
    Walter Phelps & others vs. Thomas Brewer & others.
    In a suit against a partnership, if one partner is not within the jurisdiction of the court, and is not served with process, and does not voluntarily appear and answer to the suit by hirnself or his attorney, the judgment against the partnership cannot be enforced against him out of the local jurisdiction; even though, by the lex loci, a service on the partner resident within the jurisdiction, is sufficient to authorize a judgment against all the partners.
    The entry, by an attorney, of his general appearance for the defendants, in an action against a partnership, must be construed to be an appearance for the partners as partners, and for the purpose of defending the action against the partnership, and not as an appearance for the partners individually, severally and personally, so as to render a judgment against the partnership, in such action, binding on an individual partner in another jurisdiction, by whom such appearance was not authorized.
    One partner has no implied power to enter an appearance in a suit, except for the partnership, and cannot, by such appearance, bind a partner, personally and individually, who is not within the jurisdiction, and has not been served with process.
    If, by a decree in equity, certain debts are found to be due from the respondent to the petitioner, no action can be maintained against the respondent on the original causes of action, in consequence of any new promise which may be implied by such decree, unless it be brought within such time, subsequent to the date of the decree, as is prescribed by the statute of limitation applicable to such causes of action.
    This was an action of debt, brought in this court, on two alleged judgments, purporting to have been rendered in the county court of the county of Hartford, in the State of Connecticut, in favor of the plaintiffs, against the defendant Brewer and one Elbridge G. Roberts, of the city and State of New York, and Charles L. Roberts of Simsbury in the State of Connecticut, at a term of the court holden on the fourth Tuesday of March, 1840. The writ also contained a count upon a promissory note, given by the New England Carpet Company, dated December 25, 1837, payable in six months from date, also a count upon an account annexed; being the original causes of actions in the suits in Connecticut. The writ is dated April 22, 1847, and no service was made upon either of the defendants except Brewer, who pleads the general issue and the statute of limitations.
    The case was submitted to the court on an agreed statement of facts.
    In support of the counts upon the judgments, the plaintiffs introduced in evidence attested copies of the records thereof, and of the writs in such cases, certified in due form of attestation by the clerk of the county court of the county of Hartford, which is a court of record, having jurisdiction over causes of action like those declared on. ■ These judgments purport to have been rendered against the defendants jointly, for the amount of the account and note described in the plaintiff’s declaration in the present suit, and for interest and costs thereon.
    By the original writs in the cases in which the above judgments were rendered, it appears that the defendant Brewer, Charles L. Roberts, and Elbridge G. Roberts, were declared against as partners, under the name and firm of The New England Carpet Company; but, by the return of the officer, it appears that service was made upon Charles L. Roberts only, and not upon the defendant Brewer, or Elbridge G. Roberts, neither of whom was ever an inhabitant of, or resident in the State of Connecticut. At the entry of these suits in the county court, an appearance was entered by Thomas C. Perkins, Esq., but whether such appearance was for one or all of the defendants therein, is in contest between the parties. Such appearance was never withdrawn or altered upon the record, and, with reference to the same, Mr. Perkins’s deposition, dated March 20,1849, is, so far as material, as follows: — ■
    “ I do know that two suits were brought by Phelps, Beach & Co., then of Hartford, against the New England Carpet Company, in the county court in the county of Hartford and State of Connecticut, in the year 1839, according to my best recollection of the time; and I did appear as attorney of record in said suits, in consequence of directions received from one of the defendants therein. I never had any communication in reference to my appearance in said suits, with any of the defendants therein, except Charles L. Roberts.
    I have no recollection or belief that Mr. Thomas Brewer ever authorized me in any way, directly or indirectly, to enter an appearance for him in said suits, or ever ratified, in any way, such appearance; unless such authority or ratification may be inferred from his business connection with Mr. C. L. Roberts.
    It is impossible for me to recollect the precise language used by Mr. C. L. Roberts, when he authorized me to appear in those suits. I have no recollection or belief that he used Mr. Brewer’s name when he so authorized me, or that he in any way made any special reference to Mr. Brewer.”
    The plaintiffs contended that Perkins’s appearance was entered for all the defendants, and that all the defendants are bound by the judgments in such suits, and that Perkins was duly authorized so to appear by Charles L. Roberts, and that Charles L. Roberts, as a member of the partnership and as the agent of his copartners, was competent and legally empowered so to authorize him; which is denied by the defendants. It was also claimed by Brewer that the partnership was dissolved before said suits were commenced, but this point was not decided in the final disposition of the case.
    The property of the firm, real and personal, except such consignments of their manufactured goods as they may have made to other places, was situated in the county of Hartford, where the manufactory was established. On the 1st of August, 1837, the partnership mortgaged their real estate, buildings and fixtures to one Hugh R. Kendall, to secure him against debt and liabilities to the amount of $58,979.21. On the 24th of February, 1838, the firm, by Charles L. Roberts, conveyed to Kendall a large amount of personal property, raw materials, manufactured articles, goods and chattels, and dioses in action, in trust, to indemnify and pay all their debts to Kendall and his liabilities for them, the surplus, if any, to be paid to The New England Carpet Company; and, on the same day, by an instrument in writing, transferred their interest in such surplus to the plaintiffs in this action, in mortgage, and as security for the note and book debt therein recited. On the 6th of September, 1838, The New England Carpet Company, “ by C. L. Roberts, agent,” conveyed to Kendall, in mortgage, the machinery and tools of their manufacturing establishment; the condition of the mortgage being that the company should, within one day, pay to Kendall all their debts and liabilities.
    It was contended, on the part of the defendant Brewer, that by the above transfers and mortgages the company parted with the whole of their property, or substantially the whole; and that, before the commencement of the actions of these plaintiffs in the county court of Hartford county, the partnership was, in fact and legal construction, dissolved.
    The plaintiffs further proposed to put in evidence the record of a suit in equity brought by Hugh R. Kendall against these plaintiffs and defendants, in the supreme court of Connecticut, September 10, 1838, to foreclose his mortgages. It is admitted that the supreme court of Connecticut is a court of record, and had jurisdiction of the suit, but the defendant Brewer denies the competency of the record. The date of the decree in such suit in equity is August 10,1840, and it is thereby ordered and decreed that, unless the debts due to Kendall under his mortgages, together with interest and costs, shall be paid to him before a specified time, by either the défendants or plaintiffs in this suit, they shall be forever barred and foreclosed of all right, title and equity of redemption in and to the mortgaged real and personal estate.
    If, upon the foregoing facts, irrespective of the question whether the partnership was dissolved at the date of the commencement of the plaintiffs’ suits in the Hartford county court, the court shall be of opinion that the judgments in such county court did not bind this defendant Brewer, and that he is not liable to any action founded thereon, a verdict is to be entered for the defendant; or if the court, upon the evidence in relation to the dissolution of the firm, together with the other agreed facts, shall be of opinion that the defendant is not bound by those judgments, a verdict is to be entered for the defendants, otherwise the defendant is to be defaulted, unless the court, instead of determining this question as to the dissolution of the partnership, shall think fit to submit the same to a jury, then the case shall be sent to a jury. Provided, however, that if the court, in relation to the counts in the plaintiffs’ declaration, founded upon the original causes of action, are of opinion that the same are not barred by the statute of limitations, the case is to be sent to a jury upon that point.
    
      W. Solder, for the plaintiffs.
    
      J. P. Putnam, for the defendant Brewer.
   FletcheR, J.

This is an action of debt, founded on two alleged judgments, purporting to have been rendered in the county court of the county of Hartford and State of Connecticut, in favor of the plaintiffs, against the defendant Brewer, and one Elbridge G. Roberts of the city and State of New York, and Charles L. Roberts, of Simsbury, in the said State of Connecticut. The writ also contains counts upon a note and an account, which were the original causes of action upon which said judgments were rendered. The case is submitted to the court on an agreed statement of facts.

The present suit proceeds against Brewer alone, and the defence is made by him alone, the process not having been served on the other persons named in the judgments. The judgments were rendered in March, 1840. By the original writs, in the cases in which said judgments were rendered, it appears that the defendant and Charles L. Roberts and Elbridge G. Roberts were declared against as partners, under the name and firm of the New England Carpet Company; but, by the return of the officer, it appears that service was made upon Charles L. Roberts only, and not upon the defendant nor the said Elbridge G. Roberts, who were neither of them ever inhabitants of, or residents in, said State of Connecticut. The defendant Brewer was an inhabitant and resident of Massachusetts, and E. G. Roberts was an inhabitant and resident of the city of New York, and Charles L. Roberts was an inhabitant and resident of the State of Connecticut, and was the managing partner; and all the partners signed and published a notice, that he was the general agent of the firm.

The writs in the suits, in which the judgments were rendered, were served on Charles L. Roberts, but were not served on this defendant Brewer, nor on E. G. Roberts ; but it is not necessary to refer to the latter, as this suit is against Brewer alone.

Upon the entry of the suits in the county court of Connecticut, the initials of Thomas C. Perkins, an attorney at law, were entered upon the writ and docket, to indicate that he appeared for the defendants, in the mode in which it was usual to enter the appearance of attorneys for parties. What is the legal effect of such an appearance upon the defendant Brewer, is one of the questions raised and discussed in the present case ? The appearance of the attorney Perkins was thus entered, upon the application of Charles L. Roberts, who was an inhabitant of Connecticut, and had been duly served with process. Perkins testified that he had no communication with Brewer in regard to the suit, and had no authority from him to appear for him. The records of the cases, as extended, did not show any appearance.

It is maintained, on the part of the defendant Brewer, that these judgments cannot be enforced against him in this commonwealth, for the reason that the court rendering the judgments had no jurisdiction over him; because, as he says, he was not within then jurisdiction, was not served with process, did not appear, or authorize any one to appear for him, and, therefore, that these judgments have no force against him in this commonwealth. This presents the first and principal question in the present case.

For the plaintiffs it is insisted, in the first place, that the records of the judgments of the court in Connecticut are conclusive.

But it is a matter now too well settled to admit of discussion, that when a party is not within the jurisdiction of the court, and is not served with process, and does not voluntarily appear and answer to the suit, by himself or his attorney, the judgment cannot be enforced against him out of the local jurisdiction. This point has been fully and repeatedly decided by this court, and, since the institution of this suit, has been directly adjudged by the supreme court of the United States. D'Arcy v. Ketchum, 11 How. 165.

That case is in principle precisely like the present, and lully sustains the position taken in behalf of the defendants.

Next, it is said, for the plaintiffs, that the record of the appearance in the suits in Connecticut is conclusive to bind the defendant Brewer. As it appears by the records that Brewer was not served with process, he cannot, therefore, be hound by the judgments, unless he is bound by the appearance.

The records, as extended, do not show any appearance. But suppose it to be competent to prove, by the initials of the attorney entered on the writs and docket, and other testimony distinct from the records, that the attorney, Thomas C. Perkins, intended to enter a general appearance, still it would amount to nothing more than a general appearance for the partners, as partners, and for the purpose of defending the action against the partnership, and it would not be construed to be an appearance for the partners individually, severally and personally, or for any other purpose than to defend that suit against the partnership. An appearance might be entered to prevent any judgment against the partners,, as partners, or to prevent any levy on partnership property, or on funds in the hands of trustees, or to defend against proceedings in the nature of proceedings in rem against partnership property, or for other similar purposes. That is, the appearance might be to protect rights and interests of the partnership, so far as. involved in those suits, and so far as the court had jurisdiction over such rights and interests ; but not to bind the persons or property of the individual partners, except so far as they were necessarily bound in those suits. There is nothing in the case to show any appearance for this defendant, so as to render the judgments binding upon him individually in this commonwealth.

It is further insisted on, in behalf of the plaintiffs, that it appears by the statute of Connecticut, that the service on' Roberts was sufficient by the lex loci, and that the courts of Massachusetts should uphold that jurisdiction, unless contrary to natural justice.

But the statute of Connecticut could not give its courts jurisdiction over persons not within its limits, and not subject to its laws. Property found in that State may be liable to be taken upon a judgment rendered upon such a service. So, in this commonwealth, an attachment of property found here, of a person not within this commonwealth, may be followed up by a judgment and execution, and the property taken in satisfaction. But, in such case, the property only can be made subject to the jurisdiction, so as to render the judgment binding as a proceeding in rent, but it would not be allowed to operate in personam in the courts of other States.

A statute of New York provides, that a judgment may be rendered against several joint debtors, when one only is brought into court on process. Yet it was decided by the supreme court of the United States, in the case of D'Arcy v. Ketclmm, before referred to, that, where a judgment was given in New York against two partners, one of whom resided in Louisiana, and was never served with process, an action could not be maintained on that judgment, in Louisiana, against the partner residing in that State.

Where there are so many distinct jurisdictions, and so many individuals living in one State, having business or transactions in another or other States, it would be most dangerous to hold a man bound by a judgment in a suit, where no process had been served on him, and where he was not within the jurisdiction of the court.

Another ground taken by the counsel for the plaintiffs is, that if the appearance of Thomas C. Perkins, the attorney, was entered in pursuance of a request of C. L. Roberts, as a general appearance, that Roberts, either by force of his general power as a partner, or as the agent and managing partner, of which public notice was given, had authority to make an appearance generally for the defendants; and that so it was an appearance for Brewer, one of the partners, so that the judgments bind him individually and severally, and that the present action, therefore, upon them may be maintained against him.

There is much discussion in the books, and some conflict oi decisions, as to the power of one partner to enter an appearance for his copartners in suits at law, or to bind them by submission to arbitration, or to confess judgment for them. But it is not necessary to go into a consideration of the authorities on these subjects, or to endeavor to ascertain what, upon the whole, is the established doctrine in regard to these several points.

The merits of this case would not be at all affected by assuming that Charles L. Roberts had authority, either by virtue of his general authority, as partner, or by the authority conferred on him as the agent of the firm, to enter an appearance in the suits in Connecticut, to defend the rights and property of the partnership, so far as they were involved in those suits. It would not come at all within the scope and purpose of such authority, to enter an appearance for this defendant Brewer, for another and distinct purpose and object, so as to give the court a jurisdiction over him individually, which they otherwise would not have, and thus give their judgments a greater force and effect against this defendant personally, than they would have without such appearance. No such authority would be implied as necessary for the interests of the firm, and still less as necessary for the interests of the individual partners.

Supposing, therefore, that the appearance of Perkins was general, and supposing, also — a fact which is not shown by his testimony — that he intended to enter a general appearance, it is clear that he had no authority from Brewer, the defendant, personally, but acted by the request of Roberts alone; and, therefore, the appearance must be regarded as such an one as Roberts had power to make for the firm or partnership only, and to defend their partnership property and rights, and not to bind the individuals who were not within the jurisdiction, and had not been served with process

The court having come to the conclusion that, even during the continuance of the partnership, Roberts had no right to enter an appearance for Brewer individually, so as to give the court jurisdiction over him personally and individually, it is not necessary to determine whether or not the partnership was dissolved.

It was said, by the counsel for the plaintiffs, that, though the defendant was not served with process in the suits in Connécticut yet that he had, in some way, knowledge of the pendency of the suits, and was within the limits of that State at some time while the suits were pending. But these facts cannot affect the principles upon which the decision of this case depends.

The only remaining question is as to the plaintiffs’ right to a judgment against the defendant on the original causes of action, on which the suits in Connecticut were founded.

To maintain the present suit on these causes of action, it must be assumed that Brewer, the present defendant, stands wholly unaffected by the judgments, and that these original causes of action are not merged in them, but remain good as against him.

But any suit on these original causes of action is very clearly barred by the statute of limitations. The causes of action accrued in 1837 or 1838. The plaintiffs were under no disability, and were not within the exception of persons beyond sea. The bar, therefore, took effect in six years from the time the causes of action accrued, which was more thar. six years before the commencement of this suit.

It was urged, in the argument for the plaintiffs, that the operation of the statute of limitations was prevented by the proceedings in the suit in equity. But the decree in that suil was in 1840, more than six years before this action was insti tuted. The court are unable to see how any new promise, on the part of the defendant Brewer, can be implied from anything in the proceedings on the decree in equity; but, if such new promise could be so implied, any suit upon it was barreo by the statute of limitation, before the present suit was commenced. Judgment for the defendants.  