Brinkerhoff v. Marvin

The Chancellor. 1. The decision Of the Supreme Court, stated in the pleadings, in which they have declared and adjudged that the specification filed by the plaintiffs, oti entering their judgment by confession, was defective, and that, therefore, the judgments of the defendants were entitled to priority, I do not feel myself at liberty to question and overrule. Jt is settled, as an established rule, that Courts of law have an equitable jurisdiction over judgments by confession, entered upon warrants of attorney. It was so declared by the Supreme Court, in Frasier v. Frasier ; (9 Johns. Rep. 80.) and it is necessary to justice, that Courts of law should possess, and liberally exercise that jurisdiction. With respect to the sufficiency of these specifications, required by the act of the 21st of April, 1818, (sess. 41. ch. 259. sec. 8.) it is very clear, that the Court of law in which the judgment is entered, must examine and pass upon their validity, whenever the question arises before them. It is necessarily incidental to their general jurisdiction over the proceedings, judgments, and process of their own Courts. If the point arises between two judgment creditors, each claiming a priority of lien, the Court awarding execution must decide, and direct the application of the money to be collected. In this case, the parties appear to have discussed their respective rights in the Supreme Court, and never raised a doubt as to the competency of the Court to examine and decide oh the validity of the specification accompanying the judgment of the plaintiffs. I do not understand that the counsél, upon the motion be [325] fore me, mean to deny the authority of the Supreme Court, as exercised in the case; but they insist, that the decision is erroneous, and that this Court may review the question, and decide the same point between the same parties, without reference to the decision at law. Where the Supreme Court have decided on the construction of a statute in its application to a case regularly brought before them, this Court will not undertake to review the decision, but consider it conclusive on the case. In a variety of cases, which constantly arise in the Supreme Court upon special motion, matters of fact may be discussed, and equitable rights may be affected, which are not concluded, but may be reconsidered in this Court, under the advantage of a more full and elaborate investigation and discovery. But when the Supreme Court have been called upon to give a judicial construction to a statute, in its application to a case regularly before them, and they have solemnly settled that construction, as was done in the case of Lawless v. Hackett, (16 Johns. Rep. 149.) upon this very subject of specification of the debt, and when another case (as between the present parties) comes before them upon the same point, and, after discussion, the same rule of interpretation is applied to it, I think it would be very disorderly, and contrary to the respect and comity which is justly due from one co-ordinate tribunal to another, to undertake to correct that decision, upon a bill brought purposely to have that decision reviewed. I cannot perceive the propriety of such a direct interference and control, and I am not willing to assume it. I am not called upon, in a new case, to give a construction to the statute, but I am required to relieve the plaintiffs from the order of the Supreme Court, and that, too, upon the avowed ground, that the Supreme Court had given an erroneous construction to the statute in this very case, and between these very parties. This bill seems to have been principally intended to be a bill of review of that decision, and in that view I shall not sustain it. Nor do I, by any means, wish to be understood as intimating an opinion unfavourable to the accuracy of the construction given by the Supreme Court to the statute. The inclination of my mind is in favour of that construction. [326] A bill stating generally, that the demand was for sundries, or a sealed note for the balance, or for goods sold. fy-c., according to the specification filed by the plaintiffs in this cause, when their judgment was entered; or a bill for goods, wares, and merchandizes sold and delivered, and for money lent and advanced, at various times, as was the case in Lawless v. Hackett, is too general and loose to meet the mischief which the statute intended to prevent. The statute required not merely a statement of the nature and consideration of the debt or demand, but a specification. It was to be a statement and specification, and to specify, or to mark by “ distinguishing particularities.” To leave no doubt of the intention of the law ; it is to be a particular statement and specification. All this accumulation of words shows that something more was intended than the common counts in a declaration, for goods sold, and work done, aqd money lent. You must specify what goods, or work, and when and where, if you mean to he particular, and to give the opposite party particular and specific information. So very comprehensive a charge would be vox et prceterea nihil, and leave the parties full opportunity to contrive and mask their frauds. A judgment, as well as a mortage, may be taken to secure future responsibilities. But, it seems that response bilitiesincurred after a subse quentjudgment will not be co-Judgment the 2. As to the character of the transactions with which the defendants are charged, it is to be observed that every alie- ° J nation of fraud in the bill is met and denied in the answer, ° 7 and the defendants have set forth, fully and clearly, the ex-1 J v 7 tent and amount of their demand. The two Taulors, as J 7 partners, are indebted to them to the amount claimed; r e 7 ^e two judgments appear to be valid and fair judgments, and each of them will come, as against each partner, and charge his share of the partnership property to the amount of the partnership debt. A judgment or other security may be taken and held for future responsibilities to the extent of it. In Gordon v. Graham, (cited in 7 Viner, 52. E. pl. 3. and in 1 Powell on Mort. 554.) it was held by Lord Ch. Cowper, that if a clause be contained in a mortgage making [327] it a security for future loans, subsequent loans will be taken as part of the original transaction, and paid before a second • ^ * mortgage intervening with notice of the clause. So, it was held, in Shirras v. Caig, (7 Cranch, 34.) that a mortgage' should stand to secure the real equitable claims of the mortgagee, whether they existed at the date of the mortgage, or arose afterwards, and before notice of the defendant’s equity. Again; in Livingston v. M'Inlay, (16 Johns. Rep. 165.) the Supreme Court observed, that if it was part of the original agreement, a judgment may be entered as a secu-1 rity for future advances, beyond the amount then actually due, in like manner as a mortgage may be held as a secu-' rity for future advances. The limitation to this doctrine» I should think would be, that when a subsequent judg-| ment or mortgage intervened, further advances after that period could not be covered. Where a ere» ditor has separate judgments against each of two partners, the partnership property is bound to the same extent, as as if there had been one judgment for the whole against both partnerso In the present case, the judgments were taken against each partner, in succession, for partnership debts then subsisting and due, or to grow due upon contingent responsibilities. The purpose of the judgments was expressly declared by concurrent receipts, and there is no colour of ground to question their validity. The advances were all made at the date of the second judgment. The defendants have a right to collect, under the first judgment against John Taylor, the whole of their demand against the partnership, to the extent of the judgment, out of his share of the joint property; and they have a right, in like manner, to collect under the second judgment against 2. Taylor, to the same extent, so that the partnership property is bound to the same extent as if the two judgments had been consolidated, and there was a joint judgment for the united sum against both the partners. The only remaining objection to the motion is, that the defendants held personal property as collateral security, and ought first to resort to and exhaust that fund. The answer is, that the bond and mortgage were de» [328] livered, and not ¡regularly .assigned, and, as the Taylors allege, for a different and specific purpose ; and the defendants, in their answer, offer to. give the plaintiffs entire substitution, which would apply as well to that bond and mortgage as to the judgment. This is all that the plaintiffs can reasonably ask for; and it would not be equitable to detain the defendants from their remedy under the judgment, until they had engaged in, and concluded a litigation as to a personal security of such doubtful right and uncertain result. A judgment creditor who holds, also, personal pro* pertv as collateral security, will not be restrained at the instance of a subsequent judgment creditor, from prosecuting his remedy under his judgment, until he has pursued and exhausted the personal security, especially, when he offers to substitute the subsequent creditor in his place, on being paid the amount Of this debt. The defendants have, therefore, shown themselves to be creditors of /. and Z. T. with equal equity to the plaintiffs ; and they have a legal preference, by the decision of the Supreme Court, of which they ought not, and cannot, upon safe and sound principles, be devested by this Court. I.shall, accordingly, grant the motion to dissolve the injunction, unless the plaintiff shall, in twenty days, elect to pay to the defendants the debt and costs claimed by them, and shown by their answer to be due, and the costs of this suit; and in that case, the amount is to be ascertained, and the-costs taxed by a master, and the judgments and the bond and mortgage to be assigned. Order accordingly,