Pearce v. Hitchcock — 2 N.Y. 388

Majority

p. 388

Pearce et al. vs. Hitchcock et al.

Headnote

In an action of debt on a penal bond running to several persons jointly, all the obligees must, at common law, unite as plaintiffs, although the condition be to perform distinct acts for the benefit of the obligees severally.

But where a statutory bond was given to several attaching creditors, conditioned to pay to each creditor the amount due him, and the statute (2 R. S. 12, § 57,) provided that the bond should be held for the common benefit of all the creditors, and might be prosecuted by them jointly, or by any one of them separately in respect to his separate demand ; held, that a single creditor might maintain a suit on the bond in his own name.

The case of Arnold v. Tallmadge, ( 19 Wend. 527 ,) holding a contrary doctrine, overruled.

George Pearce and Henry Smith brought an action of debt in the New-York common pleas, against Andrew H. Hitchcock and others. The declaration set, forth that pursuant to the statute concerning “ attachments against absconding, concealed and non-resident debtors,” the plaintiffs procured from the proper officer a warrant directed to the sheriff of the city and county of New-York, commanding him to attach the real and personal estate of Israel D. Condit and Aaron Peck; that the process was duly executed; that for the purpose of procuring a discharge of the warrant, the defendants executed to the plaintiffs and to Peter V. Lane, William B. Guild and Ziba H. Kitchen, (the three persons last named having also made themselves attaching creditors, by coming in under the proceedings in the manner authorized by the statute,) a bond in a penal sum, double the amount of debts sworn to by all the attaching creditors, and conditioned to pay to each attaching creditor the amount justly due to him from the said Condit and Peck. The declaration then set forth the indebtedness of said Condit and Peck to the plaintiffs as partners, at the time the warrant issued, and concluded with the usual averment, that by reason of the premises the bond had become forfeited, and an action had accrued to the plaintiffs, &c.

The defendants demurred to the declaration on the ground, among others, that all the attaching creditors should have joined

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in the suit. The New York common pleas, upon the authority of Arnold v. Tallmadge ( 19 Wend. 527 ), held the objection fatal, and gave judgment for the defendants. The plaintiffs brought error to this court.

A. F. Smith, for plaintiffs in error.

C. Van Sandford, for defendants in error.

The main ground of the demurrer put in To the plaintiffs’ declaration is, that the suit is brought in the names of only two of the five obligees named in the bond, insisting that a suit upon this bond cannot be sustained by an individual creditor named as an obligee, in his own name, without joining the others, if living.

At the common law this objection would be fatal, the rule being, that in suits on bonds or deeds, all the obligees or covenantees, if alive, must join as plaintiffs in bringing the action. (Cabell v. Vaughn, 1 Saund. 291, F. note 4; S. C. 1 Vent. 34; Vernan v. Jeffreys, 2 Strange, 1146 ; Scott v. Godwin, 1 Bos. & Pul. 74; Sorsbie v. Park, 12 Mees. & Wels. 146.) In cases where the covenantees have or are to have several interests or estates, and the covenant is made to and with the covenantees and cum quolibet eorum aut altero eorum ; these words make the covenant several; as if one by indenture demise Black-acre to A., and White-acre to B., and Green-acre to C., and- covenant with them and either of them, that he is lawful owner of all these acres, in this case the covenant is several. But if he demise to them the three acres together, and covenant in this manner, the covenant is joint and not several, for the words, and with every of them are, in this case, only words of amplification and abundance, and do not sever the joint cause of action. (Shep. Touch 166, 5 Rep. 18) Baron Parke, in Sorsbie v. Park, said that he thought the correct rule was laid down by Gibbs, C. J. in the case of James v. Emery, (5 Price, 533,) with the qualification stated by Mr. Preston, in the note to Shepard’s Touchstone, 166. That rule is, that a covenant

p. 390

will be construed to be joint or several, according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction ; not that it will be construed to be several by reason of several interests, if it be expressly joint. I think that is the true distinction. In this case, although we can see from the recitals in the bond, that the obligees had separate and distinct interests, yet it is expressly joint, and the words of it will not admit it to be construed a several bond. Therefore if all the obligees are living, the action cannot be sustained by the rules of the common law in the name of any number of them less than all.

The legislature had power to alter that rule, and I think it has done so in respect to this bond. 2 R. S. 12, § 57, provides that “ every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted at any time within six months after its date, and not afterwards, by them jointly or by any one of them separately, in respect to his $2 3-arate demand ; and in every such action the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtorplainly, as it seems to me, giving to each of such creditors, a separate action in his own name upon the bond for the recovery of his demands, as well as a joint action to all, at their election.

A strong argument is derived by counsel for the defendants, from the construction put upon 2 R. S. 493, in Arnold v. Tallmadge, ( 19 Wend. 527 ,) where it was held that an action upon a bond given to several attaching creditors on the discharge of a ship or vessel, pursuant to the provisions of the statute regulating proceedings for the collection of demands against ships and vessels, must be brought in the names of all the obligees. Perhaps it is not too much to say, that if that construction of that statute is correct, it must govern the decision here. Although I entertain a high respect for the opinion of the court which pronounced that opinion, I must say that I am not able to see either the propriety of the decision or soundness of the argument which led to it.

It was said that the statute did not, in terms, declare expressly in what name on the record the bond should be sued, but only

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by whom it might be prosecuted. The 15th section of the statute to which a construction was given in the case referred to provides that the bond should be held for the common benefit of all the attaching creditors, “ and may be prosecuted by anij of them jointly, or by any one of them separately, in respect to his demand.”

■ It is obvious to me that the legislature intended, and have used words clearly expressing the intention, to allow any one of the attaching creditors to sue such bond in the joint name of all the.obligees in respect to all of their demands, or in his own name in respect to his individual demand, at his election. And this construction coincides with the provisions of the subsequent sections. Section 16 requires, in a suit upon such bond, the attaching creditors respectively to state in their declaration their respective demands, &c. and assign as a breach of the condition of such bond, the non-payment of the claim of such creditors. Section 17 provides that the defendants may plead as in other actions of debt on bond, and may plead to such assignment of breaches, and the same proceedings shall be had on such bond as provided by law on bonds with other conditions than for the payment of money. Section 18 provides, if it shall be found by the verdict, &c. that the sum of $50 or upwards was due to any plaintiff in such suit upon any claim or demand which, &c. judgment shall be rendered that such plaintiff have execution for the amount of such claim ; and section 19 provides that if it shall be found that if nothing or less than $50, was due to any plaintiff in such suit, &c. judgment shall be entered against such plaintiff that he take nothing by his writ, and costs shall be awarded to the defendant. There is nothing that I can discover in these provisions inconsistent with the right of any one of several attaching creditors, to sue the bond in his own name in respect to his individual demand.

And besides, it is consistent, as I think, with the object of the statute. Several individuals, strangers to "each other and to each other’s demand, are by force of the statute included as obligees in a single bond, with a condition to pay to each his individual demand, with costs incurred by him in piocuring the attachment. Having such a bond, the legislature was fully

Dissent

p. 392

aware that bv the common law rule no suit could be sustained upon it for breach of the condition, except in the name of all the obligees, if living; and seeing the difficulties which any one of several obligees would have to encounter in bringing such action, and in alleging and proving a breach of the condition as applied to his co-obligees, provided a remedy by allowing each obligee to sustain separately, in his own name, an action upon the bond to recover his demand.

In my opinion the judgment of the common pleas is erroneous and should be reversed with costs, and the plaintiffs should have judgment on the demurrer.

also delivered an opinion in favor of reversal, and Gardiner, Buggies, Strong, Shankland and Hoyt, JJ., concurred.

(dissenting.) When there are several covenantees in a deed or obligation, the question who should join in bringing the action sometimes depends on the nature of their interest. If that be joint, all must join in bringing the action, although the words of the covenant may seem to imply a right to sue severally. And if the interest be several, each may sue alone, unless the words are expressly joint. The covenant will be construed to be joint or several, according to the interest of the parties appearing on the face of the deed, if the words are capable of that construction; but it cannot be construed to be several by reason of several interests, if it be expressly joint. (Eccleston v. Clipsham, 1 Saund. 153, and note 1, 2; Bull. N. P, 157; James v. Emery, 8 Taunt. 245; Withers v. Bercham, 3 B. & C. 254; Sorsbie v. Park, 12 M. & W. 146.) But the rule that one of several covenantees may sometimes have an action without joining the others, has nothing to do with an action of debt on a penal bond. There all the obligees must join, though the condition be to do an act for the exclusive benefit of one of them. (Rolls v. Yate, Yelv. 177; Bac. Ab. Obligations, D. 3 ; Hurlston on Bonds, 96; Arnold v. Tallmadge, 19 Wend. 527 .) A different dictum is imputed to “ the court” in Ehle v Purdy, ( 6 Wend. 631 , 2; ) but the court must have been mis

p. 393

apprehended by the reporter. There is no common law authority for saying that one of several obligees in a bond may sue alone for the penalty by reason of his several interest in the matters mentioned in the condition. There is no ground for an argument in favor of the suit as it has been brought, except that which is furnished by the statute under which the bond was taken ; which provides that the bond “ shall be held for the common benefit of all the attaching creditors, and may be prosecuted”—“by them jointly or by any one of them separately in respect to his separate demand.” (2 R. S. 12, § 57.) Nothing is said about the name or names in which the action must be brought; and the words of the statute will be fully satisfied by following the rule of the common law, and prosecuting the bond in the names of all the obligees; the prosecution being by or for the benefit of all the attaching creditors jointly, or by or for the benefit of any one of them separately, as the case may be. The breaches assigned in the declaration will show whether the suit is by all, or by only one of the creditors. This construction preserves the analogy instead of making an anomaly in the law, and is the construction which has already been given to another statute containing the same words. (Arnold v. Tallmadge, 19 Wend. 527 .) If that decision was more questionable than I think it is, still it ought not now to be overruled. It is. one of those questions which at the first might be decided either way, but which, when once settled, should not be disturbed. No point of principle, nothing which affects the substantial rights of the parties is involved ; it is only a question concerning the form of the remedy; and after the mode of procedure has been settled and acted on for years, nothing but mischief could result from the introduction of a new rule. It would defeat pending suits and reverse judgments already rendered ; and this too without obtaining any valuable end.

It has been said that if each attaching creditor must prosecute in the names of all the obligees, the first judgment will be a bar to a suit by any other creditor. But that is a mistake. When all of the attaching creditors do not prosecute the bond jointly, the statute gives a separate action to each. And so

p. 394

whether each creditor sues in his own name alone, or in the names of all the obligees, the practical result will be the same.

I am of opinion that the judgment of the court below is correct; and sho.uld be affirmed.

Judgment reversed.

Cases cited

D. & N. Arnold v. Tallmadge 19 Wend. 527 N.Y. Sup. Ct. p. 388, p. 389, p. 390, p. 392, p. 393