Alexander Kerr against Jonathan Meredith, 4 Yeates 282

The reasons in arrest of judgment were argued this term; but the sixth exception was abandoned as indefensible. The arguments for the defendant were substantially as follow. Exception 1st. The jury are bound to find the whole issue; but they have consolidated four distinct debts submitted to them into one mass, making a sum total of $1844 and 25 cents. The verdict must not only,be substantially good in itself, but it must be good with reference to all the pleadings. Here the verdict does not pursue the replication and rejoinder.

There was no consolidated debt due to four different firms put in issue ; nor was it ever pretended that such joint debt existed. Under the statute of 8 and 9 Wil. 3, on nil debet, the jury must assess the damages upon each breach. 2 Wils. 377. The court have it not in their power to mould this verdict into form, in the present particular. Neither their own notes, nor those of the clerk, will serve as a guide on the occasion. The jury must find the substantial facts, on which the court *only can act.

The defendant did not interfere in the „ formation of the verdict; the notes returned by the jury ' when they came to the bar, must be taken with all their crossings and obliterations. From these memoranda, nothing can be collected. Exception 2d. At common law, in debt upon a bond with condition to perform covenants, the plaintiff could assign only one breach; but in covenant, he might assign as many breaches as he pleased. Bull. 163. Cro. Cas. 176.

This is altered by stat. 8 and 9 W. 3. c. 11. s. 8, and the plaintiff may assign as many breaches as h,e shall think fit; and the jury shall assess damages for such of the said breaches, as the plaintiff shall prove to have been broken. This statute is compulsory on the plaintiff. 5 Term Rep. 541, 636. 1 Saund. 58. Williams’s Note. In 2 Burr. 773, Mr.

Caldecott states, that the statute does not extend to actions of debt brought for the penalty of a bond; it only relates to actions for damages for non-performance of covenants ; and in such cases, enables the plaintiff to assign as many breaches as he shall think fit. Lord Mansfield agrees, that his principles are right. Ib. 774. Here the declaration does not pursue the statute ; nor is it found by the jury, that the plaintiff has sustained damage by non-payment of the company debts ; and therefore the verdict is not within the words or meaning of the statute.

The assessing of damages is a legal term, and conveys a determinate idea. Juries are peculiarly the judges in cases of damages ; they might consider that the contract was entered into by mistake or misapprehension ; they have found damages to the plaintiff for the arrest, but not as to the nonpayment of the company debts ; and this is conceived to be an incurable defect. Exception 3d. The statute of Wil. 3, was made for the benefit of the plaintiff on a breach of covenants, not of persons who are strangers to the record.

The verdict is good only so far as it finds the 10 cents damages to the plaintiff for the arrest, at the suit of Gregg, Lyle and Ewart. Nothing can prevent the creditors from recovering their debts a second time, if this verdict should receive the sanction of the court. Exception 4th. It cannot be believed, that the agreement of 12th March 1804, as entered on record, was intended to alter the rights of the parties, or precipitate the recovery by the creditors. Each claimant is to establish the quantum of debt or damages by legal process and adjudication.

The construction set up against us, is, that the creditors may establish their debts en masse; and varies the agreement, which necessarily refers to a separate process by each creditor, whose claim may be contested. Exception 5th. The object of the bond and articles was the relief of Kerr himself, not of the creditors of the firm. He £ , *might have delivered up to the obligors their bond 28 J without the concurrence of the partnership creditors ; he might have cancelled it himself. The obligation was intended to indemnify Kerr; but merely being liable to a suit, is no dam-nification.

The surety of an obligor is no creditor, until he has paid the debt. This is fully proved by Smith et al. v. Gale, 7 T. R. 364, and by Hammond et al. v. Toulmin et al. Ibid. 612. In this state, an assignee is subject to all the equity of his assignor. If the creditors had released their debts, the defendant would not have been liable. The plaintiff’s counsel arranged their arguments under three general heads. They considered, 1st whether if the pleadings were correct and the verdict good, the plaintiff was not intitled to recover ? 2dly.

Are the allegations of the plaintiff sufficiently penned in point of legal form ? 3dly. Is the verdict substantially good, so as to authorize a judgment to be entered thereon ? I. The articles of agreement contemplated three objects. 1st. That the debts of the partnership should be paid, at two stipulated periods. 2d. That Kerr should be fully indemnified therefrom. And 3d. That he should receive $9000, for his concern. The bond was given accordingly; the payment of the company debts was a substantive, independent covenant. Kerr has only received his $9000.

It is clear therefore, that the bond was designed to operate further than a complete indemnification. If on the 1st October 1798, the partnership debts were not paid, the plaintiff had a complete ground of action. A counter bond is forfeited by non-payment of the money at the day. 2 Bulst. 234. The 'principal case is much stronger. For if but a simple debt remained unpaid.after the day fixed, the plaintiff had immediately a good cause of suit. He was under no necessity of paying the money in the first instance. Every word in the instrument must receive its full operation.

At the same time it is admitted, that the assignees have no superior equity to the obligee, and that if the partnership creditors had released their debts, the substantial spirit of the contract would have been so far complied with. The agreement of 12th March 1804, took place after the argument had begun on the plea in abatement.

The first suit was brought for the use of Lang and Hawthorne, and a second suit for the use of Taylor and Lyle, under the agreement, both actions were consolidated for the use df all the creditors ; but each claimant was to establish his demand by legal process and adjudication. *Separate suits are not contemplated hereby, r# o but that the obligors should have an opportunity of con- i 2°9 testing the claim of each creditor, under the bond.

The agreement was made for the benefit of the creditors generally, with every degree of caution as to the interests of the obligors ; and nothing can defeat it, unless it impugns legal principles, which we contend to be in perfect unisonMherewith. II. In almost all the instances in the books, declarations on bonds with special conditions take no notice of the conditions. They are usually declared upon as on bonds, conditioned to pay a sum of money at a certain day.

If the defendant pleads generally a performance of the condition, the plaintiff in his replication must set out a breach or breaches, and tender issues thereon. In the assignment of the breaches, the stat. of 8 and 9 W. 3, c. 11, need not be mentioned; and the more specially the breaches are stated, the fuller opportunity is given to the defendant of repelling the demand against him. The assertion in 2 Burr. 772, of counsel, that in debt upon the penalty of a bond, the plaintiff ought to confine himself to one particular breach, is unfounded.

It contradicts all the cases on the subject, and opposes the plain words of the statute. Ld. MANSFIELD states the express contrary in the same book, p. 824, and in the following page, that the judgment is to be for the whole penalty, and is to remain as a further security, though execution is to be stayed on payment of the sum due. In 5 T. R. 538, 636, the declaration stated the breaches, but the jury found no damages. The judgment was entered for the penalty, and the error appeared on record. The defendant has rejoined to the plaintiff’s replication, and thereby admits the propriety of the pleadings.

He should not have taken the chance of a verdict, and afterwards insist on irregularities. He ought to have applied to the court by motion, or demurred to the replication. A verdict will cure the informality of an issue, but not where it is substantially defective. The multifarious matter disclosed in the replication, arose necessarily from the circumstances of the case. In Cowp. 578, Ld. Mansfield states it to be a rule in pleading, that you cannot go to issue on a general averment of performance.

The reason is, that the question may be brought to some degree of certainty, and notice given of what was to be agitated at the trial. A breach must be specifically assigned in debt on bond. Aliter in covenant. 1 Lord Raym. 478. 1 Salk. 139. If our mode of pleading has deviated from the simplicity of the common law, and is therefore vicious, its doubleness should have been excepted to by a special demurrer. 1 Rol. Rep. 112. *In this mode only are matters of form to be taken ad- p* vantage of. 2 Wils. 11, 12. What may be good cause *■ 29° of demurrer, will not prevail in arrest of judgment. 3 Bl. Com. 394.

A municipal law declares, that proceedings shall not be reversed for mere form. 8 St. Laws, 97, sec. 17. III. The verdict substantially finds damages. The grounds of the finding are stated ; that the penalty arises in part from the defendant’s not indemnifying the plaintiff from all costs, suits, losses, and damages, on account of the partnership debts, in this, that he has suffered loss by the arrest; and also in this, that the company debts have not been discharged. The findings will be connected together,’and moulded into form by the court if necessary.

This is not so strong as construing or to be and, and vice versa. If the jury had mentioned that they meant to assess the damages of the plaintiff, it would have been sufficient. What they have stated is at least tantamount thereto. The nonpayment of the company debts was an inevitable loss to the plaintiff, who was responsible therefor. Though the verdict do not punctually find the words of the issue, yet if the point in issue may be concluded out of it, the court shall work it into form, and make it serve. Hob. 54. 2 Stra. 1036-7.

But it has been strongly urged, that four separate debts have been put in issue, and only one aggregate sum has been found. This arose from the jury’s valuation of the lands on the Ridge road, which were conveyed by Hawthorne to John Allen, as agent for the four firms, no price being fixed. The jury valued the property at 2800 dollars, and proportioned it amongst the four sets of the creditors, but did not perfect the calculation. The notes of the court and memoranda of the jury will serve to ascertain the precise sums due to these four houses. 1 Salk. 53.

A payment of the sum found due will fully exempt the defendant from these four debts ; though it be less than the real sum due, it will be the loss of the creditors, but the gain of the defendant. The release of the trustees would be good, even after error brought. If the jury had found all the fourteen debts in one joint sum, it would have been good, and would have been deducted from the penalty.

It would be the duty of the trustees to separate and proportion the sums found ; but a payment, according to the result of the verdict, would certainly free the obligors from all responsibility in, future, as to the debts of those company creditors which were put in issue. At the utmost, if all the debts except these four, have been properly found by the jury upon the breaches assigned, it will be no ground for arresting the judgment in toto, if the trustees will execute a release for these four debts, under the *2 1 *bond to the defendant.

Everything in the verdict will ^ J be presumed to be right unless the contrary appears. 1 Wils. 205. The mode of entering up judgments under the stat. of 8 and 9 W. 3, c. 11, has been considered by Mr. Serjeant Williams, in his. note to Gainsford v. Griffith. 1 Saund. 58. And Lord C. J. ALVANLEY,’in delivering the opinion of the Court of Common Pleas, in a late case, has declared that he saw no objection thereto. 3 Bos. and Pul. 607, 612. The court advised on the case for three days, and Tilghman, C.

J. delivered their opinion as follows : This is an action of debt for the penalty of a bond given by Thomas Hawthorne, John Maxwell Nesbitt, and the defendant Jonathan Meredith, to Alexander Kerr, the plaintiff. The action was originally commenced against all the obligors, but Mr. Nesbitt being dead, and Mr. Hawthorne having become a certified bankrupt, Mr. Meredith remains at present the sole defendant. In order to understand the case, it will be necessary to state the circumstances under which the bond was given, and also the pleadings in the action. He then stated 1st.

The articles of agreement between Kerr and Hawthorne, dated 1st April 1797. 2dly. The bond and condition of like date. 3dly. The assignment of the bond to Anne Lang and William Hawthorne, so far as was sufficient to discharge the debt from Kerr and Hawthorne to Lang and Hawthorne, (on which judgment had been obtained) dated 7th March 1800. 4thly. A second assignment thereof to Taylor and Lyle, in trust for the creditors of Kerr and Hawthorne generally, of like date. 5thly. The plea of covenants performed. 6thly. The replication under the statute of 8 and 9 Wil. 3, c. 11, assigning three breaches. 7thly.

The rejoinder, denying these three breaches, and tendering as to each a several issue, which was joined by the plaintiff. And 8thly. The verdict. The cause now comes before the court on a motion in arrest of judgment; and in support of this motion, six exceptions have been taken to the proceedings.

I shall not examine these exceptions, in the manner they have been brought forward, either with respect to their order, or their number, because the 6th was very properly given up by the defendant’s counsel in the course of their argument ; and of those that remain, several maybe considered under one point of view. *They are all reducible to three heads. 1st. The plead- r* ings. 2d. The verdict. 3d. The manner of entering the L 292 judgment. I. As to the pleadings, the plaintiff in his replication, has assigned three breaches.

No objection has been made to the first, or to the third assignment: but it was urged, that the second was contrary to the spirit and principles of the common law; because it reduced the defendant to the hardship of taking issue upon a great number of separate debts, said to be due to divers persons from the house of Kerr and Hawthorne. • But how was this to be avoided ? It necessarily arose from the subject matter. The defendant had undertaken, that all the debts of Kerr and Hawthorne should be discharged by a certain day. The plaintiff claims damages for a breach of this undertaking.

In order to entitle himself to damages, he must prove to the jury that the' defendant had not performed his engagement. Suppose he had replied, that the defendant had not paid all the debts 0 Kerr and Hawthorne, and that upon this issue they had gone before the jury. How could the jury have formed any estimate of the damages, unless they received proof of the particular debts, that remained unpaid ? And if this proof was necessary, was it not for the advantage of the defendant to receive notice in the replication of those particular debts., which the plaintiff averred to be outstanding ?

Besides, under the statute of William, the plaintiff may assign as many breaches as he pleases. Now suppose he had assigned the non-payment of each particular debt as a separate breach ; would not the defendant have been obliged to go into the trial of all of them, at one time ? And might not he have justly complained, that the plaintiff by this mode of pleading, had wantonly swelled the record, and of course the expences of the suit to an enormous magnitude ? But if even this mode of pleading was vicious, which I think it was not, it would have been cured by the verdict.

If it was irregular, the defendant should not have joined issue, but demurred. I think therefore that this exception to the replication is unfounded. II. Let us next consider the verdict. It is alledged to be defective in two respects. 1st. That although it finds a number of the debts of Kerr and Hawthorne to be unpaid, yet it assesses no damages to the plaintiff on that account. 2dly. That it finds a debt of $1844 and 25 cents to be due to four persons jointly; whereas no such debt was put in issue, but a several debt to each of those persons. 1.

It is undoubtedly true, that the jury are bound to assess damages, on each of the breaches assigned by the plaintiff; and * -. *if they have not done so, the verdict is defective. It is 931 the duty of the court to support the verdict of a jury, if it may legally be done. The court have no power to supply substantial omissions ; but if the jury have expressed their meaning in an informal manner, the court not only may, bufare bound to mould it into form.

In the present instance, they have expressed themselves very awkwardly; but I think, it sufficiently appears from their words, that their intention was to find damages, to 'the amount of the specified debts. They have in the first place, found for the plaintiff the penalty of the bond, $250,000, with 6 cents damages and 6 cents costs.

They then proceed to say, that the said sum in part arises, because the defendant has not indemnified the plaintiff from all suits, &c. on account of debts of Kerr and Hawthorne, in this, that the plaintiff hath suffered loss, &c. by a certain suit and arrest, &c. to the .amount of io cents, which they assess for his damages, by reason of such loss, &c. ; and also in this, that there were before ist April 1797, and still are divers debts due from Kerr and Hawthorne, to sundry persons, &c. (particularizing the names of the creditors and the sums due to each.) Having thus said, that the plaintiff has suffered damages by the non-payment of those debts, the amount of every one of which is ascertained, they proceed to say, that the rest of the said sum of $250,000, remains for the use of Anne Lang and William Hawthorne, &c.

What is meant by the rest of the said sum ? Is it meant, the remainder, after deducting 10 cents, found for damages, on account of the first breach ? Certainly not; because after finding those 10 cents, they have mentioned all those debts. Can there be a doubt, but the word rest means the remainder, after deducting both the 10 cents, and the amount of the debts ? If their meaning was, to deduct the amount of the debts, it is tantamount to finding damages ; because that amount could not be deducted upon any other principle.

I am therefore of opinion, that the jury have informally found the amount of those debts, as damages. 2. I will now advert to the other objection, that the verdict has found what was not put in issue. This objection appears to me, to be well founded. The jury have found a joint debt due to four persons ; whereas the pleadings put several debts to each of those persons, in ,issue. The plaintiff’s counsel have called on the court to rectify this error by their notes ; but they have no notes by which they can rectify it.

The written verdict delivered by the jury, affords no grounds, by which the several debts of those four persons can be ascertained. But is there no remedy for this defective finding ? *The plaintiff’s counsel suggested, that if the de- ¡-* fendant would pay the amount of what was found due to 294 those four persons, they would procure their release of all debts, joint or several. The defendant may do this, if he pleases, but he cannot be compelled to it. It was also suggested by the plaintiff’s counsel, that they might expunge this part of the finding from the verdict; but even that is not sufficient.

For after such expunging, the verdict is defective in this, that the jury have answered nothing as to those four several debts put in issue. I see no remedy, but by releasing not only the sum of $1844 25 cts. found by the jury as a joint debt, but also all that part of the breach assigned, which relates to the four several debts. If that is done, I think the verdict would be good for the residue. For the defendant could not be injured by the verdict’s answering nothing as to a breach relinquished by the plaintiff. But if that is not done, there must be a venire facias de novo. III.

If the ve'rdict is thus cured, the next question is, how is judgment to be entered ? Without doubt, for the penalty of the bond. And unless there is some special cause to the contrary, the plaintiff may take out execution immediately for the whole amount of the damages, assessed by the jury. The defendant alledges, that he has shewn cause, why this should not be done; and he relies on a written agreement, signed by the counsel on both sides. Messrs. Ingersoll, Rawle and Dallas, fro quer. Messrs. E. Tilghman, Lewis and M. Levy, fro def.

The agreement in substance is, that the present action is to stand for the use of all those persons, who are vested with an interest in the bond under the assignments of the plaintiff ; but under this restriction, that each claimant shall establish the quantum of debt or damages, by legal process and adjudication. The expressions are very singular; so much so, that one would almost be induced to think, that the counsel on each side had not explicitly communicated to each other, what was their object. However, we must take the writing as we find it, and en-deavour to give it a reasonable construction.

I must suppose, that the intention on the part of the defendant was, to secure to himself an opportunity of contesting the amount of each debt. It was equally convenient and far less expensive for him to have this done in the present action, than by each one entitled bringing a separate suit. The creditors were bound by this agreement ; because they were represented by the attorney who acted for the trustees. The defendant has contested these debts where he thought proper, in this trial; and in several instances, the jury have found in his favour.

I am therefore of opinion, that there has been an adjudication, within the meaning of the agreement. If there had been no agreement, execution might have gone for the amount of the # i *whole damages at once. As it is, I think that creditors, or rather the trustees who represent them, may take out execution in such manner as to procure payment of the several debts found to be due by the verdict. Bracicenridge, J. I think the plaintiff is entitled to judgment for the penalty; but that the four debts, which have been found jointly, should be expunged from the verdict, and submitted to the decision of a future jury.

They will stand on the same ground, as the company debts, which are hereafter to be established by legal process and adjudication. Complete justice will be effectuated hereby to all parties. Yeates, J. The law is clearly settled, that the jury must answer to the whole issue, which they have been charged with; otherwise the verdict is bad. Co. Lit. 227, a. 2 Stra. 1089. Cro. Jac. 31, 113. 3 Lev. 55. By expunging these four debts, the verdict is madfe defective. If the assignees will release the defendant from them, it seems to me, the verdict may be sanctioned by the court; but not otherwise.

I fully concur in the opinion, which has been delivered by the chief justice. Smith, J. I also concur in opinion with him.