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MILLS v. DURYEE.

March 10, 1813

MILLS
v.
DURYEE.



The opinion of the court was delivered by: Story, J. delivered the opinion of the Court as follows:

Absent. TODD, J.

ERROR to the Circuit Court for the district of Columbia in an action of debt upon a judgment of the Supreme Court of the state of New York, to which the Defendant below pleaded Nil debet, which plea, upon general demurrer, was adjudged bad.

By the constitution of the United States, art. 4, sect. 1, it is declared, that 'full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.'

The act of May 26th, 1790, vol. 1, p. 115, after providing the mode by which they shall be authenticated, declares, 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.'

And by the supplementary act of March 27th, 1804, vol. 7, p. 153, § 2, it is declared, that the provisions of the original act of 26th May, 1790, shall apply as well to the records and Courts of the respective territories of the United States and countries subject to the jurisdiction of the United States as to the records and Courts of the several states.

F. S. KEY, for Plaintiff in error.

The true construction of that part of the constitution and laws of the United States will confine their operation to evidence only, and will not justify such an alteration in the rules of pleading. The 'effect' to be given to such copies is their 'effect' as evidence, for it is not pretended that an execution could issue here upon such a record.

If nul tiel record is the proper plea, or could be pleaded in such a case, there are no means of procuring and inspecting the original record, (which is essential under such an issue:) and the constitution and law, not having provided for this, it must be presumed, did not intend it.

The record in this case is not the original–it is certified and authenticated as a copy; and therefore unless entitled to more faith and credit here than in New York, it could not be offered to the Court upon the plea of nul tiel record, for under that issue this record, even in New York, would not be admitted. The original must be produced and inspected.

But if this record would be entitled to such consideration in another state, by force of the constitution and law, it is not entitled to it in this district, which is not a state. 1 Dal. 261, Phelps v. Holker. id. 188, James v. Allen. 1 N. Y. T. R. 460, Hitchcock v. Aicken. 1 Mass. T. R. 401, Bartlett v. Knight.

JONES, contra.

It is admitted that a record authenticated pursuant to the act of Congress, is to have the effect of evidence only; but it is evidence of the highest nature, viz. record evidence.

In every case of debt or contract the form and effect of the plea are determined by the dignity of that debt or contract; in other words by the dignity of the evidence, whether it be of record, by specialty, or simple contract.

The act of Congress makes the authenticated exemplication of the record equivalent to the original record in its proper state; and communicates to it the same effect as evidence, thereby making it capable of sustaining the same averments in pleading, and of abiding the same tests, as the original record. It therefore cannot be denied or controverted by any plea, such as nil debet, which goes to put in issue before the jury the matters averred by the record, and the existence of the record itself; but the Defendant ...


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