# Mason v. Eldred

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United States Supreme Court
73 U.S. 231
Mason v. Eldred
On certificate of division between the judges of the Circuit Court for Wisconsin. A statute of Michigan, known as 'the Joint Debtor Act,' 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.'Other sections provide that execution shall be issued in form against all of the defendants; that the exec tion 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.
Mr. G. W. Lakin, for the plaintiff:
1. The record offered was inadmissible under the plea of non assumpsit. That plea puts the plaintiff to the proof of all that he alleges. It makes no allusion to a 'former recovery,' nor to any claim that the supposed original liability has assumed a higher form. It is also at variance with the rule, that a matter of defence, which admits the facts stated in the declaration, but avoids them, should be specially pleaded.
2. There is a distinction between copartnership promissory notes, or contracts, and ordinary joint notes, or contracts. The former are in effect several, as well as joint.
3. A judgment against one joint debtor, is no bar to a suit against the other, even though pleaded. In Sheehy v. Mandeville & Jamesson, in this court, the plea interposed by Mandeville, was, in substance, that, in a former suit, judgment had been rendered in favor of Sheehy, against Jamesson (his partner) on the same note. The note had been signed, 'Robert B. Jamesson.' In the first action it was treated as the note of Jamesson alone, and judgment rendered against him. In the second as the note of Mandeville & Jamesson, trading under the name of 'Robert B. Jamesson.' There was a judgment against Jamesson, and this court decided it to be proper to give judgment against the other partner. This is the point presented in the case at bar. There have been many attempts in State courts, to overturn this decision, and sometimes, in the Federal courts, to evade it, by getting up and drawing fancied distinctions, but it stands, because founded in good reason. 'In point of real justice,' says Marshall, C.J., 'there can be no reason why an unsatisfied judgment against Jamesson should bar a claim upon Mandeville.' In Dennett v. Chick, a case in Maine, the same doctrine was held.
4. The statute of Michigan, correctly construed, negatives the conclusion that the judgment against Elisha Eldred is a bar to an action against Anson Eldred.
Mr. J. W. Cary, contra, contended:
1. That under the general issue, anything was admissible that showed that no cause of action existed at t e time of bringing the suit.
2. That whether Sheehy v. Mandeville, was, or was not analogous in all its features to the case at bar, it had, as generally understood, never been well received; and that numerous cases establishing a better principle were arrayed against it.
3. That the statute of Michigan affirmed the conclusion, that the judgment in Michigan was a bar to an action against Anson Eldred in Wisconsin. Why else did it permit the joint property of the defendants to be bound by this judgment?
Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

## Notes

* ↑ Compiled Laws of Michigan of 1857, vol. 2, chap 133, page 1219.
* ↑ See Chitty's Pleading, 479; 3 Id. 929; Dexter v. Hazen & Arnold, 10 Johnson, 246.
* ↑ 6 Cranch, 253.
* ↑ 2 Greenleaf, 191.
* ↑ Bonesteel v. Todd, 9 Michigan, 371; Oakley v. Aspinwall, 4 Comstock, 513.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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