Grahame v. Harris, Parran & Co. ex rel. Harris , 5 G. & J. 489 ( 1833 )

Buchanan, Ch. J.,

delivered the opinion of the court.

There are five counts in the declaration filed in this caso ; some against the appellants as executors of Richard Grahame, and some against them in their individual capacities; and the account upon which the action is founded, is for goods sold and delivered to the appellants after the death of the testator, as executors. It appears too, in evidence, that Parran, one of the appellants, was a partner in the house of Harris, Parran, and Smith, of whom the goods were purchased, and by whom the suit was brought; he, Parran, having assigned his interest in the claim to Harris. So that Parran was both a legal plaintiff, and a defendant in the action.

The appellants at the trial, moved the court to instruct the jury, that the appellees “could not recover under the pleadings in the cause, because it was a debt contracted for goods sold and delivered since the death of the testator.” Which instruction the court refused to give, but directed the jury to find for the appellees, if from the proof, they should find that the appellants purchased from them the goods charged in the account. And the appellants excepted.

That the uniting in the declaration, counts against the appellants in their character of executors, with counts against them in their individual capacities, was a misjoinder, of which advantage might been taken, in a proper form, cannot be questioned. And it is upon the ground of that misjoinder, and also, because one of the appellants was both a plaintiff and defendant in the action, that exception is here taken to the refusal of the court to give the instruction prayed, and to the direction that was given.

And if we were not restrained by the act of 1825, ch. 117, sec. 1, we should feel ourselves obliged to say, that in that state of the pleadings the appellees were not entitled to recover. But that act provides, “ that the court of appeals shall not reverse any judgment, on any point or question, which shall not appear to have been presented to the county court, and upon which that court may have rendered judgment.” The provision, it will be seen, is not that the court of appeals shall not reverse any judgment, on any point or question which shall appear, not to have been presented to the county court, but “which shall not appear to have been presented to the county court.” So that to authorise this court to reverse any judgment of a county court on any point or question, it must appear to this court, that such point or question was presented to the county court, and that the judgment was rendered upon that point or question.

What then is this case? The prayer on the part of the appellants was, that the court would instruct the jury, that the appellees were not entitled to recover under the pleadings ; not because there was a misjoinder of counts in the declaration, nor because one of the appellees was both a plaintiff and defendant in the action, but because the debt was contracted■ for goods sold and delivered after the death of the testator. Which instruction the court refused to give, but directed the jury, that they ought to find for the appellees, if the goods were purchased by the appellants.

Now it may be, that the questions arising upon the misjoinder, and upon the circumstance that one of the appellees was both a plaintiff and defendant, (one or both,) were presented to the court. But whatever rnaj' have been the fact, it does not appear to us from any thing in the record, that either of them was presented to the court; and certainly they were not necessarily so presented. On the contrary, there appears to be a strong probability that they were not; and that the question on the misjoinder of counts in the declaration, had not presented itself to the counsel; or why was not the objection, to the right of the appellees to recover, placed directly upon that ground, instead of being placed in the prayer, upon the ground that the debt was contracted for goods sold and delivered after the death of the testator ? From which it would seem, that the attention of the counsel had been drawn to the two first counts in the declaration, which are against the appellants, as executors of Richard Grábame; the first, as an indebtedness by the testator, for sundry articles properly chargeable in account; and the second, for goods sold and delivered to him in his life-time. On neither of which could there have been a recovery for goods sold and delivered to the appellants after the death of the testator. And hence would appear to have been the prayer for an instruction to the jury, that the appellees were not entitled to recover, because the debt was contracted for goods sold and delivered after the death of the testator; without adverting to the fact, or to the effect in law of the misjoinder. And the court seeing that the three other counts are against the appellants, in their individual capacities, may have decided on the prayer in reference to those counts, (upon which, if standing alone, the appellees would have been entitled to recover, for goods sold and delivered to the appellants,) without attending to the misjoinder, or to the position of one of the appellees, as both a plaintiff and defendant, or to the legal effect of either, if no question concerning them was presented to the court, which does not appear to have been done. But rather, that the attention of the court was directed to another question, by the ground upon which the objection to the right of the appellees to recover, was placed by the prayer.

We should not therefore be at liberty, under the act of 1825, to reverse the judgment, on account either of the refusal by the court to give the instruction prayed, or of the direction that was given to the jury. The ease of Edelin vs. The State use of Jackson, 4 Gill and Johns. 277, has been cited, to show that this case is not within the prohibition of the act of 1825, ch. 117; but there is an obvious distinction between that case and this. The action there was on an administration bond, to recover a distributive share of the estate of an intestate; and in the breach assigned in the replication, an inventory was alleged to have been returned by the administrator, and that after sundry disbursements made, there remained a certain balance of that inventory, in his hands for distribution; to a certain proportion of which, the plaintiff, as one of the distributees, was entitled, on which the issue was taken. And on that issue, the plaintiff was only entitled to recover a just proportion of what remained of that inventory, and nothing else; nothing else being claimed in the breach assigned. But there being negroes mentioned, and returned in the inventory, the plaintiff at the trial claimed to recover against the defendant, a proportion of the hire of the negroes also, over and above the amount of the inventory alleged in the replication, as returned and charged by the administrators in their accounts; the hire of the negroes not being so returned and charged; which claim, to charge the defendant beyond the inventory alleged in the replication, being objected to, the question, whether it was within the breach assigned, and could be recovered under the issue joined, appears necessarily to have been presented to the court. The claim was to charge the defendant with what was not contained in the inventory, nor assigned as a cause of action, and the objection was, that he could not be so charged. The very claim and objection, therefore, of themselves raised and presented to the court, the question whether it could be done. That was the point to be decided. But not so here. The prayer in this case, does not of itself necessarily present any question in relation to the effect, either of the misjoinder of counts in the declaration, or of the fact of one of the appellees being both a plaintiff and defendant, on the right of the appellees to recover. But rather, as it would seem a question, as to the sufficiency of the proof to sustain the claim of the appellees, without reference to those technical objections, to which the attention of the court does not appear to have been necessarily drawn by the prayer, and apart from which the direction given to the jury was right. But the appellants proceeded to move court to non pros the action, on the ground that Parran, one of the appellees, was both a legal plaintiff, and a defendant on the record; which, according to the practice of this State, (a jury having been sworn) the court properly refused to do without the consent of the appellees; but proceeded to decide that the action might be sustained. In which we think the court clearly erred. A man cannot bring an action at law against himself. The same natural person cannot be both plaintiff and defendant on the record.

JUDGMENT REVERSED.