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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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sole owner of it. The fact, however, is clearly not so ; nor can
it be made out by any reasonable intendment ; for they have
both endorsed the note. It was endorsed in blank by them, for the
purpose of taansferring all their right and title to it, as payees, to
the bank ; thus giving the bank where it was expected the note
would be discounted, not only all their right and title as joint
payees in it, but likewise the full benefit and security of their re-
sponsibility, as joint endorsers thereon. Carpenter and Overing-
ton being joint payees, in the note, and not connected in any way
as partners in trade, it is therefore clear, that their right to it,
could only be transferred by their joint endorsement. " If a bill,"
says Mr. Chitty in his treatise on bills and notes, page 226 (8th
ed.), " has been made or transferred to several persons not in part-
nership, the right of transfer is in all collectively, and not in anyone
individually." For which he refers to Carvick u. Vickery, Doug. 553,
note ; Jones v. Radford, 1 Camp. 83, note ; which seem to sustain the
proposition fully ; though it may be doubted whether Lord Ellenbor-
ough had sufficient reason in the latter case, for avoiding the appli-
plication of it there, if Smith v. Hunter, 1 Term Rep. 654, is to be
taken as authority. Carpenter and Overington having both endorsed
their names on the note in blank, and it being thus delivered to
the bank ; the tenor of the note, the object of endorsing and trans-
ferring it, together with the common understanding and practice
in this behalf, must lead and determine the character, nature and
effect of the endorsement. The note then being in its terms, to
pay jointly to Carpenter and Overington, and the object of their
endorsing, being to transfer their right to it, as the joint payees
thereof; and a joint endorsement being, if not the only, certainly
the most appropriate mode of affecting this end, makes it proper
that it should be considered and taken as such. But there is
another objection of some weight, against considering the endorse-
ment in the way the counsel for the plaintiffs would have it, that
is, as an endorsement of the note, first by Overington to Carpen-
ter, and then by Carpenter to the bank. The objection is this,
that an endorsement in common form, by one of two payees in a
negotiable note to the other, such as " pay the contents of this note
to Jacob Carpenter therein named, would not have made him liable
to pay the amount thereof, upon default of the maker. An endorse-

361



860 SUPREME COURT [Doc. Term,

[Kennedy r. Carpenter.]

ment in this usual form, will only have this effect, as I apprehend,
when it operates upon, and transfers a right to the whole contents
of the note ; and not merely a part thereof, which is the most that
the individual endorsement of one of two joint payees, not co-part-
ners, can pass. If this be correct, and I am inclined to think it is,
then the bank, according to the plaintiff's mode of disposing of the
endorsement would have had no security at all from Overington,
*qpi-i for the payment *of the note, upon the default of the defend-
-" ant, which would certainly be contrary to what was intended.
For notwithstanding the endorsement was in blank, I take it to be
clear, that if it were to be considered as an endorsement made by
Overington to Carpenter, no special engagement guarantying the
payment of the note could be written and filled up over the name
of Overington, so as to render him liable beyond the legal effect
of an endorsement written in the common form. If a blank endorse-
ment were to be considered as giving authority to the holder of the
note to write over it any stipulation he pleased for the payment
thereof, then the trouble and expense of making a demand upon
the drawer on the day of payment, and giving to the endorser
notice of the drawer's refusal to pay, in case he does so, might and
doubtless would be dispensed with in every case of a blank endorse-
ment, by writing over it, a special agreement of the endorser,
waiving all claim to these things being done, and taking upon him-
self the duty of seeing that the note was punctually paid at matur-
ity. Every day's practice, however, goes to show that this cannot
be done, and in Adis v. Johnson, 1 Vermont 136, it was ruled that
the endorsee had no right to fill a blank endorsement with any
special contract or warranty, but only with an order to pay the
contents to him for value received. See also Aymer v. Shelden,
12 Wend. 439.

The endorsement of Carpenter and Overington, must therefore,
be considered a joint endorsement ; and being joint, it follows,
that any obligation created by it upon them, must have been joint
also ; consequently, according to a rule of law, too well settled to
admit of either doubt or question, the death of Carpenter, before
the note became payable, or was paid, threw upon Overington, as
the surviving endorser, the whole obligation growing out of the
endorsement, to pay the note upon the default of the defendant : 5
Bac. Abr. 184, tit. Obligation, D. 4, Wilson's 6th ed. ; Towers v.
Moore, 2 Vern. 99 ; Foster v. Hooper, 2 Mass. 572 ; Whitaker v.
Keppele, 1 Binn. 123; Reed v. Garwin's Ex'ors, 7 S. & R. 854.
So on the other hand any right that accrued to them as payees of
the note, to maintain an action thereon against the defendant, sur-
vived to Overington upon the death of Carpenter ; and no action,
after the death of the latter, could be supported upon the note,
except in the name of the former. The present plaintiffs therefore
362



1836.] OF PENNSYLVANIA. , 361

[Kennedy v. Carpenter.]

can maintain no action upon the note in their own names, either
in their representative character or otherwise : Rolls v. Yale, Y'elv.
177 ; s. c. 2 Brownl. 207 ; 1 Bulstr. 25 ; Bull. N. P. 157-8 ;
Anderson v. Martindale, 1 East 497.

The obligation, arising out of the endorsement, by Carpenter
and Overington, of the note to the bank, being joint, it cannot be
questioned, but that at law the obligation survived against Overing-
ton alone, and the estate of Carpenter became thereby discharged
from all liability on account of it. Had Carpenter derived any
benefit or *advantage from his endorsing the note, by having r*opo
received the money or any portion thereof advanced upon I
it, the bank might then have had a claim in equity against his
estate, if Overington and the defendant had proved insolvent and
unable to pay. But Carpenter and Overington appear to have
derived no advantage whatever from the advancement of the money
or the creation of the debt, and are therefore to be considered in
equity as mere sureties for the defendant ; consequently the bank
can have no claim, founded upon equitable principles, against the
estate of Carpenter, after his death, for the repayment of the money :
Ratcliffe v. Graves, 1 Vern. 196-7 ; Harrison v. Field's Ex'ors, 2
Wash. 136; Packers. Julius, 2 Browne 31; Weaver v. Shryock,
6 S. & R. 262.

Carpenter's estate then being in no wise chargeable with the
payment of the note to the bank, the plaintiffs must therefore be
considered as having paid the money voluntarily, for which they
seek to recover here. But it has been argued that though Car-
penter's estate may have been discharged, by his death, from the
payment of the note, as to the bank, yet not as to Overington ; that
if Overington had been compelled to pay the whole or any part
thereof, which the defendant had been unable to reimburse him,
the estate of Carpenter would have been liable to one-half of the
loss, whatever it might have been. This liability, it is contended,
arises from an implied promise growing out of the fact of their hav-
ing become the joint sureties of the defendant. And certainly,
unless there was an agreement, either express or implied, made by
Carpenter in his lifetime, to divide the loss with Overington, that
might accrue from their endorsement of the note in any event that
should happen, the right on the part of Overington to claim contri-
butions from Carpenter's estate would not be sustainable.

Now it is perfectly clear from the evidence, that there was no
express agreement on the part of Carpenter to this effect ; nor
indeed any agreement between them on the subject, save the
implied agreement, which, it is insisted on, arose from the mere
fact of their becoming the joint sureties of the defendant. And
indeed it would seem from the cases of Johnson v. Johnson, 11
Mass. Rep. 360 ; Taylor v. Savage, 12 Id. 98, and Bachelder v.

363



362 SUPREME COURT [Dee. Term,

[Kennedy r. Carpenter.]

Fisk, 17 Td. 464, to have been so adjudged by the Supreme Court
of Massachusetts, and to be considered there, the settled founda-
tion upon which the right to contribution, as between co-sureties,
rests. And accordingly, in the last of those cases it was held, that
where the money had been paid after the death of the co-surety, an
action of assumpsit would lie against his executors, upon an implied
promise of the testator to contribute towards indemnifying his sur-
viving co-surety. It seems impossible, however, in a great many
of the cases, where the right to contribution has been held to exist,
to fix it upon the basis of a contract, either express or implied.
*3631 ^ ls * s demonstrated very clearly *by Chief Baron Eyre
J in the case of Deering v. The Earl of Winchelsea, 1 Cox
318 ; s. c. 2 Bos. & Pul. 270. It is possible, however, that a
right to contribution may be created by express contract, where,
without it, the right could not exist. Craythorne v. Swinburne,
14 Ves. 165. And certainly it may be regulated, restrained, or
qualified by contract in any case. Swain v. Wall, 1 Chan. Rep.
149. It is a mistake to conclude, because the right of contribution,
in certain cases, appears to be connected with privity of contract
between the parties, that therefore it must be referred to contract
for its foundation in all. For then we should be compelled to
decide against the right in every case, where it becomes impossible
to connect it with a contract in some way, to which the parties were
privy. And this would set the right aside altogether, perhaps, in
a majority of the cases on this subject, where it has ever been held
to exist; and in short never controverted. It becomes necessary,
therefore, to place it upon some general principles, which are alike
applicable to all cases, where it has ever been held to exist, in order
to sustain the right. Accordingly it was decided in the case of Deer-
ing v. The Earl of Winchelsea, that the doctrine of contribution, as
between sureties, was not founded on contract, but upon general
principles of justice, which govern all cases; that it is the result of
general equity on the ground of equality of burthen and benefit,
according to the maxim, which prevails in a court of law as well as
in equity, qui sentit commodum, sentire debet et onus. In Cray-
thorne v. Swinburne, 14 Ves. 169, this doctrine is recognised and
fully approved by Lord Eldon ; and he observes in regard to it,
that this equity being universally acknowledged, persons acting
under circumstances, to which it applies, may properly be said to
act under the head of contract, implied from the universality of the
principle; and upon that ground stands the jurisdiction assumed
by courts of law. Likewise, in Campbell v. Mesier, 4 Johns. Ch.
337, Chancellor Kent affirms the doctrine, that contribution is not
founded on contract, but on the principle, that equality of burthen
as to the common right, is equity. Mr. Justice Story, in like
manner, in his Commentaries on Equity Jurisprudence, Vol. I., p.
364



1836.] OF PENNSYLVANIA.

[Kennedy v. Carpenter.]

471-2, sec. 493, lays it down, that " the claim certainly has its
foundation in the clearest principles of natural justice ; for as all
are equally bound, and equally relieved, it seems but just, that in
such case all should contribute in proportion towards the benefit
obtained by all, upon the maxim, qui sentit commodum, sent ire
debet et onus. The ground of relief does not, therefore, stand upon
any notion of mutual contract, express or implied, between the
sureties, to indemnify each other in proportion (as has been some-
times argued); but it arises from principles of equity independent
of contract." And in conformity to these principles, it was deter-
mined by the court of appeals in Maryland, in the case of Waters
v. Reily, 2 Harris & Gill 305, that the estate of a decedent, who
was one of two co-sureties in a bond, *was not liable to con- r*op^
tribute to the surviving surety, or his representative, for *
money paid by him on the bond, though the principal was insol-
vent. But Mr. Justice Story is quoted, and said by the counsel
for the plaintiffs, to have laid down a principle directly contrary to
this, in his Commentaries on Equity Jurisprudence, Vol. I. p. 475,
sec. 497, where he says, "if one of the sureties dies, the remedy at
law lies only against the surviving parties ; but in equity it may
be enforced against the representative of the deceased party, and
he may be compelled to contribute to the surviving surety, who
shall pay the whole debt." In support of this, he refers to the
case of Primrose v. Bromley, 1 Atk. 89. By the term "sureties"
here, I apprehend, that joint debtors merely are meant, such as had
all derived a benefit from the debt, and therefore, were bound in
equity, on account of the beneficial consideration, as well as at law,
while living, to pay it: it could not have been used, I think, for
the purpose of distinguishing mere sureties from those for whose
benefit the debt was created. The authority referred to will not
support any other meaning than what I have suggested. But
besides, to construe the proposition as contended for by the counsel
of the plaintiffs, would be making it contradict the principles laid
down by the writer in page 471-2, and previously cited above.

By the application then of the doctrine, on the subject of con-
tribution to this case, which seems not only to be in accordance
with the principles of justice, but to have been generally received
and established by the most respectable authority, the conclusion
becomes irresistible that the plaintiffs have no claim against the
defendant. The estate of their intestate being completely dis-
charged by his death from the payment of the debt owing to the
bank, and no longer chargeable with it, either at law or in equity,
the payment by the plaintiffs must be viewed as voluntary, and the
same as if any other person never having had any connection with
it, had paid it. To permit them therefore to maintain a suit in
their own names, either as the administrators of Carpenter, or other-

365



364 SUPREME COURT [Dec. Term,

[Kennedy r. Carpenter.]

wise, against the defendant for the money paid to the bank, would
be contrary to the rule so well established, that a third person can-
not make the debtor of another his debtor, by paying the debt for
him to the creditor, without the debtor's consent, so as to maintain
an action in his own name against him for money paid, laid out,
and expended to his use.

So if Overington had paid the money, he would have had no
right to contribution from the estate of Carpenter, because his doing
so, would have relieved the estate of the latter from no burthen
whatever ; it was effectually relieved even before the debt became
payable, by the death of Carpenter, so that there was no equality
of burthen existing.

Judgment reversed.

Cited by Counsel, 5 Whart. 331 ; 9 Watts 180; 3 Wright 171.
Cited by Strong, J., 7 P. F. Smith 155.
Followed, 6 Barr 57.



*[PHILADELPHIA, FEB. 18, 1837.]

Chambers against Carson.

1. A scire facias upon a mortgage of lands in Dauphin county, was sued
out of the Court of Common Pleas of that county in 1793, and removed into
the Supreme Court in 1794, where judgment was entered for the plaintiff in
1797. Held, that a scire facias quare executionem non, was properly issued
out of the Supreme Court in 1834.

2. It is not necessary by our practice to obtain the leave of the court be-
fore issuing a scire facias quare executionem non, upon a judgment more
than thirty years old.

3. A scire facias upon a mortgage is not within the 34th section of the act
of the 24th of February 1834, requiring the widow and heirs or devisees of a
decedent to be made parties to a suit against his executors, &c.

4. The 39th section of the act of the 13th of June 1836 was intended to
provide a method of serving the writ of a scire facias, when service can be
made, and not to alter the practice of returning nihil when service cannot
be made.

THIS case came before the court again (see ante, p. 9), on a rule
obtained on the 14th of February, by Mr. McClure on behalf of
the defendant, to show cause why the judgments upon the scire
facias and a levari facias since issued to Dauphin county, should
not be set aside.

On the hearing, the circumstances appeared to be as follows :
On the 10th day of July 1789, John Carson, the defendant's
intestate, gave a mortgage upon certain lands in Dauphin county,
to one Frederick Pigou of London, to secure the payment of 378U.
5*. 4t?. sterling. Upon this mortgage a scire facias was sued out in
the Court of Common Pleas of Dauphin county, to September
366



1836.] OF PENNSYLVANIA. 3G5

[Chambers v. Carson.]

Term 1793, and this suit was removed by the defendant, into the
Supreme Court in Philadelphia, to April Term 1794, where judg-
ment was entered for the plaintiff by agreement of parties for 2156Z.
7s. 4c?., on the 30th day of December 1797. On the same day
this judgment and mortgage were assigned to Thomas Duncan
(the plaintiff's testator), who was the brother-in-law of the defend-
ant, John Carson, for a full consideration ; and the judgment was
afterwards marked to his use upon the docket of this court.

Nothing further appears on the records of this court, until May
1834, when the present plaintiff issued a scire facias post mortem,
and post annum et diem, upon this judgment, directed to the sheriff
of Philadelphia county, returnable to the term of July 1834, when
the sheriff made his return " nihil habet." An alias scire facias
was then issued to December Term 1834, upon which a similar
return was made ; and on the 15th day of December 1834, judg-
ment was entered on motion of 0. Chauncey, Esq., for the plain-
tiff. *0n the th day of February 1836, a scire facias post r*qfifi
annum et diem was issued upon this judgment, directed to L
the sheriff of Philadelphia county, returnable to March term 1836,
which was returned by the sheriff " nihil habet," and an alias was
issued to July 1836, upon which the sheriff made a similar return,
and on the first day of this term, judgment was entered for the
plaintiff on motion, in open court. On this judgment a levari
facias was issued on the 3d day of February 1837, to the sheriff of
Dauphin county, with a clause stating that it had been suggested
by the affidavit of the plaintiff, according to the provisions of the
76th section of the act of 16th June 1836, that there was no pro-
perty on which the execution could be levied in Philadelphia.
Under this execution, the mortgaged premises in Dauphin county,
were levied upon by the sheriff, and advertised for sale on the 14th
of March following.

The rule was obtained on the following affidavit of the defend-
ant, viz. :

" Before me, a justice of the peace, in and for the county
aforesaid, personally came Charles Carson, administrator of John
Carson, deceased, who being duly sworn, doth depose and say,
that his father died a number of years since in Dauphin county,
and that administration of his estate was granted by the register
to this deponent, and to his brother, John P. Carson, who is like-
wise now dead seven or eight years since. Depone:: t further
says, that he has resided constantly in the county of Dauphin,
and borough of Harrisburg for the last six years, and that no
writ of scire facias, or citation, or notice of any kind has been
served on him, or given to him by the sheriff of Philadelphia
county, or any other person, of any proceeding being had in the
Supreme Court of Pennsylvania, on the above judgment, which

367



366 SUPREME COURT [Dec. Term,

[Chambers r. Carson.]

this deponent believes was settled and paid off many years before
the death of his father. Deponent further says, that he knows
among other things, of Thomas Duncan's getting 100 acres of
land of his father, part of the old farm, which would at one time
have sold for $100 an acre; and he believes he got deponent's
mother's share in her father's Stephen Duncan's estate, of which
Thomas Duncan was one of the executors. Deponent further
says, that the first notice he had of this matter was a few days
since, when the sheriff mentioned the fact of his having a writ of
execution to this deponent ; and further saith not."

Mr. McClure now contended that the judgment should be set
aside, as entered improvidently, and contrary to law, for several
reasons. First, The scire facias post mortem, &c., on the original
judgment of 1797, was in the name of Thomas Chambers,
administrator, &c., without any notice of F. Pigou, the original
plaintiff. Second, That this proceeding had been had after the
lien of the judgment had expired. By the act of 1799, establish-
*3fi71 * n tne Circuit Courts, it is *declared that no judgment
J shall be a lien upon lands, except in the county where it
is given; and by the act of 1705, proceedings by scire facias on
a mortgage, must be in the county where the land lies. But
here the proceeding was had in a distant county, and that too
more than thirty-five years after the judgment was rendered, when
it must, on the face of the record, be presumed to have been satis-
fied. Cope v. Humphreys, 14 S. & R. 15. And by the rules of
this court, 5 Rawle 364, no judgment can be entered on a warrant
of attorney more than 20 years old, without notice given to the
defendant, if he be within the state of Pennsylvania; and by the
acts of 1798 and 1836, judgments do not continue liens on real
estate, longer than five years, unless renewed. Again, these judg-
ments were erroneous, because the scire facias was not in accord-
ance with the 34th sec. of the act of 21st February 1834, which
requires that the widow and heirs, or devisees of a decedent, shall
be made parties to any action by which it is intended to charge the
real estate of the decedent. And finally, that the scire facias in
this case was not served in the manner prescribed by the 39th sec.
of the act of 13th of June 1836, directing the service of writs of
scire facias to be in the same manner as in cases of summons. As
to the execution, if the court had jurisdiction of the case, they
might perhaps frame a writ of execution, but they had no juris-
diction, and therefore could not issue execution to Dauphin county;
and there was no precedent for a testatum levari facias. On these
grounds he contended, the judgments and executions should be set
aside, and the plaintiff remitted to his remedy by suit on his bond,
3G8



1836.] OF PENNSYLVANIA. 367

[Chambers . Carson.]

or ejectment on his mortgage, if the claim were not really and in
fact satisfied.

Mr. Bayard and Mr. Sergeant (with whom was Mr. Chauncey),
for the plaintiff first showed the facts of the case, which were not
on the record, viz. :

That on the 3d of February 1808, John Carson, the defend-
ant's intestate, by a written instrument of that date, recognised
the assignment of the judgment and mortgage to Thomas Dun-
can, on the 30th December 1797, on which Thomas Duncan was
to give him credit as of the 14th March 1798, for one hundred
acres of land, at 1500Z. ($4000), and for a horse at 35Z. ($93.33)
and he, John Carson, agreed that the judgment should be con-
sidered as revived, and the mortgage renewed to Thomas Duncan.
That in November 1820, Charles Carson, the present defendant
(his father then being dead), recognised the existence of the
mortgage in a letter to his uncle, Thomas Duncan, requesting
his assistance in procuring a loan from one of the city banks,
upon this property ; and on the 4th of January 1821, executed
an instrument acknowledging that Thomas Duncan had agreed
that his mortgage should be postponed to the mortgage then
to be given to one of the banks for such loan. That in 1824,
an adjustment of the claim of Judge Duncan, upon John
* Carson's estate, under this mortgage, was made by James r*qpo
Duncan, acting on behalf of his brother Thomas, and John L
M. Foster, Esq., on behalf of Charles Carson, the defendant ;



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 41 of 68)