Holt v. Bodey

• Citation: 18 Pa. 207
• Parties: Holt <I>versus</I> Bodey.
• Decision Date: 05 April 1852
• Court: United States State Supreme Court of Pennsylvania

Page 207

18 Pa. 207

Holt versus Bodey.

Supreme Court of Pennsylvania.

April 5, 1852.

ERROR to the Common Pleas of Montgomery county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

The case was argued by J. R. Breitenbach and T. S. Bell, for Holt, the plaintiff in error: It was, inter alia, observed, that to bring the case within the principle decided in Neff's Appeal, it was necessary for defendants to have shown that the plaintiff, at the time of executing the release, knew that Henry Bodey was only surety in the bond.

The bond in question is joint and several, and when the plaintiff took the assignment of it, he was not bound to inquire whether one of the obligors was surety only. There was nothing on the face of the bond that led to the inquiry: 9 Ser. & R. 141; 10 Barr 431.

If at the entry of the judgment and the execution of the release, the property released was encumbered to an amount equal to its value, Henry Bodey was not discharged. Whether it was so encumbered was a question for the jury. The testimony showed that there was such an encumbrance, and the Court ought to have left it to the jury.

Powell and Fornance, for defendants.—Holt released the principal property bound. The whole debt could have been realized out of the property released. The authorities cited on part of plaintiff in error show, that an assignee is not to be subjected to the latent equities of third persons; but he is subject to equities between the original parties. As to the first, without being informed as to them he is not to be expected to inquire: 5 Barr 232; 9 Id. 404; 1 Rawle 227; 17 Ser. & R. 287; 1 Bin. 434; 1 Dallas 23; 10 Barr 431. That a release given by the creditor to one of two joint and several obligors, will discharge both, is the law of Pennsylvania: 1 Wh. 358, Ingersoll v. Sergeant. And in the case of Neff's Appeal, 9 W. & Ser. 36, 43, it is decided that a release of the principal will discharge the surety. Therefore, whether Joseph Bodey and Henry Bodey were principal and surety, or joint and several obligors, if the plaintiff released Joseph H. Bodey, he discharged Henry; and the fact of other liens existing against Joseph could not aid the plaintiff in this action.

The opinion of the Court was delivered, April 5, by LOWRIE, J.

To get at the principles of this case by the nearest road, it may suffice to state that here was a bond by two, and a judgment entered upon it, and now on a scire facias to revive the judgment, one of them suffers judgment by default, and the other takes defence on the ground that he was surety in the bond, and that the plaintiff released from the lien of the judgment, property of the other defendant of sufficient value to secure the debt.

Principles of equity are law with us because we receive them as rules of right, and accommodate our forms of procedure to the admission of them. They are distinguished from principles of law elsewhere, because their force is acknowledged only in peculiar Courts, and the forms of what are called their common law Courts do not furnish the means of enforcing them. We have adopted as law the equitable principle, that, where a creditor has the means of compelling payment from the principal debtor, and by his own act gives it up, he thereby discharges the surety, and this even when the debt is secured by a joint mortgage or judgment against both: Neff's Appeal, 9 W. & Ser. 36.

It is therefore apparent that this defence must be permitted; and we must so far change the ordinary rules of this procedure as to let it in. For this purpose, we must allow these defendants to sever in their defence, so that each may present the case on his own grounds. But the plea of payment by the surety is utterly incongruous; for if it be found in his favor, it makes an absurd record, with a judgment against one defendant, when the other has proved that the debt was paid. The defence is purely an equitable one, and it should be pleaded specially, and then, on the plea being found true, the record will show that, on equitable principles, the judgment against one defendant and in favor of the other is right. This matter has not been assigned for error, and we mention it only that such blunders may not be repeated. Such a plea should aver the suretyship, and set out the facts necessary to show that in equity the surety is released.

The parties having severed, the plea of the surety stands in the place of a bill in equity to enjoin proceedings as to him, in which this plaintiff and the other defendant would be the defendants, and both would be interested to defeat the bill of the surety. Such are their respective positions, in another forum, on the issue tendered by this plea. Joseph Bodey is, in effect, a party to the issue on the opposite side to Henry Bodey's administrators, and is not bound for the costs which they incur by such an adversary position, and on equitable principles, and under our decisions is a competent witness for them: Mevey v. Matthews, 9 Penn. St. Rep. 112; Talmage v. Burlingame, Id. 21.

In this adaptation of a common law form to the principles of equity, we do nothing more than carry out a principle which has the sanction of innumerable precedents. There should be no forms of proceeding so inflexible as not to yield to the necessary demands of unforeseen circumstances; otherwise they will often cross the purposes which they were intended to serve.

There can be no kind of business without its forms, and they all have two elements of adaptation that are to be taken into the account...