Robinson v. Executors of Ward

8 Johns. 86 | N.Y. Sup. Ct. | 1811

Per Curiam.

The principle adopted by this court in the case of Kilburn v. Woodworth, (5 Johns. Rep. 41.) must govern the present. It was there held, that we would not sustain an action here, upon a judgment in another state, where the suit was commenced by attachment, and no personal summons or actual notice given to the defendant, he not being, at the time of issuing the attachment, within the state. In the case before us, it is not positively stated that Ward, against whom the judgment was recovered in Vermont, was not at the time of issuing the attachment, a resident within the state, or within the jurisdiction of the court. It is evident, however, from the facts stated in the case, that he was not. The process was served by attaching a hay-knife at one Lemuel Burrows, in Bridport; and the she- . riff, in his return to the attachment, describes Ward as being late of Bridport; manifestly implying that he was not then a resident .there. At all events, there was no personal service or actual notice. And in the case of Kilburn v. Woodworth, it is said, that to bind a defendant by a judgment, when he was never personally summoned, or had not notice of the proceedings,? would be contrary to the first principles of justice. And whether the proceedings were valid, and according to the course of the court in the place where such judgment was obtained, or not, would make no difference, according to the case of Buchanan v. Rucker. (9 East, 192.) The principle on which these decisions turn, applies to the present case, notwithstanding Ward was sued as bail in Vermont. The proceedings against him there, were in the nature of a new suit; and the bail might have had a good and substantial defence to make. There is, therefore, the same reason for his having notice as in any other case. We are accordingly of opinion that the defendant is entitled to judgment.

Judgment for the defendant#