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V. C., in Hodgkinson v. Crowe, I think it is conclusive against any judge being allowed to say from his own view that such a covenant ought to be introduced." In Church V. Brown, Lord Eldon, citing from Davidson's Precedents, says: "The result of the authorities appears to be, that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing ' usual covenants,' or, which is the same thing, is an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely, covenants by the lessee: 1, to pay rent; 2, to pay taxes, except such as are expressly payable by the landlord; 3, to keep and deliver up the premises in repair; and, 4, to allow the lessor to re-enter and view the state of repair, and the usual qualified covenant by the lessor for quiet enjoyment by the lessee."
JUDGMENTS OF SISTER STATES.
There are probably few, if any, Federal statutes on the proper interpretation of which there are more, and more conflicting, decisions than on that of the act of May 26, 1790, declaring that the records and judicial proceedings of any state, authenticated as required by said act, "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;" and it will probably require several further decisions by the Supreme Court of the United States for the final settlement of all the perplexing questions to which it is likely to give rise. At the time of its enactment, and for some time after, the weight of authority in England in regard to the force and effect of foreign judgments was, that such judgments were prima facie good when sued on as causes of action, though examinable on their merits. The House of Lords, in pronouncing the special order of reversal in the case of Sinclair v. Frazer, March 4, 1771 (cited in the Duchess of Kingston's case, 11 Hargr. St. Tr. 122), say: "It is declared that the judgment of the Supreme Court of Jamaica ought to be received as evidence prima facie of the
debt, and that it lies upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained; it is therefore ordered and adjudged that the said several interlocutors complained of be, and the same are hereby reversed;" and though there are a few leaning towards the conclusiveness of foreign judgments (Burroughs v. Jamineau, Mosely, 1; Boucher v. Lawson, Cas. Temp., Harkwicke, 85, 89; Gold v. Canham, rep. in note to Kennedy v. Cassilis, 2 Swanst. 313, 325), the large majority of the cases decided late in the eighteenth, and early in the nineteenth century hold the same view as that expressed in the order of reversal quoted. Walker v. Witter, 1 Doug.
1; Hunter v. Potts, 4 Term R. 182; Hall v. Odber, 11 East, 118; Herbert v. Cook, Willes, 36 n; Bayley v. Edwards, 3 Swanst. 703; Dupleix v. De Rover, 2 Vern. 540. In the case
of Isquierdo v. Forbes, 1 Eq. Ca., Abr. 83, pl. 3, Ld. Ch. Hardwicke went so far as to hold himself 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 the Court of Great Sessions in Wales, whose judgments he considered clearly liable to reexamination as to the merits. In the case of Phillips v. Hunter, 2 H. Bl. 402, Ld. Ch. J. Eyre evolved a most surprising and illogical distinction, which was afterwards widely recognized in this country, and perhaps would still be in some courts, although now totally abandoned in England, holding that a foreign judgment was examinable on its merits when it was sued upon as a cause of action, but saying, "in all other cases we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us." In view of the extent to which this distinction was for a time followed (see cases cited in Freeman on Judgments, 592), it is curious to remark that it was merely the dictum of Ld. Ch. J. Eyre in that case, unsupported by the citation of any authority, and that he dissented from the opinions of the other six judges who took part in the decision of the case.
The early American decisions construe the act of 1790 as merely regulating the manner of proving the judgments of sister states, and declare them to be foreign judgments, and, therefore, following the English authorities, examinable on their merits. Thus in
Taylor v. Bryden, 8 Johns. 173, which was an action on a judgment obtained in Maryland, Kent, J., says: "The question, then, is how far and to what extent do the English courts permit foreign judgments to be opened to let in a re-examination of the merits;" which, he says, is answered by the opinion of the House of Lords, in Sinclair v. Frazer, that such a judgment is prima facie good, but the justice of it may be impeached. In Bartlett v. Knight, 1 Mass. 401, Sewell, J., says: "My opinion is that the effect of a judgment-that is, the right of the party claiming under it, and the right of the party charged by it-are not enlarged or affected by the constitution or laws of the United States. The article cited from the constitution of the United States, and the act of Congress pursuant to it, appear to me to be confined to the sole purpose of directing the modes of proof, and the effect thereof, to be employed in authenticating records, when certified from one state to another within the United States.
I conclude, therefore, that a judgment certified from a court of record in any other state, when demanded as a debt within this state, is not an incontrovertible proof of such debt, and that the grounds of such judgment, when impeached by the defendant, may be on that occasion examined." The early cases are collected in the notes to Bartlett v. Knight and Andrews v. Herriott, 4 Cowen, 508.
It will thus be seen that at the beginning of this century the law of England and of the United States, as to the validity of foreign judgments-among which, notwithstanding the act of 1790, were included the judgments of sister states in this country-was to the same effect, namely, that they were prima facie good, but impeachable; in other words, the law, as to the effect to be given to a judgment of a sister state, was just what it would have been if the act of 1790 had never been passed.
Until the decision of Mills v. Duryee, 7 Duryee, 7 Cranch, 481, this continued to be, though with considerable conflict of opinion, the prevailing rule; but that case, while it was contrary to the prevailing opinion, being a construction of a federal statute by the highest federal court, changed the whole current of decision. The language of the court in that case was so broad as almost to negative the possibility of any defence to an action founded on the judg
ment of a court of a sister state, if the plaintiff produced a record properly authenticated, and that at least one of the court understood it to go to such length, is evident from the terms of the dissenting opinion of Johnson, J. The point actually decided was, only, that nil debet was not a good plea to such an action, but the effect of the whole opinion was so variously interpreted in different states, some holding that the act of 1790 must be construed so as to give judgments of sister states the full effect of domestic judgments, some admitting the right to inquire into the jurisdiction of the court which rendered the judgment, some denying that right, and others again making that right to depend on the averments of the record, some admitting the plea of fraud in obtaining the judgment, others excluding it, and altogether making all sorts of possible and impossible distinctions, that an attempt to reconcile the innumerable conflicting decisions on this question would be simply hopeless. In Christmas v. Russell, 5 Wall. 290, the supreme court decided that fraud could not be pleaded as a defence to an action at law, on a judgment of a sister state, and in Maxwell v. Stewart, 22 Wall. 77, reaffirmed the rule. In Thompson v. Whitman, 18 Wall. 457, and in Gaslight and Coke Co. v. Knowles, 19 Wall. 58, the right to attack, by plea, the jurisdiction of the court which rendered the judgment, whether in rem or in personam, and for this purpose to contradict any averment of the record, was definitely established by the same court. The matter is thus summed up by the court in the former case: "On the whole we think it clear that the jurisdiction of the court, by which a judgment is rendered in any state, may be questioned in a collateral proceeding in another state, notwithstanding the provisions of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself." As a general proposition, therefore, it would be correct to say that fraud is not a defence to an action on a judgment of a sister state, and that except pleas of avoidance and satisfaction, such as payment, statute of limitations, etc., the only defence that can be made is to show that the judgment is void for want of jurisdiction in the court which pronounced it. But as far as the defence of fraud is concerned, there would seem to be at least one, and possibly
two exceptions to the rule.
It was decided in Hampton v. McConnell, 3 Wheaton, 234, and the ruling has been since often quoted with approval by the same court, that full faith and credit are given to the judgment of a state court when in the courts of another state it receives the same faith and credit to which it was entitled in the state where it was pronounced. If, therefore, fraud in obtaining the judgment would be a good defence to an action on it in the state where it was pronounced, it must be a good defence in any other state also; to hold otherwise, would be to require not the same, but a greater effect to be given by the sister tribunal, than would be accorded to the judgment in the state where it was rendered. Bigelow on Estoppel 217, Freeman on Judgments, 576, and cases cited.
Again, if it be competent for a defendant, against whom a judgment has been rendered in a sister state, to go into a court of equity in his own state, for the purpose of obtaining an injunction to restrain proceedings at law upon the judgment, on account of fraud in obtaining it, a point not passed upon, nor before the court in Christmas v. Russell, though frequently decided affirmatively by other tribunals (Pearce v. Olney, 20 Conn. 544; Engel v. Scheuerman. 40 Ga. 206; Dobson v. Pearce, 12 N. Y. 156; Rogers v. Gwin, 21 Iowa, 58) then in those states having codes, which permit equitable defences to suits founded on legal causes of action, the fraud could, to prevent circuity of action, be pleaded directly as a defence to the action on the judgment; and so it was held in Rogers v. Gwin by Dillon, J., and in Dobson v. Pearce.
As the jurisdiction of the court which pronounced the judgment sued upon is always open to inquiry, the question at once arises, in every case of this kind, whether the court did have jurisdiction. The only way of acquiring jurisdiction over a defendant at common law, is by his voluntary appearance, or by service of process upon him personally; but more recently, various kinds of constructive or substitutional service, prescribed by statute, have become common. That the writs of the courts, or the laws of a state have no extra-territorial force, and that, therefore, a judgment of a state court rendered against a non-resident, on a constructive service authorized by the laws of that state, or on per
sonal service on the defendant beyond the limits of that state is void for want of jurisdiction, has been settled by a long line of decisions of the Supreme Court of the United States, of which the leading one is D'Arcy v. Ketchum, 11 Howard, 165, and the latest, Pennoyer v. Neff, 6 Cent. L. J. 252. But where a judgment is rendered against a citizen of the state where it is pronounced, in an action in which the court acquired jurisdiction over him by any method prescribed by the law of that state, and designed to be a predicate for a personal judgment, and not, like attachment proceedings, intended to affect only the property of the defendant, subjected to the jurisdiction of the court, it would seem that such judgment is good and binding. If, therefore, by the law of any state, service of process on a defendant is good if the writ be left at his residence, although it never come to his knowledge; or if, as in New York, the court acquires jurisdiction over a defendant by the unauthorized appearance of an attorney for him, (Denton v. Noyes, 6 Johns. 296; Hamilton v. Wright, 37 N. Y. 502; Brown v. Nichols, 42 N. Y. 26), a judgment rendered against a citizen of that state, by a court of that state, in an action wherein the court acquired jurisdiction in such a manner, is conclusive everywhere. For every state has, and by virtue of its sovereignty must have, the power to prescribe any method it sees fit to adopt, by which its own courts may obtain jurisdiction over its own citizens; and whenever a man takes up his residence in any state, he thereby makes himself amenable to all the laws of that state, and is estopped to deny that they are binding on him. Thus it has been held by the Supreme Court of the United States in Lafayette Ins. Co. v. French, 18 How. 408, that if a statute of a state prescribes that service on the agents of foreign corporations doing business in the state should give the courts jurisdiction in any action against such corporations, a foreign corporation doing business in such state must be conclusively taken to have agreed to be bound by such service, and a judgment rendered thereupon is binding everywhere. R. R. Co. v. Harris, 12 Wall. 81; Fonda v. B. A. Assurance Co., 6 Cent. L. J. 305. As a corporation doing business in, so must any person living in any state, be conclusively taken to have agreed to be bound by any
method prescribed by law by which the courts shall acquire jurisdiction. "In regard to citizens while within the territory of their birth, or of their adopted allegiance, the jurisdiction of the sovereignty over them, is complete and irresistible. It can not be controlled, and it ought to be respected everywhere." Story Confl. of Laws, § 540. To hold otherwise, is to say, that a foreign tribunal, and not the state itself, shall prescribe how its own courts shall acquire jurisdiction over its own citizens. Every case decided by the Supreme Court of the United States from D'Arcy v. Ketchum to Pennoyer v. Neff, in which a defendant sued on a judgment obtained against him in another state, was enabled to overcome the judgment by showing that the service was constructive. and gave the court no jurisdiction over him, it will be found, on examination, was a case where the defendant was a non-resident of the state in which the judgment was obtained. The question always has been, as it was put by the court in D'Arcy v. Ketchum, where they say: "The question is, if it was intended, by the act of 1790, to declare a new rule, which would bind the citizens of one state to the laws of another;" and this has invariably been answered in the negative; and every case which asserts the right to deny that jurisdiction was acquired by the substitutional service, lays weight on the non-residence of the defendant. That the efficacy of the laws of any state, in giving its courts jurisdiction over its own citizens or residents by substitutional service of process, can not be disputed in an action on a judgment rendered in pursuance of such laws, though never actually decided by the Supreme Court of the United States, is held by many American authorities, and is conclusively established in England, where the law in regard to foreign judgments has, simply on principles of private international law, reached the same result as our law in regard to judgments of sister states under the act of 1790that they are conclusive when pronounced by courts having jurisdiction. In Biesenthal v. Williams, 1 Duval, 329, a judgment had been obtained in Ohio against a citizen of that state, in an action in which the service had been constructive, as authorized by law. This judgment was sued upon in Kentucky, and the jurisdiction of the Ohio court was attacked. The court say: "However null such
a judgment, rendered on such service, against the citizen of another state might be, because the legislative enactment of Ohio could not operate extra-territorially, yet as to her own citizens the question is far different;" and the judgment was held conclusive.
In Gaslight and Coke Co. v. Knowles, 19 Wall. 58, the court close their opinion as follows: "We do not mean to say that personal service is in all cases necessary to enable a court to acquire jurisdiction of the person. Where the defendant resides in the state in which the proceedings are had, service at his residence, and perhaps other modes of constructive service, may be authorized by the laws of the state. But in the case of non-residents, like that under consideration, personal service can not be dispensed with, unless the defendant voluntarily appears;" clearly implying that if constructive service is authorized by the laws of any state, it is binding on residents.
In the case of Schibsby v. Westenholz, L. R., 6 Q. B. 155, Blackburn, J., in the course of one of those luminous opinions for which he is famous, thus sums up the law on the question before him, namely, on what persons a foreign judgment is conclusively binding: "Now, on this we think some things are quite clear on principle. If the defendants had been at the time of the judgment subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been, at the time when the suit was commenced, resident in the country, so as to have the benefit of its laws protecting them, or as it is sometimes expressed, owing temporary allegiance to that country, we think that its laws would have bound them. If, at the time when the obligation was contracted, the defendants were within the foreign country, but left it before the suit was instituted, we should be inclined to think the laws of that country bound them, though before finally deciding this, we should like to hear the question argued. Again, we think it clear, upon principle, that if a person selected as plaintiff the tribunal of a foreign country as the one in which he would sue, he could not afterward say that the judgment of that tribunal was not binding on him." That, by the laws of the foreign country, the judge, in the above extract, refers to laws prescribing means of ac
quiring jurisdiction over defendants, appears from the whole case, and from the fact that in the case of Goddard v. Gray, L. R., 6 Q. B. 139, he had just decided that if a foreign court only had jurisdiction, its judgment was conclusive in England, though it was based on an erroneous construction of the English law, or was even contrary to natural justice. Other cases sustaining the binding force of constructive service on citizens and residents are McRae v. Mattoon, 13 Pick. 58; Bimeler v. Dawson, 4 Scammon, 542; Welsh v. Sykes, 3 Gilm. 197; Reber v. Wright, 68 Penn. St. 471; Stockwell v. McCracken, 109 Mass. 84; Douglass v. Forrest, 4 Bing. 703; Becquect v. McCarthy, 2 B. & Ad. 951; Valee v. Dumergue, 4 Exch. 290; Meeus v. Thelluson, 8 Exch. 638; Copin v. Adamson, L. R. 9 Exch. 345.
In actions in rem the jurisdiction of the court over the res always depends on the fact of its being locally subject to the control of the court, and sometimes on other additional facts, such as the fact of capture, in actions of condemnation as prize; and whenever a judgment in rem is called in question in another state, the existence of the facts necessary to give jurisdiction may always be denied, notwithstanding an express adjudication by the court which pronounced the judgment that they did exist. Thompson v. Whitman, 18 Wall. 457. A striking case, denying the jurisdiction of a court of a sister state, not over the person, nor in rem, but to give the particular relief granted, is that of Taylor v. Columbian Ins. Co., 99 Mass. 267. There, a New York corporation was sued in Massachusetts, and, among other defenses, it was objected that the corporation had been, prior to the bringing of this suit, dissolved by a decree of the Supreme Court of New York, and hence, of course, could no longer be sued. But it was held by the Supreme Court of Massachusetts, "that to decree an absolute and final dissolution of a corporation at the suit of an individual is no part of the general jurisdiction of a court of law, or of equity, and can be justified only by express statute;" that the statute under which the Supreme Court of New York had assumed to act did not really confer upon it such jurisdiction, and that hence its decree was void. But suppose this same statute had been expressly construed by the highest court of New York to confer such jurisdiction, would not
the judgment have been binding on the Massachusetts court? For it is one thing to say that you may contradict the findings of a court of the facts necessary to give it jurisdiction; it is quite another thing to say that the construction put upon a statute of a state, by its highest court, is not the law of that state. It is admitted that it was competent, by law, to confer the jurisdiction in question on the Supreme Court of New York; the only question would be whether, by the law of that state, this had been done; and the law of New York must be its statutes, with the construction given them, not by the Massachusetts court, but by its own highest court. G. H. W.
This was an indictment for larceny. The defendants pleaded former conviction upon an indictment for burglary with intent to commit larceny, and judgment of three years' confinement in the penitentiary, and that said judgment remains in full force and effect, and not reversed or made void; and that said larceny charged in the case, upon which they were convicted, is the same upon which they are now charged, etc. To this plea the state replied, admitting the truth of the facts pleaded. To this replication defendants demurred. The facts pleaded are admitted by the state, and the question presented is: Can the state, at the election of her attorney-general, make two offenses out of one and the same transaction?
There are cases holding the affirmative of this proposition. In Bish. Cr. Law, § 893, an Indiana case is cited as sustaining the proposition that an acquittal of burglary with intent to commit a larceny is no bar to a subsequent prosecution for the actual commission of the larceny; and a Connecticut case, holding that a conviction for larceny is no bar to an indictment for burglary with intent to commit the larceny. But C. J. Waite says in a dissenting opinion: "I take it to be a sound rule of law, founded upon the plainest principles of natural justice, that, where a criminal act has been committed, every part of which may be alleged in