1 1 U. S. Stat, at Large, ch. 11, p. 122 (May 26, 1790); subsequently extended to the territories, 2 Ib. ch. 56, p. 298 (March 27, 1801).
2 See Bigelow on Estoppel, 195. 3 Ibid.
4 Mills v. Duryee, 7 Cranch, 481; Bigelow on Estoppel, 196. 5 Bigelow on Estoppel, 223 et seq.; Ib. 229.
§ 1387. The effect of judgments in personam rendered in foreign countries or colonies has been a subject of even greater doubt and conflict.1 But it has been finally determined in England that while such judgments, even though pronounced by a superior court of record, cannot be regarded technically as record evidence extra territoriam, still, in respect of the merits of the decisions, i. e. in respect of the determination of all essential matters, the judgments are not open to question.2 Fraud and in most cases want of jurisdiction may, however, be proved.3 And the tendency of the American courts is in the same direction, though it cannot be said that the subject is yet at rest here.4 Foreign judgments in rem, strictly so called, are conclusive upon all the world, both in respect of the matters in issue and of the change of property; and quasi judgments in rem, as judgments in attachment and replevin, are also conclusive of the change of property.5
§ 1388. Judgments of inferior courts of foreign countries would probably be considered as only primÔ facie evidence of correctness; and it is not settled whether the Constitution of the United States and act of Congress above mentioned embrace the judgments of inferior courts of the sister States. At all events they may be impeached for fraud, and, without an adjudication upon the point, for want of jurisdiction.6
§ 1389. A former verdict or judgment on the same matter is a conclusive bar to a second action if it be so pleaded.7 But if the former verdict be only offered in evidence to the jury, it has been held to have only the force of evidence, and not to create a bar or estoppel.1 This distinction stands upon the ground that the plaintiff by offering it in evidence waives its effect as an estoppel; but the better opinion seems to be against the soundness of any distinction in favor of a special plea of estoppel.2 At all events, if there were no opportunity to plead it in bar, and it be offered in evidence, it would have the effect of an estoppel in like manner as if it had been pleaded.3 The former verdict is conclusive, however, only in respect to facts put in issue upon the suit in which that verdict was given, and which were necessary to sustain the verdict.4 And if the pleadings present different propositions to any of which the judgment may apply, it will operate only as primÔ facie evidence and may be rebutted.5
1 Ib. 185 et seq.
2 Bank of Australasia v. Nias, 16 Q. B. 717; Bank of Australasia v. Harding, 9 C. B. 661; Scott v. Pilkington, 2 B. & S. 11; Imrie v. Cas-trique, 8 C. B. (n. s.) 405; Law R. 4 H. L. 414; Godard v. Gray, Law R. 6 Q. B. 139; Bigelow on Estoppel, 170.
4 Lazier v. Westcott, 26 N. Y. 146; Bigelow on Estoppel, 193-195. 5 See Bigelow on Estoppel, 161 et seq. As to jurisdiction and fraud in such cases, see Ib. 181, 184, 239-241.
6 See Bigelow on Estoppel, 258 et seq.
7 Vin. Ab. tit. Judgment, Q. 4; Vooght v. Winch, 2 B. & Al. 662; Spooner v. Davis, 7 Pick. 147; Hopkins v. Lee, 6 Wheat. 109; Tyler v. Hammond, 11 Pick. 193; Blake v. Clark, 6 Greenl. 436.
1 Howard v. Mitchell, 14 Mass. 241; Wood v. Jackson, 8 Wend. 9; Wright v. Butler, 6 Wend. 288.
2 See Bigelow on Estoppel, 589, 590.
3 See 1 Greenleaf on Evid. § 531, and his learned note, in which this rule is maintained. See, also, 2 Smith, Leading Cases, 434, 444, 445; Kil-heffer v. Herr, 17 S. & R. 325; Marsh v. Pier, 4 Rawle, 288; Cist v. Zeigler, 16 S. & R. 282; Estill v. Taul, 2 Yerg. 471; Stafford v. Clark, 1 C. & P. 405; Lawrence v. Hunt, 10 Wend. 83, 84; Duchess of Kingston's Case, 20 Howell, State Trials, 538; Thompson v. Roberts, 24 How. 233.
4 Gilbert v. Thompson, 9 Cush. 348; Harding v. Hale, 2 Gray, 399.
5 Henderson v. Kenner, 1 Rich. 474; Seddon v. Tutop, 6 T. R. 608; Arnold v. Arnold, 17 Pick. 4; Hadley v. Green, 2 Tyrw. 390; s. c. 2 C. & J. 374; Bridge v. Gray, 14 Pick. 55; Ravee v. Farmer, 4 T. R. 146; Thorpe v. Cooper, 5 Bing. 116; Phillips v. Berick, 16 Johns. 136. See King v. Chase, 15 N. H. 9.