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V. C., in Hodgkinson v. Crowe, I think it is | debt, and that it lies upon the defendant to conclusive against any judge being allowed impeach the justice thereof, or to show the to say from his own view that such a same to have been irregularly or unduly obcovenant ought to be introduced.” In | tained; it is therefore ordered and adjudged Church v. Brown, Lord Eldon, citing that the said several interlocutors complained from Davidson's Precedents, says: “ The re of be, and the same are hereby reversed ;' sult of the authorities appears to be, that in a and though there are a few leaning towards case where the agreement is silent as to the the conclusiveness of foreign judgments particular covenants to be inserted in the lease, (Burroughs v. Jamineau, Mosely, 1; Boucher and provides merely for the lease containing v. Lawson, Cas. Temp., Harkwicke, 85, 89; • usual covenants,' or, which is the same thing, | Gold v. Canham, rep. in note to Kennedy v. is an open agreement without any reference to | Cassilis, 2 Swanst. 313, 325), the large majorthe covenants, and there are no special circum- | ity of the cases decided late in the eighteenth, stances justifying the introduction of other and early in the nineteenth century hold the covenants, the following are the only ones same view as that expressed in the order of which either party can insist upon, namely, reversal quoted. Walker v. Witter, 1 Doug. covenants by the lessee: 1, to pay rent; 2, to i 1; Hunter v. Potts, 4 Term R. 182; Hall v. pay taxes, except such as are expressly paya | Odber, 11 East, 118; Herbert v. Cook, Willes, ble by the landlord; 3, to keep and deliver up | 36 n; Bayley v. Edwards, 3 Swanst. 703 ; the premises in repair; and, 4, to allow the Dupleix v. De Rover, 2 Vern. 540. In the case lessor to re-enter and view the state of repair, of Isquierdo v. Forbes, 1 Eq. Ca., Abr. 83, pl. and the usual qualified covenant by the lessor 3, Ld.Ch.Hardwicke went so far as to hold himfor quiet enjoyment by the lessee.”

self entitled to examine into the justice of a decision of the House of Lords, because it was an

affirmance of a decree on the chancery side of JUDGMENTS OF SISTER STATES.

the Court of Great Sessions in Wales, whose There are probably few, if any, Federal judgments he considered clearly liable to restatutes on the proper interpretation of which examination as to the merits. In the case of there are more, and more conflicting, decisions Phillips v. Hunter, 2 H. Bl. 402, Ld. Ch. J. than on that of the act of May 26, 1790, de- | Eyre evolved a most surprising and illogical claring that the records and judicial proceed distinction, wbich was afterwards widely recogings of any state, authenticated as required nized in this country, and perhaps would still by said act, “shall have such faith and credit be in some courts, although now totally abangiven to them in every court within the United doned in England, holding that a foreign States as they have, by law or usage, in the judgment was examinable on its merits when courts of the state from whence the said it was sued upon as a cause of action, but records are or shall be taken;" and it will saying, “in all other cases we give entire probably require several further decisions by faith and credit to the sentences of foreign the Supreme Court of the United States for courts, and consider them as conclusive upon the final settlement of all the perplexing | us." In view of the extent to which this disquestions to which it is likely to give rise. | tinction was for a time followed (see cases *At the time of its enactment, and for some cited in Freeman on Judgments, 592), it is time after, the weight of authority in England curious to remark that it was merely the dicin regard to the force and effect of foreign tum of Ld. Ch. J. Eyre in that case, unsupjudgments was, that such judgments were | ported by the citation of any authority, and prima facie good when sued on as causes of that he dissented from the opinions of the action, though examinable on their merits. other six judges who took part in the decision

The House of Lords, in pronouncing the of the case. special order of reversal in the case of Sin The early American decisions construe the clair v. Frazer, March 4, 1771 (cited in the act of 1790 as merely regulating the manner Duchess of Kingston's case, 11 Hargr. St. of proving the judgments of sister states, Tr. 122), say: “ It is declared that the judg and declare them to be foreign judgments, ment of the Supreme Court of Jamaica ought and, therefore, following the English authorito be received as evidence prima facie of the | ties, examinable on their merits. Thus in

Taylor v. Bryden, 8 Johns. 173, which was an ment of a court of a sister state, if the plainaction on a judgment obtained in Maryland, tiff produced a record properly authenticated, Kent, J., says: “The question, then, is how and that at least one of the court understood it far and to what extent do the English courts to go to such length, is evident from the terms permit foreign judgments to be opened to let of the dissenting opinion of Johnson, J. The in a re-examination of the merits ;' which, he point actually decided was, only, that nil debet says, is answered by the opinion of the House was not a good plea to such an action, but the of Lords, in Sinclair v. Frazer, that such a effect of the whole opinion was so variously injudgment is prima facie good, but the justice terpreted in different states, some holding of it may be impeached. In Bartlett v. that the act of 1790 must be construed so as to Knight, 1 Mass. 401, Sewell, J., says: “My give judgments of sister states the full effect opinion is that the effect of a judgment—that of domestic judgments, some admitting the is, the right of the party claiming under it, right to inquire into the jurisdiction of the and the right of the party charged by it—are court which rendered the judgment, some denot enlarged or affected by the constitution or nying that right, and others again making that laws of the United States. The article cited right to depend on the averments of the refrom the constitution of the United States, cord, some admitting the plea of fraud in oband the act of Congress pursuant to it, appear taining the judgment, others excluding it, and to me to be confined to the sole purpose of altogether making all sorts of possible and directing the modes of proof, and the effect impossible distinctions, that an attempt to rethereof, to be employed in authenticating concile the innumerable conflicting decisions records, when certified from one state to on this question would be simply hopeless. another within the United States. * * * In Christmas v. Russell, 5 Wall. 290, the suI conclude, therefore, that a judgment certi preme court decided that fraud could not be fied from a court of record in any other state, pleaded as a defence to an action at law, on a when demanded as a debt within this state, is judgment of a sister state, and in Maxwell v. not an incontrovertible proof of such debt, | Stewart, 22 Wall. 77, reaffirmed the rule. In and that the grounds of such judgment, when Thompson v. Whitman, 18 Wall. 457, and in impeached by the defendant, may be on that Gaslight and Coke Co. v. Knowles, 19 Wall. occasion examined.” The early cases are 58, the right to attack, by plea, the jurisdiccollected in the notes to Bartlett v. Knight tion of the court which rendered the judgment, and Andrews v. Herriott, 4 Cowen, 508. whether in rem or in personam, and for this · It will thus be seen that at the beginning of purpose to contradict any averment of the rethis century the law of England and of the cord, was definitely established by the same United States, as to the validity of foreign court. The matter is thus summed up by judgments—among which, notwithstanding the court in the former case: “ On the the act of 1790, were included the judgments whole we think it clear that the jurisdiction of of sister states in this country-was to the | the court, by which a judgment is rendered in same effect, namely, that they were prima | any state, may be questioned in a collateral facie good, but impeachable; in other words, proceeding in another state, notwithstanding the law, as to the effect to be given to a judg-| the provisions of the fourth article of the Copment of a sister state, was just what it would stitution and the law of 1790, and notwithhave been if the act of 1790 had never been standing the averments contained in the repassed.

cord of the judgment itself.” As a general Until the decision of Mills v. Duryee, 71 proposition, therefore, it would be correct to Cranch, 481, this continued to be, though with say that fraud is not a defence to an action considerable conflict of opinion, the prevailing on a judgment of a sister state, and that exrule; but that case, while it was contrary to cept pleas of avoidance and satisfaction, such the prevailing opinion, being a construction as payment, statute of limitations, etc., the of a federal statute by the highest federal only defence that can be made is to show that court, changed the whole current of decision. the judgment is void for want of jurisdiction The language of the court in that case was so in the court which pronounced it. But as far broad as almost to negative the possibility of as the defence of fraud is concerned, there any defence to an action founded on the judg- I would seem to be at least one, and possibly

ment of

Petchum, 11 Neff, 6. Cendered agains in

courmethod A designated

two exceptions to the rule. It was decided sonal service on the defendant beyond the in Hampton v. McConnell, 3 Wheaton, 234, | limits of that state is void for want of jurisand the ruling has been since often quoted diction, has been settled by a long line of dewith approval by the same court, that full cisions of the Supreme Court of the United faith and credit are given to the judgment of States, of which the leading one is D'Arcy v. a state court when in the courts of another Ketchum, 11 Howard, 165, and the latest, state it receives the same faith and credit to Pennoyer v. Neff, 6 Cent. L. J. 252. which it was entitled in the state where it was But where a judgment is rendered against a pronounced. If, therefore, fraud in obtaining citizen of the state where it is pronounced, in the judgment would be a good defence to an an action in which the court acquired jurisaction on it in the state where it was pro

diction over him by any method prescribed nounced, it must be a good defence in any by the law of that state, and designed other state also; to hold otherwise, would be to be a predicate for a personal judgto require not the same, but a greater effect ment, and not, like attachment proceedings, to be given by the sister tribunal, than would

intended to affect only the property of the be accorded to the judgment in the state defendant, subjected to the jurisdiction of the where it was rendered. Bigelow on Estoppel court, it would seem that such judgment is 217, Freeman on Judgments, 576, and cases good and binding. If, therefore, by the law cited.

of any state, service of process on a defendAgain, if it be competent for a defendant, ant is good if the writ be left at his residence, against whom a judgment has been rendered although it never come to his knowledge; or in a sister state, to go into a court of equity if, as in New York, the court acquires jurisin his own state, for the purpose of obtaining diction over a defendant by the unauthorized an injunction to restrain proceedings at law appearance of an attorney for him, (Denton upon the judgment, on account of fraud in v. Noyes, 6 Johns. 296; Hamilton v. Wright, obtaining it. à point not passed upon, nor be- | 37 N. Y. 502; Brown v. Nichols, 42 N. Y. fore the court in Christmas v. Russell, though 26), a judgment rendered against a citizen frequently decided affirmatively by other tri- of that state, by a court of that state, in an bunals (Pearce v. Olney, 20 Conn. 544; En- action wherein the court acquired jurisdiction gel v. Scheuerman. 40 Ga. 206 ; Dobson v. in such a manner, is conclusive everywhere. Pearce, 12 N. Y. 156; Rogers v. Gwin, 21 For every state has, and by virtue of its sovlowa, 58) then in those states having codes, ereignty must have, the power to prescribe which permit equitable defences to suits any method it sees fit to adopt, by which its founded on legal causes of action, the fraud own courts may obtain jurisdiction over its own could, to prevent circuity of action, be pleaded citizens; and whenever a man takes up his directly as a defence to the action on the residence in any state, he thereby makes himjudgment; and so it was held in Rogers v. | self amenable to all the laws of that state, Gwin by Dillon, J., and in Dobson v. Pearce. and is estopped to deny that they are binding

As the jurisdiction of the court which pro- | on him. Thus it has been held by the Sunounced the judgment sued upon is always | preme Court of the United States in Lafayette open to inquiry, the question at once arises, Ins. Co. v. French, 18 How. 408, that if a in every case of this kind, whether the court statute of a state prescribes that service on did have jurisdiction. The only way of ac the agents of foreign corporations doing busiquiring jurisdiction over a defendant at com ness in the state should give the courts jurismon law, is by his voluntary appearance, or diction in any action against such corporations, by service of process upon him personally ; a foreign corporatioz doing business in such but more recently, various kinds of construc state must be conclusively taken to have agreed tive or substitutional service, prescribed by to be bound by such service, and a judgment statute, have become common. That the rendered thereupon is binding everywhere. writs of the courts, or the laws of a state have R. R. Co. v. Harris, 12 Wall. 81; Fonda v. no extra-territorial force, and that, therefore, B. A. Assurance Co., 6 Cent. L. J. 305. As a judgment of a state court rendered against a corporation doing business in, so must any a non-resident, on a constructive service au person living in any state, be conclusively thorized by the laws of that state, or on per- ! taken to have agreed to be bound by any method prescribed by law by which the courts a judgment, rendered on such service, against shall acquire jurisdiction. “In regard to the citizen of another state might be, because citizens while within the territory of their the legislative enactment of Ohio could not birth, or of their adopted allegiance, the juris operate extra-territorially, yet as to her own diction of the sovereignty over them, is com citizens the question is far different;" and the plete and irresistible. It can not be con- judgment was held conclusive. trolled, and it ought to be respected every | In Gaslight and Coke Co. v. Knowles, 19 where.” Story Confl. of Laws, $ 540. To Wall. 58, the court close their opinion as folhold otherwise, is to say, that a foreign tri lows: “We do not mean to say that personal bunal, and not the state itself, shall prescribe | service is in all cases necessary to enable a how its own courts shall acquire jurisdiction court to acquire jurisdiction of the person. over its own citizens. Every case decided by Where the defendant resides in the state in PESUS Ownerse en consecuencia the Supreme Court of the United States from which the proceedings are had, service at his D'Arcy v. Ketchum to Pennoyer v. Neff, in residence, and perhaps other modes of conwhich a defendant sued on a judgment ob- structive service, may be authorized by the tained against him in another state, was en laws of the state. But in the case of non-resiabled to overcome the judgment by showing dents, like that under consideration, personal that the service was constructive. and gave service can not be dispensed with, unless the the court no jurisdiction over him, it will be defendant voluntarily appears ;' clearly imfound, on examination, was a case where the plying that if constructive service is authordefendant was a non-resident of the state in ized by the laws of any state, it is binding on which the judgment was obtained. The ques

residents. tion always has been, as it was put by the court In the case of Schibsby v. Westenholz, L. in D'Arcy v. Ketchum, where they say: “The R., 6 Q. B. 155, Blackburn, J., in the course question is, if it was intended, by the act of of one of those luminous opinions for which 1790, to declare a new rule, which would bind he is famous, thus sums up the law on the the citizens of one state to the laws of an question before him, namely, on what persons other;'' and this has invariably been answered a foreign judgment is conclusively binding: in the negative; and every case which asserts “Now, on this we think some things are quite the right to deny that jurisdiction was ac clear on principle. If the defendants had been quired by the substitutional service, lays weight at the time of the judgment subjects of the on the non-residence of the defendant. That country whose judgment is sought to be enthe efficacy of the laws of any state, in giving forced against them, we think that its laws its courts jurisdiction over its own citizens or | would have bound them. Again, if the deresidents by substitutional service of process, fendants had been, at the time when the suit can not be disputed in an action on a judg was commenced, resident in the country, so ment rendered in pursuance of such laws, as to have the benefit of its laws protecting though never actually decided by the Supreme them, or as it is sometimes expressed, owing Court of the United States, is held by many temporary allegiance to that country, we think American authorities, and is conclusively | that its laws would have bound them. If, at established in England, where the law in re- | the time when the obligation was contracted, gard to foreign judgments has, simply on the defendants were within the foreign counprinciples of private international law, reached try, but left it before the suit was instituted, the same result as our law in regard to judg. we should be inclined to think the laws of that ments of sister states under the act of 1790—| country bound them, though before finally dethat they are conclusive when pronounced by | ciding this, we should like to hear the question courts having jurisdiction. In Biesenthal v. 1 argued. Again, we think it clear, upon prinWilliams, 1 Duval, 329, a judgment had been ciple, that if a person selected as plaintiff the obtained in Ohio against a citizen of that tribunal of a foreign country as the one in state, in an action in which the service had which he would sue, he could not afterward been constructive, as authorized by law. This say that the judgment of that tribunal was not judgment was sued upon in Kentucky, and binding on him.” That, by the laws of the the jurisdiction of the Ohio court was at- | foreign country, the judge, in the above extacked. The court say: “However null such | tract, refers to laws prescribing means of acquiring jurisdiction over defendants, appears the judgment have been binding on the Masfrom the whole case, and from the fact that in sachusetts court? For it is one thing to say the case of Goddard v. Gray, L. R., 6 Q. B. that you may contradict the findings of a 139, he had just decided that if a foreign court of the facts necessary to give it juriscourt only had jurisdiction, its judgment diction; it is quite another thing to say that was conclusive in England, though it was based the construction put upon a statute of a state, on an erroneous construction of the English by its highest court, is not the law of that state. law, or was even contrary to natural justice. It is admitted that it was competent, by law, Other cases sustaining the binding force of to confer the jurisdiction in question on the constructive service on citizens and residents Supreme Court of New York; the only quesare McRae v. Mattoon, 13 Pick. 58; Bimeler tion would be whether, by the law of that state, v. Dawson, 4 Scammon, 542; Welsh v. this had been done; and the law of New York Sykes, 3 Gilm. 197; Reber v. Wright, 68 must be its statutes, with the construction Penn. St. 471; Stockwell v. McCracken, 109 given them, not by the Massachusetts court, Mass. 84; Douglass v. Forrest, 4 Bing. 703 ; but by its own highest court. G. H. W. Becquect v. McCarthy, 2 B. & Ad. 951; Valee v. Dumergue, 4 Exch. 290; Meeus v. Thellu

FORMER CONVICTION – BURGLARY AND son, 8 Exch. 638; Copin v. Adamson, L. R.

LARCENY 9 Esch. 345. In actions in rem the jurisdiction of the

STATE v. DE GRAFFENRIED AND ATKINS. court over the res always depends on the fact of its being locally subject to the control of

Supreme Court of Tennessee, April Term, 1878. the court, and sometimes on other additional facts, such as the fact of capture, in actions HON. JAMES W. DEADERICK, Chief Justice.

66 ROBT. MCFARLAND, of condemnation as prize; and whenever a

" PETER TURNEY, judgment in rem is called in question in an

"

Associate Justices. J.L. T. SNEED,

" T. J. FREEMAN, other state, the existence of the facts necessary to give jurisdiction may always be denied,

A CONVICTION for burglary with intent to commit

larceny will bar a subsequent prosecution on an innotwithstanding an express adjudication by

dictment for the same larceny. the court which pronounced the judgment that

DEADERICK, C. J., delivered the opinion of the they did exist. Thompson v. Whitman, 18

court: Wall. 457. A striking case, denying the juris This was an indictment for larceny. The dediction of a court of a sister state, not over fendants pleaded former conviction upon an indictthe person, nor in rem, but to give the partic

ment for burglary with intent to commit larceny, ular relief granted, is that of Taylor v. Co

and judgment of three years' confinement in the

penitentiary, and that said judgment remains in lumbian Ins. Co., 99 Mass. 267. There, a New

full force and effect, and not reversed or made York corporation was sued in Massachusetts, void; and that said larceny charged in the case, and, among other defenses, it was objected that

upon which they were convicted, is the same upon

which they are now charged, etc. To this plea the the corporation had been, prior to the bringing

state replied, admitting the truth of the facts of this suit, dissolved by a decree of the Su- |

pleaded. To this replication defendants demurred. preme Courtof New York, and hence, of course, The facts pleaded are admitted by the state, and could no longer be sued. But it was held by the question presented is: Can the state, at the

election of her attorney-general, make two offenses the Supreme Court of Massachusetts, “ that

out of one and the same transaction? to decree an absolute and final dissolution of

There are cases holding the affirmative of this a corporation at the suit of an individual is no proposition. In Bish. Cr. Law, $ 893, an Indiana part of the general jurisdiction of a court of case is cited as sustaining the proposition that an law, or of equity, and can be justified only

acquittal of burglary with intent to commit a lar

ceny is no bar to a subsequent prosecution for the by express statute;' that the statute under

actual commission of the larceny; and a Conwhich the Supreme Court of New York had

necticut case, holding that a conviction for larceny assumed to act did not really confer upon it such is no bar to an indictment for burglary with intent jurisdiction, and that hence its decree was void.

to commit the larceny. But C.J. Waite says in a dis

senting opinion: “ I take it to be a sound rule of But suppose this same statute had been ex

law, founded upon the plainest principles of natpressly construed by the highest court of New

| ural justice, that, where a criminal act has been York to confer such jurisdiction, would not l committed, every part of which may be alleged in

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