all its aspects, Justice REDFIELD said: "It is in vain to treat this as in any sense a judgment importing an obligation upon which to found an action of debt. It is, at most, an inchoate proceeding the mere pendency of an action. It is in no sense a more perfect judgment than a default, or judgment upon demurrer, where no damages have been assessed, and where they rest in pais, and depend upon proof to be adduced in court. In such case, which is certainly stronger for the plaintiff than the present, it would seem absurd to claim that a court in another State, or, indeed, any other court, could perfect the judgment. We might as well expect that if a defendant leaves one State and goes into another, after the service of process upon him, the court of the latter State will take up the proceedings at that very stage and perfect the judgment." In this same connection the court expressed great doubt if any of the collateral undertakings or obligations growing out of judicial proceedings in one State can be enforced in the courts of another State, the same being in their nature local to the forum where created or taken, and, as we may here add, subject in a measure to the subsequent rulings of the same forum as to their ultimate enforcement, if not as to their final binding effect. As, for instance, as enumerated in the opinion above referred to, proceedings by scire facias, or in debt upon recognizances of bail upon mesne process; suits against receiptors of property, and on replevin bonds and against sheriffs for neglect of duty, and upon prison bonds; and the enforcement of warrants of attorney to confess judgment; and declares it to be clearly the law, that proceedings to enforce any of such collateral liabilities or remedies by scire facias must be confined to the court wherein they arose; that the remedies on all such are local. And so of interlocutory judgments. They are not final, and no action can be maintained upon them. To support an action, the judgment must be conclusive.3 V. ACTION ON JOINT JUDGMENT. A joint judgment, against two or more defendants, rendered without service on or jurisdiction of both, is incapable of being 1 Dimick v. Brooks, 21 Vt. 580. 2 Dimick v. Brooks, 21 Vt. 569, 579, 580. See, also, Pickering . Fisk, 6 Vt. 102. 3 Thorner v. Batory, 41 Md. 593; Dimick v. Brooks, 21 Vt. 569; Hanover Fire Ins. Co. v. Tomlinson, 6 Thomp. & C. (N. Y.) 127; S. C., 3 Hun. 630 enforced by an action in another State. At least so, if there be no showing that the law of the State where the judgment was rendered tolerated the rendering of such a judgment. So, on the other hand, a joint judgment of another State against several defendants, when the record states that service was had on each, will not sustain an action against one alone of the defendants therein, there being nothing stated in the petition or declaration as a reason for proceeding against but one; but where joint judgment debtors are resident in different States, an action on such judgment may be maintained against each of them separately by averring and showing such residence.4 VI. ACTIONS ON A JUDGMENT RENDERED ON A PENAL BOND. The case of Battey v. Holbrook was an action brought in a court of Massachusetts on a judgment of the circuit court of the United States for the district of Rhode Island. The judgment in Rhode island was rendered upon a penal bond, conditioned for the payment of an annual sum for support of a wife, where the parties had separated, which was payable to a trustee as obligee of the bond. Upon breaches to a part of the payments suit was brought, and judgment obtained for the penalty of the bond, as security for both the future and past breaches, with judgment of execution for the amount found due and therein specified for past breaches; the formal judgment for the penalty to stand good for future breaches, and the cause to remain in court, with the right in plaintiff to take orders of execution for the amounts of future breaches which might occur, upon scire facias against the defendant, to show cause against the same. The defendant having removed from the jurisdiction of Rhode Island into Massachusetts, was there sued in the State court upon the judgment. The courts of Massachusetts held that judgment could in that State be recovered only upon the effective part of the judgment sued on only on so much thereof as execution had been awarded for in the United States circuit court where the judgment was rendered; and that the remedy for future breaches was by scire facias in the United States court, where the cause was still pending. That 'Frothingham v. Barnes, 9 R. I. 474; Mervin o. Kumbel, 23 Wend. 293; Oakley o. Aspinwall, 4 N. Y. 514. 2 Knapp v. Abell, 10 Allen, 485. 3 Dart v. Goss, 24 Mich. 266. Brown v. Birdsall, 29 Barb. 549. to allow judgment for the penalty would be be to oust the court in Rhode Island of its still pending jurisdiction, and also would give to the plaintiff on such new judgment what he could not get by the old-a judgment, without showing a breach, as the whole case could not be transferred into the courts of Massachusetts under any circumstances. Where the liability imposed by a bond is in the nature of a penalty, and such bond is a statutory one, an action for the breach thereof is to recover a penalty, and can only be enforced in the State enacting the statute. VII. COMPETENCY OF THE RECORD AS EVIDENCE. Appellate Judgments. In an action on a judgment of a court of another State, it is no objection to the record thereof as evidence, when duly authenticated, that such record embodies in it the record of a judgment of a justice's court, in the same case, rendering a judgment, from which an appeal was had to the court from whence the record of the judgment comes, and in which appellate court the judgment thus received and sued on was rendered.3 Presumption of Regularity. And where the validity of such judgment, as to form, is dependant on proof of the manner of practice and custom of entering judgments and making up records thereof in the State from which it comes, and nothing appears in an appellate court as to whether there was or was not proof thereof in the court below, the presumption is that such proof was made, and therefore a judgment therein will be sustained when the showing of such proof would have authorized the rendering of the judgment in the court below.4 Jurisdiction. In actions on judgments of courts of other States the presumption is, when the record is authenticated as provided by the act of Congress, that the court rendering the judgment in such other State was a court of competent powers, 1 Battey v. Holbrook, 1 Gray, 212; Dimick v. Brooks, 21 Vt. 569. 2 Hill v. Frazier, 22 Penn. St. 320; Halsey v. McLean, 12 Allen, 438; Erickson v. Nesmith, 4 Allen, 233; Derrickson v. Smith, 8 Dutch. 166; Erickson v. Nesmith, 46 N. H. 371; First Nat. Bank of Plymouth v. Price, 33 Md. 487; Bird v. Hayden, 1 Robert. 391. 3 Clemmer. Cooper, 24 Iowa, 185. 4 Clemmer v. Cooper, 24 Iowa, 185; Taylor v. Runyan, 3 Iowa, 474; S. C., 9 Iowa, 522; Freeman on Judgments, $ 565. in point of jurisdiction, to the subject matter thereof, to render the same.1 In Buffum v. Stimpson the court say: "There is no validity in the objection, that the court in Wisconsin had not jurisdiction. The record being properly authenticated the presumption is in favor of the jurisdiction." Admissibility of the Record. Must be Pertinent. To enable a record of another State to be used in evidence in a judicial proceeding it must be authenticated as required by the act of Congress, or else as required by the laws of the State wherein it is sought to be used; and conformity to the latter will do, if not inconsistent with the act of Congress. It cannot require more than is required by the Congressional act.2 But however conformable to either the authentication may be, yet to be allowable in evidence, the record offered must be pertinent to the issue.3 Temporary Judge. In an action on a judgment of another State, in the rendition of which a member of the bar presided as judge under appointment of the regular judge, and during his inability from sickness to act as judge, a statute law of such State allowing such appointment, may be introduced in evidence to prove the authority of the pro tempore judge for acting as such.4 Assignee as Plaintiff. And when the action on the judgment. is in favor of an assignee thereof as plaintiff, and by the law of the forum of the pending trial assignees of judgments are allowed to sue thereon in their own name, then an assignment of judgment to plaintiff purporting to have been made of record, and by the clerk certified as part of the record, will be allowed to go in evidence as prima facie evidence of plaintiff's right as assignee.5 Form of Judgment Not Questionable. Sufficiency as to form of foreign judgment, when sued on in the courts of another State, is not questionable in the court where suit is brought. Every court has its own form and is the judge of the sufficiency. If sufficient where rendered, it is entitled to like faith in other States.1 Amount Recoverable. But where by the record it appears that part of the judgment sued on has been realized by execution, or otherwise, the recovery thereon can be had for the unsatisfied balance only.2 Execution Levy on Land is No Defense. But the mere levy of execution on land not being in any sense a satisfaction of the writ, it therefore does not effect the judgment which is the foundation of the writ. It results, from these principles, that such levy, or even levy and advertisement of lands for sale, is no defense to an action on a judgment of another State.3 VIII. CHANGE OF STATE SOVEREIGNTY - EFFECT OF ON DECREES. A decree for a specific performance of a contract to convey real property situated in the State where the decree is made, will be enforced, notwithstanding that the locus in quo be, during the pendency of the suit, transferred to, or is annexed to, another State. The court of such other State will execute the same, upon a record of the proceedings being filed therein, duly certified and authenticated.4 Organization of New State. So a decree of a court of chancery of the State of Virginia of specific performances, as to lands situated at the time in Kentucky, then a part of Virginia, was held to be enforcible after the separation and organization of Kentucky into a State, in a suit upon such decree, in the circuit court of the United States for the district of Kentucky." IX. JUDGMENTS AND DECREES IN PROCEEDINGS IN REM. No Action Sustainable Thereon. Judgments and decrees merely in rem of courts of one State will not sustain an action or suit against the defendant therein in the courts of another State. They bind only the thing or property acted on by them, 'Grover v. Grover, 30 Mo. 400; Miles v. Collins, 1 Met. (Ky.) 308. Arnold v. Roraback, 8 Allen, 429. 6 Melhop v. Doane, 31 Iowa, 397; Price v. Hickok, 39 Vt. 292; Jones c. Spencer, 15 Wis. 583; D'Arcy v. Ketchum, 11 How. 165; Pennoyer v. Neff, 5 Otto, 714. |