1842.

ช.

Hoit.

FRANKLIN, these questions may be raised and submitted to the jury, January, under the charge of the court. In this view the foreign Boston India Judgment is but prima facie evidence of debt or contract, Rubber Fac'y but when the proof is in, and the fact admitted or found, that the adjudication was formal and in all respects regular, the contract is perhaps as conclusive, as that resulting from any adjudication of the domestic tribunals. The original cause of action is merged and gone, and whether it were good or bad, is of no importance, if it were only fairly submitted, and regularly adjudicated, by the foreign court. And this is, indeed, giving no more force to the adjudication of the foreign courts, than we do to an award of arbitrators, or the settlement of the parties, by account stated. In either of the cases, last supposed, it could surely be of no importance where the arbitration was had, or the account stated, provided the lex loci contractus made such mode of terminating disputes final between the parties. The reason then why, in declaring upon a foreign judgment, assumpsit or debt on simple contract, are proper, is made sufficiently obvious. Chipman Ch. J. 1 D. Chip. 59, 61, 62.

And it is equally plain why assumpsit, or debt on simple contract, would not be appropriate to the case of a domestic judgment. In declaring upon a domestic judgment, we count upon the evidence and not upon the contract. The regular statement of the debet and detinet is indeed necessary, but is only an inference from the statement of the record, which precedes, and is not strictly traversable, under the general issue. That goes to the premises and not the inference, or conclusion. The same is true in declaring upon specialties, and in all cases where the evidence itself is made profert of, as in the case of letters testamentary, of specialties, and of records. In such cases the general issue denies the existence of the evidence, as non est factum and nul tiel record. And although, in the case of specialties, the fact is determined by the jury, yet in that case the issue is narrowed to the single fact of the existence of the evidence. So in the case of domestic judgments, the inquiry is not whether the court made such a judgment, and whether they had jurisdiction of the cause, and of the parties, and took regular proceedings, but whether there is such record, as that declared upon, and this question is determined by the court

v.

upon inspection of the record or the exemplification, and FRANKLIN, January, this exclusive of all other proof. But in the case of a foreign 1842. judgment, the declaration is upon the contract, and not upon Boston India the record or evidence. No profert of the record, in such Rubber Fac'y case, need be made, and if made, will be treated as surplusage. Walker v. Witter, Doug. R. 1. I have gone thus minutely into the distinctions between foreign and domestic judgments, in order to show the reason why assumpsit will lie in the case of the former, and not in that of the latter.

It only remains to determine to which of these classes the case now under consideration properly belongs. I apprehend there can be but one opinion upon this subject, if we regard the consitution and legislation of the United States, and especially the decisions of the United States supreme court in regard to the matter. The provision of the United States Constitution is, (Art. IV. Sec. 1.) Full 'faith and credit shall be given in each state to the public ' acts, records, and judicial proceedings of every other state.' Congress is to prescribe the mode of proof, and the effect of such acts, which it has done. It is expressly provided by the act of Congress, of May 26, 1790, that these public acts, by which may be understood legislative acts, and records,' which are the records of courts, and judicial proceedings, which are all proceedings which are of a judicial character, but not by courts of record, shall have the same 'faith 'and credit given to them, in every court within the United 'States, as they have by law, or usage, in the courts of 'the states, from whence the said records are, or shall be 'taken.' 1 Story's Laws United States, 93. In the case of Mills v.Duryee, 7 Cranch, 481, (2 Pet. Cond. 578,) which is the leading case in the United States supreme court upon the construction of the act of Congress, and the United States constitution, upon this subject, the language of the court is Nil debet is not a good plea to an action founded 'on a judgment of another state. It is a judgment between 'the parties, and the proper plea is nul tiel record. The ' record may be proved in the manner prescribed by the act ' of Congress, and such proof is of as high a nature as an 'inspection by the court of its own record, or as an exempli'fication would be in any other court of the same state.' The same doctrine is affirmed in Hampton v. M'Connell, 3 VOL. XIV. W. R. IV.

13

Hoit.

FRANKLIN, Wheaton, 234. (4 Pet. Cond. 243.) In that case, Chief

January,

Hoit.

1842. Justice Marshall, referring to the case of Mills v. Duryee, Boston India as the basis of the decision, says, "The doctrine there Rubber Fac'y' held was, that the judgment of a state court should have 'the same credit, validity and effect, in every other court in 'the United States, which it had in the state where pro'nounced, and that whatever pleas would be good in a suit thereon, in such state, and none others, could be pleaded in 'any other court in the United States.' These cases fully settle the doctrine that the judgment declared upon in this case is a record, consequently the declaration upon it must be upon the record, i. e. the evidence, and not, as in the case of a foreign judgment, upon the contract; that the declaration should be accompanied with a profert of the record, or an exemplification thereof, which will be verified only by inspection of the court, on the plea of nul tiel record. We are not inclined to cavil at, nor to criticise, these decisions of that very able and learned court, for we do not well see how they could have been otherwise, under the existing provision upon the subject. Nor are we called upon to say whether any other plea than that of nul tiel record may not be interposed, in such case, under some supposable state of facts. We are aware that such is the language of the courts of Massachusetts and New York, in the cases of Hall v. Williams, 6 Pick. 232, and Starbuck v. Murray, 5 Wendell, 156; but we need not further discuss the subject, content with saying, we think nul tiel record is the only general issue, and that being the case, an action of assumpsit cannot be maintained upon such judgment.

Judgment affirmed.

After the judgment of the court was pronouced, the counsel for the plaintiff moved to amend the declaration, to debt on the judgment, as a record, and cited 1 Chitty Pl. 197. The dictum read to the court referred to two cases in 2 Marshall's R. 124, 185; but the cases were not shown the court. The court were divided, upon the question whether such an amendment was allowable, but agreed in opinion, that if such amendment were allowable, in the discretion of the court, it should only be done upon payment of costs and entering into a rule to discharge bail, and any attachment

there might be in the case, which is the rule laid down by FRANKLIN, January, Mr. Chitty. As an amendment upon these terms could be of no avail to the plaintiff, the motion was overruled.

On referring to the cases upon which Mr. Chitty founds himself, Billing v. Flight, 6 Taunton, 419; S. C., 1 Eng. C. L. R. 433; Levett v. Kibblewhite, ib. 483, 459, it is very apparent that the courts of common law, in Westminster Hall, do allow amendments, even to the changing of the form of action, where it is still for the same cause; but always under a rule, that bail be discharged. When plaintiff declared as administrator, an amendment, changing the description of person and capacity to executor, was allowed in the Common Pleas in 1733. Barnes, 5; 1 Petersd.524. Cases allowing amendments of a similar character and going beyond what has been practised in this state, may be found in many of the English reports; but they have been where no bail was concerned, or under a rule, that an exoneretur should be entered in favor of the bail.

1842.

Hines et al.

v.

Soule.

HINES & KELLOGG v. FAYETTE SOULE.

Held, that the admission of L. against his title to a yoke of oxen, that they belonged to R., under whom the plaintiffs claimed, were not evidence against S. who, as sheriff, had attached them as belonging to L., though made before the attachment and while L. was in possession.

TRESPASS for taking a yoke of oxen. and trial by jury.

Plea general issue,

On the trial in the county court, after proof of the taking, the defendant proved that he took the property, as constable of Fairfax, on a writ of attachment against one William Lawson, and as said Lawson's property.

The testimony detailed in the bill of exceptions tended, on the part of the plaintiffs, to prove that the oxen in question were the property of D. B. Rood, and had by him been let to Lawson, and that, subsequently, the plaintiffs hired them of Rood, and took them into their possession.

FRANKLIN, January, 1842.

Hines et. al.

v.

Soule.

The testimony on the part of the defendant tended to show a sale of the oxen from Rood to Lawson. In the course of the trial, the plaintiffs offered to prove that Lawson, who was not offered as a witness, admitted, while he was in possession of the oxen, and after it was said he had bought them and before the attachment by the defendant, that Rood was the owner of them.

This testimony was objected to by the defendant, but admitted by the court.

The jury returned a verdict for the plaintiffs, and the defendant excepted to the decision of the court, admitting the admissions of said Lawson.

H. R. & J. J. Beardsley and W. Wilson, for defendant.

T. Child and J. Rand, for plaintiffs.

The opinion of the court was delivered by

BENNETT, J.-The only question raised upon this bill of exceptions, upon which the defendant relies, relates to the admissions of William Lawson. Were they admissible in evidence? The defendant had attached the oxen, in question, as the property of Lawson, and he succeeds, sub modo, by the operation of law, to all his rights in them. It has, I conceive, been frequently decided,that such declarations of the vendor made before sale, as would be evidence against himself, are admissible against his vendee; and as to this question, it is the same thing whether he succeeds to the rights of the vendor, by purchase or by operation of law. The ground seems to be, that the admissions come from a privy in estate, and consequently bind the successor. In contemplation of law, they come from the party himself, and of course are not thought to be exposed to the objection of being hearsay evidence. They have been thought to be, not inter alios, but inter eosdem, and, in this view, it would seem to me to be immaterial whether the person making them could be called as a witness or not.

The case of Ivat v. Finch, 1 Taunt. R. 141, evidently proceeded upon this ground. Though, in that case, the declarant was dead at the time of the trial, yet this was made no point in the case, and the admissibility of the declarations rested upon