(v) Embree v. Hanna, 5 Johns. 101. In this case the defendant pleaded a foreign attachment pending in Maryland for the same demand. And Kent, C. J., said: "If the defendant would have been protected under a recovery had by virtue of the attachment, and could have pleaded such recovery in bar, the same principle will support a plea in abatement of an attachment pending, and commenced the * pendency of a suit in a foreign country, which began by process against the person, has not the same force with a foreign attachment; and will not abate a suit at home, before the foreign suit is carried to judgment. (w) And an action brought in this country directly on a foreign judgment, for the purpose of enforcing it, may be defeated by evidence going to set that judgment aside. Indeed, according to the weight of authority, it is no more than prima facie evidence, when an action is brought to enforce it; but where an action is brought for a cause of action which was litigated abroad between the same parties, then the foreign judgment against such cause of action is a bar to the new action brought at home. (x) prior to the present suit. The attachment of the debt in the hands of the defendant fixed it there, in favor of the attaching creditors; the defendant could not afterwards lawfully pay it over to the plaintiff, The attaching creditors acquired a lien upon the debt, binding upon the defendant; and which the courts of all other governments, if they recognize such proceedings at all, cannot fail to regard. Qui prior est tempore potior est jure. In Brook v. Smith, 1 Salk. 280, Lord Holt held, that a foreign attachment before writ purchased in the suit, was pleadable in abatement. If we were to disallow a plea in abatement of the pending attachment, the defendant would be left without protection, and be obliged to pay the money twice; for we may reasonably presume, that if the priority of the attachment in Maryland be ascertained, the courts in that State would not suffer that proceeding to be defeated, by the subsequent act of the defendant going abroad, and subjecting himself to a suit and recovery here." And see Wheeler v. Raymond, 8 Cowen, 311.

1 A defendant cannot set up as an excuse for not paying money awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to the English law, which was really a question of fact; and it makes no difference that the mistake appears on the face of the proceedings. Godard v. Gray, L. R. 6 Q. B. 139.

(w) Bowne v. Joy, 9 Johns. 221. In this case the defendant pleaded the pendency of another action, between the same parties and for the same cause, in the Commonwealth of Massachusetts. And upon demurrer, judgment was given for the plaintiff. The court said: "The exceptio rei judicatae applies only to final definitive sentences abroad, upon the merits of the case. Goix v. Low, 1 Johns. Cas. 345. Nor is this analogous to the case of the pendency of a prior foreign attachment, at the suit of a third person; for here the defendant would not be obliged to pay the money twice, since payment at least, if not a recovery in the one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even proceed pari passu to judgment and execution, a satisfaction of either judgment might be shown upon audita querela, or otherwise, in discharge of the other." In Maule v. Murray, 7 T. R. 470, a foreign judgment was disregarded, because it was taken subject to a case which had not then been decided, in respect to the amount.

(x) This distinction is clearly stated by Eyre, C. J., in Philips v. Hunter, 2 H. Bl. 410. " It is," said he, "in one way only that the sentence or judgment of the court of a foreign state is examinable in our courts, and that is, when the party who claims the benefit of it applies to our courts to enforce it When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, nor as obligatory to the extent 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 of 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." Lord Nottingham, in Cottington's case, 2 Swanst 326, n., and Lord Hardwicke, in Boucher v. Lawson, Cas. temp. Hardw. 89, seem to hold that the foreign judgment is conclusive, for all purposes. And see Roach v. Garvan, 1 Yes. Sen. 167. But Eyre's distinction is maintained by Lord Mansfield, in Walker v. Witter, Doug. 1; and by Buller, J., in Galbraith v. Neville, Doug. 6,

The very first essential to this, or to any efficacy of a foreign judgment, is, that the court by which it is pronounced has unquestionable jurisdiction over the case. (y) And n. (3); and in Houlditch v. Donegal, 8 Bligh, 337, Lord Brougham gives his reasons at length for holding a foreign judgment to be only prima facie evidence. And see Herbert v. Cook, Willes, 86, n.; Hall v. Odber, 11 East, 118; Bayley v. Edwards, 8 Swanst. 708. But Lord Kenyon, in Gilbraith v. Neville, cited above, doubts whether a foreign judgment be not conclusive in English courts; and Lord Ellenborough at least implies a similar doubt, in Tarleton v. Tarleton, 4 M. & S. 20; and Sir L. Shadwell, in Martin v. Nicolls, 3 Sim. 458, rejected this distinction altogether, and therefore allowed a demurrer to a bill for a discovery, and a commission to examine witnesses abroad in aid of the plaintiffs defence to an action brought in England on a foreign judgment. The law on this subject cannot be considered as settled in England; but from Smith v. Nicolls, 6 Bing. N. C. 208, it may perhaps be inferred that in an action on a foreign judgment, the judgment is only prima facie evidence. It is believed, that in this country this distinction has been regarded in practice, but the reported adjudications do not authorize us to speak of it as established here. See Cummings v. Banks, 2 Barb. 602, where the question is discussed by Edmonds, J. In Boston India R. F. v. Hoit, 14 Vt. 92, it was held, that debt and not assumpsit should be brought on the judgment of another State; and in Noyes v. Butler, 6 Barb. 613, a judgment in another State was held conclusive as to all facts but those which went to show the jurisdiction of the court rendering the judgment. It must be remembered, however, that the question does not stand in this country, as between the courts of the several States, in the same position in which it stands in England, as between the courts of that country and those of foreign countries, by reason of the intervention of our constitutional provisions. Judgments rendered in any State have generally the same force "and effect in all other States as in that in which they are rendered. See, for an account of the decisions on this subject, Robinson v. Prcscott, 4 N. H. 450; 1 Kent, Com. 260, 261. See also Downer v. Shaw. 2 Foster, 277.