Sheehy v. Mandeville. 6 C.

ERROR to the circuit court for the District of Columbia.

The sub

stance of the pleadings, and the material facts, are stated in the opinion of the court.

E. J. Lee, and Jones, for the plaintiff.

Youngs, and C. Lee, for the defendant.

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*

MARSHALL, C. J., delivered the opinion of the court as follows, namely:

Sheehy v. Mandeville. 6 C.

5. The defendant does not deny or admit that he assumed to pay for the goods, &c., in the declaration mentioned.

6. Because the plea is no answer to the declaration, or any count thereof, and is informal.

The defendant joins in demurrer.

To the second plea the plaintiff also demurs specially, and assigns, for cause of demurrer, the same, in substance, which had been assigned to the first plea, and the defendant joins in the demurrer to this plea likewise.

The other defendant, Jamesson, has put in no plea, nor are there any proceedings against him subsequent to the declaration.

Although the first plea is not expressly limited to the second and third counts, yet it would seem, from its terms, to be intended to apply to them alone. It sets up a bar to an action on an assumpsit for goods, wares, and merchandise, sold and delivered, and no such assumpsit is laid in the first count.

If, however, it be considered as pleaded to the first count, it is clearly ill on demurrer. For it does not deny or avoid the joint assumpsit laid in that count.

It remains to inquire whether this plea contains a sufficient bar to the second and third counts.

The plea is, that the note was given and received for, and in discharge of, an account or bill for goods, wares, and merchandise, sold and delivered by the plaintiff to Robert B. Jamesson, which are the same goods, &c., that are mentioned in the plaintiff's declara

tion.

* That a note, without a special contract, would not, of [* 264 ] itself, discharge the original cause of action, is not denied. But it is insisted that if, by express agreement, the note is received as payment, it satisfies the original contract, and the party receiving it must take his remedy on it.

This principle appears to be well settled. The note of one of the parties, or of a third person, may, by agreement, be received in payment. The doctrine of nudum pactum does not apply to such a case; for a man may, if such be his will, discharge his debtor without any consideration. But, if it did apply, there may be inducements to take a note from one partner liquidating and evidencing a claim on a firm which might be a sufficient consideration for discharging the firm. Since, then, the plaintiff has not taken issue on the averment that the note was given and received in discharge of the account, but has demurred to the plea, that fact is admitted; and, being admitted, it bars the action for the goods.

The special causes of demurrer which are assigned, do not, in any

manner, affect the case.

Sheehy v. Mandeville. 6 C.

Whether the promise was made by Mandeville, or not, ceases to be material, if a note has been received in discharge of that promise, and the payment of the note need not be averred, since its non-payment cannot revive the extinguished assumpsit.

The next subject of consideration is the second plea, which applies singly to the first count.

That count is on a note charged to have been made by Mandeville and Jamesson, trading under the firm of Robert B. Jamesson. This, not being denied, must be taken as true.

The plea is, that a judgment was rendered on this note against Robert B. Jamesson.

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* Were it admitted that this judgmeut bars an action against Robert B. Jamesson, the inquiry still remains, if Mandeville was originally bound, if a suit could be originally maintained against him, is the note, as to him, also merged in the judgment?

Had the action, in which judgment was obtained against Jamesson, been brought against the firm, the whole note would most probably have merged in that judgment. But that action was not brought against the firm. It was brought against Robert Brown Jamesson singly, and whatever other objections may be made to any subsequent proceedings on the same note, it cannot be correctly said that it is carried into judgment as respects Mandeville. If it were, the judgment ought in some manner to bind him, which most certainly it does not. The doctrine of merger (even admitting that a judgment against one of several joint obligors would terminate the whole obligation, so that a distinct action could not afterwards be maintained against the others, which is not admitted) can be applied only to a case in which the original declaration was on a joint covenant, not to a case in which the declaration in the first suit was on a sole contract.

In point of real justice there can be no reason why an unsatisfied judgment against Jamesson should bar a claim upon Mandeville; and it appears to the court that this claim is not barred by any technical rule of law, since the proceedings in the first action were instituted upon the assumpsit of Jamesson individually.

It is not necessary to decide whether this action could have been maintained against Mandeville singly with an averment that the note was made by Mandeville and Jamesson. The declaration being against both partners, that question does not arise. The declaration is clearly good in itself, and the plaintiff may recover under it, unless he be barred by a sufficient plea.

Sheehy v. Mandeville. 6 C.

Admitting, for the present, that a previous judgment [* 266 ] against Jamesson would be a sufficient bar, as to him, had

Jamesson and Mandeville joined in the same plea, it would have presented an inquiry of some intricacy, how far the benefit of that bar could be extended to Mandeville.

But they have not joined in the same plea. They have severed; and as the whole note is not merged in a judgment obtained against Jamesson, on his individual assumpsit, the court is not of opinion that Mandeville has so pleaded this matter as to bar the action.

In this plea it was necessary to negative the averment of the declaration, that the note was made by Mandeville as well as Jamesson, or to show that the judgment was satisfied. The defendant has not done so. He has only stated affirmatively new matter in bar of the action, which new matter, as stated, does not furnish a sufficient bar. It is not certain that this plea would have been good on a general demurrer, but on a special demurrer it is clearly ill.

The judgment, therefore, is to be reversed, and, as no other plea is pleaded, judgment must be rendered, on the first count, in favor of the plaintiff.

The judgment of the court was as follows: This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration whereof the court is of opinion, that there is error in the judgment of the circuit court in overruling the demurrer to the first plea, so far as the same is pleaded in bar of the first count in the declaration, and that there is error in overruling the demurrer to the second plea; wherefore it is considered by this court, that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to the circuit court, with directions to sustain the demurrer to the first plea so far as the same is pleaded in bar of the first count, in the plaintiff's declaration, and also to sustain the demurrer to the second plea, and to render *judgment in [* 267 ] favor of the plaintiff on his said first count, and to award a writ of inquiry of damages.1

8 C. 30; 5 P. 529; 12 P. 32; 9 H. 83.

1 After the opinion was given, C. Lee moved for a direction to the court below to allow a plea of non assumpsit. The court said they had never given directions respecting amendments, but had left that question to the court below. This court cannot now undertake to say whether the court below would be justified in granting leave to amend.

Skillern's Executors v. May's Executors. 6 C.

SKILLERN'S EXECUTORS V. MAY'S EXECUTors.

6 C. 267.

It is too late to question the jurisdiction of the circuit court after the cause has been sent back by mandate.

THIS was a case certified from the circuit court for the district of Kentucky, the judges of that court being divided in opinion.

The former decree of the court below had been reversed in this court, and the cause "remanded for further proceedings to be had therein, in order that an equal and just partition of the 2,500 acres of land, mentioned in the assignment of the 6th of March, 1785, be made between the legal representatives of the said George Skillern and the said John May." (Vide 4 C. 141; ante, 47.)

The cause being before the court below upon the mandate, the question occurred which is stated in the following certificate, namely: "In this case a final decree had been pronounced, and by writ of error removed to the supreme court, who reversed the decree, and after the cause was sent back to this court it was discovered to be a cause not within the jurisdiction of the court; but a question arose whether it can now be dismissed for want of jurisdiction, after the supreme court had acted thereon. The opinion of the judges of this court being opposed on this question, it is ordered 'that the same be adjourned to the supreme court for their decision, &c.'"

THIS COURT, after consideration, directed the following opinion to be certified to the court below, namely:

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*"It appearing that the merits of this cause had been finally decided in this court, and that its mandate required only the execution of its decree, it is the opinion of this court that the circuit court is bound to carry that decree into execution, although the jurisdiction of that court be not alleged in the pleadings."

10 W. 192; 3 P. 193; 12 P. 339; 2 H. 9; 3 H. 413; 6 H. 31; 8 H. 586.