Carman v. Townsend, 6 Wend. 206

Carman v. Townsend

6 Wend. 206 | Court for the Trial of Impeachments and Correction of Errors | 1830

The following opinions were delivered ;

By the Chancellor.

The plaintiff in error is unquestionably right in his first point, in supposing that the first judgment was an extinguishment or merger of the original indebtedness, so that no action could be sustained against *210either of the defendants on the original promises. If any action could be sustained against the defendant not arrested in the original suit, it must be, in form, an action of debt founded on the judgment. But it is insisted on the part of the plaintiff in error that by the entry of judgment under the statute he was wholly discharged from personal liability for the debt, and that the plaintiffs are confined to their remedy against the joint properly of the defendants, or the separate property or personal responsibility of the defendant who was arrested in the first suit. Such could never have been the intention of the legislature ; the act was remedial, and was intended to save the expense of proceeding to outlawry against the defendant who could not be arrested. By the common law, the plaintiff was obliged to proceed to outlawry against the absent defendant, and then lie was permitted to go on and obtain his judgment against the defendant who had been arrested; but this did not deprive him of his remedy, either against the person or the goods of the outlaw. He might arrest him on a capias ul lagalum and commit him to pay the debt, or he might obtain satisfaction out of his goods; for although the goods of. the outlaw were forfeited to the king, yet if the outlawry was in a civil suit, it was a matter of course to grant the goods to the plaintiff in that suit, or so much thereof as was necessary to satisfy his demand. The King v. Cooke, outlawed at the suit of Rayer, McCleland & Young's Rep. 196. The legislature unquestionably had no other object in view than to save useless expense, and at the same time to protect the rights of the absent defendant in that suit, without discharging his liability to the plaintiff in an action on the judgment.

It is urged,- however, that by adopting this course the defendant who is not arrested in the first suit is deprived of his defence in the second. It has never yet been decided that by a course of pleading adapted to the particular case, the defendant, who is arrested in a suit on such judgment, may not avail himself of any defence which it would have been competent for him to urge in the original action, had he been brought into court. In this case Carman set up such a defence, and the plaintiffs in the court below did not deem it *211prudent to demur to his plea, but took issue upon sudh parts of that plea as went to the merits of the original defence. If they had attempted to treat the former judgment as conclusive evidence of the indebtedness of both defendants, after these facts were spread upon the record in the last suit, there could have been very little doubt as to the result. I have no hesitation in saying that the plea put in by the defendant Carman, if true, was a good and valid defence as to him. The allegation in the plea on which the plaintiffs took issue was a material part of it, and every other allegation therein was admitted by the replication ; the judge was therefore correct in saying that was the only question for the jury to decide under the pleadings in the cause. The recovery of the judgment was not denied by the plea; neither was it averred that the original debt had been paid, or that the judgment was for a greater sum than was actually due. There being no general issue and the single fact of joint original liability being put in issue by the pleadings, neither party was at liberty to introduce proof as to any other fact. The plaintiffs having disproved this allegation in the plea, a verdict for their debt, with nominal damages, followed of course. And this being a material issue, no repleader could be awarded. The plaintiffs were therefore entitled to judgment on the verdict.

The pleadings in this case were not properply framed to raise the question whether the plaintiffs must prove the original indebtedness, or whetherit lies upon the defendant to disprove it. Whenever that point is properly before the court I think the plain dictates of common sense will easily determine which party is tobe considered as holding the affirmative, The judgment may be considered prima facie evidence of indebtedness, so far as to enable the plaintiffs to bring an action of debt against the defendant who was not originally arrested; but it does not follow that it would be sufficient to enable the plaintiffs to recover without other ev- ■ idence of indebtedness if that fact was directly put in issue by the pleadings. The plaintiffs in this case assumed the bur-then of proving that the defendants were joint debtors, aud *212that was all they could be required to do under these pleadings.

I think therefore that the decision of the judge at- the circuit as well as that of the supreme court was correct, and that the judgment in this case should be affirmed.

By Mr. Senator Beardsley.

This was an action of debt in the court below'on a judgment recovered against Carman the plaintiff in error, and George I. Ring, in which suit Car-man was not arrested.

The only fact put in issue in the present suit by Carman was, that the promises on which the former judgment was rendered were made by Ring solely, and not by him jointly with Ring. This-iséue was found against him by the jury who tried the cause ; and it being the only issue, all the other facts relied upon by the plaintiffs were admitted, and of course not necessary to be proved on the trial.

It is now objected by Carman that an action of debt will not lie on such judgment. This is the only objection that has been urged on the argument which requires consideration ; that such action will lie has been too long settled to be now called in question. It is right in principle that such action should be sustained; a contrary rule would' work great injustice to creditors.

The defendant not arrested in the first suit may set up a defence when he is arrested ; and Carman might in the present suit have denied the original indebtedness, but he did not set that up, but merely denied the partnership. The following cases establish the right to maintain such action; Dando v. Dole, 2 Johns. R. 87; Bank of Columbia v. Newcomb, 6 id. 98; Taylor v. Pettibone, 16 id. 66.

The judgment must be affirmed.

This being the unanimous opinion of the court, the judgment was affirmed accordingly.