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cate of discharge ought to be effectual in the tribunals of any other State where the creditor may bring his suit. If, on the other hand, the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extraterritorially within the jurisdiction of any other State having the exclusive right of regulating the proceedings in its own courts of justice; still less can it have such an operation where it is a mere partial modification of the remedy, such as an exemption from arrest, and imprisonment of the debtor's person on a cessio bonorum. Such an exemption being strictly local in its nature, and to be administered, in all its details, by the tribunals of the State creating it, cannot form a law for those of any foreign State. But if the exemption from arrest and imprisonment, instead of being merely contingent upon the failure of the debtor to perform his obligation through insolvency, enters into and forms an essential ingredient in the original contract itself, by the law of the country where it is made, it cannot be enforced in any other State by the prohibited means. Thus by the law of France, and other countries where the contrainte par corps is limited to commercial debts, an ordinary debt contracted in that country by its subjects cannot be enforced by means of personal arrest in any other State, although the lex fori may authorize imprisonment for every description of debts.
The obligation of the contract consists of the will of the parties, expressed as to its terms and conditions.
The interpretation of these depends, of course, upon the lex loci contractus, as do also the nature and extent of those implied conditions which are annexed to the contract by the local law or usage. Thus the rate of interest, unless fixed by the parties, is allowed by the 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 inte
Melan v. The Duke of Fitz
į Bosanquet & Puller's Rep. vol. i. p. 131. James.
rest 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.1
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 extraterritorially; 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.
The most eminent public jurists concur in asserting $21. Conthe principle, that a final judgment, rendered in a per- of foreign sonal action, in the courts of competent jurisdiction of judgments one State, ought to have the conclusive effect of a res actions. adjudicata in every other State, wherever it is pleaded in bar of another action for the same cause.2
Bat 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
1 Kent's Comm. on American Law, vol. ii. p. 459, fifth edit. Fælix, Droit International Privé, $ 85.
2 Vattel, liv. ii. ch. vii. $S 84, 85. Martens, Droit des Gens, $$ 93, 94, 95. Klüber, Droit des Gens, $ 59. Deutsche Bundes Recht, $ 366.
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. Law of
By the law of England, the judgment of a foreign England. tribunal, of competent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicatæ, 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 extrinsic 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.
The same jurisprudence prevails in the United States law. 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.1
1 Kent's Comm. vol. ii. p. 119, 5th edit. 2 Fælix, SS 292–311.
3 Knapp's Rep. in the Privy Council, vol. i. p. 274: Frankland v. McGusty. Barnewall & Adolphus's Rep. vol. ii. p. 757: Novelli v. Rossi ; vol. iii. p. 951 : Becquet v. M'Carthy.
The law of France restrains the operation of foreign Law of judgments within narrower limits. Judgments obtained France. in a foreign country against French subjects are not 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.2
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.3 A decree of divorce obtained in a foreign country, by
Foreign a fraudulent evasion of the laws of the State to which divorces. 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
Cranch's Rep. vol. vii. pp. 481-484: Mills v. Duryee. Wheaton's Rep. vol. iii. p. 234: Hampton v. M'Connel.
2 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, Droit Civil Français, tom. x. Nos. 76–86.
3 Fælix, Droit International Privé, s$ 293–311.
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 divorce à vinculo for any cause whatever. This subject has been thrown into almost inextricable confusion, by the contrariety of decisions between the tribunals of England and Scotland; the courts of the former refusing to recognize divorces à vinculo pronounced by the Scottish tribunals, between English subjects who had not acquired a bona fide permanent domicile in Scotland; whilst the Scottish courts persist in granting such divorces in cases where, by the law of England, Ireland, and the colonies connected with the United Kingdom, the authority of parliament alone is competent to dissolve the marriage, so as to enable either party, during the lifetime of the other, again to contract lawsul wedlock.
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.? (a)
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
1 Dow's Parliament. Cases, vol. i. p. 117: Tovey v. Lindsay, p. 124. Lolly's
See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim.
2 Warrender v. Warrender, Bligh. Rep. vol. ix. p. 89. S. C. Clark & Finnell. Rep. vol. i. p. 488.
(a) [The status of parties, domiciled subjects of and married in America, is . not so affected by a sentence pronounced at and founded on a rule of law peculiar to Rome, the persons being then resident at Rome and coming subsequently to England, that an English forum would, by reason of such sentence, refuse to entertain questions arising out of the married state of such persons. English Law and Equity Reports, vol. ii. p. 570. Connelly v. Connelly.]