nal, or in the country where it is recovered. Thus, in the every day's occurrence, of the foreclosure of mortgages in this court, against a mortgagor who is personally liable for the debt, and by reason of his absence from the State, is not served with process. The decree is made on the publication of notice, and in respect of the mortgaged premises, is binding and conclusive. So far, it is in rem. But if in the same decree, the mortgagee should insert a clause that the mortgagor must pay the deficiency of the debt, if any there should be, after a sale, and awarding execution against him therefor; such clause would be purely, in personam, and of no avail or force, even in the court where the decree was entered."

Another familiar illustration of the rule just stated is found in proceedings by attachment against non-resident debtors. Judgments rendered in such actions, without personal service of the defendant within the jurisdiction of the court, will not sustain an action. Bissell v. Briggs, 9 Mass. 468; Arndt v. Arndt, 15 Ohio, 33; Robinson v. Ward, 8 Johns. 86; Kilburn v. Woodworth, 5 id. 41; Bates v. Delevan, 5 Paige, 299; Thompson v. Emmert, 4 McL. 96; Melhop v. Doane, 31 Iowa, 397; 7 Am. Rep. 147; Ward v. McKenzie, 33 Tex. 297; 7 Am. Rep. 261; Sevier v. Roddie, 51 Mo. 580; Freeman on Judgments, § 573; Miller v. Dungan, 36 N. J. Law, 21; McDermott v. Clary, 107 Mass. 501.

§ 7. Foreign judgments. "It is not an admitted principle of the law of nations," says BLACKBURN, J., in Godard v. Gray, L. R., 6 Q. B. 139, 148, "that a State is bound to enforce within its territories the judg ment of a foreign tribunal. Several of the continental nations (including France) do not enforce the judgments of other countries unless when there are reciprocal treaties to that effect. But in England and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty, not by virtue of any statute, but upon a principle very well stated by PARKE, B., in Williams v. Jones, 13 M. & W. 633: Where a court of competent jurisdiction has adju dicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained. It is in this way that judgments of foreign and colonial courts are supported and enforced.' And taking this as the principle it seems that any thing which negatives the existence of that legal obligation or excuses the defendant from the performance of it, must form a good defense to the action."

It may, consequently, be shown that the court which rendered the judgment was without jurisdiction, either of the subject-matter, or of the person against whom the judgment was pronounced.

Bischoff

v. Wethered, 9 Wall. 812; Schibsby v. Westenholz, L. R., 6 Q. B. 155; Story on Confl. of Laws, § 547; Kerr v. Kerr, 41 N. Y. (2 Hand) 272; Mowry v. Chase, 100 Mass. 79; Folger v. Columbian Ins. Co., 99 Mass. 266; Carleton v. Bickford, 13 Gray, 591; Hickey v. Stewart, 3 How. (U.S.) 762; Borden v. Fitch, 15 Johns. 121; Duchess of Kingston's Case, 2 Smith's L. Cas. 599; 2 Pars. on Cont. 609.

And when the defendant is served not personally, but by an artificial mode, and is not a subject of nor resident in the country in which the judgment is given, either at the time of contracting the obligation, or at the commencement of the suit, the judgment will not be enforced, for that would be to permit the foreign country to legislate for the whole world. Schibsby v. Westenholz, L. R., 6 Q. B. 155, 160, 161. See General Steam Nav. Co. v. Guillou, 11 M. & W. 877, 894; Copin v. Adamson, L. R., 1 Exch. Div. 17; 15 Eng. Rep. 267; Buchanan v. Rucker, 9 East, 192, 194; Story on Confl. of Laws, § 547.

So, likewise, a foreign judgment may be impeached if it is shown to have been obtained by fraud. Reimers v. Druce, 23 Beav. 145; Lazier v. Westcott, 26 N. Y. (12 Smith) 146; Henderson v. Henderson 6 Q. B. 288; Rankin v. Goddard, 54 Me. 28, and 53 id. 389; Wood v. Watkinson, 17 Conn. 500; Welch v. Sykes, 3 Gil. 197; Rogers v. Gwinn, 21 Iowa, 59; Dunlap v. Cady, 31 id. 260; 7 Am. Rep. 129, and note. And it is said by PHILLIMORE, J., in Messina v. Petrococchino, L. R., 4 P. C. 144, 159, that a foreign judgment of a competent court may be impeached if it carries on the face of it a manifest error; if it is shown to have been obtained by fraud, or to be wanting in the conditions of natural justice; and it cannot be applied to persons others than those who were parties to the litigation decided by it, except in cases where the judgment is in rem.

How far a mistake of law or fact, unless shown to be intentional on the part of the tribunal giving the judgment, can be set up to invalidate the judgment has been a question greatly mooted. The tendency of the later English and American cases seems to be to regard foreign judgments quite as conclusive as domestic judgments. A foreign judgment cannot, therefore, be impeached on the ground that it is erroneous on the merits. Rankin v. Goddard, 55 Me. 389; Konitzky v. Meyer, 49 N. Y. (4 Sick.) 571; Low v. Mussey, 41 Vt. 393; Silver Lake Bank v. Harding, 5 Ham. (Ohio) 545. And see note to Andrews v. Herriot, 4 Cow. 508; Freeman on Judgm., § 597; Bank of Australasia v. Nias, 16 Q. B. 717; Bank of Australasia v. Harding, 9 C. B. 661; Vanquelin v. Bouard, 15 C. B. (N. S.) 341; De Cosse Brissac v. Rathbone, 6 II. & N. 301. Nor by reason of a mistake of

law. Godard v. Gray, L. R., 6 Q. B. 139; Castigue v. Imrie, L. R.,

4 H. L. 414.

But where it was admitted that the law of the foreign tribunal had not been correctly declared by its judgment, it was not regarded as binding upon an English court. Meyer v. Ralli, L. R., 1 C. P. Div. 358.

The doctrine as to the conclusiveness of a foreign judgment upon the merits as suggested above has not always been here tried with distinctness. Indeed, it has been declared by eminent authority that when the action is directly on a foreign judgment or decree it is no more than prima facie evidence. Story on Confl. of Laws, § 607; Andrews v. Herriot, 4 Cow. 508, and note, p. 523.

Although the rule is otherwise where a judgment obtained in a foreign tribunal is set up as a defense to an action upon the same cause of action (Story on Confl. of Laws, § 598; Phillips v. Hunter, 2 H. Bl. 402; Mills v. Duryee, 2 Am. L. Cas. 597, 612); or, as the rule is sometimes stated, a foreign judgment is conclusive as a defense, but only affords a presumption when made the foundation of a suit. Monroe v. Douglass, 4 Sandf. Ch. 126, 181; Mills v. Duryee, 2 Am. L. Cas. 597.

The tendency of modern authorities is, as we have seen, to regard a foreign judgment as equally conclusive when used either as a defense, or affirmatively as a cause of action.

But since real estate is subject exclusively to the laws of the State in which it is located, a decree or judgment of a foreign State touching real property is void in the State where the property is situated. It is true that a foreign court may deeree the performance of contracts relating to land without their jurisdiction (Penn v. Lord Baltimore, 2 Lead. Cas. in Eq. 1806, and cases cited; Deklyn v. Watkins, 3 Sandf. Ch. 185); but such a decree can only be enforced against the person of the defendant in the foreign court of the State where the property is situated. Davis v. Headly, 22 N. J. Eq. 115.

§ 8. Judgments of courts of sister States. Aside from the constitution of the United States, the judgments of other States of the Union have no higher force or validity than foreign judgments. Seevers v. Clements, 28 Md. 426; Folger v. Columbian Ins. Co., 99 Mass. 267.

Article 4, section 1 of the Constitution of the United States declares that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

In pursuance of this authority, congress, on the 24th of May, 1790 (1 R. S. [U. S.], § 905), enacted as follows:

"The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved and admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

A wide diversity of opinion has arisen in the construction of this constitutional provision, and of the statute. On the one hand it has been claimed that the act of congress only provided for the admission of such records as evidence, but inasmuch as a judgment rendered in a court not having competent jurisdiction is a nullity, it is always competent to inquire into the jurisdiction of the court in which the judgment offered in evidence was rendered, and for the purpose of such inquiry to contradict the record; and that such want of jurisdiction may be shown either as to the subject-matter, or the person, or in proceedings in rem as to the thing. Pennywit v. Foote, 27 Ohio St. 600; Folger v. Columbian Ins. Co., 99 Mass. 467; Hoffman v. Hoffman, 46 N. Y. (1 Sick.) 40; 7 Am. Rep. 299; Bissel v. Briggs, 9 Mass. 462; Christmas v. Russell, 5 Wall. 290; Harris v. Hardeman, 14 How. (U.S.) 334; United States v. Arredondo, 6 Pet. 691; Voorhees v. Bank of United States, 10 id. 475; Mackay v. Gordon, 34 N. J. 286; Story on Const., § 1307; Story on Confl. of Laws, § 609; Paine's Lessees v. Mooreland, 15 Ohio, 445; Marx v. Forde, 51 Mo. 69; S. C., 11 Am. Rep. 432.

On the contrary, it has been held that the act declared that the record duly authenticated shall have such faith and credit as it had in the State from whence it was taken; and therefore, if in that State it had faith and credit of evidence of the highest nature, viz., record evidence unimpeachable, it should have the same in every other State, and that therefore, where the record disclosed the jurisdictional facts, it could not be controverted in the tribunals of another State. Zepp v. Hager, 70 Ill. 223; Craft's Adm'rs v. Clark, 31 Iowa, 77; Faber v. Hovey, 117 Mass. 107; 19 Am. Rep. 398; Carleton v. Bickford 13 Gray, 591; Thompson v. Whitman, 18 Wall. 457; Mills v. Duryee, 7 Cranch, 484; 2 Am. Lead. Cas. 597; Freeman on Judgments, § 561; Westcott v. Brown, 13 Ind. 83; Hall v. Williams, 6 Pick. 232; Shumway v. Stillman, 6 Wend. 447.

§ 9. Superior and inferior courts. The distinction between the proceedings of superior and inferior courts is clearly stated by FIELD, J., in Galpin v. Page, 18 Wall. 350, 365. "A superior court of general jurisdiction proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law, in such cases, are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also. The rule is different with respect to courts of special and limited authority; as to them there is no presumption of law in favor of their jurisdiction; that must affirmatively appear by sufficient evidence, or proper averments in the record, or their judgments will be deemed void on their face." Shufeldt v. Buckley, 45 Ill. 223; Mills v. Martin, 19 Johns. 34; Ford v. Babcock, 1 Denio, 158; Sears v. Terry, 26 Conn. 273; Ohio & M. R. R. Co. v. Shultz, 31 Ind. 150; Thompson v. Multnomah Co., 2 Oreg. 34; Crepps v. Durden, 1 Smith's L. Cas. 816, 819. The jurisdictional facts may be shown aliunde the record. Van Deusen v. Sweet, 51 N. Y. (6 Sick.) 378; Jolley v. Foltz, 34 Cal. 321.

And the record of proceedings may be contradicted by any competent proof that the court did not have jurisdiction either of the person or of the subject-matter. Rowley v. Howard, 23 Cal. 401; Pardon v. Dwire, 23 Ill. 574; First Nat. Bank v. Balcom, 35 Conn. 351.

When, however, the question of jurisdiction has been determined, the judgment of an inferior tribunal is as conclusive upon the merits as a judgment of a court of general jurisdiction. Reid v. Spoon, 66 N. C. 415; Shoemaker v. Brown, 10 Kans. 383; Bernal v. Lynch, 36 Cal. 135; Sheldon v. Wright, 5 N. Y. (1 Seld.) 497.

§ 10. Action, when to be brought. In general, actions on judg ments are not limited by the statute of limitations. Dudley v. Lindsey, 9 B. Monr. (Ky.) 488; Mitchell v. Mitchell, 8 Humph. (Tenn.) 359; Todd v. Crumb, 5 McL. 172; Pease v. Howard, 14 Johns. 479. But in most if not all of the States, the statute has been extended to judgments. Angel on Lim., § 83, et seq. Thus, in New York, a judg ment rendered in a court of record of the United States, or elsewhere, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. Code, § 376. The general rule that judgments are not within the statute seems to be confined to judgments of courts of record. Hence a judgment of a justice of the peace is within the statute. Lester v. Redmond, 6 Hill, 590; Bannegan v. Murphy, 13 Metc. 251; Woodman v. Somerset, 37 Me. 29; Burd v. McGregor, VOL. IV.-25