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JULY 1829. Court should have determined the issue of nul tiel record

in their favor. Hunt and Condry

W. B. MARTIN and Hopkins, for the appellants. The Mayfield.

transcript is correctly certified, and the proceedings had in Tennessee, though not founded on personal notice, will be

found on examination to be strictly legal under the a Scott's re. statutes of Tennessee. « The statutes of Tennessee require vised laws of the fact of security ship to be tried by a jury, this was Tenn. vol. 1, 70:3, 1171,097, done. This judgment, in Tennessee, could not be revers780. Cooke's ed for error; the case cited from Cook's Reports, which Tenn. Rep. 267, 464,"466. was a similar case, proves this. This Court is bound to

give to this judgment here the same validity it had in Tennessee, and the same credit is due to the record here as there. To affirm the judgment below, would be to refuse to give to the record and judgment of a sister State, its full faith and credit, as required by the Constitution of the United States, and the act of Congress. The act of Congress makes no distinction between proceedings exparte, and those that are not so; then how can any sound argument be drawn, to establish that it shall apply only to cases where both parties are in Court? Why shall it not embrace proceedings had under statute laws, as well as those at common law? Are they not the judicial proceedings and records of a sister State? The presumption must be in furor of the record, and it cannot be presumed the Court in Tennessee was regardless of the rights of the defendant; that would be to give to the record no credit at all. It does appear that all the proof that was necessary was in fact produced before that Court.

There are various proceedings in the several States, which are records, and are so considered, although they are erparte; as the probate of wills, deeds, settling of estates, &c., by which all the world, whether parties or not are bound, whether they have notice or not. All those proceedings are at least prima facie evidence.

This statute of Tennessee, giving the summary remedy required no notice, so none was necessary. It is a statute passed for the benefit of securities, and is of a remedial nature; therefore it should be liberally construed. Cases of this kind differ from cases of attachment, and are distinguishable from them. Such cases are of themselves original proceedings without any notice; but this is a case of implied notice, and growing out of oiher previous proceedings. It has been held that a judgment founded on two

37. 1 Starkio

returns (nihil," would be sufficient to support the judg- JULY 1829. ment of a sister State. a. It must be recollected that in this cause the plea of nul Hunt and

Condry tiel record, is alone pleaded. Several of the cases cited on the other side, go only to shew that other pleas than nul Mayfield. tiel record may be pleaded. Had a special plea alleging a want of jurisdiction, or any other special matter, avoiding 417. 5 Litteli the judgment, been filed, we could have replied and tried 349. such special matter. But the plea of nul tiel record only puts in issue the existence of our judgment, and having in our possession a transcript duly authenticated, shewing the existence of a judgment not reversible in Tennessee, web ChittoP. felt safe under the issue joined. It will also be perceived, 480,481, nete that if we fail in this action, our debt will be lost; for the

215, note J. statute of limitations would bar any other recovery. We 7 Cranch 481. therefore think the Court would be disposed to hesitate,

4 Cowen 2. before affirming the judgment against us. O

3 Wheat. 234. COALTER, for the appellee. The defendant below, and c8 John. 67. 9 who was also defendant in Tennessee, had no notice, ei- 13 John 199. ther actual or constructive, of the proceedings had against 1 Liriell 118.

3 Whart. Dig. him in Tennessee; therefore they are a nullity and void, 3 : 41: and no evidence against him in the Courts of this Siate. 42. 3 Bibb Parties to a suit can only be made by process or by con- d3 Wharton's sent, and in no other way. « In summary proceedings, and Dig. 360, No. proceedings before inferior jurisdictions, every thing muste appear in the record itself, such as notice, &c., which is 2244, 2231. necessary to give the Court jurisdiction, without which, Winor's Ala. the whole proceedings are coram non judice, and void. 1 Stewart

19 John, 162.

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By JUDGE SAFFOLD. The bill of exceptions taken by the plaintiffs in the Court below, brings before this Court the transcript of the record on which the suit was brought, and presents for consideration a question of considerable magnitude; and which, in principle, is also involved in several other cases now pending in this Court. The question relates to the effect of a judgment obtained in a sister State, against a defendant residing out of the same, and where there has been no personal service of the process. No objection is found to the sufficiency of the certificates, either of the clerk or presiding justice of the Court; but it is insisted, and was so adjudged below, that in legal acceptation, this is not a record on which a judgment can be rendered in this State.

It will be observed, that it is not in any way shewn that

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JULY 1929. the defendant Mayfield, was not an inhabitant of Tennesv see, por that he was not subject to the jurisdiction of the

d Court there, ai the time the proceedings were had against Condry

* him. It is not our intention to extend the rule of decision Mayfeld. in this case beyond the principles necessarily involved in

it; or to declare the kind or nature of defence which would be available against a judgment rendered in a dinerent State or nation, where there has been personal service of process, the proceedings conformable to the laws of the country, and the record certiteo in due form. Here there was no personal service of the process, or appearance by the defendant, which would have been tantamount to actual notice; the Court appears to have proceeded according to the law of that State, upon the ground of constructive 10tice, arising from the facts, that the defendant was the principal debtor in the note referred to, the plaintiffs his securities, and that they had paid and satisfied the same, after judgment obtained against them as such, in that State.

This recovery appears to have been authorised by the « Cooke's R. law of that State, and in the form pursued. a Then should 267, 461, 106. Scott's levithe plea of nui tiel record have been sustained to the suit 1 vol. 703, brought on this recovery? or must not the defendant, if he

could avai? himself of the want of jurisdiction in the Court, or other extrinsic matter of defence, have resorted to a special plea in bar? Under an issue of nui tiel record, the Court can only inspect the record of recovery, and unless the want of jurisdiction, or some other insuficiency appear, which would destroy the force and effect of the judgment in the State in which it was rendered, judgment must be given for the plaintiff. On this important subject it would be impossible to reconcile the decisions of the Supreme Court of the Union, with those of the highest tribunals of some of the States; yet it must be admitted, that as the question involves the construction of the Federal Constitution, the decisions of the Federal Tribunal, having authority to control all others, must prevail.

For a time the doctrine prevailed in the State of New York, that a judgment from a sister State was to be regarded as a foreign judgment; that it was only prima facie er

idence of the debt, and that the defendant could plead nil b Armstrong debel to an action of debt brcught upon it. The decisions vs. Carson's however of other tribunals, appear to have vielded in a las 302. Ber good degree to the parumcunt authority. "The Supreinc den vs. Fitch Court of the United States, in the case of Mills v. Dur15 John. 121. c7 Cranch 481 yee, C decided, that the act of Congress of 1790, chap,

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ter 38, prescribed the mode in which the public acts, re JULY 1829. cords and judicial proceedings in each State shall be au

Hunt and thenticated, so as to take effect in every other State: de

Condry claring that the record of a judgment, duly authenticated,

Mayfield. shall have such faith and credit, as it has in the State Court from whence it was taken; and if in such Court it has the effect of record evidence, it must have the same in every other Court within the United States; and that in sueh case, the only proper inquiry is, what would be the effect of the judgment in the State where it was rendered. The same Court in the case of Hampton v. M.Connel, a professing a 3 Whea. 234 to recognise the former doctrine, said that it was held in the case of Mills v. Duryee that the judgment of a State Court should have the same credit, validity and effect, in every other Court in the United States. which it had in the State where it was pronounced; and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other Court in the United States.

I concur however, in the view taken of the decision in Mills v. Duryee, by the Supreme Court of New York, in the case of Shumway v. Stillman, b that the only gene- 04 Cowen 292. ral proposition upon the subject of pleading established by that case, is, that nul tiel record is the only proper general issue in an action of debt on a State judgment;" and the opinion of that Court is implied, that the judgment would not be conclusive, where the Court had not acquired jurisdiction over the person of the defendant; and that in such case, nul tiel record was not the only proper plea. In the case last referred to, this doctrine is explicitly maintained. The same principle is maintained in the late decision of the Supreme Court of the United States, of Biddle v. Wilkins;c tha“when the Court in which the judgment is cl Peters 636. rendered had not jurisdiction over the subject matter of the suit, or when the judgment is absolutely void, this may be pleaded in bar, or may in some cases be given in evidence under the general issue. But the general rule is, that there can be no averment in pleading against the validity of a record, though there may be against its operation."

The effect of these rules of decision is conceived to be, that where the proceedings appear to have been conducted conformably to the laws of the State in which they were had, defence for the want of jurisdiction in the Court, either over the subject matter in contest, or the person of the defendant, can only be made by special plea in bar; con

Hunt and

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JULY 1829., sequently, the judgment rendered in this case must be re

versed, and the cause remanded; unless the plaintiffs be Co, dry

willing to abandon their claim to interest since the date of

the judgment in Tennessee, and accept a rendition of judgMa field.

ment here for the same amount of that judgment. The law of interest in another State is in the nature of evidence, requiring the intervention of a jury, and subject to opposition from the adverse party.

The plaintiffs consenting to abandon the interest, judgment is rendered for the amount of the judgment, on which the suit was brought.

Judgment reversed and rendered. JUDGE WHITE, not sitting.

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1. After the return term of the writ, no exception can be taken, for the want

of an endorsement of the cause of action. 2. Awards being much favored, the Court will intend every thing which the

record will warrant, to sustain a judgment rendered on an award. 3. The award in this cause, held suificient to support the judgment; al

though no declaration was filed.

The record in this cause shews that on the 30th of March, 1824, a writ issued against Richard Tankersley, to answer into Thomas Richardson, as surviving partner of the firm of Richardson f. Blake, in a plea of trespass on the case, to the damage of the plaintiff of $1000. The writ was returnable to the April term of Mobile Circuit Court, and was executed. No endorsement of the cause of action appeared on the writ. After the writ in the record, the following entry appears: "This cause having been referred to the arbitrament of Amos Woodward and William Barnwell, and they having made this award, in the words and figures following, to wit: “We the undersigned referees, appointed to examine into the accounts between the late firm of Richardson and Blake, and Mr Richard Tankersley, have performed the duty required of us, and report and award $160 83 the balance due by Richard Tankersley to Richardson and Blake."

A. WOODWARD,
W. BARNWELL.

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