US SUPREME COURT DECISIONS

1. Under the plea of the general issue in actions of assumpsit evidence may be received to show, not merely that the alleged cause of action never existed, but also to show that it did not subsist at the commencement of the action.

Accordingly, if a promissory note upon which an action is brought has been merged in a judgment previously recovered thereon, such judgment being a bar to the action, an exemplification of its record is admissible under the general issue.

2. The rule of the common law, declared in this case to be that a judgment against one upon a contract merely joint of several persons, bars an action against the others, and that the entire cause of action is merged in the judgment. The case of Sheehy v. Mandeville & Jamesson, 6 Cranch 254, commented upon, shown not to have been generally approved, and in effect here overruled.

3. The common law rule above stated is altered by statute in Michigan, the statute declaring that a judgment recovered in an action brought against all the co-partners shall not merge the liability of the co-partners not served with process and not appearing in the action, but that the judgment shall only be evidence of the extent of the plaintiff's demand after their liability is by other evidence established.

On certificate of division between the judges of the Circuit Court for Wisconsin. A statute of Michigan, known as "the Joint Debtor Act" [Footnote 1] thus enacts:

"1. In actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process issued against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with process."

"2. Such judgment shall be conclusive evidence of the liabilities of the defendant who was served with process in the suit, or who appeared therein, but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand after the liability of such defendant shall have been established by other evidence. "

Page 73 U. S. 232

Other sections provide that execution shall be issued in form against all of the defendants; that the execution shall be levied on the sole property of the defendant served, or on the joint property of all the defendants, and that the plaintiff may sue out a scire facias against the defendants not served to show why the plaintiffs ought not to have execution against them, the same as if they had been served with the process by which the suit was commenced.

With this statute in force in Michigan, Mason sued, in the Circuit Court for Wisconsin, Anson Eldered, Elisha Eldred, and one Balcom, trading as partners, upon a partnership note of theirs. Process was served on Anson Eldred alone, who alone appeared, and pleaded non assumpsit. On the trial, the note being put in evidence by the plaintiff, Eldred offered the record of a judgment in one of the state courts of Michigan, showing that Mason had already brought suit in that court on the same note against the partnership; where, though Elisha Eldred was alone served and alone appeared, judgment in form had passed against all the defendants for the full amount due upon the note.

The evidence being objected to by the plaintiff, because not admissible under the pleadings, and because it appeared on the face of the record that there was no judgment against either of the defendants named except Elisha Eldred, who alone, as appeared also, was served or appeared, and because it was insufficient to bar the plaintiff's action, the question whether it was evidence under the issue in bar of, and to defeat a recovery against Anson Eldred, was certified to this Court for decision as one on which the judges of the circuit court were opposed. chanrobles.com-red

Page 73 U. S. 234