Corey v. Gale

The opinion of the court was delivered by Redfield, J. The recognizance in this case is weft enough. The authority issuing the writ, is not required to enter upon the writ the entire record of the recognizance, but only “ a minute thereof.” If this minute contain the name of the person recognized, and the amount, and intelligibly express the object of its being taken, it is sufficient. All other defects may well be supplied by the record of the recognizance, when finally made. Houghton v. Slack, 10 Vt. R. 520. Foster v. Carpenter, 11 Vt. R. 589. The fact, that, in the present case, the minute made by the justice, of the recognizance on the writ, blends two distinct recognizances, is of no importance, for the same reasons above sta644 ed. The minute shows that two distinct recognizances were taken, one to the trustee and one to the principal debt- or. We have not been able to perceive any insuperable objection to the service of the process. The copy, left with the principal debtor, was left by the officer who made service upon the trustee, and whose precinct did not extend to the place where he left the copy. But this proceeding was under the former statute. By that statute, the officer making service upon the trustee, is required to leave a copy with the principal debtor. The service upon the trustee is the mere attachment of property, and the copy is left with the principal debtor for the purpose of notice. When property is attached by an officer, he may, and indeed should, leave a copy with the debtor, if he reside any where in the state. We think the same rule, for the same reason, will apply to the present case. How far the same rule will apply to a similar case, under the statutes now in force, we have not felt it ne-eessary to consider. It has been decided that the trustee is not a party to the process, except as a mere depositary of goods, rights, or credits, which are attached in his hands, and which is, in reality, but the service of the process upon the principal debtor, by which the court obtain jurisdiction of the cause. In regard to the question of the right of the plaintiff to recover upon the merits of the action, the court are not so fortunate as to be unanimous. A majority of the members present think the action cannot be maintained. It will always be the case where money is in the hands of the defendant, which in good conscience he ought not to retain, even although he obtained it under the sanction of a judgment of a court of law, which is still in force, that there will be a strong disposition in courts of justice to afford relief to the injured party. This state of circumstances has Jed to many very singular decisions, such as cannot be reconciled with general principles. The case of Moses v. Macfarlane, 2 Burr. 1005, was decided by one of the ablest courts which ever sat in Westminster Hall, but it never can be made to consist with established general principles, or be made acceptable to the profession. From the day of its first promulgation to the present, it has been constantly doubted, and its authority disregarded. [645] whenever it has been brought under discussion.' It is true that the obvious principles of justice, upon which that case rests, have induced many other decisions not wholly dissimilar. Rowe v. Smith, 16 Mass. 306. Strong v. Mc Connell, 10 Vt. 231. But in these latter cases the court go upon the ground, that there was a trust and confidence between the parties, and that something more remained to be done, before the money was to operate as payment. In the present case no such trust or confidence existed. The money was delivered as part payment, by the plaintiff, and so received by the defendant. It is true a receipt was taken, but that was merely as evidence of the fact of payment. The case was no different from what it would have been if a witness had been called to that fact, or if it had been indorsed upon the note, all are but modes of evidence, and do not affect the legal consequences. If money is given and received as payment, or part payment, it operates, eo instanti, to extinguish the debt pro tanto, and from thence forward the debt exists, only in its diminished form. Nor is it of any importance, in this respect, whether the evidence of the debt is in the form of a promissory note, or any other written contract, or exists only in the memory of witnesses. The debt or obligation has an existence and essence, as a mere abstraction, wholly distinct from the evidence by which it is proved. It would exist none the less although the evidence were lost or destroyed, and the debt might be wholly extinguished, while the evidence of its original creation remained the same. So, too, this debt having been in part extinguished, it could not be revived by negotiating the note, when overdue, as was done in the present case. The indorsee acquired no greater rights than the payee possessed. The plaintiff might as well have insisted upon the application of this payment, in the suit which was brought, as if it had been in the name of the original payee. This debt, then, having been partly paid, the defendant brings suit upon it and by default, recovers judgment for the original sum and interest. That judgment is manifestly wrong, but it cannot be corrected in this collateral manner. It is wrong because while a portion of the debt had been extinguished, judgment is entered up for the whole sum. The case is no different, in principle,from what it would have been [646] if, the whole debt being due, judgment had been entered üp for twice that sum. If the plaintiff recovers in the present suit, it is upon the ground that the former judgment wasen-tered for a larger sum than it should have been. Such error or mistake can only be corrected by an application for a new trial, or by some other process, operating directly upon that judgment. It cannot be attacked in this collateral manner, at least by the parties to it. This principle is fully recognized by many of the cases cited by the defendant’s counsel, especially Marriat v. Hampton, 7 Term R. 269. Strong v. McConnell. 10 Vt. R. 231. Loring v. Mansfield, 17 Mass. R. 394. Judgment reversed.