QUESTIONS AND ANSWERS

ON

LAW.

1. What is a judgment?

JUDGMENT.

It is a decision or sentence of the law, given as the result of proceedings instituted for the redress of an injury.

Judgments are the sentence of the law pronounced by the court upon the matter contained in the record, and are of four sorts; first, where the facts are confessed by the parties, and the law determined by the courtas in the case of a judgment upon demurrer; secondly, where the law is admitted by the parties, and the facts disputed-as in case of a judgment upon a verdict; thirdly, where both the fact and the law arising thereon are admitted by the defendant-which is the case of judgments by default or confession; lastly, where the plaintiff is convinced that either fact or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution-which is the case in judgments upon nonsuit or retraxit.-3 Black. Comm. 305. Jus. Inst. lib. 4, tit. 18.

OF FOREIGN JUDGMENTS.

1. What effect is given to a foreign judgment in rem?

The sentence of a competent court proceeding in rem, is conclusive with respect to the thing itself, and operates a complete change of property; by such sentence the right of the former owner is lost, and a complete title given to the person who claims under the decree.-Williams v. Armroyd, 7 Cranch, 423. Rose v. Himely, 4 Cranch, 221. But in every case of a foreign judgment, condemning P. vessel as prize of war, the authority of the court to act as a prize trib anal must be examinable. The question whether the vessel was in a situation to subject her to the jurisdiction of that court, is also examinable.-Ibid, Flad Oyen, 1 Rob. The Christopher, 2 Rob. Rep. 173. The Kierlighett, 3 Rob. 82.

114.

The Helena, 4 Rob. 3. The Comet, 5 Rob. 255. Hudson and Smith ▾ Guestier, 6 Cranch, 281.

A foreign sentence of condemnation, as good prize, is not conclusive that the title to the property was not in a subject of a neutral nation.— Maley v. Shattuck, 5 Cranch, 458.

No tribunal of a co-ordinate jurisdiction can examine the sentence of another competent court proceeding in rem, or inquire whether it be conformable to public or municipal law.—Williams et al. v. Armroyd, 7 Cranch, 428.

2. What effect is given to a foreign judgment in personam ?

The rule of the English law is, that a foreign judgment is primâ facie evidence of the debt, and it lies on the defendant to impeach the justice of it, or show that it was irregularly or unduly obtained.—Sinclair v. Frazer cited in Duchess of Kingston's case, 11 St. Tr., 222. Martin v. Nicholls, 3 Simon's Rep. 545. In the latter case it was held, that a foreign judgment could not be questioned, not merely when it comes in collaterally or by way of defence, but in a suit brought directly to enforce it. It is necessary, however, in order to recognize a foreign judgment, and give it effect in any way, that the court which pronounced it was competent to the case, and had due and lawful jurisdiction over the cause and the parties; and this is the case whether the proceedings be in rem or in personam. Story's Com. on Conflict of Laws, 492. 1 Kent's Com., 261. 2 Kent's Com., 121. Tarleton. v. Tarleton, 4 Maule & Selw. 21. Guiness v. Carwell, 1 Barn. & Adolph. 459. Bequet v. M' Carthy, 2 Ibid, 951. Vattel, b. 2, ch. 7, sec. 84, 85. Huberus de Conflictû Legum, lib. 1, tit. 3, sec. 3, 6. Henry on Foreign Law, 74, 76.

There is a distinction taken, in the English Courts, between suits brought by a party to enforce a foreign judgment, and suits brought against a party, who sets up a foreign judgment in bar by way of defence. In the former case, it is said, that no sovereign is bound, jure gentium, to execute a foreign judgment within his dominions; and therefore, if execution of it is sought in his dominions, he is at liberty to inquire into the merits of the judgment. But it is otherwise where the defendant sets up a foreign judgment as a bar to proceedings; for if it has been pronounced by competent tribunals and carried into effect, the losing party has no right to institute a suit elsewhere. It is then res judicata, which ought to be received as conclusive evidence of right; and the exceptio rer judicate under such circumstances, is entitled to universal esteem and respect. This distinction has been very generally recognized as having a foundation in international justice.-Story's Com. on Conflict of Laws, 500. 2 Kent's Com., 119. Boucher v. Lauson, cases T. Hardw. 89. Tarleton & Tarleton, 4 Maule & Selw., 10. Philips v. Hunter, 2 H. Black, 410.

3. How is this rule received in the United States?

The general doctrine maintained in the American Courts in relation to foreign judgments is, that they are primâ facie evidence, but they are

impeachable.-Story's Com. on Conflict of Laws, 508. 2 Kent's Com. 118, et seq. 4 Cowen's Rep., 520. Green v. Sarmiento, 1 Peters' C. C. Rep., 74. Field v. Gibbs, Ibid. 155. Aldrich v. Kinney, 4 Connec. Rep., 380. Shumway v Stillman, 6 Wendell, 447. Hall v. Williams, 6 Pick., 247. Starbuck v. Murray, 5 Wendell, 148.

Foreign judgments in rem, with respect to personal property, are held to be conclusive in cases where the Court had jurisdiction, so that the same question may not be again litigated.-Williams v. Armroyd, 7 Cranch, 433. Croudson v. Leonard, 4 Cranch, 434. Rose v. Himely, 4 Cranch, 141. Hudson v. Guestier, Lafont v. Bigelow, 4 Cranch, 293. Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185. Maley v. Shattuck, 3 Cranch, 458. The Mary, 9 Cranch, 126. The Cran-Para, 7 Wheat., 471. 4. What is the rule of the French law in regard to foreign judgments?

The present prevailing doctrine appears to be, that foreign judgments are executory in France, after being subject to re-examination; and whoever seeks to enforce a foreign judgment, must show the reason upon which it is founded.-Merlin, Ques. du Droit, tit. Jud. § 14. Repertoire Jurisp., tit. Jud. § 6. Toulier, Droit Civil Françoise, tom. 10, No. 76 a 86 Pardesus, Droit Commercial, tom. 5, 1488.

5. What is the proper mode of enforcing a foreign judgment?

By an action of debt. An action of debt on judgment lies immedi ately on the recovery thereof; and, even on a judgment recovered in another state but in the latter case the defendant may show that the Court had no jurisdiction. An administrator may have debt in his own individual name to recover a judgment in his representative character.-Denison v. Williams, 4 Conn. Rep., 402. Clark v. Goodwin, 14 Mass. Rep., 239. Smith v. Mumford, 9 Cowen, 26. Hale v. Angel, 20 Johns. Rep., 342.

6. What is the proper exception to such an action?

Ben

The plea of nul tiel record.-Ladd v. Blunt, 4. Mass. Rep., 402. ton v. Burgot, 10 Serg. & Rawle, 240. Mills v. Duryee, 7 Cranch, 481. But this does not apply to foreign judgments: nil debet is the proper plea to actions on such judgments.-Bissell v. Briggs, 9 Mass. Rep., 462. Hall v. Williams, 6 Pick. Rep., 232. Hampton v. McConnell, 3 Wheaton, 234.

OF JUDGMENTS RENDERED IN THE COURTS OF THE

UNITED STATES.

1. What are the rules governing the execution of the judgments and judicial process of the Circuit Courts of the United States?

They are laid down as follows:

1st. That by the general provisions of the laws of the United States, the Circuit Courts can issue no process beyond the limits of their districts.

2d. That independently of positive legislation, the process can only be served upon persons within the same districts.

3d. That the acts of Congress adopting the state process, adopt the form and modes of service, only so far as the persons are rightfully within the reach of such process, and did not intend to enlarge the sphere of the jurisdiction of the Circuit Courts.

4th. That the right to attach property, to compel the appearance of persons, can properly be used only in cases in which such persons are amenable to the process of the Court, in personam, that is, where they are inhabitants, as found within the United States, and not where they are aliens, or citizens resident abroad at the commencement of the suit, and have no inhabitancy here: and even in case of a person being amenable to process in personam, an attachment against his property cannot be issued against him except as part of, or together with, process to be served on his person.

The Circuit Court of each district sits within and for that district, and is bounded by its local limits.

Whatever may be the extent of the jurisdiction of the Circuit Courts over the subject matter of suits, in respect to persons and property, it can only be exercised within the limits of the district.

Congress might have authorized civil process, from any Court, to have run into any State of the Union. It has not done so. It has not, in terms, authorized any civil process to run into any other district; with the single exception of subpoenas to witnesses, within a limited distance. In regard to final process, there are two cases, and only two, in which writs of execution may now, by law, be served in any other district than that in which the judgment was rendered; one in favor of private persons in another district of the same State, and the other in favor of the United States, in any part of the United States.-Toland v. Sprague, 12 Peters' S. C. Rep., 300. Piquet v. Swan, 5 Mason, 39.

The Circuit Court has no authority to decree a sale of lands lying in another State, by a master acting under its own authority.-Boyce's Extr. v. Grundy, 9 Peters' S. C. Rep., 299.

2. What effect may State laws have in restraining a judgment of the Federal Courts ?

State laws cannot control the exercise of the powers of the National Government, or in any manner limit or effect the operation of the process or proceedings in the National courts. The whole efficacy of such laws, in the Courts of the United States, depends upon the enactments of Congress. So far as they are adopted by Congress, they are obligatory. Beyond this they have no controlling influence. Congress may adopt such State laws, directly, by substantive enactments, or they may confide the authority to adopt them to the courts of the United States.-Beers v. Haughton, 9 Peters' S. C. Rep., 329. Sturges v. Crowninshields, 4 Wheat., 200, 4 Condens. Rep., 409. Wayman v. Southard, 11 Wheaton, 1, 6 Condens. Rep., 1. United States Bank v. Halsted, 10 Wheaton, 51, 6 Condens. Rep., 22. Mason v. Hale, 12 Wheaton, 370, 6 Condens. Rep., 535. Bank of Hamilton v. Dudley's Heirs, 2 Peters' S. C. Rep., 526