Davis v. Anable & Fidler — 2 Hill & Den. 339

Majority

p. 339

Davis vs. Anable & Fidler.

Headnote

Where in assumpsit against A. & F., they pleaded that the plaintiff and two others had recovered judgment against A. on his bond executed to the three for a given sum, a part of which was the demand now claimed, and that execution had been issued and a part of the judgment levied of the goods of A.; held, on demurrer, that the matters thus alleged constituted no bar to the action, there being no averment that either the bond or judgment was accepted in satisfaction of the demand in question, or that they had produced satisfaction.

A judgment given as collateral security for a simple contract debt, does not operate an extinguishment of the latter.

Declaration in assumpsit on the common counts, for $600. The defendants pleaded, 1. Non assumpsit; and 2. Actio non, Spc., because they say that the plaintiff, together with Lemuel Steele and George-B. Steele, in October term, 1839, of the supreme court, impleaded the defendant Anable in a plea of debt on a bond of Anable to the plaintiff and the two Steeles, for the payment of $858,94, a part of which sum was the same identical debt or promises on which the plaintiff is now suing; and recovered judgment on the bond for $1700 of debt, besides costs: that the plaintiffs in that action issued execution on the judgment, and levied $49,09 of the debt, of the goods of Anable. Wherefore the defendants pray judgment, &c. Demurrer and joinder.

p. 340

M T Reynolds, for the plaintiff.

/S'. Stevens, for the defendants.

By the Court,

It is difficult to say whether the defendants intended to set up the bond or the judgment, or both of them together, as an extinguishment of the simple contract debt; and it is not important to enquire what was their meaning, for neither the bond nor the judgment, nor both of them together, constitute a good bar to this action. The bond was not between the same parties that are now before the court; and it was not given for this debt alone, but included other demands. It was evidently intended as a collateral security for the debts included in it; and such a security, though of a higher nature, does not extinguish á simple contract debt. The fact that the bond has been carried into judgment, adds no force to the defence. There is no averment that either the bond or the judgment was accepted in satisfaction of this debt, or that they have produced satisfaction. (Day v. Leal, 14 John. R. 404. Drake v. Mitchell, 3 East, 251 .)^[1] It is of course unnecessary to enquire whether the plea is double.

The allegation that apart of the debt has been levied of the goods of Anable, amounts to nothing as a plea in bar of the whole action.

Judgment for plaintiff.

(a) (a) And see Sternberg v. Shaffer, ( 11 John. Rep. 513 .) Shaw v. Burton, (5 Missou. Rep. 478.)