fact. The Dillons being, it should seem, apprehensive that pleas of payment of the two debts by John Dillon were a good defence to proceedings by scire facias to revive the judgments against James Hughes, an action was brought by James Dillon upon the covenants in the two deeds of assignment against the executor of Farrell, who had died in the mean time. On the part of the executor of Farrell it was insisted, that as the debts due by James Hughes were not paid off by him, though his co-obligor and surety had paid them when sued, they were still subsisting debts at the time of the assignments, and that the covenants were not broken. On the other hand it was contended on behalf of the Dillons, that the covenants were broken, inasmuch as at the time of the assignments Farrell had received the full amounts of the debts from one of the co-obligors, and the effect of payment of the debts by one of the co-obligors was a complete satisfaction of the conditions of the bonds and of the judgments as far as respected Farrell, the conusee; and that Farrell could not after payment levy the debts over again from James Hughes, although an implied assumpsit might exist amongst co-obligors: that therefore the debts were completely extinguished. Chief Justice Bushe said, that if the question in the case were whether James Hughes could, upon the above facts, defend himself against scire facias brought by James Dillon, as assignee of the judgments against him, the case of Purdon v. Purdon would be an authority to show that he could not so defend himself: and the case before the Court would be the stronger case of the two against the conusor of the judgments, because in the case before the Court the judgments against the co-obligor had not been satisfied upon record, as the judgment was in Purdon v. Purdon. But such was not the question before the Court; but whether the sums recovered upon the judgments against James Hughes, and covenanted to be due, were at the time of the assignment justly due and owing for principal, interest and costs: and whether, at the time of the assignments, Farrell had in himself good right, full power and absolute authority to assign the said judgments. That was, whether the covenants of Farrell in those words were upon the facts of the case broken covenants. For it might be that no defence could be made against those judgments upon scire facias, and yet that those covenants might be broken by reason of the sums recovered not being justly due and owing at the time of the assignments. That John Dillon, the surety for James Hughes, being obliged to pay his debts, and the creditor, Farrell, giving to him a warrant of attorney to satisfy the judgments TT Separate judg ments in separate actions against principal and against himself, John Dillon was then entitled, according to the case of Hill v. Kelly, (ante, pages 629, 630), to get from Farrell assignments of the judgments against the principal debtor, whose debts he had been obliged to pay: and if he had taken the assignments to himself, and satisfied on record the judgments against himself, then, according to the case of Purdon v. Purdon, he would have been entitled to issue execution against James Hughes; and James Hughes being the principal debtor could have nothing in equity to allege against execution, nor any title to relief by audita querela, or upon motion in the court of law. That James Dillon, the son, &c., trustee for his father, &c., instead of proceeding against James Hughes, turned about on the executor of Farrell, and brought the action in question. That the Court was of opinion upon those facts, that the sums recovered by the judgments were not only recoverable at law against James Hughes, but that in every sense of the words they were justly due and owing at the time of the assignments, and that the covenant by Farrell was not broken. That it might be said that this reasoning assumed the fact that John Dillon was the surety of James Hughes, the principal debtor, &c. But suppose the case to be that of two obligors equally liable, it not appearing that either was surety for the other, the presumption of law is that they were jointly indebted; and if so, and if one is obliged to pay the whole, the sum recovered on the judgment against the other is not only recoverable against him, but he who has paid the whole is entitled to have an assignment of the judgment, in order to reimburse himself to the extent to which he was obliged to pay the debt of the other; and if he should make any unconscientious use of it, beyond the equity between the two debtors, it is for a Court of Equity, or a Court of law upon audita querela, or motion, to relieve against him and adjust the rights of both. The Court decided that the covenants that the money was justly due and owing, and that the creditor had good title to assign, were not broken. Dillon v. Farrell, Batty, 669, 680–683. Bourne & Co. made advances to Cawthorne on the security of the joint and several promissory note of Cawthorne & Dowbiggin as his surety. Bourne & Co. brought separate actions upon this note against Cawthorne & Dowbiggin, and obtained judgsurety. Demur- ments in each; but they levied the debt by virtue of the judgequity to bill by ment against Dowbiggin. Upon this, Dowbiggin being dead, his representative of administratrix filed a bill in the Equity Exchequer, praying a surety paying the debt, for an declaration that she was entitled to have the judgment obtained rer for want of by Bourne & Co. against Cawthorne assigned by Bourne & Co. assignment of to her, with power to issue execution thereon, and that Bourne the judgment against the prin & Co. might be decreed to deliver to her the judgment paper in cipal, overruled. respect of the said judgment, and that it might be referred to the master to settle an assignment of the judgment, the administratrix offering to pay what, if any thing, was due to Bourne & Co. on the said judgment, and to indemnify them against all costs by reason of any proceedings by her under such assignment. The bill also prayed an injunction to restrain Bourne & Co. from entering up satisfaction on the judgment, or releasing or discharging the same. To this bill a demurrer was put in for want of equity. In support of the demurrer, it was said that the judgment was satisfied by the payment of the debt; and therefore, if it were to be assigned, the administratrix could not possibly derive any benefit from it; and the Court would not decree that which would be wholly nugatory and useless; that the rule which prevails in Courts of Equity, with respect to sureties being entitled to the benefit of all securities given by the principal debtor, applies only to cases in which the securities are subsisting, and capable of being enforced, and not to a satisfied judgment; that admitting Dowbiggin, as surety, to have paid the debt, all remedy on the judgment was gone, and the plaintiff could not compel an assignment of it, and could only be treated as a creditor by simple contract of the defendant Cawthorne; that the Bournes could only assign what they had a right to, and they had no right to issue execution, the debt being satisfied; that three remedies were given by the law-first, the remedy by audita querela; secondly, as the judgment must be revived by scire facias, the party might appear and plead the satisfaction; or thirdly, the party might obtain a rule to show cause why satisfaction should not be entered up on the record of the judgment. The demurrer was overruled. Chief Baron Alexander said he could not upon the demurrer decide the points which had been argued, and from which it had been contended, that if the relief sought by the bill were given to the administratrix of the surety, she would not be able to derive any benefit from it; that if the case were one of a joint judgment against principal and surety, he should perhaps have said the judgment having been satisfied, there was an end of it; but where, as in the case before him, there were two judgments: and where the matter might come before the Court of Law, on a question of pleading in scire facias, or in a proceeding by audita querela, he thought he could not enter into the consideration of The case of the subject on demurrer. Dowbiggin v. Bourne, Younge, 111, 115, 116. Answers having been filed, this case was in 1837 heard before Mr. Baron Alderson. On behalf of the administratrix it was admitted, that if there had been only one action, there could have been nothing for equity to operate upon; but there being two actions, and judgment in one of them remaining unsatisfied, it was submitted the administratrix had a right to the benefit of that judgment. Mr. Baron Alderson observed that, supposing there had been only one action and judgment, the administratrix could have had no equity; so that the equity claimed depended on the form of the proceedings at law upon there being two actions; that a party applying to revive a judgment of more than ten years' standing must make an affidavit that the judgment is unsatisfied; that supposing the Bournes alone concerned, and it appeared by their affidavit on application to revive the judgment, that the debt had been paid by the surety, would a Court of Law allow execution on the judgment against Cawthorne ? That a Court of Law only looks to the parties before the Court; and taking the Bournes to be the only parties interested, the Court would not allow them to issue execution against Cawthorne for a debt already satisfied; and that the question was whether, under the circumstances, there could be any remedy at law, supposing an assignment of the judgment was executed to the administratrix; and that if an assignment of the judgment was obtained, the assignee must necessarily proceed in the name of the assignor to enforce that judgment. He then proceeded as follows: "Dowbiggin paid the amount of the principal money and interest due on the note, and the costs of the action against him, and the holder of the note having been thus satisfied the whole of the principal money and interest, had no further claim, except perhaps in respect of the costs of the action against Cawthorne; and if he had afterwards ventured to proceed on the judgment against Cawthorne, the Court of King's Bench, in which the judgment was recovered, would have interfered in a summary manner to stay proceedings on the judgment except for those costs. The whole effect therefore of assigning the judgment to the administratrix would be to give her that, which would be wholly useless, except for the purpose of recovering the costs of the action against Cawthorne, and to which as administratrix of Dowbiggin she could not possibly have any right; that the case in substance was not distinguishable from the case before Lord Eldon, in which he said that if a bond is given by principal and surety, and at the same time a mortgage is made for securing the debt, the surety paying the bond has a right to stand in the place of the mortgagee; but that if there is nothing but the bond, the surety, after discharging it, cannot set it up against the principal debtor; that any assignment of the judgment would be entirely useless; and therefore, under the whole of the circumstances, the bill must be dismissed; but as the Bournes might readily have given to the administratrix what she required, though it was perfectly useless, the bill must be dismissed against them without costs." Dowbiggin v. Bourne, 2 Younge & Collyer, 462. This decision of Mr. Baron Alderson is far from satisfactory. The actions and judgments being separate, upon scire facias the one judgment could not, it is believed, have been pleaded in bar of the other. The proceeding upon scire facias could therefore only have been stayed upon audita querela, or motion; and upon audita querela, or motion, the Court of Common Law must have gone into the equitable principles; and if the decisions of the Irish Courts stated in these pages be right, the Court of Common Law would not have interfered to prevent the administratrix, from using the subsisting judgment to enforce the payment of her equitable debt. Permission should, it is conceived, have at all events been given to the administratrix to make the experiment of the conclusion at which a Court of Common Law here would have arrived in such a state of circumstances. surety's cre ditors. Mills and Hamilton had a judgment against Browne, Surety's estate who was merely a surety for Stewart. They had also, as it paying the debt, decree made for must be inferred, a judgment against Stewart. [The debt assignment of was bond, and probably the judgments were entered up under a judgment a warrant of attorney in separate actions.] Browne died; and against the principal to a trusthe suit of Peoples v. Young was instituted for the adminis- tee for the tration of his estate, and Stewart, having claims against the estate of Browne, thought he could best give effect to them by getting Mills and Hamilton to go in as creditors in the suit of Peoples v. Young, on the footing of the judgment against Browne; and which they accordingly did. Upon this a bill was filed on behalf of the creditors of Browne against Mills and Hamilton, praying amongst other matters that Mills and Hamilton might be compelled to assign their judgment against Stewart to a trustee for Browne's creditors, with liberty to proceed on the same; and the Court said they had decided in Scott v. Lowry (a) (a) See ante, pages 620, 621. |