Post v. Neafie

Spencer, J.

The counsel for the defendant hasargued, 1st. That ibis was not a final decree, but a mere interlocutory order in its na-j.ure> tjle performance of which might be compelled by process of contempt there, but which this court cannot perceive to be a judg-mert ⅛ the cause. 2d. That the agreement, on which the order was made, was out of the ordinary course of the powers of solicitors, and nb authority appearing for making it; as the defendant denied that it was made by his authority or permission. 3d. That it now appears by the documents produced, that the sums declared for, by the plaintiffs, if due at all, are not due to them jointly, but that a part is decreed to one of the plaintiffs, and a part to the other separately, and for causes and considerations which havemo connexion with each other, and for which therefore, they cannot join. 4th. That if, in any case, this court could sustain an action upon a decree of a court of equity, it could only be on a decree for a specific sum of money merely, and not upon a decree enjoining mutual and specific performances like the present; or if an action were to be sustained on a decree ordering mutual performances like the present, then, to effect the ends of justice, the court must consider all things which the plaintiffs are to perform, as conditions precedent, and of course, that the plaintiffs must shew the performance of them on the trial. 5th. That no action at common law will at all lie to enforce a decree of a court of equity.

The first objection is unfounded in fact. The clerk of the court of chancery has certified the decree as signed by the chancellor, and remaining of íecord in the office of the clerk. It purports to be a final determination of the cause, and we are to intend that it has been duly entered agreeably to the regulations of the act.

As to the second objection, it merits little consideration. Solicitors of the court of chancery, as well as attornies in courts of law, are not only responsible to their clients for betraying their trusts, but they are amenable to their respective courts in a sumary way If this had been an action depending in a court Of common law in Jersey, ahd the attorney had confessed a sum of money due to the adverse party it could never become .a matter of enquiry in a suit on the judgment, whether the attorney had acted by authority. If, in this case, the defendants solicitor was unauthorized to enter into the agreement on which the decree was ultimately founded, it was examinable only ⅛ th® court having original jurisdiction. It is to be intended that the solicitor acted by the direction of his client, and for bis benefit*

With respect to the third and fourth exceptions, it does appear, by an interlocutory order in the cause, that the present defendant was decreed to pay several sums of money to La Rue solely, and other sums of money, for costs, to Rost and La Rue ; but the final decree, which is the basis of this action, adjudges and decrees all the monies to be paid by the present defendant to the present plaintiffs, without any act to be done on their part; and thus, it turns out to be a decree for a specific sum of money, independent of any condition or precedent act to be done by the present plaintiffs. It follows, that there were no acts to be averred or proved by the plaintiffs, to entitle them to callón the defendant to perform this decree.

The last objection, that no action at common law, will at all fie to enforce a decree of a court of equity, remains to be considered.

This point has never been judicially decided; or if it has, neither the counsel nor the court have been able to find such decision. The silence of our books on the subject, is by no means conclusive that an action at common law is not sustainable on a decree for the payment of a specific sum of money, as the present is. Principles established in analogous cases must, therefore, be resorted to, to test the question. It has been said that a court of chancery is not a court of record. This is undoubtedly correct, technically speaking. But, whether it be, or be not a court of record, by no means decides the question, that a suit may hot be founded on its final decree. In Walker v. Witter, Doug. 6 Lord Mansfield, says “ The difficulty in the case had arisen from “ not fixing accurately what a court of record is, in the eye of the “ law ; that description is confined properly, to certain courts in “ England, and their judgments cannot be controverted ; foreign “ courts, and courts in England, not of record, have not that pri- “ vilege.” Yet, under that limitation, actions can be brought on the judgments of courts, not of record by the municipal laws of the country in which the action is instituted. The case cited establishes that where indebitatus assumfisit can be maintained, debt will lie 5 and that assumfisit as well as debt can be maintained on a foreign judgment; and I agree with Sir William JBlackstones that it is implied by the fundamental constitution of government, that every person is bound, and hath virtually agreed to pay, such particular sums of money as are charged on him by the sentence, ur assessed by the interpretation of the law. Whatever therefore the laws order anf one to pay, that becomes instantly a debt, which he hath before hand contracted to discharge. 3 Black. Comm. 160. Upon the same principle an action of debt can be maintained for a forfeiture imposed by bye-laws, and the ordinances of a corporation. The same reason applies to suits on penal statutes. In 7 Wentworth, 95, is a precedent of a declaration in debt in a court of common law, for a sum of money decreed by the Lord Chancellor to be due to the plaintiff, and it is attributed to Mr. Tidd. This is not a high authority; because bad declarations may be drawn by eminent counsel; but Mr. Wentworth's system is deservedly in high reputation.

I should incline not to maintain an action at law, on a decree of a court of chancery of another state, if by the decree mutual acts were to be performed, unless the party suing averred and proved a performance of all the acts incumbent on him to perform ; because to sustain the suit Without requiring such aver-ments and proof, would be administering justice in a very partial manner. Viewing the decree in this caúse to be for the payment of a specific sum of money, unconnected with any condition, I can see no valid objection to sustaining the suit, and more especially as, in the state of Hew-Jersey, it had all the effect of a judgment of the supreme court there. In my opinion the defendant can take nothing by his motion. It may be said that agreeably to the case of Hitchcock and Fitch v. Aicken, decided in this court, the defendant might have impeached the justice of this decree, in which case this court would have to exercise a chancery jurisdiction. Suffice it to say that this objection does not exist in the present case, and that in suits here, on foreign judgments, the same difficulties might present themselves, of an examination into the local laws of a country, with whose jurisprudence we might be unacquainted. The case I have last cited does not warrant the conclusion, that where parties have had a trial in the court of a sister state on the merits of a cause, that in a suit here, on such judgments, the original ground of action may be gone into, and I cannot assent to the position that in such cases, the justice of a judgment can be impeached.

Livingston, J.

The objections taken on the trial were, on the argument here, substantially reduced to the following:

1 — That an action of debt will not lie on the decree of a court of equity, or at any rate, only in cases where a specified sum of money is decreed to be paid, and nothing more is ordered to be done by either party .

2 — That this is not a final decree, but only an interlocutory order, and

3-That the plaintiffs had no joint cause of action.

The two last objections will be first disposed of.

On what pretence can this be called an interlocutory order ? It has every property of one that would be deemed final in our own court of chancery. It directs how the costs of suit are to be paid, and reserves nothing for further decision. It is also signed by the chancellor, and, as it is but decent to presume he understood his duty, we must conclude it is signed, as directed by the laws of his state, after having been properly entered in a book by the clerk for that purpose.

As little weight is there, in the objection which is made to the right of the plaintiffs joining in this action. How the sum decreed to be paid is to be divided, is a matter between themselves, but that they have a right to join in its recovery, will be evident from a moment’s attention to the decree. It directs the complainant, who is defendant here, to pay both of the defendants, Post and La Rue, who are the present plaintiffs, the several sums for which they now sue. Nor does it appear from the final decree, that this is due to them in distinct rights, or in different proportions ; and if that may he inferred from any previous proceeding in the cause, we are not bound to look into it. The Chancellor undoubtedly had a right to decree the money to be paid to them jointly, and having done so, they could have no other than a joint execution, nor could they have brought separate suits for it. The form of action therefore is not only right, but jt is the only one which could have been adopted.

But if both these difficulties arc surmounted, debt, it is said, will not lie on the decree of a court of equity. In examining this point, I shall take it for granted, as is truly the case, that' this decree is for the payment of money only. A mere equity, it is alleged, is no ground of relief at common law, and that the objects of equitable and legal jurisdiction, being so very different, it is impossible the former can be enforced by the tribunals of the latter. This may be correct in the first instance; but after the origjnal ground pf complaint has been litigated and determined in chancery, why should not its decree or judgment, if for the payment of money, be the ground of an action at law, as well as the judgment of any other court? That we have no precedent of this kind is easily accounted For. Decrees in equity are more generally for the performance of certain acts, to which common law courts cannot compel obedience, and therefore the successful party can, in such cases, obtain execution, only out of saine COurt, Even actions on foreign judgments are not very common; because executions are generally issued out of the courts in which they are rendered against the-property or person of the party, or proceedings are had against the bail. No case can be produced in which it has been decided, that a court of law will not sustain a suit of this kind. That these courts have been unwilling to lend their aid to enforce the performance of decrees in equity, may be conceded, but such jealous conduct neither proves their want of right or power, nor is it deserving of imitation. And yet, with all this hostility, for it deserves no better name, towards a domestic tribunal, the British courts received as binding and conclusive the sentences of foreign admiralties, the judges whereof were governed by no settled or known rules, but by instructions of their respective sovereigns, which fluctuated according to the exigencies of the times, or the temper and views of those in power. They regarded these sentences as not only binding the property and securing the vendee, which was right, but as deciding in the last resort questions arising between third parties, who were no parties to the suit, and whether the same had been litigated or not, in the admiralty. If this be law in Great Britain as it certainly is, her courts of common law would hardly say, without being very inconsistent, if the question were fairly to arise, that they would not regard, at least as jirima facie evidence of a debt, a decree of the lord Chancellor for the payment of money, when both parties had been heard before him, and no complaint was made of his decision. Lord JSaims in his principles of equity, in speaking of suits which maybe sustained on foreign decrees, makes no distinction between chanceiy and common law judgments, nor is any distinction to be found in the constitution of the United States. Debt usually lies for a sum due by certain and express agreement, where the quantum is . gxe[| anci Specigc, ancf does not depend upon subsequent liquidation- Now' as every man is bound to pay whatever is assessed on him by the interpretation or sentence of law, such sum when ordered to, be paid, instantly becomes a debt and the party has a right to institute a second action to recover it. If even an amercement in a court leet or court baron, which are among the lowest order of courts, create a debt for which this action will lip, ft would be extraordinary indeedi if the sentence of the highest court in a state, did not raise an equal obligation, or sanction a remedy of the same kind. An obligee, who has lost his bond, may be driven into chancery to establish his demand, but when that court has depreed the obligor to pay the amount due, why should the complainant be put tq the trouble o.f going a second time through a court of equity in another state, to recover it ? What is he to do, if, as may well happen, there be no pourt of that kind in the state where his debtor may happen to be, or why should not a court of law pay as much respect to such a decision, which has liquidated and adjusted the demand, as to the judgment of any other court, without regard to the intermediate modes of proceeding. The one, as well as the other, furnishes abundant, and equal evidence that the sum demanded is due, and ascertained, which is all that \ye want to know. I doubt whether it was ever before heard, that the foreign tribunal, which is applied tq for redress, must enquire into the nature of the jurisdiction, or the manner of proceeding of the court, whose judgment it is thus palled on to support- Shall we refuse to sustain an action on a French judgment, because the modes of proceeding ⅛ France conform to the civil law ; or of a court in Holland, because its judicial forms may vary from our pwn ? If the sum be adjusted by a court of competent jurisdiction, and before which both the parlies have been heard, it is sufficient. Beyond this our inquiries ought not to extend. I lay no stress on the statute of ¿Yew-Jersey, which renders a decree in chancery, of equal effect with a judgment of its supreme court; because, for the purpose of this action, we are not bound tq take notice of the manner of proceeding in a foreign court of equity, even admitting, which we do not know judicially, that they are the same as with us; it is enough that it has settled what is due from the one to the pther of the parties litigant. But,if I had the smallest doubt of the propriety of this suit, this statute would remove it; for if it mean any thing, it jnust be, that in future, there shall be no difference in any respect between ⅞ common law judgment and a decree in equity. The difficulty which may occur, if it should he necessary on a trial to open a decree, with me creates no embarrassment. Why anticipate that a defendant will in any case be able to satisfy us that a foreign sentence or judgment ought to be opened : Notwithstanding our decision, in Hitchcock and Mich v. Aickexi, it will hardly be considered as a matter of course to go into an examination of the original ground of controversy. When a decree is opened on the principles of this case, it will be time enough to determine whether the party can proceed at law, or shall be non-suited. This is a case after verdict, and no attempt being made, at the trial, to impeach the verity or justice of the decree, why shall we now presume, and tiiat without any suggestion on the defendant’s part, that it was in his power to have done it?

3 B. C. 154, 158. ib. 159.

It will be expected that we take notice of another objection which is, that something else besides the payment of money, is contained in the decree. Were that the case, it would only give rise to a question, how far the plaintiffs should aver performance of the matters directed to be done by them ? For, with such averment the action might still be sustained. But it so happens, that the final decree, on which this action is brought, does not order a single thing to be done, except the payment of the two sums of money which constitute this debt. The Chancellor therefore must have been satisfied, that every thing he had previously directed the present plaintiffs to do, was performed. But if we look into the antecedent interlocutory orders, which very unnecessarily make part of the case, and with which we have no business (for we are not sitting here as a court of appeal or review) we shall find that all the matters of any -consequence there directed to be performed, are enjoined on the complainant himself, who is the defendant here. He is to pay the costs of a suit by Post in the common pleas of Bergen. Also the costs of an ejectment brought by La Rue., against Post, together with the fees paid by Post and La Rue, to their solicitor and counsel. His wife is also to execute and acknowledge a deed given by him to Post; La Rue and bis wife are then ordered (the performance of which is of no consequence to JVeafie) to execute a certain deed to Post. From this view of the interlocutory order it is evident, that as the non-performance of any one of these things, must either proceed from his own neglect, or be no detriment to the defendant, it would be idle to insist on an averment, that they were performed, or to consider these directions as a bar to the present suit.

• My opinion therefore is, that the postea be delivered to the plaintiffs, and .that the defendant take nothing by liis motion.