Griswold and another against Pitcairn

Griswold and another against Pitcairn. New-Haven, November, 1816. THIS was an action of assumpsit. The declaration stated, that from the 6th of September, 1809, until the 15th of October, 1810, the plaintiffs were sole owners of the ship Jinn, of New-York, whereof Hezekiah Smith was master, appointed by the plaintiffs, and their agent; and that on the 6th of September, 1809, at Hamburgh, said ship then lying at Tonningen, the plaintiffs, by their said agent and master of said ship, entered into a charter-party with James Neville and others. The charter-party was recited in the declaration, and was between James Neville and others, of the one part, freighters, and IJezekiah Smith, master of the Ann of New-York, of the other part, letter, for a voyage from Ton-ningen, in ballast, to Riga, thence to Belfast, or, on further orders, to Liverpool or Dublin. Then followed the several undertakings of the parties. The declaration, after reciting the charter-party, stated, that Neville being a stranger to them, it was then and there agreed, that Pitcairn, the defendant, should guaranty the fulfilment of the charter-party, on the part of Neville, and thereupon, by a writing under his hand, bearing date the 7"th of September, 1809, Pitcairn did “ guaranty to capt. Hezekiah Smith, of the ship Ann, of New-York, the sum of fourteen hundred guineas, on the event of his charterer, Mr. James Neville, not loading his ship at Riga, and according to the terms of the charter-party made between them.” The declaration then averred, that it was well known to the defendant and to Neville, that the Ann belonged to the plaintiffs ; that said contract was made with said Smith, as master of their ship, for their benefit, and in the regular course of employment of said ship ; and that the defendant, by said contract, promised to guaranty to them, through their said captain, and to pay to them said sum of fourteen hundred guineas, or their value, in the event of said Neville’s not loading said ship according to said charter-party. The declaration then enumerated, and averred performance of, by Smith, the several acts required of him by the charter-party, and alleged, that Neville, and his corRespondents at Riga, wholly neglected and refused to furnish said cargo, or any part thereof; of all which the defendant had received due notice. The public seal of a sovereign state,affixed toa writing purporting to be a judicial proceeding, is, of itself, the highest evidence of authenticity and is taken notice of judicially, by the courts of justice in other states. Nor is it necessary, in order to make a document thus authenticated in a foreign nation, a legal exemplification in our courts, that it should be accompanied with a certificate of its being a copy of an original record, under the official signature of an officer of the court, whose judgment is ex - emplified. To an action of assvmpdt against the owner of a ship, on a guaranty given by him to S., the plaintiffs’ agent, for the performance of certain stipulations on the part of 5V*. in a charter-party, the defendant pleaded, that the plaintiff, by his agent S, brought an action on the charter-party against 5V. for non-performance, before a foreign court of competent jurisdiction, which was decided in 5V.’s favour. To prove his plea, the defendant produced the record of a judgment in an action brought by I). as the agent of S, against 5V. for non-performance of the charter-party in question, which was decided in 5V.’s favour Held, that this was proper and sufficient evidence to support the plea. A foreign judgment, when used bv way of d/f-nee, is ns conclusive, to every intent, as a domestic judgment. The defendant pleaded, 1st, The general issue. Sndly, That although he executed the written guaranty, &c. yet afterwards, on the 17th of April, 1812, at Copenhagen, in the liingdorn of Denmark, the plaintiffs, by their said agent, Hezekiah Smith, instituted and prosecuted to judgment, a suit against the said Neville, in the sea court, so called, demanding of him the sum of 1400 guineas, for alleged violations of his several engagements and obligations, contained in said charter-party; and that by the judgment of said court, said Neville was acquitted, and decreed not to be liable on said charter-party, or any part thereof; that upon the appeal of the plaintiffs, by their said agent, to the supreme court of Copenhagen, the judgment of the sea court was affirmed ; that the defendant was only surety of said Neville’s ability and good faith, in the particulars stated in said writing by him executed ; and that by said judgment, the liability of said Neville, in the particulars for which the defendant was surety, was expressly decided by said court. The replication traversed the plea in bar, upon which issue was joined. The cause was tried at New-Lonion, September term, 1816, before Edmond, Brainard and Gould, Js. Several questions of law arose at the trial, under the first issue, which were reserved, but were not, eventually, decided by this court. To support the plea in bar, the defendant offered in evidence the record of a judgment, or decree, of the supreme court of Copenhagen, reciting the proceedings and sentence of the sea court. From the recital, it appeared, that the suit in the sea court', was in the name of “ George Dickenson, master of a vessel, citizen of the United States of America, and agent of capt. Hezekiah Smith of Chatham in the said Stales, against James Neville, (by the name of Henry Myer'). The proceedings of the sea court stated Smith’s claim of 1400 guineas from Neville, for alleged violations of the charter-party, the principal stipulations of which were recited : and noticed the allegations made, and referred to the proofs adduced, by the parties. After declaring, that capt. Smith had not, on his part, complied with the stipulations of the charter-party, the court proceeds to say, that e‘ the defect in the accomplishment of the charter-party on the side of the captain, must, in our judgment, have rendered him incapable of claiming the accomplishment thereof on the side of the defendant.” Whereupon it is “ decreed, that the defendant shall be acquitted of capt. George Dickenson, agent of capt. Hezekiah Smith, his prosecution in this case.” After reciting the proceedings and decree of the sea court, and after stating that the parties were again heard, the supreme court of Copenhagen proceeds to affirm the decree of the sea court. The record was authenticated by the great seal of Denmark. There was no certificate that the decree, See. offered in evidence, was a copy of record, but below the seal was the signature Colbiornsen, without any addition of his official character. The translator of the record, deposed, that he knew the seal attached to the original to he the royal seal of the kingdom of Denmark. J. M. Forbes, Esq. agent of the United States: at Copenhagen, Certified, that the signature at the foot of the record was that of the counsellor of confer, enees, Colbiornsen, chief judge of the highest court. To the admission of this record tito plaintiffs objected, on several grounds ; but the court overruled such objections, and permitted the record to be read in evidence to the jury. The court also instructed the jury, that if they should find lite document shewn in evidence of the proceedings in the court of Denmark to be genuine, — and it was to be presumed to h( genuine until the contrary w as shewn, — their verdict upon the second issue should he for the defendant. The jury having found a. verdict. for the defendant on both issues, the plaintiffs moved for a new trial : and the questions arising on such motion were reserved for the consideration and advice of the nine J udges. The case was very fully discussed, by Daggett and Cleave-land, in support of the motion : and hv Law and Rrainard» contra. The former Contended, among other points, which, from the decision of the court, it has become unnecessary to state. i, That the writing given in evidence as the record ot a CHurt jn Denmark, was not properly authenticated as a genuine document, Moisés v, Thornton, 8 Term Rep. 303-Henry v. Mey, 3 East 221. 2. That admitting the document to be genuine, yet it was not a legal exemplification. It does not purport to be a copy of an original record ; nor does it appear from extrinsic evidence, that it was so. 2 Crunch 237, 8. 8 Term Rep. 30r, 8. it is signed by an individual, without any addition to shew that he was an officer of the court, or if he was, that he was then acting in his official capacity. Nor does it appear, by whom, or by what authority, the sea! was affixed. 3. That the record, if duly authenticated, did not prove the plea; and therefore, the charge was wrong. First, it was not between the same parties. Peake's Ev. 33. 4 Day’s Ca. 432, Secondly, it did not decide the point in issue in this case. Manny v. Harris, 2 Johns. Rep. 24, 30, Sintze-nick v. Lucas, 1 Esp. Rep. 44, Thirdly, being a foreign judgment, it was not conclusive. On the other side, it was insisted, I, That the record oi the Danish court being authenticated under the national seal, was proved by the highest evidence which could be given. The affixing of a national seal to an instrument, is symbolical language, importing absolute verity, which the courts of othei nations judicially take notice of, and give credit to. Swift’s Ev. 8. Peake’s Ev. 73. n. (⅞.) 4 Dali. 416. 2. That the charge was right, because the parties were virtually the same; the same facts which arc now in con • troversy, were the basis of the former decision ; and as that decision w;as in favour of the defendant, it furnishes a com plcte defence in this suit. 2 Mac Mai. Ev. 427, 8, Swift’s Ev. 9, 10. Calhoun’s lessee v. Dunning, 4 Dali. 120, 1 2 //. Black. 410. [MAJORITY — Swift, Cb. 3. Goum, J.] Swift, Cb. 3. In this action, the plaintiffs allege, that Hezekiah Smith, their agent, made a contract of charter-party with Neville, which was guaranteed by the defendant, The defendant has pleaded non assumpsit, ami also, that the plaintiffs, by their agent, said Smith, brought an action on the charter-party, against Neville, for the non-perforniancr. of it, before a court of competent jurisdiction, in the kingdom of Denmark, which was decided against them. Tiie defendant produced in evidence, the record of the judgment j which the superior court admitted, and decided to be sufficient evidence to prove the issue. It is contended for the plaintiffs, that this record ought not to have been admitted in evidence, because it is not duly authenticated, and does not appear to have been certified by any officer having power to do it. But this court does not know the form of making up, attesting or certifying their record. If it appear to he a judicial proceeding under the great seal, it is to be presumed, that all the formalities required by their law, have been complied with. This appears to he the record of a judgment rendered in a court of the kingdom of Denmark, under the great seal of the king. This seal proves itself, and the court is bound to take judicial notice of it. This is all the evidence required by our law to prove a foreign judgment, and the record was properly admitted. It has been urged, that this record does not prove that Smith was the agent of the plaintiffs, and Dickenson the agent of Smith, which was a material part of the plea, and was traversed. But the plaintiffs have alleged in their declaration, that Smith was their agent, in making the contract of charter-party w ith Neville, w hich rendered it unnecessary to prove it. Nor was it requisite to prove a power of agency from Smith to Dickenson, to prosecute the suit. The record of the process and judgment, in a suit in the name oí Smith, the acknowledged agent of the plaintiffs, by his agent Dick-enson, was sufficient; and it was no more necessary to prove a power of agency from Smith to Dickenson, than it would be to prove a lawful power to the attorney of record, in every case, where the proceedings may be given in evidence. It is further said, that from the record of the court in Denmark, it does not appear that the action was on the charter-party, for the guaranty of which this action is brought; and therefore, the record did not prove the facts in issue. But on inspecting the record, it appears that the action in the court in Denmark was brought by Smith, in his own name, who had lawful power to do it, on this charter-party, against Neville ; and it was decided, on the merits of the case, that Smith had no right to recover ; of course, the record of that judgment proved the facts in issue, and the charge of the court was correct. As the verdict was right on the second plea, it is unncces sary to examine the questions arising under the first plea. 1 would not advise a new trial. Goum, J. If the. verdict is right, upon either of the issues, the motion cannot prevail: and, as the court is unanimous in favour of the defendant, npon the second plea ; there is no necessity of considering the questions, raised under the first. The only points, then, which require consideration, arc those, which arise npon the admissibility of the record of the Danish court, and upon the directions, given to the jury, as to the effect of it. It is first, objected, that the record in question is not duly authenticated, — i. e. not accompanied with sufficient evidence of its being genuine. But, in the proof of foreign documents, there must, from the nature and necessity of the case, be some ultimate limit, beyond which no solemnity of authentication can be required. And the public national seal of a kingdom, or sovereign state, is, by the common consent, and usage of civilized communities, the highest evidence, and the most solemn sanction, of authenticity, in relation to proceedings, cither diplomatic or judicial, that is known in the intercourse of nations ; and as such, is taken notice of, judicially, by courts of justice in other states. Anon. 9 Mod. 66. The United States v. Johns, 4 Dall. 416. Peake’s Ev. 73. notis. Church v. Hubbart, 2 Cranch, 187. The seals of foreign municipal courts, on the contrary, must be proved by extrinsic evidence. Gilb. L. Ev. 20. Henry v. Adey, 3 East, 221. Collins v. Lord Mathew, 5 East, 473, Delajield v. Hand, 3 Johns. Rep. 310. Peake’s Ev. 72, 3. In the present case, the proof of the genuineness of the record, given in evidence, is, in point of solemnity, the highest possible, the national seal of the kingdom of Denmark. And, as if tin-production of the seal were not, of itself, sufficient; its genuineness has been proved by evidence aliunde, to which there was no objection. It is still objected, that there is no certificate of the document's being a copy of any' original; and that there is no official signature of any clerk, or prothonotary. There can «be no need of either. We surely cannot require, that the mere artificial forms of certifying, or exemplifying, records in foreign courts, should correspond, precisely, with our own. Upon that principle, no foreign record could, perhaps, ever he proved in our courts. But what seems decisive of the question, is, that such a certificate, and signature, if supplied, would not prove the seal, nor conduce to prove it. ’> East, 221. The seal, it is true, would prove them ; but it proves, of itself, and as well without, as with, them, all that is substantially necessary — the genuineness of the record. But there is no evidence, it is said, that the seal wTas affixed by a proper officer. Assuming the seal to be genuine, that fact must, of course, be presumed, unless the contrary is shown. For any higher evidence of the fact, appearing upon the face of the record, than the seal itself imports, is impossible : ami to require extrinsic evidence of it, would be to subvert the rule itself, that a national seal is the highest proof of authenticity. But there is a variance, it is said, between the Danish record, and the description of it, in the plea : inasmuch as the plea alleges, that the plaintiffs, by their agent Smith, commenced the suit against Neville; whereas the record itself purports, that Smith, as principal, brought the suit in his own name, by his agent Dickenson. Now, ship-masters, like many other mercantile agents, may maintain suits, in their own names, upon charter-parties, and many other contracts entered into by themselves, in behalf of their ow-ners. In such suits, the agent is always, nominally, the principal: though, actually, the mere representative of his employers. Such was the case, in the suit, instituted by Smith, in Denmark. For the purpose of that action, as claiming against Neville, the then defendant, and as between himself, and Dickenson, his attorney, — he was principal: though, as to the present plaintiffs, (as appears by their own showing, and even by ¡heir declaration, taken in connexion with the Danish record,) he was only an agent. A formal, unessential diversity, in the description, given to Smith, in the two suits, can be of no importance, if it appears, as in this case it clearly does, that he brought the action in Denmark, as the representative of the plaintiffs, and that Dickenson was merely his attorney. In this view of the case, the judgment in favour of Neville, was, in effect, a judgment against the plaintiffs. The objection, tli¡it the record of the Banish court was irrelevant, as not embracing the same original questions, as present; suit involves, appears equally unfounded. For the final judgment, in the supreme court of Denmark, is most general, — comprehending every question of merits that has arisen, or can, probably, arise, upon the charter-party. The Banish record, then, was clearly admissible : and if so, I am at a loss to discover how the direction to the jury could have been substantially otherwise than it was ; except, indeed, that, in relation to the genuineness of the seal, it wras somewhat more qualified in favour of the plaintiffs, than it might have been. There seems to be no ground of objection on their part. For the record goes, directly, to support the plea ; and it is an established rule, that a foreign judgment, when used by way of defence, is as conclusive, to every intent, as those of our own courts. The question, whether the Banish judgment is to be considered as res inter alios, and therefore as not affecting the present suit, does not, according to the view I have now taken of the case, arise upon this motion. For if, as I have attempted to show, the suit in Denmark was virtually between the plaintiffs and Neville, so as to support the averment of that fact in the special plea $ the question, whether it is conclusive between the plaintiffs, and Pitcairn, the present defendant, is not involved in the direction of the court, nor affected by the verdict. That point, (if it be one.) remains open upon the face of the pleadings, and can be made only by motion in arrest of judgment, or writ of error. The other Judges concurred, except Goddard, J. who declined acting, having been of counsel in the cause. New trial not to be granted.