95; Poph. 102; Pease v. Morgan, 7 Johns. 468; Cheetham v. Tillotson, 4 Johns, 499; 1 Johns. Cas. 29; 2 Johns. 184; 1 Bing. 486; Douglass v. Bean's Executors, 5 Bing. 60. So it is well settled, that at a subsequent term, when the judgment had before been arrested, an amendment may be made to apply the verdict to a good count if another be bad, and the judge's minutes show that the evidence applied to the good count. Matheson's Adm. v. Grant's Adm. 2 How. 282, and cases cited there.

So a mistaken entry of mandate, in a case where the parties were not at all before the court may be revoked at a subsequent term, the hearing having been irregular and a nullity. Exparte Crenshaw, 15 Peters, 119; 14 Peters, 147. but no cause of this kind appears here in the proceedings, and nothing else appears to justify the court in going back to a final judgment of a previous term and summarily setting it aside for an error in the law or the facts, and dismissing the whole case from the docket.

The only relief for errors in law in such cases is usually by new trial, review, writ of error, or appeal, as either may be appropriate and allowable by law, or by some other mode specially provided by statute; where, for instance, a judgment has occurred at some previous term by default, through accident or some circumstance, which clearly entitles the party to redress. 12 Peters, 492; Jenkins v. Eldridge et al. 1 Wood. & M. 65, and cases cited; Anthony et al. v. Love, 3 Ohio, 306; Bennett v. Winter et al. 2 Johns. Ch. 205; 3 Marsh. R. 268; Southgate v. Burnham, 1 Greenl. 375.

Beside these remedies, judgments entered up by fraud may, perhaps, on due notice, by scire facias, or otherwise, be vacated at a subsequent term by the same court, or if offered in evidence be deemed a nullity, should fraud be clearly proved to have taken place. 2 Roll. Abr. 724; 2 Bac. Apr. Error, T. 6.

But the present judgment was neither fraudulent nor void on its face, nor even voidable. Had it been rendered on the special counts alone, it might have been voidable by a writ of error, for not alleging jurisdiction in the pleadings. See ante; 2 How. 243; Capron v. Van Norden, 2 Cranch, 126. But it has been repeatedly settled, that even then, without any plea to the jurisdiction, and after a verdict for the plaintiff on the general issue and final judgment, it is not a nullity, but must be enforced till duly reversed. Kempe's Lessee v. Kennedy, 5 Cranch, 185; and Skillern's Executors v. 40*] May's Executors, 6 *Cranch, 267; McCormick v. Sullivant, 10 Wheat. 192; Voorhees v. Bank of United States, 10 Peters, 449; 3 Ohio, 306; Wilde v. Commonwealth, 2 Metc. 408; Hopkins v. Commonwealth, 3 Metc. 460. cause it would be a judgment rendered by a court, not of inferior, but only limited, jurisdiction, and the merits would have been investigated and decided by consent. This view


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error. Bac. Abr. Void and Voidable, C; 2 Salk. 674; Carth. 276. Even where the record of a circuit court did not contain any averments giving jurisdiction, this court has held that, at a subsequent term, after final judgment, the same tribunal which rendered it could not set it aside on motion. Cameron v. McRoberts, 3 Wheat. 591. And we have repeatedly decided as to judgments of this court, that they could not be changed at a subsequent term, in matters of law, whether attempted on motion, or a new writ of error, or appeal, on the mandate to the court below. Hunter's Lessee v. Warton, 5 Cranch, 316; 6 Cranch, 267; 1 Wheat. 354; Santa Maria, 10 Wheat. 442; Davis v. Packard, 8 Peters, 323; 9 Peters, 290; 12 Peters, 491, 343; 15 Peters, 84.

Without going further, then, into the reasons or precedents against the course pursued in the court below, the last judgment there, on the motion, must be reversed, and the case be reinstated as it stood before.


This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, 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 Court on the motion dismissing this case 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 to re-instate this case as it stood in that court before the said judgment dismissing the case.

*JONATHAN W. NESMITH and Thom- [*41 as Nesmith, Complainants,


THOMAS C. SHELDON, Horace H. Comstock, David French, William E. Peters, James Forton, Alta E. Mather, Henry B. Holbrook, Samuel P. Mead, Francis E. Eldred, Phoebe Ann Dean, Cullen Brown, and Charles H. Stewart, Defendants.

Certificate of division, form of.

Where it is evident, from the record, that the whole case has been sent up to this court upon a certificate of division in opinion, the case must be dismissed for want of jurisdiction.

though judgments of inferior courts or comer,HIS case came up from the Circuit Court of is suppouttements of commis: the United States for the District of Mich gan, on a certificate of division in opinion between the judges thereof.

sioners are often void, when on their face clearly without their jurisdiction, and may be proved to be so and avoided without a writ of error, 3 Bac. Abr. Error, A; 10 Cok. 77 a; Hawk P. C. ch. 50, sec. 3; yet the judgment of a superior court is not void, but only voidable by plea on

The facts were briefly these: The second section of the 12th article of the constitution of Michigan is in these words, viz.: "The Legislature shall pass no act of incor

poration, unless with the assent of at least two thirds of each House."

On the 15th of March, 1837, the Legislature passed an act entitled, "An Act to organize and regulate banking associations.'

Under this act a company was formed and commenced doing business as a banking association, under the name of the Detroit City Bank. On the 15th September, 1838, Harris, the cashier of the Detroit City Bank, drew a bill of exchange upon the Albany City Bank, in the State of New York, in favor of J. W. and T. Nesmith, for six hundred dollars, payable nine months after date, which bill protested for nonpayment when due.

In February, 1833, whilst the Lill was running, the Detroit City Bank became insolvent. The plaintiffs, Nesmiths, sued the bank upon the bill, and obtained a judgment in May, 1841, in a State court.

The plaintiffs then proceeded, under a statute of the State, against the directors of the bank, and obtained a judgment in July, 1841, in the Circuit Court of the United States. An execution was issued upon this judgment, which was returned wholly unsatisfied.

The plaintiffs then, under the same statute, filed a bill on the equity side of the Circuit Court against the stockholders, being the defendants mentioned in the title of this case, seeking to hold them individually liable, in proportion to the amount which each one held in the stock of the bank.

To this bill the defendants put in general de


The cause was heard on the bill and demurrers. The following points and questions were made and presented by the complainants: 42*] *1. Whether the banking association organized under the Act of the Legislature of the State of Michigan, entitled, “An Act to organize and regulate banking associations," approved March 15th, 1837, and the amended Act, entitled, “An Act to amend an act entitled 'An Act to organize and regulate banking associations and for other purposes,' approved December 30th, 1837, were or were not corporations or bodies corporate, within the meaning of the constitution of the State of Michigan.

2. Whether said acts of the Legislature, or either of them, are in accordance with the provision of the constitution of the State, and valid, or contrary thereto, and void, in whole or in part.

3. And if so much and such parts of said acts as purport to create corporations, or bodies corporate, are repugnant to the constitution and void, whether the remaining parts of said acts are not valid, and the directors and stockholders of the association, set out in the bill, liable for the debts thereof, according to the provisions of said amended act.

On the part of the defendants, the following points were made:

1. The Supreme Court of the State of Michigan has decided that the acts under which the Detroit City Bank was organized were intended to authorize the creation of an indefinite number of corporations, by the prospective action of individuals; that they were so far unconstitutional and void, and under them no corporate body could legally come into existence. This decision of the Supreme Court of the State will not be questioned by the courts of the United States, but will be followed and applied to the latter.

2. If the Detroit City Bank was not validly in existence as a corporation, or artificial person, then it was not exempted from the penalties and restrictions of the laws of Michigan on the subject of unauthorized banking, commonly called the restraining laws.

3. Under the acts last referred to, the claim of the complainants was illegal and forbidden, and could not be the basis of a recovery.

4. The Detroit City Bank having contracted as a corporation, when it was not such, its contracts on that account are invalid.

*5. If the Detroit City Bank was not a [*43 corporation, then the defendants can be liable only as general partners.

6. If liable only as general partners, the judgment against the directors is a merger of the whole claim.

7. If the defendants are general partners, the remedy against them is complete at law.

8. If the court shall hold that the Detroit City Bank was validly a corporation, and authorized to engage in banking, then it is further contended by the defendants, that the bill which forms the foundation of the claim of the

complainants was illegal, because not payable

on demand.

9. The defendants are not concluded by the judgment against the bank, but may dispute the validity and obligation of the original claim. Upon all the above points and questions, as made and presented by the complainants and defendants, the opinions of the judges of the Circuit Court were opposed; wherefore, it was ordered that the same be stated, under the direction of the judges, and certified, under the seal of this court, to the Supreme Court, at their next session to be held thereafter.

The case was very elaborately argued in print by Mr. E. C. Seaman and Mr. J. M. Root for the plaintiffs, and Mr. George E. Hand and Mr. Theodore Romeyn for the defendants. But as the case went off upon a point of jurisdiction, the arguments are omitted.

Mr. Chief Justice Taney delivered the opinion of the court:

This case comes before the court upon a certificate of division from the Circuit Court for

4. Whether the stockholders of the Detroit the District of Michigan. Upon opening the City Bank, are, or are not, liable in their indi- record, it is evident that the whole case has vidual capacity, as corporators, or as members been sent up in this form. It is, indeed, diof a joint stock association, company, or co-vided into points, but most of them are merely partnership, to pay the debts due to the complainants, as set forth in the bill.

5. Whether the defendants are, or are not, liable to pay the debt due to the complainants, set out in the bill of complaint.

hypothetical, and might never have arisen or required a decision upon them in the Circuit Court. For whether they would or would not arise depended altogether upon the decision of points which precede them in the statement.


This subject has been frequently before the court, and we have repeatedly said, that, under such certificates of division, we have no jurisdiction. Without attempting to enumerate the cases, it is sufficient on the present occasion to refer to White v. Turk et al. 12 Peters, 238, and The United States v. Stone, 14 Peters, 524, which are decisive of this case. It is unnecessary, therefore, to examine the printed arguments that have been filed, as the case must be dismissed for want of jurisdiction. 44*]


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 Michigan, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and adjudged by this court, that this cause be, and the same is hereby dismissed; and that this cause be, and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law.

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On the same day, viz., the 1st December, 1838, Christopher Dart, for whose use the judgment was entered, made an assignment of it to John B. Thrasher, of Port Gibson, the nominal defendant in error in the present case.

After this, however, a new trial was granted by the court of Claiborne County in the suit against Ann Lee, administratrix, which resulted in another judgment, for a different sum of money, in June, 1840.

Another new trial was granted, and in December, 1840, another judgment was rendered against the administratrix for $6,988.05.

Nothing further appears to have been done for some time. The next fact in the history of the case is, that David S. Stacy, the plaintiff in error in the present case, and a citizen of Louisiana, took out letters of administration upon the estate of Charles S. Lee, in the State of Louisiana. At what particular time these letters were taken out the record does not show.

In January, 1844, John B. Thrasher, to whom the judgment in Mississippi had been assigned by Christopher Dart, as above stated, filed a petition in the Circuit Court of the United States for the Eastern District of Louisiana, against Stacy, the administrator of Charles S. Lee. Thrasher now stated himself to be suing

DAVID S. STACY, Administrator of Charles S. for the use of William Sellers, and averred that Lee, Plaintiff in Error,


J. B. THRASHER, for the use of William Sellers, Defendant in Error.

Action of debt will not lie against administrator in one State on judgment recovered against another administrator of same intestate, appointed in another State.

An action of debt will not lie against an administrator, in one of these United States, on a judgment obtained against a different administrator of the same intestate, appointed under the authority

of another State.

The doctrine of privity examined.

HIS case was brought up by writ of error from the Circuit Court of the Unites States

for the Eastern District of Louisiana.

The history of the case is this:

In April, 1836, Charles S. Lee, a resident of the County of Claiborne and State of Mississippi, was sued in the County Court of Claiborne, by Christopher Dart and William Gardner, who called themselves late merchants and copartners trading under the style and firm of Dart & Co., and stated the suit to be for the use of Christopher Dart.

It is not necessary to state the cause of ac

tion, or trace the progress of the suit minutely. Lee appeared to the suit.

In December, 1836, his death was suggested. In July, 1837, Ann Lee took out letters of administration upon the estate of Charles S. Lee, under the authority of the Probate Court of Claiborne County.

Sellers and himself were both citizens of the State Mississippi. The petitioner stated himself to be the legal owner, by transfer and assignment, of a judgment for $6,988.05, which judgment was final and definitive.

In February, 1844, Stacy appeared to the suit and filed the following exceptions and answer, which are according to the practice in Louisiana, and equivalent to a demurrer.

"David S. Stacy, a citizen of the State of Louisiana, residing in the parish of Concordia, administrator of the succession of Charles S. Lee, in the State of Louisiana, under the appointment and authority of the Court of Probates of the parish of Concordia aforesaid, being made defendant in the above entitled suit, appears and pleads as follows, by way of exception:

"1. That plaintiff in his petition does not allege or show that this honorable court has jurisdiction of this suit, as it is not therein alleged that Christopher Dart, who is declared to be the assignor of the judgment upon which this suit is brought, was either an alien or a citizen of another State than Louisiana, or *could [*16 have maintained the suit in this honorable court either against the appearer or the said Charles S. Lee.

and William Gardner, the alleged owners of the "2. Appearer alleges that Christopher Dart claim upon which the judgment was obtained in Mississippi, were citizens of Louisiana, and members of a commercial firm located in New Orleans, and could not have maintained this suit in this honorable court either against the

said Lee or against this appearer, and that this court has no jurisdiction of this suit.

"3. That the said William Gardner, one of the joint owners of said claim, was a citizen of Louisiana, and that the said Dart & Gardner could not have maintained a suit upon said claim in this honorable court either against the said C. S. Lee or against this appearer.

"4. That the said C. Dart, under an assignment and transfer of said claim from the said Gardner, could not have maintained a suit thereon in this honorable court.

“5. Appearer further excepts and says, that this honorable court has no jurisdiction over successions in the State of Louisiana, nor over the settlement of said successions and the distributions of the proceed among the creditors, nor over administrators and others appointed to administer them, nor of the establishment of claims for money against such successions; that the Court of Probate of this State have the sole and exclusive jurisdiction of all these matters; that no property belonging to a succession in the course of administration in the Probate Court, whose jurisdiction has attached over the subject matter, can be taken, levied upon, or sold by process from the courts of the United States; nor can said probate courts be ousted or disseized of their said exclusive jurisdiction once obtained, nor the property withdrawn from their control by any other tribunal. That this has been the well known and settled law of the State for the last twenty years, and that the said Dart & Gardner contracted in New Orleans, in Louisiana, under and in reference to this law, and are bound by it; appearer alleges that this honorable court, for the above reasons, has no jurisdiction in this suit, ratione personæ, nor ratione materiæ, but avers that the Court of Probates of the parish of Concordia has sole and exclusive jurisdiction thereof.

Wherefore appearer prays that this suit may be dismissed at plaintiff's costs, &c.

"If all the above exceptions should be overruled, then appearer pleads that the plaintiff has neither alleged nor shown any cause of action against him whatever, nor any indebted ness to the plaintiff by the succession of C. S. Lee in the State of Louisiana.

47*] *“If the above exception should be also overruled, then defendant denies generally and specially each and every allegation in plaintiff's petition contained. Wherefore he prays that plaintiff's demand may be rejected with costs, | and for general relief in the premises, &c. (Signed) D. S. Stacy,

"Adm'or estate C. S. Lee." On the 26th of February, 1844, Thrasher filed an amended petition, averring that Christopher Dart, the assignor of the judgment, was, at the time of the assignment, an alien, being a citizen of the republic of Texas, and resident therein, and that Charles S. Lee, at the time of said assignment and of his death, was a citizen of Louisiana.

On the 13th of March, 1844, the court overruled the exceptions, and on the 11th of April following gave the following final judgment:

"This cause came on for trial, and the law and the evidence being in favor of the plaintiff, it is ordered, adjudged and decreed, that the defendant, David S. Stacy, as administrator of the estate of Charles S. Lee, be condemned to

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Mr. Barton, for the plaintiff in error:

The great and important question which the record presents, and to which this argument will be confined, is that to which the last exception is directed.

The petition, with the other proceedings in Louisiana upon the judgment in Mississippi, are not distinguishable from an action of debt, brought under the same circumstances, upon a like judgment, in the courts of those States where the practice is according to the course of the common law. The petition is founded, as the action of debt would be, upon the judgment. The validity and effect of the judgment must be the same in *both kinds of pro- [*48 ceedings. The case involves the question whether a judgment, rendered in one State against an administrator who has taken administration of the assets in that State, and within that jurisdiction, can be made the foundation of an action in another State against a different administrator, whose administration has been taken within the jurisdiction of the latter, of the assets within the latter jurisdiction.

There are some special circumstances in this rècord which arrest our attention in advancing to the discussion of the main point. Cases of this kind must always be open to remark, and entitled to grave consideration. The judgment rendered against the first administrator, which is made the foundation of a recovery against the administrator out of the assets in another jurisdiction, must be taken to have adjudged that the administrator against whom the judgment was rendered had assets to satisfy the debt. That administrator, in the proceedings against him, must have admitted, by his pleadings, that he had assets; and that will always be the case when he neglects (as was the case in Dart & Co. v. Lee's Administratrix in Mississippi) to plead plene administravit; or, if assets have been denied by such plea, that issue must have been found against him. general judgment, therefore, against an administrator, necessarily includes in it the adjudication of assets in the hands of that administrator to the amount of the judgment. According to the rigor of the common law, the judgment in that form would be absolutely conclusive against the defendant's administrator, and against the plaintiff and all others; and the only ulterior proceedings upon such judgment, if not satisfied upon an execution to be levied de bonis testatoris, would be against that administrator for a devastavit. 2 Lomax on Executors, 391, sec. 8, and 451, sec. 21.


Virginia, and perhaps others of the States, has mollified, in some respects, the rigorous

conclusion of this common law rule, but without destroying it. In its most mitigated application to such a recovery, the judgment will be at least taken, until the contrary is shown by that defendant, as a judgment that the administrator had assets for the satisfaction of the recovery. For this reason, as well as for other reasons, it is certain that we shall find no case in the English authorities where a judgment has been recovered against one administrator, in which any recovery has been sought against another administrator, unless in cases of an administrator be donis non, or unless in cases of special administrations, such as administrator durante minore ætate, etc. And, for the same reason, it is probable that no such cases can be found in any of the American authorities, even 49*] where the rules alluded to have been *mitigated. It will be found extremely difficult within the jurisdiction where administration was granted, to conceive any case of that kind. The judgment, then, upon which the petitioner founds his recovery against the administrator in Louisiana, shows upon its face that assets for its satisfaction, in the State of Mississippi, were also adjudged. The very judgment, by showing that matter, an adjudged liability of a sufficiency of estate in Mississippi, shows an exoneration of assets elsewhere than in Mississippi, and that the Louisiana administrator ought not to be charged, by a double recovery, for that which has been already or can be recovered against another representative in Mississippi.

There is also another remark that may be made upon the proceedings in this case that the decision, if sustained, must lead to alarming mischiefs in the administration of assets which an intestate has left in two or more States. It seems, from the amended petition, that C. S. Lee, at the time of his death, was a citizen of Louisiana; that was his domicil, and consequently Ann Lee, in Mississippi, was a a foreign administratrix. The bulk of an intestate's assets will almost always be found in the jurisdiction of his domicil. The proposition which is contended for to sustain this recovery goes to this extent-that if an intestate in one State had died, leaving property of the most inconsiderable value in another State, making it necessary that there should be an administration in the latter, a plaintiff, by recovering a judgment against the latter, establishing a debt of the intestate, that judgment, as contended for by the defendant in error, would be conclusive upon the administrator and the assets, in the State of the domicil, at least so far as it established the indebtedness of the intestate. In vain might the domiciliary administrator attempt, in an action brought against him upon that judgment, to prove that the plaintiff had no shadow of claim against the intestate; he would be repelled, by force of the judgment, from any such defense.

It is reasonable, that, in the international law of these States under the Constitution and acts of Congress, such ruinous stringency should be given to the judgment of one State in the courts of another?-that a judgment | against the foreign administrator, who is regarded only as auxiliary or ancillary to the domiciliary administration, and who is in practice oftentimes, in some of the States, little

more than a nominal administrator, shall conclude the primary domiciliary administrator, holding the main bulk of the assets, by establishing against him and against those assets the principal fact in the case, the indebtedness of the intestate, so that they can never be extricated from this rigid conclusiveness of the foreign judgment?

There is a further remark, that the [*50 petitioner seeks a recovery upon the Mississippi judgment against "a considerable estate, real and personal," left by the intestate in the State of Louisiana; estates of both descriptions, it would seem, are liable as assets in the hands, or under the control, of the administrator in that State. There is no principle in general jurisprudence, and particularly in the United States. better established, than that land can never be subjected to a foreign jurisdiction. Story's Confl. of Laws, pages 436, 437, secs. 522, 523.

To give to the judgments of one State validity and effect in the courts of another, is a wise provision under our system of government. It cannot, however be overlooked, that to whatever extent force is allowed to them out of the State which pronounced them, in the jurisdiction of another State, it operates as a restriction or compulsion upon this jurisdiction, making it subordinate to the jurisdiction of a foreign forum. The provision, therefore, which has been alluded to should be jealously guarded by the courts; and unless its application should be shown to be clearly reasonable, the application should be denied. It has before been intimated, that no authority can be found, certainly not in the English law, probably not in the American law, which can govern the precise case now under consideration.

Without attempting to disturb any doctrine heretofore established in regard to the conclusiveness of judgments, and the effect of the judgment of a court of one State, when sued upon or offered in evidence in the courts of another State, it is contended that that doctrine has never been extended to a case like the present, and that it would not be reasonable to give it such application. It is a principle incontrovertibly established in the English jurisprudence, in that of Louisiana (Benjamin and Slidell's Digest of Louisiana Laws, page 559, et seq.), and in all the other States, that "no one, in general, can be bound by a verdict or judgment, unless he be a party to the suit, or be in privity with the party, or possess the power of making himself a party. For (as has been well said) otherwise he has no power of crossexamining the witnesses, or of adducing evidence in support of his rights. He can have no attaint, nor can he challenge the inquest, or appeal (or have a writ of error on the judgment). In short, he is deprived of the means provided by the law for ascertaining the truth, and consequently it would be repugnant to the first principles of justice that he should be bound by the results of an inquiry to which he was altogether a stranger." 1 Stark. Law Ev. 217, 6th Am. ed.

It is not pretended that the administrator in Louisiana was a party to the proceed- [*51 ings in Mississippi, or could by any possible means have made himself a party to them. It is incumbent upon the defendant in error clearly to show, before the jurisdiction in Mis

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