Governor ex rel. Moore v. Hicks

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] This is an action of debt, on a Sheriff’s bond, in the name of the Governor, for the use of George Moore and Matthew H. Myrick, against Elijah Hicks and Ewell Webb. The declaration states that the bond was made by Hicks and Webb, together with one Obadiah M. Colbert, since deceased. It then avers first, that all three of the obligors bound themselves for the faithful performance of the Sheriff; • and afterwards, that Hicks and Webb bound themselves.

The declaration further recites, that George Moore, one of the plaintiffs in the suit, recovered $928.98 principal, and $68.03 interest, besides cost, in November, 1842, on an attachment against Elkanah Sawyer and Littlebury Boon ; that Matthew H. Myrick, the other plaintiff, recovered, at the same time, of Elkanah Sawyer, a judgment for $747.41 principal, and $54.81 interest, besides cost; and that Moore and Myrick, purchased jointly and took by assignment to Myrick, for the use of himself and Moore, a fi. fa. against Sawyer and Boon, from one Littlebury Lucas, dated in August, 1842, for $1,278 principal, and $65.34 interest, besides cost. And the breach alleged is, that Hicks, the Sheriff, sold the property of Sawyer, the defendant, to the amount of $3,600 on these several executions ; that by a ver-. *191 diet of a Jury upon a collateral issue, there was found to be still on his hands $1,024.06 of the proceeds of the sale of the defendant’s property, unaccounted for.

There is some confusion in the record, leaving it doubtful whether there was a general judgment entered up for this balance in behalf of the creditors, who moved the rule ni si against the Sheriff, or a rule absolute' predicated upon the finding of the Jury. Probably both was done.

Upon this statement of facts, this action is brought upon the bond and the failure of the Sheriff to pay oyer this money.

At the trial, the declaration was demurred to, both on account of the misdescription of the bond, as well the misjoinder of several plaintiffs and several causes of action in the same writ. The Court sustained the demurrer, but allowed the party to ¿mend, which he declined to do, and the case was dismissed.

We think the first objection, as to the contradictory averments respecting the bond, was immaterial, and that it came too late. The other objection was well taken and fatal. Courts will not, in one suit, take cognizance of distinct and separate claims of different persons. Where the damage, as well as the interest, is several, each party injured must, in that case, sue separately. 1 Saunders, 291, g. 2 Saunders, 116, n. 2. Bacon’s Abr. Action C. 2 Wits. 423. 1 Chitty’s Pl. 73.

[2.] And the objection is good, on a general demurrer, or in arrest of judgment, or upon error. Cooper vs. Bissell, 16 Johns. Rep. 146. 1 Chitty’s Pl. 236.

Here are joined in the same suit, the individual claim of George Moore, the individual claim of Matthew H. Myrick, and the joint demand of Moore & Myrick, each requiring separate verdicts and separate judgments, which cannot be awarded in the same suit.

■ The judgment is consequently affirmed upon this ground, with he privilege to the plaintiffs to re-in state the case, and amend his writ, upon the payment of costs, by striking out any two of the parties, and the breeches and the declaration alleged in their charge.