dissenting from the opinion of the court, delivered the following opinion: I regret that I cannot unite with my brethren in the judgment pronounced iu this cause, but will endeavour to give my view of the subject, in which I have the less confidence, being unsupport» ed by the opinion of either of the other members of the court, on the principal question presented for consideration.
This case is brought up on three bills of exceptions, No. 1, 2 & 5, in the record, taken at the trial, on the part of Owings and Ckeston, the appellants. The exceptions No. 3 & 4, taken on the part of the appellees being waived, and forming no part of the subject of this appeal, have not been examined into.
The question growing out of the first bill of exceptions is, whether parol evidence of a foreign judgment can be received? And I think the court, before whom the case was tried, did right in not suffering such evidence to go to the jury. It is not to be questioned, that ifa foreign judg ment had been produced, Benjamin Noland might have given evidence that the money he received was paid in pursuance of that judgment. But no such judgment, or copy of such judgment, being produced, the circumstance that he had been examined on the part of Nicholson and Williams, to prove that he had received the money in question from Tuttle, and paid it over to Owings and Cheslon, affords no foundation for letting m his deposition, taken on a cross examination by them, to prove that proceedings were instituted in a court at St. Pierres, to which Nicholson and Williams were parties, and that a sale of the property proceeded against, was definitively decreed for tne payment of the claim of Owings and Cheston, and others. That was the festirnopy offered, and if it had been received, there would have been no necessity for producing the judgment to enable the court to see who were parties, and what was decided by it, and thereby to judge of its legal effect; since it would have been already proved, that the proceedings were in rem, that Nicholson and Williams were parties to those proceedings, and that the judgment was against the thing, the proceeds of which form, the matter of controversy in this suit, and the effect of the judgment, to be collected, not from evidence offered by the judgment itself, but from Noland’s loose impressions of its import; which would be subversive of the established rule of evidence, that authenticated copies of records are *106required, in the absence of the originals, as the next best and cannot be supplied by parol. And the whole of a record, and not a partial extract, must be produced, in order that the court may be put in possession of the full effect of it; for a part only may have an import, materially different from the whole taken together; and the object, with a view to which the whole record is required, would be equally defeated, by the admission of par rol evidence. And so with regard to proceeding in foreign courts, the reason and the law are the same. It is to the rejection of the evidence offered, of the proceedings and judgment in Martinique, that the exception is to be considered as taken, and not the admission, of the process, that Noland received the money, in the character, and under the impressions, stated in his deposition, by which Ow•• mgs and Cheston were in no way prejudiced. . And as No-land's impressions were not very material, I have not examined.how far. the court was right in suffering them to go to the jury, and shall not, for that reason, quarrel with the opinion. ,
■ There are two questions arising on the second bill of ex-captions — 1. Whether the assignment by Wright of the 24th August to Nicholson and Williams, of the bill of lading, and his .deed to them of the same date, passed the property in the cargo of the brig Hunter to them. And 2. If they did, whether they can, in this form of action, recover from Oioings and Cheston, so much of the proceeds of the qargo as was received by Noland from Tuttle, and by him paid over to them.
., Iii support of the negative of the first proposition, it is contended — 1st. That Wright purchased the flour, which formed the cargo, in contemplation of failure, with a view to secure Nicholson and Williams against certain liabilities incurred by them on his account. That the purchase was fraudulent and void, and therefore that the property in tlm flour did not pass, and not being in him, he could not transfer it to another: And 2d. That if Wright did acquire a property in the goods, his assignment and deed to Nicholson and Williams, amounted to an undue preference, to,the prejudice of other creditors, and were therefore void. But neither of these positions can be sustained. If it should be admitted, that a purchase of goods, in contemplation of failure, and with a view to secure a favoured creditor, would in law be fraudulent and void, yet the principle would not reach this case. It no where appears that Wright either, was, or supposed himself to be in insolvent circumstances, or in danger of failure, at the time'he purchased the flour; or that he made the purchase with a view to se~ cure Nicholson and Williams in preference to other creditors. But the converse may be collected from the facts in the cause; for it is in proof, that he had purchased from Owings and Cheston more flour than that, for which his note to them was given; but that the vessel he was about to load, not being able to carry the whole, he re*107turned to them what could not be put on board, and passed his note for the balance. Now, if he intended a fraud, or made the purchase with a view to the preference " tended for, it is not to be presumed that he would have returned any part of the flour, but would have applied it to the purpose for which the purchase was made; and more particularly when the whole amount of the flour was not equal to the liabilities, which Nicholson and Williams had incurred on his account, and his not having done so, precludes the suspicion that he made the purchase witli a view to an improper preference, and exempts the transaction from the imputation of collusion between him and Nicholson and Williams, for their benefit, at the time the flour was purchased. And the objection that the assignment of the bill of lading, and the deed to Nicholson and Williams, are void on the ground of undue preference, is not better supported. At common law, a debtor may secure one creditor, to the exclusion of others, either by payment, or assignment of his property. The bankrupt laws of England are not in force in this state, and there is no. act of assembly, that can be so construed, as to defeat the operation of either the assignment or deed in question. The insolvent act of 1805 provides, “that if any person shall be convicted of giving to any creditor or security an undue and improper preference, lie shall be deprived of the benefit of the act.” What amounted to “an undue and improper preference” under that act, became a question; ,and the legislature, in 1807, passed a law, in which it is provided, “that a deed made by any person, in favour of one creditor or security, in contemplation of becoming an insolvent debtor, shall be taken to be an undue and impro-. per preference, within the meaning of the act of 1805.” But by neither of those laws is it declared, that a deed, assignment, or any other act of undue preference, is fraudulent or void, or inoperative to pass the property. Wright indeed, by the preference given to Nicholson and Williams, forfeited all claim to the benefit of the act of 1805, and if he had applied for relief under that act, it would have been denied him, by which denial the law would have been gratified; for though, as a punishment on a debtor for giving, such undue preference, the law withholds from him its benefits, it does not operate to the prejudice of the preferred creditor; but the deed by which the preference is given, remains in full force, and vests in him the proper-, ty intended to be transferred, if in other respects it.is.regular, which seems to be the case here. With respect to the bill of lading, it is an assignable instrument, and it is a common mode of transferring the cargo of a vessel. And the assignment in this case, made when the brig Hunter was at sea, proceeding on her voyage to Martinique, is clear of all exception; and Nicholson aud Williams, having paid the amount of the debts, (as security against which the transfer was made,) before the money was received by *108Noland, from Tuttle, the property in the cargo became ah-solute in them.
It remains then to inquire, Secondly, whether, having a right to the property, they can in this form of action recover from Owings and Cheston such part of the proceeds as came to their hands? Of which it seems to me, there can now be but little doubt. Having a complete legal title to the property, they had an equal right to the proceeds. And a part of those proceeds having cotne to the hands of Ow~ mgs and Cheston, without right, the law considers it as received for the use of those, who ex equo et bono, are entitled to it, and raises an implied promise to pay, on which an action for money had and received will properly lie. I think therefore that the second exception cannot be supported.
The fifth bill of exceptions presents this case in a different view, and the question is, how far the right of Nicholson and Williams, to recover in this action, as supported by the facts set out in the first and second bills of exceptions, is affected by the proceedings in the court of the first instance in the Island of Martinique. To which if is objected-^-1st. That Nicholson and Williams were not parr ties to those proceedings; and 2d. That if they were parties, those proceedings are not conclusive on -their right to the matter in controversy,
. It is a well established principle, governing the courts in England, that a judgment or sentence of a foreign municipal, or admiralty court, having competent jurisdiction, is conclusive in a case between the same parties, upon the same matter coming incidentally in question. The same principle has been adopted by the courts of Pennsylvania, and the Supreme Court of the United States; and for the same reasons governing them, I shall consider this court as bound by the same rule. In the case of Sill vs. Worswick, 1 H. Blk. 665, referred to in the argument, it is ruled, that if a British subject becomes a bankrupt, and another British subject, a creditor, recovers his debt by attachment against the property of the bankrupt, in a foreign country, after the bankruptcy, and returns to England, the assignees of the bankrupt may, in an action against him for money had and received, recover back the money so obtained. That case turned altogether upon the operation of the bankrupt laws of England. But in deciding that case Lord Loughborough expressly distinguished it from the case of a creditor not affected by the bankrupt laws, who recovers his debt by attachment in a foreign court, against the effects of the bankrupt; and says, that in such a case the creditor who has so obtained his debt, can-r not, on going to England, be made liable to refund that debt. -And he says further, that if in the case before him, the assignees had sent a person to St. Christophers to act for them, if notice of the assignment had been given to the court of St. Christophers, and that court had preferred the title' of the creditor using the process of attachment to theirs, though he should think the determination wrong, *109yet it could not be revoked in England. Andtbe same principle is sustained in the case cited of Rapalje vs. Emory, in the Supreme Court of Pennsylvania, 2 Dall. Rep. 231, and in Croudson and others, vs. Leonard, in the Supreme Court ot the United States, 4 Cranch, 434. We have seen in this case, that the cargo of the brig Hunter, which was consigned to Sitas Marean, a merchant in Martinique, was transferred by Wright to Nicholson and Williams. On the arrival of the vessel at Martinique, Benjamin Noland, the agent of Owings and Cheston, and others, caused proceedings in their names to be instituted against the cargo, to recover the amount for which they sold the flour to Wright. The proceedings were in rent', anti in the petition it is stated, “that Wright, having formed the project of a fraudulent bankruptcy, bought the flour, aud a few days afterwards stopped payment and failed, after having made to certain persons, fictitious creditors, a fraudulent conveyance of his property.” The consignee of Wright appeared to the proceedings, and after counsel being heard on both sides, a judgment of condemnation, on a view of the whole case, was passed — and a fraudulent conveyance to fictitious creditors being alleged in the petition, and made a part of the foundation of the proceedings, and Nicholson & Williams being the only persons to whom a conveyance had been made, it may perhaps be presumed, that the transfer to them was examined into by the court. I shall not examine how far those proceedings (being in rem,) affect the right of recovery in this case; they are in the cause. But if it should be admitted that they are not conclusive, Eicholson and Williams, not being named as parties, there were further proceedings in the same court, to which they were clearly parties. The day after the judgment of condemnation, and before it was executed, Benjamin Nicholson,ihc agent of Nicholson and William,s, caused proceedings to be instituted in their names, in relation to the same property, called a third opposition. The petition states, that the property was not Wright's but belonged to Nicholson and Williams, and sets out the deed from Wright to them. It reclaims the property, recites the judgment of the 11th of October 1810, alleges that it was obtained by misrepresentation, asks to be permitted to make opposition to the execution of it, and prays that it may be annulled by a new judgment. It alleges that the means of a third opposition is open to them, that they cannot too hastily put the court in a situation to pronounce on the subject of their claim, and prays to have all the parties to the first proceedings summoned to an immediate audience. The court recognized the third opposition, and ordered the parties to be summoned, to the end request» ed; and on the 16th of October 1810, a judgment was pronounced against the plaintiffs. But it is said that Benjamin Nicholson had no authority to bring suit, and that if he had, the proceedings instituted by him do not make Nicholson and Williams parties to thejudgment of the 11th. *110ol October 1810, and on this the argument principally hingecl — The letter from Joseph H, Nicholson of the 31st of August 1810, affords the only evidence of Benjamin Nicholson’s authority. But that letter is very comprehensive. It is riot_ in truth, an instrument giving the authority to Benjamin Nicholson, but a letter to Silas Marean the consignee of the ship and cargo, informing him of the mission of Benjamin Nicholson, and of the authority with which lie was clothed. It is stated in that letter, that Benjamin Nicholson goes out with full powers to take possession of the brig Hunter and her cargo, and carries with him the deed of indenture from Wright to Nicholson and Williams. Now, if Benjamin Nicholson had full powers to take possession of the brig Hunter and her cargo, it would seem to follow, that- he had power to take' such possession in any manner that circumstances might render necessary, whether with or without legal process. And the circumstance that he took with him the deed of transfer from Wright, ■ connected with the mention that is made of an agent having gone out, for the purpose of attaching the property for the use of Owings and Cheston, and others, goes a great way to show, .that it was intended to arm him for legal controversy; and to enable him in a court ot justice to resist, by that evidence of title in his employers, any proceedings that might be instituted against the property. For it was only in a court of justice that such evidence of title was necessary, as there was a postscript at the foot of the letter, by Wright, the consignor, to Marean, the consignee, directing him to conform to the instructions contained in that letter. Besides, Ma-rean himself (in the language of the letter,) is requested to use all exertions for the interest of Nicholson and Williams, which is certainly an authority to assist Benjamin Nicholson in any measures he might find it necessary to adopt in order to get possession of the property. And if he had authority so to assist Benjamin Nicholson, it would seem to follow, by necessary implication, that Benjamin Nicholson had authority to pursue whatever steps might be necessary. Moreover, the petition was preferred and signed by an attorney of the court, and the authority of that attorney to do so recognised by the court; and the judgment itself, on the face of it, is stated to be between. J. H. Nicholson and N. F. Williams, &c. of the one part, and the Messrs. Ellicotts, and Owings and Cheston, of the other part. Considering Nicholson and Williams then, both in form and substance, as parties, at least to the proceedings prosecuted in their names, and the judgment thereon, the question, whether they are thereby concluded, next presents itself, which does not seem to me to be very difficult of solution. I have before assumed it as a principle, that judgments of foreign courts of competent jurisdiction, are conclusive between the same parties, upon the same matter, when brought in collaterally as this is; they •are evidence of their own correctness, and conclusive of *111the matter upon which they profess to decide, even though such decision be manifestly unjust; and if they state the evi dence from which the conclusions are drawn, no other court can inquire whether such conclusions are right or wise. They may, to be sure, be looked into, not for the purpose of examining if the decision is right, but to see if the matter in controversy is decided. What then is this case? Nicholson & Williams submitted themselves to the authority and jurisdiction of the court of the first instance in the Island of Martinique, having jurisdiction over the matter. Their title to the thing in controversy in this case, was made the subject of judicial investigation, and upon a full hearing of the case, judgment was pronounced against them; not, as has been argued, a mere refusal by the court to revise or suspend the execution of its former sentence, but a solemn judgment against their title. And .that is evidenced by the judgment itself, which sets out the grounds upon which it is founded. It adverts to the epoch of the purchase of the flour by Wright, and of his deed to Nicholson and Williams; to the circumstance that it was a deed of trust, and to the relationship subsisting between Nicholson and Wright, and draws the conclusion that the flour was held for the use of Wright — casts the plaintiffs from their reclamation, and condemns them to pay a fine of all the costs of suit. It is not very material whether by the process of the third opposition, Nicholson and Williams became parties to the proceedings that had before been instituted by Owings and Cheston, or not. It is enough that the proceedings by Nicholson and Williams were recognised and sanctioned by the court, as correct and regular, according to the laws and regulations under which the court professed to act; that their rights were investigated, and a judgment pronounced against them. It is said, to be sure, that nothing was adjudged in that case to Owings and Cheston, Rut what of that? Is it not the ordinary case of a judgment against a plaintiff in a question of right in our own courts, in which nothing is adjudged to the defendant but his costs, (as in this case)? And in a subsequent suit between the same parties, for the same thing, would not thatjudgment be just as conclusive against the plaintiff', as if he had been the defendant in the first .suit, and judgment pronounced against him? I can see no difference between the cases, and it is impossible there can be any, if foreign judgments are put upon a footing with domestic. Rut suppose Noland, the agent of Owings and Cheston, had got possession of the cargo of the brig Hunter, without the judgment or authority of any court, and Nicholson and Williams had instituted proceedings to recover the property, and on a full hearing ni the case, judgment had been pronounced against their right — could they afterwards recover in a suit for the same thing in one of our courts? And if they could not, will it be said that Owings and Cheston are placed in a worse situation, by having obtained possession of the proceeds of the flour un*112der the authority of a judgmént in their favour,, than if they had got it without? I perceive no ground for such a distinction. The proceeding by Nicholson, the agent of Nicholson and Williams, in their names, called a third opposition, has been treated in argument as an appeal from the judgment of the court of the first instance; and if so, they clearly stand in no better predicament, than if it was an original proceeding. I think the judgment of the court in Martin que is conclusive, and that the court erred in giving a different opinion.
JUDGMENT APFIRiVIED^(l),
faJSee the act of December 1813, ch, 164, entitled, An act, concerning Sentences of Foreign Courts.