
    Mitchell, treasurer, &c. vs. Osgood & als.
    An action of debt on a foreign judgment, -where the plaintiff is not a citizen of this State, may be brought in any county in the State.
    A judgment rendered in Massachusetts against a citizen of Maine, before the separation, may be revived in the same court by sci. fa. though the defendant is not resident in that Commonwealth ; the jurisdiction of both courts as to processes brought to execute such judgments, remaining unaffected by the separation, by Stat. 1819, eh. 161, sec. 1, art. 8, adopted into the constitution of Maine, art. 10, see. 5.
    
    And such judgment will be received by the Courts in this State as conclusive evidence of debt.
    This was an action of debt on ajudgment rendered by the Supreme Judicial Court of Massachusetts, in the county of Middle-sex, at March term 1824, upon a scire facias brought by the Treasurer of State, to have execution for the benefit of one Palmer, of a judgment rendered prior to the separation of Maine, for the penalty of the bond of office given by the late sheriff M’Millan, 
      of the county of Oxford. The defendants, with one James Osgood, deceased, were the sureties of the sheriif, and inhabitants of the county of Oxford.
    
    In a case stated for the judgment of the court, the principal facts were these. The bond was giren Feb. 17, 1812, to the then treasurer of Massachusetts, in the penalty of thirty thousand dollars, with the usual condition for a faithful discharge of the office of sheriff. In October 1816, one Shobal C. Allen recovered a judgment against the sheriff for nonfeasance in his office. In February 1817, the sheriff died, insolvent; a commission of insolvency was duly issued in April following, the proceedings under which were regular; and a dividend of his estate was finally decreed in March 1823, after a settlement of the fifth and last administration account. Allen’s judgment not being satisfied, an action of debt upon the sheriff’s bond was duly brought in Sept. 1817, against the defendants, by the then Treasurer of State, and judgment rendered in his favor for the penalty, at October term 1817, of the Supreme Judicial Court, and execution awarded for the use of Allen, for the amount of his debt and costs, being $633,85.
    Another suit was commenced in June 1816, against the sheriff for his official nonfeasance, by one David Palmer, in which judgment was recovered at the Court of Common Pleas in Middlesex, at December term 1818, against the executors of the sheriff, who had died pending the action. This judgment not being paid, a writ of scire facias for the benefit of Palmer, was sued out in May 1822, by Mr. Sargent, then treasurer of State, upon the judgment previously rendered for the penalty of the bond. This writ was returnable to the Supreme Judicial Court in the county of Mid-dlesex ; and after several continuances judgment was rendered at March term 1824, for the present plaintiff, as successor in office to Mr. Sargent, that he have execution for the use of Palmer, for the amount of his debt and costs, being $205,90. The execution upon this last judgment being but partially satisfied by one of the bondsmen, the present action was brought upon the same judgment fo recover the residue.
    
      In all these suits the defendants appeared and answered. The claim of Palmer was never laid before the commissoners on the sheriff’s estate, nor reported by them to the Judge of Probate ; nor did it appear that the insolvency was ever suggested by the defendants.
    
      Deblois, for the defendants,
    objected, firsts that this court, sit' ting in this county, had no jurisdiction of the cause. The defendants resided in Oxford, and the plaintiff in Massachusetts ; and the Stat. 1821, ch. 59, sec. 35, which authorizes the bringing of an action of debt on a foreign judgment, speaks only of the county in which the defendants reside, or have attachable estate ; which is not the case here.
    2. The claim which this action is brought to enforce, should have been laid before the commissioners on the estate of the late sheriff; and the creditor having failed to do this, the bondsmen are discharged. Toddv. Bradford 17 Mass. 569.
    3. The recovery of judgment in Massachusetts makes no difference in the case, because, being a foreign judgment as to these defendants, its merits are still open to examination. Bartlett v. Knight 1 Mass. 401. 1 Caines 460. Buttriclc & al. v. Mien 8 Mass. 273. Stevens v. Gaylord 11 Mass. 266.
    Adams, for the plaintiff.
    The objection that the action is brought in the wrong‘county, if well founded, should have been taken in abatement. Jewett v. Jewett adm’r. 5 Mass. 275. Tidd’s Pr. 590. It stands upon the same principle W'ith the objection of misnomer, want of indorser, omission of parties in tort, &c. Hart v. Fitzgerald 2 Mass. 50. Thompson v. Hoskins 11 Mass. 419. Haines v. Corliss 4 Mass. 659. Coffin v. Coffin cited in Story's PI. 353, note. Cleavelandv. Welch 4 Mass. 591. Briggs V: Nantucket Bank 5 Mass. 94. Lawrence v. Smith 5 Mass. 362.
    But whatever may be the merit of the objection if taken by plea, it is not open to the party in a case stated for the opinion of the court; for such statement is taken as a waiver of all objections not going to the gist of the action. Portland Bank v. Stubbs 6 Mass 425. Nor is this objection supported by the facts contained in the statement; for it does not appear that the defendants had not any attachable estate in this county. See also Ruggles v. Patten 8 Mass. 480. Converse ». Symmes 10 Mass. 371. Barstow & al. v. Fossett 11 Mass. 350.
    But the action is not brought in the wrong county. The plaintiff being a citizen of another State, might elect his county ; and such was manifestly the intent of the legislature. The ninth section of the statute cited, which makes provision for the bringing of all transitory actions in the comity where one of the parties live, applies only to cases where both parties reside within the State. Plaintiffs who are citizens of another State have always been considered as not within its provisions. And the language of the thirty fifth section, which permits actions on foreign judgments to be brought in the county, where either of the parties live, as it evidently regards citizens of this State alone, ought to receive a similar interpretation. Such has been the construction given by the courts in Massachusetts to the statutes of that Commonwealth, from which our statute is copied. Bay & al. v. Jackson & al. 9 Mass. 337.
    As to the defendants’ second objection ; the original suit by Palmer being pending at the time of the sheriff’s decease, the proper course was to have liquidated the demand by proceeding to judgment, before laying it before the commissioners. And if the defendants would avail themselves of the insolvency it was their duty to have suggested it in the former suit. Besides, this objection, if valid, should have been taken in abatement in that suit, admitting the justice of the demand. It comes now too late. Hunt v. Whitney 4 Mass. 634. Moore v. Fames 15 Mass. 313. Thatcher ». Gammon 12 Mass 268.
    Nor is this a foreign judgment. This point is considered as settled by the cases Bissell v. Briggs 9 Mass. 462. Jacobs v. Hull 12 Mass. 25. Commonwealth v. Green 17 Mass. 545. And if the judgments of other States in the Union were generally to be treated as foreign judgments, yet the relation of Maine to Massachusetts at the time when the original judgment in this case was rendered, constitutes an exception to such rule. The records of the courts of the parent state prior to the separation, ought to be treated as domestic proceedings, within the meaning of the eighth article of the terms and conditions in the act of separation.
    
      Fessenden, in reply,
    said that if the language of the ninth section of the statute was broad enough to include the case at bar, it was. qualified by the thirty fifth, which is in the nature of a proviso ; and both taken together amount to this, that in debt on a foreign judgment, the defendant shall be sued in his own county unless the plaintiff is an inhabitant of this State, in which case the suit may be brought in the county of the plaintiff.
    The benefit of the objection is not waived by the statement. The rule adverted to in the case of the Portland Bank vs. Stubbs applies to matters of form only, not appearing in the statement jtself. But.here the very object of presenting the facts in the statement is, that this objection should be considered and decided by the court. It was not necessary to plead it in abatement; for being apparent on the record, it may be pointed out and relied on in any stage of the cause. Jacobs v. Mellen 14 Mass. 134. It cannot be waived even by consent of parties, so as to confer a jurisdiction not otherwise existing. Coffin v. Tracy 3 Caines 129. The cases cited on the other side have no application here, because in them the want of jurisdiction was not apparent on the record ; except in the case of Lawrence v. Smith, which proceeds wholly on the ground that in cases like the present a plea in abatement is unnecessary.
    This argument having been heard in Jlpril last at the adjourned term of this Court, the opinion of the Court was now delivered by
   Mellen C. J.

In October 1817, judgment was recovered against the defendants for the whole penalty of the bond, which they and Osgood had signed as the sureties of McMillan. Allen, a creditor of McMillan, had execution for a part of said penalty. Afterwards Palmer, having obtained a judgment against McMillan's executors, sued a scire facias against the defendants to obtain satisfaction of his judgment also out of said penalty; and in March 1824 obtained judgment and had execution in the name of Sargent, treasurer; a part of this sum was paid on the execution, and the present action of debt is brought in the name of the present treasurer to obtain payment of the residue. In all the actions before named the defendants appeared and defended ; the last scire facias was served on the defendants in Oxford county in this State. First it is said this action should have been commenced in the county of Oxford, where the defendants reside.; and that as this irregularity appears on the record, the court must take notice of it without a plea in abatement. The validity of the objection depends on the construction to be given to the 9th and 35th sections of the statute of 1821 ch. 59. By the 9th sect, when the plaintiff and defendant both live within this state, all personal or transitory actions shall be brought in the county where one of the parties lives ; otherwise, the writ shall abate. The 35th sect, provides that an action of debt may be brought on a judgment rendered by a court of record in any other of the United States, in any court of record of this state, holdcn for the county in which either of the parties to such judgment shall dwell or reside. So also the 34th section provides that an action of debt may be brought on a judgment of a court of record of this state in the county where either of the parties to such judgment shall dwell and reside at the time of bringing the action, or in the same court where it was rendered ; the language is the same in both sections as to the locality of the action in respect to the parties. We do not perceive any direct repugnance of either of these sections to the 9th section, which should require of us to give them a different construction upon the point in question, where no perceptible reason can be assigned for the distinction. To make such a distinction between transitory actions only serves to impair the symmetry of our system of law on the subject; and in a case, too, where the Legislature may fairly be considered not to have intended any such distinction. It seems more to comport with their design to construe the several provisions before mentioned as affecting the character of all transitory actions in the same manner and to the same extent as to the particular under consideration. This construction renders it unnecessary for us to decide whether a plea of abatement was necessary ; or, if so, whether the advantages of such a plea are waived by such a statement of facts as that before us.

The second objection is that the judgment on the last scire facias, recovered in 1824 against the defendants, is not binding h’ere, inasmuch as the court in Massachusetts had no jurisdiction over the defendants, living at the time in this state; that though process was served on them in the county of Oxford, and they in person or by attorney attended the court in Massachusetts,still that such attendance gave the court no jurisdiction, as they had none at the time the suit was commenced; and the case of Bissell v. Briggs 9 Mass. 462, is cited as establishing these principles. Waiving for the present, all further inquiry as to the correctness of this argument, it may be of importance to examine the subject in another point of view. By the 6th section of the act of Massachusetts of March l, 1799, in an action on a bond with penalty, judgment, when rendered for the plaintiff is to be rendered for the whole penalty ; and such judgment is to stand as a security for further damages to which the plaintiff may be entitled ; which further damages are to be ascertained on a writ of scire facias on said judgment, from the court where the Same was obtained ; such is the law applicable to all bonds. The act of Massachusetts of March 13, 1806, regulates the proceedings to be had upon sheriff’s bonds for the use of any person or persons who are or may be entitled to the benefit of the same ; but it does not alter the nature of the judgment to be entered in a suit on such bond ; but prescribes the sum for which a creditor shall have execution, after the amount of his claim against a sheriff, his executors or administrators, has been legally ascertained. Thus the law stood at the time “an act relating to the separation of the District, “ of Maine from Massachusetts Proper and forming the same “ into a separate and independent State” was passed, on the 19th. of- June 1819. Several of the provisions of this act are incorporated as a part of our constitution; among which is the -following. “ And the rights and liabilities of all persons shall “ after the said separation, contiune the same, as if the said Dis- “ trict was still a part of this Commonwealth, in all suits pending, “ or judgments remaining unsatisfied on the fifteenth day of March “next, where the suits have been commenced in Massachusetts “ Proper and process has been served within the District of “ Maine : or commenced in the district of Maine and process has “been served in Massachusetts Proper, either by taking bail, “ making attachments, arresting and detaining persons, or other- “ wise, where execution remains to be done ; and in such suits, “ the courts within Massachusetts Proper, and within the pro- “ posed state, shall continue to have the same jurisdiction, as if “ the said district still remained a part of the Commonwealth.” We are bound to presume that those who drew and arranged the provisions of this interesting act, and the Legislature that enacted it, Wtell knew and duly considered the provisions and principles of the acts of 1799 and 1806 above mentioned; that they well knew and duly considered the manner in which any creditor who had suffered by the misdoings of a sheriff or his deputies, could legally avail himself of the benefit and security of the official bond of such sheriff; and that they did not intend to render those provisions less effectual and certain, contained in those two acts. Indeed, the division of a stale is of such rare occurrence ; and the partition of a general jurisdiction of so much importance to those whose interests are involved in such partition, ive apprehend that a liberal construction ought to be given to those provisions, professedly introduced for their protection. The judgment for the penally of the bond in question was rendered in 1816, years before the act of separation was passed; — a portion of that penalty had on scire facias been appropriated to the use of •filien ; the residue remained liable to satisfy the legally ascertained claims of other suffering creditors to be appropriated to their use upon scire facias, as provided by the act of 1799. At the time Maine was separated from Massachusetts, the judgment for the penalty of the bond, rendered in 1816, remained unsatisfied for five sixths of its amount, and the only mode of satisfaction pointed out by the act of 1799 was by the process of scire facias, which in such a case as this must be brought in the name of the State Treasurer, though for the use of a creditor. Now it is well settled that, a scire facias can issue only from the court having custody of the record; under the supposed authority of the above quoted provision in the act of separation, the scire facias, on which the judgment declared on was rendered, was served on the defendants in this state, by leaving a copy with them ; they understood the law in the same manner as the plaintiff’s counsel then did, and, without any coercive process, attended at the court in Massachusetts and defended the action. On this ground, without touching the question as to the validity and effect of judgments rendered in other states, in ordinary circumstances, our opinion is that the judgment rendered on the scire facias in Middlesex, October term, 1824, is to be considered by us as conclusive as it would have been, if Maine had still continued a part of Massachusetts. In support of this construction it may be observed, that the mode by which a creditor is to avail himself of the security of a sheriff’s bond is peculiar, depending wholly on the statutory provisions above recited — that manifest inconveniencies would attend any other construction. The judgment for the penalty of the sheriff’s bond having been rendered in the Supreme Judicial Court of Massachusetts,that court only, before which the record remains, can know when the amount of that judgment shall have been exhausted by successive appropriations on scire facias at the instance and for the benefit of suffering creditors who had substantiated their claims against the sheriff. In addition to all this, we would observe that these successive writs of scire facias incase of sheriff’s official bonds are not original writs; but processes employed to obtain satisfaction of the judgment for the penalty ; they are, to all pecuniary purposes, to be considered as a continuation of the original action, necessary to enable all concerned for obtaining the fruits and benefits of that judgment which was rendered -before, and was remaining unsatisfied, at the time the act of separation was enacted. In support of this principle may be cited the case of Dearborn v. Dearborn 15 Mass. 316, in which the court decided that a writ of scire facias against bajl, was not to be considered as a new action ; but a regular step in thé collection of the original demand. In fact, unless the plaintiff can avail himself of this mode of proceeding, he is utterly without remedy. This objection, therefore, must not be permitted to prevail.

The remaining objection is that this action cannot be maintained, because the claim of Palmer was never laid before the commissioners on the estate of McMillan the late sheriff; and in support of the objection the defendants rely on the proviso in the first section of the before mentioned statute of 1808, which is in these words: “ Provided however, that no such suit shall be “ instituted by any person for his own use, until such person shall “ have recovered judgment against the sheriff, his executors or “ administrators, in an action brought for the malfeasance or tc misfeasance of the sheriff or his deputy, or for nonpayment of <! any monies collected by the sheriff or his deputy, in that ea- “ pacity ; or a decree of a judge of probate allowing a claim for ic any of the causes aforesaid.” — The defendants also rely on the case of Todd v. Bradford, Adm’x. 17 Mass. 567. Upon examination of that case it is found to differ essentially from this.— There the estate of the intestate was insolvent when the action was commenced ; and that fact was pleaded in bar, and admitted by the demurrer. The court thereupon decided that the plaintiff had not maintained his suit, as he had not filed his claim before the commissioners, and therefore could proceed no further, though his object was merely to obtain a judgment as the basis of a claim against the sureties of the intestate. The facts in the case before us are far different from these. At December term 1818, at the C. C. Court of Common Pleas in Mid-dlesex, Palmer recovered judgment against the estate of McMillan in the hands of the executors of his will, for $156,58, damages and costs ; the executors not pleading the insolvency of the éstate, or disclosing any fact on the record, intimating that such insolvency existed; and it further appears that in the action of scire facias, instituted in January 1822, and on which judgment was rendered in March 1824, no defence grounded on the insolvency of McMillan’s estate, was then made ; nor any intimation to the court that such a fact existed or had been represented to the Judge of Probate; but the defendants suffered judgment to be rendered in common form against them, and execution to issue for the sum of $236,24. Now, it is a general rule and well settled principle, that upon a scire facias, or in an action of debt upon judgment, no defence can be admitted which existed prior to the judgment; as was decided in Thacher & al. v. Gammon 12 Mass. 268. The case of Sturgis v. Reed ad’r 2 Greenl. 109, seems directly in point; and the judgment, therefore, of Palmer, against the representatives of McMillan, is not affected by the insolvency of his estate. The claim has been ascertained by judgment of law ; and that is sufficient, according to the terms of the proviso in the act of 1806 ; no other ascertainment is necessary. The present action is therefore sustainable, by means of which to recover of the defendants a portion of the penalty for which judgment has been rendered, equal to the amount of the balance now due, of the sum for which execution was ordered in March 1824, for the use of Palmer. The result of this investigation is that the action is maintainable, and the defendants, according to the agreement, of the parties, must be defaulted.  