Lefferts v. De Mott

21 Wend. 136 | N.Y. Sup. Ct. | 1839

By the Court,

Cowen, J.

The English rule formerly was, that a partner of the defendants, though omitted as a party, could not be rendered competent by any interchange of releases between him and his copartners, because;, should the plaintiff fail to collect the debt of the defendants by reason of their "death or insolvency, he might still sue the witness in equity. 1 Phil. Ev. 60, 134, 7th ed. Cheyne v. Koops, 4 Esp. R. 112. , Simons v. Smith, Ryl. & Mood. N. P. Cas. 29. There-is, however, according to our own cases and one-in Massachusetts, an end of all claim both at law and in equity against the partner not sued, by a recovery in a separate action against his copartners." Robertson v. Smith, 18 Johns. R. 459. Gibbs v. Bryant, 1 Pick. 118. Penny v. Martin, 4. Johns. Ch. R. 566. This is a general if not an universal rule as to joint debtors, and even joint and several debtors, who are sued jointly. A judgment against one extinguishes all farther remedy against the other on the original obligation. Beltshoover v. The Commonwealth, 1 Watts, 126. Williams v. M’Fall, 1 Serg. & Rawle, 280. Downey v. Farm. & Mech. Bank of Greencastle, 13 id. 288. See also Bedell’s adm’r v. Keethley, 5 Monroe, 601, and Vaneman v. Herdman, 3 Walts, 202. Therefore in Bagley v. Osborne, 2 Wendell, 527, this court held that a release from the defendant to the witness restored his competency. See also Willings v. Consequa, l Peters’ C. C. R. 301, 306, S. P. Le Roy, Bayard & Co. v. Johnson, 2 Peters’ R. 186, S. P. See also Chapman v. Andrews, 3 Wendell, 240, 243; Ransom v. Keyes, 9 Cowen, 128 ; Clarkson v. Carler, 3 id. 84; and Robertson v. Mills, 2 Har. & Gill, 98. The king’s bench in the late case of Wilson v. HirsttA Barn. & AdoL 760, have come to the same result upon similar premises, with the qualification that instead of a single release, viz. from the defendants to the witness, there must be mutual releases, as in the case at bar. Mr. Phillipps, therefore, in his 8th edition, A. D. 1838, 1 vol. p. 153, 4, has recanted his former rule. The .English case cited proceeds on the notion that; by a recovery against thé defendants, the surplus of the witness on winding mp the accounts of the firm will be diminished, and that he should therefore be required to release ■ his interest in that surplus, at least so far as it may be affected by the sum in controversy. He is supposed, without; such release, to be still testifying in favor of a fund in which he is interested. T have thought a good deal of that, on different occasions, but never could see how the witness* partnership balance was to be affected, after the defendants^ by their release to him, had cut off all claim to contribution either for damages or costs. Surely they can never after-wards make any charge which shall diminish his interest in any way. Can the plaintiffs proceed by execution against the partnership fund in his possession ? According to óur own decisions, and what fell from the king’s bench in Wilson v. Hirst, there is an, end of'the partnership claim, as such, be the recovery which way it will. The plaintiff has individualized the debt. To be sure, he may levy on the common property ; but I take it this must be like any other levy upon an execution against A. on the goods of A. and B., copartners. It stands subject to an account between A. and B., when the share of A. alone after firm debts paid.is made available. Such a consequence is no argument for shutting out the copartner of A. as interested. His oath is directed, not to the protection of his own, but A.’s interest only.

In the case at 'bar, if mutual releases were necessary, there may be some question whether that executed by Sand-ford was so worded as to reach and cut off his surplus ; but I cannot bring myself to think that a release from him was necessary. An additional reason, if any be requisite, is as stated by Sandford orí his voir dire, that no property was left to the firm which was tangible to a legal execution; and it is clear that the choses in action of the firm could not be reached by a creditor’s bill beyond the defendant’s separate interest subject toan account.

There is however, I think, no reason for revising the doctrine of Bagley v. Osborne, and adding the release from the witness. That which he received here was sufficient in form; it simply discharged him from all contribution, and in legal effect therefore, threw the whole suit upon the shoulders of the defendants. The referees evidently proceeded on the notion, as it formerly stood in the English books, of the witness’ ultimate liability oil his copartner’s death or insolvency. In this we think they erred.

The report must, therefore, be set aside, and the cause be reheard by the same referees, the costs to abide the event.