David Stone, use of Penn, v. Brooks, 6 Howard 373

Mr. Chief Justice Sharkey delivered the opinion of the court. The court probably acted on the principle that one who is liable for a debt, or jointly liable with others, cannot be a plaintiff to recover that debt If so, we conceive it to have been an erroneous application of the rule. This rule is one which is applicable to legal remedies merely, and in order to make it available there must be a legal liability. The debt was created by certain individuals composing a firm. By a subsequent contract, the plaintiff purchased the interest and assumed the responsibility of one of the partners.

This contract was between the two individuals, the creditors or other members of the firm having nothing to do with it. By such a contract, Penn did not become legally liable to the creditors; because he had not contracted with them. If they had a remedy against him at all, it was not at law. He could not have been sued on any of the debts of the firm, nor had the co-partners any remedy against him at law for his proportion of the debts.

His liability arose entirely on his agreement with Strange, who was still liable to the creditors, having a recourse on Penn for any debts that he (Strange) might be compelled to pay. It was but a contract of indemnity in favor of Strange. The plea asserts as a fact that Penn is jointly liable for this .debt, and then shows it to be untrue, by stating how he became liable, to wit: by the purchase of the interest of Strange; so that, admitting all the plea to be true, it does not justify the judgment.

It may be true that Penn has made himself liable to pay a portion of this debt, but surely it is not a joint legal liability. In the case of Stevens and Pettitt v. West and Hamilton, 1 How. 308, it was held that West, who was jointly liable as maker, could not, as assignee, maintain an action on the note; because, being jointly liable on the note, when he acquired it by assignment, it operated as a payment of the note. But this case turned on the ground of West’s legal liability. In the case before us, Penn Avas not a joint maker of the note, nor was he a member of the firm when it was made.

His liability did not arise on the note in any shape, and there can therefore be no ground for abating the action. But if he were legally liable on the note, as was West in the case cited, it would be matter in bar, and not in abatement. For these reasons, the judgment must be reversed and the cause remanded.