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the title was shown to be in McNeil.

2. The judgment in favor of Hinde in the circuit court, and
the hab.fac.poss., were a complete defense to McNeil.

3. The receipt of Haggard showed an accord and full satiit-
faction for the trespass.

Brushy for the plaintiff.

Leonard^ for the defendant.

By Court, Collet, J. It is a general rule that the judgment
of a court having jurisdiction of the subject-matter and of the
parties, is a plea at bar/ and as evidence conclusive between
the same parties or privies, in any action afterward prosecuted
for the same matter by either against the other. So that no
matter once litigated and determi^.od by competent authority
can, in general, again be litigated between the same parties or
their privies. To this rule, in our law, we remember but one
exception, which is that a judgment in an action of ejectment
does not prevent the parties from retrying the same matter in
another action of ejectment. Judgments are, many of them,
liable to be reversed for error; and judgments in ejectment aa
liable as others. By reversal a judgment is made void, and
the matters litigated in the case reversed, again become open
for litigation between the same parties. A judgment in eject-
ment is also liable to be made void by the party against whom
the judgment is rendered, prosecuting another ejectment
against him who obtained it, and recovering against him. This
second judgment makes void the first. But until a judgment
in ejectment is made void by one of these methods, it is as
decisive and conclusive between the parties and their privies aa,
to the right of possession of the premises for the time laid in
the declaration, as a judgment in any other action is, as to the
matter litigated in such other action: 1 Stark. Ev. 191, 192, 208;
2 Stark. Ev. 645, 546; 13 Johns. 234; 4 Binn. 359.

The recovery of Hinton and wife in the ejectment against
McNeil was decisive of their right of possession. McNeil haU
not recovered the premises in another ejectment, nor was the

1. This plmuw should hsv>» twum wHMMti aa foiinwa* •• ia. aa a plea, %. btf; and, tM airl*
fence, couclualve," etc

Digitized by


318 HiNTON V. McNeil. [Ohio.

jadgmentof Hinton and wife reversed; he could not, therefore,
relj upon his title. It is a general rule, that in trespass the
defendant can defend himself by showing title to the premises
in himself; but if that title has before been litigated between
the same parties, and adjudicated by a court having jurisdic-
tion, it can not again be litigated between them while that
judgment is in force. In debt, the defendant may prove a
counter debt as offset, or he may prove payment; but if the
matter produced as offset or payment' has been before litigated
between the parties, and determined on, and the judgment
unreversed, it will be rejected.'

As to the second ground, when a person claims the right to
possess a tract of land which is in possession of another, the
law gives such person the action of ejectment, in which his
right is tried; if be shows that he has the right of possession,
judgment is rendered for him; he then has a right to have an
habere faciaa poss., commanding the marshal or sheriff, the
executive ofiBcer of the court, to remove the defendant from the
promises recovered, and put the plaintiff in; when in, he has
gained the object of his suit, and government or the law will,
in that suit, do no more for him. If he is afterward disturbed,
he must resort to another action. He can not have another
execution: 2 Wheat. Selw. N. P. 565. If after the judgment
the defendant leaves the premises, or the lessor can take pos*
session of them peaceably, he may do so without execution,
and he will be protected by his judgment as he would have
been had he been put in on execution by the proper officer.
He has as fully got the object of his suit: 13 Johns. 234. The
execution and the officer were unnecessary, as there was no
objection or resistance to his taking possession.

When he has obtained possession he can not afterward have
an execution : Adams on Eject. , by Tillinghast, page 312. When
the lessor is in without execution, as he has precisely the same
rights, he is protected by his judgment to the same extent, why
should not the effect be the same ? Why should he after have
an execution? The defendant, in either case, has the same
right to commence an action of ejectment against the lessor,
or him whom he puts into possession, and a recovery in the
second action against the.lessor would make void, as has been
before said, the first judgment. If, where there had been no
execution on the first judgment, one could still issue, it would
defeat the effect of the second recovery. Hinde, the lessor,
after his recovery in the circuit court, conveyed the premises to

Digitized by


Deo* 1832.] Hintom t;. McNeil. 319

McNeil ia fee. McNeil afterward took possession by virtae of
this oonvejanoe, and was thereby clothed with all the right of
Hinde by virtue of this recovery. The action of ejectment was
afterward commenced against McNeil by Hinton and wife, and
a recovery had against him. This judgment, if Hinde had been
made a party to it, would have made void the judgment of the
circuit court, as to these premises; or if he had aliened to McNiel
with warranty, and had had notice of the suit, he might have made
himself a party, and was bound by the judgment as though he
had been a party: 1 Stark. Ev. 195; 4 Binn. 359. If the con-
veyance was without warranty, then the judgment against Mc-
Neil made Hiude's judgment, as to these premises, void; no one
was interested in it as to these premises but McNeil. If the
judgment was rendered void, no execution could issue on it.

As to the third ground; the crop was made by Haggard. Mc-
Niel took possession in August, when nothing more could be done
for the crop than to keep up the fences around it until it hard-
ened and dried, and then to husk and crib it. He let Haggard
have two thirds of the com only, as appears from the receipt.
The whole crop amounted to more than one thousand two hun-
dred bushels; Hinton'sone third part, therefore, was more than
four hundred bushels. The verdict is for twenty dollars,
which, for four hundred bushels, is five cents per bushel. This
was justly due to Haggard, and on his receipt of it, due by him
to Hinton, his lessor. It appears to me that Hinton, the land-
lord, might use the name of Haggard, his tenant, to sustain
this action. I see no other plain remedy for him, and if so.
Haggard could not defeat it, even by a release: Payne v. Bogers,
Doug. 406.

Upon the whole, it appears to us that no injustice has been
done by the verdict; when this is the case, the court will not
grant a new trial. A new trial is only granted when injustice
has been done by the verdict, and there is a probability that
justice will be done on retrial: 2 Burr. 986.

The motion is overruled.

EmcT OP JunoMSKT iv EjsonaENT.— A prior jndgmflnt is noi oonoliisiv*
MM to the title in a ro b eeq n ent aotioa of ejeotment: CrodteU v. Loikbrook^ 17
Am. Deo. 08, note, lia

Kxw Trial, when Gbahtio: Kinne v. Kinne^ 21 Am. Deo. 732; Newtom
V. Lycan, 20 Id. 156; Winn y. Taung^ 19 Id. 62; Moon v. Hawkt, 16 Id.
725: Myen v. Brownell^ Id. 729, note, 733; TumbuU v. River^ 15 Id. 682|
fftm^mr.Oaberi, 6 Id. 542; Mmrpkfr.Chiion, 2 Id. 92Z.

Digitized by








[8 Psmota & Watt*, 37i.]

before payment; but a bill of exchange or a negotiable note given and re-
' ceived in satisfaction will support the count for money paid.
IpEK. — But where a surety holds a counter bond in the amount of the sum

secured, given in consideration of his liability, he may sue thereon before

Execution Issued on an Actual Judgment in favor of a sorety against his

principal, on a bond given to indenmify the surety on a debt which he

has not paid, is neither erroneous nor irr^;nlar; nor is it fraudulent^ as

being embraced by the statute 13 Eliz.

Amtoablb action on the case between Miller, the defendant
below, and tbe administrators of John Howry » deceased, and
others. A case was stated, from which the following circum-
stances appear. John Howry aod others obtained judgments
on their respective bonds against one Daniel Howry, on the
sixth of August, 1825, the bonds bearing tbe same date. The
judgments were entered up the same day to the term of April,
1825; fi.fa. issued, and were levied on personal property of
DanieL This property was sold September 14, 1825, and the
sums realized, which were sufficient to pay the judgments, or a
large proportion, were on the twentieth of September, 1825,
paid into court. The bond on which John Howry had recov-
ered judgment was given to indemnify him as surety on a cer-
tain bond of Daniel Howry dated September, 1822, condi-
tioned to pay one Diffenbach one thousand and eighty dollars
annually for four years, and on another bond conditioned to
pay five hundred dollars to one Potts. The bond to John

Digitized by


May, 1832.] Miller v. Howby. 321

Howiy was in the penal sum of eight thousand dollars, condi-
tioned to pay him four thousand dollars and interest. On the
sixth of^August, 1825, when John entered up his judgment on
the bond, it being given on tbat day, he had not paid any of
the sums for which he was liable as surety; but since said judg-
ment he has paid to Potts and Diffenbach the amounts of their
bonds with interest, and the coats of the suit brought against
him on the bond by Diffenbach. John was never refunded the
amount of these payments.

Miller entered up judgment on the first day of April, 1825,
to the January term, 1825, on a bond dated December 30, 1824,
in the penal sum of thirty-six thousand dollars, conditioned for
nine annual payments of two thousand dollars. AJi./a, issued
August 13, 1825, and was levied on real and personal estate of
Daniel Howry. A vend. ex. issued to November term, 1825, but
was stayed by motion of the court. An cdiaa venditioni issued
in January, 1830, and the real estate sold for fifteen thousand
and fifty-one dollars to Miller, who retained this money by vir-
tue of his judgment for the real debt of eighteen thousand dol-
lars. Miller received no other or further sum than the fifteen
thousand and fifty-one dollars.

The question submitted on these facts, was whether John
Howry's administrators are entitled to the money in court by
virtue of their fi. fa. to August term, 1825, and whether Miller
had a right to interfere and impeach the validity of this fi. fa.

Judgment for the plaintiffs. Writ of error was then taken

EUmaker, for the plaintiff in error. A surety can not sue
until he has paid the debt: Powel v. Smith, 8 Johns. 192;
Whart. Dig. 570, p. 18. The judgment and execution are
void for fraud upon Daniel Howry's creditors: Roberts' Dig.
802. The execution was irregular and void, and can be set
aside by any one interested in avoiding it: Philips v. Biron, 3
Wils. 345; AUisan v. Eheam, 3 Serg. & B. 139 [8 Am. Dec. 644];
Hoyt V. Wadjire, 3 Johns. 518; 3 Bac. Abr. 739, 740, 741.

Montgomery, Champneys, and Norris, contra. A judgment
bond conditfoned to indemnify the obligee as surety may be
sued on by the surety, although he has not paid the debt, and
the court will apply the money recovered to the payment of the
debts for which the surety is bound: Murray v. Gray's Adm*r,
3 Binn. 136; Ramsay v. Gervais, 2 Bay, 145 [1 Am. Dec. 635];
Monell V. Smith, 5 Cow. 441; Roosevelt v. Mark, 6 Johns. Ch. 266.

Am. Dbo. Vol. XXTV— 21

Digitized by


822 MHiLEB V. Howbt. [Penn.

279, 289; Bank of Auburn v. Throap, 18 Id. 505; 2 T. B. 100;
1 Atk. 115, 116; NorUm v. WhiHng, 1 Paige, 578; Gardner v.
Orove, 10 Serg. & B. 187. Non-payment at the day'is a for-
feiture of a counter bond: Roes' Ex^r y. BiUenhouse, 1 Teatee,
448. The statute of Eliz. does not apply to this case: Miller
V. Bace, 1 Burr. 452; The United States y. Hooe, 3 Oranch, 73.
The execution was not void; at most it was erroneous, and
voidable only at the instance of the defendant in execution:
Stewart v. Stocker, 18 Serg. & B. 199 [15 Am. Dec. 589]; Cum-
ming v. Hackley. 8 Johns. 206; 8 Lev. 408; 3 Cai. 271, 273;
Beynolds v. ScoU, 1 Salk. 278; 2 Id. 674; 8 Wils. 845; Jackson
V. Sellick, 8 Johns. 262; 1 Cow. 734; Jackson v. Ddancy, 13 Id.
587 [7 Am. Dec. 403 J; HowUmd v. Balph, 8 Id. 20; 1 Chit. PI.
183, 184, 185.

By Court, Gibsok, C. J. The execution having been in due
time, and founded on an actual judgment, was neither errone-
ous nor irregular; and the question therefore is, whether it
were fraudulent by the statute 13 Eliz., in consequence of hav-
ing issued before actual payment of the debt for which the
counter bond was given as an indemnity. The chief obstacle
to a satisfactory conclusion is a tendency in the mind to view
the case as it stood originally, and to consider the question of
indebtedness as still depending on the naked relation of prin-
cipal and surety. Undoubtedly a surety, though presently liable
to an action or even an execution, may not maintain indebitatus
assumpsit before actual payment, because the implied promise
which is the foundation of that action, arises out of the fact of
payment, and nothing else. It is implied from the considera-
tion of money paid, laid out, and expended to the defendant's
use. But the strictness of the rule by which the fact of pay-
ment is determinable, has been relaxed where a negotiable
note or bill of exchange was given and received in satisfaction,
which, it has been held, will support a count for money paid:
Jformon v. Berky, 7 Serg. & B. 238; Gumming v. Hacldey, 8
Johns. 206. Where, however, the surety holds a counter bond
in the very sum for which his responsibility stands pledged,
his right of action depends on considerations emtirely differ-
ent. Being founded on the undoubted consideration of his in-
dividual liability, such a bond is far i 'om being a gift of the
money. In Roosevelt v. Mark, 6 Johns. Ch. 281, it was treated
as a debt provable under a commission of bankruptcy; and
that decision made, as it was, in reference to a process of dis-
tribution among creditors, which has been aptly called a stat-

Digitized by


May, 1832.] Milleb v. Howby. 323

atorj execution, goes the length of the present question. The
same thing was predicated in Toussaint y. Martinnant, 2 T. It.
100; MarHn v. CowH, Id. 640; and Hodgson v. Bell, 7 Id. 97,
which certainly would not have been done had the bond been
deemed fraudulent. In fact the question of fraud was expressly
made and decided, Mr. Justice Buller declaring in Toussaint
V. Matiinnani, that there was a sufficient consideration, though
the counter bond was payable before the original bond becamtj
due; in which respect that case was much stronger than the
present. Here the transaction was an arrangement by which
the surety, having become paymaster, was to raise the funds
from the effects of the principal by the instrumentality of an
execution; and it is admitted that the object might liave been
accomplished by an assignment to the surety, who would then
have been accountable as a trustee, but who, it is supposed,
might consistently with the actual arrangement retain what
should be recovered as his proper money, and leave the orig-
inal debt to fall on the remaining property of the principal.
Such was not the notion entertained in Eoosevelt v. Mark, and
IhussairU v. Marlinnant, where it was considered that equity
would compel him to refund ; and though we have not the direct
powers of a court of chancery, we would find means to produce
the same effect. If, then, there was a sufficient consideration
for a present debt, what right have the other creditors to inter*

In settling the construction of the statutes of Elizabeth, the
judges undoubtedly set out with a determination to cut up
voluntary gifts and conveyances by the roots; yet, as has been
justly remarked by a respectable writer, they showed an inclina-
tion to restrict the import of the word voluntary to cases where
no inducement of interest appeared, and to extend the notion
of a valuable consideration to every case which admitted of a
supposition that one act was made the condition of another:
Bob. on Fraud. Conv. 15. It is said by the same writer, that
an assignment to a stranger is not to be supported under these
statutes, the mere destination of the property to the payment of
debts affording no consideration, because passing nothing from
the assignee to the assignor, which can prejudice the former or
benefit the latter; but that where a creditor is a party to the
assignment, a valuable consideration is found in the forbearance
of suit, or mutual accommodation, which is elpressly stipulated,
or implied from the very nature of the transaction: Id. 429,
431, 432. This would bring the question back to the point

Digitized by


824 MiLLEB V. HowBT. (Tenn.

from which it started — ^was the surety a creditor, and was there
a mutual accommodation of the parties? Undoubtedly there
wsLS a contingent liability of the principal to the surety, which

. in transactions of the sort is invariably the subject of special
protection, a provision for indorsers who have not paid the
debt, being an article of almost every assignment. Then, of
the existence of mutual accommodation there can be as little
doubt. As has justly been remarked by Mr. Justice BuUer,

^ the surety is alwoys the effective and responsible man, having
been taken because the credit of the principal was doubted,
and an arrangemeut like the present is a measure to secure him
by means intended to produce payment of the debt out of the
effects of the principal by whom it is due, and to satisfy a
responsibility which is invariably incurred under a promise of
payment or indemnity. It would seem, therefore, that the
surety is entitled to the amount of his bond.
^ Judgment affirmed.

SuRETT, WHEX MAT SuE PRINCIPAL. — ^Tho Burety who has been obliged
to pay his principal's debts may sue the latter immediately without a previ-
ous notice of snch payment: Ward v, Henry, 13 Am. Dec 119 and note.
Whether the surety may sue the principal before actual payment of the debt
depends upon the nature of the contract between them: Brentnal v. Helnu,
1 Id. 44 and note, 47; Bank v. Douglass, 4 Watts, 96.

Erroneous and Irregular Process distinguished and considered: Wood'
cock V. Bennet, 13 Am. Dec 568; AUm v. Huntington, 16 Id. 702, where the
difference between an erroneous and an iiregular judgment is adverted to.

Judgments Void and Erroneous. — See Den v. Albertson^ 22 Am. Dec
719 and note

Justification ov Officers bt thsi& Process. — See note to Sawwool v.
BouglUon, 21 Am. Dec 190.

Requisites of Process which will Protect Officer. — Id. 191.

Unless Process Void on its Pace, Officer Protected.— Id. 195.

Process not Fair on its Face, no Protection.— Id. 199.

The principal case is cited in Pursel v. Ellis, 5 W. & S. 528, as illustrating
that a negotiable note or bill of exchange is equivalent to cash, and will iup«
port a count for money paid; and in Ttoelves v. Williams, 3 Whart 493» aa
lecogniang the principle that a pecuniary consideration is inserted in deeds
to avoid the statute of Elisabeth.

Digitized by


May, 1832.] Kelly v. Evans. 325

Kelly v. Evans.

(8 PxHBon k Watts, 887.]
PROMISB lOR THX BsNiTTT OF A Thiiib Pebson may be Bued on by that
party. Principle applied to a promise by one of two payees to keep the
drawer clear if he wonld pay a certain snm to snch payee; the other
payee was deemed beneficially interested in snch promise.

Action by Kelly against Evans' intestate, Wadsworth. Judg-
ment in favor of the defendant. The cause was removed by a
writ of error to this court, and submitted on a case stated. E.
Williams pfave a note to Wadsworth and Kelly for three hun-
dred dollars for services to be performed in defending an action
of ejectment. Afterwards, Wadsworth made an agreement
with E. Williams and Neff that he would defend the action for
four hundred dollars, and would keep E. Williams clear of lia^
bility and costs, on account of the note given to Wadsworth
and Kelly. The four hundred dollars was paid. Wadsworth
and Kelly defended the action of ejectment.

Gardner, for the plaintiff in error, cited: Algeo v. Algeo, 10
Serg. & R. 235; Young v. Henderson's Eafr, 2 Teates, 216; Bich-
man v. Irwin^ 3 Id. 66; Easiwick v. Eugg, 1 Dall. 223; Balston
V. Bell, 2 Id. 242; Morrison v. Berkey, 7 Serg. & B. 238; Kear-
ney V. Tanner, 17 Id. 94 [17 Am. Deo. 648].

Lewis, contra.

By GouBT. The engagement of the defendant's intestate to
keep the drawer clear was a promise to satisfy the plaintiff, be*
cause the engagement could be performed in no other way; and
such a promise may be enforced by the party beneficially in-
terested. But the money was actually received by the intes-
tate, and consequently in part to the plaintiffs use. Nor is this
consequence to be averted by the fact that the money was paid
on a new contract. That contract was substituted without the
concurrence of the plaintiff, and whatever might be the new re-
lation created by it between the immediate parties, yet as re-
gards the plaintiff and the intestate, the payment is to be con-
sidered as having been on the original note, at least so far as '
was necessary to discharge it.

Judgment below reversed, and judgment here for the plaintiff.

Pbomibb lOR Bbxsfit ov Thibd Person, Who mat Sue on.— See note to
Sdtemerhom v. Vanderheyden, 3 Am. Dec. 305; Smitfi v. Kemper, 6 Id. 708;
Arnold v. Lyman, Id. 154, and note; wherein a classifioation is made of
those cases in which third persons may sne in assumpsit on a promise made
for their benefit to a third person: Marigny v. Remy, 15 Id. 172.

Digitized by


826 Whttbhill v. Wilson. [Penn.

Whetehill v. Wilson.


A JuDOioaiT OAK BB KRT.TtABKD AT Law o&ly by Mf^oMtyi bot in tqpity m

parol releaae is snffioieiit, if baaed on a consideration.
A Pabol Exbcutobt Oontbaot, not meroantile, is a nudum pactum whsn

onsapported by a consideration.
CoNTBACTS abb Specialtizs or parol contracts; tbere is no sacb middle dass

as contracts in writing. Ckmtracts in uniting, but not nnder seal, are

parol contracts.
Rbtokino a Lbtt ok thb Goods ov Okb ov Two Subbtcbs does not release

the other; for as between themselves they are both principals, and the

creditor may pursue either.
To LxAVB TO THE JuBT TUB FiKDiNO of a fact withont color of proof, is error.

Ibsub framed to tiy whether, by certain acts of Whitehill,
Wilson, one of the three obligors on a bond on^idiich judgment
had been obtained, was not released from liability on the judg-
ment. Wilson and Boyd were the sureties on this bond, and
Wilson claimed that the creditor having released Boyd, had
thereby released him, Wilson. Other facts appear from the
opinion. Verdict was found for the plaintiff; whence the writ
of error was taken.

Jenkins and Ellmaker, for the plaintiff in error. The relation
of principal and surety did not exist between Boyd and Wilson
so that a discharge of Boyd could work a discharge of Wilson:
Bay's Adm'r v. Talmadge, 5 Johns. Ch. 805; Sterling v. Marietta
and S^isquekanna Trading Co., 11 Serg. &B. 179; Lenox -7. Front,
8 Wheat. 520; Commonwealth f(rr Bellas v. Miller's Adm'r, 8 Serg.
k B. 452; lAohienihaler v. Thompson, 18 Id. 159 [15 Am. Deo.
6811; Geddis v. Hawk, 10 Id. 83, 39; Irvine db Co. v. Kean, 11 Id.
280; 3 Wheat. 156, in notes. Equity will not extend a release
not amounting to a technical release at law, beyond the intention
of the parties. There was no intention here to release Wilson:
Rowley v. Stoddard, 7 Johns. 207; Patterson v. Swan, 9 Serg. k
B. 16, 20; Oro v. Huntingdon Bank, 1 Penn. 425; 2 Show. 894; 5
Burr. 272; Bucher v. Commonwealth, 1 Bawle, 857.

W. Bipkins and Hopkins, and Champneys, contra. The re-
lease of one of two joint debtors is a release of both: Whart. Dig.
247, pi. 8; MUliken v. Brown, 1 Bawle, 898. The judgment did
not extinguish the relation of principal and surety: Common-
wealth for Bellas v. Miller, 8 Serg. & B. 452; King v. Baldwin,
17 Johns. 391, 898, 895 [8 Am. Dec. 415].

By Court, Gibson, C. J. Two of the three points made at the
trial were ruled in favor of the plaintiff in error; consequently

Digitized by

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