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 king[89] dom 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 [90] 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 [91] «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.
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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 king[89] dom 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 [90] 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 [91] «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.
[92] 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.