President of the Mechanics' Bank v. Hazard

-Thompson, ., '.delivered the opinion Of the court. -This ' Is an action of,debt against the defendant, on his recognizance: of bail for John, Hazard. Judgment against the principal was. obtainedip'Jqmqry term, 1812,. for i>,094 dollars and 8 cents, .The defendant pleads,,- 1st./Payment,/b.y the principal, of the, -judgment, before the commencement of this suit, to wit,'the 1st .of April,-181.2,. 2d, Payment .by Ppililiam G-. Miller, who was’ an endorser upon Johji Hazard's note, and who had become liable W pay fhfffeaaie^.tlhe tqne-of A,esaitoeias-ifl;.'di^. [357] first plea. The plaintiffs take issue upon these pleas ; And the first' qnésíion which arises is, whether the p'r'oof Supports the pleas, or either of them* There is no evidence, !fl atiy manner, showing payment by the, principal. Under the second plea, however,,it appears, that Miller, on the 2d of November, 1811, procured a note to be discounted by the plaintiffs, and that 1,017 dollars and 31 cents of the money was to be applied to the payment of the principal and interest due upon the note,,on which the suit against John Hazard was pending^ Miller's pote was renewed several times; and when it Was- paid does not appear; probably, not Until after the judgment was obtained against John Hazard.' This proof did not support the'plea. It did not show a payment of the full amount of the judgment. Had the plea set out the true sum paid, it would have.been bad on demurrer, and, of course, no defence. And, if so, it follows, of course, that the fact itself is no bar; for, in case of demurrer, the fact is admitted. In the case of Dederick v. Leman, (9 Johns. Rep, 333.,) it was decided by this cou'rt, that a pleA of payment bf a less sum than was due on a bond, although accepted in full satisfaction, was not good, either as a plea-of payment, or of accord and satisfaction. And, besides, the payment made by Miller was before the judgment obtained against Hazard} for, although made by Miller's note, discounted by the plaintiffs, it was received by them as payment, And* the sum due on Hazard's note was, doubtless, passed to Miller's credit. The .understanding of Millet•, that, if his note was not paid', the plaintiff would have had- a right to retain the money, if any, collected from JohnHazard, could not materially affect the transaction. It was a payment at that time, subject, however, to be reimbursed, out of an uncertain fund, Upon the event of the note’s hot be-? ing paid. In strictness, therefore, the facts given'ih evidence do not show a satisfaction of the judgment against John Hazard. There was, at all eyents, no payment of the costs due on that; suit: and the next question that arises is,' whether the defendant can avail himself of -that, payment pro tanto, and I am inclined to think he cannot. It was not A payment made by, or! in behalf of, John Hazard, nor of ivhich he could, in any manner, avail himself, and, if he could not,, his bail hannot. '- The payment was made under an express Agreement that-the suit against John Hazard should proceed fot the benefit of Miller, ,|is- endorsor* Had the plaintiffs- remained the real parties to [358] the suit, perhaps the defendant might, in some way, in equity certainly, if not' at/law, have availed himself of such payment, according to-what was said by this court in Wattles v. Laird, (9 Johns. Rep. 327.) - But the plaintiffs, by their agreement with’ Miller,, became mere nominal parties; and we have a.right so to. consider-them, and look-at, and protect-, the real, parties fn ihr terest.. All1 considerations of hardship -must be. laid' Out of view.' They apply with- as much force to the endorsors of JohnHazard as to Ins bail: and when a-loss must fall upon One of /two . innocent persons, each has a right to clainf protection under whatever strifct and rigid rules Of law are to be- found .in his -fávour: and according to which the plaintiffs are, in my Opinion, entitled to recover, the full amount of the'judgment andinterést-i and this is /the opinion of the. court. ■- ■■ . . ■ ' ' -Judgment'for.; the plaintiils,,':