Gerard v. Basse
THE defendants declining in their circumftances, and being much preffed by their creditors, Baʃʃe fled, and Soyer was imprifoned at the fuit of the Plaintiff. During his confinement, he executed a bound and warrant to confefs judgment, to which there was one feal, and the fignature was in this form, “ John Abraham Soyer for Baʃʃe & Soyer. ”
And now a motion was made to fet afide the judgment, at the inftance of the creditors in general, in order that an equal diftribution might be made of the effects under a domeftic attachment, which had iffued againft Baʃʃe and Soyer.
Sergeant and Adaylan, in fupport of the motion, argued, that the bond was a payment of the debt in the eye of the law ; and (illegible text)
although Baʃʃee was liable to Soyer‘s action for a contribution, yet not having figned the warrant, he was not fubject to the execution of Gorard, the plaintiff. 2 Black. Com. 295. 3 Bac. Abr. 590. 2 Bac. Abr. 227.358.2. Vern. 293. 2. Ch. Caʃes. 228. They faid, that the execution of deeds was not to be regulated by, nor does the effect of them depend upon, a particular cuftom of Merchants ; but they are derived from a fuperior fource, to wit, the law of the land ; and they infifted that Baʃʃe not having joined in the warrant, the judgment, being joint, muft fall to the ground. 2 Black. Rep. 294. Shep. 69.
Ingerʃol, in fupport of the judgment :— It is regularly true, that, according to 3 Bac. Abr. 611. one merchant may bind his partner, by accepting a bill drawn on both. If, then, in fubftance, the act of one obliges the other, what difference arifes from the circumftances of the delivery not being formally executed ? That queftion was agitated in the cafe of M‘Kim vs. M‘Farlan : there Levinz indorfed a note of M‘Farlan‘s to M‘Kim ; but being indebted to M‘Farlan, he thought it proper to give him previous notice of the tranfaction, and, accordingly, threw the note into his defk with that design. During his abfence, M‘Kim,who had given a valuable confideration for the note, perfuaded Mrs. Levinz to give it up to him, and afterwards fued M‘Farlan upon it, who grounded his defence upon this, that the note was never delivered over.
Sergeant. Improper and falfe fuggestions were ufed to induce Mrs. Levinz to deliver the note.
Ingerʃol. True: but the point in difcuffion was the delivery ; and the jury found for the plaintiff.—Cowp 206. Any proof of intention to affent to a delivery is fufficient ; —no particular mode of action, no form of expeffion, are neceffary. The prefent queftion, however, is, whether the Court will confirm the judgment as to the partner who fealed the warrant, and vacate it as to the other. The adverfe Counfel have cited 2 Bac. Abr. 227.358. to fhew that the judgment, being an entire thing, muft be wholly fet afide, if at all. But this doctrine is fully refufed by 1 Cro. 322.2 Black. Rep. 1133. With refpect to the warrant's being executed while Soyer was in prifon, it may be obferved, that an Attorney was prefent ; and in Sluyter's cafe, the Court determined that it was not neceffary the Attorney fhould be for the party ; but that it was enough if the bufinefs was fairly tranfacted in the prefence of an Attorney. Here neither fraud nor violence are fuggefted.
Lewis, on the fame fide, ftated two queftions : 1ft. Whether, upon the facts, this judgement can be fet afide as to both Baʃʃe and Soyer ; and 2d. Whether it can be fet afide as to one, and continued againft the other ?
1ft Point. As this was a joint debt, juftice naturally requires that the judgment fhould be confirmed ; and it being admitted, that a contract not under feal made by or, would bind both partners, alledged that the feal creates no difference, for the cauʃa
contractủ is the fole criterion. Seals are of the fame effect in Lex Me(illegible text)catirua as at Common-law ; and there is no authority to maintain the oppofite doctrine ; for, Shep. 69. is not the cafe of joint contractors. The books in general, where they fpeak of the obligation impofed on one partner by the contract of another, mention only notes, and whether under feal or not, is not diftinguifhed. When we declared upon them, we alledge the fubfscription of both partners, though, in fact, one only fubfcribes. Therefore, and becaufe delivery is no farther neceffary than as evidence of paffing the intereft, the firft point feems determined in the negative.
2d.Point. He obferved that the feveral authorities quoted on the other fide, were drawn from writs of error ; and, as this record could not appear in its prefent form, if carried into a Superior Court, he inferred, that either the authorities were not applicable, or the record was to be confidered upon the ground of a removal by writ of error: and in that cafe for error dans le record, the judgment muft be wholly reverfed ; but when the error is debprs, the judgment Cro. E. 115. 3. Lev. 36. More 564. Befides, he contended, that the releafe of errors, contained in the warrant of Attorney, purges and protects whatever might be deemed irregular with refpect to Soyer ; although t may not be fufficient to fet up a void proceeding againft Baƒƒe. 2 Stra. 1215. 3 Mod. 109. 6. Co. 25. (a)
Sergeant, in reply, made three points; 1ft. That the bill of one binds both from the neceffity of trade ; but that the neceffity does not extend, nor does the rule exift, in the cafe of deeds, and other fpecialities. 2d. That a judgment cannot be fet afide in part, or againft one only of the defendants. Where, indeed, the different parts of the judgment are, in their nature feparable, as in fines and common recoveries, mere modes of affurance, it may be done ; and to thofe cafes only the adverfe authorities are confined. 2 Bac. Abr. 569. explains the mode of reverfing judgments, that it can not be too often infifted upon, n the prefent cafe. 2 Black. Rep. 1131. contains the fame doctrine. 3d The releafe of errors muft be confidered under the diftinction in 3 Mod. 109. which fhew that were divers are to recover in the perfonality, the releafe of one is a bar to all, but it is not fo in point of diʃcharge. 6 Co. 25, (illegible text) is explicit, that,where two, or more, are charged jointly, if that bring a writ of error to difcharge themfelves, the releafe of one (illegible text) not bar the other ; for, they have not any intereft or benefit but joint charge and burthen, which cannot be difcharge or releafe unlefs by the plaintiff who has the intereft and benefit of it. (illegible text) therefore, Soyer's releafe does not difcharge the error, he concluded, that for the other reafons, the judgment muft be fet afide.
the president delivered the unanimous opinion of the CASE(illegible text) to the following effect.
SHIPPEN, Preʃident.—There can be no doubt that in the (illegible text) of trade, the act of one partner is the act of both. There is
actual authority to that purpofe, mutually given by entering into partnerfhip ; and in every thing that relates to their ufual dealings, each muft be confidered as the attorney of the other. But this principle cannot be extended further, to embrace objects out of the courfe of trade. It does not authorize one to execute a deed for the other ; this does not refult from their connection as partners ; and there is not a fingle inftance in the books which can countenance fuch an implication.
In the cafe before the Court, there is no difpute that the debt is not bona ʃide due to the plaintiff. Nor can there be any, with refpect to the validity of the warrant, againft the perfon who actually fealed it. Whatever, therefore, may be the fate of the judgment againft Baʃʃe, we are, unanimoufly, of opinion, that it is, in every point of view, binding upon Soyer : And in conformity to the authority in 1 Black. Rep. 1133. (where the Court granted a rule to ftrike out the name of an infant, after judgment was entered, upon a warrant executed by him and another) we now give the plaintiff leave to ftrike out the name of Baʃʃe ; and the judgment againft Soyer will remain.
Accordingly, judgment fet afide as to Baʃʃe, and confirmed as to Soyer.