§ 146. Form of a contract. $147. Conclusiveness of foreign law as damages for the detention of the debt, and the proceedings to recover these damages may strictly be considered as a part of the remedy. The rate of interest is, however, regulated by the law of the place where the contract is made, unless, indeed, it appears that the parties had in view the law of some other country. In that case, the lawful rate of interest of the place of payment, or to which the loan has reference, by security being taken upon property there situate, will control the lex loci contractus (r). The external form of the contract constitutes an essential part of its obligation. This must be regulated by the law of the place of contract, which determines whether it must be in writing, or under seal, or executed with certain formalities before a notary, or other public officer, and how attested. A want of compliance with these requisites renders the contract void ab initio, and being void by the law of the place, it cannot be carried into effect in any other State. But a mere fiscal regulation does not operate extra-territorially; and therefore the want of a stamp, required by the local law to be impressed on an instrument, cannot be objected where it is sought to be enforced in the tribunals of another country. There is an essential difference between the form of the contract and the extrinsic evidence by which the contract is to be proved. Thus the lex loci contractus may require certain contracts to be in writing, and attested in a particular manner, and a want of compliance with these forms will render them entirely void. But if these forms are actually complied with, the extrinsic evidence by which the existence and terms of the contract are to be proved in a foreign tribunal, is regulated by the lex fori (s). The most eminent public jurists concur in asserting judgments in the principle, that a final judgment, rendered in a per personal actions. (r) Kent's Comm. on American Law, vol. ii. p. 459 (5th edit.). Fælix, Droit International Privé, § 85. Nelson, p. 279. (s) Nelson, 257–261. sonal action, in the courts of competent jurisdiction of Chap. II. one State, ought to have the conclusive effect of a res adjudicata, in every other State, wherever it is pleaded in bar of another action for the same cause (t). But no sovereign 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 (u). 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 (x). § 148. as to foreign By the law of England, the judgment of a foreign English law tribunal of competent jurisdiction, is conclusive where judgments. the same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicata, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is prima facie evidence, where the party claiming the benefit of it applies to the English Courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt, for which a new judgment is rendered in the English Court, and execution awarded. But if it appears by the record of the proceedings, on which the original judgment was founded, that it was unjustly or fraudulently obtained, without actual personal notice to the party affected by it; or if it is clearly and unequivocally shown, by ex (t) Vattel, liv. ii. ch. vii. §§ 84, 85. Martens, Droit des Gens, §§ 93, 94, 95. Klüber, Droit des Gens, § 59. Deutsche Bundes Recht, § 366. (u) Kent's Comm., vol. ii. p. 119 (5th edit.). (r) Fœlix, §§ 292-311. Part II. trinsic evidence, that the judgment has manifestly proceeded upon false premises or inadequate reasons, or upon a palpable mistake of local or foreign law; it will not be enforced by the English tribunals (y). § 149. American law. $150. Law of France. A foreign judgment in personam, to be recognized in England, must be final and conclusive between the parties litigating the same issue in England, and must be for a debt or a definite sum of money. And the plaintiff in England cannot, when he relies on the foreign judgment as his cause of action, obtain a greater benefit here than the foreign judgment gave him abroad. In an action on a foreign judgment not impeached for fraud, the original cause of action is not reinvestigated here, if the judgment was pronounced by a competent tribunal having jurisdiction over the litigating parties; and a foreign judgment, subject as above, will be regarded in an English Court as final and conclusive, though it is subject to an appeal, and though an appeal against it is actually pending in the foreign country where it was given. For the Courts of this country do not sit to hear appeals from foreign tribunals, and 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, or re-heard, ought to be followed. But no judgment will be recognized in England which was obtained by the fraud of the party relying on it here; or if the foreign Court, although it affected to decide on the merits, was, in view of English law, without jurisdiction (z). The same jurisprudence prevails in the United States of America, in respect to judgments and decrees rendered by the tribunals of a State foreign to the Union. As between the different States of the Union itself, a judgment obtained in one State has the same credit and effect in all the other States, which it has by the laws of that State where it was obtained; that is, it has the conclusive effect of a domestic judgment (a). The law of France restrains the operation of foreign judgments within narrower limits. Judgments obtained (y) Frankland v. McGusty, 1 Knapp, P. C. 274; Novelli v. Rossi, 2 Barn. & Adol. 757; Becquet v. M'Carthy, 3 ib. 951. (2) Dicey, Conflict of Laws, p. 416. Re Henderson, Nouvion v. Freeman, 15 App. Cas. 1; Hawksford v. Giffard, 12 App. Cas. 122; Re Trufort, 36 Ch. D. 600; Abouloff v. Oppenheimer, 10 Q. B. D. 295; Voinet v. Barrett, 55 L. J. (a) Mills v. Duryce, 7 Cranch, pp. 481 -484; Hampton v. M'Connel, 3 Wheaton, 234. Story (Bigelow, edit. 8), p. 829, note (a). in a foreign country against French subjects are not Chap. II. conclusive, either where the same matter comes again incidentally in controversy, or where a direct suit is brought to enforce the judgment in the French tribunals. And this want of comity is even carried so far, that, where a French subject commences a suit in a foreign tribunal, and judgment is rendered against him, the exception of lis finita is not admitted as a bar to a new action by the same party, in the tribunals of his own country. If the judgment in question has been obtained against a foreigner, subject to the jurisdiction of the tribunal where it was pronounced, it is conclusive in bar of a new action in the French tribunals, between the same parties. But the party who seeks to enforce it must bring a new suit upon it, in which the judgment is prima facie evidence only; the defendant being permitted to contest the merits, and to show not only that it was irregularly obtained, but that it is unjust and illegal (b). divorces. The execution of foreign judgments in personam is reciprocally allowed, by the law and usage of the different States of the Germanic Confederation, and of the European continent in general, except Spain, Portugal, Russia, Sweden, Norway, France, and the countries. whose legislation is based on the French civil code (c). § 151. A decree of divorce obtained in a foreign country, by Foreign a fraudulent evasion of the laws of the State to which the parties belong, would seem, on principle, to be clearly void in the country of their domicile, where the marriage took place, though valid under the laws of the country where the divorce was obtained. Such are divorces obtained by parties going into another country for the sole purpose of obtaining a dissolution of the nuptial contract, for causes not allowed by the laws of their own country, or where those laws do not permit a (b) Code Civil, art. 2123, 2128. Code de Procédure Civil, art. 546. Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 2, No. 1488. Merlin, Répertoire tom. vi. tit. Jugement. Questions de Droit, tom. iii. tit. Jugement. Toullier, (c) Fœlix, Droit International Privé, Part II. divorce à vinculo for any cause whatever. In the most recent English decision on this subject, the House of Lords, sitting as a Court of Appeals in a case coming from Scotland, and considering itself bound to administer the law of Scotland, determined that the Scottish Courts had, by the law of that country, a rightful jurisdiction to decree a divorce between parties actually domiciled in Scotland, notwithstanding the marriage was contracted in England. But the Court did not decide what effect such a divorce would have, if brought directly in question in an English court of justice (e). In the United States, the rule appears to be conclusively settled that the lex loci of the State in which the parties are bona fide domiciled, gives jurisdiction to the local courts to decree a divorce, for any cause recognized as sufficient by the local law, without regard to the law of that State where the marriage was originally contracted (f). This, of course, excludes such divorces. as are obtained in fraudulent evasion of the laws of one State, by parties removing into another for the sole purpose of procuring a divorce (g). (d) Dow's Parliament. Cases, vol. i. p. 117; Tovey v. Lindsay, p. 124; Lolly's case, 2 Clark & Fin. 567. See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim. (e) Warrender v. Warrender, 9 Bligh, 89; S. C., 2 Clark & Fin. 488. (f) Dorsey v. Dorsey, Chandler's Law Reporter, vol. i. p. 287. (g) Kent's Comm., vol. ii. p. 107 (5th edit.). Story, p. 308, note (a). |