D'Arcy v. Ketchum et al. to plaintiffs' petition filed in said suit, that the same is not addressed to any court of the United States of America, and is therefore informal and should be dismissed. "2d. The defendant excepts, that the judgment sued upon is not one upon which suit can be brought against the defendant in this court. "3d. The defendant excepts to said judgment, that it does not follow the verdict; that the same is not signed, and is not final; and that the same, with the record of proceedings in the suit in which the same was rendered, is not properly certified, as required by law; and the said record is upon its face incomplete. "4th. The defendant pleads prescription. "If the above exceptions and plea are overruled, the defendant for answer says, that he does not owe the plaintiffs in manner and form as set forth by them; that he is in no way indebted to them; and prays that he may have judgment thereof in his favor, and that said plaintiffs be condemned to pay all costs." In May, 1848, these exceptions were argued, and the Circuit Court (Mr. Justice McKinley being absent) overruled the exceptions and gave the following judgment: "This cause having been argued, and submitted to the court on the 8th instant, and the court having maturely considered the same under the law and the evidence, it is ordered, adjudged, and decreed, that there be final judgment rendered herein in favor of the plaintiffs, Ketchum, Rogers, and Bement, and against the defendant, James D'Arcy, for the sum of $1,418.81, with interest thereon at the rate of seven per centum per annum, from the 1st day of February, 1840, till paid, $52.12 costs of suit in New York, and the costs of this suit to be taxed. "Judgment rendered May 17, 1848. "Signed June 17, 1848. "THEO. H. MCCALEB, [SEAL.] A motion was made for a new trial, but it was overruled. D'Arcy then sued out a writ of error, and brought the case up to this court. It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Ketchuan, for the defendants in error. Mr. Coxe, for the plaintiff in error, made the following points. The distinction frequently expressed by this court between judgments that are erroneous and subject to reversal on error, D'Arcy v. Ketchum et al. and those which are essentially defective and void, will not be impugned or controverted; but it is submitted that the New York judgment in this case, and which constitutes the sole foundation of the present suit, is so essentially defective. that it cannot give support to this judgment. 1. It is not sufficiently authenticated as the law requires, to entitle it to admission in evidence. The foundation of the existing law on this subject will be found in the Constitution, Art. IV. § 1, which 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 the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Congress, by the act of May 26, 1790 (1 Statutes at Large, 192, c. 11), did prescribe this mode of authentication, and declare that 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 certificate of the judge, &c., that the said attestation is in due form. In this case there is no seal of court attached. In the United States v. Auredy, 11 Wheat. 407, this court held that no other or further formality is required than the annexation of the seal; the act of Congress requires no other authentication. That was the case of a legislative proceeding. In Craig v. Brown, 1 Pet. C. C. 352, where the question arose as to the authentication of a judicial proceeding, it was held that, whenever the court whose record is certified has no seal, this fact should appear in the certificate of the clerk or in that of the judge, and where there is a seal, that should be appended. The record in this case shows that the court has a seal, yet none appears on the paper. This, the proper and only legal authentication of a judicial record, is omitted. 2. The judgment does not appear to have been signed by a judge of the Superior Court. In his attestation the chief justice calls himself by his appropriate title, but the judgment itself is signed Thomas J. Oakley, without any designation of office. 3. From the record it is apparent, not only that D'Arcy never was served with process, or in any manner notified of the proceeding, but it fully appears that there was no attempt to serve him with process, for none was ever issued; none to serve him with a copy of the declaration, for the reason assigned, his absence from the jurisdiction of the court; no proceeding against him by public notification or otherwise, to inform him D'Arcy v. Ketchum et al. of the pendency of the suit; no averment of any default warranting a judgment in his absence. In Mayhew v. Thatcher, 6 Wheat. 129, this court held that. the record of a judgment in a State court is conclusive, although it appears the suit was commenced by attachment, when the defendant appeared and made defence. In Hollingsworth v. Barbour, 4 Peters, 466, this court cited 5 Johns. 37, 41; 3 Wils. 297; 9 East, 192; 8 Johns. 86, 90; and affirmed the law as declared by Judge Trimble on the circuit, that, "by the general law of the land, no court is authorized to render a judgment or decree against any one, or his estate, until after due notice by service of process to appear and defend. This principle is dictated by natural justice, and is only to be departed from in cases expressly warranted by law and excepted out of the general rule." See also p. 475. The objections here urged were distinctly presented to the Circuit Court and overruled. The proceedings in the Circuit Court are scarcely less irregular and extraordinary. 1. The petition is addressed to the court by a name unknown to the law. 2. The suit is instituted against D'Arcy alone, upon a joint judgment against two, without assigning any reason for omitting the only party who had appeared in the New York court, and who alone appears to be party to the proceedings and verdict in that court. 3. In setting out that judgment, the petitioners have miscalled the court in which it is said to have been rendered. It is called the Superior Court of the State of New York. In declarations it is essential that the plaintiff should set out the ground of his action with the most rigid particularity. In suits upon judgments this is especially required. Any variance is fatal. In Coy v. Hymas, 2 Str. 1171, plaintiff declared upon a judgment for £ 388 0s. 1d. as a judgment for £388, and the variance was held fatal. In Pope v. Foster, 4 T. R. 590, which was an action for a malicious prosecution, it was held that an averment in the declaration of the day of trial must exactly agree with the record to be produced to support it. On account of a variance as to the day, Lord Kenyon nonsuited plaintiff, and the court refused a rule to set aside the nonsuit. In Green v. Bennett, 1 T. R. 656, an action against defendant for negligence as attorney, the return of the writ as laid in the declaration varied from that in the record, and it was held fatal. In Purcell v. Macnamara, 9 East, 160, the case of Pope v. Foster was overruled, on the single ground that the day constituted no part of the description of the judg D'Arcy v. Ketchum et al. ment; had it been so laid, the variance would have been fatal. The case of Green v. Bennett is, however, approved. 4. The judgment in the Circuit Court does not correspond with the New York judgment, on which suit is brought. The petition prays that defendant be condemned to pay $1,418.81, $52.12 costs, with interest at the rate of seven per cent., the legai interest of New York, from February 1, 1840, till paid. The New York judgment is for $1,470.93, including costs, without any express allowance of interest, and consequently not bearing interest anterior to the date of the judgment, viz. 25th January, 1847. The judgment of the Circuit Court is for $1,418.81, with interest at seven per cent. from the 1st of February, 1840, beside the costs of both suits, thus allowing interest, according to the New York rate, for about seven years before any was due under the New York judgment. Even if interest could be allowed from a date anterior to the judgment, which, under the verdict in New York, clearly could not be done, yet if that suit was in fact brought on the bill of exchange, as it purports to be, that, being payable in New Orleans, could only bear Louisiana interest, and that from the date of the judgment, which must be presumed to have comprehended all the interest then due. In violation of these principles the judgment of the Circuit Court was rendered, and on these grounds should be reversed. 5. Again, the petition sets forth that the petitioners, on or about December, 1846, recovered this judgment; whereas, the proof is that the judgment was signed in January, 1847; and even the hour and minute are set forth, 10.25 A. M. Mr. Ketchum, for the defendants in error, made the following points. I. The judgment in the Superior Court was properly entered against James D'Arcy, according to the law of the State of New York, and that judgment merged the demand on the promissory note, to recover which the suit below was brought. Carman v. Townsend, 6 Wend. 206; Opinion of Chancellor, Ibid. 209; Oakley v. Aspinwall, 2 Sandford's Superior Court Rep. 8. II. The petition not only sets forth the judgment, but avers that the same 66 was and is valid and binding upon said debtors in the State of New York, where the same was rendered as aforesaid," and also, "that said Gossip and Company was a commercial firm, composed of said G. H. Gossip and said James D'Arcy." Defendant below takes three exceptions to the petition. He does not deny in these exceptions "that the D'Arcy v. Ketchum et al. judgment was valid and binding upon said debtors in the State of New York," nor does he deny "that said Gossip and Company was a commercial firm," &c. Not having denied these allegations, they are admitted; the admissions, therefore, in point of fact, on the exceptions, are: 1. That judgment, such as that set forth, was recovered in the Superior Court of the City of New York. 2. That the judgment was valid and binding upon the debtors in the State of New York. 3. That Gossip & Co. was a commercial firm, composed of G. H. Gossip and James D'Arcy. These, as matters of fact, are admitted by the exceptions; but then it is denied in the exceptions that the judgment is one upon which suit can be brought against the defendant in this court; it is also alleged that the judgment does not follow the verdict, and that the same is not signed, and is not final, and not properly certified. III. The exceptions were rightly decided against defendant by the court below. IV. The motion for a new trial on 19th May, 1848, was made upon the ground that the judgment rendered in said suit was contrary to law and evidence, insomuch as by said judg ment an effect is given to the record of a judgment rendered and proceedings had in a court of the State of New York, superior to, and wholly different from, the effect which would be given to said judgment and proceedings so rendered and had in one of the courts of the State of New York in any court of the said State of New York. Had the plaintiff declared on the judgment, substantially, as he has stated his case in the petition, and had the defendant below demurred thereto, on the ground stated in the exceptions, on that demurrer judgment would have been rendered against defendant in the State of New York. Carman v. Townsend, 6 Wend. 206. V. If the cause was heard on the exceptions only, and judgment passed thereon, then a hearing on the plea and answer must have been waived by defendant's counsel. If the cause was heard on the whole case, and the decision made on the law and evidence, the court must assume that the decision was right, inasmuch as the evidence on which the judgment is founded is not given in the case. Mr. Justice CATRON delivered the opinion of the court. This case comes here on writ of error to the Circuit Court for the District of Louisiana; the proceeding below being by petition, according to the practice of that court. |