Carter v. Wilson

• Decision Date: 31 December 1835
• Citation: 18 N.C. 362
• Court: North Carolina Supreme Court
• Parties: JESSE CARTER v. GEORGE L. WILSON.

18 N.C. 362

JESSE CARTER

v.GEORGE L. WILSON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1835.

1. When a record from one State of our Union is declared on or pleaded in bar in another, the only proper plea or replication is nul tiel record; and that, both as to its existence and effect, is to be passed on by the Court upon inspection, and not by the jury.

2. What is the effect of an entry in the record of a suit in Virginia, that "by consent of the parties it is ordered by the Court that this cause be dismissed, and that the defendant pay to the plaintiff his costs by him in this behalf expended"? Qucere.

THIS was an action brought on a covenant of soundness in a bill of sale for a slave sold by the defendant to the plaintiff. The defendant pleaded several matters, one of which was a former judgment in an action between the same parties, upon the same covenant, for the same damages, in the Superior Court of law for the county of Pittsylvania, in the State of Virginia. Upon the trial at CASWELL, on the last circuit, before his Honor, Judge Norwood, the jury was charged with all the issues joined on the defendant's pleas, including that of the former judgment; and to support it on the part of the defendant, he offered in evidence to the jury a transcript of the record of the Court in Virginia of an action of covenant upon the same, or a like covenant with that sued on in the present action, in which, after stating an issue joined on the plea of covenants not broken, it is set forth that "by consent of the parties it is ordered by the Court that this cause be dismissed and that the defendant pay to the plaintiff his costs by him in this behalf expended"; and it is further set forth that the defendant paid the sum of seven dollars and seventy-six cents, for the plaintiff's costs, taxed tohim in that suit. The counsel for the plaintiff moved the Court to instruct the jury that, in the absence of evidence of the law of Virginia, as to the nature and effect of the entry or judgment stated in the record from that State, it was the province of the jury to determine the same, as a matter of fact. The Court refused to give the instruction as prayed for; but directed the jury, that if they were satisfied that the suit in Virginia was upon the same subject-matter with the present, the transcript did show a former judgment in favor of the plaintiff, which barred his present action. The jury did not pass upon any other of the issues, but found

a verdict upon this alone—that there is a former judgment in favor of the plaintiff for the same cause of action as pleaded by the defendant; upon which there was judgment for the defendant, and the plaintiff appealed.

II. If the Court shall decide that the common law obtains in Virginia, the instruction given to the jury was wrong, as the entry determining the cause there does not import a judgment, which is a bar to a future action. A judgment is "the sentence of the law, pronounced by the Court upon the matter contained in the record," and consists of two parts: 1. A statement of the facts, either admitted by the partiesor found by a jury. 2. A formal entry of the decision thereupon. 3 Thomas's Co. Litt., 506 n. Here there was no statement of facts, having any reference to the judgment. Nor was there any formal entry of judgment, which is equally essential, for an entry of dismission is no judgment at law. Banbury's case, 3 Salk., 213. A dismission may be for insignificance. Egerlon v.—————, 21 E. C. L., 420. Again, if it be a judgment, it must either be on a nolle prosequi, discontinuance, nonsuit, or retraxit. If either of the three first, the Judge was wrong, for neither of them is a bar to a future action. Nor is it a retraxit, for that implies an abandonment of the plaintiff's claim, acknowledged on the record; and this must unequivocally appear, by

the use of the terms retraxit se (withdraws himself), or others of the same signification. 3 Thomas's Co. Litt., 501.

It by no means follows, that because there has been a former suit between the parties, in which the same subject-matter was incidentally considered, a new action is barred. The true inquiry is, whether the point now in issue has been litigated and determined. Seddon v. Tutop, 6 Term, 607; Godson v. Smith, 4 E. C. L., 410.

3. The order in favor of the plaintiff for the recovery of costs can make no difference. Costs are merely collateral to the main controversy, and were not allowed by the common law when the forms of entries were settled and their effect determined.

RUFFIN, C. J., after stating the case as above, proceeded: The counsel for the plaintiff has insisted here upon the objection taken in the Superior Court; and also that the entry in the transcript is not such a judgment as bars a second action, but is only in the nature of a nonsuit. Upon the first point it is argued, that although the judgment of the Court of another State is conclusive evidence in this, yet it is so only as to those matters of which it is conclusive in the State in which it was rendered; of which our courts cannot take notice judicially, but that evidence is to be givenwhich, as in other cases of foreign law, must be submitted to the jury, as upon a...