one or the other; the spawn of another bed, higher up the stream, might have lodged here and formed these; they are in no way [*] identified, they have no car mark, they cannot be distinguished. To what purpose would it be for my simpleton to say, that there was no deer in that part of the forest when he let his loose.

Will it be said that the plaintiff is entitled not only to the old stock planted, but to the young brood also? and that he having first occupied the ground, all accessions belong to him? I apprehend not. The oyster, though once settled in the sand, is incapable of locomotion, yet from its mode of propagation, may people a whole river. Could it be said then, that the first planter might, by this means, secure to himself the oyster fishery in the whole extent of this water? And yet, if he can appropriate one spot, why not another, and another, and another?

I am informed that this business of planting oysters in these waters has been carried to great extent; that the beds now there, claimed by individuals on this principle, are numerous, and of great value; that this right has been recognized by a sort of tacit consent, and the property protected by mutual forbearance. And as it has a tendency to increase the quantity of oysters, and at the same time, with little or no injury to others, to promote the interest of those engaged in it, I wish it could have been supported and rendered permanent, but upon the whole case, I can see no principle upon which that can be done.-I am of opinion,

1st. That in a common fishery, such as this is stated in the case to be, no man can appropriate to himself any particular shoal, bed, or spot, to the exclusion of others.

2d. That this throwing, or as it is called in the case, this planting of these oysters, was a returning of them to their proper element, to mix with their kind; that it was in contemplation of law, a complete abandonment.

3d. That if it were not so, yet there is nothing contained in the case to shew that the oysters taken by the [*] defendants were the identical oysters planted by the plaintiff, in which he claims to have property. The circumstances stated do not prove it. In this the plaintiff has failed. Reverse.

ROSSELL, J.-Was of opinion, that the judgment be affirmed.

PENNINGTON, J.-Questions that respect the right of fishery, are becoming more and more important in this state, and require circumspection in their investigation, and de liberation in their determination. This is an action of trover for taking and converting a quantity of oysters, the property of the plaintiff below. It comes before us on a case stated,

to which we are confined. The taking and conversion is admitted; the property the only point in controversy. It is admitted, that the property of a quantity of oysters was in the plaintiff below; that he planted, as it is termed in the state of the case, these his oysters in the bed of a certain river in this state; that this river was a public navigable river and high-way, where the tide flowed and reflowed, and in which, fish and oysters were found and taken as of right; that is to be understood, as I apprehend, of common right; that at the time of planting the oysters, there were no oysters to be found in the particular spot where they were planted. The time of planting, which might be of some use in investigating the question, is not stated. If a man should put down into this river a quantity of oysters for their preservation or improvement, in a part of the river where no oysters had ever grown, or ever would grow; and in such manner as to do no injury to the public; I should not consider it such an act as manifested in itself an intention to abandon the property in the oysters; but this case states, that in this river oysters were found, by which, I understand, that they naturally grew there. Now, although there may not have been any oysters on the particular spot where the oysters were put down, at the time of doing it, yet there may have grown oysters there since; in which case, he would not be [*] entitled to all the oysters found in the same bed ; nor can I perceive how he could undertake to separate and identify them, without endless confusion and controversy. This case would resemble the case of a stranger voluntarily throwing his grain or money into my heap, when, from the difficulty of separation, caused by his own folly, I would be entitled to the whole. It is not stated in this case, that the same oysters that were put down by the plaintiff, were taken up by the defendant. The case affords evidence from which a jury might have drawn such conclusion; but I apprehend, that a court on a case stated, will not assume, by way of intendment an important fact on which the cause turns; I consider a case stated, in the nature of a special verdict, in which the facts must be found, and not taken by inference or intendment. I think, that as the case is stated, the right of property in the oysters is not fully made out to be in the plaintiff below; this being essentially requisite to maintain an action of trover, the judgment that he obtained must be reversed.

How far an action may be maintained for oysters put down in a public river, where oysters do not grow, and no danger of an intermixture with other oysters, or an intermeddling with a public right, is not, as I apprehend, before us—and of

course, not to be determined; whenever it does arise, it will require a more extensive view of the subject. To sustain this practice of planting oysters, as it is called, unequivocal evidence at least must be given, that no injury is done to individuals or the public; nor can it be considered as appropriating the soil of the bed of the river to the individual use of the person planting the oysters. Before this question is finally settled, I apprehend, that the right to the soil of the bed of the river, will be brought in question. In the present case, this right seems to be considered as in the public.

Judgment reversed.

[*] In the case of Richard Penn v. James Meeks, in which the opinion of the Court was given in November Term, 1806, page 151, the Reporter, not having received Mr. Justice Rossell's written opinion at the time the reports of that term went to press, made use of a short note of his own: In justice to Judge Rossell and the public, he thinks it his duty to insert that opinion in this place; it should have been inserted immediately after the state of the case, in page 153.

ROSSELL, J.-The only difficulty I have felt on this question, arose from an idea that the book of judgments, from which the clerk of Cumberland has given a copy, might be considered as the record of the Court of Common Pleas of of that county; and if so, it would not be done away in the summary manner now pursued. On considering the subject, however, and finding that this entry in the book of judgments was not made by order, or under the direction of that Court, and that all proceedings under it were without their control, consequently, and certainly, cannot be considered as their record; and it is, therefore, subject to the consideration of this Court. In this view of the question, on an examination of the evidence accompanying these proceedings, I think the writing, styled a judgment, is totally void; and that the money paid into this Court by no means subject to its demands; and indeed, there is on the face of these proceedings so much the appearance of trick, that this Court is called on to protect their suitors against it. I see no way by which this can be done but by the present mode; and I am, therefore, of opinion, that the money paid by the sheriff of Cumberland into this Court, be delivered to the plaintiff.

KIRKPATRICK, C. J.-Concurred.

NOTE. The six following cases were not published in some copies of Vol. I. and the pages from 406 to 421 inclusive, are duplicates, which in this edition are distinguished thus, [*406e] to [421e] for the extra cases, and [*4060] to [*4210] for the original pagings.

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

FEBRUARY TERM, 1805.

CURTIS vs. MARTIN & JOEL GIBBS.

Plea of nil debet, allowed on demurrer, in action on a judgment in a foreign attachment in Pennsylvania.

Quere. As to effect in this state, of a judgment in Pennsylvania.

THIS was an action of debt, brought on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas in and for the county of Philadelphia, in the state of Pennsylvania. The defendants pleaded nil debet; to which the plaintiff demurred, and the defendants joined in demurrer.

Mr. M'Ilvaine, for the plaintiff, contended-That the plea in this case was bad; that nul tiel record was the proper plea, for which he cited, 5 Comy. 538, 2 Dal. 302, 3 Dal. 85, and the constitution of the United States.

Mr. R. Stockton, on the other side-This judgment at common law, can only be considered as prima facia evidence of a debt which may be examined and controverted under a plea of the general issue; judgments obtained in the Courts of Wales, Jamaica, Scotland, and Calcutta, are in a similar situation to the one on which this action is founded; and they have been held in the courts at Westminster Hall, as only prima facie evidence of a debt, Doug. 1.

The constitution of the United States means no more than that the judgment and proceeding in the courts of other states, shall be evidence that such proceedings were had; but is not intended to give any effect to such [*] judgments and proceedings which they were not otherwise entitled to; that the Articles of Confederation contained a like provision, (he cited 1 Dal. 190, 188, 161. and 1 New York Term Rep, 460.) Again, what evidence have we that a plea of nul tiel record in this case, would be good in Pennsylvania; this de[*399] [*400]

pends on the law of that State, and is a matter of fact to be tried in the same way as any other fact.

Mr. Griffith, in reply: He considered the decision in the district Court of the United States in Pennsylvania, as settling the question; this Court cannot enter into the merits or regularity of the judgment in Pennsylvania, on which this action is brought; but must intend that it was regularly obtained; if the defendant will avail himself of the laws and usages of Pennsylvania, he must plead and put them in issue. It was not necessary for the plaintiff to aver, that the laws and usages of Pennsylvania would make this judgment conclusive in the courts of that state.

PENNINGTON, J.-The first ground taken by the learned counsel for the defendants is-That judgments obtained in the courts of a neighboring state, are to be considered in the light of foreign judgments, and only prima facie evidence of a debt, and therefore that nil debet, is a proper plea.

It is true, that the distinction between judgments that are conclusive and those that are only prima facie evidence of a debt, is a distinction between domestic and foreign courts; judgments of the former being conclusive, and those of the latter prima facie evidence only. It may, however, be proper to observe, that this distinction does not extend to foreign courts of admiralty; these courts, acting under the laws of nations, and not under the municipal laws of any particular country, are quoad the subject matter of their jurisdiction, in the situation of domestic courts; and of course, their judgments or sentences are conclusive. It must, I think, be admitted, that at common law, the courts of a neighboring state must be considered, as it respects [*] the effects of their judgments, as foreign courts. The inquiry therefore is, whether or not the constitution and law of the United States alter their condition.

When we consider the intimate connexion between the States, forming the great American Republic, the daily intercourse and dealings of the citizens, the similarity in their laws, and sameness in legal proceedings, and in the organization and authority of their various courts of justice, and above all, the necessity of union and harmony to our mutual prosperity; it was not to be expected that our tribunals of justice would be left, with respect to each other, in the situation of mere strangers or foreigners; but that superior credit would be given to their judgments or sentences, than was given to the judgments and sentences of foreign courts. According to this idea, we find a provision, first in the Articles of Confederation, and afterwards, in the constitution of the United States, which specially provides, That "full