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Vol. IV.]

[No. 3.

PennywIT v. Foote.

the February term, A. D. 1858, “ the said defendants, by their attorney, Jesse Turner, entered their appearance,” and gave their consent to the filing of an amended declaration.

Afterward, in August, 1858, defendants, by their attorney, appeared, and, on his motion, leave was granted them to take testimony by depositions, which appears to have been done by defendants as well as plaintiffs. At July term, 1859, the defendants, by said attorney, filed their plea in the nature of a general denial.

Finally, at the November term, 1861, “ the said parties, by their respective attorneys, appear, and neither party requiring a jury, this cause is submitted to the court, sitting as a jury, by consent of parties ;” and, after hearing the evidence, judgment was rendered against the defendants, whose attorney filed a motion for a new trial, which being overruled, he took a bill of exceptions, which is also made part of the record.

Exhibit No. 2 is composed of extracts from the Constitution of Arkansas, adopted March 4, 1861, by a convention called in due form by act of the legislature, passed January 16, 1861. This convention, on the 6th of May, 1861, adopted an ordinance of secession in the usual form, and also this Constitution, and united with other states in forming the new government called the Confederate States of America, and as such state engaged in the war of the rebellion.

Under this new Constitution, it was declared that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate should continue as if no change had taken place in the Constitution or government of the state, and all process previously issued should be as valid as if issued after its adoption.

It was further declared that all officers under the authority of the state shall continue to hold office until their terms expire under the provisions of this new Constitution, and all were required to take an oath to support the Constitution of the Confederate States of America, as well as of the state, and to abide by and observe all the ordinances passed by the convention aforesaid. Upon this foundation, a state government was set up; the state, from its stand-point, was an independent state, united by compact with the confederacy. As such, she resorted to arms.

King, Thompson f Avery, for the plaintiffs in error. I. The record of the judgment in the Arkansas court was entitled to the same faith and credit which it had by law and usage in that state. Constitution of United States, art. 4, sec. 1; Act of Congress, May 26, 1790, 1 Stat. at Large, 122. As to its validity by the law of Arkansas, see Hawkins v. Filkins, 24 Ark. 286, 295, 296, 316, 326 ; Beller v. Page, Ib. 363; Belding v. Godwin, Ib. 486; Art. 4, sec. 1, Constitution of United States ; White v. Cannon, 6 Wal. 443; Hughes v. Stinson, 21 La. Ann. 540; Hill v. Boyland, 40 Miss. 618; Harlan v. The State, 41 Miss. 566; Brown v. Wright, 39 Ga. 96; Bennett v. Morley, 10 Ohio, 100; Mills v. Duryee, 7 Cranch, 481 ; Mayhew v. Thatcher, 6 Wheat. 129; Caldwell v. Carrington, 9 Pet. 86; McElmoyle v. Cohen, 13 Pet. 312; Spencer v. Brockway, 1 Ohio, 260; Silver Lake Bank v. Harding, 5 Ohio, 545; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108:Arndt v. Arndt, 15 Ohio, 33; Scott v. Pilkington, 2 Best & Smith (110 Eng. Com. Law), 10; Jones v. Walker, 2 Penn. 689; Lessee of Le Grange v. Ward, 11 Ohio,

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Vol. IV.]

PENNYWIT v. FOOTE.

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10, 409; Pair treated as erebellion

557; Daniels v. Stevens, 19 Ohio, 222; Peck v. Jenners, 7 How. (S. C.) 612; 17 Ohio, 409; Paine's Lessees v. Mooreland, 15 Obio, 445. But in the superior court it was treated as ex parte, and a nullity.

II. The states which seceded in rebellion did not thereby lose their existence or " independent autonomy.” Arkansas continued to be a state, and a state of the Union, and the functions of all departments of the state - legislative, executive, or judicial — were unimpaired. Their acts and proceedings were valid, except such as were in aid or furtherance of the rebellion. The confederacy and its measures are held void because it was organized by and for treason only. But the states stood upon a different footing. Texas v. White, 7 Wal. 700; Sprott v. United States, 20 Wal. 459, 464; United States v. Insurance Companies, 22 Wal. 99; Horn v. Lockhart, 17 Wal. 580; Taylor v. Thomas, 22 Wal. 479, 489.

III. The court erred in applying to a defendant the doctrine of persona standi in judicio, which in war suspends contracts by reason of the plaintiff's disability to sue in the enemy's country. 1 Kent Com. 68; Griswold v. Waddington, 16 Johns. 438. The plea of alien enemy is available only against the plaintiff, and even then is most strictly construed. 1 Chitty Pi. 479 ; Clark v. Morey, 10 Johns. 69; 3 Camp. 150, 153; 13 Ves. 71, 72, and note. Alien enemy may be sued, though he cannot bring suit. Miller, J. 18 Wal. 106, 111. And as to this see White v. Cannon, 6 Wal. 406; McVeigh v. United States, 111 Wal. 259; University v. Finck, 18 Wal. 106; Van Brymen v. Wilson, 9 East, 321 ; Buckly v. Lyttle, 10 Johns. 117.

The suit in Arkansas was begun, and the defendants, by their attorney, had appeared and pleaded prior to the war. The jurisdiction of the court continued unbroken. The war would have been ground for a continuance, if applied for, but did not abate the suit.

IV. Giving the record due faith and credit, it disclosed the fact that the defendants, by their attorney, submitted the cause and went to trial without objection. The attorney was appointed before the war. No revocation of his authority was shown. The war did not work a revocation. Buchanan v. Curry, 19 Johns. 137; Ward v. Smith, 7 Wall. 447 ; Botts v. Crenshaw, Chase's Dec. 224; Anderson v. Bank of Cape Fear, Ib. 535; Manhattan Ins. Co. v Warwick, 20 Grattan, 614; Monsseaux v. Urquhart, 19 La. Ann. 482.

V. The authority of an attorney at law is presumed, and the submission of the case by the defendants' attorney to the Arkansas court was conclusive upon them, unless relieved against, in the manner pointed out in Abernathy v. Latimore, 19 Ohio, 286 ; Treasurer of Champaign County v. Norton, 1 Ib. 270; Porter v. Critchfield, 3 Ib. 518; Pillsbury v. Dugan, 9 Ib. 117. The rights of defendants as citizens were not impaired. They had their day in court. 1 Ohio, 270.

McGuffey, Morrill & Strunk, and Geo. Hoadly, for defendants in error. 1. As to the record of a judgment of one state called in question in another, U. S. Constitution, art. 1, sec. 1; U. S. Stat. at Large, 122 ; Bartlett v. Knight, 1 Mass. 401; 2 Parsons on Contracts, 607; Hitchcock v. Aicken, 1 Caines, 460; Thomison v. Whitman, 18 Wall. 457; Maxwell v. Stewart, 22 Ib. 77.

II. As to the validity of a judgment rendered against a resident of a

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state adhering to the Union during the late war, by a court of a seceding state, &c.; and as to whether jurisdiction that had once attached was suspended by the war, Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232; The Prize Cases, 2 Black, 635; Livingston v. Jordan, vol. 10, No. 1, Am. Law Reg. 55; Hanger v. Abbott, 6 Wall. 632; The Protector, 9 Ib. 687 ; Dean v. Nelson, 10 Ib. 158; Railroad Co. v. Trimble, Ib. 367; Ludlow v. Ramsey, 11 Ib. 581; Levy v. Stewart, Ib. 244; Conley v. Bueson, 1 Heiskell (Tenn.), 145; Texas v. White, 7 Wall. 100; University v. Finch, 18 Ib. 106 ; Galpin v. Page, Ib. 350; Mitchell v. U. S. 21 Ib. 350, 368; Fretz v. Stover, 22 Wall. 198, 206; Taylor v. Thomas, Ib. 479, 489; Ross v. Jones, Ib. 579, 586 ; Perkins v. Rogers, 35 Ind. 124; Lasese v. Rochereau, 17 Wall. 437; Cappell v. Hall, 7 Ib. 542; McVeigh v. U. S. 11 Ib. 259.

III. Whether the government of Arkansas had a de facto or a de jure existence, or was merely a usurpation, the court is referred to 7 Eng. Stat. at Large, 436; Bolton v. Arme, Cases in Chancery, 55; Harrison v. North, Ib. 83; Latham v. Clark, 25 Ark. 574; Robertson v. Sloss, 7 Coldw. 144; Harrison v. Gilmer, 20 La. Ann. 242; Twiss's Law of Nations, 297; Griswold v. Waddington, 15 Johns. 438; The Prize Cases, 2 Black, 635; Martin v. Hewitt, 44 Ala. 418; Noble of Co. v. Collins f Co. Ib. 554; White v. Texas, 7 Wall. 701; Bank of Tenn. V. Woodson, 5 Coldw. 176 ; Conley v. Bueson, 1 Heiskell, 145; Cassell v. Backreck, 42 Miss. 56; Thomas v. Tyler, 42 Ib. 651.

JOHNSON, J. The facts disclosed present for our consideration important and novel questions growing out of the late civil war. They involve a determination of the legal effect of the secession of the State of Arkansas, and the war that ensued, upon the power of the courts of that state, during the war, to render judgment against a citizen of Ohio, and also the extent to which faith and credit should be given to a judgment thus rendered, under the Constitution and laws of the United States.

On behalf of the plantiff, it is claimed that full faith and credit should be given to this judgment, under article 4, section 1 of the Constitution of the United States, as a judicial proceeding of a state ; but if it is not such, then at least it is entitled to all the verity of a foreign judgment, as the proceeding of a de facto court, having jurisdiction of the case and the

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parties.

The defendants insist that this is not the record of a court of a state of the Union; that while the act of secession was void, and the state was never legally out of the Union, yet the government that was set up by the people of the state was a revolutionary usurpation in violation of the Constitution; that this government was a government of force, maintained by arms; that all acts, legislative, executive, and judicial, were, as to the United States and its citizens, null and void.

It is further insisted that this was a war, in the sense of public law, and that the courts of Arkansas had no power to proceed to judgment against defendants; that they were by the war, and the duty which was imposed, as well as by the danger attending it, forbidden to appear and defend.

It appears that this action was begun by the plaintiffs in the circuit court of Crawford County in 1857.

Personal appearance was entered and issue joined prior to the war.

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inde appearede was tried onfedera

After the state had joined the Southern Confederacy, and while it was in arms against the Union, the case was tried. The attorney for defendants, who was retained and appeared before the war, continued to do so on the trial of the case, and consented to a trial. It is claimed these facts gave the court jurisdiction over the person, but the other side insists that such appearance could confer no power on the court to do an unauthorized act, and that the war worked a revocation of this agency.

1. Article 4, section 1, of the Constitution of the United States provides 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 and proceedings shall be proved, and the effect thereof.” Under the power thus conferred, Congress passed the Act of May 26, 1790, which provided 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 the certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the attestation is in due form. And the said records and 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 said records are or shall be taken.”

Leaving out of view for the present the facts relied on as a defence in this case, let us inquire as to the scope and meaning of this constitutional provision and the act of Congress.

What acts, records, and judicial proceedings are entitled to full faith and credit, and what is a judgment of a court of a state that imports absolute verity ?

By the Act of 1790, a judgment which is valid in the state where rendered becomes, in the other states, a debt of record, not reëxaminable upon the merits, but it does not carry with it into another state the efficacy of a judgment against person or property that can be enforced by execution. To give it that force in another state, it must by action be made the judgment of such other state.

Hence it follows that such judgment is only evidence in another state that the subject matter of the original suit has become a debt of record, which cannot be avoided by a plea of nul tiel record. McElmoyle v. Cohen, 13 Pet. 330.

In an action on such judgment in another state, whatever pleas would be good in the state where rendered would be good in such other state. Hampton v. McConnell, 3 Wheat. 234.

The constitutional provision was not intended to confer a new power of jurisdiction on the courts of any state, but to prescribe the effect in other states of the acknowledged jurisdiction over persons and things within the state. Every judgment depends, for its force and validity, on the competency and authority of the tribunal which pronounces it, and may be assailed by showing a want or failure of jurisdiction over the subject matter or the person, even though absolutely conclusive in other particulars.

The manifest design of the Constitution was to give faith and effect to

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valid judgments, and not to enable the courts of one state to exercise a usurped or illegal authority over the citizens of other states of the Union, who are not amenable to the jurisdiction of the tribunal.

Without the constitutional provision and the Act of 1790, the judgments of one state would stand in the tribunals of the others on the same footing as foreign judgments, and only be respected on the principles of comity between nations, and not as a duty imposed by the paramount organic law. How far such judgments of a state of the Union, when duly authenticated, are entitled to faith and credit, and are conclusive, is a problem by no means free from difficulty. It has been productive of numerous decisions, not always harmonious.

One of the earliest cases was Bissell v. Briggs, 9 Mass. 462, where it was said: “Whenever, therefore, a record of a judgment of any state is produced as conclusive evidence, the jurisdiction of the court is open to inquiry. And upon the same principle, if a court of any state should render a judgment against a man not within the state, nor bound by its laws, nor amenable to the jurisdiction of its courts; and if that judgment should be produced in any other state against the defendant, the jurisdiction of the court might be inquired into, and if a want of jurisdiction appeared, no credit would be given the judgment.

“ In order to entitle the judgment rendered to the full faith and credit mentioned in the federal Constitution, the court must have jurisdiction, not only of the cause, but of the parties.”

The same view was declared and enforced in Hall v. Williams, 6 Pick. 222.

In Rose v. Himely, 4 Cranch, 269, Chief Justice Marshall says: “Upon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment. ... In some cases, the jurisdiction depends as well on the state of things as on the constitution of the court."

For a long time after the adoption of the Constitution, it was supposed that its effect, in connection with the Act of 1790, was to render the judgments of each state equivalent to domestic judgments in every other state; and this view was supported by the language of the Court in Mills v. Duryee, 7 Cranch, 484. It was so held in that case, and that a plea of nil debet was not a proper plea to an action on such judgment.

So far as the merits of that case are concerned, the doctrine there laid down is still adhered to; but as to the validity of a judgment dependent on the power of the court, quite a different view is now entertained.

Mr. Justice Story, who delivered that opinion, elsewhere says : “But this does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject matter. The Constitution did not mean to confer upon the states a new power or jurisdiction, but simply to regulate the acknowledged jurisdiction over persons and things within their territory.” Story on Const. sec. 1313. Again he says: “It did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity and credit to them as evidence.” Story on Conflict of Laws, sec. 609.

Chancellor Kent (1 Kent Com. 281, and vol. 2, p. 95, and note) says:

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