Taylor v. Bryden, 8 Johns. 173

Taylor v. Bryden

8 Johns. 173 | N.Y. Sup. Ct. | 1811

Kent, Ch. J.

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 *177be 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 *178judgments 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 *179been adduced to impeach this.” The motion on the part of the defendant, for a new trial, is therefore denied.

Motion denied.