[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 502 When this court gave judgment of reversal in this cause and ordered a new trial, in April, *Page 503 1851 (4 Comst., 514), a single question was presented for decision; and that was whether the plaintiff had made out, in evidence, a demand against Baker Young arising upon judgment.
The evidence upon which the plaintiff contended that he was entitled to succeed consisted of the record of a judgment, under the joint debtor act, against Baker Young, obtained after service of process upon Young only, and without any appearance by Baker, coupled with proof showing that the cause of action described in the declaration in that suit was, as was therein alleged, one for which Baker Young were jointly liable to the plaintiff. Upon this question the members of the court were divided in opinion.
Judges Gardiner and Gray were of opinion that the plaintiff had made out his case. The other six judges were of opinion that the judgment ought to be reversed and a new trial had. Chief Justice Bronson and Mullett, and Jewett, Js., gave their opinions at large, as contained in the report of the case.
Judges Paige, McCoun and Ruggles gave no written opinions, and nothing appears in the report of the case to indicate precisely the views which they entertained, except in so far as such an indication is afforded by their concurrence in the judgment rendered.
Subsequently, as is stated in the able dissenting opinion of Bosworth, J., in the superior court, and as I assume the fact to be, Judge Paige, on being applied to to state the ground of his opinion, informed the parties "that in his opinion the judgment confessed by Young was not evidence of a demand against Baker, personally," but that he agreed with Judge Jewett in thinking that an action of debt on judgment might, in point of form, be maintained against both.
Judge Ruggles, as we learn from the same source, thought that the decision should have been put upon the ground that the 2d section of the joint debtor act, so far as it makes the joint judgment evidence as against the defendant not served with process, was unconstitutional. As to the ground on which Judge McCoun proceeded, *Page 504 we have no further light than is to be derived from the reported case.
In the absence of any evidence to the contrary, it must be assumed that judges who unite in a judgment, act upon the grounds stated by those judges whose reasons are assigned and with whom they agree in the judgment to be rendered. The published opinions of Chief Justice Bronson and Judges Jewett and Mullett show that the common and sole reason upon which they proceeded was, that the judgment itself was no evidence of Baker's liability.
This is stated in terms by Mr. Justice Bosworth, in his opinion annexed to the present case, as the result of his examination of their views, and is undoubtedly the just result to which any one who examines the opinions will come. As this was a common ground on which all the judges stood who gave written opinions, we should be bound, even in the absence of any special evidence of their views, to assume that the same ground was occupied by those judges who agreed with them in the judgment rendered.
(Wells v. Steam Nav. Co., 2Comst., 208; James v. Patten, 2 Seld., 15.) The same substantial ground, however, appears to have been taken by Judges Ruggles and Paige, as is apparent from what has been already stated in respect to their views.
We have then this result, that five and probably six of the judges of this court agreed in the common position that the judgment was no evidence of Baker's liability, and that for this reason they agreed that the plaintiff had not made out in proof the position it was essential for him to establish, viz., that Baker was indebted to him upon a demand arising upon judgment.
This proposition, indeed, was affirmed by the six judges who reversed the former judgment, for it was the precise point presented; and no ground has been suggested, nor am I able to conceive of any other than this upon which an opinion for the reversal of that judgment could have been founded.
It is true that two of the judges, Chief Justice Bronson and Mullett, J., thought *Page 505 that the necessary consequence of their view, in respect to the force of the judgment as evidence of Baker's liability, was that no action of debt could be maintained upon the judgment; while judges Jewett and Paige did not think this a necessary consequence, but were of opinion that an action in form upon the judgment might be maintained by force of the statute, just as (if I may illustrate the view which I understand them to have entertained) counts in debt were often directed by statute in actions for recovering penalties, instead of counts formally averring the facts on which the liability to the penalty arose.
Owing to this difference of views, it is undoubtedly true that the former judgment of this court does not decide either that an action of debt can or cannot be maintained upon such a judgment, and it is no less true that uncertainty upon a point of so frequent occurrence is greatly to be deplored on account of the practical evils which may flow from it; but I do not see, all this being conceded, how it diminishes the force of that which this court did decide, and which alone was necessarily before it for decision.
Upon the subsequent trial of the cause, in the superior court, this same question was raised upon a motion for a nonsuit, and that court gave judgment of nonsuit upon the ground that the demand did not appear to have arisen upon a judgment.
They gave this judgment, as the two learned judges who concurred in it state, not because they were satisfied that the former judgment of that court was wrong in principle, but because, upon appeal to this court, the precise point had been adjudged contrary to their former judgment. Can this court now say that the superior court erred in conforming their judgment to the judgment rendered in this court? We should, I think, be departing from our duty if we reconsidered the point decided by our former judgment.
In a court constituted as this is, in which the greater number of its members are frequently changed, it is peculiarly necessary that a decision should not be departed from, *Page 506 except upon the strongest and plainest grounds; were the point involved in this case entirely open for consideration, it is by no means clear that as wide differences of opinion would not now exist as existed when the former decision was made. Under these circumstances the judgment should be affirmed.
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