COURT OF

Common Pleas

OF

YORK COUNTY.

PECKER and another, administrators of PECKER, who was as signee of MACKIE, against JULIUS, surviving executor of CRONBACH.

1811.

August 12.

The following

words" To which pay

This suit is brought upon a bond, dated the 9th of April 1794, ment well and truly to be executed and delivered by Jonas Yoner and Jacob Cronbach made and to William Mackie; who, on the 18th of February 1795, ourselves, our done, we bind assigned the said bond to John Pecker, since deceased, (prout heirs, executors, administhe bond and assignment.) The bond was given as part of the trators, and consideration of a tract of land, purchased by Yoner, of every of them, firmly by these Mackie, in which the said Jacob Cronbach joined as his surepresents," ty merely. On the 18th day of November 1803, in the state make a joint and not a joint of Maryland; a suit was brought on the bond, against Yoner, and several and judgment was obtained therein, on the 9th day of Janu- bond. ary 1805, (prout the record.) The said Yoner took the benefit of the insolvent laws of Maryland, on the 21st day of May 1804, (prout record.)

Two per

sons, one as principal and the other as surety, executed a joint bond: the sure

Nothing has been recovered, from him, or from any one else, on account of said bond. The said Jacob Cronbach died on ty died,and the

principal, sur

viving, be

came insolvent: it was held, that an action could not be maintained against the executor of the deceased surety, for the amount of the bond.

1811.

PECKER and

another, admi

the first day of April, 1796, leaving the said Yoner surviving him.

At the time of executing the bond, the said Yoner was nistrators of considered and reputed to be a man in good circumstances. PECKER, Who The question submitted to the court is, can the plaintiff maintain an action on this bond, against the executors of JaJULIUS, sur- cob Cronbach.

was assignee of MACKIE against

viving execu

tor of

CRONBACH.

Cassat and Bowie, for the plaintiff, and

Kelly and Hopkins, for the defendant.

Per CURIAM. Franklin, president. (After stating the case,)

The first point for our consideration respects the nature of the bond in controversy, whether it be a joint, or a joint and several obligation? For if it be the latter, there is nothing to preclude the plaintiff's from a right to recover.

The words of the bond, as far as they relate to this question, are as follow: "Know all men by these presents that "we Jonas Yoner of Barwick township, and Jacob Cron"bach of Dover township, both in York county and state of "Pennsylvania are held and firmly bound unto William "Mackie in the sum of one hundred and twenty pounds law❝ful money of Pennsylvania, to be paid to the said William "Mackie or to his certain attorney, executors, administrators or assigns: To which payment well and truly to be made ❝ and done we bind ourselves, our heirs, executors, adminis"tors and every of them, firmly by these presents.”

"The condition of the above obligation is such, that if the "above bounden Jonas Yoner and Jacob Cronbach or any of "them shall and do well and truly pay &c."

The only expressions which can create a doubt as to the legal effect of this instrument, are the words " and every of "them," contained in the penalty of the bond. Upon a full consideration of the authorities which were cited in the argument, and the legal principles which were maintained by the counsel on both sides, we think that those words cannot, in just grammatical construction, be made to refer to the parties using

them; that they apply only to their immediate antecedents "heirs, executors, administrators;" and do not include, or extend to the obligors themselves, so as to make them separately and individually liable; and that, therefore, this is a joint and not a joint and several bond.*

Considering this, then, as a joint bond, let us next examine whether there be any thing in the case, to prevent the application of the common law principle, which declares that where two are bound jointly, the survivor only is liable, and not the representative or estate of the deceased obligor.

It was contended by the counsel for the plaintiff, that as there is no court of chancery in this state, our courts have adopted many of the rules which prevail in a court of equity; that they permit a plaintiff to recover in most cases, in which a court of chancery in England would grant him relief against the rigid principles of the common law; and that there equity has frequently interfered, to enforce a moral obligation against the representatives of a deceased obligor, where the debt was extinguished at law; as in Simpson against Vaughan, (a) where money was lent to two persons who were partners in trade, and through want of skill the bond was made a joint instead of a joint and several bond; so in Bishop and Church,(b) where both obligors received the benefit of the loan, and the survivor became bankrupt. The correctness of the decisions in these cases has not been questioned, but their applicability has been denied. No case has been cited, and I presume none can be adduced, in which the estate of an obligor in a joint bond, who was a mere surety for his co-obligor, and partook of no part of the consideration, has ever been held liable, where the principal has survived him, although such principal may have become a bankrupt. In this case it is agreed, that the conveyance of the land, for which the bond was given, was made to Yoner alone; and that Cronbach had no interest in it. Upon what ground then can his estate be rendered liable, when the remedy at law was extinguished as to him? And in equity a surety is not chargeable further than he is answerable at law.(c)

* See the case of Thomas against Frazer, 3 Vesey junr. 399.

(a) 2 Atkins 33.

VOL. II. No. 1.

(b) 2 Vesey 100.

(c) 1 Vernon's Rep. 196, 197.
E

1811.

PECKER and

against

tor of

In Harrison, executor of Minge, against Margaret Field, executrix of James Field, determined in the court of appeals another, admi- of Virginia,(a) Field, the testator, having loaned to William nistrators of Claiborne a sum of money, he, together with Minge as his PECKER, Who was assignee surety, executed a joint bond to the testator, for the payment of MACKIE, of it; Minge died in the lifetime of Claiborne, who became inJULIUS, sur- solvent. The object of the bill was to recover the debt from viving execu. the executor of Minge. The court decided that the testator CRONBACH. Minge, having been neither the borrower, nor the user of the money lent to, and used by Claiborne, but a surety only, ought not in equity to be further, or otherwise bound, than he was bound by the contract at law; and no fraud or mistake appearing to have occurred in the writing of the bond, it was to be considered as a joint obligation, and subject to the legal consequences, of Minge and his representatives being discharged by his death in the lifetime of Claiborne.

In the case before the court, no fraud or mistake has been suggested; Cronbach was no party to the conveyance; he was no more than a surety in the bond; his estate is exonerated from the payment of it, by the operation of the common law, and there remains no moral obligation upon his executors to discharge it. We are therefore of opinion that the plaintiff cannot maintain this action, and that judgment ought to be entered in favor of the defendant.

Judgment for the defendant.

(a) 2d Washington, 136.

CASES

IN THE

District Court,

FOR THE

CITY AND COUNTY OF PHILADELPHIA.

SEPTEMBER TERM, 1811.

THE

GUIER against PEARCE.

1811.

September 4.

ledgment, to

of the statute must be such

of limitations,

HE demand of the plaintiff in this case, was for goods An acknowsold the 15th of August 1800; to which, the defendant take a case out pleaded" non assumpsit infra sex annos;" the plaintiff replied, a new promise within six years. The evidence was, that the defendant, after the expiration of six acknowyears, ledged the receipt of the goods, said he thought he had paid for promise to them, and should rely upon the statute of limitations.

Levy for the defendant, contended, that these expressions did not take the case out of the statute. He said, that soon after the statute of James.(a) it had been decided in England, that a new promise to pay, made within six years, would revive the cause of action, and take the case out of the statute of limitations; and he admitted, that a considerable time after, it had been determined, that a bare acknowledgment of the

(a) 21 James 1. c. 16.

a one as is consistent with a

pay.