PART IV. PROCEDURE.

Satisfied

judgment here, or of a defendant, successful abroad, attempting to use the foreign judgment in his favour as a protection. The case may be supposed, however, of a plaintiff CAP. XI. who has obtained a foreign judgment in his favour, but for Judgments. a less amount than he conceives to be due to him, and who therefore claims to sue, in an English Court upon his original judgment cause of action. That he can sue upon his original cause of pleaded in action has been already stated, inasmuch as there is no further action merger of such original cause in a foreign judgment, (a) but by same the judgment, if satisfied, may nevertheless be pleaded in bar of the claim as a satisfaction.(b) It may be more correct

The

to say that in such a case the amount actually paid in accordance with the foreign judgment may be pleaded as payment, the plaintiff being estopped by the judgment itself from showing that more was in fact due. Unless such an estoppel arose, the plea would, of course, be defeated by showing a claim for a larger amount, on the principle that payment of part is no satisfaction of the whole.(c) position of the parties is in fact analogous to that occupied by plaintiff and defendant who have chosen to refer their differences to arbitration. Where a party has obtained the decision of an arbitrator in his favour, and his adversary has paid the amount, it would be manifestly contrary to reason and justice to allow the successful party to endeavour to obtain a better judgment in respect of the same subject-matter from some other tribunal.(d)

(ii.) Foreign Judgments in rem.

answer to

plaintiff.

sive as against

The consideration of the present subject has hitherto been Judgments in confined to foreign judgments against the person, which are, of rem conclucourse, notwithstanding some ambiguous expressions to the strangers. contrary,(e) only entitled to recognition as creating an obligation in proceedings between the same parties or privies; nor will a foreign judgment in personam be enforced in England by proceedings in rem.(f) Where the litigants are not the same, such a judgment is plainly res inter alios acta, and is not, except under very special circumstances, admissible in evidence at

(a) Smith v. Nicolls, 5 Bing. N. C. 208; Hall v. Odber, 11 East, 124; Kelsall v. Marshall, 1 C. B. N. S. 241; Castrique v. Behrens, 30 L. J. Q. B. 163; Barber v. Lamb, 8 C. B. N. S. 95.

(b) Barber v. Lamb, 8 C. B. N. S. 95.

(c) Cumber v. Wane, 1 Sm. L. C. 341, and cases there cited.

(d) Per Erle, C.J., 8 C. B. N. S. 100.

(e) Tarleton v. Tarleton, 4 M. & S. 21; Houlditch v. Donegal, 8 Bligh, N. R. 301, 341.

(f) The City of Mecca, 6 P. D. 106; 49 L. J. Adm. 17.

Judgments.

PART IV. all.(a) There is, however, another class of judgments which is PROCEDURE. entitled to wider recognition, though it may be sometimes CAP. XI. difficult to decide to which class a particular judgment belongs. A judgment in rem, or a decree which changes or settles the ownership of immovable or movable property, is, subject to certain conditions as to the jurisdiction of the Court, conclusive not only against the parties to the original action, but as against all the world.(b) That the principle which allows a foreign judgment to be impeached for fraud (c) applies to judgments in rem with the same certainty as to judgments in personam is of course indisputable; (d) but in the absence of fraud, the only requisite necessary to the validity and conclusiveness of a foreign judgment in rem is that it should have been pronounced by a competent Court having actual jurisdiction over the subject-matter.(e) The necessity of jurisdiction as a foundation for every judicial act has already been laid down with respect to judgments generally; it being indispensable, adopting the words of Story,(f) to establish that the Court pronouncing the judgment should have had lawful jurisdiction over the cause, over the thing, and over the parties. In ordinary actions and judgments in personam the necessity of jurisdiction over any particular thing does not arise. The decision of a tribunal between two parties, in personal actions, though in general binding between parties and privies, does not affect the rights of third parties. If in execution of the judgment in such an action process issues against the property of one of the litigants, and some particular thing is sold as being his property, the rights of third persons are in no way affected. The tribunal had neither jurisdiction to determine, nor did it determine, anything more than that the litigant's property should be sold, and it does not do more than sell his interest, if any, in the property seized in execution. It is constantly seen in the English common law courts, that where the sheriff has seized and sold a particular chattel under a fieri facias against A., B. may set up a claim to that chattel, notwithstanding the sale, either against the sheriff or the purchaser (a) Castrique v. Imrie, L. R. 4 H. L. 427. For estoppel through privies in blood, law, or estate, by judgments, see note to Duchess of Kingston's Case, 2 Sm. L. C. 793 (7th ed.).

(b) Minna Craig Steamship Co. v. Chartered Bank of India, 66 L. J. Q. B. 162; Ballantyne v. Mackinnon (1896), 2 Q. B. 455; 65 L. J. Q. B. 616. Castrique v. Imrie, L. R. 4 H. L. 414.

(c) Ante, p. 555; Ochsenbein v. Papelia, L. R. 8 Ch. 695; Abouloff v. Oppenheimer, 10 Q. B. D. 295.

(d) Shand v. Du Boisson, L. R. 18 Eq. 283; Messina v. Petrococchino, L. R. 4 P. C. 144, 157.

(e) The Flad Oyen, 8 T. R. 270; Havelock v. Rockwood, 8 T. R. 276; Donaldson v. Thompson, 1 Camp. 429; Oddy v. Bovil, 7 T. R. 523. (f) $ 586.

from the sheriff.

PART IV. PROCEDURE.

CAP. XI.

Judgments.

on ownership.

And if this may be done in the courts of the country where the judgment was pronounced, it follows of course that it may be done in a foreign country.(a) But when the tribunal has jurisdiction to determine not merely on the rights of the parties, but also on the disposition of a particular thing, and does in the exercise of that jurisdiction direct that the thing itself, and not merely the interest of any particular person in it, be sold and transferred, the case is very different.(b) Judgments In such a case the judgment is not in personam, but in rem; in remand in its adjudication on the status or ownership of that thing adjudication is, as has just been said, conclusive against all the world, binding in all courts, and against all persons."(c) Such a judgment is not, however, even as between the parties, pleadable as an estoppel,(d) which is perhaps the only safe doctrine to be deduced from the decision in Simpson v. Fogo, a case which has been often cited as at variance with the principles which have been already enunciated. In Simpson v. Fogo, a creditor of the owners of a British ship obtained in Louisiana a judgment against them under which their interest in the ship, and no more, was sold under process of execution. The Bank of Liverpool, who had at the time a mortgage on the ship valid according to English law, intervened in the Louisiana proceedings, and a judgment was pronounced against them, on the ground that the law of Louisiana ignored all rights, even though acquired in England in an English ship, before the vessel had passed into the jurisdiction of Louisiana, that had not been acquired according to Louisiana law. It was held that the Bank of Liverpool were, nevertheless, not estopped from setting up their right as mortgagees in an English court; and inasmuch as the Louisiana Court did ultimately pronounce as to the ownership of and entire proprietary right in a ship which was at the time within its territorial jurisdiction, though that decision was not originally necessary to the suit, and would probably not have been given if the Bank of Liverpool had not intervened, it is difficult to see how the subsequent English decision can be reconciled with the theory of the conclusiveness of foreign judgments in rem which has just been stated, or with the more important cases in the superior English courts which have followed it.(e) The judgment was, no doubt, influ

(a) Per Blackburn, J., in Castrique v. Imrie, L. R. 4 H. L. 414, 427.

(b) Ibid., 39 L. J. C. P. 354; L. R. 4 H. L. 414.

(c) Hobbs v. Henning, 17 C. B. N. S. 791.

(d) Simpson v. Fogo, 29 L. J. Ch. 657; Hobbs v. Henning, 17 C. B. N. S. 791. (e) Cammell v. Sewell, 3 H. & N. 640; 5 H. & N. 728; Castrique v. Imrie, L. R. 4 H. L. 414; 39 L. J. C. P. 350.

PART IV. PROCEDURE.

CAP. XI.

Judgments.

Judgment

in rem-conclusive as to

adjudication

and stated grounds of decision.

enced by the consideration that the Louisiana Court had taken an entirely erroneous view, according to the principles of private international law, of their power to ignore a proprietary right which had once well accrued ;(a) a defect for which it has often been contended that a foreign judgment may be successfully impeached.(b)

Accepting, then, as incontrovertible the principle that a foreign judgment in rem is conclusive in all courts and against all parties, it remains to consider to what its conclusiveness has been held to extend. As to the facts directly adjudicated upon there can be no doubt; but there is often difficulty in applying the principle to facts inferentially decided, as well as to the grounds, expressed or implied, of the foreign decision. The safest expression of the English law on this subject appears to be that the truth of every fact, which the foreign court has found, either as part of its actual adjudication or as one of the stated grounds of that decision, must be taken to be conclusively established.(c) Thus, in the Minna Craig case,(d) the master of a British ship was induced by fraud to give bills of lading at Bombay for goods which in fact were never shipped On arrival in a German port, proceedings were there taken against the ship on behalf of bond fide indorsees of the bills of lading. By order of the German Court, the ship was sold, and the indorsees of the bills of lading were declared to be entitled to so much of the proceeds as represented the value of the goods described in the bills of lading. It was held, in an action brought against them in England on behalf of the liquidator of the owners, that the judgment of the German Court in effect declared that a lien upon the ship, to that extent, was created by the act of the master in giving the bills of lading, and was conclusive.

The judgment relied on, however, must clearly be a judgment upon the point in controversy. Thus the judgment of a French Court of Admiralty, condemning a ship as prize, was held not to be conclusive as to the question of neutrality in an action against the underwriters, as the judgment itself did not state its foundation, and it was shown that it might have proceeded on another ground; viz. the violation of the French law by

(a) Ante, p. 257; Cammell v. Sewell, 5 H. & N. 728.

(b) But see ante, p. 562.

(c) Hobbs v. Hunning, 17 C. B. N. S. 791, 825; 34 L. J. C. P. 117; Kindersley v. Chase, Park Ins. 490; Baring v. Clagett, 3 B. & P. 214; Bolton v. Gladstone, 5 East, 160; Blad v. Bamfield, 3 Swanst. 60.

(d) Minna Craig Steamship Co. v. Chartered Bank of India, 66 L. J. Q. B. 162 ; following Ballantyne v. Mackinnon (1896), 2 Q. B. 455; 65 L. J. Q. B. 616.

PART IV. PROCEDURE.

CAP. XI.

throwing overboard the ship's papers.(a) It was said in a subsequent case that, where no other possible ground of condemnation was shown to the Court by evidence, the foreign condemnation was to be taken as conclusive that the ship was Judgments. enemies' property;(b) but the truer doctrine would seem to be that the foreign Court will not be taken as having established any fact which it has not expressly found, and laid down in the judgment relied on.(c) No presumption as to the grounds upon which it proceeded will therefore be made by another tribunal. And even an express finding on a question of fact, not necessary to the actual decree, will be regarded as inconclusive before another tribunal. Thus, it not being necessary to show domicil within the jurisdiction, in order to obtain probate,(d) a finding as to domicil in a decree granting probate, is inconclusive on that point.(e)

examinable

It was said above that a foreign judgment in rem can, like Judgmentany other, be impeached for fraud;(f) but it is clear that the when not fraud alleged must not be something which might have been for fraud. raised as a defence in the foreign Court upon the facts which were then before it. To impeach a foreign judgment on such grounds as that would be to allow a plea which ought to have been pleaded in the action on which the judgment was founded.(g) Thus an action will not lie for a conspiracy to obtain a foreign judgment in rem against the plaintiff, unless it appears at any rate that the plaintiff had no notice of the foreign action, or that the questions upon which the truth of his allegations of conspiracy rest were not raised or determined by it.(h)

(iii.) Foreign Judgments on Status.

status of

How far a foreign judgment on a question of fact or law Judgments on affecting the status of a person is analogous to a foreign judg- persons. ment in rem, determining the ownership of a particular thing, is doubtful. It has been seen that a judgment in rem can only claim recognition abroad when pronounced by a tribunal which had jurisdiction over the subject-matter, the jurisdiction in

(a) Bernardi v. Motteux, 2 Dougl. 575.

(b) Saloucci v. Woodmass, Park. Ins. 362.

(e) Hobbs v. Henning, 17 C. B. N. S. 791; 34 L. J. C. P. 117; Fisher v. Ogle, 1 Camp. 418; Dagleish v. Hodgson, 7 Bing. 504; and see per Lord Eldon in Lothian v. Henderson, 3 B. & P. 544.

(d) Whicker v. Hume, 7 H. L. C. 124, 156.

(e) Concha v. Concha, 11 App. Cas. 541.

(f) Ante, p. 555.

(9) Westlake, § 389; Bowles v. Orr, 1 Y. & C. Ex. 464; Innes v. Mitchell,

4 Drew. 102; Castrique v. Behrens, 30 L. J. Q. B. 163.

(h) Castrique v. Behrens, 30 L. J. Q. B. 163; Bank of Australasia v. Nias, 16 Q. B. 717.