James D'Arcy, Plaintiff in error, v. Morris Ketchum, Thomas Rogers, and Edward Bement, Copartners, trading under the Name and Firm of Ketchum, Rogers, and Bement, 11 How. 165

Mr. Justice CATRON delivered the opinion of the court. This case comes here on writ of error to.the Circuit Court for the District of Louisiana; the proceeding-below being by petition, according to the practice of that couru It alleges in substance that about December, 1846, George H.

Gossip and Jamies D’Arcy were jointly and severally indebted to Ketchum, Rogers^and Bement, who recovered a judgment against said Gossip and D’Arcy in the Superior Court of the City of New York, for $1,418.81, and costs of suit, with interest on the principal sum after the rate of seven per cent, from February 1st, 1840. “ Which judgment,” says the petition, “was duly and legally obtained, and was and is valid and binding upon said debtors in-the State of New York, where the same was rendered.” Among others, D’Arcy took the following peremptory exception : “ The defendant excepts, that the judgment sued upon is not one upon which suit can be brought against the defendant in this court.” The exception went to the merits, as it alleged that the action was not well founded, and was properly pleaded, in conformity to the 330th

section of the Code of Louisiana Practice, page 128. In the Circuit Court this exception was overruled, obviously on the assumption that the New York judgment was conclusive, and judgment was rendered against the defendant. And as this, was done on an inspection of the record merely as if nul tiel record had befen pleaded, the question is, whether the proceeding in New York bound D’Arcy. It appears, among other things, that Gossip and D’Arcy were partners in trade, doing business in the name of Gossip & Co. They were jointly sued with two others.

Process was served on Gossip, but none on .D’Arcy, who was a citizen of Louisiana, and resided there. Gossip pleaded the-general issue and gave notice of set-off, but at the trial permitted judgment to go against him by default, on which a juiy assessed damages. On this verdict a judgment was rendered jointly against both Gossip and D’Arcy, by the court in Néw York.

This proceeding was according to a statute of that State which provides, that, “ where joint debtors are sued and one is-brought into court on process, he sh'all answer the plaintiff; and if judgment shall pass for plaintiff, he shall have judgment and execution, not only against the party brought into court, but also against other joint debtors named in the original process, in the same manner as if they had all been taken and brought into court by virtue of such process; but it shall not be lawful to issue or execute any such execution against the body or against the sole property of any person not brought into court.” For a settled construction of this statute in the State of New York, we are referred to the following eases': Dando v.

Tremper, 2 Johns. 87; Bank of Columbia v. Newcomb, 6 Johns. 98; Taylor and Twiss v. Pettybone, 16 Johns. 66; and — Carman v. Townsend, 6 Wend. 206. . From these cases it appears that in the New York courts it is held “ that such judgment is valid, and binding on an absent defendant as prima facie evidence of a* debt, reserving to him the right to enter again into the merits, and show that he ought not to have been charged,” should he be sued on the judgment; and furthermore, that the original contract is merged and extinguished by. the judgment.

It follows, that, as D’Arcy’s. defence was in effect a demurrer to the record evidence, it could not have been made in the courts of New York. And this brings up the question, whether the New York statute, and the judgment founded on it, bound a citizen of Louisiana not served with process ; or, in other words, whether the judgment had the same force and effect in Louisiana that it had in New York. It is a question of great stringency.

If it be true that this judgment has force and effect beyond the local jurisdiction where it was rendered, joint debtors may be sued in any numbers, and if one is served with process, judgment may be rendered against all; by which means the debt, will be established: and as it must happen in numerous in- , stances that one debtor may be.found in a State carrying on so great a portion of our commerce as New York does, this mode of proceeding against citizens of other States and per- . sons residing in foreign countries may have operation in all parts of the world, and especially in the United States.

If New York may pass such laws, and render such judgments, so may every other State bind joint debtors who reside elsewhere, and who are ignorant of the proceeding. That countries foreign to our own disregard a judgment merely against the person, where he has not been served with process nor had a day in court, is the familiar rule; national comity is never thus extend* ' The proceeding is deemed an illegitimate assumption of power, and resisted as mere abuse.

Nor has any faith and credit, or force , and effect, been given to such judgments by any State of this Union, so far as we know; the State courts have uniformly, and in many instances, held them to be void, and resisted their execution by a second judgment thereon; and in so holding they have altogether disregarded, as inapplicable, the Cor-'titution and laws of the United States.

We deem it' to be fret rom controversy that these adjudications are in conformity to the well-established rules of international law, regulating governments foreign to each other ; and this raises the question, whether o„ur federal Constitution and . the act of Congress founded on it have altered the rulé ? The Constitution declares, that “ full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of .every other State.

And the Congress may by general laws prescribe the manner in' which such acts, records, and proceedings shall be proved, and the effect thereof.” By the act of May 26,1790, Congress prescribes, first, the mode in which the judicial records of one State shall be proved in the tribunals of another; to wit, that they shall be ' authenticated by a certificate of the clerk under the seal of the court, with a certificate of the ..presiding judge that the clerk’s attestation is in due form.

Secondly, “ And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have, by law or usage, in the .courts of the State from whence the said records are or shall be taken.” These provisions were considered by this court in the case of Mills v.

Duryee, 7 Crunch, 483, where it was held that the recited sentence of the act of 1790 did declare the effect of a State judgment, by enacting that it should have such faith and credit in every other State as it had in the courts of the State from whence it was taken; and that a judgment,.where the defendant had been served with process, concluded such defendant from pleading nil debet when sued in another State on the record, and consequently from going behind the judgment and reexamining the original cause of action ; that he was concluded by the record, in like manner as he stood concluded in the State where the judgment was rendered.

This decision was made in 1813, and has since been followed as the binding and proper construction of the act of 1790, in cases where process has been served. But, as was then predicted, (and as has. been manifest ever since,) great embarrassment must ensue if the construction, on the facts of . that particular case, is applied to all others, without exception. In construing the act of 1790, the law as it stood when the act was passed must enter into that construction; so that the existing defect in the old law may be seen, and its remédy by the act of Congress comprehended.

Now it was most reasonable, on. general principles of comity and justice, that, among States and their citizens united as ours are, judgments rendered in one should bind, citizens/of other States, where defendants had been served with process, or voluntarily made defence. As these judgments, howeVer, were only #rima facie evidence, and subject to be inquired into by plea wh. n sued on in another State, Congress saw proper to remedy the evil,, and to Ijrovide that such inquiry and double defence should not be al* owed. To this extent, it is declared in the case of Mills v.

Duryee, Congress has gone in altering the old rule. Nothing more was required. On the other hand, the international law as it existed among the States in 1790 was, that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void .within the foreign State, when the defendant had not been ■ served with process or voluntarily made defence, because neither the legislative jurisdiction, nor that of courts of justice, had binding force.

Subject to this established principle, Congress also legislated ; and the question is, whether it was intendeds to overthrow this principle, and to declare a new rule, which would bind the citizens of cine State to the laws of another; as must be the case if the laws of New York bind this defendant in Louisiana. There was no evil in this part of the existing law, and no remedy called'for, and in our opinion Congress did not intend to overthrow the-old ride by the enactment that such faith and credit should be given to records of judgments as they had in the State where made.

The language employed is not only fairly open to construction, but the result arrived at by the court below depends on construction; and when we look to the previous law, and the evil intended to be remedied by the framers of'the Constitution and by Congress, we cannot bring our minds to doubt, that the act of 1790 does not operate on, or give additional force to, the judgment under consideration; we concur with the various decisions made by State courts, holding that Congress did not intend to embrace judicial records of this description, and are therefore of opinion that the defendant’s exception was valid, and that the judgment must be reversed; and so order.

Order. This cause came on to be heard on the transcript of the. record from the Circuit Court of the United States for the' District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Gourt in this cause be, and-the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions for further proceedings to be had therein, in conformity to the opinion of this court.