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McDonald v. Hobson.

in the suit pending, or in any other suit, or in any other court, or in any proceeding under the contract of 1810, as affecting or in any way changing the rights of either in the matters in dispute; but that the suit in chancery, or any suit which either might think proper to bring, should be conducted, in all respects, as though this contract had not been entered into.

We think, therefore, it is clear, the parties intended that their respective rights to the common fund in question should be settled and, fixed by the chancery suit then pending, or by some other legal proceeding that might be instituted for the purpose; and that, when so settled, they would conform the provisional distribution already made to the decision, by paying over at once the amount adjudged to be due; for we have seen, that, instead of interfering with the suit which had been already commenced, great pains are taken to guard against any such consequence, and, as if apprehensive that their rights might not be definitively settled by that suit, provision is made for the institution of any other, by either party, before the same or any other tribunal having cognizance of the case.

In a word, the whole amount of the agreement is, to provide, first, for a provisional distribution of the fund, so that the money might be used pending the litigation; secondly, for a judicial determination of the controversy in respect to it, in some court of law or equity; and, thirdly, for the payment of any balance that might be found due from either, at the Bank of Chillicothe.

This being, in our judgment, the legal effect of the agreement, it is manifest that the pleader has failed to comprehend it, and has therefore failed to set out any cause of action in the declaration. There is a total omission [*758 of any averment of the fact upon which the right of the plaintiff to any portion of the fund beyond the $11,500 is made to depend, namely, a judgment, order, or decree awarding to him the amount. There is not only an omission of any such averment, but the contrary appears upon the face of the declaration, as the decree in the chancery suit is set out, and its contents particularly described.

It is a decree simply dismissing the bill of complaint, with costs. It may show that the defendant (now plaintiff) had not received more than his share of the money in the division, otherwise the bill would not have been dismissed: not that the defendant was entitled to more, unless the dismissal of a bill is evidence that something is due from the complainant to the defendant.

McDonald v. Hobson.

Neither can we presume, even after verdict, that evidence was given at the trial, by which it was made to appear that the decree did determine that the amount which has been recovered in this suit was due from McArthur to the plaintiff; for this would be a presumption against the face of the record. That shows what decree was rendered, and any one of a different import would have been inadmissible under the pleadings.

Besides, there should have been an averment, not only that a decree was rendered in the suit in chancery, but that the sum claimed had been therein adjudged to the plaintiff. This is made the foundation of the right to the money, and, of course, of the action, by the agreement; and the omission is fatal to the judgment.

It is the case of a total omission to state any title or cause of action in the declaration,-a defect which the verdict will not cure, either at common law or by statute. Doug., 683; Cowp., 826; 1 Johns. (N. Y.), 453; 2 Id., 557; 17 Id., 439.

The averment, that, in virtue of the decree, the plaintiff was well entitled to recover, &c., is insufficient, either as matter of law or of fact. As matter of law, it was given up in the argument, as no such legal consequence could follow from the premises stated; and, as matter of fact, the averment is in contradiction to the record itself. That shows, that the decree determined nothing in favor of the plaintiff; dismissed the bill against him with costs, and nothing more.

Some weight was given, in the argument, to the peculiar phraseology of the covenant, on the part of MeArthur, wherein it is provided, that, if it should be determined in the chancery suit, that the plaintiff was entitled to any greater portion of the money, directly or indirectly, than the $11,500, then, and *in that case, he would pay, &c. The object *759] of using the words, directly or indirectly, in the con

nection found, is, perhaps, at best, but matter of conjecture. But as the chancery suit was against Hobson, for the purpose of asserting claims and demands against him by the complainant, it was, according to the rules of chancery, an inappropriate proceeding for the purpose of asserting claims on the part of the defendant against the complainant. These would have required a cross-bill. But as the suit had become an amicable one, it was provided that the claims of both parties might be settled therein, notwithstanding the irregularity of the proceeding, and hence the use of the peculiar phraseology referred to.

This explanation receives some confirmation from the covenant, on the part of Hobson, with McArthur. These words

McDonald v. Hobson.

are there omitted. The suit was appropriate to enforce any claim against him.

It was said, also, and some stress laid upon the remark, that the agreement would not have provided for the voluntary payment of the balance that might be due from one to the other, if it had comtemplated an adjustment of the particular amount by the suit in chancery, as, in that event, the payment could be enforced by the decree.

But we think this consideration leads to an opposite conclusion. How could the payment be made at the bank, as provided, unless the amount in dispute was first adjusted.

There was no dispute about the payment, except as respected the amount. That being determined, each party was ready to satisfy it. Besides, it is difficult to believe, that, in providing so specially for the settlement of the controversy by judicial proceedings, the parties had in view simply the determination of the question whether the one or the other had recived more of the fund than his share, without regard to the amount. Such a decision would have been idle, as it could lead to no practical result in the settlement of their differences.

Upon the whole, for the reasons stated, we think the judgment below erroneous, and should be reversed, and the cause remanded to the court below for further proceedings.

Mr. Justice WAYNE, being indisposed, did not sit in this

cause.

Mr. Justice WOODBURY dissented.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the *District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and ad- [*760 judged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court. 797

Massingill et al. v. Downs.

W. AND H. MASSINGILL, PLAINTIFFS, v. A. C. DowNS, CLAIMANT.

Where a judgment was obtained in the Circuit Court of the United States for the District of Mississippi in 1839, and in 1841 the State of Mississippi passed a law, requiring judgments to be recorded in a particular way, in order to make them a lien upon property, this statute did not abrogate the lien which had been acquired under the judgment of 1839, although the latter had not been recorded in the manner required by the statute.1

THIS case came up from the Circuit Court of the United States for the Southern District of Mississippi, upon a certificate of division in opinion between the judges thereof.

The facts are fully set forth in the opinion of the court, as delivered by Mr. Justice McLean, to which the reader is referred.

It was argued by Mr. Sargent and Mr. Bell, for the plaintiff, and Mr. Lawrence and Mr. Badger, for Downs, the claimant.

Mr. Sargent and Mr. Bell made the following points:

1. When this judgment was entered, it became a lien on all the personal and real property of Chewning, in Mississippi. Hutch. Miss. Code, 881, 282. Brown v. Clarke, 4 How., 12; 4 Stat. at L., 184; Id., 278; Rankin v. Scott, 12 Wheat., 177; United States v. Morrison, 4 Pet., 124; Burton v. Smith et al., 14 Pet., 464; Tayloe et al v. Thompson, 5 Pet., 358.

2. The rules of court, so far as they are more than declaratory of the effect of the United States process act of 1828, adopt the State practice of November 25, 1839; they adopt nothing prospectively.

3. The State act of 1841 does not purport to operate on federal judgments. No State statute can operate proprio vigore to affect directly or indirectly a judgment of the federal courts. Wayman v. Southard, 10 Wheat., 1; Bank of the United States v. Halsted, Id., 51.

*4. There had been no adoption by Congress, or the *761] federal courts of Mississippi under the authority of Congress, of the State act requiring the filing of an abstract of judgments in the county where the defendant's property is situated, at the time this execution was levied.

1 CITED. United States v. Sturgis, 14 Fed. Rep., 811. And see 4 Cent.

Law Jour., p. 532, and post *765 n, *767 n.

Massingill et al. v. Downs.

Mr. Lawrence, for the claimant.

Is the law of Mississippi as to the limitation of liens of judgments applicable to the judgments of the federal courts?

We contend that it is, because the lien of a judgment is something affecting property, forming no intrinsic quality of the judgment itself as such, but derived entirely from the Sovereignty within whose jurisdiction the property affected by it is situated.

It is said that a State cannot interfere with and control the federal courts in relation to the effect and operation of their judgments; that it would leave those courts entirely at the mercy of the State legislatures.

This is the most plausible, if not the only, argument against us in this case, and a slight examination will show that it is of no real weight.

We do not contend that the States can interfere with the effect of the judgments of the United States courts, either in making them less than judgments in fact or in law, or in preventing the fruition of those judgments by process of execution. Congress has, under the Constitution, the exclusive power to regulate the proceedings in the United States courts; and even where the forms of process used in the States are adopted, it is, after all, but an exercise of the same power of Congress, and not a recognition of any authority over the subject by the States. Wayman v. Southard, 10 Wheat., 1.

If, therefore, a State law should enact that a judgment should be no evidence of debt, or should abolish all writs of execution, such a law would not be applicable to the proceedings of the federal courts, because, in the first instance, it would take away the proper intrinsic effect of the judgment itself, and make it, in whole or in part, no judgment; and, in the other instance, it would take from the United States courts a necessary part of the organization of a court, namely, the power to carry into effect its own judgments.

But the lien of a judgment is not an intrinsic quality of the judgment itself, nor is it any part of the process of a court for enforcing a judgment.

1st. A judgment is in effect what it is defined to be in theory, "the sentence of the law given in a court of law." The lien of a judgment is a quality added to it, a quality *not in any manner altering it as the sentence of the court, but superadded to it, taking effect on property, [*762

qualifying property, restraining the alienation of property; not by an act of appropriation and sale under an execution, (which come under the denomination of "proceedings," and

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