Assumpsit on two promissory notes. One note dated October 14th, 1824, for $281 25, payable six months after date; the other, dated December 17th, 1824, for $424 50, payable in six months. The declaration also contains the common money counts, and counts in indebitatus assumpsit. To this declaration the defendant pleaded: 1, the general issue; 2. the exemption of his body from imprisonment because of certain insolvent discharges; and 3, to the counts up
The latter plea is the one immediately drawn in judgment; it is, after the formal commencement, as follows: “Because, he says, that after the making of the respective promissory notes by this defendant in the said two first counts of tlio said declaration mentioned, to wit, on the 2Sth day of November, 1S25, the said plaintiffs impleaded this defendant by the name of John Bramson, before the judges of the district court for the city and county of Philadelphia, in the commonwealth of Pennsylvania, in a plea of trespass on the case for the same identical promissory notes in the first and second counts of the said declaration of the said plaintiffs mentioned; and such proceedings were thereupon had in the said district court before the judges aforesaid, to wit, on the 2d day of June, 182G; that the said plaintiffs, by the consideration and judgment of the same court, recovered against this defendant, by the name of John Bram-son, in the plea aforesaid, their damages for
On the trial of the cause, the defendant produced a record of a judgment in the district court for the city and county of Philadelphia, which he offered in evidence in support of his plea. The record was duly authenticated pursuant to the act of congress of May 26th, 1790. The counsel for the plaintiffs objected to the competency of this proof to sustain the issue, because the record upon its face showed that no final judgment had been rendered in that court upon this matter; and its admissibility was objected to on account of variances between the record produced and the plea of the defendant.
First, as to variances. These are supposed to consist in this: 1st, that it is aver
It is urged for the defendant, that the law does not exact a literal correspondence of the record with the plea, and that it is enough to plead a record according to its effect, without regarding the precise phraseology in which it may be framed. It certainly cannot be regarded as a conclusive criterion whether a definitive judgment has been rendered, that the entry employs or omits the accustomed form of “ideo consid-eratum est.” Judgments are final, and subject to review by writ of error, as well when entered without that clause as with. Yates v. People,
The party, by pleading a record with a prout paret, proffers that issue, and it is incumbent on him to maintain it literally (Purcell v. Macnamara, 9 East, 160); this, as well where the averment has reference to particulars which need not be specifically stated upon the record, as to those which must be so. Upon these principles, if the phraseology in which the judgment is narrated in the plea is to be taken as descriptive of the record evidencing such judgment, no departure from it in the proofs can be allowed. A record described as determining the rights of the party, by the consideration and judgment of the court, and the conviction of the defendant, would not be identical with one directing the same results, but in a different way. Philipson v. Mangles, 11 East, 516. The like rule prevails in relation to other instruments. A declaration upon a note, as containing the words “for value received,” cannot be supported by proving a note without these words (
Such, no doubt, is the rule of evidence (1 Chit. Pl. 572; 2 Saund. Pl. & Ev. 134; 1 Saund. 92;
The main question in the ease is, whether the record produced proves that a definitive judgment has been rendered by a competent court, upon the subject-matter of this suit. It is clear that the judgment must be final to operate as a bar. But courts do not consider their suitors concluded by the pend-ency of an action in any other court for the same matter, or by any course of proceedings thereon short of final judgment.
If it was competent to the plaintiffs to show such inference to be inaccurate, it might be competent for them, under this issue, to give the evidence to the court, as there may be averments and proof against the supposed operation of a record. [Biddle v. Wilkins] 1 Pet. [26 U. S.] 692. A plaintiff in Pennsylvania is allowed to issue judgment against the defendant in action upon contract, when the defendant omits to file an affidavit of defence. This practice, it is believed, is peculiar to that state. The competency of the district court to establish such a course of practice has been ably contested, and, though ultimately upheld, it was by the opinion of a divided court. Vanatta v. Anderson,
The question now arising is, whether the judgment authorized by this rule is final in the first instance. It would certainly add to the singularity of this mode of procedure, if the plaintiff, by his simple fiat directing this species of judgment, could conclude the defendant in a matter of unascertained damages, and become entitled to recover whatever he claims to be due, without having that claim sanctioned by a jury or the court. This is certainly not so ordinarily by the practice of that very court, in cases of indebitatus assumpsit. The case of Coates v. M’Camm,
There would seem to be no greater necessity for an ulterior proceeding in that case to ascertain the damages, after the defendant had been apprised in answer to his own call, by a bill of particulars, what the specific demand was, than in an action on promissory notes. The declaration on promissory notes is always upon the face of them, without regarding the endorsements upoD the notes themselves; and if there is to be no act of court ascertaining the sum actually due, it is manifest that the prom-issor, or his representatives might thus be subject to pay the full amount, where the notes themselves bore evidence of their being nearly satisfied.
This court would look for very satisfactory evidence that a practice so loose and liable to abuse, was sanctioned in the enlightened tribunals of a neighboring state, before we could reeognize and affirm it. It, therefore, appears to me, there is a substantive defect in this record, if to be considered one of final judgment, in not determining with certainty the sum for which judgment is directed. - The very nature of a judgment imports that the indeterminate claims of a party are reduced to a certainty of the highest order, and one which can nevermore be questioned by the debtor. It is, as is said by the Pennsylvania court (2 Serg. & R. 142), a most loose and faulty practice, in suits claiming money, to pass judgment against one party and in favor of another, and then leave it to the discretion of him in whose favor the judgment stands, to determine for himself how much he will take under it.
Judgments for the penalty on bonds for the payment of money, are not analogous. There the judgment is for a specific sum. Strictly at law, the penalty would be the sum the plaintiff -was entitled to collect; but courts of law exercise an equitable jurisdiction over the judgment and restrain the creditor from receiving more than the money actually due, with interest and costs: but the body and estate of the debtor are subjected, by the terms of the judgment, to pay a specified sum. Here no amount is designated by the judgment. limiting the recovery of the plaintiff; and on the argument, the counsel for the de
The rule of the district court of Philadel-I>hia, above stated, provides explicitly in one case that the judgment shall be for a precise sum; and if the defence be to part only, the “defendant shall specify the sum which is not in dispute, and judgment shall be entered for so much as is or shall be acknowledged to be due to the plaintiff.” It is difficult to perceive a reason for designating the sum recovered in one ease, which would not equally exact it in the other; and the only interpretation I can give the rule is, that in the latter case the sum being fixed by the confession of the party, a final judgment is at once rendered for the amount; but in the other, the amount being undetermined, the judgment is only interlocutory, and to be made final when the appropriate proceedings shall be had for ascertaining the sum to be recovered.
This would conform the judgments under that rule to those obtained at common law (14 Vin. Abr. 612;
There is no satisfactory evidence before me that the courts in Pennsylvania hold anything to be a complete judgment short of the requisites at common law. The case of Lewis v. Smith, 2 Serg. & R. 142, goes further than any other case towards supporting the judgment set up in the present instance. There an action of indebitatus assumpsit was brought on a debt of $30,000, claiming $60,000 damages. The defendant gave a plea of confession; upon which a general judgment was entered for the plaintiff, neither the plea nor the judgment designating the amount to be recovered. The validity of the execution, and subsequent proceedings upon this judgment, were subsequently brought in question before the supreme court, it being contended that this could not be considered anything more than an interlocutory judgment. So the court clearly intimate it should be considered upon general principles; but they found themselves controlled by a long-established course ot practice which had obtained in that state, to enter judgments by confession in that way, and to deal with them as complete judgments, at least for the purpose of issuing execution and recovering the money thereon against the judgment debtor. The court reprehends the practice, in strong terms, as loose and improper; but they think it had so far acquired the sanction of usage, as that it could not be abrogated without a formal rule duly promulgated. But it will be perceived, that the two judges who sat in the decision of the case, mark, with the most cautious distinction, this as a case upon confession, and that the parties intended it should be final. Tilghman, C. J., says: “I take it. that where judgments are confessed, if the plaintiff’s demand is in the nature of a debt, which may be ascertained by calculation, whether it arise on a note or other writing, or on an account, it is sufficient to enter judgment generally. The judgment is supposed to be for the amount of damages laid in the declaration, and the execution issues accordingly.” Again: “That this was intended by the parties as a final, and not interlocutory, judgment, I am well satisfied.”' The chief justice refers to two particulars in the proceedings establishing the understanding of the parties: First, that a stay of execution had been given on the judgment; second, that on its revival by scire facias as a judgment for $60,000, the defendant had also confessed judgment to the sci. fa. Yates, J., concurred with the chief justice in considering the judgment as final, in contradistinction to interlocutory, which does not bind lands. He says: “It was not a judgment by default, but by confession; it contained a stay of execution for sixty days, and the subsequent judgment agreed to by the defendant showed the intention of the parties, that they considered it final. I see nothing incorrect herein.” It is manifest that the court meant their decision should extend no further than to judgment by confession; and it is even doubtful whether the mere fact of confessing judgment would be enough to sustain one entered as that had been, without other circumstances concurring to denote the intention of the parties that it should be final and complete as between them. The ease is no authority beyond that point; it does not assume to touch the mass of judgments entered for want of affidavits of defence, but would rather seem, by broad implication, to consider all such as imperfect judgments; they being certainly no higher than judgments by default. The case of Coates v. M’Camm is not affected by this decision, and that case is entitled to great regard on this point, as it occurred in the court which adopted the rule under consideration, and must be considered an exposition of the true meaning of the rule, or a limitation of its action.
The case of Lewis v. Smith, 2 Serg. & R. 142, also clearly recognizes the doctrine of the common law, as governing in this respect the proceedings of the Pennsylvania courts, other than in the excepted case. That case looks for all the constituents to a perfect judgment, that would be required in this state or at Westminster Hall. At all events, it does not establish the point, that a general judgment for the default of the defendant is complete and final; nor that any judgment not for a specified amount could be good on a contract for the payment of money, other than when entered upon the confession of the party.
Another criterion which may justly be applied to the judgment is, to inquire whether an action of debt would lie upon it, or any other action, which would enable the plaintiff to enforce it in this state? It would be difficult to frame a declaration upon it which would be sustained by the record. There is
Judgment for plaintiff.
Notes
A former suit for the same cause of action, in which the defendant obtained a verdict, is a bar to a second suit, although such verdict was rendered on the erroneous ground that the plaintiff’s cause of action had not then accrued, when in fact the plaintiff had at the time a good and perfect cause of action. Morgan v. Plumb,
The only plea of the general issue applicable to a declaration upon a judgment of a neighboring state is nul tiel record. Shumwny v. Stillman,
In most of the United States, where a domestic record is put in issue by the plea of nul tiel record, the question arising upon it, though a question of fact, is one to be tried by the court, and not by the jury. State v. Isham,
In England, it has been held, that a plea of nul tiel record pleaded to an action of debt on an Irish judgment, must conclude to the country; for though since the union, such judgment is a record, yet it is only proveable by an examined copv. on oath, the verity of which is to be tried by a jury. Collins v. Mathew, 5 East, 473.
In New York, the Revised Statutes provide, that the records and judicial proceedings of any court in a foreign country, shall be admitted in evidence in the courts of this state, upon being authenticated as follows:
1. By the attestation of the clerk of such court, with the seal of such court annexed, or of the officer in whose custody such records are legally kept, with the seal of his office annexed:
2. By a certificate of the chief justice or presiding magistrate of such court, that the person attesting such record is the clerk of the court, or that he is the officer in whose custody such record is required by law to be kept; and in either case, that the signature of such person is genuine: and,
3. By a certificate of the secretary of state, or other officer of the government, under whose authority such court is held, having the custody of the great or principal seal of such government, purporting that such court is duly constituted, specifying generally the nature of its jurisdiction, and verifying the signature of the clerk or other officer having the custody of such record, and also verifying the signature of the chief justice or presiding magistrate. 2 Rev. St. p. 396, § 26.
Copies of such records and proceedings in the courts of a foreign country, may also be admitted in evidence upon due proof—
1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of such original:
2. That such original was in the custody of the clerk or other officer, legally having charge of the same: and,
3. That such copy is duly attested by a seal, which shall be proved to be the seal of the court in which such record or proceeding shall be. Id. § 27.
It is declared, however, that these provisions-shall not prevent the proof of any record or judicial proceeding of the courts of any foreign country, according to the rules of the common law, in any other manner than that pointed out above: nor shall they be construed as declaring the effect of any record or judicial proceeding, authenticated as prescribed by the statute. Id. § 2S.
The different modes of authenticating foreign judgments, independent of any legislative provision on this subject., have been laid down by Marshall. C. J.. as follows: 1. By an exemplification under the great seal. 2. By a copy, proved to be a true copy. 3. By the certificate of an officer authorized by law, which certificate must itself be properly authenticated. These he pronounces the usual, if not the only modes of authenticating foreign judgments. Church v. Hubbart, 2 Cranch [6 U. S.] 187, 238, See. also, Mahurin v. Bickford, 6 N. H. 567. 570; Vandervoort v. Smith, 2 Caines. 155, et seq.
If these modes of authentication be all beyond the reach of the party, other testimony, inferior in its character, will, it seems, be received. Church v. Hubbart, supra, per Marshall. C. J. See Hadfield v. Jameson,