Townsend v. Carman

6 Cow. 695

• Court: New York Supreme Court
• Decided: February 15, 1827
• Status: Published

Opinion

Curia, per

Sutherland, J.

It is admitted, on the face of the pleadings, that the judgment was obtained in the manner stated in the plea. The judge, at nisi prius, therefore, decided correctly in saying, that the only enquiry was, whether there was a partnership between Ring and Carman, when the original debt was contracted. That was the only issue joined ; and it was the duty of the judge to try it, whatever might be his opinion of its materiality. The evidence given by Cameron and by Wheeler, was offered for the purpose of proving a partnership, from the confessions and admissions of Carman himself; and not for the purpose of establishing an original individual liability on his part. The objection to its admission under the pleadings was properly overruled.

The general objection, that an action of debt cannot be maintained on such a judgment, is disposed of by the cases of Dando v. Doll, (2 John. 87,) The Bank of Columbia v. Newcomb, (6 John. 98,) and Taylor v. Pettibone, (16 John. 66 ;) in all of which, the point was presented, and clearly and distinctly passed upon by the court. The statute (1 R. L. 521, sect. 13,) declares, that the plaintiff shall have his judgment and execution against such of the defendants as were brought into court, and against the other joint debtors named in the process, in the same manner as if they had all been taken and brought into court, by virtue of such process ; and the only restriction imposed by the act upon the effect of the judgment and execution, is, that it shall not be lawful to issue or execute any such execution, against the body, or against any lands or goods, the sole property of any person not brought into court.” There is nothing in the act, restraining the plaintiff from bringing an action of debt upon such judgment, against all the defendants ; nor from using the judgment, as evidence of the indebtedness of all. If an action can be sustained upon such judgment, it must be against all. The judgment is to be entered in the usual form; and so far as depends upon the act, is to be followed by the usual consequences, with the restrictions particularly specified. The judgment is prima facie evidence of a debt against the party not brought into court. (16 John. 66.) How far, or in what respect, he may be permitted again to enter into the merits of the original action, and show that he ought not to have been charged, it was not thought necessary in the previous cases, nor is it in this, to determine. The defendant here, was allowed the benefit of the only defence which he claimed; that the original debt was contracted by Ring solely, and not by Ring and himself jointly. But he failed, in the opinion of the jury, in establishing that fact; and we see no ground for disturbing the verdict. The piotion for a new trial must be denied.

New trial denied.