This holding undoubtedly represents an extreme of comity towards the law of the foreign State, and was dissented to by three Justices. Chief Justice Fuller, speaking for these three, said: "It seems to me that the method of arriving at and distributing the damages [as fixed by the Mexican law] pertains to procedure and remedy, that is to say, to the course of the court after parties are brought in, and the means of redressing the wrong, and I think the general rule that procedure and remedy are regulated by the law of the forum is applicable."

In Disconto Gesellschaft v. Terlinden,34 the question was presented whether a non-resident alien might sue another non-resident alien upon a cause of action accruing in a foreign country, and by means of garnishment or other remedy impound property of the defendant within the State, and obtain judgment to the detriment of a citizen of the court's own State who was also a creditor of the alien defendant. The State court said:

The plaintiff. . . is a non-resident; it has no property of any kind within the State; it has made no contract within the State or with any resident of the State. It has brought action against another non-resident alien, temporarily within the State, to redress a wrong committed without the State, and asks the courts of this State not only to give it judgment for that wrong, but also to lend the aid of its process to impound property within the State and satisfy such judgment therefrom to the prejudice of one of the State's own citizens who has a claim against the same debtor. It is true that the cause of action is transitory and the parties both within the jurisdiction of the court, and so the court has jurisdiction and may doubtless rightly entertain the cause. But is the court compelled to do so, because of an inherent right which the alien has to demand the action of the court; or does it do so upon the principles of comity, with the right to refuse relief when such relief prejudices the interests of resident citizens?

127 Wis. 651, 15 L. R. A. n. s. 1045, affirmed by the U. S. Supreme Court, Disconto Gesellschaft v. Umbreit, 208 U. S. 570.

To this question the court replied that the obligation to exercise its jurisdiction was based upon comity and that, therefore, it was within its discretion to grant or refuse relief, and that, in the instant case, it would refuse it.

In the Supreme Court of the United States this ruling was affirmed, the court, through Mr. Justice Day, saying:

Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights. But what property may be removed from a State and subjected to the claims of creditors of other States is a matter of comity between nations and States, and not a matter of absolute right in favor of creditors of another sovereignty, when citizens of the local State or country are asserting rights against property within the local jurisdiction.

35

As has been earlier said, and as opposed to the English doctrine, the American courts go so far in the matter of comity as to enforce obligations created by foreign law even though, under their own law, no obligation would have been created. Thus in Huntington v. Attrill, the Supreme Court held that the courts of one of the States of the Union, under the Comity Clause of the Federal Constitution, was called upon to enforce a judgment rendered in a court of another State against officers of a corporation for making false statements regarding the amount of capital stock paid in, although the law of the State in which that judgment had been brought, did not provide for such a liability. Justice Gray, speaking for a majority of the court, said: "In order to maintain an action for an injury to the person or to movable property, some courts have held that the wrong must be one which would be actionable by the law where the redress is sought, as well as by the law of the place

35 146 U. S. 657.

where the wrong was done.36 But such is not the law of this court. By our law, a private action may be maintained in one State, if not contrary to its own policy, for such a wrong done in another and actionable there, although a like wrong would not be actionable in the State where the suit is brought."37

This doctrine had been declared as early as 1810 by a State court in the case of Greenwood v. Curtis.38 In that case the court, speaking through Chief Justice Parsons, said: "A contract made in a foreign place, and to be there executed, if valid by the laws of that place, may be a legitimate ground of action in the courts of this State; although such contract may not be valid by our laws, or even may be prohibited to our citizens.'

1939

Citing The Halley, L. R. 2 P. C. 193, 204; Phillips v. Eyre, L. R. 6 Q. B. 1, 28, 29; The Moxham, L. R. 1 Prob. Div. 107, 111; Wooden v. Western N. Y. & P. R. Co., 126 N. Y. 10; Ash v. B. & O. R. Co., 72 Md. 144.

"Citing Smith v. Condry, 1 How. 28; The China, 7 Wall. 53;_The Scotland, 105 U. S. 24; Dennick v. Central R. Co., 103 U. S. 11; Tezas & P. R. Co. v. Cox, 145 U. S. 593.

6 Mass. 358; 4 Am. Dec. 145.

That this doctrine does not apply when to do so would be inconsistent with the public policy of the lex fori, as, for example, with reference to the enforcement of gaming contracts, see Flagg v. Baldwin, 48 Am. Rep. 308.

CHAPTER XXIII

CONFLICT OF LAWS

THE exclusiveness of jurisdiction which every sovereign State asserts within its own territorial limits, and the rule that the courts of these States look exclusively to the legislative and political departments of their own governments for the laws which they are to apply in the causes coming before them for adjudication, are doctrines which are not contradicted by the force which they give to principles of international law or of admiralty and general commercial jurisprudence. And the same is true as to the effect which these courts give to the laws, judicial decrees and other public acts of foreign States. We have elsewhere had occasion to discuss the relation of international, admiralty and general commercial jurisprudential principles to municipal law, and to show that these principles are not applied by municipal courts except when, and to the extent that, they may be fairly said to have been received into the respective systems of municipal laws of the courts that apply them. We shall here be concerned only with the faith and credit given to the municipal laws, judicial decrees and other public acts of one State by the courts of other States,-a subject generally bearing the title "Conflict of Laws," or, "Private International Law."

The doctrine is undisputed that the laws, judicial decrees and other public acts of one State have no legal force, ex proprio vigore, in the judicial tribunals of an

other State. This doctrine, however, does not prevent the courts of one State from resorting to the laws, judicial decrees and other public acts of other States in order to determine what, as matters of fact, are the rights and obligations of the parties in the causes brought before them for adjudication. In other words, these foreign laws and decrees and other public acts are regarded not as, legally, the creative sources of the rights and obligations of the litigants, but as facts or circumstances in the case which determine, as do other facts and circumstances, the municipal laws of its own State which the court is to apply. This is what Professor Gray means when he says: "The laws of the other countries are simply facts which the court has to consider like other facts." 1

As

Foreign Laws and Judicial Decrees as Facts. descriptive of the manner in which laws of one jurisdiction are thus viewed as facts in another jurisdiction, we may quote the following from the opinion of Lord Justice Selwyn in the case of The Halley 2: "It is true, he says, that in many cases the courts of England inquire into and act upon the law of foreign countries, as in the case of a contract entered into in a foreign country, where, by express reference, or by necessary implication, the foreign law is incorporated with the contract, and proof and consideration of the foreign law therefore became necessary to the construction of the contract itself. And as in the case of a collision on an ordinary road in a foreign country, where the rule of the road at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But 'Nature and Sources of Law, sec. 282.

L. R. 2 P. C. 202.