Mitchell v. Osgood

Mellen C. J. In October 1817, judgment was recovered against the defendants for the whole penalty of the bond, which they and Osgood had signed as the sureties of McMillan. Allen, a creditor of McMillan, had execution for a part of said penalty. Afterwards Palmer, having obtained a judgment against McMillan's executors, sued a scire facias against the defendants to obtain satisfaction of his judgment also out of said penalty; and in March — 129 — 1824 obtained judgment and had execution in the name of Sargent, treasurer; a part of this sum was paid on the execution, and the present action of debt is brought in the name of the present treasurer to obtain payment of the residue. In all the actions before named the defendants appeared and defended ; the last scire facias was served on the defendants in Oxford county in this State. First it is said this action should have been commenced in the county of Oxford, where the defendants reside.; and that as this irregularity appears on the record, the court must take notice of it without a plea in abatement. The validity of the objection depends on the construction to be given to the 9th and 35th sections of the statute of 1821 ch. 59. By the 9th sect, when the plaintiff and defendant both live within this state, all personal or transitory actions shall be brought in the county where one of the parties lives ; otherwise, the writ shall abate. The 35th sect, provides that an action of debt may be brought on a judgment rendered by a court of record in any other of the United States, in any court of record of this state, holdcn for the county in which either of the parties to such judgment shall dwell or reside. So also the 34th section provides that an action of debt may be brought on a judgment of a court of record of this state in the county where either of the parties to such judgment shall dwell and reside at the time of bringing the action, or in the same court where it was rendered ; the language is the same in both sections as to the locality of the action in respect to the parties. We do not perceive any direct repugnance of either of these sections to the 9th section, which should require of us to give them a different construction upon the point in question, where no perceptible reason can be assigned for the distinction. To make such a distinction between transitory actions only serves to impair the symmetry of our system of law on the subject; and in a case, too, where the Legislature may fairly be considered not to have intended any such distinction. It seems more to comport with their design to construe the several provisions before mentioned as affecting the character of all transitory actions in the same manner and to the same extent as to the particular under consideration. This construction renders it unnecessary for us to — 130 — decide whether a plea of abatement was necessary ; or, if so, whether the advantages of such a plea are waived by such a statement of facts as that before us. The second objection is that the judgment on the last scire facias, recovered in 1824 against the defendants, is not binding h’ere, inasmuch as the court in Massachusetts had no jurisdiction over the defendants, living at the time in this state; that though process was served on them in the county of Oxford, and they in person or by attorney attended the court in Massachusetts,still that such attendance gave the court no jurisdiction, as they had none at the time the suit was commenced; and the case of Bissell v. Briggs 9 Mass. 462, is cited as establishing these principles. Waiving for the present, all further inquiry as to the correctness of this argument, it may be of importance to examine the subject in another point of view. By the 6th section of the act of Massachusetts of March l, 1799, in an action on a bond with penalty, judgment, when rendered for the plaintiff is to be rendered for the whole penalty ; and such judgment is to stand as a security for further damages to which the plaintiff may be entitled ; which further damages are to be ascertained on a writ of scire facias on said judgment, from the court where the Same was obtained ; such is the law applicable to all bonds. The act of Massachusetts of March 13, 1806, regulates the proceedings to be had upon sheriff’s bonds for the use of any person or persons who are or may be entitled to the benefit of the same ; but it does not alter the nature of the judgment to be entered in a suit on such bond ; but prescribes the sum for which a creditor shall have execution, after the amount of his claim against a sheriff, his executors or administrators, has been legally ascertained. Thus the law stood at the time “an act relating to the separation of the District, “ of Maine from Massachusetts Proper and forming the same “ into a separate and independent State” was passed, on the 19th. of- June 1819. Several of the provisions of this act are incorporated as a part of our constitution; among which is the -following. “ And the rights and liabilities of all persons shall “ after the said separation, contiune the same, as if the said Dis- “ trict was still a part of this Commonwealth, in all suits pending, — 131 — “ or judgments remaining unsatisfied on the fifteenth day of March “next, where the suits have been commenced in Massachusetts “ Proper and process has been served within the District of “ Maine : or commenced in the district of Maine and process has “been served in Massachusetts Proper, either by taking bail, “ making attachments, arresting and detaining persons, or other- “ wise, where execution remains to be done ; and in such suits, “ the courts within Massachusetts Proper, and within the pro- “ posed state, shall continue to have the same jurisdiction, as if “ the said district still remained a part of the Commonwealth.” We are bound to presume that those who drew and arranged the provisions of this interesting act, and the Legislature that enacted it, Wtell knew and duly considered the provisions and principles of the acts of 1799 and 1806 above mentioned; that they well knew and duly considered the manner in which any creditor who had suffered by the misdoings of a sheriff or his deputies, could legally avail himself of the benefit and security of the official bond of such sheriff; and that they did not intend to render those provisions less effectual and certain, contained in those two acts. Indeed, the division of a stale is of such rare occurrence ; and the partition of a general jurisdiction of so much importance to those whose interests are involved in such partition, ive apprehend that a liberal construction ought to be given to those provisions, professedly introduced for their protection. The judgment for the penally of the bond in question was rendered in 1816, years before the act of separation was passed; — a portion of that penalty had on scire facias been appropriated to the use of •filien ; the residue remained liable to satisfy the legally ascertained claims of other suffering creditors to be appropriated to their use upon scire facias, as provided by the act of 1799. At the time Maine was separated from Massachusetts, the judgment for the penalty of the bond, rendered in 1816, remained unsatisfied for five sixths of its amount, and the only mode of satisfaction pointed out by the act of 1799 was by the process of scire facias, which in such a case as this must be brought in the name of the State Treasurer, though for the use of a creditor. Now it is well settled that, a scire facias can issue only from the court having cus — 132 — tody of the record; under the supposed authority of the above quoted provision in the act of separation, the scire facias, on which the judgment declared on was rendered, was served on the defendants in this state, by leaving a copy with them ; they understood the law in the same manner as the plaintiff’s counsel then did, and, without any coercive process, attended at the court in Massachusetts and defended the action. On this ground, without touching the question as to the validity and effect of judgments rendered in other states, in ordinary circumstances, our opinion is that the judgment rendered on the scire facias in Middlesex, October term, 1824, is to be considered by us as conclusive as it would have been, if Maine had still continued a part of Massachusetts. In support of this construction it may be observed, that the mode by which a creditor is to avail himself of the security of a sheriff’s bond is peculiar, depending wholly on the statutory provisions above recited — that manifest inconveniencies would attend any other construction. The judgment for the penalty of the sheriff’s bond having been rendered in the Supreme Judicial Court of Massachusetts,that court only, before which the record remains, can know when the amount of that judgment shall have been exhausted by successive appropriations on scire facias at the instance and for the benefit of suffering creditors who had substantiated their claims against the sheriff. In addition to all this, we would observe that these successive writs of scire facias incase of sheriff’s official bonds are not original writs; but processes employed to obtain satisfaction of the judgment for the penalty ; they are, to all pecuniary purposes, to be considered as a continuation of the original action, necessary to enable all concerned for obtaining the fruits and benefits of that judgment which was rendered -before, and was remaining unsatisfied, at the time the act of separation was enacted. In support of this principle may be cited the case of Dearborn v. Dearborn 15 Mass. 316, in which the court decided that a writ of scire facias against bajl, was not to be considered as a new action ; but a regular step in thé collection of the original demand. In fact, unless the plaintiff can avail himself of this mode of proceeding, he is utterly without remedy. This objection, therefore, must not be permitted to prevail. — 133 — The remaining objection is that this action cannot be maintained, because the claim of Palmer was never laid before the commissioners on the estate of McMillan the late sheriff; and in support of the objection the defendants rely on the proviso in the first section of the before mentioned statute of 1808, which is in these words: “ Provided however, that no such suit shall be “ instituted by any person for his own use, until such person shall “ have recovered judgment against the sheriff, his executors or “ administrators, in an action brought for the malfeasance or tc misfeasance of the sheriff or his deputy, or for nonpayment of <! any monies collected by the sheriff or his deputy, in that ea- “ pacity ; or a decree of a judge of probate allowing a claim for ic any of the causes aforesaid.” — The defendants also rely on the case of Todd v. Bradford, Adm’x. 17 Mass. 567. Upon examination of that case it is found to differ essentially from this.— There the estate of the intestate was insolvent when the action was commenced ; and that fact was pleaded in bar, and admitted by the demurrer. The court thereupon decided that the plaintiff had not maintained his suit, as he had not filed his claim before the commissioners, and therefore could proceed no further, though his object was merely to obtain a judgment as the basis of a claim against the sureties of the intestate. The facts in the case before us are far different from these. At December term 1818, at the C. C. Court of Common Pleas in Mid-dlesex, Palmer recovered judgment against the estate of McMillan in the hands of the executors of his will, for $156,58, damages and costs ; the executors not pleading the insolvency of the éstate, or disclosing any fact on the record, intimating that such insolvency existed; and it further appears that in the action of scire facias, instituted in January 1822, and on which judgment was rendered in March 1824, no defence grounded on the insolvency of McMillan’s estate, was then made ; nor any intimation to the court that such a fact existed or had been represented to the Judge of Probate; but the defendants suffered judgment to be rendered in common form against them, and execution to issue for the sum of $236,24. Now, it is a general rule and well settled principle, that upon a scire facias, or in an action of debt upon — 134 — judgment, no defence can be admitted which existed prior to the judgment; as was decided in Thacher & al. v. Gammon 12 Mass. 268. The case of Sturgis v. Reed ad’r 2 Greenl. 109, seems directly in point; and the judgment, therefore, of Palmer, against the representatives of McMillan, is not affected by the insolvency of his estate. The claim has been ascertained by judgment of law ; and that is sufficient, according to the terms of the proviso in the act of 1806 ; no other ascertainment is necessary. The present action is therefore sustainable, by means of which to recover of the defendants a portion of the penalty for which judgment has been rendered, equal to the amount of the balance now due, of the sum for which execution was ordered in March 1824, for the use of Palmer. The result of this investigation is that the action is maintainable, and the defendants, according to the agreement, of the parties, must be defaulted.