Pawling v. Willson — 13 Johns. 192

Majority

p. 192

Pawling, and Eunice, his wife, late Eunice Stanton, against Willson & Smith, executors of Bird.

Headnote

A judgment of a, .courtIn another state is to be considered as a foreign judgment, in every respect except in the mode of - it, add tic évidéncé of debt. '

Attdsuchjudgment, when founded on pró.¿éediDgs by attachment, á? gainst the goods of the defend^ ant, he not be? ing -within the jurisdiction- of such state,is not. even prima facie. evidence of a: debt. -

' A ■ divorce fof persons domiciled in this state, decreed in another.state, -is invalid heTe.

But if the parties, although domiciled here, were.married in the state dn which the divorce was decreed; whether -it might not, under those circumstances, be valid 1 Quare.

But, admitting such decree to be valid, if it made no provision with regard to the children, of the marriage,- and there was no agreement between the parlies as- to their maintenance, the mpy ther cannot,(the guardianship df the - children having,been de- ' creed to her,) it scops, support an action^gaiost the father- for their maintenance; she can, at most, sue him for contribution only-.

THIS' was añ action of debt, on a judgment recovered in the superior court of the state of Connecticut, by Eunice Stanfont before her marriage with the plaintiff, Pawling,"against the defendants,1 executors of John Bird, deceased.’ The defendants pleaded non dclinct-, accompanied with notice that they intended to insist upon, the .statute of limitations,, in.-bar of the plaintiff’s action. ■ The cause, was tried at the Albany circuit, in April, 1-815, before .Mr- J< Platt. - .

On. the trial,- the plaintiffs, produced,, in evidence-, a. record-of adjudgment. in Connecticut, duty authenticated, and.commencing’ vyith the' wrif, in which..was included the declaration, as follows : “To the; sheriff a of the county of Litchfield,. &c,/Sec. &o» ■ By .■authority of, the. state of Connecticut, you arehereby commands ed to summon .Ebenezer Will-son and Benjamin Smith, both ab- ■ sent and absconding’debtors, out of this state,, to parts unknown to-’the plaintiff, executors of the last will arid, testament oí John Bird,, esq., late .of Troy, in the county of Rensselaer,, and state .of M.ew'r¥ork, deceased,, to-appear before the. court of-common pleas,, to be holden.’at Litchfield, within, and for the county of' Litchfield, aforesaid, on the fourth Tuesday:oí September, A, D., 1807, then- and . there, to ans-wervunlo Eunice Stanton,- óf Colches** ter,- in the county of Chittenden, -arid state of Vermont, -in a plea-,’that to the plaintiff, the defendants, in said capacity, render the sum of nine hundred dollars, which, to the plaintiff, the said John, deceased, while in dife, justly owed, by book, to balance- book-accounts, as by the plaintiff’s book, ready iii court to be produced, fully- appears ;• which debt the defendants have never paid, though often requested and demanded, which is to, the damage of the plaintiff the sum.'of one thousand dollars, and for .the recovery thereof, with just costs, the plaintiff brings this suit. ' .

, ..“ Hereof fail not, and of this writ, and .of your doings thereon, make due .return according to lajv. And you are, at least fourteen days before the sitting of the said court, to leave a true-and attested, copy of this writ with Uriel Holmes, esq,, of

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said Hartland, and a like copy With Uriel Holmes, jun., esq., of said Litchfield, who are debtors to the, defendants, in their said capacity; and, also,, a like copy with Seth P, Beers, esq., of said Litchfield, who is both debtor and attorney to the defendants, in their said capacity.

“Dated at Litchfield, the 2d day of April, A. D. 1807.”

Seth P. Beers appeared for the defendants,

and pleaded, and judgment having been given in the court of common pleas of Litchfield county, for the defendants, oñ a demurrer to the plain.tiff’s declaration; and the cause being removed, by appeal, in-, to the supreme court for the county of Litchfield, and ah issue of fact being joined, a verdict Was found for the plaintiff, and judgment was thereupon rendered, that “ the plaintiff shall recover, of the goods and estate of the said John Bird, deceased, in the hands of his executors, the said sum of six hundred and seventeen dollars and twenty-one cents, damages, and her costa of Suit, taxed at thirty-five dollars and sixty-five cents, and that the execution, may issue accordingly.”

The plaintiffs proved, that, after the recovery of the above judgment, and before the commencement of the present suit, Eunice Stanton intermarried . with the plaintiff, Pawling. The plaintiffs further proved, that about two years previous to the trial, Smith, one of the defendants, conversed with the witness, jR. M. Livingston, respecting the judgments recovered by Mrs, Pawling, in Connecticut, and stated,, that since the marriage of the plaintiffs, Paroling had called on him, Smith, for payment, and that he was willing to pay, but was apprehensive that it Would not protect him in case there should be a failure of assets ; that it bad been, proposed to'arbifcrate, but he had, for the same reason, declined it j an amicable suit was proposed, as the. witness understood : the witness further testified, that Smith appeared anxious to make payment, but for the reason assigned j and that it was not pretended that any payment had been made on either of the said, judgments. Here the plaintiffs rested their cause, and the judge ruled that the evidence was sufficient to take the case out of the statute of limitations.

The defendants produced in evidence another exemplification of the record^ in the suit in Connecticut, between them and Eunice Stanton, containing, not only all that was comprised iu the copy which was given in evidence by.- the plaintiffs, but, also,, a variety of additional matter, among which was the exe-,

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cution issued -On. the judgment; to * levy the amount -thereof oil • the‘money, goods* chattels, or lands, of John. Bird, deceased? • in the hands ..of his eXeg'utors, the defendants. To this exeéütion the sheriff returned, that he, had made- demand of Uriel Holmes, for money , of goods, in his hands,'belonging to; thé cíe* fendants, executors of John. Bird* to satisfy the execution and his’fees','hut that: he refused showing any. ' And areturn.was Hiade Ofa like demand-on, and refusal by * ,Í7ri$f ffofra<A* jam, and ' . Seth - P. BeersThe record likewise comprised a'state-, ineht' Of the evidence,' being, apparently,’ a- bill .of ,exceptions taken at the trial, of the cause. The bill of exceptions set - forth, iff.the first place* an. account, to recover the amount of '■which'the action was brought, in; which the executors of John, Bird were charged with various sums- of. money for the nursing,, boarding,',‘clothing* &c.* .Of William -, and M'dria* two infant chiidren of 'the -said Jo/tn Bird, the total amount of which was six hundred And’seventeen’ dollars and twenty-one .cents.'. It .stated, in the next.place, -that it'.was:- Agreed-,(ón.'.lhé trial, that, -the said Eunice v/as married to Bird on,’ or about, the 4th of October, U 89', and •continued to-be- his lawful wife until on, or -about* the last day of May1, 1797,. The bill of-exceptions further Set forth.a-decree of the general, assembly .of the state of Connecticut, passed at a general assembly, held on-the 2d Thursday Of May, 1797;.-(This decree reciteci the petition of the- plaintiff Eunice,, iri; which a. divorce was. prayed’ for,- .on1 the ground of the ill-treatment of her by her husband, John Bird; it then recited as''follows : d That the said John hath, beén served with a copy Of said, petition, according to the custom,¡'and usage of the'said. assembly, and the, petitioner, and the respondent* having severally appeared* by their, counsel*, leaimed in’the law,. And having been*- with their proofs,, fully heard By this .assembly,, on the merits of die said petition, this assembly do find the- facts stated in said petition to be true and it being proved .to this assembly, that -the said Eunice, since the date of said petition, hath been-delivered of' á son. and daughter* which are .now. remaining ivibj said Euniceand it also being made to appear to this assembly* that-the son of the said Eunice and John,, iti said petition mentioned*’’ (born previously to the .commencement of these proceedings,) ^ hath been, since the' daté of said petition, = forcibly wrested by the said. JqJíñ from; the 'said Eunice, and ’carried- to parts unknown to said. Eunice Then followed the, tleeree, in these words : Therefore, it is resolved* by this', as

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sembly, that the said Eunice be,- and she is hereby divorced from the said John, And it is further resolved, by this assembly, that the said Eunice be, and she is hereby constituted sole guardian of. said . son and said daughter, which have been, as aforesaid, born since the date of said petition, until they shall, respectively, attain the age of twenty-one years. And it is further resolved by this assembly, that the said John Bird shall, within six months from the first day of June, in the year of our Lord one thousand seven hundred and ninety-seven, pay to the said Eunice three thousand dollars, as her part and portion of the estate of the said John, in lieu of all claims of d^er,” The bill of exceptions farther stated, that it*was agreed that Eunice accepted of the guardianship of the infants mentioned in the account, who were the same children as were mentioned in the decree, and are the children of John Bird arid Eunice; that the whole of the account accrued for supporting said children, which, it was agreed, was furnished, and without any request from- John- Bird, who never made an express promise, to pay the same, while they lived with the plaintiff. The bill of exceptions further stated a release, executed by the plaintiff to John Bird,- which, after reciting the decree of the general assembly, stated, that the said Eunice Bird, “ For the consideration of fifteen hundred dollars, secured, to her full1 satisfaction, by four promissory notes, executed and delivered to her by Doctor Seth Bird,, all bearing daté, &c., and for the following sums, &c., did, by these presents, release, and for ever discharge, the said John Bird from all claims, demands, and dues, from, or .by force of the above-recited decree.”

The defendants .gave in evidence -the exemplification of another record, which commenced with a scire facias, directed (< to the sheriffs of the respective counties of Hartford and Litchfield,” &c., and proceeded as follows: <l Whereas Eunice Stanton,. of Colchester, in the state of Vermont, brought her action to, and before, the court of common pleas, holden at Litchfield,. within and for the county of Litchfield, on the fourth Tuesday of September, in the year of our Lord one-thousand eight hundred and seven, against Ebenezer Willson and Benjamin ■Smith, both absent and absconding debtors, out of this state, to parts to the plaintiff unknown, as they were,-and are, executors of the last last will and testament of John Bird, esq., late of ■Troy, in the county of Rensselaer, in thestate ef New-York, def

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ceased, by writ, dated the second day of April, in the year of our Lord one thousand eight hundred and seven, which writ, according to the .command therein given, was duly served on tfrtel Holmes, ésq,, - of Hartland, ih said Hartford County, and On Uriel Holmes, jun., of Litchfield, ih said Litchfield county,. Svho were;, and are,-debtors, and indebted to the said Ebenezer And 'Benjamin, in their Said capacity and, also, On Seth.'B« Beers, esq,-, of said Litchfield, who then was, and still is, ■ both ..attorney and debtor to the said Ebenezer wd-Benjamm, in their said capacity, Which action, by continuance and -appeal, cáme duly to and be fere -the superior court, holden at Litchfield, within and for the county of Litchfield, on the first Tuesday of February las.t past, when and where the parties appeared; and, on trial duly had, the said Eunice did- re,coyer judgment thereon against the said Ebenéier and Benjamin,, by the consideration of Said court, for the sum of six hundred and' seventeen dollars and twenty-one cents, debt, and for the sum of thirty-five dollars and sixtydive -cents,’ costs of suit, as appears of record; which writ, the return of service thereon, and the record of said judgment of said superior court, and of the said court of common pleas, are In the words and figures following, to wit :5’ (Here the whole of the record, including the execution and return in the suit of Eunice Stanton' against .the defendants, as "before stated,are set. forth in hue v etba i the scire /acias then proceeds!:) .‘‘And the said Ebenezer. and Benjamin Were, at the said times of the said dátes'of the’said writ, and -of the said endorsements, absent and. Absconding debtors Out of this state ; and the said Uriel Holmes, esq.,, and. Uriel Holmes, jun.', esq., were jointly indebted, to the said Ebenezer and Benjamin, as executors as aforesaid, in and by a debt due to the said John, while in life, of more than ‘two thousand'dollars, which still remains unpaid; and the said judgment stiirremains in force andjunsatisfied..; The said Em- nice, therefore, says, that the -said judgment ought to-be affirmed-against the said Uriel and Uriel, pm,; and that she ought.to haye judgment, and a writ of execution, against the said Uriel' Holmes, esq., and Uriel H-olmes, jun., esq.,, for the amount of Said judgment, and the fees of service thereon,; for. the detention, thereof: These are, .therefore, by authority of the:staíe of ’Coú-,necticut, to command you to cause the said Uriel Holmes,, esq,, - 'and Uriel Holmes, jun., eSq., &c., to’know that they appear be- ■ fete the superior court, &c», to' show cause, &,c*??. The deféñd

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ants, Uriel Holmes, and Uriel Holmes, jun., appeared, by their attorney, Seth P. Beers, and pleaded,that neither they, nor either of them, were, at any of the times stated, debtors of the said Ebenezer and Benjamin, in their said capacity, in and by a debt due to the said John, while in, full life, to the amount of more than two thousand dollars, nor in any sum whatever, nor were the said Ebenezer and Benjamin,, in fact, at any of the times stated in the said writ, absent and absconding debtors out of this state, as the plaintiff, in her writ, hath alleged, as on file;’’ issue being joined on this plea, the court were of Opinion, and found, that the defendants were not “ debtors of the said Ebenezer and Benjamin, in their said capacity, in and by a debt due to the said John, while in full life, to the amount of more than two thousand dollars, nor in any sum whatever ; nor were the said Ebenezer and Benjamin, at any of the times-stated "in said Writ, absent and absconding debtors out of this state, as the plaintiff in her writ hath alleged. Whereupon it is considered and adjudged, that in this cáse the defendants shall recover their costs,” &c. /

The record of the scire facias further stated, that it Was agreed by the parties thereto, that Willson and Smith had never resided in Connecticut, but had always.resided at Troy ; that J. Bird had, for many years previous to his decease, resided at Troy, where he died; that his will had been proved in New-York, but never in Connecticut; and thát it was proved that Uriel Holmes, and Uriel Holmes, jun., were indebted to the amount of more, than two thousand dollars to Seth Bird, of whom John Bird was the residuary legatee and sole executor.

The defendants, also, gave in evidence an exemplification of an act of the state of Connecticut, enacted in May, 1726, entitled “ An act for the recovery of debts out of the estate or effects of absent or absconding, debtors and of certain acts supple? mentary thereto. The material parts of the apt of 17-26 are as follows : , " Be it enacted by the governor and council and house of representatives in general court assembled, That it shall-and may be lawful for any creditor to cause the lands, goods, or effects of his absent or absconding debtors, not residing within- this -state, to be attached, in whose soever hands: or possession the same are or may be found : And the attaching of any part thereof shall secure, and make the whole that is in such person’s hands liable, in the law, to respond the judgment to be recovered .upon

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such process) and-shall be subject to be taken in execution fer . satisfaction1 thereof, as .far,as. the value thereof willextend. ;? and the person, in whose hands any such lands, goods, or effects aré, shall, accordingly, expose, the same. •. ■ . ' ■

“ 2. That when no1 lands, goods, ór 'effects, of any absent or " absconding debtor, in the hands of his attorney,, factor,: agent, or trustee,- shall be exposed to view, or can be found or come at» so’as to be attached, it shall and' may be-lawful for .any creditor td> bring his aotiori against his .absent-of absconding debtor, for the. recovery of-his duesin whicffcasé.the creditor, by,some •proper officer, shall leave an attested copy of hi's writ, at least fourteen days before the time of trial, with such absent'of abr sconding debtor’s attorney, factor, agent, or trustee, or at-the place of his or their usual abode; which service shall be a sufficient citation fof the creditor tó bring forward his áctioñto trial, unless the debtor be an inhabitant of this state, or hath for some time dwelt therein '; in which caso a like copy shall be left by such officer at the d welling house) lodging, or place df his Iasi or usual abode. - ' . • • ■ . ' ...

That such attorney,, factor, agent,-or trustee, upon his desire, shall bp admitted.to defend his principal, in such suit, through the course of law, according to the nature of the action. But if ■the’ debtor be not in this state, and. no' attorney,, factor, agent,.-or trustée,^appear, to defend in the suit, the court shall Continue the action to the' next court,, and then, if need be, shall •continue the same once more to the next.<hurt, (that such attor, ■ñéy,;<Sz:e., may. have an opportunity;to/notify. his principal,) an,d then, without special matter alleged and allowed..in bar, or abatement, the action /shall come to trial, and judgment be :rend.eredfor the plaintiff,'.and all the goods..Of effects which are in the hands of such attorney, factor,, agent, or trustee, to the value of such judgment, ’(if so much there'-,be,) shall ;be liable, and subjected to execution gfahted.Upoh.such judgment for, or.towards, the .satisfying the same ; and; from the time of serving, the writ of summons as aforesaid, shall be liable, and be secured in ,,-law in the hands, of, and inlay not, otherwise, be disposed of. by .•s.uchattorfteyffactor, agent, Or trustee.. > ,

“ 4, And if Such attorney, factor, agent,: of trustee,. aftef the timé of his being served with.a wfit or summons, as aforesaid, • taken Out against his principal, (being .an ¿absent or absconding debtor,) shall transfer,; rej*ut>;4U|JC>se. Of), q>yvq&rker.t'.spy,ctf,tlig

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goods or effects of such debtor, in his hands,, at the time of such service, within what shall satisfy, the judgment given as aforesaid, Or that shall not discover, expose, or subject the goods or effects Of such debtors, in his hands, to -be taken in execution for and towards the satisfying the judgment so far, as what in his hands or possession' will extend* shall be liable to satisfy the same of 'his own proper goods Or estate, as much as if it were his own proper debt; and a writ of scire facias may be taken out from the clerk of the court where the judgment was given, to be served On such attorney, factor, agent, or trustee, requiring him to appear before such court, and to show Cause, if any he have, to the contrary thereof; and upon default of appearance of such attorney, factor, agent, or trustee, or refusal to disclose, upon his oath, (which oath such court'is authorized to.administer,) what goods ór effects of the debtor áre, or were, in his hands or. possession, then judgment shall he.enfered up against him of his own pi’oper goods or estate, as though it was his own debt, and execution shall, in usual form of law, be granted thereon*

“ 5. That the debts due to any such absent or absconding debtor shall be considered as his effects, in the hands of the person from whom the same are due, who shall be considered as his agent or trustee, and be obliged to account for the same under oath; and recovery may be had against him in the same manner as for goods or chattels of such absconding debtor.”

The first section of the additional act, óf October, 1807, is as fallows : “ That, whenever a scire facias shall be brought on said statute, to recover a debt due to, or the goods and effects of, an absent or absconding debtor, in case any person or persons, either jointly or severally, claim such debt, as assignee or assignees thereof, or such goods or effects, as owner or owners thereof, the defendant, in such scire facias, having notice or knowledge of such assignment, ownership,' or claim, may give notice, in writing, signed by proper authority, and duly served, to such claimant’or claimants, or his, her, .or their attorney, that such scire facias is pending, and that such claimant or claimants may, if he, she, or they, see cause, appear and defend 'against such scire facias, and thereupon, unless such cláimant or claimants shall, withiA such timé as the court, before whom the scire facias was pending, may direct, give to such defendant, sufficient security to the approbation Of such court, to indemnify him against all costs arising in such sciH facias, such defend* ant may suffer judgment by default, or otherwise,” &c.

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The defendants also gave in evidence, by consent, the. depoi sition of Séth P. Peers, who stated,, that Uriel Holmes, and Uriel Holmes, jun., on being warned on the scire jfacfcs against them, gave-notice thereof to the deponent,, who was‘.the agent of the defendants, Willson and Srnith; that the deponent, in conformity to the provisions . of the statute of October, Í807, above mentioned, one of the acts, in addition to the. act respecting absent and absconding debtors, gave security, on behalf of Willson and Smith, to Uriel Holmes, and Uriel Holmes,’jun., to indemnify them against the costs which had accrued, or might accrue, on' the writs’ of scire facias, which security they accepted ; and thereupon the deponent appeared, and was admitted, by the:GÓüi’t, -as.attorney for Willson and Smith,; to defend in .the proceedings on scire facias, in the names of Uriel Bolines, and Uriel Holmes, jun.; and that a defence Was accordingly made,’ and.judgments were'renderéd in favour of the defendants orí said writs of scire facias ; thai the defences so made, were made solely for the benefit, and in behalf of Willson and Smith¿ and that the deponent appeared as attorney, and defended, by their request.

Á vérdict ivas, then, taken for the plaintiffs, for the amount’ of the debt and costs recovered by the. judgment in Connecticut,, with interest, subject to the opinion of the court, on a ,case, containing the facts above'stated. ,,

Woodworth, for the plaintiffs.

Though the process in. the original suit, in. Connecticut, should be regarded aS a nullity, yet, us the defendants appeared and contested the, cause, through-all ' its stages, they must be concluded by the. judgment. No doubt, the statute qf limitations may: be pleaded in bar to an action'of debt on - a judgment given in another state ; but a subsequent, or admission of the debt, is sufficient to take. the case out of-.the statute.^[13]

The decision of the cause, on a motion for a new in-the supreme court of Connecticut, will be found in 3 Day's Reports, J 37. It c-aftiiot be said that the judgment was unduly or irregularly obtained. This court,’.in Taylor v. Bryden^[14] . have sajd, that a judgment in "another' state ’is presumptive evidence óf a just demand, and it is incumbent on the defendant, in aft action ofl the judgment here, to impeach its justice, by positive of its or unfairness. ’ The,ca.se of Kiíburnve Woodworth,^[11] may be cited;for the defendants, but it is. not

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point; for there the defendants never had any notice whatever of the suit, and were out of the state where the judgment was given. Here, the defendants regularly appeared and went to trial; and it is a settled principle, that a defendant cannot take advantage of . any defect or irregularity in the process,-after he has appeared and pleaded. By appearing, he admits the competency of the plaintiff,, the regularity of the process, and the jurisdiction of 'the court.^[13]

The case of the plaintiffs against the garnishees, in which ■they failed, is reported,in 4 Day's Rep. 87.

Henry, 'and Bud, contra.

In the suit against the garnishees, the supreme court of errors, in Connecticut, decided, that the process, by foreign attachment, as it is called, could not he sustained against executors or administrators, to recover a debt due from their testator or intestate. . They refused to enforce the original judgment.

1. ; We contend, that the statute of limitations is a bar in this case;^[14] and that there is not. sufficient evidence to take it out of the statute. If all the words of Smith, as stated by1 the witness, Livingston, are taken together, and fairly understood, they do not amount to an admission of the debt, but merely of the; existence ©f certain judgments in Comiecticut. A person acting in a representative capacity, does not stand in the same situation as a person acting in his own right. He has no personal interest in the question. He may be unable to decide, whether he ought to pay or not; and may very wéll say, “ I would- pay the debt, if I could do it properly and safely.”

There ought to, be evidence sufficient tb authorize a jury to infer a promise to pay.^[11] The statute of limitations is a very beneficial statute, and ought to be favoured.. Courts have, certainly, gone too far, in taking eases out of. the statute.^[12]

2, The judgments in Connecticut were • in rem. They were founded, on proceedings in the nature of a foreign attachment, authorized by certain statutes of that state, the first of which was passed in 1726. The object of. those statutes is. to enable a creditor to obtain execution against the goods or property of an absent and absconding debtor.^[8] .

It is admitted, that the domicil of the defendants has always been in this state. A person cannot be recognised as an executor, or in his representative capacity, out of the state in which

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the letters testamentary or probate are granted.^[13] They cptjld not |-,e recognised in Connecticut, as the executors of John Bird, unless' there had been a probate of the will in that state. ' They couldnot he'm'&de execulors de son tort.. The very nature of the excludes the idea of its being against the person, jt |g the property;of the debtor, in the'hands■ of the'ga?' nishee, which is the'object of the suit.' He may’appear and defend the action throughout. Such a judgment could not be enforced in Connecticut; a fortiori, it could not be enforced here. The judgment given on the scire facias against, the garnishees, shows it could not be enforced there; ’ that amounts to;.a reversal of the original judgment. We have a right to show the judgment to be irregular, or unduly obtained, op illegal and unjust, or to impeach it, for error on the face of the record.

But it is said, the appearance of the defendants hap cured all irregularities. Appearance cures matters of form only, not of substance. The want of an original writ is not. cured by an appearance. An appearance cannot alter the nature of the action or process, or convert a proceeding in-rent, into a general action in . rent el personam. It wás necessáry for the defendants to' go into Connecticut, to, protect -the goods or property, attached there, in the hands of their debtor or attorney.' The court of that state could have no jurisdiction against their persons ; and the principle of the decisión of CIi. J., Parsons, in Bissell v. Briggs,^[14] where the whole doctrine, as to the effect of judgments in other states, is considered, applies. No faith or ‘Credit is to be given to a judgment where the court had no jurisdiction. The want of jurisdiction is a radical defect, which cannot be cured by appearance, and may be taken advantage of, or given in evidence, under the general issue, in an action on the" judgment.^[11]

Again, the íudgment m Connecticut was illegal and unrust. An 'action doesnot lie to compel .a father to maintain and edit- * - 1 . ’ « ¿ate his child. The law cannot coerce a parént to do more than keep his child from becoming’a charge on-the town.^[12] The moral obligation of a father to support his children furnishes no ground for an assumpsit. The mother cannot be said to have been the agent of,the father; for she was, by the law of Connecticut, constituted the guardian'of the children,: and, had the care arid custody of them.

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The toother, morally and legally, is equally bound as the father, to take care of and maintain the1 children. She could not, therefore, maintain an action against the father. Dower is intended for the maintenance of the children as well as the wife ;^[13] and the allowance to the wife was in lieu of dower, On no principle, then, could the action have been supported .in this state.

It is questionable whether it is the policy.of the constitution of the United States, that the courts,©! one state should decide on the rights of citizens of other states. The courts of the United 'States have original jurisdiction, in all controversies between citizens of different states, when the matters, in difference exceed the value of 500 dollars.

Again, the divorce granted by the legislature of the state of Connecticut, in the case of Mrs. Bird, wás a nullity. It is admitted that her husband, John Bird, was domiciled,,and actually resided in this state, for many years previous to, and at the time of his death. Mrs. Bird Ieft.her husband; and went to reside with her parents, in Connecticut. Her-domicil still continued the same as that of her husband.^[14] Can the legislature óf another state dissolve the marriage ties 01 our citizens l As well might they pass laws to dissolve every other contract between citizens of this state. Does hot the constitution of the United Slates declare, that no state Shall pass any law impairing the obligation of contracts ? . ..

Woodworth, in reply,

insisted, that an acknowledgment of the debt, by an executor or administrator, had the same effect, to prevent the operation of the statute of limitations, as if made by the testator or intestate, . ;

The judgment, in this case, is in the usual form of a judgment" against executors, that is, to obtain satisfaction out of the goods of the testator, in the hands of his executors.

The amount of the decision Of the supreme court of Connecticut, in the suit on the scire faciasis, that they would; not aid the plaintiffs to obtain satisfaction out of the particular property in the hands of the garnishee. They do not question the regularity or justice of the original judgment.

But, he said, he relied on the case of Taylor v. Brydeh as decisive. It placed the doctrine, as to the effect of judgments of the courts of other states, On a fair and unobjectionable ground.

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Let the-defendants show;, if .they can,.that the judgment has been unduly or unfairly obtained, f ' '■

delivered the opinion of the court.; This is an action of debt, on a:. judgment-in the superior court of .the .state .OfConnecticut, in .fayóür of Eunice Stantonr(formerly: the wife-' of John,Bird,, and, now the wife of Albert. Pawling f) against' Willson and Smith, as executors of. Bird. .The plea is non detineV, with notice that the'defendants would rely oh,the statute of limitation, to bar the claim. ■ '' • ' ■

; The material facts disclosed in-the case are, that,, in thé’ yéar 1797,'and for several years prior thereto,-John Bird, arid Eunice, his wife, resided at Troy, in this state; that, in May, 1797, Mrs. Bird left her husband at Troy, went toConnecticut,. and* upon her petition to the legislature of that state, procured a statute divorce from her husband; John Bird appearing there, by ¿óunsel, and opposing the application on its merits.

The statute granting the .divorce,'constituted Mrs. Bird sole--guardian of her two infant children'; who are admitted to b& the children of John. Bird, by that marriage.

. After the divorce, Mrs. Bird resided in 'Connecticut; and, while there, expended 617 dollars and 21 cents, in nursing, schooling, and clothing those infant children. Those expenses 'were incurred during. the lifetime of John Bird, but without any request dr interference on his part; and he continued to -reside at Troy until he died: - .

In 1808, Eunice Stanton' (formerly Mrs* Bird,, and now wife * of Albert Pawling) recovered a judgment in the superior'court óf Connecticut, against Ebenézer Willson and Benjamin Smith, ■. executors of John Bird, for the expenses of nursings schooling, 'and clothing those, two infant children.- Those executors then resided, and haVe-ever since lived, at Troy,; and never Were inhabitants oí Connecticut. ‘ Letters- of administration upon 'the will óf J,ohn-Bird were granted in this state* apd not ip ConneetipuL.

The judgment ip- Connecticut .was in'. a suit against these defendants,. as executors of John Bird,at\ñ as persons “ absent p,nd absconding out óf that,state, to farts unknown,"1 under a statute of that state, entitled, “ An act. for the -recovery of debts -0pt óf fhe .estate or eífépts of ahspnt or absconding debtors,53 v.

p. 205

Thé defendants were never served with process, nor even ■notified of .the proceedings against them ; but, according to the provisions of that act, the process was served by delivering a copy to Uriel Holmes, Uriel Holmes, jun., and Seth P. Beers, respectively, then residing in Connecticut, who were averréd, in the process, to be “ debtor s'1’’ to the defendants ; and Beers is alsb styled ‘‘ attorney1'1 for the defendants.

It appears that, under authority given by that statute, Beers, one of the garnishees* appeared as attorney, and defended the suit, by pleading the general issue for these defendants; but, for aught that appears, without their consent or privity. The plaintiff, Eunice Stanton, was thereby put tb prove her demand;, and succeeded in obtaining, a Verdict and judgment for 617 dollars and 21 cents damáges, and -35 dollars and 65 cents costs, to be recovered' of the goods and estate, of the said John Bird* in the hands of his executors.5’ Execution was, accordingly, issued upon that: judgment, and the sheriff returned nulla’ bona; and1 that the garnishees refused to pay, ¡See.

A scire facias then issued against the garnishees, to show cause why they should not pay the debt and costs ;. to which they appeared and pleaded*, that they were not debtors of these defendants. Upon which fact, issue ,was joined.;. and, upon that issue, judgment was rendered in favour ' of the garnishees, .and they recovered costs. In this proceeding'by scire facias against the garnishees, it appears, that the executors of John Bird interfered so far as to employ an attorney to defend the garnishees.'

The defence set up under the statute of limitations, has been obviated by the testimony of Richard M. Livingston., We are, therefore, called upon to consider the whole grounds of this action.

1st. It is well settled, that a judgment in another state (one of the United Stales) is to be considered here as a foreign judgment, in every respect, except in the mode of proving it, which is regulated by a statuté of the United States. It is only prima facie evidence of a debt, and may be impeached, when attempted to be enforced he¡re,. as. unjust, or unfair, or irregular. Hitchcock & Fitch v. Aickin, (1 Caines,, 460.) Jackson v. Jackson, ( 1 Johns. Rep. 432 .) Taylor v. Bryden, ( 8 Johns. Rep. 173 .)

p. 206

2d. It is also well settled; that a judgment in another state, founded on proceedings By attachment, against the- goods of the. defendant,, he not being within the jurisdiction of such State, is not éven prima.facie evidence of a debt, in our Courts. lit is regarded as a proceeding in rem, merely. To consider it as a ground of action here, per se, would be contrary to the first principles of justice;. As a proceeding-in personam, the foreign court, in such case, had no jurisdiction, .. Kibbe v. Kibbe, (Kirby, 119.) Phelps v. Holker, ( 1 Dal. 261 .) Kilburn v. Woodworth, ( 5 Johns. Rep. 37 .) Bissell v. Briggs, ( 9 Mass. Rep. 462 .) Fisher v. Lane, (3 Wils. 297.) Buchannan v. Rucker, (9 East, 192.)

In this case, the defendants were domiciled at Troy, in this state, at the time of .theprbceedings against them ih Connecticut. The notice, or summons, was served on certain persons in Connecticut, whom the plaintiff chose to denominate “ debtors of the defendantsand, for aught that appears, the defendants never heard: of • those' proceedings until after the judgment against them, on which the plaintiffs now rely. It is not' true, (according to the casé,) as the counsel for the plaintiffs assumed on the argument, that the defendants-appeared and litigated the piaiiitiff’s -claim in the suit against . them, in Connecticut. The appearance was'by the garnisheés, pro for-ma, .who'were fiiithorized by the’law of that státe to enter fin fippearahce, and defend the suit for their supposed creditors;without their knowledge or consent. The record states; that ei the defendants' appeared by Seth P. Beers, their attorney,” and pleaded, &c> phut, in the absence of all other evidence on that point, this must be construed to mean, that an appearance and plea were entered by virtue of the power expressly given to' the garnishees for that purpose, by the statiite. An* “ attor ney',on whom process may be served under that statute, means a general agent, or a person employed by the defendants to conduct other suits; not an attorney previously appointed by 'the defendants to appear for them in the particular suit, .whenever it might be commenced against them. There is no evidence that the defendants ever interfered or took any notice, of those proceedings, until the scire facias against the garni* shees. . Then, and not before; it appears by the testimony of Mr. Beers, they employed an attorney, and conducted the de* fence for the garnishees.

p. 207

I ám, therefore, of opinion, that the. judgment against the defendants,, in personam,, was without jurisdiction, and, therefore, void. So that this ree.ord on which the plaintiffs rely, is not even prima facie evidence of a debt. - •

Whether, as a proceeding in rent, it was authorized by the statute of Connecticut (now before us) against executors or persons sued in autre droit, in any case, is very questionable. (M'Coombe v. Executors, of Hudson, (2 Dallas, 73.) Jackson v. Walsworth, ( 1 Johns. Cas. 372 .)

Besides, it appears that judgment was finally rendered in the superior court of Connecticut, in favour of the garnishees, on the very ground that they were not debtors, or trustees, of these defendants. ■

The' provisions of the statute of Connecticut, are analogous to the proceedings by attachment against absconding debtors, according to the custom of London: and ip the case of Masters y. Lewis, (1 Ld. Raym. 56.,) it was decided that ‘‘ garnishment can only be where the garnishee is liable to the action of the defendant.”

Can it be possible, therefore, that even in Connecticut these defendants would be held, in any respect, liable, on the ground of those judgments ? It has there been judicially determined, and the records expressly show it, that the defendants were out of the jurisdiction of that state; that the process was served on the garnishees only: and will'it be contended that those proceedings can have any validity anywhere, for any purpose; when it also appears, by these very records, that neither of the persons proceeded against, as garnishees, did, in fact, stand in the relation of “ attorney, factor, agent, or trustee” of the supposed absconding' debtors ?

Such a doctrine would be unworthy of the enlightened jurisprudence of that respectable state : and, a fortiori, it would be unjust to allow such proceedings, under a foreign jurisdiction, to form the basis of a legal claim in our own courts. .

If the defendants had actually appeared in the suit against them, as absconding debtors, it would not, in my judgment, have altered the character of that récord. Such appearance and defence must be deemed to have been made merely to protect the pledge, which was the legitimate object of that proceeding.

But, admitting the record to be valid in Connecticut, as a pro

p. 208

céeáiñg in persoham; Other important questions, have arised opon ■ the evidence- disclosed in this case. ^ .

Are we to acknowledge the validity of the divorce in Con- ■ mbticut, between John Bird an<I hi$ Wife; they being, at that time,- domiciled in this state? For, if they were not legally divorced, it follows, that the wife could riot sue her husband, nor the executors of her husband, upon any promise, express or implied, betwen the husband and wife. . - ' '

In the ease of Jackson v. Jackson, ( 1 Johns. Rep. 424 .,) a citizen of this state married a wife in this state, and after living here together about a year, the wife left her husband, went into the state of Fermoraí, and there obtained a decree of divorce, aecordirig to the law of that state, on the ground of cruel treatment, the husband continuing to reside in this state, • This court decided that the wife could not acquire a domicil distinct from that of her husband; that the proceeding, on the part of the wife, was an evasion of the law of this state, which does not allow of a divorce, except for adultery; and that no actiomco.uldbe maintained for alimony on such decree.

The rule has since been recognised in the case of Tovey v. Lindsay,^[1] (1 Dow's Rep. 117.,) in the English house of lords. In that casé the ffiarriage was contracted at Gibraltar, “ with iff the pale of the English law:’’ the. parties were, afterwards, domiciled in England; -and then Went to Scotland, arid were there divorced a vinculo. Though the {louse of lords remitted the cause foi a review on the whole matter, yét they, evidently, admit the principle, that an English marriage could not be any-where dissolved, except by an act of parliament; and Lord E'ldon observed that'it bad been so decided, lately, by the unani-. mohs opinion of the twelve judges of England;^[2] though the parties, therefore, may have been, .át the time of the divorce, in Scotland, and domiciled there bona fide, yet such a divorce would not dissolve, a contract of marriage made in England. (See, also, Harg. Co. litt. 79, b. n. 44. Hub. de conflictu legum, Opinion of Eyre, Ch. J., 2 H. Bl. 410. 3 Mass. Rep. 158 .)

But this case - is distinguishable from that of Jackson v. Jackson, ( 1 Johns. Rep. 424 .,) in one strong feature. Here the marriage (as may fairly be inferred from the evidence) was contracted in Connecticut; and both the parties, although, domiciled in this state at the time of the divorce, appealed'and litigated the question of divorce, in Connecticut. In the, cage of Jackson.

* May, 1813.

† † Lolly's case.

p. 209

v. Jackson, the parties were not only domiciled here, but the contract of marriage was made in this state.

The investigation of this cause has led me to examine thus far the question of divorce; but whether the Connecticut decree of divorce, in the case of John Bird, is obligatory here, appears to me to be a question not necessarily involved in the decision of this cause. I, therefore, forbear to express an opinion on that difficult and important point, until a case shall require our decision upon it.

But if the validity of the divorce be admitted, then, in judgment of law, the obligation to support the children of that marriage was equal upon both the parents; there being nd special com-tract between the parties, nor any provision om that subject in the statute granting the divorce. The only provision in regard to the children (and that was made upon the express application and request of Mrs. Bird) was, that the father should be devested of the custody and control of them, and that the mother should be their sole guardian.

The mother being under equal natural obligation with the father to maintain her offspring, and no positive law of Connecticut being shown on that subject, I can see no legal ground to authorize a recovery by the mother against the father, for the maintenance of the children. At most, she can have a right tq sue him for contribution only.

Upon the whole case, I am of opinion,, that the judgment is not even prima facie evidence of a debt, being without jurisdic». tion, as a proceeding in personam: and,

2dly, Admitting the jurisdiction of the superior court of Connecticut, and admitting, also, the validity of the divorce, yet the judgment in favour of the divorced wife against the executors of her former husband, for the whole maintenance of their common children, was contrary to law.

The defendants, are, therefore, entitled to judgment.

Judgment for. the, defendants,

Cases cited

Jackson ex dem. Murray v. Walsworth 1 Johns. Cas. 372 N.Y. Sup. Ct. p. 207