Reed v. Girty — 19 N.Y. Super. Ct. 567

Majority

p. 567

Almet Reed and Daniel R. Suydam, survivors of Henry Suydam, Jr., Plaintiffs and Respondents, v. George W. Girty, (who was impleaded with William B. Barber and James Doran,) Defendant and Appellant.

Headnote

1. The judgment of a Court in another State of the United States has no other or greater force or effect in this State, than it has in the State where it was rendered.

2. The statutes of Missouri provide that “ all contracts which, by the common law, are joint, shall be construed as joint and several;” and, “in all cases of joint assumptions of copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable:" Held, in an action brought in this State against B., Gr., and D., to recover money paid by the plaintiffs in this State upon bills drawn by B., Gr., and D., as copartners, and accepted here by the plaintiffs without funds for the accommodation of such drawers, that a judgment for the same cause of action, recovered against B. in Missouri, is no merger of the original cause of action as against Gr. and D., and does not discharge the latter therefrom.

3. Held, also, that, in such case — the plaintiffs having accepted from B. his bond, under seal, in compromise of such judgment, conditioned for the payment of the amount agreed upon, by installments of $500 each, for which B. gave his notes at one, two, three, four and five years respectively, with a further provision that, although satisfaction of the judgment was then entered ot record, such satisfaction thereof should not be deemed payment of the debt unless such notes should be paid at maturity, and in default of such payments the amount paid should be credited and the whole residue of the amount of such judgment should remain due, and the debt evidenced by the judgment should remain in full force until all the five notes are paid—these facts are no defense to an action in this State against Gr. and D. upon the original cause of action, although no default has been made by B. in the payment of his said notes.

4. These propositions are deemed the necessary result of the decision in Suydam v. Barber. (18 N. Y. R., 468.)

(Before Hoffman and Woodruff, J. J.)

Heard, November 15th, 1859;

decided, May 26th, 1860.

Appeal by the defendant Girty from a judgment rendered in favor of the plaintiffs against the defendants Girty and Doran, and in favor of the defendant Barber against the plaintiffs.

The action had been tried in this Court and the proceedings reviewed in the General Term in June, 1856, and the complaint of the plaintiffs dismissed on the grounds that, by the recovery

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of judgment in Missouri, in an action against Barber only, and the acceptance of his bond in compromise of the debt, and the entry of satisfaction of the judgment, the plaintiffs had lost their right of action for the original cause thereof as against Grirty and Doran. ( 6 Duer, 34 .)

The judgment of this Court was reversed in the Court of Appeals, and a new trial ordered. (18 N. Y. R., 468.)

The action was again tried in this Court, before Mr. Justice Slossoh and a jury, on the 29th of June, 1859.

■ The plaintiffs seek to recover for money paid on their acceptances of two bills of exchange drawn on them (at New York) by the defendants (at Cincinnati and St. Louis respectively), and accepted and paid in New York by the plaintiffs, without funds, for the accommodation of the drawers. On the trial it appeared that, on the 31st of October, 1848, the plaintiffs recovered judgment, in the Court of Common Pleas in St. Louis County, Missouri, in an action against the defendant Barber alone, for the same cause of action now in question, which judgment was rendered for the sum of $6,415.10, the amount then due to the plaintiffs.

That, afterwards, on the 5th day of June, 1852, satisfaction of the said judgment was entered in the said Court, upon the terms set forth in the following papers, the first of which was filed and the other executed by Barber and delivered to-the plaintiffs:

“ Suydam, Reed & Co., Plaintiffs, ) ja the gt Louis Court of Common “ William B. Barber, Defendant. ) Pleas.

“ Judgment for 6,415TW dollars, October 31st, 1848.

“ Upon a conditional compromise made by defendant, by giving five hundred dollars cash, and five notes for five hundred dollars each, at one, two, three, four and five years from date, pursuant to the terms and conditions of a bond of this date, from William B. Barber to Suydam, Reed & Co., I, as attorney for the plaintiffs, order the said judgment in this case to be satisfied of record by order of the plaintiffs. St. Louis, June 1st, 1852.

“ Brittok A. Hill,

“For Eager & Hill,

“ Att'ys of Record for Plaintiffs.”

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BOND.

“ Know all men by these presents, that I, William B. Barber, of the city of St. Louis, am held and firmly bound unto Henry Suydam, Jr., Almet Reed and Daniel R. Suydam, in the sum of twelve thousand dollars, for the payment of which well and truly to be made to the said obligees, their heirs, executors, and administrators, I bind myself, my heirs, executors, and administrators, jointly and severally, firmly by these presents.

“ Sealed with my seal, and dated the first day of June, A. D., 1852.

“Whereas, the obligees, a firm under the style of Suydam, Reed & Company, obtained a judgment in the St. Louis Court of Common Pleas, against the said William B. Barber, on the thirty-first day of October, 1848, for the sum of six thousand four hundred and fifteen dollars and ten cents, which judgment is now due and unpaid.

“ And, whereas, the said Barber has this day compromised the said judgment conditionally upon the terms that he will pay five hundred dollars in cash, and give his five notes to Suydam, Reed & Company, each for five hundred dollars, and payable with interest in one, two, three, four and five years after date; and pay each of said notes at maturity; or on failure of said Barber to pay said notes, or either of them, at maturity, then the amount paid by Barber on this conditional compromise to be credited to said Barber, on the amount due upon said judgment; and the whole of the balance due upon said judgment, to become immediately due by said Barber, to the said Suydam, Reed & Company, as if no compromise had been made. And upon the considerations herein mentioned, the said Suydam, Reed & Company, have ordered and directed the said judgment against said Barber to be satisfied upon the conditions and by virtue of this bond; but the debt evidenced by said judgment still remains in full force until all the said five notes given by the said Barber, with the interest thereon, shall be fully paid and satisfied; and the said Barber hereby acknowledges himself to be indebted unto Suydam, Reed & Company, in the amount of said judgment, with interest thereon, making in all the sum of $7,794.30, at this date, and the satisfaction of said judgment is in nowise a payment of said debt.

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“ Mow the condition of this obligation is such, that if the said Barber shall pay each of the said notes at maturity, with the interest thereon, then this obligation to be void, else to remain in full force.

[Attest,] “ War. B. Barber. [Seal.]”

“Britton A. Hill.”

On the examination of a witness in relation to the settlement thus made by Barber, the defendants’ counsel put the following question:

“ State the facts and circumstances attending the settlement ?”

This question was objected to by the plaintiffs’ counsel and the objection was sustained, (the defendant’s counsel stating that it was his object, in putting the question, to prove that the settlement spoken of by the witness, which was the same as that referred to in the bond given in evidence, was intended by the parties to it to be in full satisfaction of the plaintiffs’ claim,) and the defendant’s counsel excepted to the ruling.

It was then admitted by the plaintiffs’ counsel that the five hundred dollars cash, mentioned in the bond, was paid by the defendant Barber, and that all the notes therein mentioned, which became due up to the commencement of the suit, which was on the 18th day of September, 1854, were duly paid, and that after the bond aforesaid was given, and before the commencement of the suit, the defendant James Doran, paid the plaintiffs five hundred dollars, on account of their claim in this action.

The plaintiffs then read in evidence the following provisions of a statute' of the State of Missouri: 1. All contracts which, by the common law are joint, shall be construed as joint and several. 2. In all cases of joint obligations and joint assumptions of co-partners or others, suits may be brought and prosecuted against any one or more of those who are so liable. (E. S., Mo., 1845, p. 112.)

The defendants’ counsel insisted that upon the undisputed facts the defendants were entitled to a verdict.

The plaintiffs’ counsel asked the Court to dismiss the complaint as to the defendant Barber or allow them to discontinue as to him, and insisted on a verdict as to the other defendants.

The Judge refused the requests of both and instructed the jury to find a verdict in favor of the defendant Barber, and against the defendant Girty. Exceptions were duly taken.

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The jury then found a verdict for the plaintiffs against the defendants Girty and Doran, for the sum of $7,279.31, and a verdict in favor of the defendant Barber.

From the judgment entered upon this verdict, the defendant Girty appealed, (Doran not having appeared in the action; whether he was served with process or not the case does not disclose.)

James C. Carter, for the defendant (appellant).

I. The judgment recovered in Missouri is per se, and without satisfaction, a bar to the present action.

1. The contract upon which the action is based, was made in the State of New York, and was to be performed in that State. (Story’s Conflict of Laws, §§ 280-287, and 319, and authorities there cited; Weston v. Stoddy, 8 Martin, 93; Lewis v. Owen, 4 Barn. & Ald., 654.)

2. The contract is, therefore, to be governed by the laws of the State of New York. (Same authorities as above cited; Burckle v. Eckhart, 3 Comst., 132.)

3. " By the general common law, and by the law of New York, the contract (which was a contract of copartners,) is joint only, and not several, or joint and several; and it would be so by the law of any State or Government, unless some positive enactment should declare it to be otherwise. (Robertson v. Smith, 18 John., 459 .)

4. A judgment recovered, though unsatisfied, against one, or more several joint debtors, is a merger of the original cause of action, and an utter extinguishment of the liability and the debt, as between the plaintiffs and any of the joint debtors, whether made parties to the action or not, and no suit can afterwards be maintained against the latter. (Robertson v. Smith, supra; Oakley v. Aspinwall, Opinion of Bosworth, J., 1 Duer, 1 ; Ward v. Johnson, 13 Mass., 148 ; King v. Hoare, 13 Mees. & Welsb., 494; Peters v. Sanford, 1 Denio, 224 ; Pierce v. Kearney, 5 Hill, 82 ; McMaster v. Vernon, 3 Duer, 250 ; Olmstead v. Webster, 4 Seld., 413.)

5. The right of action upon a joint promise cannot be extinguished or suspended as to one of the joint contractors, without being extinguished or suspended as to all. (Sunderland v. Loder,

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5 Wend., 58 ; Chapman v. Hatt, 11 id., 41; Robertson v. Smith, supra.)

II. The fact that the judgment pleaded in the present case was recovered in the State of Missouri, where a statute is in force which enacts that all joint contracts shall be construed as joint and several, and that in all cases of joint obligations and joint assumptions, suits may be brought and prosecuted against any one or more of those so liable, does not take the case out of the principles and rules laid down in the foregoing propositions.

1. The rule being that the law of another State is to be deemed and taken to be like that of our own, except so far as it is proved to be different, it is by no means clear that even in Missouri the above-mentioned statutes would be so construed as to permit a plaintiff to first treat a contract as joint and afterwards as several, or the converse.

2. Nor is it clear that in Missouri these statutes would not be treated as affecting not merely the remedy but the nature and essence of the contract; and therefore as not applicable to a contract made like the one in question, in New York.

3. It is, however, very clear that this action in its present form, could not be maintained in Missouri. The previous judgment against Barber would be even there an insuperable obstacle in the way of joining him as a defendant.

4. But the conclusive arguments in support of our second point, are:

(a.) By the Constitution of the United States, the legislation of Congress pursuant thereto, and the uniform decisions of the higher tribunals, the judgments of the Courts of the different States are in each of the States placed upon the same footing as domestic judgments, whether as mergers, as evidence, as estoppels, or as bars. (Besley v. Palmer, 1 Hill, 482 ; Bank of the United States v. Merchants’ Bank, 7 Gill, 416 ; Mills v. Duryee, 7 Cranch, 481 ; Candee v. Clark, 2 Mich., 255 ; Andrews v. Montgomery, 19 Johns., 162 ; Shumway v. Stillman, 6 Wend., 447 ; Constitution of U. S., Art. 4, § 1; Act of Congress, May 26th, 1790.)

(b.) The statutes of Missouri, above referred to, in respect to the mode of redress to be pursued in her Courts can have no force, operation or effect out of that State. (Blanchard v. Russell,

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13 Mass., 4 ; Bank of Augusta v. Earle, 13 Pet., 519 ; Story’s Confl. of Laws, §§ 7, 20, 21.)

(c.) If effect be given to the Missouri statutes here so far as to hold that the judgment would not be a bar here because it would not be so there, then effect must be given to the same statutes in every other respect, and thus the duty would be imposed upon our State of adopting and administering in her own tribunals a part of the remedial law of Missouri.

(d.) If this extraordinary duty be really imposed upon the Courts of this State, it is one which must be performed under all circumstances, whether her law be silent as to the matter, or whether it speaks—whether it be in accordance with her notions of what her sound internal policy should be, or against them— in either case, the foreign statute must have unimpeded effect (e.) The clause in the Constitution of the United States, above referred to, gives to the judgments of our sister States full faith and credit only. The act of Congress above referred to, speaks only of faith and credit. Sound policy requires that in determining what effect the judgments of one State should have in another, regard should be had to faith and credit only, i. e., to the merits involved in the judgment, and the conclusiveness of the determination. (Bank of Alabama v. Dalton, 9 How. U. S., 528; Townsend v. Jemison, 9 id., 407; McElmoyle v. Cohen, 13 Peters, 324.)

(f.) As to everything else, except the merits and the conclusiveness of the determination, the judgments of one State are regarded in the Courts of another simply as foreign judgments. All other peculiar incidents which may belong to a judgment through local legislation relate merely to the remedy; and nothing is clearer than that the lex fori is to govern as to everything which relates to the mode and manner of legal redress. (Townsend v. Jemison, 9 How. U. S., 407; Brengle v. M'Clellan, 7 Gill. & John., 434; Story’s Com. on the Constitution, 2d ed., § 1313.)

(g.) In addition to the above reasons, sufficient in themselves, the following considerations may be added:

(1.) The plaintiffs having elected their forum in Missouri, and taken a peculiar proceeding, may rightly be held to abide by the consequences of their voluntary act. (Robertson v. Smith, supra.)

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(2.) Regarding the judgment as a contract, as judgments are sometimes regarded, it is res mfer afobs acto, and cannot, therefore, bind the defendant, Girty, who was not a party to it.

(3.) Regarding it not as a contract, but as a proceeding in invi tum, which is the true view, the judgment was rendered in an action to which the defendant, Girty, was not a party, and therefore cannot affect him.

III. The judgment recovered against Barber in Missouri was satisfied, and a judgment satisfied against two or more, whether jointly or severally liable, is a satisfaction of the debt, and so a bar to any further action.

1. There is nothing in the record of the judgment to show that the plaintiffs in the action did not recover all that was due to them, and no evidence to the contrary was offered, nor would any have been admissible if -offered. (Hosack’s Ex’rs v. Rogers, 25 Wend., 313 ; Opinion of Furman, Senator.)

2. There is nothing in the judgment record to show that the plaintiffs did not expect and intend that the judgment would have the usual effect of such judgments, namely, to discharge the other joint debtors.

3. It is erroneous to treat the judgment and the accompanying satisfaction as a kind of collateral security having no more effect than an agreement between the parties. A judgment is the termination of a proceeding in invitum. Its effect is defined by law, and cannot be modified to suit the convenience of the parties to it, even if the intention to modify it were expressed.

4. The effect of the satisfaction of the judgment is not changed by the execution of the bond which the plaintiff put in evidence. The bond could form no part of the record, nor can the nature of the satisfaction be changed by an exhibition of the considerations which led to it, or the manner in which it was affected. The question of intention is irrelevant.

5. There is no similarity between the present case and that class of cases in which some collateral security is given for a debt, and where it is held that a judgment or an action upon such collateral security is not a bar to an action upon the original contract.

6. Mor has it any resemblance to that class of cases where, by the consent or agreement of all tlm parties liable on a contract,

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some are relieved and the liability of others is discharged. Girty and Doran were not parties to the transaction between the plaintiffs and Barber. (Nicholson v. Revill, 4 Ad. & El., 675.)

IV. The test question to be determined here is, whether Barber has a defense to this action. If so, it follows by necessary and inevitable consequence that the other defendants have the same defense.

[Up to the time of the reversal in this case in the Court of Appeals, the only defendant who had been served with the summons, or who had appeared in the action, was George W. Girty. Before the new trial in this Court, the answer of the defendant Girty was so amended as to set up a new defense, namely, accord and satisfaction; and the defendant Barber appeared and put in the same defenses as the defendant Girty.]

V. The evidence in respect to the facts and circumstances under which the settlement was made, should have been received.

VI. The judgment of the Court of Appeals simply decided that the contract was not merged as to the defendant Girty. That Court did not consider the question whether, in an action on a joint contract where a joint contract was proved, there could be a judgment against one of the defendants, and a judgment in favor of another.

VII. The Code has, in this respect, so far. and so far only, altered the prior law, as to permit the plaintiff, when he declares on a joint contract, and proves a several one, to recover against such of the defendants as he might have recovered against had he brought his action, originally against those severally liable, and declared on the several liability. (Parker v. Jackson, 16 Barb., 33 ; Brumskill v. James, 1 Kern., 294; Clafflin v. Butterly, 2 Abb., 446 .)

VIII. In the present case, the liability declared on was a joint liability. The liability proved was a joint liability; and an action could never have been brought against'any of the defendants without joining all of them.

The judgment should be reversed, and a new trial ordered.

A. J. Willard, for plaintiffs (respondents).

I. The first exception arose upon an offer on the part of the appellants to show, by parol testimony, an intent on the part of

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the parties to the conditional compromise, variant from that expressed on the face of the papers. It is obvious that the bond was prepared and executed for the express purpose of fixing and witnessing the intent and meaning of the parties, and accordingly it must be allowed to have, in that respect, conclusive effect.

II. The other exceptions present a single question, viz.: Whether, upon the whole case, as it was presented, the plaintiffs or the defendants were entitled to judgment. It was conceded that no question of fact was presented, and each party claimed an instruction, in his favor, directing the jury to render a specific verdict. Such an instruction was prayed for by the defendant Grirty, and, being refused, forms the subject of the second exception.

1. The case, as it stands at the present time, is with certain immaterial exceptions, considered under the next subdivision, identical with that made on the former trial. Judgment, on that trial was given for the defendants. The reversal of that judgment was a declaration by the Court of Appeals that the judgment should have been for the plaintiffs instead of for the defendants. So far, then, as the testimony on the two trials was the same, the decision of the Court of Appeals must be deemed an authority for the rulings in the present case. (18 N. Y. R., 468; 6 Duer, 34 .)

2. The facts- alluded to in the foregoing subdivision, as introduced for the first time on the last trial, are enumerated and considered below.

(a.) It was admitted “ that the judgment recovered in Missouri, of which the foregoing is the record, was the exact amount due to the plaintiffs at the time of the rendition thereof, on account of their having accepted and paid,” &c. This fact, although not directly set forth as either proved or considered on the former trial, yet it was assumed to be true, and both the opinion in this Court and the Court of Appeals proceed on such assumption.

(6.) It was also admitted that Barber had paid $500 cash, and all the notes that had matured up to the commencement of this action. This was a fact distinctly assumed on the former trial. The bond of compromise was before the Court, and the payments and the time of their maturity were in the Case. The plaintiffs did not allege or prove a failure on the part of Barber to perform

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the conditions of his bond; and, accordingly, the presumption upon the case as it stood was, that Barber had complied, as far as the bond required, with its provisions.

(c.) It was also proved that, after the date of the bond, and before the commencement of this suit, Doran paid, the plaintiffs $500. This fact, if it has any effect on the merits of this controversy beyond that of limiting the amount the plaintiffs are entitled to recover, makes for the plaintiffs, for it is a distinct admission, at least as far as Doran is concerned, that the original debt existed, notwithstanding the compromise bond.

The judgment below should be affirmed, with costs.

On the first day of June, 1852, William B. Barber, one of the copartners in the defendants’ firm, executed to the plaintiffs his bond, under seal, in the penal sum of $12,000, conditioned for the payment of $3,000, in part in money, and in part according to the tenor of certain five notes therein mentioned, with a provision that, until such notes were paid, the whole debt for which the judgment therein mentioned was recovered—(that being the same debt for which this action is brought against the defendants as copartners)—should be and remain due and in full force; and in the said bond the said William B. Barber, under the same seal, acknowledges himself indebted to the plaintiff in the sum of $7,794.30. The cash payment was made, and all the notes which were payable before this action was commenced were duly paid.

It cannot be denied, I think, that, if the said Barber made' default in the payment of any of the notes, an action would lie against him upon this bond: that, according to the common law rule, and under our statute, the plaintiffs might, in such an action, take judgment on this bond for the amount of the penalty, and would be entitled to collect on execution the whole $7,794.30, or any balance due thereon.

This bond was therefore a specialty. It was executed and delivered to the plaintiff by one of three partners for the debt of the firm.

Although under the decision of the Court of Appeals, (18 N. Y. R., 468,) the recovery of the judgment in Missouri against Barber did not, by reason of the peculiar laws of that State,

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merge and extinguish the copartnership debt, it is nevertheless insisted .that the acceptance of the bond of Barber for the debt of the firm did so.

In Clement v. Brush, (3 John. Cas., 180,) it was distinctly held where one of two partners executed his bond for the debt of the firm, it extinguished the simple contract or partnership debt. That case was strikingly like the present in two of its prominent features. It was entirely obvious on the face of that transaction, that the creditor never intended to part with the liability of either partner. The bond was executed in the name of the firm. But the Court having first held that one partner could not bind the other by seal, and next, that the bond was a valid obligation binding the partner by whom it was signed, declared that it operated to extinguish the copartnership debt. And, again, the transaction was in another State, (Pennsylvania,) and the Court held, in the absence of evidence that by the laws of that State the bond would not have the effect stated, the rule was imperative, and the copartner discharged.

So in Tom v. Goodrich, ( 2 John., 213 ,) where a firm was liable to the United States for duties, it was held that the claim of the United States against the firm was extinguished by the giving and acceptance of the bond of one of the Copartners therefor. And the same doctrine is again distinctly recognized and approved in Waldron et al. v. Sherburne et al., ( 15 John., 409 ,) and see, also, McBride v. Hogan, ( 1 Wend., 335 ,) United States v. Astley, ( 3 Wash. C. C., 508 ,) Collyer on Partnership, (§ 481, note.)

The same doctrine is expressly recognized and affirmed in the State of Missouri, where this bond was given and received. In Settle v. Davidson, (7 Mo. R., 604,) it was held that a bond given by one of several copartners, for a debt of the firm due by simple contract, is an extinguishment of such simple contract debt, which thereby becomes the sole debt of him who executed the bond.

This deliberate judgment of the Missouri Courts, while the statute of Missouri in regard to joint and several liabilities was identical with that upon which the plaintiff relies, may properly be regarded as an authoritative exposition of the effect of their statute, and to be decisive that, notwithstanding the statute, the

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acceptance of the separate bond of one of two copartners for the debt of the firm extinguishes the debt and discharges the other partner—that the law in that respect is there, (notwithstanding the statute,) the same as it is in this State.

The question however remains, (if this Missouri decision be followed,) whether this bond was accepted for the copartnership debt? It may be true that one of two copartners may place in the hands of the creditor collateral securities, and even his own bond and mortgage, upon such conditions that they shall not destroy the simple contract debt. (7 Rich. So. Car. R., 114; 4 Watts, 518 ; 6 id., 165; 4 Dev., 460 ; Collyer on Partnership, 3d Am. ed., 435, note, § 481.)

But here the bond was taken in compromise of the debt, and the payment of the notes therein mentioned would, by the plain construction of the bond, have operated to discharge Barber. It appears by the opinion of Johnson, Ch. J., and by the dissenting opinion of Mr. Justice Harris, that the effect of this bond did not escape their attention; and if not, then, whatever our own opinions might be we should hardly be warranted in holding that the defendant Girty is discharged by the giving and acceptance of this bond, (although it does not appear that the decision of the Courts of Missouri was called to their notice,) unless the case is altered by the proofs given on the last trial. In the opinion of Chief Justice Johnson, in reference to this bond, he speaks of it as a conditional compromise not shown to have been carried out. On the last trial it was admitted that all the notes which are mentioned in the condition of this bond, which became due before this action was commenced, were duly paid

I cannot, however, see how that can affect the question of Girty’s liability—it entitles him to a credit of what has been paid, and it may show that the action cannot be maintained against Barber, but if neither the recovery of the judgment nor the acceptance of the bond discharged Girty, then he is not discharged by payments on the bond of part of the amount of the debt.

I think that the decision of the Court of Appeals requires us to affirm the judgment.

The decision of the Court of Appeals has settled the law of this, case tp be, that the. judgment obtained in Missouri against Barber, upon the joint debt, could not be set up as, a defense by the co-debtors, when sued; in this State. It did not merge, the original liability, because of the provision in the statute of Missouri, “ that all contracts which, by the common law, are joint only, shall be construed to be, joint and several.” (18 N. Y. R., 468.)

The next question in the case is, what is¡the effect of the compromise and arrangement effected, by the conditional bond— the payment of all the notes given under it as they matured — and the commencement of this action, before the next note in order of time had become due? The: original debt, as evidenced by the judgment, with interest to the date of the bond, was $7,794.30. The compromise, was for $500, paid in cash, and five notes for $500 each, payable in from one to five years.

The Chief Justice, in delivering the opinion in the Court of Appeals, adverts to this point in the following manner: “It,is difficult to see. how the mere formal satisfaction of the judgment against Barber, which appears by the cotemporaneous bond, referred:to, in the entry as the attorney’s authority to satisfy, tp, have, been founded on. no actual satisfaction or extinguishment, of the debt, but only upon a. conditional compromise not shown to have been carried out, can be available to these defendants.”

It is true, that by the proofs in the present action,, the compromise is shown to have been carried put according touts terms, by.performance, of all that was t.o be fulfilled before the commencement of this, action. Still it had, not, been executed, in full. It remained to some extent executory.

We apprehend, however, that the rule which the Court of Appeals intimates, if it does not prescribe, is, that the conditional compromise of. the judgment, and of the judgment merely against Barber, could not, as to the copartners, have any greater effect than the judgment itself. The judgment had- no operation to prevent a suit against the others upon the original demand. The conditional agreement affected and vacated the judgment; but by its very terms, the debt evidenced thereby was to remain in full force until all the notes given by Barber were fully paid; Barber acknowledging himself indebted in the

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amount of the said judgment. Thus the debt was not absolutely extinguished, but expressly retained, and only to be extinguished even as to Barber, by the eventual payment.

The result is, that the judgment must be affirmed.

Judgment affirmed, with costs.