1 U.S. 119 (1784)

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U.S. Supreme Court

GERARD v. BASSE, 1 U.S. 119 (1784)

1 U.S. 119 (Dall.)

Basse et al.

Court of Common Pleas of Philadelphia County

December Term, 1784

The defendants declining in their circumstances, and being much pressed by their creditors, Basse fled, and Soyer was imprisoned at the suit of the Plaintiff. During his confinement, he executed a bond and warrant to confess judgment, to which there was one seal, and the signature was in this form, 'John Abraham Soyer for Basse & Soyer.'

And now a motion was made to set aside the judgment, at the instance of the creditors in general, in order that an equal distribution might he made of the effects under a domestic attachment, which had issued against Basse and Soyer.

Sergeant and Moylan, in support of the motion, argued, that the bond was a payment of the debt in the eye of the law; and that

Page 1 U.S. 119, 120

although Basse was liable to Soyer's action for a contribution, yet not having signed the warrant, he was not subject to the execution of Gerard, the plaintiff. 2 Black. Com. 295. 3 Bac. Abr. 590. 2 Bac. Abr. 227. 358. 2 Vern. 293. 2 Ch. Cases. 228. They said, that the execution of deeds was not to be regulated by, nor does the effect of them depend upon, a particular custom of Merchants; but they are derived from a superior source, to wit, the law of the land; and they insisted that Basse not having joined in the warrant, the judgment, being joint, must fall to the ground. 2 Black. Rep. 294. Ship. 69. Ingersol, in support of the judgment: It is regularly true, that, according to 3 Bac. Abr. 611. one merchant may bind his partner, by accepting a bill drawn on both. If, then, in substance, the act of one obliges the other, what difference arises from the circumstance of the delivery not being formally executed? That question was agitated in the case of McKim vs. McFarlan: there Levinz indorsed a note of McFarlan's to McKim; but being indebted to McFarlan, he thought it proper to give him previous notice of the transaction, and, accordingly, threw the note into his desk with that design. During his absence, McKim, who had given a valuable consideration for the note, persuaded Mrs. Levinz to give it uo to him, and afterwards sued McFarlan upon it, who grounded his defence upon this, that the note was never delivered over. Sergeant. Improper and false suggestions were used to induce Mrs. Levinz to deliver the note. Ingersol. True: but the point in discussion was the delivery; and the jury found for the plaintiff. Cowp 206. Any proof of intention to assent to a delivery is sufficient; no particular mode of action, no form of expression, are necessary. The present question, however, is, whether the Court will confirm the judgment as to the partner who sealed the warrant, and vacate it as to the other. The adverse Counsel have cited 2 Bac. Abr. 227. 358. to show that the judgment, being an entire thing, must be wholly set aside, if at all. But this doctrine is fully refuted by 1 Cro. 322. 2 Black. Rep. 1133. With respect to the warrant's being executed while Soyer was in prison, it may be observed, that an Attorney was present; and in Sluyter's case, the Court determined that it was not necessary the Attorney should be for the party; but that it was enough if the business was fairly transacted in the presence of an Attorney. Here neither fraud nor violence are suggested. Lewis, on the same side; stated two questions: 1st Whether, upon the facts, this judgment can be set aside as to both Basse and Soyer; and 2d. Whether it can be set aside as to one, and continued against the other? 1st Point. As this was a joint debt, justice naturally requires that the judgment should be confirmed; and it being admitted, that a contract not under seal made by one, would bind both partners, we alledge that the seal creates no difference, for the causa [1 U.S. 119, 121]

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