Bank of the United States v. Weisiger
27 U.S. 331

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U.S. Supreme Court

Bank of the United States v. Weisiger, 27 U.S. 2 Pet. 331 331 (1829)

Bank of the United States v. Weisiger

27 U.S. (2 Pet.) 331

APPEAL FROM THE CIRCUIT

COURT OF KENTUCKY

Syllabus

This Court has decided that a suit could be maintained in equity by the holier of an endorsed note, against a remote endorser, and upon grounds perfectly familiar to courts exercising equity jurisdiction.

It has been decided in Kentucky that a suit at law could not be maintained in that state by the endorsee against a remote endorser. The conclusion then results from our own decisions that he must be let into equity, for an endorsement is certainly no release to the previous endorsers, and the ultimate assignee alone is entitled to the benefit of their liability. And this we understand to be consistent with the received opinions and practice in Kentucky.

The law in Kentucky is settled, as it is in Virginia and in this Court, that upon Virginia contracts by endorsement of promissory notes, very reasonable effort must be made to recover of the drawer by suit, before the assignee can have recourse against the assignor or endorser.

It is upon the question what constitutes such diligence that all the difficulties arise in suits upon these contracts. And certainly this Court cannot be called upon to carry the obligations imposed upon assignees on this point further than the state courts have already extended them.

What will be considered a sufficient compliance with the requisitions of the laws of Kentucky imposing diligence in the prosecution of a suit against the drawer of a note by the endorsee in order to charge a prior endorser.

The discharge of an insolvent under the statutes is the most satisfactory evidence of insolvency. After such discharge, it is not required that process of execution shall be issued against the party in order to conform to the injunction of diligence.

The 2d, 3d, and 4th sections of the Act of January 6, 1806, entitled "An act for the relief of persons imprisoned for debts," make provision for the discharge of persons confined under execution, and the 5th section extends "the privileges and relief" of that act to persons in confinement, against whom judgment is obtained but no execution issued. Under the provisions in favor of persons charged in execution, on the day of arrest, a notice may be served upon the person at whose suit they are confined, and at the end of thirty days, they may be discharged. By the 5th section it is enacted

"That any person imprisoned upon process issuing from any court of the United States, except at the suit of the United States in any civil action against whom judgment has been or shall be recovered shall be entitled to the privileges and relief provided by this act after the expiration of thirty days from the time such judgment has been or shall be recovered, though the creditor should not within that time sue out his execution and charge the debtor therewith."

It has been argued that under this section the defendant must remain in prison thirty days after judgment before he can sue out his notice to the plaintiff, thus requiring him to remain sixty days in confinement in the cases which come under this section, whereas he remains but thirty days when confined under execution.

There can be no reason for this distinction, and in favor of liberty, and with a

Page 27 U. S. 332

view to consistency, the construction should be otherwise. If such were the true construction, the relief would not be the same as is extended to debtors of the other class. The day of entering judgment under the 5th section is the day that corresponds to the day of arrest, under the previous provisions of the law, and therefore in thirty days after the judgment, the defendant maybe discharged, complying with the other requisitions of the law.

Where the agent of the plaintiff agreed in writing to dispense with the imprisonment required by law, to entitle the defendant to be discharged under the insolvent law of the United States, and the defendant who was in confinement was discharged without having been imprisoned thirty days, this was not such a proceeding as would bar the assignee of the note to recover against a subsequent assignor. The object of the imprisonment is to give the plaintiff an opportunity to ascertain the situation of the defendant, and if he does not require this, it may be waived without prejudice to his claims on others.

A discharge under the insolvent laws of the United States is confined in its effects altogether to the particular cause, and even as to that does not exempt the debtor's present effects or future acquisitions from the process of the law. Nor is his person exempt from confinement for the same debt should he be detected in a fraud upon the creditor.

The complainants' bill, filed in the Circuit Court of Kentucky, on 22 November, 1822, stated that on 25 July, 1821, Peter G. Voorhees made his promissory note for $2,560, payable sixty days after date, to Daniel Weisiger; that Weisiger assigned to John H. Hanna, and Hanna to the complainants, who discounted the note. That they duly instituted a suit against Voorhees on the common law side of the court, recovered judgment, and prosecuted him to insolvency. It prayed that the defendant may be decreed to pay the amount, with interest and costs.

Annexed to the bill is a copy of the record of the proceedings against Voorhees, from which it appears that the declaration was filed on 2 October, 1821, and on the same day a writ of capias ad respondendum was issued, with this memorandum: "This is an action of debt; bail required." The marshal made return to the writ, as follows -- "Executed 6 October, 1821, and committed defendant to jail of Franklin County; receipt hereon." The jailor's receipt bears date 5 November, 1821.

At November term, 1821, judgment was entered for the plaintiffs by default, for $2,560, with interest from 26 February (September), 1821, and costs. Afterwards, on

Page 27 U. S. 333

14 December, 1821, the jailor of Franklin County surrendered the body of Voorhees into court.

On 29 December, 1821 a fieri facias issued, which was placed in the hands of the marshal on 19 January, and the marshal returned "No estate found."

On 11 April, 1822, a writ of capias ad satisfaciendum issued, to which the marshal returned "Not found."

To this bill the defendant Weisiger moved the court for leave to file a demurrer, alleging for cause, that the bill did not aver the prosecution of any suit against Hanna, the immediate assignee of the complainant, and that Hanna was not made a party defendant; that the bill contained no case of equitable jurisdiction, nor for a decree against Weisiger, and was altogether void of equity.

Afterwards, in the same term, the defendant Hanna appeared and waived all objection to a decree on account of the want of service of process upon him, and Weisiger waived the demurrer so far as respected the want of proper parties.

And at the following term, the court overruled the demurrer.

At May term, 1826, the defendants failing to answer according to rule, the bill was taken for confessed, and the cause came on for hearing on the bill and exhibits, whereupon the court decreed that the complainants should recover from the defendant Weisiger the sum of $3,278.17 and costs unless, &c., which decree was afterwards set aside on Weisiger's motion, and leave given him to file an answer.

The answer of Weisiger, protesting against the jurisdiction of the court, relies and insists, by way of plea in bar to the relief claimed, that the matters contained in the bill, if true, do not constitute a case for the interposition of a court of equity, but are cognizable at law and relies upon the 16th section of the Judiciary Act of 1789. It admits that he may have put his name on the note, but denies that he ever received any consideration for the same, or that it was ever passed or negotiated by him or for his use or benefit. He answers further that he did not of his own knowledge know

Page 27 U. S. 334

of the discount of the note, although he was informed that such discount had been made, and for a long time believed that it had been fully satisfied by Voorhees; that he is advised that the proper measures were not adopted in due season to enforce the payment; and that the proceedings had were not such as to authorize a recovery against him, inasmuch as the return of the marshal shows that Voorhees was committed to jail, and it does not appear that he had ever been discharged or escaped, and there does not appear to have been any order to charge him in execution; nor is there any return that he had no property or estate on which the fieri facias might have been levied. He does not admit that Voorhees was insolvent at the time the judgment was obtained against him, but believes he then had estate within the district sufficient to satisfy the same in whole or in part.

The complainants' amended bill states, that before the rendition of the judgment against Voorhees; he was brought before the district judge, took the oath required by the act of Congress, and was discharged as an insolvent from the custody of the jailor. Shortly after, and before the return of the fieri facias, he left the state, and has ever since remained out of it, leaving no estate upon which the amount could be levied, or any part of it; all of which is averred to be personally known to Weisiger, as is also the fact that he endorsed the note for the accommodation of Voorhees, and to give him credit, and with the view and expectation that it would be discounted by the bank.

The exhibit referred to in the amended bill states the proceedings to discharge Voorhees from imprisonment, in three suits of the bank of the United States, entitled as follows:

The president, directors, and company of the Bank of the United States, plaintiffs v. Peter G. Voorhees, defendant.

The Same v. The Same.

The Same v. George M. Bibb, Charles S. Todd, and Peter G. Voorhees.

The judge's order to discharge, dated 14 December, 1821, states that Voorhees was imprisoned in the jail of Franklin County by process in these suits; that judgment

Page 27 U. S. 335

had been rendered in the suits, and he had petitioned to have the oath administered to him; that a citation had been served upon Henry Clay, Esq. agent, &c., that they appeared, and no good cause being shown, the oath was administered, and he was discharged.

The citation bears date 14 December, 1821, and requires appearance on 7 January following. And then there is a paper of which the following is a copy:

"I agree, on behalf of the Bank of the United States, to waive the previous imprisonment by law to entitle the defendant to take the oath of an insolvent debtor, and that the said oath may be now administered, with the same effect as if that imprisonment had taken place. 14 December, 1821."

"[Signed] H. CLAY"

"Counsel of the B.U.S."

Upon the bills, answer, and exhibits above set forth, the court, at May term, 1827, decreed the complainants' bill to be dismissed with costs.

Page 27 U. S. 347

MR. JUSTICE JOHNSON delivered the opinion of the Court.

This case turns altogether upon doctrines peculiar to the states of Virginia and Kentucky. It is the case of a suit in equity, instituted by the endorsee, or, in the language of the country, the assignee, of a promissory note, to charge an intermediate endorser. All the doctrine on the subject will be found fully stated in the two cases of Riddle & Co. v. Mandeville & Jameison, reported among the decisions of this Court, and in the cases of Smallwood v. Woods and Spratt v. McKinney, to be found among the decisions of the Court of Appeals of Kentucky.

The defendant here has demurred to the bill, for want of equity, and this raises the first question in the cause.

In the last case decided in this Court, Riddle & Co. v. Mandeville & Jameison, which was a case in most respects similar to the present, this Court decided that a suit could be maintained in equity by the holder of an endorsed note against a remote endorser, and upon grounds perfectly familiar to courts exercising equity jurisdiction. It was a Virginia contract, governed by the same law which is of force in Kentucky. This Court had before decided that by the laws of the country governing the contract, a suit at law could not be maintained between the holder of the note and a remote endorser. But then a suit at law could have been maintained by him against the immediate endorser and by him against the preceding endorser and so on through any number of endorsers. This presented the ordinary case of an assignment of a chose in action, which transfers an interest without the right of action.

To maintain this demurrer, then, it was incumbent on the defendant to have shown that there was some principle in the jurisprudence of Kentucky that could sustain a

Page 27 U. S. 348

distinction between his case and that previously decided here; but everything concurs to repel the idea of such a distinction. In the case of Drake v. Johnson, the Court of Appeals of Kentucky also decided, that a suit at law could not be maintained in that state by the endorsee against a remote endorser.

The conclusion then results from our own decisions that he must be let into equity, for an endorsement is certainly no release to the previous endorsers, and the ultimate assignee alone is entitled to the benefit of their liability. And this we understand to be consistent with the received opinions and practice of Kentucky.

The second point made for the defendant is that as he received no consideration for assigning the note, he is not liable at all.

But on this it is only necessary to observe that he endorsed it to give credit to Voorhees, the promisor, and the law therefore imputes to him the consideration paid to Voorhees.

The most material point in the cause, and that on which the decision below was rendered in favor of the defendant, was the want of due diligence against the drawer of the note. The law is settled there, as it is in Virginia and in this Court, upon Virginia contracts of this description; that every reasonable effort must be made to recover of the drawer by suit before the assignee can have recourse against the assignor or endorser. It is on the question what constitutes such diligence that all the difficulties arise on suits upon these contracts. And certainly this Court cannot be called upon to carry the obligations imposed upon assignees on this point, further than the state courts have already extended them.

There are three grounds on which the defendant would impute to the complainant a want of diligence fatal to his right to recover.

The first is that the fi. fa. did not come to the marshal's hands, until the expiration of about thirty-six days after the judgment was obtained and nineteen after it issued.

The second, that the ca. sa. did not issue until about three months and a half after the fi. fa.

Let it be observed that the note fell due on 25

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September, the writ was issued on 2 October; the judgment was entered the November term following; and the drawer, Voorhees, being held in custody for want of bail, was discharged as insolvent on 14 December of the same year.

Justice can hardly be charged with a halting gait thus far. As to her subsequent progress, it does not appear on what day the court for November term adjourned; but as the fi. fa. bears date on 29 December, it is presumable that it sat on that day. The fi. fa. did not reach the office of the marshal until three weeks after, and the ca. sa. was not sued out at the time when the fi. fa. issued. But it was sued out at the term to which the fi. fa. was returnable, to-wit, on 11 April, 1822. So that from the time the note fell due, to the last step in the progress of judicial means for enforcing payment, we count but six months and a half. We do not recognize the supposed obligation or power of the party, in the circuit court, to sue out the ca. sa. contemporaneously with the fi. fa., and with the exception of that interval, we are rather inclined to attribute to the complainant extraordinary diligence, than culpable delay.

But why were the executions issued at all in this case, except from abundant caution and to avoid the imputation of laches? Was it necessary? The courts of Kentucky have certainly decided otherwise. In the case of Stapp v. Anderson, 1 Marsh. 240, they express themselves thus:

"The discharge of an insolvent under our statute is a judicial act, of a record character, and is in its nature, as it must be in contemplation of law, the most satisfactory evidence of the insolvency of the person discharged."

This, it is true, was declared respecting a discharge in another suit, on a different cause of action, under the insolvent law of the state, and upon a ca. sa. But it would be difficult to assign a reason why it should not apply to a discharge in a suit on the same cause of action, under the law of the United States, and where the defendant was in custody under an order for bail. In both instances, a state of insolvency is judicially established, and as the court expresses itself in

Page 27 U. S. 350

the same case, "it would have been worse than idle," nay, in this case it would have been false imprisonment, to have retaken the debtor if, as the defendant contends and no doubt was the fact, he was discharged under the suit upon this note.

The third and last ground of laches, and that which it appears, by a report handed to us, influenced the court below, was the consent of the agent of the complainant to dispense with the imprisonment to which the drawer of the note might have been subjected before he would have taken the oath and received a discharge under the act of Congress.

The correctness of the decision below upon this point must be tested by considerations drawn from the object of the imprisonment, the influence of the discharge upon the loss of the debt, and from adjudged cases. We are inclined to think that it has been rather too hastily conceded that no case similar to the present has been adjudicated. That it adds another to the long list of instances of laches which have been held to be fatal to the recovery of the assignee against his assignor in that country cannot be doubted.

This case, it must be recollected, comes within the fifth section of the Act of January 6, 1800, entitled "An act for the relief of persons imprisoned for debt." The second, third, and fourth sections of that act make provision for the discharge of persons confined under execution, and the fifth section extends "the privileges and relief" of that act to persons in confinement, against whom judgment is obtained but no execution issued. Under the provisions in favor of persons charged in execution on the day of arrest, a notice may be served upon the person at whose suit they are confined, and at the end of thirty days they may be discharged. By the fifth section it is enacted

"That any person imprisoned upon process issuing from any court of the United States, except at the suit of the United States, in any civil action, against whom judgment has been or shall be recovered, shall be entitled to the privileges and relief provided by this act, after the expiration of thirty days from the time such judgment has been or shall be recovered, though the

Page 27 U. S. 351

creditor should not, within that time, sue out his execution and charge the debtor therewith."

It has been argued that under this section the defendant must remain in prison thirty days after judgment before he can sue out his notice to the plaintiff, thus requiring him to remain sixty days in confinement in the cases which come under this section, whereas he remains but thirty days, when confined under execution.

There can be no reason for the distinction, and we think that in favor of liberty and with a view to consistency, the construction should be otherwise. If such were the true construction, the relief would not be the same as is extended to the debtors of the other class. We think, therefore, that the day of entering judgment under the fifth section is the day that corresponds to the day of arrest under the previous provisions of the law, and therefore that in thirty days after judgment, he may be discharged by complying with the other requisitions of the law. The day of entering the judgment appears nowhere in this record, but as the notice was served on the plaintiffs' agent on 14 December, we must presume that the judgment had then been entered, and on the same day the agent signed that consent to dispense with "the previous imprisonment by law to entitle the defendant to take the oath of an insolvent debtor," by which it is now insisted that the complainants are barred of their right to recover of the assignor.

The error of the court below obviously consists in this, that it considers the imprisonment to which the defendant is subjected as among the means of coercing payment. The arrest certainly is so, but the thirty days' confinement that ensues is only incidental to the notice required to be given to the plaintiff of the defendants' intention to claim his discharge as an insolvent. Now he must be insolvent when this notice is given, and what is to be forced from an insolvent man by the thirty days imprisonment? It is obvious that the confinement is not regarded as the means of coercion, but only as a time necessary to the investigation of the defendants' circumstances or the collection of evidence

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to repel his insolvency. The coercive means of the law are to be found in the searching oath to be administered and in the fear of prosecution for perjury and recommitment in the same actions.

If, then, this imprisonment has no other object than to make the debtor await the investigations of his creditor, it is difficult to assign a reason why the creditor may not dispense with it when satisfied that the application is an honest one and that delay would discover nothing that he was not already acquainted with. In the language of the Kentucky court, it would be "worse than idle" to detain him. Nothing but unavailing hardship upon him and ultimate expense to his endorser could result from it.

Nor do we think ourselves unsupported by the Kentucky decision in this view of the subject.

In the case of Young v. Cosby, the drawer of the note, being in custody under a ca. sa. issued by the assignee, was discharged for want of security for the payment of prison fees. This discharge, it was contended, was imputable to the assignee and barred his recovery against the assignor unless he could prove that the drawer had nothing which might have been wrung from him by a protracted imprisonment. But the court of appeals decided otherwise and established that if the assignor had sustained any injury in that respect, it was incumbent upon him to prove it. The language of Chief Justice Boyle on that occasion was this.

"It has repeatedly been decided in this court that to entitle the assignee of a bond or note to recover of the assignor, it was necessary to show that he had used due diligence by suit to recover the amount from the payor or obligor, but it has never been required of him to prosecute the suit against the payor or obligor further than a man of ordinary prudence and diligence would do in a case where he was solely and exclusively interested. To make it necessary to do so would be unreasonable and unjust, inasmuch as it would tend to accumulate costs without the prospect of any probable advantage to either of the parties."

We entirely approve of the opinions here expressed: they are

Page 27 U. S. 353

conceived in the reason and benignity of the law, and we are unwilling to extend the diligence required of the assignee beyond the limits there laid down.

In the case of Oldham v. Bengan, the doctrine laid down in Young v. Cosby is considered and affirmed, and Chief Justice Bibb observes "that although due diligence has always been required in such cases, yet in no case has all possible diligence been exacted."

And both these cases concur to establish this principle that it is not on the ground of a mere possible injury that the assignor can claim his discharge; much less where it is improbable, as judge Rowan remarks in the case of Stapp v. Anderson, before cited. The present case presents the drawer in a situation in which it is not only improbable but scarcely possible that the assignor could have sustained an injury. For a discharge under the insolvent law of the United States is confined in its effects altogether to the particular case, and even as to that does not exempt the debtor's present effects or future acquisitions from the process of the law; nor is his person exempt from confinement for the same debt should he be detected in a fraud upon the creditor. The bare speculative idea, then, of a possible acquisition of property within the thirty days, during which Voorhees might have been compelled to await the will or inquiries of his creditor, and of property not tangible by the process of the law, is too feeble a consideration to affect the rights of the complainant.

The decree below will be reversed and a decree entered here that the complainant recover his demand.

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