Stedman v. Patchin

34 Barb. 218 | N.Y. Sup. Ct. | 1861

By the Court Johnson, J.

The exception upon which a new trial was granted, when this cause was before this court, on a former occasion, in the eighth district, was fully obviated on the second trial at the circuit, by parol proof that the damages upon the trial of the action against the plaintiff on the bond, were assessed upon the bond only. This parol evidence was objected to, upon the trial, on the ground that it contradicted the record; and that objection is now insisted upon. But the parol evidence did not contradict the record. The bond was declared upon as one of the causes of action, and it is well settled that where there are several causes of action embraced in the same complaint, and the recovery appears to be general, parol evidence is competent to show upon which cause or causes of action specified the trial was had, and judgment obtained. (Gardner v. Buckbee, 3 Cowen, 120. Wood v. Jackson, 8 Wend. 9.) Such evidence does not contradict the record, unless the party is allowed to show that the judgment was upon a cause of action not specified in the complaint.

It is claimed, on the part of the defendant, that the bond in question, not being in exact conformity with the statute of Ohio, was void. The same objection was taken, and decided against the defendant, on the former appeal in this action, upon reasons which appear to me satisfactory, as they were to the court in which the case was decided. The bond, as respects its form and conditions, was good, if the proceedings under the statute were regular, and the statute itself valid.

There is no force in the objection that the bond is void, for want of authority in the master to execute it, in order to discharge the vessel from the warrant of seizure. I am inclined to the opinion that it was the duty of the master from the necessity of the case, and was within his proper power, to execute the bond in question and thus enable the vessel to proceed on its way with its passengers and freight. But whether this be so or not, the defendant sanctioned the act of giving the bond, as soon as it came to his knowledge, and proceeded to defend and contest the action in which such bond had been given. This is established by the verdict, and appears very clearly in the evidence. This approval and ratification of the execution of the bond are equivalent to an antecedent authority, if such were necessary, and completely disposes of the question of want of authority.

I do not perceive the force of the defendant’s position in his first point, that the Ohio statutes under which the vessel was seized were void as to citizens of this state. They certainly had no extra territorial force. But there were no proceedings under them out of the state of Ohio. The proceedings under those statutes were all in that state, and before its regularly constituted tribunals. If the statutes were valid as to the citizens of Ohio, they were equally valid as to all parties litigating in the courts of Ohio, in proceedings founded upon them, wherever such parties resided. (Story’s Conflict of Laws, § 541.) The plain and elementary principle that every state has exclusive jurisdiction over its own remedial laws, and may make such provision as it deems suitable, for the collection of debts by attachment, or otherwise, within its own territory, and before its own tribunals, is admitted by Mullett, J. in De Witt v. Burnett, (3 Barb. 97.)

The only question which can, as it seems to me, legitimately arise is, whether the proceedings against the vessel were valid, and the judgment under them binding as against the defendant. Of course, the statute of Ohio could not create a lien upon a vessel lying in the waters of this state, for a debt created here, while the vessel was thus situated. But 1 do not see why the state of Ohio may not by statute give the creditor residing here, when he comes into that state, a right to attach such vessel whenever it may come there, to enforce the payment of such debt. The action in such a case is not to enforce a lien existing previously, but to create one by the service of the process upon the property. For aught that appears, the procedings and seizure were regular under the statute, and I think the defendant, by appearing and defending the action, became bound by the judgment, as respects the vessel seized, which was the party to the record. He defended the action against his vessel, and was bound by the judgment of the court, that the plaintiff's claim was valid against it. Even if he was in fact a bona fide purchaser, so that the claim was not valid upon the vessel, as against him, under the statute, still the judgment would be binding as long as it remained unreversed, inasmuch as the court had jurisdiction of the subject matter and of the parties to the action. If he was bound, as I think he most clearly was, by the judgment that the plaintiff's claim in that action was valid against the vessel, the record of that judgment was conclusive against him in this action. This, I think, would follow as a necessary consequence. The plaintiff, upon that judgment, became entitled, as matter of unquestionable right, to the return of the vessel in satisfaction of the execution, or to payment of the amount of the judgment, in money, according to the condition of the bond. As the defendant did not return the vessel the bond was forfeited by him, and the plaintiff became liable to pay according to his undertaking. This liability has been enforced against him by action, and of course he must have his remedy against the defendant, to reimburse himself.

The objection taken to the record as evidence on the trial, on the ground that the certificate was signed by the deputy clerk instead of the clerk, was not well taken. The certificate of the presiding judge, that the attestation is in due form of law, is conclusive as to the authority of the deputy clerk to certify, in Ohio. (Cowen & Hill’s Notes, 1132, 1133.)

I do not see that the plaintiff was under any obligation to give the defendant notice of the action against him, upon the bond. There was no defense to the action, as we can now plainly see. But if notice was necessary, it was given, as the jury have found, and as the evidence tends to show, in time to have enabled the defendant to defend, had he seen proper to do so.

I am of the opinion, therefore, that the court properly directed the jury to find a verdict for the plaintiff, and that none of the exceptions taken to the charge, or to the refusal to charge as requested, are well taken.

[Monroe General Term, September 2, 1861.

The judgment must consequently he affirmed.

Smith, Knox and. Johnson, Justices.]