
    Estes vs. Kyle.
    International Law. Conflict — limitations. The statute of limitations oí' the state in whose courts a suit is prosecuted, must prevail in all actions.
    SAME. Constitutional law. The federal constitution, art. 4, $ 1, relative to the faith and credit to be given to the judicial proceedings, &c. of each state, in. the others, and the act of Congress of 1790, c. 11 — 1 Story’s Laws, 93, Gordon’s Digest, art. 638 — giving to those proceedings such faith and credit, in every court in the union as they have in the state whence taken, do no! change the above-rule of international law, — nor impose upon the tribunals of the state in which a suit may be prosecuted thereon, all defences arising upon matters ex post facto, and affecting the remedy merely to which they would have been subject, if sued in the state whence they were taken. See Story’s ConfL $ 575 to 583, Comm, on Const. $ 1297 to 1307.
    Same. Same. The general language in Mills vs. Duryee,% Cond. R. 578, and Hampton vs. McConnell, 4Id. 243 — ‘‘thatwhatever pleas would be good to a suit bro.ught upon ajudgment in the state where it was originally rendered • and none others can be pleaded in any other court in the United States” — is to be understood of pleas, affecting the validity and conclusive effects of judgments, as evidence, not of pleas, affecting only the remedy.
    Estes and another executed their bill single to. Kyle on the 12th of November, 1817, 'for fourteen hundred and sixty-four dollars and seventy-nine cents, payable twelve months after date. On the 27th of September, 1819, in the superior court of Pittsylvania county, Virginia, Kyle recovered judgment thereon, against the obligors for the amount thereof, interest and costs. Upon a transcript of the record of this recovery, Kyle sued Estes in the circuit court of Haywood, on the 24th of November, 1836, and declared in debt in the usual form. Estes pleaded nul tiel record, and the following special plea, namely — “That no execution had issued on the judgment mentioned in the declaration, within ten years next after the date of said judgment, nor were the said plaintiffs, or either of them under the age of twenty-one years, femes covert, non compos mentis, imprisoned, or without the commonwealth of Virginia, at the time the aforesaid judgment was awarded; and that the said judgment has never been revived by scire facias, or action of debt, and this, &c.; and jn support of the above plea, relies on the statute of limitations of the state of Virginia, of ten years in such case made and provided, which statute was passed in the year 1819, c. 1S!8, § 5 and 6:. wherefore the said defendant prays judgment il' the said plaintiffs ought to have and maintain their aforésaid action against him.” To this special plea Kyle demurred, and thére was joinder in demurrer.
    At June term, 1837, of the circuit court of Haywood, judge Read sustained the demurrer, over-ruled the plea of nul tiel record, and rendered judgment for $3,172 54 cents, besides costs, from which judgment the plaintiff in error prosecuted an appeal in nature of a writ of error.
    By the Virginia act of 1792, c 76, § 5, revised in 1819, upon which the above plea was founded, it is enacted that— “judgments in any court of record within this commonwealth, where execution hath not issued, may be revived by scire fa-cias, or an action of debt brought thereon, within ten years next after the date of said judgment, and not after; or where execution hath issued and no return is made thereof, the party in whose favor the same was issued, shall and may obtain other executions, or move against any sheriff or other officer, or his or their security or securities, for not returning the same for the term of ten years from the date of such judgment, and not after.”
    J. M. Strother for plaintiff in error
    argued, that as by the words of the act of Congress of 1790, c 11, such faith and credit are to be given to the records and judicial proceedings of the states, when duly authenticated, in every court within the United States, as they have by law Or usage in the courts of the state from whence they are or shall be taken;— and as in the state of Virginia, had the plaintiff in error been sued on this record, he might have pleaded the statute of limitations of ten years, it followed that he might plead the same plea here. Otherwise the same effect would not be given to the judgment in Tennessee, as it would have had in the state from which it has been taken. That the purpose of the act of Congress, in prescribing the effect of the judicial proceedings of the several states in all the rest, was to place them upon an equality, in all respects, with domestic judgments; to make them conclusive in the other states, or open them to enquiry and examination there, in the same way as they would be in the state where rendered. And he insisted that such was the view taken of the subject in Hampton vs. Me-
      
      Connell, 3 Wheaton, 234, — in Mills vs. Duryee, 7 Cranch, 481, — in Moren vs. KiUibrew, 2 Yerger, 376, and in 2 Leigh, 175, — Oliver’s Precedents, 447. That in over-ruling the plea of the statute, the court in effect, decided that the judgment should have greater effect here than in Virginia, where, beyond question, the plea would have been a bar to the plaintiff’s action. That the plea does not assume to question the consideration of the judgment, but simply to insist that the defendants in error are precluded, by their laches from again disturbing the repose of those who have been allowed to remain in quiet more than ten years. That the defendants in error have to rely exclusively upon the act of 1790 to sustain their action, which act, by fixing upon the judgment, throughout the United States, the same efficacy as is allowed it by' the laws of Virginia, gives to those laws, quoad hoc, an extraterritorial operation, and abolishes the principle of international law, that the lex fori must govern as to the application of remedies, 2 Leigh, 176. That as the judgment was barred in Virginia, it is likewise barred in Tennessee, 8 Peters, 528; and that statutes of limitations being intended to put an end to litigation and secure the peace and repose of society, ought to be favorably construed, Cooke 330, 7 Yerger, 405.
    G. D. Searcy for the defendants in error
    said — it is contended that this plea is a good bar to the action, by virtue of the constitution of the United States and the act of Congress of 26th May, 1790.
    The constitution declares that “full faith and credit shall be given in each state to the records and judicial proceedings of every other state: and Congress may, by general laws, prescribe the manner in which such records and judicial proceedings shall be proven, and the effect thereof. The act of Congress of 26th May, 1790, after prescribing the manner of authentication declares — “the said records and judicial proceedings 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 states from which said records and judicial proceedings are or shall be taken.”
    Faith and credit, the terms used in the constitution, are terms peculiarly applicable to evidence. The act of Congress adopted the terms used in the Constitution — “shall have such faith and credit given them.”
    The effect then which records are to have, is their effect as evidence only. If they had in the courts of the state where rendered, the dignity of record evidence, they have the same dignity in every other court in the United States.
    To make this plea good under the constitution and act of Congress, such construction must be put upon them as will give the judgment in the stale where it is attempted to be enforced, the same force and effect as it has in the state where obtained. In other words, the manner in which, and the time when it is to be enforced, are to be governed by the laws of the state where the judgment is originally obtained. Such a construction would work great injury and injustice. It would, in effect, authorize the ministerial officers of the law in the state where it is attempted to enforce such judgment, to issue an execution thereupon without notifying the party of the fact, and indeed, without permitting him to controvert the existence of the judgment. He might be imprisoned contrary to the laws of his own state, and could not be delivered from such imprisonment but by pursuing the forms prescribed by the laws of the state where such judgment was recovered. It would make the judgment, whether obtained by attachment or otherwise, conclusive upon him, and de.prive him of the right of showing a want of jurisdiction in the court rendering the same. It would be giving to the legislation of the state in which such judgment might be obtained, as to the manner and time of enforcing its judgment in other states, a binding influence beyond its territorial jurisdiction, andstretch-ing the principles of international comity to such an extent as entirely to change the law of the forum. In the case of Mills vs. Duryee, 7 Cranch, 481, the court did not go to this extent. Upon a careful examination of that case, it will be found that the court in declaring the effect of the records, declare its effect as evidence only — “that if it had in the court where obtained, the faith and credit of record evidence, it should have the same faith and credit in every other court.” I am fully sustained in this construction o'f the case of Mills vs. Dimjee, — by numerous subsequent decisions upon this subject, where parties have been permitted to show that the court rendering the judgment, had no jurisdiction, 2 Dallas, 302: 6 Wheaton, 129; 1 Dallas, 129; 2 Yerger, 484 tad 38Ó; 3 Yerger, 395. ■
    The doctrine laid down by Chancellor Kent; 1 Comm. 26, as declared in 4 Cowen, 292, “that any plea may be pleaded? which would be good to avoid the judgment where pronounced,” refers only to such pleas as show the judgment to be void — as a want of jurisdiction in the court rendering the same, either as to the person of the defendant, or as to the subject matter, and not to such pleas as show the judgment to be voidable only. See note, 1 Kent, 261; 1 Halls N. Y. Rep. 155; Starbuck vs. Murry, 5 Wendle, 148; Shumway vs. Stillman, 6 Wend. 447; Wilson vs. Chiles, 2 Hall’s N: Y. Rep. 358; Story’s Confl. § 609.
    It is contended by the counsel for the defendant itt error, that the question here is to be determined alone by the principles of international law, and therefore the plea cannot be admitted, as it is a well settled principle, that the statute of limitations is the law of the forum, and operates on all who submit to its jurisdiction, 3 Peters, 277. Chancellor Kent lays down the doctrine, that remedies upon contracts are regulated by the laws of the place where the action is brought, and the Comity of nations is satisfied with allowing to foreigners, the use of the same remedies, to the same extent that are afforded to the citizens of the state, 2 Kent, 462 — 3. It is upon this principle, that the statute of limitations of the state where the contract is made, is no bar to a suit brought in a foreign court, 8 Peters, 372; 1 Caine’s Rep. 402; Story’s Confl. § 576; 3 Johnson, 263.
    In the case of Jones vs. Hooks, 2 Randolph, 303, in an action of debt founded upon a record of a judgment obtained in North Carolina, brought in Virginia, it was held that the statute of limitations of North Carolina is no bar, but that of Virginia, if applicable, governed the remedy.
    Geo. S. Yerger on the same side
    said — It is clear from all the authorities, that if this suit had been brought on a contract, note, bond, &c. executed in the state of Virginia, the statute of limitations of that state could not be pleaded in bar in the courts of Tennessee, even if the plaintill and defendant had been citizens of the former state and the period of limitation had elapsed during their residence as citizens.
    So far as relates to the validity, interpretation and obligatory-force of the contract, the laws of Virginia would govern; but as to the remedy, it is to be pursued according to the law of the state where the contract is attempted to be enforced.
    So in general, any plea which operates a discharge of the contract, or affects its obligatory effect, and which would be available in the country where the contract was made, would be available every where. But pleas which only affect the remedy, as the plea of the statute of limitations, have always been held to be no answer to the suit in a foreign tribunal. The authorities on this point are numerous; a few of the principle ones are here cited — Story’s Confl. 482: 2 Mason’s Rep. 157: 4 Cowen’s Rep. 528: Lincoln vs. Batidle, 6 Wend. 475: 9 Yerger 63: 3 Conn. Rep. 472: 1 Caine’s Rep. 402: 3 Johnson, 263.
    Even when a suit is instituted in the country where the contract is made, and the statute of limitations is pleaded, and a verdict and judgment rendered upon it for the defendant, it is unavailable when sued upon in a foreign state. The verdict and judgment does not extinguish the contract. It is res judicata only upon a plea which, in the courts of that state, merely destroys the remedy, leaving the contract in full force, 8 Peters’ Rep. 370.
    2. Does it make any difference that this action is founded on a judgment rendered in Virginia?
    The construction of the act of 1790, c 11, has been settled in the case of Mills vs. Duryee, 7 Cranch’s Rep. and Hampton vs. McConnell, 3 Wheaton, which decide the judgment to be conclusive evidence, and to have the same effect and validity as in the state where rendered.
    So far then as relates to the judgment and its effect, it is as conclusive evidence of the debt, as in the courts of Virginia. But the statute of Virginia, providing that no action of debt or scire facias, should lie, &c. is no part of the judgment, has nothing to do with its effect, as evidence. The judgment has the same conclusive effect in Virginia, as evidence, after the expiration of ten years as before — for upon the plea of nul tiel record, it would be as conclusive after as before the act. The act of Virginia recognizes this, but it says — “notwithstanding its force and effect, as evidence, if you do not proceed upon it within a given period of time, your remedy or proceeding to enforce it shall be barred.” This law evidently cannot operate "extra territoriwn It does not extinguish or vacate the judgment, but merely provides the time within which an action of debt or scire facias shall be brought. The latter mode of proceeding cannot take place in any other state, or in any other court of Virginia except where the judgment was rendered. The action of debt also, in some states, for instance in Louisiana, would not be brought, and this strange anomoly might be presented, that if this statute is connected with the judgment, it might be pleaded in bar in Tennessee, where the action of debt on a judgment is known, and could not be pleaded in Louisiana, where that kind of action is not known.
    The statute of Virginia evidently has relation only to the forms and modes of proceeding in the courts of Virginia, and has nothing to do with the validity and effect of the judgment. And there can be no legal distinction between the effect of a statute of limitation as to a judgment, or any other contract. Because a judgment has the same faith and credit, force and validity in other states, as in the state in which it was rendered; it does not follow that the same remedies are to be pursued in enforcing it — if so, an execution could issue to any state in the Union upon a judgment obtained in another, which is an absurdity that never can be contended for. In one state a judgment is a lien upon land — in another it is not. In one state lands cannot be sold under a judgment — in another it can. Can it be pretended that because lands can be sold in Tennessee under a judgment, it therefore follows, when it is attempted to be enforced in a state where they are not subject to a judgment, (as in Rhode Island,) that land in the latter state can be sold— and yet such is the necessary result of the doctrine contended for on the other side. To my mind it is clear, there is nothing in the construction in the act of Congress, that has the least influence upon the question. It is simply an attempt to enforce the act of limitations of another state, which upon settled principles of international law cannot be done.
    April 11.
    
      
      The execution of a judgment only forms a part of the remedy to enforce it, 10 Wheaton, 1.
    
   Reese J.

delivered the opinion of the court.

An action of debt upon the record of a judgment obtained in Virginia, was brought by the defendants in error against the plaintiff. The latter, among other things, pleaded a statute of Virginia, which limits the right to bring an action of debt or scire facias upon a judgment to the term of ten years after its registration. To this plea a demurrer was filed, which the circuit court sustained;, and whether the circuit court in that respect erred, is the question before us.

The counsel for the plea admits, that in general, in cases of contract, defences, arising from matters ex post facto, are governed by the law of the forum. And with regard to statutes of limitation especially, there can be no doubt, and it has not been here controverted, but that they are strictly questions affecting the remedy, and not questions upon the merits. And in such cases, it is said by an eminent jurist, to have become a formulary in international jurisprudence, that all suits must be brought within the period prescribed by the local law, otherwise the suit will be barred. Story’s Conflict of Laws, § 577.

But, it is insisted that this suit having been founded upon a judgment rendered in one of the states of this Union, is subject under the constitution and laws of ihe United States, to the same defences, arising upon matters ex post facto, and affecting the remedy merely to which it would have been subject, if brought in the state where the judgment was rendered. The first section of the fourth article of our federal 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 judicial proceedings shall be proved, and the effect thereof;” and accordingly, Congress prescribed the manner of proof, and provided that records and judicial proceedings 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 which the said records are or shall be taken.” And here, at once it may be asked, if when, in a suit brought upon this Virginia judgment, we give conclusive effect to the record by again rendering judgment thereon, it can be pretended that we have withheld faith or credit from a record or judicial proceeding of that state, because we refuse to apply an ex post facto defence, affecting not the validity or conclusiveness of the judgment, but the remedy merely, but which would have been enforced if the suit had been brought in Virginia? The very statement shows, that here is no defect in faith and credit, or conclusiveness of effect, as to the record from Virginia; but the real complaint would be, that our own lesjori, as to the remedy should not cease to operate in favor of the local remedy of Virginia. If this could be done, it would follow, as a consequence, that the local remedy prescribed by the Virginia statute, would in that state cease to operate, whenever a suit might be brought there upon a judgment recover in any other state, — a consequence without and beyond the scope of the words or intention of the constitution and act of Congress, — a consequence injuriously affecting the power of the states, each for itself, to impose statutes on all for repose, and founded upon a policy alike salutary and enlighted.

But it is said, that in the case of Hampton vs. McConnell, 3 Wheaton, 234, and the case of Miles vs. Duryee, 7 Cranch, 481, the Supreme Court of the United States determined, that whatever pleas would be good to a suit brought upon a judgment in the state where it was originally rendered, and none others can be pleaded in any other court of the United States; But a reference to those cases will prove that this general language relates to pleas, affecting the validity and conclusive effect of a judgment, qua judgment. But in the cases themselves, or in the words of the court, there was nothing relative to the question of an ex post facto defence or plea affecting the remedy only, the judgment itself being .taken as valid and conclusive.

Note. Res judicata. A fact which has been directly tried and decided by a competent jurisdiction, cannot be contested agaia between the same parties, in the same or any other court. This rule applies not only to verdicts and judgments at common law, but to the sentences of admiralty and ecclesiastical courts, to decrees in chancery, — and in short, to the judgments of all courts which have proper cognizance of the subject matter, so far as they profess, to decide the particular matter in dispute. Hopkins vs. Lee, 5 Cond. R. 23. Story’s Confl. c. 15.

Upon the whole we think the Judgment of the circuit court is correct, and must be affirmed.  