United States v. Shellenberger

1 Tapp. Rep. 285

Opinion

President.

This is a proceeding unknown to the common law, and wholly regulated by statute; it is also the first case I have known under this law: we have not, therefore, the advantage of experience as to its effect and operation, or the light of others to guide us in its construction. The statute directs the Sheriff, when he has a writ against several, upon some of whom it cannot be served, to make return of his service so far as it is made, and to endorse thereon “ not found ” as to the defendant or defendants who are not to be found in his county. It then authorises the plaintiff to file a declaration against the defendant, upon whom service has been made, suggesting therein the return endorsed on the writ, and to proceed to judgment, and then provides, that “ alter such judgment hath been obtained the plaintiff may, by a writ of scire facias, cause the defendant or defendants on whom such process hath not been served, to be made parties to the said judgment, un ess such defendant or defendants shew good and sufficient cause why judgment should not be entered against him, her or them; and the defendant or defendants, made parties to the judgment as aforesaid, shall be subject to the same final process, as though he, she, or they, had been duly taken with a capias, or served a summons, and had thereupon appeared and received a declaration, and made a defence or suffered a ¿efauif;» The object of this suit is to make the ¿efen(jailt a party to the judgment obtained against M. Shellenberger, a judgment the regularity of which cannot be here drawn in question; but how far it is to conclude those who were not parties to it, may be of importance to consider. The original suit was brought on a joint obligation. If M. Shellenberger appeared and made defence, a judgment could not have been obtained against him, without proof of the execution of the bond by White and A. Shellenberger ; in such case, therefore, I incline to think, that the judgment would conclude all the parties to the bond, though they were not all parties to the suit; for, whatever must necessarily have been proven to warrant the judgment is settled by the judgment; so that, in such case, non est factum would seem to be an insufficient plea. But if the party upon whom the summons was served, did not appear, but suffered judgment to be taken against him by default, as was the case here, such default, although it is an acknowledgement of the execution of the bond on his part, cannot be extended to contain an acknowledgement which he had no authority to make for others; and proof of the execution of the bond, not being necessary to the validity of a judgment against him, it cannot be concluded as made as to the others; so that a plea of non est factum might be considered as a regular mode for the defendant here to shew cause why judgment should not be entered against him; this, however, is not asked for, but leave to plead nil debit, that is to plead a plea, which, if put into the original suit, would have been bad on demurrer. Such plea to a bond admits the execution of it; and, when that is admitted, the party is estopped by his own acknowledgement to deny the debt. What would not have been a good bar to the action on the bond, cannot be a good cause why judgment should not be entered against the defendant, unless it be matter which has arisen since the judgment, and goes in discharge of it. Considering the former judgment as conclusive of whatever must have been admitted or proven to obtain it, no plea to the scire facias can be received which impeaches such conclusion ; but everything consistent with it, which may shew that the defendant ought not to be made liable, may be pleaded. The plea now offered, whether it is intended to be applied to the original cause of action, to the judgment, or to the scire facias, contains no denial of either; its operation, if pleaded to the bond, we have seen; it cannot apply to the judgment, for that is not a judgment against this defendant; and further, such plea to a domestic ment cannot be received; as a plea to the scire facias, it is altogether loose and uncertain, and subject to the same objections as if offered to the bond or the judgment; it cannot be received, therefore, as shewing any cause why the defendant should not be made a party to the judgment. Office judgment affirmed. “ Whereupon, it is considered by the court, that the said A. Shellenberger be, and he is hereby made defendant to the said judgment ; and that the said United States recover of the said A. Shellenberger their costs about their suit in this behalf expended, and that execution,” &c.