Withers v. Livezey

The opinion of the Court was delivered by Kennedy, J.

The suit here is founded upon the recognizance of the defendant, and the deed mentioned in the first error has no connexion whatever with the recognizance, so as to render it binding, or to show that the defendant had not complied with it; and would seem, therefore, to have been wholly irrelevant, and the reading of it in evidence to the jury properly rejected by the court.

But the admission of the parol evidence mentioned in the second error, was, as we conceive, erroneous. The recognizance being a matter of record, could not be explained or altered by such evidence. It was for the court to construe and declare the effect of it as matter of law to the jury. So for the same reason the judgment confessed, which furnished the occasion for entering into the recognizance, could not be explained or altered by the introduction of parol evidence. Whether it was a judgment against one or more defendants, or against Augustus Withers and John Withers, Jr., as set forth in the scire facias, was a question to be determined by the court upon an inspection of the record merely, without any extraneous aid to be derived from such evidence. Besides, the judgment recited in the scire facias was only inducement to the recognizance; and whether it was correctly recited therein or not, was a question, I apprehend, which it was not competent to the defendant to raise upon the plea of nil debet. For this purpose he ought to have put in a special plea, averring that there was no such judgment, if he conceived the fact to be so. Nil debet was an improper plea at any rate, and not at all applicable to the case; and had the plaintiffs demurred to it, must have been so held. 1 Saund. 38. n. 3; 2 Saund. 187. n. 2. In debt on a simple contract or legal liability, or for an escape, or on a penal statute, or where a deed is only inducement to an action, as in debt for rent under a lease by indenture, the general issue is nil debet, and is in such cases the proper plea. 1 Saund. 38. n. 3; 2 Saund. 187, And notwithstanding it may be, that if *436 the plaintiff fail to demur to it when it is improper, it will cast upon him the burthen of proving every allegation in his declaration, and entitle the defendant to avail himself of any defence which he might set up under the plea of nil debet in other cases where it would be strictly proper. 5 Esp. Rep. 38; 2 Saund. 187 a; yet it would be going too far, to say that every defence of a special nature, such for instance as a tender, 1 Chitty, Pl. 422, might be made under it.

Having thus shown that the parol evidence ought not to have been admitted, it follows as a necessary corollary, that the direction given by the court in regard to it, to the jury, was also erroneous. Seeing it was improperly received, the court ought to have instructed the jury, as requested by the counsel for the plaintiffs, to throw it entirely out of their view. But the court also, as it appears to us, erred in charging the jury that the judgment confessed was only to be regarded as a judgment against one of the defendants. For from the terms in which it is confessed, it clearly purports to be a judgment against more than one defendant. The language employed in the confession is, “ We hereby confess judgment to the plaintiffs,” &b. Thus using the plural number, “ We” instead of “ I,” as it would doubtless have been, had the confession of judgment been intended for one only of the defendants. But to show still farther and more clearly, that it was designed to be a confession of judgment by Augustus Withers and John Withers, Jr., at least, their names are actually subscribed to the confession; for “ A. & J. Withers,” must be taken clearly to mean those two defendants, and can not possibly be construed to mean any others. These two defendants were served with the original process; the other two named therein could not be found by the sheriff, and consequently were not taken or served with it; and. therefore could not well be considered as being in court: but Augustus Withers and John Withers, Jr., having been arrested under the process, and given bail to answer the demand of the plaintiffs, but having no defence to make against it, could not escape from having a judgment rendered against them; and therefore may be considered as exclusively embraced in the confession of the judgment, notwithstanding the addition of “ & Co.” to the names of A. & J.- Withers, subscribed thereto. This addition “ &. Co.” must be considered as of no effect, seeing the other defendants named in the original writ, were not brought by means thereof into court, to answer the plaintiffs. But the court below seem to have considered the judgment, upon an inspection of the record, as being operative against one only of the defendants, that is, one of the Witherses, and void as to the other; but not being able to discover from the record itself, against which of the Witherses'it was good, were led into the error of admitting the parol evidence to clear up this doubt or ambiguity. If such an ambiguity had really existed, it *437 would perhaps have been more correct, to have held the judgment void altogether, for uncertainty. But it is perfectly manifest from the face of the record, that the judgment was intended to operate against both the Witherses; and that in its terms it is a judgment confessed against them both. Whether, supposing it to have been confessed by Augustus Withers, in the absence of John Withers, Jr., he had sufficient authority from John to confess the judgment against him, is a question that could not properly arise on the trial of this cause: because the defendant being no party to it, and his rights not at all affected by it, he could not interpose such an objection as a defence, no more than special bail could the irregularity of the judgment obtained or entered against his principal. John Withers, Jr., was the only one who had any right to make such objection, as he was the only person whose rights could be affected thereby. But it would not have been competent even for him, upon a scire facias sued out against him and Augustus to revive the judgment, to have set up such an objection as a defence, under any plea that he could have devised. The judgment, though entered by the confession of Augustus against John, without authority, would only have been voidable at most, and therefore must be considered a valid judgment until vacated or set aside by the court, upon an application made to it for that purpose, by John himself. 2 Caines’ Rep. 254; 2 Bl. Rep. 1133.

Besides, it was considered by the defendant in this case, as a valid judgment against both Augustus and John Withers, Jr., at the time he entered into the recognizance; for the terms of it are, “ I hereby become bail for the defendants (in the plural number) above named, &c., in order to enable them to claim the stay, of execution according to law.” Now as to the defendants above named, who were in danger of having an execution issued against them, it could only be those against whom judgment was entered at that time, and they were Augustus Withers and John Withers, Jr. There is not, therefore, the slightest pretence for saying that the defendant, here is called on to pay the amount of the judgment, contrary to the form of his recognizance, in any respect whatever, and the understanding which he must have had of it when he entered into it.

Judgment affirmed.