author: Avery, J.

text:
    Albert G. Sloo, impleaded with Horatio G. McClintoc, v. James H. Lea.
    A warrant of attorney to confess a judgment upon a debt due directly from the defendant to the plaintiff, is not a collateral security, merging the original debt.
    A judgment against one of two partners, upon a joint promise, is a bar to a subsequent suit against both of the partners.
    A judgment in the State of Illinois, originally against two, but reversed in terms as to one, is not a nullity as to the other defendant.
    This is a writ of error to the Superior Court of Cincinnati.
    The action in the court below was assumpsit, brought against Sloo and MeClintoc, as partners, by the name of A. G. Sloo & Co., on four bills of exchange, drawn by them in their partnership name, in November, 1836, and January, 1837, at Alton, Illinois, where they resided and did business, on a house in New Orleans; two of which were at four months after date, the others at four months sight. ’
    MeClintoc being returned not found, judgment was rendered against Sloo only;
    The drafts were accepted, payment demanded at maturity, but declined, of which they had notice.
    Sloo pleaded,
    1. Non-assumpsit, with notice that he would give in evidence and prove, that the bills of exchange, mentioned in the declaration;' belonged to, and ever had been the property of the' pres- ' ident, directors and company of the State Bank of Illinois, and that they were the holders; that they were drawn in favor of Lea, as cashier of the branch bank of said State Bank at Alton, Illinois, for the mere purpose of convenience, and to enable the bank the more readily to transmit them to New Orleans for collection, where they were payable; that Lea never had any interest in said bills of- exchange — was never liable as indorser, nor had he any interest in this suit — that he was a mere nominal party for the use of the bank; that the promises mentioned in the declaration, were in fact, made to the president, directors and company of the State Bank of Illinois, and not to the plaintiff; that at the May .term, 1837, of the circuit court of St. Clair county, Illinois, the bank recovered a judgment against him and McClintoc, for $125,000 damages, for the non-performance of the promises mentioned in the declaration, and for the sums of money specified in the drafts, and also for the non-performance of other promises, and other sums •of money due and owing by A. Gr. Sloo & Co., to the bank; that at the August term, 1837, of the court, the bank remitted to them $14,222.61, part of the damages thus recovered; •that the judgment thus remitted, is in full force as to the said McClintoc.
    2. Sloo pleaded specially the same facts in relation to making the drafts set forth in the notice; the recovery of judgment by the president, directors and company of the State Bank of Illinois, against himself and McClintoc, for the same causes •of action, and on the same promises set forth iñ the declaration, without alleging that it was in full force and effect.
    To this plea the plaintiff below replied,
    1. That the judgment was not rendered upon the same promises stated in the declaration.
    2. That there was no such record of a judgment as that pleaded. ' 1
    These issues were tried by the court, and being found against Sloo, he moved for a new trial. The motion being overrule^ he tendered a bill of exceptions, embodying the evidence.
    It appears from the record; that, on the 20th of April, 1837, a few days before one of the draffs became due, McClintoc, at the request of the bank, in the absence of Sloo, and unknown to him, executed a power of attorney, in their partnership name, authorizing any attorney of any court of record in the State of Illinois, to appear for them in any such court, at the suit of the president, directors and company of the State Bank of Illinois, to receive a declaration, and confess judgment for $ 125,-000 — a sum deemed sufficient, and perhaps more, to cover the entire indebtedness of 'A. G. Sloo & Co. to the bank, whether for the money then due, or thereafter to become due. This power of attorney was delivered to the bank. A few days after, at the May term, 1837, of the circuit court of St. Clair county, the bank filed a declaration against Sloo & McClintoc, and caused a judgment to be confessed and entered against them for the above sum. An execution was issued upon it.
    At the next August term of the circuit court, Sloo moved the court to set aside the judgment as to himself, on the ground that the power of attorney did not authorize the confession of a judgment against him, but against McClintoc only. The motion was overruled. Upon the judgment of the court, refusing to set aside the original judgment as to Sloo, he prosecuted a writ of error to the supreme court of the State, and .it was sustained. It was reversed as to Sloo only, and the circuit court directed to set aside the execution as to him, which ■ had been issued upon it. At the same August term of the court, the bank remitted part of the judgment, having ascertained that it exceeded the indebtedness of A. G. Sloo & Co. These proceedings appear in 1 Scammon’s Rep. 424 to 444, referred to in the bill of exceptions, and made part of the record.

      Hmry Starr, for plaintiff in error.
    1. The contracts, of partners are joint, and not joint and sereral. In some of the states they are made joint and several by statute — not in Ohio.
    2. A judgment against one of two partners is a bar to a subsequent suit against the other or both, for - the same cause of action.
    These propositions are so obviously correct, it needs no argument to support them. I shall only advert to a few of the more prominent of the many cases establishing them.
    In Robertson v. Smith and others, (18 Johns. 428,) a firm, consisting of four persons, made two notes in their partnership name. A judgment was recovered, on the notes,- against the two ostensible partners; not being paid, a second suit was brought on the notes, against the four partners, one of whom only being served with process, and who was not in the first suit, pleaded, in bar, the recovery against the two, and it was sustained.
    In King and another v. Hoar, (13 Meeson & Welsby 474,) the suit was against one of two joint promisors for goods sold, who pleaded a former recovery against the other promisor for the same goods. Upon demurrer to the plea, judgment was given against the party demurring.
    In giving the opinion of the court, Parker, Baron, observes, it is1 remarkable that this question should never have been de cided in the courts of this country. In the absence of any positive authority upon the precise question, we must decide it upon principle, and by analogy to other authorities; and we find no difficulty in coming to the conclusion that the plea is good.
    In Ward v. Johnson and another, (13 Mass. 148,) the suit was against two, on their joint note. A previous judgment having been recovered against one of them, on the same note, it was held that both might use such recovery in bar of the suit; that the liability of the one first sued being merged in the judgment, the note, as to him, was extinguished, and there was nc longer any joint liability upon it.
    In Trafton v. The United States, (3 Story C. C. Rep. 646,) in which the subject is investigated, it was decided, that in an-action against two joint contractors, a prior judgment against one of them on a joint contract, is a bar to the action, without alleging payment of the judgment. In Smith and another v. Black, (9 Serg. & Rawle 142,) a judgment had been obtained1 against one of two partners, on a partnership contract, the other being dormant and unknown at the time. Upon the discovery of the dormant partner, a second suit was brought against both, the partners, and the court held the judgment to be a bar. A similar decision was made in Moale v. Hollis, (11 Gill. & John. 11.)
    The authority of these cases is not impaired by the decision in Sheehy v. Mandeville, (6 Cranch 256.) This decision has been the subject of much comment and of more doubt. In Collyer on Partnership, (Perkins’s edition, page 662, note,) it is said that in the complexity caused by the state of the pleadings in that case, the general question seems hardly to have-been presented, or, at least, not necessarily adjudicated; and in Ward v. Motter, (2 Rob. Virg. Rep. 559) Baldwin, Justice, in commenting on the case, says, “ The separate judgment was not on a joint, but on a separate contract. Both declarations, it is true, were on the same note; but the first treated it as a separate promise, (as it was in point of fact,) and the last as a joint promise; and the court, being warranted by the-structure of the declaration in the last case, in regarding it in that action as a joint promise, held, that the first recovery on the separate promise was no bar to the second action on the joint promise.” In Trafton v. The United States, Judge Story says, if the case then before him were identical with that of Sheehy v. Mandeville, he should feel bound by it. 1 Cromp. & Mees. 623; 2 Sumner 310; 1 Watts & Serg. 339; 4 B. & A. 76; Bailey on Bills 342; Chitty on Bills 449; 3 Cowen & Hill’s notes on Phil. Ev., 3 vol. 823, 986; 3 Barbour N Y. Rep. 594; 2 Serg. & Rawle 280.
    There is a class of cases which proceed upon the ground that a judgment is not a bar to a second suit for the same cause of action, if the original cause of action can be investí gated notwithstanding the judgment. If the cause of action be not merged in the judgment, by reason of the circumstances attending its recovery, as, if it be obtained without personal service of process, or appearance, as by the attachment of property, such a judgment does not extinguish the cause of action; it is still open to investigation — the original demand does not rest in judgment — the judgment is not a higher security, and therefore, is not such a former recovery as to bar a second suit on the same cause of action for which it was rendered. .Of this class is the case of Rangely v. Webster and another, (11 New Hamp. Rep. 299.) It was an action on a note made by the defendants to the plaintiff. Their defense was, that the plaintiff had obtained a judgment against them on the same note, in the State of Maine. But as it did not appear, from the record of the judgment in that state, that the defendants had personal notice of the pendency of the suit, or that they appeared and answered; and further, as it did appear that one of them resided in New Hampshire at the time the judgment was rendered, the court held that the judgment in Maine, considering the facts and circumstances attending its rendition, did not constitute a bar to a second suit on a note in New Hampshire. The court say, the fact of notice is a fact which should appear of record, and which we cannot .presume. Story Conf. Laws, 8 ed., ch. 15, Foreign Judgments 981...
    The efficacy which a judgment, rendered in one state without personal notice, should have in another, or even in the same state, and to what extent it merges or extinguishes the cause of action upon which it is founded, has been a fruitful theme of discussion. 9 Mass. 464; 6 Pick. 232; 16 Conn. 127; 5 Wend. 148; 1 Hall 155; 23 Wend. 293; 17 Conn. 500; Phil. Ev. by Cowen & Hill, note, 551, 637; Story Conf. Laws 467.
    It is said that the separate residence of joint debtors in difr ferent states, gives a separate remedy; or, in other words, that separate residence severs the remedy. Of this character is the case of Dennet v. Chick, (2 Greenl. 193,) a decision standing rather “ solitary and alone,” having no company unless it be that of Sheehy v. Mandeville.

    The objections to which a judgment without personal notice is liable, cannot be made in this case. Sloo and McClintoc resided in Illinois at the time the judgment was rendered against them, and the latter had personal notice of the highest kind ; he had given a power of attorney to confess it. It is the same as if he had appeared in open court and confessed it. ■ It does not appear from the record that partnership contracts are joint and several in Illinois; and in the absence of proof, the law of that state is presumed to be the same with that of Ohio.
    There was no collateral liability on the part of Sloo & McClintoc, to pay the drafts, making the cause of action in Illinois different from the cause of action in this suit. They were simply liable as joint drawers of the bills, and not otherwise. That liability is extinguished by a judgment against one of them; it has-passed in rem judicatam, into the higher security of a judgment, and if McClintoc could plead it in bar to a suit on the drafts against him in Illinois, Sloo can do the same in Ohio.
    In 4 Bacon’s Abr. 149, (D,) it is said that if a bond creditor obtains judgment-on the bond, or has judgment acknowledged to him, he cannot afterwards bring an action on the bond; for the debt is drowned in the judgment, which is a security of a higher nature than the bond. See 1 Denio 410; 1 Mason’s C. C. Rep. 482; 9 Wend. 53; 1 Comst. Rep. of cases in the Court of Appeals, N. Y. 496.
    The fact that the judgment wras entered for a larger sum than was due, can make no difference. There was no agreement or understanding that the judgment should be corrected or even reduced, if it exceeded the indebtedness of A. G. Sloo & Co. But the excess, if any there should prove to be, was by the agreement of the parties to be indorsed on the execution, which the-defendant in error says he directed to be done. At a subsequent term of the court, and after Sloo had moved the court to' set aside the judgment as to him, the bank remitted the excess,. thereby affirming the judgment as to the residue, and electing to abide by its higher security.
    But no election on the part of the bank was necessary to give to the judgment the effect claimed. The question is, not what the bank intended, or what election it made, but what has it •done? Is there a judgment on the drafts? If there be, it is not for the bank to restrict its legal effect, by electing that it ■shall not have that effect. A cause of action or demand maybe merged in a judgment, against the will and intention of the party obtaining it.
    In Pinney v. Barnes, (17 Conn. Rep. 429,) the court remark•ed that whether the plaintiff did or did not intend, by a former recovery, to bar himself of a demand he was then attempting to enforce, was not the question; but whether’ the former cause of action was essentially the same with the one then before the court. In Beltzhoover v. the Commonwealth, (1 Watts 126,) a suit had been brought against him and three others in the name of the commonwealth, for the use of Niles, all of whom were served and appeared. One of them confessed judgment’ in the presence of the plaintiff. He then entered a rule to refer the •cause to arbitrators, who reported a sum against Beltzhoover, for which judgment was entered. This judgment was reversed, the court remarking that the confession of a judgment by one of the defendants, accepted by the plaintiff, released the others, and that no judgment could afterwards be obtained against them in that or any other action. To the same effect is the case of Williams v. McFall, 2 Serg. & Rawle 287.
    There may be two or more causes of action for the same debt, and a judgment on one, unless paid, will not bar a suit on the •other. If there be the sole promise of A. to pay a sum of money, .and the joint promise of A. and B. to pay the same sum, an ' unsatisfied judgment against A. will be no defense to a suit against A. and B., and vice versa, unless the one promise was taken in satisfaction and discharge of the other. ••
    A. had a book account against B. and several others. He •took the note of B. to pay it, on which he obtained judgment, but not being able to’ collect it, he brought suit against B. and the other joint debtors; and it was held that the judgment waa not a bar to the suit — the nóte, though accepted, not being taken in satisfaction of the book account. 10 Conn. 374. In Day & Penfield v. Leal & Leal (14 Johns. 404), the suit was on two notes made by the defendants to the plaintiffs. After the execution of the notes, one of the defendants gave his bond to the plaintiffs to pay the notes and other moneys, with warrant of attorney to enter up judgment on the bond. Whether judgment had actually been entered on the bond when the suit on the notes was tried, does not appear. But even if it had, it would have made no difference; for a judgment on the bond against •one of the defendants, (it not being taken in payment of the notes,) would not bar a suit against both of the defendants without averring payment of the judgment.
    In 3 East. 253, it was an action of covenant against three defendants to pay the plaintiff a sum of money. He had taken the bill of exchange of one of the three for part of the money, the residue being paid, against whom he had obtained judgment on the bill. The court held the judgment was not a bar to the suit on the covenant, the bill not having been accepted in satisfaction of the covenant; observing that the giving of another security which in itself would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it produce the fruits of a judgment.
    Had there been a collateral liability or undertaking on the part of Sloo & McOlintoc, or either of them, to pay the drafts, it is not pretended that a judgment on such undertaking would bar a suit on the drafts. To this effect are the three last cases cited. But no such liability or undertaking can be found. The power of attorney did not create it. That only authorizes the drafts, or rather all the indebtedness of Sloo & McClintoc to be placed in judgment. It was not a new undertaking to pay ■them on which the judgment was rendered. To say that a man is collaterally liable to pay his own debt because it is his debt,is to talk absurdly; and to say that a judgment rendered for the debt, and on the only evidence of the debt, is a judgment on an implied undertaking to pay it, denominated collateral liability, is using language without meaning.
    It is said that Sloo having treated the judgment in Illinois as a nullity and void, cannot now use it in bar of this suit. With submission, he has done no such thing. He has considered it void as to himself, but not as to McClintoc. So far as any act of his could affirm the judgment as to the latter, he has done it, by procuring the supreme court of Illinois to pronounce it void as to him, but leaving it in full force as to McClintoc. It ill becomes the bank to make this objection, since it was in its power, after the judgment was set aside as to Sloo, to have procured it to be set aside also as to McClintoc, and so save their joint liability. If the bank has blundered itself out of all remedy against Sloo, it ought not to complain. It is not the only blunder it has committed.
    2. It is said there is no judgment of May, 1837, against McClintoc — that it was reversed when the judgment as to Sloo was reversed. This can hardly be so, since no writ of error was ever prosecuted on the judgment by them, or either of them, to reverse it. On the judgment of the court at the August term, 1837, refusing to set aside the judgment of May as to Sloo, he prosecuted a writ of error, which the supreme court of Illinois sustained, and reversed the judgment as to him only, leaving it in force as to McClintoc.
    But it is said that the reversal of the judgment as to Sloo operated per se to reverse it as to McClintoc. Why did it so operate ? What rule of law did the supreme court of Illinois violate by leaving it in force as to him ? They were not asked to reverse it as to McClintoc; no one complained of it. Was it the duty of the court to volunteer and pronounce a judgment as to a matter not before them ? As to McClintoc, they neither affirmed nor reversed it. They did nothing about it. McOlintoc had given a power of attorney to confess the judgment with a release of all errors; and was it the duty of the court to say there was error as.to him when he said there was none?

      The rule that a judgment against several, if reversed as to one for an error applicable to him alone, must be reversed as to all, because it is an entire thing, applies only where a joint writ of error is prosecuted on the judgment itself in the name of all the parties. 12 Johns. 484.
    Had Sloo & McClintoc prosecuted a joint writ of error on the judgment against them, it is questionable whether the supreme court of Illinois would have reversed it as to McClintoc, he having released all error in the judgment. The release of error in the power of attorney authorizing its confession, could be pleaded as such. 2 Bac. Abr., Title Error, L. If Sloo had prosecuted a writ of error in his own name only on the judgment against him and McClintoc, the court would have quashed it for the nonjoinder of the latter. 2 T. Rep. 738; 3 Bur# 1789; 8 Cowen, 335. If he had sued out a writ of error in both their names on the judgment of August, the court would have quashed it because McClintoc was joined, not being a party to the judgment sought to be reversed. It would seem, however, to be obviously proper that he should be a party in a writ of error, which, if sustained, would operate to reverse a judgment against him. Yet nothing would have been more inconsistent with the law as to parties in writs of error, than to have made him a party in a writ of error to reverse a judgment to which he was no party.
    The case of McKee v. The Bank of Mt. Pleasant, (7 Ohio Rep. pt. 2, 187-8,) is an authority, as I understand it, for saying that the judgment is in force as to McClintoc, notwithstanding it was set aside as to Sloo. It was a bill in chancery to be relieved from a judgment rendered against himself and partner on the confession of the latter only. The invalidity of the judgment was distinctly asserted by the court, but the relief was denied on the ground that McKee had remedy at law by motion to the court to set it aside as to him; not intimating but that the judgment might be left in force against the party confessing it. In accordance with this decision the circuit court in Illinois should have set aside the judgment as to Sloo, on his application, and left it in’ force as to McClintoc. The supreme court of the state did what the circuit court ought to have done.
    The fact of a judgment in Illinois against McClintoc, is best tested, perhaps, by inquiring whether, if an action of debt were now brought in that state on the alleged judgment, he could resist it. Could he say to the bank, you have no judgment against me ? If he could not say it with truth, Sloo can say in Ohio that the judgment is a bar to the suit on the drafts.

      Grholson Miner, for defendant.
    One of the questions involved in this case is technical, being dependent on the effect of the pleading. It is whether under a replication of nul tiel record to a plea of former recovery, it may be shown that the judgment relied on as the former recovery, has been reversed and set aside. We insist that such reversal may be shown under that replication, and need not be specially replied.
    The precise question recently arose in England, and was decided in conformity with the position we have assumed. Bailey v. Turner, 18 Law Journ. Rep., part 9, Sept. 1849.
    In the case of Ohio, use of Monroe county, v. Dailey, 14 Ohio 91-100, it was held that if an instrument be set up as a ¡record, and “ there be anything to defeat it as a record,” such ¡fact may be shown under the general issue of nul tiel record, .and .cannot be specially pleaded. This opinion is fully sustained by the older authorities, and it appears to have been cleatfly held, that after reversal, a judgment ceases to exist, and that such reversal may be shown under the plea of nul tiel record. 1 Ld. Raym. 274; 2 Ld. Raym. 1014; 1 Salkeld 329.
    There seems to be no doubt on this point, and indeed, it does not appear to be pressed by the counsel for the plaintiff in error.
    The •■other-questions in this case arise on a motion for a new trial. It is not denied that the plaintiff below was entitled to a judgment, unless his right of action had been lost on account of certain proceedings in the State of Illinois, which were offered in evidence, and a,re set out in the bill of exceptions. We insist that the plaintiff below was not precluded from a recovery by reason of those proceedings, but on the contrary, was entitled to maintain his action on several distinct grounds, either being sufficient.
    I. That the warrant of attorney set out in the record offered in evidence, was given and received as collateral security, and that the judgment rendered under it was not, either in form or in fact, on the causes of action now sued on, but both in form and in fact founded on a warrant of attorney, and the admission of indebtedness contained in it, and intended, like the warrant of attorney itself, to be a collateral security, for the debts due and to become due from the firm of A. G. Sloo & Oo. to the State Bank of Illinois.
    In the argument of the counsel for the plaintiff in error, it is admitted, that if the judgment in Illinois had been founded on any collateral liability, it would not operate to merge the causes of action intended to be secured, but the counsel insist that a warrant of attorney to confess a judgment cannot be taken as a collateral security, unless it be accompanied by some other evidence of a collateral liability; that a judgment cannot be confessed with the understanding or agreement that it is to stand as a collateral security for subsisting or accruing causes of action, unless at the time or previous to such confession, a bill, note, or bond be executed on which to found such judgment. Now this appears to be a singular fallacy both in law and practice, as is shown from the remarks of the court in the very case the proceedings in which are now under consideration.
    In the case of Sloo v. State Bank of Illinois, 1 Scam. 441, it is said: “In general the power of attorney to confess the judgment, is accompanied by a bond as evidence of the indebtedness on the amount due. How or when this peculiar security for a debt, authorizing a creditor to sign a judgment and issue execution without even issuing a writ, was first invented, does not appear.
    Chitty, in commenting on it, says: “ It has now become one of the most' usual collateral securities on loans of money, or contracts to pay an annuity, and for debts due ; but it is usually accompanied with some other deed or security.” It is also under seal.
    It would seem that the court of Illinois regarded the very power of attorney now under consideration a collateral security, and clearly the above remarks and authority show that the circumstance that the power of attorney is not accompanied by a bond, does not prevent it from operating as a collateral security. It is obvious that the question, whether a higher security has been taken in satisfaction of, or extinguishes a lesser, does not depend on the nature of the higher security, but on other considerations. A simple contract may be as effectually extinguished by taking a bond as by the rendition of a judgment.
    In the case of Bell v. Banks, 42 Eng. Com. Law Rep. 141, to which the attention of the court will, hereafter, be more particularly directed, no bond or evidence of indebtedness accompanied the warrant of attorney, and though the judgment was entered on it, it was held that there was no satisfaction or ex-tinguishment of the original demand intended to be secured. The idea that the absence of any evidence of a collateral liability other than that contained in the warrant of attorney, would prevent the latter from being adjudged to be, as it was, a collateral security, was not advanced by counsel.
    Assuming, then, that the warrant of attorney to confess a judgment, and the judgment confessed, may operate as a collateral security, and not as a merger or satisfaction of the causes of action, the inquiry arises as to what is the proper conclusion in view of the whole transaction as to the intention of the parties, and the effect of their acts.
    In coming to such a conclusion certain tests or inquires have been laid down in the decided cases as a proper guide. In the case of Day v. Leal, 14 Johns. 404, the court in giving its reasons for holding that the simple contract was not extinguished hy the higher security, say: “ It was not between the same parties ; nor was it for this debt alone, nor for the exact amount of the notes in question. It was, therefore, only intended as a collateral security, and the taking a collateral security of a higher nature, whether from the principal or a stranger, does not preclude the creditor ■ from sueing on the first contract, although judgment may have been entered on such collateral security, if it remains unsatisfied. The bond in this case, was for a round sum ; and there was no way to ascertain the real sum due upon it, but by reference to the original demand, which must of course be deemed in existence, and in force.”
    It will be seen that the concluding remarks of the court in the above case, apply with great force to the present, and are indeed conclusive.
    The case of Davis v. Anable, 2 Hill 339, is to the same effect. The court say, “ the bond was not between the same parties that are now before the court; and it was not given for this debt alone, but included other demands.”
    In the case of the United States v. Lyman, 1 Mason 482, Judge Story says: “I admit the doctrine, that in general, a higher security taken from the debtor himself, extinguishes the original contract. But this proceeds from a presumption of law that it is taken in satisfaction of the original debt; for if it appear otherwise upon the face of the security, it will not operate as an extinguishment. Thus a bond of the debtor with sureties, or a mortgage, may be taken as collateral security for the payment of a promissory note; and in such a case it certainly does not extinguish the demand on the note. It is, therefore, after all, a mere question of intent; and the law, in the absence of all other evidence of intent, construes the higher security of the debtor himself as an extinguishment, because it gives a higher remedy.”
    Applying the above rules to the present case, and there cannot, it would seem, be a reasonable doubt on the subject. If an extinguishment results from a presumption of law that the higher security was taken in satisfaction, and this presumption may be rebutted by evidence of the intent of the parties, there are one or two circumstances in the present case which conclu sively show' that neither the warrant of attorney or the judg ment was taken in satisfaction of the causes of action intended to be secured. Both were for a larger sum than the amount of the different causes of action, then existing or expected to arise. It could not have been intended to satisfy causes of actions which had not accrued, which, indeed as the proof shows, were contingent and might never accrue. And there was an express understanding and agreement, that the judgment was only to be enforced to the extent of the amount that might afterwards appear to be really due. Following the language of the court in Day v. Lead, cited above, “ the judgment in this case was for a round sum; and there was no way to ascertain the real sum due upon it, but by reference to the original demands, which must of course be deemed in existence and in force.”
    It has been argued, however, that a merger of the causes of action sued on in this case, in the judgment confessed in Illinois, took place, notwithstanding any intention of the parties to the contrary. That there is a class of cases in which this may happen, has been maintained by high authority, though as before shown, other authorities place the question of extinguishment or merger on the express or presumed intention of the parties. Which of these authorities is correct, it is not necessary to argue, for by reference to the authorities, it will clearly appear that this case does not come within the class of cases mentioned.
    The doctrine alluded to is laid down with the greatest clearness in the case of Jones v. Johnson, 3 Watts and Serg. 276. In that case, the court, after drawing a distinction between, cases of extinguishment by merger of the security, and cases of extinguishment by satisfaction of the debt, and holding that in the former class of cases tne merger is a presumption of law and not affected by the intention of the parties, proceed to say: “ But merger takes place only where the debt is one and the parties to the securities are identical. Hence there is no ex-tinguishment when a stranger gives a bond for a simple contract debt, or confesses judgment for a debt by specialty. In either case the original debt may be extinguished by the subsequent one, but not by merger, which works a dissolution, not of the debt, but of the original security, whose existence sinks into that of the succeeding one ; and for that purpose the union must be so intimate that the one cannot be separated from the other. In a case of merger, therefore, the debt is the same, though the old evidence of it melts into the new one, and the creditor merely gains a higher security without having an indivisible debt of different- degrees; but such a result is not obtained where the debt is compounded of new responsibilities, as it must be'where all the parties were not originally bound. Where the debtor is bound with a stranger, or for a different sum, his responsibility is changed in more respects than the quality of the security; but in a case of satisfaction by substitution, there is a change of the debt.”
    Upon these principles, with what propriety can it be contended that the causes of action now sued on became merged in the judgment confessed in Illinois ? An effort is made in the argument of the counsel for the plaintiff in error, to impress it upon the court as a fact in this case, that the judgment in Illinois was in part upon the identical causes of action on which the present suit is founded. It is not, and cannot be pretended that any such fact is shown by the record of that judgment. No evidence of indebtedness other than the warrant of attorney was filed — there was no bill of particulars — in form, the judgment in Illinois was upon the warrant of attorney merely, for what object, is a question of fact depending, in this case, on the testimony of witnesses. On that testimony one fact appears, which alone is conclusive upon the decision just cited. The judgment was for a different sum — greater than the aggregate of all the causes of action accrued or accruing, which were intended to be secured. It was supposed' that the amount was large enough tr cover all, and so it turned out — the amount was more than enough. Suppose there had been a miscalculation the other way, or an under estimate, with wbat justice could it have been contended that the excess of the debts over the judgment would have been lost by a merger. The principle is precisely the same. If there would have been no merger in the case supposed, there has been none in the case as it occurred.
    A “ merger takes place only where the debt is one, and the parties to the securities are identical.” The cause and object of both actions must be the same, to make a judgment in one a bar to the other. 8 Phil. Ev., Cowen’s Notes, 827. The principle transit in rem judicatam relates only to the particular cause of action in which the judgment is recovered ; the judgment must be rendered on the same demand, inform, to operate as a change of remedy. Drake v. Mitchell, 3 East 251; Bell v. Banks, 42 E. C. L. R. 141.
    A reference to the facts of the latter case will show that they bear a striking analogy to the facts of the present case. The syllabus of that case states that “ a, promissory note is made by, A. and B. payable to C. to secure advances from C. to A. After the note becomes due, it is agreed between C. and A., without the privity of B., that A. shall execute a warrant of attorney to D. as trustee for C., to secure the amount of the note and a further advance made by C. to A.” It also appears that a judgment was entered under the warrant of attorney. In an action brought on the note against A. and B. who was a joint maker and surety, and pleaded the above facts in his defense, it was held that the note was not merged in the warrant of attorney or the judgment. One of the judges said : “ This is not a case of merger, because no higher security has been taken between the same parties, and the case of Drake v. Mitchell shows that the warrant of attorney, not being taken in the same action, will not discharge this cause of action.” Another said: “ Here the merger fails in two respects, and it is a point quite collateral to the justice of the case. It is not in form the same demand, and a warrant of attorney is given to confess a judgment to other parties. It is said that those parties are merely trustees for the plaintiff. It cannot be so understood in a court of law. Trustees are persons who hold property with some duty attached. But it is quite enough for this purpose, that they are not the same parties.”
    It is clear that one of the grounds on which the attempt to establish a merger in that ease failed, applies with full force to the present. This is not in form the same demand. May it not be said, also, that the parties are not identical ? This suit is in the name of James H. Lea, on accepted bills of exchange against the drawers. It is not denied, that the beneficial interest in those bills was, at the time of the judgment in' Illinois, in the bank. But, on the face of those securities, the legal title in those securities was and is in the present .plaintiff, and the suit is properly in his name. 16 Pick. 381; 21 Pick. 491; Guernsey v. Burns, 25 Wend. 411.
    This case, then, in this respect, is the converse of that of Bell v. Banks. The trustee here holds the original security ; there he held the collateral. The same principle would seem to apply, and, as said in that case, it is quite enough to prevent a merger, that the. parties are not the same.
    Other circumstances might be adverted to, and more might be said to show that the position, that the causes of action now sued on have been merged in a higher security, is subject to greater difficulties than those which were held sufficient to prevent a merger in the cases above cited; but it is not deemed necessary, and it may be truly said that “ it is a point quite collateral to the justice of the case.”
    II. If the warrant of attorney had been taken to confess a judgment, not as collateral security, but directly upon the present causes of action, still the warrant of attorney and judgment, having been taken as obligatory upon two, and it turning out that they were obligatory on one only, they cannot operate either as a satisfaction or a merger. The plaintiff has never elected to take the higher security now set up as a. bar. An
      entire security was taken, and the same having been, at least in part, invalid or destroyed by the act of the party intended to be bound, cannot be relied on as a bar to the original demand.
    These positions appear to be founded on the plainest principles of justice, and are, it is believed, fully sustained by the authorities.
    The case of Brazee v. Poyntz, (3 B. Monroe 178,) is in point, and apparently conclusive. In that case, the plaintiffs, having a simple contract demand against a firm, took a note for the amount, executed by one of the partners, after dissolu tion, in the name of the firm, oh which judgment was rendered against the one who had executed the note, the suit having abated as to the other partner. The latter having denied the obligation of the note upon him, as executed without authority, a new action was brought against both, on the original demand; and, on the question whether the action was barred by the acceptance of the note and judgment, the court say: “ The judgment, we think, can make no difference. Eor if the note did not mei'ge the assumpsit, the judgment, though it may have merged the entire liability of the note, could not have that effect. If the note may be regarded as a collateral security, and not as a satisfaction of the pre-existing debt, it is clear that there was no merger of that debt, either by the note or the judgment on it. The acceptance of the note of a debtor, by simple contract for the amount of his debt, doubtless imports a satisfaction and merger of the pre-existing assumpsit. But as the acceptance of the note must be presumed to have been founded ' on the belief that it is what it purports to be, the act of the debtor, obligatory on him, according to its tenor. If the fact should turn out to be different, and the note proved not to be the act of the apparent obligor, it -would be unjust, after the inundation of this act is thus taken away, to hold the creditor bound by its apparent import, and to give to it the same legal effect as if the note, accepted by him, had been what it pur ported to be.”

      It may be said that the note of the firm, in the case just cited, not being under seal, the original demand could not have been merged. The decision was not predicated on that idea, but was made on the supposition that, had the note been obligatory on both, the judgment on it would have been a bar. And in a case relied on by the court, as a direct authority for its decision, Doniphan v. Smoot, (1 B. Monroe 199,) the note taken under similar circumstances, was under seal, and not being obligatory on one of the partners, but having been repudiated by him, was held not to have merged or extinguished the original demand.
    The same principle has been acted on in several cases in England, as to securities given by the grantor of an annuity. In the case of Semfield v. Gowland, (6 East 241,) where several securities, including a deed, bond and warrant of attorney to confess judgment, were given, and the warrant of attorney and judgment had been set aside, at the instance of the defendant, who still objected that the action should have been brought on the deed or bond, Lord Ellenborough said: “ The plaintiff contracted for one entire assurance, consisting of several securities ; and he has a right to have that assurance entire, or to have back his money. The defendant has taken away one of his securities; and, therefore, the consideration for the money has failed.” These remarks were cited with approbation, and the same principle sustained in the case of Huggins v. Coates, (48 E. C. L. R. 432, 436.) And in a similar case, where the deed was relied on as an accord and satisfaction, it was said by Tindall, C. J.: “I do not see how the defendant, having, by his own act, elected to avoid the grant-, can be permitted to set it up as an accord and satisfaction.”
    And we insist, in this case, that a party to a record, who has avoided the effect of that record, can, with no justice or propriety, be permitted to use it as valid and subsisting for any purpose beneficial to him — that he cannot in one breath say, that the judgment against him is a nullity, and in another, that it discharges him of pre-existing liability.

      III. That the judgment, being a nullity, and having been reversed and set aside as to one of the defendants, is a nullity as to both — that it cannot be enforced as to either, and is, therefore, no bar to the original demand.
    The judgment relied on in this case, has been decided by the supreme court of Illinois, to be “ erroneous and void, as to Sloo, having been entered up without authority.” And in form it is “ordered that the judgment of the circuit court as to Sloo, be reversed, and that court directed to cause the execution thereon as to Sloo, to be set aside.” 1 Scammon 444. By reference to the opinion of the court in that case, it will be seen that the court considered the whole record and proceedings, including the original judgment before it, under the writ of error, and that it was intended, as the terms of the order import, wholly to reverse that judgment as to the defendant who prosecuted that writ of error.. Nothing is said or decided as to the effect of that reversal on the other defendant. In form, the order does not re verse, the judgment, or annul it as to him —does it have that effect ?
    It will be observed, that the supreme court of Illinois did not act under what has been sometimes termed the equitable power of a court of law, over judgments by confession. Cases are to be found in which courts, exercising this power, have allowed a judgment by confession against two defendants to be enforced against one only. That class of cases has no application to the present, and it is presumed that such a change in the liability of the defendants could only be made in a proceeding in which the defendant remaining liable was a party. And it will be also observed that the defendant, McClintoc, was no party to any proceeding subsequent to the judgment by confession. This is admitted, and, indeed, relied on by the counsel for the plaintiff in error. He relies on the fact that McClintoc was no party to the writ of error, as a reason why the general rule that an entire judgment, reversed as to one of several defendants, must be reversed as to all, does not apply in the present case. He argues that the rule only applies where there is a joint writ of error, and cites the ease of Richards v. Walton, 12 Johns. 434. We contend that the case establishes no such principle, but the reverse. The court say — there having been a judgment against two defendants — “ The rule of affirming in part, and reversing in part, does not apply in cases of this kind. (8 Johns. Rep. 566.) This may be done where the judgments are distinct, as in cases of damages and costs, in which the judgment may be reversed as to one, and affirmed as to the other; but where the judgment is entire, there must be a total affirmance or reversal.” And the court conclude, “ as the judgment is against both, and entire, it must be reversed.” We insist that the principle on which the rule depends, is the entirety of the judgment.
    The counsel for the plaintiff in error proposes, as a test, wheth er the judgment is yet in force as to McClintoc, the inquiry whether an action of debt could be sustained against him upon it — a similar test would be, whether an execution could issue against him as upon, a separate judgment. How would the judgment-be enforced — as a joint judgment, or as a separate judgment ? Clearly not a joint judgment. The order and judgment of the supreme court of Illinois concludes that point. If then the judgment can be enforced at all, it must be as a separate judgment against McClintoc. We insist that no such judgment has ever been rendered, and that no order made in any proceeding to which McClintoc was not a party can have the effect of changing a judgment rendered against him and another jointly, to a several judgment against him alone. No proceeding, then, upon that judgment against McClintoc separately, could be sustained.
    We insist, further, that the original record showing on its face, as decided by the supreme court of Illinois, that the judgment as to one of the defendants was rendered without authority, and therefore a nullity, such judgment being entire, was and is a nullity as to both; and that this may be shown and relied on by the present plaintiff as a reason why a recovery on the original demand is not barred.

      On this proposition, which would seem to be plain on principle, we will refer the court to a few authorities.
    In the ease of Hall v. Williams et al., 6 Pick. 232, which was an action of debt on a judgment recovered against Williams and Fiske, the other defendant, in the superior court in the State of Georgia, it appeared, that Williams was duly served with process, and by attorney appeared to the action in the court of Georgia; but no service was made on Fiske, nor was he an inhabitant of or resident in Georgia. A motion was made to strike out the name of Fiske, and that the suit might proceed against Williams alone. But the court said, that “ such an amendment would not help the case, for the judgment being entire, if it is a nullity as to one, it is also in the whole.” So also in the case of Holbrook v. Murray, 5 Wend. 161, 163, it is said, “ The judgment is entire, and if void as to one defendant, where there are several, it is void as to all.” The case of Rangely v. Webster, 11 New Hamp. Rep. 299, is an authority very analogous to the present case. In that case judgment was rendered against two in the State of Maine; as to one the judgment was void for want of jurisdiction over his person. An execution was.issued on the judgment in Maine, and part of the debt collected. Afterwards a suit was brought against both defendants in the State of New Hampshire, on the original cause of action, and the judgment rendered in Maine was relied on as a bar, but the defense was not sustained. Some of the remarks of the court in that case have a strong bearing on the present. After citing the remark above quoted from 5 Wend. 163, and saying that the precise point was decided, and in the same way, in Richards v. Walton, 12 Johns. Rep. 434, the court say: “ We hold, therefore, upon the authorities cited, that the judgment in question, if an attempt were made to maintain an action upon it within this state, must be deemed invalid — a mere nullity, as to both of the defendants. No suit, therefore, could be maintained here upon the judgment against either of the defendants, and only partial satisfaction has been obtained within the jurisdiction in which it was rendered; nor does it appear by the case thai full satisfaction can there be had.”
    “ If the judgment is to be regarded as a mere nullity, when an attempt is made to enforce it by an action here, the question arises, must it not be considered equally a nullity when the defendants set it up as a bar or answer to an action upon the original note upon which that judgment was rendered ? Can it be treated by one party as valid, while as it respects the other party, in reference to the same subject matter, it is held to be void? Can it be said, when the action is brought here. upon the judgment, that the original demand does not rest in judgment, for the reason that the judgment is void; while at the same time, if the action were brought upon the original demand, it may be legally asserted by the same party that the demand has passed into judgment, and that the action cannot be maintained for that cause ? ”
    It has been argued by the counsel for the plaintiff in error, that the case last cited, and others to the same effect, have been decided, on some peculiar principle arising out of the fact that one of the defendants was not a resident of the state in which the judgment was rendered. There is nothing in the cases to warrant such an interference. They were decided on the ground of the entirety of the judgment; it could not be separated, and being void as to one defendant, the whole was void. And it may be observed that the' case in 12 Johns. 434, and a case in 2 Watts 73, in which the same principle was laid down, were cases of domestic judgments. Indeed, the principle will apply, no matter on what ground the nullity of the judgment may depend. That the judgment in Illinois was void, as to one of the defendants, is clearly the law of this case, and that it is, therefore, wholly void, would seem to follow as a necessary consequence.
    We submit that on either of the grounds taken above, the judgment below can be maintained, and should, therefore, be affirmed.
   Avery, J.

The judgment, to reverse which this writ of error is brought, was rendered by the superior court of Cincinnati in an action of assumpsit. The action was in the name of James IT. Lea, cashier, as plaintiff, against Albert G. Sloo & Horatio G. McClintoc, partners under the style of A. G. Sloo & Co., as defendants. The writ was issued against both the partners, but, the sheriff having returned not found as to McClintoc, the declaration (as is allowed'by our statute) was filed, and the case proceeded to trial and judgment against Sloo alone, the partner actually served with process. The judgment of the superior court of Cincinnati will be affirmed, in ease the judgment mentioned in the pleadings as recovered in the State of Illinois, be not a bar to the suit of the present plaintiff, Lea; if it be declared a bar, then the judgment of the superior court must be reversed.

Upon an examination of the records and evidence as shown by the bill of exceptions, we have come to the conclusion, that the warrant of attorney, by virtue of which the judgment was taken in the circuit court of St. Clair county, Illinois, was not received as collateral security. The warrant was addressed to any attorney of any court of record of the State of Illinois, drawn in the usual form of such instruments, authorizing the attorney to appear for Sloo & McClintoc, receive a declara^ tion and suffer judgment to pass by confession, nil didt or non sum informatus, in favor of the president, directors and company of the State Bank of Illinois, for the sum of $125,000. Courts of record permit such instruments to be filed, and without further inquiry, give to them the effect intended by the parties, by authorizing judgment to be entered, on the confession of the attorney, instead of requiring the personal presence and confession of the defendant himself. We have discovered no reason for treating this warrant as collateral security, and can only view it as one of the common modes of obtaining a direct judgment for the debt against the parties indebted. The warrant of attorney appearing amongst the files, was executed with the design to give the bank a judgment against both the partners, Sloo & McClintoc. But though signed in the partnership name, it had been executed by McClintoc only, and was not of binding force against his partner. The judgment,, therefore, taken against both, was erroneous, and was afterwards,, for that cause, reversed as to Sloo, by the supreme court of Illinois.

Upon the state of facts as above shown, two questions are-presented for the decision of this court.

First. Is a judgment against one of two partners, drawers-of a bill of exchange, a bar to a subsequent suit upon the same-bill against both the partners ?

Second. Is the judgment in Illinois shown to us to be a-nullity in that state ?

Upon the first point, a decision was pronounced as early as-the year 1816. The decision will be found in the case of Ward v. Johnson and Johnson, 13 Massachusetts R. 148. The court there determined, that in an action on a joint promise, the plea of a former judgment against one of the defendants,, upon the same promise, was a good bar. A case establishing, the same principle was decided afterwards in the State of New York, found in the 18th Johnson’s Reports, 459, Robertson v. Smith and others. This was an action of assumpsit upon two promissory notes, in which a ease was made by consent, subject to the opinion of the court, upon this question : Can the-plaintiff, notwithstanding the judgment already obtained, (which was against two only of the makers,) maintain this action against all of them, on the same notes, admitting that all the-present defenders were partners, when the notes were made ? If they cannot, then a judgment of non-suit to be entered. It was there held by the court, that a judgment against two, was a bar to the action pending against the four defendants,, for the same cause of action. A case somewhat later was determined in Pennsylvania, (Smith and another v. Black, 9 Sergeant & Rawle 142,) holding the same doctrine, that a judgment against one partner is a bar to a subsequent suit against. both, though the defendant was at the time of the contract a dormant partner, and not known to be a partner till after the judgment was recovered. There is also a case quite recently determined, (King and another v. Hoar, 13 Meeson & Welsby 493,) which decides that a judgment recovered against one of two joint debtors is a bar to an action against the other. Parke, Baron, in pronouncing the opinion, expresses surprise that the same question should never have arisen before in the English courts. He cites as contrary to the conclusion the'court had come to, the opinion given by the Chief Justice Marshall, in the case of Sheehy v. Mandeville, 6 Cranch 253, and says : “ We need not say that we have the greatest respect for every decision of that eminent judge, but the reasoning attributed to him was not satisfactory to the court.” He then refers to a report of a subsequent case in this country, as holding a different doctrine, (the one already noticed in the 13th Massachusetts.)

A case still later than any of those already noticed, was decided in 1845, in the circuit court of the United States. It is Trafton & Bright v. The United States, 3 Story’s Rep. 646, in which court also the case, in 6th Cranch, of Sheehy and Mandeville is commented upon, and the judge, Story, takes occasion to express the doubts he had entertained for years, of the propriety of that' decision, and to say that the distinction taken as long ago as in Higgins’s case, 6 Coke’s Rep. 44, 46, between joint contracts and joint and several contracts, he thought to be a sound one. The judge remarks as to the case •of Sheehy and Mandeville, that in a case precisely identical he should deem his judicial opinion bound by it, and should follow it without question. The judge was, however, able to find a ■distinction between the two cases; in the one before him, the bar of the judgment was set up by the judgment debtor himself, but in the other it was set up by the other defendant. Upon such a distinction the judge felt at liberty to disregard the preoedent, and to decide in accordance with all the other authorities to which I have alluded. And in the case before him he maintained the doctrine as decided, that to an action brought against two joint contractors, a judgment rendered against one might be set up as a bar to the rest.

This court recognize the principle as established by the authorities before quoted, and decide also that a judgment against one of two partners upon a joint promise, is a bar to a subsequent suit against both upon the same promise. This determines the first point. And it remains only to examine the second, and to determine whether the judgment in Illinois is void. If void, it cannot of course be set up as a bar to a subsequent suit. This judgment of the circuit court of Illinois was taken, by a writ of error, before the supreme court of that state, and the case is reported in 1 Scammon’s Rep. 444. The opinion of the court as there given, declares, “ that the judgment in the circuit court is erroneous and void as to Sloo, having been entered up without authority. It is therefore ordered that the judgment of the circuit court, .as to Sloo, be reversed, and that court be directed to cause the execution thereon as to Sloo, to be set aside.” After the use of such language by the supreme court, in terms reversing the judgment as to Sloo, and as to him only, and setting aside the execution as to him alone, while the judgment against McClintoc is left standing upon the record, to all appearance by design allowed to remain unaffected by the reversal, we do not feel at liberty, without further proof of what is the law upon the subject in Illinois, to pronounce the judgment a nullity. It may be erroneous and liable to be reversed on a writ of error; it may also, for aught that appears, be set aside upon motion before the court in which it was recorded; there may be various ways perhaps of subjecting Sloo to the payment of this debt. But while the judgment in Illinois is suffered to remain upon the docket in force, or we are left so to infer, no second judgment on the original liability can be recovered here against MeClintoc, or against both jointly, or against Sloo separately, upon the original cause of action;- because it is already, or must be presumed to be, merged in the judgment.

Judgment of the Superior OouH reversed.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    Solomon Ducher v. The State.
    In an indictment for burglary, it is sufficient to lay the ownership of the house in a married woman who lives apart from her husband, and has the occupancy and control of the dwelling. '
    Proof of a constructive breaking at common law, is sufficient to warrant a conviction under our statute, which provides against a forcible breaking and entering.
    This is a writ of error to the Court of Common Pleas of Pickaway countj.

      At the July term, A. D. 1848, of said court, Solomon Ducher was indicted and tried under the 14th section of the act for the punishment of crimes, for breaking and entering the dwelling house of one Sarah Bowen, in the night season, with intent to steal, etc.
    The prisoner was convicted and sentenced to the penitentiary for seven years.
    A motion for a new trial was made, but was overruled by the court, and the case comes here upon a bill of exceptions, which fully exhibits the testimony.
    It appears that said Sarah Bowen was in possession of said dwelling house as dower in the estate of her deceased husband. That her son,'John Oulery, was living with her in the house. That on the night mentioned in the indictment, they were awak ened by some one knocking at the door, in answer to which John said “ come in.” , The persons outside pulled the latch-string without being able to open the door, when they stated that they could not come in. John then got up and opened the door, when two men walked into the house. After they had entered, one of them nearly closed the door and stood by it, the other stated they had a warrant for John Oulery from the prosecuting attorney of Pickaway county. John asked for time to put on his clothes, and after he had done so one of the men told him that they wanted his money, and asked for his mother’s money. John said it was in a chest. They told her to get the key, which she did. They tried to open the chest where John told them her money was, and being unable to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indictment, to wit, fifty-nine dollars in gold and silver.
    It appears that the door could not be opened by pulling the latch-string, without raising it up.
    It further appeared, that, about one year previous to this transaction, the said Sarah had intermarried with a man by the name of Andrews; that they lived together as man and wife for about two or three weeks, and that said Andrews was still living. The state introduced evidence tending to show, that defendant was one of the persons who entered said dwelling-house, as aforesaid, and to show that said Sarah was generally known by the name of Sarah Bowen, at the time the offense was committed.
    The attorney for the state also offered in evidence the record of a conviction of said Andrews for bigamy, in order to show that Said marriage with said Sarah was illegal and void, to which counsel for defendant objected; but the objection was overruled by the court, and the record admitted in evidence.

      J¥. JET. Swayne, for plaintiff in error.
    The record shows the following errors:
    I. The court erred in refusing a new trial. The defendant was not guilty of burglary. In this respect, the verdict is contrary to the evidence.
    The offense, under our statute, cannot be committed, without some degree of force in entering. The statute contains the word “forcibly.” Swan’s Stat. 222.
    In this respect, our statute differs from the English statute. Archbold 281.
    Neither the English statute, nor the forms of indictments framed upon it, contain this term. Archbold, Ibid.
    An indictment so framed, under our statute, would not be good.

      II. The ownership of the house should have been laid in the husband. The rule upon this subject is inflexible. Arch-bold 287; Roscoe 319.
    In this particular, also, the verdict is contrary to the evidence.
    III. The court erred in admitting evidence offered to prove that the marriage of the prosecutrix was “ illegal and void.”
    IY. If the record had shown that Andrews was convicted of bigamy for marrying Sarah Bowen, still, the testimony would not have been competent or admissible.
    The second marriage, in such cases, is not void, but voidable. The statute of divorces makes the prior marriage a ground of divorce, as respects the second marriage, and makes the children of the second marriage legitimate. Swan’s Stat. 291.
    In this view, also, the testimony objected to wras improperly admitted, and the verdict was contrary to the evidence, and a new trial should have been granted.

      Henry Stanbery, (attorney general,) for defendant.
    I. It is argued, for the plaintiff in error, that actual force is necessary to constitute the crime of burglary, under our statute. I do not think that the use of the word forcibly, in our statute, was intended to change the settled definition of this offense, as known and understood at the common law. To constitute a burglary, a breaking was always necessary; in order to which, some degree of force is essential, either actual or constructive.
    The sort of breaking, required at the common law, was something more than a mere breach of the close, as in trespass ; for if the entry were effected through an open door or window, such an entry, though a breach of the close sufficient to constitute a trespass, would not amount to a burglary. Some degree of force was always required at the common law, such as raising a latch, pushing up a window, etc.; and the only exception to this requirement of actual violence is, in the case of an entry by a chimney; and this exception was founded on necessity, as a chimney is always left open. Whilst, however, actual violence, or the forcible removal of some fastening, was essential at common law, it has frequently been held, that this force or removal of the fastening may be, constructively, the act of the party making the entry, though in point of fact, exerted by an innocent person within the house. The law is well stated in 2 East’s Crim. Law, 485, as follows:
    “ Thieves, having an intent to rob, raised the hue and cry, and brought the constable, to whom the owner opened the door; and when they came in, they bound the constable, and robbed the owner — held burglary. So, if the admission be gained under pretense of business, or, if one take lodgings with a felonious intent, and afterwards rob the landlord; for the entrance was gained by fraud, and the law will not endure to have its justice defrauded by such evasions. By the same reasoning, getting possession of a dwelling house by a judgment against the casual ejector, obtained by false affidavits, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing goods therein.”
    So, too, in Archbold’s Crim. Pleadings, 258, (a,) it is said:
    “ A constructive breaking is, where the offender, with intent to commit a felony, obtains admission by some artifice or trick, for the purpose of effecting it. As, for instance, if a man knock at a door, and, upon its being opened, rush in with a felonious intent,” etc.
    The evidence shows that, in the case at bar, the defendant came to the house with a felonious intent; that is, to rob the inmates. He found the door closed, and attempted to effect an entrance by the use of force directly, in raising the fastening. Not succeeding in this, he resorted to the artifice of obtaining admission as a visitor, or a person on business, by knocking for admission. Force, then, was exerted, by the boy within the house, to remove the fastening; and in this way an entrance was effected, and the robbery at once committed. This was a clear case of constructive force, and the removal of the fasten ing, by the boy, is to be considered as the act of the defendant

      II. The remaining points, made by the counsel for the plaintiff in error, may be considered under one head.
    The indictment lays the burglary to have been committed in “ the dwelling house of Sarah Bowen.” It is contended that it appears from the testimony that, although the house was then in the exclusive occupancy of Sarah Bowen, yet, as it was proved that she was married to one Andrews, about a year before the burglary,-and that he was then living, the locus in quo should have been described as the dwelling house of Andrews.
    If this were the only proof as to the possession of or right to this house, a question of some importance would arise upon the particular phraseology of our statute, in which a clear distinction is made from the common law definition, in this very particular.
    It must be the dwelling house of another, according to the common law; whereas, under our statute, it is “ any dwelling house” without reference to ownership. It would seem that, under our statute, the question of title or actual ownership is no way material; and that, instead of following the English rule as to proof of ownership in burglary, it would be more reasonable to adopt the English rule in arson. The distinction as to the proof of ownership or mere possession, between the breaking into a dwelling house and burning of a dwelling house, is referred to in 2 East’s Cro. Law 499. It is there said, that “it is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment; and here it is to be lamented, that the same rule does not prevail in this ■case (burglary) as in arson, which is considered as an offense .against the actual possessor, by whatever title he may hold the possession.”
    As our courts are not bound by the rule adopted in England .as to burglary, and as, in truth, the offense of burglary is just as much against the person in actual possession, as that of arson, and especially as our statute makes no' reference to the ownership, I do not see that anything beyond actual possession need be shown. That proof identifies the house much more distinctly than any other evidence of title.
    But if the court should incline to follow the English decisions, and hold that a dwelling house, in the possession of a wife, living apart from her husband, must be laid to be the dwelling house of the husband, then it will be proper to look to the further proof made in the case.
    It appears, from the bill of exceptions, that the house in which the burglary was committed, had been set off to the person named in the indictment, Sarah Bowen, as her dower in the estate of a former husband, and was in her exclusive possession, at the time of the offense. It was further proved by said Sarah and her son, on cross-examination by defendant, that she had intermarried with a man by the name of Andrews, about a year before the commission of the offense, and that they had lived together for two or three weeks after the marriage." To prove this marriage a nullity, the state then introduced the record of the conviction of George Andrews for bigamy, in marrying one Mary Boen, he having, at the time, a former wife then living; and it was also proved, that “ said Sarah was generally known by the name of Sarah Bowen, at the time of the commission of the offense.”
    The admission of the record was objected to, and the objection overruled.
    The counsel for plaintiff in error claims that this record was improperly admitted, on two grounds:
    1. That there was no sufficient proof of identity, to show that Sarah Bowen was the same person as Mary Boen, named in the record of conviction. Certainly, without some proof of identity, the jury could not have found the fact, nor would the court have admitted the record; and we are to presume that such proof was made.
    The rule, in such a case, is not to intend that the item ex- • cepted to was all the evidence offered.
    2. The next objection made to this record is, that proof of a former marriage, and that the first wife was living at the date of the second marriage, does not show the second marriage to be void, but only voidable.
    This is certainly a new doctrine. The second marriage is a mere nullity. 1 East’s Oro. Law, title Polygamy, 466. Undoubtedly the party injured may ask for a decree of divorce, under such circumstances; but that is for convenience in the establishment of the fact, and to furnish the best evidence of the fact.
    As to the admissibility of the record of conviction, to establish the fact of a former marriage, and the nullity of the second marriage.
    For this purpose, it would seem that the record was admissible, although between other parties.
    The general doctrine is thus stated in 1 Stark. Ev. 281:
    “ The record of a judgment in a criminal case, as in all other cases, is, in general, conclusive evidence of the fact of the conviction and judgment; and, as to all legal consequences resulting from it, a judgment in a criminal proceeding is in the nature of a judgment in rem: such a judgment, standing unreversed, is, with some exceptions, conclusive evidence as to all its consequences.”
    The question, incidentally made at bar, was, whether Sarah Bowen was, at the time, a married woman. The defendant proved her marriage, about a year previous, to one Andrews. To show that this marriage was invalid, the state then offered the record of Andrews’s conviction of bigamy, establishing the fact that he had a former wife, living at the date of this second marriage; the legal consequence of which was, to show that the second marriage was a nullity.
    Suppose, instead of a conviction for bigamy, the state had produced a decree for divorce, dissolving the second marriage. That, certainly, would have been good evidence as to the question, whether the prosecutrix was a married woman, at the time of the burglary; and yet it would be between other parties.

      But the very point as to the admissibility of a record of conviction in bigamy, is established by a decided case — in which it was held as prima fade evidence inter alios. The quotation in Shelford on Marriage and Divorce, 31 Law Library 190, top paging, (231 in margin,) is as follows:
    “ Sir Jno. Nichol said that, generally speaking, however, he apprehended the rule to be that a record of conviction is evidence of the same fact in a civil case, only that it is not conclusive evidence. This is the rule to be collected from the following case, as cited by Chief Baron Gilbert. If a man has-two wives, and be therefore convicted, and dies, and the second wife claims dower, the verdict and conviction cannot be given (i. e. conclusively given) in evidence; but in this case the writ must go to the bishop — for whether the marriage be lawful or not is the point in controversy, and that is of ecclesiastical jurisdiction, and is not to be decided at Com. Law. But the verdict may be made an exhibit in the cause before the bishop, to induce him to believe there was a former marriage.”
    See also Boyle v. Boyle, 3 Mod. Rep. 164, that a conviction for bigamy is conclusive evidence of the fact against the defendant in another case.
   Spalding, J.

It is contended that the court erred in refusing to grant a new trial, and this being assigned for error, the following points are taken, to wit:

First. The ownership of the house should have been laid in the husband, Andrews.

Second. The court should have rejected the record when offered, to prove that Andrews had been convicted of bigamy.

Third. The defendant was not .proved guilty of burglary under our statute.

Upon due consideration, we are all of opinion that some of the common law rules in respect to the ownership of the dwelling house, in which a burglary has been committed, have little else than their age to recommed them, and may well be dispensed with under our statute.

Burglary, at common law, is the breaking and entering the dwelling house of another, in the night, with intent to commit some felony within the same.

By our statute, it is the breaking and entering into any 'dwell ing house in the night season, with intent, etc.

At common law, if a house be tenanted by a married woman, it must, in all cases, be deemed the house of her husband and not of herself, even although she live separate from her husband.

Under our statute, if it be necessary to aver an ownership at all, we adopt the more simple rule that the person in the visible occupancy and control of the premises, at the time of the burglary, may be set out in the indictment as the owner, whether that person be a tenant of the freehold for years, at will, or by sufferance; and that a feme covert, living apart from her husband, may, for this purpose, be treated as a feme sole.

It appears in the case before us, that Sarah Bowen having a life estate in the premises, was in the exclusive possession and control of the dwelling house in which the burglary is alleged to have been committed ; and, although the marriage ceremony had been performed, and she had lived about three weeks with Andrews as his wife, for nearly a year anterior to the commission of the offense, she had, for some reason, lived by herself and been designated by no other name than that of her deceased husband.

The ownership of the dwelling house, under such circumstances, is well enough laid in “ Sarah Bowen.”

The decision of this question in this manner necessarily disposes of the second point taken by council, for the record evidence was only material if the marriage contract vitiated the indictment.

We have decided that it did not, and now pass on to the more important inquiry whether the proof showed the defendant guilty of burglary under the statute.

It is conceded that our statute contains the word forcibly,” which is in addition to the words “ break and enter,” as known to the common law. “ If any person shall in the night season, willfully, maliciously, and forcibly break and enter into any dwelling house,” etc.

It is insisted, and with much plausibility, that, under this statute, the -offense of burglary cannot be committed without some actual force exerted in entering the house.

But, if this be so, how is the degree of force which it is supposed necessary to exert, to be measured ? It surely will not be exacted that a door shall be broken down or a window smashed in pieces.

Undoubtedly, it will be conceded that the degree of force recognized by the common law, will answer the purpose; as raising the latch, or the pushing open of a massive door which is kept shut by its own weight. In these and many like instances, the law, out of pure regard to the sanctity of every man’s castle, construes an entrance, with a felonious intent, and. in the night season, to be a burglarious breaking and entering.

And there can be no breaking without the application of force, actual or constructive.

If, at common law, force was always implied in breaking into a house, how is the offense changed by the statute, which superadds the word “ forcibly ” as a qualifying term ?

For ages it has been considered that the most dangerous sort of burglars were those who would seek to gain an entrance into one’s mansion, not by violence, for that might be resisted, but by art, cunning and circumvention.

It has been wisely ruled, therefore, that “ to knock at the door, and upon opening it, to rush in with a felonious intent, was burglarious, though there was no actual breaking; for the-law will not suffer itself to be trifled with by such evasions.” 4 Blackstone’s Com. 226. Whether the offender gain an entrance by open violence or by deceiving the inmates and knocking at the door after the manner of a peacable citizen, if the intent be felonious, the law implies a forcible breaking of the barriers erected for the security of the dwelling.

A majority of the court are of opinion, that the same rules of 'Construction apply to the offense of burglary under our statute as at common law, and that the defendant was rightly convicted.

Judgment affirmed.

Caldwell, J., dissented as to the second point decided, holding that to constitute burglary under the statute, some degree •of violence must be used in effecting an entry.


author: Caldwell, J.

text:
    Joseph Jonas v. The City of Cincinnati.
    The council of the city of Cincinnati are prohibited by their charter from assessing and collecting a tax in 1848 for lighting a street in 1845.
    The city council can create no debt of the kind beyond the fiscal year.
    Were such tax legal, apercentage for collector’s fees could not be added to nor the costs of proceedings before the mayor.
    This is a bill in chancery reserved in the County of Hamilton.
    The bill is filed for the purpose of enjoining the city of Cin cinnati from collecting a special tax levied on the property of complainant, to pay the expense of lighting the street in front of his property with gas.
    The 14th section of the city charter, passed March, 1884, gives the city council the power, on the petition of the owners of property bounding on any street, to have it lighted, and to levy and collect a tax on the front foot of the property so bounding on the street. The third section of the act amending the city charter, passed March, 1838, provides that the city council shall have power to light the city or any part of it, either with or without petition, and that the council, for defray ing the expense thereof, shall have power to levy and collect a special tax from the real estate bounding on the section that may be so lighted, in such manner as they shall provide by ordinance. The fourth section of the same act provides that the tax so levied, shall be a lien on the real estate on which it may be assessed. The third section of the act of 1839, amendatory of the city charter, contains a proviso of a similar character, for levying a special tax for lighting the city, on the real estate bounding on the section lighted, in such manner as the city council shall provide by ordinance.
    On the 21st of June, 1843, the city council passed an ordinance, providing for the mode of proceeding in lighting the city, and in assessing and collecting the tax to pay the expense of the same.
    On the 12th of September, 1843, the city council passed another ordinance, amendatory of the ordinance of June, 1843. By these ordinances it is provided, amongst other things, that when the city council shall determine to light any part of the city, they shall pass an ordinance to that effect, and shall direct a special tax to be assessed on the real estate bounding on the section so lighted, and that the city council shall also determine the amount to be levied on the front foot of such real estate. These ordinances also provide, that when an ordinance shall be passed, making such assessment, the city clerk shall, as soon as practicable, make out a copy thereof, with a plat of the district so assessed, and deliver it to the city collector, who shall proceed to collect the tax; and that he shall make return of all the delinquents to the mayor.
    On the 17th of July, 1844, the city council passed an ordinance providing that a large part of the city should be lighted, embracing Third street from Walnut to Main, on which the complainant’s property is situated. The ordinance also enacts, in general terms, that a special tax shall be levied and collected from the owners of real estate bounding and abutting on the streets, or landings so lighted. With the exception of this general provision, nothing is done towards the assessment and col* lection of a tax to defray the expense of lighting.
    No further action was had in the matter, by the city council, until 1848. On the 11th of February of that year it passed an ordinance assessing a tax of fifteen and one-eighth cents on the front foot of the property on Third street, between Walnut and Main streets, including the property of complainant. This tax was levied to pay the cost of lighting the street for a year, commencing on the 3d day of October, 1845. The complainant’s property was returned delinquent to the mayor of the city, who in accordance with the provisions of an ordinance of the city, passed May 29th, 1839, providing for the sale of lots delinquent for special taxes, issued his warrant to the marshal, directing him to seize and sell the said property, or so much of it as might be necessary to pay the tax, and also three per cent, added for collector’s fees, and two dollars and ninety-two cents the costs of the proceedings before the mayor.
    The marshal having proceeded to advertise the property for sale, the complainant filed this bill, alleging the illegality of the tax and praying for a perpetual injunction, restraining its collection.

      Pugh Pendleton, for complainant,
    made these points :
    1. That the lighting of the city is of general and public utility, and its expense must be defrayed by a tax generally assessed ; and that special taxes for that purpose, violate the fourth section of the bill of rights. Sutton v. The City of Louisville, 5 Dana’s Rep. 23; Parks v. The Mayor of Boston, 8 Pick. 225.
    2. That, although the charter of 1839 authorizes the city to assess special taxes, in such manner as the council “ may provide by ordinance,” yet, such ordinance must be reasonable, and the assessment of taxes under it just and equal; and that the ordinance of 1839, now sought to be enforced, is unreasonable, and the assessment unjust and unequal. 1 City Ord. 15, 16, 37, 40, 48, 173; Sharp v. Speir, 4 Hill’s Rep. 86; 2 City Ord. 29, 32; 3 City Ord. 27.
    3. That the ordinance of 1841, for lighting the city with gas, is illegal, and violates, especially, the 25th section of the original charter; and that no taxes accruing under it, are chargeable upon the property of private citizens. 1 City Ord. 22, 82.
    4. That the ordinance of February 11th, 1848, is illegal and void, because it assesses as well collector’s fees as the tax itself. The Canal Bank v. The Mayor of Albany, 9 Wend. 244; The Matter of William and Anthony streets, 19 Wend. 682; 3 City Ord. 25, 26; The State v. Taylor, 10 O. R. 378.
    5. That the said ordinance of 1848, as regards this case, is ex post facto in its operations, and therefore void. Culbertson v. The City of Cincinnati, 16 Ohio Rep. 574.
    6. That the mayor had no authority to render any judgment in the premises. 1 City Ord. 173; Dixon v. The City of Cincinnati, 14 Ohio Rep. 250.
    7. That the award of execution for collector’s fees, interest, and costs, as well as for the tax, is illegal and void.
    8. That the city has no authority, under her charter, to seize and sell real estate for taxes. She can only assert her lien or claim, by bill in equity or action at law. Sharp v. Johnson, 4 Hill’s Rep. 96; Doe v. Chunn, 1 Backf. 336.
    9. That the warrant of sale is void, because it does not pursue the general statute regulating executions, but does prescribe an unfair method of offering property to vendue. Gwynne v. The City of Cincinnati, 10 Ohio Rep. 192.

      Daniel Van Matre, for defendant.
   Caldwell, J.

A number of objections are presented,'by complainant’s counsel, to the assessment and mode of proceeding, in the collection of this tax, which, it is contended, render* the proceedings illegal.

The first objection we shall notice is, that the city council could not assess and collect a tax, in 1848, for lighting the city for the year commencing in October, 1845.

The 25 th section of the city charter provides, that it shall not be lawful for the city council to make or authorize any contract, by ordinance or otherwise, for the payment of money at any day beyond the current fiscal year, in which such contract is made, except as provided in the preceding section. (The preceding section here referred to, merely authorizes the city to borrow $80,000, to pay the unfunded debt of the city.) The 25th section further provides: “ Nor shall it be lawful for said city council to contract or authorize any loan, except as hereinbefore excepted, not predicated upon the revenues of the current fiscal year, in which such loan is made. If any city council shall contract or authorize a debt or loan, in either of the cases specified, contrary to the provisions of this section, every such contract is hereby declared illegal and void, as against he property and revenues of the city, and of full force and obligation against the separate private estates of every member of the city council, who was present in council when such debt or loan was contracted or authorized, and who did not record his vote against the same, and forthwith make known the fact, through some newspaper of general circulation in the city.”

The latter part of the section provides, that the holder of any such debt or loan may proceed against any one, or all, or any intermediate number of the members of the city council, on such claim.

By this section of the charter, the legislalure have, in the most explicit manner, prohibited the city council from contracting any debt beyond the fiscal year. If the city council had, at the time the contract was made, in 1845, passed an ordinance that the expense of lighting for that year, should be paid in 1848, by a tax then assessed for that purpose, it would have come within the letter of the prohibition. It is none the less a violation of its spirit, that the council did not pass the ordinance providing for its payment, until 1848. This restriction on the city council is a wise and beneficial provision, and the good of the city requires that it should be strictly complied with.

Another objection has been taken to the adding three per cent, on the amount of the tax for collector’s fees.”

The city council have no authority for levying and collecting special taxes except for specified purposes. In this instance, they were only authorized to collect taxes for lighting the city. They must act strictly within the provisions of their charter — they can add nothing to the tax bjr implication.

The collector is an officer of the city, and his services must be paid for out of the general revenues of the city, unless otherwise provided for by the charter. The same may be said of the mayor’s fees. Neither could have been collected in this way, if the tax had been legal.

On the point whether the city have power to sell real estate in this way, for this kind of tax, the court have not been able to agree. We have not thought it necessary to pass on the other points made in the case.

We believe the tax was assessed without authority of law, and will therefore decree that the city be perpetually injoined from proceeding to collect it.