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January 1, 1846


THESE were kindred cases, argued and decided together. Bradford and Judge were obligors upon the same bonds, although sued separately, and the same questions were common to both cases. They came up, by writ of error, from the Court of Appeals for the Territory of Florida. The case was this. The defendant in error brought an action of debt in the Superior Court in the Middle District of Florida against the plaintiff in error, and declared upon four bonds, amounting in the aggregate to the sum of $4,854.28, made by the defendant below, William P. Craig, and Ed. Bradford, by which they bound themselves jointly and severally to pay that sum to William B. Nuttall, Hector W. Braden, and William P. Craig, or to their order, setting out the assignment of said bonds, in due and proper form, by the obligees to the plaintiff in the suit. The defendant, by his attorney, craved oyer of the bonds, and, after setting out the same, pleaded 'that William P. Craig, one of the obligors mentioned, was, and is, the same identical person named William P. Craig as one of the obligees in the said bonds, who, together with the others, had indorsed the bonds to the plaintiff, and that the same was therefore null and void at law, and not the deed of the defendant,' concluding with a verification. To which the plaintiff demurred, and the defendant joined in the demurrer. The court gave judgment for the plaintiff on the demurrer, which judgment was affirmed by the Court of Appeals, upon which this writ of error was brought. The record not having been filed in time, the cases had been docketed and dismissed under the forty-third rule of court, on motion of the defendant in error. Afterwards, a motion was made by Mr. Westcott to reinstate them, which was argued by Mr. Westcott and opposed by Mr. Thompson; upon which motion.

The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.

A writ of error having been allowed in this case, and the record not having been filed by the plaintiff within the forty-third rule, a motion was made by the counsel of the defendant, on presenting a statement of the judgment below, regularly certified, to dock it and dismiss the cause, which the court ordered to be done. And now a motion is made to set aside that order, on the ground that the clerk, who certified the judgment, acted without authority.

The certificate objected to is in the proper form, is signed by R. T. Birchett, clerk of the Court of Appeals of Florida, and is authenticated by the seal of that court.

Florida was admitted into the Union as a State, on the 3d of March last, but provision was made under the seventeenth article in the constitution for the continuance of the courts and officers of the Territory until superseded under the laws of the State. We think the clerk, having possession of the records of the Court of Appeals, has a legal right, under its sanction, to certify its judgments, and therefore that the order of dismissal cannot be set aside on the above ground. But in consideration of a change of government in the Territory, and the consequent embarrassments and doubts in regard to this writ of error; and also in consideration that the plaintiff in error, in seven days after the above dismissal, made this motion, and asked leave to file the record, the court will set aside the former order, and permit the record now to be filed; on the condition, that, at the option of the defendant in error, the plaintiff shall submit the case, on printed arguments, at the present term.

In conformity with the above order, the case was submitted, upon the following printed arguments, by Mr. Westcott and Mr. C. J. Ingersoll, for the plaintiff in error, and Mr. Thompson, for the defendant.

Mr. Westcott and Mr. Ingersoll, for the plaintiff in error.

These cases are both depending on the same principles. The statement of defendant in error, in his brief of the pleadings, is correct. The notice of the court is, however, asked to the particular form of the counts on the bonds sued on. They are described as the joint and several bonds of Judge, Bradford, and Craig, and as given to Nuttall, Braden, and Craig. They are averred to have been indorsed by all the obligees (Nuttall, Braden, and Craig) to Williams. The plaintiff must recover upon the case made in his declaration, or not at all, in this action.

The fact that Craig, named as obligee in the bonds, is also one of the obligors, is distinctly averred in defendant's plea. The plaintiff's demurrer admits this fact. The first question, then, arises as to the correctness of the position assumed by the defendant, that the bonds are nullities, and cannot be sued upon at law by the obligees or their assignees.

It is a principle of the common law, that no one can be both obligor and obligee in the same bond. He cannot sue himself, and the instrument is a nullity. 1 Plowden 367, 368; Co. Litt. 264, 265; Bac. Abr. 156, 157; Powell on Contracts, 438; Eastman v. Wright, 6 Pick. 321; 6 Taunt. 407; 1 Tucker's Comm. 277; 2 American Common Law, 412, 414; 1 Chitty's Pleadings, 45; 2 Saunders's Rep. 47, note T; Roscoe on Bills, 43, 44; 2 Coventry & Hughes's Dig. 238, art. 9, § 7, art. 7, § 12; Turton v. Benson, 10 Mod. 450; Mainwaring v. Newman, &c., 2 Bos. & Pull. 120; Jus v. Armstong, 3 Dev. 286; Taylor's case, ibid. 288; Bonner's case, ibid. 290; Shamhour's case, 2 Dev. 6; Davis v. Somerville, 4 Dev. 382; 13 Serg. & Lowb. 328. The court are particularly referred to the North Carolina cases above cited.

Independent of all authority, the common sense of this principle is so obvious that it cannot be disputed. Delivery, which, with sealing, is an essential part of a bond. cannot be made by a man to himself, nor can a man sue himself. This objection, therefore, is insuperable, unless it can be evaded.

The counsel for defendant in error, in his submitted brief, does not seem disposed to contest this position, but it is attempted to be evaded by contending that the thirty-third and thirty-fourth sections of the Territorial statute of 1828 (see Duval's Comp., p. 69, correctly quoted in 2d page of defendant's brief), alters the common law on this subject.

The common law was adopted in Florida at the first session of the Territorial legislature after the cession. (See Laws of Florida of 1822, p. 53). It has continued in force in Florida ever since. In 1828, a revision of the laws was attempted by the legislature, and in the enumeration of the acts to be continued in force, the act of 1822, above referred to, was, as is notorious, by mere inadvertence, omitted. Until it was reenacted in 1829, it was contended by some that during that interim the civil law of Spain, and not the common law of England, was to be regarded as existing in that territory; but such position never received the sanction of any judicial decision. It is submitted that the common law, once adopted as a system in 1822, continued till positively and affirmatively abrogated. A different rule would occasion great confusion and embarrassment as to contracts made in the year 1828, made according to the rules and forms of the common law, and in the belief that it controlled them. Yet defendant in error seeks to establish such doctrine.

The Territorial statute cited 'vests' the indorsee with the same rights, powers, and capacities as might have been 'possessed by the assignor or indorser; and the assignee or indorsee may bring suit in his own name.' (See § 34 of statute cited, p. 2, defendant's brief, and Duval's Comp., p. 96.)

This Territorial statute does not give to the assignee or indorsee of a bond any more 'rights, powers, or capacities,' than 'might have been possessed by the assignor or indorser.' The restrictive words, 'the same,' used in the law, show such intention by the legislature. Defendant in error cannot sue as indorsee, unless the words 'the same' are construed to mean more. It would be as reasonable to argue, that the words 'might have been possessed,' used in the same clause, meant that the indorsee of an invalid bond should have the 'same rights, powers, and capacities' as his indorsee 'might' have had, if the bond had been valid.

The concluding clause, providing that 'the assignee or indorsee may bring suit in his own name,' was not intended to 'vest' him with such 'right, power, or capacity,' as an additional right to that possessed by his assignor or indorser; in other words, to sue on the bond in his own name, even if his assignor or indorser could not sue on it. The statute was intended to make valid bonds negotiable, and allow the assignee or indorsee to sue in his own name, which was not allowed at common law; all the indorser's right to sue in his own name is founded on the statute. It was not intended to make a bond, invalid before indorsement, become valid by indorsement.

It was never contemplated that it would be used to overturn a fundamental principle of the common law, that the same person could not be both obligor and obligee in the same bond, and both plaintiff and defendant in the same suit.

In this case the counts all allege Nuttall, Braden, and Craig to be obligees; they allege Nuttall, Braden, and Craig to be indorsers, and they allege Judge, Bradford, and Craig to be the obligors. We are saved all inquiry as to what might have been properly decided, if plaintiff had not made these express allegations, and if he had counted differently, dropping Craig either as obligor or as obligee and indorser, with appropriate averments. This case must be decided on the pleadings; and they state that Williams, the plaintiff, claims, as indorsee of Nuttall, Braden, and Craig, of a bond given to them by Judge, Bradford, and Craig. Craig is expressly alleged to be one of his three joint indorsers. He has, therefore, in this suit, under the statute, cited precisely 'the same,' or 'all' (as defendant cites the statute in p. 3 of his brief) 'the rights, powers, and capacities,' as his indorsers, Nuttall, Braden, and Craig, had, and no more. He cannot gainsay his own pleadings. If these bonds had not been indorsed, could Nuttall, Braden, and Craig have sued Judge, Bradford, and Craig?

The cases cited show that they could not at common law, and the statute gives Williams the same and no additional rights to those they had.

The argument of defendant in error (page 3 of brief filed), which concedes that 'Craig sealed, but could not deliver, the bond, because he was one of the obligees; the execution of the bond was therefore incomplete, until Craig, joining the other obligees in the assignment to Williams, by that single act compelled the execution,' &c., it is submitted, gives up the law of this case upon these pleadings. The counts are not consistent with such case as that made by such arguments. To sustain it, the bonds must be regarded as being made and delivered directly to Williams by Judge, Bradford, and Craig, and Craig not regarded as indorser.

The pleadings are the reverse of this supposed case. So, too, all the arguments and authorities cited by defendant, with respect to 'express' and 'implied' delivery of a deed and 'inchoate' instruments, and delivery to part, and not all, of the obligees, are inapplicable to this case upon the pleadings, and they are conclusively answered by a similar reference. The cases and rules of law contended ...

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