Borden v. Cuyler

Cushing, J.

This petition, which is embraced in the foregoing opinion, so far as regards the questions therein decided, is also the subject of another and a quite independent set of questions, growing out of the partnership concern of John & Jesse Eddy.

The case finds that the Master allowed Theodore Cuyler to prove, as well against the joint estate of J. & J. Eddy, as against the separate estate of Jesse Eddy, two acceptances, which are of similar forms, though of different dates, each for two thousand dollars, drawn by J. & J. Eddy, indorsed by Jesse Eddy, and addressed to William R. Hanson & Brother, of Philadelphia, and accepted by them; and which acceptance came lawfully into the hands of Theodore Cuyler, under the circumstances stated in the report of the evidence.

To this act of the Master, objection is made by the assignee of the Eddys, and thus the subject comes lip here.

By the pleadings, proofs and arguments in the case, two distinct questions are raised, viz:

1. Whether the holder of these acceptances is entitled to make double proof against J. & J. Eddy as drawers, and against Jesse Eddy as indorser ?

2. Whether the acceptances may be proved at all as such ?

The general doctrine of law on the first point, that is, the obligation of election, or the right of double proof, where all the partners are bankrupt, has been settled, but with much misgiving, in England, compelling the creditor to elect" between his securities. Collyer on Part, by Perkins, c. 4, § 5. Lord Eldon struggled against it, but finally submitted to the precedents. Ex parte Bevan, 9 Ves. 223. Lord Henley, in stating the rule, says : “ This doctrine, by refusing a creditor the benefit of the caution he has used in obtaining a joint and several security, has been justly reprobated, and is founded upon no sound principle or analogy whatever.” Henley, Bankrupt Laws, 2d ed. c. 11, § 9. Mr. Justice Story, in this country, condemns it with equal peremptoriness. Story on Part. § 376 seq. And it remains a mooted question in the United States. In this commonwealth, the practice and the weight of professional opinion favor the double proof; but the point has not yet been adjudicated.

The attitude in which the other question presents itself, relieves us from the necessity of taking up and determining this one. The court are all of opinion upon the facts reported, that these acceptances did not pass to Cuyler as negotiable securities, upon which, as such, to sustain an action in his name against either J. & J. Eddy, or Jesse Eddy; that the result of the facts is to show the acceptances to have been paid as acceptances, in behalf of the parties liable; and that the true and only remedy of Cuyler in the premises, would be at law, by action for money paid, in which contingency the drafts would be available as evidence of payment and consideration.

The decision of the Master upon this point is reversed, therefore; he is to allow to Cuyler the amount proved to have been paid by him, and is to take the acceptances for proofs of payment; but he is to charge the amount only to the partnership debts of J. & J. Eddy.