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ecution of a joint note only. The power was But the verdict of the jury was upon the to give a joint note, and the note on which the whole matter, and the evidence given was suit was brought was a joint and several note legal, and sufficient to sustain the money In 2 Johns. Rep. 19, it is decided that an au- counts in the declaration. thority to give a note of a particular date is Mr. Brent stated that the object of the plainnot an authority to give a note of any other tiff in error was to get rid of the verdict for date.

five thousand dollars. He is perfectly willing A joint note is not the same as a joint and to pay his portion of the debt. several note; on the former, one writ only can issue, all the parties must be sued together; but Mr. Justice Thompson delivered the opinion on a joint and several note, suit may be of the court: brought against each of the persons who are

This case

comes up on a writ of error parties to it. This is material as to costs. to the Circuit Court of the United States for

Another matter for consideration, and one the District of Columbia, in the County of which is material, is that the act of the Assem. Washington. bly of Maryland gives a right to contribution It is an action of assumpsit, upon a promis. in favor of those who are sureties from co-sure- sory note, purporting to have been made by the ties; and a surety paying may have an assign- defendant and Richard M. Johnson and B. H. ment of the judgment when he pays it. This Pope, by their attorney, George Thomas; the makes it most important that the power of ato pote bearing date the i6th of February, 1837; torney should be strictly pursued. When the by which the makers, jointly and severally, attorney departs from the authority, given to promise to pay to the President and Directors him by his principal, although for his benefit of the Bank of the Metropolis or order, sixty his acts do not bind the principal. 7 Barnwell days after date, the sum of five thousand dol. & Cresswell, 278; Ambler's Rep. 498.

larg. It was argued in the Circuit Court that the The declaration also contains the common word "several,” in a power of attorney may money counts: and upon the trial of the cause be rejected as surplusage, and the joint pow. the plaintiffs offered in evidence, to sustain the ers given retained. This position cannot be action, sundry matters set out in the following sustained. Cited, Sugden, on Powers, 210, to bill of exceptions: show how important and essential an adher

First Bill of Exceptions. ence to forms is deemed. Admitting that the execution of a power

On the trial of this cause the plaintiffs, to may be sustained, where there is surplusage in sustain the action on their part, proved by a the terms of it, yet this exists only when the competent witness that on the 27th March, acts to be done, or done under it, are divisible. *1834, the said defendant, with Richard (*308 But this set-off can only be obtained by the aid M. Johnson and P. H. Pope, executed their of a court of chancery.

joint and several note as follows: In this case the action was brought on the

“$5,000. note as "joint and several.” Then the elec- "Washington City, March 27th, 1834. tion was to treat the note as "joint and sev

"Four months after date we jointly and sev. eral;" and yet, when the objection was made, erally promise to pay to the President, Directhe note was set up as a joint note. A power tors and Co. of the Bank of the Metropolis, or of attorney to three persons to execute the order, five thousand dollars, without defalca. powers granted, cannot be executed by two. tion, value received, payable at said bank. 307*] An authority to *do a thing in one way,

"Rh. M. Johnson, cannot be performed by executing it in an.

"T. P. Moore, other way. The note should not, therefore,

“P. H. Pope." have been given in evidenoe. Cited, 1 Peters, and on the same day, by their checks, drew 29; 1 Rolle's Abr. 529; L. placetum,

15. from the said plaintiffs the proceeds thereof, As to the ratification of the act of an attorney which had been carried to their credit: by the receipt of the money, and its appropri.

"Washington City, March 27th, 1834. ation to pay a prior note for the same sum

“Cashier of the Bank of the Metropolis, pay then due, it must be considered as not having to bearer forty-eight hundred and ninety-six been the act of the defendant. He was absent, 87-100 dollars. and ignorant of the transaction.

“P. H. Pope.” It may be said that there was evidence to

"Rh. M. Johnson, support the money counts in the declaration.

“T. P. Moore." But this cannot affect the right of the plaintiff That said note was not paid at maturity, but to have the judgment of the Circuit Court relay over unpaid until the 30th January, 1836, versed. Cited, Greenleaf v. Birth, 5 Peters, 135. when it was cancelled; that on the 30th day of

The counsel was proceeding to argue the January, 1836, the said parties executed and question of usury, raised by the second bill of delivered to the said plaintiffs their promissory exceptions. The court would not permit the note, as follows: argument, the point being considered settled. “Six month after date we jointly and sever. Mr. Coxe, for the defendant:

ally promise to pay to the President and DireoThe discounting of the note by the bank was tors of the Bank of the Metropolis, or order, I continuation of a former loan. Cited, Barry five thousand dollars, without defalcation, value v. Foyles, 1 Peters, 316; Minor v. The Mechan received, this 30th day of January, 1836. ica' Bank of Alexandria, 1 Peters, 47.

"$5,000.

"Rh. M. Johnson, If parties to a joint note are sued severally,

"P. H. Pope. they should plead the matter in abatement.

"T. P. Moore. It is not regular to make the objection under a "Ct. of R. M. Johnson, and others, to renew plea to the general issue.

note of same amount." 10 LOL

175

Which was discounted by said plaintiffs, and but the court overruled the objection, and perthe proceeds thereof carried to the credit of mitted all of said notes, and the proceedings, in said drawers, and the interest in arrears paid. regard to them and the matters stated, to be That on the 29th of February, 1836, the said given in evidence to the jury. To which opinparties executed and delivered to George ion of the court the defendant excepted. Thomas, at that time cashier of said Bank of There was another bill of exceptions taken at the Metropolis, a power of attorney, in the the trial, growing out of the refusal of the words and figures following, that is to say: court to give certain instructions prayed; touch"Whereas, we have a joint and several note of ing the alleged usury in the note, by reason of hand discounted in the Bank of the Metrop discounting the note. But it is unnecessary to

the interest having been taken in advance on olis—Now

notice these instructions. For all exceptions on “Know all men by these presents, that we, this account were abandoned at the argument, Richard M. Johnson, Thomas P. Moore, and P. H. Pope, all of the State of Kentucky, do drawn into this discussion. The last prayer con

as raising a question too well settled to be now hereby nominate, constitute, and appoint tained in this bill of exception, which" [*3 10 George Thomas, of the city of Washington, raised the question whether the power of our true and lawful attorney in fact, and by attorney given to George Thomas authorized these presents do authorize and empower him, him to sign the note upon which this suit is for us, and in our names, to sign our joint note brought, will be noticed under the first bill of to the President and Directors of the Bank of 809*] *the Metropolis, for five thousand dol- exceptions, where the power is set out at length, lars, for our accommodation, and the same to so far as is necessary for the decision of this renew, from time to time, as it may become case; 80 that the second bill of exceptions may

be laid entirely out of view. due, for the whole or any part thereof-Hereby ratifying and confirming all and every the act bill of exceptions are, whether the evidence of

The general questions arising under the first and acts of our said attorney, in and about the fered was admissible, and if so, whether it was premises, so long as the bank shall continue the sufficient to maintain the action, either upon accommodation to us. have hereunto set our hands and seals, at the the count on the note signed by George Thomas, city of Washington, the 29th day of February, taken after the evidence had been given (with

or on the money counts. The exception was 1836. “District of Columbia, Washington County, the exception; and if any part of it was admis

out objection) to the whole matter stated in to wit: “On this 29th day of February, in the year is the duty of a party taking exception to the

sible, the objection was properly overruled. It eighteen hundred and thirty-six, personally ap: admissibility of evidence, to point out the part peared Richard M. Johnson, P. H. Pope, and T. P. Moore, before me, the subscriber, a justice excepted to, when the evidence consists of a of the peace in and for the county aforesaid, the court may be drawn to the particular ob

number of particulars, so that the attention of and acknowledged the above power of attorney jection. The objection here taken, was in the to be their act and deed, for the purposes mentioned therein.

broadest possible manner to all the matter

stated in the bill of exceptions. That some "Sam'. Stettinius, J. Peace.”

part of this evidence was admissible under the Which said power of attorney was given for money counts cannot be doubted. One of the the single purpose of acting for said parties in notes to which the objection extended is the one relation to said last-mentioned note and the re- upon which the first count in the declaration is newal thereof; and that the said George Thom founded. And whether that was admissible or as, professing to act by virtue of said power not, depends upon the power of attorney to of attorney, under said power of attorney made George Thomas, set out in the exception, under and executed the note mentioned and described and by virtue of which he made the note in in the declaration, to wit:

question. "$5,000. Washington, 16th Feb. 1837.

That power, it will be seen, authorized him "Sixty days after date, we jointly and sever

to sign a joint note; whereas, the one he gave

was a joint and several note. ally promise to pay the President and Directors of the Bank of the Metropolis, or order, at the order to maintain the action, it may well be

If it was necessary to decide this question in said bank, five thousand dollars, for value received.

questioned whether the power did not author. “Richard M. Johnson, “Thos. P. Moore,

ize the making a joint and several note. There “P. H. Pope,

is some diversity of opinion on the bench upon "By their attorney, Geo. Thomas."

that point. The object of the power, as appears

upon its face, clearly was to make a note as the That the same was then discounted by said renewal of a joint and several note, which the bank, the proceeds carried to the credit of the parties had running in the bank. It recites as said drawers, and the arrears of interest upon follows: "Whereas, we have a joint and several the former and last preceding note, together note of hand discounted in the Bank of the with the discount of this note paid and credited Metropolis," and then proceeds to empower on said account, and the said note dated 30th George Thomas to renew the same from time January, 1836, was cancelled, but witness does to time as it fell due. But there may bave exnot recollect by what person said interest or isted some reason why they preferred chan. discount was paid. To the admissibility of ging the form, by giving a joint instead of a which notes, or any of them, or any matter joint several note. The power is certainly above stated in evidence, the defendant objects; not strictly pursued, though probably accord

v.

cution.

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

Florence. the first count, or under the money counts. If signed by the attorney without sufficient au- Judgment of court in one State conclusive in thority, it was void, and to be laid out of view, another as to merits-statute of limitations and the cause stands upon the other evidence -lex loci-power of State to legislate as to given at the trial; which shows the original loan remedy upon judgment of another State. by the bank, to Richard M. Johnson, T. P.

Although a judgment in the court of a State 18 Moore, and P. H. Pope, upon their note, dated not to be regarded in the courts of her sister States 27th March, 1834, by which they jointly and as a foreign judgment, or as merely prima facie severally promised to pay the bank five thou evidence of a debt to sustain an action of debt upon 311*] sand dollars, in four months after date. guishable from a foreign judgment in this; that by

the judgment, it is to be considered only distinBy their joint check of the same date, they the 1st section of the fourth article of the Constidrew out of the bank $4,896.67, the proceeds tution, and by the Act

of May 26, 1790, sec. 1, the of the note, deducting the discount. That full faith and credit shall be glven when authenti. note not being paid, another joint and several cated as the act of Congress has prescribed. note was given by them, bearing date the 30th and credit shall be given in each state to the public of January, 1836, for $5,000, payable six months acts, records, and judicial proceedings of every after date; which was discounted by the bank, other State, and provides that Congress may by and the proceeds carried to the credit of the general laws prescribe the manner in which such makers, deducting the discount and arrears of the effect thereot, the latter clause, as it relates to

acts, records and proceedings shall be proved, and interest. And the power of attorney was after. Judgments, was intended to provide the means of wards given to George Thomas, authorizing him giving to them the conclusiveness of judgments to make another note, as a renewal of the one into judgments by suits in the tribunals of another last mentioned; and under which authority he State. The authenticity of the judgment, and its made the note now in question, which was dis effect, depend, upon the law made in pursuance of counted, and the proceeds carried to the credit the judicial proceeding of a State is given by the of the makers; and the arrears of interest on Constitution, independently of all legislation. the note then in bank, and the discount upon judgment is made a debt of record, not examinable

By the law of Congress of May 26th, 1790, the the note now in question was paid and credited upon its merits : but it does not carry with it into in account with the makers, and the note of another State the efficacy of the judgment upon 30th of January, 1836, was cancelled. This evi. property, or upon persons to be enforced by exe

To give it the force of a judgment in an. dence is amply sufficient to show $5,000 was other State, It must be made a judgment there ; and originally advanced to the makers of these can only be executed in the latter as Its laws may notes, and that upon the several renewals, they

permit.

The plea of the statute of limitations, in an action have been credited with the proceeds, and all Instituted in one State on a judgment obtained in the notes given up and cancelled, without pay- another State, is a plea to the remedy;

and conment in any way, except by the note made by sequently, the les fort, must prevall in such a suit. George Thomas, under the power of attorney; the experlence of its necessity; and the time after and if that note is void, the bank is without wbich sults or actions shall be barred, has been & remedy, except upon the money counts, to from a remote antiquity ixed by every nation, in recover the money paid upon the check of P. legislation for all persons and property within its H. Pope, R. M. Johnson, and T. P. Moore. Th Jurisdiction.

There is no constitutional inbibition on the money has gone to the joint use of the three, States, nor any clause in the Constitution from who might all have been joined in the action. which it can be even plausibly, Inferred that the But if any objection could be made to the suit States may not legislate upon the remedy on sults

on the judgments of other States, exclusive of all against Moore alone, by reason of the non- interference with their merits. joinder of the other two, it should have been A suit in a State of the United States, on a judg.

ment obtained in the courts of another State, must pleaded in abatement, and cannot be taken ad- be brought within the period prescribed by the local vantage of upon the general issue. This is a law, the lex forl, or the sult will be barred. The well-settled rule in pleading, and is fully recog- an action in that State, founded upon a judgment

statute of limitations of Georgia can be pleaded to nized by this court in the case of Barry v. rendered in the State court of the State of South

Carolina, Foyles, 1 Peters, 316.

In the payment of the debts of a testator, or in. The judgment of the court below is accordo testate in Georgia, the judgment of another state, ingly affirmed with costs.

whatever may have been the subject matter of the sult, 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 pay. This cause came on to be heard on the tran.

Na certificate of division between judges holden in and for the County of Washington, States for the District of Georgia. and was argued by counsel; on consideration William M'Elmoyle, a citizen of the state whereof, it is ordered and adjudged by this court that the judgment of the said Circuit to limitation of actions, govern United States courts

NOTE.-Ag to state decisions and laws, in regard Court in this cause be, and the same is hereby see note to 6 L. ed. U. S. 290.

Limitation, what statute governs-effect of new affirmed, with costs and damages at the rate

statutes-lex fori, and not lex loci, gover08—see of six per centum per annum

note to 13 L. ed. U. S. 194.

ments of debts.

the United States for the District of Columbia, O Noftere for oci diuiti Couet wet the Indirea

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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, The defendant, a citizen of Georgia, to which what is the effect of a judgment in the State State Levy Florence removed after seven years where it is rendered. Let us make the inquiry, from the rendition of the judgment, and in and the answer will be found in the concessions which State he resided at the time of his death, of the parties, that the effect of this judgment, pleaded the statute of limitation of the State of in South Carolina, would be to silence the plea Georgia; which the plea alleges limits such of the statute of limitations. actions to five years from the cause of action: The doctrine of Mills v. Duryee was after. and he aiterwards pleaded that there is no wards confirmed by Hampton v. M'Connel, statute of the State of South Carolina which 3 Wheat. 234. Mr. Chief Justice Marshall limits suits upon judgments therein to any there says: "The judgment of a State court particular time, nor is there any statute of lim- should have the same credit, validity, and efitations in that State applicable to judgments, fect, in every other court of the United States, but that a statute was passed by the Legisla. which it had in the State where it was proture of Georgia on the 7th day of December, nounced; and whatever pleas would be good to 1805, which provides and declares that all ac a suit thereon in such State, and none others, tions of debt on judgment obtained in courts could be pleaded in any other court in the other than the courts of Georgia, shall be com- United States.” Accordingly it was again demenced and prosecuted within five years from cided that nil debet could not be pleaded to the the rendition of such judgments, and not after suit then in question. wards; and that for seven years after the ren The same decision had been long before made dition of the judgment on which the suit is in the Circuit Court of the United States for brought, Levy Florence was a resident and citi- the District of Pennsylvania, Armstrong, v. zen of the State of Georgia, and no suit on the Carson's Executors, 2 Dall. 302, and it has judgment was commenced against him, nor for been repeated by the judges of the highest two years after the defendant, John J. Cohen, courts in each of the several States. had been the duly qualified administrator of In Morton & Co. v. Naylor, 1 Hill's South the said Levy Florence. The defendant for Carolina Rep. 439, the very question now be. further plea states that he has not funds of fore the court was adjudicated. It was ruled the estate of Levy Florence sufficient to pay in that case that the statute of limitations of the whole of the judgment, and to pay the South Carolina was not a good plea to an action other debts claimed as due from the estate. upon a judgment from a sister State. It cannot

Upon the trial of the cause the following be necessary to multiply authorities upon this questions occurred, upon which the opinions of head. the judges were opposed, and the same were What, then, is the doctrine of these cases ? It certified to the Supreme Court.

is that the judgment of a State court carries 1st. Whether the statute of limitations of with it into every State all its original attriGeorgia can be pleaded to an action in that butes, energies, and incidents; that it goes forth State, founded upon a judgment rendered in armed with the powers of the court that prothe State of South Carolina.

nounced it, and clothed with the authority of 2d. Whether in the administration of assets the laws under which it was pronounced; that in Georgia, & judgment rendered in South it is at home whithersoever it goes, through the Carolina, upon a promissory note, against the whole length and breadth of the Union; that, intestate when in life, should be paid in prefer- in relation to judicial proceedings, the States ence to simple contract debts.

are not foreign to each other. Less than this The case was submitted to the court on cannot be extracted from the fourth article, printed arguments by Mr. Longstreet for the first section, of the Constitution, and the act plaintiff, and by Mr. King for the defendant. of Congress, made in pursuance of it. By that Mr. Longstreet, for the plaintiff.

article the States reciprocally pledged them. Two questions are raised in this case: selves to each other that they would repose im

1. Can the statute of limitations of Georgia plicit faith in the records of every State; that be pleaded to an action founded on a judgment they would accredit them, receive them, admit in South Carolina !

them, acknowledge them to be true. There is 2. If it cannot be, is that judgment a debt of hardly a court in the Union (it is believed not higher dignity, in the administration of assets one) that has as high authority as this, for proin Georgia, than a simple contract debt ? nouncing its own judgments conclusive. The

Both questions seem to have been virtually States have generally contented themselves decided by the Supreme Court of the United with organizing their several departments of States.

government, allotting to each its respective The first was certainly settled by the case of powers, and leaving the consequences of this

316'] *allotment to the deductions of com- can be no impairing its force by embarrassing mon sense or common law. Thus, to ascertain restrictions and limitations; no overriding it by the force and effect of a judgment of the State State legislation; no degrading it by lowering court, within the limits of that State, we appeal its dignity, or elevating the character of conto the common law; and there we find that such flicting claims. It continues unchangeably the a judgment imports absolute verity. But, in same, until it is satisfied. It is, therefore, just order to ascertain the force and effect of judg. as secure as human power could make it; and ment of one State when carried into another, it is wonderful that human wisdom could have we appeal to the lex scripta-the paramount provided for it such admirable safeguards. law; and there we learn that it is entitled to But it is said that the States may prescribe "full faith and credit.” Are these terms less the time within which their own judgments comprehensive or less impressive than “abso- shall be enforced; and surely they may do as lute verity?". Proceed they from a fountain much in relation to the judgments of another less sacred ? Is it possible, then, to urge any State. And to this, Gulick v. Lodger, 1 Green's thing against such judgments, which will not Rep. 70, and Jones v. Hook's Administrator, apply with equal force to all judgments ? 2 Randolph's Rep. 303, are cited.

The letter of the Constitution is not more A glance at these cases will satisfy the court pointed to the purpose of this argument than that neither of them called for a serious conthe reason and spirit of it. The framers of that sideration of the point in question. The plea instrument foresaw that there would be a per- in both was obviously unsustainable in point of petual change and interchange of citizens be- fact, and, consequently, it became unnecessary tween the several States. They had confeder: to bestow upon it grave deliberation. It is true ated a number of bodies politic; they had that the judges in both say that the statute of secured to each a similar form of government; the State in which the suit is instituted must they had placed over all, in some respects, control the plea; and it is also true that the & controlling, and, in all respects, a pro- suits in those cases were both upon judgments: tecting power. They had, therefore, sun- but the manner in which the point in question dered some of the strongest ties that bind man was disposed of, and the authorities cited to it, to his native land, and left him free to choose a show that the courts had given it no reflection. climate congenial to his constitution, and an To reason from the power of a State over the occupation suited to his taste or habits, without judgments of its own courts, to its power over forfeiting the protection of his own laws. To the judgments of a sister State, is just as unhave incorporated no provision in the Consti- safe as it would be to reason from the power of tution which would prevent men thus circum- State over its own citizens, to its power over stanced from eluding the operation of a judg: foreign ministers; from its power of taxation, ment by a simple change of residence, would to its power of laying tonnage duties; from its have argued a bīindness in the sages who framed power of contracting, to its power of making that instrument that might be better imputed treaties. In short, it is reasoning from a reto any other body of men that ever lived." And tained to a renounced power. States may do if they have done no more than authorize suits what they please with their own judgments, to be instituted upon the judgments in ques. simply because they have retained the right to tion, subject to all defenses that might have do so. They cannot do the same thing with been set up to the original action, the fourth judgment of the sister States, because they article and first section of the Constitution is have relinquished the right to do so. How is but a deathless memorial of their folly; for all it possible to reconcile the power of imposing this might have been done, and would have terms and restrictions upon these judgments been done, from a principle of comity between by the States, with the power given to and the States, without any law to that effect. It is exercised by Congress of determining their force done by all civilized nations. If they have only and effect in every State? They are absolutely authorized suits to be instituted upon such incompatible. judgments, leaving it with the States to regu- Let us take an analogous case, in which we late the defenses to such suits, they have done will not be so apt to be misled by old and familno more, in effect, than to declare that suits may iar rules of pleading. Congress has power to esbe prosecuted in the several States, if the States tablish uniform bankrupt laws. This power choose to permit them to be prosecuted. Very is very analogous to that conferred on Congress different the conduct of those profound states. by the fourth article, first section, of the Conmen. They declared that "full faith and stitution. The one was given for the proteccredit should be given in each_State to the tion of the debtor, the other for the protection records, etc., of every State.” To obviate all of the creditor; the one to establish an uniform difficulties, the Constitution proceeds: “And rule for the recovery of demands, the other to Congress may, by general laws, prescribe the establish a uniform rule for resisting demands, manner in which such acts, records, and pro- and both for having a general law that all could ceedings shall be proved, and the effect there know and understand. If Congress should ex. of." This makes perfect the law upon this ercise its power of regulating bankruptcies, the subject. Now, no one can withhold from the analogy would be still more striking, for it judgment of a State court unlimited credence would certainly place the debtor under the prowithout violating the Constitution; no one can tection of some judgment or decision of a court resist its operation without becoming instan. or of commissioners, the record of which would taneously impotent. All must give the judg: be made evidence everywhere. Now, suppose ment a helping hand, to the accomplishment of this to be done, would it be competent for the its ends; and those who will not, immediately *legislatures of the several States to [*317 316*] lose all power over it and *hither it place the bankrupt under terms in pleading his comes, to more impartial guardians. There discharge 1

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