United States v. Archer

24 F. Cas. 844, 1 Wall. Jr. 173

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: October 15, 1847
• Status: Published

Opinion

GRIER. Circuit Justice.

That the case of U. S. v. Cushman, decided by the late Justice Story, and pressed upon us in behalf of the United States, is, in all material facts, similar to the present cannot be denied; and such is the reverence entertained by this court for the learned judge who decided it, that the weight of his single name would have been amply sufficient to draw assent from our minds in a ease otherwise susceptible of a doubt. But as all other authority is, in our opinion, to be placed in the opposite scale, we have ventured, though with diffidence, to dissent from his conclusions.

1st. The allegation that an obligee who has obtained a joint judgment against all the ob-ligors. may arterwards sue them or their representatives severally, assumes too much for the plaintiff's case. If such be the law. the plaintiff has ample remedy at law. without invoking the aid of a court of equity.

But the law appears to be well settled, that if two or more are bound jointly and severally, the obligee may elect to sue them jointly or severally. But having once made his election and obtained a joint judgment, his bond is merged in the judgment “quia transit in rem judicatam.” Indeed it is essential to the idea of election that the ob-ligee cannor have both a joint and several action: and no case can be found to countenance the doctrine (Brown v. Wootton, Cro. Jac. 73; Bac. Abr. “Obligation,” D, 4; Streatfield v. Halliday, 3 Durn. & E. [3 Term R.] 782; Hurl. Bonds, 97; Minor v. Mechanicks’ Bank, 1 Pet. [26 U. S.] 73; Ex parte Brown, 1 Ves. & B. 65; Pitm. Sur. 85; Downey v. Farmers’ & Mechanics’ Bank, 13 Serg. & R. 288; Walter v. Ginrich, 2 Watts, 204; Stoner v. Stroman, 9 Watts & S. 88; Poll. 641; 2 Vent. 348) that he can.

2d. That the death of the defendant’s testator after judgment discharged his assets, and that no action at law lay against him, the bill impliedly admits, and it has not and cannot be denied. U. S. v. Cushman [Case No. 14,907]; Reed v. Garvin’s Ex’rs, 7 Serg. & R. 354; Stiles v. Brock, 1 Pa. St. 215; Erwin’s Lessee v. Dundass, 4 How. [45 U. S.] 77.

3d. It cannot be disputed that equity will reform an instrument even as against a surety, where there has been fraud or mistake; and give a remedy against the estate of a deceased joint debtor, w’here he has been personally benefited by the consideration of the contract. Story, Eq. Jur. §§ 162-164, 676; Primrose v. Bromley. 1 Atk. 90; Simpson v. Vaughan, 2 Atk. 31; Bishop v. Church. 2 Ves. Sr. 101, 371; Devaynes v. Noble. 1 Mer. 568; Sumner v. Powell, 2 Mer. 36; Thomas v. Frazer, 3 Ves. 399. But that it will give assistance as against a mere surety. who has received no personal benefit, when his liability is discharged at law, is a proposition not only unsupported by precedent, but denied by many authoritative decisions. To some of these it will be proper more particularly to refer.

In Hunt v. Rousmanier, 1 Pet. [26 U. S.] 16, the court (referring to the cases last above quoted,) say, “the cases alluded to are those in which equity has afforded relief against the representatives of a deceased obligor in a joint bond given for money lent to both the obligors, although such representatives were discharged at law. The principle upon which these cases manifestly proceed, is, that the money being lent to both, the law raises a promise in both to pay, and equity considers the security of the bond as being intended by the parties to be co-extensive with this implied contract by both to pay the debt.”

The court of appeals of Maryland (Waters v. Riley, 2 Har. & G. 305), in reference to this subject, declare the general rule to be, “that where the remedy at law is gone, chancery will not revive it, in the absence of any accident, fraud or mistake; to which the case of a bond where all are principals, has been held to be an exception, each being equally benefited, and under an equal moral obligation to pay the debt, independent of the bond, to which equity relates back, when the remedy on the bond at law is gone. But in case of a surety who is bound only by the bond itself, and is not under the same moral obligation to pay, equity will not interfere to charge him beyond his legal liability.”

The same doctrine is fully recognized by the supreme court of Pennsylvania in several cases, and by the court of appeals in Virginia. Weaver v. Shryock, 6 Serg. & R. 264; Kennedy v. Carpenter, 2 Whart. 361; Minge’s Ex’r v. Field, 2 Wash. [Va.] 136.

This case cannot be distinguished from those I have quoted, on the ground of the United States being party plaintiff: for the same rules of contract are applicable where the sovereign.is a party as between individuals. Hunter v. U. S., 5 Pet. [30 U. S.] 174. On the contrary, the act of congress of March 2, 1799, § 65, in pursuance of which the bonds in this case were given, while it gives a surety who has paid the bond a remedy both at law and equity against his principal, requires on behalf of the government, that prosecutions for the recovery of the money “shall be by action or suit at law.” Now while I doubt not but that the assistance of a court of equity, as ancillary to a court of law, may be invoked to obtain a remedy where there is a legal obligation to pay the bond; it is plain that the statute does not provide for the enforcement of a mere equitable right in favour of the United States, where their obligations are discharged at law, or claim for them any privilege or prerogative beyond any other corporation or individual.

A surety in a bond to the United States, is under no higher legal or moral obligation to pay the money than if an individual were the obligee. And the extent of that obligation in common cases, both at law and equity is well established by decisions of tribunals of the highest authority. I do not think the court is bound to depart arbitrarily from all precedent, or to establish new and anomalous principles, to suit the necessities of the government. Congress may alter the law, if they see fit, but it does not become the court to legislate when they have omitted it. Bills dismissed.

[Upon appeals by the plaintiff to the supreme court, the decrees dismissing the bills were affirmed. U S. v. Price. 9 How. (50 U. S.) 83.]