New-York tribune., 1868-01-01
TIE CIVIL COURTS.

Surrogate Tucker granted 1890 letters Of ad-
mnisTation, eight letters OF eoeeoG % letters OF Au
mnlstraon with will annexed. i43 tna accOuntng. ana
gaed executors, 66I accounts settled, 22
special orders, In 1851.
Petitions in bankruptcy were filed and re-
gerred Yesterday a. follows: Petition OF Thomas T. C.
spencer referred Register Fitch; Of Arthur Hanks
to Register Dayton; ana of lemnel Bangs Andrew rev NJ
Bangs Brothers & Coz. to Register Alen. All OF the
Above petitioners are Of this city.
The Brooklyn Courts are taking their usual
holiday. The City Court vii! commence jury trials on
Monday next. Tho supreme Court Special Term VIII
open on that day and also th9 United States Courts
where the CsicOt is 10 be the first called Iie
County Judge elect, James Troy has ordered some I'M
EovementS in she accommodations OF the sessions room m
from n view OF the Judge by pillar The juTy-bsX Is
rntng attorney and prisoner and LIS counsel be-
tweoa the jury aud " that old piilar"
The long-pending case in relation to the
Ct which was trial before the superior Court at that
place the nth the lsh OF December has just been
against Elisha Boomer the owner OF the quarry Tor the
specific performance If a contract by which he had
secured 10y chaei morgage The defense was thas the
haraeter and credit while really he had been State
Prison. and was gambler, bankrupt and nos To Dc be-
heyed under Oa;h and also that the contract
rued under mistake Of fact in regard TO the laws OF
Connecticut in regard TO chattel mortgage 10 suhtan
ate mis- defense tho testimony Of number of prominent
hnsiness men in New York was read In regard the
plaintiff antecedents and character together with other
Sefnse also produced certified copies OF his proceedings
In Bankruptcy and Of his sentence for two years TO Moya
aon that be Sad lost 5000 in gambling on sept 49, 1866
The plaintiff. in rebut, denied making the asssrti9ns s
represented. and introduced witnesses 10 snow tha hls
character good and claimed that the defendant mad
only backed ont OF the contract because the quarry was
worth than $4,000 Judge Carpenter has dismissed
The complaint, with costs.
In the United States Supreme Court, the
sase of Richard Mason agt Arson Eled involving the
beard This Is an action Of assumpslt brought upon
stated the common counts. EldTed, who alone was
served with the process appeared defend and inter
eosed the plea Of nonassunpsit The suit was in the
Eircuit for Wisconsin, Upon the trial the phnth pro
luced and read the note ami rested. The defendant
Eldred thereupon produced and offered to read in owl
dence excmplibcation Of Judgment record III the
which record il appeared that It suit brought by
The plaintiff herein against the defendants herein TO re-
bOyer upon the note upon which this suit Drought that
The defendant Lldred alone served with process and
the only defendant who appeared IN tAe su t Das
that Judgment In form passed against an the %
!or the tu S SPS rdcoT tns TSG & sdapce for the
pcadng and, second that II constituted no bar to the
secovay of the plaintiff In this action. On these ques
the Judges we're opposed IN ophion ana the cause
same thence here, on cerulcatS of sue1 uNsiOh tne
defendant Elded, insisting that tho exenped record
MAS admissible under the plea OF BOnaSSuElpsit. Tie
rule we settled that under the Plea OF the geneal
,ause OF action existed at the time OF bringing the SUIT
Payment, SccOrd and satisfaction, foreign attaehhehl
lrbitramenr, former recovery for the same cause
higher security given and releasea can be given III
Iydence under th0 plea of nonGssuiDpSh Ihe defense
.ecovery in the suit. The note suit the Joint,
ana not the JOINT aud several promise Of all the de-
endants The only remedy the plaintiff mas thereon Is 10
,nfOrce the Joint liability aad any proceeding nc may
institute, whereby h0 seeks 10 sever the liability ana
make IL several, be defeated by either one OF te
defendants The Judgment record offered In evidence
hows that p.ainiiu brought ms suit m inc sate Gl
Michigan upDn this note, against all the defendants
scren, that recovered Judgment in form against ali
u the defendants but hat Edred the only one over
whose persOn tho Court acquired jurisdiction Inc JOINT
liability Of the simple contract merged and eAtn-
tuished in the higher order OF contract the Judgment
r. after the recovery of the judgment IN Michigan all OF
service of process had been obtained all OF them
the present suit Edred could say that TO him the
1Ote had been meIod IN the Judgment obtained In Mle
gan and defeat the panUns recovery Dy showing the
lornIer recovery The Joint liability Is merged and ex
luguished % all the cOparucTs IL the Joint liability
pf the cOpartucrS is not merged in the Judgment why
pf the defendants % be bound by thts Judgment
Jhe plaintiff contends that the plea OF nOlassumusit
puts the psintln 70 the proof of ell that lac alleges IL
makes no allusOn 10 former recovery" or 10 auy
claim that the supposed original liability has assumed
higher form, does II afford the plaintiff any oppOru-
uy TO prepare to contest such point. There
authorities sanctlOnic contrary doctrine but theiI
reasoning does not appear to accord with the logical
precision which usually prevails In pleading IL is also at
Farauec with the rule that matter Of defense which
admits the facts stated Ia the declaration, but avoids
iheui, should bespecally pleaded Vhty's Pi vol
10: also, vol g. e2a Tie suit in Michigan might have
,een brought against Eldrcd severaily and such an
Iause of action Joint and not several obligation;
ne plea would probably have been sustained, and the
ietion would have aOatcd But If he had pleaded nou
Issump any plea TO the merits the Defense founded
the JOINT nature OF the note, would not nave been
lvailabe Such defense could only be made available by
acA in abatement. COpartnershp notes, though iOlnt
form, la substance and effect several, wei as
Oint judgment Joint debtor is not tO bar
80 a suit Against the other, even though pleaded a the
proper tine and Ia due form.
"a +