Cooke v. Graham Administrator

• Decision Date: 01 February 1805
• Citation: 2 L.Ed. 420,7 U.S. 229,3 Cranch 229
• Parties: COOKE v. GRAHAM'S ADMINISTRATOR. *
• Court: U.S. Supreme Court

7 U.S. 229

3 Cranch 229

2 L.Ed. 420

COOKE v. GRAHAM'S ADMINISTRATOR.^*

February Term, 1805

ERROR to the circuit court of the district of Columbia, sitting at Alexandria.

The declaration was in debt on a bond dated the 3d of October, 1799, in the penalty of 5,000 dollars. On oyer, the bond appeared to be dated the 3d of January, 1799, and the condition was as follows: 'Whereas, the said Stephen Cooke did lend to Josiah Watson, of the town of Alexandria, twenty-five hundred dollars of the said William Graham's money; and the said Josiah Watson having failed, but before he failed paid five hundred dollars; and whereas, the said Stephen Cooke hath instituted a suit against the said Josiah Watson, for the recovery of the said money—Now the condition of the above obligation is such, that if the said Stephen Cooke shall well and truly pay the whole sum so lent, if it can be recovered from the said Josiah Watson, or his indorsor; or in case it cannot be wholly recovered, will lose the one half of that sum which cannot be recovered, then the above obligation shall be void, otherwise to remain in full force and virtue.'

After oyer granted, the defendant had leave to imparle, but not pleading at the rule day, judgment was rendered at the rules for want of a plea.

At the next term, the defendant set aside the office-judgment, by demurring generally to the declaration, which demurrer was joined by the plaintiff.

Afterwards, on motion, the defendant had leave to withdraw his demurrer, and pleaded general performance of the condition of the bond. To which the plaintiff replied, and assigned a breach in this, that the defendant has not paid the sum of money mentioned in the condition,

or any part thereof. The defendant rejoined, that the sum of money in the condition mentioned, lent by him to Watson, could not be recovered from the latter, or his indorsor.

To this rejoinder the plaintiff demurred specially; 1st. Because the defendant doth not state, in his rejoinder, that he used all legal means for the recovery of the said 2,500 dollars of Watson, and his indorsor.

2d. Because the defendant does not state that he has not recovered any part of the said 2,500 dollars of the said Watson, or his indorsor, or how much of the 2,500 dollars remains unrecovered of the said Watson, or his indorsor.

3d. Because the defendant is bound to pay one half of the sum that is not recovered of the said Watson, or his indorsor; and if the defendant has not received any part of the 2,500 dollars of the said Watson, or his indorsor, then he is bound, by the condition of the said bond, to pay one half of the sum of 2,500 dollars to the plaintiff.

4th. Because the defendant does not give any answer as to the sum of 500 dollars, stated in the condition of the said bond to have been received by him of the said Watson, before the execution of the said bond.

5th. Because the rejoinder is a departure from the plea of conditions performed.

Upon this demurrer, the judgment of the court being in favour of the plaintiff, the defendant, upon motion, had leave to file an additional plea, whereupon he pleaded, that the whole sum lent to Watson could not be recovered of him or his indorsor, nor could any part thereof be recovered, except the sum of 500 dollars, mentioned in the condition of the bond; by means whereof the defendant became liable and bound to pay to the plaintiff only one half of the said sum which could not be so recovered, and that the defendant paid to the plaintiff's intestate the said one half of the said sum of money which he was liable and bound to pay as aforesaid. To which plea there was a general replication and issue, and verdict for the plaintiff for 2,032 dollars and 75 cents.

On the trial of this issue a bill of exceptions was taken by the defendant below to the opinion of the court, that the plaintiff was entitled, by the said bond, to recover of the defendant the sum of 500 dollars at all events; and that he was also thereby entitled to recover of the defendant the residue of the said 2,500 dollars, if...