source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    *Waterman Palmer v. Richard H. Dodge.
    S, & P., partners in trade, during the continuance of the partnership, became indebted to a third person for money borrowed, for which a promissory note was given in the name of the firm. After the dissolution of the partnership, and at the maturity of the note, S., in the name of the firm, executed a new note to the creditor, payable at a future day, with D. as surety, and which D. was ultimately compelled to pay. Held—
    1. That the dissolution of the partnership worked an absolute revocation of all implied authority in either of the partners to bind the other to new engagements, contracts, or promises, made to or with persons having notice of the dissolution, although springing out of, or founded upon, the indebtedness of the firm.
    2. That no such power could be inferred, from an authority given by one partner to the other, to settle, liquidate, and close up the affairs of the partnership.
    .3. That such liquidating partner had no power to extend the time for payment of the obligations of the firm, to increase their amount, or to obligate the -firm to persons to whom it was not bound at the dissolution; and, therefore, ■that P. was not bound by the note given by S. after the dissolution, nor •obligated to indemnify D. against the consequences of becoming security ■upon it.
    Error to the district court for 'Washington county.
    The action in the original cause was one of assumpsit.
    The bill of exceptions shows the following facts: In the year 1836, ithe (then) defendant, Palmer, and one Elijah Short entered into ■partnership in the business of buying and selling merchandise and ¡produce at Lowell, Washington county, Ohio, and the business was managed exclusively by Short, Palmer being a resident of the State ■of Pennsylvania. The firm continued to do business, a part of the time under the name of E. Short & Co., and the other part under 'the ’ name of E. Short, until the month of June, 1841, when, by ¡mutual consent, it was dissolved, and the following notice published in the Marietta Intelligencer, to wit:
    * “ NOTICE.
    “The copartnership heretofore existing between the undersigned, .under the firm of E. Short & Co., and E. Short, at Lowell, Washdngton county, Ohio, is this day dissolved by mutual consent.
    “The remaining unsettled business of the firm will be adjusted by E. Short, who is hereby authorized to close all business trans* actions of the late firm.
    “ E. Short,
    “Dowell, June 28, 1841. W. Palmer.”
    Dodge, who instituted this suit in the court below, was a subscriber to this newspaper.
    At the time of the dissolution, one Sally Dana held the promissory note of the firm of E. Short & Co., for a sum of money lent by her to the firm, which fell due some months afterward. On the day when the note came to maturity — viz., April 15, 1842 — Short, in the name of the late firm of E. Short & Co., with the said R. H. Dodge as surety, executed a new note to Mrs. Dana for principal and ten per cent, interest, due at twelve months. The agent of Mrs. Dana, who attended to the taking of this note for her, knew that the firm was dissolved. At the maturity of this last note, it was again renewed for a year, at the same rate of interest, by Short, in the name of the late firm of E. Short & Co., and with Dodge as security. In April, A. d. 1846, Short died, leaving the last-mentioned note due and unpaid ; and the same, with legal interest, was paid off by Dodge in the following month of June. He then brought this action of assumpsit against Palmer, the surviving partner, to recover from him the amount thus paid to Mrs. Dana.
    On these facts the counsel for Palmer requested the court to charge the jury that E. Short, after the dissolution, had no authority to give said note to a person having knowledge of the dissolution, so as to bind the late firm of E. Short & Co.; and that said Dodge, having gone security on the note given after the dissolution, and with notice of it, had no right to recover from Palmer the money paid by him in discharge of the note.
    The court refused to give these instructions, but charged the *jury, that Short, after the dissolution, could not give a note in the name of the firm so as to bind his copartner thereby; but if Short, in the performance of his agency in settling up the business of the firm, thought it necessary for the interests of the firm to renew the note, and in good faith obtained Dodge as security for that purpose, he (Dodge) might recover from Palmer the amount originally loaned to the firm, with six per cent, interest thereon.
    The jury having found a verdict, and judgment being given thereon for plaintiff, this writ is sued out to reverse that judgment.

      S. F. Vinton, for plaintiff in error, made the following points id argument:
    I. After dissolution, a partner of the firm can not make a note (be the consideration what it may), which shall bind the other members, without express authority from them so to do.
    II. Whether the proposition just stated be.sound or not, the advertisement in question gave to Short no authority to execute a note for or in the name of the firm.
    Considering these propositions together, he cited:
    2 Bell’s Com. 643, 644; Collyer on Part., sec. 541; 3 Kent (5 ed.), 63; Story’s Part., sec. 322; Abel v. Sutton, 3 Esp. 110; Pindar v. Wilkes, 1 Marsh. 248; S. C., 5 Taunt. 612; Kilgour v. Finlyson, 1 H. Black. 155; Hackley v. Patrick and Hastie, 3 Johns. 536; Martin v. Walton & Co., 1 McCord, 16; Sanford v. Nickles, 4 Johns. 227; National Bank v. Norton and others, 1 Hill, 572; Parker v. McComber, 18 Pick. 509; Perrin v, Keene, 19 Maine, 357; Story on Part., sec. 328; Bell v. Morrison, 1 Pet. 370; White v. Union Ins. Co., 1 Nott & McCord, 561; Bowman v. Blodgett, 2 Met. 308; Tom v. Goodrich, 2 Johns. 213; Arnold v. Camp, 12 Ib. 409; Waugh v. Caniger, 1 Yerger, 31; Evans v. Drummond, 4 Esp. 93; Ostrand v. Jacob, 9 Met. 454; Springer v. Shirley, 11 Maine, 204; Thompson v. Percival, 5 Barn. & Adol. 925; Collyer on Part., see. 561.
    *He also cited Darling v. Marsh, 22 Maine, 184; secs. 546, 540, 199, 121, 118, of Collyer on Part.
    He stated the following conclusions:
    1. That Short had no authority to sign the name of the firm to the note in question.
    2. That the note did not bind either the firm or Palmer, but, as against both, was void.
    3. That the acceptance by Mrs. Dana of the new note, after dissolution, was a discharge of the old debt.
    4. That there was no privity between. Dodge and the firm, or between Dodge and Palmer.
    5. That the note in question was the individual note of Short and Dodge.
    6. That as between themselves they sustained the relation of principal and surety;
    7. That Dodge must look to the estate of Short (his principal) for indemnity, and can not look elsewhere.

      8. That the payment of the note to Mrs. Dana did not inure to the benefit of the firm, the firm having been previously discharged from her claim.
    9. Consequently, no assumpsit for money had and received to the use of the firm can be implied against the firm or against Palmer, in favor of Dodge.

      Arius Nye and William S. Wye, on the same side:
    The rule that, after a dissolution, none of the partners can create any new contracts or obligations, binding upon the firm, is well settled. Story on Part. 458, 459; Gow on Part., ch. 5, sec. 2; 1 Collyer, ch. 2, see. 3; 3 Kent, 63; 1 McMullan, 209; 1 App. 355; Whitehead v. Bank of Pittsburg, 2 Watts & Serg. 172; Martin v. Kirk, 2 Humph. 529; Brewster v. Hardman, Dudley, 138.

      Goddard, Whittlesey & Towne, for defendant in error:
    I. It does not appear from the bill of exceptions that Dodge had notice of the dissolution. Whether he had or not, was a question of fact for the jury. The jury found a verdict for Dodge.
    *The bill of exceptions does not show whether Dodge was a customer of the firm, or a stranger to it. No inference can be drawn favorable to the plaintiff in error from this omission, and we must assume that he was a customer and was entitled to actual notice of the dissolution. The plaintiff in error attempts to prove this. He gave in evidence the newspaper in which the notiee of dissolution appeared, and proved that Dodge was a- subscriber to it. Competent evidence, undoubtedly, but not sufficient; and so the jury found. The sufficiency of a newspaper notice may be questioned, “unless it is shown that the party entitled to notice was in in the habit of reading the paper.” 3 Kent’s Com., 7 ed. 79.
    ' “ The doctrine seems to be that merely taking a newspaper in which a notice is contained, is not sufficient to charge a party, for it is not to be intended that he reads the contents of all the notices in the newspapers which he may chance to take.” Ib. 80, note, citing several American cases.
    The above passage from Chancellor Kent is cited with approbation in Mr. Perkins’ very valuable edition of Collyer on Partnership, ed. 1853, sec. 533, note 2.
    II. If a partnership should expire the day before a note fell due, and one partner, in good faith, should borrow money to take it up, the other partner would be liable. The common doctrine of subrogation would put him in the place of the creditor, with a demand against both partners.
    III. The following cases from Pennsylvania fully establish this position:
    There can be no difference between a person lending money tc take up a note, and one becoming security upon a new note.
    To say that there is no privity between the security and the retired partner, is simply begging the question. During the continuance of the partnership, the. authority of one partner to borrow money for the legitimate use of the firm, is undoubted. There is no actual privity between the lender and the other partner whom he never saw * . Davis v. Desauque, 5 Wharton, 531; Houser v. Irvine, 3 Watts & Serg. 347; Brown v. Clark (approving these cases), 14 Penn. St. (2 Harris), 475.
   Ranney, J.

Short and Palmer were partners in business, from 1836, to June 28,1841. During the existence of the partnership, the firm borrowed money of one Sally Dana, for which a promissory note was given, and several times renewed, and which remained unpaid, at the time the partnership was dissolved. After the dissolution, and on April 15, 1842, Short, in. the name of E. Short & Co., with the defendant in error as surety, executed a new note to Mrs. Dana, for the principal and interest then due, payable in one year. It was proved that the agent of Mrs. Dana who took this note, knew the partnership was dissolved; and it was further shown that Dodge took the newspaper in which the notice of dissolution was published. This note was once renewed by the same parties, and subsequently, and after the death of Short, was paid off by the surety, Dodge, who brought this action to recover the amount of Palmer, as so much money paid for the use of the firm.

On these facts the counsel for Palmer requested the court to charge the jury, that E. Short, after the dissolution, had no authority to give said notes to a person having knowledge of th'e dissolution, so as to bind the late firm of E. Short & Co.; and the said Dodge, having gone security on the note given after the dissolution, and with notice of it, had no right to recover from Palmer the money paid by him in discharge of the note.

The court refused to give these instructions, but charged the jury that Short, after the dissolution, could not give a note in the name of the firm so as to bind his copartner thereby; but if Short, in the performance of his agency in settling np the business of the firm, thought it necessary for the interests of the firm to renew the note, and in good faith obtained Dodge as security for that purpose, he (Dodge) might recover from Palmer *the amount originally loaned to the firm, with six per cent, interest thereon.

As no claim is made that Palmer came under any direct engagements to Dodge, or that he ever authorized Short to execute this particular note, or afterward recognized or ratified his act, it is evident the case must depend upon the authority retained by Short, as a member of the dissolved partnership, or upon that specially derived from the-agreement of dissolution. We have carefully considered the case in both these aspects, and can see no sufficient reason why the instruction asked for should have been refused. Indeed, it seems quite impossible to justify the refusal, or support the charge as given, consistently with well-established and salutary principles, applicable to the law of partnerships.

During the continuance of the partnership, each member has the undoubted right to bind his associates to the performance of every contract he may make in the name of the firm, within the limits allowed by the articles of association ; and they are equally bound to third persons, having no notice of any special limitation of his power, upon all contracts within the scope and objects of the partnership, although he may have overstepped such limitations. In such cases, the contracting partner acts for himself, and as the authorized agent of his copartners. His authority, it is true, need not necessarily arise from the express terms of the partnership agreement, but the law implies it from the community of interest and joint object for which the association is formed; and, as it is ordinarily necessary to the attainment of its ends, reasonably infers the power of each to act for all, as within the understanding and contemplation of the parties. They are supposed to have reposed this confidence in each other, and however much it may be abused, in behalf of innocent third persons, the conclusive answer is, that the loss must fall upon those who have given the ability to do the wrong.

This capacity continues as long as the joint operations of the *firm endure, and contracts are necessary to accomplish its purposes. Eor the protection of third persons, it may continue longer. As the period of its dissolution, by the agreement of the parties, may only be known to themselves, the law exacts, not only that they should hold themselves out no longer as operating jointly, but that they use reasonable diligence to advise others of the termina tion of their previous connection. As to those who have previously dealt with the firm, the notice must be actual; as to others, public notice in some newspaper circulating in the neighborhood is suffi cient, if even that is required.

In such cases, the other partners are charged for their negligence in omitting to perform a duty which the law requires at their hands, intended to protect third persons against the unauthorized acts of their associates. But where no question of notice intervenes, the dissolution works an absolute and unqualified revocation of all power and authority in either of the partners to bind the others to any new engagement, contract,,or promise. In the language of Judge Story (Story on Part., sec. 322): “None of the partners can create any new contracts or obligations binding upon the partnership ; none of them can buy or sell, or pledge goods on account thereof; none of them can indorse or transfer the partnership securities to third persons, or in any other way make their acts the acts of the partnership. In short, none of them can do any act, or make any disposition of the partnership property or funds, in any manner inconsistent with the primary duty, now incumbent on all of them, of winding up the whole concerns of the partnership..”

As the dissolution finds the engagements of the company, they must remain until liquidated and paid, unless all the partners consent to come under new engagements or otherwise change their character. But while the law thus effectually revokes the implied authority of each partner to incur new obligations for his fellows, it leaves upon each of them the duty, and continues to each the right, of doing whatever is necessary to collect the *debts due to the partnership, and to adjust, settle, and pay its debts. “ For (as stated by the same author) all these acts, if done bona fide, are for the advancement and consummation of the great objects and duties of the partners upon the dissolution, to wind up the whole partnership concern and divide the surplus, if any, among them, after all debts and charges are extinguished.”

This right of each of the partners to participate in the settlement of its concerns, can not be interfered with by his copartners, without subjecting them to the controlling power of a court of equity; but it of be himself, or lie may, if he sees fit, invest them with more extended authority than the law will imply in their behalf.

Appended to the notice of dissolution signed by the partners, and published in this case, is this clause: “The remaining urn settled business of the firm will be adjusted by E. Short, who is hereby authorized to close all business transactions of the late firm.” This notice is good evidence of the agreement of the parties, and conclusive in favor of third persons who have dealt with Short, relying upon it. But no one could or had a right to understand it as authorizing Short to do more than to adjust and settle the unfinished business, and close up the transactions of the firm. This power he had without the agreement; it added nothing to the authority which the law gave, and took nothing from it. 'Without the agreement, Palmer would have had equal authority, and the utmost effect that can be given to the stipulation, would be to consider it as a surrender of the right by him, and as having invested Short alone with the power before possessed by both.

There is not a word in it to indicate an intention to confer upon him the authority to create new obligations. He is, therefore, remitted to his power as a partner, and considered in that light, it is very clear, he possessed no such authority. The elementary books and adjudged cases speak an almost uniform language upon the subject.

*In Bell’s Commentaries (2 vol. 644), it is said: “After dissolution, no valid draft, acceptance, or indorsation can be made by the firm; and it is no authority to do so; if any one partner is, in the notice, empowered to receive and pay the debts of the company. The indorsation, draft, or acceptance must be done by all the partners, or by one specially empowered, so to act for them.” And he confines the power to u acts of administration which are necessary for winding up the concern.” 1

Collyer on Partnership, in section 541,. says: Where a bona fide dissolution has taken place, the retiring partners are not to be bound by instruments negotiated in the name of the original firm after such dissolution, even though they are negotiated by a partner authorized to settle the partnership concerns.” To the same effect, see 3 Kent’s Com. (5 ed.) 63; Story on Part., see. 322.

In England, Abel v. Sutton, 3 Esp. 110, is the leading case, and has been uniformly followed ever since.

In that case, a promissory note due to the firm at the time of dissolution, was afterward indorsed in the name of the firm by a partner who had authority to settle and liquidate the partnership effects, of which notice had been given in the Gazette; suit was brought by the indorsee to charge all the members of the firm as indorsers of the note.

For the plaintiff, it was insisted:

1. That if the note existed before the dissolution, a partner having authority to settle and liquidate the partnership accounts, had a right to put the partnership name upon it, and that a bona fide holder might resort to all the partners.

2. That if the indorsing partner raised money by sale of the note, and applied it in payment of the partnership debts, it was money had and received to the use of the partners, and all would be liable.

Lord Kenyon most emphatically denied both of these propositions, and held that a recovery could not be had on the indorsement, *or on the money counts, against any but the indorsing partner. He says: “ To contend that this liability to be bound by the acts of his partner, extends to time subsequent to the dissolution, is, in my mind, a most monstrous proposition. A man, in that case, can never know when he is to be at peace, and retired from all concerns of the partnership.”

In that country, from that day to this, there has been a constant and most decided leaning against giving effect to new contracts, notes, or other instruments made by a partner for the firm after dissolution, as will be seen by the cases of Pindar v. Wilkes, 1 Marshall, 248; same case, 5 Taunt. 612; Kilgour v. Finlyson, 1 H. Black. 155.

One of the earliest American cases is that of Hackley v. Patrick and Hastie, 3 Johns. 536. Patrick and Hastie were partners in trade; they dissolved their partnership, and made publication of their dissolution. The advertisement requested all persons having any unsettled business with the firm, to call on Hastie for adjustment of the same.

Two years afterward, the plaintiffs exhibited an account against the firm, on which Hastie indorsed for the firm an acknowledgment that it was due. Suit was brought on this account against Patrick and Hastie, and the question was, whether the acknowledgment was sufficient to charge the defendant, Patrick? The court said: “It was a clear case, that Hastie could no more bind his copartner by this acknowledgment, than he could do it by giving a promissory note in the name of the firm.”

Martin v. Walton & Co., 1 McCord, 16, is another American case of early date. In that case, the firm of Walton & Co. had been dissolved, and notice given by advertisement that Walton, one of the partners, was authorized to settle the concerns of the partnership. At the time of the dissolution of the firm, it was indebted, by note, to the plaintiff. After the dissolution, the note then in question was given by Walton, in the name of the firm, as a renewal note., and the question was, whether this note was ^binding on the other partners. The court said : “ There is no doubt, that if the note was given after the dissolution of the partnership, and the plaintiff had notice of it, the firm are not bound. An authority to one of a copartnership to settle the affairs, receive and pay the debts, does not warrant him to draw a bill or give a promissory note in the partnership name.”

In Sanford v. Nickles, 4 Johns. 227, the disability of a partner after dissolution to indorse bills given before the dissolution, even if he had authority to settle the partnership affairs, is held to be settled law.

This question again came up at a much later period, and'was elaborately considered by the Supreme Court of New York, in the case of the National Bank v. Norton and others, 1 Hill, 572.

That was an action of assumpsit against the defendants, as makers and indorsers of a promissory note. The note was dated in January, 1840, and purported to have been indorsed by Seaman and Norton as first indorsers, and by Henry J. Seaman as second indorser. Seaman & Norton was the name of a former firm, composed of Henry J. Seaman and the defendant, Norton. Both indorsements were in the handwriting of Seaman. The firm was dissolved in 1837, and notice of the dissolution was then published. The advertisement was in these words, viz:

“ The copartnership heretofore existing between the subscribers, under the firm of Seaman & Norton, is this day dissolved by mutual consent. The business of the firm will be settled by Henry J. Seaman, who is duly authorized to sign the name of the firm for that purpose.”

A short time prior to the dissolution, the National Bank had discounted for the firm of Seaman & Norton, a note drawn by the same makers with the one then in question, and indorsed by the firm. That note was held by the bank when the dissolution took place. It had been renewed from time to time by the same parties, and the note then in question was given, by way of *renewal, for the balance then remaining due on the loan. The question was, whether the partner, Norton, was liable?

The court, in the first place, lay down and enforce the doctrine as settled law, that one partner, after dissolution, can not bind the others even by the renewal of a partnership note. They then proceed to say: “ The note in question, a renewal note, which had been running in bank before the dissolution, was-renewed by Seaman, one of the partners, afterward. It was, of course, void in respect to Norton, his copartner, unless a power of renewal was expressly delegated at the time of the dissolution. The plaintiffs claim that such power was delegated, and base themselves on the clause in the advertisement of dissolution, declaring that the business of the firm was to be settled with Seaman, who was authorized to sign the name of the firm for that purpose. This was no more than a power to liquidate partnership demands, and sanction the liquidation by the firm name. It gave no more power to renew the old note, than to give one payable in chattels.”

The court review and comment upon the above-mentioned cases of Abel v. Sutton, 3 Esp. 110; Martin v. Walton, 1 McCord, 16; and Hackley v. Patrick & Hastie, 3 Johns. 536 — all three of which, they say, were in point. In respect to them they use this language:

These were all cases of express authority to settle after dissolution ; yet the first holds, that the power did not extend to indorsing a partnership note even in liquidation of a partnership debt. In the second, it was denied to be a power of renewal; and in the third, a power of adjustment was denied to operate as an authority to sign an account stated. In the case at bar, an express power to use the name is given ; but it is confined to the purposes of adjustment (settlement).. The words did not work an extension of power in any respect beyond the form of doing the business.”

.The same question came before the Supreme Court of Massachasetts *in the case of Parker v. McComber, 18 Pick. 509. There a firm, consisting of three partners, was dissolved; two of them were authorized to collect the debts and settle the business of the partnership. They indorsed a note due to the firm at the time it was dissolved. The question was, whether the other part ner was liable as indorser of the note.

For the plaintiff, it was insisted that the authority given to the two other partners raised the inference, that it was intended to give them power to negotiate the note then in question. The court said in reply: “We can not perceive the correctness of this inference. Were it sound, each partner must be presumed to know of all the negotiable bills and drafts due to the firm and unindorsed at the time of the dissolution. He must be presumed to have intended to give authority to negotiate them in the name of the firm-But if this were so, the general rule of law would be, that an authority to settle the business would be of course an authority to indorse negotiable securities; but the general rule is clearly the other way.”

This question arose also in the State of Maine in the case of Perrin v. Keene, 19 Maine, 357. There one Weston, a partner having authority to dose up and settle the affairs of a partnership, settled an outstanding account and gave three notes of the firm for the debt, which was divided into installments. Keene, who was a member of the dissolved firm, resisted payment. The court said: “ Weston had no right to sign the notes in suit in the name of the firm,, unless he derived it from the authority given to him to settle and adjust the copartnership business. This does not give him any power to make new contracts, or to create new liabilities binding on the firm. No such power can be derived from the agreement that Weston should settle and, dose up the business of the firm. The notes, then, were made and delivered without authority, and are not valid against the firm.”

And the same doctrine is most explicitly declared in Darling v. Marsh, 22 Maine, 184.

*And finally, the Supreme Court of the United States, in Bell v. Morrison, 1 Pet. 351, [35 after a very elaborate examinaton of the subject, thus announce the result: “The light in which we are disposed to consider this question is, that after a dissolution of a partnership, no partner can create a cause of action against the other partners, except by a new authority communicated to him for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action; whether it be a supposed preexisting debt of the partnership, or any auxiliary consideration ■which might prove beneficial to them. Unless adopted by them, they are not bound by it.”

Further illustrations of the doctrine may be found in Mitchell v. Ostram, 2 Hill, 520; Root v. Wellford, 4 Munf. 215; Fisher v. Tucker, 1 McCord’s Ch. 172; Neal v. Hassen, 3 McCord, 278; Foultz v. Paine, 2 Dessaus. 40; Marvin v. Kirk, 2 Humph. 529.

In opposition to this prevailing current of authority, we are referred to three cases decided by the Supreme Court of Pennsylvania: Davis v. Desauque, 5 Wharton, 531; Houser v. Irvine, 3 Watts & Serg. 347; and Brown v. Clark, 14 Penn. St. 475. In the first of these cases, it seems to have been held, that a partner authorized to close up the affairs of a dissolved partnership, might renew a note drawn by the firm, or even borrow money on the credit of the firm to pay its debts; which,' if but bona fide, and faithfully applied, would create a valid claim against the other members of the firm, although the creditor had knowledge of the dissolution. It may well be doubted whether the court intended, in the two latter cases, to press the doctrine so far, dr to approve of all that is said in that case. Ch. J. Gibson, in Houser v. Irvine, seems to consider what he calls the ruling, principle of that case to have been an affirmance of the authority of the partner to renew the evidences of the firm’s indebtedness; and he admits that, “ by the dissolution of the partnership,’ the power which each had to bind the other is at *an end, except • • • to finish what remains to be done in order to close its concerns.” Even to this extent it would find little or no support in judicial opinion out of that state, although it might not be deemed a very wide departure from principle when the obligations of the firm were not materially changed.

The case called for an application of the doctrine which allows the acts and acknowledgments of one of the partners, after the dissolution, to take a contract of the firm out of the operation of the statute of limitations. This doctrine, originating, as Judge Story says, in an unreasoned decision of Lord Mansfield, in Whitcomb v. Whiting, Doug. 652, in which his lordship “dryly and briefly” said: “ Payment by one is payment for all, the one acting virtually as the agent for the rest; and in the same manner an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due,” has been very generally repudiated in this country, and so far as I am advised, uniformly by the courts of this state. But the very ground upon which this controversy has proceeded, affords indubitable evidence of the general acquiescence in the principle which denies the power of one partner to bind the firm to new engagements; those who support the doctrine insisting that the acknowledgment is a mere continuation of the original promise, and those who oppose it, regarding it as a new contract or promise springing out of, and supported by, the original consideration.

We see nothing to relieve this case from the operation of this settled principle. If we admit the power to renew the obligations of the firm without increasing or materially changing its liabilities, or the right of the unpaid creditor of the firm to resort to his original obligation, it does not help the defendant. The note to which he was a party was, in substance and legal effect, widely variant from that for which it was taken. It had different parties, a larger amount upon interest, and a distant day for payment. Short could effect none of these changes for the firm ^without a new authority. It was his duty to close up and settle the partnership liabilities, and not to prolong them by new credits; to deal with the existing creditors of the firm, and not to make others; to discharge its existing indebtedness, and not to add to it.

But the creditor of the firm has been fully paid; and how has Dodge become its creditor now? He surely could not make himself such without the assent or request of all its members. He does not claim that Palmer ever personally requessed him to assume or pay any of its liabilities; and Short had no power to create the relation of debtor and creditor between him and Palmer. He became the surety upon a note which bound Short alone, at the request of Short, and is therefore the surety of Short, and must look to him alone for indemnity.

He stands in no better condition, certainly, than the plaintiff did in the case of Bowman v. Blodget, 2 Met. 308, who, in a suit against both the partners of a dissolved partnership, for a partnership debt, became the bail of one of them, and was obliged to pay the debt, and in which the court held that he could recover no part of the amount from the other partner.

We should find no difficulty in holding that the proof of the dissolution was sufficient to charge Dodge, in the absence of any proof, on his part, to show that he had dealings with the firm before its dissolution. But this question is wholly immaterial, as the court, in effect, took it from the jury, and charged that Dodge would be entitled to recover, notwithstanding he had notice, if Short, in good faith, thought it necessary to renew the note, and procured him to become security on it. In this we think they erred; and the judgment, so far as the amount of this note entered into it, must be reversed.


text:
    Lessee of Thompson’s Heirs v. George Green.
    An action of ejectment, on the demise of husband and wife, to recover possession of the wife’s lands, is barred by an adverse occupancy of the lands for more than twenty-one years before the commencement of the suit.
    The husband having a freehold in the lands, with the present right of exclusive' enjoyment, and the wife or her heirs only the reversion, the former has the only right of entry.
    *Iftke exclusive right of possession which before belonged to thehusband, be lost by him through the adverse possession of a third person, the wife’s right of entry, which before was postponed to the termination of the coverture, can not now accrue at an earlier period; and, until it does accrue, no-action of ejectment can be maintained, predicated upon her interest in the-land.

      The whole object and purpose of the statute of limitations are accomplished, when it is made to save to the wife such rights as she has in the lands, and when it gives her, at all times, remedies adapted to the redress of any injury she may sustain. .
    This is done by affording her, while her estate is in reversion, reversionary remedies, and, when her right of entry arises, the possessory remedy by ejectment.
    Ejectment. Reserved in Licking county.
    The facts appear in the following agreed statement:
    “ It is agreed by the parties to submit the trial of the issues, joined in this case, to the court, on the following agreed statement •of facts:
    “ First. It is agreed that the plaintiff has no complete paper title.
    “ Second. That as to all of the lessors of the plaintiff, except John :Smith and Rhoda his wife, the defendants, by reason of their continued possession for more than twenty-one years before the commencement of this suit, are entitled to recover, and that the plaintiff, except as to the said Smith and wife, is not entitled to recover.
    “ Third. As to said John Smith and wife, it is agreed that their title to said lands is in right of the said Rhoda, and that, at the time their right of action accrued against the defendant, she was the wife of the said Smith, and at all times since has been and still is his wife, and that more than twenty-one years has elapsed since the right of action accrued in behalf of said John Smith and Rhoda Smith against the defendant.
    “ Fourth. It is also agreed, that if the court are of opinion on the .above statement of facts, that the said John Smith and wife, *as lessors of the plaintiff, are not entitled to recover, judgment shall be rendered in favor of the defendant. But, if the court shall be of opinion that the said John Smith and wife, as such lessors, are, ■on said statement of facts, entitled to recover, judgment shall be rendered on that count of the declaration, founded on the demise of said Smith and wife, for one undivided sixth part of the lands in .said count described. June 16, 185S.”

      Smythe & Sprague, for plaintiff.

      Follett & Hunter, for defendant.

      Smythe & Sprague, for plaintiff, made the following points:
    Where parties jointly interested can enforce their rights separately, the protection of any disability extends no further than the person within its provisions. But where their rights can not bo enforced separately, and the protection of the statute can not be secured without covering other interests, the benefit of the disability claimed by one avails all. 10 Ohio, 362; 12 Ohio, 351.
    Married women can not sue separately from their husbands, but, in all cases, where their rights are to be enforced, the husband must join.
    From these two propositions it follows, that if a married woman has any rights or interests in her own lands, which are protected or can be enforced by the laws of Ohio during the life of her husband, then she must bring her action jointly with her husband, and, instead of his laches destroying her rights, the protection or saving of her rights by disability will save and protect his.
    Hence it becomes the most important inquiry in this case, whether married women have any interest or rights in their own lands in Ohio, which are entitled to the protection of the laws during the life of the husband, or whether their rights are entirely absorbed, used up, and suspended by the paramount influence *of her husband, the baron,” so long as he continues to live.
    Since the statute of 32 Henry VIII., the general tendency of the-legislative and judicial mind has been toward recognizing a right in a married woman to be protected in the enjoyment of her own estate.
    It has been held in England that she may join with her husband' and recover in an action of ejectment, on the joint demise; that although her husband may himself waste and alienate her estate, yet if he does so alienate it, and a stranger commits waste upon her inheritance, she may maintain an action of waste against the-stranger in the joint names of herself and husband. 2 Phil. Ev. 264, and authorities there cited; 2 Kent’s Com. 130; Clancy on Husband and Wife, 160. Her right to maintain an action for waste, and to be protected by law in. the possession and enjoyment of her-own land, has been more or less recognized in this • country. 2 Kent’s Com. 130; 5 Barr, 103; 8 Humph. 298; 44 Ohio L. 75.
    Since the passage of the Ohio statute last referred to, ejectment can not be maintained for lands of the wife, on the separate demise of either husband or wife. Her rights and interests are inseparable from those of her husband in her lands, and can not be enforced separately. Therefore she is within the rule in 10 Ohio, and the protection of her disability saves the rights of both.
    Her rights, thus saved to her by the statute of limitations by reason of her disability, can be enforced during the life of her husband. To deny this right of action is to treat her disability not as a personal privilege, but as an act of outlawry, to suspend all her rights during coverture.
    Il she can not prosecute her rights while the husband is living, both she and her heirs may lose the inheritance. By virtue of his estate by the curtesy, the husband would, at the decease of his wife, be entitled to the immediate possession of her land, and *i'f he should live after her death longer than the time limited for commencement of the action after removal of the disability, the estate would be lost entirely.

      H. H. Hunter, for defendant, made the following points:
    The demise for the recovery of the wife’s land must be joint, by husband and wife. No recovery can be held on the separate demise in the name of the wife. Com. Dig., title Baron and Feme, vol. 10; also, title Pleader, 2 A. I; Weller et al. v. Baker, 2 Wilson, 423, 424; Atkins v. Rittenhouse et al., 5 Barr, 103; Watson v. Watson, 10 Conn. 77; Neal et al. v. Robertson et al., 2 Dana, 87.
    A recovery by plaintiffs in ejectment, on the joint demise of husband and wife, is a recovery by the husband. The possession pursuant to the recovery, during the coverture, is the possession of the husband.
    The husband has now, in Ohio, the same right of possession of the wife’s lands, and to appropriate to his own use rents and profits thereof, as he ever had heretofore, and if he survive her, his right as tenant by the curtesy now, as formerly, endures during his life. All these important rights are secured to the husband in the subject-matter of the recovery, who, upon the joint demise of himself and wife, recovers lands in an action of ejectment. •.
    The statutes of limitation are called statutes of repose, and are intended to quiet the possession of men long enjoyed, and to save them from endless strifes and litigations. Courts, in applying the rules of construction to these enactments, should be governed by the practical lights of experience and the realities of life, rather than by any whimsical notions of the hardships likely to arise to married women by the loss of their rights for want of prosecution during coverture. There is no soundness in the argument which asks the court, as a matter of construction, to give to those who would, come in under the assumed protection of the disability of a feme covert, any greater benefits than they would otherwise *be entitled to against the provisions of the statute. In this case, John Smith is barred, although his wife may not be, and any recovery to be had in this case, on the joint demise of himself and wife, is, expressly and directly, a recovery by Mm, which can not be suffered without an utter disregard of the statute.
    The cases in 10 Ohio, 362, and 12 Ohio, 351, are not in point, as ejectment is a possessory action, and the possession recovered on the demise of husband and wife is, in fact, so long as the coverture endures, and his estate in curtesy afterward, solely that of the husband in right of the wife. He is seized of the entirety during the continuance of his interest; whereas, in the cases in 10 and 12 Ohio, it will be found that those who labored under the disability had an immediate interest in the thing to be recovered; but the right of action being joint, and not several, the courts, on a principle of necessity, were compelled to suffer those who, if they had not been so jointly interested, would have been barred, to join in the action, and, as a consequence, to participate in the recovery.
    The adverse decision in Watson v. Watson, 10 Conn. 77, is merely the result of an equally divided court, so that, as an authority or precedent for the consideration of this court, the bearing of the case is as much for as against the defendant.
    In a more recent case — McDowell and wife v. Potter, 8 Barr, 189 — the Supreme Court of Pennsylvania has holden a contrary doctrine.
    The soundness of the distinction made in that case by Judge Eogers in delivering the opinion of the court, between the case of a feme covert and persons laboring under other disabilities, such as infancy and the like, will at once be perceived and acknowledged.
   Ranney, J.

A majority of the court concur in the opinion that the law applicable to the facts of this case, requires a judgment for the defendant.

*It appears from the agreed statement of facts that he has

been in the adverse occupancy of the lands for more than twenty-one years before the commencement of this suit; and the only question presented is, can an action of ejectment be'maintained, on the ■demise of husband and wife, to recover possession of her lands, after such a lapse of adverse enjoyment ? That he is conclusively barred, and that no action could be sustained on his demise alone, is con•ceded on all hands. Can he avoid the effect of this bar by joining his wife with him in the action ? To determine this, it is necessary to un lerstand clearly what interest or estate the husband has in the lands of his wife, and the extent and purpose of the remedy by an action of ejectment. If it shall appear that the remedy operates only upon the interest of the husband, and he alone gets the benefit of a recovery, I take it to be undoubted that a bar upon his right is an effectual bar to the action.

“ If the wife, at the time of the marriage,” says Chancellor Kent .(2 Com. 130), “ be seized of an estate of inheritance in land, the husband, upon the marriage, becpmes seized of the freehold jure uxoris, and he takes the rents and profits during their joint lives. It is a freehold estate in the husband, since it must continue during their joint lives; and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the curtesy.” “ The emblements growing upon the land, at the termination of the husband’s estate, go to him or his representatives.” “ During the continuance of the life estate of the husband, he sues in his own name for an injury to the profits of the land; but for an injury to the inheritance, the wife must join in the ■suit, and if the husband dies before recovery, the right of action survives to the wife.”

The Supreme Court of this state has been no less explicit. In Canby’s Lessee v. Porter, 12 Ohio, 80, it is said: “ The interest of the husband is a legal estate; it is a freehold during the joint lives of himself and wife, with a freehold in remainder to himself for life, as tenant by the curtesy, and a remainder to the wife ^and her heirs in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well-known rules. It is, in every sense, his ‘land,’ within the meaning of the statute, and liable to respond for his debts.”

It is quite unnecessary to refer to other authorities upon a question upon which all the elementary books and decided cases are agreed. By the common law, the freehold of the husband thus acquired was as perfect, absolute, and unfettered, as though derived by deed, and could be aliened by him without the consent of the wife, or taken legal for his debts. It arose by operation of law as an incident to the marriage, and carved out of the estate of the wife a freehold interest in favor of the husband, leaving in her, or her heirs, only the reversion to be enjoyed after the termination of the life estate.

' • Such being the nature and extent of the husband’s interest, the question arises, is this action brought to recover that interest? Lord Mansfield, in the leading case of Atkyns’ Lessee v. Horde, 1 Burr. 60, says: “An action of ejectment is a possessory remedy, and only competent where the lessor of the plaintiff may enter. Therefore, it is always necessary for the plaintiff to show that his lessor had a right to enter, by proving a possession within twenty years, or accounting for the want of it under some of the exceptions allowed by the statute. Twenty years’ adverse possession is a positive title to the defendant: it is not a bar rto the action, or a remedy of the plaintiff only, hut takes away Ms right of possession.” And again, “In truth and substance, a judgment in ejectment is a recovery of the possession (not of the seizin or freehold) without prejudice to-the right, as it may afterward appear, even between the parties. He who enters under it, in truth and substance, can only be possessed according to right, prout lex postulat. If he has a freehold, he is in as a freeholder; if he has a chattel interest, he is in as a termor: and in respect of the freehold, his possession inures according to right. If he has no title, he is in as a trespasser; and without *any re-entry by the true owner, he is liable to account for the profits.” Mr. Angelí, in his late work on Limitations, sec. 369, lays down the general rule, that whenever the right of entry “is taken away by the lapse of the prescribed period, the consequence is, that no action of ejectment (the privilege of bringing which is wholly dependent on the right of entry) can be sustained.” And he adds: “Indeed, the right of entry and the right to maintain ejectment are so much alike, in legal sense, that one may be used in that sense for the other.”

The application of these doctrines to the case in hand is very obvious. The husband having a freehold, with the present right of exclusive enjoyment, and the wife or her heirs only the reversion, the former, of course, has the only right of entry. But upon this-right, and upon all the interest the husband had in the land, the statute has had its full operation for such a length of time as, in the-language of Lord Mansfield, to give “ a positive title to the defendant,” and to “takeaway his (the husband’s) right of possession.” The defendant is now, by force of the statute, invested with all that the-husband formerly had; and as the wife before had no right to the possession as against her husband, she has just as little right now against one invested, by operation of law, with all his rights and interests. The exclusive right of possession which before belonged to the husband, has been lost by him and acquired by the defendant; and as the wife’s right of entry before was postponed to the termination of' the coverture, it can not now accrue at an earlier period; and until it does accrue, it is perfectly clear no action of ejectment can-be maintained predicated upon her interest in the land. The husband’s right of entry, then, is. lost by him, and acquired by the defendant; and the wife’s has not yet accrued. The husband, therefore, has no-right to recover alone, because he has no title; and if the wife could sue, she would have no right to recover alone, because she has no present right of entry. As neither has any right upon which a recovery can be had, suing *alone,' I confess myself wholly unable to see how, by joining their fortunes together, a cause of’ action is made.

If the husband had conveyed his life estate by deed, or it had been sold for his debts, no one would for a moment suppose, that, the purchaser could be dispossessed by an action brought by husband and wife; although she had not joined in the deed in the one case, and was no party to the judgment in the other, so that nothing but the estate of the husband had passed. And yet neither mode-would more effectually take away his right of possession, and invest another with a more perfect title, than an adverse possession for-twenty years. Neither is better understood as an acknowledged method of losing and acquiring a right to real property, than the-operation of the statute of limitations.

The statute does not spend its force upon shadows; it operates, upon substantial interests, and, with the interest, carries all the-remedies incident to th$ right. It has had its effect, in this instance, upon the estate of the husband — has divested him of it, and given, it to the defendant; and with the loss of the estate, has deprived him ©f all remedy, in whatever form pursued, for its recovery. It bascad no effect upon the estate of the wife. The defendant has got no more than the marriage gave to the husband, and holds it subject to all the contingencies to which it would have been subject had it remained in his hands. While the life estate continues, the-law arms her with remedies to prevent injuries to the-reversion; and when it terminates, gives her the benefit of the action of ejectment, to recover the possession. It must terminate with his death, if she survives him; and it may terminate before, by his fault, followed by a divorce; and under our statutes, I have no doubt, that such a state of facts as would warrant a court of chancery in restoring to the wife the rents and profits of her lands, by placing them in the hands of a receiver, would give the receiver the remedy, by ejectment, to recover the possession. As soon as she has the right to the possession, and the enjoyment of the rents and profits, the law gives *her this action to recover it. But the statute -of limitations was never intended to invest her with an estate she had not without it — to give her a right of entry in lands, the pos- . session and profits of which belonged exclusively to her husband. Its whole object and purpose is accomplished, when it is made to save to her such rights as she has; and the law is effectually vindicated from all reproach, when it gives her, at all times, remedies adapted to the redress of any injury she may sustain. This is done by affording her, while her estate is in reversion, reversionary remedies ; and when her right of entry arises, the possessory remedy by ej ectment. If any wrong is done her, by the principles of the common law, it comes of investing the husband with a life estate in her lands, • entitling him to the possession, and not from refusing her a remedy to recover the possession, the right to which she has voluntarily .surrendered, and with which he is invested. As the marriage gave her valuable rights in the property of the husband, and bound him to the payment of all her debts, and for her support during the •coverture, the old-fashioned sense of justice gave him this right to the use and enjoyment of her lands, in the way of compensation. In later times, some devoted champions of the rights of women, have arrived at the conclusion that it is but a relic of barbarism, founded upon man’s tyranny and oppression, which demands instant .abrogation. It may be so; I do not undertake to decide that it is not. If it is, the power of correction is with the legislature, and not the courts. Until that body acts, we must be content to perform the ungallant duty of administering the law as we find it; and until the right of possession is taken from the husband and restored to the wife, we can not very consistently hold, that a remedy which -depends wholly upon the legal right of possession, can bo successfully pursued, in right of the wife, against one who has acquired the husband’s legal right to the possession. Indeed, when the desired reform shall take place, and the marriage contract shall leave the wife in the full enjoyment of all her rights *of property, and the right to pursue every legal remedy, as fully and effectually as though she were sole and unmarried, it may be worth while to consider, whether she should not assume some of the responsibilities of a feme sole, and whether, in justice to others, male and female, she should be exempted from the operation of those beneficial statutes of repose, so essential to the security of titles, and permitted to disturb a possession, taken in the honest belief of a perfect right, and upon which a lifetime of labor has been expended — as is very often done, and may possibly be attempted in this case.

But all this belongs to the law as it might be, and not as it is. As it is, according to our understanding, the marriage invests the husband with a freehold estate in the lands of the wife, entitling him to the exclusive possession during coverture; and, independent of the statute of 1846, subject to be conveyed by him, taken for his debts, or Iqsí by his laches. During its continuance, he alone has the right of entry, and consequently the right alone to maintain the action of ejectment to recover the possession, when it is wrongfully withheld from him. And although he may, for conformity, join the wife with him in the demise, it is still upon his right alone that recovery can be had; and whatever has barred that right, has effectually barred the action.

This view of the subject is sxipported by the decided weight of authority. By an English statute, a married woman is allowed five years after disability removed, within which to enter and avoid a fine levied during the coverture. In Doe ex dem. Wright v. Plumptree, 3 Barn. & Ald. 474, the action was brought by husband and wife, more than five years after the fine was levied — Best, J., before whom it was tried, being of opinion that, although the wife of the lessor of the plaintiff, if she survived him, would be entitled to enter within five years after his death, yet that her husband, not having made an entry or brought his action within the time prescribed, was barred by the fine, directed the jury to find a verdict for the defendant. The paintiff’s ^counsel moved for a new trial, and eon-tended that the husband, who claimed in right of his wife, might en - ter at any time during the coverture. But, the report states, “ the court were clearly of opinion that the husband, not having entered within the five years after his right accrued, was barred by the fine.”

Watson and wife v. Watson, 10 Conn. 77, is one of the earliest. ■cases to be found in tbe American reports. It is only important as presenting, in a forcible manner, tbe reasons upon both sides of tbe •question. Five judges sat upon the hearing; two (Judges Daggett and Bissell) concurred in opinion, that the action was not barred; while two others (Church and Williams) thought differently; and the fifth (Judge Peters) gave no opinion. In.the opinion of the former, it is conceded that the statute had barred the rights of the husband; but it is asserted that this right is merely incidental to the estate of the wife, growing out of the coverture, and not investing him with any distinct legal estate; that their interests are not •separate, in such a sense that he can be barred, without directly affecting her substantial rights; that she must join with him in the action; and a denial of her right to recover would be to hold that no person under disability, after the prescribed time had elapsed, • could maintain an action until the disability was removed. And to distinguish it from the English cases relating to fines, it is claimed that a fine is a species of conveyance which passes the whole right, •and operates by way of bar to the right of property, while the statute of limitations is a bar to the remedy only.

It is evident that this whole argument is built upon the denial of -any distinct estate in the husband, capable of separation from that remaining in the wife. This is certainly opposed, not only to the teachings of every elementary author, but to the decision in Canby’s Lessee v. Porter, already cited. It is there expressly asserted to be a legal estate of freehold for the joint lives of husband and wife; and it never has been doubted that it might be separated, without her consent, from her estate in reversion, by *his conveyance, or by being siezed for his debts. So far from her being an indispensable party to the action to recover the possession, it is well settled that it may be recovered upon his demise alone; while the position in respect to the operation of the statute of limitations, is directly opposed to the doctrine of Lord Mansfield, in the leading •case of Atkyns’ Lessee v. Horde, where, as we have seen, it is held not a bar to the action or remedy of the plaintiff only, but takes ¡away his right of possession, and confers a positive title upon the defendant; and to the numerous cases in which it has been held to confer a perfect right of entry, enabling the occupant to recover in •ejectment without other evidence of title. Chiles v. Jones, 4 Dana, 483 ; Larman v. Huey, 13 B. Mon. 447; Breeding v. Taylor, Ib. 482.

It is certainly true, that a person under disability may sue at any time during its continuance, and need not wait until it has terminated. Ang. on Lim., sec. 195. But a capacity to sue and enforce such rights as a person in such situation may have, is one thing; and the question whether he has such rights, adapted to the remedy sought, as will enable him to succeed, is quite another and different thing. While the statute protects the one, it makes no attempt to confer the other. The rights of such persons, as well as others, to property; must be sought elsewhere, but when found to exist, they are not to be lost or forfeited by a failure to enforce them.

These positions are all examined with marked ability in the opinion of Judge Church; and he arrives at the conclusion, that by the common law, the husband has a freehold interest in the lands of the wife, giving him a vested estate in possession, and the right of entry, and, necessarily, postponing the right of entry to the wife and her heirs, until after coverture ended. That upon this right of entry the statute operates, and that “to hold otherwise, would be to •claim the.strange doctrine, that there may be a freehold estate in possession without a seizin of it; or that there may be a seizin without a possibility of disseizin.” That during *the coverture, he has the entire control of the estate, is entitled to the rents .and profits; it is subject to his disposition, liable to his debts, and may be lost by his laches; and whether the right of entry is lost in the one way or the other, it equally bars all interests during the existence of the particular estate. That he can not restore himself to his lost and forfeited rights, by joining his wife with him in the action ; that if a recovery is had, it is his recovery; he alone is let into the present and future possession of the land, and recovers the mesne profits as damages.

McDowell v. Potter, 8, Barr 189, was an action brought by husband and wife to recover the proceeds of a legacy, collected by the ■defendant, belonging to the wife. More than six years having ■elapsed since it was received, and the statute being pleaded, one of the questions arising was, whether the action was barred. The •court held that it was, notwithstanding the plaintiffs gave evidence that the husband had always treated it as the separate property of the wife. They admit the right of the wife, if she should survive the' husband, to sue for and recover the money, within, six years after disability removed; but as a recovery in this action would mure to his benefit, and reduce the money to his possession, they considered the action as his and not hers, and the delayas his fault,, effectually barring all his rights. If it should be admitted that the-doctrine, in this case, was pressed too far, and that the wife stood in a position to derive some legal benefit from the recovery, either by its inuring to her sole benefit .under the arrangement, or through her lights of survivorship; still, its force is not impaired, when applied to a case like this, where no attempt to surrender the marital right exists, and whore the remedy goes no deeper than the husband’s exclusive right to the possession, and entitling him alone to all the fruits of the judgment, direct and incidental.

The very question upon which this case depends, has been repeatedly decided in favor of the bar, by the court of appeals in Kentucky.* Neal v. Robertson, 2 Dana, 86; Downing v. Ford, 9 Dana, 391; Gill v. Fauntleroy, 8 B. Mon. 186; Davis v. Trigle, Ib. 542; Sharp v. Head, 11 B. Mon. 277.

The point was first presented in the case cited from 2 Dana. The act which governed the, case provided that “ the limitation prescribed in this act shall not extend to femes covert, etc.; but such persons shall be at liberty to institute such suits at any time within seven years after their disabilities áre removed.” The court say: “ There' is nothing in this language which does,' of itself, constitute a saving in favor of the husband, so as to prevent his being barred. If there-be such saving, it must result from the general principles of law, in order the better to secure and preserve the right of the wife. - We are not aware of any principle that will so operate.” The saving was not intended to guard his interests against the effect of his own laches, but to save hers, so far as they were separate and disconnected from his. We do not perceive wherein their interests are so intimately blended, as indispensably or even necessarily to require an enforcement of her right in his lifetime. Their-interests are so far divisible, that he can maintain a suit in his own name alone for the land, and can, by his separate deed, alienate it during their joint lives. So where a recovery is had in a suit brought by both, it is still for his sole benefit during his life. As, then, the recovery is for his sole benefit, and as his separate alienation bars a recovery, on a demise, in the names of both, no good reason is perceived why he should be permitted to avail himself of the saving in favor of the wife, to protect him against the effects of laches in this, more than in any other description of cases.”

The case of Sharp and Wife v. Head was decided as late as 1850.. It was an action of ejectment, brought on the demise of husband and wife, to recover lands that .had descended to her during the coverture. The statutory bar had run against the husband, and the court held the action barred. They say: “ He might, as husband, have maintained ejectment, on a demise, in *his own name, and have recovered for his sole benefit during their joint, lives, because he had an interest and legal title during the joint lives of himself and wife. As against him the statute continued to-run. Uniting his wife’s name with his, whilst it did not prejudice her rights, did not aid him.”

A similar ruling seems to have been made by the Supreme Court of Tennessee, in the case of Guion v. Anderson, 8 Hump. 325.

I have carefully examined the several statutes upon which these-decisions were made, and find nothing in them materially different from the saving clause in section 2 of our act of 1831, upon which the rights of the parties in this case arc made to depend.

2. The plaintiffs are not helped by the act of July 4, 1846, in relation to the interests of husbands in the estate of their wives. Swan’s Eev. Stat. 712. Indeed, there is reason to believe, if we' are permitted to look beyond the agreed statement into the evidence filed in the ease, that the bar had intervened long before the passage of that act; and it is at least doubtful, from the statement istelf, whether a fair construction does not lead to the same result. It shows the defendant’s possession to have been continued more than twenty-one years; and as the obligation is upon the plaintiffs-to bring themselves within the exception, it may be doubtful whether this ambiguity should not operate against them and in favor of the defendant, and authorize us to assume as much more as would be necessary to carry the case back of the passage of that law. But the statute has in no manner altered, diminished, or restricted the interest and estate which the husband acquires in the lands of the wife. It is still an estate of freehold, entitling him to-the possession, and while his interests alone are in question, may be lost by his laches, -as fully and effectually as before the statute was passed. It has very wisely provided that it shall not be conveyed by him, unless she joins in the deed, nor taken for his debts. In other words, it shall not be placed beyond her reach, in case it is-needed for her comfortable support, *as it might be if he was permitted to convey, or it was subject to be sold for his debts.

But it is her rights,- and not his, the statute was designed to pro-feet; and as the statute does not take from the adverse occupant the rights the statute of limitations was intended to confer for his protection, we do not feel authorized to deny him the benefit of that protection, unless such a case is made as would entitle the wife to the use of the property as against the husband. While the interests of the husband are alone presented, they must be made subservient to the paramount rights of the adverse occupant.

Judgment for the defendant.

Thurman, C. J., and Bartley, J., dissented.


author: Bartley, J.

text:
    John M. Bashford v. Andrew J. Shaw.
    In case of guaranty, demand of payment of the principal debtor, and notice of' his default, are requisite to charge the guarantor only, where the fact on-which his liability is made dependent rests peculiarly within the Icnowledgeof the guarantee, or depends on his option.

    But where the contingency which determines the liability of a guarantor, is one-which is known to him, or which he is bound to know, or where each party has, in legal contemplation, equal means of information, the guarantor must take notice at his peril.
    In order to discharge a guarantor from liability, on the ground of want of notice of the default of the principal debtor, there must be, not only a want of the notice within a reasonable time, but there must be also some actual loss or damage thereby caused to the guarantor. And if such loss or damage does not go to the whole amount of the claim, but is only in part, the guarantor is not wholly discharged, but onlyjpro tanto.

    *If the principal debtor be solvent when the note falls due, and due notice of the default be not given, and the principal afterward, and before notice, becomes insolvent, the guarantor is discharged.
    The continued insolvency of the principal debtor, from the time of the maturity ■ of the debt, as a general thing, dispenses with the necessity of the notice, in order to charge the guarantor.
    Where the undertaking of the party is to guaranty the payment of the note of another, after final process, the prosecution of the claim to final process against the maker of the note is essential, in order to charge the guarantor.
    'But an omission to bring suit against the original debtor, within a reasonable time, will not discharge the guarantor from liability, where the terms of the guaranty do not prescribe the degree of diligence to be used in the proceeding, by suit, and where, in consequence of the continued insolvency of the principal debtor from the time of the maturity of the debt, the guarantor suffered no loss by the delay.
    Petition in Error,, to reverse tbe judgment of tbe common, pleas of Morrow county.
    Tbe original action was brought by tbe plaintiff in error, on tbe 15th of January, 1853, on tbe defendant’s guaranty of the payment of a promissory note, before George D. Cross, Esq., a justice of tbe .peace, who upon the trial of the cause, rendered judgment in favor of tbe plaintiff. Tbe defendant appealed. In tbe common pleas, the plaintiff declared in assumpsit on the following- instrument, to wit!
    Iberia, July 28,1849.

      “ On or before the fifth day of March, I promise to pay A. J. . Shaw, or bearer, tbe sum of thirty-five dollars, for value received.
    (Signed,) “John Boner.”
    Indorsed as follows:

      “ December 8th, 1849. I guarantee tbe payment of tbe within .note, after final process.
    (Signed,) “A. J. Shaw.”
    Tbe defendant plead non-assumpsit. At tbe September term of tbe common pleas, 1853, tbe parties waived tbe intervention *of a jury and submitted tbe cause to tbe court, upon tbe ■instrument declared on, and an agreed statement of tbe facts, as •follows, to wit:
    “ It is agreed in this case, that the defendant, in consideration tfyat tbe plaintiff bad sold him a horse, on tbe 8th of 'December, 1849, made the indorsement appearing on tbe said promissory mote; that tbe note became due on tbe 5th day of March, 1850 On the 13th. day of January, 1851, Bashford commenced suit on. the note against Boner, the maker of the note, before William Shunk, a justice of the peace, and on the 25th of January, 1851, recovered a judgment. And it is further agreed, that at no time after the note became due, could any part of the same have been collected from said Boner, on account of insolvency; and that, .execution had been issued on the said judgment against him, January 25, 1851, and returned February 20, 1851, ‘No goods or chattels found whereon to levy.’ And that the present action on-the guaranty was commenced on the 15th of January, 1853.”
    Upon this state of the case, the common pleas found for the defendant. The plaintiff moved for a new trial, but the court overruled the motion, and rendered judgment for the defendant; whereupon the plaintiff duly excepted to the decision of the court.

      Btinchcomb & Brumback, for plaintiff.

      Bunn & Gurley, for defendant.
   Bartley, J.

The undertaking of the defendant declared on, in the original action in the court below, constituted a guaranty of the payment of Boner’s note, after proceedings for the collection of the same had been prosecuted to final process. And the questions-which arise for determination are the following :

1. Whether the plaintiff’s right of recovery in the court below; could be defeated by want of evidence of notice to the defendant of the default of the maker of the note; and, if not,

*2 Whether it was defeated by the delay which occurred in the prosecution of the claim to final process.

Of these, in their order.

1. The rule in regard to demand of payment and notice of the default, required to charge indorsers of negotiable paper, is not applicable to guarantees. In the former, the demand and notice is, by an arbitrary rule of the law merchant, strictly required, as a condition precedent to liability; while, in the latter, the demand and notice of the default of the principal, is a simple duty required of the holder, with a view of saving the guarantor from actual loss, which may arise from want of convenient and certain means of knowledge. There are several classes of guaranties, in which demand and notice are not required at all. For instance, where a is in the nature of a simple security, undertaken origin¡ally, and with the principal, that a debt shall be paid, or some other .act be done, the liability attaches without demand of payment and notice of the default. Chapin v. Lapham, 20 Pick. 467. So, where the undertaking is an absolute and independent stipulation to pay the debt of another at all events, no demand and notice is said to be necessary . And in the case of Bush v. Critchfield, 4 Ohio, 103, it was held, by the Supreme Court of this state, that where the. .guarantors had covenanted that their principal should sell and account for all merchandise placed in his hands by the plaintiff, within .a stated period, no notice of the non-performance by the principal was necessary. To the same effect is the case of Douglass v. Howland, 24 Wend. 35; also, Hammond v. Gilmore's Adm’r, 14 Conn. 479.

Demand and notice, however, ai’e requisite to charge a guarantor, where the fact on which his liability is made dependent rests peculiarly within the knowledge of the guarantee, or depends on his option. But where the fact which determines the liability, is one which the .guarantor knows, or is bound to know, or which is equally within the power of both parties to ascertain; in other *words, where each party has, in legal contemplation, equal means of information, the guarantor must take notice at his peril. Farwell v. Smith, 12 Pick. 83, 87; Davis v. Duvall, 4 Wash. C. C. 181; also, Wyse v. Wakefield, in the Court of Exchequer, 6 Meeson & W. 442. The application of the rule requiring demand and notice, founded on the reasons above mentioned, is cleared of all difficulty, in case of the guaranty of the goodness or collectability of a debt. ‘The contingency upon which the liability is made dependent, rests upon the action of the guarantee, and depends on his option. The result of his efforts to enforce the liability of the principal, and the period of their termination, are of necessity peculiarly within his knowledge. He is, therefore, reasonably and properly, required to .give notice to the guarantor of the default of the principal, before bringing suit upon the guaranty. Grier v. Ricks, 3 Devereaux, 62 ; Adcock v. Fleming, 2 Dev. & Bat. 225; Lewis v. Bradley, 2 Iredell, 303; and Sylvester v. Downing, 18 Vt. 32.

T.n the cause before us, the engagement of the defendant was the .guaranty of payment after final process. This required the plaintiff to prosecute the original liability to final process; and the fact upon which the contingency of the defendant’s liability was made ¡to depend, consisted in non-payment after the requisite remedy for the collection of the claim had been used. And this, depending upon the action of the plaintiff, left the default, after the termination of the efforts for collection, peculiarly within his knowledge; so that notice to the defendant of the default would have been essential, before his liability could have been enforced, had it not been dispensed with by the circumstance hereafter noticed, which took the case out of the operation of the rule.

The ground, however, upon which notice of the default of the principal is required, in case of guaranty, clearly distinguishes it from the notice required to charge an indorser, in the ordinary ease of the indorsement of commercial paper. The latter is entitled to strict notice, without delay, and without regard to *consequonees. But in case of guaranty, notice of the default is sufficient, if it be given in a reasonable time. In the cases of Wildes v. Savage, 1 Story, 22, and Howe v. Nichols, 22 Maine, 175, the adjudications on this subject are very fully reviewed, and the doctrine shown to be well settled that, in order to discharge a guarantor from liability on the ground of want of notice, there must be not only a want of notice of the default within a reasonable time, but there must be also some actual loss or damage thereby sustained by the guarantor; and if the loss or damage does not go to the whole amount of the claim, but is only in part, that the guarantor is not wholly discharged, but only pro tanto, or, according to the extent of the loss. If the principal be solvent when the note falls due, a-nd the requisite notice be not given to the guarantor, and the principal afterward, and before notice, becomes insolvent, the guarantor is discharged. But where the notice could have afforded no benefit to the guarantor, and he has suffered no actual loss by want of it, he is not discharged by the omission to give it. Where, therefore, the principal is insolvent when the debt becomes due, .or where the duty is first imposed on the guarantee to require payment, and continued insolvent, notice to the guarantor, being unnecessary, is dispensed with; and it is said that, in such case, even a demand upon the debtor is not ordinarily required. This doctrine seems to be fully sustained by the leading authorities in England. Warring-ton v. Furbor, 8 East, 242; Phillips v. Astling, 2 Taunt. 206 ; Holbrow v. Wilkins, 1 Barn. & Cress. 10; and Van Wart v. Wooley, 3 Barn. & Cress. 489. In the last case Lord Tenterden said, ‘“That in ■cases of guaranty, the nature of the transaction, and the circumstances of the particular case, were to be considered and regarded, and that, where the debtor had become bankrupt, a demand on him was unnecessary to charge the guarantor.” And these cases are full to the effect, that where it does not appear that the guarantor has sustained any damage or loss, either from want of due presentment to the debtor for ^payment, or from the want of due notice of the default, the guarantor is not discharged. The same-doctrine is pointedly asserted in the case of the Oxford Bank v. Hayes, 8 Pick. 423, and recognized in Gibbs v. Cannor, 9 Serg. & Rawle, 202. And the case of Reynolds v. Douglass, 12 Peters, 497, decided in the Supreme Court of the United States, is a leading-case, to the effect that the guarantor is bound without notice, where the principal is insolvent at the time when the debt becomes due;, and that this liability continues, unless the guarantor can show that he has sustained some actual prejudice by the want of due notice of the default of the debtor; and that, if any actual loss has been sustained, he will be discharged only to the amount of damage sustained. This was to the full extent affirmed in the case of Rhett v. Poe, 2 How. 484.

The application of this doctrine, therefore, which appears to be founded in reason and well settled by authority, to the cause under-consideration, removes all difficulty in the determination of the first point. It is shown, by the agreed statement of facts in the case, that the principal debtor (Boner) was wholly insolvent when the note fell due, and ever afterward remained so. Notice of his default, therefore, became unnecessary, and was dispensed with ; and the want of such notice constituted no ground of defense in the court below.

2. Did the delay, which occurred in the prosecution of the claim against the original debtor, interpose any bar to the plaintiff’s recovery ? The note became due on the 5th of March, 1850, but suit, was not commenced on it till-the 13th day of January, 1851; being' the lapse of a little over ten months after the maturity of the bebt. Judgment, however, was taken against him on the 25th day of January, 1851; and, on the same day, execution was issued on the judgment, which, on the 20th day of February, 1851, was returned, “ No goods or chattels found whereon to levy.” The debt, therefore, remained unpaid after *final process ; so that the contingency occurred against which the guarantor stipulated. But, it is claimed that the suit was not Boner in due and that, upon this ground, the defendant was discharged from his liability.

It was incumbent on the plaintiff to prosecute the claim against the principal debtor to final process. The terms of the guaranty required this. The stipulation of the defendant was to insure the payment after final process. Nothing could dispense with this proceeding against the principal; for it was essential to produce the event by which, alone, the liability of the defendant could be fixed. But there is nothing in the terms of the guaranty expressly fixing or prescribing the degree of diligence to be used, or the time within-which the proceeding should be instituted. Where, by the terms-of a contract, however, an act is required to be done, but the time for-doing it is not expressly prescribed, the law, by implication, requires that it shall be done within a reasonable time.

It is sometimes the case, that the terms of a guaranty fix the degree of diligence to be used, or the time and manner in which the proceedings shall be prosecuted against the principal; and where this is the case, it has been held that the terms of the guaranty-must, in this respect, be strictly pursued, otherwise the liability of the guarantor will be discharged. Such appears to be the effect of the case of Dwight v. Williams, 4 McLean, 582; also, White v. Case, 13 Wend. 543; and Eddy v. Stanton, 21 Wend. 255. In the-

last case, the court say, in their reasoning, that although the principal debtor may be said to be insolvent, yet it is impossible to anticipate the fruits which may arise from the due prosecution of the-claim. Property may be discovered, or some friend come forward and satisfy the debt, etc. But in these and other cases referred to-, the attention of the court appears to have been directed to the question, whether the legal remedies could, for any cause be dispensed with, rather than the time within which they should be prosecuted.

*But the case before us is clearly distinguishable from the cases referred to. The defendant, in the agreed statement of facts, admitted that at no time after the note became due could any part of if have been collected from the principal debtor. The stipulation in the guaranty was to warrant payment after final process. The reasonable time implied for the pursuit of the legal remedy, had relation to all the circumstances surrounding the case. The object in requiring diligence in the proceeding against the principal, was safety to the guarantor. And, inasmuch as it was apparent, when the note became due, that nothing could be collected from Boner, a-•delay of a few months in commencing suit against him, operated beneficially to the guarantor, as it was indulgence to him, and .afforded time to the principal debtor to accumulate means. There is, certainly, no sensible and substantial reason why this delay should operate to discharge the guarantor. This is not a case requiring the application of the strict and arbitrary rules of the mer■cantile law, sometimes so essential to secure promjrtness and vigilance, with a view to certainty and confidence in commercial "transactions. And the defendant can not claim for himself-the observance of that strictness sometimes allowed in favor of sureties, for his engagement does n’t stand upon the_ consideration of the ■original debt, but is founded on an independent e msideration, for his own benefit. Had the defendant specially stipulated in the contract for diligence on the part of the plaintiff in commencing suit .against the maker of the note, or had he specially directed it to be •done, he might, with some reason, insist on the non-compliance by the plaintiff as a ground for his discharge. Or had the defendant ■suffered loss by the delay in the proceeding against the maker of the note, he would certainly be entitled to a discharge from his liabilities — so far, at least, as he had been damnified. But since he has been in nowise whatsoever prejudiced by the delay, there exists no just and substantial reason for his discharge from his liability on this ground.

*We are of opinion, therefore, that there is error in the proceedings of the court below.

Judgment of the common pleas reversed, and the cause remanded for Jurther proceedings.

Sherman, J., dissented.