¶1The condition of the bond on which this suit is brought is, in substance, that the defendants will pay the "amount justly due and owing by John W. Baker and John Young on account of any debt claimed and sworn to" by the plaintiff in his application for an attachment against the property of Baker Young as non-resident debtors. (2 R.S., 3, §§ 3, 4, 55.) The sworn application of the plaintiff, on procuring the attachment, set forth that he had a demand against Baker Young of $22,492.89, arising upon a judgment against them rendered in the supreme court. On the trial, the plaintiff offered to introduce a record, showing that before he applied for the attachment he commenced an action of assumpsit against Baker Young, as partners; that the process was served on Young alone; that Baker did not appear in the action; that Young gave a confession of the demand, and that judgment was rendered in form against both of the defendants, according to the statute concerning suits against joint debtors. The evidence was rejected, as was also the testimony offered to prove that Baker was in fact a partner of Young and jointly liable for the demand to recover which that suit was brought. The precise question, therefore, is, whether the evidence offered and rejected would establish a demand against them both, "arising on a judgment," that being the character of the debt sworn to in the application for the attachment. If it would, then the condition of the bond now sued upon is broken, otherwise it is not.
¶2The question was decided in the plaintiff's favor, by the superior court of the city of New-York, after a former trial *507 and verdict. It was then brought to this court by appeal, and was twice argued and twice decided against the plaintiff; the first decision having been vacated, for reasons which are now of no importance. The cause has been tried again, and we are now asked to reverse the second judgment of the superior court, pronounced in exact accordance with the disposition of the case made in this court on the former occasion. This, I think, we cannot do.
¶3It is urged in favor of a reversal that the judges of this court were not unanimous in pronouncing the former decision, and that those who concurred in the result were inharmonious in the reasoning which brought them to the same conclusion. However this may be, the precise question then passed upon was the very one now before us. There was but one point then before the court, and there is but one now, and that is whether the record offered in evidence, with proof of an original joint liability as partners, proved a demand against both Baker and Young "arising on a judgment." This court certainly held that it did not. The modes of reasoning among the judges may have been different, but their conclusion was united and single.
¶4A case may easily be put in which a judgment would not be authority either in a subordinate court or in the one which pronounced it. If, for example, an appeal to this court involved distinct and separate defences to the action, such as usury and the statute of limitations, and five of the judges should concur in a reversal, two of them placing their decision on the one ground and three on the other, the judgment might be reversed, but nothing else would be decided. Such a determination of the appeal would be no authority, even in the same case. But such was not the character of the decision which we are asked to disregard. It was, on the contrary, the deliberate and careful judgment of our predecessors upon a single ground of defence, presenting, upon undisputed facts, but a single question of *508 law. To disregard the decision would be simply to overrule it, and that I am not prepared to do.
¶5It should be further observed, that while there was some diversity in the reasoning of the judges who concurred in the result on the former occasion, their opinions upon the actual questions involved were by no means repugnant or hostile to each other. Of the three which were written on the same side, two went to the extent of denying that an action of debt will lie upon a judgment such as the plaintiff offered in evidence. The other not only stopped short of that conclusion, but suggested an opposite one. They were all, however, agreed that the essential nature of the demand was not changed by such a judgment, as against the parties not served, and not being changed, that it could not be described and sworn to by an attaching creditor as "arising upon a judgment." That is also the question now, and we ought to follow the decision which has been made. I am the more satisfied to do so, as I am not prepared to say that it was wrong, although the subject is attended with serious difficulties.
¶6The judgment should be affirmed
¶7HUBBARD, J., also delivered an opinion in favor of affirming the judgment.
¶8All the judges concurred in affirming the judgment on the ground stated in the foregoing opinions.