HELLIN· fr. HORLICK.
865
MELLIN
v.
HORLICK.
«(}Z'rcuit (fourt, E;D. Wzaconsin. August 1/). 1887.) JUDGMENT-ACTION ON FOREIGN JUDGMENT.
An action, ofaaaumpait or debt will lie ona judgment based upon a prior pecuniary obligat'on.. and also to recover the costs awarded bysnch judgment or decree; and, though the foreign judgment is set out in eXtenso in the complaint, the action will not be held to be brought .on sucb judgment as a record. if the complaint further alleges that, by reason of such judgment and the proceedings there"for. defendant became· indebted to plaintiff in the sum sought to be reCO'vered.·' .
I
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'1
The plaintiff aI1eged in his complaint in this action 'that in the year 1884', being a subject of Great' Britain, he filed a petition in the high court ofjustice,ch;tncery division, in England, to 'annul a certain patent granted to one Herbert John Haddan; that the defendant, Horlick, appeared in the case by his solicitor; and that such proceedings were after had, that an order or decree was duly made by the court, referring, the matter to the taxing-master t9 tax the costs of the 'petitioner, and to set offagaillst such costs the sum of £56 3s. 4d., theretofqre deposited i,n court' 'llS security for costs, l;l.nd the interest thereon, and to certify the balance. It was further alleged that the court, before which said pro.ceeding was pending, further. ordered and decreed that the defendant, Horlick, pay to the petitioner,MeIlin, the balance of such costs; that thereafter the taxing-master was attended by the solicitors of the parties, and taxed the costa of the petitioner at the sum of £245 tis. 6d., deducted therefrom the Sum of £56 3a. 4d., in court, as security for costs, and BEl. 10d., the interest thereon, and found the balance to be £188 16s. 4d., -all of which the taxing-master thereafter duly certified to' the court; that said order and decree, and said taxation and certification, were,' according to the practice of the court,· final, and thereafter remained in full force, unexcepted to, unreversed, and wholly unsatisfied. It was then alleged that, by reason of the premises, the defendant became indebted to the plaintiff in the sum of £188 16s. with interest thereon from March 16,1886, at the rate of4 per cent.,----that being the rate prescribed bytbe laws of England; and judgment was demanded accord·; ingly. To this complaint the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. Dodge &- Fish, in support of the demurrer, contended that this was a suit on a foreign judgment; that such a judgment bas 110 standing in this country as ·arecord; that a decree or judgment of a foreign contt is not regarded as a record outside of the jurisdiction in which it was pronounced; and; therefore, that no action can be maintained on such a judgment or decree. They further argued that, if any action could be sustained in respect of such a judgment, it must be brought upon the original consideration; and if, in point of fact, there was no antecedent consideration; and the claim made was merely for an inCident of the judg· ment, e. g., costs, no action at all could be maintained in respect of it v.31F.no.14-65
in a foreign jurisdiction. They cited- PhilNps v. Hunter, 2 H. Bl. 403, 411; Railway Co. v. 17 Fed. Rep. 414; Story, Confi. Laws, § 599; and Freem. Judgm. 9220. Van Dyke Dyke,. fQr plaintiff, .replied thatal18umpsit or debt will lie on a foreign judgment; that a88Umpsit will also lie on a decree of a foreign court of equity for a specific sum of money; and that a decre{'i of',8uch1 a cO$ts, l:)O the same footing as a judgment at iji;W. ,'fhE\Y fl,lrtper present action was one in a8sumpsit, andthlit it was not necessary to allege "in the complaint the ground of the' itself iUl obligation to pay the amount therein adjudged .to be pard. , is of debt or a8sumpBifwlll, on tin, a j,urisdict,ion foreign to that .which the judgment was rendered or decree entered. !dr. Freeman, ill his Law of Judg. . '. ' c,' a. fpreign. J:a.' respects. into effect of our constItutLOnand the. tOthesaIll,e e1!itent laws (if congress, a Judgment ren4er.'e4 in one of tl}ese United States would be en.forcedin another; But itis nevertheless not regal'ded as a matter of record, nor a.sbeingOf a 'higher naturetlian the'OJ:'i.'ginal cause of action. Hence it does not deharplaintiff pf the, remedy which every subject has of bringing lLctjOP.;, And. has hisjl)ption :elth&: to resort to his original ground of actiop, or to,llrillg<ts8umpsit on -Citing-Bank.v. Harding, 9 C. B,66l; Robertson v. Struth, 5 Q. B. 941J'iSmith.w.,Nicolls,5 ,Bing. N. O. 208;.Berryv.lrwin, 7 Dowl.282; BaU v., Odber-,1il. East, US; £hillip8 v.: Hunter, 2 H. Bl. 402; Ityman. v. BrQ'Wn\ 20urt. 559;-BQne.8te6l:v.Todd, 9 Mich. 375; Frazier v:Moorc, 11 Tex. 7:55; Wood v. Gamble, :11 Cush. 8. . "Itis DQt"an; admitted wrinciple 'of the law of nations.," says BLACKBURN, J.,.io Godard.. v. Gray"L.R. 6 Q. B. l39,..148,"that a state is bound,to enforce within ita territories the judgment of a foreign tribunal. Several of,the .continental 'nations (including France) do liot enforce the judgments-.of other countries,: unless when there are reciprocal treaties to tha.tefl'ect·. ; But in Englandi and in those states which are governed by the common law, such judgul,enta are enforced, not by virtue of any treaty, not ·by virtue of any statute, but upon a principle very well stated by PARKE, E., in Williams v. ,JOOe8,' 13 Mees & W. 633: 'Where a court of oompetent,jJ.ltisdictionhas lj.djudWated a certain sum to be due from one anotner; ,a Jegal ·oh'ligation arises to pay that sum, on which. an actio.n:Qfr to enforce the judgment may be maintained. It is in this way that jUdgments of foreign and colonial courts are supported and enforCed."" ,,' : .>W: I] . InlValkerv: Witter, 1 Ddllg.l,iit was held that an action of debt will lie Olia fOl'eign judgment, and the plaintiff need not show the ground of the jndgment·. Lord MANSFIELD said: the plaintiffs had called the judgment a record, yet, by the additional the declaration, it was clear they did not mean that sort of
nqt;, ;strictly speaking"a record, nevertheless an
that a judgment
o.l decree of a foreign
t'ecotcl'to"whi6b iriJplicU'fHitl\' is gifen by thecoJrts: ol Westminster Hall. They'had nat misled the court, nor the defendant, forthey spoke of it 'as the record of a cOQrt in JalllaLca.. The question was a narrow f()r it. admitted, on the part of the defendan,t, indebitatus assumpsit would hav:e lain, and on the Nrt of the plaintiffs that the jUdgment was only eVidence of the debt." . . :AsIIIlPRST, J' j in tl).e same case, said that, "i1;1 indebitatus a88Umpsit, on a foreign judgment, the judgment is shown as a,consideration; and,. ever indebitatus a81fU/rrvpsit can ,be maintained",de1:;>twill,lie." " . A88U,mpwf,t will also lie on adectee of a foreign couiiof equity for a spe;. cHic flum"of money. Sadler v., Robins, 1 Camp. 253, was an action upon a decree pftqe high court of chancery in the Jamaica for a 8um of money; "fil'st, deducting thereout the full·costs .of the said defendants in the said suit, to be tl;txed by one of the D:1l;l,sters of. the said court;' and also deducting thereQut all and every other payment which S. and It, or either of them, might on or before the first day of J anu'" ary, 1806,show to the ,satisfaction of the said master they or eitber them had paid," etc. In this case Lord EI,LENBOROQGH 8aid: decree been perfected,l would have given. effect to it,as to ment at law. ,The one may be the consideration for an Ufsumpsit equa\lY with the othcr;but the law implies a promise to pay a definite, not an inite, s u m ; j , . . . , stated in Pennington v. Gibson. 16 How. 77, seems as applicable to foreign as to domestic judgments or decrees. It there said by tlle;cqurt: . . " . "We lay: down. ... ... ... as the general ruletbat, in every which an action of debt can be maintained upon a judgment at law fora sum ofInoney awarded by such judgment, the like Can be maintained lipan a decree in equity which is for an ascertained and specific amount, and nothingmore; 'and that thel'ecord of the proceedings in the one case m'tlstbe 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 pal'tnershipaccount. 8ee, 'also', the judgment of Lord DENMAN; C; J., in 6 Adol. &; E. (N. 8.)288. If assumpsit or debt will He on a judgment or decree recovered abroad, and based on a'prior pecuniary obligation, it is not perceived why sllch an action n'lay 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 be in point. It was there held that an actionof'a8-' 8wrnpsit or d!3bt may be maintained against a defendant resident in England, for costs 'awarded against him, after appearance, by a decreelofthe 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 but not having the power by ib; own process of enforcing payment of them in England. "An action of a8sumpsit or debt," he observed, "therefore lies for the ra-
868
FEDEIUL REPORTER.
coveryof them. I think we must lj,ssume 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 afterwards abandons his * * * The action may be sustained on the ground of morality and justice. The maxim ofthe English law is to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice. Foreign are enforced in these courts because the parties liable are bound in duty to satisfy them. 'fhe 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 inb action for costs has ever been brought on a foreign judgment. I cannot ,quite assent to that; but, supposing \t were so, I must own I should. be disposed to set an example of such an"actiolli Suppose litigation arises in France relating to real property, Sind 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 case 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 certain. 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 doiiot concur in that view. It istrue that the decree of the English court is set out exlim80 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 soughtl to be recovered; and, although payment has been demanded, the same has not been paid. In Wctlker:v. Witter, supra, the judgment of the foreign court was set out in the declaration, with ofindebtedness 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: Qhit. PI. allege with great particularity of statement the recovery of the jJ1dgment or decree; and, if such allegations were suitable and proper in a declaration under the common-law practice, I can };:lave no doubt that the complaint in this case may be held to be sufficient as stating a good cause of action in assumpsit. arising out of an alleged recovery in a foreign court. As the result of these views, the, demurrer must be overruled.
INSLEYV.
SHEPARD.
869
INSLEY and others v. SHEPARD and others. (Oz'rcuit Oourt, No JJ. Illinois. July 28.1887.)
In awarding damages to a bridge-builder for the breach of a contract entered into with him for the construction of a bridge over a river, the measure of damages will be held to be the difference between the contract price and the cost of doing the work, less a reasonable deduction for the less time engaged in the work, and for the release from the care, trouble, risk, and responsibility attendinA' a full execution of the contract. which, in a case where the contractor has made no allowance for contingencies in estimating his profits, may be reckoned at 30 per cent. of the theoretical profits. Cash paid to subcontractors will be added as damages; but no damages can be claimed for loss sustained in adapting material purchased to use in other nol' for the construction of patterns, nor for plaintiff's expenses in obtaInIng the contract.
,
E. F. Bull, for plaintiffs. Goo. B. Foster, for defendants. BLODGETT. J. On September 13, 1883, a contract was made between the plaintiffs and the town of Peoria, by the highway commissioners of said town, by which plaintiffs agreed to construct a bridge across the'Illinois river at a point known as "Partridge's Crossing," or the "Narrows," according to certain plans and specifications referred to in, and made a part of, the contract, for which the town agreed to pay the plaintifts the sum of $51,800, payable in monthly estimates as the work was per-