#### Benjamin De Forest *and*Alfred De Forest *versus*John Jewett *and*Samuel Parsons.

Oct. Term, 1828.

In a suit against *two*defendants, founded upon a joint cause of action against both, *one*of the defendants cannot defeat the action by pleading, in abatement, matters which are applicable to himself alone. To make a plea in abatement effectual in such a case, *all*the defendants must unite in the plea, and it cannot be interposed by one alone.

In an action of *assumpsit*against the defendants, Jewett <§■ Parsons, for money had and received, the former appeared by his own'attorney, and pleaded the general issue ; while the latter, by a separate attorney, appeared and pleaded, in abatement of the *tohole*suit, the pendency of certain foreign attachments in the state of Connecticut, which had been issued against himself alone. Upon demurrer to this plea, it was *held*to be bad, the cause of action not being covered by the plea.

This was an action for money had and received, by the defendants, to and for the use of the plaintiffs. The declaration contained the usual money counts, together with a count upon an *insimul computassent.*

The defendants severed in their defence ; and Jewett appearing^ by his own attorney, pleaded the general issue, and gave notice of set-off. Parsons, the other defendant, appeared by a separate attorney, and pleaded *in abatement*of the suit: That on the 23d day of March, 1827, at the city of New-York, David Cromelien and David Davies made an assignment of certain goods and effects therein specified, to the defendants in trust, to be converted into cash, and distributed among certain creditors of Cromelien & Davies ; amongst whom were the plaintiffs and Charles Belden and George Belden. That the defendants accepted the trust, received the effects assigned, converted the same into money, and proceeded to distribute the funds among the creditors of Cromelien & Davies, according to the terms of the assignment. That before the commencement of this action, to wit, on the 25th day *138of June, 1827, at New-Haven, in the county of New-Haven and state of Connecticut, four several actions were commenced, by writs of foreign attachment, against the said Charles Belden and George Belden, by certain of their creditors, as absent * absconding debtors. That said writs, for the equal and joint benefit of all the attaching creditors, without any priority amongst the same, were, on the said 25th day of June, served on the said Parsons, who' was then in New-Haven ; and thereby, according to the laws of the state of Connecticut, attached all the monies, goods and effects of the said Charles Belden and George Belden, which were then in the hands of Parsons, to satisfy the claims of the said attaching creditors. The plea then averred, that all the money and effects of Charles and George Belden, in the hands of Parsons, at the time of the service of the said writs, were held by him under and by virtue of the assignment from Cromelien & Davies; and that nothing had been received by him since that time, under said assignment. That, at the time of the service of said writs, the claims of all persons under the assignment, except those of the plaintiffs and of the said Charles and George Belden, had been satisfied; and that at said time there were, and still are, funds in the hands of the said *John Jewett,*received under said assignment, more than sufficient to pay and satisfy the claims of the plaintiffs ; and that the said Parsons is not otherwise indebted to the said plaintiffs, than by reason of the funds so received under said assignment, and so attached in the state of Connecticut. The plea then further averred, that the attaching creditors had recovered judgments in the state of Connecticut, on their several suits against the said Charles and George Belden, to a greater amount than that demanded by the present plaintiffs in their declaration; and that executions were taken out upon said judgments, and demand made of the said Parsons, in the state of Connecticut, of the moneys, goods and effects in his hand, belonging to the said Charles and George Belden. .That writs of *scire facias*were thereupon issued, by the attaching creditors, against Parsons, and duly served on him, requiring him to show cause why the amount of said judgments should *139not be levied out of his proper goods and estate ; which writs of *scire facias*were issued before the commencement of this action, and are still pending and undetermined.'-igThe defendant therefore “ prayed judgment of said writ and declaration, that the same might be quashed.”

To this plea the plaintiffs demurred; and *Mr. Hugh Maxwell,*in support of the demurrer, now contended,

I. That tiie plea was bad in substance. That the proceedings in Connecticut, disclosed by the plea, being between *different parties,*asserting distinct rights, to which these plaintiffs were entire strangers, could interpose no bar to the present action.

II. That there was no privity between the plaintiffs and C. & G-. Belden; the rights of the ^parties not being connected with, nor dependent upon one another. If the creditors of the Beldens were to succeed in drawing out of the hands of Parsons, all'the funds he holds in trust for *them,*it could in no way affect the rights of the present plaintiffs against the defendants in this suit, as set forth in the declaration. The plaintiffs have declared upon a *joint*promise, express or implied, made by both defendants, and must prove the promise as laid, or fail in their action, upon the trial. A recovery in Connecticut against Parsons, by the creditors of C. & G. Belden, could not be pleaded in bar of the pre-. sent aoticn ; for, a *former recovery,*to be available as a defence, must be for the same *cause of action,*and must be sustained by the *same evidence.*[3 *Wil. Rep.*304. 1 *Chit. Plead. 553.]*

III. The *rights*upon which the actions are founded, are different. Parsons is here sued *jointly*with Jewett for a *joint debt;*but the matters pleaded in abatement, affect Parsons only.* Jewett pleads the general issue, and puts himself upon *that*defence ; while Parsons interposes a plea, which, if it can be sustained, overreaches the issue tendered by his co-defendant, and ousts him of *his*defence, by abating the whole suit. This cannot be done ; for the plea does not go to the cause of action set forth in the declaration. It is no defence against the claim upon Jewett ; and, as the action is brought to recover a *joint*debt, *the plea,*to be available, must be set up by both defendants jointly. But *140&o¿/i defendants, even, could not plead *'that*jin. abatement, which is sufficiently only for *one ;*for in such case the plea would be ^ad as to both. [1 *Chit. Plead.*545.] Jewett has never been called upon by the courts of Connecticut to surrender up the funds in *his*hands, and the proceedings against Parsons alone are of no avail to him. In no point of view, therefore, could this plea be maintained, unless the proceedings in Connecticut had been against both trustees, and the defence were to be set up by both jointly.

IV. But even if the plaintiffs were bound by the proceedings in Connecticut, there still could be no reason for abating the present *suit;*for the plea expressly admits, that there are funds in the hands of the defendants sufficient to satisfy the demands of the plaintiffs, and of the Beldens also. The present action being *joint*against both defendants, there can be no apportionment of the funds in their hands, so far as this suit is *concerned;*but each defendant is liable for the whole amount of the claim. Each being then constructively in the possession of funds to the full amount of the plaintiffs’ demand, there could be no good ground for this plea, even if well founded in other respects.

*Mr. Staples,*for the defendant, Parsons.

This is an action brought against the defendants, as co-trustees. One of the trustees, Samuel Parsons, being accidentally in Connecticut, was served with a legal process, out of the courts of that state, according to its laws, by certain creditors of C. & G. Belden, whereby he was commanded not to surrender up any of th'éWunds in his hands, to the *cestuy que trusts,*but to hold the same, subject to the final orders of the court issuing the process. There can be no pretence but what these proceedings were well founded, and that the courts of Connecticut had aright to issue such process. The question then arises, whether any other person interested in the fund, can call upon the trustee, until the result of the proceedings in Connecticut can be known. Can tins court anticipate *the*result of the judgment of the tribunal now exercising its jurisdiction over the same subject matter *1*It may be, that Par*141sons will be compelled, by the courts of Connecticut, to surrender up the whole of the funds in his hands, belonging to Cromelien & Davies, for the benefit of the creditors of C. & G. Belden. . This court cannot know judicially, nor even by presumption that such will *not*be the result of the proceedings in Connecticut; and if Parsons shall be compelled by the judgment of a court of competent jurisdiction, to surrender up all the funds in his hands, how can this tribunal call upon him again for the same fund *1*Can he be made twice responsible for the same trust *%*Until the result of the proceedings under the foreign attachment can be known, Parsons ought not to be harassed by the suit of other persons, interested in the fund, nor be placed in peril of twice answering for the same trust. The principle on which this plea is founded, has been expressly recognized by the Supreme Court of this state, in the case of Embree v. Hanna, [5 *John. Rep.*193.] and it cannot be resisted by any arguments founded either in justice or correct principles of law.

Payment under a foreign attachment is a bar to another suit., though the plaintiffs in the latter are trustees, under an attachment made before the commencement of the foreign attachment suit; *[Holmes v. Remsen,*4 *John. Ch. R.*460. *Same case, 20 John. R.*229.] and a *judgment*has the same effect, *[Hull v. Blake,*13 *Mass. R.*153.] and may be given in evidence unde the general issue in assumpsit. *[Mc. Daniel v. Hughes,*3 *East,*367.]

In the case of Le Chevalier v. Lynch, [Doug. 170.] the court put off the case on application of the defendant, to enable him to send abroad for testimony, that a prior suit by foreign attachment had been brought against him. [See *note to*4 *Cowen,*521.]

If payment be a *bar,*it follows that an action *pending is*good in *abatement. [Embree v. Hanna, supra.]*And it is sufficient if the proceedings in Connecticut are according to the laws of that state, though not of this. *[Hull v. Blake, supra.]*If they are not, the plaintiffs should have shown that fact by replication, or it must appear from the plea itself. It does not appear from the plea, unless the court can say, that it is contrary to the laws of Connecticut to attach funds in the hands of one of two joint trustees. This *142defence should have been set up in *Connecticut,*where the suit is now pending ; for if the plaintiffs succeed there, whether according to law, or contrary tojaw, the defendant Parsons, must be a sufferer.

It is of no consequence that the proceedings in Connecticut are not between the same parties, for the question at issue, relates exclusively to the *fund.*If another tribunal has power over *that,*this court will never compel this defendant to respond twice for the same fund. Neither is it any answer to the plea, that this is a joint action for a joint debt: because that fact cannot prevent the court in Connecticut from exercising its jurisdiction over the funds in the hands of Parsons. He is only answerable for the money in *his*hands, and that may be entirely taken away from him by the judgment of a court having competent jurisdiction over the subject matter. Each trustee is liable for the funds, which have come into his hands, and for nothing more ; he cannot be made responsible for the acts of his co-trustee. If this be so, then Parsons ought to be permitted to set up such a defence as shall protect *him,*without any reference to Jewett, for whom he is in no way responsible.

But it is said, that the funds in the hands of *both*trustees, are sufficient to discharge the demands of *all*persons interested in the assignment, and therefore, there can be no hardship in the case. It does not follow from these premises, that *Parsons*has money enough under *Ms*controul to satisfy the claims of all the *cestuy que trusts.*If he had, there might he force in the remark; but the danger is, that all the effects in his hands may be taken from him in Connecticut, and he still be made answerable in this action for the default of Jewett, his co-trustee. If the fund in the hands of Parsons be exhausted, there can be no just ground for making him liable to these plaintiffs, to whom he is in no way indebted, except under the assignment.

*Per curiam.*

This action is broughtagainst twodefendants,founded upon a joint contract by both. The declaration counts upon a joint promise, and at the trial, this promise must be proved expres sly *143as laid, or the plaintiffs will be liable to be nonsuited. One of the defendants pleads the general issue; while the other interposes a plea in abatement to *the whole suit,*founded upon matters, which are applicable merely to himself. This plea cannot be sustained; for the cause of action being joint, against the two defendants, nothing can abate the suit, which is not pleaded by both. One of two joint defendants cannot plead any matter in abatement of a joint suit, which is applicable to himself alone; for the plea, in such case, does not reach the whole cause of action. The plea must be sufficient to defeat the suit against both defendants; and to accomplish that, the joint defendants must unite in the plea, Here the defendant, Parsons, pleads the service of a process of foreign attachment upon him alone in Connecticut, and'sets it up by way of defence to an action against himself and Jewett, founded upon a joint promise by both. To make this defence available in any point of view, both defendants must unite therein-

The plea may be considered as defective in another particular.. There is no averment, that the suit pending in Connecticut, is for the same debts, or on the same promises, which are set forth in the declaration. The plea avers,that Parsons (individually) is not indebted to the plaintiffs upon any other account than for the funds in his hands under the assignment. The promises here relied on, are the joint promises of both defendants, and may be entirely distinct from those specified in the plea.

The principle, upon which the defendant intended to rest his plea, is doubtless correct, both in its general equity and by express adjudications. Had the process of foreign attachment in Connecticut been served upon both defendants, and had they joined in the plea, their defence to the action must have been effectual. If the funds in the hands of a trustee are withdrawn from him by the authority of a court of competent jurisdiction, he never can be called upon by any other tribunal for the same money. But here the defence must fail, because the defendants have not united in the plea which is interposed. There must be judgment for the plaintiffs on the demurrer ; but the defendant *144has leave to withdraw his plea on payment of costs, and to answer over.

*Judgment for the plaintiffs on the*demurrer.

[W. P. Hawes, *atty for the plffs.*W. S. Johnson, *atty for the deft Parsons.*J. W. Gerard, a*tty for Jewett.*]

Note. The authorities upon the subject of pleas by several defendants may be found collected in Archbold’s Pleadings, 338. 255. Chit. Plead. 447., 553. and in Steph. on Plead. 270. This last author in a note observes, “ it is *said,*that several defendants *cannot sever*in *dilatory pleas*and for this he cites Hob. 245.