Bouchaud v. Dias

By the Court, Bronson, Ch. J. If we assume that the release executed by the secretary of the treasury is a valid instrument, and that the written consent of the plaintiff to the release was duly proved, I do not see how this action can be maintained. When the defendant was released by the government, his obligation was at an end, and he ceased to be a co-surety with the testator. Nothing remained upon which to found the duty of contribution. And as the plaintiff consented to the release, he has no ground for complaint But the consent was not duly proved. Although the paper was necessarily deposited in a public office, it was a private writing, which could not affect the plaintiff without proving that it had been executed by him. It was necessary to call one of the subscribing witnesses. If the paper could not, by law, be removed from the treasury department, so as to produce it on the trial, it should either have been proved on a commission, or by calling the subscribing witness, and producing a sworn copy. There is no act of congress making a certified copy evidence. This paper is not like a record, which may be proved by an exemplification ; nor is it the act of a public officer. (Peck v. Farrington, 9 Wend. 44; Catlet v. Pacific Ins. Co., 1 Wend. 561; 4 id. 75, 13. C.) It is a private writing, which can bind no one until it appears that he is a party to it. In one view of the case, the defendant need not have troubled himself about the consent. It was enough that he had been released. The release of one of several obligors, whether they are bound jointly, or jointly and severally, discharges all of them. (Bronson v. Fitzhugh, 1 Hill, 185; Bank of Poughkeepsie v. Ibbotson, 5 id. 461; Nicholson v. Revill, 4 Ad. & Ellis, 675.) If we lay the consent out of the case, then all the obligors were [242] discharged, and the voluntary payment which the plaintiff has since made, can give him no rights against the defendant. It is proper, however, to say that this view of the question goes upon the ground that the secretary of the treasury has power to release a surety without the assent of a co-surety, though he cannot release the principal debtor without the consent of his sureties, when they are solvent.' (4 Story’s Laws U. S. 2236, §§ 1 to 4 ; 2327, § 3; p. 2368, § 2.) If upon the true construction of these acts of congress the consent of the co-surety was necessary, then of course the release, without consent, amounts to nothing, because the secretary had no power to give it. But another difficulty in this branch of the plaintiff’s case renders it unnecessary to settle the construction of the acts of congress. Before the secretary of the treasury can grant a release, the debtor must make application in writing, under oath, stating several things in relation to his insolvency and estate. (4 Story’s Laws U. S. 2236, § 1.) The application is necessary to confer jurisdiction on the officer; and there was no proof in this case that such an application was made. The release recites that the defendant preferred his petition to the secretary to be released; but recitals do not prove j urisdictional facts. (Bennett v. Burch, 1 Denio, 141; and see Cowen Hill’s Notes to Phil. Ev. 1014 to 16.) If the rule were otherwise, inferior courts and magistrates might acquire jurisdiction by merely affirming the existence of the facts on which jurisdiction depends. An insolvent’s discharge in this state is evidence of the facts contained in it. But it is because the legislature has so provided in express terms, (Jenks v. Stebbins, 11 John. 224; Barber v. Winslow, 12 Wend. 102.) The discharge in the first case was granted under the insolvent law of 1811; and in the' last case under the law of 1813. But both statutes provided that the discharge should be conclusive evidence in all the courts of this state, of the facts therein contained. . (6 Web. 202, §4; 1 R. L. 464, § 8.) The statute was not mentioned in the opinion of the court in the last case; but the decision went upon the authority of Jenks v. Stebbins. There is no statute making the recitals in the release evidence, [243] and as there was no proof of the existence of the lasts necessary to give the officer jurisdiction, the instrument was of no force. The remaining question is on the effect of the judgment between these parties in the superior court of the city of New-York. As I understand the facts, the plaintiff sued then, as he does now, for contribution. The declarations in the two cases are precisely alike, except that they mention different bonds as a part of the ground-work of the action. But both bonds were given at the same time, upon the same consideration, and as parts of one and the same transaction. In answer to the first action, the defendant pleaded the same release and consent that are set up in answer to this action ; and, upon demurrer, judgment was rendered in his favor. We have then the judgment of a court of concurrent jurisdiction directly upon the point made by this suit; and nothing is better settled than that such a judgment, so long as it remains in force, is conclusive between the same parties in another action upon the same matter. It is true that there is a shade of difference between the two cases as to the necessary proof on the part of the plaintiff to sustain the action. Different bonds are mentioned in the two declarations. But so far as relates to the principal question in controversy, to wit, the right of the plaintiff to demand, and the duty of the defendant as a co-surety to make contribution, the two cases are precisely alike. The defence is precisely the same in both actions. The matter which the plaintiff now attempts to agitate anew is res judicata. The case of Gardner v. Buckbee, (3 Cowen, 120,) is in point. The defendant had given the plaintiff two promissory notes for the consideration money on the purchase of a schooner. In a suit on one of the notes, the defendant set up a total want of consideration, on the ground of the fraud of the plaintiff in making the sale; and judgment was rendered for the defendant. In a suit subsequently brought by the plaintiff upon the other note, the former judgment was held a conclusive bar. So here, the two bonds were given at the same time, and upon the same consideration; and the parties were alike co-sureties in both. The defence set up in answer to the plaintiff’s claim for contribution was the same in the [244] former action that it is now; and the judgment rendered in that action is a conclusive bar to any new litigation of the same matter. A distinction was suggested by the plaintiff’s counsel, on the ground that the former judgment between these parties was rendered on a demurrer to the defendant’s plea. But it can make no difference in principle, whether the facts upon which the court proceeded were proved by deeds and witnesses, or whether they were admitted by the parties. And an admission by way of demurrer to a pleading in which the facts are alleged, must be just as available to the opposite party as though the admission had been made ore tenus before a jury. If the plaintiff demurred for want of form, or if, for any other reason he wished to controvert the facts alleged in the plea, he might, after learning the opinion of the court, have asked leave to withdraw the demurrer and reply. But he suffered a final judgment to be entered against him. He probably thought that the facts were truly alleged in the plea, and therefore did not wish to amend. But however that may be, the judgment is a bar to this action. As the circuit judge was right upon this point, there could be no use in granting a new trial on the other grounds which have been noticed: New trial denied.