
    Bank of North America vs. John C. Wheeler.
    A judgment recovered in a sister state, is a bar to the further prosecution of an action pending at the time in this state between the same parties on' the same cause of action.
    And it makes no difference that the judgment of the sister state has been appealed from, and that the appeal is still pending, where, by the laws of that state, such appeal operates only as a proceeding in error, and does not supersede the judgment.
    Nor that the action pending in this state has been commenced by attachment, and the claim secured by the attachment of the defendant’s property.
    The judgment of a state court, under the constitution and laws of the United States, has the same validity and effect in every other court of the United States that it has in the state where pronounced, and whatever piea would be good to a suit thereon in such state, and none other, can- be pleaded in any other court of the United States.
    An action was pending in the courts of this state, brought by the receivers of a bank in the name of the bank, and at the same time an action in the state of New York, brought by the receivers in their own names—both suits being against the same defendant and on the same cause of action. The bank was located in this state, and by statute the receivers were empowered to sue, upon all claims of the bank, either in their own names or in that of the hank. Held, that the two suits were to he regarded as between the same parties, and that a judgment recovered by the receivers in the state of New York was a bar to the further prosecution of the suit-of the bank in this state.
    [ *484 ] *Assumpstt upon sundry checks indorsed by the defendant. The defendant pleaded the general issue in the superior court, with notice, among other things, that lie should prove that, since the commencement of the suit, a judgment had been recovered by the plaintiffs against the defendant, upon.the same checks, in the state of New York, in the court of common pleas for the city of New York. The issue was closed to the court, the facts specially found, and the case reserved for the advice of this court.
    It appeared that, during the pendency of the present suit, a judgment had been rendered by the court of common pleas of the city of New York, in favor of Thomas Ransom, Raymond French and Philo Buckingham, as receivers of the Bank of North America, against the defendant, upon the same checks declared on in the present suit, but that an appeal had been taken by the defendant from that judgment to the supreme court of the city of New York, and that the appeal was still pending. It was found that, by the laws of the state of New York, such an appeal does not operate as a supersedeas of a judgment, and that execution might be issued at any time upon the judgment in question, upon the application of the plaintiffs. The present suit was instituted by the receivers, in the name of the bank, and real estate belonging to the defendant had been attached upon the writ. Other questions were made in the case, but the one here stated is the only one which the court decided.
    Blackman, for the plaintiffs.
    1. The existence of a judgment appealed from in another jurisdiction, is no bar to the prosecution of a suit for the same cause of action in this. The record which shows the judgment shows also the appeal, and the appeal from the judgment evinces that it is not final. “ Judgments are the sentences of the law pronounced by the court upon the matter contained in the record.” 3 Bla. Com., 395, 396. “ Final judgments are such as at once put an end to the action.” Id., 398. The fact that an appeal does not operate in the State of New York as a supersedeas of a judgment rendered there, and that *the plaintiffs may take out execution upon the [ *435 ] inchoate judgment in New York, gives no higher character to that judgment; it is still a lis pendens, and upon the face of the record it appears not to be the ultimate determination of law between the parties. That it is not conclusive and final between the parties, is manifest from the fact that an action of debt upon the judgment could not be sustained in our courts. To support such an action we should be obliged to bring a transcript of the record, and that would show an appeal taken, a lis pendens, an imperfect judgment, not entitled to the respect and confidence of our courts. The parties are not concluded or estopped by such a judgment; no questions of law or of fact are determined by it. If the suit here is to be quashed by the pending appeal in New York, then, if that appeal should be determined in favor of the defendant, the plaintiffs would be excluded from all courts of justice. Let the defendant withdraw his appeal, plead a final judgment in bar, as he may do, and both the parties will be vindicated in court.
    2. It is well settled, that a suit pending in another jurisdiction between the same parties, and upon the same cause of action, can not be pleaded in bar of a similar suit in this jurisdiction. Burgess v. Tucker, 5 Johns., 105. Bowne v. Joy, 9 id., 221. Walsh v. Durkin, 12 id., 99. Hatch v. Spofford, 22 Conn., 485.
    3. Why is it that a final judgment recovered may be pleaded in bar to a subsequent suit between the same parties upon the same cause of action ? It is either, 1st, to protect the defendant from being twice vexed in court upon the same subject matter; or 2d, because the law regards the chose in action as merged in a higher security. But it is the duty of a debtor to pay his debts, and the function of courts to vex him till he will pay. And it is the privilege of a creditor to avail himself of all the remedies and securities which the law can furnish for the collection of debts. If the court can see that any remedy is furnished by the second suit, that suit will be maintained. To defeat the last suit “ the court must se^ that in each [ *436 ] suit the remedy is substantially *the sanie.” Lyman v. Brown, 2 Curtis C. C., 560. In this case the record shows an attachment of real estate of the defendant which no execution from the state of New York can reach. Our courts should be always open to enforce the obligations of contracts and render available every security. A judgment here can not injure the defendant. “ He can plead payment, at least since the last continuance; and, if the two suits proceed pari passu, to judgment and execution, a satisfaction of either judgment may be shown upon audita querela, or an injunction decreed to inhibit the collection of the other.” Bowne v. Joy, 9 Johns., 221. But the present causes of action are not merged in the pretended judgment. Being appealed from, it is of necessity not final, as the record shows, and-may be vacated by the proceedings now pending upon it. A merger extinguishes the •lesser security by investing it in a higher security. But what security can there be in a judgment not final between the parties? A foreign judgment does-not merge the original cause of action, and can not be pleaded in bar of an action founded thereon. Lyman v. Brown, supra.
    4. The parties to the case in New York are different from the parties here. It is found that the suit in New York was instituted bv Ransom and others, as receivers of the bank ; and the suit here is by the bank itself as plaintiff. Exception was taken in New York to the plaintiff’s capacity to sue, and may prevail. Here, that exception can not be taken. Rev. Stat., tit. 3, § 248.
    
      Beach, for the defendant.
    The instruments declared on no longer exist as evidences of debt, but have become merged in the higher security of a judgment.
    1. If the judgment of the court of common pleas of the city of New York stiff exists unimpaired, it extinguishes the cause of action declared on, and bars the further prosecution of the suit. Boardman v. DeForest, 5 Conn., 9. Roades v. Barnes, 1 Burr., 9. That the New York suit is in the name of the receivers of the bank and the Connecticut suit in the name of the corporation itself, can have no effect. The cause of action' *is the same, and the parties in fact the same. The receivers had the option of bringing the Connecticut suit in their own names or in the name of the bank. Their exercise of that option can not prejudice the rights of the defendant. Rev. Stat., tit. 3, § 248.
    2. The judgment is not impaired by the appeal. The extent to which a judgment is affected by an appeal depends entirely upon the subject matter of the appeal, and the jurisdiction of the appellate court over such subject matter. There is no such thing as an appeal known to the common law; it is regulated exclusively by statutes. 3 Bla. Com., 402. An appeal at common law is only a writ of error. 1 Arch. Prac., 4, 241. If the appeal carries up the whole matter in controversy, so that it is re-tried, as upon original process, in the appellate court, and if the appellate court has jurisdiction to settle that controversy by a judgment of its own, and to enforce that judgment by process of its own, then the appeal vacates the judgment of the inferior tribunal. This, under our statutes and practice, is the effect of an appeal from a justice court, and from the county courts while they existed. Curtiss v. Beardsley, 15 Conn., 518. Campbell v. Howard, 5 Mass., 376. And in Massachusetts, of an appeal from a probate court. Mass. Rev. Stat., ch, 83, sec. 43. But if the appeal simply carries up the case, or some part thereof, to the appellate court, for its adjudication upon the question whether the judgment appealed from shall be affirmed, reversed or modified, and if the appellate court has no other powers or duties than to remit the reversed, affirmed or modified judgment to the inferior tribunal, then such appeal does not vacate, or in any way impair, the judgment appealed from. The effect under our statutes and practice, of appeals from probate illustrates this proposition. Case v. Case, Kirby, 284. Sloan’s Appeal from Probate, 1 Root, 151. Curtiss v. Beardsley, 15 Conn., 523. An appeal under the laws and practice of the state of New York, does not cany up the whole matter in controversy to be re-tried, as upon original process, but simply presents the case or some portion thereof, *to [ *438 ] the appellate tribunal for its revision ; and the appellate court has no jurisdiction over the subject-matter of the appeal, except to affirm, reverse or modify the judgment, and remit it to the inferior tribunal. New York Rev. Stat., “appeals.” Willard v. Bridge, 4 Barb., 163. Newton v. Harris, 8 id., 306. Conway v. Hitchins, 9 id., 381. Teall v. Van Wyck, 10 id., 382. Dunlop v. Edwards, 3 Comstock, 341. King v. Merchants’ Exchange Co., 1 Seld., 547. The appeal does not even operate as a supersedeas, unless security be given by the defendant, and in this case it is conceded the plaintiffs can at any time take out execution upon the supposed vacated judgment. In the case of Seeley v. Pritchard, in the United States circuit court for this district, Sept. T., 1854, this precise question was made, and Judge Nelson held that, under the laws and practice of the state of New York, a.judgment was not impaired by an appeal, but that an action of debt could be sustained thereon while the appeal was pending. •
   Storks, C. J.

It is not- necessary for us to consider the questions which have been made on the argument respecting the character of the instruments on which this suit is brought, and their presentment, and notice of their non-payment, because we are of the opinion that the recovery of the judgment upon them in the' state of New York is a complete defense to this action. This conclusion necessarily results from' the effect given bv the constitution and laws of the United States to the judicial proceedings of the states of this union, in-connection with the effect which the law of New York gives to that judgment.

The first section of the fourth article of the constitution of the United States 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-authorizes Congress to prescribe the manner in which such acts, records and. proceedings shall be proved, and the effect thereof. In pursuance of this power, Congress, in their act.of May 26, 1799, after prescribing the manner in which the records and judicial proceed- [ *439 ] ings *of the state courts shall be authenticated, enacted that the “ records of judicial proceedings of the state-courts so authenticated ¡shall have such- faith and credit given to them in every court within thesUnited.States as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”

In Mills v. Duryee, (7 Cranch, 481,) the supreme court of the United. States considered .that .Congress, by thus .declaring that the same faith and credit should -be given to such records as they had -in the courts of the state from whence they were taken, ¡had- prescribed the effect of such records, and that if they had the faith and, credit of record evidence there, they must have the same faitlrand credit in every, other state in the union ; and that it therefore remained only to inquire, in .every case, what is the effect of a judgment in the state where it ,is rendered. In Hampton v. McConnelly (3 Wheat., 234,) which was declared by Gh. il. Marshall to be precisely the. same case as that of Mills v. Duryee, he states that “ the doctrine there held was, that the judgment.of .a state court should have the same credit, validity and effect, in every other court in the United States which it had in the state where it was pronounced,? and that whatever pleas would be good to a suit' thereon in such state, and none other, could be pleaded in any other court in the United States.”, This principle has since been universally recognized and adopted, with the exception of a case decided by the county court of Baltimore, in which that court, as we think misapprehending the decision in the case of McElmoyle v. Cohen, (13 Pet., 312,) came erroneously to a different conclusion. 1 Penn. Law Jour. N. S., 142. See Lapham v. Briggs, 27 Verm., 27; Boston India Rubber Factory v. Hoit, 14 Verm., 92; Andrews v. Montgomery, 19 Johns., 162; McElmoyle v. Cohen, supra; Green v. Sarmiento, 1 Pet. C. C. R., 74; Napiere v. Gidiere, 1 Speers Eq., 214. The principle adopted in Mills v. Duryee was established in these cases, although the recovery of a judgment in another state was not in either of them, as in the present case, interposed as a defense to a suit upon the claim then in question. The particular manner, however, in which *the question arose, [ *440 ] is obviously unimportant. But the recent case of McGilvray v. Avery, (30 Verm., 538,) is precisely in point here, even as to the manner of applying the principle. In that case the defendant was sued simultaneously by the plaintiffs, both in New Hampshire and Vermont, upon the same cause of action. The plaintiffs obtained a judgment.in the New Hampshire suit, w'hich had not been paid, and that judgment was set up as a defense to the suit in Vermont; and it was held that the recovery of that judgment was a bar to the further prosecution of the suit in'the latter state. The reasoning of the court in its opinion, given by Bennett, J., is so full, and, in our opinion, so satisfactory, that it would be little more than a repetition of it if we were to undertake to examine this question upon principle. The only inquiry which remains on this point is, as to the effect in New York of the judgment rendered in that state upon the present cause of action. Upon thatsubject.it is sufficient to say that no principle of the common law is better established than that a domestic judgment merges and therefore extinguishes the cause-of action for which it was rendered in the courts of the same jurisdiction, and changes it into a security of a higher nature, and. consequently that a suit can not be maintained upon the original cause of action, but only upon such judgment. Boardman v. DeForest, 5 Conn., 9. Roades v. Barnes, 1 Burr., 9. And that such is the. law. of New York is undisputed.

How far the pendency of a suit in one jurisdiction may be pleaded in abatement of a suit pending in the same or another, it is unnecessary to consider, as the rules on that subject have no application to the present case. Those rules are adopted on a ground which is merely personal to the defendant, and to prevent the vexation to which he might be exposed by an unnecessary multiplication of suits. The effect which is given to the recovery of a judgment upon a particular cause of action, is founded as well upon a principle of justice as of high public policy, which requires that after a matter has once been settled by the judgment of a court there should be an end of litigation concerning it.

[ *441 ] *The plaintiffs urge the inconvenience arising from holding the judgment in New York to be a defense in the present suit, in consequence of the loss of the security obtained by attachment in the latter. We are not however at liberty to impair the effect which the constitution and laws of the United States give to judgments rendered in the several states, although it may be attended with inconvenient or even apparently unjust consequences. The remedy is elsewhere. When suits are pending in different states upon the same cause of action the plaintiff must elect in which he will proceed to final judgment. The plaintiffs also claim that, as the suit in New York, in which'judgment was there rendered, was in favor of the receivers of the plaintiffs in this case, the parties in the two suits are different, and that the judgment recovered in that suit is no defense in the present. Such receivers, by the law under which they were appointed, having power, in the corporate name, or in their own names as receivers, to commence and prosecute all suits in law or equity on claims in favor of the bank, and being clothed with all the powers and rights for the collection of debts due to the bank, or for the recovery of property belonging to it, which the corporation possessed by virtue of its charter before their appointment, they are merely the representatives of such corporation and act solely on its behalf, and we therefore think that the judgment recovered by them in that capacity should have the same effect as if it was recovered in the name of the corporation.

The plaintiffs finally claim that the judgment in New York is set aside or suspended by the appeal from it to the court of appeals of that state, and that it therefore constitutes no defense in this suit. The effect of that appeal depends upon the character of the jurisdiction of that court. If, by the laws of New York, a case carried before it by appeal is to be re-tried by it as upon original process in that court, and it has jurisdiction to settle the controversy by a judgment of its own, and to enforce that judgment by its own process, the appeal, like an appeal under our statutes from a justice of the peace to the superior court, *would vacate the judgment of the [ *442 ] inferior tribunal. Curtiss v. Beardsley, 15 Conn., 518. Campbell v. Howard, 5 Mass., 376. But if the appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors which may have intervened on the trial of the case below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and that court has no other powers or duties than to affirm, reverse, or modify that judgment, or remit the case to the inferior tribunal that it may conform its judgment to that of the appellate tribunal, then such appeal, like an appeal under our laws from the probate court to the superior court, does not vacate or suspend the judgment appealed from ; and the removal of the case to the appellate court would no more bar an action upon the judgment than the pendency of a writ of error at common law, when that' was the proper mode of correcting errors which may have occurred in the inferior tribunal. That such an action would not be barred by the pendency of such a proceeding is well settled. The judgment below is only voidable, and stands good until set aside. Case v. Case, Kirby, 284. Sloan’s Appeal from Probate, 1 Root, 151. Curtiss v. Beardsley, 15 Conn., 523. By a reference to the laws of New York and the decisions of that state to which we have been referred, it clearly appears that the appeal now in question did not carry up the matter in controversy, in the case in which it was taken, to be re-tried in the court of appeals as upon original process, but only presented the case to that tribunal for its revision, and that it had no jurisdiction except to affirm, reverse, or modify the judgment appealed from and remit the case to the inferior tribunal. It was accordingly held, and in our opinion correctly, by Judge Nelson, in the United States circuit court for this district, at its September term, 1854, in Seeley v. Pritchard, that, under the laws and practice of the state of New York, a judgment was not impaired by an appeal, but that an action of debt was sustainable thereon while the appeal was pending. -We would only add that if the judgment rendered in the state of New York upon the [ *443 ] present claim should be there reversed or modified, the plaintiffs can obtain such relief as shall be just by a proper application in the superior court for that purpose.

.We therefore advise that judgment be rendered in favor of the defendant.

.In this opinion the other judges concurred.

Judgment advised for defendant.  