The only point presented by the appellant, in this case, is the one raised upon the trial on his motion to dismiss the complaint, upon the ground that he had sustained the sixth defense set up in his answer, which was in short the dependency of a prior suit for the same cause of action in the name of John B. Ireland, receiver, which suit it was claimed was prosecuted for the benefit of the plaintiff in this suit. The court properly overruled this motion. There is no evidence in the case to show that the suit by the receiver, Ireland, was commenced first, and, besides, the defendant utterly failed to show that the suit brought by Ireland was for the same cause of action embraced in the complaints in the present suit. The present suit is an action *Page 69 at law to recover of the defendant $1,125 upon an express contract by the defendant, to pay the same to H.B. Hart, who assigned the same to F.B. Betts, and who assigned the same to the plaintiff in this action in which suit the plaintiff declares upon the contract setting forth the assignments from Hart to Betts, and from Betts to him. The suit by Ireland, receiver, is a creditor's suit strictly brought by Ireland, as receiver, to enforce the collection of a judgment in this court in favor of the present plaintiff against Betts Thomas. The complaint sets forth the recovery of the judgment against Betts Thomas, the issuing of an execution thereon to the sheriff, and the return ofnulla bona by the sheriff. The defendant in this suit, and both Betts Thomas, were made defendants; and the object of the suit was to set aside a bill of sale of certain property made by Thomas, of the firm property, to the defendant Potter, as fraudulent as against the creditors of Betts Thompson, or else to reform such bill of sale so as to make Potter liable for the debts of Betts Thompson, and that Potter be decreed to insert a covenant in that bill of sale obligating himself to pay the debts of the said Betts Thompson, etc. The two suits are not near enough alike to claim relationship, and I am satisfied that the keenest judicial perception will never be able to discover their identity. The suit in the action at law by the plaintiff against Betts Thompson was, I am satisfied, upon the same note which was the foundation of the action in the present suit, or rather was the same note which the plaintiff in the present suit alleged that Potter agreed to pay. But the creditor's suit against the defendants and Betts Thompson was to reach the assets of Betts Thompson in the hands of the defendant or to obtain the judgment of this court that he be decreed to pay the plaintiff's judgment, etc. It is possible, that, in such creditor's suit, the receiver may have reached this demand among others, and it is also possible that the plaintiff may have collected his debt in that suit, but there is nothing here to show it, except the affidavit made by Mr. Chester to obtain relief against the judgment. *Page 70
This court, as an appellate tribunal, cannot grant to the defendant the relief which he asks. He must make his motion in the Supreme Court, which court has full power over the judgment, and will not, I presume, allow the same demand to be collected twice.
The appellant's counsel has informed us in his brief, that he deems it safe to rest his case on this one point without going into the case or arguing any other exception. And I will only say, in regard to the other exceptions, that I have carefully examined the various rulings of the court below, upon the questions of evidence, and find no errors committed, calling for the reversal of the judgment on that ground. The charge of the judge to the jury submitted fairly every proposition in the case, and none of the exceptions thereto were well taken, and I advise the affirmance of the judgment.
Judgment affirmed. *Page 71