
    
      Thomas Napier & Robert Anderson vs. J. J. Gidiere, executor of Louis P. Descoudres.
    
    1. The judgments of a sister State are not merely prima facie evidence of a debt liable to be opened and rebutted by proof, but are conclusive of the fact of indebtedness,
    2. All that was intended by the Act of Congress was to render such judgments conclusive of every thing decided by them ; that is, their effect in the Court in which they were obtained, and of necessity the fact of the judgment, can only be tested by the plea of nul tiel record — .in all other respects the States are left to prescribe their own forms of pleading.
    3. It seems to be settled that under the plea of nul tiel record, the jurisdim tion of the Court which pronounced the judgment may be inquired into.
    
      4: If it appear from the record, as by plea to the jurisdiction, that the question was, whether one or another of the Courts of the State where the cause was tried had jurisdiction of the subject matter, the judgment on that point would he conclusive. But whether the party sued is or is not the same against whom the judgment was obtained, is a question which would necessarily he open in the Court where the judgment was obtained, and necessarily so every where else.
    5. So too where the proceeding is in rem, as a foreign attachment, the judgment can operate on the thing only, and not on the person.
    6. The provisions of our Statute of Limitations do not apply, so as to bar actions founded on the judgments of a sister State.
    7. Cameron vs. Wwrtz, 4 McCord, 278, which decides that in marshalling the assets of an insolvent estate, the judgment of a sister State only ranks a simple contract debt, held not to conflict with the decision in this case. The Act of 1789, (5 Stat. at Large, 111,) which gives a preference to mortgages and judgments when it becomes necessary to marshall assets, is in respect to the lien they have on the estate, which does not apply to the judgments of another State; and as they do not fall within the debts described in any of the other classes, they must fall in with the last, and rank as simple contract dects.
    L. P. Descoudres and Peter Crovat, Merchants in Charleston, being largely indebted to the plaintiffs, failed, and some years afterwards, plaintiffs arrested Descoudres in New York, where he happened to be found, and on the 14th May, 1822, recovered a judgment against him in the City Court of New York. Pending the action, Descou-dres was admitted to the benefit of the New York Act for the relief of insolvent debtors, and according to the New York law, judgment was rendered against his property only. Napier, Anderson and Descoudres, all lived in Charleston. And in 1828, Descoudres set up business there, under the name of L. P. Descoudres & Company, under which name the business was carried on until his death. The plaintiffs, on the 11th January, 1837, commenced an action against him on the judgment, to which he pleaded the Statute of Limitations. While this action was pending, Descoudres died on the 11th July, 1837, having made his will, and appointed Gidiere executor. Gidiere proved the will, and made an inventory, in which the stock-in-trade of L. P. Descoudres & Co. was returned as assets of his estate. Plaintiffs renewed the action against Gidiere to which he pleaded payment and plene administrcivit. On the 26th June, 1838, this bill was filed, and a motion made for a receiver. Defendant filed an affidavit stating the assets that he had received, and the sums that he had paid away in discharge of the debts of L. P. Descoudres. Whereupon his Honor, Chancellor Dunkin, ordered him to pay into Court the balance in his hands, $1,568 36; and a further amount of $4,664 78, charged as retained for his own debt, making in all, $6,233 14; and to place in the hands of the commissioner, the notes, (fee., belonging to the estate; and the commissioner was to proceed to collect them. The defendant not complying with the order, an attachment issued against him for a contempt. On the 29th January, 1839, he put in his answer; and averred that he was a partner of Descoudres; and claimed the right to apply the assets in his hands, being the proceeds of the stock-in-trade of L. P. Descoudres & Co., in payment of the debts of L. P. Descoudres <fe Co., as the surviving partner.
    June, 1839, the cause came on to be heard, on the bill, answer and evidence. His Honor, Chancellor Dunkin, pronounced against the alleged partnership, and ordered an account of the estate of Descoudres. Mr. Gray, the master, to whom the case was referred, made a report, and supplemental report, and among the debts reported, the sum of $10,063 99, with interest from 14th May, 1822, as due to the plaintiffs on the New York judgment. To which report, the defendant excepted, on the ground that the judgment was barred by the Statute of Limitations, and that the funds in respect of which the defendant was charged, were assets of L. P. Descoudres <fe Co. And being then in custody for disobedience of the order of June, 1838, presented a petition, praying that the attachment might be suspended till after the sitting of the Court of Appeals.
    In May, 1840, the cause came before Chancellor Johnson, who overruled the exceptions, but granted the petition, upon defendant’s giving security for his appearance, and gave him leave to amend his answer, by adding an allegation that the plaintiffs’s demand was barred by the Statute of Limitations.
    
      Defendant appealed from the decree of Chancellor Dun-kin, on the ground, that the weight of evidence was in favor of a partnership ; and that he was entitled to an issue for the trial of the question.
    And appealed also from Chancellor Johnson’s order confirming the report, on the ground, that the judgment of plaintiffs, being recovered in New York, is a simple contract debt in South Carolina ; and that after the lapse of fourteen years and upwards, without any acknowledgment of debt, or demand made, the same is barred by the statute of limitations.
    In March, 1841, the cause was heard in the Court of Appeals, when their Honors, the Chancellors, were pleased to order that the cause be referred back to be heard in the Circuit Court, for the purpose of receiving evidence to rebut the plea of the statute of limitations.
    At the sitting of the Court of Equity for Charleston, in January 1842, the cause came on to be heard before his Honor, Chancellor Johnson-, who made the following decree.
    Johnson, Ch. — One of the questions involved is, whether the statute of limitations is a bar to an action founded on a judgment obtained in a sister State. The cause went up to the Court of Appeals from a decree of the Circuit Court at June Term, 1839, and it was, by order of that Court, referred back to this Court, to let the complainant into proof to take the case out of the statute, in the event the Court should be of opinion that the statute was a bar. No further evidence has been offered, and I am called upon to decide whether the statute is or is not, a bar.
    The question has not been argued, and I wish it to be distinctly understood, that the decision which I shall give is merely pro forma, to enable the party to carry it up, that it may receive the solemn consideration of the highest tribunal, which is thought necessary on account of the importance and novelty of the question.
    The Supreme Court of the United States is understood to have decided that the statute is a bar, and the Court of Appeals in this State have, in several cases, decided that it is not a bar. I shall, therefore, in conformity with the decisions of our Court, declare, and it is hereby declared, that the statute is not a bar to such judgment.
    The defendant appealed from the order overruling the defence on the statute of limitations, and insisted that the plaintiffs’s action was barred, and that the bill should be dismissed.
    Wilson, for the Appellant.
    B. F. Hunt, for the Appellees.
    The question presented td the Court, is to be solved by reference to the 1st sec. 4 art. of the constitution of the United States; and the Act of Congress; May 26, 1790, Sec. 1st; and the Statute of South Carolina, called the Limitation Act, 2d Yol. Stat. at Large, p. 683.
    The defendant has pleaded the statute of limitations in bar of the complainant’s claim, which is founded on a judgment rendered in the Courts of New York, against the defendant’s intestate, L. P. Descoudres; and the question is made, whether under the Constitution and Act of Congress, and the Act of Limitation of this State, it is a valid plea. The complainants contend that the plea is not available, because their debt is a debt of record, and not a demand founded on a contract of lending, or without specialty.
    The plea of nil debet was decided not to be a good plea. The counsel made the point, that the record was valid only as evidence; and that if a record, mtl toil record could not be pleaded — but. a certified transcript is as valid in the same manner as in cases from our various circuits.
    The answer is ready. It is record evidence, and can only be averred against, by matter subsequent or fraud — or perhaps want of jurisdiction in the Court, as will be insisted hereafter.
    The constitution of the United States is the law which this Court is sworn to maintain, and no misconstruction of that law even by the supreme Court, can repeal the constitution. This Court, however, would consider the decision of the supreme Court as the most authentic construction of the constitution, and although the law gives jurisdiction to review State decisions by writ of error, yet each Court must follow its own deliberate construction — it is only where doubts exist that a decision concludes the doubt. Mills vs. Durea, 7 Cranch; 482.
    “ If in the State court, it has the faith and credit of evidence of the highest nature, viz: record evidence, it must have the same faith and credit in every other court. Congress, therefore, have declared the effect of the record, by declaring what faith and credit shall be given to it.” Story, Justice. “It remains only then to enquire in every case what is the effect of a judgment -in the State where it is rendered.” Id.
    “ It is beyond all doubt that the judgment of the Supreme court of New York was conclusive upon the parties in that State; it must, therefore, be conclusive here also.” Id. All this proves that both the letter and object of the Statute of Limitations exclude judgments, where there is no danger of the loss of vouchers. The decision is conclusive at the time the judgment is entered, and then the presumption of payment must arise from lapse of time, or subsequent circumstances. It is not the case of a debt never proved judicially, and dependent on evidence to be passed on by a jury.
    The case of Flournoy vs. Durke, 2Brev. 257, which ruled that nul tiel record was not a good plea, is not law. It was very crudely considered, if we may judge from the report, and this sentence of Judge Story is a death blow to it: “ If it be a record conclusive between the parties, it cannot be denied but by plea of nul tiel record, and when Congress gave the effect of a record to the judgment, it gave all the collateral consequences. There is no difficulty in the proof. It may be proved in the manner prescribed by the Act, and such proof is of as high a nature as an inspection by the court of its own record, or as an exemplification would be in any other court of the same State.” If this is law, the case of Flournoy vs. Durke is not; and if the decisions of the Supreme Court are good in one instance they are so in all.
    The objection that execution cannot issue, applies to every circuit court in the State. An execution only issues from the district where judgment is obtained ; and yet, debt on judgment, no one questions, may be brought in any other district, else no writ could be served on a defendant out of the district, to revive the judgment.
    The dissenting opinion of Judge Johnson itself admits the judgment, “ as conclusive evidence of the debt,” and it requires a keen casuist to distinguish between the difficulties suggested in the case supposed by him of “ a judgment for $150,000 founded on an attachment of a cask of wine.” Whether the judgment is a record to be tested by nul tiel record, or conclusive evidence nil debit, if it be in fact conclusive, the form of pleading is, in either case, immaterial. The objection is to the article of the Constitution itself; and the apprehension that States will pass absurd laws, is no ground for abolishing regulations to render good ones effectual.
    The case of Bissell vs. Briggs, 9 Mass. 452, gives the history of the clause in the Constitution. Even before the revolution, although independent colonies, the constant intercourse rendered it important that judgments in each should be conclusive in all, and the stat. 14 Geo. 3d, c. 3, so • enacted in relation to the “ neighboring colonies,” and it is not to be wondered' at that the fraternity and increased intercourse produced by the common struggles of the revolution, the association of the confederation, and finally the union, which made us one people, should have resulted in adopting a universal rule applicable to the whole republic.
    Judge Parsons, delivering the opinion of the Supreme Court of Massachusetts, expressly rules, p. 466, that the Constitution intended “ to place judgments recovered in any of the courts of the United States, on better grounds than judgments rendered in any other State or country; and that judgments of this last description only, cannot be now considered, as foreign judgments.”
    “ They cannot be contradicted, or the truth of them denied.” How then can a Statute of Limitations, explicitly applicable to actions “ of debt upon any lending or contract without specialty,” apply to such a debt 1
    
    The only question open, is the jurisdiction of the court. Id, 467.
    The opinion of Judge Sewall in this case is also an instance of great ingenuity and great bewilderment on this same subject. He is right in saying that “ if any thing is adjudicated in the judgment of courts of general jurisdiction, it is that the case decided by them and the parties to the cause, are within their jurisdiction.”
    Yet his reasoning and that of all who have attempted to pare down the positive enactments of the Constitution, is wholly inconclusive. They admit that the Constitution and the Act of Congress do make the judgment of a sister State “ conclusive evidence;” but they deny its effect as a judgment; and yet a judgment out of court is chiefly valuable as conclusive evidence of the debt. But the true question is to be met on the very words of the Constitution and the Act of Congress. It will not do for this State to have recourse to the spirit, that is, the construction of the Constitution, to get at a meaning either opposed to or enlarging or diminishing its plain letters. A licenciouf construetion may suit the interests of to-day, but it will rece upon us in an evil hour, when our own example will be quot against us. It is strange we do the framers of the Constitution such wrong as to suppose they did not mean just what they'said when they used plain language. The constitution enacts first, that “ full faith and credit shall be given in each State to the public Acts, records and judicial records of every other State.” There cannot be any thing short; the word is “full” as evidence, except the jurisdiction. These are interpolations. The word is full faith, not partial faith and credit. The next clause is as unequivocal. It says, “Congress may, by general laws, prescribe the manner in which such Acts, records and proceedings shall be proved, and- the effect thereof.” It must be wilful perversion alone that can deny the power thus to fix the mode of proof and the effect of such public Acts, records and judicial proceedings; and if Congress has prescribed by such laws that they shall have the same faith and credit as they have “ in the courts of the State from whence the said records are or shall be taken,” is it not downright interpolation to say, except always “ the jurisdiction of the court,” or “ except that “ such judgments may be pleaded to and resisted upon grounds not admissible in the courts of the State.” “ Such faith,” does not mean other faith — less faith. “ Nihil simile est idem.” Whatever then may be the evils pointed out as actual or possible^ the argument should be addressed to Congress, which has the power to declare the effect thereof, and may modify their general laws as they please. As long as the Act remains, if a judgment constitutes record evidence in the State whence it is taken from, such faith and credit also must it have in every other State. As long as the principle applies, “ transit in rem judicatam,” to a judgment in any State, and the parties are concluded, so long such faith and credit extends and accompanies the exemplifications in due form in every other State. The “ effect” is the re* suit of the faith and credit. If the faith and credit is not to be questioned, the effect is to conclude the parties. To deny that “ nul toil record” is a good plea, is to deny that it is a reply to the demand ; to say that this incontrovertible evidence of debt exists. It is impertinent for a defendant to offer proof where the case of the plaintiff is by law not to be controverted. Why then is not “ mil tiel record” a proper plea? And what hinders the issue being established by a transcript made by law equivalent with the original ? See 6 Pickering’s Rep. p. 237.
    A judgment of a sister State then, is no longer a foreign judgment ; much less is it a debt “ upon lending or contract without specialty.” A judgment is higher than specialty, and therefore includes it. “ Omne majus in se conLinet minus” and no one pretends that the Statute of Limitations can be pleaded to a specialty, therefore it cannot to debt on judgment from a sister State.
    The case of Hall and others vs. Williams and others, 6 Pickering’s Mass. Rep., is worth an attentive perusal, for both its merits and its faults. After a most logical argument, leading directly to the opposite conclusion, the court decided that if by the record it does not appear that the defendant was served with process, “ he may be allowed to avoid the effect of the judgment here, by showing that he was not within the jurisdiction of the court which rendered it, for it is manifestly against first principles that a man should be condemned either civilly or criminally without an opportunity to be heard in his defence.” Now, every court owes it to comity, to presume that it has not violated first principles by so wanton an act as condemning a man unheard. The judgment necessarily presumes, whether it appear by the record or not, that the parties were properly before it, and if the record be indeed defective in that particular, the court where it is entered may be called on to vacate it.
    But whatever may be the strict reasoning, it is very certain that even the opinion of the Supreme Court will be rejected, or construed away, when it establishes doctrines, however strictly true, which affect the rights and legislation of the States ; and the remarks of the Chief Justice of Massachusetts, in 6th Pickering, p. 243 and 4, go the whole length to shew that even the decrees of the supreme Court are imperative against State doctrine j and in fact the decision of Judge Parsons, in JBissell vs. Briggs, has superceded that of Judge Story in Mills vs. Durea% and the jurisdiction of a State court, even a court of general jurisdiction, is a subject of enquiry ip a suit based on a judgment of a sister State; but where the parties were before the court, the judgment is conclusive.
    But all this shews that a State court may think for itself, even although the Supreme court have decided the question; and so; the case of McElmoyle & Cohen, 13 Peters, may not be conclu/ sive, except of that case. Let us then consider the case of iF Elmoyle vs. Cohen, in 13 Peters, 312.
    McElmoyle obtained a judgment against Levy Florence, in Charleston, on a promissory note. Florence moved to Georgia, died, and Cohen was his administrator. He was sued on the judgment in Georgia, and pleaded the Georgia statute of limitations and plene administravit, thus raising two questions ; first, whether the action was barred by that statute; second, whether the judgment was to rank in the distribution of assetts as a judgment, or a simple contract debt. Both questions are to be resolved by reference to the laws of Georgia. The statute of limitations of Georgia is'in these words: “ That all actions of debt on judgments obtained in courts other than the courts of this State, must be brought within five years after the judgment obtained.” But the statute of South Carolina, on that subject, is in these words: “ All actions of debt, grounded upon any lending or contract without specialty.” The whole case turns on this difference. The question whether a judgment of a sister State is a contract — a contract upon lending or without specialty, is thus presented. When it is considered that at common law there is no statute of Limitations ; that the Act is in derogation of the common law, and so must be strictly construed, it is decisive of the point in issue. The case must be brought within the letter or spirit of the Act, or the statute does not apply. It is not within its letter, for judgments are not contracts or specialties, but debts of record. It is not within its spirit. The statute of Limitations is a statute of repose, to prevent men’s estates being taken from them upon claims, when the evidence to rebut them may be lost by the casualties of time; when the counter proof is supposed to be lost. It is- a-wise and beneficent statute, and in proportion as the claiu]i is stale, the defence is both legal and moral. A man who defers a suit for ten or twenty years, may recover more than is due, or what has been long since paid, and ought not to su-percede intervening creditors, whose demands are recent. In almost every instance in which indebtedness is sought to be for the first time established, after a lapse of years, the defendant is justified upon every principle of morals to resist its being reduced to judgment. If any thing is due at all, the plaintiff ought to rely upon the sense of justice of the defendant, and not on the coercive power’s of the law. “'Vigitantibus non dormientibus sub-veniunt leges.” But this reasoning does not apply where the parties have had a full opportunity for trial on the merits, and after full defence the claim is established by the judgment of an impartial tribunal, and becomes matter of record. It is then res judicata.
    
    The vouchers are not liable to loss ; the amount and the indebtedness are fairly and fully established; and it is only by subsequent payment, or other cause discharging the judgment, that it can be annulled. It is true, that after twenty years, the common law presumes it paid, although that presumption may be rebutted; but until rebutted, the maxim applies, “ stat pre-sumptio donee probetur in contrarium.”
    Thus then a judgment does not come within the letter or the spirit of our statute of distributions. But it is said that ajudgment of another State is not a record, but only a simple contract. There is much false reasoning on this subject. It is said it ranks only as a simple contract in the distribution of an estate. This can only' be true where the original cause of action was a simple contract, for it will not be contended that a bond, because it is reduced to judgment in a sister State, will only rank as a simple contract. It cannot lose dignity by being carried into judgment. The true rule then must be, that judgments, in the Act regulating the distribution of estates, means judgments which have a binding efficacy, which constitute a lien within the State. The lien of a judgment only attaches to estates within the State where it is rendered. This reconciles the decision on that point with the provision of the constitution, and still leaves the judgments of the other States records — debts of record, fixed by record proof, and not “ contracts without specialty.” But in Georgia the lex fori has limited the recovery on foreign judgments to five years, and the only point decided in McElmoyle and Cohen, is that that law does not violate the provision of the constitution which gives full faith and credit to judgments of a sister State. Every nation may establish its own laws of her forum, which touch only the remedy and leave the right unaffected; and had Cohen been in South Carolina, where no such law of the tribunal exists, there could be no doubt of his liability. That this law restricting the remedy does in practice render the right nugatory and fruitless, is evident, and may be carried to an extent to substantially impair the obligations of contracts, is too true. A right without a remedy, is a delusion, but a requisition that rights should be enforced in a reasonable time, is perfectly consistent with justice. If the law of Georgia had prohibited altogether suits upon judgments in a sister State, a different question would arise, one to be resolved by reference to the prohibition to pass laws impairing the obligation of contracts, and giving to such judgments the same effect as they have in the State where they are rendered.
    It is decided thabthe Statute of Limitations of the lex loci con-tractus is not applicable, but only that of the place where suit is brought, so it is no part of the contract, but a restriction of the remedy. The decision, therefore, in 13 Peters, goes no further than to maintain the constitutionality of this lex fori of Georgia, and is no authority in this case ; and¿ it cannot be disguised, that the case goes to the extremest verge of State rights, in thus cutting off or curtailing the remedy upon a record, protected by the constitution, and especially as the very words of the constitution confined to Congress the power to1 declare “the effect” of such judgments in the several States, and they have declared that they shall have such effect as they would have in the States where they are rendered. What State can say that effect shall last five years 1 Why not another fix the limit to one year or one month, so as practically to defeat the constitution 1 and that too in a suit brought in the United States court by a citizen of another State. The argument is all against the Georgia law. How far policy may have bent the court to submit to this partial abrogation of the constitution, I will not say, but surely this court will not be seduced from its allegiance, and go further, and pronounce a judgment, thus protected, a mere contract, a chose in action; evidence of debt, subject to question; in fact, a simple contract. A judgment is not a contract. See 3 Black. Com. 295, 399. It is a more solemn matter.
    In our own courts there has been much contrariety of opinion. In Flournoy vs. Durke, 2 Brev. Rep. 257, it was ruled that if nul tiel record be pleaded to debt on the judgment from another State, the transcript of the record, duly certified, is conclusive; and in Brown's administrators vs. Winn, 2 Brev. Rep. 297, exemplifications from one district are as good as the original in the district where the judgment is recorded; and in Haimahan vs. Hathaway and Smith, 1st Brev. Rep. Ill, nul tiel record was held bad on demurrer. But the conclusive decision is found in Morton, & Co. vs. Naylor, 1st Hill’s Rep. 439. The decision is to the very point now submitted. That the Statute of Limitations of South Carolina does not in terms apply to a judgment from another State, and cannot be enlarged beyond its terms. The argument of the court is full and conclusive, and supports and recognizes the doctrine as maintained in Mills and Durea, Bis-sell and Brigs, 9 Mas. Rep. 463; Hall and Williams, 6 Pickering’s Rep. 232, 1st Mass. Rep. 405; Sewall’s opinion, and 7 Cranch, 4S5; 3d Wendall’s N. Y. Rep. 267; and that nul tiel record is a good plea, is established by necessary implication, see 13 Peters, p. 325. All these authorities place such judgments on a higher footing than mere foreign judgments, which are received only as prima facie evidence, while State judgments are conclusive, especially if the record shows the parties to have been within the jurisdiction. I have thus proved that by the constitution and the Act of Congress, and by the concurring decisions of Story, Parsons, Parker, and our own court, a judgment in a sister State is a record; that it is conclusive evidence^ — record evidence, and that it is not included in the Statute of Limitations of this State, and so cannot be pleaded to the debt of Mr. Napier, and that the complainant is entitled to a decree dismissing the appeal, and such decretal order as may necessary to enable the complainant to obtain payment of his debt as established by the circuit decree.
   Curia, per Johnson, Ch.

In May 1822, the complainants recovered against defendant’s testator, in the City Court of New York, a judgment for $1093 99, and in January, 1837, they commenced an action on that judgment against him, in the Common Pleas, for Charleston district, in this State, to which he pleaded the Statute of Limitations. He died pending that action, and the complainants afterwards renewed it against the defendant, his executor. The cause has in the end found its way into this Court, and one of the questions was, whether the judgment in New York was or was not barred by the Statute of Limitations of this State. The Circuit Court decided for the complainant, and whether that was error or not is the only question submitted by this appeal.

That decision was in conformity with the judgment of the Court in Hinton vs. Townes, 1 Hill Rep. 439, when the question was directly made and solemnly decided, the whole Court concurring, and I suppose would not again have been revived, but for the supposition that it had been ruled otherwise by the supreme Court of the United States in McElmoyle vs. Cohen, 13 Peter’s Rep. 312, to which I shall hereafter more particularly refer, for the purpose of shewing that it does not involve the question to be decided here. But as it has been again revived and again argued on general principles, the Court have thought it expedient to use the occasion to put it to rest forever. Yet the whole ground has been so fully covered by the adjudications of our own Courts and those of the United States and our sister States, as to leave but scanty gleanings. The question has been heretofore treated as depending on the construction of the Act of Congress of 1790, passed in pursuance of the authority given to Congress, by the 1st section of the 4th article of the constitution of the United States. The constitution provides that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” And the Act, after providing for the mode in which they shall be authenticated, declares that “ the said records and judicial proceedings, authenticated as aforesaid, 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.” In the earlier cases in this State and in New York, and some of the other States, this Act was regarded as intended merely to prescribe the mode in which the judgments obtained in one of the States should be authenticated to make them evidence in the others, leaving the effect to be determined according to the rules of the common law. They were therefore put on the footing of judgments, strictly foreign, on which debt or assumpsit would lie as on simple contracts, and that the record was only prima facie evidence of the debt; and it was held, that the plea of nul tiel record was inadmissible, because the usual replication of habetur tale recordum, was inapplicable, as the original record could not be inspected, but that under the plea of nil debet the defendant was at liberty to go into evidence to impugn the contract on which the judgment was founded, and consequently might plead any other plea applicable, under the general rules of pleading, to the cause or form of the action. Such was evidently the tendency of the judgment of the court, in Hammond and Hathaway vs. Smith, 1 Brev. Rep. 110, and Flournoy vs. Durke, 2 Brev. Rep. 257, in which it was held that nil debet, and not nul tiel record, was the proper plea in an action on the judgment of a sister State, which would, of course, open the merits of the judgment for examination. Lambkin vs. Nance, 2 Brev. Rep. 99, and Flournoy vs. Durke, were decided at the same term. That, was assumpsit on a judgment obtained in Virginia, and it was held that the action was well brought, and that the plaintiff might have brought debt at his election. The New York cases went on the same principle. In Hitchcock vs. Fitch, 1 Cain’s Rep. 461, and Hubbell vs. Cowdry, 5 Johns. Rep. 132, the judgments of other States are treated as foreign judgments — prima facie evidence only of a debt, and of course open to examination. The principle on which these cases proceeded would obviously have let in the plea of the Statute of Limitations, and it is a little remarkable that its application escaped the observation of the profession until it was made in the case of Hinton vs. Townes, 1 Hill, 440. There seems indeed to have been an undefined and mysterious regard paid to the judgments of the sister States in this respect, altogether at variance with the severe scrutiny to which they were subjected in many others. The question has, however, been re-examined, and stands now on the true foundation. The judgments of a sister State areno longer regarded as merely primafacie evidence of a debt, liable to be opened and rebutted by proof, but as conclusive of the fact of indebtedness. It was so held in Mills vs. Durea, 7 Cranch, 481. Mr. Justice Story, who delivered the judgment of the court, after referring to the constitution and the Act of Congress, says that the judgment of a sister State may be proved in the manner prescribed by the Act, and such proof is of as high a nature as the inspection by the court of its own record, or as an exemplification would be in any other court of the same State, and the plea of nil debet was therefore inadmissible.

Precisely the same question arose in Massachusetts, and at the same time, (March 1813,) in the case of Bissell vs. Briggs, 9 Mass. Rep. 462, in which Chief Justice Parsons remarks that “judgments rendered in any other States are not, when produced here, as the foundation of actions, to be considered as foreign judgments, the merits of which are to be enquired 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 the subject of enquiry. But such judgments, so far as the court rendering them had jurisdiction, are to have, in our courts, full faith and credit.” The effect of the judgments in one State in the courts of another, again came up in Hampton and McConnel, 3 Whea. 234, in which Chief Justice Marshall says that they should have the same credit, validity, and effect, in every other court of the United States, which they have in the State where they were pronounced, and therefore the plea of nil debet could not be pleaded to actions brought upon them.

Much diversity of opinion seems to have existed as to what might be pleaded to an action on a judgment in another State. In Hinton vs. Townes, 1 Hill’s Rep. 445, Judge O’Neall says that it is to be tested by the enquiry whether it would or would not be good in the State where the judgment was obtained; and Chief Justice Marshall, in Hampton vs. McConnel, 3 Wheat. 234, holds the same doctrine. “ And whatever pleas,” says he, “ would be good to a suit thereon in such State,” (the State in which the judgment was obtained,) “ and none others, could be pleaded in any court in the United States.” That, I think, is laying down the rule too broadly, and the whole force of it was not seen at the time, nor was the question in either case necessarily involved. All that was intended by the Act of Congress, was to render the judgment conclusive of every thing decided by it; that is, its effect in the court in which it was obtained, and of necessity, the fact of the judgment, can only be tested by the. plea of nul tiel record. In all other respects, the States are left to prescribe their own forms of pleading. On this principle it was held by the Supreme Court of the United States in McElmoyle vs. Cohen, 13 Peters’s Rep. 312, that the Statute of Limitations of Georgia, which declares that actions on the judgments of another State shall be barred unless brought within five years after judgment rendered, was properly pleaded to a judgment obtained in South Carolina. It seems too that it is now well settled that under the plea of nid tiel record, the jurisdiction of the court which pronounced the judgment may be enquired into. Such is the opinion expressed by Chief Justice Parsons in Bissell vs. Briggs. See also Hall vs. Williams, 6 Pick. 242. In all the cases the rule seems to have been laid down so broadly as to be liable to misinterpretation. If it appear from the record, as by the plea to jurisdiction, that the question was whether one or another of the courts of the State where the cause was tried, had jurisdiction of the subject matter, the judgment on that point would, according to the rule before laid down, be conclusive. But whether the party sued is or is not the same against whom the judgment was obtained, is a question which would necessarily be open in the court where the judgment was obtained, and necessarily so every where else. So too where the proceeding was in rem, as a foreign attachment, the judgment could operate on the thing-only, and not upon the person.

I have gone something out of the way, and perhaps unnecessarily, for the purpose of explaining some doubts in relation to the points before noticed, for the whole court is of opinion that the question here is concluded by the case of Hinton vs. Townes, before cited. I have no question that the Legislature of this State might, as in Georgia, have passed an Act barring actions on the judgments of other States, without any violation, of the constitution or Act of Congress; but the provisions of our statute do not extend to the case. The provisions of it applicable to this question are thati( all actions of account and upon the case; all actions of debt grounded upon any writing or contract without specialty,” shall be barred, &c. The original cause of action here, was contract, but it is no longer so, it has passed into a judgment,.and that is the foundation of the action, and therefore not embraced in our statute; that effect is precisely the same whatever may have been the original cause of action ; it is merged in the judgment; as effectually so as if a bond or other specialty had been' given for a simple contract debt. It has assumed a new; form, and a name not found in our statute.

The case of Cameron vs. Wurtz, 4 McCord, 278, is supposed to conflict with this view, but that too is the resun. of the construction of our own Act, providing for the order in which the debts of a person deceased shall be paid when it becomes necessary to marshal the assets. By the Act of 1789, 5 Stat. at Large, 111, the funeral and other expenses of the last sickness, and the charges of administration, are first to be paid, “ next, debts due to the public; next, judgments, mortgages and executions, the oldest first; next, rent; then bonds or other obligations; and last, debts due on open accountsand it is provided that no “ preference shall be given to creditors in equal degree, when there is a deficiency of assets, except in the cases of judgments and mortgages that shall be recorded, from the time of recording, and executions lodged in the sheriff’s office, the oldest of which shall be first paid, or in those cases where a creditor has a lien on any particular part of the estate;” and it is evident that the preference here given, to mortgages and judgments is in respect to the lien they have on the estate. That of course cannot apply to the judgments of another State; and as they do not fall within the debts described in any of the other classes, they must fall in with the last, and rank as a simple contract debt.

The motion to reverse the Circuit Court decree must therefore be dismissed, and it is so ordered.

Harper, Johnston and Donkin, Chancellors, and O’ Neall, Evans, Butler and Wardlaw, Justices, concurred.  