constitution or organization of the society should be produ. FRANKLIN, ced ;” and the question has been argued, whether it was in- "1842% cumbent upon the plaintiff to show some written constitu- Stone tion or organization of the seciety before he could recover. It

Berkshire is to be remarked that the defendants appear in court by the Fong. society. name in which they are sued; there is no plea, alleging a misnomer or putting in issue the existence of the defendants, as a corporation, but a rule of reference is entered by consent of parties. It is well settled that the misnomer of a corporation is only matter of abatement, and we think that where the defendants appear under the corporate name by which they are sued, and, by agreement of parties, refer the cause, it is too late for them to call in question their corporate existence before the referees. It is a recognition of such an existence; and, without it, the whole proceeding is but a nullity. No question is raised as to the legality of the meeting nor of the power of the individuals who, as corporators, contracted with the plaintiff, to bind the society, and it would indeed be going a great way to hold that the defendants, after having held themselves out as members of the society, held meetings, and, in one of them, employed the plaintiff to render the services now claimed, have the right to call upon the plaintiff to prove that there is such a society, capable of acting as they have professed to act.

It is evident that, at common law, the members of this society could not be witnesses for the corporation, and our courts have always in such cases adhered to the principles of the common law. The case does not come within the provisions of the act of 1816, making the members of certain corporations witnesses in their own behalf, and they were properly rejected.

The judgment of the county court is affirmed.

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FRANKLIN, January, 1842.

Boston India Rubber FACTORY V. ARCHIBALD Hoit. Boston India Rubber F

cy An action of assumpsit will not lie upon the judgment of another of the Hoit. American States. The declaration must be in debt, counting upon the

judgment as a record. In such case the court declined to suffer an amendment, ebanging the form

of action from assumpsit to debt. Quære–Whether such amendment might not be allowed upon payment of

costs, and discharging bail and attachment taken upon the original writ.

Assumpsit upon a judgment of the supreme judicial court of Massachusetts. The defendant demurred to the declaration and the county court adjudged it insufficient. The plaintiffs excepted.

Stevens & Seymour, for plaintiffs.

Assumpsit has been recognized as a proper form of action in a suit upon a foreign judgment, the judgment itself being the consideration of the implied promise and the foundation of the action.

The constitution and laws of the Union have not put the judgments of the several states, in all respects, upon the footing of domestic judgments. 2 Vt. R. 573, 5. 4 do. 58. 6 Pick. 239.

That nul tiel record has been decided to be a proper general issue, is no objection, for that plea is adopted to refer the decision to the proper tribunal, leaving all exceptions to the judgment to be taken by special plea. 4 Vt. R. 58. 6 Pick. 239.

The issue to an action upon an Irish judgment, in England, is nul tiel record, concluding to the country. 6 Pick. 238. 5 East, 473.

The conclusiveness of a judgment, furnishes no objection to raising an implied assumpsit. Doug. R. 402, 408. Kent's Comm. 2d vol. (Ed. '40) p. 120. i Chitty, 98. Cowp. 474. 9 Mass. R. 462. 6 Pick. 238.

This action being a more extensive, beneficial and less precarious remedy than that of debt, the court will be strongly inclined to sustain it.

Always, as well before as since judgments were decided to be conclusive, the action has been founded upon the judg

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ment itself, and, although conclusive in evidence, there is no Franklin,

January, less an implied promise to pay.

1842. The objection is technical. But, technically, the judg. 2 ments of other states are not records here, nor are they spe- Rubber Fac'y cialties, which are sealed instruments. They are quasi rec- Heit. ords, as, before the constitution, they were quasi specialties.

How, until the fact is shown by plea, (or oyer in certain cases, will it be known that the judgment is conclusive or not? And shall the form of action depend upon the special issue as to the jurisdiction, for it will not be denied that, if the judgment is merely prima facie evidence of the debt, assumpsit may be maintained. So it may be uncertain, (until found,) what would be the effect of the judgment in the state where rendered.

To allow assumpsit will give the plaintiffs an election of remedies with a view to avoid a multiplicity of suits, or as his convenience requires, or, in case the judgment shall prove merely prima facie evidence of the debt, in order to resort to his original cause of action.

N. L. Whittemore, for defendant.

I. A judgınent of a court in a sister state, having jurisdiction of the parties and subject matter, and where the parties had notice, is not in point of law a foreign judgment, and the adjudication upon the subject-matter in controversy is conclusive between the parties, and the merits of the original action cannot be inquired into by the courts of this state. Horie v. Wright, 2 Vt. R. 263. Blodget v. Jordan, 6 do. 580.

II. By the constitution of the United States, "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." Con.U. S. Art. IV. $1. A judgment of any other state implies absolute verity and is as conclusive as a judgment of our own state. If we are correct in this position, the irresistible conclusion is that the action of assumpsit cannot be sustained on the judgment in question, and the legitimate and only remedy is debt. Wood v. Pettes, Tarbell & Co. 4 Vt. R. 556.

III. The plaintiffs, by bringing assumpsit, have compelled the defendant to plead non assumpsit. If the defendant should plead nul liel record or nil debet, the plea would be

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Franklin, manifestly improper, and, if we wish to deny the record January,

! itself, it must be done under the plea of non assumpsit. Boston India Rubber Fac'y.

: The opinion of the court was delivered by

RedFIELD, J.—The only question to be determined in this Hoit.

case is whether an action of assumpsit will lie upon the judgment of a court of record of one of the states in the American Union.

It is a long settled rule of the common law, that such action will lie upon a foreign judgment. This is almost the only rule, which can be considered as satisfactorily settled in the English courts, in regard to foreign judgments. The courts of that country did indeed, for a long course of years, seem strongly inclined to treat foreign judgments as of the same force and validity, as a contract merely, which they had in the country where rendered; holding that the jurisuiction of the court, the fairness of the proceedings, whether fraudulent or not, and the fact of any judgment being rendered, were examinable before the jury. Hence, it was held that the proper form of action was assumpsit, the whole matter lying in pais. Chancellor Kent, 2 Com. 120, and notes, and Mr. Justice Story, Conflict of Laws, p. 506, 507, both strongly incline to consider the conclusive effect of a foreign judgment, as a contract merely, the better doctrine, and as being well nigh settled. I would be well enough satisfied to think the law was so settled upon that point, for some little examination of the subject has satisfied me, that that is the only just basiş upon which it can be settled. But I confess, that a comparison of the English laws upon the subject, for the last fifty or sixty years, would hardly show any rule upon that subject, fully acquiesced in. The case of Martin v.Nicolls, 3 Simons, 458, (5 Eng. Cond. Ch. R. 198,) is a very elaborate and a very satisfactory case in favor of the conclusive effect of foreign judgments. The same learned judge, (the Vice Chancellor,) reasserts the same doctrine in another very elaborate opinion, in 8 Simons, 279, with this qualification, that such judgments may be impeached by showing palpable fraud in their concoction. The last of these cases, was decided in May, 1837. Thus far the doctrine of the conclusiveness of a foreign judgment, so far as the effect of the adjudication, when fairly made, was concerned, seem


ed well settled, leaving the fact of the adjudication, the reg- Franklin, ularity and fairness of the proceedings and the jurisdiction of 1842. the court, both as to the subject-matter and the parties, to Roston India be inquired into before the jury, on proper state of the plead- Rubber Fac'y ings. This rendered it proper that the form of action should Hoit. be assumpsit and the judgment evidence of a debt merely. But the last case upon this subject, which I have noticed in the English courts, Smith v.Nicoll, Hilary T. 1839,38 Eng. C.L. 88, seems, as far any inference can be made from it, to be receding from this firm footing. But a single case in the English courts, at variance with former decisions, is not much to be relied upon. For the truth is, the English courts have always felt at liberty to depart from a rigid application of principles, whenever such application would be likely to produce obvious and flagrant injustice in the particular case. Hence the case last referred to is, so to speak, fitted to a sliding rule. A great deal is said of the inconclusiveness of foreign adjudications, but the result of all is, that even if they be in general conclusive, when the defendant has proper notice and submits himself to their jurisdiction, or is resident therein, still, without such jurisdiction of the person, they are of no validity, and in the then present case, no such jurisdiction appearing by the record of the foreign court, they felt at liberty to disregard it. Thus it appears that the decision, perhaps, if not the reasoning of the judges, may be made to consist with the former doctrine upon the subject.

But not further to discuss the exact force to which a foreign judgment is justly entitled to lay claim, it is obvious that the record of the foreign court is no record in the domestic tribunals. Hence the evidence of the foreign judgment, i. e. the record of the foreign court, is only prima facie, while that of our own courts is conclusive and incontrovertible. For although it appear by the record of the foreign court, that the court had jurisdiction both of the subject matter in controversy, and of the person of the defendant, and that the proceedings were in all respects regular, yet all this may be contradicted by oral evidence, addressed to the jury, and the effect of the adjudication depend upon the opinion entertained by the jury, upon these points. So that the proper form of action is assumpsit, on debt on simple contract, where, under the plea of non assumpsit, or nil debet, any of

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