To Henry Skipwith
Philadelphia May 6. 1791.
I have duly recieved your favor of April 7. on the subject of Mr. Wayles’s responsibility for his joint-consignee in the case of the Guineaman. I have never considered this subject methodically, and therefore have not absolute confidence in the opinion I have formed on a superficial view of it. My ideas however I will hazard to you, however informal.
It is a principle in law that joint-interests and joint-powers pass over to the Survivor on the death of one of the persons joined. Such is the case of joint-tenancy, joint-obligors (if there be no words of severalty) joint executors, joint-commissioners, joint-trustees, joint-attornies, joint-consignees &c. To this rule I believe there is not a single exception. When survivorship takes place, the interest and authority passes over completely to the survivor; none remains in the representatives of the deceased, and consequently no responsibility. Except indeed as to the doings of their testator. If he was guilty of any thing wrong, personally, his representatives must answer it. Thus we are answerable for monies actually received by Mr. Wayles.—Had an action been brought during Colo. Randolph’s life, it is known they could not have joined us in the action, because one obligor cannot be sued jointly with the executors of the other, the parties standing, as the law terms it, in different degrees. The action then, as to us, was certainly suspended during the survivorship of Colo. R. and it is a principle in law that a personal action, once suspended, is gone forever.
This being the decision of the Common law, is it a case in which Equity will interfere? 1. If it did interfere, it would clearly be to relieve us. But 2. it is not a case in which it can interfere, because it would be to controul a principle of the common law in the very case where it was intended to operate, which would amount to a repeal of it. This is beyond the powers of a court of equity.—So far then as this question stands on general principles, we are clear. The question then occurs whether there have been any covenants, written or verbal, to controul the general rules of the law, and to produce a covenanted responsibility where there was no legal one. I suppose the case to have been thus. A company of Guinea merchants send a ship to the coast of Africa [in 1771. I take for granted]1 Farrell and Jones, desirous of obliging two customers, Mr. Wayles and Colo. Randolph, obtain the consignment of this cargo to them in Feb. 1772. and then inform the consignees of it. Mr. Wayles May 14. writes the letter you mention in answer to theirs. They might recieve this the middle of June. At this time the vessel must have been on her way here, for she arrived in 10. or 11. weeks after. This renders it nearly certain that the consignment was previous to the reciept of Mr. Wayles’s letter, and of course was not in consequence of it. That letter can only be considered therefore as a confirmation of what F. & J. had stipulated for the consignees for whom they became securities. They could well make themselves responsible to the consignors for the doings of both consignees and this they did; but it was impossible they could covenant that one consignee should be responsible for the other. This would have been void as a res inter alios acta. Accordingly it has never been pretended that there was any such special covenant. Then the letter, considered as a confirmation of the covenants of F. & J. cannot have produced a joint-responsibility which is not in these covenants. Was the letter intended as an original obligation of securityship by Mr. Wayles for Colo. R.? 1. F. & J. had not desired any such securityship from Mr. Wayles, and it is not probable he would have undertaken it so very wantonly. 2. The letter purports no such intention in him: it is only expressive of a general assurance that they will do their best. 3. The law, to establish an obligation, requires that there shall have been a clear and unequivocal intention in the mind of the party, to enter into the obligation, that there should have been an animus se obligandi. 4. Had Mr. Wayles solemnly said (the contract having been previously entered into by F. & J. and the consignment actually made) ‘I oblige myself, in consideration of what you have done, to be responsible for Colo. R.’ it would have been void, as being merely voluntary. The consideration for the pact, to wit. that F. & J. had done so and so, being past and executed, could not found an obligation. So if a man in consideration of a marriage already taken place, covenants or conveys; it is merely voluntary, a nudum pactum which will not raise a right. Cuningham’s L. dict. being at my hand I find there under the head of ‘Consideration’ the case of Tutthill v. Roberts cited from Freeman 344. a decision by Hale that ‘in consideration that one was bound for him for money owing, he did bargain and sell: this is no good consideration.’ Then if Mr. Wayles ‘in consideration that F. & J. were bound for him for money &c. had undertaken to do so and so, this is no good consideration.’ I do think therefore that there is no general principles either of law or equity which produce a cross-responsibility, that there has been no special undertaking which has done it; not by F. & J. because they could not do it, and I am satisfied they have not pretended to covenant any such thing; nor by Mr. Wayles, because his letter had no such thing in view, and would have been voluntary and void if it had intended it. I have no fear but that the acts of consignment and securityship, passed between the owners and F. & J., were previous to the reciept of Mr. Wayles’s letter, probably previous to their own letter of Feb. 3. I had in the year of Mr. Wayles’s death the best law-authority to say there was no responsibility on our part on the general principles of law.—Still it is my opinion we should take every possible step to subject Colo. R’s property, only taking care to do nothing new which may render us liable if we are not so already.—The marshalling of his assets will be an important circumstance to attend to because if F. & J. cannot as British creditors come on his land, let all the creditors who can come on them, be forced on them, that the personal estate may be left for the simple contracts.
I shall be happy to hear that Mrs. Skipwith’s stay at Richmond has bettered her health, and that the trip to the Sweet springs shall do it still more. I am sure her friends at Monticello will be made happy by seeing her there. Would to god I could be of the party. It shall be so one of these days, without yet saying when. I would not give one hour of domestic and friendly society for an age of my present state. Present me affectionately to Mrs. Skipwith and the young people, and accept assurances of the sincere esteem & attachment with which I am Dear Sir Your sincere friend & servant,
1. Brackets in text.