Opinion
(December Term, 1835.)
When a record from one state of our Union, is declared on, or pleaded in bar in another, the only proper plea or replication, is nul tiel record; and that, both as to its existence and effect, is to be passed on by the Court upon inspection, and not by the jury.
What is the effect of an entry in the record of a suit in Virginia, that "by consent of the parties it is ordered by the Court, that this cause be dismissed, and that the defendant pay to the plaintiff his costs by him in this behalf expended?" Qu.
THIS was an action brought on a covenant of soundness, in a bill of sale for a slave sold by the defendant to the plaintiff. The defendant pleaded several matters, one of which was a former judgment, in an action between the same parties, upon the same covenant, for the same damages, in the Superior Court of law, for the county of Pittsylvania, in the State of Virginia. Upon the trial at Caswell, on the last Circuit, before his Honor Judge NORWOOD, the jury was charged with all the issues joined on the defendant's pleas, including that of the former judgment; and to support it on the part of the defendant, he offered in evidence to the jury, a transcript of the record of the Court in Virginia, of an action of covenant upon the same, or a like covenant with that sued on in the present action; in which, after stating an issue joined on the plea of covenants not broken, it is set forth that "by consent of the parties, it is ordered by the Court, that this cause be dismissed, and that the defendant pay to the plaintiff his costs by him in this behalf expended;" and it is further set forth, that the defendant paid the sum of seven dollars seventy-six cents, for the plaintiff's costs, taxed to him in that suit. The counsel for the plaintiff moved the Court to instruct the jury, that, in the absence of evidence of the law of Virginia, as to the nature and effect of the entry or judgment stated in the record from that state, it was the province of the jury to determine the same, as a matter of fact. The Court refused to give the instruction as prayed for; but directed the jury, that if they were satisfied that the suit in Virginia, was upon the same subject-matter with the present, the transcript did show a former judgment in favor of the plaintiff, which barred his present action. The jury did not pass upon any other of the issues, but found a verdict upon this alone, — that there is a former judgment in favor of the plaintiff for the same cause of action as pleaded by the defendant; upon which there was judgment for the defendant, and the plaintiff appealed.
W. A. Graham, for the plaintiff, contended: 1st, That the Judge erred in not giving the instruction prayed. The law of a foreign State, is matter of fact, to be decided by the jury. 2 Starkie's Ev. 569. Male v. Roberts, 3 Esp. Ca. 163. Clegg v. Levy, 3 Camp. N. P. Rep. 166. This doctrine is not changed by the formation of our Federal Union, and the Act of Congress of 1790. That act, declares in substance, that a record of the proceedings of a Court in one state, when certified according to its provisions, shall be received in evidence in a sister state, and entitled to the same faith and credit, that it was in the state whence it was taken. But what "faith and credit" is given to it, in its own state, is not imparted by the record, but is open to inquiry and evidence. Mills v. Duryce, 7 Cranch's Rep. 481. Hampton v. McConnell, 3 Wheat. Rep. 234. Mayhew v. Thatcher, 6 Wheat. Rep. 129.
J. W. Norwood, for the defendant.
2ndly, If the Court shall decide that the common law obtains in Virginia, the instruction given to the jury was wrong, as the entry determining the cause there, does not import a judgment, which is a bar to a future action. A judgment is "the sentence of the law, pronounced by the Court upon the matter contained in the record," and consists of two parts: 1st. A statement of the facts, either admitted by the parties, or found by a jury. 2nd. A formal entry of the decision thereupon. 3 Thomas's Co. Litt. 506, n. Here there was no statement of facts, having any reference to the judgment. Nor was there any formal entry of judgment, which is equally essential, for an entry of dismission is no judgment at law. Banbury's case, 3 Salk. Rep. 213. A dismission may be for insignificance. Egerton v. ______, 21 Eng. Com. Law Reps. 420. Again, if it be a judgment, it must either be on a nolla prosequi, discontinuance, nonsuit, or retraxit. If either of the three first, the Judge was wrong, for neither of them is a bar to a future action. Nor is it a retraxit, for that implies an abandonment of the plaintiff's claim, acknowledged on the record; and this must unequivocally appear, by the use of the terms retraxit se (withdraws himself,) or others of the same signification. 3 Thomas's Co. Litt. 501.
It by no means follows, that because there has been a former suit between the parties, in which the same subject-matter was incidentally considered, a new action is barred. The true inquiry is, whether the point now in issue, has been litigated and determined. Seddon v. Tutop, 6 Term Rep. 607. Godson v. Smith, 4 Eng. Com. Law Reps. 410.
3rdly. The order in favor of the plaintiff for the recovery of costs can make no difference. Costs are merely collateral to the main controversy, and were not allowed by the common law, when the forms of entries were settled, and their effect determined.
— The counsel for the plaintiff has insisted here upon the objection taken in the Superior Court; and also that the entry in the transcript is not such a judgment as bars a second action, but is only in the nature of a nonsuit. Upon the first point it is argued, that although the judgment of the Court of another state, is conclusive evidence in this, yet it is so only as to those matters of which it is conclusive in the state in which it was rendered; of which our Courts cannot take notice judicially, but that evidence is to be given, which, as in other cases of foreign law, must be submitted to the jury, as upon a question of fact.
Whatever difficulties the Courts of one state may find as to the mode or means of ascertaining the effect of the orders, or the operation of the adjudications of the Courts of another state, it is now deemed settled law, that it is not the province of the jury. No issue can be made upon such a record, which will bring that question before the jury. It may be, that the Courts must take judicial notice of the laws of the sister states to this purpose, and to this extent, aiding themselves with such lights from books, or the opinions of the professors of the law of the state from which the record comes, as they can obtain. It may also be, that, from necessity, a new rule of evidence must be adopted, whereby testimony may be taken, and addressed on this point to the Court, and not to the jury. But since the case of Mills v. Duryce, 7 Cranch's Rep. 484, reviewed and affirmed in Mayhew v. Thatcher, 6 Wheat. Rep. 129, nul tiel record is the only plea or replication, when a record from another state is declared on, or pleaded in bar; and it is put on the footing, not of a foreign judgment, but of that of a domestic forum. Upon that plea, the Court, and not the jury, passes, and judges upon inspection. The instruction prayed was therefore improper, in the opinion of the Court. For the same reason, however, the whole proceeding upon the trial must be pronounced erroneous. The only issue passed on by the jury, was that arising upon this plea of former judgment; and that was an issue not put to the country, but to the Court, and not adjudged in the record by the Court. The transcript sent to this Court does not set forth at large the plaintiff's replication; and we must therefore presume it to be the general one, according to the loose practice in which the profession will indulge themselves. To a plea of former judgment, there may be two replications; the one nul tiel record, which is in the nature of the general issue; and the other, confessing and avoiding the record, and denying that it was for the same cause of action; or the plaintiff may new assign. 3 Chitty's Pl. 1213. 1157. 929, note. Seddon v. Tutop, 6 Term Rep. 607. The plea is necessarily, that the two actions are for the same causes, and tenders an issue either upon the record, or the identity of the cause of action. But the replication cannot take both issues, as that would make it double; but must be confined to one of them, and thus reduce the controversy to a single point, which can then be decided by the appropriate tribunal. In the case before us, if we could suppose the replication to have been upon the matter of fact, namely, that the actions were for different matters, the issue has been sufficiently found against the plaintiff, and the judgment should be affirmed. But we do not feel authorised by the course of practice, nor by what seems to have been the dispute on the trial, thus to tie down the plaintiff. The Court suppose that nul tiel record must have been replied. If so, the Court ought to have adjudged, that there was, or was not such a record, before the final judgment could properly be given, that the plaintiff should recover, or should take nothing by his writ. It is to be regretted, that the oversight occurred, because the exception states an opinion of the Court, as delivered to the jury, which would doubtless have led to a judgment of the Court upon that issue in favour of the defendant; and thus have directly brought to the review of this Court, the true meaning of the transcript from Virginia, upon which this controversy may ultimately depend. The argument before us has been principally upon this point; and from the terms of this record, the Court is made sensible, how very unsatisfactory to ourselves would be any opinion we could form of the effect of such a proceeding in Virginia — upon which its efficacy here entirely depends. For the plaintiff, it has been contended, that it is not a recovery by him; nor is it a retraxit; but if any thing in the nature of a judicial sentence, that it is a nonsuit. The distinction between a nonsuit and a retraxit is very nice; and some respectable modern text writers deem it now a question, whether a judgment of the latter kind, is, more than one of the former, a bar to a second action. 3 Chit. Pl. 930. But according to our notions in this state, it is not a judgment, either upon a nonsuit or a retraxit; for in each of them the plaintiff takes nothing by his writ, and the defendant goes without day; while here, the plaintiff does take, upon the confession of the defendant, his costs of suit. But the incongruity is, that he recovers costs in a suit which is dismissed; instead of recovering nominal damages and costs, which would be regular in our law. The question is, whether, as the recovery was only of costs, and not of any of the damages laid in the declaration, the plaintiff is technically barred of those damages. In the present state of our information of the law of Virginia, and of the entries used in her Courts, the Court would have some hesitation in pronouncing this to be or not to be a conclusive bar as a judgment. It appears rather to be a concord of record between the parties themselves, than an adjudication. Viewed in that light, perhaps the defendant will have less difficulty in availing himself of it, under another of his pleas, that of accord and satisfaction, than under the estoppel created by the record. However that may be, the question is not, at present, open for this Court; and the judgment of the Superior Court must be reversed, for the error already mentioned, and the cause sent back, to have the issues made by the pleadings, properly disposed of in the Superior Court.
PER CURIAM. Judgment reversed.