Majority
p. 173Taylor against Bryden.
Headnote
An action ot ««- sitmpsUvrasbra’t 0n a judgment obtained against the defendant, it ^puarif’th”? s»it^ in Mmy lost for non-pay- l!ie pbuntiii, on which the judgmen l was rendered : It was ,llat 1,1(5 question of roa(“eabkdiii’tencej ™ pau'J^(s1U0"1law and fact, and proper to be submitted to a <“'¿0 been* fairly oy'e^'u tras not KSam _ J0 be ln" vestigated in an action brought in this state, on the judgment tained m another evidence of ^^hmumbent "n , tllc defendant to inipeach thejnstice of it, or to show, by positiveprooi; guMy'anVunli’L,l'I-v obtamcd-THIS was an action of assumpsit, on a judgment ob- • 1 r nr t r tained against the defendant, m the state of Maryland, as _ endorsor of a bill of exchange. "
The cause was tried before Mr. Justice Thompson, at the last April sittings, in New-York.
The plaintiff produced in evidence a regularly certified copv of the judgment recovered against the defendant, in Maryland, as endorsor of a bill of exchange. The bill of exchange was drawn by C. F. T Biske, on J. A. c<? D. H. Rucker, Esqrs. of London, for 230/. sterling, at 60 days sight, in favour of W. B. Magruder, who endorsed it to the defendant, who endorsed it to the plaintiff. 1 The bill was dated the 23d July, 1799; and was noted n v on the face of it, for non-acceptance, on the 14th Sepiera-' her 17QQ vcT, J. / yy«
It also appeared, by a copy of the protest for non-acceptance, taken from the books of the notary, in July, 1804, by another notary, that the bill was regularly pro- J J or tested for non-acceptance, on the 14th September, 1799, the notary who made the protest being since dead. It also appeared, by a copy of the protest for non-payment, that it had been regularly protested for non-payment on the 16th November, 1799.
It appeared further, from the record, that the declaraiion, first filed by the plaintiff, on the 6th December, 1800, was upon the protest for non-payment of the 16th November, 1799; and that on the prayer of the plaintiff, a commission to examine witnesses in London and New-Orleans was issued the 11th May, 1802. On the 14th _ , . May, 1803, the plaintiff, it appeared, prayed leave to amend his declaration, by adding a count on the protest for non-acceptance, on the 14th September, 1799; which
p. 174
amendment was allowed by the court. The amended declaration contained also the count on the protest for non-payment.
The record contained, also, a deposition taken the 3d March, 1.803, at Baltimore, which was read in evidence. It slated that the witness, in the absence of the plaintiff, received, in November, 1799, a letter directed to the plaintiff, from his correspondent in London, dated 1.3th Sept. 1799, advising that the bill in question had been protested for non-acceptance, of which the witness gave due notice to the defendant, in February, 1800; that immediately on receipt of the news that the bills were protested for non-payment, and returned by the brig John Brockwood, from London, which was given by a letter from the plaintiff’s correspondent, dated the 21st November, 1799, notice was given to The defendant. It appeared that the vessel, called the John Brockwood, by which the first of the set and protests were sent, had been lost and was believed to have foundered at sea, and the witness stated, that as soon as it was believed that she was lost, the plaintiff sent to London for the second of the set, which was received by the plaintiff, in September, 1800, enclosed in a letter, dated the 28th June, 1800; that on receipt of the second of the set, the witness, as agent of the plaintiff, in his absence, called on the defendant and demanded payment; but received no satisfactory answer.
The plaintiff also gave in evidence, the following letter from the plaintiff to the defendant:
“ New-York, October 1, 1799.
“ Since I wrote you last, I have appointed Mr. Ray as my attorney. I have given him particular directions to try to negotiate with you for the amount of the bills for which you have obtained judgment, and it is my wish to have the thing settled amicably; and I hope on your part, you will try to give every indulgence in your
p. 175
power. It is my particular directions to Mr. Ray, the first thing he does, to apply all the funds that is my due for rent, &c. for the discharge of the same.”
The defendant then proved, that the mail for the conveyance of letters from the general post-office in London, is regularly made up, on the first Wednesday in every month, and despatched the same evening, by the government packet, to Nezv-Tork; and that it was the invariable custom of the merchants in England, to forward the second of a set of protested bills, by the first opportunity after the first have been sent.
The defendant offered other evidence which was objected to, and rejected by the judge, who charged the jury, that it was not necessary that a copy of the protest for non-acceptance should accompany the notice ; and that the question of due diligence was a subject on which the jury had a right to decide; but, in his opinion, the plaintiff had shown sufficient to enable him to recover. The jury found a verdict for the plaintiff.
A motion was made to set aside the verdict and for a new- trial; and the following points were raised by the counsel for the defendant.
1. That the defendant did not receive legal notice of the protest for non-acceptance.
2. That the protest for non-acceptance ought to have been forwaded with the notice | but was not sent till July, 1804.
3. That the protest for non-payment ought to have been sent by the first opportunity.
4. That the second of the set of bills ought to have been sent by the next opportunity after forwarding the first.
5. That the letter of the defendant to the plaintiff was conditional, and contained no promise to pay, and was not binding, being written under an ignorance of the defendant’s legal rights.
p. 176cited 4 Term Rep. 175. Kyd, 136, 137. 1 Selwyn's N. P. 357. note 35. 352. 5 Esp. Rep. 157. 1 Term Rep. 167. Buller's N. P. 271. 2 Esp. Rep. 511. 3 Dallas, 365. 405. Kyd, 164. 166. 224. 6 East, 7. 2 H. Bl. 6. 226, 227. 565. 2 Caines, 344. Malyne's Lex Merc. 2 64. cited Chitty on Bills, 92. 2 Esp. Cas. 511. 4 Esp. Cas. 48. 3 Johns. Rep. 206 . 4 East, 481. Doug. Rep. 1. 9 East, 192. 11 East, 118.
The cause was argued by Ray (of Baltimore) and Slosson, for the defendants; and by D. B. Ogden and Boyd, for the plaintiff; but from the opinion delivered by the court, it becomes unnecessary to state the arguments 0£ Connsel, which turned chiefly on the question of due diligence and notice.
The defendant's counsel
The plaintiff's counsel
delivered the opinion of the court. The judgment in Maryland, upon which this suit was brought, was rendered against the defendant, as an endorsor of a foreign bill of exchange, and he now contends that he was not chargeable, by reason of the want of due notice of the non-acceptance, and of the non-payment of the bill. Whether notice of the non-acceptance of the bill, without accompanying that notice with the protest for non-acceptance, was competent, under the law of merchants, to charge the party, is a point which we need not now dis.cuss, as the suit in Maryland was upon the protest for, non-payment, as well as for the non-acceptance; and the non-payment, if supported by the requisite notice and proof, was sufficient to sustain the action. It has been urged to the court that there was not due diligence in giving notice of non-payment, and that the question of diligence is open here for investigation, notwithstanding the trial and judgment in the other state. But we are by no means satisfied that such.an inquiry ought now to
p. 177
be pursued, after the question has been once fairly litigated and decided. The question of reasonable notice is a compound of law and fact, to be submitted to a jury. (6 East, 3. and 14. in notis. 1 Sch. & Lefroy, 461. 1 Campb. 248.) The judgment in Maryland is presumptive evidence of a just demand ; and it was incumbent upon the defendant, if he would obstruct the execution of the judgment here, to show, by positive proof, that it was irregularly or unduly obtained. We do not know the whole amount of the evidence that may have been given upon the trial in Maryland. The record contains a deposition, but does not state whether any, or what additional proof was given. To try over again, as of course, every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other states, and would be carrying the doctrine of reexamination to an oppressive extent. It would be the same as granting a new trial in every case, and upon every question of fact. Suppose a recovery in another state, or in any foreign court, in an action for a tort, as for an assault and battery, false imprisonment, slander, &c. and the defendant was duly summoned and appeared, and made his defence, and the trial was con^ ducted orderly a.nd impartially, according to the rules of a civilized jurisprudence, is every such case to be tried again here upon the merits ? I much doubt whether the rule can ever go this length. The general language of the books is, that the defendant must impeach the judgment, by showing, affirmatively, that it was unjust, by being irregularly or unfairly procured.
In the case of Hitchcock & Fitch v. Aickin, (l Caines, 460.) this court Went no further than to decide the general principle, that a judgment of another state was not conclusive, but was to be placed upon the footing of a foreign judgment under the English law. '1 he question then is, how far, and to what extent, do the English courts permit foreign
p. 178
judgments to be opened, to let in a re-examination of . 1 . . the merits. The case of Sinclair v. Fraser, contains the rule of the English courts. It was decided by the house of lords, on the 4th of March, 1771, upon an appeal from the court of sessions in Scotland. (Cited by Mr. Wedderburne, the solicitor-general, in the case of the Dutchess of Kingston, 11 State Tr. 222.) A suit was brought upon a judgment in Jamaica; and the question was, what should be the effect of the judgment; and the court of sessions refused to give any effect to it, and held the party bound to prove the ground, the nature and the extent of his demand. But upon appeal to the house of lords, the judgment of the court of sessions was reversed, and the rule of law was stated in the judgment of reversal ; “ that the judgment of the court of Jamaica ought to be received, as evidence, prima facie, of the debt; and that it lies on the defendant to impeach the justice of it, or to show that it was irregularly and unduly obtained.” This decision was cited in Galbraith v. Neville, (K. B. 29 Geo. III. Doug. Rep. 3d edit. p. 5. note,) and Mr. Justice Buller said, that it had always been considered as establishing the true rule.
In the present case, the defendant has certainly not succeeded in impeaching the judgment. He has, at most, only excited doubts, under the obscure, and, perhaps, very imperfect testimony before us, as to the fact of due diligence in giving notice of the protest for non-payment. And where the party has once litigated his case, before a competent jurisdiction, and when no fraud or unfairness is pretended, every doubt and eyery presumption arising on a matter in pais ought to be turned against him. We may, with propriety, adopt the observation of Lord Kenyon, in the case of Galbraith v. Neville, as stated in a note to 5 East, 475. that “ without entering into the question how far a foreign judgment was impeachable, it was, at all events, clear, that it was prima facie evidence of the debt, and that no evidence had
p. 179
been adduced to impeach this.” The motion on the part of the defendant, for a new trial, is therefore denied.
Motion denied.