Atwell’s Administrators v. Towles

Holding

In an action of debt on behalf of Towles, executor of Lewis, against Thomas Atwell’s, administrators, the instrument declared upon was a bond in the usual form, from a certain Johnson Smith to Michael Montgomery, in the penal sum of 1791. 14s. 4d, dated the 9th day of June, 1783, and conditioned to be discharged by the payment of 891. 17s. 2d. the first day of September then next ensuing; with a writing underneath in the following words:

“I Thomas Atwell, of Prince William, do join in the above obligation with Johnson Smith, and am his security for the above sum of eighty-nine pounds seven-176 teen shillings *and two pence: as witness my hand and seal this 21st day of June, 1783.

“Thomas Atwell. (Seal.) “Teste Nathan Hayes.

“Richard Scott.”

On this instrument, a suit was brought in the General Court against Johnson Smith; in the progress of which Thomas Atwell became his special bail, and surrendered him to the Sheriff of Prince William. At a General Court held April 27th, 1786, he confessed judgment in custody, and the Sheriff was ordered to retain him in execution. Fourteen years after this, viz. in 1800, the suit now in question was brought in the Haymarket District Court, by Oliver Towles, executor of Thomas Towles, who was acting executor of Nicholas Lewis, who was assignee of Butler Bradburn, assignee of Michael Montgomery, against ■Charles Atwell, administrator, and Anne Atwell, administratrix of Thomas Atwell, deceased.

The declaration made proferí of a certified copy of the bond and endorsements, obtained from the files of the General Court, (the original not being in the plaintiff’s power or possession,) and set forth particularly the penal part; the condition; the writing signed and sealed by Thomas Atwell; and the several assignments endorsed upon it; stating the same to be assignments of the two writings obligatory by endorsement on the paper containing both; by reason of which premises, and by force of the act of Assembly in that case provided, all the rights that vested in the said Montgomery accrued to the said Lewis: and the plaintiff avers that the said Johnson Smith, or any representative of his, or either, on his behalf, hath not paid the debt aforesaid, or either of the sums of money before mentioned, &c. but the same j’et remains due and unpaid: nevertheless the said Atwell, against whom right of action accrued under the premises, did not pay the said debt, or either of the said sums of money, &c. but hitherto to pay the same debt hath entirely refused,” &c.

*The defendant, Charles Atwell, pleaded “payment by Smith and no such assignments;” to which the plaintiff replied generally. At the trial, the plaintiff offered in evidénce a copy of the record of the suit first above mentioned; and proved the execution of the writings obligatory both by Smith and Atwell, and the execution of the assignments, which are “of the within obligation ;’ ’ and this was all the evidence exhibited to the Jury; whereupon, the counsel for the defendant prayed the opinion of the Court “whether the writing obligatory, signed by the said Thomas At-well, deceased, and set forth in said record, can properly go in evidence to the Jury; or, in other words, whether the said obligation tallies and agrees with the count in the declaration ; and also, whether the writings in the record, importing to be assignments, were legal assignments, and sufficient to support the statement thereof set forth in the declaration: and the Court gave it as their opinion that the said obligation tallies and agrees with the declaration ; and that the said assignments were legal and sufficient to support the statements of the assignments made in the declaration: to which opinions the counsel for the defendant tendered a bill of exceptions, which was accordingly signed and sealed. The Jury found the issues for the plaintiffs, and judgment was entered for 1791. 14s. 4d. “the debt in the declaration mentioned,” to be discharged by the payment of 891. 17s. 2d. with interest thereon at five per cent, from the 1st of September, 1783; and the costs; “with interest thereon at six per cent, from the date of this judgment (which was the 1st of November, 1804) until paid;” whereupon the defendant appealed.

If Atwell was bound at all, it was only for 891. 17s. 2d. and not for the penalty: and, if for the penalty, the judgment is erroneous, because it is to be discharged by a greater sum than the penalty itself. This was either a joint obligation of Atwell and Smith, or a collateral undertaking. If it was 178 a joint obligation, the *suit being against Atwell’s administrator, and no averment that he survived Smith, the Court will not presume the other obligor dead; and if he be living, the action survived against him. If it was a collateral undertaking, the declaration should have demanded the 891. 17s. 2d. only, and not the penalty.

The record from the General Court should not have been received as evidence. It is true that, according to the modern decisions, where a bond is lost or destroyed, the plaintiff may declare on a copy: but that was not the case here. So, under the late law concerning District Courts, (a) the copy in this case might have been received: but that act can only apply to cases arising since it was passed. Besides, Atwell’s obligation was no part of the record in the General Court; the suit there having been brought on the bond of Smith alone.

There is really but one point in this cause; and that is whether this appears judicially to the Court to have been a joint bond, on which the right of action survived against Atwell. As the defendant did not plead that the other obligor was alive, the Court will not intend it. The declaration makes out a strong implication that the defendant’s intestate survived Smith. It is certainly defective, but only states the case defectively, and does not state a defective case, (b) But, if the declaration was bad, the defendant should have demurred, or moved in arrest of judgment. He could not, upon the trial, object to the evidence, merely on the ground of its insufficiency to maintain the action; since it agreed precisely with the declaration.(c)

The obligors bind themselves as completely as language can express. The security agrees to join in the above obligation. This makes the bond joint to all intents and purposes. The declaration described it exactly as it was.

As to the objection arising from the circumstance that the principal and interest amount to a greater sum than 179 *the penalty; the judgment is always for the penalty, to be discharged by the principal and interest. If that exceeds the penalty, the defendant has his choice, and may satisfy it by paying the penalty.

JUDGE TUCKER suggested a difficulty. The body of Smith being in execution, could another judgment’ be obtained against Atwell?

Botts. The doctrine is, that taking the body is no satisfaction ; but you may still go on against the other obligor.

On this point, Williams admitted the law to be as stated by Botts.