to which by our law sentences and judgments are obligatory not as conclusive but as matter in pais, as consideration prima facie sufficient to raise a promise: we examine it, as we do all other considerations of promises, and for that purpose we receive evidence. what the law of the foreign state is, and whether the judgment is warranted by that law. In all other cases we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us." The above statement of the law has, however, been considerably qualified by more recent authorities, the general effect of which is summarised in Story's Conflict of Laws, as follows: "This subject has been much discussed in England of late, and the well-established present English doctrine is, that a foreign judgment is only prima facie evidence in England, upon the question whether the foreign court had jurisdiction of the subject-matter, or of the person of the defendant, or whether the judgment was regularly (o) obtained; but that it is conclusive upon the defendant, so far as to prevent him from alleging that the promises upon which it was founded, were never made, or were obtained by fraud of the plaintiff" (p). The arguments in favour of the existence of the above distinction are well stated (0) See also Don v. Lipmann, 5 Cl. & Fin. 1. (p) See Story, Conflict of Laws, (7th ed.), § 606 a, citing, inter alia, Bank of Australasia v. Nias, 20 L. J. Q. B. 284; Henderson v. Henderson, 6 Q. B. 288; Reimers v. Druce, 23 Beav. 149; De Cosse Brissac v. Rathbone, 6 H. & N. 301; Vanquelin v. Bouard, 15 C. B. N. S. 341; Scott v. Pilkington, 2 B. & S. 11; Ricardo v. Garcias, 12 Cl. & Fin. 368. "In the next And here a in the same authority, as follows (q): place, as to judgments in personam. distinction is commonly taken 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 of the suit by way of defence. In the former case it is often urged that no sovereign is bound jure gentium to execute any foreign judgment within his dominions and therefore, if execution of it is sought in his dominions, he is at liberty to examine into the merits of the judgment, and to refuse to give effect to it, if upon such examination it should appear unjust and unfounded. He acts in executing it upon the principles of comity (r) : and has therefore the right to prescribe the terms and limits of that comity. But it is otherwise, it is said, where the defendant sets up a foreign judgment as a bar to proceedings; for if it has been pronounced by a competent tribunal and carried into effect, the losing party has no right to institute a new suit elsewhere, and thus to bring the matter again into controversy: and the other party is not to lose the protection which the foreign judgment gave him. It is then res judicata, which ought to be received as conclusive evidence of right and the exceptio rei judicata under such circumstances is entitled to universal conclusiveness and respect. (a) 7th ed., § 598, p. 745; citing, inter alia, Burrows v. Jemino, 2 Str. 733, and Appendix B, p. 415; Boucher v. Lawson, Cases temp. Hardwicke, 80; Tarleton v. Tarleton, 4 M. & S. 20; and per M. R. in Reimers v. Druce, 23 Beav. 149. (r) Robinson v. Bland, 2 Burr. 1077; and Lord Ellenborough's remarks in Power v. Whitmore, 4 M. & S. 150. This distinction has been very frequently recognized as having a just foundation in international justice." The distinction of course depends almost entirely upon what principle is adopted in enforcing or recognizing foreign judgments in England (s). But whatever difference of opinion may exist as to this principle, there are certain recognized propositions as to the conclusiveness of foreign judgments, upon which the cases are, with some exceptions, agreed. 1. The English courts will not reckon as conclusive a judgment of a foreign court which was (a) not final and conclusive where pronounced, or (B) not a decision on the merits.-(a.) A judgment for defendant in a colonial court of record was pleaded by way of estoppel, to a subsequent action in England between the same parties; held that the plea was bad, as it did not appear that the colonial judgment was final and conclusive in the colony itself, so as to bar the plaintiff from another action there (t). Plaintiff brought assumpsit on a decree of the High Court of Chancery in the island of Jamaica, whereby defendant was ordered to pay a certain sum to plaintiff on a certain day, first deducting thereout defendant's costs, to be taxed by the proper officer; held that the sum to be deducted not being ascertained, the amount was (s) See post, p. 151. The authorities on this point up to the time of Houlditch v. Donegal, 2 Cl. & Fin. 477, are collected in a note at the end of that case. (t) Plummer v. Woodburne, 4 B. & C. 625; and see Paul v. Roy, 15 Beav. 433; Frayes v. Worms, 10 C. B. N. S. 149; Ellis v. McHenry, L. R. 6 C. P. 228, at p. 234. uncertain, and the decree could not therefore be the foundation of an assumpsit (u). (B.) Cross actions for collision were brought in England by the owners of two vessels, the owners of one vessel having already obtained judgment by default, in a foreign court, against the owners of the other. The Court in this country, having decided on the merits in favour of the owner who had made default in the foreign action, refused to give effect to the foreign judgment, on the plea of res judicata (x). "The second reason," said Sir R. Phillimore, "is that the foreign judgment, not having been given on the merits of the case, but on matters of form only, cannot be set up as a bar to a decision on the merits." 2. The English courts will not recognise as conclusive a judgment of a foreign court, (a) which had not competent jurisdiction, or (B) where the procedure was irregular, or the judgment improperly obtained, or (y) which was contrary to natural justice.—(a.) As to the question of jurisdiction. The foreign court may have no jurisdiction either over the cause which it professed to determine, or over the subject-matter, or over the parties, and want of jurisdiction may be shown by extrinsic evidence (y). (u) Sadler v. Robins, 1 Camp. 253; see also Newland v. Horsman, 2 Ch. Cas. 74; Obicini v. Bligh, 8 Bing. 335; Callandar v. Dittrich, 4 M. & G. 82; Behrens v. Sieveking, 2 My. & Cr. 602; Ricardo v. Garcias, 12 Cl. & Fin. 368. And, on the same principle, no action can be brought on an (y) See the judgment of Sir Thus, where a judgment had been obtained, in the island of Tobago, against a person stated on the face of the proceedings to be "formerly of the city of Dunkirk, and now of the city of London, merchant," and who was cited to appear at the ensuing court to answer the plaintiff's action by a summons, which was returned served "by nailing up a copy of the declaration at the court-house door," and on which service judgment was afterwards given against defendant by default; it was held, that no action could be maintained in England upon a judgment so obtained (2). This case was commented upon, and explained by Blackburn, J., in the case of Schibsby v. Westenholz (a), to the following effect, namely, that it must be determined whether the defendant in the particular (foreign) suit was such a person as to be bound by the judgment which it is sought to enforce. That if the defendant was a subject of the foreign country, or resident there at the institution of the suit, or even when the obligation was contracted, he would be liable; or that if a plaintiff selected a foreign tribunal to sue, its judgment would be binding on him (b). Wm. Scott in The Flad Oyen, 1 Robinson's Adm. Rep. 135; cited in Donaldson v. Thompson, 1 Camp. 433 note; and in Havelock v. Rockwood, 8 T. R. 268. See also Bowles v. Orr, 1 Y. & Coll. 464; the judgment of the M. R. in Reimers v. Druce, 23 Beav. 145; Cavan v. Stewart, 1 Stark. 525; and Story's Conflict of Laws (7th ed.), § 586. On the question whether, if the extrinsic evidence necessary to show want of juris |