The opinion of the court was delivered by
Bennett, J.It is, it must be conceded, well settled, that a judgment of a sister state may be impeached, if the defendant were *425in no way subject to the legal process of such state, or amenable to her laws, when the judgment was rendered against him ; and such, it is claimed by the defendant, was the fact in this case; and this is the important inquiry. That we may have a full understanding of this question, it may be well to recur briefly to the facts of the case.
It seems in February, 1842, the plaintiff prayed out his writ against Dougherty and Carney, of Elliot, in Maine, returnable at the May Term, 1842, of the district court for the county of York, and the present defendant, then of Elliot, was summoned as trustee ; and the process was duly served upon the trustee, at Elliot, on the seventeenth day of February, 1842, and on the principal defendants on the fourteenth of May. At the May Term, 1843, the principal defendants were defaulted, and the case was continued from term to term to the October Term, 1845, when the defendant was defaulted, and the damages were then assessed against the principal debtors, and execution was awarded for the damages and costs against the goods, effects and credits of the principal debtors in the hands of the trustee. It was also adjudged, that the trustee pay, out of his own funds, such costs as had accrued after the first term, to which the writ had been made returnable, agreeably to the provisions of the statute of Maine. On the twenty seventh of October, 1845, execution issued against the estate of the principal debtors in their own hands, and against the goods, effects and credits of the principal debtors in the hands of the trustee. Upon the margin of the execution there was indorsed the amount of the costs, which the trustee was personally liable to pay. On the sixth of November, 1845, the sheriff returned a non est inventus as to the trustee, and that he had not any dwelling house, or place of abode, in the state, and that he found' him at Fitchburg, Massachusetts, gave him a copy of the execution, and a written notice, that he was required to deliver the goods, effects and credits, for which he was liable, towards satisfying the execution, and made a demand for the costs indorsed on the margin of the execution, and the defendant refused to do either, and the execution was returned unsatisfied. A scire facias was issued against the trustee in December, 1846, returnable at the May Term, 1847, requiring him to show cause, why judgment should not be entered up personally against him. This was served upon the trustee by leaving a true and attested copy at his *426last and usual place of abode in Elliot; and the defendant not appearing, he was defaulted, and judgment was rendered against him personally at the February Term, 1847, for the amount of the judgment against the principal debtors and the costs of the scire facias. This is the judgment upon which this action is predicated.
When the plaintiff commenced his suit in 1842, not only the principal defendants, but also the trustee, were residents of Maine. Service of the writ was made personally upon them, and the court had the most perfect jurisdiction over them; and the important question is, did the court have jurisdiction over the trustee in 1847, when the judgment was rendered against him personally 1 If they had not, it must have been upon the ground, that it was lost in conquence of his removal from the state. The proceedings of the court of Maine are in strict conformity to their statute, to which we have been referred; and there is no ground, upon which the judgment in question can be impeached, unless it be for want of jurisdiction over the trustee.
If the judgment had been rendered against the defendant, as the debtor of the plaintiff in an original action, we think it quite clear, that such a judgment would be open to examination in our courts, as much so as if it had been strictly a foreign judgment. But if the scire facias in this case is to be treated, not as a new suit, but as a continuation of the original action, and as constituting a necessary part of it, it would seem as if a different result should follow. The original judgment, rendering the trustee chargeable, did not obligate the trustee to pay any sum to the plaintiff, except the costs indorsed on the margin of the execution; and had he appeared and disclosed facts to show, that he was not trustee, he would then have been discharged. The principle is too well established, to need authority, that a scire facias upon a judgment is only .a continuation of the original suit; and we think there are special reasons, why the scire facias in the case at bar should be so considered. If a scire facias issue against bail upon a recognizance, or against bail upon mesne process, it may well be treated, in either case, as a new action; for the reason, that the defendant was in no way a party to the record in the original suit.
But in this case Belknap, in one sense, was a party to the action, when the suit was commenced, and was duly served with process, *427being then a resident of Maine. The judgment, which was entered against him, consequent upon his first default, was but in the nature of an interlocutory judgment, and incomplete, and in no way conclusive, except for a portion of the costs, which had accrued in the action. The statute enacted by the legislature of Maine, in 1845, provides, that when the trustee has no place of abode in the state, and cannot himself be found, the demand, made in the manner it was in this case, of the trustee,’ shall be deemed sufficient; and we see no good objection to the statute. It did not authorize the service of process in another state. After this demand, and a return of nulla bona, on the execution, the foundation was laid for farther process, by way of a scire facias, for ascertaining the plaintiff’s rights and the defendant’s liabilities.
When the defendant submitted to the first default, he was not, by the laws of Maine, subjected to any fixed liabilities to the plaintiff, except for costs; and if the default had been taken the first term, he would not have been even liable for costs. The defendant, it must be presumed, knew, that there must be farther proceedings by scire facias, in which he might appear and discharge himself by making his disclosure; or the plaintiff, upon his default, would be entitled to judgment against him in his own right. He knew, that he had taken the very course to render a scire facias necessary to a final judgment against him, fixing him with the payment of the debt; and the question is, shall he have the power to defeat the plaintiff of this right by his removal from the state ? He must be taken to have understood, that the legal process issued from the courts of Maine could not follow him into another state, and that the laws of Maine authorized the service of the scire facias upon him only by a copy, left at his last and usual place of abode in Elliot. The statute is, that the officer may make service of the summons by reading, or giving the defendant a copy, or leaving a true and attested copy at his dwelling house, or at the place of his last and usual abode.
The defendant must have known, that, to render the proceeding of any avail against him, a scire facias must be issued from the courts of Maine, and that, if he left the state, no other service could be made upon him, except what was made in this case. I am not *428aware, that the laws of Maine make provision, in a case like this, for any other service, but the one adopted.
We think, as he was in the first instance personally summoned, and did not appear to make his disclosure, but suffered a default, it is to be taken, that he intended to disclose upon the scire facias, if he wished to make any disclosure, — which it seems the laws of Maine authorized. If the defendant, in the mean time, wished to remove out of the state, he should have left his agent at Elliot, to have given him notice of the service of the scire facias. We think this is by far more reasonable, than to hold, that, by his leaving the state, he defeated the jurisdiction of the court over him, and thereby rendered all prior proceedings abortive. It would be somewhat extraordinary, if the defendant, by removing to Massachusetts, could in effect dissolve the lien, created by the original service of the trustee process; yet such must be the effect, if he, by so doing, placed himself beyond the pale of the jurisdiction of the courts of Maine over him.
If they had not jurisdiction over him, personal notice served upon him in Massachusetts could not give it. Considering the peculiar nature of the trustee process, we think the scire facias was an operative part of the original action, and necessary to carry out its object, and may well be regarded as a continuation of it; and the defendant, for the purposes of carrying out this object, must be treated as subject to the jurisdiction of the courts of Maine, notwithstanding his removal to Massachusetts. The case of Adams v. Rowe, 11 Maine 39, is a full authority for the views expressed; and we think that case sound.
In regard to the plea of nil debet, it is clearly bad. There is nothing in the record to impeach the conclusive effect of the judgment ; and it being conclusive upon the face of the record, nil debet is no better plea, than it would have been to an action of debt upon a judgment of a court of this state.
We think, then, the court below were right in finding the issue of fact and of law for the plaintiff, and the judgment of that court is affirmed.