The United States, plaintiffs in error v. Jacob and Isaac Leffler, 11 Pet. 86

Mr. Justice Barbour delivered the opinion of the Court. This is a writ of error to a judgment of the circuit court of the United States, for the fifth circuit and eastern district of Virginia.

It was an action of debt brought by the United States, against Salathiel Curtis, Jacob Leffier, Isaac Léffler, Benjamin Biggs, and Reuben Foreman, in the district court for the western district of Virginia, upon a bond .executed by Curtis as principal, and the other defendants as his sureties; conditioned that-Curtis, who had been appointed collector of direct taxes and internal duties for-the fifth Collection district of Virginia, had truly and faithfully discharged, and should continue truly and faithfully to discharge the duties of his office according to law, and should faithfully collect and pay. according to law, all moneys assessed-upon said district.

The breach charged in the declaration was, that Curtis had, during his continuance'hi office, collected the sum of 2992 dollars 12 cents, of internal duties, arising from said district, which he had^ failed to pay into the treasury department, according to law.

To this declaration, the defendant Curtis, separately filed three pleas, the defend-' ant Jacob Leffler two, and the defendants'1 Jacob Leffler, Isaac Leffler, Reuben Foreman, and Benjamin Biggs, jointly, fifteen other, pleas, at the rules held in the clerk’s office. - At the term of the court next ensuing, the defendant Curtis, the principal obligor, withdrew his pleas: and thereupon his attorney saying that'he was not informed of any-answer to be given for said Curtis, and that he’had nothing to. say in bar, or preclusion of the action, whereby he remained undefended, judgment was rendered against- him for the debt in the declaration mentioned, to be discharged by the payment of 2336'dollars 87 cents, with interest, from the 17th of October, 1821, and the costs.

At the next term thereafter, the pleas filed by the other defendants were withdrawn, and they filed a general demurrer to the declaration; and the defendant, Jacob Leffler, filed two pléas, to wit, a general and a special non est factum; and he and the other defendants, that is, Isaac Leffler, Reuben Foreman, and Benjamin Biggs, filed several special pleas, jointly. • The plaintiffs joined in the demurrer, and time was given them to' demur or reply to the other pleas.

In this posture of the case, the judge, of the court being concerned in interest in' the cause, ordered it, together with an authenticated copy of the proceedings, to be certified to the circuit court of the United States, for the fifth circuit and eastern district of Virginia. This was accordingly done.

In that Gourt, the defendants, by leave of the court, filed the plea, of conditions performed,.on which issue'was joined; and by consent of the parties, and with the assent of the court, the defendants withdrew all -the pleas theretofore filed by them, except the two pleas by the defendant Jacob Leffler, of general and special non est factum; with the agreement that all the matters alleged in the pleas thus withdrawn, and all other special matters, of which'the defendants should ■give the attorney of the United States reasonable notice, might be given in' evidence upon th"e trial, provided such matters would be admissible'under any proper form of pleading: and leave was granted to the attorney of the United States, to amend-his declaration.

At-a subsequent term, the defendants, by leave of the court, filed an additional plea, to which the plaintiffs, demurred genérally; which demurrer the court sustained and overruled the pléa. The plaintiffs thereupon "filed an amended declaration against all the defendants, including Curtis, against whom judgment had been rendered in the district court as before stated.

Upon this amended declaration and the pleas and agreement last stated, the cause came on to be tried in the circuit court at the November term, 1835,- the death of -the defendants, Biggs and Foreman, having been first suggested, whereby the suit as to them' abated. On the .trial, the defendant, Jacob Leffler, to. support the issue joined on his special plea of non est factum, offered the deposition of Salathiel Curtis, the principal obligor in the bond; to the reading of which the plaintiffs objected, upon the ground that the witness was interested in the event of the suit, and was therefore incompetent.

But it appearing that judgment had been rendered in favour of the plaintiffs against said Curtis, and that afterwards, and before the examination of the witness, the United States had sued out an. execution upon said judgment against his body, which was duly levied upon him by the marshal, and that whilst he, the said witness, was in custody of the marshal, under said execution, to wit, in the month of May, 1834, he was-by. virtue of a warrant from the President of the United States, bearing date the 8th of May, 1824, duly discharged.from custody, under the insolvent laws of the United .States, he the said witness having complied with the requisitions of said laws: and it appearing moreover, that before the examination of the witness, Jacob Leffler and Isaac Leffler the only parties defendants in the suit then alive, had executed to said witness a réleasfe of all claim against him for any money or óther thing which he might be liable to pay them,, or either of them, by reason of any recovery or judgment that might be. had against them, or either of them on .said bond; and also for any costs incurred, or to be incurred by them, or either of them, by reason of any suit upon said Bond; the court allowed the said deposition to go in evidence to the jury,, who found a verdict for the defendants; the plaintiffs thereupon filed their exception, which brings before this Court the question whether the judgment of the court below was erroneous, by reason of allowing said deposition to go in evidence to the jury?

In the argument, the-.counsel- for the plaintiffs have taken three objection's to the admissibility of the evidence. 1st. That the witness, being a public officer, .bound to give bond with sureties, and having delivered over the bond in this case to the. government as 'having been'duly executed by all the obligors, who, from its face, seemed to have executed it, to allow the witness to prove that it had been • executed as an escrow, by some of them, upon a condition which had not happened, would be to suffer him- to allege his own turpitude. 2dly.

That the witness was incompetent, because he was directly interested in the event of the suit. 3dly. That he was incompetent, because he was a party upon the record. We will examine these objections, in the order in which they have been stated. The first is, that the witness should not have been received, bebause his evidence went to prove his own turpitude. And in support of this objection, we were referred, in the first place, to the case of Walton and others against Shelly, 1st Term Rep. 296.

It was, indeed, decided in that case that a party who had signed any instrument or security, (without limitation as to the character of the instrument,) should not be permitted to give evidence to invalidate it. It was said, that every man who is a party to an instrument gives credit to it; that it was of consequence to mankind, that no person should hang out false colours to deceive them, by first affixing his signature to a paper, and then giving testimony to invalidate it. And the civil law maxim, nemo allegans suam turpitudinem audiendus est, Was relied on.

This case was followed a few years after by that of Bent against Baker, 3d Term Rep. 27, in which it was said, that the rule must be confined to negotiable instruments; and in 1798, the case of Jordaine v. Lashbrook, 7th Term Rep. 601, overruled the case of Walton v. Shelly, even in regard to them; by deciding, that in an action by an endorsee of a bill of exchange against the acceptor, the latter may call the payee as a witness, to prove that dhe bill was void in its creation. And such is the doctrine which has since been held in England. In this Court, in the case of the Bank of the United States v.

Dunn, 6 Peters, 51, it was decided that, no man who was a party to a negotiable instru merit, should be permitted, by his own testimony, to invalidate it. The principle thus settled by this Court, goes to the exclusion of such-evidence only in regard to negotiable instruments, upon the ground of the currency given to them by the name of the witness called to impeach their validity; and does not extend to any other' case, to which.that reasoning does not apply: the case of the Bank v.

Dunn, then, would be sufficient to defeat the objection which has beén made to the witness, although he executed the bond, and although it was the bond of a public officer. The second objection is, that the witness was directly interested in the event of the suit. This objection may be viewed in two respects. 1st.. As it respects the interest of the witness arising from his liability over to his coobligors- who were his sureties. 2dly, As it respects his interest as being, as it is contended, a party upon the record, and as such, liable to a joint judgment with, the other defendants, Jacob and Isaac Leffler.

In relation to the first of these aspects, it is certainly true, that in general, a principal obligor cannot be a witness for his co-obligors, who are his sureties in the bond sued upon, even although he be not a party; this is well settled, both upon principle and authority: amongst other cases, it was so decided by this Court in the case of Riddle against Moss, 7 Cranch, 200; Upon the plain ground, that he is liable to his sureties for costs in case judgment should be rendered against them.

Now, although that was once the position of this witness, yet it was not such at the time he was Examined; for it appears by the bill of exceptions, that before his examination, his sureties had executed a release, in the most ample form, of all claim against him arising out of their relation to him as sureties upon the bond, embracing every thing which could’ be recovered against them, including costs. There is, then, no interest in the witness in the event of the cause arising from his supposed liability over to his sureties, the defendants.

The second branch of the objection relates to his being, as it is contended, a party upon the . record, and as such, liable to a joint judgment with the defendants, Jacob and Isaac Leffler, in this suit. In this respect, the whole question resolves itself into the inquiry, whether he is, or is not a party upon the record; for it is conceded, as it must necessarily be, that if hé be not, then this branch of the objection must fail.

The argument to prove that he is a party upon the record is, in substance, this: — That the plaintiffs having elected to bring a joint action upon the bond, there could not be ¿ several judgment against any one of the obligors; but that/ it must be a joint one, either for all, or against all.; that therefore, the several judgment in this case against Salathiel Curtis was erroneous; and that notwithstanding that judgment, he is still liable to a joint judgment, together with the defendants, Jacob and Isaac Leffler, in the event of one being recovered against fhem.

The general proposition thus statpd, that in a joint action upon a bond against several obligors the judgment ‘must be joint against them all, is admitted to be true; we say the general proposition, because there are exceptions as well established as the principle itself. Thus says Sergeant Williams, 1 Saun. 207, a. note 2, where the defendants sever in their pleas, as where one pleads.some plea which goes to. his personal discharge, such as bankruptcy, ne unques executor, and the like, and not to the action of the writ, the plaintiff may enter a. nolle prosequi against him, and proceed against the others.

In the United States the principle has been extended further. Thus, in New York, in the case of Hartness v. Thomson, 5 Johns. 160, an action was brought against three upon a joint and several promissory note, and there was a joint plea of non assumpsit, and the infancy of one of the defendants was set up at the trial; it wras held no ground for a nonsuit; but the plaintiff, upon a verdict found in his favour against the other tv o defendants, might enter a nolle prosequi as to the infant, and take judgment upon the verdict against the others.

So in Massachusetts, 1 Pickering, 500, upon a joint contract and suit against two persons, one of whom pleaded infancy, it was held that a nolle prosequi might be entered against the infant, and the suit prosecuted against the other defendant. And in this Court, in the case of Minors v.

The Mechanics Bank of Alexandria, a suit was brought against Minors and four others, his sureties, for the faithful discharge of his duties as cashier of the bank; the principal pleaded separately, and after judgment was given against the sureties on all their pleas, the pleas of the principal being, mutatis. mutandis, the same as some of their pleas, the plaintiffs were allowed to enter a nolle prosequi against the principal; and no objection to the judgment appearing to have been made by the sureties, such proceeding was held to be not an error for which' the judgment could be reversed.

The Court,’ in reasoning upon that case,, admitted that in a joint and several bond, the plaintiff ought to sue either all jointly, or one Severally. They said, however, that the objection was not fatal to the merits, but was pleadable in abatement only;' and if not so pleaded, it was waived by pleading to the merits.

They said, therefore, if the suit had.be.en brought against the four sureties only, and they had omitted to take the exception by plea in -abatement; the judgment,-in that case; would have been unimpeachable. -They then inquired, whether the legal predicament .-of'the cáse was changed by having sued all the parties, and subsequently entering a nolle prosequi against one of them? And if not in general, then, whéther there was any difference where the party in whose favour the nolle prosequi was entered was not a surety, but a principal in the bond?

The Court, after an elaborate examination of these questions, both upon principle and authority, came to the conclusion, “ That where the defendants sever in their pleadings, a nolle prosequi ought to be allowed. That it was a practice which violates no rule of pleading, and will generally subserve the public convenience. That in the administration of justice, matter of form, not absolutely subjected to authority, may well' yield to the substantial purposes of justice.” In arriving at this conclusion, the- Court cited with' approbation the two cases from New York and .

Massachusetts before referred to, and remarked, that the plea went .not only-in personal discharge, as in the case of bankruptcy, and the other pleas, before cited" from Sergeant Williams’ note, but proceeded upon a matter which established an original defect in the joint contract. This case clearly establishes these two propositions: 1st.

That although in case of a joint contract, strictly speaking, the plaintiff must sue all, or one, yet if he does sue any intermediate number, and the -defendants do not avail themselves of this, by plea-in abatement, the objection is waived by pleading to the merits, and is not one which can avail them upon writ of error; and the reason which the Court gives; drawn from high authority, is, "That-the obligation is still the deed of all the obligors, who are sued, though- not solely their deed; and, therefore, there is no variance in point of' law, between the deed declared on, and that proved.

It is still the joint deed of the parties sued, although others have joined in it.” 2d. Though the plaintiff should elect to bring a joint suit against all the obligors, if they sever in their pleas, and the bond be joint an’d several, he may enter a nolle prosequi against one of them, even although his plea go to the action of the writ; it being the same with that of the other defendants, and take judgment against the other defendants, which cannot be reversed on error, where no objection to the judgment against them was made by those defendants at the timé.

The case which we have been examining bears strong resemblance to the one at bar. . In this case, as in that, the bond is several as well as joint; in this case, as in that, an action might have been maintained severally against'the defendants; in this case, as in that, all the parties .were retained, who had joined in their pleas, and between whom, there existed a right of mutual contribution.' In this, as in that, the principal had pleaded separately from his sureties; finally, in this, as in that, the principal was severed from the record, and ceased to be a party.

The cases differ only in this single particular, that in that case, he ceased to be a party, by the plaintiff’s entering a nolle prosequi against him; whereas in- this, he ceased to be a party, as we thinkj by the judgment which was separately taken by the plaintiff against him; which, in our opinion, under the facts of the case, severed him from the record to all intents and purposes. The plaintiffs’ counsel relied, with great, emphasis, upon the cases, of Taylor v. Beck, 3 Ran. 316, as being, as he contended, conclusive in their bearing upon the case at bar. Let us examine them.

They were two actions on promissory notes negotiable at the bank, against the drawer and indorsers jointly, brought in that form by virtue of

an act of assembly of Virginia. One of the defendants pleaded separately, and the others jointly. The defendant who had pleaded separately confessed a judgment; and at the trial, the other defendants offered to introduce him as a witness on their behalf; and the question was, whether he was not incompetent on account of interest? And it was decided that he was incompetent Now, the first remark to be made upon that case is, that there was no release by the co-defendants, as there was in the case at bar.

The court, however, thought, that as the action was joint, the plaintiff had a right to a joint judgment against all, for his debt, and all his costs; that the defendant who had confessed judgment, had no right to deprive him of this joint, judgment, by having his cognovit actionem entered finally, against the plaintiff’s will, whilst the cause was depending on the pleas of the other defendants;, they, therefore, considered him still a party to the record, and, consequently, an incompetent witness.

The fact that the judgment in that.case was without the consent of the plaintiff, is mentioned not less than four or fiva times by the judges, in giving their opinions. Thus in' one place it is said, that W. Woodford had no right to deprive the plaintiff of his joint judgment, .by having his cognovit actionem entered finally, against the plaintiff’s will. Again it is said, that the Court could not properly enter a final judgment upon his confession, without the assent of the plaintiff, until after the issues were tried as to the other defendants, &c.

Again, they say, it follows, that, if either of the other defendants had been discharged from the plaintiff’s demand, in whole, or in part, Woodford (the plaintiff haying refused to take final judgment, on the confession at the time it was made) would have been entitled to avail himself thereof. In page 336, of that ease, one of the judges holds this language: What effect had Woodford’s confession of the plaintiff’s action upon the question of his competency to give evidence for. the other defendants ? The plaintiff refused to accept his confession, and to take judgment thereon.

It is not necessary to inquire, whether a proper and unimpeachable- judgment might have been entered on this confession, separately, against Woodford, if the plaintiff had desired it. One case has passed this Court, in which such a separate judgment has been allowed, upon the agreement of the.plaintiff and one defendant, and the cause proceeded in, against the other defendant: but the cause was not considered upon the point now' under consideration.

These several extracts show that the Court, although they did not in that case decide the point, yet laid great stress upon the fact that the judgment was against the consent of the plaintiff; and indeed that one case- had passed the Court, where a judgment with his consent was allowed, though it .passed sub silentio.

It would seem then, that it is not at all certain but that the Court, if that fact had been in the case, would have considered the judgment, in the language of one of the judges, to-be unimpeachable; especially when we find them asserting, that it was the right of the plaintiff to have a joint judgment, but it is competent to a party .to waive' that right, as he may all others; and nothing can be a more conclusive waiver, than to take a separate judgment, of his own will, against one of the defendants.

But it is unnecessary to inquire, whether, if judgment had been rendered against the defendants, Jacob and Isaac Leffler, in this case, they could have reversed it upon a writ of error, notwithstanding the plaintiffs had, by their own consent, taken a separate judgment against their principal Salathiel Curtis. Howsoever that may be, we are of opinion, that there is no ground on which these plaintiffs in error can reverse the judgment' against them.

They themselves have-taken, with their own consent, a separate judgment against Curtis; upon that judgment they issued a ca: sa. by virtue of which his body was taken; under the insolvent laws of the-United States, he was discharged from imprisonment; those laws, declare, that the judgment shall remain good and sufficient in law, and may be satisfied out of any property that he then had, or might thereafter acquire; and the judgment under which all this has been done was rendered some ten or eleven years, before the witness was examined. .Let it be conceded. for the purpose of this part-of' the argument, that the judgment was ever so erroneous, can it be reversed?

We think clearly that it cannot; and this for many reasons — 1. It was taken by the plaintiffs themselves, with their own assent; 2. They have carried it into execution, and as far as they could, reaped its fruits; 3. The period within which a writ of error could be sued out, has been twice barred by lapse of time; 4. By the very terms of thd .law Under which Curtis was discharged- from imprisonment, the judgment is declared to remain in force, and that the plaintiffs have a right to satisfaction of it out of his property; 5.

Curtis himself is barred, not only by his availing himself of the-benefit of the insolvent law, which declares the judgment to remain in force, but also, by lapse of time, from reversing it, if he ever could have done so. We-think, therefore, that he is as completely severed from this record, and has as entirely ceased to be a party, as if he had never been sued. Let us for a moment trace the consequences of considering him as yet a party upon the record.

If this were so, then it would follow, that another judgment might be obtained against him; but we have seen, that there is already one against him, unreversed and irreversible; if then another could be obtained, we should have an anomaly, never before heard of in the law; that is to say, that there should be two subsisting judgments, in full force, at the same time, in favour of the same plaintiffs, against the same defendants, founded on the same original cause of action, and on both of which he would be liable to execution. This cannot be.

If there lie any one principle of law settled beyond all question, il is this, that whensoever a cause of action in the language of the‘law, transit in rem judicatam, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever. We have, anticipated the last objection in our previous reasoning, by showing that the fact fails, because the witness is severed from the record, and is not a party. On the whole view of the case, we think that the witness was competent; that therefore the judgment of tbe circuit court was correct, and must be affirmed..

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the-eastern district of Virginia, and was argued by counsel. On consideration wheréof,. it is ordered and adjudged by this Court; that the judgment of tbe saicl circuit court in this cause be, and the same is hereby affirmed.