
    Isaac Bissell versus Seth Briggs.
    When the judgment of a foreign court is produced by a party here, to justify himself in the execution of such judgment in the country in which it was rendered, and it appears that the court rendering it had jurisdiction of the cause, the justification is admitted, and the regularity of the proceedings is not to be drawn into question. But if the foreign court had no jurisdiction of the cause, the justification will be rejected, without inquiring into the merits of the judgment.
    [f such judgment be produced to obtain execution of it here, and the court rendering it had jurisdiction of the cause, yet it is still open to an inquiry into its merits.
    When a record of a judgment, of any court of any of the United Slates, is produced here as conclusive evidence, the jurisdiction of the court rendering it is open to inquiry; and if it should appear that the court had no jurisdiction, as if the judgment were rendered against one not within the state, nor hound by its laws, nor amenable to the jurisdiction of its courts, no faith or credit will be given to the judgment.
    A court of another state must have had jurisdiction of the parties, as wel as of the cause, for its judgment to be entitled to the full faith and credit mentioned in the federal constitution.
    Judgments rendered in the courts of another of the United States, when produced here as the foundation of actions, are not to be considered as foreign judgments ; because, the jurisdiction of the courts being established, the merits of the judgments are not to be inquired into. Neither are they to be considered as domestic judgments, rendered in our own courts of record ; because the jurisdiction of courts rendering them is a subject of inquiry. But so far as the courts had jurisdiction, they are to have full faith and credit in our courts. They may, therefore, be declared on as evidences of debt, or of promises; and, on the general issue, the jurisdiction of the court rendering them is put in issue, but not the merits.
    This was an action of debt upon a judgment recovered, in the Superior Court of Judicature, in the state of New Hampshire, by the present plaintiff against the defendant, and one Joseph Gair. since deceased.
    The defendant pleaded two several pleas, nil debet, and not guilty. On both these pleas issue was joined to the country.
    The trial of these issues came on before the Chief Justice, November term, 1811, when the plaintiff produced in evidence a record of the judgment declared on, authenticated as is required by the statute of the United States, 1 Cong. Sess. 2, c. 11.
    From the record produced, it appeared * that the original action was trespass de bonis asportatis; that the plaintiff was an inhabitant of New Hampshire, and that the defendants were inhabitants of Massachusetts; that the defendants being in the state of New Hampshire, the original writ was served on them personally ; that they appeared, took on themselves the defence of the suit, and pleaded to the action; and that judgment was rendered for the plaintiff, as he has alleged in his declaration. On this evidence the plaintiff rested his cause, insisting that the judgment was in this case conclusive.
    The defendant insisted that it was competent for him to impeach the judgment, by evidence proving that the plaintiff ought not to have recovered judgment for any damages ; or, if he was entitled to any damages, yet that too great damages had been assessed against him and the deceased Gair.
    
    The cause was then taken from the jury, and the parties agreed to submit the question thus raised to the opinion of the whole Court; and if the Court should be of opinion that the said judgment was conclusive, so that the defendant could not be admitted to show that nothing ought to have been recovered against him and Gair in the former action, or that the damages assessed therein were too great, the defendant agreed that judgment should be rendered against him by default, for the damages recovered in the former action, with interest thereon; otherwise a trial was to be had on the merits of the demand.
    The cause was argued under this agreement, at the last March term in this county, by Dexter for the plaintiff, and Bigelow for the defendant; and afterwards, in the same term, judgment was pronounced as follows by
   Parsons, C. J.

As the effect of judgments recovered in other states in the Union, when produced in this Court to maintain actions sued here on such judgments, has been the subject of much discussion, we have considered in some detail the effect which is allowed to foreign judgments in our courts.

* A foreign judgment may be produced here by a party to it, either to justify himself by the execution of that judgment in the country in which it was rendered, or to obtain the execution of it from our courts.

If the foreign court, which rendered the judgment, had jurisdiction of the cause, the justification is admitted, and the regularity of the proceedings is not to be drawn into question. But if the foreign court had no jurisdiction of the cause, the justification will be rejected, without inquiring into the merits of the judgment. In such case, therefore, the judgment may be impeached, by showing that the Court rendering it had no jurisdiction of the cause.

If the judgment be produced by a party, to obtain the execution of it here, the question of the jurisdiction of the Court rendering it, is still open to inquiry. And if a defect of jurisdiction should appear, the party producing the judgment must fail, without any inquiry into its merits. But if the foreign court rendering the judgment had jurisdiction of the cause, yet the courts here will not execute the judgment, without first allowing an inquiry into its merits. The judgment of a foreign court, therefore, is by our laws considered only as presumptive evidence of a debt, or as prima facie evidence of a sufficient consideration of a promise, where such court had jurisdiction of the cause; and if an action of debt be sued on any such judgment, nil debet is the general issue; or, if it be made the consideration of a promise, the general issue is non assumpsit. On these issues the defendant may impeach the justice of the judgment, by evidence relative to that point. On these issues the defendant may also, by proper evidence, prove that the judgment was rendered by a foreign court, which had no jurisdiction ; and if his evidence be sufficient for this purpose, he has no •'ccasion to impeach the justice of the judgment.

Before the ratification of the confederation of the United States, all the courts of the several provinces, colonies, or states, were, at common law, deemed to be foreign to * each other, and judgments rendered by any one of them were considered by the others as foreign judgments.

As some inconveniences resulted from this consideration of the judgments rendered in the neighboring colonies, by debtors, after judgments against them, removing with their effects into the then province of Massachusetts Bay, before satisfying those judgments,— it was provided by the provincial act of 14 Geo. 3, c. 2, that on judgments rendered in the courts of the neighboring colonies, actions of debt might be sued here, and that, on a plea of nul tiel record, the records of those judgments, attested by the clerk of the court rendering the same, should be good and sufficient evidence of the records. By this statute, judgments rendered in the courts of the neighboring colonies could not be here impeached, provided the courts rendering those judgments had competent jurisdiction. For the statute is predicated on the fact that the defendants were, at the time of rendering the judgments, inhabitants of the colonies in which the judgments were obtained. This act was in force until the statute of 1795, c. 61, was passed.

In the mean time, by the ratification of the confederation, the several states agreed “ that full faith and credit should be given in each of the states to the records, acts, and judicial proceedings, of the courts and magistrates of every other state.”

Afterwards a similar provision was made in the federal constitu tian, which declares that “ full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings, of every other state;” and power is given to the Congress to prescribe the manner in which such acts, records, and proceedings, might be proved, and the effect thereof.

By an act of the first Congress, c. 38, this power was executed; and it is therein enacted that records and judicial proceedings, authenticated as in that act is prescribed, shall have full 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.

By the statute of the commonwealth already cited, (1795, c. 61,) actions of debt may be brought upon any judgment for debt, damages, or costs, rendered in any court of record of the United States, or of any other state in the Union, in any court of record of this commonwealth holden for the county, in which either party shall dwell, or in which the debtor shall have any valuable estate. This statute is now in force here; for we know of no provision in the federal constitution, or in any law of Congress passed in pursuance of it, prohibiting any state from giving to judgments recovered in any other state any effect it may think proper; so that it does not derogate from the effect secured by the constitution, and the acts of Congress passed under it.

But it does not appear to me to be material whether this cause is to be governed by our statute, or by the laws of the United States, as my opinion will rest upon the same principles. And I am satisfied that it was the intention of our own legislature, and also of the federal government, to place the judgments recovered in any of the courts of the United States on better ground than judgments rendered in any other state or country; and that judgments of this last description only can now be considered as foreign judgments.

If such was not the intention, it is difficult for me to conceive on what ground so much care was taken, as well in the confederation as in the federal constitution, to give full faith and credit to judgments rendered in any of the United States. If it be supposed that all this care was taken to restrain any state from placing the judgments of the other states on a ground less favorable than judgments rendered in foreign states or countries, this supposition is defeated by the act of Congress before referred to, which enacts that the judgments of any of the United States, duly authenticoted, shall have in each state the same faith and * credit given to them, as they have in the state whence they shall have been brought.

It has been further objected, on the part of the defendant in the case at bar, that the provision in the federal constitution has no force until Congress declare the effect of judgments rendered in any of the United States, and that Congress has made no such declaration.

But this objection is founded on an erroneous construction of the constitution; for, by the express words of the constitution, all the effect is given to judgments rendered in any of the United States, which they can have, by securing to them full faith and credit, so that they cannot be contradicted, or the truth of them denied. And the future effect which Congress was to give relates to the authentication, the mode of which is to be prescribed. In this sense the Congress understood the subject;,for, after providing a mode of authentication, it is enacted that judgments so authenticated shall have the same full faith and credit given to them in every state, as they have in the state from whence they were taken.

But neither our own statute, nor the federal constitution, nor the act of Congress, had any intention of enlarging, restraining, or in any manner operating upon, the jurisdiction of the legislatures, or of the courts of any of the United States. The jurisdiction remains as it was before; and the public acts, records, and judicial proceedings, contemplated, and to which full faith and credit are to be given, are such as were within the jurisdiction of the state whence they shall be taken. Whenever, therefore, a record of a judgment of any court of any state is produced as conclusive evidence, the jurisdiction of the court rendering it is open to inquiry; and if it should appear that the court had no jurisdiction of the cause, no faith or credit whatever will be given to the judgment.

This question came before the Circuit Court of the United .States holden at Exeter some years since. Dr. Scott, late of Boston,, while he lived, was seised of lands in New Hampshire.

* His administrator obtained a license from the legislaturc of Massachusetts to sell those lands, and under that license they were sold. When the children of Dr. Scott came of age, they sued a writ of entry against the assignee of the purchaser, to recover the lands. The license and sale under the authority of the state of Massachusetts were given in evidence in the defence; and the federal constitution and the act of Congress were relied on. But the Court were of opinion that the full faith and credit that were to be given to public acts of the legislature, were confined to those acts which a legislature had lawful authority to pass; and that it was not within the jurisdiction of the legislature of Massachusetts to license the sale of lands in New Hampshire.

And upon the same principle, if a court of any state should render judgment against a man not within the state, nor bound by its laws, nor amenable to the jurisdiction of its courts,— 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 to the judgment.

In order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the federal constitution, the court must have had jurisdiction, not only of the cause, but of the parties.

To illustrate this position, it may be remarked that a debtor living in Massachusetts may have goods, effects, or credits, in New Hampshire, where the creditor lives. The creditor there may lawfully attach these, pursuant to the laws of that state, in the hands of the bailiff, factor, trustee, or garnishee, of his debtor; and on recovering judgment, those goods, effects, and credits, may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this state for those goods, effects, or credits, shall in our courts be protected by that judgment, the court in New Hampshire. having jurisdiction of the cause for the purpose of rendering that judgment, — *and the bailiff, factor, trustee, oi- garnishee, producing it, not to obtain execution of it here, but for his own justification. If, however, those goods, effects, and credits, are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment in this state to obtain satisfaction, he must fail, because the defendant was not personally amenable to the jurisdiction of the court rendering the judgment. And if the defendant, after the service of the process of foreign attachment, should eilher in person have gone into the state of New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits, from the effect of the attachment, he would not thereby have given the court jurisdiction of his person; since this jurisdiction must result from the service of the foreign attachment. It would be unreasonable to oblige any man living in one state, and having effects in another state, to make himself amenable to the courts of the last state, that he might defend his property there attached.

From this reasoning the conclusion is manifest, that judgments rendered in any other of the United States are not, when produced here as the foundation of actions, to be considered as foreign judgments, the merits of which are to be inquired into, as well as the jurisdiction of the courts rendering them. Neither are they to be considered as domestic judgments, rendered in our own courts of record, because the jurisdiction of the courts rendering them is a subject of inquiry. But such judgments, so far as the court rendering them had jurisdiction, are to have in our courts full faith and credit. They may, therefore, be declared on as evidences of debts or promises; and, on the general issue, the jurisdiction of the courts rendering them is put in issue, but not the merits of the judg ments.

When we look into the case before us, we find that the judgment, on which the present action was brought, was rendered in a court of record in the state of Neio Hampshire, against defendants who are named in the writ as of Boston, *in this commonwealth; and it is agreed that, when the writ was issued and served, they were in the state of New Hampshire, and that the original process was served on them personally. It appears from the record, and is agreed, that they appeared to the writ and defended the action, and were thus parties to the judgment. Now, an inhabitant of one state may, without changing his domicile, go into another; he may there contract a debt or commit a tort; and while there he owes a temporary allegiance to that state, is bound by its laws, and is amenable to its courts. The de fendant, Briggs, must, therefore, be considered as a party to a judgment rendered against him by a court which had jurisdiction of the cause and of the parties to it. He cannot, therefore, in my opinion, be admitted by evidence to impeach that judgment, or to deny it, or in any manner to derogate from the full faith and credit to which it is entitled.

Parker, J., concurred.

Sedgwick, J., and Thatcher, J.,

were not present at the argument or decision of the action.

Sexvall, J.

The difference of opinion, in deciding the question submitted to the opinion of the Court in the case at bar, is to be regretted, particularly on my part; but I have found it unavoidable, after a full consideration of the provisions of the constitution and the statutes of the United States, which, in the apprehension of a majority of the Court now present, and who alone were present at the argument, are to govern the decision. My dissent from my brethren may perhaps be attributed to a preconceived opinion, formed on the same general question, in the case of Bartlett vs. Knight, decided in this Court in the year 1805. But on that occasion, the Court were unanimous, and the decision may be allowed to have, with me at least, some authority. I must on this occasion also notice the case of Hitchcock & Al. vs. Aicken, which had been previously decided in the Supreme Court of the state of * New York, in a manner which fully warranted the decision in Bartlett vs. Knight. I have not, however, been satisfied to rest my present opinion on these authorities, and have preferred to examine the question with the diffidence of my former opinion, which the authorities now opposed to me are calculated to excite.

It would seem, from the course of the argument, that the motion for a new trial, in the case at bar, depends upon the general question, whether a judgment recovered in the Superior Court of the state of New Hampshire (the record thereof, and the proceedings on which it was founded, having been authenticated according to the provisions of the statute of the United States) is to be regarded in the light of a domestic judgment, rendered in the Supreme Court of this state, and is to have the effect of incontrovertible evidence of a debt or promise, in an action commenced in a court of record within this state, to enforce payment.

On this question, however, there is but one opinion ; and it is this, as I understand it, — that a judgment certified from New Hampshire has not the effect of a domestic judgment, and is not, as this would be, incontrovertible evidence of a debt or promise. I can in no other way account for the issues taken to the country on the pleas of nil debet and not guilty, or for the requisition of a fact inserted in the report as proved at the trial, and now deemed essential to the decision, although not appearing in the proceedings certified, viz., that the writ in the original suit had been served upon the persons of the present defendant and his companion in the supposed trespass, upon which the judgment was founded. If an issue to the country is admissible, and facts extraneous to the record are to be proved, in an action of this nature, and otherwise maintained by the evidence' of authenticated copies, then the proceedings and judgment are not in all respects conclusive, but are examinable to some purposes and to * some extent. A judgment recovered in New Hampshire, however authenticated, has not the legal operation of a judgment recovered in Massachusetts. What will be its operation and legal effect remains to be considered.

By a clause in the federal constitution, full faith and credit are to be given, in each state, to the public acts, records, and judicial proceedings, of every other state; and Congress are authorized to prescribe, by general laws, the manner in which such acts, records, and proceedings, shall be proved, and the effect thereof. The manner of authenticating has been prescribed; and records and judicial proceedings, so authenticated, are to have such faith and credit given to them in every court of 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.

Does faith and credit, whether full, or determined by the laws and usages of the state from whence the record of a judgment is authenticated, import legal effect and operation ? This import, although professedly stated, I believe, to be the true construction, was practically denied in all the cases which occurred, where the same words, used in the articles of confederation, were brought into question.

In the case of Kibbe vs. Kibbe, in the Superior Court of the state of Connecticut, an action of debt upon a judgment certified from the Supreme Court of the state of Massachusetts, was refused to be sustained, upon the ground that the supposed judgment debtor had not been personally served with process to compel his appearance in the original cause; and that, therefore, the court, where the judgment was recovered, had proceeded without any jurisdiction of the cause.

So, afterwards, in the case of Phelps vs. Holker, in the Supreme Court of Pennsylvania, a judgment, obtained also in Massathusetts, was refused any credit; and, to justify the refusal, it was supposed that the judgment had been recovered in a process of foreign attachment which, it was * said, was a process in rem, not charging the person of the party summoned.

Now, if full faith and credit mean any thing, one would suppose the judgments certified from Massachusetts to have been entitled to credit for the jurisdiction of the court in which they were rendered; that is, that their authority had been d"'v exercised, according to the laws and usages of Massachusetts, ot which the judgments themselves were sufficient evidence ; and especially that a judgment against the person had not been rendered on a process restricted in its operation to the article returned as attached, and there understood to be altogether a process in rem.. These decisions are, therefore, to be regarded as violent expedients, to which recourse was had to avoid a construction at which courts of justice naturally revolt, as soon as the consequences in particular cases are perceived.

* In the case of Armstrong vs. Executors of Carson, before Judge Wilson, in the Circuit Court of the United States for the district of Pennsylvania, after the federal constitution and the act of Congress, to prescribe the mode in which the public acts, records, and judicial proceedings, in each state, shall be authenticated, so as to take effect in every other state,” the effect of authenticated records and judgments was considered as settled. Judge Wilson determined that an authenticated judgment was to have the same effect in the court to which it was certified, as in the court from which it was taken. But, then, he concluded that a plea of nil debet to an action of debt on a judgment recovered in the state of New Jersey, as such a plea would not be sustained in the courts of New Jersey, was inadmissible in any court sitting in Pennsylvania. And we must allow that his conclusion was consistent with his premises, and the only just inference that could be established by them.

If the rules and doctrines of the common law, on this subject, have been abrogated by the federal constitution and the act of Congress, so far as the several states and the nation of the United States are concerned, — if the several states are no longer foreign to each other, in the jurisdictions of their legislative assemblies and judicial courts, — then, indeed, what is decreed in one state, whether legislatively or by the interpretation of the law in a civil action, is authoritative, in every other state, to be implicitly obeyed and carried into execution : and it is only upon this ground that judgments rendered in one state are to be received as conclusive evidence of a debt or promise, when, to enforce payment, actions are brought upon them in the judicial courts of another state. To inquire of the jurisdiction of a supreme or superior court, from which a judgment is certified, is to refuse full faith and credit; and judgments are certainly deprived, in the outset of the inquiry, of the effect to which they would be entitled, in the state from whence they are taken. .

*In the decision of the case of Hitchcock & Al. vs. Aicken, already mentioned, in the Supreme Court of the state of New York, the better opinion — that of three justices against two — was, that the rules and doctrines of the common law remain unaltered in their application in this particular; and that the states of the confederacy of the United States remain, as before their union, for certain purposes foreign to each other in the exercise of all legislative and judicial authorities; in short, that, by the full faith and credit provided for in the clause cited from the federal constitution, and in the statute enacted pursuant thereto, is not intended legal operation and effect, but the effect of evidence, to be received as competent' under the formalities prescribed. Judge IAvingston, one of the justices who dissented, in the report of his argument is made to cite the decisions in Connecticut and Pennsylvania with approbation, and to resolve them into the necessary discretion required in cases which lex non exacte definit, sed, arbitrio ■boni viri permittit. And it is obvious that the construction contended for, of the provisions of national law on this subject, leads inevitably to the exercise of a discretion which is guided by no rule, one consequence of which must be, that authenticated judgments are to be received either as conclusive evidence, or to be rejected as no evidence at all, by a discretion which is to be employed in each particular case.

For my part, I am desirous of adhering to the rules of the common law, for I cannot admit the construction that authenticated judgments, taken from one state, are, in every other state, conclusive evidence of a consideration from which a debt or promise is to be implied, against the supposed debtor, subjecting him to an action, or rather to an execution, in another jurisdiction than that where the judgment was pronounced. • And on the other hand, I cannot rest in a more limited construction of the provisions of national law on this subject, understood as abolishing the rules of the common law, and introducing a vague discretion to be exercised in a great number of judicatories, so * far independent, of each other as to have no common controlling jurisdiction even in cases of the last resort.

It is not easy to perceive why, in the examination of an authen ticated judgment, by the court to which resort is had for process to enforce payment, the only inquiry to be permitted is of the jurisdiction which the court rendering the judgment-had of the parties. Why not extend it to their jurisdiction of the subject-matter of the action in which the judgment had been recovered ? For it may happen that a party may be concluded, because personally liable to the process of a court which had no jurisdiction of the subject-matter of the action, or where it had been accidentally taken,— if I may use the expression,-—in consequence of the transitory nature of the demand, and by finding the party liable to be transiently within the bounds of their territory. It is at least sapposable that, in such a case, where the laws of another jurisdiction are to be administered, not within the judicial cognizance of the court, an erroneous judgment may have been rendered upon facts alleged or proved, and this may be apparent from the proceedings certified. The case would be stronger, if such a judgment should be brought, to be enforced in the state where was the proper jurisdiction of the subject-matter of the original action, and whose laws had been thus erroneously administered in another jurisdiction.

Other suggestions might be made, of cases arising under laws esteemed to have been enacted against public faith, or contra bonos mores; or judgments recovered against positive regulations within the state to which they are brought to be enforced. Such, for instance, would be judgments upon usurious or gaming contracts, illegal and void where made, but which may happen to be recovered where no such restraints are recognized.

But I need not enlarge upon these possible examples, having said sufficient to show that judgments, rendered in other states than that to which they are brought to be enforced, may be reasonably opened to other inquiries than* that of the jurisdiction which the courts rendering the judgments might have had of the persons of the parties charged thereby. What is proposed in this respect is not, strictly speaking, an inquiry of the jurisdiction, which must be understood to be proved, if any thing is conclusively proved, by the judgment of a Supreme Court; but it is an inquiry of the manner in which a particular jurisdiction is exercised, according to its own regulations and the laws of the state from whence an authenticated judgment is taken, in order to determine whether a judgment there rendered is entitled to the effect supposed to be secured in all cases by laws pursuant to the federal constitution. Regarded as foreign judgments in point of jurisdiction and legal operation and effect, all these inqui ries, legal in themselves, and essential to every independent administration of justice, are open by the rules and maxims of the common law. These are known in their application and extent. Foreign judgments are not conclusive evidence of a debt, but prima facie evidence, and conclusive, if not justly impeached as irregularly or unduly obtained.

I think the proceedings and judgment, relied on as conclusive evidence in the case at bar, are open to be examined, and that it is competent for the supposed judgment debtor to impeach, if he can, the judgment now to be enforced against him by the process of this Court. The record certified presents a case in which an inquiry, with us, seems to be peculiarly suitable and necessary. The defendant, incidentally visiting in New Hampshire, or occasionally passing within the bounds of that state, became, with his codefendant, since deceased, there liable, or was there charged in an action of trespass. In taking cognizance of the action, the Superior Court of New Hampshire undertook and assumed to administer our laws ; for the defendants were charged, in the original action, as trespassers, in taking certain goods within this state. They admitted the taking, which they justified as done under certain legal process, and by officers of the law, recognized * within this state. The averments of this plea were confessed by a general demurrer. To enforce the judgment rendered upon these pleadings against the defendant, is to administer our own laws by the intervention of a court in New Hampshire, who have no judicial cognizance of our laws or officers.

Where presented as matters of fact, the interpretation of our raws is to be deemed conclusive, and to preclude an examination, where the laws and the subject of thé original action are matters of judicial cognizance. If the judgment in New Hampshire was right, our examination would have no tendency to defeat it; and if wrong, I cannot discover the source of that control or duty, which obliges us to enforce it against our citizen, entitled by his domicile to our protection, and who certainly has not promised to pay, or has not become justly indebted within this state, by a judgment not justified by the laws of the community of which he is a member, if that should be found to be the case upon examination.

The statute of this commonwealth, (1795, c. 61,) also relied on for the plaintiff, has given an action of debt upon a judgment rendered and recovered in any court of record in any other of the United States, &c., to be brought in any court of record of this commonwealth, holden for the county in which either of the parties to such judgments, &c., shall dwell and reside, or in which any valuable effects of the judgment debtor shall be found at the time, &c.; the judgment to be certified in the form, and to the effect, which shall be prescribed by an act of Congress, &c. In this I see no provision, which can be construed to vary essentially the rules of the common law on this subject. The form of action is not directed exclusively; but when brought in that form, there is some degree of locality attached to it, which may not be requisite in another form of action, or in other cases. The requisite evidence is that which the federal constitution furnishes and gives effect to;, but the legal operation of that evidence is not enlarged or varied by our municipal statute.

*1 may add, upon the whole, as suggesting a consideration of some weight in determining a question of this kind, that the decision in the state of New York has been steadily adhered to there, and in subsequent decisions has been spoken of as the settled law. The comity we are disposed to extend on these occasions will not be reciprocated, therefore, in all the states. Nor is it, in any view that I have had of the cases which have occurred, or which may be expected to occur, desirable or expedient that a different construction of the national law, on this subject, from that adopted in the state of New York, should finally prevail. In adhering to the common law, we should have a system of rules which will be uniformly administered, and which afford a sufficient comity for every purpose of equal and exact justice, in cases where the rights of individuals are principally affected.

Per Curiam.

Let the defendant be called,

Defendant defaulted. 
      
      • (1) 1 Mass. Rep 401.
     
      
       1 Caines’s N. Y. Rep. 460.
     
      
       1786, Kirby. 119.
     
      
       1788, 1 Dall. 261.
     
      
       The process, in Massachusetts, on which the judgment sued in the case of Phelps vs. Holker was rendered, and which has obtained the popular name of a foreign attachment, from its resemblance to a proceeding by the custom of London of that name, was not technically a proceeding in rem, as Chief Justice M'Kean was pleased to consider it. The declaration pursued the forms of the common law. So did the pleadings subsequent thereto. Judgment was rendered for the whole sum found due to the plaintiff in the action, and execution issued therefor, without regard to the defendant’s “ reputed property in the blanket,” (which Livingston, J., in commenting on the decision in Phelps vs. Holker, pleasantly enough mistakes for the defendant’s representative in Court, 1 Caines's Rep 473;) and the judgment so rendered, if the proceedings were conformed to the statute, had the same force and effect as a judgment founded on a process more conformed to the course of the common law. The defendant’s agent was admitted to contest the action in every legal mode, on behalf of his principal, who was always supposed to have knowledge of the suit, and might defend against it, if the agent should refuse or neglect to pursue his directions therein. The process alluded to was had under authority of a provincial act of G. 2, which, being originally temporary, was continued by succeeding legislatures until 1795, when a new and permanent act was passed, making some more convenient provisions in the case.
     
      
       2 Dall. 302.
     
      
      
        Doug. 1.
     
      
       See 1 Johns. Rep. 424, Jackson vs. Jackson. — 3 Caines’s Rep. 26, Post & Al vs. Neafie.
      
     
      
       [Vide Jacobs vs. Hull, 12 Mass. Rep. 25. — Commonwealth vs. Greene, 17 Mass. Rep. 545, 546. — Mills vs. Duryee, 7 Cranch, 481. — Hampden vs. Connell, 3 Wheat. 234. — Mayhew vs. Thatcher, 6 Wheat. 129. — Borden vs. Fitch, 15 Johns. Rep. 121. — Andrews vs. Montgomery, 19 Johns. Rep. 162. — Rogers vs. Coleman, Hard. 413.— Ed.]
     