The United States vs. Dixey et al.

avowed destination was not bona fide, and that the excuse was a mere cover to a breach of the law; as if the vessel is not sufficiently provisioned for the avowed voyage, and, on that account, called at a forbidden port. But this intention may be repelled. In this case, the voyage was one which the defendant was accustomed to carry on, and which had been performed to New-Orleans only the year before, in the same vessel. It is very improbable, that he would risk so large a cargo in a vessel which he did not deem sufficient to carry it safely, and he could not calculate her condition so nicely, as to think her sufficient to go to Havana, and not to New-Orleans. Besides, the immediate cause of her incapacity to proceed, arose from her striking on the Bahama Bank. The question is, was the breach of the condition of the bond produced by a peril of the sea, or unavoidable accident-or merely from the fault of the defendant? If the former, the verdict should be for the defendant, if the latter, against him.

Verdict for defendant.

Green vs. Sarmiento.

GREEN 78. SARMIENTO.

The defendant was discharged by the Bankrupt Law of Teneriffe, in 1801. In 1796, a suit was instituted against him and another, in NewYork, by capias; and a judgment was obtained against him, on the verdict of a jury, in 1797. This suit was instituted upon the judgment, to which he entered the plea of bankruptcy, and a discharge by the laws of Teneriffe, subsequent to the rendition of the judgment.

The law of the country where a contract is made, is the law of the con- " tract, wherever performance is demanded; and the same law which creates the charge, will be regarded, if it operate a discharge of the contract.

To support the plea of bankruptcy in this case, the defendant is bound to show that the contract was originally made at Teneriffe. The Constitution of the United States, intended to vest in Congress the full power to declare the judgments of one state Court conclusive in every other; and the "Act to prescribe the mode in which the public acts, records, and judicial proceedings, in each state, shall be authenticated, so as to take effect in every other state," has declared, not that they shall have full power and conclusive effect, but that they shall have such effect, in every other state, as they possessed in the state whence they were taken.

The judgment obtained against the defendant in New-York is conclusive, and extinguishes the original contract; and the discharge of the defendant in Teneriffe, is no bar to this action.

THIS was an action of debt, brought on a judgment recovered in the Mayor's Court of New-York, in an action of assumpsit, against the defendant and Mahony, as partners, laid to have been made at Madeira. Pleas, nil debet and bankruptcy of defendant in 1801, and certificate of discharge at Teneriffe.

By the New-York record, it appears, that the capias ad respondendum was executed upon the defendant, but not on Mahony. The defendant entered an appearance by counsel, VOL. III.

C

Green vs. Sarmiento.

in 1795, and pleaded non assumpsit. In 1796, he was called, and not appearing, a jury was empannelled to try the issue, who found a verdict for the sum now demanded, and in 1797 judgment was entered.

The bankruptcy of the defendant, and the proceedings against him, according to the law and usage of Spain, in the island of Teneriffe, in 1801, and his certificate and discharge, were fully proved.

For the plaintiff, it was argued-1. That it is not to be presumed that the original contract was at Teneriffe, or in a country subject to Spain; and that to make the proceedings at that island operate as a discharge, it was necessary for the defendant to prove this fact. Dougl. 1. 1 East, 6.

2. That though it were made at Teneriffe, still, the judgment merges the original contract, and affords a new consideration for the assumpsit, even though the judgment should be considered as only prima facie evidence. 6 Rep. 44. 6.

3. But most certainly so, if the judgment be conclusive; and that the constitution and law of Congress (vol. i. p. 115.) make it conclusive. 2 Dall. 302.

All these points were controverted by the defendant, and the cases below were cited: 2 Ld. Kaimes' Equity, 367. 365. 374. Campb. 63. 1 Caines' N. Y. T. Rep. 460. 1 Johns. N. Y. Rep. 424. 1 Mass. Rep. 401. 1 Dall. 191. 261. 5 East, 124. Coop. Bank. Law, Appen. 27. 30. 1 Dall. 229. 6 Johns. N. Y. Rep. 287. 5 Idem. 132. 9 East, 192. 5 Johns. 37. Coop. B. L. 361 to 373. 8 T. Rep. 609.

WASHINGTON, Justice, charged the jury. We shall consider the validity of the plea of bankruptcy and discharge at Teneriffe-1. In relation to the original debt, independent of the judgment on which this action is founded-and 2. As it may affect that judgment.

First. The rule is, that the law of the country where a contract is made, is the law of the contract, wherever perform

Green vs. Sarmiento.

ance is demanded; and the same law which creates the charge, will be regarded, if it operate a discharge of the contract. The laws of one country can have in themselves no extraterritorial force, except so far as the comity of other nations may extend, to give them effect; and where is the nation that will, or ought to acknowledge the validity of foreign laws, legis-1 lating over persons not within the jurisdiction of such foreign country, and affecting contracts not entered into elsewhere, and with a view to other laws? It is said that France acknowledges the binding force of foreign bankrupt laws, to discharge the foreign debtor from all his contracts, wherever made. If this be so, we can only say, that the comity of that nation is marked by a whimsical, and we think, irrational opposition, to that which obtains in most other countries. She disregards the decisions of foreign prize Courts, so far as they affect the subjects of France, although they are Courts of the law of nations, and although all the world are nominally parties to the causes they decide, and the captor and captured are in reality the immediate parties; and yet she submits to foreign municipal laws, affecting the interests of French subjects, upon the ground of a mere fiction, which, in reality, favours only the subjects of the country where the law operates, to the unjust exclusion of her own subjects.

It is said, that the rule observed in the state of Pennsylvania, is different from that which is approved by the Court as the general rule; and to prove this, the case of Miller vs. Hall, has been quoted and relied upon. In the case of Banks vs. Greenleaf, decided ten or twelve years ago in the Circuit Court of Virginia, upon the ground that a contract made in Virginia, was not discharged by the Insolvent Law of Maryland; Miller vs. Hall was cited. It was then, and continues to be, our opinion, that that case is consistent with the rule before laid down; the debt having accrued at Baltimore, where the goods were sold and the money received.

If, then, the general rule be correctly stated, it is essential

Green vs. Sarmiento.

to the support of the defence set up in this cause, in relation to the original contract, to prove that it was made at Teneriffe, or in some place governed by Spanish laws. No direct proof of this fact has been given, and certainly the circumstance of the defendant having generally resided at Teneriffe, from the year 1790, to the year 1810, furnishes a very slender ground for presuming it. Occasional absences have been admitted, at which times the contract in question might have been made at Madeira; or it may have accrued there although the defendant had never left the island of Teneriffe; since it does not appear where Mahony, the other partner, lived; and since the debt might have been contracted in a variety of ways at Madeira, though both partners had always resided at Teneriffe. If, then, this debt was not contracted at Teneriffe, the cause is against the defendant, independent of any change produced by the judgment; but as it is possible the jury may not view the evidence in the light it is seen by the Court, it may be necessary to consider the second point; which is, did the judgment so far alter the nature of the original contract, that it could not be discharged by the proceedings at Teneriffe, on the bankruptcy of Sarmiento?

It is contended by the counsel for the plaintiff, that the original contract is so completely extinguished by the judgment, that it cannot be noticed in reference to any question to which it might previously have given rise, and therefore that the debt must be considered as having accrued under the judgment in the state of New-York. This is certainly true, where the judgment is conclusive and unexaminable, in a Court of co-ordinate jurisdiction; nor does the Court mean to intimate, that the rule would not be the same, in a case where the judgment is only prima facie evidence of a debt. But since this latter point has not been considered, and the Court is prepared to give an opinion upon the great question which has been discussed, of the conclusiveness of a judgment of a state Court in every other state of the Union; it is thought best to decide