Cook, adm'r. v. Field, et. al.

Cook, adm’r. v. Field, et. al. 1. It is no defence to a suit on a note, that one of the defendants had been garnisheed by a creditor of the payee, and judgment obtained against him, without proving, also, that the judgment had been satisfied. 2. Such proof may be made in the action of assumpsit under the general issue. • Error to the County Court of Mobile county. THIS was an action of assumpsit commenced by F. ¡C. lilis, the intestate of the plaintiff in error, in the County Court ’ Mobile, on the 5th February, 1840, as the assignee of one C. Fisher, on a note made to him for one thousand dollars, by the defendants in error, and one A. Henderson, as to whom, the suit was discontinued. To a declaration in the usual form, the defendants pleaded, that at the April term, 1839, of the Circuit Court of the United States for the Southern District of Alabama, á certain firm, using the name and style of Cook & Townsend, recovered of one John Ellis and Samuel C. Fisher, a judgment for twenty-one hundred and ninety-two dollars, besides costs of suit; that the execution which issued thereon, being returned nulla bona, and a suggestion made that Stephen G. Field was indebted to the said defendants, he was summoned as garnishee to appear before the said Circuit Court on the fourth Monday of November, 1839, to answer, &c.; that the garnishment was served on him the 7th of May, 1839; that he submitted himself to the judgment of the Court, and that at the November term, 1840, of the Court, Cook & Townsend, by the judgment of the Court, recovered against him as such garnishee, the sum of twenty-one hundred and ninety-two dollars, besides costs. The defendants, also, pleaded non assum-psit. Issue was taken on the first plea, of nul tiel record, and as appears from the record, the cause was submitted to a jury, who found for the defendants. From a bill of exceptions taken in the cause by the plaintiff", it appears that the defendants, to maintain the issues, offered in evidence the record of the judgment of the Circuit Court of the United States, and introduced parol evidence to show that the judgment specified in the record was for the debt sued for in this action; to which evidence under the issue joined,' the the plaintiff objected; which objection the Court overruled, and permitted the same to go the jury, and the plaintiff excepted:whereupon, the Court charged'the jury, that'if they were satisfied from the evidence that there was a judgment against the defendant Field, for the debt, that they must find a: verdict for the defendants. The plaintiff then requested the Court to charge the jury, that as the action was by statute joint and several, they could under the circumstances of this case, find a verdict for the defendant Field, and against the defendant Marslead; which charge the Court refused to give, and' charged the jury that the verdict must be a general verdict, either for the plaintiff or the defendants; to which the plaintiff also excepted. To revise the judgment of the Court below, the plain*tiff- .brings this cause here, and now assigns for error, 1. That the issue of nul tiel record wac not disposed of by -the Court. 2. The matters of law arising out of the bill of exceptions.- Hale, for plaintiff in error,- cited 2' Sjarkie’s Ev.-78; Salo-mon v. Smith, 1 Saunders’ Rep. 207; note 2; 1 Peters’ Rep. 78; 1 Wilson’s Rep. 89;. 13 Mass. Rep. 148. B. F. Porter, contra, cited 13 Peters’ Rep. 151; SCow-en-, 1; 3 Stark. Ev. 1282; 1 Saund. 67, note; 3 Burrows, 1353; 1- Chitty, 473; 1 Phil. E-v. 224;-16 Johns. Rep. 136;-3 Cowen, 374; 5 Wendell, 161 ; 7 Porter,-128; 1 Ala. Rep. N. S. 108. [MAJORITY — ORMOND, J.] ORMOND, J. A recovery'of the debt sued for by a previous garnishment, may-' be either pleaded specially, or given in evidence under the general issue, in an action of assumpsit; it is unnecessary, therefore, to consider in this case whether the objection, that the Court, and not the jury, should have tried the issue under the plea of nul hiél record, is well taken, as the matter was submitted to the jury under the plea- of non assumpsit. The defendants having produced the record of the judgment against Field, one of the defendants, who had been summoned as a garnishee, at the instance of a judgment creditor of the assignor of the plaintiffs’ intestate, and proved that it was for the same debt now sued on, the Court charged the jury that if they were satisfied from the evidence that there was a judgment against the defendant, Field, for the debt sued on,- they must-find a verdict for the defendants ; to which the plaintiff excepted, and had previously objected to the evidence going to the j.ury. It becomes, therefore, necessary to consider whether1 the record offered, and the accompanying parol evidence, were sufficient to authorise ¿recovery for .the defendants. The judgment against the garnishee was rendered nisi, for failing to appear in obedience to the process ; and afterwards,’ upon the return of a sc%re facias, made final: it does not therefore appear from the record, that-the judgment against the garnishee was for the same debt sought to be recovered in this ac-tion.. There can be no doubt that it- was competent for the defendants, by parol proof, to identify the debt recovered by-the judgment against the garnishee, and show that it was founded on- the same indebtedness attempted to be enforced in this suit. It does not appear from the record of the garnishment, that-an- execution had issued upon the judgment against the garnishee, or that there was any proof to that effect, or that the judgment was satisfied. -That the judgment against the garnishee-unexecuted, will not- protect the garnishee when sued"by his> creditor for the same debits clear, both on principle and authority; for if an unexecutra judgment against the garnishee would bo a bar to a suit against him by the original creditor, it might happen that he would not be compelled to pay the debt at all, as the judgment of the attaching creditor might never be enforced. In the case of Robertson and wife v. Norroy, (1 Dyer, 83, a.)the custom of London was certified by the recorder to be, “ that-if a man sue- another before the Mayor, &c. and a third person is indebted to the plaintiff, in as much as the suit of the plaintiff is for, and by the custom of the law of attachment, the third person is condemned, and judgment given against- him ; notwithstanding the judgment, if no execution be sued out against the third person, the plaintiff may resort back to have judgment and execution against the defendant, who is his ¡principal debtor, arid he may also sue the third person for his debt, notwithstanding the judgment unexecuted,” &c. In Turbill’s case, (1 Saunders’ Rep.) 67. the custom was certified by the recorder, who describes the manner of summoning'one as garnishee, &c. and concludes by saying, “and judgment shall be, that the plaintiff shall have judgment against him (the garnishee) and that he shall be quit against the other (the original creditor) after execution sued out by the plaintiff.'1’ To the same effect, and nearly in the same, language, the law is laid down in Bacon’s Ab. 2 vol. 282, title, Customs of London. From these authorities, it appears very clear, that the plaintiff in attachment, by the custom of London, may' after obtaining judgment against the garnishee, omit to sue out execution, and proceed against the original debtor, in which event the defendant in attachment may proceed against the garnishee for his debt, and the unexecuted judgment will be no bar to his recovery. The suing out execution against the garnishee, is in effect, an election to take him for the debt of the original debt- or, and operates an extinguishment of the debt. The custom of London is the original of our statutory proceedings by attachment, with some slight modifications — one of which is, the plaintiff in attachment cannot have judgment against the garnishee until he obtains judgment against the defendant in attachment; whereas, by the custom of London, the plaintiff by making oath to his debt, and giving pledges to return the money in a year and a day, if the d afendant disproved the debt, obtained judgment against the garnishee. As, therefore, by our attachment laid, the plaintiff obtains a judgment against the defendant in attachment, as well as against the garnishee, on both of which he may have execution, it will follow that the mere suing out an execution against the garnishee, will not, in this State, as in England, by the custom of London, be evidence of an election to substitute the garnishee as his debtor, instead of 1 he defendant in attachment; and it will necessarily follow, that nothing but a satisfaction of the judgment against the garnishee, will absolve him from liability when sued for the debt by the original creditor. The Court, therefore, erred, in stating that the rendition of judgmenfalone would have that effect. The defence set up that the debt was paid by the garnishment of one of the defendants, would, if properly made out, be a defence to all. The statute, which declares that all joint contracts shall be considered as joint and several, does not affect this question. Although, by virtue of that statute, each of the makers of a note or bond may be sued separately, and several judgments obtained, there can be but one satisfaction, so a payment by one would be a payment for all, and the defence here set up, is nothing less than a compulsory payment of the debt by one of the defendants, which must inure to the benefit of all. ! Let the judgment be reversed, and the cause remanded.