*

*

if the origin of this jurisdiction do not appear, or if 610 it be of the ordinary kind admitted among civilized nations, and established in an * authentic manner, it will *611 be presumed to be legitimate; if, however, it be of unusual origin or character, or not yet certainly established, then its legitimacy must be proved by the party relying upon it. (2) It is not, however, necessary, that the authority on which the jurisdiction of the tribunal rests, should be proved to be legitimate de jure as well as de facto. It is generally 612 enough if it be de facto established, and the tribunal be commissioned by the government in which the sovereign power of the country is actually vested. (a)

Another essential is, that the defendant in the foreign action. had such personal notice as enabled him to defend himself; or that his interests were otherwise actually and in good faith protected. (b) And the notice must be such as the court from which it issued has authority to give. (c) If it be by summons, and in the State in which it issued, that is equivalent to personal notice, it will so be held in other States as to the judgment founded upon it. (d)

It seems to be held, that a plaintiff who has recovered a judgment abroad may elect to sue at home on that judgment, or on the original cause of action, because there is no merger. (e)

The relations between the several States of the Union are peculiar. In some respects they are held to be foreign to each other, as they are for most purposes in the law of admiralty; and in other respects not foreign, excepting so far as this is necessa rily implied in their independence of each other. On this subject the Constitution of the United States 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

Thompson v. Whitman, 18 Wall. 457; Knowles e. Gaslight, &c. Co. 19 Wall. 58; McDermott e. Clay, 107 Mass. 501, Brown v. Eaton, 98 Ind. 591: Thorn v. Salmonson, 37 Kan. 441; Wood v. Wood, 78 Ky. 624; Napton v. Leaton, 71 Mo. 358.]

(z) Snell v. Foussat, 3 Binn. 229, n.; Cheriot v. Foussat, id. 220.

(a) Bank of North America v. M'Call,

4 Binn. 371.

(b) See ante, p. 588, n. (1), and supra, n. (y).

(c) Therefore, where a court in Rhode Island ordered personal notice to be given a defendant in Massachusetts, which was done, it was not such a notice as would suffice for the foundation of a judgment on which an action could be maintained in Massachusetts. Ewer v. Coffin, 1 Cush. 23.

(d) Rocco v. Hackett, 21 Law Rep. 358; and see Barringer v. King 5 Gray, 9. (e) Smith v. Nicolls, 5 Bing. N. C. 208; Hall v. Odber, 11 East, 118.

1 And a judgment by default will not be enforced unless the defendant was resident or domiciled in the jurisdiction where the judgment was given. Schibsby v. Westenholz, L. R. 6 Q. B. 155; Burn v. Bletcher, 23 U. C. Q. B. 28.

Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." (f) In execution of this power, the First Congress passed a statute, providing "that the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States by the attestation of the clerk, and the seal of the court annexed, if there be a seal,

together with a certificate of the judge, chief justice, or *613 presiding magistrate, as the case may be, that the * said attestation is in due form. 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." (g)

In the construction of these clauses, many questions have been raised, and a great diversity of opinion manifested. The more important of these questions we have, however, already considered.

It has been held, that the provisions of the statute must be strictly complied with. Thus, it will be noticed that the records are to be attested by the seal of the court, "if there be a seal;" therefore the records of a court not having a seal may be sufficiently attested otherwise. But there is no similar phraseology as to the attestation of the clerk; that is therefore absolutely requisite; and, consequently, the proceedings of a court which has no clerk, as a court held by a justice of the peace, cannot be authenticated in the terms of the statute and therefore cannot be entitled to the whole privilege which purports to be given by the clause in the Constitution. (h)

There remains to be considered, the operation of the law of place upon the insolvent laws of this country. But these laws are, in this respect, principally influenced and affected by the clause in the Constitution which forbids the several States from passing laws impairing the obligation of contracts; and we shall advert to this subject when we speak specifically of that clause, and of the law of bankruptcy.

(f) Art. 4, § 1.

(g) 1 U. S. Stats. at Large, 122, ch. xxxvii.

(h) This question is very fully considered in Snyder v. Wise, 10 Pa. 157; and the decision there is in accordance with the text, and with Warren v. Flagg, 2 726

Pick. 448; Robinson r. Prescott, 4 N. H. 450; Mahurin v. Bickford, 6 id. 567; and Silver Lake Bank v. Harding, 5 Ohio, 545. But, for cases which incline to an opposite opinion, see Bissell v. Edwards, Day, 363; Starkweather v. Loring, 2 Vt. 573; and Blodgett v. Jordan, 6 id. 580.

1. OF THE PARTY TO WHOM PAYMENT SHOULD BE MADE.

* 614

PAYMENT to an agent in the ordinary course of business binds the principal, unless the latter has notified the debtor beforehand that he requires the payment to be made to himself. (a) And circumstances might make a payment to the debtor's own agent sufficient. (b) So payment to an attorney is as effectual as if made

(a) Favenc v. Bennett, 11 East, 36; Hornby v. Lacy, 6 M. & S. 166; Drinkwater v. Goodwin, Cowp. 251. So if one allows an agent to trade in his own name, and as carrying on business for himself, payment to such agent is a bar to an action by the principal. Gardiner v. Davis, 2 C. & P. 49. And see Coates v. Lewis, 1 Camp. 444; Moore v. Clementson, 2 id. 24. And in Capel v. Thornton,

1 Thus a payment to a corporation agent, held out as an agent with general powers, will bind the corporation. Howe Machine Co. v. Ballmeg, 89 Ill. 319. See Drinan v. Nichols, 115 Mass. 353; Swett v. Southworth, 125 Mass. 417; Kinsman v. Kershaw, 119 Mass. 140. Payment by a debtor to an agent, before notice of the revocation of the latter's authority to receive it, will discharge the liability. Packer v. Hinckley Locomotive Works, 122 Mass. 484; Ins. Co. v. McCain, 96 U. S. 84; Braswell v. Am. Ins. Co. 75 N. C. 8; Ulrich v. McCormick, 66 Ind. 243; Meyer v. Hehner, 96 Ill. 400; Rice v. Barnard, 127 Mass. 241. A principal must at once repudiate a payment made to an agent without authority to receive it. Harris v. Simmerman, 81 Ill. 413; Bertholf v. Quinlan, 68 Ill. 297; Aultman v. Lee, 43 Ia. 404. Payments to one supposed to be a principal, before notice of his agency, were held good as against the real principal in Peel v. Shepherd, 58 Ga. 365; Eclipse Windmill Co. v. Thorson, 46 Ia. 181. A broker, not being intrusted with the possession of goods, is not entitled to receive payment. Whiton v. Spring, 74 N. Y. 169; Irwine v. Watson, 5 Q. B. D. 102, 414. Payment to a selling agent by the buyer will not be good unless his principal has held him out as having such authority. Clark v. Smith, 88 Ill. 298. But payment to a trav elling salesman, apparently authorized to collect, is payment to the principal, although the bills sent out for the goods were inscribed "Payable at office," the vendee not having seen these words. Putnam v. French, 53 Vt. 402. It has been held that payment to the servant of a contractor who is to furnish materials and labor, made without the contractor's knowledge and before any proceedings in the nature of a mechanic's lien have been begun by the servant, is not a payment to the contractor, Walker Newton, 53 Wis. 336; and that payment to a de facto officer appointed by a board of fire commissioners is a defence to an action by a de jure officer against a city for his salary during the time that he was wrongfully displaced, Terhuner. Mayor, &c. of New York, 88 N. Y. 247. Payment to an agent in Confederate money was held good in Maloney v. Stephens, 11 Heiskell, 738. — K.

to the principal himself; (c) but not so to an agent of the * 615 attorney* appointed by the attorney to sue the debtor. (d) 1 And where one contracts to do work and sues for the price, the defendant may prove that the plaintiff had a partner in the undertaking, and that he has paid that partner. (e) Payment to the creditor's wife will not be a good payment; (ƒ) unless she was his agent, either expressly or by course of business. (g) She has no authority, as wife, to receipt for her husband's claims, although she be the meritorious cause. (h) An auctioneer or other agent employed to sell real estate has no implied authority to receive payment. (i) In case of sales by auction, the auctioneer has usually, by the conditions of sale, authority to receive the deposit, but not the remainder of the purchase-money. (j)2

logues to be circulated, stating that a quantity of ivory was to be sold on his account on a certain day by auction, subject to the condition, among others, that payment was to be made on delivery of the bills of parcels. The defendant, having received one of the catalogues, instructed his broker to purchase certain lots on his account. The broker did so, and shortly after drew bills on the defend. ant for the amount, which were accepted and paid at maturity. In an action by the plaintiff against the defendant for the price of the ivory, the court held, that the payment of the bills drawn by the broker constituted a good defence, inasmuch as the plaintiff, by the condition of sale contained in his catalogues, had authorized the defendant to believe that the ivory had been paid for by the broker on delivery of the bills of parcels.

(c) Powell . Little, 1 W. Bl. 8; Yates v. Freckleton, 2 Doug. 623; Hudson v. Johnson, Wash. Va. 10; Branch ". Burnley, 1 Call, 147; Jackson v. Rome, 78 Ga. 343. And an attorney has authority to receive payment as well after judgment has been recovered as before. Brackett v. Norton, 4 Coun. 517; Erwin v. Blake, 8 Pet. 18; Gray v. Wass, 1 Greenl. 257; Lewis. Gamage, 1 Pick. 347. But an attorney has no authority to receive anything but money in payment of his client's debt, nor a part in satisfaction of the whole, nor to assign the execu tion. Savoury ". Chapman, 8 Dowl. 656; Jackson v. Bartlett, 8 Johns. 361; Kellogg v Gilbert, 10 id. 220; Carter v. Talcot, 10 Vt. 471; Gullett v. Lewis, 3 Stew. 23,

Kirk v. Glover, 5 Stew. & P. 340; Wilson v. Wadleigh, 36 Me. 496.

(d) Yates v. Freckleton, 2 Doug. 623 For an attorney-at-law, by virtue of his ordinary powers, cannot delegate his authority to another, so as to raise a privity between such third person and his principal, or to confer on him as to the principal, his own rights, duties, and obligations. Johnson e. Cunningham, 1 Ala. 249; Kellogg v. Norris, 5 Eng. (Ark.) 18. So payment to a sheriff employed by an attorney to serve a writ will not discharge the debt. Green . Lowell, 3 Greenl. 373; Waite e. Delesdernier, 15 Me. 144.

(e) Shepard v. Ward, 8 Wend. 542. And it is a general rule, that payment to one partner is good, and binds the firm. Duff r. The East India Co. 16 Ves. 198; Yandes v. Lefavour, 2 Blackf. 371; Gregg . James, Breese, 107; Porter v. Taylor, 6 M. & S. 156, Scott e. Trent, 1 Wash. (Va.) 77. Even after dissolution. King v. Smith, 4 C. & P. 108. And see Morse e. Bellows, 7 N. H. 568. So payment to one of two joint creditors is good, although they are not partners in busi

1 Nor to a person in an attorney's office, who gave a receipt in the attorney's name. O'Connor v. Arnold, 53 Ind. 203.- – K.

2 And one having authority to receive payment of interest has not implied authority to receive payment of the principal. Stiger v. Bent, 111 Ill. 328; Smith v.

One may be justified in making payments to a party who is sitting in the creditor's counting-room, and apparently intrusted with the transaction of the business, and authorized to receive the money, although he be not so in fact. (k)1 In general it is only a money payment that binds the principal; (1) so that he is not affected by any claim which the debtor may have against the agent. (m) And an agent authorized to receive payment

in money cannot bind his principal by receiving *616 goods, (n) or a bill or note. (0)

3

Payment by bankers to one of several persons who have jointly deposited money with them, and who are not partners, or to one of several joint trustees, does not discharge the bankers as to the others, unless they had authorized the payment. (p) And pay

(k) Barrett v. Deere, Moody & M. 200. And see Wilmot v. Smith, id. 238; Moffat v. Parsons, 5 Taunt. 307. But payment to an apprentice, not in the usual course of the creditor's business, but on a collateral transaction, has been held not to discharge the debt, although made at the creditor's counting-room. Sanderson v. Bell, 2 Cromp. & M. 304.

(4) Thorold e. Smith, 11 Mod. 71. (m) Thus, where an assured who resided at Plymouth employed an insurance broker in London to recover a loss from the underwriters, and the latter adjusted the loss by setting off in account against it a debt due from him to the underwriters for premiums, and the broker became bankrupt, and never paid the money to the assured, it was held, that the set-off in account between the underwriters and the broker was not payment to the assured, inasmuch as the broker had only authority to receive payment in money. Bartlett v. Pentland, io B. & C.

760.

508.

(n) Howard v. Chapman, 4 C. & P.

(0) Sykes v. Giles, 5 M. & W. 645; Ward v. Evans, 2 Ld. Raym. 928; Broughton v. Silloway, 114 Mass. 71. And see Townsend v. Inglis, Holt, N. P. 278.

(p) Innes v. Stephenson, 1 Moody & R. 145. The depositors here were coassignees of a bankrupt, and the money had been drawn out on the check of two out of three depositors, but the name of one of the two was forged. Lord Tenterden said: "that the case was a very clear one; that money was paid to bankers by three persons not partners in trade; that it had been stated that one of them could draw checks so as to bind the others, but that was not the law, and to allow it would defeat the very object of paying the money in jointly; and it must be well known to the jury that it was not the practice, unless the persons drawing stood in the relation of partners." And see, to the same effect, Stone v. Marsh,

Kidd. 68 N. Y. 130. See Crane v. Gruenewald, 120 N. Y 274. to collect bills authority to cancel a bill for less than the full Scotland. Dominion Bank, [1891] App. Cas. 592.

Nor has one authorized amount of it. Bank of

A shopman, to receive payment over the counter only, cannot receive it elsewhere. Kaye v. Brett, 5 Ex. 269; Clark e. Smith, 88 Ill. 298; Hirshfield v. Waldron, 54 Mich. 649. See Harris v. Simmerman, 81 Ill. 413; Eclipse Windmill Co. v. Thorson, 46 Ia. - K.

181.

2 See Hogarth v. Wherley, L. R. 10 C. P. 630. Delivery of money is in itself evidence of payment of a debt and not of a loan. Downey v. Andrus, 43 Mich. 65. The setting off an agent's debt by a debtor is not payment as against the principal. Bevis v. Heflin, 63 Ind. 129; Aultman v. Lee, 43 Ia. 404. — K.

3 As "wheat" in part payment for a threshing machine as agreed by an agent. Aultman . Lee, 43 la 404. See Drain v. Doggett, 41 Ia. 682. Or a "piano," although the principal confirmed the previous act of the same agent in receiving a pipe and a watch and chain. Bertholf v. Quinlan, 68 Ill. 297. Harris v. Simmerman, 81 Ill. 413, held, that the receiving an old safe taken by an agent in part payment for a new one, which he forwarded, rendered such payment valid. — K.