Majority
p. 353The President, Directors, and Company of the Mechanics’ Bank, in the city of New-York, against Thomas Hazard.
Headnote
in m action on a recognizance °[ea^aUy^gna ®ve‘^"of |“™u»t1lof id&aie” m~payment o°ula pleaded?” aithough accepted in full satisiac-
ar^heb1?0U.gjJ't!t3 “otePandiS8?ie íUenfhlboidí that the^S ker shall he pro-benefit of the endorsor, the maker cannot avail bimself of ilre payment by the endorsor a,s a d?fence. ™ the suit against
pay. “0er"or>y a|ronil!!en£te", Lta¡bhims°eTof >sint on the reGOSn!“ance'
THIS wás ail action of debt ór á recognizance of bail, t. ° ■ The, original suit was against John; Hazard^ on .a .promtssory note, ia Which judgment was 'obtained as of January term,, 1812,- for 1,094 dollars And, 8 cents damages and costs.- The defendants pleaded, 1. Payment by-the principal before the commencement of the suit, against the bail, to wit, on the lit’of ■April, 1812. 2. That the plaintiffs recovered their judgment z . a. 7 7.r . _ i ' i n • it against Jofm Hazard, as -the maker ot a promissory note dated' the 16 th of April, l3ll, payable-sixty days afterdate, to' John son Patten, or order, for 987 dollars and, 17 cents, and endorsed by .him to William G-. Miller; j.iiri., and by. Miller' to the plaintiffs ;, that Miller, being liable as such endorsor, afterwards, and before the commencement of this suit, to wit, on the 1 st of April, 1812, paid and satisfied to the plaintiffs the amount of th'e judgment.. The plaintiffs replied to both pleas, denying th’e facts stated in .them. The - c'aüse was tried before Mr. ’ J. , \i* xr t • • j/ .. * , 4 . bpencer, attire JVezo-x ork sitt*ins^-^in November, 1815. 1 ■ ^ 5 '
, • ' , • . It was proved, that at the time the suit aga-inst John Hazard 1 . ° Was commenced; suits weie also commenced against Paiten 7 . * , o and Miller. On the 22d of November, 1811, Miller offered his, own note, with an endorsor, at 60 days, for 1,500 dollars, to be discounted by the plaintiffs ; the note Was discounted, 'out of the net proceeds ther'éóf, the plaintiffs, with the consent of Miller, retained 3,017 dollars and 31 cents- for-the principal and interest then, due on the note, and agreed with him that the respective suits against Hazard ’and Patten should proceed for his benefit $ the note ..given by Miller, after having been once or twice renewed, was paid, but.Miller never paid the plaintiffs the costs of the suit Ugainst him, or the costs in. the other suits. Judgments having'been recovered against Patten , and Miller, Patten, on the 8th of February, 1812, paid the principal and interest then due on.the'note to the plaintiffs’ attorney, who, by the directions of the plaintiffs; paid’ over the - money to Miller, and Patten at the same'time paid the costs in the suits against.
p. 354contended, 1. That'fh^ parol evidence of the - payment and-satisfaction of .the judgment recovered against-Jote Hazard! was'inadmissible, the judgment bei;ng unpaid and unsatisfied of record. Under neither of the pleascugh.t 'parbl ,'evidence Of Any: payments to-the 'plaintiffs, prior to Jamtáry, 1812, to have bée.róadmitted; Us it would only tend to-' falsify ,th;e judgment obtained, against-. John Hazard.And'if the payment was of such a nqture as. -to diminish or ex-1 tipg.uish the demand-,0:f the .plaintiffs, against him!'it ought-to -have been taken ad vantage of .in1 the original, suit.[6] 2; That; the'defendant equld not.maintain either of -his pleas,by proving, payment :óf a less--sum -than the amount of that judgment and, tile, costs.[7] -3.‘.-That the payment madeby William G. Miller, jún.,. in pmt disehajg.e of the dema-nd against himself, could not, under the c'ireumgfahces of 'the .c.ase, -b,e- applied'by -John Hazard or the defendant,- - towards the puy.ment.'of the judgment against, -the former; -,' . .. -j , ■ ■ ’ ■ ; . -4; Thá-t' Miller' háying;.repaid the amount,. paid by him;to' the: plaintiffs, by Johns on'Patten^ before judgment ivas perfected
himseli,.. Miller, and Hazard and it was agreed ■ by the plaintiffs’ attorney, on. the'behalf, cff the plaintiffs:, who-afterwards ra£^e<^'bis act, that, the suit against 3. Hazard should proceed ^Qr ibe'benelit of Patien, and if ii judgment should, not- be perfected' therein, by reason of the ■non-payment -of the costs, which Hazard had before been ordered by the court to: pay, ás a condition 'of. being allowed to plead his discharge-under th.e , ihsdlv-.enl act, puis Hurrein. conlinúance¡ after'an inquest-had been taken against him, and which he had not. yet’ paid, Ahé judgment should be held for the benefit of- Pdtienj; or,;' if those costs were’ paid by- Hazard, they were to be-repaid to Patien. ’ Judgment was-afterwards, entered.up against-Hazards There was never a-ny regular assignment.-oftthe, judgment to ■.Paiten.; ,.büt th.é.-p'resent suit’was prosecuted at;the expense, and.-for the sole, benefit'oi1'- Patten, the plaintiffs .haying.-been satisfied the full.amount of the*.principal, and-.interest'due. them, with the costs-of- tiiéir several suits,'. . 1
-A' verdict was taken, subject to the. opinion of .the court,’ for, the plaintiffs,, for 2Ó.0 .dollars andl¿7 emits, being the'-interest on th'e judgment against John. Hazard^"fromthe .time the defendant . b'edame fixed'ás bail, andT'cents-costs. . . . . :- '
T. A. Emmet, for the plaintiffs,
p. 355against John Hazard, Paiten was entitled, as against - Juhii Hazard, to stand in the place of Miller, so as to have the benefit of any agreement he had made with the plaintiffs.[6] . 5. That Patten, by virtue of his agreement with the attorney of the plaintiffs, and of his settlement with Miller, had a right to have the suit then pending against John Hazard carried on for his own benefit; and to perfect this right, no assignment of the judgment was necessary, nor could, in fact, any assignment of it have been made, as, at the time of that agreement and settlement, no judgment had been perfected against John Hazard. 6. That there can be no impediment to the recovery of the plaintiffs at law; and if there be any questions of equity between the parties affected by, or interested in, that judgment, this court-will leave them to their remedy in a court of chancery. 7. That the defendant cannot stand in a better situation, as bail for John Hazard, than the principal hjmself could have done on an execution issued upon thejudgment. Under the pleadings in this cause, evidence of the assignment of the judgment in the original suit was wholly inadmissible[5] the issue being only as to the payment, and if admissible . ’ . ~ it was insufficient; if there was any assignment, it was to Miller, 4/07 ‘ * not to Patten; but there was none. This court allow-an assignee . ' . ° to stand in the place of the assignor to preserve a specific lien, but here the plaintiffs attempt greatly to extend that privilege. The plaintiffs could not make an assignment which would put Patten in their situation. There was no privity between, the plaintiffs and John Hazard, but there was a privity between'
- 8. But, at all events, the plaintiffs are entitled to have the-verdict entered for the amount of tbe costs in the respective-suits against John Hazard, Miller, and Patten.
Golden, and Drake, contra,
contended, that the plaintiffs, having taken issue on the fact of payment, were too late to object to the evidence, and ought to have demurred ; and if so, there is an end to the cause; for if the payment is the only issue between thé parties, the defendant must have judgment on the evidence. But it is said, this suit is prosecuted for the benefit of the surety, Patten. In order, however, to avail himself of the privilege of a surety, be ought to have averred the fact of suretyship, and put it on record.[7] ' . - -
p. 356Mazará and Paiten./ ’The plaintiffs .ále endorsees* -The- jbdgif. ment . obtained'- against P'ailen ipi:.' January, ^ Iff-lSp .and whether docketed of not, .can make not difference,; ..arid' them©.* ney:.wáspaid to th.e plaintiffs after that time.' ■ The note was not payment until -actually:paid,- - Th'e.plaintiffeyrthér.efoféj haying fecéived'full satisfaction; this áu-i’t-e^feqfc^iihai&lalñsú-- iníhei-r names for the benefit di Pattern ;'From -the meréí'faet'-ofi endorseiperit-.fhe court:.%¥ill-not-'infer-that su^etyshipt which’'vvrihid.'give ■.Patten this-'peculiaf 'privilege, 1 Baih are 'sureties; :an:d ffntitíbd to all the privileges ff-nd advantages of sureties;[6] / In-tKis-fespe'ct;, therefore, the defendant- stands on the' ground of equal equity,, af. least,/with Patten. : ' ’■ ,-/ , ,/ ' • ■ ■ ' ' . : Again ; the agreements- and arrangements made by the plain? tiffs-, and their attorneys; with'Miller- and Patten,'yviilnoui the.pri* y-ity or,consent of: the bail, or principal, álteféd' and -extended the responsibility of the.bail, and-thereby'óperated ás'adischa'rge ofthe bail from a, 11 responsibility.[7] said-,-that if the principal had-: paid-the judgment,.it. would -enure .to the.benefit of h-is'sufety ;-bu,t where the payment is collateral only, or by pne of two. spreties, it may* Or may not, according to circumstances, operate to the benefit of the Other, surety. Why may not a surety avail .himself of a Contract, by which he -may- protect himself by “buying in the fights-of a prior creditor ? Will the court consider that as. a payment .which -the parties themselves,did, no.tdnterid as,-a payment? .In regard to the plaintiffs, this is. a case off timst, rather-f-han an assignment, arising ©n the payment of money under a'.specific, agreement.- iff the plaintiffs accepted-the noté as .-payment, at.-the time, it'is not .’competent for another person t%. say it was not payment, .. ’ \
Emmet, 'iff .fepljj
'.delivered the opinion Of the court. -This ' Is an action of,debt against the defendant, on his recognizance: of bail for John, Hazard. Judgment against the principal was. obtainedip'Jqmqry term, 1812,. for i>,094 dollars and 8 cents, .The defendant pleads,,- 1st./Payment,/b.y the principal, of the, -judgment, before the commencement of this suit, to wit,'the 1st .of April,-181.2,. 2d, Payment .by Ppililiam G-. Miller, who was’ an endorser upon Johji Hazard's note, and who had become liable W pay fhfffeaaie^.tlhe tqne-of A,esaitoeias-ifl;.'di^.
p. 357
first plea. The plaintiffs take issue upon these pleas ; And the first' qnésíion which arises is, whether the p'r'oof Supports the pleas, or either of them* There is no evidence, !fl atiy manner, showing payment by the, principal. Under the second plea, however,,it appears, that Miller, on the 2d of November, 1811, procured a note to be discounted by the plaintiffs, and that 1,017 dollars and 31 cents of the money was to be applied to the payment of the principal and interest due upon the note,,on which the suit against John Hazard was pending^ Miller's pote was renewed several times; and when it Was- paid does not appear; probably, not Until after the judgment was obtained against John Hazard.' This proof did not support the'plea. It did not show a payment of the full amount of the judgment. Had the plea set out the true sum paid, it would have.been bad on demurrer, and, of course, no defence. And, if so, it follows, of course, that the fact itself is no bar; for, in case of demurrer, the fact is admitted. In the case of Dederick v. Leman, ( 9 Johns. Rep, 333 .,) it was decided by this cou'rt, that a pleA of payment bf a less sum than was due on a bond, although accepted in full satisfaction, was not good, either as a plea-of payment, or of accord and satisfaction. And, besides, the payment made by Miller was before the judgment obtained against Hazard} for, although made by Miller's note, discounted by the plaintiffs, it was received by them as payment, And* the sum due on Hazard's note was, doubtless, passed to Miller's credit. The .understanding of Millet•, that, if his note was not paid', the plaintiff would have had- a right to retain the money, if any, collected from JohnHazard, could not materially affect the transaction. It was a payment at that time, subject, however, to be reimbursed, out of an uncertain fund, Upon the event of the note’s hot be-? ing paid. In strictness, therefore, the facts given'ih evidence do not show a satisfaction of the judgment against John Hazard. There was, at all eyents, no payment of the costs due on that; suit: and the next question that arises is,' whether the defendant can avail himself of -that, payment pro tanto, and I am inclined to think he cannot. It was not A payment made by, or! in behalf of, John Hazard, nor of ivhich he could, in any manner, avail himself, and, if he could not,, his bail hannot. '- The payment was made under an express Agreement that-the suit against John Hazard should proceed fot the benefit of Miller, ,|is- endorsor* Had the plaintiffs- remained the real parties to
p. 358
the suit, perhaps the defendant might, in some way, in equity certainly, if not' at/law, have availed himself of such payment, according to-what was said by this court in Wattles v. Laird, ( 9 Johns. Rep. 327 .) - But the plaintiffs, by their agreement with’ Miller,, became mere nominal parties; and we have a.right so to. consider-them, and look-at, and protect-, the real, parties fn ihr terest.. All1 considerations of hardship -must be. laid' Out of view.' They apply with- as much force to the endorsors of JohnHazard as to Ins bail: and when a-loss must fall upon One of /two . innocent persons, each has a right to clainf protection under whatever strifct and rigid rules Of law are to be- found .in his -fávour: and according to which the plaintiffs are, in my Opinion, entitled to recover, the full amount of the'judgment andinterést-i and this is /the opinion of the. court. ■- ■■ . . ■ ' '
-Judgment'for.; the plaintiils,,':