23 Wend. 336 | N.Y. Sup. Ct. | 1840
By the Court, The attachment in this particular case of a nonresident defendant is given by the 33d section of the non-imprisonment act. Statutes of 1831, p. 403. The same act, so far as is material here, is incorporated *in 2 R. S. 2d ed. p. 193, et seq. See es- [ *337 ] pecially p. 201 and 202. Section 33 is, that “ whenever by the provision of the 30th section of this act, no warrant can issue, and the de
For this view of the case, I am myself in a considerable degree responsible. In Ackerman v. Finch, I said “ the true meaning of the section (33) is, that the defendant shall be proceeded against primarily by short summons, or secondly, by attachment, provided a proper case for this shall exist ; and in order to entitle the party to the extraordinary process, no doubt he must give proof and security, whether the defendant be resident or nonresident.” This remark was made while looking through the different provisions of the non-imprisonment act, and other statutes, in order-to ascertain the extent of the right, which the party had derived to a short summons from the same section (33.) The sole point was this right to a short summons, in a case where both plaintiff and defendant were non-residents of the county in which the summons issued. The remark was no more than argument from analogy, which I confess I ought net to have used without its appearing to me, as it certainly did at the time, both well founded in fact, and in some measure pertinent to the main question. The court, however, are not responsible beyond the point actually involved. At the previous July term, before I came to the bench, it had been directly decided in Clark v. Luce, 15 Wend. 479, that the distinction between other summonses and attachments, Avhich requires for the latter a preliminary oath and bond, was repealed by the non-imprisonment act, in respect to the summons and attachment of the 33d section. In other words, the plaintiff may, in all cases where the defendant resides out of the county in which the process is taken, proceed of course either by summons or attachment; that the statutes, so
[ *340 ] *That being so, on the principles mentioned by the late Chief Justice Savage, who, in Clark v. Luce delivered the opinion of the court, it follows that no bond is necessary. It is said he admits arguendo, that “ a bond is required in the cases [of attachment] provided for in this act.” [non-imprisonment act.] That is true. A bond is required by § 35, in cases under that act; and the same section requires the oath of the party, not only in cases provided for by that act, but in cases under the former statute. The chief justice did not say in all cases utider the act. Such a broad remark would have been incompatible with the very point of the decision.
Clark v. Luce was not before me, nor had it been published when we decided Ackerman v. Finch. I had never heard of the decision; and although the argument which supposed the former case to have been wrongly decided, was mentioned to my brethren as a support of our common conclusion in the latter case, I am not surprised, considering the nature of the question and the intensity and diversity of their avocations, that they should not at the moment have recollected, and connected my line of argument. The chief justice, retired from the bench soon after having, at the previous term, delivered the opinion, and whatever degree of attention the other judges might severally have bestowed while the case was under advisement, it is hardly possible that it should have been distinctly recalled to their view by an abstract dictum in another cause.
As to a review of that case, then, we have only to add that, with whatever qualifications the statute may heretofore have been understood, the question is undoubtedly one of construction upon the words of an act which, when taken generally, sustain the decision which has been made upon them. There is nothing in the act which expressly or by necessary implication qualifies them ; and even if the balance of our minds should now be the other way, we cannot, without departing from the maxim stare decisis, et nou quieta movers, indulge the inclination. The decisions of this court, while unreversed, always formed the absolute law of the case, and en- [ *341 ] tered with very decisive effect into the body *of precedents. They must, from the nature of our legal system, be the same to the science of law, as a convincing series of experiments is to any other branch of inductive philosophy. They are, on being promulgated, immediately relied upon according to their character, either as confirming an old or forming a new principle of action, which perhaps is at once applied to thousands of cases. These are continually multiplying throughout the whole extent of our jurisdiction. Numerous and valuable rights, offensive and de
Independent of this statute, Sir. William, Jones has written an excellent commentary on the maxim stare decisis, fecf, by way of reply to a remark of Powell, J. who said, “ nothing is law that is not reason.” This is a maxim, says Jones, “ in theo'ry excellent, but in practice dangerous, as many rules, true in the abstract, are false in the concrete ; for, since the reason of Titius may, and frequently does, differ from the reasons, of Septimius, no man who is not a lawyer, would ever know how to act, and no man who is a lawyer, would, in many instances, know how to advise, unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate. Jones on Bailm. 60, Am. ed. 1804. The court almost always, in deciding any question, create a moral power above itself; and now when the decision construes a statute, it is legally bound for certain purposes, to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case. And I take it this would be of such a constructive decision, even were we to overrule it as erroneous, by a subsequent one.
In disposing of the case before us, therefore I have contented *myself with inquiring whether it was either directly passed upon [ *342 ] by Clark v. Luce, or necessarily controlled by the principle established in that case. We all think it is so controlled. The result is, that neither an affidavit nor bond was necessary ; and the pleas making out a case in other respects authorizing the attachment, there must be judgment for the defendants on both demurrers.