
    John P. Parker v. Joseph W. Martin.
    Columbia,
    Dec. 1828
    _ . Although technical precision is not requisite in stating the cause of action ;n summary process, and the statement in the petition may be aided by reference to the account, contract, or other writing indorsed on. or annexed to it; yet it is essential, that the cause of action should, in some way, be set out with sufficient certainty to prevent a surprise upon the defendant. And therefore, where the process merely stated that the defendant was “indebted on a foreign judgment;” and it did not appear by any statement, or reference, at what time, by what Court, or in what country, the judgment sued on, was rendered, a nonsuit was ordered. vide Hilburn v. Paysinger, ante, p. 97. and Goodwin v. Oliver, 2 Bailey, 446.
    Tried before Mr. Justice Gail lard, at Spartanburgh, Spring Term, 1828.
    This was a suit by summary process. The petition stated that the defendant was indebted to the plaintiff, on a foreign judgment, and a copy of the account for which the judgment was rendered, together with a statement of the costs, was indorsed on the process; but no copy of the proceedings, was indorsed. or annexed, nor did it appear when the judgment was rendered, by what Court, or in, what country. At the trial the plaintiff gave in evidence certain proceedings by attachment against the defendant, which had been instituted by the present plaintiff in the County Court of Wilkes County, North-Carolina, and on which judgment had been rendered for him, for the amount stated in the process. The presiding Judge overruled a motion for a nonsuit, ánd gave a decree for the plaintiff. The defendant now renewed his motion for a nonsuit in the Court of Appeals.
    Goodman, for the motion,
    contended that the statement of the cause of action in the process was so totally deficient in certainty, that the defendant could not know what it was he was called upon to defend, and was necessarily taken by surprise. But independently of that objection, an action would not .lie on a judgment awarded in another State, in a suit instituted by attachment of the goods ; for such a suit is a proceeding in rem, and so continues, unless the defendant appear and answer to the action in person. And this he is every where allowed to do, even after judgment against him for default of an appearance; so that such a judgment cannot be regarded as conclusive of the debt, for which it was awarded. Kilburn v. Woodworth, 5 Johns. 39.
    37th Rule.
    Irby & Bobo, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The. act of 1769, which originated the summary jurisdiction of the Court of Common Pleas, requires that the petition of the plaintiff shall contain his “ charge or demand plainly and distinctly set forth P. L. 270 : and where the action arises out of any writing, he is required by the rules of Court to indorse a copy thereof, or annex it to the process. The charge contained in the body of the process in this case is “ that defendant is indebted to the plaintiff in the sum of fifty-five dollars and seventy-six cents, besides interest, on a foreign judgment.” On the back of the process there is an abstract, showing the items of debt and costs, which make up that sum ; but there is neither time when, place where, or_Court by which, the judgment was awarded, contained in either.

It is not requisite in this jurisdiction to set out the cause of action in the body of the process with technical precision : it is usually stated in general terms, referring to an account, contract, or other writing, indorsed or annexed, for further specification. But no case can arise, which will better demonstrate the necessity of some degree of certainty in judicial proceedings of every kind, than that now before us. The process states that the defendant is indebted to the plaintiff on a foreign judgment generally; and he offers in evidence a proceeding from the County Court of Wilkes County in North-Carolina. Under the same statement he might, with equal propriety, give in evidence the proceedings of any other Court, of any other country. This was calculated to surprise the defendant, and whether we apply the strict rule, or substitute convenience, the process is bad, both in form and substance. The motion for a nonsuit is granted.  