
    
      GRAY vs. TRAFTON.
    
    East’n District.
    
      April, 1822.
    a suiTby of the debt, in brought in the
    Appeal from the court of the first district.
    Hawkins, for the plaintiff.
    On the 3d of 1820, the present plaintiff instituted a former suit against the present deiendant. i>oth parties being non-residents.
    Ihe suit was founded on promissory notes, amounting together to $2013 35 cents, with interest thereon; and an attachment prayed and awarded; as is usual in similar cases, an attorney was appointed to defend the interests of the defendant.
    The order of appointment was made on the 16th of February, 1820.
    The counsel was allowed from February to July, to correspond with the defendant, and on the 13th of that month, filed an answer, disclaiming the property attached, and pleading general issue.
    Upon the trial of the cause, the plaintiff obtained a judgment for the whole amount claimed, but owing to sundry claims interposed, and the wages paid the crew of the vessel attached, he only obtained a partial satisfaction of his judgment, leaving the bai-larme due, $900 34 cents, with interest
    
      For this balance the present attachment r was sued out.
    The same counsel was appointed to defend, and filed an answer, pleading to the merits of the case, and also alleging the money attached in the hands of the garnishee, to have been assigned to one Dillingham. The judgment and record in the former attachment being referred to, and made part of the present petition, it was offered in evidence by the plaintiff, and the reading of it was objected by the defendant’s counsel, on the ground, that the former proceedings being in^rem, could not be read in the present suit, although, for the same cause of action and between the same parties.
    The cases relied on by the defendant’s counsel in support of this objection, are— Phelps vs. Holker, 1 Dal. 261. Bissell vs. Briggs, 9 Mass. Rep. 462. Pacoling vs. Bird’s Ex'rs. 13 Johns. Rep. 192. Borden vs. Fitch, 15 Johns. Rep. 121. Astor vs. Winter. 8 Martin's Rep. 205. * The cases from the common law reporters cannot, it is believed, support the objections made by the defendant’s counsel. Neither of the cases occurred in the same state, between the same parties, and before the same tribunal, called on to give credence to its own res . cords and proceedings, as is the case now under consideration. In the case from Dal- ^ the plaintiff had sued out an attachment in Massachusetts, which being levied upon one blanket, (the reputed property of the defendant) judgment was had, and the court of Pennsylvania was called on, not only to enforce that judgment, but to deem it conclusive between the parties.
    The case from Dallas was decided before the adoption of the federal constitution, and consequently before the act of congress gave full faith and credit in one state to the records and judicial proceedings, had in another state. And the court did not, in that case, reject the record and proceedings from being read as evidence, but merely declared, that “ it could not be considered as conclusive evidence of the debt.” M'Kean's Chief Just. 1 Dallas, 264.
    In the case from Massachusetts Reports, the court gave validity to the judgment previously obtained in New-Hampshire, and declared it not only evidence, but conclusive between the parties, if it should appear that the court originally rendering judgment, had jurisdiction of the cause,.
    
      Whether or not the court had jurisdic- . ,. . , .. tion ot the cause in the case oí uray vs. Trafton, depends on the laws of Louisiana, giving the benefit of attachment against absent debtors, and the manner in which these laws have been inferred by the court.
    Until the previous judgment in the court below be brought before the appellate court, they will not now question its validity, much less refuse the plaintiff the benefit of the judgment in support of this action.
    It is stated in the same case from Mass. Rep. that proceeding, by attachment, against the goods of the defendant in one state, and judgment therein, would not be binding and conclusive in a personal action in another state, against the same defendant.
    This position does not weaken the right of the plaintiff to recover in this action; or at all events, to read the record offered. It will be time enough to resist the doctrine laid down in the case last referred to, when Gray shall sue Trafton in another state, and rely on the judgment in attachment here, as conclusive evidence in the cause. The two cases from Johnson’s Reports will be found of the same character of that already commented on, and are cases growing out of records from a sister b b
    In the case from 13 Johnson, it appeared the judgment recovered in Connecticut on attachment, and relied on as conclusive against the defendant inNew-York, had been rendered upon supposed effects in the hands of the garnishee, but upon investigation, it was decided by a jury, that the garnishee had no funds.
    It was effects, in the hands of the garnishee, which alone could give jurisdiction in that case ; take away the effects and the jurisdiction of the court necessarily ceased.
    In the case from 15 Johnson, in refusing to give force and effect to the judgment on attachment, offered in support of the action, chief justice Thompson expressly speaks of judgments from a sister state. 15 Johns. 143.
    The case of Astor vs. Winter, referred to by defendant’s counsel, has no application. The principle there settled being, that “ if the suit is not sustained by the proceedings on the attachment, it is clear that no legal measures have been taken to compel the appearance of the defendant. The answer of the persons appointed by the court does not cure the defect in the levy offthe attach-_ . ' ment. 8 Martin?208.
    No point is made in the case before the court, which questions the soundness of the principle laid down in Martin. If the attachment be wrongfully sued out or levied, the appearance by counsel will not remedy the error. No question has or can be made as to the legality of the proceedings in this case, nor that the attachment has been illegally levied.
    If the propriety of rejecting the record as evidence altogether, or the validity of the judgment in the former case of Gray vs. Traf-ton, was to be tested alone by the common law books, the cases relied on by the defendant’s counsel would be greatly weakAed, if not destroyed, by subsequent decisidns.
    In Croudsonvs. Leonard, 4 Cranch, 442, judge Washington says, “ By th^jpommon law, the judgment of a foreign court is conclusive where the same matter comes again incidentally in question — prima facie evidence, where the party claiming the benefit of it calls on the courts of England to enforce it.”
    Since the adoption of the federal constitution, and the acts of congress on this subject, a judgment Obtained in one state, shall have the same effect in another, as it would have in the state where it was obtained. Mills vs. Durpee, 7 Cranch, 481, 483. Hampton vs.M'-Cur-nell, 3 Wheaton, 234.
    If the judgment is conclusive where it is obtained, it is conclusive in every other state, district, or territory in the union. 7 Cranch, 481,484.
    The common law gives to judgments of the state courts the effect oí prima facie evidence in the courts of the other states. But the constitution contemplates a power in congress to give conclusive effect to such judgments. 7 Cranch, game case.
    Is not the original judgment obtained by Grayt^s. Trafton conclusive, between the parties in the state of Louisiana ?
    If it is not, then the attachment law is a nullity. #⅜
    If any property of Trafton could now be found within this state, could not Gray sue out his execution and levy for so much of his judgment as is still unsatisfied ?
    The insufficiency of effects in the hands of the garnishee, arising too from the intervention of third parties, cannot, it is presumed, weaken the force of a judgment had upon the . „ . r m ■> merits or the cause, and that too, alter the counsel had corresponded with the defendant, and not only resisted the claim of the plaintiff, but so far as it was practicable, gave his efforts to promote the claims intervened by third persons.
    But the plaintiff is relieved from further citations from the common law reporters, by the case of Young vs. Black; where it is decided, that the record of a former judgment may be given in evidence between the same parties, with parol proof that it was for the same cause of action, and the controversy having* passed in rem judicatam, and the identity of the causes of action being established, the law will not suffer them to be again brought into question. 7 Cmnch, 565, 567.
    In the case now before the court, the plaintiff did not offer the record as conclusive evidence, though he might well have done so, but offered with it parol proof of the execution of notes, made part of there cord the justness of the demand, and the ballance due on the judgment.
    The supreme court of the united states have gone still further, and decreed thatjudgtaents or decrees may be introduced and read as ⅛ , , evidence even against third persons, where the decree introduced is not as per se, binding on any rights or the other party, but an introductory fact, to a link in the chain of the party’s title, who introduces it. Barr vs. Gratz, 4 Wheat. 214, 220.
    This court has been governed by the same principles, and in the case of Breedlove vs. Turner, expressly recognizes the doctrine, that a record may be read in evidence even against third persons, where it is not introduced per se, as binding'on the rights of the ^parties. 9 Martin, 377.
    By reference to the petition in this case, it will be perceived by the court, that the plaintiff does not refer to and rely on the naked judgment formerly recovered against, but refers to and makes part of the petition in the record, and proceeding had, before the same court, in the former attachment. The notes upon which the original action was instituted, constituting a part of that record, and the proceedings had likewise, shewing how far the plaintiff’s judgment had been satisfied by effects attached.
    If the record, as offered, is not deemed conclusive evidence, so as to enable this court to ’ order judgment to be entered in the court below for the balance that may appear to be due the plaintiff*, it is believed this testimony cannot hesitate to reverse the judgment of the inferior court. The more especially as the record was not relied on by the plaintiff* as in itself conclusive, but was presented coupled with the readiness to go into parol proof of the execution of the notes made part of record, the justice of the claim and the amount still due.
    Even according to the rigid forms of com-iffon law pleading, this would have been permitted the plaintiff. ⅜
    How much more readily will this court accord it ? ⅜,
    In the case of Gilly ⅝* al. vs. Henry, this court drew' the distinction which signalizes the civil law court in awarding justice, where it would be denied by the forms of pleading enforced by the common law courts.
    The court there say, “ in courts, in which the civil hjfcv prevails, the plaintiff* does not produce his case in various forms; and evidence is admitted when it supports the allegation in substance.” 8 Martin, 417.
    
      Under the sanction of this principle, with _ r 1 what propriety can the record, as offered in the court, below be deemed inadmissible evjjence p N0 authority has been produced which Would reject it. Can any reason be offered ?
    Can the defendant pretend, that the petition did lilt apprize him of the nature of the claim. »A11 its merits had been once litigated, not by an appearance in mere form, but by pleas in avoidance and to the merits, after correspondence with the defendant, by the counsel appointed to defend. In the second suit, the same course is pursued — the samé counsel appointed, who after months of correspondence, again appears and resists the plaintiff’s demand; not upon the ground, that the debt is unjust, but that the effects attached had been previously assigned over to a third person.
    In the first suit, the defendant was prompt in urging the claims of a third party. The merits of this claim was investigated by the court below, and found to strengthen, rather than weaken, the demand of the plaintiff! *
    In the second suit, the defendant is equally prompt, to pretend a tranfer of the monies attached, that he might again aid a third per-0 r son.
    These facts are presented to the court, that they may see there is no ground to c&n-plain of surprise in the trial of the cause below.
    The effect of confirming the decision of the court below, not only subjects the party to a non-suit, but will result in the total loss of his debt. To work an injury of this sort, this court must be fully satisfied that the forms of pleading, relied on to reject the record, are indispensable to our system of jurisprudence.
    Carleton, for the defendant.
    The court below certainly did not err in refusing the record in the former ease to be read in evidence in this.
    To test the propriety of the opinion of the court, we have only to inquire, whether the judgment in the first attachment case, is evidence of a debt due from the defendant to the plaintiff: this 1 apprehend, is our sole inquiry, for if it establish the existence of the debt, the defendant cannot hope to resist it; if not, the plaintiff must fail in his action.
    The principles, established in the cases cited, shew most clearly, that such judgment is no evidence of a debt. In Pawling vs. Birds Ex'rs. 13 Johns Rep. 206, the court say, ¡s we|j gelled, that a judgment in another state, fouuded on proceedings by attachment, against the goods of the defendant, he not being within the jurisdiction of such state, is not even prima facie evidence of a debt in our courts. It is regarded as a proceeding in rent merely. To consider it as a ground of action hereper se, would be contrary to the first principles of justice. As a proceeding in personam, the foreign court in such case had no jurisdiction.” Again in Phelps vs. HolJcer, I Dal. Rep. 261, the court say, “ The judgment obtained in the court of the state of Massachusetts, in a foreign attachment, between, the same parties, is not conclusive evidence in’ the cause of the debt claimed by the plaintiff” In Ribourne vs. Woodworth, 5 Johns Rep. 37. the court decided, that “The attachment of an article of his property could not bind him; it could only bind the goods attached as a proceeding in rem, and the judgment obtained by default, in pursuance of such attachment, cannot be aground of action here against the defendant.” The reason that such juagment cannot be read as evidence • , ... m a second cause, is not that it was rendered in another state, but because it was no evidence of the debt; for if it was, it could, like all other judgments, be read in evidence under the provisions of the act of congress, against the defendant in the courts of any sister state, whether the action was brought in rem or inpersonam ; thatsuehjudgmentshould not be evidence of the debt, is certainly founded on the plainest principles of justice; the defendant when absent, not only resides out of the jurisdiction of the court where the suit is brought, but often in the remotest part of the world. On the institution of such suit our law provides — “That on the return of the writ, the court may proceed to hear and determine the claim of said ; petitioner; first, ’naming some proper person to defend said debtor, provided no attorney shall be retained by him, and on application of the person so defending, granting such delay, in order to procure an answer, and make out a defence as to the court may seem just.” 7 Martin’s Dig. vol. 1, 516. The attorney so appointed, may ©r may not, apply for time to correspond with the absent defendant, and if he applv, the court may fix such time as shall be deemed sufficient, at its discretion. The attorney may or may not, as he thinks fit, address a letter to the absent defendant; and if he determines so to do, he directs it to the place only where the plaintiff chooses to say he resides, he being himself, totally ignorant of the cause of action, as well as of the domicile of the party, whose interest he is made to espouse. If an answer should not be received within the time prescribed by the court, a judgment will be taken by default, or the at. torney appointed, must answer without know_ ing any thing of the means of his client’s de-fence. Such is indeed, what generally happens. If the residence of the defendant be not rightly stated, or if it be so, it may be changed, or he may have departed from it before the letter reached him. Thus it will* appear, that in this state, and in every one where the law of attachment is known, judgments are rendered against absent persons without their having any knowlege of the existence of the suit. That a judgment thus obtained should be evidence of a debt against a defendant, or his property in another cause, would be the grossest injustice; it would be condemning a man unheard, and spoiling him of his property by proceedings before a court, of whose existence he may have never heard.
    In the cases cited, we are told that proceedings by attachment are regarded in the nature of a proceeding in rem, and in first Dallas’ Rep. 204, it is said, “ This is a pro-eeeding in rem, and ought not certainly to be extended farther than the thing attached.” We may then challenge plaintiff’s counsel to produce a single instance, wherein a judgment obtained by process of attachment, or by any proceeding in rem, have ever been received as evidence of the debt in another suit, whether the latter be by attachment in personam or in rem, and this for the plain reason before given, to wit, that a judgment so obtained is no evidence of a debt.
    It is a known and established principle of law, that a judgment obtained by admiralty process in rem, ends with the thing attached, and cannot ever afterwards be read against the claimant of the thing seized, though he appear to defend the pledge. So in the cases cited from 13 Johns, it is said by the court, “ That if the defendant had actually appeared in the suit against them; as absconding ^e^tors’ i* would not, in my judgment, have altered the character of the record. Such appearance and defence must be deemed to have been made, merely to protect the pledge, which was the legitimate object of the proceedings..
    The thing attached is often of so little value, that the party who may live at the dis--tance of 5000 miles or more, declines defending it at all. It is sometimes, as appears from many reported cases, a pocket handkerchief a blanket, or a credit to the amount of one dollar, where the sum claimed may be $10,000 or a larger amount. Can it, with any justice, be contended, that a judgment based upon such proceedings, shall ever afterwards remain as evidence of the debt thus claimed ?
    The second point can be disposed of without much difficulty. The plaintiff alleges in his petition, “That your petitioner, heretofore obtained in this honorable court, a judgment against a certain Mark Trafton, for the sum of $2013 35 cents, with interest thereon, at five per cent per annum, from the 3d of February, 1820, till paid, and costs.” Here the judgment of the court is clearly made the foundation of the action, But that we might have no doubt upon the subject, the ° _ . J plaintiff adds, “and which will more fully appear by reference to the record and pro- . . , „ ceedings had m this court, against said Traf-ton, and others, as garnishees, made part of this petition, and which will, in due time, be exhibited.” What is it that will not more fully appear? The judgment previously alluded to ; the relative which having reference to nothing else. In another part of his petition he says, “There is still due your petitioner, on said judgment, the sum of $900 35 cents.” It cannot then be pretended, that the petition was calculated to advertise the defendant of any other grounds of action, than the judgment obtained in the first attachment suit.
    It is gratuitously asserted by plaintiff’s counsel that the answer in this cause was filed» (i after months for correspondence with the defendant” Had enquiry been made upon the subject in the court below, it would have been seep, that defendant’s attorney had addressed him a note immediately after his appointment by the court, and that no answer had ever been received; and if indeed, any had been in rent, for defendant to set up any defence against the judgment in the first suit, - & J & _ if as plaintiff’s counsel contends, it is conclu» ■ sive evidence of the debt.
    It will not escape the penetration of the ' court, that if the judgment in the first cause ⅜ be res judicata between the parties, the insti- ⅛ tution of the present suit was not Only expen" * sive but oppressive, as the plaintiff Might have seized the property attached in this ; case, and made his money, My fieri facias. Rea- ■ soning upon this hypothesis, 1 agree perfectly ■; with plaintiff’s counsel, and cannot but express some surprise that he did not resort to this mode of obtaining the sum claimed. But this was rather an adventurous course; not-a precedent was to be found out of the many thousand attachment cases reported in this and the other states of the union. All the authorities conclusively shew, that the judgment extends no farther than the thing at- ⅜ tached.
   Martin, J.

delivered the opinion of the • court. The effect and force of the judgment obtained by the plaintiff, in his first suit, is to be ascertained by an examination of the act of the legislature, which introduced in this state, or the then territory, proceedings by . T . attachment, as they are now used. It is contended, they are merely proceedings in rem, the end of which is the condemnation and sale of the property attached.

Proceedings in personam against an individual owing no kind of allegiance, to the sovereign in whose courts they are instituted, appear at first view, odious; and if the courtesy, that ought to prevail between independent nations, does not require the courts of any of them should assist in giving effect to the laws of another, to the injury of her own citizens, a court may feel considerable reluctance in giving effect to a judgment rendered against an individual, in the tribunals of a sor vereign to whom he is an utter stranger, and in which he was not nor could be personally cited.

But when the legislator expressly declares his intention, that claims of individuals of other nations, whose property may be found in the country, should be examined and in-forced in his courts, these cannot decline carrying the legislative will into effect, on the ground ; that it is unreasonable and unjust that a defendant should be bound by the de» cisión of the court of a sovereign, to whom he _ s is an utter stranger, whose dominions he never entered, and in a case of which he had personal notice. In this country, the constitutionality of a law is the only ground on which a court of justice can refuse obedience.

Process of attachment is a legal mode of recovering a debt due from a person being about permanently and absolutely to move from the territory, before, in the common course of proceeding, judgment could be rendered, and execution issued against such a defendant; or from a person residing out of the territory, or departed therefrom, or who conceals himself, so that a citation cannot be served on him, so as to compel an answer to the plaintiff’s petition. 1 Martin's Dig. 512, n. 6.

In the first case, that of a person being about to remove, it may be said that the only object of the proceedings, which the legislature had in view, was the security of the debt. In the last, that of a person concealing himself," an additional one was certainly contemplated, viz. to compel the defendant to answer; otherwise he would be permitted to avail himself of his own wrong: against such a defendant the proceedings must be considered as in personam; otherwise the will of the i /• , legislators will be defeated. And all the cases mentioned in the law are placed on the same footing — no distinction is made between a person residing out of the country and one concealing himself to avoid the service of the citation.

It is not always wrong, that a person who resides out of the state should be compelled to answer in his courts. If he came in, and after having created a debt here, withdraws without discharging it, nothing ought to prevent his answer being required by the attachment of any property he left behind. Be that as it may, the legislature having made no distinction in cases of attachment, between a person residing out of the state and one concealing himself to avoid the service of the citation, we cannot make any. The express terms of the law are clear and free from ambiguity ; we cannot disregard the letter under the pretence of preserving its spirit. In practice, the courts of this country, in giving judgment in attachment cases, have never considered the proceedings in rem, giving judgment that the property attached be condemned and sold to sátisfy .the claims ; but as in personam, having judgment that the plaintiff recover from the defendant, &c. Whatever may be urged in regard to a judgment rendered in another state, those of the courts of this state must be viewed here in the light in which the legislature has placed them.

Further, the judgment in this case was, that the plaintiff recover, &e. not that the property be condemned and sold, and it stands unreversed.

We conclude the judge a quo erred in refusing to admit the judgment offered in evidence.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and the case be remanded, with directions to the judge, to proceed to a new trial, and to admit the judgment offered in evidence. The costs of this appeal to be borne by the defendant and appellee.  