Eastern Townships Bank v. H. S. Beebe & Co.

The opinion of the court was delivered by Barrett, J. It is not claimed that the pendency of said suit in Canada, where this suit was brought, could bar a recovery in this suit. It is claimed that the judgments in said suit in Canada, rendered after the bringing of this suit, bars a recovery in this suit. It is not averred or claimed that said Canadian judgments have been satisfied by payment. So the only question is, whether said Canadian judgments merge the cause of action, in such a sense as to render it incapable of being the subject of a judgment in this suit. It is not so merged unless it has become a debt of record, so that the record itself has become a cause of action, of its own vigor, to be declared upon as such, and when produced, is conclusive of the right. All the authorities agree that a suit in Vermont, for getting satisfaction of the Canadian judgment, must be an action of assumpsit, counting upon an implied promise, arising from the fact of the existence of such judgment. It is held in the cases that a foreign judgment when shown in evidence upon a matter within the jurisdiction of the court, and in which the court had jurisdiction of the parties, so that they were [182] personally bound by the judgment, in the country where rendered, is conclusive upon the matter therein adjudicated. But it at the same time is held that the original cause of action is not so merged by that judgment that it is incapable of being the subject of a suit in a country foreign to that in which the judgment was recovered. The books are uniform in making the distinction between merger of the cause of action and conclusiveness of effect, as matter of evidence, when the effect of a foreign judgment is brought in question in a suit upon the same original cause of aetion. Whatever may be the reason for such distinction, it exists, and is established as a rule of law; and we see no occasion for annulling that rule in this State. In the many cases in which the subject of judgments as between the different states of the Union has been discussed and determined, the theory and logic have rested upon the provision of the U. S. Constitution, as to the faith and credit to be given to judgments of one state in the other states ; and in all the cases it is assumed that but for such provision such judgments would not have that faith and credit, and would be foreign judgments. A specimen case of this kind is McGilvray & Co. v. Avery, 30 Vt. 538, in which the very able opinion drawn up by Judge Bennett, presents the established doctrine, and marks the true distinctions. It is fundamental that a foreign judgment does not constitute a record debt, but is only evidence of obligation to pay. The indebtedness evidenced by a foreign judgment as a cause of action to be declared on, as the ground of recovery is that of simple contract, and the subject for a suit in assumpsit. In this case then the judgment in Canada, as a cause of action, is of no higher grade than the notes themselves. This legal fact is conclusive against the idea of the notes as a cause of action being merged by that judgment. It leaves that judgment as an instrument or means of evidence, showing conclusively the fact of indebtedness, and operating conclusively to that effect until satisfied. It is not the judgment, but the satisfaction of it, that renders it a bar to a recovery in the domestic government upon the original cause of action. This is in harmony with the conclusive effect given to a foreign judgment in favor of the defendant. The fact of such [183] judgment is pleaded in bar, and is adduced as evidence to maintain the plea. This is the same, mutatis mutandis, as adducing the fact of a foreign judgment for the plaintiff to maintain his right of recovery against the defendants in his action of assumpsit upon that judgment. The confusion on this subject seems to result from not distinguishing between a domestic judgment as constituting of itself a debt of record, and a foreign judgment, which is only evidence of an indebtedness as upon a simple contract. Judgment reversed and cause remanded.