Branch Ex Rel. Bank of Cape Fear v. Elliot , 14 N.C. 86 ( 1831 )

The only plea relied on by the defendants was that of a former recovery, and a verdict was taken for the plaintiff, subject to the opinion of the Court on the following case:

The bond was for £ 5,000, payable to "his Excellency, John Branch, Esquire, Governor, etc.," but not being taken according to the directions of the Act of 1777 (Rev., ch. 118), the writ was "to answer John Branch, Esquire," and not in the name of his successor. A suit had been brought on the same bond in Cumberland County Court, a copy of the record of which was attached to the case. The writ was "to answer John Branch, Esquire, Governor, etc., to the use of Edward McKay," and a verdict was returned for the plaintiff, but no formal judgment had been rendered. A suit had also been instituted on the same bond in Cumberland Superior Court, in the name of "John Branch, Governor, etc., to the use of Cameron and Baker," in which the case stated that judgment had been rendered for the plaintiff — the jury did not expressly find the amount of the penalty, but only assessed the damages sustained by the relators.

Upon these facts, his Honor set the verdict aside, and directed (87) a nonsuit to be entered, and the relators appealed. Repeated decisions of this Court have established that such bonds as that sued on here, not being taken in conformity to the Act of 1777 (Rev., ch. 118), cannot be proceeded on in the manner prescribed by that statute. The State Bank v. Twitty, 2 Hawks, 1, is a leading case; and that has been followed by others. Those decisions relate emphatically to the remedies on such bonds. It shall not be summary; it shall not be by the successor, nor by an assignee. By consequence, successive actions (given by the Act of 1777, on bonds taken according to it) cannot be sustained. Were it resintegra, the Court would at this day be much disposed, and probably would hold, that since the bond imposes no duty on the officer which the law itself did not, and was voluntarily entered into, it might be enforced by the remedies of the statute, though made for a larger sum than required by law. But the question is considered as closed, and this the more especially because it does not affect rights, but only the method of proceeding.

The remedy being at common law, or rather under the general law, and not under the particular statute of 1777, it is perfectly certain that the present action is barred, if judgment has been rendered on the bond in a former suit. For Mr. Branch alone can be taken (88) notice of, as the plaintiff, without reference to those for whose use he sues.

It seems this bond has, in point of fact, been sued on twice before: once in the county court, and a transcript of the record of that suit forms a part of this case, and again in the Superior Court.

Various objections are taken to the record from the county court, to show that there was no judgment in that proceeding. It is unnecessary to consider them, because the case states that "a judgment was rendered in the Superior Court on the same bond, at the suit of John Branch, to the use, etc., against these defendants."

The effect of that judgment there was an attempt to repel, upon the ground that the penalty of the bond was not expressly found by the jury, and so there was no judgment therefor. The objection is untenable. If nonest factum be not pleaded, the execution of the bond, as described in thedeclaration, is admitted; and so the amount appears on the record.

If it be pleaded, the verdict, that the bond declared on is the deed of the defendant, finds the amount. The penalty need not be otherwise found, for it enters into, and can enter into no other issue.

The bar to the present action, then, is complete, and the judgment below must be affirmed.

Inconveniences may arise out of the doctrine heretofore established, which may require the interposition of the Legislature, such as the refusal of the obligee to put, or suffer the bond to be put in suit, or a collusive verdict for the obligors. Those inconveniences this Court cannot correct. It is for the wisdom and power of the General Assembly to do it, by extending the statute remedies to such bonds, if thought right. Happily, for the purposes of justice, the bar to this action is not destructive of the relator's rights, and does not extend beyond the costs of this suit. For while the cases before alluded to determined that the remedies cannot be under the statute, they have also determined the bond itself to be good at common law. It is available, not only for damages sustained by the obligee himself, by a breach of duty within (89) the condition, but also for similar damages sustained by any other person; in fine, the obligee is a trustee for persons injured. There can, then, be no difficulty touching the remedy in this case. If the bond be without the statute, 8 and 9 Wm. III, ch. 11, execution may be taken out at the risk of the party on the old judgment, and the defendants forced to seek relief, as before that statute, in equity. If the statute extends to such bonds, then a scire facias, suggesting other breaches, may be sued out and prosecuted, as in other cases. For this general doctrine, I refer to the cases of the Governor v. Matlock, 2 Hawks, 366; Governor v.Witherspoon, 6 Hawks, 42, and particularly to the Governor v. Evans,13 N.C. 383.

PER CURIAM. Judgment affirmed.

Cited: Williams v. Ehringhaus, post, 298; Machine Co. v. Seago,128 N.C. 161.