Holker and Others v. Parker
| Decision Date | 01 March 1813 |
| Citation | 11 U.S. 436,7 Cranch 436,3 L.Ed. 396 |
| Parties | HOLKER AND OTHERS v. PARKER |
| Court | U.S. Supreme Court |
In the year 1782 John Holker, one of the Plaintiffs in this cause, Daniel Parker, the Defendant, and William Duer, who is dead insolvent, formed a trading company, under the name and firm of Daniel Parker & Co. of which Daniel Parker was the acting partner. After receiving large sums of money, and contracting debts to a great amount, Parker absconded from the United States without making any settlement of his accounts. In the month of December, 1785, Holker commenced a suit against Parker in the Court of common pleas for the county of Philadelphia, where the said Parker had resided and carried on the business of the co-partnership. This suit was commenced by attaching the effects of Parker in the hands of Thomas Fitzsimmons. In June, 1788, a judgment in favor of the said Holker was rendered on the verdict of a jury for the sum of 47.231l. 12s. 9d. Pennsylvania currency, equal to $125,951 03. The property attached, amounting to $5,000, was sold and paid to the said Holker towards satisfying this judgment.
Other attachments were laid by Holker on the property of Parker, and proceedings were also instituted against him by other persons, creditors of the company. On the 31st of December, 1788, while these were depending, an indenture of six parts was made and executed between said Parker by Andrew Craigie, his attorney, of the first part, John Holker of the second part, Samuel Rogers of the fourth part, by Andrew Craigie, his attorney, Royal Flint of the fifth part, and sundry creditors of Daniel Parker & Co. of the sixth part. William Duer was named in the said indenture as of the third part, but never executed the deed.
The object of this deed was to convey to Royal Flint in trust for the creditors of Daniel Parker & Co. and for other purposes therein specified, the partnership effects of Geyer, De la Lande, and Fynye, to which Parker represented himself to be entitled, and which he had previously conveyed to the said Samuel Rogers. By this indenture the said Parker covenanted among other things that he would, within eight months from the date thereof, repair to Philadelphia personally, or by attorney, and then settle all the accounts of the company. It was further agreed that the said Parker and Holker should, within eight months from the date of the first indenture, reciprocally give bonds to each other in the penal sum of 50,000l. Pennsylvania currency conditioned for the settlement of their respective accounts within ten months thereafter, and for payment of their several balances to Royal Flint and his successors for the trusts in the said indenture mentioned. The bonds to be assigned to the said Royal Flint or his successors in trust as aforesaid.
In consideration of the premises the said Holker, and also the said parties of the sixth part, severally covenanted with the said Parker that they would immediately 'vacate, annul, discontinue and withdraw all suits, actions and proceedings whatever, which they or any or either of them shall or may at any time or times heretofore have commenced, brought or prosecuted against the said Daniel Parker or his estate, goods, chattles or property in any Court or place whatsoever in Europe or America, and shall and will place him, the said Daniel Parker, and his property in the same situation as they were before the commencement of such suits or proceedings.' And the said Holker further covenanted not to commence or prosecute any action against him, the said Parker, for any balance that might be due until after eighteen months after the eight months aforesaid should have expired.
The bonds were given, but Parker failed to comply with the covenant for settling the accounts of the copartnership transactions.
The effects of Geyer, De la Lande, and Fynye, which were assigned to Royal Flint, being insufficient to satisfy previous charges on them, proved totally unproductive.
Debts to a large amount due from Daniel Parker & Co. were recovered from Holker and paid by him.
On the 21st July, 1796, Holker made a power of attorney to James Lloyd, of Boston, for the purpose of recovering from the said Parker the monies supposed to be due to him, and at the same time transmitted to the said Lloyd copies of the judgment obtained by him against Parker in June, 1788, and of a judgment obtained against Holker by John Ross for the sum of 12,933l. 7s. 1d. Pennsylvania currency, equal to $34,488 95. This judgment was for a debt due from Daniel Parker & Co. was rendered subsequent to the indenture of six parts herein before stated, and had been discharged by Holker.
Mr. Lloyd placed these papers in the hands of Mr. Lowell, an attorney at law of Boston, who instituted an action of debt on the judgment obtained by Holker against Parker. This suit was brought by way of attachment. At the June term, 1797, Daniel Parker appeared by his attorney, and filed four several pleas in bar of the action, in all of which the indenture of six parts herein before stated was pleaded as a release of the judgment on which the suit was instituted.
The Plaintiff's attorney prayed oyer of the instrument of which the Defendant had made a profert in his pleas, and, in the October term, 1797, not having replied or demurred to the said pleas, entered into a rule of Court, by which the said action and all demands were referred to Nathan Goodale, George Deblois, and Fisher Ames, esquires, with liberty reserved to Holker of disagreeing to the rule thirty days after he should receive notice of it.
Notice of this rule was received by Holker in August, 1798, but he does not appear to have been informed that any liberty of dissenting from it was reserved to him. It would seem that he submitted to it with some repugnance, and under the idea that it was unavoidable.
On the 8th of September, 1798, Holker made an affidavit, which he transmitted to his attorney, stating many reasons why the referees should not immediately proceed to make up their award in the case, and showing that in the settlement of the complex accounts between Parker and himself, much testimony would be required respecting transactions both in Europe and America, and that so much depended on the entries in the books of the bank at Philadelphia, that the settlement ought to take place there. He declared, however, that he would endeavor to be prepared to appear before the arbitrators in the succeeding months of November, or December, or sooner if practicable.
In October, 1798, the rule of reference was made absolute. Mr. Holker had assigned this claim to Mr. Lowell, the father of his attorney at law, the administrator of Mr. Russel, so far as would be necessary to satisfy a debt due to Russel's estate. On the 6th of November, 1798, Mr. Lloyd wrote a letter to Mr. Holker informing him that his affidavit had been laid before the Court, in consequence of which his cause had been continued until the succeeding June term. On the 23d of the same month Mr. Lloyd addressed another letter to Mr. Holker, informing him that the 'referees would attend to his business whenever it might be convenient for him to appear before them.'
Suits had been instituted against Holker in Philadelphia, in which he had been compelled to give bail in large sums. He then resided in Virginia, and was arrested in Baltimore by his bail in April, 1799, and carried to Philadelphia, where he was enabled to obtain other bail on no other condition than the express stipulation of not proceeding to Boston. On the 18th of May he made an affidavit before the mayor of Philadelphia, stating that he was prevented by this detention from proceeding to Boston in order to attend the referees in person as he proposed to do. That he was about petitioning the Supreme Court of Pennsylvania for a special Court, which he had reason to believe he should obtain in the course of the succeeding July of August, but that in the mean time it was utterly out of his power to go to Boston. This affidavit was transmitted to his attorney in Boston. On the 24th of June Mr. Lowell addressed the following letter to Mr. Holker:
'I received your affidavit through my friend Mr. Lloyd, and with much difficulty obtained a delay. The referees adjourned to the first of September next, when the cause will go on at all events, whether you are here or not. As to success without your aid it is out of the question, as we know nothing of the cause, and as your subsequent covenants with Parker will appear to annihilate your claims under the judgment. Whether you will eventually succeed in getting a nominal judgment against Parker if you do attend, you alone can judge. I am rather inclined to think I could persuade the adverse counsel to give us a judgment for the whole or part of the property attached. ($7,200) They appear to be heartily sick of defending Parker, as they know him to be immersed beyond hope of recovery, and are doubtful whether they will be compensated for their trouble. Whether some arrangement of this sort would not be advantageous to you if it can be effected, considering your doubt of recovery, and the certainty of Parker's inability to pay what may be decreed, you best can judge.
Whatever you do on this point let it be explicit, as Mr. Lloyd and myself mean to avoid all responsibility and every hazard of future blame. I beg you will inform me speedily what we shall do about your action, as the referees will meet in sixty days or thereabouts.'
This letter was transmitted to Mr. Holker by Mr. Lloyd, who subjoined...
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