The principal and only question which it is deemed material to consider, is, as to the effect of the former judgment recovered in the attachment suit in the State of Louisiana. The Court ruled, that the original cause of action was merged in the judgment, and held it a bar to the present action. This opinion appears to have controlled the verdict, and to have been the ground of the judgment rendered for the defendant in the case ; in which, we think, the Court erred.
Had there been personal service upon the defendants, or had they appeared and answered to the suit in which the judgment was rendered, in Louisiana, a very different case would have been presented, and one to which the principle of law, maintained by the Court, would have been applicable. But the proceeding was by attachment. It appeared that the defendants were non-residents, and that they resided in this State ; and there was neither the service of process upon, nor any appearance by them. Consequently, except as to the property attached, the Court had not jurisdiction. Its judgment was not evidence of indebtedness, or at all operative in personam ; and, of consequence, it could not operate to merge or extinguish the original cause of action, or to bar the right of action upon it in this State. “ Whether jurisdiction be founded upon “ the person being within the territory, or the property being “ there, the judgment will be deemed valid, so far as the juris- “ diction could legitimately extend ; but no farther. Thus, a “ very common course, in many of the United States, and in “ many other countries, is to proceed against non-residents, by “ an arrest or attachment of their property, within the terri“tory. Judgment obtained upon process of this kind, will “ generally bind the property so arrested or attached; for to “ that extent the Court has or can have jurisdiction. But such “judgment will not be regarded by neighboring States or other “ nations as evidence of indebtedness, or as operative in any *537“ measure in personam; and for this very obvious reason, viz: “that except so far as the property attached is concerned, “ there is and can be no jurisdiction, no power of adjudication.” (Cowen & Hill’s Notes to Phill. Ev. Part 2, p. 111, n. 59, and numerous cases cited.)
If the property attached had been sold, or appropriated by the proceeding in attachment, it would have operated as a payment or satisfaction, pro rata, of the original cause of action; but not as a merger of it. But it appears the property was replevied, and restored to the possession of the defendants; and the proceeding, therefore, is without force or validity, and can be of no avail to either plaintiff or defendant therein, in any suit thereafter instituted, upon the same cause of action, in the. Courts of this State. If, as suggested, the judgment was satisfied by the present plaintiff, that certainly was a good consideration for the assignment and transfer of the cause of action to him; but surely it cannot be contended that it extinguished the cause of action, as to the defendants.
The question of the effect of the want of notice of the dishonor of the bill, can be better determined upon the evidence upon another trial. We are of opinion that the judgment be reversed and the cause remanded.
Reversed and remanded.