New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-05-11

proceedings were taken upon the bond,
which proceedings ripened into Judgment
| rendered against Mansfield and his sureties
in favor of the United States on the eighth
day Of June, 1870, for $2O4, $50 20. 1t is this
Judgment which the petitioner, S. O. Coch-
rane holds by assignment from the United
States, and which he alleges to be debt
provable in bankruptcy against the estate
! of A. S. Mansfield on the ninth day of
! June, 1868. 1t viii be seen that Cochrane
! is not the assignee of the release bond given
by Mansfield to the United States but the
assignee of the judgment rendered thereon
in favor of the United States, which are
| two very different things
The nineteenth section of the stat11te saws.
! "If the bankrupt shall be bound as drawer.
| indOrser, surety, bail or guarantor upon
| any DILL bond, note, or any other special
| ty or contract, or for any debt of another
! person, and his liability shall not have be-
come absolute until after the adjudication
! OF bankruptcy, the creditor NAV prove the
same, after such liability shall have be-
| come liked, and before final dividend shall
have been declared Sow, if we concede
that under this clause of the nineteenth sec
ton OF the statute the liability of Mansfield,
as the maker of the release bond, became
nXed on the rendition Of the judgment of
condemnation and forfeiture of the Rob
Roy and her cargo, and the noncompliance
with the conditions of the release bond, and
that the United States might have proved
the same against the estate of the bank
rupt, yet said concession does not involve
the application of the same proposition, to
the subsequent judgment obtained upon
the bond on the eighth Of June, 1870, and
now held by the petitioner Cochrane,
Mansfield fled in the circuit court on the
eighth of May, 1870, plea in bar founded
upon his certificate Of discharge. The
court, for reasons orally given, Overruled
the same Certainly the plea was not
good one if it was intended to bar the right
Of the United States, under the clause cited
from the nineteenth section Of the statute,
to fix Mansfeld's liability upon the release
bond given by him March "a, 1865. Neither
was the plea in bar a good plea in bar of a
judgment sought to be obtained upon the
bond, where the creditor elects not to pro-
coed under the clause cited from the nine
tenth section of the statute, but to enforce
his claim against the bankrupt personally
as debt due upon liability, which has be-
come fixed long aftertthe bankrupt's surren-
der and adjudication thereon. The United
States elected to pursue the latter course.
Let us now see what are the legal cOnse-
quences of such election.
"When a creditor obtains from his debtor
a security of higher nature than he had
before the original debt is merged in the
the foundation of any action or suit, or of
proOfin bankruptcy or insolvency" Indy
on Partnership, p. 1868 !; 10 G. b. Rep, SCI
Wells & LeOvy, Mem; G. Rep, 378.
This doctrine has been repeatedly held in
Louisiana. In Oakley VS.. Murphy, Is An,
372, the court said: . In this case, which is
an action by the holder Of prOmissory note
against the maker, the plaintiff fled sup
Elemental petition, in which he alleged that
judgment had been rendered IN his favor,
at the time of the institution of his suit, on
the note sued on in the Circuit Court of the
United States for the Southern District of
Mississippi On judgment by default be-
ing taken, it was confirmed on the evidence
Of tits Judgment rendered in Mississippi
So far from this Judgment proving the right
of the party to recover on the note, it estab-
fishes the reverse, inasmuch as it is a
merger of the note. The plaintiff has lost
his right of action on the note, and he has
no right to amend his petition by an alIega-
ton which extinguishes it." The court re-
fers to L. r., 49, 2 NJ. N. s., 500; and 3
Blackstone. See also An, 334; II An,
In R. Williams, . b. register, p. 70, the
learned Judge for the District of Connec-
ticut held, "That a debt, upon which a
Judgment of law is founded, is merged in
the Judgment, and extinguished by it, cit
ing q Maine, AL; - Maine, AIS; , Cush.,
1
Conn, 5SO The authorities cited sustain
the learned Judge in the conclusion to which
he arrives. See also 6 Hill, 255, where the
court says: 1.-The defendant has been dis
charged, under the bankrupt law, from all
debts which he owed at the time he pre-
sented his petition. Subsequent to that
time the ccgnovit was given, and the judg-
ment recovered; The original debt has
been merged and extinguished by the judg-
ment The judgment is a new debt, which
is not affected by the discharge"
Bacon says: "if q bond creditor OBJ |
tains a Judgment on the bond or has
Judgment acknowledged to him, he can not
afterward bring an action on the bond,
for the debt is devOured in the Judgment,
which is security of higher nature than
the bond" Extinguishment (Dl, citing
6 Coke A The authority cited is Hig-
gins case, wherein my LORD Coke says |
1T was objected that if man RECEIVERS debt |
on a bond, or rent on a lease for years, it |
is at the plaintiffs election to sue execu- |
ton on that Judgment, or to have a new |
action" But it was resolved tthat so long |
as the judgment remains in force he can
not have new action on the same bond, |
for as he who has a debt by simple con- !
tract, and takes bond for the same, or
any part of 1t, the cOntractElis determined, /
so when man has debt on q bond, and /
by ordinary course of law has Judgment |
thereon, the contract by specially, which
is Of an inferior nature, is by judgment Of
law changed into a matter of record, which
is of higher nature" The latest author |
ity of the highest court of our country is
to be found in 6 Wallace, page 234, in the
case of Mason VS.. Eldred ct al Mr.. Justice
Field, the organ of the court, there says:
eff the note in suit was merged in the iudg-
ment, then the Judgment is bar to the ac-
ton, and an examplihcatiOn of its record is
for it has long been established
that, under the plea Of the general issue in
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 suit" And again, at page 23S: THE
general doctrine maintained in England
and the United States may be briefly stated.
A Judgment against one upon Joint con-
tract Of several persons bars an action
against the other, though the latter were
dormant partners of the defendant in the
original action and this fact was unknown
to the plaintiff when that action was com
menced. When the contract is joint, and
not joint and several the original cause of
action is merged in the judgment. The
joint liability of those not sued with those
against whom Judgment is recovered being
eXuhgulshed, their entire liability is gone"
indeed, the whole opinion there reported is
an able review of the decisions of the State
and united States courts upon this most in
terestlng question or doctrine of the law
counsel for the petitioner, Cochrane, has
clUed IN ms brief opinions adverse to the
CONCLUSION at which have arrived Opin-
IONS TO be found in b. R., pp. las. III.
buU however great may be my respect for
my brothers of the Eastern and Western
Districts of Mfpb1Uar, md ,e III