William Betts v. George Death

FAYETTE COUNTY. March Term, 1795. William Betts v. George Death. The parties went down the Ohio river, to the Cumberland river and the Southern-Territory, on a joint trading adventure, with whisky, flour, cider, &c. Disputes arising between them, there was a reference to arbitrators, and an award in favour of Death and a suit before a justice, and judgment for 20l. proc. money, in favour of Death. They quarrelled; Death beat Betts, and, to avoid an arrest in that territory, hastily left it. After his departure, Betts, who was to remain and settle in the territory, brought a foreign attachment on his claim in their traffick, and, having prosecuted it to judgment, in the court of Davidson county, brought an action here of indebitatus assumsit on that judgment, for 15l. 13s. 1 1d. money of that territory, equal to 15l.13s.11d. money of this state. A copy of the record was offered, containing a proceeding in a foreign attachment, in the court of Davidson county, at the town of Nashville, in the Southern Territory, reciting a capias ad respondendum, a return non est inventus, a foreign attachment, and summons to garnishees, their appearance, and confession of property, one of ten shillings, and one of a dollar; judgment, that a plea of the defendant, entered by his attorney, was in error and void, because not having replevied, he could not plead to issue; then proclamation for the defendant to come in and replevy; and, he not appearing, a judgment by default, a writ of enquiry, and damages found 10l. 1s. 3d. and costs 5l. 12s. 8d. 1 St. L. 60. Phelps v. Holker, Dall. 261, M Clennacban v. M'Carty. Dall. 375. Young, for the defendant, objected to this. A judgment on a foreign attachment is no proper evidence, as a foreign judgment. It is merely a proceeding in rem. The appearance of an attorney is without the knowledge of Death, and is void by the opinion of the court in which he appears. [MAJORITY — President.] President. A judgment in a foreign attachment is not conclusive, but may be examined into. It is proper evidence in this case. The record was then read. President. A judgment in an action to which the defendant has appeared in a court of competent jurisdiction, is, with an exception of a foreign court, conclusive on the parties to it. A judgment in a foreign court is, prima facie, evidence, but may be disproved. Perhaps the judgment of a court of another state ought not to be considered as a foreign judgment. An attachment is in rem, not in personam. So far as the property attached, it is conclusive, under the precautions and provisions of the act of assembly; beyond the property attached, the judgment may be questioned. So far, it corresponds with the views of justice and of the act of the assembly. Beyond that, making it conclusive would be contradictory to the rights of natural justice, which require that no man shall be condemned unheard, or be affected by a judgment, to which he was not a party, and had no opportunity of answering. You will consider whether the evidence given invalidates the recovery of the sum found by the jury of inquiry on the foreign attachment, and the costs, which are both included in the judgment stated in this declaration. Verdict for the plaintiff 14l, 14s. 7d. damages. Young, for the defendant, moved to set this verdict aside, on the ground, that the proceedings on a foreign attachment, in the Southern Territory, ought not to have been received in evidence of a debt; and on an affidavit, that in common dealings and public proceedings in that territory, when any sum of money was mentioned, proc. money is meant, and that was rated at two for one. The verdict was set aside on the last point. And, at September term, 1795, this cause was tried again; when, the evidence of the reference and hearing both parties on it, and of the award, appearing more strongly for the defendant, the jury found a verdict for him.