Dingman v. Amsink

Mr. Justice Gordon delivered the opinion of the court, The view we take of this case renders it unnecessary for us to decide what the effect of the affidavit of defence would be, as notice to put the holder of the note upon proof of consideration, supposing it to set forth that which would be sufficient for that purpose. After the defendant has proved that the note or bill was improperly obtained from him and put in circulation by fraud, he may call upon the holder, plaintiff, under notice, to show that he is a bond; fide holder for value. But the mere absence or failure of consideration between the original parties, is not sufficient for that purpose : Albrecht v. Strimpler, 7 Barr 476. The defendants’ affidavit set forth that the note in controversy was given by them for goods purchased of Raynor & Co., under an agreement made at the time, that if the goods were not satisfactory, they wrere to have the [117] privilege of returning the whole or any part of them. That not proving satisfactory they did return part of them, and that said goods were short in quantity. Here; at best, is but a partial failure of consideration and the breach of a contract, neither of which, in the least, affected the negotiability of the note. The presumption is, that, as the paper was in the ordinary commercial form, it was intended for negotiation, and that the maker relied upon his contract to secure himself against any defect in .the goods; obviously, therefore, the defendant did not bring himself within the rule, as stated in Albrecht v. Strimpler, and hence has not a meritorious defence. Some question has been raised with reference to the incongruity of the judgment in this case, it having been rendered against Ding-man and the administrators of D. O. Clark, deceased. The suit was commenced and the summons served during Clark’s life. On the 13th of December 1873, the death of Clark was suggested and his administrators substituted. Previously to the Act of March 22d 1861, if we assume the correctness of the doctrine announced in Miller v. Reed, 3 Casey 248, the estate of Clark, in consequence of his decease during the pendency of the joint action, would have been released from all obligation on the joint note. The act above mentioned was passed to meet and remedy cases of this kind. It reads thus : “ That in no case now pending, or that may hereafter be brought, on any joint contract, note, debt or obligation, whether the same has been or may be commenced'by summons, scire facias, or otherwise, shall the courts of this Commonwealth entertain any plea or defence upon the part of any heir, or heirs, executor or executors, administrator or administrators, that one or more of said joint obligors, contractors, debtors or promissors, has deceased, since the commencement of or pending suit; but the same shall be proceeded in to judgment and execution- against the estate of such decedent, as though the said suit or suits had been commenced against the decedent alone.” Now the rule as stated in the case of Miller v. Reed, citing the language of Judge Sergeant, in the case of Walter v. Ginrich, 2 Watts 204, is this: “ The holder of a joint and several bond may elect to bring a^separate action against each obligor or a joint action against all. If he proceeds by separate actions, the executor of a deceased defendant, as well as the survivor, continues liable. But if he joins all the parties, and one of them dies, pending the suit, the remedy against the assets of the deceased is terminated, and the survivor alone is responsible.” Now we might, without doing any very great violence to the act, limit its operation to the curing of the defect, in the old law, as pointed out by the above case. In that event its effect would be to prevent a plea in abatement upon a suit, brought against the executor or administrator after the death of a joint [118] obligor,. wbo bad been sued, during bis lifetime, with bis coobligor. This, however, would be, as we conceive, an unnecessary distortion of tbe act, for tbe mere purpose of saving a technicality that subserves no good purpose. As this case now stands, we have judgment, as well against tbe administrators of tbe decedent, as against tbe living obligor, and thus tbe expenses and costs of a second suit are saved. Again, tbe incongruity of such a judgment is but imaginary. There is certainly no difficulty in enforcing it.- Had tbe death occurred immediately after judgment, its position with reference to collection would have been precisely what it is now, and yet we apprehend no lawyer would feel much embarrassment over a case of that kind. So in tbe revival of tbe liens of judgments and the foreclosure of mortgages, we find no practical difficulty in collecting judgments obtained generally against living persons and tbe estates of decedents. Tbe tendency of our laws has been, to avoid, as far as possible, tbe multiplicity and circuity of actions, and to abolish such technicalities as stand in tbe way of prompt justice. We may here observe, that, tbe joint execution, as against tbe estate of decedent, should be levied on tbe goods of such estate, found in tbe hands of tbe executor or administrator, subj eet to tbe provisions of the Act of 1834; or if it is desired to charge tbe real estate, in tbe possession of the widow and heirs, tbe process directed by tbe 34th section of said act may be pursued. If any serious difficulty should be found to occur from tbe ordinary forms of tbe writs now in use, this court can, under tbe 3d section of tbe Act of June 1836, provide such new or modified forms as may be required to meet the exigency. We think, however, this will not be found to be necessary. Judgment affirmed.