rehearing">

Same Case — On a Re-iiearing.

Mkrkick, C. J.

On a reexamination of the record of the case before the Court of Common Pleas of New York, offered in evidence in this case, we cannot find that any process was served upon the defendant, George C. Bogart. Toby ans- * wered the suit, but only for himself. It seems to us, therefore, quite clear, that the New York judgment could not bind Bogart, particularly as the plaintiffs, under their New Orleans name, were parties to the insolvent proceedings, and were bound by the decree homologating the deliberation of the creditors discharging Bogart from liability. C. C. 2173; Gurlie v. Flood, 11 Rob. 166; 5 An. 501.

It is urged that we are bound to presume that the proceedings in the Court of Common Pleas were regularly conducted according to the maxim, omnia pree-sumunter rite esse acta.

We think it would be carrying the doctrine of presumptions too far when invoked to defeat a solemn judgment of our own courts with the proper parties before them in order to give effect to a foreign decree.

It is again urged that the service upon one partner must be held sufficient to bring both into court. But the common law prevails in New York, and it is necessary under the common law that process should be served upon each member of a commercial firmmoreover, the domicil of Bogart, Williams & Co. was New Orleans and not New York. Walworth v. Henderson, 9 An. 339.

In regard to the defendant, Toby, the case is different. He was a party to the suit in the Court of Common Pleas. He went into bankruptcy in February, 1855, after the suit was commenced against him in New York. The creditors voted a discharge, which was filed and homologated in April, and the decree was finally’signed on the first day of May, 1855, discharging Bogart and Toby from all the debts placed on their bilan, which included the debt in controversy.

This judgment was doubtless binding upon the plaintiffs, for they were cited by their New Orleans name, B. H. Thorne <& Co., and were parties to it. At this time the New York suit was still pending, and this final judgment of a competent court might have been pleaded in bar of that suit. The courts of New *263York were bound, under the Constitution and laws of the United States, to give it its effect. It was a' defence which would have been as availing as the plea of payment or set-off. Rut this defence was not pleaded, and the cause in New York was continued until October, 1855, when it was tried and a judgment rendered against Toby and Bogart.

As to Toby, who was a party, the original cause of action was annihilated and merged in the judgment. In the place of the debt, Toby became bound by a judgment which, by the Constitution and laws of the United States, was as obligatory upon him in every other State of this Union as in the State of New York. Const. U. S. Art. 4, sec. 1; Act of Congress 26th May, 1190 ; Mills v. Duryee, 7 Cranch, 481, (2 condensed 578,) Hampton v. McConnell, 3 Wheaton, 234, (4 condensed R. 243,) 7 An. 334.

The question is then presented in the conflict between the two decrees upon the same subject-matter, one discharging the debtor and the other decreeing him to pay the same debt, which shall prevail ? It seems to us, that the one last rendered must have effect, for it was in the power of the defendant in the last suit to have pleaded the former one in bar, and not having done so, he must be presumed to have waived his plea of res judicata. By the judgment, which absorbs the defence he might have made, he becomes indebted to his creditor by a new title.

Our judgment must be set aside as to G. C. Bogart1 and the judgment of the lower court affirmed in regard to him.

It is, therefore, ordered, that so much of the decree heretofore rendered by us as reverses and avoids the judgment of the lower court as to the said George C. Bogart, be set aside, and that the judgment of the lower court, sustaining his exceptions, be affirmed, and that the judgment of this court as to the other defendant, Simeon Toby, jr., overruling his exceptions and remanding this cause for further proceedings remain undisturbed, and it is further ordered, that the plaintiffs and Simeon Toby each pay one-half of the costs of the appeal.

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