the heir. See a case somewhat like this, Burgh et al. v. Preston, 8 Term Rep. 483 16. De promissione scripta in Instrumento. p. 263. This is analogous to justice Wilmot's idea, that there can be no nude pact, if deliberately written. Tit. XXI. De fide jussoribus, p. 266. That stipulation and promises may be more certain, Caution and Sureties may be added to them. Fide jussor, a surety, called otherwise repromissor, adpromissor, sponsor, prædes, vades, is one who binds himself in the same contract conjointly with the debtor, for the greater security of the creditor or stipulator. Fide-jussor, differs somewhat from Expromissor, who discharges the first debtor, and assumes the debt. Dig. 12. 4.4 Fide jussio differs from Constitutum, which is a promise on a nude pact without stipulation Inst. 4. 6.9. Dr. Wood, from whom I have taken the above, adds gravely, "It "is made a question whether our Saviour was fide jussor, or sponsor "only, or expromissor for the Fathers under the old testament." A question that may safely be left to the Canonists to discuss. The obligation of a surety binds his heirs, though no mention be made of them. Inst. 3. 21. 2. In England, the executor is, but the heir, is not so bound 1 Inst. 209. a. 210. b. If there be more sureties than one, each is bound in solidum, Inst. 3. 21. 4. whether it is agreed or not; but by the later law, they are allowed three advantages, viz. 1. Beneficium ordinis, sive excussionis, seu discussionis: by which he may compel the creditor to sue the principal debtor, first. 1 Nov. 3. c. 1. Unless security were given judicially in a cause pending against the principal. 2. Beneficium divisionis. Inst. 3. 21. 4. by which the creditor is driven to resort to each surety for his proportional share only. ⠀ 3. Beneficium cedendarum actionum. By which a surety sued for the whole debt, can demand of the creditor to transfer over, his actions against the other sureties, before he shall recover the whole from the one sued.. The surety becomes bound co-extensively with the debtor, in respect both of sum and time. Nor can he bind himself beyond that. Inst. 3. 21. 5. Dig. 46. 18. 7. If the surety is in danger, he may sue before the time of payment, or demand indemnification. Dig. 17. 1. 38. 1. If the surety being sued, makes a bad defence, the debtor may except to paying him. Dig 17. 1. 8. 8. and 29. 4. Minors, Inst. 3. 20. 9. and Soldiers, Cod. 4. 65. 31. are prohibited from being sureties. So are women, under the senatus consultum Velleianum, Dig. 16. 1. pr Wood. civ. 1. 226, 227. The judiciary cautions or securities belong to another place. The common fide jussion, is an accessary stipulation. Dig. 45. 1. 5. 2. Fide jussors might be taken in cases ex delicto et quasi ex delicto. Dig. 45. 18. 5. and 45. 1. 70 but in respect of pecuniary penalties and punishments only. Fide jussors bind their heirs, because the latter receive the benefit of all the civil contracts of the decedent. Dig. 44. 7. 49. Dig. 50. 17. 59. In a former part of the notes, I gave an account of the case of Thursby v. Gray's administrators, at the court of common pleas, Northumberland county; vide ante p. 462. Since writing that note I have had occasion to enquire further concerning that case: and I find by my friend, Mr. Watts, who took the exception to my charge, that although the case was but slightly argued either before, me, or before the supreme court, the substance of his objections to my opinion, was as follows: That as the seller did not chuse to sell his goods on the credit of the purchaser alone, but thought fit to insist on two persons to be jointly bound, he had a right so to do: therefore as to him, they were both principals; though with respect to each other, they might stand in the relation of principal and surety. Of their contracts, interests, or motives, he could not have, and need not have any knowledge: all he was to look to, was, two securities equally and jointly bound; and such were Spring and Gray. They might dispose of the goods between them as they pleased: the one might be a nominal, the other a real purchaser; or they might be joint purchasers; or neither might be the real purchaser; but both become joint and equal obligors. His right therefore was against both and either. The cases of negotiable notes do not apply: for the course of mercantile transactions, require that mercantile paper should be current on the faith of each and every name that appears upon it: for one man, may prefer it for one name, another for another. Every indorser is a fresh drawer, and every name on the paper a principal. The reason of speedy notice is, that the person who has passed the note, and to whom notice is to be given, has put the right of calling for payment out of his own power, and transferred it to the holder. The cases of security for the performance of services, have no relation to the present case. Here, both parties undertake the performance of the condition of the bond; in the cases of services to be performed, one only is to perform them and if he neglects the duty, his employer alone can know it, and alone can give notice of the neglect. I do not know what answer to give to this agreement, conclusive to my own mind and I incline therefore to agree with the decision of the court. Nesbit v. Smith, would go near to bear out my charge; but in that case the surety gave notice to the obligee to sue, who afterward gave time at his own risk. The early chancery cases go the full length of my doctrine; but they are too brief, and too loosely reported to be relied on. To the list of references that require strict construction in favour of sureties, add ex parte Rushworth, 10. Vez. 409. Eddowes v. Neill, 4 Dall. 133 and Ludlow v. Simond, 2 Cain's cases in error. N. Y. pages 29 and 57. I have dwelt the longer on Thursby v. Gray's, Adm'rs. because I regard it as a case of great practical importance, and which I hope to see more fully reported with the reasons of the decision at length. 4. De pluribus fide jussoribus. p. 267. In Cowell v. Edwards, 2 Bos. and Pull. 268. and the next case, Sir Edward Deering v. Lord Winchelsea, it was determined that one of many co-sureties paying the whole debt, could only sue each of the other co-sureties for his ratable proportion. These cases are commented on with some disapprobation by the Lord Chancellor in Craythorne v. Swinburne. They appear however to be conformable to the civil law doctrine; and are well founded in equity, though perhaps not in public expedience, inasmuch as they no doubt, tend to the multiplication of suits. To this title respecting fide jussion, should be added Inst. lib. 4. tit. 14. § 4. Que exceptiones fide jussoribus prosunt vel non, wherein the general rule is laid down, that sureties may avail themselves of all the defences which their principal might have used. Tit. XXII. De literarum obligationibus. p. 269. Ex principalibus constitutionibus. See the constitution of the Em perors Honorius, Theodosius, and Constantine, in the second book of the Codex Theodosianus, title Si certum.. Per nostram constitutionem. Cod. 4. 30. 14. This proceeds on the principle of our limitation acts. Tit. XXIII. De obligationibus ex consensu. p. 270. These differ from stipulations wherein the presence of the parties was necessary. Dig. 44. 7. 2. Tit. XXIV. De emptione et venditione, p. 271. This is a nominate contract confirmed by the civil law. It supercedes Barter and Ex change, the most ancient mode of traffic. It gives rise to the action ex vendito against the buyer, for the price agreed on; and to the action ex empto against the seller, in case of defective title or defective quality, in the thing sold. Dig. 18. 1. 28. The buyer bringing the action ex empto must tender the price, and the seller suing ex vendito must tender the thing sold. Hence, nothing forbids that one man should sell the property of another: he does so at the risk of the action ex empto, in case of eviction. Dig. 18. 1. 28. The seller is considered as in all cases warranting the title. After the bargain is completed, the purchaser stands to all losses. Even an express agreement, that the seller should not warrant the title against his own act, was void, as encouraging fraud. Dig. 2. 14.7. 7. Warranty under the Roman law, is either express or implied. It is implied in every case, but may be enlarged or restrained by express covenant. Dig. 19. 1. 11. 18. unless the warranty be so restrained, the seller is bound to answer not only the price paid but the damages. Evicta re, non ad pretium dumtaxat recipiendum, sed ad id quod interest competit; ergo et si minor (minoris pretii) esse cepit, damnum emptoris est. Dig. 21. 2. 70. This is fair reciprocity. The value is considered, not at the time of the sale, but at the time of eviction, and each party runs his chance of what value the article may then be. Dig. ub. sup. Dig. 19. 1. 45. Sub init. and Dig. 21. 2. 66. 3. in fin. If one hath built or planted on an estate, and is evicted, either the person recovering or the person who made sale without title, must stand to the damages sustained by the bona fide purchaser. Illud expeditius videbatur: si mihi alienam aream vendideris, et in eam ego adi ficavero, atque ita eam dominus evincit. Nam, quia possim petentem dominum, nisi impensam dificiorum solvat, dolo malo exceptione summoveres magis est ut ea res ad periculum venditoris non pertineat. Quod et in servo dicendum est, si in servitutem, non in libertatem evinceretur, ut dominus mercedes et impensas præstare debeat. Quod si emptor non possideat ædificium vel servum, ex empto habebit actionem; in omnibus tamen his casibus, si sciens quis alienum vendiderit omnimodo teneri debect. Dig. 19. 1. 45. 1. It appears to me that both cases should be put on the ground of the scienter: viz, if the owner knew the building was proceeding, he ought to pay the value to the person evicted; if the seller knew he had no title, the whole damages ought to fall on him. And such I apprehend would be the law even in Pennsylvania and New York, in cases of eviction from real property by title paramount. If the seller knew his defect of title, he ought to be liable not merely to principal and interest, but to all damage. The buyer was liable for mesne profits, and if the improvér ments exceeded the mean profits, the buyer had the advantage. Dig. 6. 1. 48. If the buyer makes a weak defence, and does not vouch the seller to warranty, the latter is discharged. Dig. 21. 2. 53. When the buyer has given notice to the seller of the adverse suit, the latter is bound to attend to the defence. Dig. 21. 2. 63. 1. The buyer might bring ex emptø on discovery that his title was bad, even before suit brought by the real owner. Dig. 19. 1. 30. 1. There was no distinction as to warranty, between real and personal property. Cod. 8. 45. 6. Under the Roman law, the contract by mutual consent of the parties constituted the Emptio venditio: which was compleated by delivery on one side, and payment on the other. The payment of the stipulated price, or even of earnest money (Arrha), was not of the essence of the contract: it was binding by mutual consent alone. It was consummated indeed by payment and delivery, but its obligatory nature existed before. The arrha (earnest) was evidence only of the contract, argumentum emptionis et venditionis contracta. The Locus Pænitentiæ was allowed, while the mutual assent was as yet incomplete in point of form; (section 1 of this title) and if exercised, was exercised on the terms prescribed in this section. But the emptio venditio, did not require the verbal forms prescribed in the contract ex stipulatur, as Roberts on the statute of frauds (note 84) erroneously supposes. By that statute, the Bargain and Sale has different features from the Emptio venditio, and the earnest is a part, and not evidence only of the contract; and furnishes the right of action, but not without tender of the price on one side, or of the commodity on the other. Longfort v. Administratix, of Tyler, 1 Salk. 113. Hob. 41. "If a man by word of mouth sells me his horse or any other thing, "and I promise nothing for it, this is void and will not alter the property "of the thing sold. But ifone sell me a horse, or any other thing for money or other valuable consideration, and the same thing is to be "delivered to me at a day certain, and by our agreement a day is ap"pointed for the payment of the money or all or part of the money is "paid in hand-or I give earnest money to the seller or I take the thing "bought by agreement into my possession, where no money is paid, earnest given or day appointed for the payment, in all these cases "there is good bargain and sale of the thing to alter the property thereof. "And in the first case I may have an action for the thing, or the seller "for his money: (upon tender that is): in the second case I may sue "for and recover the thing bought in the third case I may sue for the : |