Rogers v. Hosack's Executors

18 Wend. 170

Opinion

After advisement, the following opinions were delivered:

By Justice Cowen.

One of the points sought, to be raised on these appeals is certainly premature. Assuming that the principle of apportionment adopted by the chancellor under the articles of 1824, is to stand, the error of $1000 in calculating the arithmetical distribution, should have been corrected, or at least a motion should have, been made for that purpose in. the court below; and that motion might still be made on remitting the- proceedings, though accompanied with our order of affirmance. The chancellor’s order in which, the mistake lies was. interlocutory ; and nothing is better .settled than, that, before enrolment, all slips in the drawing and entering of such an order are amendable on summary application. Clearly, it is not. the subject .of an, appeal, at least, until'the motion shall have been, made and denied. Could we suppose such a mistake to be carried. through, and introduced, in despite of resistance, into the enrolled decree, a bill'of review or appeal might be necessary; though I hardly think this would be so upon an error resting in mere calculation, and apparent on. the face of the decree. (2 Mad. Ch. 531.)

Nor will this court,, in general, interfere, on appeal with the discretion of the court of chancery; and. the rule, I imagine, applies tq that branch of the order now in question, which retains Mr. Rogers in the general administration oi Grade's estate. An executor or other trustee is treated-as a quasi officer of the.court of chancery, and-is.often removed for misbehavior in.his trust [330] —for insolvency or incompetency, either, upon.bill, motion, or petition. In this case, the chancellor thought there was no foundation of any sort established by the evidence for taking away the trust confided to Mr, Rogers by- the testator; and certainly a very slight, case, if, any, was made out against him. Such cases are almost always to be.made out by circumstances and degrees of proof, upon the weight and effect of which, different men may come to different conclusions,: and where there is. room,for doubt, it seems to me that a court of appeal ought not to disturb the decision. The great, age of Mr. Rogers, the protracted nature of , this litigation, and the inducement of one who retains the fund still to spin out the litigation beyond its ordinary length, are urged as reasons for bringing the whole estate under the administration of the court. But there is nothing in all this imperative upon the chancellor; it is an argument still addressed to. his discretion. We may differ from him as to the circumstances of excuse upon which he has refused to set aside a regular default, yet we held at the last term, Rowley v. Benthuysen, (16 Wendell, 369,) that we ought not for that reason to open the default on appeal. Indeed, I understand the line of authority to stand almost without exception, that to warrant a reversal upon appeal from chancery, some definite rule of law or equity must appear to have been violated.

[331] Another point, that the injunction was dissolved before all the answers of those defendants charged with actual knowledge had come in,' is in a great measure a mere point of practice. It is answered first by a denial of the fact, and the printed cases do not appear to be so framed as to raise the question. They should have stated the want of those- answers, at least; for I do not see how we can otherwise be justified in assuming that the point was made before the chancellor. He says nothing of it in his opinion, and the absent answers mentioned in the point are only those of Samuel, Henry and Edward N. Rogers. I presume, that had the least difficulty been raised on this ground, it would have been obviated at once, by filing their answers, if that had not already been done. The answer of Nehemiah Rogers being in, and he being able to speak positively as to-all the facts upon which the injunction depended, it is-most likely that this technical objection was waived, or that something appeared to render it inapplicable to this particular case. The point, as iffbtands here in the abstract, certainly lays down the general rule of practice correctly; but it is many times relaxed in the discretion of the chancellor. (Depeyster v. Graves, 2 Johns. Ch. R. 149.)

[332] [333] The points, so far, have but little connection with the merits; and it appears to me that the insurance company fund can be also easily disposed of, whatever conclusion the court may arrive at upon the more difficult and certainly more important question in the cause. The right to that fund must be governed by a well settled rule in the law of insurance. Gracie having sustained a total loss of his property insured, by capture under the illegal decrees of France, abandons to the underwriters all hope of recovery, and obtains a- judgment for the sum due on the face of his policy. The abandonment being rightfully made, operated as an assignment of all interest covered by'the policy in the'property insured, together with all claim against France for the damage done to the assured, (Comegys v. Vasse, 1 Pet. S. C. R. 193 ) ; so that the claim stood in the name and right of the underwriters. All this was long before Gracie undertook, by the articles, to appropriate his general French claims to the payment of Rogers and certain other creditors, between whom the controversy now exists. Before the date of those articles, it had ceased to be his claim ; it belonged to another ; and, as the chancellor remarks, whether his executor can now pursue the money paid by France specifically, and as security for the unpaid balance of the debt due upon the policy' or not, the money when paid by the trustee will be unappropriated assets; as much so as if it were due and paid to Grade's estate on a promissory note. If it be so, then it is not denied that Rogers has the right to retain. The ground taken is, that until the actual payment by the underwriter, he has but an inchoate conditional right; but I find no countenance given to such a doctrine in any book on the law of insurance, nor any adjudged case. On the contrary, all the authorities are that the assignment becomes absolute from the time of the abandonment. It was not too strongly put upon the argument; the deed of a man’s farm could not operate.more clearly to change the legal right. That an abandonment passes to the'underwriter all the claim of the assured against a foreign government on account of illegal capture, was held by the supreme court of the United States in respect to the late claims of our merchants upon Spain. (Comegys v. Vasse, 1 Pet. S. C. R. 193, 213, et seq.) Mr. Justice Story, who delivered the opinion of the court, examined almost every material authority, and among others that of Randall v. Cochran, (1 Ves. sen., 98,) wherein Lord Hardwicke is supposed, by the counsel for the creditors, to have laid some stress on actual payment of the loss. Blaupct v. Da Costa, (1 Eden, 130,) is but a counterpart of the case in Vesey. The result to which Mr. Justice Story came is thus expressed by him, sip. 214 of 1 Peters: “ The law gives to the act of abandonment, when accepted, all the effects which the most accurately drawn assignment would accomplish.” It is true that there, too, as is generally the case, an actual payment of the loss had been made ; but no additional influence whatever is ascribed to that circumstance. The words of Marshall and Park, in their treatises on insurance, are quoted and approved. These look to the abandonment alone as having the effect. They say the spes recuperandi is complétely gone and passed to the underwriter by that act, and put down this as the very reason why he is liable to a full recovery. It is like an assignment of a chose in action, on a promise by the assignee to pay the price, instead of an actual payment. Surely the chose is none the less transferred because the consideration is not actually paid. It is a sale on credit; (Heath v. Hall, 4 Taunt. 326.) In Mellon v. Bucks, cited by the chancellor as 17 Mart. Lou. R. 371, but which is more commonly cited as the 5th volume of Martin's Hew Series, a mere abandonment of a cargo, without either acceptance or payment, there being a legal right to abandon, (which is not disputed in the case at bar,) was held a complete transfer. The language of Mr. Justice Matthews is quite pertinent, and speaks the sense of all the books. “ If,” says he, “ the abandonment was made under circumstances which legally authorized such a step on the part of the insured, the insurers being bound to indemnify him as for a total loss, must be considered as having become owners of the property which was abandoned, ipso facto, without any formal acceptance, but merely as a consequence necessarily following from the nature of the contract of insurance.” Such an abandonment was held in that case to divest the interest of the assured in his goods insured, so that he could not sue the master and o— rs as carriers, for their omission to transport the goods.

[334] But Gracie individually still retained large claims for indemnity against France, which having been recently recognized by treaty, the commissioners certified them at $120,000 and upwards, on which the dividend to be received was $73,000. He owed N. Rogers and Sons $42,000, and N. Rogers, as his executor, claims to retain for a balance of that sum. Upon this simple statement of the case, it is not denied that he has a right to retain out of legal assets belonging to Gracie’s estate, of which the $73,000 make a part. But it is insisted that Mr. Rogers has, in equity, cut off his right by joining as a party in the deed or articles of the 27th of April, 1824, upon which we are thus called to bestow a more particular consideration. [The judge here recites the substance of the articles of assignment, and then proceeds as follows ;] Upon this state of facts, Rogers still claims the common law right to retain for the whole $42,000 due to the late firm of Nehemiah Rogers & Sons, after deducting the 35 per cent paid by the British claims. The assets derived from the French indemnity are legal assets, (2 Wms. Ex. 1033 to 1035, 1 Story Eq. 519 to 522,) not merely equitable, and therefore distributable accordingly among creditors pari passu. (Ram on Assets, 271.) I remarked before, that applying, as we must do, the law which declared the rights of executors, previous to the passage of the Revised Statutes, and laying the articles of agreement out of view, the right of retainer stands conceded. That right grew out of the principle that, as the duty of an executor was often onerous, and by excepting the trust such an unity of the character of debtor and creditor arose as to take away all remedy- by suit, the executor should be allowed this preference over creditors whose claims were of equal dignity with his own. (2 Wms. Ex. 685.) Has such a unity been produced in this case ? Gracie covenanted with Rogers & Sons to pay them the balance of their debt with the French funds when he should receive them. True the covenant is in form to the trustees and creditors jointly; but it enured to each severally according to their interests. For this it is enough to refer to Withers v. Bircham, (5 Dowl. & Ryl. 106,) briefly reported in 3 Barn. & Cres. 254. It seems to me extremely plain, that had Gracie survived the French treaty and received the money due upon these certificates, Rogers & Sons might have sued him at law for not paying their share; and that this would have been their only remedy, provided the release of Gracie’s two co-debtors were to have the effect of extinguishing the original claim against him. Here is no assignment, no mortgage or pledge, no order, or any other specific apppropriation of the French funds, but-a mere covenant to pay them over on their being obtained by the covenantor. That such an agreement does not create any lien, either at law or- in equity, several point blank cases were cited on' the argument. The most direct cases are the following: Bradley’s case, Ridgw. Rep. Temp. Hardw. 194. Exparte Heywood. In the matter of Holmes, 2 Rose’s Cas. in Bankr. 855. Williams v. Everett, 14 East, 582. Clayton v. Fawcett’s admr’s. 2 Leigh, 19. Brainard v. Burton, 5 Verm. R. 97. Hagan v. Sompeyrac, 3 Lou. R. by Miller, 154. Mandeville v. Welch, 5 Wheat. 277. Indeed, among the cases cited to show that these articles of agreement may be made operative as an assignment, I have been unable to discover the least countenance for such a construction.

[385] The result of the. cases cited, is that the right of Rogers cannot be restricted in the amount which he is entitled to out of the French funds by the mere principle of equitable' lien, as seems to have been supposed by the learned chancellor ; and I think the cases are clearly sustained by the reasons on which they profess to go. Rogers might retain them for something, and his right lay in retainer alone.

[336] Proceeding on the ground that Gracie was released from the original debts, a diificulty arises whether he can retain to a greater amount than the chancellor has allowed him in the name of lien. There is, to be sure, no express agreement in the articles regulating the proportions in which Gracie should pay, provided the French funds should come short, as they now appear to have done, of the balance to be made up; and hence it is supposed by the Messrs. Rogers’ counsel, that any of these creditors might have sued Gracie, or his executor, upon the covenant, for his entire original debt; and they deduce from that a right of retainer co-extensive with the supposed right of suit. The deduction may be right, but the premises appear to me to be quite doubtful. The scope and object of the agreement appear to have been a full payment to the scheduled creditors, provided the funds were adequate, and a pro rata dividend in the event of a deficiency. Subh is the express provision in respect to the British funds; and although not repeated in terms with regard to the French fund, yet this coming in as auxiliary, being a fund of the same uncertain character, indeed still more so, and the covenant to pay over running to the trustees and all the creditors, and being limited to the moneys actually tó be received, the construction can by no means be called a forced one, which imports the pro rata clause from the assignment into the covenant. See Wadeson v. Richardson, (1 Vesey & Beame, 103, 110, 111.) If it be excluded, the covenant will then read, “ On receiving whatever small amount of French funds, I will be liable to the full extent of the balance beyond what shall be paid by the British funds.” Such a construction would seem to be quite absurd, if we suppose an intention to release Gracie from the original demands; and . the consequence following, the contrary and more consistent meaning, would' be still to keep the right of Rogers at least within the boundary allowed by the chancellor. An executor cannot retain for more than he could have sued for and recovered, provided he had not been executor. In" this view of the case, Rogers would take the same sum allowed by-the chancellor; but that would constitute his sole debt against the estate of Gracie; and not being secured by a pledge of the French funds, these would make a part of the general assets; Rogers taking out of these assets his debt due on the covenant, in the name of retainer, instead of taking the whole from the French fund in the name of lien. The result to him would be the same, the only difference lying in the mode of reaching it. In either way, he could .take no more than his twelve or thirteen thousand dollars due upon the covenant. I am perfectly satisfied, however, both upon principle and authority, that he has done nothing which legally or equitably confines him within such a narrow boundary; that the clause of release does not touch Grade’s individual liability as it stood originally; nor did the articles, .they being but a collateral security, work an extinguishment of this or any other of the scheduled debts. (Day v. Leal, 14 Johns. R. 404.)

[337] It is agreed by the counsel for both parties, and such is the undoubted rule of law, that in common legal effect, the release of the two persons jointly indebted with Archibald Gracie would have operated to release him also. The rule has generally, if not universally been applied, however, to cases where such co-debtors were released without the consent of the other. ,The debt being an entire thing, although each is liable for the whole, the destruction of all claim as to one or more, discharges the other. One reason doubtless is, that it takes away his power to enforce the right of contribution which he would otherwise have against the released debtor, though such reason standing alone, would only go to work a discharge pro tanto. The release is like tearing off a seal from a bond, which subverts the whole contract. It loses its identity, and a new contract cannot be raised by the act of the obligee. .The same legal effect' would follow .from obliterating or tearing off the name of one of the several joint makers on a promissory note. But the case is different where the alteration is by the consent of all the parties, accompanied with an intention that those only should be discharged whose names or seals are torn off, in the case supposed, or who are released as in the case at bar. Here William Gracie and Charles King only are released in terms, with the consent of Archibald Gracie, the testator. Why was this so ? I can imagine no other reason than the one which seems naturally and irresistibly to force itself upon the mind; the funds provided were deemed but an equivalent for the discharge of the junior partners ; a discharge not sought for by the testator, their father, nor intended as to himself. Had it been otherwise, we cannot suppose that the distinction would have been made. His covenant in respect to the French funds, would have had the same force and extent with as without a release to himself. His intention, therefore, still to remain liable, for reasons satisfactory to himself, seems too plain for dispute, and we have only to inquire whether the structure of the articles has secured that object. Upon principle there is nothing to prevent such an arrangement. One obvious mode of doing the business would be to execute a separate and independent security for the whole. But why is not an assent to a partial releasq, the same thing ? The. intent is equally plain, and it seems to me but another form of assuming by 'one the joint debt of three. The covenant or promise of the two is cut off, leaving it the sole covenant or promise of the other. In legal effect it comes to that, and may be so treated in pleading. It might have been so treated, even before the release, and a several recovery had, if the non-joinder were not pleaded in abatement. The consent is but a waiver of that formal defence, and so the remedy becomes clear.

[338] [339] [340] We thus see, that in pronouncing the original debt to N. Rogers & Sons due from Gracie and undischarged by the release, we should but be carrying out tne maxim that when the reason of the law ceases, the law itself ceases ; but we are not left to apply that maxim at random. The very point now before us has recently been decided by the supreme court of Pennsylvania, in Burson v. Kincaid, (3 Pennsyl. R. 57.) There was a judgment against Dennis Cain and John Cain in favor of John Bell. He with the consent of Dennis, released the estate of John Cain, (the co-debtor, John Cain, being dead,) and the question was whether Dennis was not also discharged. The court held he was not by reason of his consent. Mr. Justice Kennedy delivered the opinion of the court. He said, “ In the abstract it is certainly true, and the principle of law well settled, that if a creditor release one of two joint debtors, whether they be indebted upon a simple contract, bond or judgment, it will also be a discharge of the other from the debt. Why is it so ? Because otherwise the whole burthen of the debt will be thrown upon one of them - instead of both, which would be directly contrary to their understanding and contract. Upon the same principle it has been held that if the obligee in a bond given to him by two or more jointly, tear off the seal of one of the joint obligors, or in any manner cancel the bond as to one of them, it discharges all the rest. It was in its concoction the joint bond of the whole; but the moment it is cancelled by the obligee as to one of the obligors, it ceases to be the bond or deed of all. In short, it ceases to be the same bond, if bond at all it can be called. By the original contract under which it was given, it was agreed and made to be the joint obligation of all; and without a new agreement between the same parties, it cannot be made the bond of a less number; at least it cannot be changed and made the bond singly of any one or more of them short of the whole number, without their consent. To make it the bond of one instead of two, necessarily increases the weight of the obligation ; and no- man is to have an obligation imposed upon him without his consent. But an obligee or covenantee may release one of. two several obligors named in a bond, or one of two several covenantors in a deed, or cancel the bond or deed as to one, by tearing off his seal, without the consent of the other, and for this reason too, that it does not increase the responsibility of the other obligor or covenantor, or change in any manner the nature of his obligation or covenant. It was the bond or deed of each singly before, and the obligee or covenantee had a right to look to either singly for the fulfilment of it, and the -one. therefore can, in no wise be injured by cancelling the bond or deed as to the other. (See Matthewson’s case, 5 Co. 44.) “ So it is well settled that if the name of one of two or more joint obligors be stricken out or erased, or his seal torn from a bond by the consent of the obligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it; but shall from that time be the bond of the others. And for what reason ? Because it was their agreement that it should be so. Their agreement alone, in this respect, without more, is equivalent to a new and re-execution or re-delivery of the bond, as their act and deed. A mere formal delivery or re-delivery of it is unnecessary. (Barrington v. The Bank of Washington, 14 Serg. & Rawle, 424; Speaker v. The United States, 9 Cranch, 28.) And this is upon the principle that they have assented to it, and if they were not held to be bound by the bond in this instance afterwards, it would be a reproach upon the law and the administration of justice; because it would be to permit the remaining joint obligors to violate most grossly their own agreement, and thereby to commit a most palpable fraud upon the obligee, and cheat him out of his money.” The learned judge then proceeds to apply this reasoning to the case before him ; but the application is extremely obvious to that and all the like cases. The rule that a release to one shall operate to release another is harsh and technical, and has been much restricted in its operation by several adjudications. (Rowley v. Stoddard, 7 Johns. R. 207, and cases there died.) Such an effect is always contrary to the intent of the releasor, and it would be truly extraordinary that it could not be waived by the very party for whose benefit the rule was intended. Quilibet potest renunciare juri pro se introducto. (2 Inst. 183. Branch’s Principia.) Neither N. Rogers & Sons nor Archibald Gracie, intended that the debt should be released as to the latter. He therefore expressly renounces the benefit of that law which would otherwise have operated in his favor, and should be the last to claim the technical consequence sought to be enforced by this bill; nor does he—but third persons claim that this should be so whether he or his personal renresentative will or not. So in Burson v. Kincaid, subsequent judgment creditors struggled to get a preference, on the ground that Dennis Cain was released; but the court would not permit this. The case at bar is a stronger one ; for the very creditor here represented by Messrs. Hosack and Blunt was a party to the agreement, which as we have seen declared in effect that Gracie was not to be released. In all justice and honesty they ought to share the legal results of what is to be deemed their own agreement.

It is scarcely necessary to observe that Mr. Rogers’ right of retainer is in no way affected by the statute of limitation, I should • suppose it quite clear that the statute could, under no circumstances, be predicated of such a right, (2 Wms. Ex. 693 ;) but be that as it may, both parties here assume that in law, conscience, and honor, the whole of the original debt, with interest, excepting what the British funds paid, is still due.

I will only add, that though the payment of this debt be obviously due to Mr. Rogers, as a measure of reward for a pilgrimage of responsibility, not to say anxiety and suffering, incurred by him as the friend of Mr. Gracie, yet in reaching the conclusion that he still holds the right of full retainer, I am sure I have not deemed it necessary to strain any principle either of law or equity beyond its legitimate and acknowledged strength.

In my view of the case, Gracie, the testator, always remained liable to an action for tie whole schedule debts of his firm; and the appointment of Rogers his executor changed the remedy by action for the demand of N. Rogers & Sons into the more direct one by his own act, the common law right of retainer, for the whole debt of $42,000, or the balance which shall remain due after deducting what has been discharged by the British claims.

[341] I am therefore of opinion that the decree, so far as it denies or interferes with this right, should be reversed, but in all other respects affirmed. Should the court come to this conclusion, the true sum for which Mr. Rogers is to retain will be settled before a master on remitting our proceedings. And on the coming in of the master’s report, the chancellor will take order for dissolving the injunctions which relate to the certificates, as to the whole debt due to Rogers instead of a pro rata share as they now stand. For the present, I move the simple proposition, “ a reversal in part, by decreeing that Mr. Rogers has a right to retain for so much of the scheduled debt of N. Rogers Sons, as has not been actually paid.”

By Senator Dickinson.

The appellant, Rogers, having accepted and entered upon the office of executor previous to the first of January, 1830, had an unquestionable right to retain out of any assets which might come to his hands for his own debt, in preference to other debts of the same class. The operation of the Revised Statutes in this respect being prospective only, that right has not been lost or impaired.

[342] [343] The principal question to be decided is, whether the instrument of the 27th of April, 1824, was intended to give certain creditors, among whom are the respondents, a specific lien upon claims which Archibald Gracie had upon the French government at the date of the instrument The covenant contained in this insfcru ment, it is contended by the respondents, operated to create a specific lien and claim upon the moneys to be received by Archibald Gracie on account of his claims upon the French government. And his honor, the chancellor, in delivering his opinion on the making of the decree now under consideration, says: “ I have no doubt upon the question that the covenant or Gracie to pay the creditors out of the moneys which should be received by him, or his representatives, on account of his French claims, was an equitable mortgage, or specific appropriation of that fund, for the payment of the creditors who came in under the assignment, so as to entitle them to a preference over other creditors in relation to that fund, so far as the proc'eeds thereof can be traced and identified.” This decision seems to have been made principally upon the authority of Mauran v. Clark, (3 Paige, ) and Bradley v. Root, (5 id. 632 ;) but neither of these cases, I apprehend, will be found in point, upon a critical éxamination. In Mauran v. Clark, Hodges, an extensive shipping merchant of Providence, previous to June, 1829, was indebted to Mauran, of the city of New-York, in the sum of $7000. Upon application for payment, he directed his agent in Curracoa to close his mercantile affairs at that place, and to ship the balance of his funds to Hew-York, consigned to Mauran. He soon after wrote Mauran, among other things, “ I have ordered the balance of my funds at Curracoa to be forwarded to you, which when you receive, you will please place to my credit in account.” The funds were duly shipped in doubloons consigned to Mauran, and the bill of lading delivered to the master of the brig. Two days after the doubloons were shipped, Hodges failed, and made á general assignment of all his property. The doubloons were received at the custom-house and claimed by Mauran, and shortly after, on the same day, by the assignees. Upon bill of interpleader, it was held, “ that the shipment of the doubloons to Mauran," by the direction of Hodges, and the delivery of the bill of lading to the master of the brig, under the circumstances of the ease, gave Mauran a specific lien upon that property, which was hot divested by the general assignment.” But it will be perceived that this was not a mere covenant or agreement to pay Mauran out of the Curracoa property; the. peculiar circumstances which influenced this conclusion must have, been the shipping of the doubloons, their consignment to Mauran, the letter óf advice to him, the delivery of the bill of lading, and the receipt of the doubloons by Mauran át the customhouse. It was governed entirely by the acts of the parties, independent of, and having no relation to, any agreement whatever. In Bradley v. Boot, Stewart, a mail contractor, assigned his interest in his mail contract to Bradley. The assignment recited Stewart’s contract with' the post-office department, and concluded as follows : “ How, therefore, it is agreed between the said Burr Bradley and tiie said Sylvester Stewart, that the said Burr will well and faithfully carry the said mail, agreeable to the terms of the said contract first mentioned, and that the said Burr shall, for doing the same, receive the full benefit of said contract, and be entitled to all moneys due from the post-master general, agreeable to the terms of the said contract for carrying said mail, and that the said Sylvester will deliver and pay over to the said Burr all moneys or drafts received by said Sylvester, by virtue of said mail contract.” I fully concur with Ms honor, the chancellor, that this is clearly an assignment in equity. It provides that Bradley shall perform all the services in carrying the mail, and that he “ shall, for doing the same, receive the full benefit of said contract, and be entitled to all moneys due from the post-master general, agreeable to the terms of said contract for carrying said mail.” Here is an assignment in positive and express terms, though not clothed in apt and technical language. It declares the full benefit of the contract to belong to Bradley, and authorizes him to receive the money. The covenant that Sylvester will deliver and pay over to Burr all moneys or drafts received by Mm, &c., does not change the nature of the assignment. It was probably intended to protect more perfectly the interests of Bradley, in case the drafts came to the hands of Stewart.

[344] [345] In Yates v. Groves, (1 Vesey, jr., 280,) cited by the respondent’s counsel in support of the position taken by them, Lord Thurlow decided that no order to pay a debt out of a particular fund belonging to a debtor, constituted an equitable assignment of the fund pro tanto, and gave to the creditor a specific lien. The same doctrine was held in 1 Mad. R. 55 ; 4 Simons, 607; 1 Russ. & Mylne, 602 ; and 3 Deac. & Chitty, 218. indeed, this is established as to orders, beyond question or controversy. But it requires little discrimination to discover the difference between ani order, which, both in terms and legal effect, contains an assignment, or the elements of one, being a direction to one to pay or deliver, with power , to the other to receive ánd convert or appropriate, and a simple; naked covenant or agreement to pay out of a párticülar fund; imaccompahied by any words of transfer, or any power or authority whatever in the premises. In Williams v. Everett, (14 East, 582,) one Kelley, a merchant at the Cape of Good Hope, made remittances to Everett, his banker in London, with directions to pay over certain sums to specific creditors. Everett received the money, but refused to pay it over in pursuance of Kelley’s directions. Williams, one of the creditors to whom Everett was directed to pay the money, brought his action against Everett for money had and received; and it was held by Lord Ellenborough that no action lay by Williams, and that it was only money had and received to the use of Kelley. In Clay ton v. Fawcett, (2 Leigh’s Virginia R.) Clayton, in the autumn of 1818, sold Fawcett a drove of cattlefor S900, upon a credit. Fawcett drove the cattle to Richmond and sold them to Carlisle, and took his bond in part payment. The bond was left with one Baker, with directions to hand to an attorney if not paid at maturity. Fawcett made several payments to Clayton, which reduced his indebtedness to about $200, and this balance remaining due in October, 1820, Fawcett addressed a line to Baker, which he delivered to Clayton, in these words :—“ Sir: When you collect the money from Mr. Carlisle for me, and I should not happen with you, you will please pay the same to Mr. Clayton, as I am indebted to him about $200 of the money due to me from Car-lisle, and oblige your friend, &c.” In December, 1820, Clayton presented the note to Baker, and learned that he had previously put the bond into the hands of an attorney for collection. On the 21st of December, Fawcett died insolvent; and in February following, Clayton applied to the attorney, who admitted he had collected the money, but refused to pay it over until the right to it should be judicially determined. Clayton filed his bill against the executors of Fawcett, but the bill was dismissed by the chancellor, whose decision was affirmed by the court of appeals—the president of the court, who delivered the opinion, saying, the order contained “ no words of assignment or transfer.” In Lepard v. Vernon, (2 Ves. &. Beame, 54,) it was held that a power executed by a debtor to creditors, enabling them to procure and receive from the board of ordnance, “ all such sum and sums of money as now are, or which may hereafter, from time to time, become due and payable to him,” did not (unaccompanied by an assignment) operate as an appropriation of the money to that specific object, so as to prevent it from becoming a part of the testator’s estate. In Brainard v. Burton, (5 Verm. R. 97,) and Hagan v. Sompeyrac, (3 Lou. R. 154,) it was held that a promise to pay a debt out of a growing crop, did not operate as an assignment, or give the creditor a specific lien.

None of these cases, however, go to establish the point contended for by the appellant’s counsel, though they bear hard upon the 'general doctrine. But the case of Bradley v.-, (Bridg. Ch. Cas. 194,) decided by Lord Hardwicke in 1744, if it can be regarded as authority, places the question beyond the pale of legitimate controversy. In that case, the learned chancellor refused to hear an argument, and decided with emphasis, that “ a promise to pay a debt out of a particular fund, does not create a specific lien, even though the creditor forbear •to sue upon such promise,” accompanied with a reason which would adorn the judicial conclusion of a more commercial age, viz.: that, “ the consequences of such decrees would be a great stagnation of commerce, and repugnant to that course of circulation, which the well-being of trade demanded.” I can discover no reason why this case should not be regarded as high authority. The decision was pronounced by a judge of distinguished learning and ability; and although near a century has since elapsed, its conclusions apply to our condition with accumulated force. It combines the wisdom of the past with the convictions of the present, and successfully appeals for its support to all history and experience.

[346] [347] But it is said that this is a covenant on the part of Grade, and not a simple contract or agreement. This is so ; but does it, for this purpose, give it any additional consequence? For all the purposes of this question, the contract might as well have rested in parol. An assignment of a debt may be as effectually made by parol as by deed. (4 Taunton, 326.) Again, it is asked, why was there any allusion to the French claim, if it was intended as a personal covenant merely ? Why, was it not a new covenant on the part of Gracie to make up the deficiency? To this I reply, we are not bound to speculate as to the particular reasons which induced its insertion in the covenant in that peculiar form, after we have satisfactorily ascertained that it was not intended as, and does not have the effect to give a specific lien upon the French claim. But I see no difficulty in arriving at the true reason which influenced Gracie to covenant in that particular form, and apprehend it may be found in the recital of the same instrument, to wit: “ which said debts the said parties of the first part are at present unable to pay and satisfy, but are willing to provide for the security and payment thereof in the manner hereinafter mentioned.” The firm of A. Gracie & Sons was unable to pay, but were willing to secure and provide for the payment “ as hereinafter mentioned.” The provisions alluded to assign the English claim absolutely by the firm: the creditors release the two junior members, and A. Gracie personally covenants that if the English fund shall prove inadequate and insufficient to discharge the specified debts, such deficiency shall be “ made up and paid out of any moneys which shall or may be recovered and received by the said Archibald Gracie, &c., of and from the French government, &e., and that such deficiency shall be paid out of said moneys when and as soon as the same shall be received by the said Archibald Gracie, his executors, administrators or assigns.” I have no doubt it was the intention of the parties to give A. Gracie, who assumed and took upon himself the payment of any deficiency there might be, after exhausting the English funds, time, until he should obtain a settlement of his claim with the French government, and then such deficiency was to be paid out of said moneys when and as soon as the same should be received by Gracie. I do not discover any evidence that it was the intention of either the creditors or Gracie that he should be released from any portion of the debt; on the contrary, it would seem that all had confidence in obtaining a sufficient sum out of the English claim to discharge all the debts, as the covenant contains an express provision for refunding the surplus, of that claim to Gracie. Besides, Gracie covenants, in case the English funds should prove insufficient in amount, that the deficiency should be paid. This, in the opinion of the parties to the instrument, undoubtedly provided for every reasonable contingency, and rendered it unnecessary to multiply further provisions. This instrument was drawn up with professional skill, and apt and proper language is employed to express the intention of the parties. The English claim is disposed of by words of “ assignment and transfer,” and the contingency of a surplus is expressly provided for. Can it be possible, then, that with the intention to create a specific lien or equitable mortgage upon the French claim, the parties should have left this large fund to the caprice of implication, treating it as of less consequence than an imaginary surplus from the English claim ? The covenant on the part of Gracie is, that the deficiency shall be paid, when the moneys shall be received from the French claim, by him, his executors, administrators or assigns, a term which would scarcely have been employed if the fund had thereby been placed beyond his control. It is well established by the decisions of our own courts, that in the construction of a written instrument, a particular specification will exclude things not specified; and that when there is an express covenant in a deed, it takes away all implied ones. (1 Johns. Ch. R. 183; 11 Johns. R. 122.) In short, from the whole current of decisions, as well as from the intention of the parties, as indicated by the covenant of the 27th April, 1824,1 have no doubt that it was intended as a personal covenant merely and that in legal or equitable effect, it gave no specific lien upon the French claim. The instrument is either a personal covenant or an assignment. It can hold no intermediate or amphibious character. The language is neither obscure or equivocal • and when taken either in its most technical sense, or according to its most obvious and popular acceptation, is manifestly a mere covenant on the part of A. Gracie to pay a certain contingent deficiency when he receives the money upon his French claim, and nothing further.

[348] But it is said that if no specific lien was given upon the French claim by that deed, by its operation upon the debts of the creditors assenting thereto, such debts were released at law, and will be upheld only in a court of equity in subordination to the equitable rule of a ratable distribution; and it is contended that Rogers, by becoming a party to that deed, and thereby releasing the junior members of the firm, necessarily at law released A. Gracie also, and has no claim against him, except in equity, and that only upon the principle of a ratable distribution. There can be no doubt of the general principle, that where one or more of several joint obligors are released, such release discharges the co-obligors, and may be pleaded in bar. (6 Johns. Ch. R. 250 ; 7 Johns. R. 207.) Nor is it material whether the release is by deed or by operation of law. (Cheetham v. Ward, 1 Bos. & Pul. 630.) This, however, is not the rule where the obligors who remain consent to the release. In Burson v. Kincaid, (3 Penn. R. 57,) Kinnedy, justice, who delivered the opinion of the court, says : “ It is well settled, that if the name of one of two or mora joint obligors be stricken out or erased, or his seal torn from a bond by the consent of the obligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it, but it shall from that time be the bond of the others. Their agreement alone in this respect, without more, is equivalent to a new and re-execution or re-delivery of the bond as their act and deed. A. mere formal delivery or re-delivery of it is unnecessary. If they were not held to be bound by the bond in this instance afterwards, it would be a "reproach upon the law and the administration of justice, because it would be to permit the remaining joint obligors to violate most grossly their own agreement, and thereby to commit a most palpable fraud upon the obligee, and cheat him out of his money.” The execution of the deed by Archibald Gracie is sufficient evidence of his consent to the release of the junior members of the firm, to leave him liable upon the original indebtedness; and besides, from the view I have taken, he was liable for the whole deficiency upon his covenant on the receipt of the money upon his French claim. Upon either view, I am of opinion the indebtedness remains unimpaired.

[349] Although it is usual to order a fund to be brought into court when it is in danger, or when no claim is interposed on the part of the trustees for cause shown, yet the court will not in any case from mere caprice divest a party of funds, to the possession of which he is entitled, or to which he sets up a claim founded on reasonable or probable grounds of truth and justice, and place them beyond his control, unless the fund is in danger, either from misbehavior, insolvency, or incompetency of the trustee or executor. (Orphan Asylum v. McCartee, 1 Hopkins, 429 ; Hoffman's Ch. Pr. 320, and cases there cited.) In this case the executor is not insolvent, but is in possession of and the proprietor of a large estate. He is not guilty of misbehavior, but can point to a life of integrity and rectitude, as evidence of the past and a guaranty for the future. Nor has age, by returning to him the mental imbecility of childhood, rendered him incompetent to discharge the trust assigned him by one who must have been qualified to judge of his capacity and fidelity.

Upon the whole, I see no just grounds for interfering with the funds in the hands of Rogers, the executor. He is entitled to retain to the full amount of his debt from the French fund, and the balance belongs to him in his representative capacity. The injunction should therefore be dissolved, and the decree of his honor, the chancellor, be reversed ; but so much of the decree as reverses the decree of the vice-chantiellor of the first circuit, which is brought up by the cross-appeal of Hosack’s executors, for reasons assigned by the chancellor, I am of opinion should be affirmed, and that Nehemiah Eogers, the appellant, should be. paid his costs out of the funds in his hands as executor.

Upon the question being put, Shall this decree be reversed? the members of the court divided as follows:

In the affirmative: The President of the Senate, Justices Bronson and Cowen, and Senators Armstrong, J. Beardsley, Beckwith, Dickinson, Downing, H. P. Jones, Lacy, Lawyer, Loomis, Mack, Powers, Seger, Speaker, Tallmadge, Wager—18.

In the negative: Senators McLean and Wills—2'.

Whereupon the decree of the chancellor was reversed upon the principal question, and a modified decree made in conformity to the opinions delivered.