THACHER, J., said he was clearly of opinion that no action could be maintained on this covenant without showing an eviction.

SEDGWICK, J., said that he concurred without a particle of doubt. This covenant has been for some time considered here as a personal covenant. If it be so, then it is in fact and in essence a covenant for quiet enjoyment, on which no action can be maintained till disturbance in that enjoyment. The plaintiff has shown none, and, therefore, has no cause of action. The plaintiff had leave to discontinue.

BARTLET v. KNIGHT.

[1 MASS. 401.]

EFFECT of Judgment ObtaiNED IN ANOTHER STATE.—A judgment recovered in one state is not conclusive evidence of a debt in an action brought on such judgment in another state, but in the latter the inquiry may be made whether the court in the former state had properly jurisdiction of the defendant. CONSTITUTIONAL PROVISION AS TO SUCH JUDGMENTS.-Although the mode of authenticating such judgments has been provided for by the act of congress, pursuant to the constitution, yet the effect of such authentication is not declared by the act.

ACTION of debt upon a judgment recovered in the state of New Hampshire.

The defendant prayed oyer of the record of the judgment mentioned in the declaration, and then pleaded in bar, that at the time of signing the note upon which said judgment was recovered, and at the time of making the promise of payment therein referred to, he was an infant, of the age of fourteen years, and no more. By leave of the court, defendant pleaded a second plea in bar, that at all the times between the making of said note and the recovery of judgment thereon, and ever since, he was, has been, and still is, an inhabitant of and resident in the town of Portland, in the county of Cumberland, in the commonwealth of Massachusetts.

General demurrer to both the pleas, and joinder.

Mellen and Hubbard, for the plaintiff, argued that by the constitution of the United States, and by the law of congress, the judgment was conclusive evidence of a debt, and could not be called in question in the manner attempted by the pleas of the defendant. The constitution, art. 4, sec. 1, 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 the congress may by general laws prescribe the manner in which such acts, records and proceedings, shall be proved, and the effect thereof." That the act of congress, 1 cong., 2 sess., chap. 11, having, pursuant to the article in the constitution, prescribed the mode in which the acts, records, etc., in each state shall be authenticated, and having declared the acts, records, etc., so authenticated, "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 they are or shall be taken," has by necessary implication declared the effect of a judgment to be the same in every state that it has in the state where it was rendered. In New Hampshire, nothing which tended to impeach the validity of the recovery of the judgment would there be permitted to be pleaded in bar to an action of debt upon it; and therefore a plea of that sort cannot be allowed here.

Parker, for the defendant, replied that congress had not declared the effect, but had merely prescribed the mode in which records, etc., should be authenticated; that declaring they should have, when so authenticated, such faith and credit given to them as by law or usage they have in the state where rendered, extended no further than to make them incontrovertible evidence of everything that appeared by the record, viz: that the judgment was recovered by and against the parties named, for the sum and for the cause of action expressed, in the manner stated, i. e., whether upon default on trial, etc., that in every other respect they were on the footing of foreign judgments, which were but prima facie evidence of a debt; and it was competent for the defendant to show that such judgment was unduly or irregularly obtained.

THACHER, J. In this case, the demurrer confesses the facts stated in the pleas. By the law of this state, applied to these facts, the note mentioned in the judgment declared on would be void. The question then is, whether the judgment rendered as this was, in another state, has precluded the defendant from making, in the present action, the defense which he sets up in his pleas. I think not. And that the article in the constitution of the United States and the act of congress, which have been cited, do not admit of the construction contended for by the counsel for the plaintiff, but that the facts pleaded are by

law pleadable; and as they would have been a legal bar to an action on the note, so they are, of course, to the present action of debt upon a judgment recovered in the state of New Hampshire on the note; and that the defendant is entitled to judgment.

SEWALL, J. By the rules of the common law, the judgment of a court of justice is a ground of action for the party recovering, and the judgment is itself evidence of a debt: 3 Com. Dig. Debt, A; 2 Doug. 1. The circumstances of the present case, however, require us to notice a distinction, which appears to be well established, between domestic judgments and foreign judgments. A domestic judgment, or one that has been rendered in the same court whose aid is required to enforce it, or within the same general jurisdiction, is, while existing unsatisfied, considered and observed as an incontrovertible proof of the debt, liable to no exception or inquiry. But a foreign judgment, though it may be declared on as a consideration from which a promise or debt of the party charged by it is implied or enforced, and though proof of the judgment alleged must be admitted as sufficient evidence, prima facie, of the debt, yet it is not an incontrovertible proof: Doug. 6. This distinction, established by the decisions and practice of the superior courts of justice in England, has been adopted with us, and is warranted by sound reason, and the general principles of the common law. The extent of its application here, rather than the distinction itself, whether it extends to a judgment recovered in a court of any other state of the United States, when demanded as a debt within this state, has been the principal question contested in the case before us. The constitution of the United States has provided that full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of every other state; and that congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. By a law of the United States, pursuant to this article of their constitution, the forms to be observed for the authentication of the records and judgments of the courts of justice within the several states have been directed; and it is thereby provided, that such records and judicial proceedings, so authenticated, shall have the same credit in every court in the United States as they have by law or usage in the courts of the state from whence such records shall be taken. And an act of the legislature of this state recognizes an action of debt as a process which may be brought

within this state upon a judgment rendered by a court of record in any other of the United States. Have these constitutional and legislative provisions placed judgments recovered in any court of record within every other state of the United States, upon the same ground, in all respects, with judgments rendered by a court of record within this state?

My opinion is, that the effect of a judgment, that is, the rights of the party claiming under it, and the liability of the party charged by it, are not enlarged or affected by the constitution or law of the United States, or by the statute of this state. The article cited from the constitution of the United States, and the act of congress pursuant to it, appear to me to be confined to the sole purpose of directing the modes of proof and the effect thereof, to be employed in authenticating records when certified from one state to another within the United States. And the statute of this state, in recognizing an action of debt as a proper process upon all judgments, whether recovered within this state or any other of the United States, has not intended an alteration of the common law, or to give the same authority and effect to foreign judgments, which all judgments are allowed to have within the jurisdiction which renders them, or suffers them to remain in force. I conclude, therefore, upon the whole, that a judgment certified from a court of record in any other state, when demanded as a debt within this state, is not an incontrovertible proof of such debt; and that the grounds of such judgment, when impeached by the defendant, may be on that occasion examined.

In the case before us, the demand of the plaintiff is for the amount of a judgment rendered by a court of record in the state of New Hampshire; and it is averred that the defendant, the person nominally charged by the judgment, became accordingly indebted to the plaintiff. This demand is answered by a plea which, if seasonably exhibited and confessed, as it now is, by the plaintiff's demurrer, would be sufficient with us to prevent such a judgment upon the original demand of the plaintiff against the defendant as we now are requested to enforce. Secondly, the defendant alleges circumstances, likewise confessed by the plaintiff's demurrer, from which a want of notice in the original suit, and a want of capacity to defend against it, are necessarily inferred. The process certified to us and having, as evidence of a public record, the same faith and credit with us as it would have in New Hampshire, shows that the judgment, of which the effect of a debt is demanded in this

action, was rendered without actual notice to the defendant, or any appearance by him, or any guardian for him; he being at the time confessedly an infant under the age of twenty-one years. Upon the principles as well of natural justice as of the common law, a judgment liable to these objections must be determined to be no just or legal consideration, from which a promise or debt of the party, nominally charged by it, ought to be implied or inferred. This jurisdiction, therefore, will not enforce, as a debt, the judgment certified in this case, against the pleas of the defendant, which, to the purpose of showing there is no debt, are a sufficient answer to the plaintiff's declaration.

SEDGWICK, J. This is an action of debt brought on a judgment recovered by the plaintiff against the defendant, in the state of New Hampshire, and the original action was brought on a promissory note. By the pleadings it appears that the defendant, when the note was given, and until and at the judgment, was an infant; and that he was during all that time an inhabitant of this commonwealth. The judgment was rendered on default, and it does not appear that the defendant had personal notice of the suit; and we know it is not in New Hampshire, as it is in England, a prerequisite to the judgment.

The facts on which the defendant relies are disclosed by the pleadings, and the question is, whether such a judgment, so obtained, is conclusive evidence of a debt. If the judgment partakes of all the properties of a domestic judgment, it is so, otherwise we can extend relief to the defendant, according to the justice of the case. This depends on the construction which shall be given to the first section of the fourth article of the constitution of the United States, and the act of congress made in pursuance thereof. The act of congress, after prescribing the mode in which "the public acts, records, and judicial proceedings in each state shall be authenticated," goes on to declare," that the said records, etc., authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken." It will appear that as well the effect of records, etc., as their mode of authentication is, by the constitution, within the authority of congress. What the effect shall be is not declared by the statute. It is indeed provided, that, being authenticated, they shall in all events have such faith and credit given to them as they are entitled to in the state from