Gerard v. Basse et al.

Gerard v. Basse et al. Pa/ri/mrshvp. A judgment entered on a bond executed by one partner, with one seal, in the name and behalf of both, was set aside as to the partner who did not sign, but held valid as to the other. The defendants declining in their circumstances, and being much pressed by their creditors, Basse fled, and Soyer was imprisoned at the suit of the plaintiff. During his confinement, he executed a bond and warrant to confess judgment, to which there was one seal, and the signature was in this form, “ John Abraham Soyer, for Basse & Soyer.” And now, a motion was made to set aside the judgment, at the instance of the creditors in general, in order that an equal distribution might be made oi the effects under a domestic attachment, which had issued against Basse & Soyer. Sergeant and Moylan, in support of the motion, argued, that the bond was a payment of the debt, in the eye of the law; and that, *although Basse was liable to Soyer’s action for a contribution, yet, not having signed the warrant, he was not subject to the execution of Gerard, the plaintiff. 2 Black. Com. 295; 3 Bac. Abr. 590; 2 Id. 227, 358; 2 Vern. 293; 2 Ch. Cases, 228. They said, that the execution of deeds was not to be regulated by, nor does the effect of them depend upon, a particular custom of merchants; but they are derived from a superior source, to wit, the law of the land; and they insisted, that Basso not having joined in the warrant, the judgment, being joint, must fall to the ground. 2 W. Black. 294; Shep. 69. Ingersoll, in support 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 substance, the act of one obliges the .other, what difference arises from the circumstance of the delivery not being formally executed ? That question was agitated in the case of McKim v. McKarlan: There, Levinz indorsed a note of McFarlan’s to McKim ; but being indebted to McFarlan, he thought it proper to give him previous notice of the transaction, and, accordingly, threw the note into his desk with that design. During his absence, McKim, who had given a valuable consideration for the note, persuaded Mrs. Levinz to give it up to him, and afterwards, sued McFarlan upon it, who grounded his defence upon this, that the note was never delivered over. Sergeant. — Improper and false suggestions were used, to induce Mrs. Le-vinz to deliver the note. Ingersoll. — True : but the point in discussion was the delivery ; and the jury found for the plaintiff. Cowp. 206. Any proof of intention to assent to a delivery is sufficient — no particular mode of action, no form of expression, are necessary. The present question, however, is, whether the court will confirm the judgment as to the partner who sealed the warrant, and vacate it as to the other. The adverse counsel have cited 2 Bac. Abr. 227, 358, to show, that the judgment, being an entire thing, must be wholly set aside if at all. But this doctrine is fully refuted by Cro. Eliz. 322; 2 W. Black. 1133. With respect to the warrant’s being executed, while Soyer was in prison, it may be observed, that an attorney was present; and in Slayter’s Case, the court determined, that it was not necessary the attorney should be for the party ; but that it was enough, if the business was fairly transacted in the presence of an attorney. Here, neither fraud nor violence are suggested. Lewis, on the same side, stated two questions : 1st. Whether, upon the tacts, this judgment can be set aside as to both Basse and Soyer; and 2d Whether it can be set aside as to one, and continued against the other ? 1st Point. As this was a joint debt, justice naturally requires that the judgment should be confirmed ; and it being admitted, that a contract, not under seal, made by one, would bind both partners, we allege that the seal ere-ates no difference, for tbe musa contractu *is tbe sole criterion. Seals are of the same effect in lex mercatoria as at common law; and there, is no authority to maintain the opposite doctrine ; for Shep. 69, is not the ease of joint contractors. The books, in general, where they speak of the obligation imposed on one partner by the contract of another, mention only notes, and whether under seal or not, is not distinguished. When we declare upon them, we allege the subscription of both partners, though in fact, one only subscribes. Therefore, and because delivery is no further necessary than as evidence of passing the interest, the first point seems determined in the negative. 2d Point. He observed, that the several authorities quoted on the other side, were drawn from writs of error; and, as this record could not appear in its present form,- if carried into a superior court, he inferred, that either the authorities were not applicable, or the record was to be considered upon the' ground of a removal by a writ of 'error: and in that case, for error dans le record, the judgment must be wholly reversed; but when the error is dehors, the judgment may be reversed in part, and confirmed in part. 1 Leon. 317; Cro. Eliz. 115; 3 Lev. 36; Moore 564. Besides, he contended, that the release of errors, contained in the warrant of attorney, purges and protects whatever might be deemed irregular with respect to Soyer; although it may not be sufficient to set up a void proceeding against Basse, 2 Str. 1215; 3 Mod. 109; 6 Co. 25. Sergeant, in reply, made three points : 1st. That the bill of one binds both, from the necessity of trade ; but that the necessity does not extend, nor does the rule exist, in the case of deeds and other specialties. 2d. That a judgment cannot be set aside in part, or against one only of the defendants. Where, indeed, the different parts of the judgment are, in their nature separable, as in fines and common recoveries, mere modes of assurance, it may be done ; and to those cases only, the adverse authorities are confined. 2 Bac. Abr. 569, explains the mode of reversing judgments ; and 2 Bac. Abr. 227, is so full upon the impartibility of judgments, that it cannot be too often insisted upon, in the present case. 2 W. Black. 1131, contains the same doctrine. 3d. The release of 'errors must be considered under the distinction in 3 Mod. 109, which shows that where divers are to recover in the personalty, the release of one is a bar to all, but it is not so in point of discharge. 6 Co. 25, is explicit, that, where two or more are charged jointly, if they bring a writ of error to discharge themselves, the release of one cannot bar the other ; for, they have not any interest or benefit, but a joint charge and burden, which cannot be discharged or released, unless by the plaintiff who has the interest and benefit of it. If, therefore, Soyer’s release does not discharge the error, he concluded, that for the other reasons, the judgment must be set aside. Re-affirmed, in Haskinson v, Eliot, 62 Penn, St. 393; Quillan v. Lawrence, 4 W. N. C. 239; Bitzer v. Shunk, 1 W. & S. 340. But where one partner confesses judgment against the firm, for a partnership debt, the interest of all the copartners in the firm property may be taken in execution under it, and sold. Rosa v. Howell, 84 Penn. St. 129; Vandegrift v. Redheffer, 10 W. N. C. 484; Carson v. Beems, 3 Phila. 433. [MAJORITY — Shippen, President.] The President delivered the unanimous opinion of the court, as follows : Shippen, President. This is a motion to set aside a judgment entered upon a warrant of attorney, against the defendants. The cause assigned is that the warrant of attorney was not executed by both the partners, but by Soyer alone. That being a deed, it is not the act of those who do not seal and deliver it; to this, it is answered, that being the act of one partner in trade, in the name of him and his partner, it should be deemed the act of both, although under seal. *-^s to P°^nt> we are opinion, that in all mercantile transactions, the act of one joint partner, in matters relating to their joint trade, should be deemed the act of both, although it be the signing bills of exchange, receipts, &c. But this seems to us to be confined to such acts and to such writings as are of a mercantile nature, such as arc usually and necessarily done in a course of trade, and without which the business of the partnership coixld not be conveniently carried on. But as to deeds, they are matters of a different nature, and not necessarily connected with trade, but subject to the rules of law independent of trade and commerce. We find no instance where they are distinguished in the case of merchants from other cases. We, therefore, are of opinion, that the warrant of attorney in the present case executed by Soyer alone, in the name of Basse & Soyer, is not the act of Basse, and therefore, the authority for confessing judgment against him is wanting. But the motion goes further, it is to set aside the judgment entered against Soyer himself, on the warrant of attorney actually executed by him, on the ground of its being a joint proceeding against them both, and that if the judgment is set aside at all, it must be set aside in toto. It is not disputed, that there was a real bond fide, debt due from Basse & Soyer to the plaintiff, that Soyer executed the bond and warrant of attorney, freely and without compulsion, and that there is no ground for setting it aside, from any unfairness in the transaction. It is likewise not disputed, but that if two persons are named as grantors or obligors in a deed, and one only execute it, it is a good deed as to him who seals it, and void as to the other. Consequently, that in the present case, this is a good bond and warrant of attorney as to Soyer; and it is not disputed, that if the judgment had been entered up against Soyer alone, it would have been good. The question is, then, whether, under these circumstances of the case, we shall take up this matter of error, if it is one, in a summary way, and decide upon it, as if before us on a writ or error, or not. Judges are bound to decide according to the rules of law, but when they see a fan- creditor in danger of losing his debt by a misapprehension or slip of his attorney, they will be attentive to prevent it. I acknowledge, my conscience would revolt at the idea of permitting it, if, by any law authority, I can be supported in preventing it. The law in 2 W. Bl. 1133, has set us the example ; we there see the judges, on an application of this sort, set aside a warrant of attorney as to one, and let the other shift for himself. We may, with equal reason, set aside the judgment as to the man who gave no authority for entering it, and let the other who did really execute it shift for himself. We are disposed to go further, if it shall be asked of us. We see no reason why, in this case, we may not give leave to the plaintiff to strike the name of Basse out of the proceedings, as a mere nullity, as well as the judges in tbat case, struck the name of the defendant out of the warrant of attorney. As to favoring these warrants of attorney. However we might wish to see something liké an act of bankruptcy take place here, whereby all creditors would come in equally, yet as the law stands, preferences are allowed, if obtained fairly, and the law favors the vigilant. Accordingly, judgment set aside as to Basse, and confirmed as to Soyer. The opinion here inserted is copied from President Shipper's MS., and gives the sentiments of the court, as delivered by him at length, of which Mr. Dallas’s original report furnished only an abstract. The principle upon which the case of Gerard v. Basse and Soyer was decided has governed the courts in subsequent decisions. In the United States v. Astley (3 W. C. C. 508), and Taylor v. Coryell (12 S. & R. 249), the general rule was distinctly recognised, that in the case of a sealed instrument, the act of one partner is not sufficient to bind the other. In the first of these cases, however, Judge Washington admitted the exception, that the deed will be valid', if executed in the presence, or by the authority of the other partner; and in Taylor v. Coryell, Judge Duncan seemed to think it clear, that a subsequent acknowledgment by the other partner would ratify the deed. The principal point decided in the latter case was, that one partner might bind the firm by an agreement, not under seal, to refer to arbitration any partnership matter, except, perhaps, where the other party openly dissented. How far an assignment of the partnership effects made by one partner for the benefit of creditors will be valid, see Pearpoint v. Graham, 4 W. C. C. 232. See also the remarks of President Shippen upon this case, in Pleasants v. Meng, post, 380.