THOMPSON v. JAMESON

THOMPSON v. JAMESON. An action of debt for £. 860 12 1, founded on a decree in chancery, is not supported by a decree for £ 860 12 1 with interest from a certain day to the day of rendering the decree. But the variance is fatal. Upon an attachment in chancery under the laws of Virginia, the record stated that "I T. in open court became security that I. H. (the absent debtor) shall perform the decree of this court if against him." Quere Whether an action of debt will lie against I T. for the amount decreed against I. H.? Error from the circuit court of the district of Columbia, sitting in Alexandria. Thompson, in the year 1795, being indebted to Hadfield, a person residing out of the jurisdiction of the commonwealth of Virginia, and Hadfield being indebted to Jameson and Brown as partners in merchandize, the latter obtained from the county court of Fairfax an attachment in chancery, in the nature of a foreign attachment, to stay the effects of Hadfield in the hands of Thompson, under an act of assembly of Virginia, entitled “ An act directing the method of proceeding in “ courts of equity against absent debtors, or other absent “ defendants, and for settling the proceedings on attach- “ ments against absconding debtors.” Revised code, p. 122, ch. 78. This act directs, “ that if in any suit which “ hath been or hereafter shall be commenced for relief in “ equity, in the high court of chancery, or in any ether “ court, against any defendant or defendants who are out “ of this country, and others within the same, having “ in their hands effects of, or otherwise indebted to, such “ absent defendant or defendants, and the appearances of “ such absentees be not entered, and security given, to the “ satisfaction of the court, for performing the decrees ; up- “ on affidavit that such defendant or defendants are out “ of the country, or that upon enquiry at his, her, or “ their usual place of abode, he, she, or they could not “ be found, so as to be served with process ; in all such “ cases the court may make any order, and require sure- “ ty, if it shall appear necessary, to restrain the defend- " ants in this country from paying, conveying away, or “ secreting the debts by them owing to, or the effects in “ their hands, of such absent defendant or defendants; “ and for that purpose may order such debts to be paid, “ and effects delivered, to the said plaintiff or plaintiffs, “ upon their giving sufficient security for the return there- “ of, to such persons, and in such manner, as the court “ shall direct.” It further provides, that the court shall appoint some day in the succeeding term, for the absent defendant to enter his appearance, and give security for performing the decree; and shall order notice to be published, &c. and if the absent debtor shall not appear and give such security, within the time limited; the court may proceed to take such proof as the complainant shall offer ; and if they shall thereupon be satisfied of the justice of the demand, they may order the bill to be taken as confessed, and make such order and decree therein as to them shall seem just, and may enforce due performance thereof, &c. In the record of that case in Fairfax county court, it is stated, “ that at a court continued and held for the said “ county, on the 18th day of June, in the year last men- “ tioned, came the complainants aforesaid, by their attor- “ ney, and thereupon Jonah Thompson, in open court, " became security that the said Joseph Hadfield shall perform “ the decree of this court, if against him; and on motion of “ the said defendant, Joseph Hadfield, by his attorney, “ the attachment is discharged as to the effects in the hands “ of the other defendants.” The court, at a subsequent term, on the 19th of November, 1799, decreed, that “ it “ having appeared to the satisfaction of the court, that “ the complainants bill hath been duly taken for confes- " sed, after his appearance by attorney, and giving secu- “ rity for performing the decree against him, the court “ doth adjudge, order, and decree, that the complainants “ do recover against the said Joseph Hadfield, the sum “ of eight hundred and sixty pounds, twelve shillings “ and one penny, sterling, (to be settled in Virginia cur- “ rency, at the rate of twenty per cent. exchange,) to- “ gether with interest on the same, at the rate of five “ per cent. per annum, from the 8th day of March, 1795, “ until the day of pronouncing this, decree, and also his costs “ by him expended in the prosecution of his bill here.” Hadfield having failed to perform this decree, and Brown, the partner of Jameson, being dead, Jameson brought the present action of debt in the circuit court of the district of Columbia, against Thompson, founded upon his responsibility as security for Hadfield’s performing the decree. The declaration was “ of a plea that he ren- “ der unto him the sum of eight hundred and sixty pounds, " twelve shillings and one penny, sterling, of the value “ of one thousand and thirty-two pounds, fourteen shil- “ lings and six pence, Virginia currency, equal to three “ thousand, four hundred and forty-two dollars, and for- “ ty-one cents, United States currency, which to him he “ owes, and from him unjustly detains; for this, that “ whereas,” &c. setting forth the substance of the proceedings on the attachment in Fairfax county court, “ and “ whereas afterwards, that is to say, at a court held for “ the said county of Fairfax, on the 18th day of June, “ 1795, at the county aforesaid, the said Jonah, in open “ court, became security that the said Joseph would perform “ the decree of the said court in the said suit, if against him. “ In which said suit such proceedings were had, that the “ said court of the county of Fairfax, on the 19th day “ of November, that is to say, at the county of Alexan- “ dria aforesaid, did adjudge, order and decree, that the “ said Robert B. Jameson and co. should recover from “ the said Joseph, the said sum of £. 860 12 1, sterling, “ (to be settled in Virginia currency, at the rate of twen- “ ty per cent. exchange,) together with interest on the same, “ at the rate of 5 per centum per annum, from the 8th “ day of March, 1795, until the day of pronouncing the “ said decree, and also their costs by them expended in “ the prosecution of the said bill. All which by the re- “ cord thereof, now remaining in the office of the coun- “ ty court of Fairfax, will more fully and at large appear. " And the said Robert B. Jameson, in fact avers, that “ the said Joseph has not in any manner performed the “ decree of the said court of Fairfax county, in the cause “ aforesaid made, in this, that he has not paid to the said “ Jameson and co. in the life time of the said Brown, “ nor to the said Jameson, who has survived the said “Brown, the said sum of £. 860 12 1 sterling, or the “ value thereof in Virginia currency, at the rate of ex- “ change in the said decree mentioned, with interest there- " " on as awarded by the said decree; which said decree, in “ form aforesaid, yet remains in full force and effect, not “ reversed or satisfied; by reason whereof, action accrued “ to the said Jameson and co. to demand and have from “ the said Jonah, the said sum of £. 860 12 1, sterling, of “ the value aforesaid. And the said Jameson further avers, “ that the said Brown, on the day of in “ the year departed this life, to wit: at the county “ of Alexandria aforesaid, whereby the said cause of ac- “ tion survived to the said Jameson. Nevertheless, the “ said Jonah the said sum of £. 860 12 1, sterling, of the “ value aforesaid, or any part thereof, to the said Jameson “ and co. in the life time of the said Brown, or to the “ said Jameson, since his death, has not paid, &c. to the “ damage of the said Jameson five hundred dollars, and “ therefore he brings suit,” &c. There was an office judgment at the rules in November, 1801, which was not set aside at the next succeeding court in January, 1802. At April term, 1802, the defendants counsel moved to set aside the office judgment on pleading nil debet. The court being divided on the propriety of that plea to an action founded on the record of a court of one of the states, the plea was not received, and a bill of exceptions was taken by the counsel for the defendant and signed by the judge who was against the admission of the plea. The pleas of nul tiel record and payment were then filed and issues made up, on which the cause went to trial. The verdict upon the issue of payment was in these words, “ we of the jury find for the “ plaintiff the debt in the declaration mentioned, and one “ cent damages, to be discharged by the payment of two “ thousand, five hundred and forty four dollars, forty nine “ cents.” And the defendant moved in arrest of judgment for the following reasons, 1st. Because the action is brought for sterling money, when it appears by the plaintiff’s own shewing in the declaration, that the original sterling debt has been changed by the decree of the county court of Fairfax, into the current money of Virginia. 2d. Because the plaintiff, in his declaration, declares for a sterling debt, and lays his damages in current money. 3d. Because the jury have found their damages in current money, and have fixed the sum in current money, at which the said sterling debt might be discharged. 4th. Because it doth not appear by the plaintiff’s declaration what was the nature of the defendant’s undertaking as security, whether it was by record, by bond, or by parols. 5th. Because the whole proceedings are irregular informal and erroneous. These reasons not being deemed sufficient by the court below, judgment was rendered for the plaintiff for “ £. 861. “ 12. 1. sterling, of the value of £. 1032. 14. 6. Virginia “ currency, equal to three thousand, four hundred, forty “ two dollars and forty one cents, United States currency, “ the debt in the declaration mentioned, and one cent dama- “ ges, by the jurors aforesaid, in form aforesaid assessed, “ and also his costs by him about his suit in this behalf “ expended, and the said defendant in mercy, &c. But “ this judgment (damages and costs excepted,) is to be “ discharged by the payment of 2544 dollars and 49 “ cents.” To reverse this judgment, the defendant below sued out the present writ of error. Swann, for plaintiff in error. E. J. Lee, and Key for defendant. Swann. 1st. The declaration does not shew any obligation on Thompson, upon which this or any other action will lay. 2d. If it does, it is not such an one as will support an action of debt. 3d. If an action of debt will lay, still this action will not, because it is brought for part of the debt only. 4th. The action is brought for sterling money, whereas it ought to have been brought for Virginia currency. 5th. If properly brought for sterling money, the court below ought to have rated the exchange. 1st. The record simply states, that “ the said Jonah “ (Thompson) in open court became security;” but does not state how; whether by bond, by parol, or by matter of record. It is only a record declaration that he became security. 2d. The record states, that he became security that Hadfield would perform the decree of the court, if against him ; and not that Thompson would pay the debt, or that he undertook to pay any sum of money whatever. Nor does it state that he became bound in any particular sum. It does not state that he undertook to pay the debt if Hadfield did not. There is nothing to support an action of debt. It is, if any thing, a collateral undertaking; and if any action will lay, it must be covenant. To support an action of debt, there must be a direct obligation on the part of the defendant, moving to the plaintiff, to pay a certain sum, or a sum which may be rendered certain. 3d. The declaration is for £.860. 12. 1. sterling of the value of £. 1032. 14. 6. Virginia currency, equal to 3442 dollars and 41 cents, United States currency. This is not the whole debt due by the decree. You must sue for the whole debt, or if you sue for a part, you must state the residue to be satisfied. The decree of the court of Fairfax was rendered on the 19th of November, 1799, and was, that the complainants recover against Hadfield the sum of £.860. 12. 1. sterling, (to be settled in Virginia currency at the rate of 20 per cent. exchange) together with interest on the same at the rate of 5 per cent. per annum from the 8th of March, 1795, until the day of pronouncing that decree, (19th November,) 1799, and also his costs by him expended in the prosecution of his bill. The debt was composed of the principal sum reduced to Virginia currency at 20 per cent. exchange, and interest thereon at 5 per cent. per annum, calculated from 8th of March, 1795, to the 19th of November 1799, and costs. But the declaration is only for the principal. It is therefore only for a part of the debt, and does not state the residue to be satisfied. A debt cannot be divided, and the reason of the law is, that a multiplicity of actions may be prevented. 3 Modern 41. Marsh v. Cutler. Cro. Iac. 498, 499, Pemberton v. Shetton. 4th. The debt was originally due from Hadfield in sterling money, but the debt due by the decree is a current money debt. The decree has changed it from sterling to currency. It is an express command that it shall be settled in current money, at a certain rate. It is no longer a sterling debt. If an action of debt will lay for it, it must be laid as a debt due in Virginia currency. 5th. But if it is a sterling debt, then the court below, ought, under the act of the Virginia assembly (revised code, p. 121. ch. 77. § 6.) to have fixed the rate of exchange. The verdict ought to have been simply for the sterling debt and damages ; but the jury have gone on and said that the debt should be discharged by the payment of 2544 dollars and 49 cents ; and the court have rendered judgment in the same manner, without fixing the rate of exchange. 6th The declaration states the decree to have been made on the 19th of November, but does not say in what year. This omission was fatal on the plea of nul tiel record. E. J. Lee, for defendant in error. 1st. The record states the obligation of Thompson in the very words of the act of Assembly. It is the highest obligation which he could have entered into. It is an acknowledgment on record, and is stronger than his bond. Its meaning is evident from the intention of the act of Assembly; and is simply this, that Hadfield should pay the money decreed to be due, and if he did not, that Thompson would pay it for him. 2d. To the objection that this is not such an obligation as will support an action of debt, the answer is, that it is in the nature of a recognizance in chancery, and an action of debt will lie on such a recognizance, 1 Esp. N. P.216. 3d. The case in 3. Mod. does not apply to the present. There the action was upon a judgment. Here it is upon the obligation or recognizance of Thompson. We have declared for as much as was due from Hadfield and no more. The obligation of Thompson was to pay what Hadfield should fail to pay. Our action is for this. The record of Fairfax court, which is made part of the declaration, shows how the residue was discharged. 4th. The court of Fairfax did not convert the debt into Virginia currency. They only fixed the principles on which the exchange should be made. The decree is for sterling to be discharged in current money at a certain rate of exchange. 5th. It is the province of the jury and not of the court to fix the value of sterling money. 1. Wash. 373. 378. Barnet and al. v. Watson and al. 6th Although the year of the decree is not stated in the declaration, yet enough is stated to render it certain. Key was to have argued on the same side, but on examination of the record of the decree in Fairfax, and comparing it with the declaration; and finding the decree to be for £.860. 12. 1. sterling with interest from a certain day to the day of passing the decree, and the declaration being only for the principal, he considered the variance as fatal. He had not before noticed accurately the words of the decree, but had supposed the interest did not stop at any certain day, but was, by the decree, to run till the time of payment. He did not understand that this point had been made in the court below, and therefore had not before examined the record with a view to it. The court gave no opinion upon the other points, but considering this variance as fatal, Reversed the judgment. [MAJORITY — The chief justice] The chief justice observed, that there was no clause in the declaration stating that Thompson undertook to pay if Hadfield did not, and therefore an action of debt would not lay.