Finney against Ferguson, 3 Watts & Serg. 413

The opinion of the Court was delivered by Kennedy, J. The only matters assigned for error, which have been sustained, are the exceptions to the answers given by the court to the first and eighth points, submitted by the defendant to the court for its instruction to the jury.

By the first point the court was requested to instruct the jury, (here the learned Judge states the first point). “ This,” the court said, “ is denied.” The President Judge had also told the jury previously, in his general charge, that he was inclined to the opin-ion that Samuel Finney’s estate was discharged by his death from liability on the bond, whereon the joint suit was previously brought against him and David Ferguson, and pending at the time of the death of Samuel Finney.

In this opinion, however, his Honour was clearly mistaken, for the bond in its terms was joint and several; and as no judgment had been obtained upon it in the suit brought against Ferguson and Samuel Finney jointly, at the time of the death of the latter, it was still competent for the plaintiff therein, notwithstanding she had elected to sue them jointly, to discontinue that suit, after the death of Finney, and to institute a separate action against the administrators of Finney, as also another, if she chose, against Ferguson, the surviving obligor.

We are also of opinion, that his Honour erred in not charging the jury, on the defendant’s first point, that the judgment confessed by David Ferguson was not such as could avail him or his assignee, in this action, and defeat the personal representatives of Mary Milligan thereafter from recovering the 'amount of the bond from the personal representatives of Samuel Finney, then deceased.

David Ferguson, when he confessed the judgment, knew that Mary Milligan, the plaintiff, was dead, 'that her representatives had never been substituted as a party to the suit; that the record showed that her attorney, by leave of the court, had withdrawn his name; and we must also suppose that he knew that Mary Milligan, as long as she lived, was unwilling to take him alone for the payment of the bond and to release Samuel Finney’s estate, for of this she furnished plenary evidence in her lifetime, by suing out a writ of scire facias, after the death of Finney, to make his administrators a party in his place to the suit; who, upon being served with the writ, appeared by counsel, and pleaded that, in law, they could not be joined in the action with the surviving obligor.

The question raised by this plea was not decided but still pending when Mary Milligan, the plaintiff, died. Had she lived until it was tried, it must have been decided against her.

And no doubt, then, as she was unwilling to take Ferguson alone for the payment of her debt, she would have discontinued the joint suit, and most probably have brought two suits severally against Ferguson and the administrators of Finney, in which she would have been entitled to a judgment against each on the several character of the bond. ' And this her representatives may do yet; for the judgment confessed by Ferguson must be set aside, at once, upon their ápplication made to the court for that purpose, so that it will be out of the way and afford no objection.

Besides, it is very obvious that the object of Ferguson, in confessing the judgment, was improper, if not highly fraudulent. He wished to deprive the representatives of Mary Milligan, without their consent, of the right which they had to recover the debt of their testatrix or intestate from the estate of Finney, and to appropriate the funds which(he had placed in Thomas Finney’s hands, as an indemnity to the estate of Samuel Finney, to a quite different object.

The judgment, therefore, being fraudulent, may be considered in this collateral suit as of no validity, and more especially so as against the party, or Cochran claiming under him, who has attempted to practise the fraud by entering the judgment improperly. If Ferguson had been disposed to do what was right, he ought to have brought the representatives of Mary Milligan into court by a writ of scire facias, so as to have made them plaintiffs in the action; and having done this, he might then have confessed the judgment, provided they were willing to accept it.

We, therefore, think that the estate of Samuel Finney still remains liable to the estate, or representatives of Mary Milligan, for the amount of the $800 bond given to her by Ferguson, who was the real debtor, and Samuel Finney as his surety: and this being the case, the plaintiff below has no right whatever to recover in this action.

The question of the right of the plaintiff below to recover in this action, being thus disposed of, renders it needless to say more of the answer of the court to the defendant’s eighth point, than that the land was clearly not embraced in the assignment made by Ferguson to Cochran, and therefore ought not to have been submitted to the jury on the testimony of Ferguson, who would seem to have had an interest in it. Judgment reversed.