author: Swift, Ch. J. Brainard, J. Hosmeb, J.

text:
    Church and others against Knox and others.
    The right, or interest,, of one partner m a debt due to the partnership, cannot be taken, by process of f'oreigTi attachment, to satisfy the individual debt of that partner without shewing, from the state of the partnership accounts, as between the partners, and with reference to the solvency of the partnership, what the light or in-terestclaim-ed amounts to.
    An execution against a partner, for his individual debt, can counts of tile take only the interest of that partner in the partnership funds, subject to the atx partnership.
    THE plaintiffs recovered judgment, by foreign attachment, against Joseph Hart, for 1,623 dollars, 79 cents, and brought this scire-facias against Jformand Knox, Boland Lee and Jared Scarborough, averring that they were, at the time the copies were left in service with them, “ attorneys, factors, agents, trustees and joint debtors to said Joseph Hart, and William Hart and John Hart jointly and that the defendants “ had in their hands of the moneys of the said Joseph Hart, and were indebted to him in the sum of 1,700 dollars.”
    The cause was tried at Hartford, February term, 1818, before Baldwin and Hosmer, Js.
    On the trial, it was proved, that when the copies in the original suit were left in service with the defendants, they were jointly indebted; to Joseph Hart, William Hart and John Hart, as copartners, in the sum of 1,200 dollars. But there was no evidence before the court, to prove whether the copartnership was solvent, or insolvent : or whether, as between the partners, there was a balance due from Joseph to William and John, or either of them, or a balance due from them, or either of them, to Joseph ; nor was there any evidence to siiew what was in fact the state of the copartnership accounts, as between the partners ; nor what was the proportion of each partner, at any time antecedent, in tiie funds of the company. Upon this state of the case, the defendants contended, that they were not, debtors to Joseph Hart, as the declaration alleged. The court decided otherwise, and rendered judgment for the plaintiffs, with 400 dollars damages. The defendants thereupon moved f >r a new trial, on the ground, that the court in their decision had mistaken the law. This motion was reserved in the usual manner.

      Hartford,

    June, 1818.

      T. S. Williams and W. W. Ellsworth, in support of the Motion,
    contended, 1. That the attaching creditor of Joseph Hart, takes his place, and his rights.
    2. That the rights or interest of Joseph Hart, as to the company property, are subject to the state of the company accounts. Fisk &' al. v. Herrick & ft/. 6 Mass. Rep. 271. Moody v. Payne, 2 Johns. Chan. Rep. 548. Fox v. Hanbury, Cowp. 448. Taylor v. Fields, 4 Ves. jun. 396. Ozeas v. Johnson, 1 Binn. 191. 193. Hankey v. Garret, 1 Ves. jun. 240. Hey don v. Hey don, 1 Salk. 392. This proposition is supported and illustrated, by the following considerations. First, if A., B. and C. are partners, and A. withdraws more than he put into the company, he has no interest. Secondly, each partner must have a valid claim, for his disbursements and charges arising in the business. Thirdly, all the debts and credits are contracted for the benefit of the general fund. Now, as it would be unjust and dishonourable for a partner to appropriate such fit rid to the payment of his individual debe ; the law will not lend its aid to the accomplishment of the same object in favour of a stranger. Fourthly, each partner is liable for all the debts, and ⅛ in possession of all the property, of the company.
    3. That the interest of Joseph Hart in the funds of the company, can be ascertained, only by ascertaining the actual state of the accounts | and in doing this, a mode of adjustment must be adopted, which will not deprive the several partners of the benefit of their oaths. A certain interest cannot be presumed in favour of one partner, or of his creditor who represents him ;• — for if it could, assumpsit would lie for that partner’s share.
    4. That supposing the amount of Joseph Hart's interest to be already ascertained : still the attaching creditor cannot. take that proportion of interest in this debt, separately and absolutely ; he can only stand in his debtor's place, and become a tenant, in common with the other partners. But, by the judgment of the superior court, there is a complete severance of the debt in question.

      5. That a debt due to a copartnership, can, in no case, be taken, like tangible property, to satisfy the several debt of one of the partners. Lyndon v. Gorham & Greene & al. 1 Gallis. 367.

      H. Terry and S. Terry, contra,
    contended, 1. That at common law, the joint effects of a copartnership may be taken for the debt of one partner ; and that the proportion thus taken is the same as in ordinary cases of joint ownership, ni%. each partner is presumed to have an equal interest. Heydon v. Heydon, 1 Salk. 392. Bachurst v. Clinkard, 1 Show. 169. [173.] .Tacky v. Butler, 2 Ld, Raym. 871.
    2. That our statute of foreign attach ment places debts on the same footing with tangible property $ and therefore, a third of the debt due from the defendants to the copartnership, is held to respond the judgment against Joseph Hart, ¡might v. Tomlinson, 2 Root 233.

         7⅞ 14. c. 3. $, 1. 5-

   Swift, Ch. J.

The ground taken by the plaintiff, in this ease, is, that the tangible property of tenants in common, and co-partners, can be taken, and sold on execution, for the payment of their individual debts ; that in case of a partnership, each partner is, in law, considered to be an owner, in proportion to the number of the whole ; that the purchaser of such part, becomes tenant in common with the other partners, and is entitled to the possession : of course, on analogous principles, a creditor may, by foreign attachment, take the same proportionable part of a debt due to the partnership, for a private debt of an individual partner. The tangible property of tenants in common, may be taken and sold, by execution against either of them. Such part only can be sold as belongs to the tenant against whom the execution is issued ; and the purchaser will become co-tenant with the rest. But this rule does not apply to the case of co-partnersJ It is a point well settled, by the authorities, that an execution against a partner, for his separate debt, can take only the interest of the partner, in the partnership property, subject to the partnership debts: that the interest of the partner, only, is sold, and not the effects. The purchaser will stand in the place of the partner; the interest taken will continue, subject to the same responsibilities; and the amount can be ascertained, only on a final settlement of the partnership accounts. Moody v. Payne, 2 Johns. Ch. Rep. 548. Taylor v. Fields, 4 Ves. jun. 396. Barker v. Goodair, 11 Ves. jun. 85. Dutton v. Morrison, 17 Ves. jun. 209. The King v. Sanderson, 1 Wightwick’s Excheq. Rep. 50. 1 Madd. Chan, 112.

This doctrine is not only supported by authority, but is founded in the plainest principles of justice. The creditor can, by a foreign attachment, take nothing but what the absconding debtor was entitled to; and the property of one man ought not to be taken to pay the debt of another. But the rule claimed by the plaintiffs, would violate botli these principles. It is well known, that in partnerships, the effects do not usually belong to the partners equally, in proportion to their number. Sometimes, one will ad vance the capital, which is to be returned ; while the other is to transact the business; and the profits, only, are to be shared between them. The effects might be wanted, not only to pay the partnership debts, but, on a settlement of the accounts, the partner in the execution, might be a debtor to the partnership. If, then, we consider them as tenants in common, and permit a creditor to sell one half to pay the separate debt of one partner, we shall, in many instances, suffer the property of one man to be taken, to pay the debts of another; and give to a separate creditor of a partner, a right over the effects of a partnership, which such partner could not exercise; and if the purchaser should be allowed to take possession of the effects, he might dissolve, or destroy the partnership. The only mode of doing justice, is, to sell the interest of the partner, who is the debtor in the execution ; and though this may be uncertain, and difficult to come at, yet this can be no reason, why a rule, manifestly unjust, should be adopted. The doctrine, then, contended for by the plaintiffs, is not supported by precedent, or principle : and furnishes no analogy applicable to the present case.

It may he asked, on what ground could the judgment, in ibis case, be rendered for one third of the debt due from the. defendants to the partners!! of which the absconding debt or was one r There was no evidence respecting the state of the partnership concerns; what capital each partner advanced; what each owed ; and whether the partnership was solvent. Suppose the whole debt due from the defendants, should be wanted, to pay the partnership debts; or, that Joseph Hart should be found a debtor, on settling his account; then the judgment could not be right. While the interest of Joseph Hart w as a matter of uncertainty, how could a judgment be rendered for a sum certain ?

It is, however, insisted, that the defendants are bound to state the accounts of Joseph Hart, with the partnership, and ascertain the balance due to him. But this would be to require an impossibility; for they have no controul of their books, and no possible legal mode of compelling a settlement of their accounts.

It is further said, if the plaintiffs have recovered more than the proportion of Joseph Hart in this debt, and it should be wanted for the payment of partnership debts, the other partners may call them to account, and recover back such money. At this rate, a judgment may be rendered in favour of a man for a sum certain, with a liability to refund the whole, or a part of it, on some contingency. It is sufljcient to state the proposition, to sho^v the absurdity of it. What right can a court have to say, that a certain part of a debt due to a partnership, may be taken to pay the private debt of a partner, in a suit where the partners are not parlies ; and then, if wanted to payAhe debts of the partnership, to oblige them to resort to the; creditor ?

/ But it further appears to me, from the nature of partnerships, that one partner cannot have a separate yight, in any particular debt, or article of property, belonging to the partnership, liable to his individual debt; but all the effects are a joint interest; and each partner can have a sc parate interest only in his share, upon the winding up and settlement of the partnership concerns.

It is said, that, at this rate, the property of partners may be placed beyond the reach of their individual debts, by foreign attachment. If the legislature has not made provision, by which the actual interest of a partner, in the partnership property, can be reached, it would be proper for them, In a new law, to supply the defect; but this will not warrant a court to introduce a remedy, which violates the principles crt which partnerships are founded : for contracts of this kind are recognized by law ; and no principle, ought to be adopted, which may terminate in their utter destruction. -f

It is also urged, that this point was settled by the Supreme Court of Errors, in the case of Laight v. Tomlinson, 2 Root 233. All that appears, in that case, is, that the superior court, in the case of a foreign attachment, rendered judgment against the garnishee, for the whole sum due to a partnership ; and the Supreme Court, for that reason, with others, reversed the judgment, with the remark, that it ought not to have been for the whole sum, but only the proportion of the absconding debtor, in the debt due to the partnership. But it does not appear, that the point arising in this case, was ever suggested, or considered.

I think a new trial ought to be granted.

Edmond, Smith and Peters, Js. were of the same opinion.

Brainard, J.

Joseph Hart was* indebted to the plaintiffs. The defendants were indebted to Joseph Hart, William Hart and John Hart, as merchants in company. The plaintiffs brought their factorising suit against Joseph Hart, and left copies with the defendants, as debtors to Joseph Hart; recovered judgment ; and now bring their stire-facias, to recover of the defendants such proportion of the debt due from them, to Joseph Hart, William Hart and John Hart, as they claim to belong to Joseph Hart. Can this process be supported ? Are Knox, Lee and Scarborough, the defendants, in a legal sense, debtors to Joseph Hart alone ? Our statute regarding foreign attachment, says, “ that debts due an absent or absconding debtor, shall be considered his effects, in the hands of the person from whom the same arc due.” This statute must have a consistent construction ; such a construction as will support itself, andean he carried into effect. Debts, by the statute, are made effects ; hut can any share, or portion of this debt, be taken and carried out, as the exclusive property of Joseph Hart ?

This, I think, is a sound position ; that a creditor of Joseph Hart, could not have a greater controul of this debt, than Joseph ITart himself could $ and what controul could be have over it ? As a partner anil agent, lie could receive ami discharge the whole: but at no moment, and under no cir cumstances, could he claim any particular part, or portion of this debt. He could never say to Knox, Loe and Scar borough — “ You owe me, and I demand one third, one fourth, or one fifth of tills debt.” A debt due a company, is, in its nature, entire and indivisible. If A. owes B., he owes him a debt entire. If A. owes B., C. and D., he owes them, collectively, a debt entire. What, on this scire-facias, could be the judgment? If any could be rendered in favour of the plaintiffs, it must be for a certain liquidated sum. This, in my view, would lead to consequences, seriously injurious to the rights of partners, and vitally destructive of all partnership connexions. A debt due a company, is pledged to the company for the payment of its debts. It is a fund on which the partners have a right to calculate. This debt cannot be seized, or arrested, by a creditor of any one individual of the company, for this reason ; from its very nature, partition cannot be made of it. This debt, unless collected, and all other outstanding debts, must depend on the final settlement of the company’s concerns. That any particular portion of a debt, due to three or more partners, dependent on the adjustment of their copartnership concerns, can be attached, or arrested, by a creditor of an individual of the company, seems to be inconsistent.

What could be taken, and how could it be disposed of ? How could a court, on a process of scire-facias, ascertain, that one third, or any other proportion of a debt due from Knox, Lee and Scarborough, to Joseph Hart, William Hart and John Hart, could be property, or effects of Joseph Hart ? Joseph Hart might not own the tenth part of the capital of the company. Besides, the company, as such, might be bankrupt; Joseph Hart, as an individual, might be bankrupt; and William Hart and John Hart, as individuals, abundantly solvent.

In this .course of things, by necessary consequence, the private property of an individual member, may be taken for the private debt of a bankrupt partner, whose proportion of the company’s funds may be first exhausted in discharge of his private debts, and thereby occasion a bankruptcy of the company f and then the deficiency must be supplied, out of the private property of the other partners. A., B. and C., form a company, and put into the company stock 10,000 dollars, each. Jt., as an individual, is a bankrupt, and his 10,000 dollars are taken, for his private debts. The company owe 30,000 dollars, to pay which, not only each of /l.’s and G'.’s 10,000 dollars must go, but they must each contribute 5,000 dollars, out of his own private property, to make up the deficiency.

The private property of an individual member of a company must always be liable for the company’s debts ; but never holden for the private debts of another individual member of the company. Indeed, I do not see how the court, for the want of parties, and the means of ascertaining facts, could determine what proportion of this debt belonged to Joseph Hart. Knox, Lee and Scarborough could give no information on the subject. They had no means of knowledge. They could only say, « We are indebted to Joseph Hart, William Hart and John Hctrt, in a certain sum : how much of it is Joseph Hart’s, or whether any, we know not.”

In the argument, it was suggested, and indeed insisted on, that Joseph Hart’s right or proportion of this debt could be taken as his effects, and held responsible for the plaintiffs’ demand, on the final settlement of the company’s concerns. But the question must always recur ; for what, on this scire-facias, is the judgment to be ? Is it to be for an unknown, unliquidated portion of property or interest, which is not, and never can he, ascertained, until the final settlement of all accounts and partnership concerns between Joseph Hart, William Hart and John Hart ? This is too absurd. A process must be void, on which a court cannot ascertain the debt, or damages, and render judgment for a precise sum.

Whether the proportion of any visible, or tangible property, belonging to an individual of a company, can be taken for his private debt, is a different question. The authorities on this point, are not perfectly uniform. But be it so : there is no embarrassment to the court. They are not obliged to seek for hidden things. The court ascertain the debt: the sheriff finds the property, visible and tangible. Even from this doctrine, inconveniencies may result; hut if the authorities support it as inseparable from copartnerships, such inconveniences, so far as they extend, must be submitted to, as unavoidable evils. But should this doctrine be admitted, it goes no further.

Suppose a ship should arrive at Hartford, owned by Joseph llart, William Hart and John Hart; with a cargo, also owned by them ; and this cargo should be sold to Knox, Lee and Scarborough, on a credit. Church and company, as creditors of Joseph Hart, could attach such proportion of the ship as he might own ; but could not, if mv reasoning be correct, touch the debt due from Knox, Lee and Scarborough, because they did not owe him.

Hosmeb, J.

It is the policy of the law to render all the property of an individual subject to execution for his debts. This, private justice and public convenience, imperiously demand. Hence, an individual, by becoming a copartner, and putting his property into a joint fund, cannot withdraw it from execution. The same is true in regard to the attachment of it; for if liable to execution, it may always be held in the custody of the law for that purpose.

I will first express my opinion relative to tangible property. It is unnecessary to have recurrence to first principles. On this subject the law has been clearly settled for more than a century. It has long been established, that on an execution against a partner, the sheriff must seize all the joint property of the copartnership, and sell an undivided moiety, if there are two partners only ; and “ the vendee will be tenant in common with the other partner.’ Heydon v. Heydon,, 1 Salk. 392. Jacky v. Butler, 2 Ld. Raym. 871. Backurst v. Clinkard, 1 Show. 169. Pope v. Harman, Comb. 217. Eddie v. Davidson, Dougl. 650. The right of taking the goods of a partnership, for the debt of an individual partner, and selling his share in them, has, in chancery, been uniformly recognized. Hankey v. Garret, 1 Ves. jun. 236. West v. Skip, 1 Ves. 239. 1 Madd. Chan. 112.

It is unquestionably clear, that the sheriff, pursuing the command of the execution, must seize the property, and, at the time of sale, deliver it to the vendee. “ Execution sig-nifieth in law, the obtaining of actual possession of any thing, acquired by judgment of law.” Co. Litt. 154. In Backurst v. Clinkard, before cited» it is said, « on a scire-facias against one, or two, or more partners, the sheriff must seize the joint property.” The necessity of this is too obvious to need insisting on. If the goods are left with the debtor, they may be taken by a subsequent execution. Barnes & al. v. Billington & al. 4 Day 85, 6. in nota.

The property sold by the sheriff, is the share of the execution debtor only. It is said, in Flankey v. Garret, “ if a separate creditor attaches in execution the joint fund, which he must always do, the vendee under the execution and the other partner are tenants jti common, and he must, hold it subject to all the rights of the other partner. The separate creditor has no right against the joint property, further than the inters-est of the partner indebted to him; that is, his share upon a division of the surplus, subject to the accounts of the copart-nership. Field v. Taylor, 4 Ves. jun. 396. Fox v. Hanbury, Cowp. 445. West v. Skip, 1 Ves. 239. Eddie v. Davidson, Dongl. 627. But the legal presumption is, in absence of all proof, that the partners hold in equal shares. This position is established by the cases already cited. (Vid. Jacky v. Butler, Heydon v. Heydon, Pope v. Harman.) In Hankey v. Garret, 1 Ves. jun. 240. it is said by Butter, J. <• I admit, in casé of judgment against one of two partners, the joint estate is only to be taken, as to a moiety.” The necessity of the case, as well as uniform practice, establish this proposition. Unless the law were so, the sale of copartnership property on execution, for the debt of one of the partners, would be manifestly subverted. If no person could even form a conjecture, as to the amount Of what he should purchase, but must first resort to a suit, for the ascertainment of the co-partnership accounts, who would become a vendee ? It is a maxim, that jura adaptant ad ea quit frequentius accident. Partnerships are generally solvent, and the share of each partner adequate to the satisfaction of his debts. It is a sufficient guard to the partners, not debtors, to hold, that the apparent proportion of the joint property shall be presumed to be vested in each, until the state of their accounts render a precise ascertainment necessary. On this basis, sales by execution against one of the partners, have been placed. If the partners, other than the person for whose debt the joint property has been sold, on the fair adjustment of their accounts, or by reason of the insolvency of the copartnership, are entitled to the estate disposed of, chancery will, on their application, give them the requisite redress. Taylor v. Field, 4 Ves. jun. 396. It is said, that the sale, on an execution against one of the partners, levied on the joint property, may be stopped by injunction, until the accounts are adjusted, 1 Madd. Chan. 112. This principle is denied in Moody v. Paine & al. 2 Johns. Chan. Rep. 548. But, the decision of the point is entirely unnecessary. If such a remedy is admissible, it must be had on the bill of the partners who request the benefit of the injunction. In the case just cited, it is determined, that “ the interest of one partner in the partnership property, may be taken and sold under an execution at law, in a judgment against such partner, for his separate debt ; and equity will not stop such execution, or sale, by injunction, until the partnership accounts are taken and liquidated.” The reasons assigned are very convincing, and perfectly apposite to the doctrine I have advanced. The principle cannot go to stay executions at law, in every case against the partnership property of one partner, who owed separate debts, until the disclosure and liquidation of the concerns of the copartnership. This would produce inconceivable delay and embarrassment, in respect to separate creditors. If these creditors can sell only subject to the joint creditors, there is no harm in suffering them to go on at law j and if any sacrifice of the interest of the separate partner is made, by reason of the uncertainty, it affects only that partner, who does not here raise the objection.” Rejecting all theoretical speculations on subjects clearly settled, this is the result, as to the tangible property of a partnership. It may be sold, on execution against one of the partners for his individual debtj the ven-dee holds the share of that partner, subject to the claims of the others j and until the other partners, by their application, demonstrate what that share is, the vendee is prima fade owner of a proportion of the effects purchased, according to the number of the copartners.

The law relative to the attachment of debts, under the statute of foreign attachment, witli an exception, which, in no respect, varies the principle, is precisely analogous to that which relates to tangible property. In the first place, “ all t he goods or effects,” of an absent or absconding debtor, not accessible, may be attached, to the same extent as if they were tangible. The debts due to an absent or absconding debtor, are,by law,considered as effects in the bands of the persons from whom the same are due. 1 Stat. Conn. lit. 14. c. 1. s. 5. Now, if all the effects of an absent or absconding debtor may be attached, and if debts-are “ effects,” what part of a man’s debts is protected ? It is little better than trilling with the court, to say, that the debt due to the copartnership, was not the debt of Joseph Hart. It was his, in the same sense, that the tangible property of the copartnership was his.

The object of the legislature, in rendering debts attachable, it is not difficult to ascertain. It was to make all the property of a debtor who had absconded, liable to his creditors. Personal effects, separate debts, and joint debts, are put on the same footing, and for the self same reason. Private justice, and public policy, in a country where much property remains in .action, and many copartnerships exist, equally demand it. This point, as will appear from a case I shall hereafter cite, lías been decided in the Supreme Court of Errors.

The debts of a copartnership, for demands against one of the partners, are attachable, under the same limitation, and with the same consequences, as apply to tangible property. The presumption of law, in relation to the partner’s right to a proportional share of the debt, is precisely the same, as it is respecting visible estate. In the absence of proof, when there are three partners, each must be considered as entitled to a third. At the same time, the creditor must receive the money, subject to all the rights of the other partners. There is a difference in the mode of effectuating the judgment, between the case of tangible property, and of debts attached. In the latter instance, the creditor recovers a certain part o£the debt; and the joint property, is, of course, divided. This infers no difference in the principle, but adapts it to the subject, according to its nature, Indeed, a similar case in respect of tangible property, may exist. If a sum of money belonging to a partnership, were levied on for the debt of one of the partners, it would not be correct for the sheriff to appropriate the whole, but his proportional share, only, This separable property must be separated, and a part endorsed on the creditor’s execution. No difficulty arises from this source. It is more favourable to the partners not indebted, than the sale and delivery of joint property, inasmuch as it is more for their interest to have their proportion in hand, than to become tenants in common with a put-chaser. In Laight v. Tomlinson, 2 Root, 233. the .Supremo Court of Kr-rot s settled the point of controversy between the parties before us. They decided, that a proportion of debt which a person owed a copartnership, was recoverable against a garnishee, for the debt due to the creditor from one of the partners.

A joint debt due to several persons, which unquestionably is attachable for the debt of one of them, presents the same difficulty, supposed to exist in the principal case. The proportions of property are often unknown ; and a part oi the joint obligees may have entitled themselves to the entire debt. The attaching creditor, in such case, must receive the apparent share of his debtor, subject to the rights of the other obligees.

It has been said, that the copartners have a confidence in each other, but none in the creditor, who may be insolvent j and that there is a gross hardship in compelling the partners not indebted, to look to him for restitution, in any event. This argument proves too much, it is equally applicable to tangible property, the vendee of which may be a bankrupt, and dispose of the estate beyond all accessibility. In the warmth of argument, established law is forgotten, and exemption from all possible inconvenience, is demanded. A small evil must be submitted to, in the acquisition of a greater good. I, however, do not admit, that the balance of inconvenience is in favour of the defendants’ doctrine. The principles contended for, would, in effect, render joint property and joint effects, unattachable ; and eventually put it in the power of every person, by forming a partnership, to put all his property beyond the reach of his creditors.

The case cited from 6 Mass. Rep. 271. is no authority here. If correct, which I cannot admit, it probably is founded in the peculiar practice in that state, where there is no court of chancery. It may be considered a requisite guard to a co-partnership, where the redress of a court of equity cannot be had, after the sale, or appropriation of partnership property, for the debt of one of the partners.

The law, in relation to tangible property, and debts belonging to a copartnership, rests on the same ground. There is no more difficulty existing in one case, than in the other; and they are both attachable for the debt of one of the copart-ners. I have heard no argument, nor been able to supply one- from my own reflection, which makes any real difference between them. I must be fully persuaded, before I can concur in limiting a law so politic and beneficial, as that of foreign attachment.

I am of opinion, that the decision of the court, in the case before us, was entirely correct; and would not advise a new trial.

Chapman, J. was of the same opinion.

Teümbüm and Gould, Js. gave no opinion ; the former being related to one of the defendants, and the latter having been absent, on account of indisposition, when the case was argued.

New' trial to be granted.

       Tit. 14 c. 3 s. 5.


source: Caselaw Access Project

author: Swift, Ch. J.

license: Public Domain

text:
    Stanton against Button.
    '.niTS was an action of ejectment, tried at Norwich, January term 1818, before Swift, Ch. J. and Brainurd and Goddard, Js.
    The plaintiff claimed title by virtue of the levy of an execution, in his favour against Shapley Morgan, on the demanded premises. The defendant claimed as tenant under Seth Stoddard. To establish Stoddard’s title, the defendant offered in evidence a deed from Shapley Morgan to Stoddard, given before the levy of the plaintiff’s execution. To this deed there was a certificate, in the following words, via. t " New-London county, ss. Griswold, November 29th, 1815. Personally appeared Shapley Morgan, signer to the above and within written instrument, to be bis free act and deed, before me,

      Alexander Stewart, Justice of Peace.”
    The plaintiff objected to the admission of the deed in evidence, on the ground that the certificate of acknowledgment before justice Stewart, was informal, and did not conduce to prove that the deed was ever acknowledged by the grantor and that such acknowledgment must be proved, by the certificate only. The court excluded the deed $ and the plaintiff obtained a verdict. The defendant moved for a new trial, on the ground that the evidence offered was improperly rejected. This motion was reserved in the usual manner.

      A deed of land, without a proper certificate of the grant- or’s ac-knowledgment, is in. admissible as evidence of title. Where the certificate was— Personally appeared ¿1. IS signer of the above instrument, to be his free act and deed,before me,C.D. Justice of Peace ; it Was held, that these words imported no acknowledgment, and that the omission could not be supplied by intendment nr construction.

      Hartford,

    June, 1818.

      Brdinard, in support of the motion,
    contended, that the deed ought to have been admitted, 1. Because the certificate was evidence of an acknowledgment. Its object and meaning cannot be mistaken. The court w ill give it effect ut res magis valeat quam pereat. The omission of the w ord “ acknowledged” is evidently a mere clerical mistake. No other word —or rather, no word of a different import — can be supplied. In many instances, have courts, on the principle alluded to, given the intended effect to instruments, containing greater mistakes than the one in question. Bache & al. v. Proctor, Bougl. 382. 384. Spyve v. Topham, 3 East 115. Jackson d. Hardenburgh & al. v. Schoonmaker, 2 Johns. Rep. 230. 233. Bridge v. Wellington, 1 Mass. Rep. 210. Gatlin v. Ware, 9 Mass. Rep. 218. 220.
    2. Because the deed, without acknowledgement, wras good to pass the title, as between the grantor and grantee. 1 Stat. Conn. tit. 162. c. 1. s. 4. It was equally good as against a purchaser, or a subsequent levying creditor, having notice, Marshall v. Fisk, 6 Mass. Rep. 24. The fact, that the plaintiff in this case had notice, might be made out, by further evidence.
    3. Because the deed was, at any rate, evidence, as far as it went. The acknowledgment, admitting it to be necessary, might be proved by a separate w riting, or even by parol. If the evidence of acknowledgment, which the defendant offered, was not satisfactory to the court, it was no reason why they should reject the deed, which was in due form, and conduced to prove title.

    The counsel on the other side
    was stopped by the Court.
   Swift, Ch. J.

A court cannot, by intendment or construction, fill a blank, or supply a word. They can only decide on the meaning and import of the words made use of. Here the words madfe use of can only import, that the person appearing before the justice of the peace, was the signer ami sealer of the deed : they do not import that lie acknowledged it, nor are they equivalent to such word. The certificate, then, cannot be made to contain an acknowledgment of the deed, without supplying the word, or supposing the. blank to he filled with the word “ acknowledged.” As this cannot be done, the certificate was no evidence ; and the deed was properly rejected by the court.

I think, therefore, that anew trial ought not to be granted.

The other Judges were of the same opinion.

New trial not to be granted.


author: Swift, Ch. J. IIosmee, J.

text:
    Wetmore against Robinson :
    in error.
    THIS was an action of trespass vi et armis, alleging, that the plaintiff [Robinson] was the lawful owner and possessor of a farm of land situated in Lebanon, abutting about 100 rods on the main town-street, and containing about sixty acres ; which was, for many years, possessed by his father and brother, now deceased ; and that in the front of said farm of land, and nearer to the plaintiff’s land than to any other person’s, was situated a small natural pond of water ; that for a time whereof the memory of man runneth not to the contrary, the owners of said farm have enjoyed the privilege of said water in said pond, and also, when the same was dry, have used and enjoyed the privilege of taking manure out of said pond, which was well known to the defendant ; but that the defendant, intending to injure the plaintiff, did, at said Lebanon, on the SOth day of Jugusi 181ü, and at divers other times since, maliciously, w ith force and arms, injure the plaintiff in the uninterrupted enjoyment of the use and privilege of the water and manure of said pond, by throwing stones into said pond, and by endeavouring to cause said pond to be drained, and to prevent the accumulation of manure therein, — all with a set design to injure the plaintiff in his natural'right to the water ami manure of said pond, a necessary and valuable appurtenant to the usual enjoyment of said farm ; which doings of the defendant were against* the peace, and contrary to the plaintiff’s mind and will.

      Where the plaintiff declared, that he was the lawful owner and possessor of a farm, abut, ting on the highway, and that, in front of his farm, and nearer to his land than to any other person’s,was a pond of water, from which the owners of the farm liad immemorially enjoyed the privilege of taking water and manure; it was held, that this was not equivalent to an allegation that the plaintiff was . . . m posses-
    sion of the pond, or of such privilege. Trespass vi et armis will not lie for disturbance in the enjoyment of an incoi poresl rin-ht, but the proper remedy is an action on the case. ° *

      Hartford,

    June, 1818.
    The defendant pleaded JVhi guilty, on which issue war-, joined ; and the plaintiff obtained a verdict, with 10 dollars damages.
    The defendant then brought the present writ of error, assigning the insufficiency of the declaration.

      Brainard, for the plaintiff in error,
    contended that the declaration was insufficient, 1. Because it states no title in the locus in quo. The plaintiff says he owns a farm, and the pond is near it. He does not say, that he owns, or is possessed of, the pond. Indeed, by saying that it is in front of his farm, and near it, he excludes it from his own land. Nor does he shew, what he probably aimed at, an exclusive right in himself* by prescription, to the use of the pond. He only can prescribe, who is entitled to the inheritance. Baker & ux. v. Bre reman, Cro. Car. 4Í8. In perfect consistency with this declaration, the right, which the plaintiff means to claim, and which, he says, the former owners of his farm have enjoyed, may have been common to all the citizens of the state.
    2. Because this action is not the proper remedy j which is, either an action on the case for obstructing the plaintiff’s right j or a public prosecution. 3 Black. Comm. 219. Hubert v. Groves, 1 Esp, Rep. 148. Trespass will not lie, first, because the injury, if any, is consequential; secondly, because no possession is shewn. The gist of this action is an injury to the possession. 1 Chitt. Plead. 175, 6.
    3. Because it does not shew, that the defendant has done any injury to the plaintiff’s right. The defendant has, indeed, thrown stones?into the pond, and endeavoured to drain it; but ■non constat that the act of throwing stones did any hurt, or that the endeavour to drain succeeded.

      Goddard and I. Perkins, for the defendant in error,
    .admitted, that this action could not be sustained, without shewing an actual or constructive possession ; but contended, that such possession was, by necessary intendment, averred. The plaintiff avers, that he owned and was possessed of a certain farm, abutting on the highway ; and that in front of this farm, and nearer to it than to any other person’s land, was a pond— the locus in quo. This must necessarily have been in the highway, between the middle of the highway and the plaintiff’s farm $ a portion of land belonging to the plaintiff, for every purpose other than the public travel, as absolutely as his enclosed land. Peck v. Smith, 1 Conn. Jlep. 103. Besides, it is averred, that the pond was a necessary and valuable appurtenant of the plaintiff's farm ; and the possession of the farm carried with it the possession of the appurtenant.
    To shew that trespass vi et armis was the proper action in this case, they cited Wilson v. Mackrcth, 3 Burr, 1824. 5 Sac. Mr. S34. 336.

      Cleaveland, in reply,
    was stopped by the Court.
   Swift, Ch. J.

The question in this case, is, whether the declaration is sufficient.

It is contended by the plaintiff, that this is an action for an injury to an incorporeal right, to which he was entitled, by prescription. But there is no averment, that the plaintiff was possessed of such right. He only alleges a possession of a certain farm, in front of which there was a certain pond ; and that, from time immemorial, the owners of the farm had enjoyed certain'privileges of the water in the pond ; not that the plaintiff was possessed of such privilege, or that it was ever appurtenant to the farm. If the plaintiff, however, had stated an incorporeal right by prescription, he should have brought an action of trespass on the case, for the disturbance : for trespass vi et armis will not lie. To maintain this action, then, it is necessary, that the plaintiff should have alleged, that he was in possession of the place where the injury- is charged to have been committed. The plaintiff insists, that though the place is not set forth expressly, yet he has alleged, that he was in possession of a certain farm, bounded on the highway, in front of which, and nearer to his land than any other person’s,is a certain pond, where the injury complained of was done ; that as he is entitled to the highway, (excepting the public easement) in virtue of being the adjoining proprietor to it, this is equivalent to an allegation that he was in possession of the locus in quo. But he might have been in possession of his farm, and another might have been in possession of the highway ; so that this does nof amount to an allegation, tliat he was in possession of the place where the injury was done. Of course, the plaintiff is not entitled to recover in this action.

IIosmee, J.

The action brought by the plaintiff to redress the injury complained of, is trespass vi ct armis. The defend ant was summoned to answer “ in a plea of trespass and ihe casting the stones complained of into the pond, is laid to have been done « with force and arms,” and s< against the peace.” Whether the action ought to have been trespass vi et armis, or trespass on the case, is a question involving the merits of the plaintiff’s declaration. But, whether it is of one or the other species, depends not on the facts stated, but on the manner in which the suit is instituted.

It is clear beyond a question, that the facts alleged in the plaintiff’s declaration, do not sustain the action of trespass. The gist of this action is the immediate injury to the plaintiff’s possession. 1 Chitty’s Plead. 175. The intent with which the act was done, or whether the act was legal or illegal, forms no part of the criterion. Now, the plaintiff complains of no injury to his possession. He merely states an obstruction, by casting stones into a pond, which had been immemorially enjoyed by himself and those under whom he claims, for the procurement of water and manure, as he had been accustomed. The pond does not appear to be on his farm, or in his actual or constructive possession. If any suit is sustainable, it is trespass on the case. But, on this subject I express no opinion, as the point is not before the court.

The judgment complained of, in my judgment, is manifest-? ly erroneous.

The other Judges were of the same opinion.

Judgment reversed.


author: Swift, Ch. J. Gould, J.

text:
    Slocum against Sanford.
    Hartford,
    June, 1818.
    THIS was an action on a promissory note, brought by Elizabeth Slocum, as administratrix of John Slocum, deceased, against Peleg Sanford, the maker. The note was as follows : “ Portsmouth, June 21st, 1809. For value received, I promise to pay John Slocum, or order, the sum of one hundred dollars, on demand, with interest till paid $ as witness my hand. [Signed.] Peleg Sanford.”
    The cause was tried at Windham, January term 1818, before Swift, Ch. J. and Brainard and Goddard, Js.

      John Slocum, deceased, died in the town of Lebanon in this state, where he had lived several years, leaving there a large estate, of which the note in suit was a part. The plaintiff took out administration on bis estate, and caused this note to be duly inventoried. Afterwards, Oliver Slocum, of Portsmouth, in the county of Newport, and state of Rhode-Island, where John Slocum once lived, and where he had, at the time of his death, estate to the amount of about 500 dollars, took out administration, agreeably to the laws of Rhode-Island, and caused his estate to be represented insolvent, and commissioners to be appointed. The defendant, who, at the time of executing the note, lived, and ever since, has lived, in the town of Middletown in Rhode-Island, exhibited his account to these commissioners, and had it settled ; in the adjustment of which, this note was credited by the commissioners ; and thereupon, viz. on the 11th of October 1813, Oliver Slocum, as administrator of John Slocum, deceased, executed and delivered to the defendant a discharge from it.
    On these facts, the court charged the jury, that the plaintiff was by law entitled to recover j and a verdict was returned accordingly, for the amount of the note and interest. The defendant moved for a new trial, on the ground of a misdirection ; and the court reserved the motion.

      Lanman, in support of the motion,
    insisted that the note in question, being a negotiable instrument, was clearly a simple contract ; and that debts by simple contract follow the person of the debtor, and become effects of the deceased in that probate district or jurisdiction, within which the debtor resided at the time of the creditor’s death, Cnnsenuenilv, the discharge given by Oliver Slocum, the administrator in Ehode-Island, where the defendant lived, was valid j and the jury ought to have been directed to find for the defendant. 3 Hue, Mr. 37, 8. f Wils. edit.) Toller’s Law of Executors v r\ J 53. 1 Wins. Sauna. £74. n. (3).

      Negotiable notes, being-simple contracts, are effects of the deceased in the hands of the administrator within the jurisdiction of the probate court, within which the maker lived at the time of his creditor’s death; and a discharge, executed by such administrator, is valid.

      Cleuveland and Brainard, contra,
    contended that promissory notes, by the common law of this state, are specialties ; and the late statute making them negotiable, does not affect them, in this respect, especially while they remain in the hands of the original payee. Then it is well settled, that debts by specialty are bona notabilia of the deceased, in that diocese, or probate jurisdiction, where the securities happen to be at the time of his death, without regard to the place of their execution, or the domicil of either of the parties. Byron v. Byron, Cro. Elia. (47£.) 3 Dyer 305. a. in notis. 3 Bac. Mr. 37,8. (Wils. edit.) Toller 55. 1 Wms. Saund. 274. n. (3.)
   Swift, Ch. J.

By the common law, debts due by specialty, are esteemed to be the goods of the deceased, where the securities are, at the time of his death; but debts due by simple contract, follow the person of the debtor, and are esteemed the goods of the deceased where the debtor resides at the time of his death.

Promissory notes have every where been considered to * be simple contracts, except in this state, where they have been treated as specialties, and declared on as instruments. But as by statute, notes payable to order have been made negotiable, the consequence is, that notes of that description cease to be specialties, and are, by operation of law, placed on the footing of simple contracts; for when the statute declared them to be negotiable, according to the custom of merchants, it vested them with all the properties of negotiable securities. As a negotiable note, by statute, is now to be deemed a simple contract, it follows, that it will be the assets of the deceased promissee in the place where the debtor lives. The note iri question was negotiable j of course, it was assets in the hands of the administrator, in the state of Ehode-Island, where the debtor lived. Such administrator had a right to controul it, and his discharge is valid.

There can be no reason for the distinction between debts due by specialty, and by simple contract. They ought always to be deemed assets in the same place ; and the proper place would be, where the creditor died. If this question concerned this state only, I should not hesitate to adopt that rule. But as it is probable that the other states in the union will adopt the common law, and as different rules in adjoining states would lead to a clashing of jurisdiction, I think it. advisable to adopt the rule of the common law, for the sake of uniformity.

Inconveniences must arise from the practice not to admit executors or administrators in one state, to commence suits in another, and to require letters of administration to be taken out in every state, where assets are to be found. There may not only be different persons in different jurisdictions, settling, at the same time, the same estate ; but if done by the same person, he will be acting by different authorities ; and there is no where any general superintending power, to bring the whole estate together, for a final and proper settlement.

A constitutional provision ought to be made, enabling Congress to pass such general laws as might be necessary j or the several states, by compact, should empower the executor, or administrator, of all deceased persons, to commence suits, and collect the effects, in every state where debts or effects are found, and then to bring the whole into the probate court of the jurisdiction where such deceased persons last lived, for a fair and final adjustment of such estate, with this provision, that the effects, in every state, should be liable for all debts that might there be due from the deceased.

Gould, J.

What is principally important in the present question, is, that it be settled. Whether it be decided, the -one way, or the other, is not very material. But I consider the point, as already determined, by the authorities cited in support of the motion. As to the transmission, of personal chattels, by succession, distribution, or bequest, the rule is, that they have no locality but follow the law of the last domicil of the deceased owner. But with respect to the question of probate-jurisdiction, the cases establish this distinction : that debts by specialty, or judgment, have a temporary locality ; but that those, due by simple contract, have not. The former are regarded, as effects, only at (he place, where the securities are found, at the death of the creditor. Tine latter follow the person of the debtor, and are considered, as effects, in that jurisdiction, in which the debtor is, at that time, domiciled. This diversity, it has been said, is arbitrary. But with regard to distinctions, arising out of artificial rules, it is immaterial, whether any precise reason, founded in original principle, can be assigned for them, or not. In all cases, ita lex scripta est, is a sufficient reason, and in many, the best, that can be assigned. But in the present case, the reason of the distinction, probably is, that as specialties and judgments, from the solemnity which the law attaches to them, constitute, or create, the right of action, or interest to be administered, and are themselves things visible ; they are to be regarded, as specific chattels : but that writings of a less solemn nature — as notes, and other unsealed documents, which are only evidence oi parol contracts, cannot be so considered ; and therefore, that the debts, of which they are evidence, follow the person of the debtor, and are effects at the place of his domicil. And according to this distinction, the direction to the jury was wrong.

The other judges were of the same opinion.

New trial to be granted.


author: Swift, Ch. J. Gour/n, J.

text:
    Babcock against Hubbard and others.
    THIS was an action of assumpsit, alleging that the plaintiff, on the 28th of June 1808, at the request of Sally Hubbard, then Sally Phelps, a feme sole, Joseph D. Phelps, since deceased, Stiles Phelps and Jonathan Phelps, executors of the will of Charles Phelps, Esq., deceased, signed, with them, a bond to the judge of probate, for the faithful performance of their trust as executors, in consideration whereof, they promised the plaintiff, that they would, at all times, fully indemnify him j and that after the decease of Joseph D. Phelps, an action was brought, in the name of the judge of probate, on the bond, against the other executors and the plaintiff, as surviving obligors, and a recovery was obtained against them, before the superior court, in January 1815, for the sum of 4680 dollars, 25 cents, which the plaintiff was compelled to pay.

      ty, who has Executors who have given bond with surety to the judge of probate for the faithful performance of their trust, are jointly liable, as principals, to indemnify the sure-been subjected for the default of one of them.

      A., B., C. and !>., being joint executors, the three former signed a probate bond, which E., at the sole request of A., induced by a family connexion between him and A., and expecting to look to A. only for indemnity, signed as surety. Afterwards, 1). signed the bond as principal. Held, that this act was a recognition of E. as fí.’s surety, and was cquivalant to a request.

      Hartford,

    June, 1818.
    The cause was tried at Norwich, January term 1818, before Swift, Ch. J. and Brainard and Goddard, Js.
    On the trial, the plaintiff proved the execution of the bond, the recovery against the obligors, and the payment of the money by him, as alleged in the declaration ; and there rested his case. The defendants proved, that the plaintiff had said, that he signed the bond, at the sole ■request-of Joseph B. Phelps, whe was his brother-in-law, and ..hat lie should not have signed it, had it not been for this connexion j that be expected to be surety for him only, and that the other executors were to procure sureties for themselves ; that the name of Sally Phelps (now Mrs. Hubbard) was not then on the bond, and he had, at that time, no expectation that she was, in any event, to be responsiblé to him. The defendants also proved, that the breach of the bond, for which a recovery W'as had, was for the sole default and mismanagement of Stiles Phelps, one of the executors ; for which Mrs. Hubbard, had already paid a large sum. The court charged the jury, that these facts did not constitute a legal defence to the action 5 and directed them to return a verdict for the plaintiff; which they accordingly did. The defendants moved for a new trial, on the ground of a misdirection ; and the court reserved the motion.

      Baggett and Sherman, ⅛ support of the motion,
    contend-efl, 1. That the plaintiff’s evidence, considered separately, did not support the promise alleged in the declaration. The promise alleged, is a joint promise of the defendants to indemnify the plaintiff, in consideration of his having signed a probate bond, at their joint request. The proof was, not. of a special promise or request of any kind, but of such a promise and request, and such only, as the law implies from the plaintiff’s having signed a probate bond with the executors. But co-executors, as such, are not liable f ir the defaults of each other ,• each being liable only for bis ow n acts. Little-kales v. Gascoyn, S lira, Chan, Ca. 74. Toll. Exec. 430. S Bae. Mr. 31. (7»%. edit.) If Mrs. ITahbnrd is liable at all. it is not because she was co-executor with Stiles Phelps, who* wasted the estate, but because she signed the probate bond witli him. By this act, she became his surety ; and was, in this respect, upon the same footing with the plaintiff. If she, instead of the plaintiff, bad been compelled to pay the w hole money, she might have called on him, as well as upon her co-executors, for contribution. Her liability is that of a surety to a co-surety. Now, such a liability is always several, and not joint. This js a substantial variance. If a joint undertaking can be supported, Mrs. Hubbard may be compelled to pay the whole sum : if the undertaking is severalr she will only be liable to contribution.
    2. That the evidence adduced by the defendants Was sufficient to rebut the equity, from which the promise is supposed to arise 5 or it may be considered as a waiver of the promise. An express agreement by the plaintiff, at the time of signing, to look to Joseph 1). Phelps alone for indemnity, would unquestionably be binding. The court ought, at least, to have left his declarations to the jury, as evidence of an agreement to that effect.

      Cleaveland and Brainard, contra,
    contended, 1. That this was not an action between co-obligors, or co-sureties, but an action by the sureties against the obligors; and that the plaintiff was entitled, not to a contribution merely, but to a complete indemnity. The statute requires executors to give a bond with surety. All the executors are principals; all stand in that relation to the surety ; and all are liable accordingly. The plaintiff has been compelled to pay w hat all the defendants were bound to pay. The law impló s a promise by all, to reimburse this money to the plaintiff. Exalt v. Partridge ‡ al. 8 Term Rep. 310, 311. If any one of the principal obligors had paid the whole sum recovered for the breach of the bond, the plaintiff could never he called upon to contribute. Elmendorph v. Tappen ‡ al. 5 Johns. Rep. 176.

    2, That Mrs. Hubbard’s signing the bond, knowing that the plaintiff’s name was upon it as surety, was a recognition of him* as her surety ; and was tantamount to a reqmst from her, that he would become such. Long & al. v, Greene & al, 7 Mass. Rep. 2f8, Sec also Elmendorph v, Tappen & ah before cited.
   Swift, Ch. J.

It appears, that Sally Phelps, now Sally Hubbard, Joseph D. Phelps, deceased, Stiles Phelps and Jonathan Phelps, were co-executors of the will of Charles Phelps, deceased : and that Paul Babcock, the plaintiff, was surety for them in their bond to the judge of probate, for the faithful performance of their trust as executors j that the bond has been put in suit, and a recovery had of a large sum of money, which the plaintiff has been compelled to pay; and he brings this action to recover an indemnity.

Whenever one man becomes surety for another, for the payment of money, or the performance of any duty, the law implies a promise of indemnity ; and in this case, though the plaintiff might have signed the probate bond before Mrs. Hubbard, and though he might have relied on Joseph D* Phelps for indemnity; yet her subsequent act in executing the bond, knowing him to be the surety, was recognizing and adopting him to be her surety, and was equivalent to a request. When the plaintiff had been compelled to pay the judgment recovered against him and the defendants, for their default, he had an option, either to bring his action on the implied promise to indemnify, and shew the payment of the judgment, as a breach of promise; or to bring his action for the money paid on the execution, as money paid at their request.

It has been urged by the defendants, that it appears the rc-covery on the bond was for the default and mismanagement of Stiles Phelps ; that co-executors are not liable for a devastavit committed by each other; that by joining in the bond, they became merely sureties for each other, for their respective do-faults 5 and that, as co-sureties,they are liable only to a writ of contribution to pay their respective proportions, and cannot be liable in a joint action. Hut all the executors, by joining in the bond to the judge of probate, became jointly liable, for the default of each. They were co-obligors ; the plaintiff was surety for them all, and not co-surety : he has, therefore, an action against them, jointly, for indemnity.

Gour/n, J.

It is not denied, that a surety, at the time of becoming such, may waive all claim to indemnification, from any, or all, of his principals. Hut utdess he does so, the law raises a contract of indemnity in his favour, against all of 1 hem. Here, the defence, to make the utmost of it, is, only. that the plaintiff executed the bond, without any express previous request, by the defendant, Mrs. Hubbard ,* that he did not originally expect to resort to her, for Ids indemnification, as she was not, then, a party to the instrument; ami that the breach of the condition, for which he has been subjected, w as occasioned, not by her, but solely by her co-executor, Stiles Phelps. But these facts furnish no-legal answer to the plaintiff’s demand* An actual request, by her, was certainly not necessary, to constitute the plaintiff her surety. The law required her to have one ; and by becoming herself a party to the bond, as principal, she recognized and accepted Mm, in the character of surety, for herself : or, rather, from the relation, in which the plaintiff stood to the principals in the bond, he became, by necessary legal operation, surety, as well for her, as for her co-executors. And if she only had been in default, he would, unquestionably, have been liable for it.

What is meant, by the plaintiff’s not originally expecting to be indemnified, by the defendant, Mrs. Hubbard, is explained by the evidence, which states his acknowledgment of the fact. He did not, at the time, reflect, or did not know, that she wras to become a party to the same bond. But there is nothing in that acknowledgment, from which it can possibly be inferred, that he intended to decline his legal claim to indemnification, against any of those, to whom his joining in the bond would place him in the actual relation of surety. And Mrs. Hubbard, by afterwards executing the same bond, as a principal, established the relation of principal and surety, between herself and him. The case is similar, in principle, to that of l.’s becoming surety for a mercantile house, in which B. is a dormant partner — -in which case, it cannot be doubted, that B. would stand in the relation of a principal to ⅛3., and be, of course, a party to the implied contract of indemnity.

But it is urged, that, as the defendant, Mrs. Hubbard, has been personally guilty of no misconduct, or default, as exec-uirix : she is not bound to indemnify the plaintiff: for it is id. Cmt when one executor is liable, upon a probate bond, \hr fh’faults of Ms co-cxecutors, his liability is only that r?' :t sweiy or guarantee; and that Mrs. Hubbard is, tlicrc-iore, so far as regards the ueiault oi Stiles Phelps, but a co-surety with the plaintiff. If this were so, she would be bound, it is true, only to contribute a proportion of the amount, which the plaintiff has been compelled to pay, instead of being liable, as a principal, to reimburse the whole. But the conclusion is incorrect: for though the liability of each u of the executors, as parties to the bond, may, as between themselves, resemble that of a surety, for his principals ; yet, as regards the plaintiff, who is, to every intent, a mere surety, they must clearly be considered, as joint principals. For principals in an obligation, as distinguished from sureties, are those of the obligors, the performance of whose duty the obligation is given to secure. In this view of the subject, Mrs. Hubbard is to be regarded, for the purpose of the present question, as one of several joint debtors; as against whom, in favour of a surety, the default of one, is the default of all — as the request of one, in procuring a surety, is the request of all. There is, therefore, no foundation for the defence.

The other Judges were of the same opinion.

New trial not to he granted.