
    [290] [*] CURTIS against MARTIN and JOEL GIBBS.
    Plea of nil debet, allowed on demurrer, in action on a judgment in a foreign attachment in Pennsylvania.
    Quere. As to effect in this State, of a judgment in Pennsylvania.
    This was an action of debt, brought on a judgment obtained by the plaintiff against the defendants, in the court of common pleas in and for the county of Philadelphia, in the state of Pennsylvania. The defendants pleaded nil debet; to which the plaintiff demurred, and the defendants joined in demurrer.
    
      Mr. M’Ilvaine, for the plaintiff, contended
    — That the plea in this case was bad; nul tiel record was the proper plea; for which he cited, 5 Comy. 253, 2 Dal. 302, 3 Dal. 85, and the constitution of the United States.
    
      Mr. R. Stockton, on the other side
    — This judgment at common law, can only be considered as prima facie evidence of a debt which may be examined and controverted under a plea of the general issue; judgments obtained in the courts of Wales, Jamaica, Scotland, and Calcutta, are in a similar situation to the one on which this action is founded; and they have been held in the courts at Westminster Hall, as only prima facie evidence of a debt. Doug. 1.
    
    
      The constitution of the United States means no more than that the judgment and proceedings in the courts of other States shall be evidence that such proceedings were had; but is not intended to give any effect to such [*] judgments and proceedings which they were not otherwise entitled to; that the articles of confederation contained a like provision, (he cited 1 Dal. 190, 188, 161, and 1 New York Term Rep. 460.) Again, what evidence have we that a plea of nul tiel record in this case, would be good in Pennsylvania; this depends [291] on the law of that State, and is a matter of fact to tried in the same way as any other fact.
    
      Mr. Griffith, in reply.
    He considered the decision in the district court of the United States, in Pennsylvania, as settling the question; this court cannot enter into the merits of the regularity of the judgment in Pennsylvania, on which this action is brought; but must intend that it was regularly obtained; if the defendant will avail himself of the laws and usages of Pennsylvania, he must plead and put them in issue. It Avas necessary for the plaintiff to aAmr, that the laws and usages of Pennsylvania Avould make this judgment conclusive in the courts of that State.
   Pennington, J.

— The first ground taken by the learned counsel for the defendants is, that judgments obtained in the courts of a neighboring State, are to be considered in the light of foreign judgments, and only prima facie evidence of a debt, and therefore that nil debet is a proper plea.

It is true, that the distinction betAveen judgments that are conclusive and those that are only prima facie evidence of a debt, is a distinction between domestic and foreign courts; judgments of the former being conclusive, and those of the latter prima facie evidence only. It may, hoAve\rer, be proper to observe, that this distinction does not extend to foreign courts of admiralty; these courts, acting under the laws of nations, and not under the municipal laws of any particular country, are quoad the subject matter of their jurisdiction, in the situation of domestic courts; and of course their judgments or sentences are conclusive. It must, I think, be admitted that, at common law, the courts of a neighboring State must be considered, as it respects [*] the effects of their judgments, as foreign courts. The inquiry, therefore, is, whether or not the constitution and law of the United States alter their condition.

When we consider the intimate connexion between the States forming the great American Republic, the daily intercourse and dealings of the citizens, the similarity in their laws, and sameness in legal proceedings, and in the organization and authority of their various courts of justice, and above all the necessity of union and harmony to our mutual prosperity; it was not to be expected that our tribunals of justice would be left, with respect to each other, in the situation of mere strangers or foreigners; but that superior credit would be given to their judgments or sentences, than was given to the judgments and sentences of foreign courts.

According to this idea, we find a provision, first in the articles of confederation, and afterwards in the constitution of the United States, which specially provides, that full faith and credit shall be given [292] in each State to the public acts, records, and judicial proceedings of every other State.” One would think from the foregoing clause, which stood alone in the ai’ticles of confederation, formed a complete provision on that head; and it is really hard to conjecture for what other purpose it was introduced. It is said, however, that it is controlled by the subsequent part of the section, in the constitution of the United States, to wit: and the Congress may, by general law, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof;” that the words faith and credit are not to be taken as giving any effect, because it is intended that Congress may by law declare the effect, and that this would be causing a double provision on the same subject. And it is contended by the learned counsel for the defendant, that the words, “full faith and credit only mean that the records and proceedings shall be evidence of the fact of the existence of the records and proceedings. But unfortunately for this construction, a provision is made in the same section, [*] especially pointing out the manner in which this fact of the existence of the records and proceedings may be ascertained — that is, by a law to be passed by Congress. This would form a double provision of the most absurd and unnecessary kind. Surely, after the records and proceedings are proved in a mode pointed out by law, there wants no constitutional provision that they shall be evidence of their own existence. Pull faith and credit to be given, for instance, to the testimony of a witness, examined out of court, before commissioners, must mean something more than the existence of the deposition, and that it was taken .in due form of law. In construing an instrument, care should be taken to reconcile words apparently discordant, and in such manner as to give, if possible, meaning to every word. By the first member of the section under consideration, I consider that the framers of the constitution intended a general declaration, that the records and proceedings of the courts of the several States in the Union should be treated with great respect, by full faith and credit being given them in every other State in the Union. But as this general declaration was not defined with accuracy, and was subject to be misunderstood, from whence a diversity of construction might arise, they proceeded further to declare, that Congress might, by a general law or one uniform rule, more particularly mark out the effect and define the general power thus given. This, in my opinion, will be giving a reasonable construction to a section of the constitution unquestionably introduced into it, for the purpose of promoting the harmony of the Union, [293] and inspiring a mutual confidence among the tribunals of justice of the diffei-ent States.

Acting, no doubt, under this opinion, Congress have, after pointing out the mode of proof, declared as to the effect, that the said records and judicial proceedings 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. About four years after this law passed, the question came [*] fairly up in the circuit court of Pennsylvania. An action of debt was brought in that court, on a judgment obtained in this, and nil debet pleaded. Ingersoll declined against arguing in favor of the plea, and Judge Wilson declared that there could be no difficulty in the case, for that whatever doubts there might be on the words of the constitution, the act of Congress had removed them. And as far as my research had extended, I have not been able to find any opinion against this construction, except the case of Hitchcock and Fitch v. Aikin, cited by the counsel for the defendants, from the Yew York Term Reports. In that case, three respectable judges against two equally respectable, maintained, I believe, for the first time, a contrary doctrine, one of the three, Chief Justice Lewis, very much doubting. The three Yew York judges acknowledge, that Congress have the power to declare the effect that judgments obtained in one State shall have in another, but say that that body hath not as yet exercised this authority; and if I understand them, they found their reason principally on the fact that Congress hath not made use of the word effect. I do not know that it is necessary for the Legislature in the exercise of a power delegated to them by the constitution, to make use of the precise words of the constitution itself. The power given is to prescribe the effect of certain records. The execution of the power is a law declaring that those records “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.” Is this not to prescribe the effect ? What faith and credit have certain records in the State from whence they are taken ? Why, such faith and credit as to render them conclusive evidence of a debt. Suppose Congress, instead of enacting what it hath done, had enacted that those records should have such faith and credit given to them in every court of the United States, as the records of the courts of Jamaica, Ireland, France and England [294] have in the said courts of the United States, would not the effect have been different? Would it not change the effect [*] from conclusive to prima facie evidence? It will not, I trust, be contended, that the effect is meant a legal coercive power. The effect is to depend on the credit given them. If the credit given them is such as that they cannot be contradicted, they will have one effect; if the credit given them is such as to make them prima facie evidence only, then another effect will be produced from them; it is possible that records of judicial proceedings may of so uncertain, vague or suspicious a nature as to be entitled to little or no credit; in that case, a third effect may be produced by them.

If the construction contended for by the defendants’ counsel is correct, the first number of the section, to wit: “ that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” is wholly senseless, or its introduction is at best an act of supererogation, the same thing specifically provided for in the very next following sentence in the same section; and' under the confederate government, the clause must have been introduced with great circumspection and formality, for the sole purpose of putting the courts of the different States in the Union with respect to each other, on the favored footing of the courts of the Bermuda Islands, Calcutta or Botany Bay; these being foreign courts, their proceedings and records would be prima facie evidence, the whole, that under the construction contended for, is allowed the courts of the confederated States.

A stranger to our history, on being made acquainted with this construction, would naturally conclude, that the American States, at the time of the confederation, instead of being connected with one another by the most honorable tie that could possibly bind societies together, were in a state of barbarous enmity, stipulating with each other for advantages enjoyed by every civilized nation. On the whole, 1 have no hesitation, so far as it respects the point under consideration, to say, that under the constitution and laws of the United States, the records and judicial proceedings in the [*] courts of'justice in the State of Pennsylvania, or any other State in the Union, must have the same faith and credit given them in this State, as they are entitled to by law or usage in the courts of the State from whence they are brought.

But we are here told by the defendants’ counsel, that what faith and credit is due to records or judicial proceedings in other States, is a question of fact to be tried by a jury, and, therefore, that the plea of nil debet is proper to put that fact in issue. [295] I think differently. It must be an intelligent jury indeed that could mark out the precise limits between conclusive and prima faeie evidence. This court will cei’tainly take notice of the constitution of the States forming the Union, if not of their statutes; and in doing this we find that, by the constitution of the State of Pennsylvania, the court of common pleas in the several counties of that State, are common law courts, having important jurisdiction, possessing an authority in one particular case of issuing eertioraris to inferior jurisdictions; no doubt can be entertained, but that a judgment obtained in one of these courts, in a regular course of the common law, on both parties being in court, and a defense made, or an opportunity to make it, would be conclusive evidence of a debt; and that nil debet to a declaration founded on a judgment so obtained, would be a bad plea. The reason and policy of the thing is in favor of this construction, for by it a great deal of vexatious litigation will be prevented, and it is certainly unreasonable, that after parties have had a fair hearing and trial, or have ■ had a fair opportunity to have had it, but declined taking it, they should, by passing a territorial line, have it in their power to rénew the controversy, and again put their adversary to great expense and trouble. Besides, the want of decorum in bringing in question the propriety and purity of the decisions of the courts of respectable standing in a neighboring State, is certainly a subject worthy of consideration, and to be avoided if public justice should not require the contrary.

The next inquiry, and, to my mind, it is all important [*e] in this cause is, what credit the judgment on which this action is founded would be entitled to in the courts of Pennsylvania. It appears by the record produced, that the judgment and proceedings on which this action is founded is a proceeding on a foreign attachment. The court will take notice of the record itself, and examine whether it is of such a nature as to be entitled to full credit or not; and whether it would be conclusive evidence of a debt in the courts of the State from whence it is brought. And I am not ready to say, nor do I believe, that a judgment founded on a foreign attachment would be conclusive evidence of a debt in the courts of Pennsylvania. Foreign attachments are, from their nature, ex parte, and their proceedings in rem. The proceedings are not of a common law nature, but special remedies given the creditors against the rights, credits and effects of the debtor [296] in his absence; in this country by acts of our Assemblies, in Great Britain by the custom of particular cities. They do not, therefore, constitute such records as full faith and credit ought to be given them, and against which nothing can be averred. I find that very little credit is given to judgments on foreign attachments in the courts of Westminister Hall; the original debt on which they are founded is permitted to be denied, or in more technical language, traversed, not from disrespect to the courts where the proceedings on attachment are had, but from the nature of the pi-oceedings, their liability to fraud and error, and to collusion between the plaintiff in attachment and the garnishee. We, therefore, in my opinion, have a right to presume that the courts of Pennsylvania would suffer the defendants in this action to plead nil debet. For this reason, I am of opinion, that the plea of nil debet is good, and of course, that the defendants must have judgment.

Kirkpatrick, C. J., and Ros,sell, J. — Concurred in rendering judgment for the defendants, on the last point taken by Justice Pennington ; but gave no opinion on the conclusiveness of judgments from other States, not thinking it necessary in this case. 
      
      
        Caines Rep. 460
      
     
      
       Statute in a court of a sister State not noticed, unless pleaded. Hardin’s Rep. 105. Proved, 4 Bibb. 73. 2 Marsh. 609.
      
     
      
       As to the credit due to foreign attachments, vide John. 378, 86, 206. 2 Dal. 51, 261. Kirby, 119. Hard. 413.
      
     