De Proux v. Sargent ( 1879 )

Virgin, J.

An action of debt lies for a sum certain, whether it has been rendered certain by a judgment, or by a special or simple contract between the parties. 2 Grreenl. Ev. § 279. McVicker v. Beedy, 31 Maine, 314, 318. Morris v. School Dist., 12 Maine, 29. Portland v. At. & St. L. R. R. Co., 66 Maine, 485, 487. Hence debt may be maintained not only by the payee (Martin v. Root, 17 Mass. 222; Mandeville v. Ridle, 1 Cranch, 290,) but by the indorsee against the maker of a promissory note. Wilmarth v. Crawford, 10 Wend. 340. Raborg v. Peyton, 2 Wheat. 385.

So a count in debt on a simple contract may be joined in the same declaration with a count in debt on a judgment. 1 Chit. Plead. (16th Am. ed.) 221-2. 2 Wm’s. Saund. 117, note a. Union Cotton Manuf’y v. Lobdell, 13 Johns. 462. McVicker v. Beedy, supra. Exchange Bank v. Abell, 63 Maine, 346.

Sargent had a right, therefore, to join a count in debt on his original judgment with one on , De Proux’ note payable to Goss or bearer, provided the alleged illegal procuring of the note by Sargent did not prejudice his case. His declaration was strictly legal in form.

The plaintiff alleges that, Sargent, on September 16,1878, sued out an action of debt, “in due form of law,” against him, returnable on the first Tuesday of October following, setting out the declaration in full — one count on the former judgment and twoun the note; that the writ was duly served and returned, entered on the return day and continued to the first Tuesday of November following, when Sargent “recovered judgment in said action against” this plaintiff, “for the amount of said first mentioned judgment and note; ” that on Nov. 19, execution was issued on the judgment, running against the body of this plaintiff, and directed to the sheriff; and that the sheriff, under the express instructions in writing of Sargent by his attorney, arrested I)e Proux on the execution and detained him in his custody until he took the poor debtor’s oath — some five days.

There appears no irregularity in any of the proceedings. The writ and execution were in the usual form. The defendant through his attorney, simply resorted to the usual legal methods for collecting his demands against De Proux, his debtor, so far as any of the forms of law are concerned.

But the plaintiff alleges, in substance, that Sargent procured the note from Goss in violation of the provisions of B. S., c. 122, § 12, as amended by Stat. 1878, c. 57, and therefore that, “at the time the said judgment was recovered, he (De Proux) was not indebted to Sargent in the sum of ten dollars, exclusive of costs, and was not liable lawfully to be arrested on execution issued upon any judgment which said Sargent might lawfully recover against him.”

There is no pretense that, if the note and original judgment could be lawfully joined* they would not show that De Proux was indebted to Sargent in the sum of ten dollars, exclusive of costs, but the argument seems to be (1) That Sargent never had any legal title to the note and hence should not have had judgment for the amount of both note and former judgment; and (2) That admitting his title to the note, the execution issued upon the judgment recovered on both the former judgment and note should not run against the body of the judgment debtor.

1. The difficulty with the first proposition is, the law will not allow this plaintiff to set it up or prove it; because if true and available, it was a matter of defense, and it should have been set up at the November term of the municipal court when the judgment was recovered. Perhaps it was, and the issue was found against De Proux. Of that we are not informed. But whether it was or not, the plaintiff is concluded by the judgment rendered against him by a court of competent jurisdiction — having jurisdiction of the parties and the subject matter. Pratt v. Dow, 56 Maine, 86. Greene v. Greene, 2 Gray, 364, and cases cited by the defendant.

2. When' a plaintiff has several distinct causes of action, of the same nature, he is allowed to pursue them cumulatively in the same writ. Steph. Plead. (Tyler’s ed.) 254- Bac. Ab. actions,O.; and if he do not, he can recover but one bill of cost, if he sues on them severally. B. S., c. 82, § 117. It follows, therefore, that although neither one of them might bo large enough to authorize the execution to run against the body, they might when aggregated.

The position of the plaintiff that “no increment of a small note or account acquired after the recovery of the former judgment could make a judgment of sufficient amount to arrest the debtor legally,” is not tenable. Kelley v. Morris, 63 Maine, 57, sustains no such proposition.

Plaintiff' nonsuit.

Appleton, O. J., Barrows, Daneorth, Peters and Symonds, JJ., concurred.