
    Augustus Moore and another v. Alexander Adie’s Administrator.
    An action of debt may be sustained in the courts of this state, upon a decree rendered by a court of chancery in Kentucky.
    This is a writ of error to the Supreme Court for Hamilton county.
    Alexander Adie, in his lifetime, commenced an action of ■ debt against the plaintiffs in error, in the superior court of Cincinnati.
    The declaration alleges that Adie, on the 12th day of December, 1842, filed his bill in chancery in “ the Louisville chancery court,” against said Moore and Green and one Benj. E. Clark, to which they filed their answers; that such proceedings were thereupon had, that afterwards, to wit, on the 3d day of December, 1844, at Louisville, in the State of Kentucky, it was amongst other things decreed and ordered by, the said “ Louisville chancery court,” that the said Moore and Green •should pay to the said Adie $1190, and also his costs expended in the prosecution of the suit, which are $12.85, making together $1202.85, the debt demanded, as by the record thereof; in said court, appears. By reason whereof an action hath accrued, etc.
    The plea is “ null tiel record.”
    At the June term, 1847, of said superior court, the plaintiff recovered judgment against the defendants for twelve hundred and two dollars and eighty-five cents debt, and one hundred and eighty dollars and forty-two cents damages, with costs of suit.
    On the trial the defendants excepted to the opinion of the court overruling their objection to the introduction of the record in the chancery suit in Kentucky.
    At the May term, 1848, of the supreme court for Hamilton county, the judgment of the superior court of Cincinnati was affirmed.
    The case is removed here by a writ of error, and the following assignment shows the nature of the questions presented for consideration:
    First. That the decree of the Louisville chancery court, adduced in evidence, was rendered without jurisdiction, is entirely void, and no part thereof can be enforced against the defendants thereto in any other court.
    Second. That the testimony below was insufficient, in law, to warrant the judgment of the said superior court.
    
      Greorge E. Pugh, for plaintiff in error.
    
      The decree will not support an action at law.
    
    The supreme court of the United States decided long since, in unqualified terms, that no action could be brought at law upon a chancellor’s decree. That decision continues to be the law of that forum. Hugh v. Higgs, 1 Wheat. 697. The supreme court of New Jersey, in Van Buskirk v. Muloch, 3 Harr. 184, made the same decision.
    
      Eichelberger v. Innyser, 8 Watts Rep. 181, the supreme court of Pennsylvania decided that an action at law would not lie upon the decree of a probate court settling the balance due by a guardian to his ward’s estate.
    I do not think it necessary to claim the full extent of these authorities. I merely suggest that as long as we have in our books of chancery, pleadings and practice, specific directions bow to frame a bill to enforce a decree previously rendered, and as long as the distinction between equity and law continues to prevail, it would be well not to encourage actions upon decrees.
    The reason why debt will lie upon the judgment of a court of law is well explained by Blackstone, and does not apply to decrees:
    “ And thus it is, that every person is bound and hath virtually agreed to pay such particular sums of money as are charged on bim by the sentence, or assessed by the interpretation, of the law. For it is a part of the original contract, entered into by all mankind, who partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge. And this implied agreement it is that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to. recover such damages, or sum of money, as are assessed by the jury, and adjudged by the court, to be due from the defendant to the plaintiff in any former action. So that, if be hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may after-wards bring an action of debt upon this judgment, and shall mot be put upon the proof of the original cause of action; but upon showing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies that, by the original contract of society, the defendant hath contracted a debt and Is bound to pay it.” 8 Bla. Com. 160.
    That these principles do not apply to decrees in equity,, and actions founded thereon, will appear from the fact that courts of equity are not technically courts of record, and that they do not proceed according to the course of the common law.
    The case of Carpenter v. Thornton, 3 B. & Ald. 52, is a. leading and decisive authority. The plaintiff’s testator had filed a bill for specific performance against the defendant, and. had obtained thereon a decree for the purchase money and interest. Eor this sum, so absolutely assessed and fixed, the-plaintiff, as executor, brought an action of debt.
    Abbott, C. J. “ It has been suggested that there is, in this case, an implied contract, on the part of the defendant, to pay this money to the plaintiff, and therefore that a court of law ought to entertain this suit; but, under the special circumstances pf this case, I am at a loss to find anything like an implied contract. If this were merely a bill filed for an account, and, upon the balance, a precise sum was found to be due, which might originally have formed the subject of an action at law, a court of law might, perhaps, in that case, lend its aid to enforce such á decree. * * * * It appears to me that the whole of this demand for the balance of interest and costs: arises out of this decree of the court of equity, and that it had no foundation prior to that decree. Now I cannot say that a. man, compelled by a court of equity, against his will, to pay a sum of money, impliedly agrees to pay the money. There certainly is not any express contract.”
    Bayley, J. “ The foundation of the suit in equity, in this-case, seems to have been an equitable obligation on the part of the defendant, to pay the money. This suit, if it can be-maintained at all, must be founded on a legal obligation to pay. The decree in equity merely ascertains that the defendant is-under an equitable obligation to pay — it does not go further and show that there is any legal obligation. * * * * It seems to me that, in this case, the decree, founded only upon an equitable obligation, does not furnish any foundation for an action at, law.”
    Holroyd, J. “ I am of opinion that this action, is not main-tamable. The decree does not affect to decide what was actu ally due, in point of law;, on the balance of an account, but it merely directs what is to be paid on an equitable consideration. It is said, however, that the law will, in such a case, imply a promise to pay. In the case of judgments of inferior courts, and courts not of record, where the law implies a promise to pay, it is to pay a legal debt. Wherever, there is a debt at law, the court will presume that the party promises to do that which the law requires. When the debt is founded upon equitable considerations alone, it may be enforced by the authority of the court which ordered it to be paid. The law, in such a case, does not imply a promise. There is no instance of an action brought on a rule of court for payment of money. The mode of enforcing such an order is by attachment for contempt in not obeying the order of the court. * * * * Admitting, however, that an action might be maintained on a rule of court, made with the consent of the parties, it by no means follows that an action will lie upon a rule of court, obtained in invitum. Such an order does not constitute a legal debt, which alone the law will imply a promise to pay. This decree ■of the court of equity does not, therefore, constitute such a debt. It must, therefore, be enforced by the court which made it, and is'not the subject of an action at law.”
    Mr. Justice Best fully concurred, and judgment was given for the defendant.
    In Emerson v.. Lashley, (2 H. Bla. 248,) it was decided that no action would lie upon an order of court, pendente lite, for the judgment of costs, even though the court which made the order had no power of attachment to enforce it.
    
      Fay v. Malcolm, (4 Taunt. 705,) was a case similar to the one last cited.
    Mansfield, C. J. “I never heard of such an action,and the temptation to it arises every day.”
    Heath, J. “ Such an attempt deserves no favor.”
    Chambre, J. “ It is a most mischievous proceeding.”
    Gibhs, J. “ I think it clear the action will not lie.”
    
      In that case, however, it is but fair to say, the plaintiff had saused the defendant to be arrested.
    
      Smith v. Whalley, (2 Bos. & P. 482,) was an action upon an agreement between two parties in chancery, which had been made a rule • of court. The judges, stopping counsel, said : “ That, though the general rule was clear that the mere order of another court was not a good ground of action, yet, that in the present instance, the defendants had, by the terms of their agreement, raised a sufficient ground of assumpsit against themselves.”
    
      Thrall v. Waller, (13 Verm. Rep. 231,) it was decided that an action would lie upon a decree adjusting the accounts of partners.
    Without further argument or citations, I assume Mr. Justice Bayley’s doctrine. Where the decree is a mere adjustment of ■.egal demands, (as upon bills for an account and the like,) an action of debt may be sustained; but where the decree is for the payment of money upon equitable considerations, (arising out of the performance and rescisión of contracts and the like,) no action at law can be brought. The remedy is by bill to enforce the decree.
    
      Henry Starr, for defendant.
    The statement in the assignment of errors, that the decree cannot be enforced except in the court which rendered it, is designed, I suppose, to bring up the question, whether an action of debt can be maintained on a decree in chancery to pay a sum of money. Whatever may have been once thought or said of this question, I take it to be now well settled that it can, where no act is decreed to be done but to pay money.'
    I can imagine no substantial objection to it. In Ohio, such a decree has “ the same force, operation and effect as a judg ment at law.” Swan’s Stat. 708, sec. 37.
    Whatever may be the remedy on this decree in Kentucky, I suggest whether the remedy in Ohio is not to be governed by the lex fori. Story on Oonf. of Laws, sec. 556.
    But it is very apparent that an action of debt could be sus tained upon it in Kentucky, even if it had been rendered in Ohio, and if sustainable in Kentucky, certainly in Ohio. The case of Williams v. Preston, (3 J. J. Marsh. Rep. 600,) was debt on a decree rendered in Virginia.
    The Chief Justice, in remarking on the question, whether an action of debt is maintainable on a decree in chancery, says : “ There has been a time when the common law judge would not have sustained an action of debt on a decree — it is not so now. A judgment is but record evidence of a debt. A decree is also record evidence of the existence of a debt, and an action of debt may be maintained as well on the one as on the other; because each is equally the evidence of a debt, and, therefore, upon principle, should be equally the foundation of the same action.”
    A decree is equal to a judgment at law. 3 Swanston 576.
    In Alabama it has been decided that an action of debt is maintainable, on a decree in chancery, in another state, for the payment of money. 2 Stew. & Porter’s Rep. 441; 3 Caine’s Rep. 22; 3 Eairf. 94.
    Considering the question as settled upon principle, notwithstanding the case in 2 Blackford 31, I have no more to say. There can be no doubt, as I conceive, of the conclusiveness of the decree as to Moore & Green; they appeared and answered. 3 Desau’s 206; 4 Wash. C. C. Rep. 597; 6 Ohio Rep. 528; 8 Do. 241; 4 John. Chy. 737; 7 Do. 286.
   Spalding, J.

The action is that of debt upon a record. The plea says there is no such record. The record is offered in evidence, and objections are raised to its validity, which we will proceed to consider.

It is claimed that the court in Kentucky had no jurisdiction; and, consequently, that the decree is void and cannot be en forced.

The bill filed in the Louisville court makes a clear cáse for the interposition of a court of chancery, if jurisdiction be conceded. It seeks to rescind a contract for the purchase of land, entered into by the complainant with the defendants Moore & Green, and to recover back the money paid, and enjoin ■Clark from collecting certain notes assigned to him by Moore & Green, for the reason that, the vendors are unable to make to the purchaser a title to the land.

The court decreed a rescisión of the contract between Adie, Moore & Green; and that Moore & Green pay Adie back $1190; and enjoined Clark from collecting the notes assigned' to him, which formed a part of those given for the land.

The land lay in Indiana, and Moore & Green, it is said, were citizens of Cincinnati.

It may be that at the time the suit was instituted in the Louisville court, the defendants Moore & Green, could have interposed a plea to the jurisdiction, which would have been •available; but they saw fit to waive any objections of that sort, .and did, in fact, file their joint answer to the bill. They chose to contest the case upon its merits, and by voluntarily making themselves parties, are bound by the decree, until it be reviewed and reversed, or impeached for fraud.

There is another objection taken to the record, which we regard as rather specious than solid, and it is this:

The court decreed that the defendants should pay the costs of suit, without specifying the amount in the decree. The true sum appears, however, from the clerk’s certificate, and we are disposed to recognize that as sufficient.

The real defendants who caused the litigation, were Moore & Green, who sold the land and failed to make title. The ■defendant Clark was made so barely for the purpose of enjoining him from collecting the notes, which he held by the assign ment of Moore & Green, against the complainant. He ought not to pay costs, -and it is not reasonable to suppose that the ■court so intended.

We now approach the real question in the case, and feel dis posed to treat it with respect, inasmuch as it has called forth conflicting opinions from eminent jurists, both in England and the United States.

Can an action of debt be maintained on a decree in chancery, for the payment of money ?

Formerly the current of authorities in England was opposed to the doctrine. And this opposition, it is said, sprung from the jealousy with which the common law judges regarded the innovations of the chancellor upon their practice and jurisdiction.

We are not, however, without adjudged cases in favor of the proposition, even in England. In Sadler v. Robbins, (1 Camp. 253,) which was an action on a decree of the high court of chancery, in the island of Jamaica, Lord EUenborough said: “ Had the decree been perfected, I would have given effect to it as well as to a judgment at common law.”

It appeared that the decree had not been made up so that it could be ascertained how much was actually due.

In Henly v. Soper, (8 Barn. & Cresw. 16,) which was debt on a decree in a colonial court, Lord Tenterden,' C. J., said : “ There is a great difference between the decree of a colonial court, and a court of equity in this country. The colonial court cannot enforce its decrees here — a court of equity in this country may; and, therefore, in the latter case there is no occasion for the interference of a court of law — in the former, there is, to prevent a failure of justice. In the case of Sadler v. Robbins, the sum due on the decree was left indefinite, but Lord EUenborough said, that had the decree been perfected, he “ would have given effect to it as well as to a judgment at common law.”

Holroyd, J., said: “ But for the case before Lord EUenborough, I should have entertained some doubts upon the present question. That, however, is an authority in favor of an action upon the decree of a foreign court of equity, if duly perfected.” The other judges of the king’s bench concurred, and the action was sustained.

In Post and La Rue v. Neafie, 3 Caine’s 22, the supreme court of New York decided, after full consideration, that debt will lie on a decree of a court of chancery in a sister state, if it be simply for the payment of a sum of money by the defendant, without any acts to be done by the plaintiff.

The same principle-is recognized in Dubois v. Dubois, 6 Cowen 494.

The supreme court of Pennsylvania has decided that an action at law is maintainable, in that state, on a decree of a court of equity in Tennessee, for the payment of money. Evans v. Tatem, 9 Serg. & Rawle 252. Chief Justice Tilghman, in the conclusion of his opinion, says: “ In Pennsylvania, the courts should be extremely cautious in establishing the principle that an action will not lie for a sum of money decreed to be paid by courts of equity in other states. Yery urgent cases may arise, where crying injustice would be done, if relief were denied.”

Howard v. Howard, 15 Mass. 196, was a debt on a decree of divorce ordering the defendant to pay alimony. On demurrer to the declaration, the defendant contended that debt would not lie, there being no judgment according to the course of the common law. The court say, “ There seems to be no reason why debt should not lie. The debt is certain, and it is proved by record ; and the decree is, in effect, as much a judgment as if rendered on the common law side of the court.”

In McKein v. Odorn, 3 Fairfield 94, the supreme court of Maine decide that “ an action of debt will lie as well on a decree, of a court of chancery, in another state, for the payment of money only, as on a judgment of a court whose proceedings are according to the course of common law.”

But we- have an authority in point directly from the state where the decree we are considering was rendered; and we should be wanting in courtesy, to say nothing of our duty, if we refused the same aid to carry into effect a decree of the chancery court in Kentucky which the courts of that state were accustomed to extend to us and others of her sister states.

In Williams v. Preston, 3 J. J. Marshall’s Rep., the court of Appeals in Kentucky determined that an action of debt would lie on a decree made by the chancery court in Virginia; and Chief Justice Robertson, in delivering the opinion of the court, says with great good sense, “ Although there may have been a time when the common law judge would not have sustained an action of debt on a decree, it is not so now. A judgment is but record evidence of a debt. A decree is also record evidence of the existence of a debt. And an action of debt may be main tained as well on the one as on the other, because each is equal ly the evidence of a debt, and therefore, upon principle, should be equally the foundation of the same action.”

By force of statutory regulations in Ohio, “ a decree of either of our courts, sitting in chancery, is to have the force, operation and effect of a judgment at law.” Swan’s Stat. 708.

If the lex fori, is to govern the case we are considering, there will be no room for doubt. But we are disposed to meet the broad question and to settle it upon principle.

We feel the weight of the authorities cited on the negative of the question by the learned counsel for defendant, especially those of 2 Blackford and 8 Wheaton, hut we are unanimously of opinion that sound policy as well as safe precedent calls upon us to recognize as a rule of practice in Ohio, that an action ■of debt may be sustained in our courts upon a decree for the payment of money rendered in a court of chancery in a sister estate. And unless the contrary be made to appear, we will presume that every such decree is regarded in the state where it may have been rendered as having the force and effect of a judgment at law.

The judgment of the supreme court for Hamilton county is affirmed.  