4 Denio 414 | N.Y. Sup. Ct. | 1847
It was said in James v. Henry, (16 John. 233,) “ that a justice’s judgment was equivalent, at least, to a specialty; and that assumpsit will not, therefore, lie on such a judgment.” But, strictly speaking, the judgment of a justice, in a case of which he has jurisdiction, is much more than equivalent to a specialty, for that’ may be impeached on various grounds, as fraud or illegality. Such a judgment, however, while unreversed, is, for every purpose, as conclusive between the parties as that of the highest court of record in the state. (Pease v. Howard, 14 John. 479. Andrews v. Montgomery, 19 id. 162.)
The judgment declared on in this case, was in the nature of a debt of record; and although as to the defendant Hawley, who had not been served with process and who did not appear in the cause before the justice, the judgment was only evidence of the extent of the demand after establishing his liability by other evidence, it was as to the other defendants, who had been duly served with process, absolutely conclusive. (2 R. S. 247, §§ 122, 3; p. 251, §§ 141, 2; p. 377, § 1 to 5.) So far, therefore, as respects the defendants Taylor and Foote, this judgment was equivalent to a debt of record; and if, as to the defendant Hawley, it should be regarded as a security of an inferior grade, that would not affect the decision to be made upon the questions now before the court.
A judgment may certainly be released. (Co. Lit. 291, a; 2 Shep. Touch. by Preston, 322, 3; Barber v. St. Quintin, 12 M. & W. 452, Parke, B.) But a release is always under seal, and here was none. (Rowley v. Stoddard, 7 John. 207; Co. Lit. 264.) In the present case there was nothing more than a parol agreement by the plaintiffs, founded on a like engagement by the defendant Taylor, that they would not take any proceedings on the judgment to collect the same of him, but would look to the other defendants alone for satisfaction thereof, This was in no sense a release, nor was the arrangement made between these parties valid, by way of accord and satisfaction.
It was an accord only, for nothing was received in satisfaction of the judgment. Taylor agreed not to carry the case to
There is another insuperable difficulty in looking at this arrangement as an accord and satisfaction; for such a plea can, in no case, be interposed as a bar to an action of debt founded on a record, or on a judgment in the nature of a record. “ An obligation is not made void but by a release; for naturale est quidlibet dissolve eo modo quo ligatur—a record by a record, a deed by a deed ; and a parol promise or agreement is dissolved by parol, and an act of parliament by an act of parliament. This reason and this rule of law are always of force in the common law.” (Jenk. Cent. p. 70.) And this is strictly true with a single qualification, that a record, as well as a specialty, may be cancelled by a release. (Barber v. St. Quintin, Parke, B., supra; Broom’s Legal Max. 407; Shep. Touch. supra; 1 Saund. Pl. & Ev. 23; West v. Blakeway, 2 Scott’s N. R. 199; 9 Dow, 846, S. C.)
The principle stated applies as well to debts by specialty as to debts of record. But here a distinction is to be noted, for “ when a duty doth accrue by the deed in certainty, tempore confectionis scripti, as by covenant, bill or bond to pay a sum of money, there this certain duty takes its essence and operation originally and solely by the writing: and therefore it ought to be avoided by a matter of as high nature, although that the duty be merely in the personalty : but when no certain duty accrues by the deed but a wrong or default subsequent, together with the deed, gives an action to recover damages which are only in the personalty, for such wrong or default, accord with satisfaction is a good plea.’ (Blake’s case, 6 Rep. 43.) Accord and satisfaction cannot dis
“ Accord,” says Sir Wm. Blackstone, “ is a satisfaction agreed upon between the party injuring and the party injured ; which, when performed, is a bar to all actions upon this account.” (3 Com. 15,) The bar rests on the agreement and not on the mere reception of property, for whatever amount may have been received, the right of action will not be extinguished, unless it was agreed that the property should be received in satisfaction of the injury. (1 Saund. Pl. & Ev. 23 to 26; Bac. Abr. Accord and Satisfaction; 3 Steph. Com. 373; 1 Ch. Pl. 613; 2 id. 924, 1022, 1031, 1156; Webb v. Weatherby, 1 Bing. N. C. 502; Ridley v. Tindall, 7 Adol. & El. 134.) But the agreement thus to accept satisfaction is by parol, which, in its nature, is incapable of discharging an obligation by record or specialty—quodque dissolvitur eodem ligamine quo ligatur.
On the same principle, payment of a debt of record could not, at common law, be pleaded to an action brought for the recovery of such debt; (1 Ch. Pl. 521; 2 id. 996, a, note h.; 2 Saund. Pl. & Ev. 712, 713, 717; or of a debt by specialty. (Dyer, 25, b.) But it is otherwise by statute. (2 R. S. 353, §§ 11, 12, 13; 1 R. L. of 1813, p. 517, § 5.)
The judgment on which this action was brought, not having been cancelled or impaired as to either of the parties, by the arrangement between the plaintiffs and Taylor, no defence was shown on the trial, and the motion for a new trial must be denied.
New trial den ed.