Midland Co. v. Broat , 17 L.R.A. 312 ( 1892 )

Vanderburgh, J.

The plaintiff is a nonresident corporation, whose place of business is the city of Chicago, in the state of Illinois, and the defendant is, and at the time of the transaction mentioned in the answer was, a resident of the city of Minneapolis, in this state. On the 6th day of May, 1891, while he was temporarily in the city of Chicago, the plaintiff brought suit in chancery against him, and caused a writ of ne exeat to be issued against him pursuant to the laws of the state of Illinois, as alleged in the answer in this action, and, in pursuance of law and the order of the judge who directed the issuance of the writ, the plaintiff did duly file in court for the benefit of the defendant a certain ne exeat bond, executed by the plaintiff with surety, in which the plaintiff: acknowledged itself to be bound unto the defendant in the sum of $5,000, conditioned as follows: “Whereas, the said Midland Company has filed in the circuit court of Cook county its bill in chancery praying for a writ of ne exeat against the said Broat, and whereas, the Honorable L. C. Collins, one of the judges of the said court, has, upon the filing of said bill, indorsed an order under his hand thereon, directing the clerk of said court to issue a writ of ne exeat against this defendant upon the said Midland Company, giving bond and security as provided by law, in the sum of five thousand dollars, then, if the said Midland Company shall prosecute the said bill or petition with effect and without delay, and pay or cause to be paid to the said Broat, his heirs or assigns, and reimburse to the said Broat all such costs and damages as should be sustained by the wrongful suing out of the said writ of ne exeat, then said obligation should be void; otherwise to be and remain in full force and virtue.” And it is further alleged and admitted for the purposes of this appeal that the bond was duly executed by the plaintiff under its seal, and duly approved by the court, and thereafter delivered to the defendant. It is also alleged by the defendant “that the writ was thereupon issued to the sheriff of Cook county, and defendant arrested thereon, and confined in jail wrongfully and without probable cause, as he insists, and that thereafter, on the 15th day of May, 1891, he appeared before the court, and, upon a-hearing duly had, the said writ and the said proceedings were quashed, and adjudged unwarranted, and wrongful, and without just cause, by the said court, and said defendant released from custody, and the said proceedings against defendant were finally determined in his favor.” The defendant claims that he has a cause of action upon the bond against the plaintiff for his costs and damages in the premises, and accordingly in his answer to a complaint against him in an action upon contract he has interposed a counterclaim therefor upon the bond. The sufficiency of the facts therein stated to constitute a legal counterclaim is the question presented on this appeal.

1. The liability of the plaintiff upon this bond may be enforced in the courts of this state.

The statutes of Illinois have, of course, no force, exproprio vigore, outside the limits of that state, but, by the rule of comity prevailing between states or sovereignties, contracts and liabilities recognized or established by the laws of the state or country where made or incurred may be enforced in the courts of this state, unless contrary to good morals, or the policy and laws of the state.

Actions which are personal or transitory may be brought anywhere if jurisdiction of the person can be obtained. Leonard v. Columbia Steam Nav. Co., 84 N. Y. 52; Com. v. Bassford, 6 Hill, 529; Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11, (16 N. W. Rep. 413.)

The procedure for enforcing the liability in such cases will of course be governed by the lex fori, while the lex loci will apply to the construction or effect of such contract, or the nature of the right or liability sought to be enforced. The courts will not, however, assume jurisdiction to enforce the penal statutes or criminal laws of the foreign jurisdiction. Scoville v. Canfield, 14 John. 338.

2. An action brought to recover damages for a breach of the condition of the bond in question is an action upon contract.

It is certainly an obligation by which the plaintiff agreed and bound itself to answer to defendant in damages. It is such an undertaking as might have created a common-law liability apart from the statute. Toles v. Adee, 84 N. Y. 237, 91 N. Y. 566.

The technical common-law forms of action ex contractu are abolished by the Code, and actions which would formerly be distinguished as debt, covenant, or assumpsit all fall under the general designation of “actions upon contract.”

The bond in suit is none the less a contract because it is required by and was executed in conformity with the statutory provisions referred to, nor because it is unilateral in form. The defendant is the obligee named in the bond, and is the party beneficially interested. It is a contract which the courts will recognize and enforce in his favor.

A judgment is a contract, by construction of law, for most purposes, and an action upon it is an action upon contract, and we think it is a proper subject of counterclaim under the statute. Wells v. Henshan, 3 Bosw. 626; Badlam v. Springsteen, 41 Hun, 162. See Gutta Percha & Rubier Manuf'g Co. v. Mayor, 108 N. Y. 276, (15 N. E. Rep. 402.)

(Opinion published 53 N. W. Rep. 973.)

And we see no reason why a statutory bond like this may not be set up as a counterclaim. Wickham v. Weil, (Com. Pl. N. Y.) 17 N Y. Supp. 519; Cornell v. Donovan, 14 Daly, 295.

The statute allowing independent causes of action upon contract to be set up as counterclaims is a remedial one, and must have a liberal construction. Pom. Rem. §§ 798, 799.

The damages claimed in the complaint are such as might very properly be set off against a recovery upon the note in suit, and they are such as, if proved, might be recovered in an action upon the bond. Burnap v. Wright, 14 Ill. 302.

Order affirmed.