Shirley v. Shattuck

54 Mass. 256 | Mass. | 1847

Shaw, C. J.

1. The first question is, whether a judgment against one of two joint obligors is a bar to an action of debt, on the original obligation, against another joint obligor. It seems to be useless to examine and review the numerous authorities cited in the argument; because we think the case is within the provisions of the revised statutes, intended, apparently, to remove doubts, fix the law upon the subject, and do away the effect of those authorities, so far as it is in conflict with them. By Rev. Sts. c. 92, §, 12, it is provided, that in a suit against several, on a joint contract, if one only is legally served, the suit may proceed to judgment against such one, without further proceedings against the others; and by § 13, if such judgment remain unsatisfied, an action on the same contract may be afterwards maintained against any of the other joint contractors, as if the contract had been joint and several. This is equivalent to an express enactment, that such prior judgment against one shall not be a bar to an original action against another joint obligor. It is a statute severance, and analogous to the case, where one joint obligor dies, in which a separate suit may be maintained against the survivor. If, therefore, the judgment relied on had been a judgment in Massachusetts, the statute would have been an answer to the objection. And the court are of opinion that a judgment in New Hampshire, which by courtesy is allowed to have, in most respects, the force and effect of a domestic judgment, can have no greater effect in barring an action in this Commonwealth. The court are of opinion that, upon this point, the decision of the court of common pleas was right.

2. Another question arises in this case, which was this: The defendant having pleaded the general issue, and filed a specification of defence, conformably to the present practice established by St. 1836, c. 273, the action was continued. At a succeeding term-, the defendant, by leave, filed another specification of defence, consisting of matter which occurred since the last continuance; to wit, the recovery of a judgment, as hereinbefore stated, in another State, against another party, on the same obligation, and relied upon such judgment as a bar. He also offered evidence, under his original specification of defence, of matters in bar. This was objected to. The court decided that such second specification of defence, and a reliance upon it, at the time, by giving evidence under ‘t, was in the nature of a plea puis darrein continuance, was waiver of his former plea, and that the defendant could not give evidence, under it, in support of his original matter in bar.

The court are of opinion that this was pressing the analogy of our present practice to special pleading, beyond its just bearing. It would, no doubt, be held, under the practice of special pleading, that a plea in bar, puis darrein continuance, is a waiver of all prior pleas of matter of fact. It is founded on the well established rule, that regularly, at common law, a party can have but one plea in bar; and if that is found against him, judgment is in chief. If it were otherwise, and he might have judgment to plead over, pleas would extend ad infinitum. Gould Pl. 373. This being the case, a plea since the last continuance, being a special plea, is of necessity a waiver of his prior plea, whether it be the general issue or a plea in bar. Bac. Ab. Pleas and Pleadings, Q,.

Whether a plea puis darrein continuance can be pleaded after a demurrer, and whether, if it can, it waives the demurrer, may be considered doubtful. In Martin v. Wyvill, 1 Stra. 493, it was said arguendo, by Eyre, J. citing Mo. 871, that this plea could not be pleaded after a demurrer; on which the other judges expressed no opinion. But this was opposed to the case of Stoner v. Gibson, Hob. 81. And see also Barber v. Palmer, 1 Ld. Raym. 693, and 1 Salk. 178. But without going more minutely into the rules of special pleading, the court are of opinion that the legislature intended, by St. 1836, c. 273, § 1, to give the benefit of any matter of valid defence under the general issue. The provision is that “ in every civil action hereafter to be tried, in the supreme judicial court or court of common pleas, all matters of law or of fact, in defence of such action, may be given in evidence under the general issue.” By § 2, courts are authorized to pass rules respecting notices to the opposing party ; but this does not vary the effect of the general issue/ The statute manifestly extends to all matters which may exist at the time of the trial, and may then be effectual in law to bar the action. Many such matters, as payment, release, accord and satisfaction, and the like, may first arise and commence after the action is brought, after it is entered, after plea pleaded and issue joined, and yet be a complete defence. The statute fully embraces and includes all matters in defence. The court are therefore of opinion that the defendant should have been admitted to show, if he could, the matters of defence, of which notice was given by bis first specification. This having been refused, the exceptions, for this reason, must be sustained.

Verdict set aside, and a new trial ordered.