Baldwin v. Hale

Headnote

A replication or/to a plea of a ju))pn™) the same cause ofa^ioD,fo,he of hhe United ^«r’concimie to the country, verification*1' a

THIS was an action of assumpsit, on a promissory note, The declaration, beside a count on the note, contained money counts, and a count on an insimul computassent. The defendant pleaded non assumpsit to the first and second counts, and an account stated, and a note given and received as to the second count; to the third count, a judgment recovered in the Circuit, Court of the United. States for the second circuit in tin-District Court of New- York, in an action of assumpsit, for not performing the same promise and undertaking in the said third count of the said plaintiffs’ declaration stated, averring th.at the said judgment still remained of record in that court, in full force, and unsatisfied; and that this the defendant was ready to verify by the said record: wherefore he prayed judgment of, A c. The plaintiffs took issue on the first and second pleas, and replied to the third plea, nul tiel record, and concluding,

this they “ are ready to verify where and in such manner as the court here shall direct and award : and hereupon a day is given to the said defendant to have the record before the justices of this court, at, &c. on the first Monday of January next,” &c.

To this replication there was a special demurrer, assigning for cause, that it should have concluded to the country, and not with a verification.

contended, that a judgment recovered in the Circuit Court of the United States, was to be considered in the same light as a judgment recovered in another state. In Collins v. Matthew, (5 East’s Rip. 473.) which was an action of debt on a judgment in the court of exchequer, in Ireland, to which the defendant pleaded nul tied record, with a verification, on a demurrer, the plea was held bad. The court said, that though since the Union of Great Britain and Ireland, judgments in the Irish courts were plead-able as records, yet as they could %nly be proved by an examined copy on oath, the verity of the evidence could only be tried by a jury, and not by the court. (1 Chitty’s Pl. 537. 572.)

The state courts, and those of the United States, are independent tribunals ; and how is this court to compel a production of the record of the Circuit Court of the United States 1- Where the record is of a superior court, or court of equal jurisdiction, there is no mode of obtaining it, but by a certiorari or mittimus out of chancery. (Tidd’s Pr. 691.) But the Court of Chancery has no jurisdiction or authority to send a certiorari to the Circuit Court of the United States. If the defendant has no legal power to obtain the record of the Circuit Court, he cannot, by the replication, be compelled to produce it before this court. Whether the Circuit Court will give the defendant an exemplification or not, depends on the will and pleasure of that court.

The plea admits that there is a record in the Circuit Court of the United States; and it must be presumed that that court will always give an exemplification of it. The original record need not be produced, for the trial in this case is by the tenor of the record. (1 Phillips’s Evid. 289, 290.)