judgment and an answer was interposed which did not deny the jurisdiction of the court over the cause or over the defendant, nor did it allege that fraud was committed in procuring the judgment, nor set up any other special ground for not giving it full effect, but simply alleged the same defenses which were alleged, or might have been alleged, in the Canadian court, and sought to reopen and retry the whole merits. The court held that inasmuch as by the law of England which prevailed in Canada a judgment of an American court would be allowed full and conclusive effect, the defense to the judgment, which it was attempted to make, could not be permitted.78 "It is the settled law of this state that a foreign judgment is conclusive upon the merits. It can be impeached only by proof that the court in which it was rendered had not jurisdiction of the subject matter of the action, or of the person of the defendant, or that it was procured by means of fraud. The judgments of the courts of a sister state are entitled to full faith and credit in the courts of the other states, under the Constitution of the United States, but effect is given to the judgments of the courts of foreign countries by the comity of nations, which is part of our municipal law." 79

Ritchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. Rep. 171, 40 L. ed. 133.

"Dunstan v. Higgins, 138 N. Y. 70, 34 Am. St. Rep. 431, 30 L. R. A. 668, 33 N. E. 729, per O'Brien, J.; Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404. The fraud by which a judgment may be impeached cannot consist only in false and fraudulent documents or in false evidence submitted to the court, and the truth of which was contested and determined by the court, but it must be extrinsic to the matter tried in the cause. United States V. Throckmorton, 98 U. S. 61, 25 L. ed.

United States v. Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 836, 29 L. ed. 110; Reed v. Stanly, 89 Fed. 433; Dringer v. Receiver, 42 N. J. Eq. 580, Atl. 815; In re Griffith, 84 Cal. 113, 23 Pac. 529; Fealey v. Fealey, 104 Cal. 359, 43 Am. St. Rep. 114, 38 Pac. 50; Camp v. Ward, 69 Vt. 289, 60 Am. St. Rep. 931, 37 Atl. 748; Marquez v. Frisbie, 101 U. S. 479, 25 L. ed. 802; United States v. Minor, 26 Fed. 752; United States v. White, 9 Saw. 127, 17 Fed. 562; Andes V. Millard, 70 Fed. 517; Pacific R. R. Co. v. Missouri etc. Ry., ? McCrary, 229, 12 Fed. 642; United States v. Hancock, 12 Saw. 389, 30 Fed. 856; Yeatman v. Bradford, 44 Fed. 538; Harrison v. Walton, 95 Va. 726, 64 Am. St. Rep. 835, 30 S. E. 374, 41 L. R. A. 703; United States v. Northern Pac. R. Co., 95 Fed. 982; Adler v. Land etc. Co.,

§ 441. In the absence of fraud the merits cannot be inquired into. A record of a court of competent jurisdiction of British Honduras, showing the rendition of a judgment against a defendant by default is, when introduced in evidence, in an action by the plaintiff on the judgment, conclusive of such default.80 In a case in Connecticut Mr. Justice Baldwin, after stating that it is the settled rule in England that "in an action instituted there on a foreign judgment rendered by a court of competent jurisdiction, the proceedings before which were not so conducted as to be clearly contrary to natural justice, the defendant cannot be allowed to go into the merits of the original cause of action, which were not tried in the foreign court, unless it be necessary, in order to support a claim, that the judgment was procured by fraud," declared that "no one who has been, or could have been, heard upon a disputed claim in a cause to which he was duly made a party, pending before a competent judicial tribunal, having jurisdiction over him, proceeding in due course of justice, and not misled by the fraud of the other party, should be allowed, after a final judgment has been pronounced, to review the contest in another country. The object of courts is hardly less to put an end to controversies than to decide them justly."' 81

§ 442. Mexican judgments.—A person in the employ of a railroad company suffered personal injuries in Mexico and brought an action in the federal circuit court for the western district of Texas to recover damages. It was held that a transcript of the proceedings in a Mexican court which, in connection with other evidence, made a prima facie showing, with the force of res judicata, of a settlement adverse to the plaintiff's right of recovery, should be received in evidence.8%

114 Ala. 562, 62 Am. St. Rep. 140, 21 South. 493; McDonald v. Pearson, 114 Ala. 644, 21 South. 537; Weir v. Vail, 65 Cal. 470, 4 Pac. 425; Sullivan v. Lumsden, 118 Cal. 668, 50 Pac. 778; Langdon v. Blackburn, 109 Cal. 26, 41 Pac. 816; Telford v. Brinkerhoff, 163 Ill. 433, 45 N. E. 157; Richardson v. Stowe, 102 Mo. 44, 14 S. W. 812; Irvine v. Leyh, 102 Mo. 207, 14 S. W. 717; Mayor etc.

82

New York v. Brady, 115 N. Y. 615, 22 N. E. 242; Wiseman v. Eastman, 21 Wash. 171, 57 Pac. 400.

so Christian etc. Co. v. Coleman, 125 Ala. 158, 27 South. 786.

s1 Fisher v. Fielding, 67 Conn. 91, 52 Am. St. Rep. 270, 34 Atl. 714, 32 L. R. A. 236.

82 Mexican Cent. Ry. Co. v. Chantry, 136 Fed. 316, 69 C. C. A. 454.

§ 443. Canadian judgments. In a case arising in New Hampshire the court refers to the case in the supreme court of the United States holding that the effect to be given to a foreign judgment is determined by the treatment given American judgments, but states that the question cannot be raised as against a Canadian judgment because the courts of Canada hold that judgments of the courts of the United States are conclusive upon the merits.83 It is said by Mr. Black in his treatise on judgments that "the modern tendency of the decisions in this country is plainly and uniformly in the direction of holding foreign judgments in personam, rendered by courts having jurisdiction, to be binding and conclusive upon the parties, and not re-examinable upon the merits.'' 84

It is provided by the Consolidated Ordinances of the Northwest Territories of Canada 5 "that in case any defendant is out of the territories, but has an agent, managing clerk or other representative resident and carrying on his business within the same," service of the summons may be made on such agent or representative, and that a judgment obtained by means of such service shall be valid. Under this provision, if a defendant has left the territory and sold all his property therein, yet has left a power of attorney authorizing his attorney to transact all business relating to his interests in Yukon Territory, which was used by the attorney in the settlement of his affairs, the summons in a suit may be served on such attorney, and the judgment obtained based on such service will be upheld. If no fraud is alleged, such judgment, when suit is brought on it in a court of the United States, will, under the rule of comity recognized between the courts of the two countries, be conclusive on the merits.se

86

§ 444. Rule in England.—In England, at the present day, the rule is that all foreign judgments are considered as conclusive

McDonald v. Grand Trunk Ry. Co., 71 N. H. 448, 93 Am. St. Rep. 550, 59 L. R. A. 448, 52 Atl. 982. See, also, Alaska Commercial Co. v. Debney, 144 Fed. 1, 75 C. C. A. 131.

Black on Judgments, sec. 829. See, also, to same effect, Konitzy v. Mayer, 49 N. Y. 571; Coveney v.

Phiscator, 132 Mich. 258, 93 N. W. 619; Glass v. Blackman, 48 Ark. 50, 2 S. W. 257; Alaska Commercial Co. v. Debney, 144 Fed. 1, 75 C. C. A. 131.

85 Sec. 14, p. 198 (of 1898).

8 Alaska Commercial Co. v. Debney, 144 Fed. 1, 75 C. C. A. 131.

where it appears upon the face of the record that process has been duly served upon the defendant and he has had the opportunity of appearing and contesting the claims of plaintiff.87

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§ 445. Contract to influence corruptly officer of foreign government. The courts of this country will not enforce a contract to bribe or influence corruptly the officers of a foreign government. The consul-general of the Ottoman government at New York commenced an action to recover a sum of money which he alleged was due to him for commissions on the sale of firearms to that government. The sales were made while the plaintiff was an officer of the Turkish government, through the influence which he claimed he exerted upon its agent, who had been sent to the United States to examine and report relative to the purchase of arms. The court declared that the contract was "corrupt in its origin and corrupting in its tendencies. The services stipulated and rendered were prohibited by considerations of morality and policy, which should prevail at all times and in all countries. and without which fidelity to public trusts would be a matter of bargain and sale and not of duty." The court also held that even if contracts are permissible by other countries, they are not enforceable in the courts of the United States if they contravene its laws, its morality, or its policy.88

§ 446. Consul cannot assume position antagonistic to his government.-A consul is an officer of his government, and it is his general duty to guard and protect the interests of his government and those of its citizens or subjects. In Christian countries he is frequently permitted to engage in commercial pursuits, but he is not allowed to take any position antagonistic to the interests or policy of his government. "By some governments," said Mr. Justice Field, "he is invested, in the absence of a minister or ambassador to represent them, with diplomatic powers; and, as between their citizens or subjects, may also exercise judicial

s Burn v. Bletcher, 23 U. C. Q. B. 28; Bank of Australasia v. Nias, 16 Q. B. 717; Ferguson v. Mahon, 11 Ad. & E. 179; Henderson v. Henderson, 6 Ad. & E., N. S., 288; Castrique v. Inrie, L. R. 4 H. L. 414; Bank of

Australasia v. Harding, 9 Com. B. 661; De Cosse Brissac v. Rathbone, 6 Hurl. & N. 301.

88

Oscanyan v. Winchester R. Arms Co., 103 U. S. 261, 26 L. ed. 539.

functions. By all governments his representative character is recognized, and for that reason certain exemptions and privileges are granted to him. In the Constitution of the United States, consuls are classed with ministers and ambassadors in the enumeration of parties whose cases are subject to the original jurisdiction of the supreme court, and in the treaty with the Ottoman Empire, authority is given to it to appoint consuls in the United States. . . . . A contract to bribe or corruptly influence officers of a foreign government will not be enforced in the courts of this country; not from any consideration of the interests of that government or any regard for its policy, but from the inherent. viciousness of the transaction, its repugnance to our morality, and the pernicious effect which its enforcement by our courts would have upon our people. While an agreement to compensate a person for purely professional services is valid, yet any contract which is against public policy, or which is so intermingled with one of that character as to make the two one transaction, cannot be enforced.

789

§ 447. Jurisdiction of consuls by treaties.-Many treaties have been made by the United States with European nations whereby exclusive jurisdiction of disputes between masters of vessels and

In Oscanyan v. Winchester R. Arms Co., 103 U. S. 261, 26 L. ed. 539, citing Hope v. Hope, 8 De Gex, M. & G. 731; Watson v. Murray, 8 C. E. Green (23 N. J. Eq.), 257. Where two transactions are so intermingled as to become one, and one of them is against public policy, the whole transaction is void. Washington Irr. Co. v. Krutz, 119 Fed. 286, 56 C. C. A. 1. An agreement for compensation to procure a contract with the government to furnish it supplies is against public policy and cannot be enforced. Tool Co. v. Norris, 2 Wall. (69 U. S.) 45, 17 L. ed. 868. Where compensation was claimed for services rendered in procuring the passage of a law by a state legislature, upon a contract that if the law was not passed, or if

passed was not accepted and adopted or used by the stockholders, no compensation should be allowed, it was held that the contract was void as against public policy. Marshal V. Railroad Co., 16 How. 314, 14 L. ed. 953. Illegality of a contract need rot be pleaded, as the court will refuse to enforce a contract when its illegality is made apparent. Reed v. Johnson, 27 Wash. 55, 67 Pac. 386, 57 L. R. A. 404. If the tendency of a contract is to promote illegal acts, it is against the policy of the law, and hence illegal. Young v. Thompson, 14 Colo. App. 315, 59 Pac. 1037. See, also, Wood v. McCann, 6 Dana, 366; Mills v. Mills, 40 N. Y. 543, 100 Am. Dec. 535.