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claiming that under the full faith and credit clause of the Constitution of the United States the judgment dismissing a suit based on the same cause of action against one alleged to be his joint tortfeasor was a bar to the suit, and that the Massachusetts courts were bound to give to the judgment the same effect as an estoppel

as against subsequent suits on the same cause of action. Held that: Although one of two joint tort-feasors may be individually interested

in the result of a suit against the other, the result is merely that of precedent and not of res judicata, and the courts of another State

are not under obligation to follow the decision. Assistance by one of two joint tort-feasors in the defense of a suit

against the other, because of interest in the decision as a judicial precedent affecting a case pending against him in another State,

does not create an estoppel as to the one so assisting in the defense. Where the cause of action against joint tort-feasors is ex delicto, and

several as well as joint, one of the tort-feasors not sued is not a privy to one that is sued so that a judgment dismissing the case against

the latter is a bar to another suit against the latter. Where the remedy of the plaintiff in a suit against one of two joint

tort-feasors depends upon the defendant's own culpability, failure to recover in a prior suit on the same facts against the other is not

a bar.

When dealing with the estoppel of a judgment, privity denotes mutual

or successive relationship to the same right of property, and while there is diversity of opinion as to whether the estoppel can be expanded so as to include joint tort-feasors not parties, the sounder reason, as well as weight of authority, is that failure to recover against one is not a bar to a suit or an individual cause of action

against the other. Where the jurisdiction of the Circuit Court of the United States de

pends entirely upon diversity of citizenship, that court administers the law of the State, and its judgment is entitled to the same sanction as would attach to a judgment of a court of that State, and is entitled in the courts of another State to the same faith and credit which would be given to a judgment of the court of the State in

which the Circuit Court which rendered it was sitting. Where a judgment of the court of another State is set up as a bar,

the effect of that judgment in the courts of the State which rendered it is a question of fact to be determined by the court in which

it is set up.

Although a judgment dismissing the bill against one of two joint tort

feasors may be a bar in the State where rendered against a suit on

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Argument for Plaintiffs in Error.

the same cause of action against the other joint tort-feasor, the courts of another State may, without denying full faith and credit to such judgment, determine for itself under principles of general law whether

or not such judgment is a bar to suits against the other tort-feasor. Under $ 1 of Art. IV of the Constitution and $ 905, Rev. Stat., the

judgment of a court of one State when sued upon or pleaded in estoppel in the courts of another State is put upon the plane of a domestic judgment in respect to conclusiveness of the facts adjudged; otherwise it would be reëxaminable as only prima facie evidence of

the matter adjudged as is the case with foreign judgments. The full faith and credit clause is to be construed in the light of the

other provisions of the Constitution, none of which it was intended

to modify or override. The courts of one State are not required to regard as conclusive any

judgment of the court of another State which had no jurisdiction of the subject or the parties; and the courts of the State in which the judgment is set up has the right to inquire whether the court rendering it had jurisdiction to pronounce a judgment which would conclude the parties themselves or those claiming that the judgment

was effective as an estoppel. The privity that exists between a stockholder and the corporation

that makes a judgment against the corporation conclusive as against the stockholder does not exist as between joint tort-feasors. Hancock

National Bank v. Farnum, 176 U. S. 640, distinguished. 188 Massachusetts, 315, affirmed.

The facts, which involve the question of whether the Massachusetts courts gave to a New York judgment pleaded as a bar in a Massachusetts suit the full faith and credit which is required by $ 1 of Art. IV of the Constitution of the United States and $ 905, Revised Statutes, are stated in the opinion.

Mr. John C. Spooner, with whom Mr. George Rublee, Mr. Joseph P. Cotton, Jr., Mr. Charles H. Tyler, Mr. Owen D. Young, Mr. Burton E. Eames and Mr. William C. Rice were on the brief, for plaintiffs in error:

The decrees of the Massachusetts court involve a denial of full faith and credit to the Lewisohn decree in the New York case.

VOL. CCXXV–8

Argument for Plaintiffs in Error.

225 U.S.

The judgment of a Federal court sitting in New York is entitled in another State to the same faith and credit as a decree of a state court in New York. Embry v. Palmer, 107 U. S. 3; Live Stock Co. v. Butchers' Union, 120 U. S. 141; Metcalf v. Watertown, 153 U. S. 671; Hancock Bank v. Farnum, 176 U. S. 640; Deposit Bank v. Frankfort, 191 U. S. 499; Riverdale Cotton Mills v. Alabama Mfg.Co., 198 U. S. 188.

The decree of a Federal court in a State must be given the same effect by the courts of that State as a decree of the state court. Cases supra, and see National Foundry Works v. Oconto Co., 183 U. S. 216; Central National Bank v. Stevens, 169 U. S. 432; Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498; Oceanic Co. v. Compania Translantica Espanola, 134 N. Y. 461.

The fact that the Lewisohn decree was rendered on a demurrer does not detract from its efficacy as a bar. Nor. Pac. Ry. Co. v. Slaght, 205 U. S. 122, 130; Yates v. Utica Bank, 206 U. S. 181; Bissell v. Spring Valley, 124 U. S. 225; Gould v. Evansville R. R. Co., 91 U. S. 526; Alley v. Nott, 111 U. S. 472; Bouchaud v. Dias, 3 Denio (N. Y.), 235, 244.

The opinions of the Circuit Court and Circuit Court of Appeals and of this court show that the bill in the Lewisohn suit was dismissed on the merits. National Foundry Works v. Oconto Co., supra, at p. 234; Baker v. Cummings, 181 U. S. 117.

It is immaterial that the present suits were begun prior to the suit against Lewisohn. Mitchell v. First National Bank, 180 U. S. 471; Nugent v. Traction Co., 87 Fed. Rep. 251; United States v. Dewey, 6 Biss. 501; Rogers v. Odell, 39 N. H. 452; Sharon v. Hill, 26 Fed. Rep. 337, 344.

The full faith and credit clause requires that the law and usage of New York should control not only as to what is decided by the decree, but also as to who is entitled to the benefit thereof. This is the plain meaning of the

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Argument for Plaintiffs in Error.

language used. Hancock Bank v. Farnum, 176 U. S. 640; Laing v. Rigney, 160 U. S. 531; Tilt v. Kelsey, 207 U. S. 43.

This result cannot be defeated by the technical Massachusetts rule which denies to alleged joint tort-feasors the benefit of former adjudication as a bar. Renaud v. Abbott, 116 U. S. 277; Hanley v. Donoghue, 116 U. S. 1; Laing v. Rigney, supra.

The question of the jurisdiction of the Federal court to render the Lewisohn decree is not to be determined by the law of Massachusetts, but by the law of New York, subject to the limitation that that law must comply with the standards of general jurisprudence. D'Arcy v. Ketchum, 11 How. 165; Pennoyer v. Neff, 95 U. S. 714; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 289; Huntington V. Attrill, 146 U. S. 657; Embry v. Palmer, 107 U. S. 3; Renaud v. Abbott, 116 U. S. 277, 288; Rogers v. Alabama, 192 U. S. 226, 231; German Savings Society v. Dormitzer, 192 U. S. 125.

Since the New York court had undoubted jurisdiction over the plaintiff in the Lewisohn suit, there is no jurisdictional objection to giving effect to that decree as against it in Massachusetts. The rule of mutuality is subject to well-recognized exceptions. There is no requirement of mutuality of estoppel in cases like the present where the plaintiff, after failing on the merits to maintain its action, brings another suit upon the same cause of action against another defendant who acted jointly with the first defendant in the transaction. Portland Mining Co. v. Stratton's Independence, 158 Fed. Rep. 63; Emma Mining Co. v. Emma Mining Co. of New York, 7 Fed. Rep. 401; People v. Stevens, 51 How. Pr. (N. Y.) 235, aff’d, 71 N. Y. 527; Spencer v. Dearth, 43 Vermont, 98; Williams v. McGrade, 13 Minnesota, 39; King v. Chase, 15 N. H. 9; Sonnentheil v. Moody (Tex. Civ. App., 1900), 56 S. W. Rep. 1001; Sonnentheil v. Texas Guarantee Co., 23 Tex. Civ.

Argument for Plaintiffs in Error.

225 U.S.

App. 436; Atkinson v. White, 60 Maine, 396; Hill v. Bain, 15 R. I. 75; Ferrers v. Arden, Cro. Eliz. 668; 2 Black on Judgments (2d ed., 1902), $ 781; Green v. Van Buskirk, 7 Wall. 139; Featherston v. Turnpike Co., 71 Hun, 109; Krolik v. Curry, 148 Michigan, 214; State v. Coste, 36 Missouri, 436; Hesselbach v. St. Louis, 179 Missouri, 505; Delaplain v. Kansas City, 109 Mo. App. 107; Montfort v. Hughes, 3 E. D. Smith, 591; Indiana Nitroglycerine Co. v. Lippincott Glass Co., 165 Indiana, 361; Hayes v. Chicago Telephone Co., 218 Illinois, 414; Bradley v. Rosenthal, 154 California, 420; Logan v. Railway Co., 82 S. Car. 518; Rookard v. Atlanta Ry. Co., 84 S. Car. 190; Biggs v. Benger, 2 Ld. Raymond, 1372; Marks v. Sullivan, 8 Utah, 406, 410; New Orleans Railroad Co. v. Jopes, 142 U. S. 18; Doremus v. Root, 23 Washington, 710; Stevick v. Nor. Pac. Ry., 39 Washington, 501; Anderson v. Fleming, 160 Indiana, 597; Anderson v. Street Railroad Co., 200 Illinois, 329; Muntz v. Algiers &c. Co., 116 Louisiana, 236; Mc-. Ginnis v. Chicago &c. Co., 200 Missouri, 347; Chicago &c. Co. v. McManigal, 73 Nebraska, 580; Tyng v. Clark, 9 Hun, 269; Miller v. White, 50 N. Y. 137; Jackson v. Griswold, 4 Hill, 522.

The present cases do not involve any question of joint tort or liability ex delicto. These cases are clearly distinguishable from the cases where the facts alleged if proved would amount to a tort, since it was decided in the Lewisohn Case that all the facts set up do not state a cause of action. The issue in the present cases under the full faith and credit clause is the effect of the Lewisohn decree in New York, and in the Federal courts, and in that jurisdiction neither Bigelow nor Lewisohn is liable ex delicto, or at all. Promoters' liability, in any event, is only that of a fiduciary, and in the absence of moral wrong there is a right of contribution. Jacobs v. Pollard, 10 Cush. 287; Palmer v. Wick Shipping Co., A. C. (1894), 318; Armstrong County v. Clarion County, 66 Pa. St. 218;

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