McClure v. Roman

The opinion of the court was delivered, June 20th 1866, by

Read, J.

Since the decision of The Bank of Montgomery County’s Appeal, 12 Casey 170, the case of Hopkinson v. Rolt, cited in it, has been decided in the House of Lords (9 H. L. C. 514), affirming the decisions of the Lord Chancellor and of the Master of the Rolls. The question in this case is, what is the effect of the decision in 12 Casey, upon the acknowledged and undisputed facts before us ? Hezekiah Easton executed a judgment-note, on the 27th May 1857, to John Anspach, Jr., W. G. Reed, W. McLellan and A. K. McClure, for $60,600, on which judgment was entered of record on the 18th of July 1857.

This note was accompanied by a schedule of liabilities, as they existed at the date of its execution, and also an agreement signed by Mr. Easton, which schedule and agreement were not filed with the judgment when it was entered. This agreement stated the judgment to have been given, inter alia, for the purpose of protecting said parties (plaintiff) “ in any future debts and liabilities they may incur for my use; the same being intended to protect them in all liabilities heretofore assumed or hereafter to be assumed, either jointly, severally or as partners, for my use or benefit, whether the same be in shape of debts due them, or either of them, acceptances, endorsements or drafts drawn and accepted.”

It is clear, therefore, that any future liabilities incurred by either of the obligees would not be by any contract under which they were obliged to incur them, but would be of an entirely voluntary character, and would be included in the following extract from 12 Casey: “ Its object was, therefore, to secure not only present but future advances by the Bank of Montgomery County, which future advances they were under no contract to make, but which it was at their own option to make or not as they thought proper.”

For the reasons assigned by the auditor, we do not think the liabilities incurred by the appellant can be carried further back than the 20th of July 1857, the date of the four notes given by the appellant.

On the 29th of April 1857, Hezekiah Easton confessed a judgment in favour of J. Philip Roman, for $20,000, which was entered of record on the said 20th of July 1857. On the 15th of July, William G. Reed, one of the plaintiffs in the judgment for $60,600, received a letter from J. Philip Roman, with the judgment-note, and a peremptory order to have the same judgment-note entered of record, against said Hezekiah Easton, and that on the same day Mr. Reed showed the letter and judgment-note to William McLellan, another of the plaintiffs. That the appellant, also one of the plaintiffs, knew of the existence of the Roman judgment-note on the day before he signed the notes of Easton to Rosenberg, for the security of the purchase-money of the printing establishment. If Mr. Reed had obeyed his instructions the Roman judgment would have been entered three days before the Anspach judgment. The letter was received by Mr. Reed on Wednesday, and the Anspach judgment, in, which he was one of the plaintiffs, was entered on Saturday, and he never’ entered the Roman judgment until the Monday following, a very grave disobedience of the peremptory order of Mr. Roman.

The four notes were signed on the same day with the entry of the Roman judgment, but before it was actually entered of record. If these notes had been judgment-notes, and entered on the same day, or if judgment for their amount had been confessed and judgment entered on that day, but before the entry of the Roman judgment, there can be no doubt but that no priority could have been claimed, for in such cases there are no fractions of a day: Metzler v. Kilgore, 3 Penna. R. 245 ; Claason’s Appeal, 10 Harris 363. We cannot perceive that there is any substantial difference between the present case and those just put. The lien of the notes, under the judgment of the 18th, cannot commence earlier than the 20th, and if so, as between judgments, there are no fractions of a day, the auditor and the court were right in holding that the judgments as such must be paid pro ratd.

To the authorities cited by the auditor on the 16th page of the plaintiff’s paper-book may be added Schick v. Pharo, 13 Wright 384.

We have not extended our remarks, for the auditor’s report is very full and satisfactory.

Decree affirmed.

Agnr’w, J., dissented.