p. 432to be by the, person paying it; and if indorsed for his-use, it cannot be pleaded as a payment by the defendant in an action upon the judgment against him.
This was an action of debt, on a judgment recovered in the Court of Common Pleas in the State of Ohio, by Henry Sydam and Isaac H. Reed against Cornelius Cannon and Gabriel Carpenter. The latter had since died, and the amount of the judgment having been paid in Ohio to the attorney of Sydam & Reed by John H. Tennent, he had indorsed it upon the record for his use. To this action upon the judgment numerous pleas were entered, and among them,—1. That the said Tennent, for whose use the suit was brought, was a partner in business with the said Cannon and Carpenter, trading under the name, style, and firm of C. T. Cannon & Co., and contracted the debt with the said Sydam & Reed, for which the said judgment was recovered against the said Cannon and Carpenter,' and as one of said partners paid the same to the said attorney of the said Sydam & Reed to and for their use. 2. That the said plaintiffs, Sydam & Reed, never indorsed or transferred, nor directed the said attorney to indorse or transfer the said judgment to the use of the said Tennent. 3. That the said plaintiffs never authorized or directed the present action to be brought on the said judgment against the said Cannon. To these pleas a general demurrer was entered.
McFee, for the plaintiffs:
The objection to the first plea is, that it impeaches the final and conclusive nature of the judgment on which the action is founded, and denies in substance and effect, if not in terms, its validity, and contradicts the record by pleading matter which, if true, should either have been pleaded or proved in bar of the original action in Ohio, and which defendant is estopped by the judgment to set up as a defence now in this action. For if the jurisdiction of the Court in another State appears, its judgment is final and conclusive, as much so as a domestic judgment. Green v. Sarmiento, Peters’ C. C. Rep.
p. 434any other use, can have no effect to defeat their right to recover. The next or third plea in the series is still more peculiar and remarkable, and comes nearer home; for it is a plea to' the right or authority of yo.ur humble servant, as an attorney of this Court, to bring this action on the judgment for the said plaintiffs. I might have joined an issue in fact upon that allegation by traversing the .plea; but even admitting it to be true, it is not a matter to be pleaded in bar of the action, as a legal defence to the right of the plaintiff" to recover in it. 5 Halst. Rep. 257; 2 South. 817 .
C. S. Layton, for the defendant:
Whatever may be the weight of the technical objections urged against the first and second of these pleas, he had good reason to believe that the facts alleged in them were strictly true and susceptible of proof, if the evidence could be admitted. But if not, then the hardship and injustice of the matter would be the greater, inasmuch as this judgment was obtained by warrant of attorney and confession, without any plea or defence in Ohio. Tennent was, as he had been informed and believed, a silent partner in the firm of 0. T. Cannon & Co., and was jointly liable with him and Carpenter for the original debt for which this judgment was given; and when he paid the amount of it to the attorney of the plaintiffs, it was paid by him as such, in satisfaction of the judgment, and pot with the view, or with the understanding on the part of the plaintiffs, that it was to be assigned to him, to be afterwards enforced and again collected in their name out of his copartners. The judgment has been standing for more than ten years, perhaps, since he paid it; in the meantime Carpenter has died, and Cannon has recently returned to this State, having succeeded to the inheritance of some property in this county by the death of his father, and the judgment is now indorsed by the original attorney of the plaintiffs in Ohio, but without their knowledge or direction, as is believed, for the use of Tennent, who has since sent it on here for collection from him. The case is, therefore, not without substantial merits by way of a juSt
p. 435defence on the part of the defendant, and if the amount were larger, redress would be sought before another tribunal, if that defence should prove to be unavailable in this Court. On that point, however, he should not enlarge, but content himself with a brief reference to a few authorities, and cited 8 Johns. 361 ; 5 Harr. 344 , and Ross. Civil Ev. 233.The objections taken to these pleas by the plaintiffs on the demurrers are all good, and for the reasons which their counsel has assigned in his argument. This is an action upon a judgment recovered in Ohio, by Sydam & Reed, the plaintiffs, against Cornelius T. Can.non and Gabriel Carpenter, who are the only parties defendant- upon the record of the Suit, and as to which the record must be held to be final and conclusive, and cannot be contradicted, qualified, or impeached in an action here upon it, by endeavoring to show that there was another party, who should have been included in it. Whatever may have been the original liability of these parties for the debt when it was first, contracted, that liability was discharged when Cannon and Carpenter gave- and Sydam & Reed accepted their bond for it, and the nature of the debt was still further changed and extinguished and made exclusively their debt, by the subsequent recovery of the judgment against them upon it, as it thereby became a new debt of a higher grade, a debt of record against them. There is therefore no reason now for saying that Tennent is jointly interested or liable with them in this judgment; and it was no defence, even in Ohio, to say that he was jointly interested with them in the original transaction, after the bond of Cannon and Carpenter had been taken in discharge of the debt. The other two pleas are also immaterial, and equally defective on general de? inurrer; because they are both entirely addressed to the right of a third person to recover, who is not a legal plaintiff in tk’e suit. The indorsement of the use may at any moment be stricken out without affecting the action.
p. 436Every good plea in bar must go to the merits of the action, and must constitute a legal defence against the right of the plaintiff on the record to recover, which neither of these pleas can be said to do, as the person for Avhose use the judgment and suit are indorsed, is no party in a legal sense to this action.
Judgment must therefore be entered for the plaintiffs on the demurrers.
The case afterwards came up for trial at the same term on the other pleas and issues joined upon the record, one of which was payment of the said judgment by the said John H. Tennent, one of the members of the said firm of C. T. Cannon & Co., when the counsel for the defendant submitted it to the jury on the charge of the Court as to the defence presented by this plea. It appeared from the evidence adduced on both sides that the amount of the judgment had been paid by Tennent to the plaintiffs, and the point which he wished to present was, that the plaintiffs were not entitled to recover in this action, unless they could show that it was assigned by them to him at the time of the payment of it by him, and not afterwards. 1 U. S. Dig. 329, sec. 84.
The counsel for the plaintiffs replied, and cited 2 Saund. Pl. & Ev. 713; 2 Greenl. Ev., sec. 519.
The Court,
charged the jury: That this being an action of debt in this Court, on a judgment recovered before a tribunal of competent jurisdiction in the State of Ohio, by Henry Sydam and 'Isaac H. Heed, against Cornelius T. Cannon and Gabriel Carpenter, instituted here in the names of the plaintiffs against Cannon, the surviving defendant in the judgment, it must be taken and considered as final and conclusive, not only as to the persons who were the parties to the suit in that State, but also as to all persons who should have been parties plaintiffs or defendants on the record of it there. It is consequently incompetent for the defendant to allege or prove, in the action upon it here, that Tennent, for whose use
p. 437the judgment was afterwards indorsed, was in any manner bound by it, or was in any way a party to it as a judgment ; if indeed such is the purport and intent of his plea, or of the averment contained in-it, which alleges that he was one of the partners of the said firm of C. T. Cannon & Co., and paid the judgment to the plaintiffs. For if it was a fact, as we have before remarked in giving judgment on the demurrers in the case, that Tennent was a •partner with Cannon and Carpenter in that firm at the time when the original debt was contracted, for which the bond was given by Cannon and Carpenter, and on which they afterwards confessed judgment for it to the plaintiffs, his original liability with them was entirely discharged and extinguished by it, and it thereby became their sole debt, and for which they alone were individually responsible, and not as partners; the partnership nature of the debt being thus changed and discharged by it. Being a stranger then to the judgment, and in no manner bound by it, the plea that Tennent paid it to the plaintiffs, is not ■ a good plea, unless it is further shown that it was paid by him in full and complete satisfaction and discharge of-the judgment as against the defendant; in which case, it would have been a payment by them, and should have been properly so pleaded by them. A defendant in a judgment may authorize or empower any one to pay it for him, and if the payment is made for the purpose of satisfying and extinguishing it entirely, it is his payment, and 'the debt is discharged; but if it is not done with this view, and the party so paying it takes an assignment of it or has it indorsed for his use, it has no such effect, and such a purchase or acquisition of the benefit of the judgment by him, cannot be pleaded in bar as a payment, in an action upon it against the defendant.
McFee, for plaintiffs.
C. S. Layton, for defendant.
Verdict for the plaintiffs.
Note. Houston, J., did not sit in this case, having been of counsel for the plaintiffs.