
    Dennison and Trull vs. Jonathan Brown.
    Caledonia,
    
      March, 1831.
    
    Tiiat if a note be given in payment and satisfaction of a judgement, it is a good de-fence to an action, brought upon that note, that such judgement has been set \u side upon a writ of audita querela.
    Nor does it vary the case, that the signer of such note gave a discharge of tho au-dita querela, sued out by him and another, which discharge was decided to be inoperative for the purpose of defeating the same.
    This was an action of assumpsit on a note dated August 4th 1824, and executed by the. defendant to the plaintiffs.
    The general issue was pleaded, and closed to the court by agreement of parties. The defendant recovered his cost, and exceptions were filed, and allowed, to the decision of the county court,, upon which the action was brought up to this Court.
    It ap.pears.by the exceptions, that the defence relied upon was the want of consideration for the note. The proof was,, that the plaintiffs sued the defendant and one Gleason, before one Samuel Stanford, a justice of the peace, and recovered a judgement, and obtained execution upon the judgement, and delivered the same to an officer for collection; that Brown and Gleason applied for an appeal from said judgement, which was disallowed by the justice on some objection of the plaintiff. They then brought a suit of audita querela to set aside the judgement; after which the plaintiff and Brown agreed to settle the whole. The defendant gave this note, and gave a discharge of the suit of audi-ta querela ; and the plaintiff gave him a discharge from said judgement. Gleason not approving of this settlement, the audita: querela was prosecuted. The plaintiff made defence with his receipt from Brown; but that proved ineffectual; and the judgement of the justice was set aside.
    The question now presented was whether these facts furnished a defence to the note.
    
      Argument of the plaintiffs* counsel. — The only question for the consideration of the Court is, are die discharges of the judgement and audita querela a good and valuable consideration for the note. A compromise of a doubtful right is a good consideration for a promise. This is clear, and every day practiced. — 1 Bane, 125, a 43 ; do. 114, sec. 8. The giving up a suit, instituted to try a doubtful question, is a good consideration for a promise to paya stipulated sum. — 1 Chitty on con., 9-10 ; 5 B. & Aid. 117. A suspension or forbearance of a right is a good consideration for a promise.— 1 Swift, 189. A promise, in consideration of surceasing a suit, is good and valid. — 1 Swift-,. 190,. ‘Saits are not tobe presumed causeless, and the promise-to pay argues cause for the defendant’s stay of-proceedings. — Powel on for contracts,p. 346. These rules are founded in policy. It is the interest of community that there should be a compromise of suits, and an end of litigation. Benefit'to the defendant, or loss to the plaintiff, rs a good 'consideration for a promise. In this case the plaintiff gave the -defendant a discharge of the judgement re* covered against ht-fn ¡and Gleason. The exceptions being then recalled by audita querela could make no difference. It was the -same as though it had not been taken, out. The defendant, by -operation of said discharge, was released from his bonds given 'oft praying out the audita querela.• ■ It operated as a discharge of the original-cause of action. That action was settled root and branch. Not only that, but the suit -on the <aud.ka was compromised. The defendant and Gleason recovering-that judgement does not destroy the note. The judgement by the discharge was dead, in law. It was the same as no judgement-, for-it was satisfied. The original case of action "was satisfied and at an end. iiere was a -compromise of aright; a giving -upof a suit ? a suspension of a prosecution, and a surceasing of litigation.
    
      Argument of the defendant’s counsel. — 1. The consideration, for which the note in question was given, failed by the reversal of the judgement for the discharge of which the note was executed ? and a total failure of consideration is & good defence to a suit upon the note.
    2. The judgement discharged,and afterwards set aside by audi~ ta querela-, was -irregular -; the plaintiffs having induced the justice to refuse the defendants -in that case an appeal, to which they were by the statute entitled; and-, therefore, as between the parties, it was an irregular judgement.
    3. Where an irregular judgement -has been set aside, the -consequences, as it respects the parties to it, are the same as if n© judgement had ever existed. — Allen vs. Huntington e>t al-. 2 Aik. Rep. -249.
    4. A re versal, therefore, of that judgement, by audita querela, revived the-original-cause of action, aad -left Brown -liable to the plaintiff for a trespass.
   The opinion of the Court was pronounced by

Hutchinson, C. J.

On general principles the effect of the reversal of a judgement is to do atvay that judgement, and place the parties in the same situation they were in before the judgement was rendered. If the debtor has paid the judgement before ai.reversal he can recover it back afterwards. Upon the same principle, if he has given his note for the amount of the judgement, and the judgement is afterwards reversed, the consideration of the note fails, and no action can be sustained upon it. And, in' these respects, it makes no difference, whether the reversal is because of error merely, or because of irregularity. Otherwise, when an officer is called to account for his proceedings under an execution, and the judgement upon which such execution issued is afterwards reversed.

We must now consider, whether the singular shape in which this dispute is presented,varies it from the cases above mentioned. If Brown and Gleason were bound by the agreement of Broiori to discharge their joint complaint, their after prosecuting the same was a fraud upon the plaintiff, if they were not thus bound, it would not so operate. But it appears by the audita querela, and pleadings and decision therein, that the plaintiff made use of the discharge given by Broiun, in his defence to that complaint ; and the Supreme Court decided against that defence. They must have done so in reversing the judgement. It is easy to conceive a possible case, in which such a discharge ought not to prevail as a defence. Gleason might have been the principal, and Brown only his surety ; and Brown's interference might have been wrong as to Gleason, especially if Brown would afterwards claim an indemnity from Gleason. In such a case, Gleason would have the equitable right to pursue the audita querela, as well to reverse the plaintiffs judgement, as to prevent all appearance of his being hoklen to indemnify Brown.

That judgement of reversal remains in full force, and we must now consider it a correct decision between the parties. It may well have been so, as the issues were presented to the Court. It appears on inspection, that the present plaintiff interposed two pleas in thatcase¡ One was a payment in full to Broivn. This was not pleading according to the legal effect of the evidence relied upon* and was demurred to; and correctly adjudged td be ail insufficient plea. The other plea was that of payment to both the complainants. This, if true, presented a good defence. But it was traversed, and found not true. If the discharge of Brown was presented as evidence of payment, it may have been met with testimony showing that Brown had no right to make such a settlement, and leave it binding upon Gleason. In this, or some other way, the plea Was met* and the judgement was reversed, and this changes the situation of the parties. If Brown pays the demand now, he has no claim upon Gleason for an indemnity even if he had acted with strict integrity in making his settlement with the plaintiff, but with incorrect views of his power so to act. Moreover, if the plaintiff ever had any cause of action against Broivn and Gleason, when he sued them, and recovered hisjudgement, that cause of action was revived, the moment that judgement was reversed. The giving of the note and paying the same, might amount to a defence to the original cause of action : but the giving the note alone to satisfy the judgement, can have no such effect, after the judgement is reversed. The plaintiff must have known that he run some risk in thus settling with Brown, without th^ concurrence of Gleason, unless he knew that Brown was principal, or that the settlement would conform to the wishes of Gleason.

Fletcher & J. Mattocks, for plaintiffs.

Cushman & Shaw, for defendant.

The judgement of the county court is affirmed.  