Beech v. Abbott

A judgment rendered in an action, where sei vice is made by attaching the property of the defendant within the state, and no actual notice given to him, is not a void judgment ; the property gives jurisdiction to the court. in an action of debt on judgment rendered by a justice of the peace, where no notice is given previous to rendering the judgment, the defendant may examine the merits of the judgment. Quere — Whether a judgment rendered in an action, where the attachment was nominal or fraudulent, would be considered as valid. rWhere an officer has attached property, he does not lose his right thereto, when the possession is taken from him, by an inspector of the revenue, without authority. The declaration of the attaching officer, that he had relinquished his claim to an inspector of the revenue, or to the United States, is not an abandonment of the property to the debtor named in the attachment, if the inspector or the United Slates do not procure the same to be libelled and condemned.

This was an action of debt on judgment recovered before a justice of the peace, June 18, 1829. Plea, nil debit. The plaintiff offered the copy of the record of the judgment. The defendant objected, but the same was admitted by the court, to which decision the defendant excepted. It appearing by said copy, that the judgment was recovered in an action of trover for a pair of stag oxen, without personal notice, the defendant then residing in Canada — the defendant was permitted to go into the merits of said judgment. It also appeared by the copy, that there was no recognizance entered in case of review, nor had any execution been issued. The defendant introduced evidence tending to show, that the oxen, in the fall of 1828, belonged to Isaiah Abbott, in Canaan, Vt., who put them on a farm, by him owned, in Hereford, Lower Canada, upon which the defendant went to reside in the latter part of the winter or spring of 1829; and while there, the defendant, on the 4th day of April, 1829, bought the same of said Josiah; and that afterwards, the defendant being with said stags in Canaan, the plaintiff, as deputy' sheriff, attached them as aforesaid, as the property of said Josiah ; that after the same were so attached by the plaintiff, on a writ in favor of James Heath, in the month of May, 1829, Seth Cushman, an officer of the customs, seized said stags as forfeit to the United States, for having been imported into the United States without duties being paid thereon, and took them out of the plaintiff’s possession, and while the same were being driven by said Cushman’s servants to a place of keeping, the same were taken by the defendant and driven into Canaan and converted to the defendant’s use; — and testimony further tending to prove, that after the taking of said stags by the defendant, the plaintiff, on several occasions, had said, that said Cush-man had seized said stags as forfeit to the United States, and that he, the plaintiff, had relinquished all his claim on said stags to said Cushman. The plaintiff gave in evidence a copy of the record of the judgment rendered by the county court on the said attachment, in favor of said Heath aforesaid; and also evidence tending to show, that no such sale had ever been made of said stags by the said Josiah to the defendant, and that, if such sale was made, the same was made to defraud the creditors of the said Josiah ; and further proved, that said stags had never been li-belled. The defendant requested the court to charge the jury, if they believed the stags were taken by the defendant from the serv-' ants of Cushman, after he had seized the same as forfeit to the United States, the plaintiff was not entitled to recover; that if they believed that the plaintiff had said he relinquished his claim to said Cushman, the plaintiff was not entitled to recover. The court refused so to charge the jury; but did charge them that, notwithstanding the defendant took the stags from Cushman, yet if they found the same had never been libelled or condemned, the plaintiff might recover ; that an attaching officer might abandon his claim to property, by so informing the owner, or delivering up the property to him; but, as the plaintiff, in the present case, had not so done, the statements by him proved to have been made, under the "circumstances in which they were made, were not an abandonment of his claim, and would not prevent his recovery, if the jury believed from the testimony that said stags were the property of said Josiah Abbott when attached by the plaintiff, or believed that the said sale to the defendant was made and had to defraud the creditors of said Josiah. To which decision of the court, admitting said copy of the justice’s record, and refusing to charge the jury as requested by the defendant, and charging as above stated, the defendant excepted. Exceptions allowed and certified. — The defendant contends the judgment declared on is void, because there was no recogni-sance for review. The 18th section of the justice act, p. 129, .directs, that no execution shall issue, until a recognizance is entered. If so issued, the courts should declare it void, because contravening one of the first principles of justice, that no man shall be tried without notice, condemned unheard. If this is correct, a suit on the judgment before the recognizance entered, is an evasion of the provision, calculated to defraud, in collecting money without notice. It may be true, that the recognizance is, technically, no part of the judgment, but it is a prerequisite to give it validity, and to justify enforcing it. This suit is in nature of a motion to obtain execution •in a case in which it could not have legally issued, if the year had not expired. That a judgment without notice is void.— See 3 Wilson, 297. — 9 East. 192. — 15 John. R. 14. A judgment rendered in one state against a citizen of another, without personal notice, when sued in a state other than the state where rendered, is void.* — Loomis vs. Starkweather, 2 Yt. Rep. 573. — ■Bissell vs. Briggs, 9 Mass. Rep. 468.— Woodward vs. Freeman, 6 Pick. 354. — Hall and al. vs. Williams and al., 6 Pick. 240.' — Kilburn vs. Woodworth, 5 John. Rep. 37. — Robinson vs. Ward, 8 John. Rep. 86 — Fenton vs. Garlick, 8 John. Rep. 194. These decisions are founded on this great principle, that a court or state cannot hold jurisdiction over a citizen of another state, without personal notice. In Bissell vs. Briggs and Kilburn vs. Woodworth, it is decided, that even attaching defendant’s goods, without personal notice, only operates in rem, not in personam. In Fenton vs. Qarlick and Judd vs. Stevens, there was actual personal notice by copy delivered, out of th.e state, and yet it was treated as nothing and judgment declared void. So would have been a copy delivered Abbott in Canada. 2. The plaintiff has abandoned his lien. As plaintiff’s right was but a lien, it might be abandoned without consideration paid; and if the return on the execution, and the declarations made, were understandingly made, we contend it was enough for our purpose, and that the court are not bound, in this case, to regard the creditor, who has his proper remedy. 3. At the time of the conversion, Beech was not entitled to recover, the right of action, if any, being in Cushman, as officer of the customs. To maintain trover, plaintiff must, at the time of conversion, have the actual possession, or right of immediate possession. — 1 Chitty, 47, 48, 150, 166-7. — 2 Sel. 12,71. — Gordon vs. Harper, 7 T. R. 9-13. The case shews that the plaintiff had not, but Cushman had, the actual possession. The only question is, whether Beech had the right of immediate possession. It seems clear, from the facts, that Cushman then had this right, claiming adverse. It cannot be doubted, that Cushman’s right to seize was paramount to that of Beech. So decided in Dennie vs. Harris, 9 Pick. 364. It is said Beech can recover, because Cushman never libelled the stags. Beech’s right of action at the time cannot depend on the after act or omission of Cushman. The stags were first in custody of the law of the state, by the attachment. They were then in the custody of the paramount law of the United States, by the seizure, both alike mesne processes. If seizure tvas well founded, then it is well settled, that the moment the stags were driven over the line, they were forfeited to the United States, and all private title and ownership gone, 'In a suit by Cushman for this property, it would not be competent for Abbott to object that they were not libelled, when his own unlawful act prevented it. — 1. The declaration being in common form, declaring on debt of record, and nil debit being pleaded, it is too late to insist that the record is not prima facie evidence of a debt; for though the judgment be erroneous, yet debt lies until the judgment has been reversed.— 1 Chit. 107. 2. The judgment is not void nor voidable, because no re-: cognizance has been entered into before issuing execution. 1st, an execution, valid upon its face, must protect the officer, and it would not if the judgment is void, but will, if voidable. 2d. There has no execution issued in this case, and the recognizance never affects the judgment being entered, after the judgment is perfected. 3. The action of trover is proper in this case, if plaintiff had a right to the possession of the property, it was not necessary that it should have been' taken from his possession. The property was in the custody of the law, and whether for one purpose or another, in the hands of one officer or another, is immaterial in this case; for, by its not having been libelled, the gpvernment lost all lien ; and it remained for the benefit of the individual, having the right of possession, to make the legal application.