Wilmer v. Harris , 5 H. & J. 1 ( 1820 )

The opinion of the court was delivered by

Dorsey, J.

Thi$ was an action of debt brought on a bend executed by the defendant, and Thomas Harris and-William Wilmer. The bond, after reciting that the plaintiff had loaned to a certain Henry Wilmer' certain promis-, sory notes, to be discounted at bank, for the use of the said Henry Wilmer, proceeds as follows: “Now the condition of the above obligation is such, that if the obligors shall at all times save harmless, and keep indemnified, the saidAhward Harris, his heirs, executors and administrators, from all and every claim which may be brought, exhibited, or prosecuted against him or them, for or on account of his having loaned his notes to the said Wilmer, and from all costs, damages and expenses, he or they may sustain, or be put to by reason thereof,” &c. At October term 1813, a judgment by default was entered against the defendant for want of a plea, and the court at the same term made an order, that a proceeding, in nature of a writ of inquiry, be executed at the succeeding term, to assess the damages. The plaintiff issued a ca. sa. on this interlocutory judgment, returnable to the next succeeding May term, and the defendant was dischai’ged by the court, on the ground that the execution had erroneously issued. The plaintiff thereupon prayed an appeal froin_such decision to the court of appeals, and the court ordered a transcript of the ings to be transmitted to the court of appeals, which was accordingly done. The record then proceeds to state the appearances of the plaintiff and defendant, and the continuance of the case by their consent at all the succeeding terms of the county court, until the third Monday of May 1818, on which day the appearances of the plaintiff and the defendant are both recorded, and the cause then continued by the court on the affidavit of the plaintiff, stating the absence of a material witness, until the ensuing October term. At which term the appearances of the plaintiff and defendant are recorded, and the cause further continued by the court, on a similar affidavit, to the succeeding May term, when the plaintiff and defendant appear, and a jury are empannelled to assess the damages, who return, their inquisition, by which they find that the plaintiff has sustained damages to the amount of 89530 05, and a judgment was thereupon rendered for that sum, and costs.

Such is the state of the record, unconnected with the bills of exceptions, tendered by the defendant upon the trial before the jury of inquiry.

It cannot be controverted, that if it appears from the record that the jury could not legally assess the damages, the judgment must be reversed, because a judgment by default, for want of a plea on a bond with a collateral condition, is only an interlocutory judgment, and a final judgment can only be rendered when the damages sustained by the plaintiff by the nonperformance of the agreement, contained in the bond, are legally ascertained.

Before the statute of 8 § 9 William III, chap. 11, s. 8, the plaintiff in an action on a bond with a collateral condition would, upon an issue being found in his favour, or on judgment by mi dicit or on demurrer, have been entitled to a judgment for the penalty and costs, and might have taken out an execution for the whole, without any regard to the damage which he had actually sustained by breach of the covenants; but the statute declares, that the plaintiff may-assign as many breaches as he shall think fit, and the jury shall assess the damages for such of the breaches as the plaintiff, upon the trial of the issues, shall, prove to have been broken, and if judgment shall be given for the plaintiff upon demurrer, confession, or mi dicit., the plaintiff may suggest o.n the roll as many breaches as he shall tliink fit, upon which a writ' shall issue to the sheriff of the county where the action is brought, to summon a jury to inquire of tlle~trutl1 of tilose breaches, and to assess the damages. Where the declaration sets forth the condition of the bond./ and proceeds to assign the breaches, and there is a judgment for the plaintiff on demurrer, nil dicit or confession, new breaches need not be suggested on the roll, because' the declaration having assigned the breaches, it would be idle to suggest the same breaches again: so, if there is a judgment for the plaintiff on a demurrer to his replication, which sets forth breaches, a new suggestion of breaches on the roll would be unnecessary; and although the statute uses the wox-ds “may assign” and “may suggest,” the courts have decided those words are compulsory on the-plaintiff.

• The following authorities are refei’red to in support of the above propositions:—2 Richardson's Practice in the Common Pleas, 285, (2d edition)—1 Saunders' Rep. 58, (Note 1.) 5 T. Rep. 636, 538. 2 Wilson, 377. And the statute extends, as well to bonds with conditions thereunder 'written fox* the performance of any thing contained therein, as to covenants and agreements1 contained in another* indenture, deed or writing. Collins vs. Collins, 2 Burr. 824, 826; and Harris vs. Wilmer, in this court, at June term 1817, (arde 2, Note.)

It has been urged by the appellee’s counsel, that the act of 1794, ch. 46, has dispexxsed with the necessity of makixxg suggestions on the roll, in the manner presci-ibed by the statute 8 fy 9 William. Before the passage of the act of assembly above referred to, writs of inquiry were generally executed before the sheriff) axxd the design of the legislature, in passing the act, was to transfer* to the county courts this power, and that the pax-ties should be entitled to call on the court for their opinion, on questions of law arising in the case, in the same manner as if a jury had been empannelled to try an issue in fact. This law being remedial and made for the advancement of justice by substituting a superior jurisdiction in the place of an inferior one, cannot, under any sound rule of interpretation, be construed to repeal any of the provisions of the British statute, relating to the suggestion of breaches. Let it be remembered, that the statute px-ovides, that after breaches shall have been assigned or suggested, the judgment entered shall remain as a security For any further breaches of covenant contained in the said deed, instrument or writing, and that the plaintiff may have a scire facias on the said judgment against the defendant, his heirs, executors and administrators, suggesting breaches of the covenants, and may summon them to shew cause why execution should not be awarded on the .said judgment, upon which there shall be the like proceedings as were originally had in the action on the bond.

Unless a suggestion is made on the roll, how can it be known that the breaches assigned in the scire facias are the same or different from those on which the judgment was rendered? The object of the statute, in requiring the suggestions, was to give certainty to the proceedings under it, but the effect ascribed to the act of 1794, ch. 46, by the counsel for the appellee, would destroy this legal certainty, when no possible reason can be suggested for such an intention on the part of the legislature.

The final judgment of the court below being erroneous on this ground, it becomes unnecessary to express an opinion on the other points raised by the appellant’s counsel.

In relation to the bills of exceptions taken by the defendant’s counsel, the court are of opinion, that the county court erred in each opinion expressed on those exceptions.

The court hold, that the admission of an executor or administrator of a co-obligor, cannot be used in evidence against the surviving obligor in a suit brought against him by the obligee, and of course, that a judgment confessed by such executor or administrator, (being nothing more than an admission,) is equally inadmissible. If the admissions of an obligor could be used as evidence against a co-obligor, (and whether they could, or not, the court do not mean to decide,) yet it does not follow that the confessions of an executor or administrator are equally admissible. The privity between the executor or administrator, and co-obligor, is not the same as that between the co-obligors, and it cannot be supposed that the executor or administrator has the same information on the subject as his testator or intestate had. No case has been cited in support of the admissibility of such testimony, and various considerations of policy and justice are opposed to it. The court below therefore erred in permitting the judgment confessed by William Harris, the account of the plaintiff, and the letter of William Harris, to go before the jury.

^ necessar'lty follows from this view of the case, that the opinion of the county court, as expressed in the second bill of exceptions, is erroneous, because in their direction to the jury they declare, that the admissions flowing from the letter of William Harris to his counsel, and .the judgment confessed by him to Edward Harris, ought to have no weight with them, if they believe from the testimony laid before them that the letter was written, and the judgment confessed, with a view to furnish Edward Harris with, evidence to be used to the prejudice of the defendant in the trial of this cause; thus giving to the plaintiff the full benefit of those documents as testimony, exceptin theparticular case stated by the court, when in point of law such judgment and letter were not legal and admissible in any Way to charge the defendant.

And this vi.ew is equally fatal to the opinion delivered in the third bill of exceptions; because the court therein recognize the settlement between the plaintiff and William Harris, and the judgment against William Harris, as evidence in the cause, by declaring its legal effect in a specified case, when in point of law they ought to have rejected the prayer, as not being founded on testimony which was legal and admissible.

The court therefore reverse the judgment of the county court, this court dissenting from the opinions expressed In all the bills of exceptions.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.