Clark v. Bowen

Mr. Justice CATRON delivered the opinion of the court. We deem it to be a matter not open to controversy in this suit, that the State court of Rock county properly vacated its own judgment, as respected Clark and Justin, after Smith, the solvent partner, had been released from it — -because Clark, had no power to bind Smith by the confession; and secondly, because the goods that were assigned to a trustee to secure the judgment had been taken from the assignee, by a previous mortgage of them. The following admission is found in the bill of exceptions, and is conclusive of the merits of this controversy: “It is conceded by defendants, that the judgment in the Circuit Court was confessed at the time of the execution of the assignment, and that the assignment was to secure the judgment, and the judgment and assignment were the mode adopted to secure the plaintiffs’ debt; and that Clark executed the assignment and judgment for. Smith.” The whole arrangement to secure the debt being in effect annulled, the orignal indebtedness stood revived, and was properly enforced- by the judgment, of the Circuit Court— which we order shall bo affirmed.