Warren County MsArchives Court.....M'Nutt, A.G. 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

M'Nutt et al., Appellants, v. Wilcox & Fearn.

pages 417-421

Where two separate suits were brought against the drawer and endorser of a 
promissory note, and judgments had, and forthcoming bonds given in each case; 
the bond against the maker of the note having been given and forfeited prior 
to that against the security: Held, the forfeiture of the forthcoming bond 
against the maker of the note, did not operate as a satisfaction of the 
judgment against the security, in as much as the judgments were separate, and 
in separate suits.

But it seems the rule is different when the judgment is joint, on a joint, or 
joint and several liability.

APPEAL from the circuit court of Warren county.

On the 19th of May, 1836, jud~meut was rendered against appellant for 13,371 
dollars, 85 cents, as endorser of a note of which one Mitchell was drawer; 
which judgment was bonded to November term, 1836, of Warren circuit court, 
under a levy made on the 25th day of October, 1836. On the 13th of May, 1836, 
Wilcox & Fearn, in same court recovered judgment against Mitchell as drawer of 
said note, which judgment was by him bonded, under a levy made on 20th of 
June, 1836, on twenty-five slaves. This bond was forfeited, and execution 
thereon issued, to May term, 1837, which was levied. A writ of error coram 
nobis, in this case, was sued out, by M’Nutt to arrest execution on the 
forthcoming bond given by himself and forfeited, upon the ground that the 
above proceedings had against Mitchell the drawer of the note, constituted a 
satisfaction and extinguishment of the judgment against himself as an endorser.

The court below decided, that a levy under a judgment against the drawer, and 
a forthcoming bond taken and forfeited, was no satisfaction of the judgment 
against the endorser. From which opinion, this appeal was prosecuted.

Holt, for the appellant.

The appellees did not contest the facts set forth in the petition for the writ 
of error in the court below, but admitted the same to be truly stated, by 
their response of in nullo est erratum to the errors assigned. Handley v. 
Fitzhugh, 3 Marshall, 563; 2 Pirtle's Dig. 554, sect. 12. Under such a state 
of pleadings, a former decision, overruling a motion to quash the execution, 
for the same causes, cannot be relied on.

In support of the principal position assumed by the appellant, see Taylor v. 
Dundas, 1 Wash. 92, and the authorities there cited: Downman v. Chinn, 2 Wash. 
189. That a replevin or forthcoming bond is so far a satisfaction of the 
judgment, that no execution can issue on it, against the other parties who 
have not joined in the bond. 1 Monroe, 248—9; see 2 Blackstone's Rep. 
1235. "That the holder of a bill of exchange may sue a subsequent endorser, 
notwithstanding all ineffectual execution against a prior endorser." If the 
execution had been effectual (a 1evy for example and a forthcoming bond, 
forfeited) the inference is clear, that the suit would have been barred. It 
was a case of a ca. sa. debtor’s body discharged, the remedy remains, say the 
court, although an unproductive fieri facias had been sued out. Sec also 1 
Salkeld, 323; 12 Johns. 207; 2 Tidd, 936; 2 Bacon, 720; 3 Decisions Supreme 
Court Miss. 353—4. That the bonding of a debt by one joint obligor in a joint 
and several obligation, is a discharge of a judgment separately obtained 
against the other obligor, Justices of Mason County v. Lee, 1 Monroe, 248-9.

Yerger, for the appellees.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The material facts in this case are these: The appellees brought separate 
suits on a promissory note. One against James C. Mitchell, the maker, and 
another against A. G. M'Nutt, one of the appellants, as endorser. On the 13th 
of May, 1836, judgment was recovered in the circuit court of Warren county, 
against Mitchell the maker. And on the 19th of the same month, in the same 
court, judgment was also recovered against the said appellant as endorser. On 
each of the judgments, executions were sued out, returnable to the November 
term following. On the 20th of June,the fieri facias against Mitchell was 
levied on a number of negroes, and a forthcoming bond given, and on the 25th 
of October, the fieri facias against M’Nutt, was levied and a forthcoming bond 
given, both of which bonds were returned forfeited. Under this state of facts, 
the question is presented as embracing the merits of the case, to wit, did the 
levy of the execution against Mitchell, and his forfeiture of the bond, so far 
satisfy the judgment against M'Nutt, as to entitle him to exoneration from the 
fieri facius which issued on the forthcoming bond which he had forfeited?

It must be considered that if the judgment had been joint, on a joint, or 
joint and several liability, the law would be with the appellants. It is now a 
settled rule in this state, as well as in others, that the forfeiture of a 
forthcoming bond is a satisfaction of the original judgment, and the 
forfeiture of such a bond by one of the joint defendants is held to discharge 
the other from the operation of the judgment; but, we apprehend this rule does 
not apply when separate judgments have been obtained by separate suits, on 
liabilities purely several, as was the case in this instance. The p1aintiffs 
below, as the holders of a dishonored endorsed note, had an undoubted right to 
proceed against the maker and endorser at the same time, and were not bound to 
wait until they ascertained that no satisfaction could be obtained from the 
one first sued, although payment by either would have satisfied their demand. 
The forfeiture of a forthcoming bond extinguishes, or satisfies, as it is 
said, the original judgment, because it is a proceeding arising on it, and has 
in itself the force and effect, and is of equal dignity with a judgment, and a 
plaintiff is not entitled to two subsisting judgments on the same cause of 
action against the same individual. It is like a second judgment obtained by 
an action on the first; the plaintiff cannot proceed to enforce the first, but 
must rely upon the second. Hence it is, that forfeiture of a bond by one or 
two joint defendants, releases the others; when the judgments are separate, 
the reason fails. The authority in 1 Washington, cited by appellants’ counsel, 
does not support the position taken by the appellants. A motion was made by 
one of the two joint defendants, to quash an execution on the ground that a 
former execution had been levied on the property of the other defendant, who 
gave a forthcoming bond. The point decided is, that a second fieri facias 
cannot issue on the same judgment against several defendants, if upon a first 
a sufficiency of goods had been taken from one of them no matter to which they 
belonged. We recognise the principle as it is cited in 2 Ld. Raym. 1072, as 
the true one, and it is directly in point.

Two were bound in a bond jointly and severally, and judgment obtained in a 
separate suit against one; a fieri facias issued, and a seizure to take value, 
returned; but the property was not sold, nor the money paid. To a second 
action brought against the other obligor, this matter was pleaded in law, but 
determined against him; nothing but actual satisfaction by the other obliger 
being sufficient to discharge him. In accordance with this principle, is the 
decision in the cause referred to in 3 Randolph, 490. One of the two joint 
obligors was sued, and judgment obtained. He gave a forthcoming bond, on which 
judgment was rendered against him and his surety. He afterwards paid part of 
the money, and moved for judgment against his co-obligor for whom he was only 
surety in the bond, which was the original cause of action. It was insisted 
that his right to the motion for the full amount, accrued immediately upon his 
executing and forfeiting the bond, on the ground that it was a satisfaction of 
the judgment: Held, that this did not discharge the obligor not sued, and that 
a forthcoming bond is not a payment. If it could not discharge one of the two 
joint obligors, a fortiori, it cannot discharge the liability of the 
appellant, which is separate only. The cause in 1 Monroe, 247, referred to by 
the counsel for the appellants, is not entirely reconcilable with the 
authorities above cited, and while I entertain a high regard for the legal 
ability of the judge who delivered the opinion, yet I do not think it 
sustainable on principle. It stands opposed also by the weight of authorities. 
The case was substantially this. Suit was instituted against two defendants; 
process being served at different times, separate judgments were rendered, and 
it was held that the giving of a replevy bond by one, operated not only as a 
discharge of the original judgment against him, but also as a discharge of the 
other judgment against the other defendant.

It cannot be pretended that the giving of a forthcoming bond or the 
forfeiture, is a payment; it is mere security for the debt, and the debt still 
remains. When forfeited, it has the effect only of a judgment, and in the 
language of Lord Ellenborough, a "judgment recovered in any form of action, is 
still but a security for the original cause of action, until it be made 
productive in satisfaction to the party, and, therefore, it cannot operate to 
change any other collateral concurrent remedy which the party may have." 3 
East, 258. This reasoning is altogether applicable to the case before us. When 
the maker failed to pay the note, the holder had a collateral concurrent 
remedy against the endorser; when this remedy was ripened into judgment 
against both, he held still but a security for the debt, with a collateral 
concurrent remedy by enforcing the judgment against the endorsers; and the 
same may be said of the forfeiture of the bond, which extinguished the 
original judgment, by having in itself the force and effect of a judgment; it 
was nothing but a security for the debt, and the parties had their collateral 
concurrent remedy in this right to sue out execution.

Apart from the merits of the case, the remedy which was resorted to for 
obtaining relief against the executions, will not lie. A fieri facias issued 
on the original judgment, which was levied and a forthcoming bond was given 
and forfeited. A writ of error coram nobis was sued out, not to reverse the 
original judgment, but to reverse the judgment on the bond. Such a writ is 
proper, in order to reverse a judgment for error in fact; but there must be a 
judgment of the court, or there can be nothing to reverse. The statute gives 
to a forfeited forthcoming bond the effect of a judgment, but there is, in 
truth, no judgment, as the court does not pass upon it, nor is any judgment 
entered on the record. If the bond was defective, or irregularly taken, it 
might have been quashed, but cannot be reached by writ of error.

The judgment of the court below must be affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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