•juJgments of the courts in any of the United States, where NF.W-YORK, both parties are within the jurifdidtion of fuch courts at \^^^-**J the time of commencing the fuit, and are duly ferved with HltCj.cofk *n* \\~ie procefs, and have or might have had a fair trial of the v

r Ti. r L t r i_ i • j Daniel Aicken.

cauie. ihus we lee in thele cafes that the court examined _

iuto the law of the ftate where the proceedings were had, in order to determine their operation and efle£t. But, as far as any decifion in the circuit court of the United States ought to have weight in giving a conftrudtion to the conftitution and adt of Congrefs, we have the queftion fettled in the cafe of Armftrong vs. Carfons, decided in Pennfylvania, Dallas ,oai in the year 1791. The queftion before the court was, whether nil debet was a good plea to an action of debt on a judgment obtained in the fuperior court of Ncw-Jerfey ; and Wilfon, juftice, faid, if the pica would be bad in the courts of Nrw-Jerfey, it is bad here; for whatever doubts there might be on the words of the conftitution, the adt of congrefs effectually removes them, declaring, in direct terms, that the record (hall have the fame effect in this court as in the court from which it was taken. The rule intended by the court to be prefcribed here, clearly was, the one which would have been adopted by the court in the ftate where the judgment was rendered. Although the adl of congrefs does not adopt the term effcB as ftated by the judge, yet, if it means any thing it means to declare the efled. It fays, "The faid records and judicial proceedings, authenticated as aforefaid, fhall have fuch faith and credit given to them, in every court within the United States, as they have, by law or ufage, in the courts of the itate from whence the faid records are, or fhall be taken." If the conftitution, inftead of faying therecords, &c. fhall have full faith and credit given them, had adopted the precife language of this aft, it appears to me, there would have been but little doubt but that it would have been confidered equivalent to declaring fuch records to have the like effeil in every court within the United States as in the courts of the ftate where rendered. It being a fubject within the power of congrefs to declare the ejfecl, I do not fee why the act ought not to receive the fame conftrudtion. If nothing more was intended than to declare the manner of


NEW-YORK, authenticating fuch records and proceedings, this part of the

\^^y~m^ zQ. is ufelefs, nay worfe, it is mifchievous, being calculated

Hlt<Fitchk and t0 m^ea(l- I am die more inclined to think congrefs intend

.,*:,. ed to declare the effeft becaufe the rale there adopted, ap

pears to me to be the only one that could, with propriety,be

prefcribed, as there was no general and uniform pracoce in the different ftates on this fubje£t. If a judgment, in the ftateof Connecticut, would not be conclufive there, but only prima facie evidence, it would be unreafonable to confident conclufive here; and if conclufive there between the parte.-, I can fee no fubftantial reafon againfl confidering it fo here. When the matter has been once litigated and the merits fairly tried, it appears to me, to be contrary to found principle?, and tending to promote litigation, and againfl the very genius and fpirit of the article of the conftitution above referred to, agiiin to open the judgment. I think the rule laid down by the court in the cafe of Kibbe vs. Kibbe, above cited, is founded in juftice and good fenfe, that the judgments of courts, in fifter ftates, ought to receive full credence where both parties were within the jurifdiftion of the court at the time of commencing the fuit, and were duly ferved with procefs, and had or might have had a fair trial of the caul;-. This I take to have been the fituation of the cafe now before us, and on this ground, I am of opinion, it was not coupetent for the defendant to go into evidence as to the merits cf the original judgment.

Livingfton J. This is an action of debt on a judgment of the Supreme Court of Vermont, and we are to determine. "whether, after a full defence in that ftate, its juftice is "impeachable, or, in other words, whether it is to be rc"garded as a foreign judgment, and as fuch, only prima "facie evidence of a debt."

As the court are not unanimous, it is matter of regret. that a queftion, fo important, is to be decided without a:gument. To me, it appeared fomewhat extraordinary* on the firft hearing of this cafe, that it fhould be attempted ru open the judgment of a fifter ftate, when the party had beet arrefted, and made his defence. It {truck me as conclufive: and, that on being fatisfied of its exiftence, it was onr dun to enforce it, without examining into the grounds of it, or NEW-YORK, into the conduct of the court or jury, who decided it. \^r-~^-mm^' Thefe imprefiions, inftead of being effaced, have acquired Hhc^,°,£ wd ftrencth from pofterior refearch. „ . ,v;. .

By the common law of England, the consideration of fo- _ ,

reign judgments need not be ilated in the declaration, for Doug. j. they are received as evidence of debt, liable to be impeached by the defendant, on the ground of injuftice, or becaufe of being irregularly, or unduly obtainedt When a perfon, having obtained judgment in one court, applies to the tribunal of another ftate to put it in force, the interpofition of the latter, it is faid, is not est neceflitate, but only ex comitate, and, therefore, it may enquire into the original merits, to fee, whether there be a good ground for awarding execution} otherwife, it might function inj uftice. This reafonlng is plau-^ fible, and has been adopted, among others, by Lord Kaims in his Principles of Equity, a work, of which no profeffional gentleman fhould be ignorant. But, with proper deference, I muft be allowed to obferve, that this method of treating a foreign judgment, renders it little better than a dead letter^ If the whole merits are to be reviewed, the party may as" well recur at once to his original caufe of action, as to a record which the defendant is at liberty thus to impeach. Where he has appeared, and the matter has been fully litigated "before a foreign tribunal, it would perhaps be a rule lefs liable to exception to admit it, without any examination, as- conclufive of every thing within it, between the immediate parties thereto. The rule, however, in England, and the praftife here, are otherwife; nor can I perceive, in any of the cafes, a difference between the effect: of a foreign judgment by default, and one where a defence had been interpofed, although Lord Kaims appears to think a diftinction extfts. For, after ftating a cafe, in which a court in Scotland refufed to carry into effect a judgment rendered by the king's bench, heobferves, that this decree was revcrfed by the houfe of Lords, becaufe, " in England, the decree of a foreign fu"♦'jreme court has fuch credence, that judgment is immedi"ately given, without entering into the merits, provided the Principle of

"matter fas been litigated." Finding no authority for this E'luity375'

NEW-YORK, distinction, found as it is, I am not at liberty, if the judg

v^p-v-^^/ ment before us is to be regarded as a foreign one, to avail

IiUC Vit^h *U<J myfelf of it, in deciding this caufe, and to fay, here the mat

_ . ,v- , ter was litigated, and therefore the judgment is conclufive. Daniel Aicken. o » .

, It becomes necefiary then to enquire, whether, by the

conilitution of the United States, any difference be created in this particular, between judgments 'rendered out of, and within die United States. The former, for the fakeoi diftindrion, we will call foreign, the latter, domeftic judgment, although this appellation in common parlance be confined to judgments of our own courts.

We cannot fuppofe that thofe who penned the conftihition, were ignorant that a judgment, when the groundof action in its native ftate, if the expreffion be allowed, could not be contefted, while others were fubje£ted to the ftrideil fcrutiny. In the latter defcription, were included, as well judgments recovered extra tcrritorium, as within any one of the, which at commonlaw were all on the Lime footing. To introduce a diftinction between domeftic and foreign judgments, and to place the former on the moft favoured footing, mull have been their intention \ othcrwife, they would have been filent, or ufed terms declaratory only of the common law, fo as to render them evidence of debt, but not conelufively fo. It remains to be afcertained whether this intention has been well exprefled, or whether the terms uicd, are fo ambiguous or unintelligible as to render this article of the conftitution fenfclefs and nugatory, which muft be the cafe, if the juflice of this judgment can be examined by us. When the object of an instrument admits of uo doubt, we fhould not haitily reject the expreflions as not adequate, or incompetent thereto. Without too much coriiti jining their meaning, it is our dutv, if they will beat At ltnfe which they were intended to convey, to umterltand them ■accordingly. The full feet ion of the fourth article declares "That (ull faith and credit lhall be given in each ftate, to the "public acts, record:;, and judicial proceedings, of every o"ther ftate. And congrefs may, by general laws, prefcribe ♦' the manner in which fuch acts, records, and proceedings "{hall be proved, and the effcel thereof:' It is difficult to

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make choice of language more apt to render a domeftic judg- NEW-YORK,

merit as binding here, as if it had been obtained in one of v^^-v—**y

ourown courts. What other fignification, fo natural or obvi- HitCyCj^£ an<!

ous, can be affixed to the terms" full faith and credit? as „ , .*■ .

J J Daniel Aicken.

that whentheexiftenceof thefe judgments is once eitablifhcd

afcertain which required no conititutional provifion)fhey shall be received as containing the whole truth and right between the partie-, and that the matters, or points fettled by tern fhalJ not be drawn intodifpute elfewhere. If open to tigation, there is an end of all faith and credit whatever, and the pretentions of the parties are inveftigatcd as if they had not already been difcufied, and properly adjufted. Now, to give full faith and credit to a record, cannot coniift with not believing it ourfelves, or permitting others to make a

Irerments againft it. If the conitttution impofes on us the firfl of thefe duties, we difregard the injunction the moment we allow others, or permit ourfelves to difcredit or impeach a domeftic judgment. I am at a lofs to conceive, how the true import of this article coukl ever become a fubje£t of debate, or receive a conftruclion deftroying it altogether, and with it, one cement of union between thefe ftates. When we give credence to an inftrument we do not barely believe in its being or exiftencc, but, aflcnt to its contents j fo if credit be given to an ambaflador, by the court to which he is fent, the latter do not thereby only admit that he is inverted with that charadter, but that what he fays is true. It is the fame when a witnefs is credited ; it i<; his relation which is believed ; not merely that he appears as a witnefs. In like manner, if full faith and credit be given to a depofition, it does not only imply, that we admit there is fuch a writing', bat that we fully and implicitly rely on its contents. Why fhould a different meaning be adopted when fimib.r terms are applied to a judgment? If we take them in the fame fenfe, and in my eftimation, they admit of no other, then, by giving full faith and credit to a judgment, we not only ajrree that fuch judgment has been rendered, (which depends altogether on the proof of that (.-fl) but that we believe it to be juft, and that the matter, in difpute, was properly decided. If it be othcrwife, fo long as we obey a conftitatkm

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