A SELECTION OF CASES ON THE

LAW OF QUASI-CONTRACTS

PART I.

RECOVERY UPON A RECORD.

A. RECOVERY UPON A JUDGMENT.

ANDREWS v. MONTGOMERY AND OTHERS.

19 JOHNS. 162.-1821.

ASSUMPSIT, on a judgment recovered against the defendants, in the Court of Common Pleas of the County of Essex, in the state of New Jersey. The defendant's counsel insisted that the action should have been debt, not assumpsit.

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SPENCER, CH. J.-* * *The plaintiff has counted upon the judgment in New Jersey, as a simple contract; and, accordingly, it is set forth as a promise to pay the amount adjudicated. Now it is well settled, that assumpsit cannot be supported, where there has been an express contract under seal, or of record but the party must proceed in debt or covenant, where the contract is under seal, or in debt, if it be of record, even though the debtor, after such contract were made, expressly promised to perform it. (1 Chitty, 94, and the numerous cases there referred to.) In Pease v. Howard, 14 Johns. Rep. 479, this court decided that a judgment in a justice's court was not within the statute of limitations, like a foreign judgment, and that it was in the nature of a specialty. The judgment recovered in New Jersey being admitted by the pleadings, and standing totally unimpeached, we are bound to consider. it as fairly and justly obtained, and as establishing a debt of record against the defendant. It is not, therefore, merely prima facie evi

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dence of a debt, like a foreign judgment, but absolute and decisive evidence of a debt. Assumpsit then will not lie upon it; and without examining the pleas, as it is impossible to support the plaintiff's action, be they ever so bad, the defendant must have judgment. Judgment for the defendant.

FIRST NATIONAL BANK OF NASHUA v. VAN VOORIS.

6 SOUTH DAKOTA 548.-1895.

ATTACHMENT by the First National Bank of Nashua, Iowa, against William F. Van Vooris. From an order dissolving the attachment, plaintiff appeals. Reversed.

KELLAM, J.-This is an appeal from an order of the Circuit Court of Brookings County discharging an attachment. The leading question in the case is whether, within the meaning of our attachment law, a judgment of a sister state is a contract, without regard to the character of the original cause of action which entered into it. The difficulty is not to find direct adjudications upon the general question of whether a judgment is or ought to be classed as a contract, for they are almost numberless on both sides of the question. The embarrassment is to determine which line of these cases, so squarely opposed to each other, is most securely grounded upon good reason, and most likely to result in its practical application in the most good and the least harm. Although some elementary law writers, and some courts whose learning is so great and whose judgment is so nearly infallible as to almost foreclose further inquiry, have declared judgments to be contracts, and have so classed them, it is very obvious that ordinarily they lack the element of consent, which is generally named as the very life and spirit of a contract. It would look pedantic, and probably serve no useful purpose, to undertake in this opinion to rewrite the learning found in the opinions of other courts, and in the books of the text writers, upon this question of the contract character of a judgment. A very brief examination of the subject demonstrates the fact that the most learned, careful, and thoughtful judges and lawyers have reached directly opposite conclusions. In Black on Judgments (Vol. I, § 7 et seq.) are marshaled a large number of these conflicting decisions. In Louisiana v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, the judges of the Federal Supreme Court could not agree that a judgment was or was not a contract.

It seems to me, however, that, even if a judgment is not a contract in a broad and unqualified sense, it does not necessarily follow that a foreign judgment cannot be the basis of an attachment. This must depend upon the interpretation to be given to the expression, "action arising on contract," as used in the attachment law. The original office of the attachment was to secure the collection of debts.

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