of pleading, an action of assumpsit, or of debt, would lie upon
a foreign judgment; and had no reference to the question how
far such a judgment was conclusive of the matter adjudged.
At common law, an action of debt would lie on a debt appear-
ing by a record, or by any other specialty, such as a contract
under seal; and would also lie for a definite sum of money due
by simple contract. Assumpsit would nt lie upon a record or
other specialty; but would lie upon any other contract, whether
expressed by the party, or implied by law. In an action upon
a record, or upon: a contract under seal, a lawful consideration
was conclusively presumed to exist, and could not be denied;
OCTOBER TERM, 1894.
but in an action, whether in debt Or in assumpsit, upon a sim-

ple contract, express or implied, the consideration was open to
inquiry. A foreign judgment was not considered, like a judg-
ment of a domestic court of record, as a record or specialty.
The form of action, therefore, upon a foreign judgment was
not in debt, grounded upon a record or a specialty; but was
either in debt, as for a definite sum of money due by simple
contract, or in assumpsit upon such a contract. A foreign
judgment, being a security of no higher nature than the orig-
inal cause of action, did not merge that cause of action. The
plaintiff might sue, either on the judgment, or on the original
cause of action ; and in either form of suit the foreign judg-
ment was only evidence of a liability equivalent to a simple'
contract, and was therefore liable to be controlled by such
competent evidence as the nature of the case admitted. See
cases already cited, especially Walker v. Witter, 1 Doug. 1;
Phillips v. Hunter, 2 H. Bl. 402, 410; Bissell v. Briggs, 9
Mass. 463, 464; Jilills v. Duryee, 7 Cranch, 481, 485; D'Arcy
v. Ketchum, 11 How. 165, 176; Ball v. Odber, 11 East, 118;
Smith v. Nicoils, 7 Scott, 147; S. C. 5 Bing. N. C. 208. See
also Grant v. Easton, 13 Q. B. D. 302, 303; Lyman v. Brown,
2 Curtis, 559.
Mr. Justice. Blackburn, indeed, in determining how far a
foreign judgment could be impeached, either for error in law,
Pr for want of jurisdiction, expressed the opinion that the ef-
fect of such a judgment did not depend upon what he termed
"that which is loosely called ' comity,'" but upon the saying
of Baron Parke, above quoted.; and consequently "that any-
thing which negatives the existence of that legal obligation,
or excuses the defendant from the performance of it, must
form a good defence to the action." Godard v. Gray, (1870)
L. R. 6 Q. B. 139, 148, 149; Schibsby v. Westenholz, (1870)
L. R. 6 Q. B. 155, 159. And his example has been followed
by some other English judges. Fry, J., in Rousillon v.
Rousillon, (1880) 14 Ch. D. 351, 370 ; North, J., in Nouvion
v. Freeman, (1887) 35 Ch. D. 704, 714, 715; Cotton and Lind-
ley, L. JJ., in Nouvion v. Freeman, (1887) 37 Ch. D. 244, 250,
256.
HILTON v. GUYOT.
But the theory that a foreign judgment imposes or creates

a duty or obligation is a remnant of the ancient fiction, as-
sumed by Blackstone, saying that "upon showing the judg-
ment once obtained, still in full force, and yet ansatisfied, the
law immediately implies that by the original contract of society
the defendant hath contracted a debt, and is bound to pay it."
3 BI. Com. 160. That fiction, which embraced judgments upon
default, or for torts, cannot convert a transaction wanting the
assent of parties into one which necessarily implies it. Louis-
iana v. New Orleans, 109 U. S. 285, 288. While the theory
in question may help to explain rules of pleading which oriki-
nated while the fiction was believed in, it is hardly a sufficient
guide at the present day in dealing with questions of inter-
national law, public or private, and of the comity of cur own
country, and of foreign nations. It might be safer to adopt
the maxim, applied to foreign judgments by Chief Justice
Weston, speaking for the Supreme Judicial Court of Maine,
judiium redditur in invitum, or, as given by Lord Coke, in
prrsumptionelegis judicium,redditur in.invitum. Jordan v.
Robinson, (1838) 15 Maine, 167, 168; Co. Lit. 248 b.
In Russell v. Smyth, above cited, Baron Parke took the pre-
caution of adding, "Nor need we say how far the judgment
of a court of competent jurisdiction, in the absence of fraud,
is conclusive upon the parties." 9 M. & W. 819. He could
hardly have contemplated erecting a rule of local procedure
into a canon of private internationi law, and a substitute for
"the comity of nations," on which, in an earlier case, he had
himself relied as the ground for enforcing in England a right
.created by a law of a foreign country. Alivon v. Furuival,
1 Cr., M. & R. 277, 296; S. C. 4 Tyrwh. 751, 771.
In Aboulof v. Oppenheimer, (1882) Lord Coleridge and Lord
Justice Brett carefully avoided adopting the theory of a legal
obligation to pay a foreign judgment as the test in determfin-
ing how fdr such a judgment might be impeached. 10 Q. B. D.
295, 300, 305. In IJawksford v. Gifard,(1886) in the Privy
Council, on appeal from the Royal Court of Jersey, Lord Her-
schell said: "This action is brought upon an English judg-
ment, which, until a judgment was obtained in Jersey, was in
OCTOBER TERIM, 1894.
that country no more than evidence of a debt." 12 App. Cas.

122, 126. In Nouviom v. _Freeman, in the House of Lords,
(1889) Lord Herschell, while he referred to the reliance placed
by counsel on the saying of Baron Parke, did not treat a for-
eign judgment as creating or imposing a new obligation, but
only as declaring and establishing that a debt or obligation
existed. His words were: "Tho principle upon which I think
our enforcement of foreign judgments must proceed is this:
that in a court of competent jurisdiction, where according to
its established procedure the whole merits of the case were
(pen, at all events, to the parties, however much they may
have failed to take advantage of them, or may have waived
any of their rights, a final adjudication has been given that
a debt or obligation exists, which cannot thereafter in that
court be 'disputed, and can only be questioned in an appeal to
a higher tribunal. In such a case it may well be said that, giv-
ing credit to the courts of another country, we are prepared
to take the fact that such adjudication has been made as es-
tablishing the existence of the debt or obligation." And
Lord Bramwell said: "How can it be said that there is a
legal obligation on the part of a man to pay a debt, who has
a right to say, 'I owe none, and no judgment has estab-
lished against me that I do?' I cannot see." The foreign
judgment in that case was allowed no force, for want of finally
establishing the existence .of a debt. 15 App. Cas. 1, 9, 10, 14.
In view of all the authorities upon the subject, and of the
trend of judicial opinion in this country and in England, fol-
lowing the lead of Kent and Story, we are satisfied that, where
there has been opportunity for a full and fair trial abroad
before a court of competent jurisdiction, conducting the trial
upon regular proceedings, after due citation or voluntary ap-
pearance of the defendant, and under a system of jurispru-
dence likely to secure an impartial administration of justice
between the citizens of its own country and those. of other
countries, and there is nothing to show either prejudice in the
court, or in the system of laws under which it was sitting, or
fraud in procuring the judgment, or any other special reason
:y the comity of this nation should not allow it full effect,
HILTON v. GUYOT.
Opinion of the Court
the merits of the case should not, in an action brought in this

country upon the judgment, be tried afresh, as on a new trial
or an appeal, upon the mere assertion of the party that the
judgment was erroneous in law or in fact. The defendants,
therefore, cannot be permitted, upon that general ground, to
contest the validity or the effect of the judgment sued on.
But they have sought to impeach that judgment upon
several other grounds, which require separate consideration.
It is objected that the appearance and litigation of the de-
fendants in the French tribunals were not voluntary, but by
legal compulsion, and therefore that the French courts nbver
acquired such jurisdiction over the defendants, that they
should be held bound by the judgment.
Upon the question what should be considered such a volun-
tary appearance, as to amount to a submission to the jurisdic-
tion of a foreign court, there has been some difference of
opinion in England.
In General Steam Navigation Co. v. Guillou, (1843) in an
action at law to recover damages to the plaintiff's ship by a
collision with the defendant's ship through the negligence of
the master and crew of the latter, the defendant pleaded a
judgment by which a French court, in a suit brought by him,
and after the plaintiffs had been cited, had appeared, and had
asserted fault on this defendant's part, had adjudged that it
was the ship of these plaintiffs, and not that of this defendant,
which was in fault. It was not shown or suggested that the
ship of these plaintiffs was in the custody or possession of
the French court. Yet Baron Parke, delivering a considered
judgment of the Court of Exchequer, (Lord Abinger and
Barons Alderson and Rolfe concurring,) expressed a decided
opinion that the pleas were bad in substance, for these reasons:
"They do not state that the plaintiffs were French subjects,
or resident, or even present in France when the suit began, so
as to be bound by reason of allegiance, or domicil, or tempo-
rary presence, by a decision of a French court; and they did
not select the tribunal and sue as plaintiffs; in any of which
cases the determination might have possibly bound them.
They were mere strangers, who put forward the negligence
OCTOBER TERM, 1894.
of the defendant as an answer, in an adverse' suit in a foreign

country, whose laws they were under no obligation to obey."
11 M. & W. 877, 894; S. C. 13 Law Journal (N. S.) Exch.
168, 176.
But -it is now settled in England that, while an appearance
by the defendant in a court of a foreign country, for the pur-
pose of protecting his property already in the possession of
that court, may not be deemed a voluntary' appearance, yet
an appearance solely for the purpose of protecting other
property in that country from. seizure is considered as a volun-
tary appearance. De Cos8e Bri8ae v. Rathbone, (1860). 6 H.
& N. 301; S. C. 20 Law Journal (N. S.) Exch. 238; Schibsby
v. WetenAolz, (1870) L. R. 6 Q. B. 155, 162; Voinet v. Barrett,
(1885) 1 Cab. & El. 554; S. 0. 54 Law Journal (N. S.) Q. B.
521, and 55 Law Journal (N. S.) Q. B. 39.
The present case is not one of a person travelling through
or casually found in a foreign country. The defendants,
although they were not citizens or residents of France, but
were citizens and residents of the State of New York, and
their principal place of business was in the city of New York,
yet had a storehouse and an agent in Paris, and were accus-
tomed to purchase large quantities of goods there, although
they did not make sales in France. Under such circumstances,
evidence that their sole object in appearing and carrying on
the litigation in the French courts was to prevent property,
in their storehouse at Paris, belonging to them, and within
the jurisdiction, but not in the custody, of those courts, from
being taken in satisfaction of any judgment that migi:.t be
recovered against them, would not, according to our law, show
that those courts did not acquire jurisdiction of the persons of
the defendants.
It is next objected that in those courts one of 'the plaintiffs
was permitted to testify not under oath, and was not subjected
to cross-examination by the opposite party, and that the de-
fendants were, therefore, deprived of safeguards which are by
our law considered essential to secure honesty and to detect
fraud in a witness; and also that documents and papers were
admitted in evidence, with which the defendants had no con-
HILTON v. GUYOT.
nection, and which would not be admissible under our own

system of jurisprudence. But it having been shown by the
plaintiffs, and hardly denied by the defendants, that the prac-
tice followed and the method of examining witnesses were
according to the laws of France, we are not prepared to hold
that the fact that the procedure in these respects differed from
that of our own courts is, of itself, a sufficient ground for im-
peaching the foreign judgment.
It is also contended that a part of the plaintiffs' claim is
affected by one of the contracts between the parties having
been made in violation of the revenue laws of the United
States, requiring goods to be invoiced at their actual market
value. Rev. Stat. § 2854. It may be assumed that, as the
courts of a country will not enforce contracts made abroad in
evasion or fraud of its own laws, so they will not enforce a
foreign judgment upon such a contract. Armstrong v. Toler,
11 Wheat. 258; DeBrimont v. Penniman, 10 Blatchford, 436;
Lang v.-Holbrook, Crabbe, 179; Story's Conflict of Laws, §§ 244,
246 ; Wharton's Conflict of Laws, § 656. But as this point does
not affect the whole claim in this case, it is sufficient, for
present purposes, to say that there does not appear to have
been any distinct offer to prove that the invoice value of any
of the goods sold by the plaintiffs to the defendants was agreed
between them to be, or was, in fact, lower than the actual
market value of the goods.
It must, however, always be kept in mind that it is the par-
amount duty of the court, before which any suit is brought,
to see to it that the parties have had a fair and impartial trial,
before a final decision is rendered against either party.
When an action is brought in a court of this country, by a
citizen of a foreign country against one of our-own citizens, to
recover a sum of money adjudged by a court of that country
to be due from the defendant to the plaintiff, and the foreign
judgment appears to have been rendered by a competent court,
having jurisdiction of the cause and of the parties, and . upon
due allegations and proofs, and opportunity to defend against'
them; and its proceedings are according to the course of a
civilized jurisprudence, and are stated in' a clear and formal
OCTOBER TERM, 1894.
record, the judgment is primafacie evidence, at least, of the

truth of the matter adjudged; and it should be held conclusive
upon the merits tried in the foreign court, unless some special
ground is shown for impeaching the judgment, as by showing
that it was affected by fraud or prejudice, or that, by the
principles of international law, and by the comity of our own
country, it should not be given full credit and effect.
There is no doubt that both in this country, as appears by
the authorities already citedi and in England, a foreign judg-
ment may be impeached for fraud.
Shortly before the Declaration of Independence, the House
of Lords, upon the trial of the Duchess of Kingston for
bigamy, put to the judges the question whether - assuming
a sentence of the ecclesiastical court against a marriage, in a
suit for jactitation of marriage, to be conclusive evidence so as
to prevent the counsel for the Crown from proving the mar-
riage upon an indictment for polygamy- "the counsel for the
Crown may be admitted to avoid the effect of such setatence,
by proving the same to have been obtained by fraud or collu-
sion." Chief Justice De Grey, delivering the opinion of the
judges, which was adopted by the House of Lords, answering
this question in the affirmative, said: "But if it was a direct
and decisive sentence upon the point, and, as it stands, to be
admitted as conclusive evidence upon the court, and not to be
impeached from within; yet, like all other acts of the highest
judicial authority, it is impeachable from without; although it
is not permitted to show .that the court was mistaken, it may
be shown that they were misled. Fraud is an intrinsic col-
lateral act; which vitiates the most solemn proceedings of
courts of justice. Lord Coke says, it avoids all judicial acts,
ecclesiastical .or temporal." 20 Howell's State Trials, 537,
543, note; S. .in 2 Smith's Lead. Cas.
All the subsequent English authorities concur in holding
that any foreign judgment, whether in rem or in personam,
may be impeached upon the ground that it was fraudulently
obtained. W/hit v. Hall, (1806) 12 Ves. 321, 324; Bowles v.
Orr, (1835) 1 Y6. & Col. Exch. 464, 473; Price v. DewlArut,
(1837) 8 Sim. 279, 302-305; Don v. Lippmann, (1837) 5 Cl. &
HILTON v. GUYOT.
Fin. 1, 20; Bank of Australasia v. Nias, (1851) 16 Q. B. 717,

735; Reimers v. Druce, (1856) 23 1Beavan, 145, 150; Castrique
v. Imrie, (1870) L. R. 4 11. L. 414, 445, 446; Godard v. Gray,
(1870) L.R. 6 Q. B.139, 149; Messina v. Petrococchino,(1872)
L. R. 4 P. C. 144, 157; Ocheenbein v. Papelier,(1873) L. R. 8
Ch. 695.
Under what circumstances this may be done does not
appear to have ever been the subject of judicial investigation
in this country.
It has often, indeed, been declared by this court that .the
fraud which entitles a party to impeach the judgment of one
of our own tribunals must be fraud extrinsi6 to the matter tried
in the cause, and not merely consist in false and fraudulent
documents or testimony submitted to that tribunal, and the
truth of which was contested before it and passed upon by it.
United States v. Throckmorton, 98 U. S.61, 65, 66 ; Vance v.
Burbank, 101 U. S. 514, 519 ; Steel v. Smelting Co., 106 U. S.
447, 453; Mofat v. United States, 112 U. S. 24, 32; United
States v. Minor, 114 U. S. 233, 242. And in one English case,
where a ship had been sold under a foreign judgment, the like
restriction upon impeaching that judgment for fraud was sug-
gested; but the decision was finally put upon the ground that
the judicial sale passed the title to the ship. Cammell v.
Sewell, (1858-60) 3 I. & N. 617, 646; 5 I. & N. 728, 729,
742.
But it is now established in England, by well considered
and strongly reasoned decisions of the Court of Appeal, that
foreign judgments may be impeached, if procured by false and
fraudulent representations and testimony of the plaintiff, even
if the same question of fraud was presented to and decided by
the foreign court.
In Aboulof v. Oppenheimer, (1882) the plaintiff had re-
covered a judgment at Tiflis in Russia, ordering the defend-
ants to return certain goods or to pay their value. The
defendants appealed to a higher Russian court, which con-
firmed the judgment, and ordered the defendants to pay,
besides the sum awarded below, an additional sum for costs
and expenses. In an action in the English High Court of
OCTOBER TERM, 1894.
Justice upon those judgments, the defendants pleaded that

they were obtained by the gross fraud of the plaintiff, in
fraudulently representing to the Russian courts that the goods
in question were not in her possession when the suit was com-
menced, and when the judgment was given, and during the
whole time the suit was pending; and by fraudulently con-
cealing from those courts thu fact that those goods, as the
fact was, and as she well knew, were in her actual possession.
A demurrer to this plea was overruled, and judgment entered
for the defendants. And that judgment was affirmed in the
Court of Appeal by Lord Chief Justice Coleridge, Lord Justice
Baggallay and Lord Justice Brett, all of whom delivered con-
curring opinions, the grounds of which sufficiently appear in
the opinion delivered by Lord Justice Brett (since Lord Esher,
Master of the Rolls), who said: "With regard to an action
brought upon a foreign judgment, the whole doctrine as to
fraud is English, and is to be applied in an action purely
English. I am prepared to hold, according to the judgment
of the House of Lords adopting the proposition laid down by
De Grey, C. J., that if the judgment upon which the action is
brought was procured from the foreign court by the successful
fraud of the party who is seeking to enforce it, the action in
court will not lie. This proposition is absolute
and English
the
without any limitation, and, as the Lord Chief Justice
has
pointed out, is founded on the doctrine that no party in an
English court shall be able to take advantage of his own
wrongful act, or, as it may be stated in other language, that no
obligation can be enforced in. an English court of justice which
has been procured by the fraud of the person relying upon it
as an obligation." "I will assume that in the suit in the Rus-
sian courts the plaintiff's fraud was alleged by the defendants,
and that they gave evidence in support of the charge. I will
assume even that the defendants gave the very same evidence
which they propose to adduce in this action ; nevertheless the
defendants will not be debarred at the trial of this action from
making the same charge of fraud and from adducing the same
evidence in support of it; and if the High Court of Justice is
satisfied that the allegations of the defendants are true, and
HILTON v. GUYOT.
that the fraud was committed, the defendants will be entitled

to succeed in the present action. It has been contended that
the same issue ought not to be tried in an English court which
Was tried in the Russian courts; but I agree that the question
vhether the Russian courts were deceived never could be an
issue in the action tried before them." "In the present case,
we have had to consider the question fully; and, according to
the best opinion which I can form, fraud committed by a party
to a suit, for the purpose of deceiving a foreign court, is a
defence to an action in this country, founded upon the judg-
ment of that foreign court. It seems to me that if we were to
accede to the argument for the plaintiff, the result would be
that a plausible deceiver would succeed, whereas a deceiver
who is not plausible would fail. I cannot think that plausible
-fraud ought to be upheld in any court of justice in England.
I accept the whole doctrine, without any limitation, that when-
ever a foreign judgment has been obtained by the fraud of the
party relying upon it, it cannot be maintained in the courts of
this country ; and further, that nothing ought tp persuade an
English court to enforce a judgment against one party, which
has been obtained by the fraud of the other party to the suit
in the foreign court." 10 Q. B. D. 295, 305-308.
The same view was affirmed and acted on in the same
court by Lords Justices Lindley and Bowen in Vadalav. Lawem,
(1890) 25 Q. B. D. 310, 317-320, and by Lord Esher and
Lord Justice Lopes in Crozat v. Brogden, (1894) 2 Q. B. 30,
34,
In35.the case at bar, the defendants offered
to prove, in
much detail, that the plaintiffs presented to the French
court of first instance and to the arbitrator appointed by
that court, and upon whose report its judgment was largely
based, false and fraudulent statements and accounts against
the defendants, by which the arbitrator and the French
courts were deceived and misled, and their judgments were
based upon such false and fraudulent statements and accounts.
This offer, if satisfactorily proved, would, according to the
decisions of the English Court of Appeal in Aboulqf/v. Oppen-
Aeimer, Vadala v. Lawes, and Crozat v. Brogden, above cited,
VOL. CLix-14
OCTOBER. TERM, 1894.
be a sufficient ground for impeaching the foreign judgment,

and examining into the merits of the original claim.
But whether those decisions can be followed in regard to
foreign judgments, consistently with our own decisions as
to impeaching domestic judgments for fraud, it is unneces-
sary in, this case to determine, because there is a distinct
and independent ground upon which we are satisfied that
the comity of our nation does not require us to give con-
clusive effect to the judgments of the courts of France; and
that ground is, the want of reciprocity, on the part of France,
as to the effect to be given to the judgments of this and
other foreign countries.
In France, the Royal Ordinance of June 15, 1629, art. 121,
provided as follows: "Judgments rendered, contracts or ob-
ligations recognized, in foreign kingdoms and sovereignties,
for any cause whatever, shall have no lien or execution in
our kingdom. Thus the contracts shall stand for simple
promises; and, notwithstanding the judgments, our subjects
against whom they have been rendered may contest- their
rights anew before our judges." Touillier, Droit Civil, lib. 3,
tit. 3, c. 6, sect. 3, no. 77.
By the French Code of Civil Procedure, art. 546, "Judg-
ments rendered by foreign tribunals, and acts acknowledged
before foreign officers, shall not be. capable of execution in
France, except in the manner and in the cases provided by
articles 2123 and 2128 of the Civil Code," which are as
follows: By article 2123, "A lien cannot arise from judg-
ments rendered in a foreign country, except so far as they
have been declared executory by a French tribunal; with-
out prejudice to provisions to the contrary which may exist
in public laws and treaties." By article 2128, "Contracts
entered into in a foreign country cannot give a lien upon
property in France, if there are no provisions contrary to
this principle in public laws or in treaties." Touillier, ub.
sup. no. 84.
The defendants, in their answer, cited the above pro-
visions of the statutes of France, and alleged, and at the
trial offered to prove, that by the construction given to
HILTON v. GUYOT.
these statutes by the judicial tribunals of France, when the

judgments of tribunals of foreign countries against the
citizens of France are sued upon in.the courts of France,
the merits of the controversies upon which those judgments
are based are examined anew, unless a treaty to the con-
trary effect exists between the Republic of France and the
country in which such judgment is obtained, (which is not
the case between the Republic of France and the United
States,) and that the tribunals of the Republic of France
give no force and effect, within the jurisdiction of that
country, to the judgments duly rendered by courts of com-
petent jurisdiction of the United States against citizens of
France after proper personal service of the process of those
courts has been made thereon in this country. We are of
opinion that this evidence should have been admitted.
In Odwin v. Forbes,(1817) President Henry, in the Court of
Demerara, which was governed by the Dutch law, and was, as
he remarked, "a tribunal foreign to and independent of that
of England," sustained a plea of an English certificate in
bankruptcy, upon these grounds: "It is a principle of their
law, and laid down particularly in the ordinances of Amster-
dam," "that the same law shall be exercised towards foreign-
ers in Amsterdam as is exercised with respect to citizens of
that State in other countries; and upon this principle of reci-
procity, which is not confined to the city of Amsterdam, but
pervades the Dutch laws, they have always given effect to
the laws of that country which has exercised the same comity
and indulgence in admitting theirs." "That the Dutch bank-
rupt laws proceed on the same principles as those of the Eng-
lish ; that the English tribunals give effect to the Dutch
bankrupt laws.; and that, on the principle of reciprocity and
mutual comity, the Dutch tribunals, according to their own
ordinances, are bound to give effect to the-English bankrupt
laws when duly proved, unless there is any express law or"
ordinance prohibiting their admission." And his judgment
was affirmed in the Privy Council on Appeal. Case of Odwin
v. Forbes, pp. 89, 159-161, 173-176; S. C. (1818) Buck Bankr.
Cas. 57, 64-
OCTOBER TERM, 1894.
President Henry, at page 76 of his Treatise on Foreign

Law, published as a preface to his report of that case, said:
"This comity, in giving effect to the judgments of other
tribunals, is generally exercised by States under the same
sovereign, on the ground that he is the fountain of justice in
each, though of independent jurisdiction; and it has also been
exercised in different States of Europe with respect to foreign
judgments, particularly in the Dutch States, who are accus-
tomed by the principle of reciprocity to give effect in their
territories to the judgments. of foreign States, which show the
same comity to theirs; but the tribunals of France and Eng-
land have never exercised this comity to the degree that those
of Holland have, but always required a fresh action-o be
brought, in which the foreign judgment may be given in evi-
dence. As this is a matter of positive law and internal policy
in each State, no opinion need be given; besides, it is a mere
question of comity, and perhaps it: might be neither politic nor
prudent, in two such great States, to give indiscriminate effect
to the judgment of each other's tribunals, however the prac-
tice might be proper or convenient in federal States, or those
under the same sovereign."
It was that statement, which appears to have called forth
the observations of Mr. Justice Story, already cited: "Hol-
land seems at all times, upon the general principle of reci-
procity, to have given great weight. to foreign judgments, and
in many cases, if not in all cases, to have given to them a
weight equal to that given to domestic judgments, wherever
the like rule of reciprocity with regard to Dutch judgments
has been adopted by the foreign country whose judgment
is brought under review. This is certainly a very reasonable
rule, and may perhaps hereafter work itself firmly into the
structure of international jurisprudence." Story's Conflict of
Laws, § 618.
This rule, though never either affirmed or denied by express
adjudication in England or America, has been indicated, more
or less distinctly, in several of the authorities already cited.
Lord [lardwicke threw out a suggestion that the credit to
be given by one, court to the judgment of a foreign court
HILTON v. GUYOT.
might well be affected by "their proceeding both by the same

rules of law." Otway v. Ramsay, 4 B. & C. 414-416, note.
Lord Eldon, after saying that, natural law " (evidently in-
tending the law of nations) "requires the courts of this coun-
try to give credit to those of another for the inclination and
power to do justice," added that "if it appears in evidence,
that persons suing under similar circumstances neither had
met, nor could meet, with justice, that fact cannot be imma-
terial as an answer to the presumption." Wright v. Simpon,
6 Ves. 714, 730.
Lord Brougham, presiding as Lord Chancellor in the House
of Lords, said: "The law in the course of procedure abroad
sometimes differs so mainly from ours in the principles upon
which it is bottomed, that it would seem a strong thing to
hold that our courts were bound conclusively to give execution
to the sentence of foreign courts, when, for aught we know,
there is not any one of those things which are reckoned the
elements or the corner stones of the due administration of
justice, present to the procedure in these foreign courts."
Houlditch v. Donegal, 8 Bligh N. R. 301, 338.
Chief Justice Smith, of New Hampshire, in giving reasons
why foreign judgments or decrees, founded on the municipal
laws of the State in which they are, pronounced, are not con-
clusive evidence of debt, but primafacie evidence only, said:
"These laws and regulations may be unjust, partial to citi-
zens, and against foreigners; they may operate injustice to our
citizens, whom we are bound to protect; they may be, and
the decisions of courts founded on them, just cause of com-
plaint against the supreme power of the State where rendered.
To adopt them is not merely saying that the courts have de-
cided correctly on the law, but it is approbating the law itsel"
Bryant v. Ela, Smith. (N.H.) 396, 404.
Mr. Justice Story said: "If a civilized nation seeks to have
the sentences of its own courts held of any validity elsewhere,
they ought to have a just regard to the rights and usages of
other civilized nations, and the principles of public and na-
tional law in the administration of justice.'? Brad8treet v.
Neptune Ins. Co., 3 Sumner, 600, 608.
OCTOBER TERM, 1894.

Mr. Justice Woodbury said that judgments in personam,
rendered under a foreign government, "are, ex comitate,

treated with respect, according to the nature of the judg-
ment, and the character of the tribunal which rendered it,
and the reciprocal mode, if any, in which that government
treats our judgments;" and added, "Nor can much comity
be asked for the judgments of another nation, which, like
France, pays no respect to those of other countries." Burn-
ham v. Webster, 1 Woodb. & Min. 172, 175, 179.
Mr. Justice Cooley said, "True comity is equality; we
should demand nothing more, and concede nothing less."
XoEwan v. Zimmer, 38 Michigan, 765, 769.
Mr. Wheaton said: "There is no obligation, recognized by
legislators, public authorities, and publicists, to regard foreign
laws; but their application is admitted only from considera-
tions of utility and the mutual convenience of States -ex
comitate, ob reciprocam utilitatem." "The general comity,
utility and convenience of nations have, however, established
a usage among most civilized States, by which the final judg-
ments of foreign courts of competent jurisdiction are recipro-
cally carried into execution." Wheaton's International Law,
(8th ed.) § 79, 147.
Since Story, Kent and Wheaton wrote their commentaries,
many books and essays have been published upon the subject
of the effect to be allowed by the courts of one country to the
judgments of another, with references to the statutes and de-
cisions in various countries. Among the principal ones are
Foelix, Droit International Privo, (4th ed. by Demangeat, 1866)
lib. 2, tits. 7, 8; Moreau, Effets Internationaux des Jugements
(1884); Piggott, on Foreign Judgments (2d ed. 1884); Con-
stant, de l'Ex6cution des Jugements Etrangers (2d ed. 1890),
giving the text of the articles of most of the modern codes
upon the subject, and of French treaties with Italian, Ger-
man and Swiss States; and numerous papers in Clifnet's
Journal de Droit International Priv6, established in 1874,
and continued to the present time. For the reasons stated
at the outset of this opinion, we have not thought it impor-
tant to state the conflicting theories of continental commenta-
HILTON v. GUYOT.
tors and essayists as to what each may think the law ought
to be; but have referred to their works only for evidence of
authoritative declarations, legislative or judicial, of what the
law is.
By the law of France, settled by a series of uniform decis-
ions of the Court of Cassation, the highest judicial tribunal,
for more than half a century, no forpign judgment can be
rendered executory in France-without a review of the judg-
ment au fond- to the bottom, including; the whole merits
of the cause of action on which the judgment rests. Par-
dessus, Droit Commercial, § 1488; Bard, Precis de Droit
International, (1883) nos. 234-239; Story's Conflict of Laws,
§§ 615-617; Piggott, 452; Westlake on Private International
Law, (3d ed. 1890) 350.
A leading case was decided by the Court of Cassation on
April 19, 1819, and was as follows: A contract of partnership
was made between Holker, a French merchant, and Parker,
a citizen of the United States. Afterwards, and before the
partnership accounts were settled, Parker came to France,
and Holker sued him in the Tribunal of Commerce of Paris.
Parker excepted, on the ground that he was a foreigner, not
domiciled in France; and obtained a judgment, affirmed on
appeal, remitting the matter to the American courts - obtint
son renvoi devant les tribunaux Amg 'icains. Holker then
sued Parker in the Circuit Court of the United States for
the District of Massachusetts, and in 1814 obtained a judg-
ment there, ordering Parker to pay him $529,949. (One
branch of the controversy had been brought before this
court in 1813. Holke. v. Parker, 7 Cranch, 436.) Holker,
not being able to obtain execution of that judgment in
America, because Parker had no property there and con-
tinued to reside in Paris, obtained from a French judge an
order declaring the judgment executory. Upon Parker's
application to nullify the proceeding, the Royal Court of
Paris, reversing the judgment of a lower court, set aside that
order, assigning these reasons: "Considering that judgments
rendered by foreign courts have neither effect nor authority
in France; that this rule is doubtless more particularly appli-
OCTOBER TERM, 1894.
cable in favor of Frenchmen, to whom the King and his officers

owe a special protection; but that the principle is absolute,
and may be invoked by all persons without distinction, being
founded on the independence of States; that the Ordinance
of 1629, in the beginning of its article 121, lays down the
principle in its generality, when it says that judgments ren-
dered in foreign kingdoms and sovereignties, for any cause
whatever, shall have no execution in the Kingdom of France;
and that the Civil Code, art. 2123, gives to this principle the
same latitude, when it declares that a lien cannot result from
judgments rendered in a foreign country, except so far as
they have been declared executory by a French tribunal -
which is not a matter of mere form, like the granting in past
times of a pareati8 from one department to another for judg-
ments rendered within the kingdom; but which assumes, on
the part of the French tribunals, a cognizance of the cause,
and a full examination of the justice of the judgment pre-
sented for execution, as reason demands, and this has always
been practised in France, according to the testimony of our
ancient authorities; that there may regult from this an incon-
venience, where the debtor, as is asserted to have happened
in the present case, removes his property and his person to
France, while keeping his domicil in his native country; that
it is for the creditor to be watchful, but that no consideration
can impair a principle on which rests the sovereignty of
governments, and which, whatever be the case, must preserve
its whole force." The court therefore adjudged that, before
the tribunal of first instance, Holker should state the grounds
of his action, to be contested by Parker, and to be determined
by the court upon cognizance of the whole cause. That
judgment was confirmed, upon deliberate consideration, by
the Court of Cassation, for the reasons that the Ordinance
of 1629 enacted, in absolute terms and without exception,
that foreign judgments should not have execution in France;
that it was only by the Civil Code and the Code of Civil
Procedure that the Fiench tribunals had been authorized
to declare them executory; that therefore the Ordinance
of 1629 had no application; that the articles of the Codes.
HILTON v. GUYOT.
referred to, did not authorize the courts to declare judgments,

rendered in a foreign country, executory in France without
examination; that such an authorization would be as contrary
to the institution of the courts, as would be the award or the
refusal of execution arbitrarily and at will; would impeach
the right of sovereignty of the French government, and was
not, in the intention of the legislature; and that the Codes
made no distinction between different judgments rendered
in a foreign country, and permitted the judges .to declare
them all executory ; and therefore those judgments, whether
against a Frenchman or against a foreigner, were subject to
examination on the merits. Holker v. Parker,Merlin, Ques-
tions de Droit, Jugement, § 14, no. 2.
The. Court of Cassation has ever since constantly affirmed
the same view. Moreau, no. 106, note, citing many decisions;
Clunet, 1882, p. 166. In Clunet, 1894, p. .913, note, it is said
to be "settled by judicial decisions - il est de jurisprudence
-that the French courts are bound, in the absence of special
diplomatic treaties, to proceed to the revision on the whole
merits - aufond- of foreign judgments, execution of which
is demanded of them," citing, among other cases, a decision
of the Court of Cassation on February 2, 1892, by which it
was expressly held to result from the articles of the Codes,
above cited, "that judgments rendered, in favor of a foreigner
against a Frenchman, by a foreign court, are subject, when
execution of them is demanded in France, to the revision of
the French tribunals, which have the right and the duty to
examine them, both as to the form, and as to the merits."
Sirey, 1892, 1, 201.
In Belgium, the Code of Civil Procedure of 1876 provides
that if a treaty on the basis of reciprocity be in existence
between Belgium and the country in which the foreign judg-
ment has been given, the examination of the judgment in the
Belgian courts shall bear only upon the questions whether it
"contains nothing contrary to public order, to the principles
'of the Belgian public order;" whether, by the law of the
country in which it was rendered, it has the force of r'esjudi-
cata; whether the copy is duly authenticated; whether the
OCTOBER TERM, 1894.
defendant's rights have been duly respected; and whether the

foreign court is not the only competent court, by reason of
the nationality of the plaintiff. Where, as is the case between
Belgium and France, there is no such treaty, the Belgian Court
of Cassation holds that the foreign judgment may be reexam-
ined upon the merits. Constant, 111, 116; Moreau, no. 189;
Clunet, 1887, p. 217; 1888, p. .837; Piggott, 439. And in a
very receht case, the Civil Tribunal of Brussels held that,
"considering that the right of revision is an emanation of the
right of sovereignty ; that it proceeds from the imperium,
and that, as such, it is within the domain of public law; that
from that principle it manifestly follows that, if the legisla-
ture does not recognize executory force in foreign judgments
where there exists no treaty upon the basis of reciprocity, it
cannot belong to the parties to substitute their will for that
of the legislature, by arrogating to themselves the power of
delegating to the foreign judge a portion of sovereignty."
Clunet, 1894, pp. 164, 165.
In Holland, the effect given to foreign judgments has always
depended upon reciprocity, but whether by reason of Dutch
ordinances only, or of general principles of jurisprudence,
does not clearly appear. Odwin v. Forbes, and Henry on
Foreign Law, above cited; Story's Conflict of Laws,.§ 618;
Foelix, no. 397, note; Clunet, 1879, p. 369; 1 Ferguson's
International Law, 85; Constant, 171; Moreau, no. 213.
In Denmark, the courts appear to require reciprocity to be
shown before they will execute a foreign judgment. Foelix,
nos. 328, 345; Clunet, 1891, p. 987; Westlake ub. sup. In
Norway, the courts reexamine the merits of all foreign judg-
ments, even of those of Sweden. Foelix, no. 401; Piggott,
504, 505 ; Clunet, 1892, p. 296. In Sweden, the principle of
reciprocity has prevailed from very ancient times; the courts
give no effect to foreign judgments, unless upon that principle;
and it is doubtful whether they will even then, unless reciproc-
ity is secured by treaty with the country in which the judg-
ment was rendered. Foelix, no. 400; Olivecrona, in Clunet,
1880, p. 83; Constant, 191; Moreau, no. 222; Piggott, 503;
Westlake, ub. sup.
HILTON v. GTYOT.
In the Empire of Germany, as formerly in the States which

now form part of that-Empire, the judgments of those States
are mutually executed; and the principle of reciprocity pre-
vails as to the judgments of other countries. Foelix, nos. 328,
331, 333-341; Moreau, nos. 178, 179; Vierhaus, in Piggott,
460-474; Westlake, ub. sup. By the German Code of 1877,
"compulsory execution of the judgment of a foreign court
cannot take place, unless its admissibility has been declared
by a judgment of exequatur ;" "the judgment of exequatur is
to be rendered without examining whether the decision is
conformable to law;" but it is not to be granted "if reci-
procity is not guaranteed." Constant, 79-81; Piggott, 466.
The Reichsgericht, or Imperial Court, in a case reported in
full in Piggott, has held that an English judgment cannot be
executed in Germany, because, the court said, the German
courts, by the Code, when they execute foreign judgments at
all, are "bound to the unqualified recognition of the legal
validity of the judgments of foreign courts," and "it is, there-
fore, an essential requirement of reciprocity, that the law of
the foreign State should recognize in an equal degree the legal
validity of the judgments of German courts, which are to be
enforced by its courts; and that an examination of their legal-
ity, both as regards the material justice of the decision as to
matters of fact or law, and with respect to matters of pro-
cedure, should neither be required as a condition of their execu-
tion, by the court ex oyicio, nor be allowed by the admission
of pleas which might lead to it." Piggott, 470, 471. See also
Clunet, 1882, p. 35; 1883, p. 246; 1884, p. 600.
In Switzerland, by the Federhl Constitution, civil judgments
in one canton are executory throughout the Republic. As to
foreign judgments, there is no federal law, each canton having
its own law upon the subject. But in the German cantons,
and in some of the other cantons, foreign judgments are exe-
cuted according to the rule of reciprocity only. Constant,
193-204; Piggott, 505-516; Clunet, 1887, p. 762; Westlake,
ub. sup. The law upon this subject has been clearly stated
by Brocher, President of the Court of Cassation of Geneva,
and professor of law in the university there. In his Nouveau
OCTO3ER TERM, 1894.
Trait6 de Droit International Priv6, (1876) § 174, treating of

the question whether "it might not be convenient that States
should execute, without reviewing their merits, judgments-
rendered o'n the territory of each of them respectively," he
says: "It would, certainly, be advantageous for the parties
interested to avoid the delays, the conflicts, the differences
of opinion, and the expenses resulting from the necessity of
obtaining a new judgment in each locality where they should
seek execution. There might thence arise, for each sover-
eignty, a juridical or moral obligation to lend a strong hand
to foreign judgments. But would not such an advantage be
counterbalanced, and often surpassed, by the dangers that
might arise from that mode of proceeding? There is here,
we believe, a question of reciprocal appreciation and confi-
dence. One must, at the outset, inquire whether the adminis-
tration of the foreign judiciary, whose judgments it is sought
to execute without verifying their merits, presents sufficient
guaranties. If the propriety of such an execution be admitted,
there is ground for making it the object of diplomatic treaties.
That form alone can guarantee the realization of a proper
reciprocity; it furnishes, moreover, to each State the means of
acting upon the judicial organization and procedure of other
States." In an article in the Journal, after a review of the
Swiss decisions, he recognizes and asserts that "it comes within
the competency of each canton to do what seems to it proper
in such matters." Clunet, 1879, pp. 88, 94. And in a later
treatise, he says; "We cannot admit that the recognition of
a State as sovereign ought necessarily to have as a conse-
quence the obligation of respecting and executing the judicial
decisions rendered by its tribunals; in strict right, the author-
ity of such acts does not extend beyond the frontier. Each
sovereignty possesses in particular and more or less in private,
the territory subject to its power. No other can exercise there
an act of its authority. This territorial independence finds
itself, in principle, directly included in the very act by which
one nation recognizes a foreign State as sovereign; but there
cannot result therefrom a promise to adopt, and to cause to be
executed upon the national territory, judgments rendered by
HILTON v. GUYOT.
the officials of the foreign State, whoever they may be. That
would be an abdication of its own sovereignty; and would
bind it in such sort as to make it an accomplice in acts often
injurious, and in some cases even 'criminal. Such obligations
suppose a reciprocal confidence; they are not undertaken,
moreover, except upon certain conditions, and by means of a
system of regulations intended to prevent or to lessen the
dangers which might result from them." 3 Cours de Droit
International Priv6, (1885) 126, 127.
In Russia, by the Code of 1864) "the judgments of foreign
tribunals shall be rendered executory according to the rules
established.by reciprocal treaties and conventions," and, where
no rules have been established by such treaties, are to be "put
in execution in the Empire, only after authorization granted
by the courts of the Empire;" and, "in deciding upon demands
of this kind, the courts do not examine into the foundation of
the dispute adjudged by the foreign tribunals, but decide only
whether the judgment does not contain dispositions which are
contrary to the public order, or which are not permitted by
the laws of the Empire." Constant, 183-185. Yet a cham-
ber of the Senate of St. Petersburg, sitting as a Court of Cas-
sation, and the highest judicial tribunal of the Empire in civil
matters, has declined to execute a French judgment, upon the
grounds that, by the settled law of Russia, "it is a principle
in the Russian Empire that only the decisions of the authorities
to whom jurisdiction has been delegated by the sovereign
power have legal value by themselves and of full right;" and
that "in all questions of international law, reciprocity must be
observed and maintained as a fundamental principle." Adam
v. Schipof, Clunet, 1884, pp. 45, 46, 134. And .Professor
Englemann, of the Russian University of Dorpat, in an able
essay, explaining that and other Russian decisions, takes the
following view of them: "The execution of a treaty is not
-the only proof of reciprocity." "It is necessary to commit
the ascertainment of the existence of reciprocity to the judi-
cial tribunals, for the same reasons for which there is con-
ferred upon them the right to settle all questions incident to
the cause to be adjudged. The existence of reciprocity be-
OCTOBER TERM, 1894.
tween two States ought to be proved in the same manner as

all the positive facts of the case." "It is true that the prin-
ciple of reciprocity is a principle, not of right, but of policy;
yet the basis of the principle of all regular and real policy is
also the fundamental principle of right, and the point of de-
parture of all legal order -the suum cuique. This last prin-
ciple comprehends -right, reciprocity, utility; and reciprocity
is, the application of right to policy." "Let this principle be
applied wherever there is the least guaranty, or even a prob-
ability of reciprocity, and the cognizance of this question be
committed to the judicial tribunals, and one will arrive at
important results, which, on their side, will touch the desired
end, international accord. But, for this, it is indispensable
that the application of this principle should be entrusted to
judicial tribunals, accustomed to decide affairs according to
right, and not to administrative authorities, which look above
all to utility, and are accustomed to be moved by political
reasons, intentions, and even passions." Clunet, 1884, pp. 120-
122. But it would seem that no foreign judgment will be
executed in Russia, unless reciprocity is secured by treaty.
Clunet, 1884, pp. 46, 113, 139, 140, 602.
In Poland, the provisions of the Russian Code are in force;
and the Court of Appeal of Warsaw has decided that, where
there is no treaty, the judgments of a foreign country cannot
be executed, because, "in admitting a contrary conclusion,
there would be impugned one of the cardinal principles of
international relations, namely, the principle of reciprocity,
according to which each State recognizes juridical rights and
relations, originating or established in another country, only
in the measure in which the latter, in its turn, does not disre-
gard the rights and relations existing in the former." Clunet,
1884, pp. 494, 495.
In Roumania, it is provided by code that "judicial decisions
rendered in foreign countries cannot be executed in Roumania,
except in the same manner in which Roumanian judgments
are executed in the country in question, and provided they are
(eclared executory by competent Roumanian judges;" and
this article seems to be held to require legislative reciprocity.
HILTON v. GUYOT.
Moreau, no. 219; Clunet, 1879, p. 351; 1885, p. 537; 1891,

p. 452; Piggott, 495.
In Bulgaria, by a resolution of the Supreme Court, in 1881,
"the Bulgarian judges should, as a general rule, abstain from
entering upon the merits of the foreign judgment; they ought
only to inquire whether the judgment submitted to them does
not contain dispositions contrary to the public order, and to
the Bulgarian laws." Constant, 129, 130; Clunet, 1886, p. 570.
This resolution closely follows the terms of the Russian Code,
-which, as has been seen, has not precluded applying the prin-
ciple of reciprocity.
In Austria, the rule of reciprocity does not rest upon any
treaty or legislative enactment, but has been long established,
by imperial decrees and judicial decisions, upon general prin-
ciples of jurisprudence. Foelix, no. 331; Constant, 100-108;
Moreau, no. 185 ; Weiss, Traits de Droit International, (1886)
980; Clunet, 1891, p, 1003; 1894, p. 908; Piggott, 434. In
Hungary, the same principles were always followed as in
Austria; and reciprocity has been made a condition by a law
of 1880. Constant, 109; Moreau, no. 186 & note; Piggott,
436; Weiss, ub. sup.
In Italy before it was united into one kingdom, each State
had its own rules. In Tuscany, and in Modena, in the absence
of treaty, the whole merits were reviewed. In Parma, as
by the French Ordinance of 1629, the foreign judgment was
subject to fundamental revision, if against a subject of Parma.
In Naples, the code and the decisions followed those of
France. In Sardinia, the written laws required above all the
condition of reciprocity, and, if that condition was not fulfilled,
the foreign judgment was rexaminable in all respects. Fiore,
Effetti Internazionali delle Sent'nze, (1875) 40-44; Moreau, no.
204. In the Papal States, by a decree of the Pope in 1820,
"the exequatur shall not be granted, except 'so far as the
judgments rendered in the States of his Holiness shall enjoy
the same favor in the foreign countries; this reciprocity is
presumed, if there is no particular reason to doubt it." Touil-
lier, Droit Civil, lib. 3, tit. 3, c. 6, sec. 3, no. 93. And see
.Foelix, no. 343; Westlake, ub. sap. In the Kingdom of Italy,
OCTOBER TERM, 1894.
by the Code of Procedure of 1865, "executory force is given

to the judgments of foreign judicial authorities by the court
of appeal in whose jurisdiction they are to be executed, by
obtaining a judgment on an exequatur in which the court
examines (a)'if the judgment has been pronounced by a com-
petent judicial authority; .(b) if it has been pronounced, the
parties being regularly cited; (o)'if the parties have been
legally represented or legally defaulted; (d) if the judgment
contains dispositions contrary to public order or to the inter-
nal public law of the realm." Constant, 157. In 1874, the
Court of Cassation of Turin, "considering that in inter-
national relations is admitted the principle of reciprocity, as
that which has its foundation in the natural reason of equality
of treatment, and, in default thereof, opens the way to the ex-
ercise of the right of retaliation ;" and that the French courts
examine the merits of Italian judgments, before allowing their
execution in France; decided that the Italian courts of appeal,
when asked to execute a French judgment, ought not only
to inquire into the competency of the foreign court,-but also
to review the merits and the justice of the controversy. Levi
v. Pitre,in Rossi, Egecuzione delle Sentenze Straniere, (1st ed.
1875) 70, 284; and in CluDet, 1879, p. 295. Some commenta-
tors, however, while admitting that decision to be most authori-
tative, have insisted that it is unsound, and opposed to other
Italian decisions, to which we have not access. Rossi, ub. 8up.
(2d ed. 1890) 92; Fiore, 142, 143; Clunet, 1878, p. 237;
Clunet, 1879, pp. 296, 305; Piggott, 483; Constant, 161.
In the principality of Monaco, foreign judgments are not
executory, except by virtue of a special ordinance of the
Prince, upon a report of the Advocate General. Constant,
169; Piggott, 4b8.
In Spain, formerly, foreign judgments do not appear to have
been executed at all. Foelix, no. 398; Moreau, no. 197; Sil-
vela, in Clunet, 1881, p. 20. But by the Code of 1855, revised
in 1881 without change in this respect, "judgments pronounced
in foreign countries shall have in Spain the force that the
respective treaties give them; if there are no special treaties
with the nation in which they have been rendered, they shall
HILTON v. GUYOT.
have the same force that is given by the laws of that nation
to Spanish executory judgments; if the judgment to be exe-
cuted proceeds from a nation by whose jurisprudence effect is
not given to the judgments pronounced by Spanish tribunals,
it shall have no force in Spain;" and "application for the
execution of judgments pronounced in foreign countries shall
be made to the Supreme Tribunal of Justice; which, after
examining an authorized translation of the foreign judgment,
and after hearing the party against whom it is directed and.
the public minister, shall decide whether it ought or ought not
to be executed." Constant, 141, 142; Piggott, 499, 500. A
case in which the Supreme Court of Spain in 1880 ordered
execution of a French judgment, after reviewing its merits, is
reported in Clunet, 1881, p. 365. In another case, in 1888,-
the same court, after hearing the parties and the public min-
ister, ordered execution of a Mexican judgment. The public
minister, in his demand for its execution, said: "Our law of
civil procedure, inspired, to a certain point, by the modern
theories of international law, which, recognizing among civ-
ilized nations a true community of right, and considering man-
kind as a whole in which nations occupy a position identical
with that of individuals towards society, gives authority, in
Spain, to executory. judgments rendered by foreign tribunals,
even in the absence of special treaty, provided that those
countries do not proscribe the execution there of our judgments,
and under certain conditions which, if they limit the principle,
are inspired by the wish of protecting our sovereignty and by
the supreme exigencies of justice. When nothing appears,
either for or against, as to the authority of the judgments of
our courts in the foreign country, one should not put an obstacle
to the fulfilment, in our country, of judgments emanating from
other. nations, especially when the question is of a country
which, by its historic origin, its language, its literature, and
by almost the identity of its customs, its usages, and its social
institutions, has so great a connection with our own-which
obliges us to maintain with it the most intimate relations of
friendship and courtesy." And he pointed out that Mexico,
by its code, had adopted reciprocity as a fundamental prin-
VOL. CtiX-15
OCTOBER TERM, 1894.
ciple. Among the reasons assigned by the court for ordering

the Mexican judgment to be executed was that "there exists
in Mexico no precedent of jurisprudence which refuses exe-
cution to judgments rendered by the Spanish tribunals."
Clnet, 1891, pp. 288-292.
In Portugal, foreign judgments, whether against a Portu-
guese or against a foreigner, are held to be reviewable upon
the merits before granting execution thereof. Foelix, no. 399;
Clunet, 1875, pp. 54, 448; Moreau, no. 217; Constant, 176-
180; Westlak6, ub. sup.
In Greece, by the provisions of the Code of 1834, foreign
judgments, both parties to which are foreigners, are enforced
without examination of their merits; but if one of the parties
is a Greek, they are not enforced if found contradictory to the
facts proved, or if they are contrary to the prohibitive laws of
Greece. Foelix, no. 396; Constant, 151, 152; Moreau, no.
202; Saripolos, in Clunet, 1880, p. 173; Piggott, 475.
In Egypt, under the influence of European jurisprudence,
the code of civil procedure has made reciprocity a condition
upon which foreign judgments are executed. Constant, 136;
Clunet, 1887, pp. 98, 228 ; 1889, p. 322.
In Cuba and in Porto Rico, the codes of civil procedure are
based upon thQ Spanish.code of 1855. Piggott, 435, 503. In
Hayti, the code reenacts the provisions of the French code.
Constant, 153; Moreau, no. 203; Piggott, 460.
In Mexico, the system of reciprocity has been adopted, by
the Code of 1884, as the governing principle. Constant, 168;
Clunet, 1891, p. 290.
The rule of reciprocity likewise appears to have generally
prevailed in South America. In Peru, foreign judgments
do not appear to be executed withoilt examining the merits,
unless when reciprocity is secured by treaty. Clunet,. 1879,
pp. 266, 267; Piggott, 548. In Chili, there appears to have
been no legislation upon the subject; but, according to a
decision of the Supreme Court of Santiago in 1886, ."the
Chilian tribunals should not award an exequatur, except upon
decisions in correct form, and also reserving the general prin-
ciple of reciprocity." Clunet, 1889, p. 135; Constant, 131,
HILTON v. GUYOT.
132. In Brazil, foreign judgments are not executed, unless

because of the country in which they were rendered admitting
-the principle of reciprocity, or because of a placet of the
government of Brazil, which may be awarded according to
the circumstances of the case. Constant, 124 & note; Mo-
reau, no. 192 ; Piggott, 543-546; Westlake, ub. 8lup. In the
Argentine Republic, the principle of reciprocity was main-
tained by the courts, and was affirmed by the Code of 1878,
as a condition sine qua non of the execution of foreign judg-
ments, but has perhaps been modified by later legislation.
Moreau, no. 218; Palomeque, in Clunet, 1887, pp. 539-558.
It appears, therefore, that there is hardly a civilized nation
on either continent, which, by its general law, allows conclusive
effect to an executory foreign judgment for the recovery of
money. In France, and in a few smaller States-Norway,
Portugal, Greece, Monaco,, and Hayti -the merits of the con-
troversy are reviewed, as of course, allowing to the foreign
judgment, at the most, no more effect than of being prima
facie evidence of the justice of the claim. In the great ma-
jority of the countries on the continent of Europe-in Bel-
gium, Holland, Dehmark, Sweden, Germany, in many cantons
of Switzerland, in Russia and Poland, in Roumania, in Austria
and Hungary, (perhaps in Italy,) and in Spain - as well as in
Egypt, in Mexico, and in a great part of South America, the
judgment rendered in a foreign country is allowed the same
effect only as the courts of that country allow to the judg-
ments of the country in which the judgment in question is
sought to be executed.
The prediction of Mr. Justice Story (in § 618 of his Com-
mentaries on the Conflict of Laws, already cited,) has thus
been fulfilled, and the rule of reciprocity has worked itself
firmly into the structure of international jurisprudence.
The reasonable, if not the necessary, conclusion appears to
us to be that judgments rendered in France, or in any other
foreign country, by the laws of which our own judgments are
reviewable upon the merits, are not entitled to full credit
and conclusive effect when sued upon in this country, but are
primafacieevidence only of the justice of the plaintiffs' claim.
OCTOBER TERM, 1894.
In holding such a judgment, for want of reciprocity, not to

be conclusive evidence of the merits of the claim, we do not
proceed upon any, theory of retaliation upon one person by
reason of injustice done to another; but upon the broad ground
that international law is founded upon mutuality and reciproc-
ity, and that by the principles of international law recog-
nized in most civilized nations, and by the comity of our own
country, which it is our judicial duty to know and to declare,
the judgment is not entitled to be considered conclusive.
By our law, at the time of the adoption of the Constitution,
a foreign judgment was considered as prima facie evidence,
and not conclusive. There is no statute of the United States,
and no treaty of the United States with France, or with any
other nation, which has changed that law, or has made any
provision upon the subject. It is not to be supposed that, if
any statute or treaty had been or should be made, it would
recognize as conclusive the judgments of any country, which
did not give like effect to our own judgments. In the absence
of statute or treaty, it appears to us equally unwarrantable to
assume that the comity of the United States requires anything
more.
If we should hold this judgment to be conclusive, we should
allow it an effect to which, supposing the defendants' offers to
be sustained by actual proof, it would, in the absence of a
special treaty,, be entitled in hardly any other country in
Christendom, except the country in which it was rendered.
If the judgment had been rendered in this country, or in any
other outside of the jurisdiction of France, the French courts
would not have executed or enforced it, except after examin-
ing into its merits. The very judgment now sued on would
be held inconclusive in almost any other country than France.
In England, and in the Colonies subject to the law of Eng-
land, the fraud alleged in its. procurement would be a suffi-
cient ground for disregarding it. In the courts of nearly
every other nation, it would be subject to reexamination, either
merely because it was a foreign judgment, or because judg-
ments of that nation would be regxaminable in the courts of
France.
HILTON v. GUYOT.
Dissenting Opinion: Fuller, C. J., Harlan, Brewer, Jackson, JJ.
For these reasons, in the action at law, the

Judgment is reversed, and the cause remanded to the Circuit
Court with directions to set aside the verdict and to order
a new trial.
For the same reasons, in the suit in equity between these
parties, the foreign judgment is not a bar, and, therefore, the
Decree dismissing the bill is reversed, the plea adjudged bad,
and the cause remanded to the Circuit Court for"further
proceedings not inconsistent with this opinion.
MR.CHIEF JusTioE FULLER, with whom concurred MR.Jus-
TICE HARLAN, MR. JUSTICE BREWER, and MR.JUSTICE JACKSON,
dissenting.
Plaintiffs brought their action on a judgment recovered by
them against the defendants in the courts of France, which
courts had jurisdiction over person and subject-matter, and in
respect of which judgment no fraud was alleged, except in
particulars contested in and considered by the French courts.
The. question is whether under these circumstances, and in the
absence of a treaty or act of Congress, the judgment is regx-
aminable upon the merits. This question I regard as one to
be determined by the ordinary and settled rule in respect of
allowing a party, who has had an opportunity to prove his
case in a competent court, to retry it on the merits, and it
seems to me that the doctrine of res judicata applicable to
domestic judgments should be applied to foreign judgments as
well, and rests on the same general ground of public policy
that there should be an end of litigation.
This application of the doctrine is in accordance with our
own jurisprudence, and it is not necessary that we should hold
it to be required by some rule of international law. The fun-
damental principle concerning judgments is that disputes are
finally determined by them, and I am unable to perceive why
a judgment inpersonam which is not open to question on the
ground of want of jurisdiction, either intrinsically or over the
parties, or of fraud, or on any other recognized ground of
impeachment, should not be held inter partes, though re-
covered abroad, conclusive on the merits.
OCTOBER TERM,. 1894.
Dissenting Opinion: Fuller, C, J., Harlan, Brewer, Jackson,. JJ.
Judgments are executory while unpaid, but in this country

execution is not given upon a foreign judgment as such, it
being enforced through a new judgment obtained in an action
brought for that purpose.
The principle that requires litigation to be treated as termi-
nated by final judgment properly rendered, is as applicable to
a judgment proceeded on in such an action, as to any other,
and forbids the allowance to the judgment debtor of a retrial
of the original cause of action, as of right, in disregard of the
obligation to pay arising on the judgment and of the rights
acquired by the judgment creditor thereby.
That any other conclusion is inadmissible is forcibly illus-
trated by the case in hand. Plaintiffs in error were trading
copartners in Paris as well as -in New York, and had a place
of business in Paris at the time of these transactions and of
the commencement of the suit against them in France. The
subjects of the suit were commercial transactions, having their
origin, and partly performed, in France under a contract there
made, and alleged to be modified by the dealings of the par-
ties there; and one of the claims against them was for goods
sold to them there. They appeared generally in the case,
without protest, and by counterclaims relating to the same
general course of business, a part of them only connected with
the claims against them, became actors in the suit and sub-
mitted to the courts their own claims for affirmative relief, as
well as the claims against them. The courts were competent
and they took the chances of a decision in their favor. As
traders in France they were under the protection of its laws
and were bound by its laws, its commercial usages and its
rules of procedure. The fact that they were Americans and
the opposite parties were citizens of France is immaterial, and
there is no suggestion on the record that those courts -pro-
ceeded on any other ground than that all litigants, whatever
their nationality, were entitled to equal justice therein. If
plaintiffs in error had succeeded in their cross suit and re-
covered judgment against defendants in error, and had ,sued
them here on that Judgment, defendanti in error would not
have been permitted to say that the judgment in France was
HILTON v. GUYOT.
Dissenting Opinion: Fuller, C.J., Harlan, Brewer, Jackson, JJ.
not conclusive against them. As it was, defenluInts in error

recovered, and I think plaintiffs in error are not entitled to try
their fortune anew before the courts of this country on the
same matters voluntarily submitted by them to the decision
of the foreign tribunal. We are dealing with the judgment
of a court of a civilized country, whose laws and system of
justice recognize the general rules in respect to property and
rights between man and man prevailing among all civilized
peoples. Obviously the last persons who should be heard to
complain are those who identified themselves with the busi-
ness of that country, knowing that all their transactions there
would be subject to the local laws and modes of doing busi-
ness. The French courts appear to have acted "judicially,
honestly, and with the intention to arrive at the right conclu-
sion,;" and a result thus reached ought not to be disturbed.
The following vidw of the rule in England was expressed
by Lord Herschell in iNouvion v. Freemao, L, R. 15 App.
Cas. 1, 9, quoted in the principal opinion: "The principleo
upon which I think our enforcement of foreign judgments
must proceed is this: that in a court of competent jurisdic-
tion, where according to its established procedure the whole
merits of the case were open, at all events, to the parties,
however much they may have failed to take- advantage of
them, or may have waived any of their rights, a final adjudi-
cation has been given that a debt or obligation exists which
cannot thereafter in that court be disputed, and can only be
questioned in an appeal to a higher tribunal. In such a case
it may well be said that giving credit to the courts of another
country we are prepared to take the fact that such adjudica-
tion has been made as establishing the existence of the debt
or obligation." But in that connection the observations made
by Mr. Justice Blackburn in Godard v. Gray, L. R. 6 Q. B.
139, 148, and often referred to with approval, may usefully
again be quoted:
"It is not an admitted principle of the' law of nations that
a state is bound to enforce within its territories the judgments
of a foreign tribunal. Several of the continental nations (in-
cluding France) do not enforce the judgments of other coun-
OCTOBER TERM, 1894.
tries, unless where there are reciprocal treaties to that effect.

But in England and in those states which are governed by
the common law, such judgments are enforced, not by virtue
of any treaty, nor'by virtue of any statute, but upon a princi-
ple very well stated by Parke, B., in Williamns v. Jones, 13 M.
& W. at p. 633: ' Where a court of competent jurisdiction had
adjudicated a certain sum to be due from one person to another,
a legal obligation, arises to pay that sum, on which an action
of debt to enforce the judgment may be maintained. It is in
this way that the judgments of foreign and colonial courts are
supported and enforced.' And taking this as the principle, it
seems to follow that anything which negatives the existence
of that legal obligation, or excuses the defendant from the
performance of it, must, form a good defence to the action.
It must be open, therefore, to the defendant to show that the
court which pronounced the judgment had not jurisdiction to
pronounce it, either because they exceeded the jurisdiction
,given to them by the foreign law, or because he, the defend-
ant, was not subject to that jurisdiction; and so far the for-
eign judgment must be examinable. Probably the defendant
may shew that the judgment was obtained by the fraud of
the plaintiff, for that would shew that the defendant was
excused from the performance of an obligation thus obtained;
and 'it may be that where the foreign court has knowingly
and perversely disregarded the rights given to an English sub-
ject by English law, that forms a valid excuse for disregarding
the obligation thus imposed on him; but we prefer to imitate
the caution of the present Lord Chancellor in Castrique v.
Imrie, L. R. 4 H. L. at p. 445, and to leave those questions to
be decided when they arise, only observing in the present case,
as in that 'the whole of the facts appear to have been inquired
into by the French courts, judicially, honestly, and with the
intention to arrive at the right conclusion, and having heard
the facts as stated before them, they came to a conclusion
which justified them in France in deciding as they did decide.'
Indeed, it is difficult to understand how the common
course of pleading is consistent with any notion that the judg-
inent was only evidence. If that were so, every count on a
HILTON v. GUYOT.
Dissenting Opinion: Puller, C. J., Harlan, Brewer, Jackson, JJ.
foreign judgment must be demurrable on that ground. The

mode of pleading shews that the judgment was considered,
not as merely primafacie evidence of that cause of action for
which the judgment was given, but as in itself giving rise, at
least primafacie,to a legal obligation to obey that judgment
and pay the sum adjudged. This may seem a technical mode
of dealing with the question; but in truth it goes to the root
of the matter. For if the judgment were merely considered
as evidence of the original cause of action, it must be open to
meet it by any counter evidence negativing the existence of
that original cause of action. If, on the other hand, there is
a primafacie obligation to obey the judgment of a tribunal
having jurisdiction over the party and the cause, and to pay
the sum decreed, the question would be, whether it was open
to the unsuccessful party to try the cause over again in a
court, not sitting as a court of appeal from that which gave
the judgment. It is quite clear that this could not be done
where the action is brought on the judgment of an English
tribunal; and, on principle, it seems the same rule should
apply, where it is brought on that of a foreign tribunal."
In any aspect, it is difficult to see why rights acquired under
foreign judgments do not belong to the category of private
rights acquired under foreign laws. Now the rule is univer-
sal in this country that private rights acquired under the laws
of foreign states will be respected and enforced in our courts
unless contrary to the policy or prejudicial to the interests of
the state where this is sought to be done; and although the
source of this rule may have been the comity characterizing
the intercourse between nations, it prevails to-day by its own
strength, and the right to the application of the law to which
the particular transaction is subject is a juridical right.
And, without going into the refinements of the publicists on
the subject, it appears to me that that law finds authoritative
expression in the judgments of courts of competent juris-
diction over parties and subject-matter.
It is held by the majority of the court that defendants can-
not be permitted to contest the validity and effect of this
judgment on the general ground that it was erroneous in law
OCTOBER TERM, 1894.
or in fact; and the special grounds relied on are seriatim

rejected. In respect of the last of these, that of fraud, it is
said that it is unnecessary in this case to decide whether cer-
tain decisions cited in regard to impeaching foreign judgments
for fraud could be followed consistently with our own deci-
sions as to impeaching domestic judgments for that reason,
"because there is a distinct and independent ground upon
which we are satisfied that the comity of our nation does not
require us to give conclusive effect to the judgments of the
courts of France, and that ground is the want of reciprocity
on the part of France as to the effect to be given to the judg-
ments of this and other foreign countries." And the conclu-
sion is announced to be "that judgments rendered in France
or in aIny other foreign country, by the laws of which our own
judgments are reviewable upon the merits, are not entitled to
full credit and conclusive effect when sued upon in this coun-
try, but are jprima ,facie evidence only of the justice of the
plaintiff's claim." In other words, that although no special
ground exists for impeaching the original justice of a judg-
ment, such as want of jurisdiction or fraud, the right to retry
the merits of the original cause at large, defendant being put
upon proving those merits, should be accorded in every suit
on judgments recovered in countries where our own judgments
are not given full effect, on that ground merely.
I cannot yield my assent to the proposition that because by
legislation and judicial decision in France that effect is not
there given to judgments recovered in this country which, ac-
cording to our jurisprudence, we think shoult be given to
judgments wherever recovered, (subject, of course, to the rec-
()gnized exceptions,) therefore- we should pursue the same line
of conduct as respects the judgments of French tribunals. The
application of the doctrine of res judicata does not rest in dis-
cretion; and it is for the government, and not for its courts,
to adopt the principle of retorsion, if deemed under any cir-
cumstances desirable or necessary.
As the court expressly abstains from deciding whether the
judgment is impeachable on the ground of fraud, I refrain
from any observations on that branch of the case.
RITCHIE v. McIMULLEN.
MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE

JACKSON concur in this.dissent.
RITCHIE v. McMULLEN.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF OHIO.
No. 15. Argued November 10, 14, 1898. - Decided June 8, 1895.
In an actioji upon a foreign judgment, an answer admitting that "certain

attorneys entered, or undertook to enter, the appearance of the defend-
ant" in the action in the foreign court; and alleging that the judgment
was entered without his knowledge, in his absence, and without any
hearing; but not alleging that the attorneys were not authorized to
enter his appearance in that action, or that he appeared and answered
under compulsion, or for any other purpose than to contest his personal
liability, is insufficient to show that the foreign court had no jurisdiction
of his person.
Averments, in an answer to an action upon a foreign judgment, that It was
"an irregular and void judgment," and "without any jurisdiction or
authority on the part of the court to enter such a judgment upon the
facts and upon the pleadings," are mere averments of legal conclusions,
and are insufficient to impeach the judgment, without specifying the
grounds upon which It is supposed to be irregular and void, or without
jurisdiction or authority.
To warrant the impeaching of a foreign judgment because procured by
fraud, fraud must be distinctly alleged and charged.
A judgment rendered by a court having jurisdiction of the cause and of the
patties, upon regular proceedings and due notice or appearance, and not
procured by fraud, in a foreign country, by the law of which, as in Eng-
land and in Canada, a judgment of one of our own courts, under like cir-
cumstanees, is held conclusive of the merits, is conclusive, as between
the parties, in an action brought upon it in this country, as to all matters
pleaded and which might have been tried in the foreign court.
THIS was an action at law, brought September 21, 1888, in

the Circuit Court of the United States for the Northern Dis-
trict of Ohio, by James B. McMullen, a citizen of the State of
Illinois, and George W. McMullen, a citizen of the Province
of Ontario in the Dominion of Canada, against Samuel J.
Ritchie, a citizen of the State of Ohio, upon a judgment for the

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HILTON v. GUYOT.

SOUTHERN DISTRICT OF NEW YORK.

THE SOUTHERN DISTRICT OF NEW YORK.

Statement of the Case.

THE first of these two cases was an action at law, brought

Statement of the Case.

out of commercial dealings between them; that Stewart &

Statement of the Case.

said defendants having intervened, by their attorneys and

Statement of the Case.

they were the owners of property situated in that country,

Statement of the Case.

intent to deceive the defendants and the arbitrator and the

Statement of the Case.

complaint be dismissed, and that the defendants have judg-

of which would have been relevant and competent if the plain-

Statement of the Case.

defendants made due application to the Tribunal of Commerce

Argument for Plaintiffs in Error.

Mr. Jame8 C. Carter and Mr. Eiku Root for plaintiffs in

Argument for Plaintiffs in Error.

Argument for Plaintiffs in Error.

Except in the case of England and some of her colonies,

Argument for Plaintiffs in Error.

If,therefore, foreign judgments are in any case to be held

Argument for Plaintiffs in Error.

the necessities of the present controversy require; and per-

Argument for Plaintiffs in Error.

rent, and then brought suit in Scotland on the Jamaica judg-

Argument for Plaintiffs in Error.

the House of Lords, because the original decree was in the

Argument for Plaintiffs in Error.

case alluded to from Wales, and the ground of his Lordship's

Argument for Plaintiffs in Error.

Argument for Plaintiffs in Error.

Argument for Plaintiffs in Error.

The entire breaking down in this case of the rule, not

Argument for Plaintiffs in Error.

sider how the two rules, to which I have alluded, could be

Argument for Plaintiffis in Error.

Thus far nothing has been said in relation to the effect of

Argument for Plaintiffs in Error.

to' its interests. But it contributes so largely to promote

Argument for Plaintiffs in Error.

could carry on the dry goods business in France also as well

The principle has been adopted and enforced alike by the

Argument for Plaintiffs in Error.

It is to be observed that every d6cision in the United States

nature of the judgment and the character of the tribunal

Argument for Defendants in Error.

Mr. William, G. Choate, (with whom was .Mr. William D.

I. The French courts having jurisdiction of the subject

Argument for Defendants in Eiror.

judgment there remained in force; wherefore, if the peti-

Argument for Defendants in Error.

suit at Leghorn brought his action here, but the defendant in

Argument for Defendants in Error.

Argument for Defendants in Error.

5, note, appears to be the earliest case containing a dictum