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Statement of the Case.

or coupons in the contract and in the petition mentioned to this defendant, and they never delivered any of the said bonds to this defendant, nor did they ever make delivery nor attempt to make delivery of said bonds in accordance with the terms of said written contract, the said plaintiffs well knowing at all times what the real purpose of said contract was, and that the same was not to be performed upon the part either of the plaintiffs or of this defendant.

“This defendant says that he was not present at the time that said pretended judgment was rendered; but he states the fact to be that there were no facts existing, or presented to the court, which justified such judgment; that no bonds nor coupons were brought into court for delivery to this defendant, nor are any bonds or coupons upon deposit in the office of the clerk of said court, or in any other depositary, to be delivered to the defendant upon the performance of said contract upon his part, nor is it in the power of the said plaintiffs, or either of them, to make such delivery.”

The defendant further alleges that, if he were compelled to pay the judgment, he would be compelled to pay it without any consideration whatever ; that by the wrongful act of the plaintiffs he was compelled to pay three bills of exchange of $5000 each, which the plaintiffs had delivered to bona fide purchasers; that he never received but ten of the bonds; that the conditions of the contract were dependent conditions ; and that the plaintiffs had not performed their part of the contract.

The defendant also “denies that any hearing occurred before said court;” and “denies that there was any showing made by the plaintiffs of their readiness or their ability to perform their contract; but says that said judgment was irregular and without evidence, without performance upon the part of the plaintiffs, entered up against him in his absence, without his knowledge, and without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings in said action.”

The plaintiffs demurred to the answer, “ because the same does not state facts sufficient to constitute a defence.” The

Opinion of the Court.

Circuit Court sustained the demurrer, and rendered judgment for the plaintiffs for the sum sued for, with interest and costs. 41 Fed. Rep. 502. The defendant sued out this writ of error.

Mr. Jeremiah M. Wilson and Mr. Samuel Shellabarger for plaintiff in error.

Mr. Samuel E. Williamson for defendant in error.

MR. JUSTICE Gray, after stating the case, delivered the opinion of the court.

The judgment of the Canadian court is, beyond all doubt, sufficient to support this action, unless it is successfully impeached. Testing the answer in this case by the rules laid down in Hilton v. Guyot, just decided, no adequate ground for impeaching that judgment is shown.

Upon this record, the Queen's Bench Division of the High Court of Justice of the Province of Ontario must be taken to have been a competent court, so far as the subject-matter or cause of action was concerned, to entertain jurisdiction of the action brought before it by the plaintiffs against the defendant. The petition in the present case alleges that the plaintiffs brought in that court, described as “a duly and lawfully constituted court of record, having jurisdiction over all civil matters” in and for the Province of Ontario, an action upon a certain contract in writing between the parties. The defendant, in his answer to this petition, expressly admits that “ an action was commenced against him in the Province of Ontario, Canada, for the general purpose stated in the petition.” The competency of the Canadian court must therefore be deemed to be admitted, and, indeed, was hardly denied at the bar.

Giving to the answer the construction, most favorable to the defendant, of setting up two distinct and independent defences, separated by the words, “And for a further defence," there is nothing in it to show that the Canadian court had not jurisdiction of the person of the defendant. The first part of the answer expressly admits that "certain attorneys entered,

Opinion of the Court.

or undertook to enter, the appearance of this defendant in said action.” As it does not allege that the attorneys were not authorized to enter the defendant's appearance in that action, they must be taken to have been authorized by him to do so. Osborn v. Bank of United States, 9 Wheat. 738, 830; Hill v. Mendenhall, 21 Wall. 453; Molony v. Gibbons, 2 Camp. 502. The second part of the answer describes the defence, now undertaken to be made upon the merits of the case, as the one “stated in his answer in said original action in the Province of Ontario,” thus clearly showing that he had not only appeared, but answered in that action. It is nowhere alleged that he appeared or answered in that court under compulsion, or for any purpose except to contest his personal liability. He must therefore be taken to have voluntarily submitted himself to the jurisdiction of the court.

The defendant, indeed, in the first part of his answer, alleges that the “judgment was entered without his knowledge and in his absence, and without any hearing whatever;” and, likewise, in the second part of his answer," says that he was not present at the time that said pretended judgment was rendered,” and “ denies that any hearing occurred before said court," and " says that said judgment was irregular and without evidence," and "entered up against him in his absence, without his knowledge." But, as he had once submitted himself to the jurisdiction of the court, all these allegations and denials are quite consistent with the position, taken by the plaintiffs at the argument here, that the defendant, at the time appointed for the hearing, failed to appear and made default, and therefore no hearing or evidence was necessary to entitle the court to proceed to judgment.

The general averments, in the first part of the answer, that the judgment was “an irregular and void judgment,” and, in the second part, that “said judgment was irregular,” and, " vithout any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings in said action,” are but averments of legal conclusions, and wholly insufficient to impeach the judgment, without specifying the grounds upon which it is supposed to be

VOL. CLIX-16

Opinion of the Court.

irregular and void, or without jurisdiction or authority to enter it. Cowan v. Braidwood, 1 Man. & Gr. 882; S. C. 2 Scott N. R. 138.

To warrant the impeaching of a foreign judgment because procured by fraud, fraud must be distinctly alleged and charged. White v. IIall, 12 Ves. 321; Wallingford v. Mutual Society, 5 App. Cas. 685, 697, 701; Ambler v. Choteau, 107 U. S. 589, 591. This answer does not even contain a general charge that the judgment was procured by fraud, or any equivalent allegation. And the only matters specified, from which fraud is sought to be inferred, are those already considered, which have no tendency to prove it; and the knowledge which the plaintiffs had of the real purpose of the contract, which is referred to, not as a ground for charging fraud in procuring the judgment, but only as incidental to and in explanation of the allegation that the plaintiffs never tendered, or delivered, or attempted to deliver, any bonds to the defendant, in accordance with the written contract. To treat the loose and imperfect allegations of this answer as duly setting up a defence of fraud would be inconsistent with all precedent, and would ignore the duty of giving the other party notice of the defences which he must be prepared to meet.

By the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect. Scott v. Pilkington, 2 B. & S. 11; Abouloff' v. Oppenheimer, 10 Q. B. D. 295, 307; Vadala v. Lawes, 25 Q. B. D. 310, 316; Nouvion v. Freeman, 15 App. Cas. 1, 10; Fowler v. Vail, 27 Upper Canada C. P. 417, and 4 Ontario App. 267.

The defences set up in the answer to this action upon the Canadian judgment reduce themselves to an attempt, without any sufficient allegation of want of jurisdiction of the cause or of the defendant, or of any fraud in procuring that judgment, or of any other special ground for not allowing the judgment full effect, but upon general allegations setting up the same matters of defence which were pleaded and might have been tried in the foreign court, to reopen and try anew the whole merits of the original claim in an action upon the

Concurring Opinion: Fuller, C. J., Harlan, Brewer, JJ.

judgment. This, for the reasons stated in Hilton v. Guyot, ante, 113, cannot be allowed.

Upon principle, therefore, as well as upon authority, comity requires that the judgment sued on should beheld conclusive of the matter adjudged.

Judgment affirmed.

MR. CHIEF JUSTICE FULLER concurring.

MR. JUSTICE Harian, MR. JUSTICE Brewer, and myself concur in the judgment in this case, but not on all the grounds stated in the opinion of the court. Our views on the general subject are indicated in the dissenting opinion in Ililton v. Guyot, ante, 229.

MR. JUSTICE WHITE, not having been a member of the court when this case was argued, took no part in its decision.

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