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on which they stood in relation to foreign nations, had not Nov. 1803.

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 hallbe given in each of these states to the records, acts and judicial 4th article. proceedings of the courts and magistrates of every other state.” The construction to be given to this article, camein fome meafure under confideration in feveral of the late courts prior to the adoption of the constitution, but in 10 cafe, as far as my refearches have extended, under circumstances analagous to the prefent; and, fo far as the cafes that I have examined look to the present question, I think we hill find principles recognized which are in perfect union with those 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 directlybefore the court was, whether the defendant's diffharge frominiprifonment, by virtue of an infolvent act of the state 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 ad, faying it was a private act, local in its nature and localin its terms, and went no farther than to discharge him fromim. prisonment in the gaol of Effex county in the flate of N'jerfey. And the cafe of Phelps vs. Holker, decided in the 1,...las, 26. Supreme Court of Pennsylvania, in the year 1788, was in action of debt, brought on a judgment obtained in Maílichufetts, under their foreign attachment act, and the court decided that it was not concluffve, on the ground that it was a proceeding in rem, and ought not to be extended fulf than the property attached, the act declaring that the judg: ment and execution in a foreign attachment hall only go against the goods attached. The case of Kibbe vs. Kibbe," Kirby Rep. 119, cided in the fuperior court of the state of Connecticut." the year 1786, was an action of debt upon a judgment" tained in Maffachusetts, and the court refused to fuitain the action, on the ground that the defendant had not been P" fonally ferved with process to appear in the original cause. The court faying, full credence ought to be given to th:

V.
Daniel Aicken.

1 Dallas, 188.

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V.

302

judgments of the courts in any of the United States, where NEW-YORK,

Nov. 1803. both parties are within the jurisdiction of such courts at the time of commencing the suit, and are duly served with Hitchco

Fitch, the process, and have or might have had a fair trial of the

Daniel Aicken, cause. Thus we see in these cases 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 decision in the circuit court of the United States ought to have weight in giving a construction to the constitution and act of Congress, we have the question settled in the case of Armstrong vs. Carsons, decided in Pennsylvania, , in the year 1794. The question before the court was, whether nil debet was a good plea to an action of debt on a judga ment obtained in the fuperior court of New-Jersey; and Wilson, justice, said, 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 constitution, the act of congress effectually removes them, declaring, in direct terms, that the record shall have the same 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 stated by the judge, yet, if it means any thing it means to declare the effect. It says, “ The faid Tecords and judicial proceedings, authenticated as aforesaid, fhall have such 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 state from whence the said records are, or shall be taken.” If the constitution, instead of saying the records, &c. shall have full faith and credit given them, had adopted the precise language of this act, it appears to me, there would have been but little doubt but that it would have been considered equivalent to declaring such records to have the like effect in every court within the United States as in the courts of the state where rendered. It being a fubject within the power of congress to declare the effect, I do not fee why the act ought not to receive the same construction. If nothing more was intended than to declare the manner of

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v. Daniel Aicken.

NEW-YORK, authenticating such records and proceedings, this part of the Nov. 1803.

act is useless, nay worse, it is mischievous, being calculated Hitcncock and to mislead. I am the more inclined to think congress intendFitch,

ed 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 states on this subject. If a judgment, in the state of Connecticut, would not be conclusive there, but only prima facie evidence, it would be unreasonable to consider it conclusive here, and if conclusive there between the parties, I can see no substantial reason against considering it so here. When the matter has been once litigated and the merits fairly tried, it appears to me, to be contrary to sound principles, and tending to promote litigation, and against the very genius and spirit 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 case of Kibbe vs. Kibbe, above cited, is founded in justice and good sense, that the judgments of courts, in sister states, ought to receive full credence where both parties were within the jurisdiction of the court at the time of commencing the suit, and were duly served with process, and had or might have had a fair trial of the cause. This I take to have been the situation of the case 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 state, its justice is “ impeachable, or, in other words, whether it is to be re“ garded as a foreign judgment, and as such, only prima « facie evidence of a debt.”

As the court are not unanimous, it is matter of regret, that a question, so important, is to be decided without argument. To me, it appeared somewhat extraordinary, on the first hearing of this case, that it should be attempted to open the judgment of a fifter state, when the party had been arrested, and made his defence. It struck me as conclufive; and, that on being satisfied of its existence, it was our duty

to enforce it, without examining into the grounds of it, or N£k. - - W. 3.

into the conduct of the court or jury, who decided it. Q:/

These imprefions, instead of being effaced, have acquired His' and

trength from posterior research. By the common law of England, the confideration of foreign judgments need not be stated in the declaration, for they are received as evidence of debt, liable to be impeached by the defendant, on the ground of injustice, or because of being irregularly, or unduly obtained. When a person, having obtained judgment in one court, applies to the tribunal of another state to put it in force, the interposition of the latter, it is faid, is not ex nece/tate, but only ex comitate, and, therefore, it may enquire into the original merits, to fee, whether there be a good ground for awarding execution; otherwise, it might sanctioninjustice. This reasoning is plaufible, and has been adopted, among others, by Lord Kaims in his Principles of Equity, a work, of which no profeffional gentleman should be ignorant. But, with proper deference, I must be allowed to observe, 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 cause 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 less liable to exception to admit it, without any examination, as conclusive of every thing within it, between the immediate parties thereto. The rule, however, in England, and the practise here, are otherwise; 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 distinction exits. For, after flating a cafe, in which a court in Scotland refused to carry into effect a judgment rendered by the king's bench, he observes, that this decree was reversed by the house of Lords, because, “in England, the decree of a foreign fu“preme court has fuch credence, that judgment is immedi“ately given, without entering into the merits, provided the

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"matter has been litigated.” Finding no authority for this Equity 375.

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

Nov. 1803. Hitchcock and Fitch

V. Daniel Aicken.

ment before us is to be regarded as a foreign one, to avail
myself of it, in deciding this cause, and to fay, here themat-
ter was litigated, and therefore the judgment is conclusive.
It becomes neceffary then to enquire, whether, by the
constitution of the United States, any difference be created
in this particular, between judgments rendered out of,
and within the United States. The former, for the fake of
distinction, we will call foreign, the latter, domestic judg:
ment, although this appellation in common parlance be
confined to judgments of our own courts.
, We cannot fuppose that those who penned the constitu-
tion, were ignorant that a judgment, when the groundofa-
tion in its native flate, if the expresfion be allowed, could
not be contested, while others were fubjected to the firidet
fcrutiny. In the latter description, were included, as well
judgments recovered extra territorium, as within anyonedf
the United States, which at commonlaw were all on the same
footing. To introduce a distinction between dometic and
foreign judgments, and to place the former on the most fa-
voured footing, must have been their intention; otherwise,
they would have been filent, or used terms declaratory only
of the common law, fo as to render them evidence of debt,
but not conclufively fo. It remains to be afcertained whe-
ther this intention has been well expreffed, or whether the
terms used, are fo ambiguous or unintelligible as to render
this article of the constitution fenfeless and mugatory, which
must be the cafe, if the justice of this judgment can be e-
amined by us. When the object of an instrument admits of
uo doubt, we should not hastily reject the exprefions as"
adequate, or incompetent thereto. Without too much con-
itraining their meaning, it is our duty, if they will bear the
fense which they wereintended to convey, to underland them
accordingly. The firit fection of the fourth article declare,
“That full faith and credit hall be given in each state, totle
“public acts, records, and judicial proceedings, of every*
“ther state. And congreis may, by general laws, prelate

“the manner in which fuch acts, records, and proceeding, “shall be proved, and the fect thereof.” It is difficult."

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