Booth v. Kinsey

• Decision Date: 04 May 1852
• Citation: 49 Va. 560
• Parties: BOOTH v. KINSEY.
• Court: Virginia Supreme Court

49 Va. 560

BOOTH v. KINSEY.

Supreme Court of Appeals of Virginia.

May 4, 1852

(Absent Cabell, P. and Baldwin, J.)

A debtor in execution executes a forthcoming bond to the creditor, and a third person and the obligee execute the bond with the debtor, as his sureties. The bond being forfeited the obligee gives notice to the principal obligor and the other surety, of a motion for award of execution upon the bond, against them; but the notice does not mention the obligee as a co-obligor. HELD:

1st. That the bond is a valid bond to bind the other surety, but that he is only liable as a co-surety with the obligee.

2d. That if the principal creditor proves insolvent, the surety may be relieved to the extent of one moiety of the debt either by bill in equity, or by motion under the statute for the relief of sureties.

3d. The notice is not defective for failing to mention the obligee as a co-obligor.

The case is stated by Judge Moncure in the commencement of his opinion.

Lyons, for the appellant.

Grattan, for the appellee.

MONCURE J.

Otey Kinsey sued out a ca. sa. against Henry Shoemaker; who being arrested and committed to jail, gave a forthcoming bond with the appellant Moses G. Booth and the same Otey Kinsey, the obligee in the bond, as his sureties. A motion was made by Kinsey against Shoemaker and Booth, the other two obligors, for award of execution on the bond; and it was proved that in due time a written notice of the motion addressed to Shoemaker and Booth, and full and specific in all respects, except that the name of Kinsey was not mentioned as a co-obligor in the bond, had been served on Booth, and a verbal notice of the motion had been given to Shoemaker. And it was admitted on both sides, that the Otey Kinsey whose name was signed to the bond as an obligor, was the same person who was the obligee in the bond; and it was proved on the part of the defendants that Shoemaker had been discharged from custody under the ca. sa. by the execution of the bond aforesaid by Booth and Kinsey, without in fact having delivered up the property specified in the bond, or any other property whatever. The defendants opposed the motion on the grounds 1st, that there was a variance between the written notice and the bond; 2dly, that they had not received sufficient notice of the motion, and 3dly, because the plaintiff being a joint obligor with the defendants, could not legally recover judgment against them, and the bond was nugatory and void. But the Court being satisfied that there was no substantial variance between the written notice and the bond, and that both defendants had had legal notice of the motion; and being of opinion that the said bond was the bond of the defendants alone, and was not vitiated by the fact that the plaintiff also signed it; overruled the objections of the defendants and gave judgment against them. The defendants excepted, and obtained a supersedeas to the judgment.

In regard to the 1st and 2d objections I will only say, that I concur in the opinion of the Court below thereon, and think they were rightly overruled. In regard to the 3d, I have had much difficulty, and will have to express my opinion somewhat at length.

That a man cannot be both debtor and creditor at the same time is undoubtedly true, as applied to an individual in his own right, without any person associated with him, either on the debtor or creditor side. There is an inherent impossibility in the thing; and all instruments, whether in the form of specialties or simple contracts, made for the purpose of producing these inconsistent characters of debtor and creditor in one and the same person must of necessity be void. The defect in such cases is substantial and radical.

But a man, either severally or jointly with others, can be creditor or debtor to himself and others. This is of every day occurrence in cases of partnership, where a member of a firm is creditor or debtor of the firm, or where the same person is a member of creditor and debtor partnerships. The same principle applies to other cases, for in every case of the kind there is a quasi partnership between the parties associated on either side, limited to the purposes of the contract; but just as effectual, quoad those purposes, as a full mercantile partnership would be.

That a man cannot be both plaintiff and defendant in the same suit at law, whether others be associated with him or not, is also true. But this is a technical, and not a substantial or radical defect. It applies to the remedy and not to the right; and may be obviated by resorting to a Court of equity, in which a man can be both plaintiff and defendant in the same suit; or by introducing a new party to the contract in whose name a suit at law may be brought without violating the technical rule; or by suing at law in such manner (if the form of the contract or the law will admit of it,) as not to exhibit the apparent inconsistency of making the same person both plaintiff and defendant.

Thus a bill of exchange or negotiable note payable by a firm to a member of it or order, becomes an available security at law in the hands of an endorsee, who may sue the drawer or maker as well as the endorser. It can hardly be necessary to cite authorities on this subject. The doctrine is stated and many of the cases cited in Smith v. Lusher, 5 Cow. R. 688.

So also where a statute authorizes the assignee of a bond to sue in his own name, he may maintain a suit thereon at law, though the same person be both obligor and obligee in the bond. This was expressly and unanimously decided by the Supreme court of the United States in the case of Bradford v. Williams, 4 How. U. S. R. 576. There is a statute in Florida authorizing an assignment of bonds, and the assignee to sue at law in his own name, similar to our statute on the same subject. The Supreme court held under this statute, that where a joint and several bond was signed by three obligors and made payable to three obligees, one of whom was also one of the obligors; and the obligees assigned the bond, the fact that one of the obligors was also an obligee, was no valid defence in a suit brought by the assignee against one of the other obligors, and that the inability of one of the obligees to sue himself did not impair the vitality of the bond, but amounted only to an objection to a recovery in a Court of law; and the assignment and ability of the assignee to sue in his own name removed this difficulty. There is no doubt but that if the case of Bradford v. Williams had gone up from this state, instead of Florida, the Supreme court would have decided the case under our statute in the same way, for our statute goes at least as far in favour of the assignee of a bond as does the statute of Florida.

So also when the bond is joint and several, and the obligee is one of the obligors; he may, I think, maintain an action at law in his own name against one of the other obligors. The principle of the decision of Bradford v. Williams, seems to apply to the case; for it may be here said, as was in effect said by the Court in that case, that the inability of the obligee to sue himself does not impair the vitality of the bond, but amounts only to an objection to a recovery in a Court of law; and as the assignment and ability of the assignee to sue in his own name removed the difficulty in that case, so here the ability of the obligee to sue one of the other obligors in his own name, in like manner removes the difficulty. In that case it was unnecessary to decide this particular question, because the suit was brought in the name of the assignee; and the case, in the opinion of the Court, fell within the principle of the case of a partner drawing a bill upon his own firm or making a note in the name of the firm, payable to his own order; both of which are valid in the hands of a bona fide holder. But it is manifest that if it had been necessary to decide this particular question in that case, the Court would have decided it in favour of the right of the obligee to sue. For Mr. Justice Nelson, in delivering the opinion of the Court, said: " Whether the obligees of the bonds in question could have maintained an action at law against the defendant, is a question we need not determine; though it is not easy to perceive the force of the objection urged against it, namely, that Craig one of the co-obligors is also an obligee. The bond is joint and several, and the suit against Judge, one of the obligors; and if it had been brought in the name of the obligees, Craig would not have been a party plaintiff and defendant, which creates the technical difficulty in maintaining the action at law. It would have been otherwise if the obligation had been joint and not several; for then the suit must have been brought jointly against all the obligors."

An action at common law on a joint and several bond must be against one or all of the obligors, and not an intermediate number of them. It cannot be against all of them where the obligee is also one of the obligors, for then the same person would be both plaintiff and defendant in the same suit at law. And if it were brought against the other obligors, the fact that the obligee was one of the obligors might, it seems, be plead in bar of the action; and indeed could not be plead in abatement, as in other cases of non-joinder of defendants; " because a plea in abatement ought to give a better writ, not to shew that the plaintiff can have no action at all," as he cannot in such case have against all of the obligors. Mainwaring v. Newman, 2 Bos & Pul. 120. The rule that an action cannot be maintained against an intermediate number of joint and several obligors, does not apply to a motion on a forthcoming bond; the statute authorizing execution...