rights when acquired under foreign law, even although the rights so acquired are larger than by the laws of the state can be created under similar instruments, acts, or records.

Cross v. United States Trust Co. 181 N. Y. 830, 15 L. R. A. 606; Dammert v. Osborn, 140 N. Y. 80.

There was no error in the court below in giving judgment for that part of the claim included in the French judgments, which consisted of the half differences for the years 1877 and 1878, on account of any supposed viola tion of the revenue laws of the United States, or in the rejection of any evidence offered by the plaintiffs in error for the purpose of establishing such defense. But if this objection should be sustained by the court, the defendants in error should be permitted to remit the amount of that part of the verdict which is subject to this objection.

in litigation between man and man, duly submitted to their determination.

The most certain guide, no doubt, for the decision of such questions is a treaty or a stat ute of this country. But when, as is the case here, there is no written law upon the subject. the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Frémont v. United States, 58 U. S. 17 How. 542, 557 [15: 241, 245]; Sears v. The Scotia, 81 U. S. 14 Wall. 170, 188 [20: 822, 826]: Respublica v. De Longchamps, 1 U. S. 1 Dall. 111, 116 [1:59, 62]; Moultrie v. Hunt, 23 N. Y. 394, 396.

Northern P. R. Co v. Herbert, 116 U. S. 642, 646 (29: 755, 758); Arkansas Valley Land & C.yond the limits of the sovereignty from which Co. v. Mann, 130 U. S. 79 (32: 857); Washing ton & G. R. Co. v. Tobriner ("Washington & G. R. Co. v. Harmon") 147 U. S. 590 (37:291), and cases cited.

The rule of law with regard to consigned goods, that is, goods not obtained by purchase by the shipper, was that they should be invoiced at their actual market value. The rule with regard to purchased goods was that they should be invoiced at their actual cost.

No law has any effect, of its own force, beits authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticised, no satisfactory substitute has been suggested.

One Hundred and Twenty-Five Baskets of "Comity," in the legal sense, is neither a matChampagne v. United States ("Cliquot's Chamter of absolute *obligation on the one hand,[164 pagne") 70 U. S. 3 Wall. 114 (18:116); Three nor of mere courtesy and good will upon the Thousand, One Hundred and Nine Cases of other. But it is the recognition which one naChampagne, 1 Ben. 241; United States v. Auff- tion allows within its territory to the legislative, mordt, 122 U. S. 206 (30:1184). executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

It was not error to give judgment for the whole amount recovered in the French courts, although those courts allowed a compounding of interest down to the time of the entry of the judgment.

Staples v. Nott, 128 N. Y. 403.

Mr. Justice Gray delivered the opinion of the court:

Mr. Justice Story, in his Commentaries on the Conflict of Laws, treating of the question in what department of the government of any state, in the absence of any clear declaration of the sovereign will, resides the authority to These two cases, the one at law and the other determine how far the laws of a foreign state In equity, of Hilton v. Guyot, and the case of shall have effect, and observing that this differs Ritchie v. McMullen, which has been under ad- in different states, according to the organizavisement at the same time, present important tion of the departments of the government of questions relating to the force and effect of for each, says: "In England and America the eign judgments, not hitherto adjudicated by this courts of justice have hitherto exercised the 163]court, which have been *argued with great same authority in the most ample manner; and learning and ability, and which require for the legislatures have in no instance (it is betheir satisfactory determination a full considlieved) in either country interfered to provide eration of the authorities. To avoid confusion any positive regulations. The common law of in indicating the parties, it will be convenient both countries has been expanded to meet the first to take the case at law of Hilton v. Guyot. exigencies of the times as they have arisen; International law in its widest and most and so far as the practice of nations, or the comprehensive sense-including not only ques-jus gentium privatum, has been supposed to tions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation-is part of our law, and must be ascer tained and administered by the courts of jus tice, as often as such questions are presented

furnish any general principle, it has been followed out." Story, Conf. Laws, SS 23. 24.

Afterwards, speaking of the difficulty of applying the positive rules laid down by the continental jurists, he says that "there is indeed great truth" in these remarks of Mr. Justice Porter, speaking for the supreme court of Louisiana: "They have attempted to go too far, to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten that they wrote on a

within its territory, is given by acts passed by its legislative authority, or by treaties concluded with other states. Its tacit consent is manifested by the decisions of its judicial and administrative authorities, as well as by the writings of its publicists. There is no obligation, recognized by legislators, public authori ties, and publicists, to regard foreign laws; but their application is admitted, only from considerations of utility and the mutual convenience of states-ex comitate, ob reciprocam utilitatem." Wheat. International Law (8th ed.) §§ 78, 79. "No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribu

question which touched the comity of nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens; that whether they do or not must depend on the condition of the country in which the foreign law is sought to be enforced, the particular nature of 165]her legislation, her policy, and the *character of her institutions; that in the conflict of laws it must often be a matter of doubt which should prevail; and that, whenever a doubt does exist, the court which decides will prefer the laws of its own country to that of the strannals of another state; and if execution be sought ger." Story, Conf. Laws, & 28; Saul v. His Creditors (1827) 5 Mart. N. S. 569, 596, 16 Am. Dec. 212.

by suit upon the 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 judg ment, and to give effect to it or not, as may be found just and equitable. The general comity, utility, and convenience of nations have, how

states, by which the final judgments of foreign courts of competent jurisdiction are recipro cally carried into execution, under certain reg ulations and restrictions, which differ in different countries." § 147.

Again, Mr. Justice Story says: "It has been thought by some jurists that the term comity is not sufficiently expressive of the obligation of nations to give effect to foreign laws when they are not prejudicial to their own rights and in-ever, established a usage among most civilized terests. And it has been suggested that the doctrine rests on a deeper foundation; that it is not so much a matter of comity or courtesy, as a matter of paramount moral duty. Now, assuming that such a moral duty does exist, it is clearly one of imperfect obligation, like that of beneficence, humanity, and charity. Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded." And, after further discus-ous authorities cited at the bar, it is important sion of the matter, he concludes: "There is then not only no impropriety in the use of the phrase 'comity of nations,' but it is the most appropriate phrase to express the true founda tion and extent of the obligation of the laws of one nation within the territories of another." Story, Conf. Laws, §§ 33-38.

Chief Justice Taney, likewise, speaking for this court while Mr. Justice Story was a mem ber of it, and largely adopting his words, said: "It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned... The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is not the comity of the 166]courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascertained and guided." Bank of Augusta v. Earle (1889) 38 U. S. 13 Pet. 519, 589 [10: 274, 308]; Story, Conf. Laws, § 38.

Mr. Wheaton says: "All the effect which foreign laws can have in the territory of a state depends absolutely on the express or tacit consent of that state. . . . The express consent of a state, to the application of foreign laws

Chancellor Kent says: "The effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty." 2 Kent, Com. (6th ed.) 120.

In order to appreciate the weight of the vari

to distinguish different kinds of judgments. Every foreign judgment, of whatever nature, in order to be entitled to any effect, must have been rendered *by a court having jurisdic-[167 tion of the cause, and upon regular proceedings and due notice. In alluding to different kinds of judgments, therefore, such jurisdiction proceedings, and notice will be assumed. It will also be assumed that they are untainted by fraud, the effect of which will be considered later.

A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the court, is treated as valid everywhere. As said by Chief Justice Marshall: "The sentence of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of the 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. No court of co-ordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no co-ordinate tribunal is capable of making the inquiry." Williams v. Armroyd, 11 U. S. 7 Crauch, 423, 432 [3: 392, 395] The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law. Croudson v. Leonard, 8 U. S. 4 Cranch, 434 [2: 670]; Williams v. Armroyd, above cited; Ludlow v. Dale, 1 Johns. Cas. 16. But the same rule applies to judg ments in rem under municipal law. Hudson v. Guestier, 8 C. S. 4 Cranch, 293 [2: 625]; Ennis v. Smith, 55 U. S. 14 How. 400, 430 [14: 472, 485]; Wisconsin v. Pelican Ins. Co. 127

U. S. 265, 291 [32: 239, 243]; Scott v. Mc Neal, 154 U. S. 34, 46 [38: 896, 901]; Castrique v. Imrie, L. R. 4 H. L. 414; Monroe v. Douglas, 4 Sandf. Ch. 126.

ances were vacated as against those indorsees and all the indorsers and negotiators of the bills, and the money deposited was returned to him. Being afterwards sued at law in England A judgment affecting the status of persons, by subsequent holders of the bills, he applied such as a decree confirming or dissolving a to the court of chancery and obtained a permarriage, is recognized as valid in every coun-petual injunction. Lord Chancellor King, as try, unless contrary to the policy of its own reported by Strange, "was clearly of opinion law. Cottington's Case, 2 Swanst. 326, note; that this cause was to be determined according Roach v. Garvan, 1 Ves. Sr. 157; Harvey v. to the local laws of the place where the bill was Farnie, L. R. 8 App. Cas. 43; Cheely v. Clay-negotiated, and the plaintiff's acceptance of the ton, 110 U. S. 701 [28: 298]. It was of a foreign sentence of divorce, that Lord Chancellor Nottingham, in the House of Lords, in 1688, in Cottington's Case, above cited, said: "It is against the law of nations not to give credit to the judgments and sentences of foreign coun168]tries, till they be reversed by the law, and according to the form, of those countries where in they were given. For what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a sentence take place till it be reversed? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences."

Other judgments, not strictly in rem, under which a person has been compelled to pay money, are so far conclusive that the justice of the payment cannot be impeached in an other country, so as to compel him to pay it again. For instance, a judgment in foreign attachment is conclusive, as between the parties, of the right to the property or money at tached. Story, Conf. Laws (2d ed.) § 592a. And if, on the dissolution of a partnership, one partner promises to indemnify the other against the debts of the partnership, a judgment for such a debt, under which the latter has been compelled to pay it, is conclusive evidence of the debt in a suit by him to recover the amount upon the promise of indemnity. It was of such a judgment, and in such a suit, that Lord Nottingham said: "Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum paid on the sentence for custom, the justice where of is not examinable here." Gold v. Canham (1678-9) 2 Swanst. 325, 1 Ch. Cas. 311. See also Tarleton v. Tarleton. 4 Maule & S. 20; Konitzky v. Meyer, 49 N. Y. 571.

Other foreign judgments which have been held conclusive of the matter adjudged were judgments discharging obligations contracted in the foreign country between citizens or resi dents thereof. Story, Conf. Laws, SS 330341; May v. Breed, 7 Cush. 15, 54 Am. Dec. 700. Such was the case, cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, Moseley, 1, 2 Strange, 733, 2 Eq. Cas. Abr. 525, pl. 7, 12 Vin. Abr. 87, pl. 9, Sel. Cas. Ch. 69, 1 Dick. 48.

bill having been vacated and declared void by
a court of competent jurisdiction, he thought
that sentence was conclusive and bound the
court of chancery here;" as reported in Viner,
that "the court at Leghorn had jurisdiction of
the thing, and of the persons;" and, as reported
by Moseley, that, though "the last indorsees
had the sole property of the bills, and were
therefore made the only parties to the suit at
Leghorn, yet the sentence made the acceptance
void against the now defendants and all
others." It is doubtful, at the least, whether
such a sentence was entitled to the effect given
to it by Lord Chancellor King. See Novelli v.
Rossi, 2 Barn. & Ad. 757; Castrique v. Imrie,
L. R. 4 H. L. 414, 435, 2 Smith, Lead. Cas.
(2d ed.) 450.

The remark of Lord Hardwicke, arguendo, as Chief Justice, in Boucher v. Lawson (1734), that "the reason gone upon by Lord Chancellor King in the case of Burroughs v.Jamineau was certainly right, that where any court, whether foreign or domestic, that has the proper jurisdiction of the cases, makes a determination, it is conclusive to all other courts," evidently had reference, as the context shows, to judgments of a court having jurisdiction of the thing; and did not touch the effect of an executory judg ment for a debt. Cas. t. Hardw. 85, 89, Cun-. ningham, 144, 148.

In former times, foreign decrees in admiralty in personam were executed, even by imprisonmeut of the defendant, by the court of admiralty in England, upon letters rogatory from the foreign sovereign, without a new suit. Its right to do so was recognized by the court of[ 170 king's bench in 1607, in a case of habeas corpus, cited by the plaintiffs, and reported as follows: "If a man of Frizeland sues an Englishman in Frizeland before the governor there, and there recovers against him a certain sum, upon which the Englishman, not having sufficient to satisfy it, comes into England, upon which the gov ernor sends his letters missive into England, omnes magistratus infra regnum Angliæ rogans, to make execution of the said judgment,-the judge of the admiralty may execute this judg ment by imprisonment of the party, and he shall not be delivered by the common law; for this is by the law of nations, that the justice of one nation should be aiding to the justice of In that case, bills of exchange drawn in another nation, and for one to execute the London were negotiated, indorsed, and ac- judgment of the other; and the law of England cepted at Leghorn in Italy, by the law of which takes notice of this law, and the judge of the an acceptance became void if the drawer failed admiralty is the proper magistrate for this pur169]*without leaving effects in the acceptor's pose; for he only hath the execution of the hands. The acceptor, accordingly, having civil law within the realm. Pasch. 5 Jac. B. received advices that the drawer had failed be- R., Weir's Case, resolved upon an habeas fore the acceptances, brought a suit at Leghorn corpus, and remanded." 1 Rolle. Abr. 530, against the last indorsees, to be discharged of pl. 12; 6 Vin. Abr. 512, pl. 12. But the only his acceptances, paid the money into court and question there raised or decided was of the obtained a sentence there, bv which the accent-power of the English court of admiralty, and

not of the conclusiveness of the foreign sen- | side in one of the courts of great sessions in tence; and in later times the mode of enforcing & foreign decree in admiralty is by a new libel. See The City of Mecca, 5 Prob. Div. 28, and 6 Prob. Div. 106.

The effect to which a judgment purely execu171]tory,*rendered in favor of a citizen or resi. dent of the country, in a suit there brought bying the doubt of its authenticity expressed by him against a foreigner, may be entitled in an action thereon against the latter in his own country, as is the case now before us,-presents a more difficult question, upon which there has been some diversity of opinion.

Early in the last century, it was settled in In Gage v. Bulkeley (1744) briefly reported in England that a foreign judgment on a debt 3 Atk. 215, cited by the plaintiffs, a plea of a was considered, not like a judgment of a do- foreign sentence in a commissary court in mestic court of record, as a record or a special-France was overruled by Lord Hardwicke, ty, a lawful consideration for which was conclusively presumed, but as a simple contract only.

dence which may affect the right of this de- | of session. 2 Paton, IX. 253, Morison Dict. mand when the cause comes to be heard; but Dec. 4542, 1 Dougl. 5, note. if it is no plea in a court of law to bind their jurisdiction, I do not see why it should be so here." Ridgeway Cas. t. Hardw. 263, 264, 270, 273. A similar report of his judgment is in 2 Ves. Sr. (Belt's Supp.) 409, 410.

*Accordingly, in Crawford v. Witten [175 (1773) a declaration in assumpsit, in an action in England upon a judgment recovered in the mayor's court of Calcutta in Bengal, without showing the cause of action there, was held good on demurrer. Lord Mansfield considered the case perfectly clear. Mr. Justice Aston, accord

cient; we are not to suppose it an unlawful debt;" and, according to another report: "They admitted the assumpsit by their demurrer. When an action comes properly before any court, it must be determined by the laws which govern the country in which the action accrued." And Mr. Justice Ashurst said: "I have often known assumpsit brought on judgments in foreign courts; the judgment is a sufficient consideration to support the implied promise." Lofft, 154, same case, nom. Crawford v. Whittal, 1 Dougl. 4, note.

In Roach v. Garcan (1748) where an infant ward of the court of chancery had been married in France by her guardian to his son being to one report, said: "The declaration is suffi fore a French court. and the son "petitioned for a decree for cohabitation with his wife, and to have some money out of the bank," Lord Hardwicke said, as to the validity of the marriage: "It has been argued to be valid from being established by the sentence of a court in France having proper jurisdiction. And it is true that, if so, it is conclusive, whether in & foreign court or not, from the law of nations in such cases; otherwise the rights of mankind would be very precarious and uncertain. But the question is whether this is a proper sentence, in a proper cause, and between proper 174] parties, of *which it is impossible to judge, without looking farther into the proceedings; this being rather the execution of the sentence than the sentence itself." And after observing upon the competency of the French tribunal, and pointing out that the restitution of conjugal rights was within the jurisdiction of the ecclesiastical court, and not of the court of chancery, he added: "Much less will I order any money out of the bank to be given him." 1 Ves. Sr. 157, 159. He thus clearly recognized the difference between ad mitting the effect of a foreign judgment as adjudicating the status of persons, and executing a foreign judgment by enforcing a claim for money.

These decisions of Lord Hardwicke demonstrate that, in his opinion, whenever the question was of giving effect to a foreign judgment for money in a suit in England between the parties, it did not have the weight of a domestic judgment, and could not be considered as a bar, or as conclusive, but only as evidence of the same weight as a simple contract, and the propriety and justice of the judgment might be examined.

In Sinclair v. Fraser (1771) the appellant, having as attorney in Jamaica made large advances for his constituent in Scotland, and having been superseded in office, brought an action before the supreme court of Jamaica, and, after appearance, obtained judgment against him; and afterwards brought an action against him in Scotland upon that judgment. The court of session determined that the plain. tiff was bound to prove before it the ground, nature, and extent of the demand on which the judgment in Jamaica was obtained; and therefore gave judgment against him. But the House of Lords (in which, as remarked by one reporter, Lord Mansfield was then the presid ing spirit, acting in concert with or for the Lord Chancellor, in disposing of the Scotch appeals) "ordered and declared that the judg ment of the supreme court of Jamaica ought to be received as evidence prima facie of the debt; and that it lies upon the defendant to impeach the justice thereof, or to show the same to have been irregularly obtained;" and therefore reversed the judgment of the court

In Walker v. Witter (1778) an action of debt was brought in England upon a judgment recovered in Jamaica. The defendant pleaded nil debet, and nul tiel record. Judgment was given for the plaintiff, Lord Mansfield saying: "The plea of nul tiel record was improper. Though the plaintiffs had called the judgment a record, yet by the additional words in the declaration, it was clear they did not mean that sort of record to which implicit faith is given by the courts of Westminster Hall. They had not misled the court nor the defendant, for they spoke of it as a record of a court in Jamaica. The question was brought to a narrow point; for it was admitted on the part of the defend ant, that indebitatus assumpsit would have lain; and on the part of the plaintiffs, that the judg ment was only prima facie evidence of the debt. That being so, the judgment was not a specialty, but the debt only a simple contract debt; for assumpsit will not lie on a specialty. The difficul ty in the case had arisen from not fixing accu rately what a court of record is in the eye of the law. That description is confined properly to certain courts in England, and their judgments cannot be controverted. Foreign courts, and courts in England not of record, have not that privilege, nor the courts in Wales, etc. But the doctrine in the case of Sinclair v. Frazer was unquestionable. Foreign judgments are a *ground of action everywhere, but they [176 are examinable." Justices Willes, Ashurst, and Buller concurred, the two latter saying that wherever indebitatus assumpsit will lie debt will also lie. 1 Dougl. 1, 5, 6.

In Herbert v. Cook (1782), again, in an action of debt upon a judgment of an inferior English court, not a court of record, Lord Mansfield said that it was "like a foreign judgment, and not conclusive evidence of the debt." Willes, 36, note.

In Galbraith v. Neville (1789) upon a motion for a new trial after verdict for the plaintiff in an action of debt on a judgment of the supreme court of Jamaica, Lord Kenyon expressed "very serious doubts concerning the doctrine laid down in Walker v. Witter, that foreign judgments are not binding on the parties here." But Mr. Justice Buller said: "The doctrine which was laid down in Sinclair v. Fraser has always been considered as the