Dimick v. Brooks

The opinion of the court was delivered by Redeield, J. This is a case, which, so far as we are informed, has never occurred under the Federal Constitution. The, object of the suit is, to enforce a bond with condition for the payment of a debt by instalments. The bond was executed in the state of New Hampshire, and there sued, after the first instalment fell due, and, under a statute provision similar to the English statute and that of this state and most of the other American states, judgment was entered, in the New Hampshire court, for the penalty of the bond, being $1000, and execution awarded for the first instalment, — which has been paid. This judgment was rendered so long ago as 1818, and the present suit was brought in 1843. The declaration in the present case is in debt in two counts, — first, upon an absolute judgment for one thousand dollars, — secondly, setting forth all the facts in the case, and averring, that the other notes have become due, which, by the bond, it was the duty of the defendant to pay and indemnify the plaintiff from paying, and that they have not been paid by the defendant, whereby the plaintiff has been. — 576 — compelled to pay them. There is a multiplicity of pleading in the cage, with reference to both counts, but ending in demurrers reaching back to both counts. Two important questions arise in the present case. 1. Whether this action of debt upon judgment will lie, in the form of either count, upon any such record, as described in the second count, and which is confessedly the only record, upon which the plaintiff expects to recover 1 This, if found for the. defendant, is, of course, conclusive of the case. 2. Whether, if such declaration can be maintained upon any such state of facts, as disclosed in the case, the claim is barred by the statute of limitations ? . In regard to the first question, we have certainly felt disposed to get over it, if it could be done consistently with established forms, as courts always do merely formal exceptions. But we have encountered difficulties, which to us have seemed insurmountable. The form of the action is merely and simply debt upon judgment. And the counsel, whose advice and argument have been chiefly relied upon, we are told at the bar, and whose written argument we have read with care and interest, have placed the case, almost exclusively, upon the first count, treating the judgment for the penalty as an absolute debt. But in our apprehension, although this view of the case is the only one, which goes clear of serious technical objections, it is in no sense maintainable. It is giving a force and extension to the contract, which it was never intended to have, and which it never could have, by the lex loci. ' It is, in every sense, a misdescription of the contract. A contract with condition, or in the alternative, (with the exception of a penal bond, which rests upon peculiar grounds,) must be truly described, setting forth its conditions. If this case be treated as an absolute judgment at law, now, so might it have been six months after its rendition, and thus have compelled the defendant to go into chancery to enjoin a suit upon his contract, before it fell due, and leave him entirely remediless at law. This, if not a violation of the United States’ Constitution, by impairing the obligation of the contract, is certainly a violation of the very first principles of moral justice, by giving to the defendant’s contract-a force, and extension, which it was never intended to have, and which by the lex loci it never could have had, — 577 — and depriving him of a defence, which, by the law of the place of contract, he was entitled to insist upon in any suit upon the judgment. Much more might be said upon this point; but we deem it unnecessary. 2. Upon the point, whether this action could be sustained upon the second count, we have entertained more doubt. There seems to be a justice and propriety, that the plaintiff should have the same or an equivalent redress, upon his contract, in all the states of the Union. Art. 4, sec. 1, of the Constitution of the United States, in terms, provides, that “ Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And Congress may, by general laws, prescribe the manner, in which such acts, records and judicial proceedings shall be proved, and the effect thereof.” This Congress have done, at a very early date, 1790, and have, in express terms, provided, that such “ proceedings shall have such faith and credit given to them in every court, within the United States, as they have by law, or usage, in the courts of the state from whence the said records are or shall be. taken.” This, taken in its most unlimited sense, might require us to allow a writ of scire facias upon all judgments coming here to» be enforced from any of the other states of the Union. But even that will not require us to allow an action of debt, unless such is the effect in New Hampshire. And the contrary has been expressly decided there. In Pierce v. Read et al., 2 N. H. 363, Richardson, Ch. J., in giving judgment in the case, says, “ At the December “ Term of this court, 1814, in the case of Mary Shepard v. Edmund “ Parker, it was decided, that debt did not lie upon a judgment, “ rendered for the penalty of a bond, in pursuance of this clause of “ the statute, [having before set it forth in hcec verba.] The “ grounds of such decision were, that such a judgment was the mere “ creature of the statute, rendered, not for the purpose of being en- “ forced by execution, or an action of debt, but to stand as a secu- “ rity for any damages resulting from any future breaches of the “ condition of the bond, and to be liquidated upon a scire facias “ brought for that purpose.” In the principal case before the court it was held, that debt will not lie upon a bail bond, taken upon mesne process. The New Hampshire statute, like our own, and like the English — 578 — statute, provides, that, in all suits upon bond with penalty, the court shall enter up judgment for the penalty, and issue execution for the damages already accrued. “And the plaintiff may at any time “ afterwards ha v&from the court, where such judgment was rendered, “ a writ of scire facias against the defendant, to show cause, why “ execution should not be awarded upon said judgment for other and “ farther damages.” This judgment, for its construction, force and validity, must depend upon the law of the place of contract; and that, we have seen, is effectually settled, by the solemn determination of the court of last resort. And we find no ground to question the perfect soundness of that determination, upon general prinpiples, applicable to the subject. We entertain no doubt, such is the1 law of this state. We must, then, give this judgment an effect, which it has not in the place where rendered, and would not have, if rendered in this state, in order to sustain this action, in its present form. This would certainly not comport with the general principles of the law, applicable to the subject, and would be a needless extension of the remedy, unless it were clearly made to appear, that the party is otherwise altogether remediless. It would certainly be going quite beyond the range of the United States’ Constitution and statute, upon this subject. But upon general principles and sound analogy it seems to us, there is no good reason for allowing this action of debt upon this record. It is of the very essence of debt upon judgment, or upon any matter of record, that the obligation should result from the record itself. The record imports absolute and complete verity. It is neither to be increased, nor diminished, by any averment, out of or beyond the record. It is to the record, as the law and the testimony, upon which the pleader refers his claim. The record is formally vouched, in the conclusion of the declaration, as the basis of the claim. The defendant may crave oyer of the record and have it set forth in terms, as part of the pleading, and, if it do not sustain and fully sustain the declaration, may demur. But in the present case the plaintiff’s claim to recover of the defendant rests mainly in pais. It has to be made out by averments, in addition to the record, and of facts which have, in the very nature of the case, transpired since the former adjudication. So that the — 579 — claim, so far from being matter of record, rests mainly in pais; and if denied, instead of being determined by the court, upon inspection of the record, which is the only mode of trying matters of record, it must be determined by the jury, upon the testimony of witnesses. We believe it will be found to be an universal rule, in regard to the action of debt upon any matter of record, that the record itself must show a still subsisting obligation, perfect in its inception, and still unsatisfied. But the plaintiff’s claim seems to us, so far as the judgment for the penalty of the bond is concerned, to be precisely the same, in every other forum, as if no such judgment had ever been rendered. That adjudication seems to be a mere creature of the statute, and having no foree whatever, except in the very court where rendered. For all other purposes it is a mere nullity. It is impossible for any other tribunal, with the least show of regard to established precedent, to take up the matter at the point where the former proceeding left it, and carry it out. We might, with the same propriety, entertain a petition for a new trial, a writ of error, an audita querela, or a scire facias against bail, as to attempt to carry into effeet this merely inchoate proceeding of the New Hampshire courts. And if we were to attempt it, it would be more consistent to do it by scire facias, or petition, than by an action of debt. The judgment for the whole penalty was mere form, and may be done again and again, in every successive suit upon the bond, as new breaches accrue, and no more embarrass the plaintiff, than if the bond were a single bond of indemnity, without penalty. The penal portion of the bond is mere form, and may be omitted altogether, and so is the adjudication upon it. The judgment in the New Hampshire court was for the damages then accrued, and concluded nothing more, and merged nothing more. The bond, as to all the other obligations, beyond the courts of New Hampshire, remained the same as before. It is, at most, the mere pendency of a suit in that state, — which is not even matter of abatement to a fresh suit brought here. And it is questionable in my mind, whether the courts of one state can give effect to the judgments of the courts of another state, by enforcing any of the collateral remedies, which the prevailing party may be entitled to have in the place where the judgment was rendered. Hence, I conclude, that scire facias, or debt, upon re — 580 — cognizances of bail, or scire facias against bail on mesne process, and suits against receiptors of property, and upon replevin bonds, or against sheriffs, for neglect of duty, are confined to the local jurisdiction. This seems to be the principle of the decisión in Pickering v. Fisk, 6 Vt. 102. Prison bonds , and warrants of attorney to confess judgment would also, very likely, be limited in their operation to the jurisdiction where executed. It is clear, that scire facias must be confined to the court having the record. But it is needless farther to discuss this very obvious question. It is in vain to treat this, as in any sense a judgment, importing an obligation, upon which to found an action of debt. It is, at most, an inchoate proceeding, the mere pendency of an action. It is in no sense a more perfect judgment than a default, or judgment upon demurrer, where no damages have been assessed, and where they rest in pais, and depend upon proof, to be adduced in court. In such case, which is certainly stronger for the plaintiff than the present, it would seem absurd to claim, that a court in another state, or indeed any other court, could perfect the judgment. We might as well expect, that if a defendant leaves one state and goes into another, after the service of process upon him, the court of the latter :state will take up the proceedings at that very stage, and perfect the judgment. The judgment upon these pleadings must be for defendant. Leave was granted to amend, upon terms of paying all costs to the time of amendment and taking no costs before that time.