1 Duer 1 | The Superior Court of New York City | 1852
Lead Opinion
I hold, myself bound by the former decisions of this Court, and" also fully concur in them, as to the right of the plaintiff upon the questions involved, except so far as I am constrained to follow what I may deem obligatory upon this Court, in' the recent decision in the Court of Appeals. That decision certainly does not settle that an action of debt, would not lie against Young and Baker upon this judgment; but leaves that an open question in the Court above, without disturbing the rule settled here in favor of the action. But it has settled against the plaintiff the question which his counsel now requires me to decide in his favor. It has settled. that the record now offered in evidence does not supply the proof that must be given in order to sustain his action, namely, that the demand which he seeks to recover arose upon a judgment. It may be doubted whether I ought to have listened to the letters that have been read, so far as they differ from the printed report, but even these letters show conclusively that five of the Judges arrived at the conclusion that the plaintiff’s demand, as against Baker, arose upon the original contract, and not upon the judgment, and that upon this ground they concurred in reversing our judgment and ordering a new trial. It therefore cannot be denied that the Court of Appeals has said that the evidence which I am now asked to receive ought to be excluded: It may be true that its members arrived at this result by different processes of reasoning, and that the reasons, which have been given when separately considered, are not entirely conclusive, and when compared, are not easy to be reconciled, but were such my own conviction, it is a conviction upon which, as a judge of a sub
on moving for a new trial, made and argued the following points :—
I. The plaintiff’s demand did arise on judgment as against both Young and Baker. 1. The plaintiff’s right to recover in this action is identical with his right to recover the demand claimed and sworn to against Young and Baker (2 R. S. 12, § 57, Pr. Mullett, J. in this case, 4 Com. 524). 2. It is the character of th| demand and not the evidence that is required to be stated in the petition, to give jurisdiction. (2 R. S. 3, § 3.) 3. “ Arising on a judgment rendered within this State,” means on any of the judgments authorized by statute to be rendered in this State, including a joint debtor judgment. 4. Whether the judgment of itself proves the demand upon it, has nothing to do with the question. The statute had a right to say, that an action might lie on the judgment, if certain other proof was made, and has said so, by providing for the force and effect of the evidence in such action. (2 R. S. 377, § 2. 11 Howard, 165, Ketcham v. Darcy, 7 Paige, 449.) 5. An action of debt does lie against both debtors upon the proof offered, Pr. Gardner, Gray, Jewett, and Paige in the Court of Appeals in this
EH. The Court of Appeals, in deciding this case, or rather in reversing the judgment, have held nothing, and settled nothing, to the contrary of either of the above propositions. 1. Ho opinion of the court was given in the case, because no principle was agreed on. 2. It was not the court, but five judges individually, who said the demand did not arise on judgment; and they said so, not because they agreed, but because though they disagreed, what the law was, as to an action of debt on the judgment arising as against the debtors, still two who said it did not, did not know that a demand arose when an action did. 3. The court might have said, “ Ho action arose or would lie upon the judgmentand if they had, that would have settled the matter; but it did not say so ; and only three judges did, out of eight; so it might have said “ an action of debt on the judgment does lie, by virtue of the statute; but still, it was not enough that the plaintiff could have maintained an action, in the form he swore to his demand, against the debtors, but he should have sworn to a demand on contract, though he proved one on judgment but it did not say so; Jewett and Paige alone said this; and it cannot be deemed immaterial whether three others concurred with them or not. The court did say, “ the judgment is reversed, and a new trial orderedand it said no more. This appears by the record and remittitur, which also show, that nine or more distinct points were raised and presented for the adjudication of the Court of Appeals, the decision of any one of which for the appellant would have caused the reversal. This record is the only authoritative direction to the court below. (Davis v. Packard, 10 Wend. 50 S. C., 6 Peters, 41, 7 id. 276;
IV. If necessary, we maintain, without hesitation, that the opinions of the five judges against the plaintiff are' so directly in the teeth of the law, that no court, from the Court of Appeals to a justice of the peace, should regard them as any authority whatever. 1. Bronson’s opinion is directly against the letter of the statute, which sanctions an action on the judgment, by providing for the effect of the judgment, as evidence in the
V. The plaintiff had a right to give any evidence which proved, or tended to prove, either issue joined; and the exclu-. sion of competent evidence for such purpose was erroneous, and entitles the 'plaintiff to a new trial. 1. To prove the issues formed by or upon the third, fourth, and fifth pleas to the second count, evidence of Baker’s joint liability with Young for the debt upon which the judgment was recovered, was all that was required; the exclusion of Young’s deposition offered to prove these issues was erroneous; and the plaintiff had a right to take his exception, and stop there. The court might dictate the order of evidence,to prove an issue, but had no right to dictate which issue should be proved first. 2. Under the second plea to the second count, the record, with other evidence of the joint liability of Baker, was admissible, even according to the opinions of two of the judges voting to reverse, and the exclusion of it was erroneous, and entitles the plaintiff to a new trial. 3. Under the issue formed by the sixth plea to the second count, the evidence offered was admissible (if any evidence was required), and the exclusion of it was erroneous.
YI. The plaintiff had a right to a verdict on all the issues he did or could prove, and a nonsuit was improper, even if one of the issues should have been found against him. The plea may have been bad after verdict, and on trial or bill of" exception the sufficiency of the pleadings will not be examined.
declined to reply, considering the decision of the Court of Appeals as conclusive.
The condition of the bond on which the suit is brought is, that the defendants shall pay the plaintiff the amount justly due and owing to him by John W. Baker and John Young at the time he became an attaching creditor, on account of any debt claimed and sworn to by him in his application for the warrant of attachment against Young and Baker.
The plaintiff’s petition for the attachment set forth that the plaintiff had a demand against Baker and Young, arising upon a judgment rendered against them, in his favor, in the Supreme Court. The affidavit of the plaintiff, annexed to the petition, stated that the facts set forth in the petition were true, and that Baker and Young were indebted to him in a sum specified, arising upon a judgment rendered in the Supreme Court against them, in favor of the plaintiff. In order to prove that he had such a demand against Baker and Young as is described in the condition of the defendants’ bond, the plaintiff read in evidence the record of a judgment against them, in his favor, in the Supreme Court, corresponding in date and amount with that described in the petition and affidavit, but which disclosed on its face that Baker was not served with process, and that he did not appear in the suit. It Was a judgment entered against two joint contractors, pursuant to the statute relative to suits against joint debtors, on service Of process upon one only.
The same evidence was given on the former trial in this court, and the defendants then objected that the plaintiff had not proved such a demand against Baker and Young as was claimed by him in his petition for the attachment. We overruled the objection, and our judgment having been removed to the Court of Appeals, it was there reversed and a new trial ordered. (4 Comst. 513.)
From the published opinions of the judges of that court, delivered on deciding the cause, as well as from the letters of certain of the judges read to us on the argument, it is perfectly clear a majority of that court decided that the record of judgment produced -in evidence at the trial did not, with the other
On the last trial, the plaintiff relied upon the same testimony, _ and no other, to maintain his suit.
Can we, in the face of the decision of the Court of Appeals, hold that the evidence proves this issue in favor of the plaintiff?
Were we at liberty to act upon our judgment, we should have no hesitation in deciding as we did before. Our opinion then expressed has been strengthened by the perusal of” the opinions pronounced in the appellate court. It is also undeniably true, that those opinions, concurring in a reversal of our judgment, are irreconcilable in reasoning, if not in principle, and that not more than three of the eight judges of that high tribunal have concurred in any principle applicable to the case.
But in our view of our duty, these circumstances do not relieve us from the effect of their decision. A majority of that court has pronounced a judgment, which must be, to us, the law of this case. It is a judgment clearly ascertained, directly upon the point in question; and although the five judges may have arrived at the conclusion by diametrically opposite reasoning, and on inconsistent views of the law, they have concurred in saying, that we erred in holding the record of the plaintiff’s judgment, in connexion with the other testimony, to be' evidence of a demand against Baker and Young, arising upon judgment.
We think we should be wanting in that deference to authority, and that respect which a subordinate court should always manifest towards a higher tribunal, if we should take it upon ourselves to decide this cause contrary to the result in which those judges concurred.
Yielding, therefore, to the force of a superior authority, we must affirm the ruling at the trial made in accordance with the decision of the Court of Appeals.
The motion for a new trial must be denied.
Duee, J. concurred.
Dissenting Opinion
dissented. This is an appeal from a judgment entered upon the direction of a single judge of this court. The action is brought upon a bond given pursuant to § 55 of 2 R. S. B. 12, to procure the discharge of an attachment which had been issued at the instance of the plaintiff on the 8th oí September, 1837, against John W. Baker and John Young as non-resident debtors.
The application for the attachment, and the affidavit verifying it, stated that Oakley had “ a demand for $22,492 ®q0 over and above all discounts arising upon a certain judgment rendered in the Supreme Court of judicature of the people of the State of Hew York, against the said John W. Baker and John Young, in favor of the said Charles Oakley,” and that Baker and Young were indebted to Oakley upon such judgment in the said sum over and above all discounts.
The bond bears date January 10, 1838, and is conditioned to pay the amount justly due and owing by Baker and Young, “ on account of any debt claimed and sworn to ” by each attaching creditor, with interest, costs, &c. The defendants pleaded, inter alna, as to the judgment nul tiel record. That Baker was not served with process and did not appear in the suit, and that the promises on which the judgment was recovered were the promises of Young alone, and not of Young and Baker jointly, and that Baker was not indebted to the plaintiff in the sum claimed or in any other sum. The plaintiff replied that the promises were made by Young and Baker jointly; and that they were indebted, &c.
On the trial the plaintiff produced'in evidence the record of a judgment rendered in the Supreme Court in his favor as plaintiff, against Young and Baker as defendants, upon promises made by them as partners. The judgment was rendered, and the record of it was signed and filed in October, 1834. The record showed that Young only was served with process, and that Baker did not appear in the suit. The plaintiff further offered to prove, in connexion with the judgment and independent of it, that the promises bn which the judgment was recovered were made by Young and Baker as partners, and then-liability to the amount recovered. The judge before whom the cause was tried, on the evidence being objected to by the defen
The main question presented is this: Has a person, who owns a judgment recovered by him, against two partners on promises made by them as such, in a suit in which only one was served and the other did not appear, and to whom the amount of the judgment is justly owing by such partners, a demand against them, arising upon a judgment, within the meaning of those terms as used in 2 R. S. P. 3, §§ 1, 3, and 4 ?
The act in relation to attachments against absconding, concealed, and non-resident debtors provides in §1, that the property of “ a debtor ” may be attached, first, “ whenever such debtor, being an inhabitant, &c., absconds, conceals himself, with intent to defraud, &c.; second, “ whenever any person not being a resident of this state shall be indebted on a contract made within this state, or to a creditor residing within this state, although upon a contract made elsewhere.”
It will be seen that the only cases in which §1 authorizes the issuing of an attachment against a non-resident, are thosé where he is “ indebted ” upon “ a contract.” This section specifies the class of cases in which an attachment may issue against any person. The language employed to designate them was undoubtedly designed to be as comprehensive as that of § 3, which declares by what creditors the application may be made. The latter section provides that it may be made by any creditor “ having a demand against such debtors personally, whether liquidated or not, arising upon contract, or upon a judgment or decree rendered within this State.”
§ 4. The application "must be in writing, verified by the affidavit of the creditor, in which must be specified the “ sum in which the debtor is indebted over and above all accounts.”
§ 55. The bond to procure a discharge of the attachment must be conditioned to “ pay to each attaching creditor the amount justly due and owing by such debtor to him, at the time when he became an attaching creditor on account of any ‘ debt ’ so claimed and sworn to by him with interest thereon.”
It is obvious from these sections that the persons who may attach, as well as those whose property may he attached, and the causes for which attachments may issue, are not expressed by words employed in a technical sense. The only non-residents made liable by §1 to attachments are those indebted upon “ contract,” while § 3 authorizes a person having a “ a demand” upon “contract” or “a judgment” to obtain an attachment; and § 55 provides that the bond shall he conditioned to pay the “ debt,” claimed and sworn to.
The language of § 3 also authorizes a creditor having a demand arising upon judgment, or decree, though unliquidated, if such a thing can and does exist, to obtain an attachment. The phrase “ whether liquidated or not,” upon all rules of grammatical construction, is as applicable to the words a “judgment or decree,” as to the words'“upon contract.” That one person may have an unliquidated demand against another arising upon judgment, cannot be denied. In suits in which, after a lapse of four days after the entry of a defendant’s default for not pleading, interlocutory judgment has been entered, or a judgment that the plaintiff recover his damages by reason of the premises, and that a writ of inquiry issue to assess and ascertain them, the plaintiff, from the timé of entering interlocutory judgment, may he said to have a demand arising upon judgment. This would probably he true in respect to the demand of a plaintiff prosecuted thus far; whether the suit was on a demand arising ex confractni, or ex delicto ; and it would he a demand unliquidated. And yet, in the supposed case, there is no judgment record to furnish evidence of liability; no action would lie on the judgment, and all the proceedings had, would at most show an adjudged liability upon the cause of action set out in the declaration, and per se, on the execution of a writ of inquiry, would be only evidence of the plaintiff’s right to recover nominal, or six cents damages. Graham Pr. 794, 798-9, 786.
In this case the plaintiff had a judgment, in form, against both defendants, recovered as prescribed by law, upon promises made
Some propositions may be deemed to be well settled so far as the judicial decisions of the courts of this state are concerned. One is, that where one or more of several joint debtors are sued, those sued may plead the non-joinder of the others in abatement, but are not 'obliged to do so. If they make no such plea, the plaintiff may recover against those sued, though it appears op the trial that the promises were made by them apd others jointly. But if the plaintiff takes judgment against.those sued, instead of submitting to a nonsuit and bringing a new- suit against all, the judgment extinguishes all right of actions against, and all liabilities of those not sued. This consequence follows, whether he knew at. the time or not that others were jointly liable with those sued. It is also settled that whenever the right to maintain a joint action against all upon the original cause of action is once suspended or lost, each and every of the joint debtors may set this up as a bar to a suit on the original cause of action, whether it was produced by the act of the party, or by operation of law at the instance and by the agency of the plaintiff. As to the first proposition, Robertson v. Smith, 18 J. R. 456; Gibbs v. Bryant, 1 Pick. 118; Penny v. Martin, 4 J. Ch. R. 566; Besley v. Palmer et al., 1 Hill, 482, are in point.
The second proposition is illustrated by the class of cases which hold that taking from one partner his specialty obligation for a partnership debt, merges the debt, extinguishes all remedies "against the partners jointly, and all liability of the partners
It has been held that releasing one of two joint debtors from a debt, extinguishes it as to both, and all liability of each, and that this result will follow against the actual intent of the parties, if the instrument be a technical release, though executed for the purpose, in fact, of making a separate compromise with one only, under the act of 1838, p. 243, and with a view of retaining the original liability of the others. (Bronson v. Fitzhugh, 1 Hill, 185; The Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461.)
It has been held that the arrest of one of several joint debtors on a ca. sa., and his subsequent discharge by consent of the creditor, extinguishes the judgment as to all the debtors. (Ransom v. Kirby, 9 Cowen, 128; Lathrop v. Briggs, id. 171; Yates v. Van Rensselaer, 5 J. R. 364.)
On principle and authority it is clear that a judgment recovered against one of several joint debtors extinguishes all liability upon the contract, and all and every right of action upon it against every party to it. In this case a judgment has been recovered against both Young and Baker in form. Its effect as a judgment, so far as Young is concerned, is the same in all respects as if he was the only party defendant in the action. He cannot be again sued on the original cause of action. If it be insisted that he can be, then a proposition is insisted upon, which is unsupported by any precedent or known decision, is in conflict with settled principles and a series of adjudged cases, and which finds no countenance in any practice known to the profession, or hinted at in any treatise, upon any branch of law or of practice. If, then, a creditor sues only one of the joint debtors, and takes judgment against him, he loses all claims and rights of action against the others. If he makes all parties to the suit, serves but one, and the others do not appear, and then takes judgment against only the one served, the judgment will be reversed for that cause. (Nelson v. Bostwick, 5 Hill, 37.) Unless, therefore, the creditor chooses to relinquish all right of action against some of the debtors, he must make all parties: if he omits to make all of them parties,
The proof made shows that the affidavit of the attaching creditor was true: that he had a right of action on this judgment, and was entitled to recover upon it the sum for which the attachment issued. He was none the less a creditor by judgment, and it was none the less true that he had a demand arising upon the judgment, because he had to prove other facts besides that of the recovery of the judgment itself, so long as in fact he had a judgment against both, on which an action would lie against both, and on which, as matter of right, he could show himself entitled to recover the sum claimed in his petition and affidavit to be due to him.
If the statutes existing prior to the enactment of the Bevised Statutes, the practice uniformly pursued to collect joint-debtor judgments, the evils arising under the construction given to prior acts, and by the Bevisers avowedly designed to be remedied by the Bevised Statutes by a section adopted in the very words in which they drew it, are considered, I think it will be obvious that they did not dream of changing the form of pre-existing remedies, but merely designed in an action on such a judgment to put the plaintiff as against the defendants not served or not appearing, to prove that the, cause of action on which the judgment purports to have been recovered, had in fact existed against all; and when that fact was proved to make the judgment itself evidence, but not conclusive evidence, as against such defendants, that the sum recovered was justly due, and as against those served to leave the judgment like any other judgment against a party who had been served with process, absolutely conclusive of his obligation to pay the sum adjudged to be due to the plaintiff.
The act of 1788 (2 Laws of N. Y. Greenl. Edit. p. 111, § 23) and the act of 1813 (1 R. L. 521, § 13), are precisely the same in substance, and, provide that “ in case judgment shall pass for
So far the Revised Statutes and the acts of 1788 and 1813 are in substance and effect the same : each and all of them require from the beginning to the end the same form of proceedings as in a suit where all had been served. Executions are in form against all, and must be. And on such executions, if § 4, of 2 R. S. 377, is to receive a literal reading, the property of the one not served may be taken to pay a debt for which he was never liable as a partner with any other defendant in the suit. By this section if A. B. O. and D. sign a joint bond (never having been partners) to secure the payment of A.’s debt, and B. only is served with process, and judgment is recovered, the execution to be issued, if B. and C. only are partners, may be collected by taking the property owned by B. and C. as partners and selling it out and out, to pay the judgment, whereas on a judgment against B. alone for his own debt, such a thing could not be done.
Even now,- in a suit against several on promises alleged to have been made by all as partners, and where only one is served, on proof of a partnership which would be good evidence of it as against the one served, but no evidence at all as against those
We have seen that the former statutes and prior acts, so far as the parts above cited bear on the point, provide for continuing the joint liability, in the same form against all as against either. What was at first in form as well as substance a contract by all, is converted by the peremptory requirement of the statute into a judgment in form against all. Neither the act of 1788, nor of 1813, declared whether a suit could be brought on the judgment against all, nor in an action on it against all, what should be its effect as evidence as against those not served with process, nor whether it should have any effect. In Dando v. Doll & Tremper, 2 J. R. 88 (in 1805), in an action on a joint debtor judgment, where the defendant not served in the original suit pleaded simply mol Uel record, the court held that the production of the record which was in form that of a judgment against all, and required by statute to be so, made out the issue and entitled the plaintiff to recover. The Bank of Columbia v. Newcomb (6 J. R. 98), was an action on such a judgment, and the defendant who was not served, pleaded that fact, and that he did not appear in the action. The Court held, “being a judgment regular in form, against both the defendants, an action of debt will lie upon it against both, and consequently the pleas are bad.” This was decided in 1810.
Taylor & Truss v. Pettibone (16 J. R. 66), decided in 1819, adjudged that in an action on such a judgment, the judgment was prima facie evidence of a debt, as against the defendant not served.
In Townsend v. Carman, (6 Cowen, 695), the court decided (in 1827), that “ if an action can be sustained upon such a judgment, it must be against all.” The “judgment is to be entered in the usual form, and so far as depends upon the act, it is to be followed by the usual consequences, with the restrictions
Such were the decisions upon the acts in relation to such judgments recovered prior to the time when the Eevised Statutes took effect. The revision was had, and the Eevised Statutes were enacted before the decision was made in Carman v. Townsend by the Court of Errors. The second section of the joint debtor act in force when these proceedings were commenced, declares that “ Such judgment shall be conclusive evidence of the liability .of the defendant who was 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.” (2 R. S. 299, § 2.) Of the extent of what demand? and what is the liability to be established by other evidence ?
What was the evil to be remedied, or doubt to be obviated, by this statutory provision ? Was it to be effected by changing the
The original note of the Revisers to this section states that it was enacted as drawn by them, and reads thus: “ The law on this subject seems rather unsettled, vide 16 J. R. 66; 6 Cowen, 697. The better opinion probably is, that the defendant not brought in, may contest the judgment, but this throws upon "him a very onerous burden of proving a negative. The above section (§ 2) seems calculated to prevent fraudulent combinations, and to give to a plaintiff all he ought to require.”
This note of the Revisers refers to decisions made in actions, brought on such judgments recovered under the prior acts. .Those decisions held, that the only mode of proceeding against all the parties to the original contract was by action on the judgment, and that the judgment was primé fade evidence of a debt against those not served, or in other words, that the record itself was prima fade evidence of their liability upon , it, being in effect as it was declared by it. They thought this was giving to it an effect unjust towards such defendants; they therefore proposed the section in question to abrogate this rule of evidence; not to deprive a plaintiff of his remedy by action on the judgment, but to compel him, in such action, to establish by other evidence than the record of the judgment, that
This plaintiff, then, had a judgment against all. The statute declares it to be a judgment! It is in the form required by statute. It is in the precise form in which judgments in like cases have been required by statute, since. Feb. 7, 1788, to be entered. From that day to the present all the courts of this state have held that an action will lie on such a judgment against all the parties, and no court has yet decided to the contrary. Ho judge or court has yet intimated a doubt that all the parties to the original contract are yet liable in a joint action of some form, and upon something. If liable in an action against all jointly, upon what can it be brought, if not upon the judgment? But one judge has ventured a reported opinion that they can be sued jointly on the original contract. In one of the printed opinions found in 4th Corns. 513, it is intimated that an action will lie on the contract against the party to it, who was served with process in the first suit, and against whom a judgment was rendered on the merits, which remains in full force and effect, in no way reversed or vacated. Ho one has intimated an opinion that the liabilities have been severed, and that some have become separately liable as judgment debtors and not otherwise, and others liable separately upon contract, and only upon contract. It is very certain that the statute has not declared that any such anomalous or absurd results shall be produced by the judgment authorized by it. It does not seem to be necessary to now give such a construction to it to preserve the original rights of either party intact, or to simplify forms, or promote justice. Such a construction will overturn every principle heretofore settled, deny every form of remedy heretofore pursued or allowed; and by applying it to suits which have been in progress for years, may defeat the most important interests, and work the most ruinous results without conferring the slightest benefit upon a single suitor in all time to come. -
Hence there is evidence that four of the eight judges held that an action would lie on the judgment. It cannot be said, then, that the court of appeals has decided that such an action will not lie. Judge Buggies is reported as having voted for a reversal. He gave no opinion. His letter of November 26, 1851, to the same attorney, concludes thus: “But if the result had depended on my vote, I should have wanted further time for consideration and reflection before I would have voted for a new trial. The ground, on which I thought the decision should have been placed, was this:—that the second section of the joint debtor act, so far as it makes the joint judgment evidence against the defendant not served with process, is in conflict with that part of sec. 6 of art. 1 of the constitution which declares that no person shall be deprived of his property without due process of law.”
All this shows that five of the eight judges did not assent to the proposition that no. action will lie on such a judgment. It cannot be said, then, that any such principle has been decided
The only inference fairly deducible from the reported opinions, is, that five members of the court, viz. Judges Bronson, Jewett, Mullett, Paige, and M'Coun, were of opinion that the plaintiif in this action did not show that he had a .demand against both Young and Baker, arising upon a judgment. If this is a just inference it is equally obvious, that two of the five, viz. Judges Bronson and Mullett, so held for the reason that they held that no action would lie against Baker on the judgment. That Judges J ewett and Paige, while dissenting from the latter proposition, so held, notwithstanding their opinion that an action would lie upon it. If Judges Bronson and Mullett would not so have held, had they agreed with Judges J ewett and Paige that such an action would lie, then it follows that the four concurred in a vote to reverse, and that the former two, as well as the latter two, did so for reasons which the other two repudiated. On whichever ground the opinion of Judge M‘Ooun was given, it makes at most a concurrence of but three votes upon any one specific' proposition, and the reversal by the appellate court did not settle a principle.
Judge Mullett, after ably and at length examining the previous and existing acts, and reasoning to the conclusion that
The Legislature have never been embarrassed to find words capable of expressing clearly their intention to provide that a contract might be extinguished as to one joint contractor, and yet that an action might be brought on it against the other, when they designed to do so. This was expressly enacted in the act for the relief of partners and joint debtors (Session Laws of 1848, p. 243, § 3). The amendment in 1845 (p. 410, § 2) provided for discharging a judgment of record as to such of the debtors as had compromised according to the provisions of the act of 1848.
The proceedings are simple, and the remedies to be taken and proof to be given are obvious, if no change of the pre-existing well settled law is to be deemed to have been made, except such as the second section of the act (2 R. S. 299) enacts. The judgment-record contains a declaration which sets forth a contract made by all the parties jointly, a breach of it, and the judgment of the law that the plaintiff recover against all the defendants a specified sum by reason thereof, and shows that Baker, one of the defendants, did not appear. In an action on such judgment, the plaintiff produces his record, which proves that he has a judgment in form against all, as he has averred in his second suit. It establishes conclusively the liability of Young; as against Baker he must go farther, and prove by other evidence the making of the contract by all, which is described in the record. When he has done this, he has established, as the statute prescribes, the liability of Baker, and his right to recover against hoth. Whether he must 'in the first instance give other evidence than the record of the extent of his demand, I will not stop to discuss. Ch. J. Bronson held that “ the whole extent to which the recovery can go must be
Of the very elaborate and able opinion of the Ch. J. it may justly be said, that if his premises are conceded to be well taken, that no action will lie on the judgment, his conclusion is a logical one; that the plaintiff did not have a demand arising upon judgment.
The error of his opinion, as I think, is .in his premises. He observes that “ 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.” I think in this he is mistaken. It may be granted that it is absurd to say that a party may have an action on a judgment which is no evidence of the defendant’s liability, yet if the Legislature see fit to provide, or the court of last resort to hold, that an action will lie on such a judgment, the plaintiff in such
If it be an absurdity, it is a legislative one, and in an age which vehemently complains of the existence of such absurdities, without number, it should not be made a bar to the administration of substantial justice. If an absurdity, it has one redeeming merit! To act upon it can by no possibility work injustice to a defendant. It deprives him of no defence, exonerates the plaintiff in no respect from the necessity of giving evidence either in kind or quality which would otherwise be required of him, and in no way diminishes a defendant’s chances of extinguishing his debts by the meritorious plea of the statute of limitations. (Bruen v. Bokee, 4 Denio, 56.)
Such being the effect of the law, I cannot understand the applicability to it of the remarks of the Oh. J., that “ that State must not boast of its civilization, nor of its progress in civil liberty, where the Legislature has power to provide that a man may be condemned unheard.”
Surely the whole head and front of legislative offending hath this in it and no more. It requires a party having a claim against debtors which he would prosecute to judgment when some are beyond the reach of the process of the court, to name all as defendants in the process; and when some have been served, to declare and state truly his alleged cause of action against all. If he establishes this, it gives him a judgment against all, and preserves the continuance of their joint liability by giving him a right to bring an action against all on the judgment. In such 'action, as against those who did not have a chance to be heard in the original suit, it requires him to make precisely the same proof of their liability upon the cause of action described in
One consideration of much force, as it seems to me, presents itself, in contemplating this act as it was up to the 1st of January, 1830, the decisions under it, and the act as it was amended - when it went into operation on that day. If the Legislature intended by § 2 of 2 R. S. P. 299, to abolish the remedy by action on the judgment, and compel a plaintiff to sue those not served, on the original cause of action, notwithstanding the judgment against those served, it would have been as natural, as easy to have said so, and to have provided that he might do so, and that in case a judgment was obtained and the money collected, such defendant should have all the rights to compel contribution by his co-contractors, which belonged to him, according to the nature of the original transaction between them. This the Legislature did not do. If the second section had read, “ such judgment, in an action upon it, 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,” it might be said to be an absurdity, or an anomaly; but it would have been one promotive of justice by the equity of its provisions, by the simplicity of the remedy, which was understood by all, and had been pursued for half a century, and yet would have declared nothing different from the understanding of the profession of it, down to the time when its true meaning and proper effect were thrown in doubt by the dissenting opinion in Mervin, & Goldsmith v. Kumbel. The whole effect of the statute, is to transform, so far as the form of the remedy is concerned, the original indebtedness on contract, into an apparent
On no fair principle of construction can it be said that the Legislature intended, by the act of 1830, to abolish the remedy by action on the judgment. From 1788 to 1830, the laws in force provided for entering judgments in the same form as they are required to be entered under the act of 1830. One species of apparent injustice resulted from the constructions given to the prior acts. It was not that an action on the judgment was sustained, or that the defendant'not served was compelled to pay a just debt. But it was that in an action on the judgment, recovered without his having an opportunity to be heard, the record was held to bej<prvrnd, facie evidence of Ms liability. That at least was the injustice pointed out by the Revisers, by a reference to the decisions that had been made. They proposed a section for the avowed purpose of obviating this one evil. The Legislature enacted it as drawn by the Revisers. That section said that such record should not be any evidence of liability, but that the plaintiff himself should establish it by other evidence. When establish it, or in what cases ? In an action on the original contract ? That he would be required to do if no statute existed, and no one is reported to have brought an action on the contract after having recovered such a judgment. It does not seem that such an action could have been contemplated by the Legislature. If not in an action on the contract, then in an action on what ? Obviously, as it seems to me, in an action on the judgment, a remedy then, and the only one then known—one adapted and appropriate to the form in wMch the apparent liability appeared, and an action, which, gs a member of the court of last resort remarked, in Carman v.
With such considerations in favor of the right to maintain the action—-with a thorough conviction that the Legislature intended to preserve that right, with the expressed opinion of four judges of the Court of Appeals that the action ydll lie, and of that of a fifth that the reversal should be placed on some other ground than that one will not lie, or that the plaintiff did not show a demand arising upon a judgment, it seems to me that this court is not only bound to decide that it will lie, but that it can find no justification in deciding to the contrary.
Do the reported opinions and other evidence alluded to of what actually was decided, satisfactorily show that the court, decided that the plaintiff had no demand arising on a judgment, irrespective of the question whether an action would or would not lie, or conceding that one would lie on the judgment? If they do show this with reasonable certainty, then it is the obvious duty of this court to consider that an established principle, and apply it to this case as it is now presented.
I can find nothing in the opinion of Judges Bronson and Hullett to justify the conclusion that they held or intended,to decide that a party cannot be said to have a demand arising upon a judgment, if he can maintain an action upon it in which he can recover the amount of the judgment. On the contrary, their arguments tend to show it to be their judgment that such an opinion would be erroneous. If this be so, then the case stands thus: Two hold that the grounds on which three voted to reverse are erroneous, and the latter that the judgment of the other two was based on a principle which is contrary to law. It seems to be quite apparent that the judgment was reversed without settling a principle, and that it is the duty of the subordinate court in such a case to decide according to its clear conviction of what the law is, after amatare consideration of the opinions given on the reversal, as well as of other adjudications upon the question to be decided.
It has always been considered that a decision made under such circumstances furnishes no guide for the re-trial of a cause or the judgment to be rendered after such re-trial, beyond the fact that for some reason or other the former judgment of the
It is quite obvious that Judges Bronson and Mullett held no action would lie against Baker on. the judgment, and that Judges Jewett and Paige held that the plaintiff had no demand against him arising upon the judgment, for the common and sole reason that the judgment itself was no evidence of Baker’s liability.
Oh. J. Bkonsoh says, p. 519:. “It is absurd to say that a party may have an action on a judgment which is no evidence of the defendant’s liability.”
Judge Mullett inquires, p. 535: “If an action of debt on judgment cannot be sustained by the undisputed record of the judgment, what will sustain it?”
Judge Jewett says, p; 541: “The plaintiffs demand then, in fact as well as in law, arose as against Young upon the judgment, and is conclusive evidence as against him of his liability as adjudicated.”—As against him (p. 540), “by the judgment a new debt is created, and the old demand is thereby merged.” “ As against Baker it arose upon the original contract, as the judgment is not any evidence against him of his liability to the plaintiff.”
Judge Paige says: “ The judgment confessed by Young was not, in my opinion, evidence of a demand against Baker pérsonally.”
That the judgment was no evidence of Baker’s liability to the plaintiff cannot be doubted, for the reason that the statute declares it shall not be. But why may not a plaintiff be fairly and justly said to have a demand against another arising on judgment, notwithstanding this, if he has a judgment authorized and denominated such by statute, the amount of which is justly owing to him by all the parties against whom it is rendered, and if by law he may sue on such judgment, and by law give evidence which will establish the liability of all to pay it by reason of the matters alleged in it? Is the distinction taken by those who" hold that in such a case" he has no demand arising on judgment, one of substance calculated to promote the ends of justice, and preserve substantial rights, or is it one of form,
The interpretation given to the words “ arising upon,” by those who deny in such a case the existence of a demand arising upon judgment is, that they mean the same as the expressions “ originating or proceeding from” the judgment, and that only, and that no other meaning more favorable to the plaintiff can fairly be given to them. With the most respectful deference I submit that this is hypercritical^ and should be admitted to be so by every one who holds that an action will lie, and a recovery may be had upon such a judgment upon giving certain evidence prescribed by the statute which authorized the judgment. One of the definitions of “ arising” is “ appearing,” and one of the definitions of the verb “ arise” is “ to appear or become known, to become visible, sensible, or operative.” (Web. Unab. Dic. 68.)
The plaintiff had a judgment against, both, which set forth promises made to him by both jointly, the non-payment of the sums promised, and that they amounted to the sum for which the judgment is rendered. The judgment is conclusive evidence against Young, that the facts alleged are true, and that he is liable by reason thereof and of the recovery to the amount of the judgment. In point of fact Baker is also liable, irrespective of the recovery, to the same amount, by reason of and upon the liability described in the record. The plaintiff has a just claim or demand against , both, upon and by reason of the alleged facts, appearing, or made known or, visible upon the record. Is not the plaintiff’s demand one “ appearing” upon, visible upon, or which becomes known upon the record of the judgment ? It does not originate from or upon the judgmént. But it appears upon it as against all, and may be collected by action upon it against all! It is only in a technical sense that it can be said to originate upon the judgment even as against Young. The foundation of his liability is contract, and the judgment adjudicates that he made the contract, and is liable by reason of it, and for a breach of it, to the amount of the judgment.
When I speak of the justice of the plaintiff’s demand, I of •
How much less did the plaintiff state in the application which he made ? He said he “ had a judgment recovered by him as a plaintiff, against Young and Baker as defendants, in the Supreme Court of this state, for the sum of $22,492^. That that amount was due to him over and above all discounts, and he had a demand against the two, of that sum arising on this judgment.” He did not set out the judgment, nor state whether it was one recovered in an action on tort, or upon contract, or whether one only, or both were served with process. That was apparent on the face of the judgment referred to. It had been the statute law of this state ever since 1Y88, that a creditor might have a judgment against two on. a contract made by them jointly, whether both or only one of them was served with process. Baker knew (assuming the facts offered to be proved as true) that he and Young were indebted as
On the. facts offered to be proved by the plaintiff, I think he is entitled to recover the amount claimed: the merits of the case commend it to the favorable consideration of the court: Baker and Young justly owe him the amount claimed: it is a claim on which, and they are persons against whom, an attachment might rightfully be issued: one was issued in conformity with the provisions of the statute, and their property was seized by it by a proper officer: they .procured, the attachment to.be discharged, and obtained a restoration of their property .by procuring sureties to give a bond in which they agree to pay whatever the plaintiff in a suit to be brought on it against them could prove to be due on this claim. He brings a suit against them on this bond, and offers to prove his claim and the amount 'due him. The sureties object, and say to the plaintiff, your application for
Two of those who voted to reverse do not express an opinion that a plaintiff has not a demand arising upon a judgment, upon which he can maintain an action against both, and recover from all the partiés to it, the whole amount of it. Other two of them express the opinion that he has.
A more careful examination of the act under which the attachment was issued, will satisfy any one, as I think, that in cases arising under it, the rules in relation to variances in suits at common law have no application; that the statute is satisfied by such a statement of the demand, as shows that it arises ex cont/ractni and not ex delicto, and by such a general description of it as will fairly apprise the debtor for what the attachment was issued.
All that the statute specifically requires to be stated in the application is, “ the sum in which the debtor is indebted over and above all discounts, to the person in whose behalf such application is made, and the grounds upon which the application is founded.” (2 R. S. P. 3, § 4.)
“The facts and circumstances to establish the grounds on which such application is made, shall also be verified by the affidavits of two disinterested witnesses.” (Id. § 5.)
By the construction uniformly given to thife statute, it has been held sufficient that .the affidavit of the witnesses shows merely the non-residence of the debtor, when he is proceeded against on that ground, and that it need not prove the existence of the debt, or anything in relation to it, nor the residence of the creditor. Neither need it be stated either in the application or affidavit where the contract was made, when the application states, as it did in this case, that the applicant resides . within this state and the debtors out of it, and that the attachment is sought on the ground of such non-residence. (Staples
It has been usual, and deemed sufficient to satisfy the requirements of the statute, to simply state that the defendant was indebted in a sum named, over and above all discounts, “ upon contract,” without stating the terms or even the nature of the contract. All the reported cases furnish evidence that this is so, and it does not appear from the report of any case, that the jurisdiction of the officer granting an attachment, or its validity, has been assailed on that ground.
No more in that respect appears to have been stated in the application in Staples v. Fairchild (4 Coms. 44), or in the matter of Brown (21 Wend. 316.)
Is it necessary to state more in the application than that the applicant has a demand against the debtor, that it arises ex contracta, and not ex delicto f Is it necessary to otherwise state the nature of the indebtedness, than to state enough to show affirmatively that it arises ex contracta ? Sections 3 and .4 were not supposed or designed by the revisors to be a change of the previously existing statute in that respect. (3 R. S. P. 613, § 3 Rev. Notes.) Section three of 2 R. S. P. 3, is in no respect.different from § 1 of 1 R. S. p. 157, except that the latter required the applicant to simply state that the person proceeded against was “ indebted to him” in a sum to be named, and except also that 2 R. S. declares that a person may apply who has a demand arising on contract, or upon a judgment or decree rendered within this state. These words, as the notes of the Revisers suggest, are merely declaratory of the law, as it was construed and applied in 3 Caines R. 323, Lenox et al. v. Howland et al. In the latter case (decided in 1805) the court held that an attachment would lie whenever the liability originated in contract, notwithstanding that particular damages sought to be recoved, might have resulted from negligence in the execution of the contract, and that in an action against the debtor it might be necessary to declare for a misfeasance or nonfeasance. The court said, “ the law is remedial, and should be construed to embrace as many causes of action as possible.” I will not pause here to inquire why then may not a party properly say he has a demand arising upon judg
It was the design of the act •“ to place the property of a debtor in trustees for the payment, not solely of debts in the legal acceptation of that, term, but of every demand contracted against his estate, as well those due to the attaching party, as to others, and in like manner to give the trustees a remedy as broad' against third persons. If we once begin to refine and make nice distinctions on this subject, no one can say where we shall land. The act will soon be repealed, or become a dead letter.” (S. C.) ■
The spirit and doctrine of this decision are, that the act is remedial, and is to be liberally construed to aid a party, having a demand against a debtor, to collect it. That the word “ demand,” the one word in § 3 of the R. S. is not synonymous with debt in the legal acceptation of that term. That the act should be so construed as to embrace as many cases as possible.
I am not aware that subsequent cases have repudiated or questioned the doctrines or spirit of the decision made, or the views expressed in Lenox v. Howland. If the considerations urged in that case ought justly to influence in deciding this, then it would seem to be not only proper, but a duty, to so interpret the phrase a “ demand arising upon judgment,” as to embrace every case of a “judgment” known to the law as such and by that name, on which a party can bring an action, which is defined to be a “ legal demand of one’s right,” and make a just claim upon it, or through it, or by reason of the matters alleged in it, appearing from it, or disclosed by it, no matter by what evidence the justice of the claim, or the fact of the indebtedness or the extent of it is to be established. Especially should such an interpretation be given in behalf of a plaintiff in a judgment, which the law coerced him to take in the precise form in which .he did take it, under the penalty of forfeiting all claim against the debtor not served, if a judgment should be perfected against those only who were served. If it be borne in mind, that the only persons against whom sections 1 and 2 authorize an attachment to be issued, are therein described and declared to be “persons indebted on contractit will be
According to the views of one eminent judge, of the position and rights of a plaintiff who has recovered a judgment under the joint debtor act, the most appropriate description which he could give of his demand would be that “ it arose upon a judgment” as to one, and “ on contract,” as to the other. Jewett J. p. 54. Every judicial officer- except one who has been obliged to v express an opinion upon this act, has declared that as to the debtor served, the original cause of action was extinguished, and as to him, his liability is one arising “ upon the judgment,” and upon that exclusively. Bronson Ch. J. 4 Coms. 520. The
Oh. J. Bronson, however, solves the difficulty, not by allowing some form of remedy sanctioned by the courts through a series of years; not by invoking and making a new application of a principle just in itself, or conceded to be so; not by giving effect to any avowed purpose of the Revisers, or any supposed intention of the Legislature; not by construing the act to remedy any mischief incident to the former statute, or to obviate any complaint made against it or judicial construction put upon it, —but by the novel and bold proposition that “ 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 will 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.”
It seems to me a perfect and respectful answer to this to say: The joint debtor act does indeed create an anomaly in the law, as in case of persons jointly indebted it allows, a judgment against all, when process has been served only on some of them. But it allows no injustice or inconvenience to either party in
' Ho one will pretend that a single attachment can be issued against two jointly, when one is indebted exclusively upon a judgment against him alone, and the other is exclusively indebted upon a contract and upon that only. To authorize an attachment against two, there must be'a" contract made by the two jointly, or a judgment against both. In this case there is a judgment against Young and Baker on a contract alleged in the record to have been made by them jointly. Unless the
The legislative interpretation and understanding of the joint-debtor act of 1830, as evidenced by subsequent acts, supports and proceeds on the idea that an action would lie on the judgment, and that the party not served, on proof of his original liability, would be as much bound by the judgment, as the party served with process in the suit in which it was rendered. The code of procedure, as first enacted, provided that in an action against several persons jointly indebted upon a contract, the plaintiff “ may proceed against the defendant served, in the same manner as at present, and with the like effect, unless the court shall otherwise direct.” (Laws of 1848, p. 520, § 115, sub. 1.) That when such a judgment shall be recovered, those who were' not originally summoned to answer the complaint, “ may be summoned to show cause, why they should not be bound by the judgment in the same manner as if they had been originally summoned.” (Id. 328.) The summons “shall describe the judgment,” and require the defendant to show cause in twenty days, and shall be accompanied by an affidavit that “ the judgment had not been paid” and shall specify the amount due thereon. (Id. § 330,' 331.) The party summoned may by answer “ deny the judgment, set up any defence arising subsequently, and he may also make the same defence which he might have originally made to the action (except the statute of limitations). (Id. § 333.) The words in parentheses were not a part of the Code of 1848, but in the amendment made in 1849, were added to § 379 (Laws of 1849, p. 689),-and are retained in the amendments tirade in 1851. (Vide § 379 of Code as amended in 1851.)
The Code of 1849 (§ 136, sub. 1) has precisely the same provision as to the form and effect of the judgment as § 115 of
While this proceeding to summon the party to show cause why he should not be bound by the judgment, treats the judgment as the debt, demand, br liability, which is to be enforced, the statute providing for it gives greater effect to a joint-debtor judgment, than the act of 1830. The party not served is not to be sued on the original cause of action. He is not to be proceeded against as a party indebted on contract, and cannot be. As the Code provides “ that no action shall be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, without leave of the court on good cause shown on notice to the adverse party (Laws of 1848, p. 510, § 64, and Code of 1851, § 81), it was therefore necessary that some provision should be made, by which a plaintiff having a joint-debtor judgment might proceed as a matter of course and of right to enforce it against the party not served. That proceeding is descriptive of the effect of an action under the former system upon the judgment. The purpose of that was to establish the fact of the defendant’s obligation to pay the judgment, and the effect of a recovery was a legal adjudication that such liability existed and must be satisfied.
Under the proceedings prescribed by the code the defendant not served is summoned to show cause why he should not be bound by the judgment, in the same manner as if he had been originally summoned. He is not to be sued on the contract; the summons “ shall describe the judgment,” and not the ori
Suppose a plaintiff, having a joint-debtor judgment, recovered in a suit commenced since the Code took effect, should apply for an attachment against the defendants, as non-residents, on what should his application state that his demand arose? Might he not, and must he not, if he would be technically accurate, state that he had a demand arising upon judgment ? The only thing upon- which he can bring the party not served into court, is the judgment. The debtor is to be called in to show why he should not be bound by it, and adjudged to pay it. If a party has a judgment, which, upon facts existing and susceptible of proof, the law declares the defendants hable to, and which the court will adjudge they shall pay, has he not as emphatically a demand against them, arising upon judgment, as it can be said that a plaintiff has one arising upon contract, who owns a contract, upon which the law will hold the other parties to it bound by it, and which the court will coerce them to perform ?
Can it be possible, if this is so, that a plaintiff in a joint-debtor judgment, recovered under the act of 1830, which he can show all the parties defendants are hable in justice and equity to pay, has not a demand against all arising upon judgment? From 1788 to 1830, it is conceded that a plaintiff, having such a judgment, had such a demand.
A plaintiff, recovering such a judgment, in an action commenced since the first of July, 1848 (Laws of 1848, § 391), has sneh a demand. The form of a joint-debtor judgment in
The _ simple proposition involved in this case, when stripped of all extraneous 'considerations, is merely this, and no more: Is a plaintiff in a joint-debtor judgment, recovered under the act of 1830, which each of the defendants is justly liable to pay, and amounting, with interest, to some fifty thousand dollars, to be turned out of court with a loss of his demand, and amerced in costs, because, in stating what Ms demand was, he said it arose upon this judgment?
Has a plaintiff, who has recovered such a judgment against two joint debtors, regularly in all respects, as provided by statute, one wMch the statute calls a judgment, which is wholly owing and unpaid, one on which he can sue and recover from both the whole amount of it, a demand against both, “ arising upon judgment,” witMn the meamng of those words, as used in 2 R. S. P. 3, § ,3 ? TMs statute took effect at the same time as 2 R. S. P. 299, §§ 1 and 2. Within the meaning of those words, as used in the former statute, can it make any difference by what evidence the liability is to be established ? Whether the record is to be conclusive, prima facie, or no evidence of such liability, so long as the liability exists in fact and in law, and can be established by evidence allowed by law? By whatever evidence the liability may be established, may it be fairly and reasonably said that such a plaintiff has a demand against the two, arising upon a judgment ? That is the grave question, the ultimate decision of wMch must determine whether a plaintiff thus situated, with such a claim, conceded to be just and unpaid, is to lose his debt or recover it. By the decision to be made, the wisdom and regard for substantial rights with wMch justice is administered by the courts of the State of Hew York, are to be vindicated. An affirmative answer maintains important and conceded rights, secures to the plaintiff the payment of a large and (on the proof offered) a just debt, deprives the defendants of no defence, subjects them to the expenses of no new or intricate proceedings or remedies, embarrasses them by no surprise, no new construction of a statute, or by any departure from familiar and settled practice,
A negative answer deprives á plaintiff of the payment of a large and just claim, after his right to collect it has been proved, by abolishing a remedy, sanctioned by a long series of deliberate and well considered adjudications; by overturning a practice so long pursued, that it was declared twenty years ago to be too well settled to have the right to follow it called in question; and by a grave judicial decision that the words, “ a demand arising upon judgment,”, cannot be satisfied with proof of any thing less than of a demand originating solely and exclusively from a judgment which is itself the liability and the sole evidence of such liability. This answer is to be given, if given at all, with the fact conceded" that .a plaintiff may have, and that this plaintiff has, a judgment—provided for, required, and declared by statute to be a judgment—on which, and the facts stated in it, both Young and Baker justly owe him the whole amount which he claims to recover, and that the facts stated in it are true in manner and form, in spirit and in substance, as they there appear and are set forth. ■ ■ I think the plaintiff, within the fair meaning- of the words as used in the statute under which his attachment was issued, has such a demand as was set forth and stated in his application'; that on the evidence given and proffered he was entitled to recover; and that the judgment of the special term should be reversed, and a new trial ordered.
■ My. brethren, upon consideration, fully concur with me in the view of the law that I have taken, and that no principle in conflict was settled by the Court of Appeals on the ■ reversal of the judgment heretofore recovered by the plaintiff in this court, in this action, notwithstanding this, they think that a second judgment should not be allowed on. the evidence on which the first one was recovered, although they think the plaintiff entitled to it by law, and that no principle adverse to his right to it has been determined by the court of last resort.
Under such circumstances, I do not see why it is- not the duty of a court required to render judgment between the parties, to render it in conformity to its clear conviction of the law, or in what respect it is discourteous to a superior tribunal to so
