Mellin v. Horlick

Dyer, J. Conceding that a judgment or decree of a foreign court is not, strictly speaking, a record, nevertheless an action of debt or assumpsit will lie on it in a jurisdiction foreign to that in which the judgment was rendered or decree entered. Mr. Freeman, in his Law of Judgments, § 220, says: “Tn England, a foreign judgment is, in most respects, carried into effect to the same extent which, under the provisions of our constitution and the laws of congress, a judgment rendered in oneof theseUnited States would be enforced in another. But it is nevertheless not regarded as a matter of record, nor as being of a higher nature than the original cause of action. Hence it does not debar plaintiff of the remedy which every subject has of bringing his action, and he has his option either to resort to his original ground of action, or to bring assumpsit on the judgment.” —Citing Bank v. Harding, 9 C. B. 661; Robertson v. Struth, 5 Q. B. 941; Smith v. Nicolls, 5 Bing. N. C. 208; Berry v. Irwin, 7 Dowl. 282; Hall v. Odber, 11 East, 118; Phillips v. Hunter, 2 H. Bl. 402; Lyman v. Brown, 2 Curt. 559; Bonesteel v. Todd, 9 Mich. 375; Frazier v. Moore, 11 Tex. 755; Wood v. Gamble, 11 Cush. 8. “It is not an admitted principle of the law of nations,” says Blackburn, J., in Godard v. Gray, L. R. 6 Q. B. 139-148, “that a state is bound to enforce within its territories the judgment of a foreign tribunal. Several of the continental nations (including France) do not enforce the judgments of other countries, unless when there are reciprocal treaties to that effect. But- in England, and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty, not by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones, 13 Mees & W. 633: ‘ Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that judgments of foreign and colonial courts are supported and enforced. ’ ” In Walker v. Witter, 1 Doug. 1, it was held that an action of debt will lie on a foreign judgment, and the plaintiff need not show the ground of the judgment. Lord Mansfield said: “ Though the plaintiffs had called the judgment a record, yet, by the additional words in the declaration, it was clear they did not mean that sort of [867] record to-winch implicit faith is given by the courts of Westminster Hall. They had not misled the court, nor the defendant, for they spoke of it as the record of a court in Jamaica. The question was brought to a narrow point; for it was admitted, on the part of the defendant, that indebitatus assumpsit would have lain, and on the part of the plaintiffs that tlu: judgment was only prima facie evidence of the debt.” Ashiiuest, J., in the same case, said that, “in indebitatus assumpsit on a foreign judgment, the judgment is shown as a consideration; and, wherever indebitatus assumpsit can be maintained, debt will lie.” Assumpsit will also lie on a decree of a foreign court of equity for a specific sum of money. Sadler v. Robins, 1 Camp. 253, was an action upon a decree of the high court of chancery in the island of Jamaica fpr a sum of money; “first, deducting thereout the full costs of the said defendants expended in the said suit, to be taxed by one of the masters of the said court; and also deducting thereout all and every other payment which S. and It., or either of them, might on or before the first day of January, 1806, show to the satisfaction of the said master they or either of them had paid,” etc. In this case Lord Ei.lenborough said: “Had the decree been perfected, I would have given effect to it as to a judgment at law. 'The one may be the consideration for an assumpsit equally with the other; but the law implies a promise to pay a definite, not an indefinite, sum.” The proposition stated in Pennington v. Gibson, 16 How. 77, seems as applicable to foreign as to domestic judgments or decrees. It was there said by the court: “ We lay it down * * * as the general rule that, in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more; and that the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other.” In Henley v. Soper, 8 Barn. & C. 16, it was held that debt lies on the decree of a colonial court made for payment of the balance due on a partnership account. See, also, the judgment of Lord Denman, 0. J., in Henderson v. Henderson, 6 Adol. & E. (N. S.) 288. If assumpsit or debt will lie on a judgment or decree recovered abroad, and based on a prior pecuniary obligation, it is not perceived why such an action may not be maintained to recover the costs awarded by such judgment or decree. Upon this question Russell v. Smyth, 9 Mees. & W. 810, appears to bo in point. It was there held that an action of assumpsit or debt may be maintained against a defendant resident in England, for costs awarded against him, after appearance, by a decree of tlie court of session in Scotland, in a suit for a divorce. Lord Abinger, C. B., in the judgment delivered by him, said that the decree of the court of session created a duty in the party to pay a debt. The decree was one awarding costs by a court of competent jurisdiction, but not having the power by its own process of enforcing payment of them in England. “An action of assumpsit or debt,” he observed, “therefore lies for the re [868] covery of them. I think we must assume the process and decree to have been perfectly regular, * * * and the decree is made, not against a party who does not appear, but against one who does appear, and after-wards abandons his defense. * * * The action may be sustained on the ground of morality and justice. The maxim of the English law is to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice. Foreign judgments are enforced in these courts because the parties liable are bound in duty to satisfy them. The principles relating to this subject are well laid down by Lord Mansfield in his judgment in Robinson v. Bland, 2 Burrows, 1077. Mr. Watson urges that no action for costs has ever been brought on a foreign judgment. I cannot quite assent to that; but, supposing it were so, I must own I should be disposed to set an example of such an action. Suppose litigation arises in France relating to real property, and costs are given against a party who comes to this country, if the English law gives no remedy the debt would be lost. In such a case I should be disposed to say that an action for those costs may be maintained in this country.” This reasoning, fully concurred in by the other judges who sat in the case, applies directly to the ease at bar, and is controlling. The principle to be applied is that the court of a foreign country has imposed upon the defendant, in an action in which he appeared, a duty to pay a sum ceytain. Therefore there arose an obligation to pay, and that obligation may be enforced in a court of this country. It is, however, insisted that the present action is not one in assumpsit, but must be held to be brought directly on the judgment, as a record. I do not concur in that view. It is true that the decree of the English court is -set out in extenso in the pleading. But the further allegation of the complaint is that, by reason of the proceedings in that court, the defendant became indebted to the plaintiff in the sum sought to be recovered; and, although payment has been demanded, the same has not been paid. In Walker v. Witter, supra, the judgment of the foreign court was set out in the declaration, with allegations of indebtedness by reason thereof, and the action was regarded and treated as one of debt. The forms of declaration in assumpsit on.a foreign judgment or decree, as laid down in 2 Chit. PI. 243-245, allege with great particularity of statement the recovery of the judgment or decree; and, if such allegations were suitable and proper in a declaration under the common-law practice, I can have no doubt that the complaint in this case may be held to be sufficient as stating a good cause of action in assmnpsit, arising out of an alleged recovery in a foreign court. As the result of these views, the demurrer must be overruled.