8 Paige Ch. 229 | New York Court of Chancery | 1840
This case has frequently been before the court in various shapes, and the facts upon which the principal question between the complainants and Nehemiah Rogers, the surviving executor of Archibald Grade, as to the right of priority of payment rests, are stated in the reports of the case in this court, and in the court for the correction of errors. (6 Paige’s Rep. 415, and 18 Wendell’s Rep. 319) It is not necessary, therefore, to recapitulate them here. As the court for the correction of errors decided that there was no specific appropriation of the French fund for the payment of the debts of such of the creditors of the copartnership as should consent to release the two junior members of the firm, the whole of that fund as well as other funds of the estate of Archibald Grade, which have come to the hands of N. Rogers, as his cx
It is a general principle that the release of one of two joint debtors discharges the original contract as to both; and that a covenant not to sue both has the same effect, to avoid circuity of action. A covenant not to sue one of two joint debtors, however, unless it clearly appears from the instrument that it was intended to discharge both, does not at law discharge either. So that a suit may be brought at law upon the original contract against both, if it was a joint contract, and against the one to whom the covenant was not given, if the contract was joint and several. In other words, it is in such cases construed to be a covenant merely, and not a release; so that the original contract against both debtors remains unchanged at law. (Hatton v. Eyre, 1 C. Marshall’s Rep. 603. Dean v. Newhall, 8 Term Rep. 168. Claggett v. Salman, 5 Gill & John. Rep. 314. Garnett v. Macon, 6 Call’s Rep. 341.) The cases in which the release of one joint debtor has been held to be a release of the original contract as to both, has indeed generally arisen when there was no agreement by the other party for his continuing liability. And I have not been able to find any case, decided in a court of law, where the question has directly arisen as to the effect of such a re
The question whether the English creditors can come in also as specialty creditors, by virtue of this covenant, depends upon the question whether they could have sued Archibald Grade upon the covenant if he was now living. And upon a careful examination of the terms of the assignment, and considering it as a personal covenant with each creditor, and not an assignment of the fund to such as should actually sign the instrument, so as to make it a specific appropriation, I see no difficulty in the English credi
The result is, in conformity with the decision of the court for the correction of errors, that N. Rogers is not to be put upon a perfect equality with other creditors with respect to the French fund. He is to be permitted to retain for the debts in which he had an interest, as mentioned in schedule A., in preference to any of the other creditors mentioned in that schedule, and in preference to other specialty creditors of A. Grade. And the other creditors mentioned in schedule A., are to be paid pro rata as between themselves and other specialtyr creditors, and in preference to creditors by simple contract.
A reference must therefore be made to master Ullman or master Sidell, to take an account of the debts due to any of the parties to this suit, or any other creditors of the estate of A. Grade, whether by judgment or decree, by spedalty, or otherwise, and to state the class to which such debts belong; placing the debts of the parties to this suit in the classes to which they belong as above declared ; and directing the several creditors to come in and prove their debts within the time fixed by the master, in conformity to the statute on that subject. And the master is also to state the account of the executor Hehemiali Rogers, charging him with interest as shall be equitable: with liberty to make a special report as to the fund in his hands, and of the amount due for which he is entitled to retain ; to the end that the surplus, if any, may he brought into court and invested to abide the event of the suit.
The motion to suppress the testimony of Samuel Rogers must be denied. The complainants’ counsel having consented to his examination on his voir dire and he stating that lie had no interest in behalf of the party- calling him, it was too lato to make an objection to him afterwards, founded upon the testimony of others. His testimony
In relation to the freight claim, received by S. Rogers, I see nothing at present to charge N. Rogers with it, or the firm with which he was once connected. It appears to have been received by Samuel Rogers as an individual. But if the firm was in any way benefitted by that money it ought to go to reduce the claim of N. Rogers to retain beyond the amount of the time and expenditures necessary for the collection of the money. A. Gracie was insolvent
The question of costs, and all other questions and dir rections are reserved until the coming in of the master’s rereport,
Affirmed, upon appeal to the court for the correction of errors, in De« cember, 1840.