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Brown, Jr., and John Watson were to remain on the record, but
they were not to be affected by any judgment which might be
recovered against John Brown : and the jury were discharged.

At April Circuit Court in 1829, for Mifflin county, the cause
came on before the Chief Justice, who directed the jury, that the
acts, the receipts and the agreement of David Milliken, dis-
charged John Watson ; and also, discharged John Brown, the
only defendant before him : and verdict for the defendant, mo-
tion for a new trial overruled, and judgment and appeal.

It is understood that it was not contended at the Circuit Court,
and certainly it was not much insisted on here, and could not
have been with effect, that John Watson is not totally discharged ;
but, it was contended, 1. That although a release will discharge
one of several co-defendants, and will also be a release of all,
yet, it must be a technical release under seal : but, that a re-
ceipt, a paper not under seal, will not have that effect, and that
a receipt, though in writing, is always open to explanation, and
cited, Putnam v. Lewis, 8 Johns. 304, and Johnson v. Weed, 9
Johns. 310, which certainly say so ; and also 2 Johns. 449, and
Rowley v. Stoddard, 7 Johns. 207, which do say, that a receipt
in full to one defendant,, does not discharge the co-defendants,
but that a technical release under seal will.

The courts of New York have been composed of men of such
knowledge and character, that their decisions are entitled to great
respect ; and it is with diffidence they are questioned. We are
obliged, however, sometimes to question them, and to decide
*contrary to them, or to give up, not barely a course of r*oq7i
our own decision, but our whole system of jurisprudence. "
They have separate courts of law and equity, and they have
kept up the line of distinction between these as pointedly, per-
haps I might say, as fastidiously, as it was done in England
before Lord Mansfield's time, and certainly more than is done

445



397 SUPREME COURT [Sunbury,

[Milliken and another p. Brown.]

now. We, on the contrary, exercise the two jurisdictions by
the same court and jury, at the same time, and instead of giv-
ing a verdict and judgment against a man in one court, with a
full knowledge that he will be relieved in another, we, if he is
entitled to relief, give'it at once in the trial of the cause. One
of the most marked distinctions arising from this is, that a writ-
ing, especially if under seal, is received in their courts of law,
(except a receipt, and why it is an exception I do not know,
though perhaps they do.) But, mistake or fraud must be proved
there, and relieved against in Chancery : here it is done in a
court of law.

There was a time in the history of the law when, like every-
thing else of that day, it was a system of metaphysics and logic ;
and, when the cause was decided without the slightest regard to
its justice, solely on the technical accuracy of the pleaders on
the several sides : defect of form in the plea, was defect of right
in him who used it. This period of juridical history, however,
was in some respects distinguished by great men, of great learn-
ing, and abounds with information to the student. At the time
I speak of, payment of debt and interest on a bond, the next
day after it fell due, was no defence in a court of law ; nay, it
was no defence to prove payment without an acquittance before
the day ; nay, if you pleaded and proved a payment, which was
accepted in full of the debt, yet, you failed unless your plea stated
that you paid it in full, as well as that it was accepted in full ;
or, perhaps, because you pleaded it as a payment, when you
ought to have pleaded it as an accord and satisfaction. An act
of parliament or two, and the constant interference of the Court
of Chancery, granting relief, have changed this in a great mea-
sure ; but, it is not a century since it was solemnly decided,
that if a creditor, finding his debtor in failing circumstances,
and being afraid of losing his debt, proposed to give him a
discharge in full if he paid half the money, and the debtor bor-
rowed the money, and paid the one-half on the day the bond
fell due, and got an acquittance in terms as explicit as the
English language could afford, yet, if sued, he must pay the
rest of the debt ; for, it was impossible, say the court, payment
of part could be a satisfaction of the whole : but, if part was
paid before the day, it was good satisfaction of the whole. I
mention this not from a general disrespect of the law or lawyers
of the days I speak of, but for another purpose. It has, alas !
become too common for men of good character and principles,
but who trade on borrowed capital, to fail, and their creditors
are glad to receive fifty cents in the dollar, and give a discharge
in full ; and I do not know the lawyer who would be hardy
446



June 15, 1829.] OF PENNSYLVANIA. 397

[Milliken and another v. Brown.]

enough to deny *the validity of such a discharge, [>OQQ-I
although given after the money was due, and although L
the discharge was not under seal, or although it might be
doubtful whether it_ could more properly be called a receipt,
or a release, or a covenant never to sue, if the meaning can be
certainly ascertained, and no fraud, concealment, or mistake
at the giving it, it is effectual. It avails little then, to go
back to the last century, or further, to cite cases in which a
matter was of validity, or effect, according as it was couched
in this or that form. Universally the law is, or ought to be,
that the meaning or intention of the parties is, if it can be
distinctly known, to have effect, unless the intention con-
travenes some well-established principle of law. I refer to
Wentz v. Dehaven, 1 Serg. & Rawle, 312, as fully settling,
that a seal is not necessary to a release of a debt, secured
by the most formal sealed instrument. This case brings the
law in this state to this : That a discharge, acquittance, or
release, call it what you will, is as valid without a seal as with
it ; and, I know of no instrument which is not so, unless where
a positive act of assembly requires a seal. The form of action,
or the plea, may be different, but in some way, if plain and fair,
it has effect.

It may be conceded, that David Milliken had no intention to
release John Brown or William Brown, Jr. ; nay, there is no
reason to believe that Dr. Watson, expected, or even suspected
any such result. The effect, if produced, is not from the words
of the instrument or design of the parties ; perhaps, there was
no design to release any other than the one named, in any case,
where such release has had that effect; yet, it did produce
that effect from the earliest times of the law. In Fitz. N. B.
238, letter M., if two are severally bound in statutes, and
recognizee release the statutes to one of them, and then sue
execution, they shall have audita querela. Hence, it would
seem, relief was had, before chancery had assumed such juris-
diction. The same law is found in Co. Lit. 236 ; 9 Co. 270 ;
Needham's Case, 5 Co. 52 ; Heckinote's Case, 1 Ld. Raym.
690, " Where a covenant is joint and several, a release to one
is a release of all : like the case of joint trespassers, which
is joint or several at the election of the plaintiff, but a release
to one discharges all." And " there is no doubt but a release
to one co-obligor is a release to both, in equity as well as at
law." 1 Atk. 294. And it produced the same result, although
there was an express proviso in the release that it should not
discharge the co-obligor. 5 Bac. Ab. 703. For this he cites
Litt. Rep. And in 2 Dessaussure, page 1, we find the case,
where one of several co-obligors in a bond, and who was only

447



398 SUPREME COURT [Sunbury,

[Milliken and another v. Brown.]

a surety, obtained a release from the obligee, who afterwards
assigned the bond to the state, whose indents had been lent ;
the state brought a suit in chancery against P. who had
obtained the release. " It was," says Rutledge, Justice, " ob-
jected, that the release was provisional, that the other obligor
should still be bound, or it should have no effect. The release
does not purport anything of the kind; it is absolute, and
r*ooq-| the obligee, (who was attorney *general,) must have
' known it would have the effect to release all of them.
As to the idea, that the release was to be kept secret, and the
co-obligors made responsible, it was absurd; because, if the
bond had been sued, the defendant, P., must have been sued
with the others, and his pleading the release would have been
an effectual bar to a recovery against them all ;" and he pro-
ceeds to show, that as the defendant had obtained his release
fairly he was discharged, though thereby all the others were so
also. So, if one of two judgment debtors, who is not bound
as between themselves to pay more than half, pays all, the
judgment cannot be kept alive to recover the other half for
his use from the other. 9 Mass. 138. And if one of two
debtors on a judgment is taken on a capias ad satisfaciendum,
and discharged by the plaintiff, the judgment is gone as to the
other. Ibid., and cases there cited.

It is true, some of the cases cited in the argument seem to
put the discharge on some magical effect of a seal ; but, it has
been shown, that in this state at least, a seal is not necessary.
The general position, that a release of one is a discharge of all,
is not denied in any case : it is equally effectual at law and in
equity. Has it not its foundation laid deeper than some of the
cases suppose, in this, that where several persons have con-
tracted together, and several of them are bound to one in a cer-
tain way, that one shall not of his own accord, or by collusion
with one of them, change their several responsibilities ? It is
the same principle which, when four agree to go surety in a
bond jointly and severally for one, and three sign it, and the
bond is expressly left to be signed by the other, who never
signs it, none are bound. Pawling v. The United States, 4
Cranch, 219. There would occur technical difficulties also.
On a scire facias to reverse this judgment, could there be judg-
ment for John Watson and against the others, or one of them ?
There is a judgment confessed against William Brown, Jr., for
one-third and interest till April, 1828 ; if this cause should go
back, can there be another judgment against John for another
one-third and interest till next year, and different executions
against different persons in the same suit, for different and dis-
448



June 15, 1829.] OF PENNSYLVANIA. 399

[Milliken and another v. Brown.]

tinct sums ? The arrangement with Watson and with William
Brown, Jr., if none with Watson, discharge John Brown.

Everybody knows, that generally, an undivided interest in a
farm, a house, a furnace, &c., will not sell as well in proportion
as the whole will. Can John Watson and the plaintiff change
the law, and sell the undivided interest of each of the other
partners, against their consent, separately, for a judgment which
bound the whole property ? A rich partner might in this way,
easily become owner of all the shares.

There may be hardship in this case ; if there is, it was occa-
sioned by very shameful conduct of one of the plaintiffs. There
are some things the law will not permit. You cannot give a
title in fee simple and restrain the right of selling, &c. ; nor
can a judgment *creditor release one of the defendants,
and hold the others bound. Even a release of part of
mortgaged premises, was a release of the whole until an act of
assembly of the 2d of April, 1822, was passed, allowing the
mortgagee, on receiving a proportionable part of the mortgage
money, to release a portion, and still recover the residue from
the remaining mortgaged premises.

Note. See 14 Johns, 330. One of several parties to a con-
tract under seal, to perform certain work, releases by parol the
other party from performing the work ; this is valid.

TOD, J . I am not able to concur. I take it, that the fact of
the premature testatum execution, unjustifiable as it was, must
be thrown out of the case on this writ of error. The injury
should be redressed by the proper form of action, in the name
of the proper person. The damages ought not to fall entirely
upon Watson, and the indemnity all to go to John Brown.
Besides, from the case in 10 Serg. & Rawle, 188, the Millikeus
appear to have paid the penalty of the act by the complete loss
of their security.

I agree, that in the case of a debt not yet payable, the cred-
itor may, if he thinks fit, accept much less than his due, and give
a valid discharge of the whole. But that, I apprehend, is only
where the creditor intends to discharge the whole. Here, it is
not pretended to be said, that either Milliken, who received, or
Watson, who paid the third of the debt, had the least imagina-
tion of exonerating John Brown and William Brown, Jr., from
the other two-thirds. But it is supposed, that the law impera-
tively gives to the transaction an effect which the parties never
meant, and that a release to one is a release to all. With some
diffidence, and with great respect for the opinion of the court,
I would hold, that a discharge of one joint debtor, on receiving
his share of the debt, can operate an extinguishment and for-

VOL. i. 29 449



400 SUPREME COURT [Sunbury,

[Milliken and another v. Brown.]

feiture of the residue, against the intent of the parties, only in
case of a strictly technical and legal release under seal. All
the authorities appear to be so. Harrison v. Close, 2 Johns.
Rep. 448 ; Ib. 186 ; 2 Salk. 575 ; 2 Saund. 48 ; 9 Johns. Rep.
310; 8 Johns. Rep. 389; Rowley v. Stoddard, 7 Johns. Rep.
210, held, that on receiving part of a debt from a joint debtor,
and discharging him, in order to produce the effect of discharg-
ing the other debtors, against the intent of the parties, the
release must be technical and under seal ; and that a mere re-
ceipt in full, can produce no such injurious consequence. After
citing many authorities, the decision concludes, that it cannot
be pretended that a receipt for part only, though expressed to
be in full of all demands, must have the same operation as a
release. There is a case, not cited at the bar, which appears to
me to be strong. Ruggles v. Patten, 8 Mass. 480. An action
against one of several joint promisers in a note of hand : the
plea was payment by one of the promisers of three hundred and
seventy-eight dollars, made and received in full of his, the said
Samuel's quarter part, and that he, the payee, did then and
r*40H * tnere exonerate, acquit, and discharge the said Samuel
I from any further payment of the said note. Upon a
general demurrer to this plea, the decision was in favour of the
plaintiff, the court holding, that payment of part by one joint
debtor effects no discharge of the others.

Indeed, I would be almost ready to say, that if instead of a
bare receipt to Watson in full of his share, it had been a release
to him, under seal, still it would be against all equity that a
party should be thus entrapped by his ignorance, and by the
formality of a seal, into the loss of two-thirds of his debt. The
very case came before a Court of Chancery, in Kirby v. Taylor,
cited at the bar, 6 Johns. Ch. Rep. 242, where it was decided,
that a release, under seal, given to one joint obligor, should dis-
charge him only, and not the rest. And 2 Com. Dig. Ch. 4,
L. 2, is express, that if a release goes beyond the intent of the
parties, it shall be avoided in equity. In the argument of the
counsel, inconveniences have been attempted to be shown, if one
of several joint debtors could be permitted to pay his share and
be discharged ; and, it is said, that if John or William Brown, Jr.,
should prove insolvent, and the other be compelled to pay the
remaining four thousand dollars, he who should so pay, could
not sue Watson for contribution, but would be barred by the re-
ceipt in full, signed by Milliken. Now, as to this matter, it
seems to me, that there might be said to be some risk of loss to
the Millikejis, by discharging one of the debtors from the resi-
due of the debt ; but, that John Brown and William Brown, Jr.,
could have no possible ground of just complaint, because they
450



June 15, 1829.] OF PENNSYLVANIA. 401

[Milliken and another v. Brown.]

were exonerated for ever to the amount of two thousand dollars,
whereas before, they were liable each one for the whole debt.
And as to the law on this head, even the holder of an accommo-
dation note, who has received a composition from, and who has
covenanted not to sue the payee, for whose accommodation the
note was made, may, notwithstanding, sue the maker, though
on payment of it, he, the maker, will have a right of action
against the payee. And if the holder release to the payee
all claims in respect to the note, not knowing that he is a surety,
this will not discharge the maker. Chitty on Bills, 381.

The doctrine relied on at the bar, of satisfaction by one joint
trespasser, is not to the purpose. For there appears much dif-
ference between matters of contract and matters of tort. If two
join in a battery of the person, or in a libel upon the character
of another, and the party injured receives a sum of money from
one in full satisfaction as to him thus paying; as the just
amount of damages must be wholly uncertain, the law, therefore,
perhaps, necessarily supposes, that a second satisfaction from
another defendant, will be a double satisfaction for the same
wrong. But it seems to me, if two men join to borrow one hun-
dred dollars, and the lender accepting fifty dollars from one,
gives him a receipt in full for his share, every one sees that the
debt is but half paid ; that whatever risk has been incurred in
the case, has been incurred by the lender, and that any r^ny-i
*complaint of inconvenience by the man who did not ^
pay, and who now is liable for fifty dollars only instead of a
hundred, must be groundless. The case of Wentz and Wife
v. Dehaven's Executor, 1 Serg. & Rawle, 312, seems not opposed
to my opinion. It is rather in my favour. In that case, a dis-
charge without a seal, was held sufficient against a mortgage, a
sealed instrument. And the old rule of law of unum quodque
dissolvitur, &c., was disregarded, in order to promote the equity
of the case, and the intent of the parties. Here a new rule
appears to be asked for, to give to a receipt the effect of a re-
lease, and to add a seal for the purpose of defeating the intent
of the parties.

GIBSON, C. J. It seems to me that this, like every other
part of the common law retained in use, is founded not only in
convenience, but justice. No case can be better fitted to illus-
trate this, than the one at bar. Two of three joint debtors are
solvent, the third is insolvent ; and the creditor agrees, on suffi-
'cient consideration, to exonerate one of the two who are sol-
vent entirely from liability. Now, the most sacred principles of
justice require that this agreement be performed ; and, it is ad-
mitted, that it ought to be performed. But how ? By exacting,

451



402 SUPREME COURT [Sunbury,

[Milliken and another v. Brown.]

it is said, the remaining two-thirds from the remaining solvent
debtor, and leaving him to his action for contribution against
the debtor who had bought his peace ; in other words, by per-
mitting the creditor to collect the debt, not directly from the
exonerated debtor, but from one who would in turn collect it
from him, being substituted for the original creditor, and suc-
ceeding even to the equitable ownership of the judgment as a
security. It is unnecessary to say how imperfect this would be.
It would afford but little gratification to the debtor to know that
his money had not gone directly, but circuitously into the pocket
of one who had absolved him from the debt. Cases might un-
doubtedly be put, in which the justice of the rule would be less
apparent ; for instance, where the outgoing debtor has paid his
proportion, as between the debtors themselves. Still there
would be a degree of injustice in forcing them to settle nice and
complicated equities, (in the present case depending on the wind-
ing up of a partnership,) in a proceeding with a stranger, and
not between themselves ; without which, it would be impossible
to ascertain how much might be found for the creditor without
jeoparding the exonerated debtor. In a court, proceeding
according to common law forms, this would be impracticable ;
and, before a jury, even were the judgment as ductile as a de-
cree in equity, intolerably inconvenient. If defendants might
be compelled to conduct an underplot among themselves, judi-
cial proceedings would be in perpetual danger of branching into
forms too fantastic for use. An engagement to exonerate a
joint debtor, therefore, must be made good in the only way
known to the law by relinquishing the debt. It seems to me,
then, that the rule has a foundation more solid than the magic
r*40^~l ^ a sea ^ > an( ^' a lth u gh there *are dicta, that it holds
J only in the case of a technical release, yet, that is said
not to distinguish a legal from an equitable release, but to indi-
cate that there must be, not merely a covenant not to sue, which
may in some cases be pleaded as a release, but an unqualified
discharge from further liability. Now, whatever may be the
effect of accepting in satisfaction of the whole, a part of a debt,
payable presently, it is unquestionable that prompt payment of
part, when the debt was not demandable, is an available con-
sideration even for a promise, and it is quite as certain, that a
parol release is effectual in our courts of law. By the way, the
judges who decided Wentz v. Dehaven, were far from trampling
on the common law. It is well known that a majority of them,
entertained just notions of its obligation as well as a salutary
fear of the evils inseparable from judicial legislation. They
but conformed their judgment to a common law principle
modified as to circumstances by time, and the intervention of
452



June 15, 1829.] OF PENNSYLVANIA. 403

[Milliken and another v. Brown.]

Courts of Chancery. It is a property of this common law,
which alone would render it more excellent in practice, than
any code of ancient or modern date, that it gradually and
imperceptibly yields to the form and pressure of the age, but
never to force, without manifesting in the consequences, the
violation it has suffered. These remarks are subjoined, not
with an expectation that they will add to the argument of
Judge Huston, who has satisfactorily stated the grounds of the
judgment, but, with great respect for the opinion of Judge Tod,
who dissents, to vindicate the rule on which I put the cause to
the jury.

Judgment affirmed.

Cited by Counsel, 3 Penn. E. 411, 439 ; 1 Wh. 395, 342 ; 5 Wh. 134, 537 ;
1 W. 199, 498; 8 W. 224; 5 W. & S. 487 ; 3 Barr, 155 ; 8 Barr, 266 ; 10 Barr,
402 ; U. 314 ; 1 H. 168 ; 8 H. 128 ; 9 C. 269 ; 3 G. 152 ; 6 Wright, 163 ; 3 N.
136 ; s. C 4 W. N. C. 31 ; 11 W. N. C. 389, 390.

Cited by the Court, 1 Penn. B,. 381 ; 5 Barr, 39 ; commented on and ex-
plained, 3 Penn. R. 63, and qualified in 12 Wright, 174 ; where it is said,

Milliken v. Brown, has not been followed."



[STJNBURY, JUNE 15, 1829.]

Barton and Others against Smith.

IN ERROR.

It seems that the ninth section of the act-of the 8th of April, 1785, requiring
that surveys should be made after the warrants are delivered to the deputy
surveyor, is not confined to the purchase made of the Indians in 1784.

Independently, however, of legislative enactment, a survey made previously
to a warrant, is void ; and is not rendered valid by the receipt of the purchase-
money and acceptance of the survey.

ERROR to the Common Pleas of Huntingdon county, in an
ejectment brought in that court, by Elizabeth Barton and others,
heirs of William Barton, against Jacob Smith, for a tract of
land on the north branch of Little Juniata. Jacob Smith took
defence for so much thereof as was included in a survey made
for him on the 24th of July, 1807, under a warrant dated Feb-
ruary 23d, 1808. The plaintiff's title was set up as follows :
On the 1st of February, 1794, William Barton, Esq., their
ancestor, took out a number *of descriptive warrants, all r* j/vn
of that date. Surveys were returned, purporting to -
have been made on the 24th and 25th of May, in the same
year, and were accepted in the surveyor-general's office on the

453



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