Says Wharton, Law of Ev., 3d edition, § 803 :

"A foreign judgment, as we have seen, is always impeachable for want of jurisdiction; and hence, for want of personal service, within the jurisdiction, on the defendant, this being internationally essential to jurisdiction in all cases in which the defendant was not domiciled in the state entering the judgment."

Whether, in this case, jurisdiction might have been obtained as to the rem by some process of attachment or garnishment, need not be discussed, for nothing of the kind was resorted to.

There is some doubt from the language of the court, February 27, 1836, just what its view was on this point. It said the "claim now made" was a 66 new action or instance' (un nuevo juicio o instancia). And it deemed the case of such a character as that Idler "must be heard," and directed him summoned.

The authorities seem to regard restitutio as a "new action." Colquhoun, who may be taken as representative, says: "Restitution must be prayed and a formal suit commenced in that behalf." (Roman Civil Law, § 1865.)

Again

"Restitution may be sought by action or by plea, and in the latter case every judge is competent who has cognizance of the principal matter in dispute, whether he be commissary or umpire; in the former case, however, application must be made to the judge who is competent in respect of the defendant." Ib. (See Savigney, Private Int. L., 320; Bar, Int. L., 213-16.)

In the view taken, it may be parenthetically remarked, that if restitutio would not lie as against the Idler contracts themselves, their annulment could not have been accomplished by plea in the old case pending its conclusion; and this fact is an additional argument against a judgment on such contracts being assailable by this means.

The Spanish law and the civil law authorities cited by counsel for the United States, and not necessary to be quoted here, leave little doubt that with some exceptional cases-wholly variant from this one-where, "irrefragable cause being shown," the judge may ex parte, even mero motu, grant the

relief, the action had always been regarded and treated as an original one inter partes, to be brought and conducted as any other ordinary suit. And such indeed may be fairly inferred from the process and opinions of the Supreme Court, to have been its view.

Assuming the proceeding to have been an "action on the record," and the notice sufficient for all it purported to be, there remains the other question, namely: Whether the action was brought in the proper court in time. It is conceded all round, the Supreme Court expressly saying, that it must have been brought within four years from October 1, 1832. The Supreme Court had no jurisdiction of the case in the first instance, as it decided when it returned the record to the Superior Court, Nov. 4, 1837. There is some confusion arising from the decision as to whether the Treasury Court or Superior Court was held to be the one of original jurisdiction. But as no action was ever taken in the former, let us also assume the latter was the proper one. Was the suit begun there within the time limited? In other words, was the case of the Fiscal Attorney of the Republic against Jacob Idler brought and pending in the Superior Court of Justice of the Second District, on the first day of October, 1836? If not, there was no jurisdiction of the subject-matWhat evidence is there that such was the fact?

ter.

As stated before, there is no record of this proceeding from that court among our files, and no cause shown for its absence, if it ever existed. There are full records from it in the earlier Why not also in this later one? The existence of this record is challenged by counsel for the United States. How must it then be shown? In municipal tribunals a high character of proof is required for this purpose.

case.

Foreign judgments, says the Supreme Court of the United States, referring to the law, "are authenticated (1) by an

exemplification under the great seal; (2) by a copy proved to be a true copy; (3) by the certificate of an officer authorized by law, which certificate must itself be properly authenticated." Church v. Hubbart, 2 Cranch, 187.

In the same case it was held :

"A judgment certified under the private seal of one styling himself to be Secretary of State for Foreign Affairs is not evidence; also, that a translation of a foreign judgment certified by a consul, but not under oath, could not be received in proof of the judgment."

But where the original judgment record was destroyed by fire, a copy of a judgment duly certified by the clerk of the court by whom the judgment was rendered, is proper evidence." Nash v. Williams (Cornet v. Williams), 20 Wall., 226.

It would not be contended by any one, we suppose, that the recitals of a record in one court would be received in a municipal tribunal to prove the existence and contents of a record, not shown to have been lost or destroyed, of another court.

It seems to us, in a case like this, the best evidence reasonably attainable should be required before an international tribunal.

The recitals of the Supreme Court do not come up to the mark, nor does the following, in its final opinion, February 22, 1839:

"A comparative study of the dates in which the judicial decisions herein referred to were rendered, and of the date of the petition of the counsel for the State asking for the writ of restitutio, will show that the remedy was resorted to, in due time, within the four years provided for by the 10th law, title 19, PART 6."

Had the court given dates so that a "study" of them could now be made, the difficulty would still remain, even though they disclosed jurisdiction in the Superior Court. They are not the best evidence. That is the record (unless shown to have been lost). If there never was a record then, in contemplation of law, the court did not act. It is elementary that a court of record (and this was one) speaks only through its record. And even where that is produced, showing on its

face jurisdiction, and the jurisdictional facts stated are denied, it has been held they may be inquired into and disproved. The Supreme Court of the United States in Thompson v. Whitman, 18 Wall., 457, held:

"The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding that it may recite that they did exist."

In Pennywhit v. Foot, 27 Ohio St., 98, the court said:

"From a careful review of the numerous cases we find the rule now well settled that neither the constitutional provisions that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, nor the act of Congress passed in pursuance thereof, prevents any inquiry into the jurisdiction of the court in which a judgment offered in evidence was rendered, and such a judgment may be contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist, and this is true either as to the subject-matter or the person, or in proceedings in rem, as to the thing."

Such is the law in the United States, and, we believe, erally.

gen

If a court's findings in favor of its own jurisdiction were conclusive in cases coming under consideration before international or other tribunals, the question of jurisdiction could never be raised; for its acting at all is equivalent to finding jurisdiction to act.

"An alleged judgment," says Dr. Wharton (Evidence, § 796), “is open to attack for want of jurisdiction; for it is a petitio principii to say that it is unimpeachable because it is a judgment, and that it is a judgment because it is unimpeachable."

The evidence satisfies us that the restitutio suit was not in the Superior Court till after November 4, 1837, when the Supreme Court "returned" its record in that regard thereto. The suggestion-for contention would be too strong a term-that the bringing of the suit in the Supreme Court, which was without jurisdiction to entertain it, was its commencement in the Superior Court for the purposes of avoiding a bar, cannot be entertained. It is sufficient to say that before allow

ing an effect so extraordinary we should require to see the enactment providing for it, and none has been called to our attention or by us found. The Supreme Court makes no intimation that such is the law, unless the passage quoted can be regarded as such. But constructions involving results violative of familiar principles and courses of procedure, are to be avoided, and we cannot so regard the finding. The fact that the Supreme Court of its own motion sent the record down to the Superior Court does not help the matter, for it is immaterial whether the suit was begun there at its instance or not. The question is when and whether it was therein instituted.

The objection to this record is by no means technical. No notice, legal or other, was received or sent to Jacob Idler about the suit in the Superior Court, the only court having jurisdiction to entertain it in the first instance (unless it be the Treasury Court, where it never was), as is conceded on all hands. The letters rogatory directed him to appear in the Supreme Court in a suit instituted there. If the summons was legal, it only gave him notice of what that court in that case-not in another instituted in an inferior tribunal and subsequently appealed to it-might lawfully adjudge. The notice directing him, away in a distant land, to appear in one court when the business affecting his interests was to be done in another, was worse than none at all, for it was misleading. Even if no notice had been required, and one had nevertheless been given, whose tendency was thus to mislead, we are inclined to think the act, from the standpoint of justice, would vitiate the whole proceedings. Receiving the notice in 1837, at Philadelphia, that a suit had been begun against him in restitutio in the Supreme Court of Venezuela in June, 1836, he-charged at most with a knowledge of the law as it was declared to be-could well have said to himself, "I shall not undertake the hazards of a journey, or incur the expense, to appear. The court has no jurisdiction, and cannot grant the prayer of the Govern