4 N.Y. 514 | NY | 1851
Lead Opinion
The plaintiff applied for and obtained the attachment on a petition and affidavit sworn to by him, stating that Baker & Young were indebted to him in a specified sum of money “ arising upon a certain judgment” against them in his favor. Baker got the attachment discharged on giving a bond, with a condition to pay the amount justly due by Baker & Young to the plaintiff “ on account of any debt so claimed and [518] sworn to by him.” This is an action on the bond ; and one question is, whether the plaintiff has proved that he had a debt against Baker & Young “ arising upon a judgment.” On the trial the plaintiff produced a judgment in his favor against Baker & Young; but it was rendered in a suit in which Baker neither appeared, nor was served with process. Such a judgment does not prove a debt against Baker; nor is it prima facie evidence of indebtedness, which must be rebutted. As against him, the judgment is of no other force or effect than such as has
If the judgment is no evidence of Baker’s liability, it is of course no proof of a debt against him. It is plainly absurd to assert the contrary. The plaintiff himself did not pretend on the trial that the judgment proved a debt against Baker; but after reading the record, he proceeded to give evidence for the
If the plaintiff had a debt against Baker & Young as general partners in the commission business—about which there is much room for doubt—his attachment proceedings against them should be founded upon that debt, or upon the debt in connection with the judgment. He should have stated in the usual way, that he had a demand arising upon contract, (2 R. S. 3, § 3 ;) to which it might have been added, if it was deemed a matter of any. importance, that he had obtained a judgment for the amount in a suit where Baker did not appear, and was not served with process. And when a creditor wishes to sue in a case of this kind, he should proceed in the same way—declaring upon the original cause of action; and either adding or omitting the recovery of the judgment, as he pleases. The judgment adds no force to the claim. It is absurd to say that a party may have an action on a judgment which is no evidence of the defendant’s liability. He might as well sue -on a piece of blank paper.
When an action was brought on a judgment recovered under the former joint debtor act, if the defendant pleaded nothing but nul tiel record, the judgment was held to be prima facie evi[520] dence of his liability. But in Mervin v. Kumbel, (23 Wend. 293,) all the judges were agreed that the present statute had altered the old law; and if an action were brought upon a judgment recovered since 1830, the plea of nul tiel record would put the plaintiff to the proof of the original demand against the party who was not brought into court in the first suit. Two of the judges thought in that case that the plaintiff might still sue on the judgment, instead of suing upon the original demand, or
• It is said that the original demand was merged in, and extinguished by the judgment, and consequently that the plaintiff must sue upon the judgment, if he sues at all. That would undoubtedly be so, if both the defendants had been before the court in the original action. But the joint debtor act creates an anomaly in the law; and for the purpose of giving effect to the statute, and at the same time preserving the rights of all parties, the plaintiff must be allowed to sue on the original demand. There is no difficulty in pursuing such a course; it can work no injury to any one; and it will avoid the absurdity of allowing a party to sue on a pretended cause of action, which is in truth no cause.of action at all; and then to recover on proof of a different demand.
Although the point is not made by the bill of exceptions, the court below held that, after establishing the joint indebtedness of the defendants, the statute fixes the amount of the liability at the amount of the judgment. I can not subscribe to that doctrine. In my opinion the plaintiff can only recover to the extent of the liability which he establishes by evidence other than the judgment. He may recover less, but can not recover more than the amount of the judgment. I shall never yield my assent to the doctrine, that the plaintiff may prove a joint liability on the part of the defendants to the amount of [521] one dollar, or an indefinite sum, and then have a verdict for a thousand dollars—or ten thousand, as the case may be—on producing a judgment for that amount. On a just and reasonable interpretation of the statute, the liability of the defendant, in the whole extent to which the recovery can go, must be established by extrinsic evidence. The plaintiff can have no aid
The course of decision on this subject shows how strongly the courts are opposed to giving any effect to a judgment against a party who had no opportunity to answer. The former joint debtor act provided for a judgment and execution against all the defendants'“in the same manner as if they had all been taken and brought into court,” without any qualification'whatever of the force or effect of the judgment in a subsequent action upon it. (1 R. L. 521, § 14.) And yet the courts held that the judgment was at the most only prima facie evidence against the defendant who was not served with process ; and that only where he pleaded nothing but nul tiel record, that he might so plead as to put the original cause of action in issue, or show it barred by the statute of liminations, and thus destroy the-whole force and effect of the judgment as evidence against him in the new action. (Carman v. Townsend, 6 Wend. 206; Bruen v. Bokee, 4 Denio, 56.) With such a course of decision under the former statute, it would be strange indeed if we should hold that a judgment recovered under the present joint debtor act was evidence of a debt against the defendant not brought into court, when the statute declares, in effect, that the judgment shall be no evidence of his liability. . It would be repealing the statute, and violating a great principle at the same time.
When the courts of any state render a judgment against one. who was not a citizen of that state, and was not brought into court, the judgment is held absolutely void every where else, although it may have been expressly authorized by the legislature of the state where it was rendered. (Starbuck v. Murray, 5 Wend. 148 ; Holbrook v. Murray, id. 161; Harrod v. Baretto, 2 [522] Hall, 302; Wilson v. Niles, id. 358; Steele v. Smith, 7 Watts & Serg. 447 ; Harmon v. Taylor, 20 Vermont, 65; Ewer v. Coffin, 1 Cushing, 23; Hall v. Williams, 6 Pick. 232.) I doubt whether such a judgment is of any force in the state where it was rendered. Under our form of government it is
It is said that although the present statute differs in terms from the former one, it is in effect but a re-enactment of the old law, with the interpretation which it had previously received from the courts. But that is a mistake. Under the old law, the judgment was held prima facie evidence of a debt against the defendant who had not been brought into court, if he pleaded nothing but nul tiel record; whereas under the present law it is already settled that the judgment is not prima facie evidence in such a case; but the plaintiff must establish the defendant’s liability by extrinsic evidence. (Marvin v. Kumbel, supra.) And although the chancellor had expressed the opinion in Car-man v. Townsend, (6 Wend. 296,) that the defendant might so plead in an action on the judgment, as to put the original cause of action in issue, the point was not necessarily decided; nor was it settled until long after the present statute was passed. (Bruen v. Bokee, 4 Denio, 56.) The intention of the legislature to alter the law is apparent. The first statute provided for a judgment against the defendant not brought into court, [523] without any qualification whatever of the effect of the judgment as matter of evidence ; but the present statute says, in substance, that the judgment shall prove nothing against such a defendant: Ms liability must be established “ by other evidence.” And, as we have already seen, the present statute did in fact work a change
There was another important departure from the old law. Formerly an execution might go against any lands or goods which were not the sole property of the defendant not brought into court. But under the present statute, (§ 4,) the execution does not reach the interest of such a defendant in any lands ; nor does it touch his interest in any personal property, except such as is - owned by him as a partner with a defendant who was brought into court.
And here it is proper to remark that the present statute was carefully drawn, for the purpose of giving the relief which the creditor sometimes needed in proceedings against joint debtors, without doing any great violence to principle. As against the defendant who was not brought into court, it gives no effect to the judgment beyond reaching the goods and chattels which he owned as a partner with the defendant who was served with process. As each partner might dispose of the partnership effects' without the consent of his associate, there was no great wrong in allowing the same thing to be effected by a suit in which one of the partners had an opportunity to be heard. This construction, while it does no violence to the language of the statute, comes nearer than any other to rendering exact justice to all parties. But if we allow the plaintiff to maintain a suit on the judgment against the defendant who was not brought into court, or to make it the foundation of an attachment against him, we shall give an effect to the judgment beyond that declared by the statute, and which is repugnant to the plainest principles of justice.
We are of opinion that the plaintiff proved no debt or demand [524] against Baker arising upon a judgment, and consequently that he was not entitled to recover. ■
The most important legal question presented by this case, is, whether the record produced on the trial, proved a judgment against John W. Baker and John Young. The
The record shows that Baker was not arrested and did not appear as a party to the suit in which the judgment was rendered. The judgment was confessed by Young, who appeared in his own name as impleaded with Baker, and said that he could not deny the action of the plaintiff, nor but that he, together with Baker, did undertake and promise in manner and [525] form as the plaintiff had declared against him and Baker, nor but that the plaintiff had sustained damage by reason of the non-performance of the said promise and- undertaking to $22,466,15, agreeably to the account as presented, besides costs and charges, &c.
By the common law, no judgment could be given for or against a party who was not in court, that is, who had not actually or constructively appeared in the suit. So inflexible was this rule considered in a country where great deference is paid to commercial credit, and great rigor used in the enforcement of pecuniary obligations, that a plaintiff, in an action against joint debtors, could not recover a judgment against any of them, even to reach their joint property, until they were all, if living, brought into court, or those who could not be brought into court, were outlawed. To avoid the inconvenience, delay and expense of proceeding to outlawry, an easier, more expeditious and cheaper mode of proceeding was provided by pur statute, for the amendment of the law and the better advancement of justice, passed, March 20,1801. (1 K. & R. 353.) By the 13th section of that statute it was provided, that all persons jointly indebted on contract, for which remedy might be had at law against such debtors, in case dll were taken by process, should be answerable [526] to their creditors separately, that is to say, the creditors might issue process against them in the manner then in use, and in case any of the joint debtors should be taken and brought into court, he or they so taken and brought into court, should answer to the plaintiff, and in case judgment should pass for the plaintiff, he should have his judgment and execution against
The judicial constructions of this statute have not been numerous, but they show that the judges have experienced some difficulty in tracing the line between the remedy provided by it and the rights of persons not before them. In the case of Dando v. Doll & Tremper, in November, 1806, (2 John. 87,) the supreme court decided that in an action of debt on a judgment against two defendants, one of whom only was brought into court, the plea of nul tiel record, by the one who was not brought into court, was. not a good plea, remarking that the judgment was clearly regular in form against both the defendants. That there was, in that case, no plea or suggestion of any defence by Doll, who had merely pleaded nul tiel record. The court said, “ On this judgment and on this plea we have no alternative, but must say that the plaintiff is entitled to judgment. We give no opinion what it would be proper to decide on any other plea or statement of facts submitted to the court.”
The case of The Bank of Columbia v. Newcomb, impleaded with Stiles, decided in May, 1810, (6 John. 98,) was an action of debt on a judgment. Newcomb was taken on the capias ad respondendum, and Stiles, the other defendant, returned [527] not found. Newcomb pleaded 1. Nul tiel record; 2. That Stiles was taken on the capias in the original suit, and he, Newcomb, was returned not found; 3. That he was not taken before the giving of the judgment in the original suit, but was returned
The statute of 1801 was copied into the revision of 1813, and the same course of decision was continued. In the case of Taylor and Swift v. Pettibone, (16 John. 66,) which was a certiorari to a justice’s court, decided in January, 1819, the court, after referring to the previous decisions, says: “ We then consider the judgment against the party not brought into court, as prima facie evidence of a debt, reserving to him the right to enter again into the merits and show that he ought not to have been charged.”
In the case of Townsend and Townsend v. Carman, impleaded with Ring, (6 Cowen, 695,) in the supreme court, in February, 1827, it was decided that an action of debt would lie on a judgment against two joint debtors, though one was not arrested, and did not appear in the original action. Though in' such a case, a plea by the one who was not taken in the original suit, stating that the indebtedness upon which the judgment was recovered, was the sole debt of the other defendant, and not a joint debt, was a good plea, and set up a good defence. The judge who gave the opinion of the court remarked, that “ there was nothing in the act restraining the plaintiff from bringing an action of [528] debt upon such judgment against both defendants, nor from using the judgment as evidence of the indebtedness of all.. The judgment prima facie evidence of debt against the party not brought into court. How far, or in what respect, he may be permitted again to enter into the merits of the original action,
The above references show the condition of the law as it stood at the time of the revision of the statutes in 1829. It is impossible to contemplate these decisions without perceiving that they gave a construction to the statute, and a force to a judgment recovered under it, which seriously affected the rights of persons not in court, and encroached upon that fundamental principle of jurisprudence which secures to every individual safety against all judicial proceedings to which he is not a party, and against which he has not had an opportunity to defend himself. It merged the original indebtedness in the judgment, and changed a liability on an unliquidated simple contract, into a debt of record, possessing many important qualities, not belonging to the original indebtedness. It made the judgment record prima fade evidence of the indebtedness of the party not brought into court, and thereby changed the nature of the proof necessary to establish the indebtedness. It compelled the debtor on a simple contract, to resort to a special plea to set up a defence which he might have made to an action on the original indebtedness, under the general issue. And finally, it gave to a dishonest man a power to collude with his creditor, prima fade, at least, to establish a dishonest debt against a pretended partner, from which he could exonerate himself only by a defence set up by a special plea. The repeated intimations of the court, that there might be some mode of pleading adopted by which the party not brought into court in the original suit, might avoid any unjust consequences of the decisions which they felt bound to make, clearly indicate their sense of the danger of the construction established by them, and the sanctity of the first principle upon which their jurisdiction over individuals was founded, while the uncertainty of the remedy suggested, called for legislative [529] interposition. This was provided by the revised statutes adopted in 1830.
By the first section of the revised statutes on the subject of proceedings against joint debtors, (vol. 2, p. 377,) all the benefits of the old law are preserved. By the second section it is de
There is no room for construction on this subject. The statute is plain, that the original judgment shall not be any evidence against the defendants who were not served with process and did not appear in the suit in which it was rendered, of any thing except the extent of the plaintiff’s demand, after the liability of such defendants shall have been established by other evidence. [530] Such judgment therefore is not evidence of its own verity or existence for the purpose of establishing the liability of those who were not brought into court, or of changing the nature or character of that liability.
But the learned judge before whom this cause was tried; the
The case of Townsend v. Carman so frequently referred to, although decided in the court for the correction of errors, in December, 1830, was an appeal from a decision of the supreme
On the trial of the issue upon nul tiel record, the plaintiff offered the judgment record, upon which he had declared, in evidence, by which it appeared, that Goldsmith was in custody, [532] and that Marvin was returned by the sheriff on the capias in that suit, not found, and that judgment was rendered by default. On these grounds Marvin objected to the record as not evidence against him, which objection was overruled and Marvin excepted. There being no further evidence offered by
But the plaintiff disclaims the use of the judgment in establishing the demand against Baker, and insists that he established Baker’s liability by other evidence. To sustain his action he was bound to prove a judgment against Young & Baker; if he did not- prove such judgment by the record, how . did he prove it? It availed him nothing towards establishing that fact, that he gave evidence tending to show an account against Young & Baker. The judge before whom the cause was tried at once rejected that absurdity. In his opinion he says that “ the defendants were undoubtedly correct in holding that the plaintiff could not recover on this bond, on the mere proof of an open demand upon a contract against Baker & Young, or against Baker onlyand therefore to sustain this action, he seeks to give some effect to the judgment as against Baker. It is true that under the former statute, when the judgment was considered prima facie evidence of a debt against all the defendants named in it, whether they appeared in the suit or not, the party who had not appeared might, in an action of debt on the judgment' against him, rebut this presumptive evidence by a plea denying his liability for the demand upon which the judgment was recovered, and thus throw the burden [534] of proving his liability on the plaintiff. If the defendant succeeded in this plea, of course the judgment did not bind him. But if the plaintiff prevailed he recovered in an action of . deli on the judgment, the validity of which had been proved by
In this case there was no proof of any judgment against Baker, and therefore no proof of a judgment against Young & Baker. The plaintiff on suing out his attachment, claimed and swore to a demand arising on a judgment against Young & Baker, and the defendants, by the bond, only bound themselves' to the plaintiff to pay the amount due to him on account of the demand claimed and sworn to by him; it follows therefore, that the plaintiff did not make out a case to entitle him to recover on bis assignment of breaches of the conditions of the bond; and the judgment appealed from must be reversed for that reason.
It is admitted that this course of reasoning tends to the conclusion, that an action of debt can not be maintained on a judgment recovered under the statute relating to proceedings' against joint debtors, against a party who was not served with process, and did not appear in the action in which such judgment was rendered. This was the clearly expressed opinion of Mr. J ustice Bronson, in the case of Marvin & Goldsmith v. Kwmbel, and I think it was too firmly based upon general principles and the necessary construction of the revised statutes' to be shaken by any arguments founded on any supposed difficulty or inconvenience in the consequential change in the form' of actions. It is true that Mr. Justice Bronson was overruled' by Judge Cowen, with the concurrence of the chief justice, but I am not able to reconcile the opinion of Judge Cowen on this point with his decision on the other point in the case. On the other point he expressly decided, that an action of debt on a judgment recovered pursuant to the statute, which was answered1 by the party not brought into court, only by the plea of nul tiel record without any denial or pretence that he was not jointly liable with the other defendant, for the original demand [535]' on which the judgment was recovered, could not be sustained by the uncontradicted record of the judgment; that such record
For myself, I confess I have no inclination to stop the above course of reasoning at any point short of the conclusion, that such a judgment is in effect no judgment against the person who was not served with process and did not appear in the suit in which it was rendered. I admit that it is rendered against all the defendants named in the process in the same manner, or form, as if all had been served with the process, but I deny that it has any effect as a judgment against a person who did not appear, either actually or constructively, or that it is in any fair sense a judgment against him. The statute says in substance, that it shall have no effect against him as evidence ; nor shall any execution be issued upon it against his person or individual [536] property ; and the supreme court have recently decided that such a judgment did not even change a simple contract debt so as to take it out of the statute of limitations applicable
On the trial of this case, nul tiel record having been pleaded by Baker among other pleas, the plaintiff gave in evidence a record of judgment recovered by him against Baker & Young in the supreme court of this state, in the term of October, 1834, for $22,492,89, by which it appears that service of the process in the suit in which it was rendered was made on Young, but not on Baker, and that he did not appear in the suit. That the declaration was in assumpsit, containing the general counts, and that the judgment was rendered upon a cognovit actionem signed by Young in person. The plaintiff also gave evidence for the purpose of showing that Baker was a joint contractor as a partner with Young for the plaintiff’s original demand, for which the judgment was so recovered. One question made by the bill of exceptions is, whether the evidence thus given established the fact that the plaintiff’s demand, as against Baker, arose upon “ a certain judgment rendered in the supreme court of judicature of the people of the state of New- [537] York against the said Balter & Young in his favor," as is stated in his application for the attachment and recited in the bond executed by the defendants. If it did not, the judgment ap
2 R. S. 377, § 1, provides that “ in actions against two or more persons jointly indebted upon any joint obligation, contract or liability, if the process issued against all the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process;” and by tie second section it is declared that “ such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein; but against every other defendant it shall be evidence only of the extent of the plaintiff’s demand after the liability of such defendant shall have been established by other evidence.
The provisions of our former statute in relation to proceedings against joint debtors, (1 R. L. 521, § 13,) were essentially different from those of our present statute. They authorized a judgment against all of the defendants without expressly limiting its effect, except as to the execution to be issued upon it. The statute now, as we have seen, provides, that as against a defendant not served with process, the judgment shall be evidence only of the extent of the plaintiff’s demand, after the liar [538] bility of such defendant shall have been established by other evidence.” Under the former statute, our courts held that the judgment was prima fade evidence of a debt, when the defendant did not plead some matter going to the justice of the original demand. (Dando v. Tremper, 2 John. 87; Bank of Co
Marvin & Goldsmith v. Kumbel, (23 Wend. 293,) arose under our present statute. It was an action of debt upon a judgment recovered by Kumbel in the If. Y. common pleas, in December, 1830, against Marvin & Goldsmith, where the process for the commencement of the suit was served only on Goldsmith, and Marvin did not appear. Marvin pleaded, 1. Nul tiel record; 2. That at the time of the commencement of the suit in the common pleas, and at the time the judgment was rendered, and during the intermediate time, he was not a citizen, inhabitant or resident of this state; that the process was not served on him in the original suit; nor did he have any notice of, or appear in the suit. There was a replication, demurrer to the replication and joinder, upon which judgment in the common pleas was rendered for the plaintiff. On the trial of the issue upon nul tiel record, the plaintiff gave in evidence the judgment record, in which it was stated in the usual form, that Goldsmith was in custody, &c. and Marvin was returned by the sheriff to whom the capias ad respondendum was directed, not found. No other evidence being given, a motion for a nonsuit was overruled, to which an exception was taken. There was a verdict and judgment for the plaintiff, upon which error was brought and the judgment was reversed, on the ground that the plaintiff could not support his action upon the judgment against the defendant not served with process in the first suit, without showing his liability by evidence other than the judgment, under the plea of nul tiel record. It was held also by a majority of the judges of the supreme court, that after such a judgment is recovered the plaintiff can not recur to the [539] original cause of action, but that his remedy on such cause of action is in the form of an action of debt on such judgment; not on the ground, however, that such a judgment creates or furnishes evidence of any liability, but evidently for the reason
How then can it be maintained, that the plaintiff as against Baker, has a demand arising upon the judgment recovered against him and Young in the manner mentioned—which, it must be admitted, if respect is paid to the language or intention of the statute, created no obligation and furnished no evidence of liability as against him!
In my opinion a judgment thus recovered does no more as against the defendant not served with process, than to change the form of the remedy which before existed, for the recovery of the original demand against him, to a remedy in form upon the judgment. That the legislature had the power to do that, there can be no doubt, and as it is a convenient mode, although anomalous, for the recovery of the original demand from those of the joint debtors who were not, as well as those who were served with process in the first suit, without precluding any defence which would be available to those not served, if the n.ew suit had been brought in the former mode, giving the judgment no force or effect as evidence of the plaintiff’s demand as [541] against the defendant not served, I do not see any objection to allowing the statute to have that effect.
The plaintiff’s demand then, in fact as well as in law, arose as against Young upon the judgment, as that merged the original
Ruggles, McCoun and Paige, Js. concurred in opinion that the judgment should be reversed.
Dissenting Opinion
The affidavit of Oakley, on which the attachment was issued, all edges that John W. Baker and John Young were justly indebted to him in the sum of twenty-thousand dollars and upwards, arising on a certain judgment obtained in the supreme court of this state.
A majority of my brethren are of the opinion, that the joint indebtedness of these persons did not arise upon the judgment, and for that reason the decision of the superior court must be reversed.
The point decided assumes, (and in this we all agree,) that there was a judgment in favor of the plaintiff against Young & Baker, regularly obtained, according to the provisions of the act in relation to joint debtors, by the service of process upon Young alone. In the second place, that the recovery was for a demand, for which the defendants were originally liable as co-partners and that this appeared on the face of the record.
Thus situated, the plaintiff deposed first, that he had obtained [542] a judgment. The legislature have so denominated it. Secondly, that it was against both defendants; the statute declares that it “ shall be against all, in the same manner as if all had been served with process.” (1 R. S. 377, § 1.) Thirdly, that Young & Baker were indebted to him in the sum specified,
And first, the judgment mentioned was, in form and effect, a common law judgment against Young, who was served with process. (2 R. S. 377, §§ 1, 2.) It was more than an admission of record, that the defendants in that suit were jointly liable originally, for the cause of action therein stated. It concluded Young, and consequently Oakley, from thereafter alledging that Young & Baker were not, by virtue of that recovery, joint debtors by judgment. Oakley could not sue Young at law upon the judgment, without joining Baker. And if he had filed a creditor’s bill upon the judgment against Young alone, although he averred that he only was served with process, it would .be demurrable. (Com. Bank v. Meach, 7 Paige, 449; 4 John Ch. 568.) As regards Young, consequently, the original cause of action was merged in the judgment. “ This is true,” says Park, B. in King v. lloare, “ where there is but one cause of action, whether it be against a single person or many.” (13 Mees, & Welsby, 504.) “ No principle is better settled,” remarks another learned judge, “ than that a judgment once rendered, absorbs and merges the whole cause of action, and that neither the matter or parties can be severed, unless the cause of action is joint and several, which actions against partners a/re not." (9 Serg. & Rawle, 145.) The same doctrine was affirmed in Robertson v. Smith, (18 John. 480,) and in Penny v. Martin,, (supra,) [543] in this state, and is settled if any thing be settled, by an unbroken series of authority. So absolute is the merger, that equity will not relieve, where the parties not sued were unknown to the plaintiff, when the judgment was obtained. (9 Rawle, and 4 John. Ch. supra.) The original cause of action being
But it is said that the defendant not served may be sued on the original promises, where the proceeding is under this statute. But in Carman v. Townsend, (6 Wend. 210,) the doctrine of the cases above cited was applied to a judgment under the joint debtor act. The chancellor says “the judgment was a merger of the original indebtedness, so that no action could be sustained against either of the defendants on the original promises.” “ The action must be debt on the judgment.” This was in 1830. And in Marvin v. Kumhel, on demurrer to the replication to the second plea of the defendant, the same construction, in both particulars, was given to the present statute, and the decision of the court below, on those points, affirmed. (23 Wend. 302, 303.)
Again, the original promises were joint. The promise of Young was extinguished by the judgment. This has never been questioned. If that of Baker survived, so as to be the subject of an action, it must bind him, as sole promisor. But the legislature could not change the contract and make it joint and several, at the election of the plaintiff; nor have they attempted it. The statute is silent. Such an action is prohibited by the common law; nor is there a decision or a dictum in the reports that favors it, except a remark of Judge Bronson in Marvin v. Kumbel (23 Wend. 298,) which was at the time repudiated by his associates. The learned judge himself admitted, that “ the proceeding would be anomalous.” It certainly would be; and [544] not the less so, that the implication, on which it must rest, would be a violation of the provision of the constitution of the United States, against impairing the obligation of contracts.
The legislature have confined their action to the remedy. They have declared that the judgment shall be against all the joint debtors. The original contract as.to all is thus merged
Again, by the 2d section of the act the judgment is made evidence of the extent of the plaintiff’s demand against the defendant not served with process. If this judgment is evidence for any purpose, against Baker, in an action to charge him individually, it is because he is a party, and bound by it, to the extent prescribed by the statute. (1 Phil. Ev. 7th ed. 324; Cowen & Hills Notes, 918.) Ho answer has ever been given to this argument. It has been met by an assertion, (23 Wend. 297,) that the judgment is made by this provision evidence not against the defendant, but for him, to limit the recovery of the plaintiff. The assumption would apply, with the same force, to the first clause of the second section, which makes the judgment conclusive evidence against the defendant served with process. It is only necessary to transpose the parties. In the second place, it implies that the revisers intended to declare, by a solemn enactment, that the plaintiff was bound by his own judgment; and thirdly, that they blundered in this work of supereroga- [545] tion, by mistaking the defendant for the plaintiff.
But it is objected, that the liability of Baker must be proved by other evidence than the judgment, and therefore his indebtedness can not arise upon it. This objection was considered in Marvin v. Kumbel, and there overruled. (Id, 300.) It con
Under the former statute, the debtor not served with process could, by pleading specially, compel the plaintiff to prove the original joint undertaking. (6 Wend. 211; 23 id. 296.) On the issue thus formed, the judgment was not evidence for the plaintiff; and yet no one ever doubted that it was the cause of action, and that the plaintiff must recover upon it, in debt, notwithstanding. The present statute imposes this duty on the [546] plaintiff, in all cases where the validity or existence of the judgment is denied by the defendant not brought in : and this makes the only difference between this statute and the former one.
My conclusion is, that a judgment which the statute declares shall be against both the joint debtors, which has the force of a
Gray, J. concurred in opinion with Judge Gabdineb.
Judgment reversed.(a)