
    * Tilly Buttrick and Wife, Executors, versus William Allen.
    
      Assumpsit lies on a judgment of a foreign court; but such judgment is only primá fade evidence ; and the defendant has all the benefits he would have in an action for the original cause. — The affidavit of one who assisted the clerk of the foreign court in comparing the copy, &c., and saw him attest it, is a sufficient verification of the judgment. The defendant, where the former judgment was rendered on his default, may avoid the judgment by showing that he was not within the jurisdiction of the foreign court.
    This action was assumpsit, brought by the plaintiffs, as executors of the last will of Elizabeth Disc, upon a judgment recovered by their testatrix against the defendant in the inferior Court of Common Pleas for the county of Shelburne, in the province of Nova Scotia.
    
    A trial was had at the last April term in this county, before Sedgwick, J., upon the general issue of non assumpsit, and a verdict taken for the plaintiffs, subject to the opinion of the Court, on the following questions, viz.:—
    1. Whether the evidence in the case, and which was annexed to a certified copy of the judgment alleged to have been recovered in the province of Nova Scotia, is sufficient to prove the same.
    2. Whether such a judgment is sufficient evidence to support an action upon the implied promise, which is set forth in the count upon which the verdict is taken.
    [The evidence referred to in the first question reserved was the affidavit of one John Davis, who swore that he applied to the reputed clerk of the Common Pleas for the county of Shelburne (being the same person who attests the copy of the judgment) for a copy of the record of the judgment; that he assisted the said clerk in comparing the copy with the record, and in affixing the seal of the court to the copy, and saw the same clerk attest the copy by putting his name to it.]
    
      Dana, of counsel for the defendant,
    contended that to the verification of the copy of the record the oath of the clerk himself ought to have been produced. — He also took an exception that the judgment was rendered upon the non-appearance of the defendant, and that there was nothing in the proceedings to show that he ever had notice of the suit, except that, in the introduction to the declaration, it is recited that he “ was attached to answer,” &c.; and to this point he cited the case of Buchanan vs. Rucker. 
      
    
    
      Hoar, for the plaintiffs.
    
      
       9 East, 192.
    
   * By the Court.

The verification of the record is sufficient for the purpose for which it is produced. There is no doubt that assumpsit lies upon a foreign judgment; but the judgment is no more than prima facie evidence, and the defendant has all the benefits he would be entitled to in an action upon he original cause. It was competent to the defendant to prove in the trial of the present action that he was not within the jurisdiction of the foreign court, and its effect would be avoided. In the case cited from East’s reports, the defendant Rucker is called of the city of London, and it does not appear that he was ever in the island of Tobago, and the notice plainly shows that he was not then to be found there; but in the record before us, the defendant is named as “ late of Waltham, in the commonwealth of Massachusetts, but now of Shelburne,” &c.

Judgment on the verdict.  