MILLS v. DURYEE:

1813.

March 10th.

Absent....TODD, J.

not a good plea to an action

ERROR to the Circuit Court for the district of Nil debet is Columbia in an action of debt upon a judgment of the Supreme Court of the state of New York, to which the founded on a Defendant below pleaded Nil debet, which plea, upon another state. general demurrer, was adjudged bad.

By the constitution of the United States, art. 4, sect. 1, it is declared, that "full faith and credit shall be "given, in each state, to the public acts, records and "judicial proceedings of every other state. And the "Congress may, by general laws, prescribe the manner "in which such acts, records and proceedings shall be "proved, and the effect thereof."

The act of May 26th, 1790, vol. 1, p. 115, after providing the mode by which they shall be authenticated, declares, that the said records and judicial proceed ❝ings, authenticated as aforesaid, shall 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.”

And by the supplementary act of March 27th, 1804, vol. 7, p. 153, § 2, it is declared, that the provisions of the original act of 26th May, 1790, shall apply as well to the records and Courts of the respective territories of the United States and countries subject to the jurisdiction of the United States as to the records and Courts of the several states.

F. S. KEY, for Plaintiff in error.

The true construction of that part of the constitution and laws of the United States will confine their operation to evidence only, and will not justify such an alteration in the rules of pleading. The "effect" to be given to such copies is their "effect" as evidence, for it VOL. VII.

62

judgment of

MILLS

0. DURYEE.

is not pretended that an execution could issue here upoti such a record.

If nul tiel record is the proper plea, or could be pleaded in such a case, there are no means of procuring and inspecting the original record, (which is essential under such an issue:) and the constitution and law, not having provided for this, it must be presumed, did not intend it.

The record in this case is not the original-it is certified and authenticated as a copy; and therefore unless entitled to more faith and credit here than in New York, it could not be offered to the Court upon the plea of nul tiel record, for under that issue this record, even in New York, would not be admitted. The original must be produced and inspected.

But if this record would be entitled to such consideration in another state, by force of the constitution and law, it is not entitled to it in this district, which is not a state. 1 Dal. 261, Phelps v. Holker. id. 188, James v. Allen. 1 N. Y. T. R. 460, Hitchcock v. Aicken. 1 Mass. T. R. 401, Bartlett v. Knight.

JONES, contra.

It is admitted that a record authenticated pursuant to the act of Congress, is to have the effect of evidence only; but it is evidence of the highest nature, viz. record evidence.

In every case of debt or contract the form and effect of the plea are determined by the dignity of that debt or contract; in other words by the dignity of the evidence, whether it be of record, by specialty, or simple contract.

The act of Congress makes the authenticated exemplication of the record equivalent to the original record in its proper state; and communicates to it the same effect as evidence, thereby making it capable of sustaining the same averments in pleading, and of abiding the same tests, as the original record. It therefore cannot be denied or controverted by any plea, such as nil debet, which goes to put in issue before the jury the matters averred by the record, and the existence of the record

itself; but the Defendant must either distinctly deny MILLS the record, or avoid it by pleading per fraudem, satisfaction, &c. 2 Dall. 302, Armstrong v. Carson,

In allowing this. conclusive effect to the evidence of the authenticated record, it is immaterial that it has not the further effect of enabling the ministerial officers of the law to issue an execution thereon, for that objection would be equally valid against the record when used in its proper state, but out of the jurisdiction of its proper Court; and also against the sentences of foreign Courts of admiralty under the law of nations.

The act of congress communicates to the authenticated record the effect of record evidence in all Courts within the United States, and does not limit it to the Courts in any state, as supposed by the Plaintiff in

error.

March 11th....STORY, J. delivered the opinion of the Court as follows:

The question in this case is whether nil debet is a good plea to an action of debt brought in the Courts of this district on a judgment rendered in a Court of record of the state of New York, one of the United States,

The decision of this question depends altogether upon the construction of the constitution and laws of the United States.

By the constitution it is declared that "full faith and "credit shall be given in each state to the public acts, "records and judicial proceedings of every other state; "and the congress may, by general laws, prescribe the "manner in which such acts, records and proceedings "shall be proved and the effect thereof."

By the act of 26th May, 1790, ch. 11, congress provided for the mode of authenticating the records and judicial proceedings of the state Courts, and then further declared that the records and judicial proceedings, au"thenticated as aforesaid, shall 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

v.

DURYEE.

MILLS

v. DURYEE.

"the state from whence the said records are or shall be ❝ taken."

1

It is argued that this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence when admitted. This argument cannot be supported, The act declares that the record duly authenticated shall have such faith and credit as it has in the state Court from whence it is taken. If in such Court it has the faith and credit of evidence of the highest nature, viz. record evidence, it must have the same faith and credit in every other Court. Congress have therefore declared the effect of the record by declaring what faith and credit shall be given to it.

It remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered. In the present case the Defendant had full notice of the suit, for he was arrested and gave bail, and it is beyond all doubt that the judgment of the Supreme Court of New York was conclusive upon the parties in that state. It must, therefore, be conclusive here also.

But it is said that admitting that the judgment is conclusive still nil debet was a good plea; and nul tiel record could not be pleaded, because the record was of another state and could not be inspected or transmitted by certiorari. Whatever may be the validity of the plea of nil debet after verdict, it cannot be sustained in this case. The pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it cannot be denied but by the plea of nul tiel record; and when congress gave the effect of a record to the judgment it gave all the collateral consequences. There is no difficulty in the proof. It may be proved in the manner prescribed by the act, and such proof is of as high a nature as an inspection, by the Court, of its own record, or as an exemplification would be in any other Court of the same state. Had this judgment been sued in any other Court of New York, there is no doubt that nil debet would have been an inadmissible plea. Yet the same objection might be urged that the record could not be inspected. The law however is un

doubted that an exemplification would in such case be MILLS decisive. The original need not be produced.

Another objection is that the act cannot have the effect contended for, because it does not enable the Courts of another state to issue executions directly on the original judgment. This objection, if it were valid, would equally apply to every other Court of the same state where the judgment was rendered. But it has no foundation. The right of a Court to issue execution depends upon its own powers and organization. Its judgments may be complete and perfect and have full effect independent of the right to issue execution.

The last objection is, that the act does not apply to Courts of this district. The words of the act afford a decisive answer, for they extend to every Court within the United States."

Were the construction contended for by the Plaintiff in error to prevail, that judgments of the state Courts ought to be considered prima facie evidence only, this clause in the constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest however that the constitution contemplated a power in congress to give a conclusive effect to such judgments. And we can perceive no rational interpretation of the act of congress, unless it declares a judgment conclusive when a Court of the particular state where it is rendered would pronounce the same decision.

On the whole the opinion of a majority of the Court is that the judgment be affirmed with costs.

JOHNSON, J.

In this case I am unfortunate enough to dissent from my brethern.

I cannot bring my mind to depart from the cannons of the common law, especially the law of pleading, without the most urgent necessity. In this case I see none.

A judgment of an independent unconnected jurisdic

บ.

DURYEE.