Gayle v. Martin

1. A boat being libelled and seized, subsequent to the-decree of condemnation and order of sale, a third’ petson interposed as claimant, and executed a bond for the prosecution of a writ of erfor — Held', that the bond’ had no other effect than to arrest proceedings until the judgment of the appellate Court was rendered, and upon the affirmance of the decree, it was competent to execute the order of sale. This being the case, a bond subsequently executed 'to the lib.ellants, in consideration of relinquishing their lien, conditioned to pay the judgments in their favor, should they not be reversed', is good as a common law obligation. £r. A bond,to-a number of obligees, conditioned to pay several and distinct judgments in-favor of each, must be sued in the name of all the obligees, or the survivors of them» upon the principle, that they in whom the legal interest is vested, must join in an ac’ tion at law.' ' ‘

,THJE-defendants in error, brought an action of debt, against :the plaintiffs, on a penal bond in the sum of. one - thousand dollars. ■ ; The defendants demurred to the declaration, and their demurrer was sustained. Thereupon, the-plaintiffs filed an amended declaration, which was also demurred to. - The amended declaration sets out, -that the plaintiffs, on the'23d of October, ,1838, commenced a suit by libel, in the County Court of Dallas, .against,the steam-boat Fox, her tackle, apparel and furniture, .upon which such proceedings were had, that the boat was .seized by.the sheriff of that-county. It is .then averred, that at the Docember term, 1838/ of the County 'Court, all the plaintiffs, ¡with.the exception of two, recovered several .judgments for the .amounts respectively due,to them, and -that the boat was con--demped to their satisfaction — (the amount of each of these judgments is particularly stated;) and it was ordered by the Court, that a commission issue to the sheriff of Dallas, to expose the boat, her tackle, apparel and furniture, to .publie sale. It is further alleged that on the 19th of February, 1839, one James Read, having put in a claim to the boat, and .been made a party, to the record in the cause by order of the. Judge .of the.County. Court, executed a writ of error bond, and sued out a writ of •error .returnable to the June term, 1839,-of the Supreme Court, thereby superseding the judgment, order and. sale. Nnd af-terwards, on the 23d of March, 1839, the defendants, with the consent of the libellants, executed a writing obligatory, by which they acknowledged themselves held, andffrmly bound unto the plaintiffs, in the penal sum of one thousand dollars, .for the payment of which, well and truly to be made, theybound,themselves, their.heirs, executors. &c. jointly and.save.rally, &c. conditioned, that whereas, there had been an attachment at the suit of said li-bellants, levied on the steam-boat Fox, which attachment was founded on -the libel of said obligees and lihellants, filed inthe county court of said county, (meaning and referring to the suit aforesaid.) and thesaid.Geo. W. Gayle for, and on behalf of theowners .of said boat, claiming the sume, and for the .purpose of replevying the same, bound himself as above;: now if the said George W. Gayle, should well and truly pay such judgments as should thereafter be rendered on.said libel, or such judgments as had already been .rendered o.n .said .libel (meaning the judgments aforesaid) in case the same should not be reversed, then that obligation to be void, else to remain in full force and effect. It is then averred, that in consequence of the execution of the writing obligatory, George W. Gayle, did-then and there, receive the boat into his-care, and under his control, and has.not re-delivered, but has sold and disposed of the same. It is also-alleged, that the matters set forth in said writing obligatory,mean, and refer to the plaintiff’s libel against the steam-boat Fox,'and the proceedings therein as above in this declaration stated. The declaration then alleges the non-payment of the judgments in favor of,the plaintiffs, although ■ they still remain, in full force; the writ of error to the Supreme Co.urt having .been dismissed by the judgment of that Court, and concludes in usual form. After the overruling of their demurrer, 'to the amended declaration, the defendants, with the consent of the-plaintiffs,-pleaded informally, as follows: 1. That there was no such record of recovery in the said County Court, as in said declaration, and amended .declaration, ,-alleged. 2. That .there is no record of said dismissal of said .Supreme Court. . 3. To the said amended declaration, that said writing obligatory .declared on, was not made apd executed by consent of ¡the libellants, as in said declaration-mentioned. d. There never has been any demand made -of the boat, her -.tackle, apparel and furniture. The plaintiffs took issue-on the .first, second -.and third pleas, .and demurred to the fourth. The demurrer was sustained, and judgment on the first and second pleas given for the plaintiffs; and the issue of fact being tried by a jury, a verdict was,-returned .for the plaintiffs, and judgment thereupon rendered. To revise the judgment of the Circuit Court, a writ of error has been .prosecuted to this Court. ■j. The bond on which the-plaintiffs declared did not appear ito have beqn founded on any legal consideration. 2. That a joint notion cannot be sustained on the bond by all the obligees} each- obligee should have sued to. recover the damages to • which he was' entitled. I'-Chitty’s Plead. 9; 2 Saund.'Rep. 116,-note 2. '3.- The bond must be regarded as separate and several, as it respects each obligee, for if joint, one couldr release the action to the injury of all. Eastman, et át. v.-Wright, et at. 6 Pick. Rep. 316, 322, 323. And if a joint action-is'allowed,the' defendants would be denied the right of set-off against any number of the obligees less than all; besides the plaintiffs have interests, separate and distinct, and not joint. ' 4. The. obligees should have severed in the assignment of a-breach. ■ insisted — that the proceeding against the boat, being in rem, the writ of error bond did not require its return to the claimant, but merely superseded the order of sale. But admitting the law to be otherwise, the bond was-voluntarily executed, for a consideration, not illegal, and was good at common law. Aik. Dig. 390; Acts'of 1836,. page 24;† 21 Wend. Rep.- 605; & ibid.- 287; 3 Mass. Rep;- 304; 5 ibid, 315'; 2! Porter’s Rep. 493; 5 Porter’s Rep. 251; 6 Porter’s Rep.-419. The plaintiffs could not maintain- separate actions of debt on the bond; whether each could sue in covenant on the condition,is another question.- Here, the action is on the bond, and the breaches of the condition are alleged under the statute. The-obligees have the legal interest and all must join. 9- Wend.Rep. 236; 1'2'ibid. 156; 1 B. «fc'Pul. Rep. 72; 1 East’ Rep. 500; 1 Chitty’s Plead. 3, 4; 5, 6, 7, 8, 9. The 'breach follows the terms of the condition,- and is consequently good-.-