Wright v. Hazen

By the Court. To state tbe points involved in this case in tbe briefest manner, it appears to us, 1. Tbat tbe estoppel relied upon by tbe defendant, who was a party to the original suit, is conclusive as to him, and when replied by him separately, is available. But it can only defeat the plaintiff’s replication, and thus leave tbe defense to stand upon tbe defendants’ plea. 2. Tbe plea of this party, Iiazen, it seems to us is defective, in not containing an allegation, that tbe plaintiff here, at the time of praying out process,’in tbe original action against him, was a nonresident. Tbe common form of civil process now, being 1hat of summons or attachment of goods, &c. if one assume to justify, by virtue of special process of capias, be should, in his plea, state such facts as justify tbat form of process. 3. As to tbe justice Gordon, it seems to us the estoppel is not available as such, in his behalf. He not being a party to the former issue, would not be bound where tbe finding was against, and cannot, therefore, take advantage of a finding in bis favor, inasmuch as estoppels must be mutual, and can only operate upon the parties to tbe issue, and those who stand in privity of estate or descent. This will leave tbe case to stand, as to him, upon bis plea and tbe plaintiff’s replication, which will make it substantially bad, without regard to tbe form of pleading, as it will show tbat tbe plaintiff was a resident citizen at tbe time tbe writ issued. This will entitle the plaintiff to have judgment, in his favor, on tbe pleadings. [146] But as it is probable a repleacler may be desired, we will suggest our view of the law arising upon the other questions discussed. 1. As to the justice, it seems to us all that it is requisite for him to show is, that the original writ described the debtor as a nonresident, and he signed the writ supposing such to be the fact, having no mode of trying that question in advance. But we are aware that the decisions in New York, and probably in some of the other States, have required the justice to know the facts, limiting the extent of his jurisdiction, at his peril. But no such rule has ever been applied to courts of general jurisdiction either in Westminster Hall, or in this country, and the jurisdiction of justices of the peace has become so important and extensive, that we incline to believe sound policy requires us to extend the same rule of construction in favor of their jurisdiction, which is done in favor of courts of general jurisdiction. Any distinction, in the particulars'now before us, would be very unreasonable, not to say more. 2. In regard to the execution, prima facie,it should follow the writ. The provision in regard to executions being included under the general term writ found in the statute, is intended to enable the creditor to swear out a capias execution, if he finds himself entitled to one. And if new facts arise before the issuing of an execution, by which the debtor is entitled to have it issue against his goods and chattels only, he may pursue his right on habeas corpus and perhaps in other modes. Judgment reversed and repleader awarded o'n terms.