16 F. Cas. 625 | U.S. Circuit Court for the District of Eastern Virginia | 1823
This is an action of debt, brought by the plaintiff, as as-signee of - Walsh, on a note given by the defendants to Walsh on the 10th of October, ISIS. The defendants plead in bar, a decree made by the county court of West-moreland, sitting in chancery, in a suit brought by Thomas Rowand, a creditor of the said Walsh, against the said Walsh and the defendant John Chandler, to attach the effects of the said Walsh in the hands of the said Chandler, and subject them to the payment of the debt due from Walsh to Row- and. The record of the proceedings in that suit, forms a part of the plea, and shows that the note was assigned anterior to the answer of the defendant, and that he had notice of the assignment. The decree directs the defendant, John Chandler, to pay to Thomas Rowand, out of the note given by John Chandler & Co. to Walsh, the sum which was shown to be due from Walsh to Rowand; and the decree was enforced before the service of process in this cause.
To this plea the plaintiff has demurred, and the defendants have joined in demurrer.
It is admitted that the decree of the county court of Westmoreland is erroneous, and would, unquestionably, be reversed if carried before a superior tribunal. But this court can take no notice of its errors. While it remains in force, it binds the subject as conclusively as it would do, had it been affirmed in the highest court in the eountiy. Tim question is, can it affect the rights of the plaintiff in this cause? for if it can, it concludes them.
In support of the demurrer, it is argued, that this decree cannot be given in evidence in this cause, as the plaintiff is neither a party nor a privy, it not being alleged that the assignment, or notice of it, was subsequent to the attachment.
The rule relied on by the plaintiff is familiar to every gentleman of the profession, and has not been - controverted; but the defendant’s counsel insists that this is a case to which that rule does not apply, because it is not within the ordinary jurisdiction of a court of chancery, but a case of which that court takes cognizance, by virtue of a statute, and is, in its nature, a proceeding in rem, and not in personam. It is, he says, a sentence on the thing itself, and not a decree against the person, and that in all cases of this description, the subject matter is bound by the sentence, and the title of those who are not particularly before the court, is as entirely decided, as the title of those who are. In support of this rule, he referred to the effect of decisions in the courts of admiralty, and in the • court of exchequer, in England, which courts entertain suits in rem, to which all the world are said to be parties.
The principle on which the defendant relies, is as little to be questioned as that asserted by the plaintiff. The whole inquiry is, to which class of cases does that under consideration belong? What is the nature of a proceeding in rem? And in what does its specific difference from an ordinary action consist? Is every action in which a specific article is demanded a proceeding in rem? If it were, a writ of right which demands lands, of detinue which demands a personal chattel, would be a proceeding in rem, to which all the world would be parties, and by which the rights of all the world would be bound. But this, all know, is not the law. What, then, is the rule by which cases of this description are to be ascertained?
I have always understood that where the process is to be served on the thing itself, and where the mere possession of the thing itself, by the service of the process and making proclamation, authorizes the court to decide upon it without notice to any • individual whatever, it is a proceeding in rem, to which all the world are parties. The rule is one of convenience and of necessity. In cases to which it applies, it would often be impossible to ascertain the person whose property is proceeded against, and it is presumable that the person whose property is seized, is either himself attentive to it, or has placed it in the care of some person who has the power, and
Thus, in the ease of Scott v. Shearman, 2 W. Bl. 977, which was an action of trespass against the officer who had seized goods which were condemned in the court of exchequer, Judge Blackstone says, “the sentence of condemnation is conclusive evidence in a case in which no notice was given to the owner m person, who was not a party to the suit, because the seizure itself is notice to the owner, who is presumed to know whatever becomes of his own goods. He knew they were seized by a revenue officer. He knew they were carried to the king’s warehouse. He knew, or might have known, that by the course of law, the validity of that seizure would come .on to be examined in the court of exchequer, and could be examined nowhere else. He had notice by the two proclamations, according to the course of that court. He had notice by the writ of appraisement, which must be publicly executed on the spot where the goods were detained. And having neglected this opportunity of putting in his claim and trying -the point of forfeiture, it was his own laches, and he shall for ever be concluded by it.” But in every case where parties are necessary to give the court cognizance of the cause, the decree, the judgment, or the sentence, binds those only (with some few exceptions standing on particular principles), who are parties or privies to it. If a party is necessary, it follows that the party should be one who has the real interest; and to secure this, the interest of persons who are not parties cannot be affected. This is understood to be as true with respect to cases in the courts of admiralty and of the exchequer, as in courts of common law and chancery. If a case be cognizable in either of those courts, in consequence of the seizure which vests the possession, and of a general proclamation of that fact, every person is a party to the proceeding, and his interest is bound by the sentence; but in a case in which the law requires that parties should be brought before the court, the sentence binds those only who are parties.
If this be the rule, it remains only to examine the act of assembly which gives this remedy, in order to ascertain its character. The law enacts,
The process, then, given by the act of assembly in the particular case, is not against the thing, but the person.' It is in a suit brought against a defendant not residing in the country, and having effects within it, that this proceeding is allowed; and of course, the foreign defendant must be named in the subpoena and in the bill. ' The questions to be decided by the court in every such case are — is the foreign defendant indebted to the plaintiff, and are the. attached- effects his property? The plaintiff, must establish both of these facts, and the defendants may controvert them. It is, then, a case which, by the very words of the law, is a suit between parties by which the rights of the individuals before the court are to be examined and determined. The law substitutes publication for service of process on the absept defendant, which shall give the court jurisdiction over the cause, and enable it to make a decree for the payment of the debt, which is chargeable on his effects in the hands of the garnishee. No reason can be assigned why this decree should bind a person who is not a party nor privy to it, which does not apply to every case. No reason can be given for the rule which dees not apply to this case.
It is, we are told, excessive oppression that a court of justice should decree a man to pay a sum of money, and after enforcing its decree, compel him to pay the money a second time to another person. This is admitted; but it is also oppression to decree the money of A. to B.; every illegal and unrighteous judgment of a court is oppression. The law presumes no such judgment to be given; but if it be given, the law deems it more reasonable that the loss should fall on a person who was a party to the suit, who could assert his rights and controvert the decision, than on him who was not a party to it, and who had no opportunity of controverting it. Had Mankin been a party to the suit in Westmore-land county court, the decree would have bound him, had it been as iniquitous as it now appears to be; but not being a party, the rule of law protects him from its operation.
It has been truly said, that our law respecting foreign attachments, is founded on the same proceeding in London, which is established by custom. Some inconsiderable difference exists as to the manner of proceeding against the absent defendants, which has no bearing on the question arising in this case; as to that question, the law is the same. The case of M’Daniel v. Hughes, 3 East. 367, goes fully into the law on this subject; in that case, as in this, a decree of the court was pleaded in bar to an action brought
Upon the best examination I have been able to make of the cases which have been cited, as well as upon principle, I am perfectly satisfied, that a foreign attachment is not to be considered as a proceeding in rem, but as a suit by the plaintiff against defendants, and that a decree in such cases is within the general rule of being conclusive evidence only against parties and privies. The demurrer, therefore, is sustained.
See Rev. Code Va. 1819, c. 123, p. 474.