1. Debt on judgment lies at any time, before or after the expiration of a year, Copies of the record trial of nul DENNISON V. WILLIAMS, 4 Conn. Rep. 402; ALDRICH V. KIN- An action of debt on judgment, lies immediately on the recov An administrator may have debt in his own individual name, to recover a judgment in his representative character. So, in Clark v. Goodwin, it was held, that debt lies on a judg ment within or after the year. But if it is brought for oppression, all concerned would merit censure. If he sues out an execution, he may use it as a ca. ad sat. instead of a Lev. fa. If the body was taken on mense process, and the defendant is in cus tody upon a surrender by his bail, the creditor may, nevertheless, sue debt on the judgment, although he might at the time have sued out execution and arrested the body. The statute in New-York, (1 R. L. 387,) provided that if execution be returned not satisfied, the creditor may bring an action of debt. The execution was not returned; and yet the court held, that the action might be sustained as soon as the judgment was recovered. The court observed, that the common law right of bringing an action of debt remained unimpaired; for there are no negative words, that the party shall not sue on the judgment. 2. LADD V. BLUNT, May T. 1808, 4 Mass. Rep. 402. The supreme court never direct the record of the common below are pleas to be sent up, on the trial of an issue of nul tiel record; but used on the receive copies of their records, attested by their clerks, in evitiel record; dence; which, by immemorial usage, is held to be evidence of ror and cer the records. Indeed, upon a writ of error, or certiorari, nothing but the tenor of the record is sent up; which is only a copy attested by the clerk. and so on er tiorari. Action may be brought 3. BARRACLIFF v. GRISCOM, Coxe's Rep. 277; GREEN T. DANA, 13 Mass. Rep. 493. An action may be brought on a judgment of a higher court, in er court on a lower court. So, it lies on a recognizance acknowledging a in the low sum of money to be due, although the statute gave a remedy by judgment execution. of the high er. 4. HOWARD V. HOWARD, 15 Mass. Rep. 196; RICE V. BARRE T. CORPORATION, 4 Pick. Mass. Rep. 130. So action A decree for alimony on a divorce is, in effect, as much a of debt lies judgment, as if rendered on the common law side of the court; on a decree and an action of debt lies to recover the money due. or order of court for ment of So, debt lies upon an order of court in respect to the payment the pay of damages, for laying a highway over the plaintiff's land; and the order may be laid as a judgment in the pleadings. 5. STORER V. STORER, 6 Mass. Rep. 390. money. of a pro tien bond; mulative In this case the judge of probate decreed the administrators So a decree to pay a balance to the administrator de bonis non; and afterwards bate court; a judgment was recovered upon the administration bond, for the even after a judgment benefit of the administrator de bonis non; but no execution ever on the ad was taken out. And, now, the plaintiff sues in debt, to recover ministra the money so decreed to be paid. Plea in bar, the judgment on for the rem the bond, &c.; but the court held the plea bad, and no answer to edy is cu the declaration. Parsons, C. J. When the decree passed, the merely. plaintiff might have sued this action, if the defendant refused to obey the decree; and unless they had a sufficient_reason for not obeying the decree, the plaintiff might have recovered. In this action defendants might have pleaded no assets, if the fact would have supported them; and, by not pleading it, they must be considered as having assets. The judgment on the administration bond is no bar to this action, being merely a cumulative remedy, by the stipulation of the sureties; and a judgment in a suit, where the action as a remedy merely cumulative, is no bar, unless such judgment is satisfied. But, if satisfaction be obtained on the bond for the injury in not obtaining the decree, debt cannot afterwards be maintained on the decree. 6. DUBOIS V. DUBOIS, 6 Cowen N. Y. Rep. 494; EVAN V. TATEM, 9 S. & R. 261. on a deoreo Curia. The general rule is, that debt lies for any debt of re- So debt lies cord. It lies upon a decree for the payment of money, made by in chancery VOL VI. 35 cree of a surrogate. and the de a court of chancery of another state, Post v. Neafies, 3 Caines, 22; and, no doubt, it will lie upon such a decree in our domestic courts of equity. The decree of a surrogate is certainly evidence of debt due; but whether it is a court of record need not be decided. The decision of the court in Pennsylvania, was to the same effect; and the court held, also, that the defendant was concluded, by the law of the United States, from going into the merits of the decree. Guarantee it avails the 7. BENTON V. GIBSON, 1 Hill S. C. Rep. 56, 1833; JACKSON V. The assignment of a judgment creates no liability on the part by assign of the assignor. The action was assumpsit on the guaranties of ment, how a judgment, and four notes, transferred by the defendant to the signee. plaintiff; thus, "For value received I assign to B. K. or order. &c.; and I do hereby guarantee the payment of the above sum to B. K. or order :" held, that in cases of general guaranties of unnegotiable securities which are assigned, all that the law implies, as a condition to the assignor's liability is, that the assignee should within a reasonable time, first seek payment from the party to the security by the ordinary means, before he resorts to the assignor and, where such party has left the state, or was insolvent at the time of the transfer, or became so when the obligation fell due, no act of diligence is necessary to the assignee. The court a smaller 8. GREEN V. HATCH, 12 Mass. Rep. 195. The court will set-off a smaller judgment against a larger, will set off even though the former has been assigned, provided the assignee judgment had previous notice of the demand on which the latter was foundagainst a ed; for, such judgments, so purchased, cannot place the assignee larger,even against an in a better condition than other creditors of the debtor, in case assignee of death or insolvency. with notice 9. Debt lies on a judg GOOCH V. ATKINS, 14 Mass. Rep. 378; LAWRENCE V. POND, 17 Mass. Rep. 443; M'LELLAN V. WHITNEY, 15 ib. 139; HATCH V. GREEN, 12 ib. 195. If the creditor sues out execution and levies it on, land not an extent apparent in the debtor's, by mistake, without an eviction-never having taken ment after possession, and the execution not having been returned into the on lands if clerk's office: held, he might maintain debt on the judgment. So,if a defect is the return of the extent of land upon the execution is defective. the title to And, where the judgment creditor was evicted of part of the land the land, or taken in execution, held, that debt lies to recover the appraised the in part; value of that part. failure in ti but it is oth erwiso if divested, The case of Lawrence v. Pond, decides also, that after a levy the title is by the sheriff upon the land, and seisin delivered to the creditor, so as to divest the title of the debtor, the creditor may not waive his levy and resort to his action on the judgment. 10. KENDRICK V. WENTWORTH, 14 Mass. Rep. 57. Scire facias courl; and A scire facias under the statute was held, not to be a writ of is right, which the party might at pleasure sue out from the clerk's leave of office; but he must first make application to the court as the not as mat statute has prescribed. Thus, a judgment creditor extended his ter of right. execution on land not the debtor's; and, upon scire facias brought for an alias, the writ was dismissed. 11. PENN V. KLYNE, 1 Pet. Rep. 446; LESLIE V. NOYES, 7 S. & R. 410; 5 ib. 68; 5 Binn. Penn. Rep. 56. the prac The practice in Pennsylvania is different. It may issue in In Ponn. the name of the legal representatives of the plaintiff. But the tice is differ merits of the original judgment cannot be gone into. In a joint ent. judgment, if one of the plaintiffs die, the other takes execution; but if a feme sole takes a husband, a scire facias becomes. necessary. Interest is recoverable on the judgment. 12. CLARK V. PENNEY, Aug. T. 1826, 6 Cowen's Rep. 297; S. P. versed as If money be collected on an erroneous judgment, which is When judg subsequently reversed, assumpsit will lie to recover back the ment is re money paid; and this is upon the ground, that the defendant has sumpsit money which does not belong to him. lies to re cover back the money paid on it. Judgments and decrees sive both X. CONCLUSIVENESS OF JUDGMENTS. (A) AS TO THE PARTIES. 1. BEITS V. STARR, 5 Conn. Rep. 550; WILLEY V. PAULK, 6 ib. 74; 4 Day's Rep. 435; BAXTER V. THE N. E. M. INs. Co. 6 Mass. Rep. 277. Judgments and decrees are conclusive between the parties are conclu and their privies. Thus-where a mortgagee brought an action. to recover possession, and the defendant set up usury; but the plaintiff showing a judgment recovered on the mortgage note, in a suit in which the defendant pleaded non assumpsit with a notice of usury; held, that this concluded the defendant. as to par ties and privies. Same sub ject. But where has been had upon So where the defendant, pending an action brought by the plaintiff against the defendant and one B., filed a bill in chancery against the plaintiff and B. for a discovery against said action, or in respect to the ground of it, praying an injunction against it; stating that he had agreed with B. to pay the debt sued for, and that B. had paid it, the court dismissed the bill, the facts stated not being true. On the trial of the action the defendant offered to go into some enquiry; but the court ruled that the record in the former suit was conclusive against him, on that particular point. - 2. DENISON V. HYDE, 6 Conn. Rep. 508. The decree of a district court of the United States, in respect to the title in question, if directly decided, is conclusive of the title of the party in whose favor it is established. 3. NEW ENGLAND BANK V. LEWIS, ET AL. 8 Pick. Mass. Rep. p. 118; JACKSON V. SWARTOur, 8 Johns. N. Y. Rep. p. 383. The general rule is laid down in Ferrer's case, 6 Co. 7, "when no inquiry one is barred in any action, &c. by judgment, &c. he is barred as to that, forever." When, however, the real merits of an acthe merits, tion have not been enquired into, in a former suit, issue may be taken on the fact, the judgment being pleaded in bar; 2 Wm. Bl. 827. And when issue is thus taken on the fact, evidence is admissible to show what passed at the former trial. It is clear that as the merits of the present suit were excluded in the for it is differ ent. |