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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



J^






QUESTIONS AND ANSWERS



ON



LAW.



ALPHABETICALLY ARRANGED.



WITH



REFERENCES TO THE MOST APPROVED AUTHORITIES



BY



ASA KINNE.



VOLUME TWO,



FOURTH EDITION.



NEW Y O R K
PUBLISHED FOR THE AUTHOR.



184 4.

[aDDRKSS .ISA KINNK. A?TOR HOl'SE. NF.\\' VDRK."]



>/






DISTRICT OF COLUMBIA, TO WIT:

He it remembered, that on tlic eiehth day of June, Anno Domini, eighteen hundred
and thirty nine, Asa Kiuuc ot'tlie said District, deposited in this office the title of a book,
llie title of which is iu the words following: " (iuestions and Answers on Law, alpha-
beiically arranged, with references to the most approved authorities; by Asa Kinne ;"
I he right whereof he claims as author. In conformity with an Act of Congress, entitled,
'• An Act to amend the several Acts respecting CopjTights."

EDM. J. LEE, Clerk of the District.

In testimony that the foregoing is a true
copy fi-om the record in my office, 1. Edmund
J. Lee, Clerk of the District Court of tlio
District of Columbia, hereto set my hand,
and the seal of said Court, tliis eighth day ol
June, 1639.

EDM. J. LEE, D. C. D. C.



Entered according to an Act of Congrcs.s, in the year 1839, by Asa Kmno. in the
Clerk's Office of the District Court for the District of Columbia.



Entered according to an Act of Congress, in the year 1P42, by Asa Kinne, in the
Clerk's Office of the District Court for the District of Coinn-bia.



Entered according to an Act of Congress, in the year 18i:'.. by Asa Kinne, in th^
Clerk's Office of the District Court for the Southern District of New York.






List of Ahhrcmations not in the first volume.



Anst. Rep. Anstruther Reports.

Code Nap. Code Napoleon.

Crom. Mee. & Ros. Crompton, Meeson & Roscoe.

Coll. on Part. Collyer on Partnership.

Car. Law Rep. Carolina Law Repository

Ersk Inst. Erskine's Institutes.

Edw. Ch. R. Edwards' Chancery Reports.

Gill «Sc Johns. Gill & Johnson's Reports.

Glyn k, Jam. Glyn & Jameson's Reports.

Hov. Sup. Hovendon's Supplement.

Jarm. on Conv, Jarman on Conveyances.

Prec. in Ch. Precedents in Chancery.

Puff. Puffendorf.

Trait, de Mor. Germ. Tacitus on the manners of the Germans

Tur. & Russ. Turner and Russell.



QUESTIONS AND ANSWERS



LAW



JUDGMENT.



1. What is a judgment 1

It is a decision or sentence of the law, given as the result of pro-
ceedings instituted for the redress of an injury.

Judgments are the sentence of the law pronounced by the court upon
the matter contained in the record, and are of four sorts ; first, where the
facts are confessed by the parties, and the law determined by the court —
as in the case of a judgment upon demurrer ; secondly, where the law is
admitted by the parlies, and the facts disputed — as in case of a judgment
upon a verdict ; thirdly, where both the fact and the law arising thereon
are admitted by the defendant — which is the case of judgments by default
or confession ; lastly, where the plaintiif is convinced that either fact or
law, or both, are insufficient to support his action, and therefore abandons
or withdraws his prosecution — which is the case in judgments upon non-
suit or retraxit. — 3 Black. Comm. 305. Jus. hist. lib. 4, tit. 18.

OF FOREIGN JUDGMENTS.
1. What effect is given to a foreign judgment in rem ?

The sentence of a competent court proceeding in rem, is conclusive
with respect to the thing itself, and operates a complete change of pro-
perty ; by such sentence the right of the former owner is lost, and a com-
plete title given to the person who claims under the decree. — Williams
V. Armroyd, 7 Cranch, 423. Rose v. Himely^ 4 Crunch^ 221. But in
every case of a foreign judgment, condemning a vessel as prize of war,
the authority of the court to act as a prize tribunal must be examinable.
The question whether the vessel was in a situation to subject her to the
jurisdiction of that court, is also examinable. — Ibid, Flad Oyen, 1 Rob.
114. The Christopher, 2 Rob. Rep. 173. The Kierlighett, 3 Rob. 82.



10 JUDGMENT,

The Helena, 4- Rob. 3. The Comet, 5 Rob. 255. Hudson and Smith v
Guestier, 6 C ranch, 281.

A foreign sentence of condemnation, as good prize, is not conclusive
that the title to the property was not in a subject of a neutral nation. —
Maley v. Shattuck, 5 Crunch, 458.

No tribunal of a co-ordinate jurisdiction can examine the sentence of
another competent court proceeding i7i rem, or inquire whether it be con-
formable to public or municipal law. — Williams et al. v. Jlrmroyd^ 7 Cranch,
428.

2. What effect is given to a foreign judgment in personam 1

The rule of the English law is, that a foreign judgment is prima facie
evidence of the debt, and it lies on the defendant to impeach the justice of
it, or show that it was irregularly or unduly obtained. — Sinclair v. Frazer
cited in Duchess of Kingston's case, 11 St. Tr., 222. Martin v. jYicholls,
3 Sirdon^s Rep. 54-5. In the latter case it was held, that a foreign judg-
ment could not be questioned, not merely when it comes in collaterally or
bv way of defence, but in a suit brought directly to enforce it. It is ne-
cessary, however, in order to recognize a foreign judgment, and give it
effect in any way, that the court which pronounced it was competent to the
case, and had due and lawful jurisdiction over the cause and the parties ;
and this is the case whether the proceedings be in rem or in personam.
Story's Com. on Conflict of Laws, 492. 1 Kent's Com., 261. 2 Kent's
Com., 121. Tarlelon. V. Tarleton, ^ Manle Sf Selw.2l. Guiness \. Car-
well, 1 Barn. S,- Adolph. 459. ^equet v. JW Carthy, 2 Ibid, 951. Vattcl, b. 2,
ch. 7, sec. 84, 85. Huberus de Conflictii Legum, lib. 1, tit 3, sec. 3, 6.
Henry on Foreign Latv, 74, 76.

There is a distinction taken, in the English Courts, between suits
brought by a party to enforce a foreign judgment, and suits brought
against a party, who sets up a foreign judgment in bar by way of de-
fence. In the former case, it is said, that no sovereign is bound, jure
gentium, to execute a foreign judgment within his dominions ; and there-
fore, if execution of it is sought in his dominions, he is at liberty to inquire
into the merits of the judgment. But it is otherwise where the defendant
sets up a foreign judgment as a bar to proceedings ; for if it has been pro-
nounced by competent tribunals and carried into effect, the losing party
has no right to institute a suit elsewhere. It is then res judicata, which
ought to be received as conclusive evidence of right : and the exceptiore%
judicatcB under such circumstances, is entitled to universal esteem and res-
pect. This distinction has been very generally recognized as having a foun-
dation in international justice. — Story's Com. on Conjlict of Laws, 500.
2 Kent's Com., 119. Boucher v. Lauson, cases T. Hardw. 89. Turletcn
Sr Tarlelon, 4 Maulc Sr Selw., 10. Philips v. Hunter, 2 //. Black, 410.

3. How is this rule received in the United States 1

The general doctrine niaintained in the American Courts in relation
to foreign judgments is, that they are prima facie evidence, but they are



JUDGMENT. 3 1

impeachable. — Story^s Com. on Conflict of Laws, 508. 2 Kent's Com.,
118, ei seq. 4 Coiven''s Rep., 520. Green v. Sarrnicnto, 1 Peters^ C. C.
Rep., 14^. Field V. Gibbs, Ibid. 155. ^Idrich v. Kinney, 4< Connec. Rep. ^
380. Shumway v Still/nan, 6 Wendell, 447. Hall v. Williams, 6 Pick.,
247. Starbuck v. Murray, 5 Wendell, 148.

Foreign judgments w ?-eOT, with respect to personal property, are held
to be conclusive in cases where the Court had jurisdiction, so that the
same question may not be again litigated. — Williams v. Armroyd, 7
Cranch, 433. Croudson v. Leonard, 4 Cranch, 434. Rose v, Himely, 4
Cranc/i, 141. Hudson v. Guestier, Lafont v. Bigelow, 4 Cranch, 293.
Fitzsimmons v. JVeivport Ins. Co., 4 Cranch, 185. Maley v. Shattuck, 3
C'ra?icA, 458. T/^e Jfary, 9 Cranch, 126. 'i'Ae Gran-Para, 7 fTAea^, 471.

4. What is the rule of the French law in regard to foreign judgments?

The present prevailing doctrine appears to be, that foreign judgments
are executory in France, after being subject to re-examination ; and who-
ever seeks to enforce a foreign judgment, must show the reason upon
which it is founded. — Merlin, Ques. du Droit, tit. Jud. § 14. Repertoire
Jurisp., tit. Jud. § 6. Toulier, Droit Civl Frangoise, torn. 10, JVo. 16 a 86.
Pardesus, Droit Commercial, torn. 5, 1488.

5. What is the proper mode of enforcing a foreign judgment!

By an action of debt. An action of debt on judgment lies immedi-
ately on the recoverj'' thereof,* and, even on a judgment recovered in an-
other state : but in the latter case tllfe defendant may show that the Court
had no jurisdiction. An administrator may have debt in his own individual
name to recover a judgment in his representative character. — Denison v.
Williams, 4 Conn. Rep., 402. Clark v. Goodwin, 14 Mass. Rep., 239.
Smith v. Mumford, 9 Cowen, 26. Hale v. Angel, 20 Johns. Rep., 342.

6. What is the proper exception to such an action 1

The plea of nul tiel record. — Ladd v. Blunt, 4. Mass. i2ep.,402. Ben-
ion V. Bur got, 10 Serg. Sr Ratole, 240. Mills v. Duryee, 7 Cranch, 481.

But this does not apply to foreign judgments : nil debet is the proper
plea to actions on such judgments. — Bissell v. Briggs, 9 Mass. Rep., 462.
Hall V. Williams, 6 Pick. Rep., 232. Hampton v. McCotmell, 3 Wheaton,
234.

OF JUDGMENTS RENDERED IN THE COURTS OF THE
UNITED STATES.

1. What are the rules governing the execution of the judgments and
judicial process of the Circuit Courts of the United States 1

They are laid down as follows :

1st. That by the general provisions of the laws of the United States,
the Circuit Courts can issue no process beyond the limits of their districts.



12 rrr'r.MENT.

2d. That independent!}' of positive legislation, the process can only be
served upon persons within the same districts.

3d. That the acts of Congress adopting the state process, adopt the
form and modes of service, only so Air as the persons are rightfully within
the reach of such process, and did not intend to enlarge the sphere of the
jurisdiction of the Circuit Courts.

4th. That the right to attach property, to compel the appearance of
persons, can properly be used only in cases in which such persons are
amenable to the process of the Court, in personam, that is, where they are
inhabitants, as found within the United States, and not where they are
aliens, or citizens resident abroad at the commencement of the suit, and
have no inhabitancy here : and even in case of a person being amenable
to process in personavi, an attachment against his property cannot be issued
against him except as part of, or together with, process to be served on
his person.

The Circuit Court of each district sits within and for that district, and
is bounded by its local limits.

Whatever may be the extent of the jurisdiction of the Circuit Courts
over the subject matter of suits, in respect to persons and property, it can
only be exercised within the limits of the district.

Congress might have authorized civil process, from any Court, to
have run into any State of the Union. It has not done so. It has not, in
terms, authorized any civil process to run into any other district ; with the
single exception of subpoenas to witnesses, within a limited distance. In
regard to final process, there are two cases, and only two, in which writs
of execution may now, by law, be served in any other district than that in
which the judgment was rendered ; T)ne in favor of private persons in an-
other district of the same State, and the other in favor of the United States,
in any part of the United States. — Toland v. Sprague, 12 Peters^ S. C. Rep.,
300. Piquet v. Swan, 5 Mason, 39.

The Circuit Court has no authority to decree a sale of lands lying in
another State, by a master acting under its own authority. — Boyce's Extr.
V. Grundy, 9 Peters'* S. C. Rep., 299.

2, What effect may State laws have in restraining a judgment of the
Federal Courts 1

State laws cannot control the exercise of the powers of the National
Government, or in any manner limit or effect the operation of the process
or proceedings in the National courts. The whole efficacy of such laws,
in the Courts of the United States, depends upon the enactments of Con-
gress. So far as they are adopted by Congress, they are obligatory. Be-
yond this they have no controlling influence. Congress may adopt such
State laws, directly, by substantive enactments, or they may confide the
authority to adopt them to the courts of the United States. — Beers v.
Haughton, 9 Peters'* S. C. Rep., 329. Sturges v. Crowiiinshields, 4 Wheat.,
200, 4 Condens. Rep., 409. Wayman v. Southard, 11 Wheaton, 1, 6
Condens. Rep., 1. United States Bank v. Halsted, 10 Wheaton, 51, 6
Condens. Rep., 22. Mason v. Hale, 12 Wheaton, 370, 6 Condens. Rep.,
535. Bank of Hamilton Y . Dudley's Heirs, 2 Peters* S. C. Rep., 526.



JURISDICTION. 13

The state legislatures cannot annul the judgments nor determine the juris-
diction of the Federal Courts. — The United States v. Judge Peters, 2 Con-
dens. Rep., 202.

The local laws of a State can never confer jurisdiction on the courts
of the United States. They can only furnish rules to ascertain the rights
of the parties, and thus to assist in the administration of the proper reme-
dies where the jurisdiction is vested by the laws of the United States. —
Steamboat Orleans v. Phcebus, 11 Peters'' S. C.Rep., 175.



OF JUDGMENTS IN SISTER STATES.

1. What effect is given, in the courts of one state, to a judgment ren-
dered in a court of another state of the Union 1

The Constitution of the United States, Art. 4, Sec. 1, provides that
full faith and credit shall be given, in each state, to the public acts, records,
and judicial proceedings of every other state. And Congress may, by
general laws, prescribe the manner in which such acts, records, and pro-
ceedings, shall be proved, and the effect thereof.

Accordingly, by Act of May 26, 1790, Sec. 1, it is enacted, that the
acts of the legislatures of the several states shall be authenticated by
having the seal of their respective states affixed thereto. The records and
judicial proceedings of the courts of any state, shall be proved or admitted
in any other court within the United States, by the attestation of the clerk
and the seal of the court annexed, if there be a seal, together with a cer-
tificate ofthe judge, chief justice, or presiding magistrate, as the case may
be, that the said attestation is in due form. And the said records and judi-
cial proceedings, 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
shall be taken.

By another act on the subject passed on the 27th March, 1804, Sec.
1, all records and exemplifications of official books, which are or maybe
kept in any public office of any state, not appertaining to a court, shall be
proved or admitted in any other court or office in any other State, by the
attestation of the keeper of the said records or books and the seal of his
office thereto annexed, if there be a seal, together with the certificate of
the presiding justice ofthe court of the county or district, as the case may
be, in which such office is or may be kept, or ofthe Governor, Secretary
of State, the Chancellor, or the keeper of the great seal of the state, that
the said attestation is in due form, and given by the proper officer.

2. What is understood by " due form ? "

The due form intended by the act, is that ofthe state or ofthe court
whence the record comes, — Craig v. Brown, 1 Peters* S. C. Rep., .35.
Serg. Const. Law, 388.

If the clerk attest that the foregoing is truly taken from the records



11, JUDGMENT.

of the court, and the presiding judge certify it to be in due form, it is con-
clusive, and no other evidence can be aduiittod to show that it is not in due
[onu.—Ferguso7i, v. Harwood, 7 Crunch, 40S. I Burrs Trial, 98. C/iurch
V. Hubbard^ 1 Condcns. Rep.^ 395. Lessee of Griffith v. Tcnckhouscr, 1
Peters' C. C. Rep., 418. Pettibone v. Derringer , ^ Wash. C. C. Rep.,
215. United Statea X. Jlmedy, 11 Wheaton, 392. Drummond^s Jldm. v.
Magruder^s Trustees^ 9 Crunch, 122.

By the record certified in the manner prescribed, such proof of tlie
judgment is of as high a nature as inspection of the record would be. —
Mills V. Duryee, 7 Craiich, 481. Furguson v. Harwood,! Cra/ich,WS.

It is now settled that the judgment of a state court shall have the same
credit, validity, and effect, in any state, which it had in the state where it
was pronounced ; and that whatever pleas would be good in a suit thereon
in such state, and no others, can be pleaded in any court in the United
States. — Hampton v. McConneJl, 3 Wheaton, 234'.

It is therefore held, that when the defendant had full notice, and gave
bail, a judgment in a state court is conclusive, and in a suit upon that
judgment the defendant cannot plead nil debet. — Armstrong v. Carson^s
Executors, 2 Dull., 302. Hampton v. McConnell, 3 Wheaton, 334-. For
the record imports an absolute verity. — Field v. Gibbs, 1 Peters' C. C. Rep.,
155.

And if in a suit commenced by attachment, and judgment recovered,
the defendant had personal notice of the suit, and afterwards appeared
and made defence, any objection to the proceeding is thereby waived, and
7iil debet cannot be pleaded. — Mayhem v. Thatcher, 6 Wheaton, 129.
Phelps V. Holker, 1 Dall., 261. Killburn v. Woodworth, 5 Johns. Rep., 37.
Kibbe V. Kibbe, Kirby, 110. Belts v. Death, Addison's Rep., 265. Hop-
kins V. Lee, 6 Wheaton, 100.

No action will lie at law on the decree of a court of equity, for the
payment of money. — Hugh v. Higgs, 8 Wheaton, 697. Contra 9 Serg. Sf
Ravjle, 252. Where an action of debt was maintained, there being no court
of equity in Pennsylvania. — Evan's Adm. v. Satem. Dubois v. Dubois, 6
Covjeiis Rep., 490.

The whole of the record that relates to the subject matter must be
certified. — Griffith's Lessee v. Evans, 1 Peters' C. C. Rep., 166.

3. How is the act of Congress considered in reference to the federal
courts \

It applies only to the records of the state courts, and not to those of
the United States courts. With regard to these, if offered in evidence in
a state court, it remains with such court to decide on the sufficiency of the
evidence. It was, therefore, held by the supreme court of New York, in
an action brought on a judgment rendered in the circuit court of the
United States for the district of Massachusetts, that on the plea of nul
iiel record, a record under the seal of such circuit court, certified by the
clerk as a copy, was sufficient evidence : that being the ordinary way of
certifying such record in Massachusetts, instead of the technical exem-
plification. — Pepoon V. Jenkins, 2 Johns. Cos., 119.



JUDGMENT. 15

To bring a judgment within the act, the court must not only have*
jurisdiction of the cause, but of the parties. A debtor living in M., may-
have goods, effects, or credits in N., where the creditor lives. The cred-
itor may lawfully attach these, pursuant to the laws of that state, in the
hands of the bailiff, factor, or trustee, or garnishee of his debtor ; and on
recovering judgment, those goods, &c., may lawfully be applied to satisfy
the judgment ; and the bailiff, &c., sued in M. for those goods shall be
protected by the judgment in N. If, however, those goods are insufficient
to satisfy the judgment, and the creditor should sue an action on that judg-
ment, in another state, he must fail ; because the defendant was not per-
sonally amenable to the jurisdiction of the court rendering the judgment. —
Bissell V. Briggs, 9 Mass. Rep., 462. Killburn v. Woodworth, 5 Johns.
Rep., 3. Robinson v. Ward's Ex., 86 Ibid, 85. Taylor v. Phelps, 1 Gill
S)' Johns. Rep., 492. Shumioayv. Stillman, 6 WendelPs Rep., 447. Jacobs
v. Htdl, 12 Mass. Rep., 25.

To give jurisdiction of the person to the court, in any case, the party
must have had due notice of the suit. — Hitchcock v. Aikiiis, 1 Caines^ Rep.,
466. Armstrong v. Carson, 2 Ball., 302. Hall v. Williams, 6 Pick. Rep., 232.

4. What is the rule as to justices of the peace under the above provision
of Congress 1

That the judgment of a justice of the peace is entitled to full faith in
another state, if it be proved the subject-matter was within his jurisdiction ;
and the proceedings, in all respects, conformable to the statute produced. —
Thomas v. Robinson, 3 Wendell, 367. Co7itra, 2 Pick. Mass. Rep., 448.
4 JV. H. Rep., 450.

To an action of debt in New York, the defendant pleaded in bar, a
judgment recovered in Vermont, for the same cause ; and that execution
had issued there, which had been satisfied by an extent and appraisement
of lands, averring that the proceedings were according to the laws of that
state ; upon demurrer the court held the plea bad, in not setting forth the
statute of Vermont, authorising those proceedings. — Holmes v. Broughton,
10 Wendell, 75, Pearsall v. Dwight, 2 Mass. Rep., 34. Legg v. Legg, 8
Mass. Rep., 35.

5. How are judgments in penal actions regarded, in other states than
those in which they are obtained X

An action may be maintained on a judgment recovered in a qui tarn
action in another state for a penalty. — Healy v Root, Adm., 11 Pick. Rep.,
389.

6. How are judgments in criminal cases considered in sister states 1

The clause in the constitution has no effect in criminal cases ; and
in respect to them, the relation of the states to one another is left
wholly unaffected by the constitution. Therefore, the conviction of an
infamous crime in a foreign country, or in another state, does not (as to



16 JUDGMENT.

its consequent disabilities) follow, or attach to the person in another state.
— Commonwealth v. Green, 17 Mass. Rep., 547. Gregory et al. 14. lb.
499.

This is not a settled doctrine in foreign jurisprudence, though un-
doubtedly the rule of the Common Law, and of the English courts. Lord
Loughborough held, in Follioit v. Ogden, .1 Hen. Black's Rep., 135, that
penal laws of foreign countries are strictly local, and afTect nothing more
than they can reach, and can be seized by their authority. A fugitive
who passes hither, comes with all his transitory rights. It is a general
principle, that the penal laws of one country cannot be taken notice of in
another. IVolf v. Oxholm, 6 Mavle 4* Selw., 99. Scovill v. Carifield,
14 John's Rep. 33S. The State v. Knight, Taylor's JS''. C. Rep., 65. But
many '"oreign Jurists contend that the state or condition of a person at his
domicil accompanies him everywhere. See post, Penal Law, and Story's
Com. on the Conflict of Laws, 516, et seq.

7. May a Court of Equity give relief on a bill, quia timet, against a
judgment of a sister state, where that judgment is not put in suit in the
state in which the court sits 1

Under some circumstances it may, when the parties are within the
jurisdiction of the court : as where the defence was of an equitable nature,
or, if lecral, such as was not, or could not, by ordinary means, be known
to the defendant upon the trial ; or if, through some uncontrollable circum-
stances, he was deprived of the benefit of such testimony, when it was a
legal defence, and known to him, equity will give relief, quia timet. — Win^
Chester v. Jackson, Evans et al., 3 Hayward's Rep., 305.

Although a judgment in a court of a state is not to be regarded
in the courts of her sister states as a foreign judgment, or as merely /3nOT«
facie evidence of 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 first section of the fourth article of the constitution, and by the
Act of May 26th, 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. — McElmoylev. Cohen's Admr., 13 Peters'
S. C. Rep., 312.

By the law of Congress the judgment is made a debt of record, not
examinable upon its merits ; but it does not carry with it into another
state, the effiicacy of a 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



Online LibraryUnknownQuestions and answers on law. Alphabetically arranged, with references to the most approved authorities (Volume 2) → online text (page 1 of 95)