Nov. 1803. Hitchcock and I ought here to notice the cafe of Armstrong v. Executors NEW-YORK, of Carfon, as leaning against the conclufions I have drawn. It was an action of debt, brought in the circuit court of the Fitch, United States for Pennsylvania district, on a judgment obtained in the state of New-Jersey. V. Daniel Aicken. The question was, whether the plea of nil debet was good, 2 Dallas 302. and the court was of opinion, the plea being bad in NewJerfey, was bad there alfo, for that whatever doubts there might be on the words of the conftitution, the act of congrefs effectually removed them, by declaring in direct terms that the record fhould have the fame effect in that court, as in the court from which it was taken. But the reafon given for this opinion, if the report of the cafe be correct, is clearly founded in mistake. The act of congress does not declare the record fhall have the fame effect, but only the fame faith and credit, and there is a manifeft and effential difference between the one mode of expreffion and the other. If, therefore, as the court intimated, there were doubts on the words of the conftitution, thofe doubts, fo far from being removed, are rather increafed by the law. The language of the constitution is, at least, as cogent and comprehenfive, if not more fo, than the language of the law. It is pretty evident, that the conftitution meant nothing more by full faith and credit, than what refpected the evidence of fuch proceedings; for the words are applied to public acts, as well as to judicial matters, nor ought the act of congrefs to be carried further than the words will warrant. When we reflect in what manner judgments may, in fome inftances, be obtained, as in the cafes cited by the attachment of a handkerchief or blanket, it is more favorable to the harmony of the union, and to public juftice, that the judgments of the feveral ftates fhould be put on the footing of foreign judgments, than that they fhould be held abfolutely binding and conclufive, or as much fo, as they may be by the laws of the ftate which authoriled'the proceeding; and if we may queftion the binding force of the proceeding or judgment in one cafe, we may in another; for, the act of congrefs has no exceptions, and must receive an uniform. Nov. 1803. Hitchcock and V. Daniel Aicken. NEW-YORK, conftruction. If a debtor be discharged from imprisonment, or from his debts by the infolvent act of fome other state; or if their courts be authorised to grant a stay of suits for a time, are we bound by these acts; for they all are, or may be, judicial preceedings. There are no considerations of national policy thatcould induce us to suppose the act of congress went the whole length of clofing the investigation of the judgment. It would be going further than ever was done in any civilized country, even with respect to its own dominions. • Walker v. Between England and Scotland, England and Wales,* or Doug. 1. Sin. England and its colonial establishments, the union is as inticited in the mate and as interefting, as between the feveral states; and Borate yet the judgment, in Scotland,† or Wales, or Jamaica, for inville 29. G. 3. ftance, are held to be foreign judgments. So the court of appendix pa. 5. feffions in Scotland confider judgments rendered in England as foreign judgments; that they have no intrinfic authority extra territorium; and that in actions upon them, they are to be presumed just till the contrary be proved; and if they are fhewn to be unjust or irregular, the fuit upon them will not be fuftained. Witter. clair v. Fraser notes, and Gal cited in the + Kainis' Equity vol 2. 365, 377. La Coute v. pril term 1799, term The judgments of other states have been treated in this court, in the light of foreign judgments, by admitting the plea of nil debet, to be the proper plea, inftead of the plea of nul tiel record. The court had intimated doubts on the question in prior cafes ; but in the case of Post and another Pendleton, A- v. Nerdy, in January term last, they decided, that nul tiel re& Cobbet ads. cord was a bad plea, and it follows pretty conclufively, that Ruft, January if a judgment of another state is not to be treated in the pleadings as a record, it cannot have the fame obligatory force. So in the cafe of Phelps v. Bryant, adminiftrator, decided at the laft term, we refused to sustain an action on a decree of the fuperior court of Connecticut, founded on the fervice of a fummons within this ftate. An act of the legislature had rendered all judgments and decrees founded on such service, void, as far as refpected our own governBut if the decree in that cafe was of conclufive effect under the conftitution and laws of the union, the plea to the merits of that decree, as refulting from the irregular commencement of the fuit, would have been bad, notwithftanding our ftatute. ment. Nov. 1855. The result of my opinion is, that the judgment in que ftion NEW-YORK, is to be confidered in the light of a foreign judgment, and only prima facie evidence of the demand. Receptum eft optima ratione in executione fententiæ alibi latæ, fervari jus loci in quo fit executio, non ubi res judicata eft.-Huber. vol. 2. page 540. gone no Lewis C. J. The question between these parties is both important and difficult; and my opinion upon it, has been formed with diffidence and deliberation. Were the whole cafe or both parties before us for confideration, it would be eafy to determine on their respective merits. But we̱ are called to decide an abstract propofition. Whether, under the article of the conftitution, and the act of the general government, referred to, the judgments of courts of another ftate, fhall be fo conclufive here, as to exclude all further examination of their merits? Had this article further than that of the confederation on the fame fubject, I should have doubted the correctness of the principles of decision in Phelps against Holker, as applicable to it; and should have understood full faith and credit in the same sense, that implicit faith is applied in Westminster Hall, to the records of a court of record; which is, that they are not to be controverted. But the latter part of the fection precludes fuch understanding, and qualifies the fenfe, in which the former is to be accepted. For, where is the use of congrefs prefcribing, by general laws, the effect of such judgments, or of the proof of them, which is the fame thing, (fhould that be the gramatical conftruction,) if by full faith and credit, abfolute verity is intended. The next question is, does the act of congrefs prescribe the effect of fuch judgments. In terms it certainly does not. On the contrary, it limits and reftrains the generality of the first period of the article under confideration, by declaring that fuch judgments, when authenticated in the manner prefcribed, fhall be entitled to the fame faith and credit in every court within the United States, as they have by law or ufage in the courts of the fate from whence they are or shall be taken. But admitting the act of congrefs to be an execution of the power vested in that body by the conftitution, it will not, in my Hitchcock and V. Daniel Aicken. Nov. 1803. V. NEW-YORK, conception, have the effect of rendering such judgments conclufive here. It will become neceffary to examine their effect Kirby in the ftate in which they are pronounced, and we know Cogfwell. that fome of them, which are founded on attachments iffuing in neigbouring states, against abfent debtors, are not conclufive in those states. And it certainly never could be intended to give fuch judgments greater effect here, than they would have there. We have had inftances alfo, of procefs iffuing from a court of a neighbouring state being ferved here, in violation of a pofitive law of our own ftate, which we are bound, by fuch law, to confider as illegal and void. Though the the cause of By pronouncing them conclufive, we should also preclude all inquiry into fraud, which certainly would vitiate them in every state poffeffing a regularly organized system of jurifprudence. I cannot, therefore believe, that a just construction of the conftitution and law of the United States will warrant the conclufion, that such judgments are in no cafe re-examinable in an action founded on them in another state; and, therefore, as we are called upon to pronounce on this question in the abstract, my opinion is, that the verdict be set aside. Jackson ex Dem', Edmund Prior, Abraham Knap and Eli Knap, against Haley Brown. THIS was an application for cofts for not proceeding to act of God be trial. The plaintiff relied on the prevalence of the yellow not proceeding fever, which, after noticing for the circuit, prevented him ing to notice, from obtaining a paper neceffary on the trial. to trial accord yet, if the im poffibility of proceeding be discovered in time for a countermand, which the plaintiff neg he muit pay cofts. Per curiam. It does not appear any countermand was ever given, though there was time for doing fo, between the period when the impoffibility of procuring the document was difcovered, and the day fixed for the circuit. It is fects to give, true, the act of God is, to work injury to no one; but when, as here, the impoffibility induced by that act, could have been communicated to the defendant in feafon, to have prevented his attendance on the circuit, and this was omitted, the fault was with the plaintiff, and he must pay cofts. Thomas Kirby against Salmon Cogswell. IT was ruled in this caufe, that, after a certificate of pro Practice on certificate to ftay proceed. ings, Nov. 1803. People, bable cause to stay proceedings, both parties may notice for NEW-YOR K argument, and that the not entering and noticing for argument by the party obtaining the certificate to stay, is no cause for a motion to discharge the order ;* efpecially if made without notice. The People against Freer, printer of the Ulster V. Freer. * Vide ante 343 On a rule to fhew caufe why fhould not go A RULE was granted laft term, for the defendant to fhew cause on the first day of this, why an attachment an attachment fhould not iffue against him, for a contempt, in publishing for a contempt fome paragraphs in the Ulfter Gazette, respecting the tri- things reflectin publishing al of Harry Crofwell, for a libel on the Prefident, then fub ing on the judice. court, in a cause then pending, the fhould appear the day for fhewing caufe. Hamilton, on bringing in the affidavit of the defendant defendant (who did not himself appear in court) moved for an enlarge- in perfon on ment of the rule till the next term, to confult with the defendant as to expunging fome part of the matters introduc- Denying any ed, as irrelevant. The idea of an intentional contempt was, intent, is only he faid, denied, but there were circumstances introduced, no juttificawhich counsel thought had better be omitted. difrespectful an excufe, but tion, if the words publish. ed be, in the o temptuous. Per curiam. If the application had been to fupply any pinion of the new fact, and that fact had been made to appear by affida- court, convit, it would have been attended to; but we cannot enlarge a rule merely to give counfel an opportunity to confider of the propriety of expunging parts of an affidavit, which, we must consider, has been made according to the truth of the cafe. Hamilton then read the affidavit, which did not deny thepublication, but only went to negative any intentional contempt or disrespect towards either the court or its members. Sandford contra. The publication being confeffed, the court has only to pronounce, whether it amount, to a contempt or not. The intention, giving it the utmoft latitude, can be taken only in mitigation. It cannot make the publication lefs a contempt. A man cannot justify his conduc by faying, I have offended, but did not mean to fin. The queftion is fimply this, ought an attachment to go for this |