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dering the judgment arrived at a wrong and unjust conclusion; but, in order that such a result may follow, it must appear that the decision was reached according to a vote which would be considered unjust by the country wherein it was sought to be enforced.

And in Simpson v. Fogo (1863) 1 Hem. & M. 195, 71 Eng. Reprint, 85, it was held that a decision inter partes by a foreign court was conclusive between the parties and those claiming under them, in any other country, subject only to the question as to how far they could examine the judgment for error appearing on the face of it. In the absence of error appearing on the face of the judgment itself, with which a court in this country can deal, the judgment is conclusive upon the merits of the matter in controversy, between the two parties to the litigation.

However, in the important case of Godard v. Gray (1870) L. R. 6 Q. B. 139, 5 Eng. Rul. Cas. 726, the court said: "If indeed foreign judgments were enforced by our courts out of politeness and courtesy to the tribunals of other countries, one could understand its being said that, though our courts would not be so rude as to inquire whether the foreign court had made a mistake, or to allow the defendant to assert that it had, yet that, if the foreign court itself admitted its blunder, they would not then act; but it is quite contrary to every analogy to suppose that an English court of law exercises any discretion of this sort. We enforce a legal obligation, and we admit any defense which shows that there is no legal obligation, or a legal excuse for not fulfilling it; but in no case that we know of is it ever said that a defense shall be admitted if it is easily proved, and rejected if it would give the court much trouble to investigate it. Yet on what other principle can we admit as a defense that there is a mistake of English law apparent on the face of the proceedings, and reject a defense that there is a mistake of Spanish or even Scotch law apparent in the proceedings, or that there was a mistake of English law not


apparent on the proceedings, which the defendant avers that he can show did exist?"

d. Effect of judgments rendered in con. formity to municipal laws.

In United States v. Neely (1903; C. C.) 126 Fed. 221, it was held that disposition of a criminal prosecution. in Cuba by staying a criminal action for embezzlement, as provided for in the Amnesty Act, would apparently have no effect upon an action for conversion which is now brought in a court of this country. (However, it

was held that the question should not be finally disposed of by an order upon motion, but should be more fully considered at the trial.)

In De Brimont v. Penniman (1873) 10 Blatchf. 436, Fed. Cas. No. 3,715, in an action of debt on a decree of judgment rendered in France, whereby the plaintiff, in a suit against his motherin-law, had been decreed a sum of money for the support of his child and himself, under a statute of France so providing, the court held that the suit could not be maintained, since the statute on which the foreign judgment was rendered could have no extraterritorial effect.

Coveney v. Phiscator (1903) 132 Mich. 258, 93 N. W. 619, was an action to recover money and interest claimed to have been paid defendant under duress of imprisonment in Yukon Territory, Canada. The court held that the judgment of conviction of Yukon Territory was conclusive that the plaintiff was properly adjudged guilty, and that the plaintiff could not collaterally, in a civil suit, attack the judgment as being incorrect.

e. Merger of original cause of action.

It is a general rule that a judgment in personam rendered in a court of a foreign country also does not merge the original cause of action or extinguish the original contract debt, unless paid or satisfied. Swift v. Davis (1910) 104 C. C. A. 338, 181 Fed. 828; New York, L. E. & W. R. Co. v. McHenry (1883) 21 Blatchf. 400, 17 Fed. 414; The East (1877) 9 Ben. 76, Fed. Cas. No. 4,251; Lyman v. Brown (1855) 2 Curt. C. C. 559, Fed. Cas. No.

8,627; Tourigny v. Houle (1896) 88 Me. 406, 34 Atl. 158 (by implication); Eastern Townships Bank v. Beebe (1880) 53 Vt. 177, 38 Am. Rep. 665; Bank of Australasia v. Harding (1850) 9 C. B. 661, 137 Eng. Reprint, 1052; Bank of Australasia v. Nias (1851) 16 Q. B. 717, 117 Eng. Reprint, 1055; Hall v. Odber (1809) 11 East, 118, 103 Eng. Reprint, 949; Re Henderson (1888) L. R. 37 Ch. Div. (Eng.) 244; Trevelyan v. Myers (1895) 26 Ont. Rep. 430; Moritz v. Canada Wood Specialty Co. (1907) 17 Ont. L. Rep. 53 (affirmed in (1908) 42 Can. S. C. 237).

However, in Alaska Commercial Co. v. Debney (1904) 2 Alaska, 303, it was held that a judgment on a debt merged the original cause of action for the debt.

1. Effect of fraud.

It has been uniformly held that a foreign judgment may be impeached for fraud in procuring it. See Vadala v. Lawes (1890) L. R. 25 Q. B. Div. (Eng.) 310- C. A.; Abouloff v. Oppenheimer (1882) L. R. 10 Q. B. Div. (Eng.) 295 — C. A.; Bowles v. Orr (1835) 1 Younge & C. Exch. 464, 160 Eng. Reprint, 189.

To the same effect, though by dicta rather than by a direct holding to that effect, see Cruz v. O'Boyle (1912; D. C.) 197 Fed. 824; McMullen v. Richie (1890; C. C.) 8 L.R.A. 268, 41 Fed. 502 (affirmed in (1895) 159 U. S. 235, 40 L. ed. 133, 16 Sup. Ct. Rep. 171); Alaska Commercial Co. v. Debney (1904) 2 Alaska, 303; Rankin v. Goddard (1866) 54 Me. 28, 89 Am. Dec. 718; Dunstan v. Higgins (1893) 138 N. Y. 70, 20 L.R.A. 668, 34 Am. St. Rep. 431, 33 N. E. 729; Lazier v. Westcott (1862) 26 N. Y. 146, 82 Am. Dec. 404; Cummings v. Banks (1848) 2 Barb. (N. Y.) 602.

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tion of fraud from being litigated in the courts of this country, when he seeks to enforce the judgment so obtained. The justice of that proposition is obvious: If it were not so, we should have to disregard a well-established rule of law that no man shall take advantage of his own wrong, and we should have to lay down the legal proposition that where a judgment has been obtained in the courts of a foreign country by a fraud, and by a wrongful act, nevertheless the person obtaining it can take advantage of that fraud and that wrongful act, and in the courts of this country can enforce the judgment so obtained."

IV. Judgments of courts of the Confederate States.

Where a judgment of the court gave effect to the legislation of the revolutionary legislatures, which was enacted for the purpose of aiding the Confederate cause or depriving citizens of the United States of their just rights, such judgments and decrees are void and no subsequent legislation can make them good. Van Epps v. Walsh (1870) 1 Woods, 598, Fed. Cas. No. 16,850.

An act of the Confederate Congress creating courts was void, and the courts were a nullity. Hickman v. Jones (1870) 9 Wall. (U. S.) 197, 19 L. ed. 551.

Although the act of the Confederate States, in the ordinary course of administration of law, must be upheld in the interests of civil society to which such a government was a necessity, yet the government of the Confederacy had no existence except as organized treason. Its purpose, while it lasted, was to overthrow the lawful government, and its statutes, its decrees, and its authority can give no validity to any act done in its service, or in aid of its purpose. Sprott v. United States (1874) 20 Wall. (U. S.) 459, 22 L. ed. 371.

In The Lilla (1862) 2 Sprague, 177, Fed. Cas. No. 8,348, it was held that the proceedings of a Confederate prize court would not have any validity and that a sale under its judgment would not convey title to the purchaser, nor

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The judgment of a Confederate court settling the rights of private persons within the jurisdiction of the court, and not tending to defeat rights of citizens of the United States, and not in furtherance of laws passed to sustain or uphold the Confederate caurse nor used for the purpore of oppressing those who adhered to the United States, is binding on the parties. Cook v. Oliver (1870) 1 Woods, 437, Fed. Cas. No. 3,164.

Judgments of a court of a seceding state rendered during the Civil War are valid as to the parties who were within their jurisdiction. A judgment for plaintiff for the price of a slave, rendered prior to emancipation, and valid by the laws of the United States and of the state at the time of its rendition, is valid after emancipation, and may be enforced in the courts of the United States. French v. Tumlin (1871) 10 Am. L. Reg. N. S. 641, Fed. Cas. No. 5,104.

In Pepin v. Lachenmeyer (1871) 45 N. Y. 27, in an action brought upon a judgment rendered in the state of Louisiana during the Civil War, Folger, J., said: "It is sufficient for us to say that, in our view, the sixth district court of New Orleans was a court of the state of Louisiana; that the rebellion against the national government in which the people of that state were involved did not annul that court, its power, or jurisdiction, but that it continued on in the exercise of them; that its proceedings were valid; that it had jurisdiction of the parties to the judgment sued upon in this action and the subject-matter of it; and that the judgment, if rendered, was valid and ought to be enforced in this action."

The Constitution of Arkansas of 1864 declares that all the action of the state of Arkansas under the authority of the Convention of 1861, "whether legislative, executive, judicial, or military, was and is hereby null and void." Therefore, the courts existing under the Constitution of 1861 were not legally constituted, but were the creatures of the individuals who com

posed the convention. Also, service by such courts was invalid, and the judgments of those courts were coram non judice and absolutely void. Penn v. Tollison (1871) 26 Ark. 545; Thompson v. Mankin (1871) 26 Ark. 586, 7 Am. Rep. 628; Timms v. Grace (1871) 26 Ark. 598.

The position of the Supreme Court of the United States was declared by Mr. Justice Field in Horn v. Lockhart (1873) 17 Wall. (U. S.) 570, 21 L. ed. 657: "We admit," said the learned justice, "that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are in general to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with the civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states, touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution." See also, as supporting the same proposition, Hill v. Armistead (1876) 56 Ala. 118; United States v. Home Ins. Co. (1875) 22 Wall. (U. S.) 99, 22 L. ed. 816; Ford v. Surget (1878) 97 U. S. 594, 24 L. ed. 1018; Williams v. Bruffy (1878) 96 U. S. 176, 24 L. ed. 716.

V. Effect of United States Supreme Court decisions in state courts.

In the reported case (JOHNSTON v. COMPAGNIE GENERALE TRANSATLANTIQUE, ante, 435) it is held that a

state court is not bound by a decision of the United States Supreme Court, concerning the effect of a judgment rendered in a court of France. The holding of the above case is apparently consistent with the attitude of most state courts, where no treaty exists between the United States and the country wherein the judgment in question was rendered, concerning the recognition of such judgments. At least, while decisions of the United States Supreme Court are cited in many state court decisions and accorded the respect which the position and standing of that court naturally commands, especially on a question of the character of the one under consideration, the state courts apparently do not consider them as necessarily binding authority, precluding an independent consideration of the question.

In Baxter v. New England Marine Ins. Co. (1810) 6 Mass. 277, 4 Am. Dec. 125, the court says: "There seems to be a peculiar propriety in respecting the decision of the Supreme Court of the United States upon this subject [conclusiveness of foreign

judgments], because there is delegated to the national government an authority to regulate commerce, and because it is highly interesting to commerce that the same rule of decision in this respect should pervade the whole country." The court, continuing, says: "It would, indeed, be inconvenient, embarrassing, and disreputable, that in different actions depending at the same time in the national and state courts, brought on the same policy, and governed by the same facts, contrary judgments should be rendered; and this might be the case if different rules of decision were adopted by them respectively."

In Blanque v. Peytavin (1816) 4 Mart. (La.) 458, 6 Am. Dec. 705, it was held that the decision of the Supreme Court of the United States holding that a sentence of a foreign court of admiralty was conclusive evidence of the fact as held in Croudson v. Leonard (1808) 4 Cranch (U. S.) 434, 2 L. ed. 670, was binding on the state courts, since there should be but one holding all over the United States, as one natural body, as to what the law of nations was. J. M. H.



JOHN A. WISE, Admr., etc., of W. L. Lyons, Deceased, et al.

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Evidence, § 1130-testimony of witness since deceased.

1. In an action to recover on a fire insurance policy, the testimony of a witness who has since died, given in the criminal proceedings against the insured for burning the building covered by insurance, is properly excluded.

[See annotation on this question beginning on page 463.]

Pleading, § 529 — fraud — sufficiency.

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2. In a suit to collect a fire insurance policy, an answer setting out that the insured wilfully, deliberately, and intentionally set fire to and destroyed the buildings and property insured, as described in the petition of the insured and the policy sued upon, is sufficient to plead a constructive fraud upon the part of the insurance company.

Headnotes by CLARK, J.

Pleading, § 529 Pleading, § 529 fraud.

direct allegation of

3. It is not necessary that the pleading allege fraud in direct terms; pleading may be sufficiently made by stating the facts from which fraud is implied.

[See 12 R. C. L. 417; 2 R. C. L. Supp. 1425.]

(114 Okla. 254, 246 Pac. 595.)

Evidence, § 1311 of previous fires. 4. Evidence offered by insurance companies of previous fires and losses by the insured, covering a period of seventeen years, the last of which was about five years before the loss occurred on which this suit was brought, to be admissible, must be logically and naturally connected, showing a plan. or scheme on the part of the insured to defraud the insurance company.

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Evidence, § 1334 of substantive crime.

5. Whatever may be the object of evidence as to other offenses, or to prove motive of intent or guilty knowledge, or to show a general plan or scheme, proof of a direct substantive crime is never admissible unless there is some legal connection between the two, upon which it can be said that one tends to establish the other.

[See 8 R. C. L. 206; 2 R. C. L. Supp. 575; 4 R. C. L. Supp. 535.]

(Harrison, Phelps, and Riley, JJ., dissent.)

APPEAL by defendants from a judgment of the District Court for Craig County (Brewster, J.) in favor of plaintiffs in an action brought to recover the amount alleged to be due on a fire insurance policy. Affirmed. The facts are stated in the opinion of the court. Messrs. Rittenhouse & Rittenhouse and P. T. McVay, for appellants:

If the insurance companies established by a preponderance of the evidence that W. L. Lyons so destroyed his own property, as alleged in the answers, it was a complete defense to his actions on the policies sued upon.

Schmidt v. New York Union Mut. F. Ins. Co. 1 Gray, 529; D. I. Felsenthal Co. v. Northern Assur. Co. 284 Ill. 343, 1 A.L.R. 602, 120 N. E. 268; Chandler v. Worcester Mut. F. Ins. Co. 3 Cush. 328; Meily Co. v. London & L. F. Ins. Co. 79 C. C. A. 454, 148 Fed. 683; Hocking v. Virginia F. & M. Ins. Co. 99 Tenn. 729, 39 L.R.A. 148, 63 Am. St. Rep. 862, 42 S. W. 451; 4 Cooley, Briefs on Ins. p. 3015.

The testimony of a witness since deceased, taken at a preliminary hearing on a criminal charge, is admissible in a civil suit growing out of the same act which constitutes the criminal charge.

Ray v. Henderson, 44 Okla. 174, 144 Pac. 175; Gavan v. Ellsworth, 45 Ga. 283; Charlesworth v. Tinker, 18 Wis. 633; Kreuger v. Sylvester, 100 Iowa, 647, 69 N. W. 1059; Atchison, T. & S. F. R. Co. v. Baker, 37 Okla. 48, 130 Pac. 577; State v. New Orleans Waterworks Co. 107 La. 1, 31 So. 395; Palon v. Great Northern R. Co. 135 Minn. 154, 160 N. W. 670; Minea v. St. Louis Cooperage Co. 179 Mo. App. 705, 162 S. W. 741; Lyon v. Rhode Island Co. 38 R. I. 252, L.R.A.1916A, 983, 94 Atl. 893; Huempfner v. Bailly, 36 S. D. 533, 156 N. W. 78; Profitos v. Comerma, 94 Misc. 334, 158 N. Y. Supp. 369; Dederer v. Dela

ware Ins. Co. 2 Wash. C. C. 61, Fed. Cas. No. 3,733; North River Ins. Co. v. Walker, 161 Ky. 368, 170 S. W. 983.

Evidence leading to the inference that Lyons set the fire in question, in pursuance of his general plan to defraud the insurers, was admissible, and its exclusion reversible error.

22 C. J. 764; L. J. Brosuis & Co. v. First Nat. Bank, 65 Okla. 128, 174 Pac. 269; Amazon F. Ins. Co. v. Bond, 65 Okla. 224, 165 Pac. 414; Morris v. State, 9 Okla. Crim. Rep. 241, 131 Pac. 731; Williams v. State, 14 Okla. Crim. Rep. 195, 169 Pac. 655; Johnson v. State, Okla. Crim. Rep., 211 Pac. 425; Herndon v. State, 16 Okla. Crim. Rep. 586, 185 Pac. 701; Hollingshead v. State, Okla. Crim. Rep., 207 Pac. 104; Montgomery v. State, 13 Okla. Crim. Rep. 652, 166 Pac. 446; Levy v. State, 12 Okla. Crim. Rep. 441, 158 Pac. 288; Winston v. State, 16 Okla. Crim. Rep. 648, 185 Pac. 832; Bennett v. State, Okla. Crim. Rep. 204 Pac. 462; State v. Rule, 11 Okla. Crim. Rep. 237, 144 Pac. 807; Hill v. State, 3 Okla. Crim. Rep. 686, 109 Pac. 291; Myers v. State, 6 Okla. Crim. Rep. 389, 119 Pac. 136; Littrell v. State, Okla. Crim. Rep., 208 Pac. 1048; Bundy v. State, 16 Okla. Crim. Rep. 481, 184 Pac. 795; Arnold v. State, 15 Okla. Crim. Rep. 519, 178 Pac. 897; Blake v. Albion Life Assur. Soc. L. R. 4 C. P. Div. 94; Makin v. Atty. Gen. [1894] A. C. 57—P. C.; Fowle v. Child, 164 Mass. 210, 49 Am. St. Rep. 451, 41 N. E. 291; State v. Briggs, 74 Kan. 377, 7 L.R.A. (N.S.) 278, 86 Pac. 447, 10 Ann. Cas. 904; Bottomley v. United States, 1 Story, 135,

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