
    CHEW & RELF vs. EDWARD RANDOLPH.
    A duly authenticated transcript of a judgment obtained in the Courts of the State of Louisiana against a resident of the State of Mississippi, founded upon proceedings by attachment, and without the service of any process upon the defendant, is not admissible as presumptive evidence in the courts of this state, in an action of debt founded upon such judgment.
    This was an action of debt brought in the Superior Court of Wilkinson County, founded upon a judgment of the State-of Louisiana. The defendant pleaded 1st. nil debit, 2d. nultiel record, upon which pleas, issues were joined. On the trial below, the plaintiff offered to read, as evidence, a transcript of the record of said judgment, duly authenticated, from which it appeared, that the suit in which that judgment was rendered, was commenced by attachment under the laws of Louisiana, against the defendant, who, at the time of the institution of the suit, was not within the limits of the state of Louisiana, but was a resident of the state of Mississippi. The defendant’s counsel objected to the reading of said transcript, because it did not show that the defendant had been personally served with process, or had any notice of the pendency of the'suit. The court below, sustained the objection, and would not permit the said transcript to be read. .The plaintiff, thereupon, submitted to a non-suit, but afterwards moved the court to set it aside, upon the ground, ’ that the judge erred in excluding said transcript: which motion was by order of the judge and consent of parties transferred to the Supreme Court, for their decision.
    
      Turner for plaintiff.
    
    The j udgment of a foreign court is by our laws considered as presumptive evidence ofa debt, when such court had jurisdiction of the case. But by the constitution of the United States, and the act of congress, the judgments of a sister state stand on very different ground. The records &c. of a sister state-,when authenticated as the act of congress requires, “ 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.” There has been some contrariety of decision in the courts of the different states, upon the proper construction of this act of Congress; but the better opinion seems to be, that the judgment of a sister state, duly authenticated, is to be received in all cases, ás presumptive, and in many, as conclusive evidence of a debt. 1 Dal. 261; Add. 265; Har. 413; 1 N. Y. T. Rep. 460. The transcript of the record which we offered to read, is duly authenticated, and the judgment rendered in strict conformity with the laws of Louisiana. Some property of the defendant-, found within the limits of that state, was attached by legal process, which gave'that court jurisdiction of the cause. The court will not, under such circumstances, reverse a foreign judgment, much less, that of a sister state. 2 Dal-. 51, 221, 302; 2 Bay 485; 1 Day 168; 1 Penn. 407. Can it be pretended that the record of this judgment, would not he received as evidence, in the courts of Louisiana, to support an action of debt brought on it in that state ? Certainly not. Then an authenticated copy of it, ought, under the act of Congress before referred to, to be received in the courts in this state, as prima facie evidence at least.
    
      Reed and Harding per contra
    
    The object of the plaintiffin this case, is to carry into effect, in this state, a judgment obtained by him against the defen-•daut in the state of Louisiana upon a process by attachment, to which the defendant made no defence, and of which he had no notice. The courts of this state will not carry into execution the judgment of a foreign court, or of a sister state, unless the court rendering it, had jurisdiction, both of the cause and the parties. If it appears from the record, that the defendant had been served with process and resided within the state or country where the judgment was rendered, our courts will, from courtesy, presume jurisdiction, and will consider the judgment as prima facie evidence of debt. But when, as in the present case, it appears that the defendant was not an inhabitant of the state in which the judgment was obtained, that he was Hot servec with process, and had no notice of the suit, and that the proceedings wer not against his person, but only against certain specific articles of his property, the presumption of jurisdiction over the person in the court rendering the judgment does not arise, and such judgment, instead of being considered by the court to which application is made, to carry it into execution, as prima facie evidence of a debt, will be considered a nullity. It is admitted that the court of Louisiana had jurisdiction over the cause to a certain extent — to the extent of the property attached.. Certain articles of the defendant’s property were found within the state of Louisiana, and his creditors, living in that state, might lawfully attach them, and on recovering judgment, apply them to a discharge of his debt. But if the property attached should not be sufficient to satisfy the judgment, the creditor-could not resort to the person of the defendant for satisfaction, because he was not personally subjected to the jurisdiction of the court rendering the judgment.
    But the plff. does' not contend that this judgment should be considered as conclusive, but only as presumptive evidence, against us. It is unreasonable to throw the burthen of proof upon the defendant. It would be more difficult for him, if the claim were unjust, to prove that it never existed, than for the plaintiff, if he have a just demand, to establish it.
    The plaintiff has not been able to produce any decision of any court, in which a judgment obtained under circumstances like those in the present case, has been received or recognised as presumptive evidence. On the contrary, the whole current of authorities, both English and American, was strongly in favor of the doctrine for which we contend. Doug. 6; 5 John. 41; Kirby 119; 3 Wilson 297; 9 Mass. 462, &c.; 8 John. 86,194; 1 Dal. 261; 1 Caines 460;. 9 East. 192.
    
      Turner in reply:
    
    Should the doctrine for which the defendant’s counsel contend, be recognised and sanctioned by the court, the plaintiff will be placed in a very strange dilemma. We cannot enforce the judgment which he has obtained in Louisiana, because the courts of that state had no jurisdiction over the person of the defendant. Should he institute suit in the courts of this state, upon the original contract, he would be told, that his simple contract debt was merged in a judgment rendered by a tribunal which had jurisdiction of the cause; so that in either case he is without redress or remedy-
   OPINION OP THE COURT/

The question referred to the decision of this c'onrt is,- whether an au--ihenticated copy of the judgment of a court of a sister state?- rendered in a suit commenced by attachment against the property of a person who was without such state, and who was not personally served with process, will be received,- in the courts of this state, as primafacie evidence of a debt, in a suit instituted here, to obtain the execution of such judgment.

From the first view of the cases by the plaintiff’s counsel, it would be supposed, -that the copy of such a judgement, would be received in-any of the courts of the United Statesy as primafacie evidence at least; and such seem to have been the impressions of the defendant’s, counselin those cases.- But upon a closer examination of them, we discover that the question involved in this motion, was not, in any of those cases made by the counsellor decided by the court: the only inquiry there was as to the conclusiveness of the judgment, not as to its admissibility. Besides, it does not appear that the judgments then sought to be enforced, were rendered in suits instituted by attachment, in which there was no personal service of process on the defendant.

We must, therefore, take up the subject, upon the cases in which this question came directly before the court, and upon the- reasons and principles which constituted the basis of their decision.

Proceedings by attachment operate upon the property, not upon the person of the defendant: And although, after the rendition of judgment,, the property attached may be legally applied to its satisfaction, yet the defendant does not, thereby, become personally amenable to the jurisdiction of the court rendering the. judgment. 9 Mass. 468. It is carrying the rule far enough to make these ex parte proceedings obligatory upon the property attached, without extending the obligation to the person of the defendant

It is certainly contrary to our ideas of justice in legal proceedings, as well as in the common transactions of life, to determine and adjudicate upon a question,, in which a man’s life, liberty, or property is involved, without affording him an opportunity of being heard in 1ns defence. It is very difficult to defend, on principles of justice, the practice adopted by aome nations of enacting laws of attainder, or proceeding to outlawry against a,n individual and declaring him guilty of any crime oí which he may be accused, .without proof of guilt, upon his failure to appear' and' take his trial in obedience to a proclamation issued against him, when he was out of the government and could receive no notice of the proclamation. It is equally unjust, that a person should be deprived of, or affected in his property, by proceedings of which he has no knowledge. Such a practice cannot be justified upon principle, by the reason commonly given,, that the proceedings are intended to compel the appearance of the defendant, and that when he does appear, he can have a fair opportunity of making his defence. It would be unreasonable in the extreme, that a person should be compelled to attend, ten or fifteen hundred miles from his-residence, to defend himself against a claim whether just or unjust, because there may be found, by chance, in that distant country, an article off his property, of the value of six-pence, or a creditor of his to that amount, who,by being summoned as garnishee, may give jurisdiction to its courts. Independent of this inconvenience, notice of these proceedings by attachment very seldom reaches the party to be charged thereby, until judgment has been rendered against him,, and it is too late to make defence. In some of the states, no notice, of any kind, is required. In the state of Louisiana, a notice, in cases of attachment,, is set up at the court-house, and if the defendant lives at any considerable distance therefrom, which is generally the fact, there are ten chances to one against his receiving notice through that channel.

But it is said, that a judgment thus obtained is not to be conclusive against the defendant: he may still have an opportunity of showing that he is not indebted to the plaintiff.

This privilege will not remedy the evil; by admitting such judgment-as prima facie evidence only, the proof of a-negative of a most difficult character is thrown upon the defendant. It is much easier for - a plaintiff ,to establish a false or unfounded demand ex parte, than for a defendant to-■prove by negative testimony that no such claim exists. In attachment cases, the judgment is taken by default for want of a personal appearance ■of the defendant; and, in most of the states, if the suit is predicated upon an obligation or written promise, the genuineness of the instrument is admitted by the default. In the state of Louisiana, where this judgement was obtained., the plaintiff may put interrogatories to the defendant, as to the truth of tlie allegations contained in his petition, and if the defendant fails to answer them, they are taken pro confesso, and the plaintiff obtains, a judgment for the amount of his claim without any evidence whatever.

Note — Since the above decision, the Supreme Court of Louisiana, has given a more’ extended operation to their attachment law, than was contemplated by the courts of this state. In the case of Gray vs. Trafton, 11 Martin 246, the Supreme Court of Louisiana have decided, that their proceedings by attachment operate in personalty and thata judgment founded upon sufch proceedings, obtained m the state of Louisiana, is evidence of the debt, in another action, between the same parties, in the courts of that state. If. so, such judgment would be competent testimony in the courts of this state. Art. 49, Sect. 1, Const. U. States; 7 Cranch 481,483; 3 Wheaton, 234, The opinion, however, of the Supreme Court of Mississippi, is in consonance with the English authorities^ and with the decisions in our sister states, Louisiana alone excepted»

Suppose .a judgment is thus obtained upon an account for goods sold and deli vered,for- money had and received by defendant,without any circumstances appearing ofthe time or place of contracting the debt,or upon a forged note or bond; and a suit should be brought, upon such judgment, in another state it would be almost impossible for the defendant to prove, that he did not re.’ ceive the money or goods from the plaintiff) or that the note or bond,'taken to be genuine, was forged:: He cannot expect to'prove the forgery,.without the production ofthe forged instrument, and he cannot produce it because it is on the files of a court of a separate and distinct sovreignty, beyond the jurisdiction of the .court before which he is sued.

The cases cited by the plaintiff’s counsel, do not support the doctrine for which he contends. On the other hand, in several cases very similar to the one under consideration, it has been decided by courts of high respectability, thata judgment obtained against an individual without personal service of process and without notice of the suit, could not be given'in evidence in a subsequent' suit brought upon that judgment. The case of Buchanan vs. Buckner 9 East. 192, is expressly in point.

Whether we consider this case, therefore, upon the principlesof natural right m>d justice, or upon the weight of authority, we think the transcript of the record was inadmissible, and that the judge below decided correctly in excluding it.

Motion overruled.  