to the remedy, and cases, where it goes directly to the extinguishment of the debt, claim, or right. Where it professes to dispose of the latter, it' would seem difficult to say, that a mere removal to another country can revive an extinguished debt, claim, or right, or change the positive title of property acquired and perfected under the local law of the place, where the parties and property are situated.1 But where it professes to deny, or control, or extinguish the remedy only, other considerations may properly apply. It has, indeed, been decided upon a recent occasion, in one of the American courts, that in cases falling within the latter predicament, it will make no difference, whether both parties have remained domiciled in the same country where the original cause of action arose, during the whole period required by the local statute of limitations to bar the remedy thereon, or whether they have changed their domicil after it has begun to run.2 But the reasoning which thus repels any such distinction, is not so clear or decisive as has been supposed. Every nation has a complete and exclusive sovereignty to enact laws, which shall limit all rights of action to certain prescribed periods within its own tribunals; and to declare, that after that period all rights of action shall be extinguished; and if the parties remain domiciled within the territorial jurisdiction during that whole period, the law ipso facto operates on the case, and the rights of action are completely extinguished there. But the same doctrine is not true, or rather may not be true, where before the prescribed period has arrived, one or both of the parties have changed their national domicil; for by such change they have ceased to be under the exclusive dominion of the nation, whose statute of limitations has begun to operate upon their rights of action, but has not as yet extinguished them. The laws thereof can no longer operate on those rights, at least not operate, except within the territorial limits of the nation. Elsewhere they can be deemed as having only an inchoate and imperfect effect; and the change of domicil suspends their power to extinguish the rights of action in future, since they can have no binding extra-territorial force. It is no answer to say, that when once the statute of limitations begins to run, no subsequent impediment stops it from continuing to run. That is true in the nation, whose laws contain such provisions, or inculcate such a 1 Don v. Lippmann, 5 Clark & Finnell. R. 1, 15, 16, 17. 2 Bulger v. Roche, 11 Pick. R. 36. doctrine. But no other nation is bound to give effect to such provisions or to such a doctrine. They are strictly intra-territorial regulations and interpretations of the lex fori, which other nations are not bound to observe or keep. While the parties were domiciled there, the statute of limitations continued to run against them; but it had not then extinguished any rights of action. When they changed their domicil, the statute, as to them or their rights of action, in respect to personal property, or personal claims, was no longer operative or obligatory; but the statutes only of their new domicil. It would, or at least might, then, require a very different consideration, where the local law had before the change of domicil actually extinguished all rights of action; for then to revive them is to create new rights, and not to enforce old rights subsisting at the time of the removal.1 1 In Bulger v. Roche, 11 Pick. R. 36, the very case arose of a cause of action extinguished by the local law of the country, (Nova Scotia,) where both parties resided during the whole period of the running of the statute of limitations; and the Supreme Court of Massachusetts held, that the right of action after a change of domicil of the defendant by a' removal to Massachusetts was not thereby extinguished in the state tribunals; but might be pursued within the period prescribed by the statute of limitations of Massachusetts. On that occasion Mr. Chief Justice Shaw in delivering the opinion of the court said: "The facts, so far as they are material, are these; that the cause of action accrued in 1821, more than six years before the commencement of this action, that the plaintiff and defendant were both domiciled at Halifax in Nova Scotia, and were subjects of the King of Great Britain, and that by the law of that country, an action of assumpsit is barred in six years. It is stated in the replication, and admitted by the rejoinder, that the plaintiff came into this commonwealth, for the first time, in 1829, and that the action was commenced within six years from that time. That the law of limitations of a foreign country cannot of itself be pleaded as a bar to an action in this commonwealth, seems conceded; and is indeed too well settled by authority to be drawn in question. Byrne v. Crowninshield, 17 Mass. R. 55. The authorities both from the civil and the common law concur in fixing the rule, that the nature, validity, and construction of contracts, is to be determined by the law of the place where the contract is made; and that all remedies for enforcing such contracts are regulated by the law of the place, where such remedies are pursued. Whether the law of prescription, or statute of limitation, which takes away every legal mode of recovering a debt, shall be considered as affecting the contract, like payment, release, or judgment, which in effect extinguish the contract, or whether they are to be considered as affecting the remedy only by determining the time, within which a particular mode of enforcing it shall be pursued, were it an open question, might be one of some difficulty. It was ably discussed upon general principles in a late case (Le Roy v. Crowninshield, 2 Mason's R. 151) before the Circuit Court, in which, however, it was fully conceded by the learned judge, upon a full consideration and review of all the authorities, that it is now consid [* § 582 c. The case last referred to does not seem to us to raise the question of the effect of a foreign law of prescription, which formally extinguishes the right and which had its full operation while the parties continued to have a permanent domicil there. It would seem that this should afford a good defence everywhere. But where the prescription depends upon other proof, as that the defendant, or debtor, shall make oath that the debt is paid, it must be regarded as having reference to the remedy, and cannot therefore be made available in another forum. As where by an act of the Provincial Parliament of Lower Canada it was declared that all suits upon promissory notes shall be brought within five years, or the Same shall be considered as paid and discharged, if the debtor makes oath that the same is paid; it was regarded as a statute pertaining exclusively to the remedy.1] § 583. What has been thus far stated on this head may be conered to be a settled question. A doubt was intimated in that case, whether, if the parties had remained subjects of the foreign country until the term of limitation had expired, so that the plaintiff's remedy would have been extinguished there, such a state of facts would not have presented a stronger case, and one of more serious difficulty. Such was the case in the present instance. But we think it sufficient to advert to a well-settled rule, in the construction of the statute of limitations, to show that this circumstance can make no difference. The rule is this; that where the statute has begun to run, it will continue to run notwithstanding the intervention of any impediment, which, if it had existed, when the cause of action accrued, would have prevented the operation of the statute. For instance, if this action accrued in Nova Scotia in 1821, and the plaintiff or defendant had left that country in 1825, within six years, in 1828, after the lapse of six years, the action would be as effectually barred, and the remedy extinguished there, as if both had continued to reside in Halifax down to the same period. So that when the parties met here in 1829, so far as the laws of that country, by taking away all legal remedy, could affect it, the debt was extinguished, and that equally, whether they had both remained under the jurisdiction of those laws, till the time of limitation had elapsed, or whether either or both had previously left it. The authorities referred to, therefore, must be held applicable to a case where both parties were subject to the jurisdiction of a foreign state, when the bar arising from its statute of limitations attached. The same conclusion results from the reason, upon which these cases proceed, which is, that statutes of limitation affect only the time, within which a legal remedy must be pursued, and do not affect the nature, validity, or construction of the contract. This reason, whether well founded or not, applies equally to cases, where the term of limitation has elapsed, when the parties leave the foreign state, as to those where it has only begun to run before they have left the state, and elapses afterwards." But see Don v. Lippmann, 5 Clark & Finnell. R. 1, 15, 16, 17. cluded by quoting a passage from John Voet, the correctness and force of which, in point of principle, are submitted to the consideration of the reader. Quod, si restitutio concedenda sit non ex causâ, quæ ipsum negotium ab initio comitabatur, (uti comitatur metus, dolus, error) sed ex ea, quæ post supervenit, (qualis est Usucapio verum, aut Præscriptio jurium et actionum, propter absentiam non interrupta) ita generaliter definiendum existimo, illius loci leges in restitutione faciendâ attendendas esse, secundum cujus loci leges impleta summo jure fuit per absentiam Usucapio vel Præscriptio. Quid enim, obsecro, aut justius aut æquius, quam ut ex eorundem legislatorum præscripto remedium adversus læsionem indulgeatur, ex quorum præscripto et summo jure primitus læsio nata fuit? Quibus consequens est, ut si immobilium rerum Usucapio impleta sit, serventur in restitutione facienda jura regionis, in quá immobiles res sita sunt: adeoque, ut in amittendo, sic et in recuperando dominio, regantur immobilia ex sitûs sui lege, juxta vulgatam regulam in materiâ statutaria. Sin mobilia usucapta fuerint, in restitutione magis erit, ut serventur leges domicilii ejus, qui per usucapionem dominium amiserat; ut ita mobilia, quæ censentur illic esse, ubi domicilium fovet dominus, ex lege domicilii redeant, uti fuerant amissa. Sed si actiones in personam temporis lapsu, per absentiam contigente, extinctæ sint; probabilius fuerit, in illis restituendis ob justam absentiæ causam spectandum esse jus loci, in quo debitor commoratur, contra quem restitutio petitur: cum etiam ex istius loci lege Præscriptio implenda fuerit.1 59. 1 J. Voet, ad Pand. Lib. 4, tit. 1, § 29, p. 241; Henry on Foreign Law, p. 56, CHAPTER XV. FOREIGN JUDGMENTS. [* § 584. Classification of foreign judgments. 585. Vattel holds the conclusiveness of such judgments. § 586. Court must have jurisdiction of the cause, the thing, and the parties. § 587. The jurisdiction of the foreign court always examinable. 588. This includes the power of the court and the presence of the thing. § 589, 590. The court must have jurisdiction of the subject matter. § 591. The local courts alone can adjudicate in regard to immovables. 592. The same is true of all judgments in rem. § 592 a. Proceedings by foreign attachment of analogous character. § 593. Not equally conclusive upon points incidentally decided. § 59t. Decisions as to status of persons sometimes claimed to be conclusive. § 595. Decrees as to marriage and divorce stand on special grounds. § 596. Discussion of point by Lord Stowell. § 597. Decrees of divorce, where both parties domiciled, conclusive. § 598: Distinction between such judgments, in defence, and affirmatively. § 599. The foreign judgment will merge the cause of action. § 599 a. 599 b. § 599 c. That is not always so regarded where the defendant has no notice. Ex parte judgments absolutely void, as to defendant. § 600. Lord Kames holds judgment in favor of claim prima facie good. § 601. But one dismissing such claim, conclusive. § 602. This distinction not maintained in the common law. § 603. It is made a question in English cases how far the merits may be inquired into. § 604. Jurisdiction conceded, it should be held conclusive. § 605. Irregularity, or fraud, may be shown in defence. § 606. The present inclination is to hold them conclusive. § 607. The embarassing consequences of attempting to revise such judgments. § 608. The American courts hold them impeachable to some extent. § 609. Effect of judgments of one staté, as to other states. § 610. Of no validity without jurisdiction of the parties. § 610 a. The effect of the pendency of a prior suit in another forum. § 611-614. Many foreign jurists hold such judgments conclusive. § 615. In France, formerly held, of no force, as to citizens and residents. 616. Good as to foreigners, &c. 617. They are now held prima facie good there, but re-examinable. § 618. In many other European countries held conclusive. § 618 a. § 618 b. 618 c. § 618 d, § 618 e. § 618 g. 618 h. Foreign judgments differently regarded now than at the date of this work. But not of the English law. In that respect examinable. Change in the law since date of this work. § 618 . Essential difference between foreign and domestic judgments. |