
    Union Bank (of Ga.) vs. Hodges & Smith.
    
      Pleading — Former Recovery— Copartners.
    
    A recovery against two partners, where there are more, is no bar to a subsequent suit against all the partners on the same cause of action.
    BEFORE.'WARDLAW, J., AT ABBEVILLE, spring term, 1858.
    Tbis was an action of assumpsit on a promissory note signed “ Hodges & Smith ” payable sixty days after date to tbeir own order and endorsed by “Hodges & Smith” to the plaintiff’. The defendants were Elihu Hodges, Isaac Smith, and Robert Smith, and they were sued as partners in trade under the style of Hodges & Smith. . The pleas were the general issue and a former recovery against two of the defendants.
    It appeared that Elihu Hodges and Isaac Smith as ostensible partners, conducted a grocery business in Hamburg, that against them the plaintiff recovered judgment on the note ' sued on in this action, at Edgefield, in April, 1853; and that the purpose of the present action was to make Robert Smith also liable, who was alleged to have been one of the partners of the firm of Hodges & Smith.
    His Honor held tha't the former recovery barred another action upon the note; and the plaintiff having no evidence besides the note itself, to sustain any of his counts, a verdict was rendered for the defendants.
    The plaintiff appealed and now moved this Court for a new trial on the grounds
    
      1. Because bis Honor erred in bolding that a former recovery of judgment against two partners, without satisfaction, was, as a plea a bar, and as evidence, conclusive in a suit against all tbe partners, by tbe same plaintiff for tbe same cause of action.
    2. Because in tbe present action there is a count in tbe declaration, charging tbe defendants as acceptors of a bill of exchange, a count for money loaned and advanced, a count on an account stated, and a count for interest for forbearance of money lent and advanced; and bis Honor erred in bolding that tbe bill or note itself, tbe subject of tbe former recovery, was not evidence competent to go to tbe jury in support of said counts.
    8. Because the bill or note was not itself tbe debt, but merely the evidence of it; and bis Honor erred in bolding that judgment on tbe note against two of tbe partners, was an extinguishment of tbe original debt or cause of action against all tbe partners.
    
      Wilson, for appellant.
    A judgment or former recovery is a good plea in bar only in a suit between tbe same parties, and for tbe same cause of action. It is'no bar, nor is it evidence for or against a stranger to tbe former record. — 1 Phil. Ev. 821, 826, 827, Cowan & Hill’s Notes, page 818, note 571; Hurst vs. McNeil, 1 Wash, 0. 0. 70, 75; Meachern vs. Cochran, 1 M’C. 338; Treasurers vs. Bates, 2 Bail. 382. Plea of former recovery against one of several j'oint trespassers, or joint contractors without averment of satisfaction, is no bar to a suit against another for tbe same cause of action. Nor is it a bar to a suit against all tbe joint trespassers or contractors,; and it is immaterial whether tbe contract be joint and several or joint only. Hawhins vs. Hatton, 1 N. & M’O. 318, 319; Park vs. Hophins, 2 Bail, 411; Treasurers vs. Bates, lb., 382; 
      Collins vs. Lemaslers & Lee, 1 Bail. 348 to 353; Walson, Crews & Co., vs. Owen & Co., 1 Ricb. Ill, 114; Livingston vs. Bishop, 1 Johns. R. 290, 293; Sheéhy vs. Mandeville & Jamison, 6 Cranch, 254 to 266; Comyn’s Digest, Action (L. 4.); Yelv. 67; Cro. Jac., 74. All contracts by partners are joint and several. Bice vs. Shuie, 5 Bur. 2613, 2614: Watson Partn., 436; Toolce vs. Bennet, 3 Cain’s Rep., 4; Brown vs. Belches, 1 Wash. Rep. 8; Ayrey vs. Davenport, 5 Bos. & Pul., 475. Sed vide contra: Collyer Partn. Sec. 757 and note 3; King vs. Hore, 13 Mees. & W., 494; Trafton vs. Kearney, 5 Hill, (N. Y.) 86; Bobertson vs. Smith, 18 Johns R. 481. A promissory note unless given and accepted as satisfaction, does not extinguish an open account. If the note does not extinguish the account, neither does the judgment on the note. Watson, Brews & Co., vs. Owens & Co., 1 Rich. 112; Dogan vs. Ashby, 1 Rich. 36'; Chastain vs. Johnson, 2 Bail. 674; Barelli, Torre & Co., vs. Brown & Moses, 1 McC. 449; Costello vs. Cave & Bradley, 2 Hill, 529; Hughes vs. Wheeler, 8 Cowen, 77, 84. A promissory note by defendant to the plaintiff is evidence under the count for money lent. The note imports that the maker has so much money of the payee in his hands. 2 Stark. Ev. 79; Harris vs. Hunibach, 1 Bur. 374, 375; Story vs. Atlcins, 2 Stra. 720, 725; Matthews vs. Fogg, .1 Rich. 369, 372, and note (a) 373; Haviland, Bisley & Co., vs. Simons, 4 Rich. 338, 342; Hughes vs. Wheeler, 8 Cowen, 77, 84; Israel vs. Douglass, 1 H. Bl. 239. He further cited 1 Oh. PI. 546, 556, 566; 1 Stra. 509 ; 1 Dev. Eq. 466.
    
      Me Cowan, contra,
    cited and relied upon King vs. Hoar, 13 Mees. & W. 494, which directly decided the question in this case; Ward vs. Johnson, 13 Mass. 148; 11 Grill. & J. 11; 9 S. & R. 142; 4 Johns. Ch. 560; 5 Wend. 240; 2 McM. 348; 5 Hill, N. Y. 83.
   The opinion of the Court was delivered by

O’Neall, J.

It may be conceded that the plea in England, Massachusetts, and perhaps other States of this Pinion, would be held good; King and another vs. Hoar, 13 Mees. & Welsby, 493: still it by no means follows that such must be the decision here. What have been the decisions in this State ? Beginning with Collins vs. Lemasters and Lee, 1 Bail. 348, the decisions have been uniform, that on a joint contract a plea by one defendant of a former recovery on the same, against his co-defendant, without satisfaction, is no bar. In the Treasurers vs. Bates, 2 Bail. 382, the sheriff had confessed judgments, and these were set up as defences in favor of himself and sureties in a joint action on his official bond. In that case it was said, "it is well settled, that if one joint contractor is sued separately and a recovery had, and he is afterwards sued jointly with the others, he alone against whom the recovery was had can plead it in bar, and that the others have no right to make the objection if he does not choose to rely on it. Sheehy vs. Mandeville and Jamieson, 6 Cranch, 253; Collins vs. Lemasters and Lee, 1 Bail. 348. Neither of these cases, however, decide that it would be a good plea in bar for the defendant, against whom the recovery was had, in a joint action against all the contractors. I am satisfied it would not. Eor if it was, the party could never recover at all against the others. He must recover in a joint action on a joint contract against all the parties or none, except in the case of a certificated bankrupt, insolvent debtor, and perhaps an infant. Hence if the plea were good for one it must be for all: and we have already seen the others cannot plead it. The judgment against one of several joint contractors, is a nullity; it may be arrested at any time before execution.” These dicta, though not necessary for the decision of the case, had the concurrence of the whole Appeal Court, Johnson, Harper, and myself. Eor the Treasurers vs. Bates, was regarded as so important as a leading case, that it was deemed advisable that the opinion should be prepared and read over in consultation, so that every position contained in it should have tbe concurrence of each and all tbe members of tbe Court. This was done, and tbe opinion is therefore to be considered as having in every word tbe concurrence of each and all.

In tbe case of Watson Crews & Co. vs. Owens & Co., 1 Rich. 111, it was held that a recovery on the note of one of the partners was no bar to an action brought for goods, wares and merchandize, for which the note was given ¿gainst the said partner and tbe then dormant partners. When to this array of authority is added, Sheehy vs. Mandeville and Jamieson, 6 Cranch, 253, in which C. J. Marshall ruled that a recovery against one could not be set up as a bar to protect both sued on the joint contract, there would seem to be no reason why we should defer to cases decided subsequently in England and elsewhere.

I concur very much in what was so strongly said by Mr. Wilson, the counsel for the plaintifíj a decision sustaining such a plea would be directly favoring fraud. The dormant partner is most commonly unknown to all, except his partners. If they be insolvent, as is said to be the case here, they would have nothing to do (if the decision were that the plea was good) but be silent, let judgment go against them, and their friend, the dormant partner, would escape all liability. If, however, they should be solvent, then they could plead the non-joinder of the dormant partner, and turn the plaintiff over to a new writ. Thus they would have all the advantages without sharing any of the perils. It is the duty of the ostensible partners to plead the non-joinder; if they do .not, a recovery against them should be treated as a recovery on a several contract, and not as a bar in favor of the dormant partner. I think the plea should have been o.verruled.

The motion for a new trial is granted.

WhitNEB, G-lover, and MuNRO, JJ., concurred.

Motion granted.  