Mortimer v. Caldwell

dissenting. O. and G. Caldwell, when they entered into contract with the plaintiff, were known to be in company; and eyery contract they made must be considered and governed by the true legal intention of the parties, and the laws of the state then in being and force; and if altered by any post facto law, or private act of the legislature, will operate to destroy or render void the original contract. Bacon’s Abr. tit. Statute c.; Salkeld, 198; Brewster v. Kitchel. But it cannot operate to subject the obligors, their persons or estate, in a different manner from what they were obliged at the time of the contract. On a bond, A. and B. are joint obligors; if the name or seal of one is taken off, it is destroyed as to the other.

*57Obarles and George, and each of tliem, at the time of contracting witli tbe plaintiff, knew and considered that the body and estate of each were pledged for the satisfaction, or to compel the payment of the debt: And Charles must consider, that the body of his brother George was liable to be taken and holden to compel him to turn out or produce his estate (if any) for the satisfaction of the debt, as well as his own: This also the plaintiff well knew, and was the legal security he depended upon. If the assembly, by a sovereign act, and of a private nature, have undertaken to liberate the person of George from being liable to be taken and holden to compel him to produce his estate, (if any) it materially alters the original contract and security, both as to debtors and creditors. And the creditor, by consenting thereto (without which the act could not operate to the disadvantage of Charles, the other partner) does as effectually discharge the original contract, as if by his own immediate act, he had discharged one of the joint debtors. In the present case, if judgment is rendered in favor of the plaintiff, he cannot take the body of George — George may possess large property, which can easily be kept out of the way of the creditor’s execution; and his body being exempt, there is no way to compel a discovery; (Eor that is the only solid ground or reason of the law subjecting the body to be taken.) Now the body of George being liberated, it necessarily casts the whole upon Charles, essentially different from the original contract. It is objected, that on the original contract, the creditor, if he pleased, might collect the whole out of the estate of either, or take the body of either without the other, and compel him to produce estate to pay the whole. True it is so; but then *58Charles bad an equal chance with George, that George might be compelled to pay the whole, or at least the one-half: But if the act in favor of George is operative in this case, it exempts George, and necessarily casts the whole upon Charles, contrary to the legal understanding and operation of the original contract.

It is further objected, that it appears from the law authorities, that by the operation of the bankrupt laws in England, where one partner becomes a bankrupt, the other is notwithstanding subjected to all intents and purposes, as though his partner had taken no benefit thereby. To which I answer, that the statute respecting bankrupts in England, is a general subsisting law of the kingdom, antecedent to all debts or contracts which are affected by it: Therefore, when a contract is made, (a general public law existing) such contract must be considered by the contracting parties, and understood as subject to such law. This is what I contend for. The act now pleaded, exempting the body of George, is a private act, which did not exist at the time this debt was contracted, but was made long since; therefore could not be had in consideration by the parties contracting: But the laws then existing, subjected the bodies of both to be taken, and held to compel a satisfaction of the debt; one of which is since liberated by this act: The plaintiff and the other creditors, have conformed themselves thereto; which essentially alters the original contract.

Another point of some weight and consideration in the case is, that the company debts and interests were all made over to George, and with the estate of George, by act of law and the creditors, was made over to commissioners appointed by the creditors, and the plaintiff in particular: And which *59commissioners are appointed and empowered to examine all debts and demands against said company, and ascertain the sums due, and to apportion out to the several creditors their several parts, as in case of insolvent estates, etc., and that the same still lies before the commissioners unfinished. I am, therefore, of opinion, the action does not at present lie before the courts of common law to ascertain the debt of any creditor, but before the commissioners: Neither can any certain judgment be rendered by this court in the present case, as the commissioners have not determined what is the plaintiff’s proportion of the estate in their hands.

Upon the whole, it appears unjust, and not consonant to reason or equity, that on a joint or company contract of George and Charles Caldwell, a judgment should be rendered which will subject the body of Charles to be taken and imprisoned, at the pleasure of a creditor, though no estate in his hands, when at the same time George may have a plentiful estate, but his body liberated, and no means left either for Charles himself, the plaintiff or any other creditor, to compel George to discover or produce his estate for the satisfaction of the company debts, or any part thereof, but Charles alone is subjected; contrary to his original contract and undertaking.

The plea is insufficient. The special act of insolvency set forth in the plea, goes to the exemption of the person of George, one of the defendants, (leaving his estate liable, which he may afterwards acquire). But it extends not to Charles, the other defendant. He is not named in it. Nor is it grounded on any supposed inability of his, to pay the company debts. Nor does it operate to discharge him on the ground of the supposed hardship there would be in his remaining liable, after the person of the other joint debtor is liberated, and the company effects and papers are gone into the hands of trustees and out of his control. If he is in fact more exposed and defenseless to his creditors, since the passing the act of insolvency, than he was before, it does not follow that it has discharged him. But he ever was liable to be relied upon, solely, for all the company debts, and all *56their contracts were, in their nature, joint and several. Nor is it owing to the passing of the act of .insolvency, that he has not right to control the company effects; he having sold and relinquished his share in them years before, at the dissolution of the partnership; and the act provides for no other assignment than of that which is considered as George’s estate. Nor need there be any difficulty about the company books and papers. Eree access may be had to them, and an order of court, if necessary, might be obtained for their being brought into court when requisite in the trial of a cause.

If the trustees have paid the plaintiff any part of his debt, •out of the avails of the effects assigned to them, it can be shown and applied when damages come to be assessed. A balance, it is clear, there must be due to him, even if the .assignment to the trustees be considered as an actual payment to the creditors, and to the nominal amount of the credits and -effects assigned. And no reason appears why judgment should not be rendered in the present action, for the ascertaining and recovering what still remains due.