The opinion of the court was delivered by
Hall, J.
A second argument having been directed in this case, it has perhaps assumed an importance in the eyes of counsel, which its intrinsic difficulties may not seem to warrant; but which may, nevertheless, justify a more extended opinion, than would otherwise have been deemed necessary.
The question raised by the pleadings is, what is to be the effect of the proceedings in the King’s Bench in Canada upon one not personally amenable to its tribunal, — when those proceedings are used here, in another and foreign jurisdiction! It is insisted, in behalf of the defendant, that the record pleaded, in connection with the custom and law of Canada set forth in the plea, is to be considered as conclusive evidence, that the matter now in controversy between the plaintiff and defendant has been adjudicated by a competent tribunal, and that therefore the plea is a good bar to the action. This renders it necessary to inquire into the nature of those proceedings, in reference to their sufficiency to constitute a record estoppel.
j Judgments, in regard to their conclusive effects as estoppels, are [73]*73of two classes; — judgments in personam and judgments in rem. The judgment pleaded in this case cannot be supported as a judgment in personam, because the court rendering it had no jurisdiction of the ^ person of the plaintiff, he being a citizen of another government and having no notice of the suit. As a proceeding against his person, the judgment was coram, nonjudice, a mere nullity. This is too plain to need argument, and is, indeed, conceded by the counsel for the defendant, who insist, that it is an estoppel as a proceeding in rem, — • that although not binding on the person, it is binding on the property in controversy and concludes its title. A judgment in rem I understand to be an adjudication, pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as substance, be- * tween the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. A judgment in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject matter itself, whose state, or condition, is to be determined. It is a proceeding to determine the state, or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. /
The probate of a will I conceive to be a familiar instance of a ^ proceeding in rem in this state. The proceeding is, in form and substance, upon the will itself. No process is issued against any one ; but all persons interested in determining the state, or condition, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is, or is not, the will of the testator. It determines the status of the subject matter of the proceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world, (at least so far as the property of the testator within this state is concerned,) just what the judgment declares it to be. This is one instance of a proceeding v upon a written instrument, to determine its state, or condition; and [74]*74that determination, in its consequences, involves and incidentally determines the rights of individuals to property affected by it.
But proceedings in rem may be and often are upon personal chattels, directly declaring the right to them. In such cases the proceeding is for the supposed violation by the property, so to speak, of r/ some public or municipal law, or regulation, by which it is alleged the title of the former owner has become divested. The property being seized, a proceeding is then instituted against it, upon an allegation stating the cause for which it has become forfeited; upon which public notice is given, in some prescribed form, to all persons to appear and contest the allegation. It is by no means certain, that all persons having an interest in the property have actual notice of the proceeding ; but if the thing itself, upon which the proceeding is had, be within the jurisdiction of the court, all persons interested are held to have constructive notice ; and the sentence, or decree, of the court, declaring the state, or condition, of the property, is held to be conclusive upon all the world. A sale of the property, under such sentence, passes the right absolutely; and farther, in the case of judgments of courts of admiralty, they are also held to be conclusive evidence of the facts stated in the decree to have been found by the court, as the basis of the decree. And perhaps the judgments of municipal courts, acting in rem, within the sphere of their jurisdiction, would have the same effect,
v/ These proceedings, that have been mentioned, are purely in rem. But, besides these, there is another class of cases, which may perhaps be considered, to some extent, proceedings in rem, though in form they are proceedings inter partes. An attachment of property in this state, where the court has jurisdiction of the property, but not of the person of the defendant, and a sale of it (or a levy upon it, if it be real estate,) on execution, is in the nature of a proceeding in rem. The judgment, if the defendant have no notice, would be treated asa nullity out of our jurisdiction, so far as the person of ; the defendant was concerned; though it would be held binding, as ■ between the parties, so far as regarded the property, as a proceeding in rem. The defendant would not, I apprehend, be allowed to recover back his property in another jurisdiction. The status of the property, as between the’ plaintiff and defendant, would be held to have heen determined by the proceeding. But the proceeding [75]*75would not in any way affect the status of the property as to any other persons, than the parties to the record and those claiming by them.
Our proceeding of foreign attachment partakes, perhaps still more, of the nature of a proceeding in rem; but its operation as such is also of a limited character. The suit is inter partes, and, as a proceeding in rem, it must be confined to such parties. A process is issued in favor of a plaintiff, declaring against his debtor residing in another government, and alleging, also, that another person here, named in the process and styled a trustee, has goods in his hands belonging to the plaintiff’s debtor, or is indebted to him, and praying that the goods or debt found here may be declared forfeited to the plaintiff, or, in other words, that the property here may be applied in payment of the plaintiff’s demand. I conceive the court here has jurisdiction of the property in the hands of the trustee, or the debt due from him, — it being found in our jurisdiction, — and that the court may proceed upon it in rem.
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The opinion of the court was delivered by
Hall, J.
A second argument having been directed in this case, it has perhaps assumed an importance in the eyes of counsel, which its intrinsic difficulties may not seem to warrant; but which may, nevertheless, justify a more extended opinion, than would otherwise have been deemed necessary.
The question raised by the pleadings is, what is to be the effect of the proceedings in the King’s Bench in Canada upon one not personally amenable to its tribunal, — when those proceedings are used here, in another and foreign jurisdiction! It is insisted, in behalf of the defendant, that the record pleaded, in connection with the custom and law of Canada set forth in the plea, is to be considered as conclusive evidence, that the matter now in controversy between the plaintiff and defendant has been adjudicated by a competent tribunal, and that therefore the plea is a good bar to the action. This renders it necessary to inquire into the nature of those proceedings, in reference to their sufficiency to constitute a record estoppel.
j Judgments, in regard to their conclusive effects as estoppels, are [73]*73of two classes; — judgments in personam and judgments in rem. The judgment pleaded in this case cannot be supported as a judgment in personam, because the court rendering it had no jurisdiction of the ^ person of the plaintiff, he being a citizen of another government and having no notice of the suit. As a proceeding against his person, the judgment was coram, nonjudice, a mere nullity. This is too plain to need argument, and is, indeed, conceded by the counsel for the defendant, who insist, that it is an estoppel as a proceeding in rem, — • that although not binding on the person, it is binding on the property in controversy and concludes its title. A judgment in rem I understand to be an adjudication, pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as substance, be- * tween the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. A judgment in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject matter itself, whose state, or condition, is to be determined. It is a proceeding to determine the state, or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. /
The probate of a will I conceive to be a familiar instance of a ^ proceeding in rem in this state. The proceeding is, in form and substance, upon the will itself. No process is issued against any one ; but all persons interested in determining the state, or condition, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is, or is not, the will of the testator. It determines the status of the subject matter of the proceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world, (at least so far as the property of the testator within this state is concerned,) just what the judgment declares it to be. This is one instance of a proceeding v upon a written instrument, to determine its state, or condition; and [74]*74that determination, in its consequences, involves and incidentally determines the rights of individuals to property affected by it.
But proceedings in rem may be and often are upon personal chattels, directly declaring the right to them. In such cases the proceeding is for the supposed violation by the property, so to speak, of r/ some public or municipal law, or regulation, by which it is alleged the title of the former owner has become divested. The property being seized, a proceeding is then instituted against it, upon an allegation stating the cause for which it has become forfeited; upon which public notice is given, in some prescribed form, to all persons to appear and contest the allegation. It is by no means certain, that all persons having an interest in the property have actual notice of the proceeding ; but if the thing itself, upon which the proceeding is had, be within the jurisdiction of the court, all persons interested are held to have constructive notice ; and the sentence, or decree, of the court, declaring the state, or condition, of the property, is held to be conclusive upon all the world. A sale of the property, under such sentence, passes the right absolutely; and farther, in the case of judgments of courts of admiralty, they are also held to be conclusive evidence of the facts stated in the decree to have been found by the court, as the basis of the decree. And perhaps the judgments of municipal courts, acting in rem, within the sphere of their jurisdiction, would have the same effect,
v/ These proceedings, that have been mentioned, are purely in rem. But, besides these, there is another class of cases, which may perhaps be considered, to some extent, proceedings in rem, though in form they are proceedings inter partes. An attachment of property in this state, where the court has jurisdiction of the property, but not of the person of the defendant, and a sale of it (or a levy upon it, if it be real estate,) on execution, is in the nature of a proceeding in rem. The judgment, if the defendant have no notice, would be treated asa nullity out of our jurisdiction, so far as the person of ; the defendant was concerned; though it would be held binding, as ■ between the parties, so far as regarded the property, as a proceeding in rem. The defendant would not, I apprehend, be allowed to recover back his property in another jurisdiction. The status of the property, as between the’ plaintiff and defendant, would be held to have heen determined by the proceeding. But the proceeding [75]*75would not in any way affect the status of the property as to any other persons, than the parties to the record and those claiming by them.
Our proceeding of foreign attachment partakes, perhaps still more, of the nature of a proceeding in rem; but its operation as such is also of a limited character. The suit is inter partes, and, as a proceeding in rem, it must be confined to such parties. A process is issued in favor of a plaintiff, declaring against his debtor residing in another government, and alleging, also, that another person here, named in the process and styled a trustee, has goods in his hands belonging to the plaintiff’s debtor, or is indebted to him, and praying that the goods or debt found here may be declared forfeited to the plaintiff, or, in other words, that the property here may be applied in payment of the plaintiff’s demand. I conceive the court here has jurisdiction of the property in the hands of the trustee, or the debt due from him, — it being found in our jurisdiction, — and that the court may proceed upon it in rem. After publication, by which the debtor is constructively notified of the proceeding against his property, the court adjudicates upon the property and declares that it shall be delivered, or paid, to the plaintiff, to be applied upon his debt. I think such adjudication changes the status of the property, or debt, and deprives the principal debtor of all title to it; that such adjudication should be held binding and conclusive upon all the parties to the proceeding; that the foreign creditor of the trustee, having placed his property, or his credit, within this jurisdiction, should be bound by its forfeiture, declared by our'"courts; and that he should be barred, in any other jurisdiction, from prosecuting his claim against the trustee. But the operation of this proceeding in rem must be limited to the parties to it, and cannot in any manner ^ affect the right or interest of any other person, having an independent and adverse claim to the goods, or debt, which was the subject matter of the suit. The court does not pretend to notify such adverse claimant, either constructively, or otherwise; nor does the proceeding profess to determine the rights of any other persons, than those who are parties of record to it; and it can, consequently, affect the rights of no other persons.
The distinction between proceedings purely in rem and those of a limited character, which have been mentioned, I think is strongly ^ [76]*76and plainly marked. The object and purpose of a proceeding purely in rem is to ascertain the right of every possible claimant; and ^ it is instituted on an allegation, that the title of the former owner, whorever he may be, has become divested; and notice of the proceeding is given to the whole world to appear and make claim to it. From the nature of the case the notice is constructive, only, as to the greater part of the world; but it is such as the law presumes will be most likely to reach the persons interested, and such as does, in point of fact, generally reach them. In the case of a seizure for the violation of our revenue laws, the substance of the libel, which states the grounds on which the forfeiture is claimed, with the order of the court thereon, specifying the time and place of trial, is to be published in a newspaper, and posted up a certain number of days; and proclamation is also made in court for all persons interested to appear and contest the forfeiture. And in every court and in all countries, whose judgments are respected, notice of some kind is given. It is, indeed, as I apprehend, just as essential to the validity of a judgment in rem, that constructive notice, at least, should appear to have been given, as that actual notice should appear upon the record of a judgment in personam. A proceeding professing to determine the right of property, where no notice, actual, or constructive, is given, whatever else it might be called, would not be entitled to be dignified J with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded any where as the judgment of a court. Bradstreet v. Neptune Ins. Co., 3 Sumn. 607.
J The limited proceedings in rem, before mentioned, are not based on any allegation, that the right of property is to be determined between any other persons than the parties to the suit; no notice is ■^sought to be given to any other persons; and the judgment being > only as to the status of the property as between the parties of record, it is, as to all other persons, a mere nullity.
If we apply these principles to the record pleaded in bar in this ■J case, I think it will be impossible to maintain, that, as to the plaintiff Woodruff, it was a proceeding in rem. There was no allegation, that the status of the property, levied upon as the property of Phelps Smith, or the avails of it, when paid into court, was to be adjudicated as to him, and there was no notice, actual, or constructive, to him, to appear and make any claim to it. The judgment [77]*77was rendered in a suit inter partes, in which Taylor was plaintiff and Phelps Smith defendant; and though it bound the property as between them, it could affect the rights of no other person. It is precisely the case of the levy of an execution, in this state, upon personal property, as that of the judgment debtor, of which property some third person claims to be the owner. If such third person were to bring trespass against the judgment creditor for making the levy, I do not perceive why such creditor, with the same propriety as the defendant in this case, might not plead his levy and sale in bar as a proceeding in rent. The record in this case, indeed, shows, that the levy was made in the presence of a Recors, which a levy in this state would not; but I apprehend the high standing or official character of the witnesses to a trespass would not purge its illegality, or bar a right of recovery.
But the record of the judgment in the King's Bench wholly fails to show, that the right of the plaintiff in this suit to the property y was attempted to be adjudicated; and there is no averment in the plea, that it was adjudicated. The plea states, in substance, that, by the law of Canada, it would have been adjudicated, if the plaintiff had appeared in the court and made claim to the property. And by the facts set forth in the plea we are given clearly to understand, that it was not adjudicated, because the plaintiff did not so make his claim. It would therefore be impossible to maintain this plea, as furnishing evidence that the matter in controversy isVes adjudi-cata, even if the plaintiff had had notice of thé proceeding. If the plea could, under such circumstances, be sustained, even in the courts of Canada, it would not be because the matter had been adjudicated, but because the plaintiff, having neglected to have his claim adjudicated at the time and in the manner pointed out by the laws of that province, was thereby barred of any other remedy. The plea does not aver, that the property of the plaintiff, being found in the possession of Phelps Smith, in Canada, might for that reason, or for any other reason, be legally levied upon and sold as the property of Smith. It in effect admits, that the original levy upon the plaintiff’s property was wrongful, but proceeds upon the ground, that, by reason of the subsequent proceedings, the wrong cannot now be redressed. The original right of action of the plaintiff is conceded, but it is insisted, that, by something arising ex post facto, his reme[78]*78dy is gone. It is not a bar to the right that is relied upon, but a bar to the redress. This ground of defence would therefore seem to rest upon a local law of the province of Canada, which affects the plaintiff’s remedy only, but which, by the well settled doctrine of the common law, can be of no avail, when a remedy is sought in another jurisdiction.
But it is unnecessary to consider farther, what might have been the effect of the defendant’s plea, if the plaintiff, at the time, had been a resident of Canada; because it seems quite clear, that it can have no effect whatever upon the cause of action of one who was, during the whole proceeding, a resident citizen of another government, not subject to the law of the province, and who had no notice of the proceeding. Story’s Confl. of Laws 487.
The result is, that the judgment of the county court is reversed, the replication is held sufficient, and the case is remanded to the county court for the trial of the issue of fact.