The opinion of the court was delivered by
Aldis, J.
I. The first question in this case is, whether the judgment of a justice of the peace in the state of New York, acting within his jurisdiction, is to be received in this state as conclusive upon parties and privies thereto, as to all the facts adjudicated. The judgment was duly authenticated according to the act of congress. The evidence in the countVMpBfekowed that the judgment in New York would be conclr^ím^
The 4th article, section 1st o|«^i^Hnite^^tat^t constitution, provides, that “ full faith and cimiLshall MS^iveáÜmeach state to Jr 7j the public acts, records and |fu cirial pl^edjmps M every other state.” Is a. justice’s judgment ju^jal pa^Seeáfng within the meaning of the article ? Jjjjr
It was held in Massachusetts, in Warren v. Flagg, 2 Pick. 448, that the term “judicial proceedings” was intended to apply only to the proceedings of courts of general jurisdiction, and not to those- of magistrates, or of other courts of inferior and limited jurisdiction.
It was so held in New Hampshire, in Robinson v. Prescott, 4 N. H. 450, and Mahurin v. Bickford, 6 N. H. 567.
In Connecticut (Bissell v. Edwards, 5 Day 363), the judgment of a justice, rendered in states where justices hold courts of record, was held to be within the constitution and the act of congress, passed in 1790, prescribing the mode in which such records should be authenticated.
In some of the other states (New York, 3 Wend. 263, 7 Wend. 435; Ohio, 5 Hamm. 545), it has been held, that the act of congress, prescribing the mode of authenticating judicial proceedings, does not apply to justices’ judgments; but that, when proved in the common law mode, they are entitled to “ full faith and credit.”
In this state the early decision of the supreme court, in Inger[86]*86soll v. Van Gilder, 1 D. Chip. 59, adopted the doctrine, that such judgments were only “prima facie evidence of a debt.” That decision was made in January, 1797. In 1830, in Starkweather v. Loomis, 2 Vt. 573, the decision in Chipman’s reports was directly overruled. The court say, “that decision was made before the subject had undex-gone so much investigation in the several states as has occurred since that time. But when the subject came to be examined upon principle, and in conxxection with the statutes that give large jurisdiction to justices, this court felt constrained to decide, that though a justice has no clerk, yet, where the law requix’es him to keep records, he must be considered as his own clerk; and, if he has no seal, he may use a common seal, or may certify that he has no seal of office, as an excuse for omitting to attach one to his copies of record.” This decision was referred to and confirmed in Blodget v. Jordan, 6 Vt. 580, and may be regarded as the settled law of this state.
The conclusive effect of a judgment as evidence, rests upon the authority of the court, upon its acting within its jurisdiction, upon its preserving its decisions in proper records, and upon the policy and necessity of determining by law the end of controversy. These reasons apply to the judgments of justices of the peace as well as to any others. The argument that, as justices have no clerks nor seals, and cannot authenticate recox’ds in the mode prescribed by the act of congress, therefo-.their judgments are not entitled to full faith and credit, seems to rest upon the manner in which the court is organized, and its inability to comply with a particular form of authenticating its records, rather than upon thf broader and more solid ground of the authority .and j:.nisdictio/.. of the court, and the interest of the community that there should be an end to litigatioxx.
The decision in the 2d Vt. does not extend beyond the judgments of justices “ where the law requires them to keep recoi’ds.” In New York the justices are required by law to keep x’ecords. In Hard v. Shipman, 6 Barb. 621, Paige, J., says the judgment of a justice of the peace is as conclusive between the parties as the judgment of the highest court of recox’d, and it is entitled to take its rank as a record.
The record of the justice was proved in the court below, and is [87]*87referred to as a part of the ease. It is ample to show the questions that were litigated and the decision of the court.
II. But this defendant, Pier, is not a party to the record, and if bound by it, it must be because he was privy to the proceedings. This leads us to inquire whether Pier stood in such a relation to the suit tried by the justice as to be bound by the judgment.
It must be assumed, for the purposes of this hearing, that Pier warranted that the note was valid and given upon good consideration ; that Carpenter and Mace went before the justice by agreement and without antecedent process (as by the Code of Procedure in New York they had the right to do), and joined issue upon the note, Mace defending upon the ground that the note was without consideration and void; that Carpenter immediately notified Pier of the suit and the defense by Mace, and called upon him to sustain the suit; that Pier was present at the time and place set for trial, and, at his request, Carpenter procured a continuance to enable him to bring witnesses from Vermont to sustain the validity of the note; that he afterwards refused to have anything to do with the suit, and that, upon a trial on the merits, Mace obtained a judgment of nonsuit against Carpenter.
If a person sell real or personal property with a warranty of title, and the purchaser finds upon suit brought, that the validity of the title is denied, he may notify his warrantor to maintain the title in the suit so brought; and if the warrantor, upon reasonable notice and with a fair opportunity to maintain his rights in the suit, neglects or refuses to do so, and a recovery is had against the title so warranted, such judgment, if obtained without fraud or collusion, will be conclusive evidence against the warrantor upon every fact established by it. This principle is of familiar application in warranties of real estate. Brown v. Taylor, 13 Vt. 631. It is claimed to extend to all cases where a party has, by express agreement or by operation of law, a right of recovery over against another, and notifies such other to appear and defend the suit. 6 Johns 158; 7 Johns 173; 4 Binn. 352; 4 Mass. 349; 4 Dallas 436; 13 Johns 226; 4 Maule & Sel. 20; 7 Cranch 322.
It is sufficient for the decision of this case that such is the rule of law, where one transfers to another a note and warrants it to be valid and given upon good consideration. The cases of Warner [88]*88v. McGary, 4 Vt. 507, and of Walker v. Ferrin, 4 Vt. 523, though not directly deciding the question, as they finally turned upon other points, strongly indicate that the court intended to recognize such an application of the general principle.
In the first case, which was an action against the warrantor, Judge Williams says, “it was his duty to have furnished all the evidence in his power to enable the plaintiffs to maintain their suit. He was not at liberty to neglect or omit to procure this evidence, suffer the plaintiffs to fail of a recovery, and wait until he was sued on his warranty before he apprised the plaintiffs that such testimony could be found.” To the same point are
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The opinion of the court was delivered by
Aldis, J.
I. The first question in this case is, whether the judgment of a justice of the peace in the state of New York, acting within his jurisdiction, is to be received in this state as conclusive upon parties and privies thereto, as to all the facts adjudicated. The judgment was duly authenticated according to the act of congress. The evidence in the countVMpBfekowed that the judgment in New York would be conclr^ím^
The 4th article, section 1st o|«^i^Hnite^^tat^t constitution, provides, that “ full faith and cimiLshall MS^iveáÜmeach state to Jr 7j the public acts, records and |fu cirial pl^edjmps M every other state.” Is a. justice’s judgment ju^jal pa^Seeáfng within the meaning of the article ? Jjjjr
It was held in Massachusetts, in Warren v. Flagg, 2 Pick. 448, that the term “judicial proceedings” was intended to apply only to the proceedings of courts of general jurisdiction, and not to those- of magistrates, or of other courts of inferior and limited jurisdiction.
It was so held in New Hampshire, in Robinson v. Prescott, 4 N. H. 450, and Mahurin v. Bickford, 6 N. H. 567.
In Connecticut (Bissell v. Edwards, 5 Day 363), the judgment of a justice, rendered in states where justices hold courts of record, was held to be within the constitution and the act of congress, passed in 1790, prescribing the mode in which such records should be authenticated.
In some of the other states (New York, 3 Wend. 263, 7 Wend. 435; Ohio, 5 Hamm. 545), it has been held, that the act of congress, prescribing the mode of authenticating judicial proceedings, does not apply to justices’ judgments; but that, when proved in the common law mode, they are entitled to “ full faith and credit.”
In this state the early decision of the supreme court, in Inger[86]*86soll v. Van Gilder, 1 D. Chip. 59, adopted the doctrine, that such judgments were only “prima facie evidence of a debt.” That decision was made in January, 1797. In 1830, in Starkweather v. Loomis, 2 Vt. 573, the decision in Chipman’s reports was directly overruled. The court say, “that decision was made before the subject had undex-gone so much investigation in the several states as has occurred since that time. But when the subject came to be examined upon principle, and in conxxection with the statutes that give large jurisdiction to justices, this court felt constrained to decide, that though a justice has no clerk, yet, where the law requix’es him to keep records, he must be considered as his own clerk; and, if he has no seal, he may use a common seal, or may certify that he has no seal of office, as an excuse for omitting to attach one to his copies of record.” This decision was referred to and confirmed in Blodget v. Jordan, 6 Vt. 580, and may be regarded as the settled law of this state.
The conclusive effect of a judgment as evidence, rests upon the authority of the court, upon its acting within its jurisdiction, upon its preserving its decisions in proper records, and upon the policy and necessity of determining by law the end of controversy. These reasons apply to the judgments of justices of the peace as well as to any others. The argument that, as justices have no clerks nor seals, and cannot authenticate recox’ds in the mode prescribed by the act of congress, therefo-.their judgments are not entitled to full faith and credit, seems to rest upon the manner in which the court is organized, and its inability to comply with a particular form of authenticating its records, rather than upon thf broader and more solid ground of the authority .and j:.nisdictio/.. of the court, and the interest of the community that there should be an end to litigatioxx.
The decision in the 2d Vt. does not extend beyond the judgments of justices “ where the law requires them to keep recoi’ds.” In New York the justices are required by law to keep x’ecords. In Hard v. Shipman, 6 Barb. 621, Paige, J., says the judgment of a justice of the peace is as conclusive between the parties as the judgment of the highest court of recox’d, and it is entitled to take its rank as a record.
The record of the justice was proved in the court below, and is [87]*87referred to as a part of the ease. It is ample to show the questions that were litigated and the decision of the court.
II. But this defendant, Pier, is not a party to the record, and if bound by it, it must be because he was privy to the proceedings. This leads us to inquire whether Pier stood in such a relation to the suit tried by the justice as to be bound by the judgment.
It must be assumed, for the purposes of this hearing, that Pier warranted that the note was valid and given upon good consideration ; that Carpenter and Mace went before the justice by agreement and without antecedent process (as by the Code of Procedure in New York they had the right to do), and joined issue upon the note, Mace defending upon the ground that the note was without consideration and void; that Carpenter immediately notified Pier of the suit and the defense by Mace, and called upon him to sustain the suit; that Pier was present at the time and place set for trial, and, at his request, Carpenter procured a continuance to enable him to bring witnesses from Vermont to sustain the validity of the note; that he afterwards refused to have anything to do with the suit, and that, upon a trial on the merits, Mace obtained a judgment of nonsuit against Carpenter.
If a person sell real or personal property with a warranty of title, and the purchaser finds upon suit brought, that the validity of the title is denied, he may notify his warrantor to maintain the title in the suit so brought; and if the warrantor, upon reasonable notice and with a fair opportunity to maintain his rights in the suit, neglects or refuses to do so, and a recovery is had against the title so warranted, such judgment, if obtained without fraud or collusion, will be conclusive evidence against the warrantor upon every fact established by it. This principle is of familiar application in warranties of real estate. Brown v. Taylor, 13 Vt. 631. It is claimed to extend to all cases where a party has, by express agreement or by operation of law, a right of recovery over against another, and notifies such other to appear and defend the suit. 6 Johns 158; 7 Johns 173; 4 Binn. 352; 4 Mass. 349; 4 Dallas 436; 13 Johns 226; 4 Maule & Sel. 20; 7 Cranch 322.
It is sufficient for the decision of this case that such is the rule of law, where one transfers to another a note and warrants it to be valid and given upon good consideration. The cases of Warner [88]*88v. McGary, 4 Vt. 507, and of Walker v. Ferrin, 4 Vt. 523, though not directly deciding the question, as they finally turned upon other points, strongly indicate that the court intended to recognize such an application of the general principle.
In the first case, which was an action against the warrantor, Judge Williams says, “it was his duty to have furnished all the evidence in his power to enable the plaintiffs to maintain their suit. He was not at liberty to neglect or omit to procure this evidence, suffer the plaintiffs to fail of a recovery, and wait until he was sued on his warranty before he apprised the plaintiffs that such testimony could be found.” To the same point are Boorman v. Johnson, 12 Wend. 446, and Barney v. Dewey, 13 Johns. 224. If the suit had been brought by Carpenter against Mace in this state, and the warranty and notice had been proved as stated in the exceptions, it is clear that Pier would have been a privy to it, so that the judgment would have concluded him from afterwards contesting the merits of the controversy. Without deciding that mere notice to appear and defend the suit in another state would give the foreign court such jurisdiction as would bind the warrantor by the judgment, we think that the further facts which appear, namely, that Pier was present at the time and place of trial, and procured a continuance of the case to enable him to bring witnesses to sustain the action, so make him privy to the suit that he was not at liberty after that to refuse to have any thing to do with the suit; but that he thereby became so subject to the jurisdiction and so a privy to the suit as to be concluded by the judgment. If there had been any fraud or collusion between Carpenter and Mace in in procuring the judgment, or any advantage taken by them in such proceedings to deprive Pier of fairly maintaining his rights in the suit, then he would not be concluded by the judgment. But nothing of this kind is stated in the bill of exceptions.
III. It is urged by the counsel for the defendant that the agreement of Carpenter and Mace to go before the justice and join issue upon the note, was in the nature of an arbitration; that the jurisdiction of the court was thus derived from the consent of the parties, and that Carpenter had no power to bind Pier to submit his rights to the decision of such a tribunal. The law which regulates and authorizes the proceedings in New York under the Code [89]*89of Procedure, as proved upon the trial, shows that what the parties did in this case was merely the institution of a suit, without previous process, in a court established by law, and was not in the nature of an arbitration. It resembles the beginning of a suit in this state by the defendant’s accepting service of the writ. The proceedings in the justice’s court were regultated by law, and the rights of the parties were preserved and protected the same as if the suit had been begun with the usual service of process. As Pier’s rights could not have been impaired by this mode of proceeding we see no ground for relieving him from the legal effect of the judgment.
IY. The waiver by Carpenter of his claim to recover the amount of his note above the sum of one hundred dollars, and thus bringing the suit within a justice’s jurisdiction, has also been urged as being such a departure from the ordinary course of legal proceedings as should have discharged Pier from all liability to appear in that suit. The case shows that by the laws of New York a plaintiff has the right to waive a recovery for a larger sum than one hundred dollars, and that when he does so, the justice has jurisdiction. If Pier’s rights were impaired by such act of Carpenter, the judgment so recovered ought not to conclude him; but we do not perceive that he could have been thereby injured. The excess above the one hundred dollars which Carpenter waived, he must lose. He can only recover of Pier the amount of the judgment rendered by the justice. As to the tribunal by which the suit should be tried — whether by a justice or a higher court — we think Pier had not the right to determine it against the consent of Carpenter, so long as Carpenter was willing to lose the amount of his claim above the justice’s jurisdiction. If a new suit had been brought in a higher court, Carpenter must have been the nominal plaintiff, and thereby liable in the first instance for the costs. He might well refuse to enter upon such litigation. On the other hand, Pier had it in his power, by paying Carpenter the amount of the note, to control the note and have it sued when and where he pleased.
The supreme court of this state has decided in Danforth v. Streeter, 28 Vt. 490, and in Herren v. Campbell, 19 Vt. 23, that a plaintiff may abandon a portion of his demand, may indorse a note [90]*90to an amount below one hundred dollars, for the mere purpose of bringing his suit before a justice; and that the defendant is not entitled to have the action dismissed in order that a new one may be brought in the county court. The defendant, in such a case, might insist upon a trial in a higher court for the same reasons that are here urged on behalf of this defendant.
The omission of the plaintiff to insist, till near the close of the trial, that the judgment was conclusive, and his introduction of testimony to show the note void, did not preclude him from making the request which he did in regard to the charge to the jury. The court was bound, whether requested or not, to charge the jury correctly as to the legal effect of the evidence.
We think the charge of the court erroneous in instructing the jury that the judgment of the justice in New York was under the evidence as offered and claimed by the plaintiff, merely prima facie evidence against the defendant, that the note was not given for a go.od consideration.
Judgment of the county court reversed.