Nov. 1803. Fitch, V. Daniel Aicken. NEW-YORK, granted, that there was a fair and impartial trial had between thefe parties in the state of Vermont, and that by the laws Hitchcock and and ufage of that state, the judgment would be conclufive between the parties there. If fuch was not the cafe, it was incumbent on the defendant either to disclose it by pleading or fet it up as a defence, under a general plea. Nothing is here set forth in any way impeaching the juftice of this judgment, nor any allegation that it was irregularly or unduly obtained. If I am correct, then as to the true question presented by the cafe, and the object of the defendant was to go into an examination of the cause on his part, as if it had never been before tried, I fhould fay, it was not competent for him to go into fuch an examination, but that the judgment was conclufive between the parties. As a general rule on this fubject, I fhould confider judgments in neighbouring ftates, prima facie evidence of the demand, but liable to be opened and examined in the fame manner only as they would be in the state where they were rendered. This I think a plain and fimple rule, calculated to promote the ends of justice, and the one neceffarily refulting from the political connection between the states; impofed by the constitution, and law of the united government relating to this fubject. To fay that every action of flander, affault and battery, &c. or for a fraud, as was the cafe before us, and which had been fairly tried, and fully examined in a neighbouring ftate, and judgment rendered, should be again opened, as if no trial had been had, would be manifeftly unjust and tending to oppreflion. To fay that the judgment shall be conclufive between the parties would, in many inftances, be giving it a more binding force than it has in the state where rendered; and to put it on the footing of foreign judgments altogether, would be confidering that part of the conftitution relative to the records and judicial proceedings of other states as a dead letter: and befides, to say this judg ment is to be confidered in the light of a foreign judgment only, might perhaps leave the question doubtful and unsettled how far it was examinable. In the cafe of Walker vs. WhitDoug. Rep. 4. ter, it is decided that a foreign judgment is prima facie evidence of the debt, by which I understand the court to mean, Nov. 1803. Fitch, V. Daniel Aicken. that it is not incumbent upon the Plaintiff, in the first in- NEW-YORK, ftance, to prove the ground, nature and extent of the demand on which the judgment had been obtained. Thus far Hitchcock and I think judgments obtained in fifter ftates ought to be confidered analagous to foreign judgments; and in the cafe of Sinclair vs. Frafer, decided in the Houfe of Lords, on an ap- Doug.5. in note peal from the court of feffions in Scotland, the fame principle was adopted as to a foreign judgment being prima facie evidence of the debt; but the court there faid, that it was competent to the defendant to impeach the juftice of it, or to shew it to have been irregularly or unduly obtained. These would appear to be terms fufficiently broad to authorise the opening the judgment in every poffible cafe, for it would be impoffible to decide, whether injustice had been done by the original judgment, without examining the whole merits of the action. Independent, however, of this confideration, I cannot view the judgment obtained in the state of Vermont in the light of a foreign judgment only, without disregarding the conftitution of the United States, and the act of Congress, as having no relation to the subject. The 4th article of the conftitution declares, "That full faith and credit fhall be given in each state to the public acts, records and judicial proceedings of every other state, and the Congress may, by general laws, prefcribe the manner in which fuch acts, records and proceedings shall be proved, and the effect thereof." This article, I think, manifeftly presents two subjects for legislative provision:-1ft, To prescribe the manner of proving fuch acts, records and proceedings; and 2dly, their effect. In pursuance of this power we find Congrefs, by an act Laws U. S. vol. paffed the 26th of May, 1790, after prescribing the mode 1.159. of proof, declaring, "That the said records and judicial proceedings, authenticated as aforesaid, shall 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 state from whence the faid records are or shall be taken." The framers of this conftitution doubtlefs well understood the light in which foreign judgments were viewed in courts of justice, and must have intended, by this article, to place the states upon a different footing with refpect to each other than that Nov. 1803. Hitchcock and V. Daniel Aicken. NEW-YORK, on which they stood in relation to foreign nations; had not this been their intention, they would have been filent on the fubject. I am aware that the old confederation contained a fimilar article, declaring, that "Full faith and credit fhall be given in each of these states to the records, acts and judicial 4th article. proceedings of the courts and magiftrates of every other ftate." The conftruction to be given to this article, came in fome measure under confideration in feveral of the state courts prior to the adoption of the conftitution, but in no cafe, as far as my researches have extended, under circumftances analagous to the prefent; and, fo far as the cafes that I have examined look to the present question, I think we thall find principles recognized which are in perfect unifon with thofe I have adopted. In the cafe of James vs. Allen, decided in Pennsylvania, in the Court of Common Pleas, in Philadelphia county, in the year 1786, the question directly be fore the court was, whether the defendant's discharge from imprifonment, by virtue of an infolvent act of the ftate of NewJersey, would entitle him to a like discharge in Pennsylvania, and the court determined not. But the decifion was founded on the nature and terms of the New-Jersey infolvent act, faying it was a private act, local in its nature and local in its terms, and went no farther than to discharge him from imprisonment in the gaol of Effex county in the fate of NewJersey. And the cafe of Phelps vs. Holker, decided in the 1 Ludas, 261. Supreme Court of Pennsylvania, in the year 1788, was an I Dallas, 188. action of debt, brought on a judgment obtained in Maffachusetts, under their foreign attachment act, and the court decided that it was not conclufive, on the ground that it was a proceeding in rem, and ought not to be extended farther than the property attached, the act declaring that the judg ment and execution in a foreign attachment shall only go against the goods attached. The cafe of Kibbe vs. Kibbe, deKirby Rep. 115. cided in the fuperior court of the ftate of Connecticut, in the year 1786, was an action of debt upon a judgment obtained in Massachusetts, and the court refused to sustain the action, on the ground that the defendant had not been perfonally served with procefs to appear in the original cause. The court saying, full credence ought to be given to the Fitch, V. Daniel Aicken. 2 judgments of the courts in any of the United States, where NEW-YORK, Nov. 1803. both parties are within the jurifdiction of fuch courts at the time of commencing the fuit, and are duly ferved with Hitchcock and the process, and have or might have had a fair trial of the caufe. Thus we fee in these cafes that the court examined into the law of the state where the proceedings were had, in order to determine their operation and effect. But, as far as any decifion in the circuit court of the United States ought to have weight in giving a conftruction to the conftitution and act of Congrefs, we have the question settled in the cafe of Armstrong vs. Carfons, decided in Pennsylvania, Dallas, 302. in the year 1794. The question 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 New-Jersey; and Wilfon, juftice, faid, if the plea would be bad in the courts of New-Jersey, it is bad here; for whatever doubts there might be on the words of the conftitution, the act of congress effectually removes them, declaring, in direct terms, that the record fhall have the fame effect in this court as in the court from which it was taken. The rule intended by the court to be prescribed here, clearly was, the one which would have been adopted by the court in the state where the judgment was rendered. Although the act of congress does not adopt the term effect as ftated by the judge, yet, if it means any thing it means to declare the effect. 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 usage, in the courts of the ftate from whence the faid records are, or fhall be taken." If the conftitution, inftead of faying the records, &c. fhall have full faith and credit given them, had adopted the precife language of this act, 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 effect 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 effect, I do not fee why the act ought not to receive the fame construction. If nothing more was intended than to declare the manner of Nov. 1803. Fitch, V. Daniel Aicken. NEW-YORK, authenticating such records and proceedings, this part of the act is useless, nay worse, it is mischievous, being calculated Hitencock and to mislead. I am the more inclined to think congress intended to declare the effect because the rule there adopted, appears to me to be the only one that could, with propriety, be prescribed, as there was no general and uniform practice in the different ftates on this fubject. If a judgment, in the ftate of Connecticut, would not be conclufive there, but only prima facie evidence, it would be unreasonable to confider it conclufive here; and if conclufive there between the parties, I can fee no fubftantial reason against considering it fo here. When the matter has been once litigated and the merits fairly tried, it appears to me, to be contrary to found principles, and tending to promote litigation, and against the very genius and fpirit of the article of the constitution above referred to, again 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 justice and good fenfe, that the judgments of courts, in fifter states, ought to receive full credence where both parties were within the jurifdiction of the court at the time of commencing the suit, and were duly ferved with procefs, and had or might have had a fair trial of the cause. 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 competent for the defendant to go into evidence as to the merits of the original judgment. Livingston 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 justice is "impeachable, or, in other words, whether it is to be re"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 question, fo important, is to be decided without argument. To me, it appeared fomewhat extraordinary, on the first hearing of this cafe, that it fhould be attempted to open the judgment of a fifter state, when the party had been arrefted, and made his defence. It ftruck me as conclufive; and, that on being fatisfied of its existence, it was our duty |