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CHAPTER VI.

PROCEEDINGS AGAINST JOINT DEBTORS, &c.

The intentions of the commissioners on the Code in relation to this matter, are thus expressed by them, in pages 234 and 235 of their report:

“Where a right of action exists against several joint debtors, it is often convenient and sometimes necessary to proceed with the action and take judgment, though a part only of the defendants could be found to be served with the summons or process for commencing the action."

“We allow," the report proceeds, “a proceeding to be insti. tuted on the first judgment, to make it effectual against all the joint contractors; but, in order to induce the plaintiff to use proper diligence to include all the defendants in the first action, we allow him no costs on the subsequent proceeding, and also permit the defendants thus brought in, to set up any defence they might have made in the original action.”

"In the remaining part of the chapter, relating to executors, heirs, &c., we have changed the form of proceeding, to correspond with that in regard to joint debtors, so as to make it more easy and expeditious than the old proceeding by scire facias, but have made no change in the policy of the law, except that costs are not given.”

The primary provisions of the Code, in relation to actions against joint debtors, are contained in sec. 136, to the following effect:

136. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; and, if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate

property of the defendants served, and, if they are subject to arrest, against the persons of the defendants served; or,

2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants.

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone.

These provisions form a corollary to those of the Revised Statutes on the same subject. Art. I. title VI. chap. VI. part III., 2 R. S. 377, 378. By the latter, similar powers are given to proceed against the defendants who have been served, and it is provided that, if judgment be recovered, it “shall be against all the defendants, in the same manner as if all had been served with

process.” By section 2 “it is enacted, that such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein ; but, against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence; and, by sections 3 and 4, provisions are made in respect to the issuing of execution under a judgment so entered, which will be hereafter noticed under that head. These provisions are likewise made applicable to proceedings in justices courts.- V.2 R. S. 247, 251.

The enactments above cited are not repealed by the Code, but are, on the contrary, still subsisting.–V. Sterne v. Bentley, 3 How. 331; 1 C. R. 109. The judgment ought, therefore, in all such cases, to be entered against all the defendants, whether served or not: Ib., Merrifield v. Cooley, 4 How. 272. Mechanics and Farmers Bank v. Rider, 5 How. 401. The last case goes to the extent of holding that it cannot be entered otherwise, and this seems to be the correct conclusion, notwithstanding the permissive wording of sec. 136, as last amended.

The entry of judgment against a party not served, binds all property in which he has a joint interest, which may be levied upon accordingly. As regards his separate estate, and also as respects his person, it has no effect whatever, unless by means of the ulterior proceedings about to be noticed. It is not even prima facie evidence of his liability, which must be rebutted. In that point of view it amounts to nothing, and, in proceedings against a debtor in

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that position, his liability must be established by other evidence. “It is,” it is laid down, " a fundamental principle thạt no person can be condemned, or deprived of his personal or pecuniary rights, without an opportunity of being heard in his defence.” Oakley v. Aspinwall, 4 Comst. 513.

The same case is authority that an attachment cannot issue under these circumstances, founded on the judgment alone, without other proof. The action does not arise upon the judgment, but upon the defendants separate liability. See also report of the same case in the court below, upon

the remittitur, 10 L. 0. 79, where it is again held that the decision in the court of appeals has settled, that the record of a judgment against the joint debtors, entered upon service upon one only, was no evidence; and did not supply the proof that must be adduced, to sustain an action against the sureties on a bond given to discharge an attachment grounded on that judgment alone, and a non-suit was directed accordingly.

An attachment is, however, issuable against an absent joint debtor not served, notwithstanding the service of process on his partner within the state.- Baird v. Walker, 1 C. R. (N. S.) 329. In this case the attachment seems, however, to have been issued at the outset of the cause.

In the passage from the commissioner's report, above cited, they state their intention to allow a defendant not served, to set up any defence he might have made to the original action; and, in Vandenburgh v. Biggs, 3 How. 316, it was held, under the Code of 1848, that a judgment of this nature did not prevent a joint debtor not served, from pleading the statute of limitations. By sec. 379, ,

. however, as it now stands, he is precluded from that particular defence, though it is competent to him to make any other.

The foregoing observations relate to the entry and effect of a judgment entered up under these circumstances, as against parties not served with process. The following relate to the special proceedings provided by the Code, with a view to the subsequent enforcement of such judgment, as against such defendants and their separate estate ; such proceedings being also made applicable to the case of a deceased judgment debtor, and to the enforcement of such judgment against his estate.

The proceeding for this purpose, though clearly a special proceeding, and taking that form at the outset, assumes, in its subsequent progress, the nature of an ordinary action,

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The initial measure in the case of a joint debtor, under these circumstances, is thus prescribed by sec. 375:

$ 375. When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in sec. 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

That in relation to the heirs, devisees, legatees, tenants, or personal representatives of a deceased judgment debtor, is laid down by sec. 376, as follows:

$ 376. In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration, upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively, and the personal representatives of a deceased judgment debtor, may be so summoned, at any time within one year after their appointment.

The form of the summons to be made use of for such purpose, is thus provided for, by sec. 377 :

$ 377. The summons provided for in the last two sections, shall be subscribed by the judgment creditor, his representatives or attorney; shall describe the judgment, and require the person summoned to show cause, within twenty days after the service of the summons ; and shall be served in like manner as the original summons. See Appendix.

Such summons must, under sec. 379, be accompanied by the affidavit of the party subscribing, as follows :

§ 378. The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

The form of such affidavit is so clearly prescribed, that to give a precedent would be superfluous. It would seem, from this section, as if the original affidavit should be served, and not a copy; and it would, perhaps, be more prudent to do so, or to serve a du. plicate. It is clear that either the original, or a copy or duplicate, must accompany the summons, in all cases.

No complaint is necessary in these cases, the summons itself giving all the information which the defendant requires.

From this point, the proceeding substantially assumes the shape of an ordinary action. The form of defence to be made, is thus laid down by sec. 379 :

$ 379. Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and, in addition thereto, if he be proceeded against according to section 375, he may make the same defence, which he might have originally made to the action, except the statute of limitations.

The former half of this section seems more peculiarly applicable to the case of a deceased judgment debtor, in which the heirs, &c., or the representatives, are, of course, concluded by the recovery against their deceased testate or intestator, and cannot reopen the matter, though at liberty to impeach the judgment itself, or to assert any subsequent defence. The latter moiety applies to the case of a joint debtor, to whom any defence whatever is open, with the one single exception already noticed. Answer is, as above prescribed, the only form in which such defence can be put in; demurrer is inapplicable in this stage of the proceedings. That answer must, of course, be framed as an answer to the summons, but, in all other respects, the usual forms may be followed.

The subsequent pleadings in the suit thus instituted, and the course of trial, and subsequent thereto, are thus provided for by

sec. 380.

§ 380. The party issuing the summons, may demur or reply to the answer, and the party summoned may demur to the reply, and the issues may be tried and judgment may be given, in the same manner as in an action, and enforced by execution; or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary.

And the pleadings are subjected to the same rules as those in an ordinary action, by sec. 381, as follows:

§ 381. The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action.

It will be observed that the issue to be joined in the action, arises upon the answer and reply, or demurrer to the latter, as the case may be; and, if any affirmative allegations be requisite on the part of the plaintiff, (see Oakley v. Aspinwall, above cited,) it

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