The affidavit of Oakley, on which the attachment was issued, all edges that John W. Baker and John Young were justly indebted to him in the sum of twenty-thousand dollars and upwards, arising on a certain judgment obtained in the supreme court of this state.
A majority of my brethren are of the opinion, that the joint indebtedness of these persons did not arise upon the judgment, and for that reason the decision of the superior court must be reversed.
The point decided assumes, (and in this we all agree,) that there was a judgment in favor of the plaintiff against Young & Baker, regularly obtained, according to the provisions of the act in relation to joint debtors, by the service of process upon Young alone. In the second place, that the recovery was for a demand, for which the defendants were originally liable as co-partners and that this appeared on the face of the record.
Thus situated, the plaintiff deposed first, that he had obtained [542] a judgment. The legislature have so denominated it. Secondly, that it was against both defendants; the statute declares that it “ shall be against all, in the same manner as if all had been served with process.” (1 R. S. 377, § 1.) Thirdly, that Young & Baker were indebted to him in the sum specified, *541arising upon the judgment. That they were jointly indebted to the plaintiff, is conceded. The question is, whether that indebtedness is to be referred to the judgment, or to the undertaking set forth in the record, upon which the judgment was rendered. It should be remembered, that the conditions of the problem to be solved, are a joint indebtedness upon the part of Young and Baker to the plaintiff, subsisting when he made his affidavit, which would maintain a joint suit, and result in the recovery of a judgment against the debtors jointly.
And first, the judgment mentioned was, in form and effect, a common law judgment against Young, who was served with process. (2 R. S. 377, §§ 1, 2.) It was more than an admission of record, that the defendants in that suit were jointly liable originally, for the cause of action therein stated. It concluded Young, and consequently Oakley, from thereafter alledging that Young & Baker were not, by virtue of that recovery, joint debtors by judgment. Oakley could not sue Young at law upon the judgment, without joining Baker. And if he had filed a creditor’s bill upon the judgment against Young alone, although he averred that he only was served with process, it would .be demurrable. (Com. Bank v. Meach, 7 Paige, 449; 4 John Ch. 568.) As regards Young, consequently, the original cause of action was merged in the judgment. “ This is true,” says Park, B. in King v. lloare, “ where there is but one cause of action, whether it be against a single person or many.” (13 Mees, & Welsby, 504.) “ No principle is better settled,” remarks another learned judge, “ than that a judgment once rendered, absorbs and merges the whole cause of action, and that neither the matter or parties can be severed, unless the cause of action is joint and several, which actions against partners a/re not." (9 Serg. & Rawle, 145.) The same doctrine was affirmed in Robertson v. Smith, (18 John. 480,) and in Penny v. Martin,, (supra,) [543] in this state, and is settled if any thing be settled, by an unbroken series of authority. So absolute is the merger, that equity will not relieve, where the parties not sued were unknown to the plaintiff, when the judgment was obtained. (9 Rawle, and 4 John. Ch. supra.) The original cause of action being *542merged as to Young, was extinguished as to Baker also. “ Where a judgment,” says Baron Parke, “ has been obtained for a debt, the right given by the record, merges the inferior remedy by action, for the same debt against another party J (13 Meeson & Welsby, 505, and note; 18 John, supra, and cases cited) This is admitted to be an inflexible rule of the common law, in all cases like the present.
But it is said that the defendant not served may be sued on the original promises, where the proceeding is under this statute. But in Carman v. Townsend, (6 Wend. 210,) the doctrine of the cases above cited was applied to a judgment under the joint debtor act. The chancellor says “the judgment was a merger of the original indebtedness, so that no action could be sustained against either of the defendants on the original promises.” “ The action must be debt on the judgment.” This was in 1830. And in Marvin v. Kumhel, on demurrer to the replication to the second plea of the defendant, the same construction, in both particulars, was given to the present statute, and the decision of the court below, on those points, affirmed. (23 Wend. 302, 303.)
Again, the original promises were joint. The promise of Young was extinguished by the judgment. This has never been questioned. If that of Baker survived, so as to be the subject of an action, it must bind him, as sole promisor. But the legislature could not change the contract and make it joint and several, at the election of the plaintiff; nor have they attempted it. The statute is silent. Such an action is prohibited by the common law; nor is there a decision or a dictum in the reports that favors it, except a remark of Judge Bronson in Marvin v. Kumbel (23 Wend. 298,) which was at the time repudiated by his associates. The learned judge himself admitted, that “ the proceeding would be anomalous.” It certainly would be; and [544] not the less so, that the implication, on which it must rest, would be a violation of the provision of the constitution of the United States, against impairing the obligation of contracts.
The legislature have confined their action to the remedy. They have declared that the judgment shall be against all the joint debtors. The original contract as.to all is thus merged *543the right of the plaintiff to bring a joint action is preserved: there is no severance of “ matters or parties” which the common law forbids. On the other hand, the subsequent provision, in relation to the effect of the judgment, secures to the defendant not served with process, the privilege of any defence to an action upon the judgment, which he could make to a joint action upon the original contract. (2 R. S. 377, §§ 1, 3, 4, 2.) This has been the construction uniformly given to the statute. (2 John. 87; 6 id. 98 ; 16 id. 66; 6 Cowen, 697; Carman v. Townsend, sufra ; Marvin v. Kumbel, 23 Wend. 293.) No principle of pleading or law is subverted. There is no necessity, in the same suit, for a declaration in debt on judgment against one defendant, and on promises against the other, in expectation that these incongruous materials will, in some undefined way, amalgamate and form a statute judgment.
Again, by the 2d section of the act the judgment is made evidence of the extent of the plaintiff’s demand against the defendant not served with process. If this judgment is evidence for any purpose, against Baker, in an action to charge him individually, it is because he is a party, and bound by it, to the extent prescribed by the statute. (1 Phil. Ev. 7th ed. 324; Cowen & Hills Notes, 918.) Ho answer has ever been given to this argument. It has been met by an assertion, (23 Wend. 297,) that the judgment is made by this provision evidence not against the defendant, but for him, to limit the recovery of the plaintiff. The assumption would apply, with the same force, to the first clause of the second section, which makes the judgment conclusive evidence against the defendant served with process. It is only necessary to transpose the parties. In the second place, it implies that the revisers intended to declare, by a solemn enactment, that the plaintiff was bound by his own judgment; and thirdly, that they blundered in this work of supereroga- [545] tion, by mistaking the defendant for the plaintiff.
But it is objected, that the liability of Baker must be proved by other evidence than the judgment, and therefore his indebtedness can not arise upon it. This objection was considered in Marvin v. Kumbel, and there overruled. (Id, 300.) It con*544founds two matters, entirely distinct, namely, the cause of action and the evidence by which it is maintained. The 2d section of the statute provides, that “ such judgment shall be conclusive evidence of the liability of the defendant served with process ; but against every other defendant, it shall be evidence of the extent of the plaintiff’s demand, after his liability shall be established by other evidence.” Liability upon what, and to whom ? The necessary implication from the language is, that the liability mentioned in each clause of the section, is upon the judgment, and in favor of the plaintiff. The record, as at common law is made, as evidence, conclusive against the defendant served, of a joint indebtedness on the judgment. The same proof, together with extrinsic evidence, connecting the other defendants with the cause of action stated in the record, is necessary to establish the same fact against them. The issue to be maintained by the plaintiff is, the joint liability of the defendants on the judgment, not that they were original joint contractors. The last is merely one fact in the chain of evidence, to establish the main issue, against a particular class of defendants. When the required evidence is given, whether by the record alone, as to the defendant served, or by the record and extrinsic evidence as to the others, it in either case establishes a liability upon the judgment, and the recovery must be upon that, as the cause of action.
Under the former statute, the debtor not served with process could, by pleading specially, compel the plaintiff to prove the original joint undertaking. (6 Wend. 211; 23 id. 296.) On the issue thus formed, the judgment was not evidence for the plaintiff; and yet no one ever doubted that it was the cause of action, and that the plaintiff must recover upon it, in debt, notwithstanding. The present statute imposes this duty on the [546] plaintiff, in all cases where the validity or existence of the judgment is denied by the defendant not brought in : and this makes the only difference between this statute and the former one.
My conclusion is, that a judgment which the statute declares shall be against both the joint debtors, which has the force of a *545common law judgment against one of them, which binds their partnership property, and which according to the adjudications of our courts, for the last forty years, extinguished the original cause of action as to both of them, is incompatible with the notion that they were at the same time jointly indebted to the plaintiff, upon the promises upon which that judgment was rendered. The plaintiff so thought, and deposed that their indebtedness arose upon the judgment. If he has erred, and I think he has not, the error has arisen from alledging in his affidavit a conclusion of law, upon the authority of the supreme court and the court for the correction of errors. I am of opinion that the judgment should be affirmed.
(a) The reasoning of Bronson, Ch. J. and of Mullett, J, in the decision of this case, goes to the full extent of holding that an action will not lie against both the debtors on a judgment obtained according to the provisions of the joint debtor act. Jewett, J on the other hand, is of opinion that the action may be in form on the judgment, and yet that the cause of action or demand does not “ arise upon the judgment.” This distinction, to say the least, is not very obvious. If an action may be brought on the judgment, it is not easy to see why the creditor, when he proceeds by attachment against the property of the debtors as non-residents, may not safely swear that his demand arises on the judgment. As, however, some of the other judges who voted for reversal may have proceeded upon the same ground with Judge Jewett, it is impossible to affirm that the case goes beyond the single proposition that the petition and oath of the attaching creditor were wrong in stating that his demand arose upon the judgment. [See D'Arcy v. Ketchum, (11 Howard Rep. 174,) in which the supreme court of the United States seem to entertain the same opinions as those expressed by Judges Bronson and Mullett]Gray, J. concurred in opinion with Judge Gabdineb.
Judgment reversed.(a)