Robinson v. Executors of Ward — 8 Johns. 86

Majority

p. 86

Robinson against The Executors of Ward.

Headnote

Ah action cannot be maintained in this state on a judgment recovered in another state, against bail, where the proceeding was by attachment '.f good*, witnout any personal summons or actual notice to the boil, who, at the time, had removed into, and become an inhabitant of this state.There Is no dhTerence, in this respect, between a suit against bail, or •a suit against the principal.

THIS was an action of debt, on a judgment obtained in the court of common pleas of Addison county, in the state of Vermont. The declaration alleged that the plaintiff recovered judgment, in March. 1804, for 83 dollars and 47 cents, against one Miller, in a suit in which Ward was the bail of Miller; and that, afterwards, such proceedings were thereupon had, that in February term, 1808, in the same court, it was adjudged that the plaintiff should have execution against Ward, as bail of MiU ler-, for the amount of the judgment, with costs, &c.; and that the same remains unpaid, &c.

The defendant pleaded non detinet. The cause was tried at the Albany circuit, before the Chief Justice, in October, 1810.

p. 87

At the trial, the plaintiff produced a copy of the record, by which it appeared that the judgment was obtained against Miller, after a personal service of process ; and that an execution was issued against him and his property, which was returned non est; and that on the application of the plaintiff, an attachment was issued to the sheriff, commanding him to attach the property of Ward, to the amount of 130 dollars, to notify him of the same; and if no property could be found to take the body of Ward, and have him before the same court in September, 1804, to show cause why the plaintiff should not have execution against him, &c. The return of the sheriff on the attachment was as follows : “ September 12, 1804. I then served this writ, by attaching one good hay-knife, and one old iron hoe-handle, found at the house of Lemuel Burroxvs, in Bridport, in said county, which property was certified to me to belong to the within named John Ward, late of said Bridport; and at the same time left a true and attested copy of this writ, and an account of the articles attached thereon, together with this my return endorsed, at the last usual place of abode of the within named John Ward, in said Bridport.^

The plaintiff appeared at the court, and the cause xvas continued until August term, 1807; when the plaintiff again appeared, and Ward did not appear ; but it xvas shown to the court, that he had removed out of the state. The court ordered further notice to be given to Ward, by a publication of the substance of the declaration and order of the court, for three xveeks, in the gazette called the “ Middlebury Mercury.” The cause was then continued until February term, 1808, xvhen the plaintiff appeared, and proved the publication of the notice to Ward, pursuant to the order of the court; oil which Ward was called, but made default; and a judgment was entered against him for 114 dollars and 8 cents.

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After reading the copy of the proceedings in Vermont, the jury found a verdict for the plaintiff, subject to the opinion of the court on a case containing the above facts.

A motion was made to set aside the verdict, and for a new trial.

Sill, for the plaintiff.

We contend that the judgment in Vermont against Ward, was valid, and sufficient to support the action in this court, against his representatives. It cannot be pretended that to render a judgment in another state valid, it is necessary that it should be founded on the same coarse of proceedings as is required by the laws of this state. Nothing more can be requisite, than that it should appear that such proceedings were had in the foreign state, as would give the defendant such notice, as is equivalent to what is required by the law °f this state.^[2] Now, what is required by the law of this state, in proceedings to charge bail ? A ca. sa. must issue against the principal, into the county where he was arrested. If the ca. sa. is returned not found, and the proceeding is by scire facias, and if the bail have removed out of the state, a copy of the scire facias is to be left at his last usual place of abode in this state.

Now, in this case, a process issued in Vermont, comprising the substance of a capias, an execution, and a $cire facias, and a return made thereof, and a copy was left at the last usual place of abode of the bail. This is equivalent to what is required by the act of this state ; but besides this, there was a public notice for three weeks in the gazette. If the party has had the same, or as much notice as he would have had in this state, I can see no objection to giving effect to the lex loci. Again, if such proceedings were had, and such notice given, as is required by the common law, it will be deemed sufficient. In England, though no judgment can be supported against the principal, without a personal summons, yet in pro

p. 89

ceedings against bail, no such personal summons is necessary. A ca. sa. may be returned non est inventus; and after two nihils returned to the scire facias, the bail are absolutely fixed with the debt, without any at- , , ’ . tempt whatever to give them personal notice.

We are aware of the decision in Kilburn v. Woodworth,^[2] and of the cases there cited; but in all those cases, the judgments and proceedings were against principals, in which there had been no personal service ; not against bail. There is a material distinction, in this respect, between a suit against bail, and against an original debtor.

Again, it may be observed, that the amount of damages in the case was ascertained by the recovery against the principal, and the undertaking of the bail to surrender the principal, or pay those damages, is matter of record. There is not the same reason for personal notice to the bail, as there is in the case of the "principal. The bail, from the terms of the recognisance, are presumed to be in court.

H. Bleecker, contra.

This case is not distinguishable, in principle, from those already decided, in regard to actions on foreign judgments. If the defendant had no notice in the suit abroad, the judgment cannot be enforced here. This court said, in Kilburn v. Woodworth, that it was against all principle to charge a person without notice. The undertaking of the bail amounts to the same, as if he had given the plaintiff a bond of indemnity. There is the same reason that bail should have notice, as any other defendant. The proceedings against bail in Vermont are the same as in any other suit, by writ of attachment. If it was by scire facias, the defendant is entitled to personal notice, for he may have a good defence ; he may plead a release, or payment of the debt, &c.

p. 90

It appears from the case, that Ward was not an inha- . bitant of Vermont, but was domiciled in this state. He was not subject to the laws of Vermont. He ought not to be made liable, on general principles, without personal notice; and is entitled to the protection of the laws of this state. It is no answer to say, that all the proceedings were regular and valid, according to the law of the' place where the judgment was rendered; for such was the fact in all the cases in which the judgmtnts of the foreign courts were disregarded, for want of a personal notice.

Again, it is said, the law of the two states, in proceedings against bail,-are the same; so that this is not a confiiitus legum. But the case of a conflictus legum is not the only one in which the lex loci will not be enforced. It is enough that the foreign law will produce inconvenience or injury to the inhabitants of this state. It is no answer to this to say that by the common law of England, or of this state, a judgment may be obtained against bail, without any personal notice of the proceedings. That is not the ground on which the decisions on this subject rest.

The principle adopted by this court in the case of Kilburn v. Woodworth, ( 5 Johns. Rep. 41 .) must govern the present. It was there held, that we would not sustain an action here, upon a judgment in another state, where the suit was commenced by attachment, and no personal summons or actual notice given to the defendant, he not being, at the time of issuing the attachment, within the state. In the case before us, it is not positively stated that Ward, against whom the judgment was recovered in Vermont, was not at the time of issuing the attachment, a resident within the state, or within the jurisdiction of the court. It is evident, however, from the facts stated in the case, that he was not. The process was served by attaching a hay-

p. 91

knife at one Lemuel Burrows, in Bridport; and the she- . riff, in his return to the attachment, describes Ward as being late of Bridport; manifestly implying that he was not then a resident .there. At all events, there was no personal service or actual notice. And in the case of Kilburn v. Woodworth, it is said, that to bind a defendant by a judgment, when he was never personally summoned, or had not notice of the proceedings,? would be contrary to the first principles of justice. And whether the proceedings were valid, and according to the course of the court in the place where such judgment was obtained, or not, would make no difference, according to the case of Buchanan v. Rucker. (9 East, 192.) The principle on which these decisions turn, applies to the present case, notwithstanding Ward was sued as bail in Vermont. The proceedings against him there, were in the nature of a new suit; and the bail might have had a good and substantial defence to make. There is, therefore, the same reason for his having notice as in any other case. We are accordingly of opinion that the defendant is entitled to judgment.

Judgment for the defendant#