MILLS

tion is what the law calls a foreign judgment, and it is V. every where acknowledged that nil debet is the proper DURYEE. plea to such a judgment. Nul tiel record is the proper plea only when the judgment derives its origin from the same source of power with the Court before which the action on the former judgment is instituted. The former concludes to the country, the latter to the Court, and is triable only by inspection.

If a different decision were necessary to give effect to the 1st section 4th article of the constitution, and the act of 26th May, 1790, I should not hesitate to yield to that necessity. But no such necessity exists; for by receiving the record of the state Court properly authenticated as conclusive evidence of the debt, full effect is given to the constitution and the law. And such appears, from the terms made use of by the legislature, to have been their idea of the course to be pursued in the prosecution of the suit upon such a judgment. For faith and credit are terms strictly applicable to evidence.

I am induced to vary in deciding on this question from an apprehension that receiving the plea of nul trel record may at some future time involve this Court in inextricable difficulty. In the case of Holker and Parker, which we had before us this term, we see an instance in which a judgment for $150,000 was given in Pennsylvania upon an attachment levied on a cask of wine and debt in judgment brought on that judgment in the state of Massachusetts. Now if in this action nul tiel record must necessarily be pleaded, it would be difficult to find a method by which the enforcing of such a judgment could be avoided. Instead of promoting then the object of the constitution by removing all cause for state jealousies, nothing could tend more to enforce them than enforcing such a judgment. There are certain eternal principles of justice which never ought to be dispensed with, and which Courts of justice never can dispense with but when compelled by positive staOne of those is, that jurisdiction cannot be justly exercised by a state over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction by being found within their limits. But if the states are at liberty to pass the most absurd laws on this subject, and we

tute.

admit of a course of pleading which puts it out of our MILLS -power to prevent the execution of judgments obtained

v.

under those laws, certainly an effect will be given to DURYEE. that article of the constitution in direct hostility with the object of it.

I will not now undertake to decide, nor does this case require it, how far the Courts of the United States would be bound to carry into effect such judgments; but I am unwilling to be precluded, by a technical nicety, from exercising our judgment at all upon such cases.

OLIVER
บ.

THE MARYLAND INSURANCE COMPANY.

1813.

March $1.

Absent....WASHINGTON, J. and TODD, J.

may

wait to

ERROR to the Circuit Court for the district of The longth of Maryland. The case arose upon a policy of insurance time a vessel on the snow Comet, "at and from Baltimore to Bar- take in her car❝celona, and at and from Barcelona back to Balti- go, without dis❝ more."

up

charging the underwriters, does not de

usage of the

She arrived at Barcelona on the 25th of July, 1807, pend on the and after remaining forty days under quarantine, went trade. to the city where she remained until the 8th of Jan- The danger which will jus uary, 1808. She then proceeded to Salou for the prin- tify a vessel in cipal part of her cargo, which she took in there and remaining in sailed from thence on her return voyage to Baltimore port a long time, without on the 28th of January, 1808, and was captured by the discharging British and condemned under the orders in council of the underthe 7th of November, 1807.

writers, must be obvious, immediate, di

to the inter

At the trial the Defendants insisted on the delay at rectly applied Barcelona and the stopping at Salou as deviations ruption of the which destroyed the Plaintiff's right to recover upon voyage, & imthe policy. The Plaintiff justified the stopping at Salou tant, contin

inent, not dis

OLIVER by the usage of the trade. To justify the delay at Barv. celona he relied on two grounds, 1st, a reasonable apMARY'D. prehension of capturé; and 2d, the usage of the trade. INS. Co. But the Court below decided that these excuses, under the circumstances stated in the bills of exceptions, were gent & indefi- insufficient. Verdict and judgment were rendered for If, according to the Defendants, and the Plaintiff brought his writ of the usage of error. the trade, a vessel be per

nite.

mitted to go

to another to

haust at one

The circumstances relied upon to show a reasonable from one port apprehension of danger were stated in the captain's procollect her car- test to be as follows: that hearing, in the month of Augo, and she un- gust, news respecting the dispute between Great Britain necessarily ex- and the United States respecting the Chesapeake friport the whole gate, the agents recommended their remaining in Bartime allowed celona until they should hear how the differences should the usage of terminate, as part of their return cargo was to be purthe trade to chased by bills on London. That when they were in complete her the act of sailing for Salou on the 1st of December, not go to the they were informed that the Algerine cruizers were other port out capturing American vessels, and they were advised

according to

cargo, she can.

without being

guilty of such to remain until they received further information.

a deviation as

will avoid the

policy.

What is a reasonable apprehension of dan

HARPER, for the Plaintiff in error, contended,

1st. That the vessel had a right, under the usage ger is a ques- proved, to remain at Barcelona till her cargo was protion of law to vided at Salou, and then to go to Salou to take it in. be decided by the Court. And, 2d. That she had a right to remain at Barcelona till the danger of the Algerine cruizers had passed away. 1 Marshall, 204. 1 Johnson, 181, 301. 2 Johnson, 138. 3 Johnson, 352.

(Quere.)

MARTIN and PINKNEY, contra,

Did not deny that a reasonable apprehension of great danger would justify a reasonable delay; but contended there was no sufficient evidence of such reasonable apprehension. And with regard to the usage of trade they insisted, that if the vessel exhausted her time for loading at Barcelona, she was not justified by the usage of the trade in going to Salou. That the Court, and not the jury, was to judge from the facts whether the apprehension of danger was reasonable.

HARPER, in reply, contended,

That the question, whether there was reasonable apprehension of danger, was a question of fact for the jury to decide; or it was a question in which the law and fact were so blended as to be a matter properly cognizable by the jury.

March 13th....MARSHALL, Ch. J. delivered the opinion of the Court as follows:

This was an action brought on a policy insuring the snow Comet at and from Baltimore to Barcelona and at and from thence back to Baltimore. The Comet arrived at Barcelona on the 25th day of July, in the year 1807, where she was compelled to perform quarantine. On the 28th of November the Comet cleared out from Barcelona for Salou, a port of Catalonia, about sixty miles south of Barcelona, where her return cargo was ready to be taken on board. On the first of December, when in the act of sailing, the officers of the vessel were informed that the Algerine cruizers were out capturing American vessels. They were advised to remain until they received further information. On the 8th day of January, 1808, they sailed for Salou and arrived on the 10th. They were detained by high winds till the 28th of January, when they sailed for Baltimore. On the 5th of February the vessel was captured by a British cruizer, while on her return voyage, and carried into Gibraltar, where she was condemned under the orders of council of the 8th of November, 1807. Evidence was given that it was usual for vessels trading to Bar celona to touch at Salou or some other port on the same coast, to take in the whole or part of their return cargo, and that in some instances vessels had remained in the port of Barcelona four, six, and even eight months, waiting for a return cargo.

On this evidence the counsel for the Defendants moved the Court to instruct the jury that the Plaintiff could not recover in this cause by reason of the length of time the vessel remained at Barcelona. The Court refused to give the direction as prayed, but did instruct the jury that, if they believed the facts stated, the Plaintiff was not entitled to recover unless from the whole VOL. VII.

63

OLIVER
છે. 1

MARY'D.
INS. co.

OLIVER testimony in the cause they should be of opinion that C. the vessel did not remain longer at Barcelona than the MARY'D. usage and custom of trade at that place rendered necesINS. Co. sary to complete her cargo. To this direction of the Court the Plaintiff, by his counsel, excepted.

This exception was not much pressed at the bar, nor does it appear to this Court to contain any principle to which he could rightly object.

Unquestionably an idle waste of time, after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners-not of the underwriters.

There is however some doubt spread over the opini on in this case in consequence of the terms in which it is expressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed that this was regulated by usage and custom. The usages and customs of a port or of a trade are peculiar to the port or trade. But the necessity of waiting where a cargo is to be taken on board until it can be obtained is common to all ports and to all trades. The length of time frequently employed in selling one cargo and procuring another may assist in proving that a particular vessel has or has not practised unnecessary delays in port, but can establish no usage by which the time of remaining in port is fixed. The substantial part of the opinion however appears to have been, and seems so to, have been understood, that the Plaintiff could not recover, unless the jury should be of opinion that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time usually employed for that purpose might be considered as evidence.

The Défendants then moved the Court to instruct the jury that if the said vessel continued at Barcelona as long as was justifiable by the usage of trade at that place for completing and taking in her cargo, and did hot complete and take in her cargo there, but after