Hogan v. Reynolds, 21 Ala. 56

Hogan v. Reynolds

21 Ala. 56 | Ala. | 1852

BARGAN, C. J.

— The case of Bartlett & Waring v. Lang, *594 Ala. 688, fully sustains the plaintiff in error, and shows that tbe court erred in tbe charge given to the jury. In that case, Bartlett & Waring had recovered a judgment against McRae, as surviving partner of McRae & Lang, on which execution had been issued, and was returned no property. After this, they sued Mrs. Lang, as the administratrix of Willis Lang, the deceased partner, and obtained judgment against her. She .then paid the amount of the judgment to Bartlett & Waring against McRae, and took an assignment of it to herself. McRae afterwards moved the court to quash the execution, and to have satisfaction of the judgment entered. This court held, that Mrs. Lang could not, by paying the amount due on the judgment, and taking an assignment of it, continue it-in force for the purpose of having execution against McRae, the surviving partner. The case at bar falls directly within this decision; for, though the judgment was assigned to Smoot, it was paid, in part, by Tompkies, and in part by John T. Hardie, as executor of John Hardie, deceased; that is, Tompkies and John T. Har-die furnished the money to Smoot, who paid the judgment to Reynolds, and the money furnished by John T. Hardie belonged to the estate of John Hardie, deceased, who was bound for the debt as a co-partner. Reynolds, therefore, has received his money, and from those who were liable to pay it. This is a satisfaction, and the judgment cannot be kept on foot to coerce collection out of Hogan, for the benefit of the other members of the firm.

The rule established by the case of Bartlett & Waring v. Lang, may be thus stated: If a judgment is paid by one who ■is a principal in the debt, and, as such, is bound to pay, he cannot, by obtaining an assignment of the judgment, keep it alive in order to coerce payment from his co-principal; and we cannot permit him to do, in the name of another, what he would not be allowed to do in-his own.

Let the judgment be reversed, and the cause remanded.

CHILTON, J., did not sit in this case.