
    JAMES C. PRITCHETT, surviving partner of James & Wm. Pritchett, vs. JEHU CLARK and THOMAS CLARK.
    
      Quere. — What is the effect of a judgment in another State, as the foundation of att action here?
    It seems that the defendant, may plead against the record, to an action on such a judg. ment, that he never was summoned, and did not appear to the suit in which it was rendered?
    If such record be relied on as an estoppel to such plea, the matter of estoppel must be pleaded; and a mere reference in the declaration to the record of such foreign judgment, with a prout palet per recordum, is not sufficient to bring the matter of estop-' pel to the notice of the court on a demurrer.
    Questions reserved by the Superior Court, New Castle county. [ Tried before all the judges.
    This was an action brought in the Superior Court for New Castle [county, on a judgment recovered in the District Court of the city [and county of Philadelphia. The questions arising in the cause [involved a consideration of the character of a foreign judgment, [when sued upon in the courts of this State; and these questions were entered upon in the argument; but the case turned chiefly on a question of pleading.
    The cause was argued by Mr. Wales, for the plaintiff; andbyJiessrs'. iates and Clayton, for the defendant, Jehu Clark.
    The defendant’s counsel contended that a judgment rendered by court of one of the United States, against a citizen or inhabitant of mother, who was not served with process in the suit, and who never jippeared to the same in person, or by any authorized agent or at-lorney, is absolutely void; the court rendering the judgment not having jurisdiction of the person of the defendant. (1 Stark Ev. 232-3, 1; 1 Kent’s Com, 260-1, n. b.; 2 Troub. & Holy’s Pr. 16, 17;, 9 
      Mass. Rep. 462; 6 Pick. Rep. 232, 9; 5 Johns. Rep. 37; 15 ib. 121, 141; 5 Wendell 148; 4 Cowen’s Rep. 292; 4 Conn. Rep. 380; 1 Neio Ramp. Rep. 242; 1 Rail’s JV. Y. Rep. 155.) And to a suit brought in this State on such a judgment recovered in a sister State, the defendant may plead specially the matters which deny the jurisdiction of the court rendering the judgment, or which show the want of such jurisdiction. (1 Stark. 233, n. 1; 1 Kent’s Com. 260-1; & Johns. Rep. 37; 4 Cowen 292; 5 Wend. 148.)
    The plaintiff’s counsel took the ground that a judgment obtained in the court of another State, having jurisdiction of the subject, is conclusive evidence, in an action of debt on such judgment in this State; and that no plea or evidence contradicting the record is admissible. (I Pet. C. C. Rep. 157; 2 Johns. Rep. 17; 2 Johns, cases 357; Haywood 305, 316; 2 Bay 485; 2 Peters 202, 262; 19 Johns. Rep. 162.)
    The court went somewhat into these questions in their opinion; but the case was decided on a question of pleading.
    The plaintiff declared in debt upon the Pennsylvania record. The declaration set out the judgment, in short, in the usual way, with a talitur processum; only averring that by certain proceedings in the I District Court of the city and county of Philadelphia, a judgment to a certain amount was recovered at the suit of the plaintiffs, against\ Jehu Clark and Thomas Clark, defendants: “as by the record and! proceedings thereof remaining in the said District Court more fullyf appears, a copy whereof duly authenticated, the plaintiff here in court I produceth.”
    The defendant pleaded nul tiel record; payment; nil debet, and I twelve special pleas; the first eight of which recited that the suit ini which the said judgment was recovered in Philadelphia, was com-| menced against Jehu and Thomas Clark, as partners, and that Jehi Clark was never summoned or appeared, &e. The ninth and re-] maining pleas omitted this recital, and merely pleaded that “at the time of the commencement of the said suit, in which the said sup-| posed judgment in said declaration mentioned was recovered, he ’the said Jehu Clark was not nor was he at any time before or afterl wards an inhabitant of the said State of Pennsylvánia, nor residen! there, nor had property there, but was at the time of the commence! ment of the said suit, and ever since hath been, and still is, an inhábil tant of and resident in the State of Delaware: that the said Jehu wal not served with any process in, and had no notice of the said suit, an] did not appear to or in the same either in person or by an attorney or agent by him authorized; and this he is ready to verify,” &c.
    The plaintiff took issue on the first and second pleas, and demurred to the rest; contending that the defendant was estopped by the Pennsylvania record to deny notice and appearance, because it was shown (as he contended) by that record, that the suit was against Jehu and Thomas Clark, as partners, and there was notice to Thomas Clark, one of the partners, and a general appearance by attorney for the defendants.
    The defendants’ counselcontended that this matter of estoppel no where appeared on the record in this cause, and the plaintiff was bound to plead it to take advantage of it: that, though the recital to the first eight pleas admitted that the proceedings in Pennsylvania were against Jehu and Thomas Clark, as partners, that in respect of the ninth and three following pleas, the case stood here upon a declaration, in short, on a judgment recovered against two persons, not shown or averred to be partners; a plea by one of them, that he was never summoned and never appeared to that suit; and a demurrer to this plea on the ground that the defendant was estopped to deny an appearance, because his partner appeared for him.
    The plaintiff’s counsel insisted that this matter did appear on the record of this cause, because the declaration by referring to the [Pennsylvania record with a prout patet per recordum, so incorporated that record with the pleadings in this cause, as to make it a part of them for the purpose of showing the estoppel.
   But a majority of the court being of a different opinion, gave judgment against the plaintiff on the ninth and following pleas; and the [Superior Court afterwards allowed an amendment of the pleadings, bo as to bring up the true question in the cause. (See post at May term, 1843.)

Bayard, Chief Justice:

The plaintiff, on the 8th of January, 1839, Brought an action of debt in the Superior Court for New Castle counly, against the defendants, who were duly summoned. Thomas Elark, one of the defendants did not appear, and judgment was ren-lered against him by default. The declaration was filed against lehu Clark, the other defendant, and counts upon a judgment ren-ered in the District Court for the city and county of Philadelphia, at ane term, 1835, against the defendants for $485 45, at the suit of íe plaintiff.

To this declaration the defendant, Jehu Clark, has filed, fourteen pleas, of which it is unnecessary to notice more than two, namely: the fourth and the ninth. The ninth plea alledges “that at the time of the commencement of the suit in which the said supposed judgment in said declaration mentioned was recovered, he the said Jehu Clark was not, nor was he at any time before or afterwards, an inhabitant of the said State of Pennsylvania, nor resident there, nor had property there; but was at the time of the commencement of said suit and ever since hath been and still is an inhabitant of, and resident in the State of Delaware; that he the said Jehu was not served with any process in, and had no notice of the said suit, and did not appear to or in the same, either in person or by an attorney or agent by him authorized.” The fourth plea is to the same effect as the ninth, except that it begins by reciting that the suit in the District Court was commenced against the defendants as partners. To these pleas there is a demurrer and joinder in demurrer. The object of the pleas is to show that the District Court had no jurisdiction over the person of the defendant, Jehu Clark, and that the proceeding was therefore coram non judice and void. On the part of the plaintiff it is contended that the judgment of the District Court is conclusive, and that the pleas are inadmissible and bad. In support of this posi-1 tion it is insisted, that the provisions of the constitution of the United States, and of the act of Congress, place the judgments of the different I State courts on the footing of domestic judgments; and that by the Í rules of the common law there can be no averment in pleadingl against the validity of a record. The first question then is, whether! the pleas are admissible; and if so, secondly, whether they are a su£fi-| cient answer to the declaration. Before proceeding to consider! either of these questions, it will be proper to determine the nature! and extent of the record which this court has before it, and to which| it is confined in its judgment upon the pleadings. The question now before this court, comes up on a demurrer to the pleadings in the Supei’ior Court for New Castle county, and the record before us is| the record of that court. It is contended that the record of the Dis! trict Court is also before us, and must be considered as incorporates with the record of the Superior Court, by virtue of the referencif which is made to it in the declaration filed in that court. The del claration in the Superior Court is in the common form, stating shortlj the recovery by the plaintiff of judgment against the defendants ij th$ District Court, “as by the record and proceedings thereof remairj ing in the said District Court more fully appears, a copy whereof duly authenticated the plaintiff here in court produceth.” It is insisted that this formula, which consists first, of the usual reference which is made to the record, when one is declared upon; and, secondly, of a profert, which is both unusual and unnecessary, has the effect of incorporating the record of the District Court with that of the Superior Court. As to the reference which is made in the declaration in the Superior Court to the record of the District Court, and which when the proceedings were recorded in latin, w7as in the words, prout patet per recordum., it is a mere matter of form, the omission of which can be taken advantage of only by special demurrer. (1 Chit. PI. 356; 8 Del. Laics 43.) Anciently the law required that a record should be pleaded entire and with certainty; for, as the books say, a record cannot be taken by parcels, and it was then as much a rule of law that reference should be made to the record as it is now since the short mode of declaring has become the practice, stating merely the term of the court, the parties and the sum recovered. (1 Chit. PI. 354; System of Plead. 368.) Accordingly, we find it laid down in System of Plead. 368, “if the record be not certainly pleaded, to say prout patet per recordum, or per finem, it is void.” And cites 38 H. 6, 28-9. In that case, which was an action of debt against the marshal of the king’s bench for an escape, the plaintiff declared upon a judgment recovered and execution, with the usual formula, as it appears before you from the record.” Fortescue said, “what he has alledged, as it appears before us from the record, are void words and of no effect, for these words are not matter of record, that he shall not plead before us the record, to show the estoppel. You say this; but tell us how it appears before us from the record, w’hen he has not shown any record; in which case these words are to no purpose, so when one alledges that it appears by fine before us, this has no effect without pleading the fine or recove-I ry, or showing the record.” At this time, in the reign of Henry the sixth, to plead a record, meant, to set forth the whole proceedings in I hcec verba, and the rules of lav/ required the same formula of re-jference which has continued to this day. When a plaintiff declares ¡upon a record, whether he sets it forth in hcec verba or shortly, he [refers to the record by the usual formula; but when a record is relied [upon in any subsequent stage of the pleadings, whether in the plea, ¡replication, &c., there is not only the usual formula of reference, but ¡also an averment of hoc paratas est verificare per recordum. All which shows that the reference to the record is mere matter of form and has not, and never had, any peculiar virtue or effect, such as has been claimed for it on this occasion. The profert, which is made in connection with this reference, is as has been stated both unusual and unnecessary, as oyer is not now granted of a record; (1 T. R. 149, The King vs Amory;) and its practical import is, that the party has .the instrument ready for the purpose of giving oyer. (Step, on Plead. 488.) But the profert itself has not the effect of incorporating the instrument of which profert is made with the declaration, and thus making it a part of the record; for “where he (the party having the right to demand oyer) has occasion to found his answer upon any matter contained in the deed of which profert is made and not set forth by his adversary, in these cases the only admissible method of making such matter appear to the court, is to demand oyer, and from the copy given to set forth the whole deed verbatim in his pleading. (Step. on Plead. 90; 1 Chit. Plead. 416; 4 Dal. Rep. 436, Bender vs. Fromberger; 1 Ilarr. Rep. 433, Easton vs. Jones.) It is perfectly clear then that the record of the District Court forms no part of the record of the Superior Court, to the pleadings in which alone, we are^fo direct our attention.

We come now to the consideration of the two questions: first, as to the admissibility of the pleas, and secondly, as to their sufficiency. The purpose of the pleas being to show that the District Court had no jurisdiction over the person of the defendant, Jehu Clark, and that the proceeding was therefore coram non judice and void, their admissibility depends upon the affirmative of the question whether, under the provisions of the constitution and of the act of Congress, the jurisdiction of the court rendering a judgment can be inquired into in a suit upon the judgment in another State. If the judgment of the District Court be regarded in the light of a foreign judgment, independently of the constitution and the act of Congress, and depending for its effect on “the comity of nations,” as a ¡ branch of international law, there cannot be a doubt that such a plea is admissible and good, since it is indispensable, by that code, to its claim to recognition in any other State, that the 'court pronouncing judgment should have a lawful jurisdiction over the cause and the parties. The rule on the subject is thus laid down by Story, in his admirable commentaries on the conflict of laws: “In order, however, to found a proper ground for recognition in any other country, it is indispensable to establish that the court pronouncing the judgment-had a lawful jurisdiction over the cause and the parties. If the jurisdiction fails as to either, it is'treated as a mere nullity, having no obligation and entitled to no respect beyond the domestic tribunals. ('Story Corijl. of Latos 492, sec. 586; 4 Cranch 269-70.)

The judgment of a court having no jurisdiction over the cause or the parties, must in the nature of things be void, and is itself an act of usurpation and injustice, which no other State, could upon any principle, be expected to enforce. It is clear then, as a question of international law, that the jurisdiction of the court pronouncing judgment may be inquired into. The question then arises, has the constitution and act of Congress produced any change in this particular? The provision of the constitution is that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” Is it the purpose of this provision to confer any new power on the States, or to extend the jurisdiction of their courts? Clearly not; but simply to regulate the effect of their acknowledged jurisdiction. Where the State court has lawful jurisdiction over the cause and the parties, then the judgment of such court is conclusive. The case of Mills vs. Duryee, (7 Cranch 481.) must be understood with this qualification. In the case of Bissell vs. Briggs, (9 Mass. Rep. 462,) decided in the year 1811, in the Supreme Judicial Court of Massachusetts, the court say, “that in order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the federal constitution, the court must have had jurisdiction not only of the cause, but of the parties.” The same principle was again asserted in the same court, in the year 1828, in the case of Hall et al vs. Williams et al, (6 Pick. 247.) In the State of New York a similar decision was made in the Supreme [Court of that State, in the year 1818, in the case of Borden vs. Fitch, 1(15 Johns. Rep. 121;) and again in a subsequent case in the same I court, in the year 1830, that of Starbuck vs. Murray, (5 Wend. 148.) lJudge Story, who delivered the opinion of the court in the case of \Mills vs. Duryee, in the year 1813, thus expresses himself, when [treating of this very point in his commentaries on the conflict of [laws, which were published more than twenty years afterwards, in ■the year 1834. “They (judgments of State courts) are therefore put pon the same footing as domestic judgments. But this does,not revent an inquiry into the jurisdiction of the court in which the riginal judgment was rendered, or into the right of the State to ex-rcise authority over the parties or the subject matter. The constitution did not mean to confer any new power upon the States, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within their territory.” (Story Confl. of Laws 509, sec. 609.)

As it is apparent then* both from reason and authority, that the courts of the State in which suit is brought, have a right to inquire into the jurisdiction of the court rendering the judgment, and there can be no writ of error between the courts of different sovereignties, it follows that there is no other mode of doing so, but upon a plea setting forth the facts which show the want of jurisdiction. The majority of the court are, therefore, clearly of opinion that the record of the court rendering the judgment is no estoppel to a plea to iís jurisdiction over the parties, or the subject matter. The pleas in this case then, being to the jurisdiction of the District Court, are admissible, and the question remains only as to their sufficiency.

The fourth plea, as has been stated, is to the same effect as the ninth, excepting that it begins by reciting that the suit in the District Court was commenced against the defendants as partners. This plea is consequently defective, as it does not cover the whole ground, since, if the suit was commenced against the defendants as parters, and the writ was served upon Thomas Clark, he might, as partner, have authorized an appearance by attorney, for both, which would have been sufficient to sustain the jurisdiction of the District Court; and it does not deny that his partner, Thomas Clark, was served I with process and did authorize an appearance for both. Admitting, therefore, its truth, which is done by the demurrer, yet it is not a I sufficient answer to the declaration. But the ninth plea is free from [ this objection, and as there is nothing in the declaration to show that I the suit in the District Court was commenced against the defendants! as partners, and there is nothing in the plea which shows that it was! so, it presents a statement of facts which show clearly that the District Court had no jurisdiction over the person of Jehu Clark. Thai ninth plea is therefore, if true, a sufficient answer to the declaration,! and the plaintiff by demurring has admitted its truth. The majority! of the court are, therefore, of opinion that judgment should be given! for the defendant, Jehu Clark, upon the demurrer, and direct thafl" this opinion be certified to the Superior Court for New Castle countyl

Johns, Jr., Chancellor:

With respect to the first eight specia, pleas, the court agree in opinion that they are insufficient and faij upon the demurrers; a majority of the court found their opinion upon the recital in these several pleas of the writ or process in the original suit, by which it appears to have issued against Jehu Clark and Thomas Clark, trading under the firm of Jehu & Thomas Clark; and being recited as having issued in the suit in which the said supposed judgment in said declaration mentioned was rendered., thereby ascertains and presents the matter of estoppel, which otherwise the plaintiff would have had to set forth in his replication; and hence as the ninth and subsequent special pleas omit the recital of the writ, therefore, upon those which negative the service of process or notice, without any reference to the matter of estoppel, a majority of the court consider the same not demurrable, and that the plaintiff should not have demurred to the same, as by so doing, he admits the truth of the plea, when by a replication he ought to have set forth and relied on the matter of estoppel.

As I do not concur in the opinion' delivered by a majority of the court, I shall proceed as briefly as is consistent with a clear expression of the particular rules of pleading, to state the view I have taken of this case. The decision made upon the first eight special pleas, establishes the legal effect of the matter recited, as conclusive, upon the principle that the same thereby appearing, operates an estoppel. Before proceeding further it is necessary to show that such is the effect of allowing the demurrers to the first eight special pleas. Upon recurring to the pleas which recite the issuing of the writ, it will appear that they do not recite any return or service of the same, or any part of the record showing the same, or the appearance of the parties in the original suit; they ascertain and identify the judgment as being against the defendants, but still leave out all reference to the service of process, or the record evidence of any appeai’ance, which are the facts expressly denied, and on which alone issues are, tendered by the several pleas respectively. If, therefore, the defend-dant has a right to contradict the fact of service, or to deny that he appeared to or in the original suit, notwithstanding process and judgment rendered, then it must follow that there is nothing recited in either of the first eight special pleas, by which that right is concluded. ¡The allowance of the. demurrers as to the first eight pleas can, therefore, only be sustained upon the ground that the judgment concludes by precluding the defendant from tendering an issue, either upon the fact of service of mesne process or appearance. This I consider invariably the effect of the judgment when declared upon as the foundation or cause- of action, and not as the' inducement. Examples of the latter exist in actions for an escape and on recognizances of bail; ■when the right of action accruing by reason of matter subsequent to the judgment, if the- existence thereof be denied by the plea, the plaintiff cannot demur, but must by replication specially set.it forth. But when the right and remedy are both perfected and established by the judgment, the declaration thereupon setting forth the judgment, with the prout patef per recordum, without reciting the entire récord of the original suit, does, by making the matter of estoppel appear on the face of the narr., conclude the parties. If this be not the established rule of pleading, then the- modern practice is founded in error, for it dispenses with the recital of the entire record of the original suit and only requires, as has been done in the present case, that the judgment should be set forth. If the defendant can plead matter anterior to the judgment, because it has not been set forth, as the non-service of process or non-appearance; or if the estoppel only operates when the particular fact embraced in the record of the- original suit is either stated in the narr. or plea, then in all cases’ in which the narr. omits to recite the whole record, the defendant would have a right to avail himself of the plea of the fact omitted, which would again render it necessary to revive the obsolete practice of spreading out in the narr. the entire record of the original suit. But I cannot discover any good reason for departing from the modern practice, the utility of which experience has fully established. • It is not the issuing or service of process nor the appearance, that constitutes the matter of estoppel'; it Is the judgment of the court which concludes the parties. Hence that being set forth, does on the face of the narr., show the matter of estoppel. This doctrine of estoppel by record is founded upon the- maxim “interest repúblicas I ut sit finis Iitium;” therefore, when a court of record, having jurisdiction renders final judgment, it concludes all parties and privies; the record is conclusive evidence- of the judicial act, but the es-toppel is the judgment; 4he preliminary stages of the suit anteriorl to the judgment are as matters of evidence conclusively proved by I the record, but if they stop short of obtaining the judgment of thej court, no right litigated is concluded, nothing but that ultimately! and conclusively determines the suit as res judicatay and'estops them! from- ever controverting the same matters within the same jurisdic-l tion. Hence the reason why the modern practice dispenses withl the recital of the- entire record', and only requires the judgment to b set forth, because it necessarily imports the existence of all anterior matters essential to sustain it. Hence in like manner in declaring upon an indenture, if the narr. states the lease to be by indenture, and the defendant pleads “nil habuit in tenementis,” the plaintiff need not reply the estoppel, but may demur, because the estoppel appears on the record; otherwise, if the declaration be “quod cum dimississet,” without -saying it was by indenture. (1 Salk. 277; 2 Lord Raymond 1154, 1551; 1 Saund. PL 326, n.) The reason upon which the rule is founded applies equally to judgments as indentures, they are both inter partes. But it may be remarked additionally with respect to a judgment, that being a record oyer cannot he demanded. (1 East 148, Chit. Plead. 415.) And that if the judgment referred to by the prout patet per record um, which is set forth in the narr., be of the same court, the plaintiff may at once pray that the court will inspect the record, without giving the defendant an opportunity to rejoin by traversing the record and making a perfect issue between the parties. (Jackson vs. Wickes, 7 Taunt. 36, arid the authorities there cited.) ira no case, whether it be in the narr., plea -or replication, does the party relying upon the record incorporate the same by recital at length in either; the judgment, if the suit or defence depends thereon is set forth, and the .same averred to be by record, the existence or non-existence of which can alone be determined by the court on inspection. When t'he judgment relied on is of a different court, within the same jurisdiction, the reference thereto by the words prout patet per recordum .under the plea of nul tiel record and issue thereon entitles the party to have a day given to bring in the record, not that the same may be -spread out at large, and made a part of the record in the suit pending; but that it may be inspected by the court, in rendering judgment upon the issue already made. The rule of pleading applicable to records, excluding oyer and dispensing with profert, is founded upon their character as being public, inter partes, and sufficiently apparent under the prout; but very different is the foundation •on which rests the reason of the rule in cases where oyer is demand-able and profert necessary; such as bonds, deeds and other similar instruments, which are in the custody and possession of the party claiming or relying upon them; and therefore the party to be affected by them is entitled to oyer before taking defence, and profert is necessary to be made. The difference between the production of a record, or the authenticated copy thereof, and profert, it is necessary to attend to in this case. The former presents to the eye of the court for inspection the record, as conclusive evidence, and the party controverting its existence cannot avail himself of any issue thereon, as matter of fact to be tried by a jury, as he may do with respect to matter of which profert is required. The latter is designed to exhibit the entire ground of the plaintiff’s claim or right; which, if the defendant demand oyer, must be granted for his information, before pleading, and for the express purpose of enabling him to understandand consider the same, before taking his defence. _ The purpose for which profert is made, and oyer demanded and granted, shows clearly and unequivocally the substantial distinction existing between such proceeding and that in which the party in his declaration states “prout patet per recordum, a copy whereof duly authenticated the plaintiff here in court produceth.” The one is evidently for the party, the other for the court; upon the former issue may be taken, to be tried by a jury; to the latter it cannot be so taken, as to withdraw the determination thereof from the court, upon inspection. Hence I conclude, it inevitably follows, that the only plea that could be taken to that part of the declaration which “sets forth the judgment and al-ledges the existence of the record, in the words following, “as by the record and proceedings thereof remaining in the said District Court more fully appears, a copy whereof, duly authenticated, the plaintiff here in court produceth,” was the plea of nul tiel record; unless the defendant, admitting the existence thereof, intended to impeach the legal effect by matter in avoidance. Pleas of this kind do not contradict either the existence of the record or the authenticated copy produced, nor tender any issue thereupon, but relying upon matter of avoidance, concede the existence of that which, but for the special eause assigned, would have its legal operation and effect. Therefore, although it be not allowed by plea to contradict a record, yet it is competent to impeach the same, under the plea per fraudem. In like manner, an estoppel by deed or indenture may be avoided by a similar plea, when otherwise it would not be competent for a party i thereto to contradict any fact established by the instrument itself. From what has been stated, it appears to me that in all cases in I which the plaintiff declares in debt upon the record of a judgment I of the same court, if the narr. set forth the judgment, the matter ofl 'estoppel thereby appears on the face of the declaration, and therc-I fore any plea contradicting the same by denying the service of pro-1 cess, the appearance of the party, or any fact concluded by the judg-| ment, would be ill on demurrer. The defendant tendering such a plea would be estopped by the matter apparent in the narr.; a demurrer to such a plea would not admit the fact to be true, for it only admits the truth of facts well pleaded. Hence to such a plea it would be irregular to reply, stating that process did issue, or that the party did appear; such a replication would not bring out the matter of estoppel, which is the judgment, but would only introduce into the pleadings a question of fact, involving the regularity of the original judgment, which can only be reversed by writ of error. But such a replication would further be improper, because it would take issue upon the fact tendered by the plea, when the determination thereof would only ascertain a fact, which being established would not per se, necessarily prove the existence of the judgment, inasmuch as the ¡process may have issued and the party may have appeared, and yet no judgment have been rendered. The cause of action is the judgment, and on that alone the narr. founds the right of recovery; its existence or non-existence as set forth in the declaration, is the matter in issue, the evidance relied on is the copy of the record, duly ruthenticated; or if in the same court it would be the court’s own [ecord. In such a case, if the defendant be allowed to plead that no process was served, or that he did not appear to the suit, it is obvi-pus it would be in effect tendering an issue upon the plaintiff’s evidence, and no defence against the matter averred and relied on in re narr., as the cause of action. Hence it would be irregular for re plaintiff, by his replication, to join in or take issue upon the facts rus negatived by the plea, for it would necessarily lead to the injury, not by the court, but by the jury, whether they were true or llse, and impose the onus probandi on the party replying. It is true pe record evidence would be proof, but not as under the plea of nul el record, by inspection of the court, for in determining this issue, [would not be the simple legal question whether such a record exits or not, but the fact controverted would be* whether the party las served with process or appeared in the suit or not. The repli-jtion to such a plea would abandon the issue tendered by the narr., to the existence or non-existence of the judgment, and would be ictioning such a plea as sufficient, contrary to the legal maxim, it there can be no averment in pleading against the validity of a [lord, though there may be against its operation; therefore, no mat-of defence can be pleaded which existed anterior to the recove-jof the judgment. (I Chit. Plead. 480.) I make these remarks [reference, as I have already stated, to the rule of pleading when ihe record is the foundation of the action, and not merely inducement. In the former, I consider the narr. disclosing the matter of estoppel, not by reciting the whole record, but by setting forth the judgment, precludes the defendant from pleading the non-service of process, non-appearance, or any other matter of defence which existed anterior to the recovery of the judgment, and that such pleas would be ill on demurrer.

This rule of pleading allowing the demurrer when the matter of i estoppel appears on the face of the narr., I consider too long settled and sanctioned by the authority of decided cases, to be now either ¡ questioned or controverted. It would be superfluous to reply speci-1 ally in the replication the matter of estoppel, when it is disclosed in! the declaration. The only inquiry then in the present case, as it appears to me, after allowing the demurrer to the pleas reciting thel writ, would be, whether the narr. has set forth the judgment on whicbl the suit is founded, in such a manner as to disclose the matter oí estoppel, and thereby render ail the pleas -ill on demurrer. I havc| already remarked, that in this case the only matter of estoppel, s<J far as the pleadings are concerned, is the judgment It has beetl supposed that the plaintiff in his declaration has omitted to set it forth so as to make it appear to be a judgment recovered against Jehu'anl Thomas Clark, trading under the firm of Jehu & Thomas Clarll inasmuch as he has only said, “by the consideration and judgmerl of the said court, rcovered against the said Jehu and Thomas Clarí the defendants, the sum of $285 45, above demanded.” It is str] posed the omission of the words “trading under the firm of Jehu Thomas Clark,” renders it uncertain whether the judgment declare on was recovered against the defendants, trading under the firm Jehu & Thomas Clark.

In considering this branch of the case, it may be proper first J determine how the narr. should describe the original judgment. Tf rule of pleading requires that it should be set forth; by this I do understand that it is to be literally recited, for the expression is us frequently to distinguish between setting forth the substanceof aninstj ment and the recital of the same. Hence, I infer, that it is not requis for the narr. to contain the original judgment in the precise langua or words in which it was rendered by the court; it is sufficient if I declaration substantially sets it forth, with a prout patet per records! Formerly, in an action upon a judgment it was usual to recite in f declaration, the whole of the proceedings in the former suit, but is no longer the practice, (Murray vs. Wilson, 1 Wils. 318;) and it is sufficient to state shortly, “that heretofore, to wit, in such a term in such a court, then holden at Westminster, &c., the plaintiff, by the consideration and judgment of that court, recovered against the defendant, the sum of $ which was adjudged by the said court to the plaintiff for his damages which he had sustained, as well by reason of the non-performance by the said defendant of certain promises and undertakings, made by him to the plaintiff, as for his costs and charges by him about his suit in that behalf expended;” or if the judgment were in debt, the form varies accordingly. (1 Chit. Plead. 354-5.) It is, however, necessary in debt upon a judgment in the courts of Westminster, to show'with certainty the term and parties, and the sum recovered. (1 Chit. Plead. 355.) We will now pi'o-ceed to inquire whether the declaration has set forth the judgment, so as to show with certainty, the term and parties and sum recovered. From the summons issued and returned the meaning and application of the word defendants appears; for the command to the sheriff was .to summon Jehu Clark and Thomas Clark, late trading under the name and firm of Jehu & Thomas Clark, that they be and appear, &c., to answer James C. Pritchett, surviving partner of William Pritchett, deceased, late trading under the name and firm of William & James C. Pritchett, &c. This summons being returned by the sheriff, summoned Jehu Clark and Thomas Clark. Judgment [was taken against Thomas Clark by default; Jehu Clark appeared to the summons separately and not jointly, by M. W. Bates, his attorney. This appearance constituted him legally, or according to the description in the summons, a defendant; for the appearance although for himself separately is, notwithstanding, in reference to Ihimself, an appearance to the summons in the suit as fully as if it [had been against him alone, as a member of the firm; for he has not [by any plea denied the existence of the firm, or that he was a member of it. Having thus submitted to answer according to the sum-Imons, the declaration referring to him as one of the defendants by Ihe name of the said Jehu Clark, can be understood in no other character than as described in the summons, the same Jehu Clark Ivho with Thomas Clark; the other defendant, was summoned by the ■fames and description of Jehu and Thomas Clark, late trading under ■he name and firm of Jehu & Thomas Clark. The defendant by his Ippearance in this suit, without objecting to or denying his liability §s a member of the firm summoned, has thereby admitted his being a member of the firm, and by pleading to the narr. the matter of defence relied on has, in the character of defendant, according to the summons, undertaken to defend by plea the plaintiff’s demand against the firm. As defendant therefore, in this action, he must be considered as the same Jehu Clark, according, to the description in the summons, precisely as when a writ issues against executors or administrators, the word defendant or defendants would in the narr. be understood as applied to the parties, in their respective and not their individual character; and a judgment set forth as recovered against the defendants, would be considered and held tobe a judgment against the defendants, as executors or administrators in their representative character and none other. The writ formerly was recitedin the caption of the narr., the modern practice omits the recital for brevity, but a blank being left, it has been usual to consider it the same as inserted for all the purposes of pleading. That I am correct in reference to the legal import and meaning of the word defendant, will appear by adverting to two cases in which the question was raised, and 'after argument finally determined, establishing the word as sufficiently certain and descriptive of the proper party. In 6 Taunton 121, Daoidson and three others vs. Savage, the declaration stated that James Savage was attached to answer four persons named of a plea of trespass, and that thereupon the said plaintiffs by their attorney complain, for that the said defendant; &c., and throughout the residue of the declaration the plaintiff and defendant were not other-1 wise described, than by the phrase “the said plaintiffs,” and “the said defendants:” the defendant demurred specially, and assigned amongst] other causes, that the plaintiffs had not in their declaration stated orl alledged that the said James committed the trespasses, but only than the said defendant committed the same, without, stating that the saidl James is the person therein meant by the said words “the said de-J fendant,” or in any part of the said declaration calling or in anjl manner describing the said James as being a defendant: the plaintiff joined in demurrer. I

The court intimated a decided opinion that the words “plaintiff’I and “defendant” in the record, were a sufficient description. Gibbsl C. J. said, that in a case of Heaton vs. Ashdown and others, in whic* there were twenty-six defendants, he had while at the bar, aboul twenty-seven years since, in drawing the pleadings, adopted a likfl description, naming the first defendant, and adding the words an* the said other defendants, and the propriety of it was not even thejj questioned. And Chambre, J. held, that the present description was sufficiently clear.

In Stevenson vs. Hunter (6 Taunt. 406,) the declaration stated, that William Hunter was summoned to answer John Stevenson and Elizabeth, assignees of the estate and effects of James Stevenson, a bankrupt, that he render, &c., “and therefore the said plaintiffs, by G. W., their attorney, complain, for that whereas the said defendant was indebted, &c., and the parties were called plaintiffs and defendant throughout the declaration, beginning the succeeding counts by the words — “And whereas, the said defendant,” &c. The defendant demurred, and assigned for cause, that it was alledged that “the said plaintiffs, as assignees as .aforesaid by G. W., their attorney complain,” though no persons were therein-before specified as being plaintiffs in the said suit, and that it did not appear with sufficient certainty by the declaration who were the persons suing by the aforesaid attorney; and that it was alledged in the several counts, that the causes of action accrued “to J. Stevenson before he became a bankrupt, and to the plaintiffs as assignees as foresaid,” although no persons were therein before specified as being such plaintiffs; and that it did not appear with sufficient certainty to whom the causes of action had accrued, and that the word “plaintiffs” used in the several counts of the declaration, was not a word of sufficiently certain legal import; and that it was alledged in the several counts that the “said defendant” was indebted, though no person was therein-before specified as being la defendant in the suit; and that the word defendant used in the several counts of the declaration as denoting the person who became indebted as therein mentioned, was .not a word of sufficiently certain legal import; and for that it did not appear with sufficient certainty, fthat the said William was the person who became indebted in the turns therein mentioned, nor that he was the person who committed |he breach therein complained of. Vaughan, who was to have argued in support of the demurrer, admitted that after the intimation given by the court in Davison vs. Savage, he would not main-lain it.

Gibbs, C. J.

Wc did so rule it two terms since, therefore it would lie improper to permit the point to be argued. Judgment for the Rlaintiff.

I The two preceding cases establish the words plaintiffs and defendant as of sufficient legal import to identify the parties when the name Bf each is omitted, and the latter case enlarges their operation sufficiently to embrace the representative character of the plaintiffs in the suit, who had brought their action as assignees. Hence, I conclude, that if the narr. alledge a judgment to have been recovered by the plaintiff against the defendant, it must be considered and taken to be a judgment against him in the character he sustains as defendant in the suit, and none other. In determining therefore, the question whether the judgment set forth in the declaration can be considered to be against Jehu and Thomas Clark, trading under the firm of Jehu & Thomas Clark, when the narr. alledges a judgment of the said courtre-covered against the said Jehu and Thomas Clark, the defendants, &c., omitting the word trading, &c., it appears to me only necessary to decide what is the character or interest the defendant represents in the suit pending. The language of the narr. does not leave either the character of the claim or the liability of the party equivocal, if the word defendant, according to the cases I have adverted to, be allowed its legal import or meaning. There are, however, in the case under consideration other words, which to my mind, clearly define and point out with sufficient certainty, that the judgment is for the same debt and in the same right as set forth in the writ; for, immediately after the words defendants follows “the sum of $á85 45 ‘above demanded’ ‘which in and by the said court were then and there adjudged,’ &c., ‘whereof the said defendants'were convicted.’ These words “above demanded,” confine the judgment'set forth to I the description contained in the writ, and which is considered as re-j cited in the caption of the declaration. Had the word defendants! been omitted, it might have been a question whether the allegation! that a judgment had been rendered against Jehu & Thomas Clark! would have been sufficiently certain, as it might be considered that! such a description would not confine it necessarily to the parties ini the character in which, as defendants, they had been summoned ir the suit pending. Hence I conclude from the legal import of the word defendants, that the narr. does show with certainty the parties against whom the judgment on which the action is founded was rent dered, and the term, the court and the sum recovered are distinctly and expressly stated. The matter of estoppel thus appearing on thf face of the declaration, can the defendant be allowed to plead by dej nying that he was served with process in the suit in which the judgl ment set forth in the narr. was rendered, pr that he had no notice ol said suit? If the judgment had been in the same court in which thj second suit vras brought, or had been in a court of record within thj ■same jurisdiction, It is manifest he could not; and it is equally apparent from what has been already stated, that such a plea would be ill on demurrer.

In the examination of this case, I have been considering it as if the judgment had been of the same court, or of one within the same jurisdiction. I shall now proceed to inquire, whether the same rule of pleading is applicable to such a judgment as the one on which this suit is founded. The original judgment, upon which the plaintiff in this suit has brought his action, was rendered in the District Court for the •city and county of Philadelphia, in the State of Pennsylvania, and is therefore, not a judgment of the same court nor of any court within the same jurisdiction; but on the contrary, is of a foreign court and of a different and independent jurisdiction. Supposing no constitutional provision to exist relative to judgments obtained in the different States of the United States, they would be considered like all other foreign judgments, and their effect precisely the same, which would, be nothing more than prima facie evidence, according to the rule of the common law. But the constitution of the United States declares “that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the Congress may* by general laws, prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.’’

I By the act of the 26th of May, 1790, chapter 11, Congress provided for the mode of authenticating the records and judicial proceeding of the State courts, and then further declared that “the records land judicial proceedings, authenticated as aforesaid, shall have such [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 State from whence [the said records are or shall be taken. The act declares that the record, duly authenticated, shall have such faith and credit as it has Vn the State court from whence it is taken. If in such court it has Ihe faith and credit of evidence of the highest nature, viz: record evidence, it must have the same faith and credit in every other court. Congress have, therefore, declared the effect of the record by declaring what faith and credit shall be given to it, as was remarked l>y Justice Story in Mills vs. Duryee, (7 Cranch. 484,) who further ftbserved in delivering the opinion of the court in that case, “were ■ie construction contended for by the plaintiff in error to prevail, íat judgments of the State courts ought to be considered prima facie evidence only, this clause in the constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest, however, that the constitution contemplated a power in Congress to give a conclusive effect to such judgments; and we can perceive no rational interpretation of the act of Congress, unless it declares a judgment conclusive, when a court of the particular State where it is rendered would pronounce the same decision.” In the same case, upon the rule of pleading, Justice Story remarked, “the pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it cannot be denied but by the plea of nul tiel record; and when Congress gave the effect of a record to the judgment, it gave all the collateral consequences. It may be proved in the manner prescribed by the act, and such pro of is of as high a nature as an inspection by the court of its own record, or as an exemplification would be in any other court of the same State.” In the case in (Í Peters Circuit Court Rep. 157,) the same construction has been given to the act of Congress, a case in all respects similar to the present, in which the same defence by plea was relied on, and on demurrer thereto the plea was held to be insufficient; the judgment being set forth in the declaration, on inspection of the authenticated copy of the record, Justice Washington declared, in delivering the opinion of the Circuit Court of the United States, that the plea could not be allowed, for it appeared from the declaration in that record, that the parties were attached, There have been cases decided in New York and Massachusetts, which to a certain extent conflict with the opinion of the Supreme Court of the United States, and with that of Justice Washington, as contained in 1 Peters’ Circuit Court Rep. From these State decisions it would appear, that notwithstanding the constitution and act of Congress, a defendant may by special plea contradict the record by denying that process was served upon him, or alledging matter showing that the court pronouncing judgment had no jurisdiction. ,The reason assigned for this ground of distinction between records of the same State and records of the courts of different States is, that there are certain eternal principles of justice which never ought to be dispensed with, and which courts of justice never can dispense with but when compelled by positive statute. One of these is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance, or not subjected to their jurisdiction by being found within their limits. The correctness and propriety of this general proposition cannot be questioned, and it must be admitted that the constitutional provision and the law of Congress are not repugnant to, but in strict accordance with, the principle involved in the proposition stated. The whole system is founded upon the legal presumption, that the judgment of a court of competent jurisdiction in any one of the United States, includes as well as concludes, all the necessary and essential preliminary stages of the suit, as well the notice or arrest of the party as the hearing of his defence, or what in law is equivalent, that an opportunity has been afforded of being heard before judgment; this is the only foundation on which the conclusiveness of a judgment, rendered within the same State or jurisdiction, can be sustained; and yet it never has been considered necessary that the rule of pleading should be violated, because fraud might be practised in rendering or obtaining a a judgment. Its existence or occurrence may effect a record as well as a deed or indenture, and would equally render them respectively void and inoperative. The plea of per fraudem, as I have before stated, would give the party his proper and legal defence, or by his bill in equity he could reach the conscience of the party and obtain equitable relief; without resorting to the irregular and unauthorized practice of allowing a plea contradicting the record; for although you cannot contradict, yet like any other instrument by w'hich an j estoppel works, it may be avoided by a plea which impeaches, and therefore, avoids its operation. The distinction which I have taken i between pleas which contradict a record and those which impeach] for the purpose of avoiding the operation thereof, appears to me well [ founded and in strict accordance with the established rules of pleading, and that a proper regard to the same is necessary for the pur-1 pose of giving to the constitutional provision and the act of Congress! relative to records, their legitimate and conclusive effect, and at the same time affording to the pai’ty ample remedy against every probable occurrence of fraud or circumvention. The constitution of the United States and the act of Congress passed pursuant thereto must prevail; and if, which! do not admit, injury should be likely to result by giving to the lex scripta its full and legal effect, although such a tendency might and would be a good reason for further legislation to obviate the defect, it never could sanction the correction thereof by judicial action.

Hence, and for the reasons I have stated, I consider the several pleas of the defendant, as well those which recite the original writ as those which omitting the same simply deny the service of process or appearance, as all equally an inefficient defence to the plaintiff’s declaration, and that they are respectively ill on the several demurrers thereto.

In considering the pleas demurred to I have confined the inquiry hitherto to the defendant’s right to impeach the record, although he cannot contradict it. I will now proceed to examine the question upon the ground of jurisdiction. Before entering upon this it may be proper to remark, that there is a manifest distinction between the jurisdiction of a court, and its action in the exercise of its legitimate jurisdiction, by taking cognizance of a suit. Hence it follows, that the jurisdiction of a court may be perfect and ample, having full power and authority to hear, try and determine all transitory actions, and yet, in the exercise of its unquestionable jurisdiction, it must proceed to acquire cognizance, through the instrumentality of its process. I thus notice this distinction, because I consider it material to be regarded in settling the character of the pleas demurred to in the present case; for although a court cannot by its own action or [decision, either confer upon itself, or take away jurisdiction; it must from necessity have a right to determine when its process has been served or parties have appeared, and of these acts'by which it takes cognizance of the suit and parties, its record must be the legiti-Imate and conclusive evidence. Therefore, although I cannot allow a ¡plea to be well pleaded, which contradicts the record, by denying the (service of process or the appearance of the defendant, when by the (record the contrary appears, I have no doubt of the right to plead natter which shows that the court rendering judgment has trans-;ended its jurisdiction; as if a court having jurisdiction to the amount if <$500, should render judgment for f1,000; or being a court of limited jurisdiction should attempt to exercise its functions beyond or out of its restricted sphere of action. In a suit founded on a judgment of a court thus transcending its jurisdiction, either in amount or place, the party against whom the judgment was rendered, would unquestionably have a right to plead the special matter, showing the want of jurisdiction, and that thereby the judgment was extra-judicial or coram non judice. The defence, by pleading specially the want of jurisdiction, in Lhe cases I have suggested, could not be demurred to; for it does not contradict the record, but alledges matter which makes it appear that the judgment is void, and can have no effect, either in the court in which it was rendered or elsewhere. Allowing a defendant to show by a plea that a court has exceeded its jurisdiction, is very different from authorizing him by plea to contradict a fact appearing upon the record of a court exercising its legitimate jurisdiction, within its own limits, and as in the case now under consideration, in a transitory action determining a fact, viz: the service of its own process, which, as also the appearance of the party, it possessed the undoubted authority to determine, as much as any other question involved in the suit. If the defendant in this action can, undef the idea of denying the jurisdiction, put in issue by plea the fact of service of process or his appearance, when the record establishes the facts, he may equally claim the right to deny that a declaration was filed, or to controvert any of the preliminary stages of I the suit: it does not obviate the difficulty to say that the party being a non-resident of the State, there could, therefore, be no exercise of | jurisdiction without service of process or appearance; this would be assuming a fact contrary to the record, and even supposing the fact to be so, yet the record evidence being conclusive, it would appear j impossible to admit such a plea, when no proof can be adduced in I support of it, unless it be lawful and right to allow that to be invali-1 dated by other testimony which the court rendering the judgment,! the constitution of the United States and the act of Congress of 1790, j all concur in declaring conclusive'. In this case, the judgment having been rendered by a court of competent jurisdiction, and withial its jurisdiction, the action being transitory, it must be admitted, thatl the fact of service of process, as well as that of the defendant’s ap-j pearance, being necessary to give cognizance of the suit, must, ac-T cording to the record evidence, have passed sub judice, and been! acted on by the court in the exercise of its legitimate jurisdiction; foil the facts of service of process and appearance are parts of a transacj tion, which if they did exist were essentially confined within the jurisdiction of the court rendering the judgment, no other tribunal can be competent to determine the question whether they existed or not, when the court has taken cognizance of the suit and rendered judg- ' ment. If this be not so, then it must follow, that in every case of a suit founded on a judgment of a court of competent jurisdiction over the subject matter or cause of action, the defendant may deny the service of process and appearance, for in all personal actions it is indispensable and essential to give the court cognizance of the suit and party defendant, that process should be served or an appearance had; the fact of residence or non-residence in transitory actions, cannot affect the question. But I cannot suppose it can be possible to maintain, according to any rule of good pleading, that such a plea would be sanctioned by a court in a suit founded on a judgment, appearing on its own record; if then, the authenticated copy of the record is to I have the same effect in the courts of this State, as it would have in [Pennsylvania, in the court rendering judgment, it must be conclusive.

Wales, for plaintiff.

Bates and Clayton, for defendant.

Layton, Justice, concurred with the chancellor.

Judgment for the defendant. 
      
      
         Field vs. Gibbs. — Circuit Court U. States, April Term, 1812.
      
        New Jersey, ss. Nathan Field, (who prosecutes for the use of Samuel F. Conover,) a citizen of the State of Pennsylvania, complains of Martin Gibbs and Joel Gibbs, citizens of the State of New Jersey, in the custody of the marshal of the New Jersey district, of a plea that they render unte] him two thousand seven hundred and three dollars and fifty-eight cents] which to him they owe and from him they unjustly detain. For that where] as, the said Nathan Field heretofore, to wit: in the term of September, ill the year of our Lord eighteen hundred and ten, on the third Monday of till same month of September, in the Court of Common Pleas for the county ol Philadelphia, in the commonwealth of Pennsylvania, before the honorabll Jacob Rush and his associates, judges of said court, at Philadelphia, in thl county of Philadelphia aforesaid, by the judgment of the said court recover! ed against the said Martin Gibbs and Joel Gibbs, the sum of fourteen hunl dred dollars, (part of said sum of two thousand seven hundred and thre| dollars and fifty-eight cents,) which in and by the said court,' were then and there adjudged to the said Nathan Field for his damages which he had sustained, as well by reason of the non-performance by the said Martin Gibbs and Joel Gibbs, of certain promises and assumptions then lately made by the said Martin Gibbs and .Tool Gibbs, to the said Nathan Field, as for his costs and charges, by him about his suit in that behalf expended, whereof the said Martin Gibbs and Joel Gibbs were convicted, as by the record and proceedings thereof remaining in the said Court of Common Pleas for the county of Philadelphia, in the Commonwealth of Pennsylvania, at Philadelphia aforesaid, more fully- appears; which said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated. And the .said Nathan Field hath not obtained, any execution or satisfaction of or upon the said judgment so recovered as aforesaid, whereby an action hath accrued to the said Nathan Field, to demand and have of and from the said Martin Gibbs and Joel Gibbs, the said sum of fourteen hundred dollars. And whereas, also, the said Martin Gibbs and Joel Gibbs afterwards, to wit: on the first day of October, in the year of our Lord eighteen hundred and ten, at Trenton, in the New Jersey district aforesaid, were indebted to the said Nathan Field in the sum of one thousand three- hundred and three dollars and fifty-eight cents, residue of the said sum of two thousand seven hundred and three dollars and fifty-eight cents, for goods, wares and merchandises before that time sold and delivered by the said Nathan Field, to the said Martin Gibbs and Joel Gibbs, at their special instance and request, I and to be paid by the said Martin Gibbs and Joel Gibbs to the said Nathan Fields, when they the sard Martin Gibbs and Joel Gibbs should be thereunto afterwards requested; whereby and by reason of the said last mentioned sum of money being and remaining wholly unpaid, an action hath accrued [to the said Nathan Field to demand and have of the said Martin Gibbs and I Joel Gibbs the said sum of one thousand three hundred and three dollars land fifty-eight cents, residue of the said sum of two thousand seven hun-Idred and three dollars and fifty-eight cents; yet the said Martin Gibbs and [Joel Gibbs, although often requested so to do, have not nor hath either of ■them, as yet paid the said several sums of money above demanded or any Ipart thereof to the said Nathan Field. But they to do this have hitherto wholly refused and still do refuse, to the damage of the said Nathan Field,I one thousand dollars, and therefore he brings suit, &c.
     