
    
      Todd v. Potter.
    1804.
    In the Court below,
    John Potter, Plaintiff; C.tr.r.n Todd, and Hezekiah Todo, Defendants.
    A j adgment against garnishees, that they are jointly, and severally, agents of the absconding debtor, is good.
    A finding of facts by the court, in these words, “ the court are of opinion” Ac.is a good finding.
    This was a scire-fadas agkinst the defendants, in which they were described, and alleged to be so described in the original writ, as attornies, factors, agents, trustees, and debtors, both jointly, ahd severally, to Moses Todd., an absent and absconding debtor.
    To which the defendants pleaded, that they were not jointly, nor severally, agents, attornies, &c. nor had they any of the estate of said Moses in their hands. The Superior Court rendered judgment, as follows : “ This “ Court, having fully heard the parties, with their exhib- “ its, proofs, and counsel, and on consideration, are of “ opinion, that, at the date, impetration, and service of “ the plaintiff’s said original writ, afid when said copies “ were left with them, the defendants, they, the defen- “ dants, were, jointly, and severally, the agents, attor- “ nies, trustees, factors and debtors, to the said Moses, “ and Had the estate of the said Moses in their hands. ⅞ It “ is thereupon considered,, by this Court, that the plaintiff “ recover of the defendant,” &c.
    The defendants brought a writ of error, and assigned the following errors :
    1. That the declaration is insufficient.
    2. That the defendants are alleged to have been jointly, and severally, indebted to the said Moses, at the date of said writ, and they could not be jointly sued for debts, severally owed by them to said Moses.
    
    • _ :>. That by the finding of the Court, it appears, they were jointly and severally the agents, &c. of said Moses ; and it is not ascertained, by the finding, to what amount they .were jointly, or .individually, liable, ior debts of said Moses.
    
    
      IF. Hilihouse, for the plaintiffs in error.
    1. In the scire-facias, the defendants were called upon to disclose what property they jointly, and severally, owed Moses Todd., To allow debtors thus to be joined, would be productive of the most injurious consequences for if one owed ten dollars, and the other ten times ten, each would be liable for the whole. The Superior Court so considered it, in Boardman v. Stewart. 
      
       In that case, they are not said to be joint agents; but. in this, they are said to be severally, as well as jointly, indebted. Upon this issue, therefore, several as well as joint debts miglit be proved»
    It may be,said, that every thing is to be presumed in favor of a verdict. The rules are the same here,, as its England, and by them, a verdict cures only matters of form. 
    
    2. This is a statute proceeding, founded upon the custom of London, by which it is necessary to describe the specific debt, or thing attached. The ground of liability should appear, either in the scii e-facias, or the pleadings, or else the court should find what effects the gar-niahcc had in his hands ; otherwise, he will be deprived of the benefit of that part of the statute, which was meant to discharge him from the claims of his creditor.
    In England, the amount of the debt is always found, and then the damages. The scire-facias is in nature of a bill in chancery to procure a disclosure. There, the court must find the facts ; here, they have neither found what, nor how much, the debt was.
    3. The Court have found nothing on which to ground a judgment. They do notfind,that the defendants were agents, &c. but are of opinion, that they were. If, in like case, the jurv, instead of finding- the facts, were to give an opinion merely, it would not be good,  Upon such subjects, the old established forms ought to be ad* hered to ; innovations are dangerous,
    
      Baggett, and Baldwin^ for the defendant in error.
    1. In the original process, Caleb and Hezekiah Todd ■were described as jointly, and severally, indebted to Moses Todd; and in the scire-facias, it was necessary to recite the former description. But, after that, we might close with a demand against them jointly ; and altho’ we have said jointly, and severally, the last is mere surplusage, and utile per inutile non mtiatur.
    
    Two persons may as well be joint and several trustees, attornies, or factors, as debtors. The demand we made, is a demand upon them to shew cause, why judg* iBC'nt should not be rendered against them, i. e. against them jointly, for the joint and several debt.
    If A. had a joint and several note against B. and C_ might not the creditor of A. state, that B. and C. were jointly and severally indebted to him, according to the truth of the case ? This might not be necessary, but it would not vitiate the proceedings; and if the declaration stated, that they were jointly indebted, and the court found them indebted jointly and severally, such judgment would be good , for it would only be declaring the law upon a joint debt, viz. that it is joint and several. If they owed enough jointly, and also severally, there was basis sufficient for the judgment. But if the joint debts had equalled only part of the claim of the attaching creditor, and there had been likewise separate debts, the court would have had nothing to do with the separate debts ; and it would be presumed that they found the joint debts equal to the amount of the judgment.
    2. But it is said the judgment should be more particular. The plaintiff' cannot be required to state, in his scire-fadas, the specific debt, due from the defendant to the absconding debtor ; for it is impossible for him to know it. The defendant cannot be required to state it in his plea ; and the plaintiff can state it no better in his replication, than in his declaration. The issue is good without it; and the judgment, which answers that issue, is, consequently, good.
    It was necessary to make a statute, to compel the court to place upon the record the facts, upon which they found a decree in chancery. In this case, no statute requires a finding of the facts ; it cannot, therefore, be necessary.
    
      It is said, the Court have not found the amount of the indebtedness of the agents. But how can the Court get at that fact ? The garnishees may refuse to disclose, and besides, the Court are not to enquire into, and settle the accounts between the garnishee and his creditor, while the latter is not a party.
    In no case can it be necessary, or, indeed, of any use, to find the sum, except where the garnishee owes less than the sum claimed of the absconding debtor ; and then, the garnishee will, for his own sake, shew what the sum is. The practice upon this subject has been too long adopted, and too uniformly sanctioned, to be now overthrown*
    3. It is objected, that the judgment is not expressed in a technical manner. The words are, “ The Court are of opinion, that the defendants are agents,” &c. and, “ it is considered that the plaintiff recover.” The case of Knorvks v. State 
      
       is very different from this. There the Court “ were of opinion, that the defendant pay á fine,” without having found him guilty. The decision in the case of Bacon v. Childs 
       is correct; but docs not bear upon this case. Here, the form is substantially preserved. Innovations it is admitted are dangerous, but innovations upon -words are the least so. In England, the jury only find the facts; the court determine the law. Here, the court may decide both ; but is it necessary, that they preserve the same form that the jury do, and say that “ upon their oaths” they find the. facts ?
    The form of the judgment in England is, “ That the “ record, &c, having been seen and understood, for that it “ seems to the court” &c. “ Therefore, it is considered 
      that the said A. B. recover,” &e.
      
       The words used heredare surely as strong, as the words “ it seems fo the court."
    
    
      Smith, (of Woodbury) in reply.
    1. A judgment rendered against two debtors jointly, because they severally owe, is so manifestly unjust, that it requires few words to evince it. If, in this case, they did not mean to claim of Caleb and Hezekiah Todd, except as they were jointly liable, why should any thing be said about a separate liability ?
    In the scire-fados, the defendants are described as agents, &c. and jointly, and severally, liable. The plea says they were not jointly, nor severally liable ; and the Court are of opinion, that the defendants were jointly, and were severally, indebted. What more could have been said to describe a several, as well as joint, liability ? If, under this issue, evidence had been offered,, that a several debt existed, could it have been refused ? Had the court found only a joint liability, it might have been good j but the judgment is now as defective as the declaration, and cannot, therefore, aid the declaration, Presumptions ought not to be needed to support a judgment.
    In England, where to several counts there is a general verdict, and one of the counts is bad, judgment will be arrested. 
    
    2. Here no foundation is laid for damages, or at least for more than nominal damages ; for it is not said, that the Todds are indebted in any sum. Perhaps the plaintiff need not specify the debt, in the scire-facias ; but it must be known, at the time of the judgment. In book debt, the amount is always stated, and in Grant v. 'Jackson 
      
       the declaration was held bad, because no rule of damages was given.
    The record, here, shows nothing as a rule of damages ; and if Moses Todd should sue Caleb and lieze-kiah Todd, no person can tell, whether the note, or ac - count, has been satisfied, or not.
    Again, the principle, for which we contend, becomes important, because one of the garnishees may want to compel a contribution from the other ; and, in that case, he must show on what account the former judgment was rendered. The practice, which we oppose, is inconvenient, and dangerous, and has no precedent to support it, but it m.ay be, in some measure, obviated, by the Court's finding the facts. To this, it is objected, that the garnishee will not perhaps disclose the sum ; but if he will not, the court may, as in. other cases, commit him, and if he still refuses, judgment may be taken for the whole sum.
    3. No facts are legally lound. Either the technical language must be used; or the language, which, in common parlance, would be understood, must be admitted. If this is allowed, there can be no rule ; and when die case of Bacon v. Childs is agreed to as law, it is conceded, • hat there is a technical language, absolutely necessary. It will not be contended, that it is sufficient for a jury to say, the fact seems to vs to be so ; and when the Court are acting as jurors, they must find those facts technically, as well as the jury.
    In Knowles v. State, the Court treat the finding, as well as the judgment, as erroneous.
    The English forms, which have been cited, do not compare, as they were upon demurrers, and writs of error ; there the court find no facts ; their precedents, therefore, cannot apply. But the finding of a jury, and of the court upon bills in chancery, are much more anal* ago us to the present case, and must be decisive of it,
    
      
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         Co. Litt::T
    
    
      
       1 Root 466, Bacon v. Childs. 2 ..282, ⅛⅞⅛?. ,&⅜⅜,, Cro. Car. 442, Slocomb’s tace. it. 580, lieymon.d v. Burbedg. 3 Bui. '-'odi° 02 CBo. Cc.r. 386, Robins v. Saunders. ,
    
    
      
      
         2 Root 282,
    
    
      
      
         1 Root 466.
    
    
      
       3 Bla. Com. Appen. xxv.
    
    
      
       3 Term Rep. 433, Hancock v. Haywood.
    
    
      
       Kirby 90.
    
   By the Court,

The judgment was affirmed.  