years

"after his being returned from beyond the seas,” includes a foreigner who, after the cause of action accrued, comes to England for the first time (u).

DCCCCXXVI. The priorities and privileges of creditors, in the marshalling and distribution of assets, are considered by Story (x), who founds his opinion on a passage from Rodenburgh, as matters relating to the forms and order of proceedings, and as therefore ruled by the lex fori. This operation appears, however, to be subject to some qualifications (y).

DCCCCXXVII. The question as to the time within which an appeal must be instituted is clearly among the ordinatoria litis, and determinable by the lex fori (z).

DCCCCXXVIIA. The question whether a foreign suitor have or have not in a particular suit a legal persona standi in judicio ought, I think, to be determined (a) by reference to the law of his own country. But it is doubtful whether such would be the ruling of an English court.

A case came before an English court in which the question was whether a husband and wife, who had carried on trade as partners in Spain, could sue as such in our courts. It was ruled they could not, nor maintain a joint action against persons resident in this country, to recover the amount of a balance due to the partnership account, without

(u) Lafond v. Ruddock, 13 C. B. 813; 17 Jurist, 624; 22 Law Journ. C. P. 217.

See also, respecting the Statute of Limitations where party is beyond the seas, the cases of Fannin v. Anderson, 7 Q. B. 811; 9 Jurist, 969; 14 Law Journ. Q. B. 282;

Townsend v. Deacon, 6 Dan. & L. 659; 3 Exch. 706;

Story v. Fry, 1 Younge & Coll. N. C. C. 603;

Re Friston, 1 Prac. Rep. 74.

(x) S. 423 (b); cf. Cook v. Gregson, 2 Drury's Rep. 286.

(y) As to liens on property depending on the lex sitús, vide antè,

p. 588; as to cases of Bankruptcy, p. 589; and as to Stoppage in transitu, p. 643.

(2) Tulloch v. Hartley, 1 Grange & Coll. C. C. 114.

(a) Cf. Bar, § 117, 423-4.

proof being given that by the law of Spain a femme covert is permitted to trade; and it is doubtful whether an action could be maintained by both, even on such proof being given (b).

DCCCCXXVIIB. In the case of the Halley, a Norwegian barque was run down in Belgian waters by an English steamship, which was afterwards arrested at the suit of the owners of the Norwegian vessel by process out of the High Court of Admiralty of England. The defendants, the owners of the steamship, pleaded that by the Belgian and Dutch laws in force at the place of the collision their ship was compelled to take on board and be navigated by a pilot, that she was being navigated by a pilot, and that the collision occurred by his fault. The plaintiffs replied that by the same laws the owners of the wrongly navigated ship were still liable for the damage, notwithstanding that it was attributable to the pilot. This reply was objected to, and it was contended that the law of the place of the commission of the delict did not apply, and that the case was governed by the lex fori, i.e., by the English law, which makes such a defence as that set up in this case a good one. The Court of Admiralty held the reply good and overruled the objection; but on appeal the Privy Council reversed this decision (c).

But with regard to this case and the English decisions on pilotage generally, it should be noticed that in the case of the China the Supreme Court of the United States of America held that a compulsion by local law (that of the

(b) Cosio & Pineyro v. De Bernales, 1 C. & P. 266; R. & M. 102, per Abbott, C. J. Sed vide supra, § dcccxcia.

According to Mr. Wharton, the question whether an assignee can sue in his own name or not is sometimes technical, sometimes essential -in the former case the lex fori would prevail. See § 735, and note (x).

Bar considers the question apparently in the same light; § 117,

(c) L. R. 2 Adm. p. 3; 2 P. C. p. 193. Vide supra, p. 625.

State of New York) to take on board and be navigated by

pilot does not free the vessel from liability to a maritime lien for a collision occasioned by her wrongful navigation, though under the orders of the pilot (d).

(d) Wallace's (Amer.) Rep. p. 53.

CHAPTER XLVI.

FOREIGN JUDGMENT S.

DCCCCXXVIII. In this chapter it is proposed to consider the effect, both which ought to be and which is, given by the tribunals of one State to judgments delivered by the tribunals of another State (a); that is, the practice of comity respecting Foreign Judgments. The subject, regarded from an English point of view, would have been properly treated, in the former chapter, under the category of evidence; but regarded more generally, and with reference to foreign jurisprudence, it seems to require a separate and distinct consideration.

DCCCCXXIX. The authority of a judgment in time of

(a) Donelli, Comm. lib. xxii. c. v. De exceptione rei judicatæ, quibus, adversus quos, quâ de re, competit.

Felix, ii. s. 319.

Klüber, Europäisches Völkerrecht, 59, considers a foreign judgment ought to be executed by other States on the ground of its being a convention between the parties, or an arbitration submitted to by them.

Pinheiro Ferreira treats it as the result of a tacit contract on the part of the foreigner, to be bound by the law of the State in which he resides. Notes sur Vattel, p. 304.

Massé, ii. s. 305, is also of this opinion-quasi contrahitur in judicio.

Generally on the exceptio rei judicatæ, cf. Savigny, v. 84, 209, 253, 376, 378; vi. 267, 271, 413.

Merlin, Qu. De Droit v. Jugement, s. 14, No. 1.

Pothier, Tr. des Obl. p. iv. c. iii. s. 3.

Bar. v. Das Endurtheil, seine verbindliche Kraft und Vollstreckung, § 125.

Wharton, chapters x. xi. §§ 789-838.

peace is derived exclusively from the civil law of the territory in which it is given; it cannot, therefore, according to strict principles of international law, have effect or operation in a foreign territory. But International Comity," usu "exigente et humanis necessitatibus," speaks another language, and a foreign judgment is generally, in some shape or other, and with more or less restriction, upholden and executed by all States.

DCCCCXXX. Both from the jurisprudence and the positive enactments of States upon this subject, the general axiom may be deduced-that no state allows a foreign judgment to be executed within its territory, except under the authority and by the order of its own tribunal. But the practice of States is various upon this subordinate point— namely, whether the foreign judgment shall be executed at the simple request of a party (simple demande ou requête) or the formal requisition (commission rogatoire) of the foreign tribunal; or whether the permission to execute it shall be delayed until the domestic tribunal has examined, more or less, the grounds upon which the foreign tribunal founded its decision (b).

DCCCCXXXI. It follows, from the principles laid down in the early part of this volume, that no State will recognise or allow to be executed a foreign judgment (c), which contains any provisions or order contrary to the public morals or public policy of the realm in which execution of it is sought. The French tribunals have furnished a strong illustration of this principle; the Cour de Paris having decided that it was unlawful to permit the execution in France of a Swiss judgment of divorce between Swiss parties, although the execution was only requested to enforce the payment of costs awarded against one of the parties,

(b) Pardessus, t. vi. No. 1486.

Revue Étrangère, t. iii. p. 127, &c. (Aubry).
Felix, ii. s. 320.

(c) Vide antè, p. 12.