<p>A judgment in a suit against two persons on a joint promissory note, rendered against one of them, (the other not having been found,) is a bar to a subsequent suit against both on the same note.</p> <p>To authorize a judgment against JL. in a suit against him and E. on a joint contract (the former only having been found,) the plaintiff must show a good cause of action against both.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1841-05-29
How this case has been cited
Cited by 4 later decisions — most recently November 1878
4 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1Taylor brought an action of assumpsit against 'William H. Moseley and William W. Claypool, on a joint promissory note. The writ was returned non est inventus as to Moseley. Claypool appeared and pleaded as follows: That the plaintiff hei'etofore, &c., impleaded the defendant and Moseley, &c., for not performing the same promises, &c.; and that the plaintiff in that suit (it being suggested that the writ had been served on Moseley and not on Claypool) obtained a judgment against Moseley for the amount due, &c. General demurrer to the plea, and judgment for the defendant.
¶2This is a joint action against Moseley and Claypool; and, to support it, the plaintiff must have a joint cause of action against the defendants (1). The plea shows, that the plaintiff has no such cause of action; because it shows that he had previously obtained judgment against Moseley on the note now sued on. The note, at least so far as Moseley is concerned, was merged in the judgment; and any suit in which he is a defendant, founded on the note, must be barred by that judgment. It is true that, by our statute, if a suit on a joint contract be brought against two, and one only can be found, judgment may be taken against him alone on whom process has been served. R. S. 1838, p. 446. But still, as the action is against both, a judgment against the one served vyith process cannot be obtained, unless the plaintiff can show that he has then subsisting a good cause of action against both. The case of Sheehy v. Mandeville et al., 6 Cranch, 253, seems to be opposed to the plea before us; but that case, as shown in Robertson v. Smith, 18 Johns. 459, cannot be supported.
¶4 According to that principle, the defendant in such case on whom process is served cannot set off a debt due to him alone from the plaintiff; but a debt which the plaintiff owes him and his co-defendant not served with process may be set off.
