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ecution of a joint note only. The power was to give a joint note, and the note on which the suit was brought was a joint and several note. In 2 Johns. Rep. 19, it is decided that an authority to give a note of a particular date is not an authority to give a note of any other date.

A joint note is not the same as a joint and several note; on the former, one writ only can issue, all the parties must be sued together; but on a joint and several note, suit may be brought against each of the persons who are parties to it. This is material as to costs. Another matter for consideration, and one which is material, is that the act of the Assembly of Maryland gives a right to contribution in favor of those who are sureties from co-sureties; and a surety paying may have an assignment of the judgment when he pays it. This makes it most important that the power of attorney should be strictly pursued. When the attorney departs from the authority given to him by his principal, although for his benefit, his acts do not bind the principal. 7 Barnwell & Cresswell, 278; Ambler's Rep. 498.

It was argued in the Circuit Court that the word "several," in a power of attorney may be rejected as surplusage, and the joint powers given retained. This position cannot be sustained. Cited, Sugden, on Powers, 210, to show how important and essential an adherence to forms is deemed.

Admitting that the execution of a power may be sustained, where there is surplusage in the terms of it, yet this exists only when the acts to be done, or done under it, are divisible. But this set-off can only be obtained by the aid of a court of chancery.

In this case the action was brought on the note as "joint and several." Then the election was to treat the note as "joint and several;" and yet, when the objection was made, the note was set up as a joint note. A power of attorney to three persons to execute the powers granted, cannot be executed by two. 307*] An authority to *do a thing in one way, cannot be performed by executing it in another way. The note should not, therefore, have been given in evidence. Cited, 1 Peters, 29; 1 Rolle's Abr. 529; L. placetum, 15. As to the ratification of the act of an attorney by the receipt of the money, and its appropriation to pay a prior note for the same sum then due, it must be considered as not having been the act of the defendant. He was absent, and ignorant of the transaction.

It may be said that there was evidence to support the money counts in the declaration. But this cannot affect the right of the plaintiff to have the judgment of the Circuit Court reversed. Cited, Greenleaf v. Birth, 5 Peters, 135. The counsel was proceeding to argue the question of usury, raised by the second bill of exceptions. The court would not permit the argument, the point being considered settled. Mr. Coxe, for the defendant:

The discounting of the note by the bank was a continuation of a former loan. Cited, Barry v. Foyles, 1 Peters, 316; Minor v. The Mechanics' Bank of Alexandria, 1 Peters, 47.

If parties to a joint note are sued severally, they should plead the matter in abatement. It is not regular to make the objection under plea to the general issue.

But the verdict of the jury was upon the whole matter, and the evidence given was legal, and sufficient to sustain the money counts in the declaration.

Mr. Brent stated that the object of the plaintiff in error was to get rid of the verdict for five thousand dollars. He is perfectly willing to pay his portion of the debt.

Mr. Justice Thompson delivered the opinion of the court:

This case comes up on a writ of error to the Circuit Court of the United States for the District of Columbia, in the County of Washington.

It is an action of assumpsit, upon a promissory note, purporting to have been made by the defendant and Richard M. Johnson and P. H. Pope, by their attorney, George Thomas; the note bearing date the 16th of February, 1837; by which the makers, jointly and severally, promise to pay to the President and Directors of the Bank of the Metropolis or order, sixty days after date, the sum of five thousand dol

lars.

The declaration also contains the common money counts: and upon the trial of the cause the plaintiffs offered in evidence, to sustain the action, sundry matters set out in the following bill of exceptions:

First Bill of Exceptions.

On the trial of this cause the plaintiffs, to sustain the action on their part, proved by a competent witness that on the 27th March, 1834, the said defendant, with Richard [*308 M. Johnson and P. H. Pope, executed their joint and several note as follows:

"$5,000.

"Washington City, March 27th, 1834.

"Four months after date we jointly and severally promise to pay to the President, Directors and Co. of the Bank of the Metropolis, or order, five thousand dollars, without defalcation, value received, payable at said bank.

"Rh. M. Johnson, "T. P. Moore, "P. H. Pope." And on the same day, by their checks, drew from the said plaintiffs the proceeds thereof, which had been carried to their credit:

"Washington City, March 27th, 1834. "Cashier of the Bank of the Metropolis, pay to bearer forty-eight hundred and ninety-six 67-100 dollars.

"P. H. Pope." "Rh. M. Johnson, "T. P. Moore."

That said note was not paid at maturity, but lay over unpaid until the 30th January, 1836, when it was cancelled; that on the 30th day of January, 1836, the said parties executed and delivered to the said plaintiffs their promissory note, as follows:

"Six month after date we jointly and severally promise to pay to the President and Directors of the Bank of the Metropolis, or order, five thousand dollars, without defalcation, value received, this 30th day of January, 1836. "$5,000.

"Rh. M. Johnson, "P. H. Pope. "T. P. Moore.

"Cr. of R. M. Johnson, and others, to renew a note of same amount."

Which was discounted by said plaintiffs, and the proceeds thereof carried to the credit of said drawers, and the interest in arrears paid. That on the 29th of February, 1836, the said parties executed and delivered to George Thomas, at that time cashier of said Bank of the Metropolis, a power of attorney, in the words and figures following, that is to say: "Whereas, we have a joint and several note of hand discounted in the Bank of the Metrop

olis-Now

"Know all men by these presents, that we, Richard M. Johnson, Thomas P. Moore, and P. H. Pope, all of the State of Kentucky, do hereby nominate, constitute, and appoint George Thomas, of the city of Washington, our true and lawful attorney in fact, and by these presents do authorize and empower him, for us, and in our names, to sign our joint note to the President and Directors of the Bank of 309*] the Metropolis, for five thousand dollars, for our accommodation, and the same to

renew, from time to time, as it may become due, for the whole or any part thereof-Hereby ratifying and confirming all and every the act and acts of our said attorney, in and about the premises, so long as the bank shall continue the accommodation to us. In witness whereof, we have hereunto set our hands and seals, at the city of Washington, the 29th day of February,

1836.

"District of Columbia, Washington County,

to wit:

"On this 29th day of February, in the year eighteen hundred and thirty-six, personally ap; peared Richard M. Johnson, P. H. Pope, and T. P. Moore, before me, the subscriber, a justice of the peace in and for the county aforesaid, and acknowledged the above power of attorney to be their act and deed, for the purposes men

tioned therein.

"Sam" Stettinius, J. Peace."

Which said power of attorney was given for the single purpose of acting for said parties in relation to said last-mentioned note and the renewal thereof; and that the said George Thomas, professing to act by virtue of said power of attorney, under said power of attorney made and executed the note mentioned and described in the declaration, to wit:

"$5,000. Washington, 16th Feb. 1837. "Sixty days after date, we jointly and severally promise to pay the President and Directors of the Bank of the Metropolis, or order, at the said bank, five thousand dollars, for value received. "Richard M. Johnson, "Thos. P. Moore, "P. H. Pope, "By their attorney, Geo. Thomas." That the same was then discounted by said bank, the proceeds carried to the credit of the said drawers, and the arrears of interest upon the former and last preceding note, together with the discount of this note paid and credited on said account, and the said note dated 30th January, 1836, was cancelled, but witness does not recollect by what person said interest or discount was paid. To the admissibility of which notes, or any of them, or any matter above stated in evidence, the defendant objects;

but the court overruled the objection, and permitted all of said notes, and the proceedings, in regard to them and the matters stated, to be given in evidence to the jury. To which opinion of the court the defendant excepted.

There was another bill of exceptions taken at the trial, growing out of the refusal of the court to give certain instructions prayed; touching the alleged usury in the note, by reason of discounting the note. But it is unnecessary to the interest having been taken in advance on this account were abandoned at the argument, notice these instructions. For all exceptions on drawn into this discussion. The last prayer conas raising a question too well settled to be now tained in this bill of exception, which [*310 raised the question whether attorney given to George Thomas authorized the power of him to sign the note upon which this suit is brought, will be noticed under the first bill of exceptions, where the power is set out at length, so far as is necessary for the decision of this case; so that the second bill of exceptions may be laid entirely out of view.

bill of exceptions are, whether the evidence ofThe general questions arising under the first fered was admissible, and if so, whether it was sufficient to maintain the action, either upon the count on the note signed by George Thomas, taken after the evidence had been given (withor on the money counts. The exception was the exception; and if any part of it was admisout objection) to the whole matter stated in is the duty of a party taking exception to the sible, the objection was properly overruled. It admissibility of evidence, to point out the part excepted to, when the evidence consists of a number of particulars, so that the attention of the court may be drawn to the particular objection. The objection here taken, was in the broadest possible manner to all the matter stated in the bill of exceptions. That some part of this evidence was admissible under the money counts cannot be doubted. One of the notes to which the objection extended is the one upon which the first count in the declaration is founded. And whether that was admissible or not, depends upon the power of attorney to George Thomas, set out in the exception, under and by virtue of which he made the note in question.

That power, it will be seen, authorized him to sign a joint note; whereas, the one he gave was a joint and several note.

order to maintain the action, it may well be If it was necessary to decide this question in questioned whether the power did not authorize the making a joint and several note. There is some diversity of opinion on the bench upon that point. The object of the power, as appears upon its face, clearly was to make a note as the renewal of a joint and several note, which the parties had running in the bank. It recites as follows: "Whereas, we have a joint and several note of hand discounted in the Bank of the Metropolis," and then proceeds to empower George Thomas to renew the same from time to time as it fell due. But there may have existed some reason why they preferred changing the form, by giving a joint instead of a joint and several note. The power is certainly not strictly pursued, though probably accord

V.

Florence.

Judgment of court in one State conclusive in another as to merits-statute of limitations -lex loci-power of State to legislate as to remedy upon judgment of another State.

Although a judgment in the court of a State is not to be regarded in the courts of her sister States as a foreign judgment, or as merely prima facie evidence of a debt to sustain an action of debt upon the judgment, it is to be considered only distinguishable from a foreign Judgment in this; that by the 1st section of the fourth article of the Consti tution, and by the Act of May 20, 1790, sec. 1, the judgment is conclusive on the merits, to which full faith and credit shall be given when authenticated as the act of Congress has prescribed. When the Constitution declares that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and provides that Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof, the latter clause, as it relates to judgments, was intended to provide the means of giving to them the conclusiveness of judgments upon the merits, when it is sought to carry them into judgments by suits in the tribunals of another State. The authenticity of the judgment, and its effect, depend upon the law made in pursuance of the Constitution; the faith and credit due to it as the judicial proceeding of a State is given by the Constitution, Independently of all legislation. By the law of Congress of May 26th, 1790, the judgment is made a debt of record, not examinable upon its merits; but it does not carry with it into another State the efficacy of the judgment upon property, or upon persons to be enforced by execution. To give it the force of a judgment in another State, It must be made a judgment there; and can only be executed in the latter as its laws may permit.

ing to the intention of the parties. But as the | *WILLIAM M'ELMOYLE, for the [*312 cause does not turn entirely on this point, we use of Isaac S. Bailey, pass it by. The action is clearly maintainable on the money counts. If the note was properly JOHN J. COHEN, Administrator of Levy given under the power, it was admissible under the first count, or under the money counts. If signed by the attorney without sufficient authority, it was void, and to be laid out of view, and the cause stands upon the other evidence given at the trial; which shows the original loan by the bank, to Richard M. Johnson, T. P. Moore, and P. H. Pope, upon their note, dated 27th March, 1834, by which they jointly and severally promised to pay the bank five thou311*] sand dollars, in four months after date. By their joint check of the same date, they drew out of the bank $4,896.67, the proceeds of the note, deducting the discount. That note not being paid, another joint and several note was given by them, bearing date the 30th of January, 1836, for $5,000, payable six months after date; which was discounted by the bank, and the proceeds carried to the credit of the makers, deducting the discount and arrears of interest. And the power of attorney was afterwards given to George Thomas, authorizing him to make another note, as a renewal of the one last mentioned; and under which authority he made the note now in question, which was discounted, and the proceeds carried to the credit of the makers; and the arrears of interest on the note then in bank, and the discount upon the note now in question was paid and credited in account with the makers, and the note of 30th of January, 1836, was cancelled. This evidence is amply sufficient to show $5,000 was originally advanced to the makers of these notes, and that upon the several renewals, they have been credited with the proceeds, and all the notes given up and cancelled, without payment in any way, except by the note made by George Thomas, under the power of attorney; and if that note is void, the bank is without a remedy, except upon the money counts, to recover the money paid upon the check of P. H. Pope, R. M. Johnson, and T. P. Moore. This money has gone to the joint use of the three, who might all have been joined in the action. But if any objection could be made to the suit against Moore alone, by reason of the nonjoinder of the other two, it should have been pleaded in abatement, and cannot be taken advantage of upon the general issue. This is a well-settled rule in pleading, and is fully recognized by this court in the case of Barry v. Foyles, 1 Peters, 316.

The plea of the statute of limitations, in an action instituted in one State on a judgment obtained in another State, is a plea to the remedy; and consequently, the lex fori must prevail in such a suit. Prescription is a thing of policy growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been from a remote antiquity fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its Jurisdiction.

There is no constitutional inhibition on the States, nor any clause in the Constitution from which it can be even plausibly inferred that the States may not legislate upon the remedy on sults on the judgments of other States, exclusive of all interference with their merits.

A suit in a State of the United States, on a judg ment obtained in the courts of another State, must

be brought within the period prescribed by the local The law, the lex fori, or the suit will be barred. statute of limitations of Georgia can be pleaded to an action in that State, founded upon a judgment rendered in the State court of the State of South Carolina.

In the payment of the debts of a testator, or inThe judgment of the court below is accord-testate in Georgia, the judgment of another State, ingly affirmed with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of

whatever may have been the subject matter of the suit, cannot be put upon the footing of judgments rendered in the State; and it can only rank as a simple contract debt in the appropriation of the assets of the estate of a deceased person to the payments of debts.

division between the judges

the United States for the District of Columbia, Na certificate of civit court of the United

holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.

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of South Carolina, suing for the use of Isaac S. Mills v. Duryee, 7 Cranch, 481. It was there
Bailey, also a citizen of that State, presented a ruled that no plea could be urged against a
petition in 1835 to the Circuit Court of the judgment from a State court, duly authenti-
United States for the District of Georgia, stat-cated, but the plea of nul tiel record. [*314
ing that Levy Florence had died intestate; and If this be true, it is but changing the terms of
having before his death resided in the State of the same proposition to say that the statute of
South Carolina, he had obtained a judgment limitations cannot be pleaded to an action
against him in the Court of Common Pleas for founded upon such a judgment. The question
the city of Charleston, for $968.07, on a prom- there was, as it is here, a question of pleading.
issory note, on the 16th day of February, Mr. Justice Story, in delivering the opinion of
313] 1822, which remains unsatisfied; an the court in that case, says: "Congress have
exemplification of which judgment in due declared the effect of the record by declaring
form was exhibited to the court with the pe- what faith and credit shall be given to it. It
tition.
remains only, then, to inquire in every case,
what is the effect of a judgment in the State
where it is rendered. Let us make the inquiry,
and the answer will be found in the concessions
of the parties, that the effect of this judgment,
in South Carolina, would be to silence the plea
of the statute of limitations.

The defendant, a citizen of Georgia, to which State Levy Florence removed after seven years 'rom the rendition of the judgment, and in which State he resided at the time of his death, pleaded the statute of limitation of the State of Georgia; which the plea alleges limits such actions to five years from the cause of action: and he afterwards pleaded that there is no statute of the State of South Carolina which limits suits upon judgments therein to any particular time, nor is there any statute of limitations in that State applicable to judgments, but that a statute was passed by the Legislature of Georgia on the 7th day of December, 1805, which provides and declares that all actions of debt on judgment obtained in courts other than the courts of Georgia, shall be commenced and prosecuted within five years from the rendition of such judgments, and not afterwards; and that for seven years after the rendition of the judgment on which the suit is brought, Levy Florence was a resident and citizen of the State of Georgia, and no suit on the judgment was commenced against him, nor for two years after the defendant, John J. Cohen, had been the duly qualified administrator of the said Levy Florence. The defendant for further plea states that he has not funds of the estate of Levy Florence sufficient to pay the whole of the judgment, and to pay the other debts claimed as due from the estate. Upon the trial of the cause the following questions occurred, upon which the opinions of the judges were opposed, and the same were certified to the Supreme Court.

1st. Whether the statute of limitations of Georgia can be pleaded to an action in that State, founded upon a judgment rendered in the State of South Carolina.

2d. Whether in the administration of assets in Georgia, a judgment rendered in South Carolina, upon a promissory note, against the intestate when in life, should be paid in preference to simple contract debts. The case was submitted to the court on printed arguments by Mr. Longstreet for the plaintiff, and by Mr. King for the defendant. Mr. Longstreet, for the plaintiff. Two questions are raised in this case: 1. Can the statute of limitations of Georgia be pleaded to an action founded on a judgment in South Carolina?

2. If it cannot be, is that judgment a debt of higher dignity, in the administration of assets in Georgia, than a simple contract debt?

Both questions seem to have been virtually decided by the Supreme Court of the United States.

The first was certainly settled by the case of

The doctrine of Mills v. Duryee was afterwards confirmed by Hampton v. M'Connel, 3 Wheat. 234. Mr. Chief Justice Marshall there says: "The judgment of a State court should have the same credit, validity, and effect, in every other court of the United States, which it had in the State where it was pronounced; and whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court in the United States." Accordingly it was again decided that nil debet could not be pleaded to the suit then in question.

The same decision had been long before made in the Circuit Court of the United States for the District of Pennsylvania, Armstrong v. Carson's Executors, 2 Dall. 302, and it has been repeated by the judges of the highest courts in each of the several States.

In Morton & Co. v. Naylor, 1 Hill's South Carolina Rep. 439, the very question now before the court was adjudicated. It was ruled in that case that the statute of limitations of South Carolina was not a good plea to an action upon a judgment from a sister State. It cannot be necessary to multiply authorities upon this head.

What, then, is the doctrine of these cases? It is that the judgment of a State court carries with it into every State all its original attributes, energies, and incidents; that it goes forth armed with the powers of the court that pronounced it, and clothed with the authority of the laws under which it was pronounced; that it is at home whithersoever it goes, through the whole length and breadth of the Union; that, in relation to judicial proceedings, the States are not foreign to each other. Less than this cannot be extracted from the fourth article, first section, of the Constitution, and the act of Congress, made in pursuance of it. By that article the States reciprocally pledged themselves to each other that they would repose implicit faith in the records of every State; that they would accredit them, receive them, admit them, acknowledge them to be true. There is hardly a court in the Union (it is believed not one) that has as high authority as this, for pronouncing its own judgments conclusive. The States have generally contented themselves with organizing their several departments of government, allotting to each its respective powers, and leaving the consequences of this

1

815] allotment to the deductions of common sense or common law. Thus, to ascertain the force and effect of a judgment of the State court, within the limits of that State, we appeal to the common law; and there we find that such a judgment imports absolute verity. But, in order to ascertain the force and effect of judgment of one State when carried into another, we appeal to the lex scripta—the paramount law; and there we learn that it is entitled to "full faith and credit." Are these terms less comprehensive or less impressive than "absolute verity?" Proceed they from a fountain less sacred? Is it possible, then, to urge anything against such judgments, which will not apply with equal force to all judgments?

The letter of the Constitution is not more pointed to the purpose of this argument than the reason and spirit of it. The framers of that instrument foresaw that there would be a perpetual change and interchange of citizens between the several States. They had confederated a number of bodies politic; they had secured to each a similar form of government; they had placed over all, in some respects, a controlling, and, in all respects, a protecting power. They had, therefore, sundered some of the strongest ties that bind man to his native land, and left him free to choose a climate congenial to his constitution, and an occupation suited to his taste or habits, without forfeiting the protection of his own laws. To have incorporated no provision in the Constitution which would prevent men thus circum stanced from eluding the operation of a judg. ment by a simple change of residence, would have argued a blindness in the sages who framed that instrument that might be better imputed to any other body of men that ever lived. And if they have done no more than authorize suits to be instituted upon the judgments in question, subject to all defenses that might have been set up to the original action, the fourth article and first section of the Constitution is but a deathless memorial of their folly; for all this might have been done, and would have been done, from a principle of comity between the States, without any law to that effect. It is done by all civilized nations. If they have only authorized suits to be instituted upon such judgments, leaving it with the States to regulate the defenses to such suits, they have done no more, in effect, than to declare that suits may be prosecuted in the several States, if the States choose to permit them to be prosecuted. Very different the conduct of those profound statesmen. They declared that "full faith and credit should be given in each State to the records, etc., of every State." To obviate all difficulties, the Constitution proceeds: "And Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." This makes perfect the law upon this subject. Now, no one can withhold from the judgment of a State court unlimited credence without violating the Constitution; no one can resist its operation without becoming instantaneously impotent. All must give the judgment a helping hand, to the accomplishment of its ends; and those who will not, immediately 316*] lose all power over it and hither it comes, to more impartial guardians. There

can be no impairing its force by embarrassing restrictions and limitations; no overriding it by State legislation; no degrading it by lowering its dignity, or elevating the character of conflicting claims. It continues unchangeably the same, until it is satisfied. It is, therefore, just as secure as human power could make it; and it is wonderful that human wisdom could have provided for it such admirable safeguards.

But it is said that the States may prescribe the time within which their own judgments shall be enforced; and surely they may do as much in relation to the judgments of another State. And to this, Gulick v. Lodger, 1 Green's Rep. 70, and Jones v. Hook's Administrator, 2 Randolph's Rep. 303, are cited.

A glance at these cases will satisfy the court that neither of them called for a serious consideration of the point in question. The plea in both was obviously unsustainable in point of fact, and, consequently, it became unnecessary to bestow upon it grave deliberation. It is true that the judges in both say that the statute of the State in which the suit is instituted must control the plea; and it is also true that the suits in those cases were both upon judgments: but the manner in which the point in question was disposed of, and the authorities cited to it, show that the courts had given it no reflection.

To reason from the power of a State over the judgments of its own courts, to its power over the judgments of a sister State, is just as unsafe as it would be to reason from the power of State over its own citizens, to its power over foreign ministers; from its power of taxation, to its power of laying tonnage duties; from its power of contracting, to its power of making treaties. In short, it is reasoning from a retained to a renounced power. States may do what they please with their own judgments, simply because they have retained the right to do so. They cannot do the same thing with judgment of the sister States, because they have relinquished the right to do so. How is it possible to reconcile the power of imposing terms and restrictions upon these judgments by the States, with the power given to and exercised by Congress of determining their force and effect in every State? They are absolutely incompatible.

Let us take an analogous case, in which we will not be so apt to be misled by old and familiar rules of pleading. Congress has power to establish uniform bankrupt laws. This power is very analogous to that conferred on Congress by the fourth article, first section, of the Constitution. The one was given for the protection of the debtor, the other for the protection of the creditor; the one to establish an uniform rule for the recovery of demands, the other to establish a uniform rule for resisting demands, and both for having a general law that all could know and understand. If Congress should exercise its power of regulating bankruptcies, the analogy would be still more striking, for it would certainly place the debtor under the protection of some judgment or decision of a court or of commissioners, the record of which would be made evidence everywhere. Now, suppose this to be done, would it be competent for the legislatures of the several States to [*317 place the bankrupt under terms in pleading his discharge?

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