that, in order to conclude the parties from contesting the ground of condemnation in an English court of law, such ground must appear clearly on the sentence; it must not be collected from inference only." (x)

DCCCCLII. It need hardly be stated that unless the foreign court be one of competent jurisdiction, its sentence has no effect at all. Accordingly Lord Stowell designated the adjudication of the prize court of a belligerent power sitting in a neutral country, as "a licentious attempt to exercise the rights of war within the bosom of a neutral country. (y)

DCCCCLIII. The courts of the United States in North America hold the doctrine of the conclusiveness of judgment in rem when the proceedings have been regular, quite as strongly upon the general principle, as the courts in Great Britain; but it would appear that the latter hold such judgment conclusive not only as to the actual res decided, (2) but as

(x) Dalgleish v. Hodson, 7 Bingham Rep. 504.

See too Lord Alvanley's summary of the decisions in Baring v. Clagett, 3 Bosanquet & Puller's Rep. 215.

Lord Ellenborough, however, said, in Fisher v. Ogle (1 Campbell, 418), "It is by an overstrained comity that these sentences are received as conclusive evidence of facts which they positively aver, and on which they specifically profess to be founded." But this remark appears to have been extorted by the decisions of the French tribunals during the last war, which he designated "the piratical way in which they proceed." This remark he well reconciled with Lord Mansfield's judgment in Saloucci v. Woodmass.

Park on Insurance, 362.

Arnould on Insurance, i. 645.

(y) Flad Oyen, 1 Robinson Rep. 336.

See too Haveloch v. Rockwood, 8 Durnford & East Rep. 276.
Donaldson v. Thompson, 1 Camp. 429.

Oddy v. Rovil, 7 Durnford & East Rep. 523.

(2) Bud v. Bamfield, 3 Swanston's Reports. Lord Nottingham accorded a perpetual injunction to restrain certain suits of trespass and trover for seizing the goods of the defendant (Bamfield) for trading in Ireland contrary to certain privileges granted to the plaintiff and others. The property was seized and condemned in the Danish Courts.

to all facts and matters incidentally decided. The decisions. of the American courts are not harmonious on the subject.

DCCCCLIV. Foreign judgments upon matters in their nature local would be treated as conclusive in England. The difficulties necessarily incident to a re-examination of such matters in another country render this rule one of common justice as well as common sense.

The case of landed property affords an obvious illustration of this position. But the effect ascribed to foreign sentences in England will not be greater than that which they possess in the country in which they were given. A foreign judgment therefore in rem between two parties will not be conclusive against a third party, unless such an effect would be ascribed to it in the country of the judgment.

DCCCCLV. Not merely, however, in the case of landed property, but where the res, be it personalty or realty, is within the limits of the territory of the court (a) which gave the sentence

-that sentence would be holden probably both in England and the North American United States as binding upon the property within the territory. But it would probably be considered as confined within those limits, and as having no exterritorial effect, especially where the parties affected by the sentence were not at the time subject to the jurisdiction of the court by domicil, residence, or origin, and had never appeared or contested the suit. (b)

Cases upon this point of law may probably arise when proceedings are attempted to be taken by creditors against personal property of a debtor in the hands of third persons, or against debts due by him to third persons-a proceeding sometimes technically styled the process of foreign attachment, or foreign garnishment, or in American law trustee

Lord Nottingham held the sentence conclusive against the suits, and awarded the injunction accordingly.

(a) As to the operation of a foreign judgment in the case of chattels in a foreign State, see Koster v. Sapte, 1 Curteis' Rep. 701.

(b) Story, s. 549, 592a, 607.

process. Many cases of this description as yet undecided will probably arise, to the decision of which the application of the principles above stated may furnish a safe guide.

DCCCCLVI. It must be borne in mind that there is an essential difference between foreign sentences of contentious and of voluntary jurisdiction. The latter contains in reality the act of the parties to the suit, to which the formalities of a court of justice are added as witnessing this act and consent. The former is the act of the judge himself; and it is the effect of sentences emanating from contentious jurisdiction that has been considered in the preceding pages.

NOTE TO THE FOREGOING CHAPTER

I. List of the principal decisions, since 1830, on the effect of Foreign Judgments in England:

1830. Martin v. Nicholls (Vice Chancellor's Court-Shadwell), 3 Simons, 458. Apparently reversed, 1834, Houlditch v. Donegal. 1831. Novelli v. Rossi (Q. B.-Lord Tenterden), 2 Barn. & Adol. 764.

Recquet v. MacCarthy, ib. et eod, 957.

1834. Alivon and another v. Furnival (Exchequer), 4 Tyrwhitt, 768.

Parke, B.

1834. Houlditch v. Donegal (House of Lords), 8 Bligh, 342-345; reversing apparently Martin v. Nicholls, 1830.

1838. Koster v. Sapte (Prerogative Court-Sir H. J. Fust), 1 Curteis,

701.

1839. Smith v. Nicholls (Common Pleas-Tindall, C. J.), 5 Bingham, 208. Ferguson v. Mahon (Q. B.-Lord Denman), 11 Adol. & Ellis, 179. 1842. Callender v. Dittrich, 4 Manning & Granger, 68.

1844. Robertson v. Struth, 5 Queen's Bench R. 941.

Henderson v. Henderson, 6 Queen's Bench R. 274.

1845. Ricardo v. Garcias, 12 Clark & Finnelly's Rep. 368, (House of Lords-Lords Cottenham, Brougham, and Campbell); difficult to reconcile with Houlditch v. Donegal.

1846. Reynolds v. Fenton, 3 Manning, Granger, & Scott's R. 187. 1849. Vallée v. Dumergue, 4 Exchequer Reports, 290. English shareholders in French company. Assumpsit on the French judgment sustained (Baron Alderson).

1851. Bank of Australia v. Nias, 16 Queen's Bench R. 717, as to Colonial judgments.

1852. Frith v. Wollaston, 7 Exchequer R. 194.

Paul v. Roy, (Rolls Court-Sir J. Romilly), 15 Beavan's R. 433. English court will enforce a final judgment, but not an interlocutory order of a foreign court.

1853. Meeus v. Thelluson, 8 Exchequer Reports, 638. Foreign judgment upon a bill of exchange. Replication holden bad for not stating what the foreign law was at the time of the acceptance of the bill.

1856. Kelsell v. Marshall (Court of Common Pleas), 2 Jurist (N. S.), 1142, as to Colonial judgment.

1856. Reiners v. Druce, 23 Beavan's Reports, 145. Master of Rolls reviews former cases. Error on the face of a foreign judg

ment, apparent without the help of extrinsic evidence, invalidates it.

1860. February. Castrique v. Imrie and another (Court of Common Pleas).

April. Barber v. Lamb. Vide ante.

II. On the authority of Res Judicata in England—

1. As to courts generally.

2. As to courts of ultimate appeal.

Upon the first point, Lord St. Leonard observes (Vendors and Purchasers, p. 9, ed. 1857).

"Yet, whilst the seller's right is firmly established to this extent in equity, at law the rule has been laid down otherwise by Lord Mansfield in Bexwell v. Christie, (a) by Lord Kenyon in Howard v. Castle, (b) by Lord Tenderden at nisi prius in Wheeler v. Collier; (c) and their view has been adopted by other judges. (d) It would require a decision of the House of Lords to overrule the cases in equity, and it is highly desirable that the Courts of law should adopt the equitable rule, restricted as it now is."

The same opinion as to the authority of the judgment of inferior tribunals is expressed by the same learned Lord in Wilson v. Wilson. (e) But as to the second point, viz., sentence of the ultimate appellant tribunal, he said (f) "The difficulty that I should have felt, as I have pointed out particularly, is with regard to the injunction that is actually to be found on the face of the decree; but this House has now not the slightest power to touch that question; at all events not in this cause. It has been doubted by a noble and learned lord, who is not now present, whether this House can correct any error which it has committed. (g) I confess, my lords, I have always entertained the opinion, that in the paticular case, you cannot correct the error; it is settled;

(a) Cowper, 395.

(b) 6 Durn. and E. 642, m.; 3 ib. 93, 95.

(c) 1 Ca. 123.

(d) Rex v. Marsh, 3 Yo. & Jer. 331; Crowder v. Austin, 9 Bin. 368; Thor

net v. Haines, 15 Mee. & Wel. 367.

(e) 5 House of Lords Cases, p. 59.

(ƒ) Ib. 62.

(9) Tommey v. White, 3 H. of L. Cases, 68.