Farni v. Tesson

Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington, for plaintiff in error. The bond on which this action was brought was a joint undertaking by four persons to pay five others jointly the sum of $17,000. Two of the obligees were the plaintiffs in the judgment enjoined; two others were agents or trustees for them; and the fifth was the sheriff, who had the execution enjoined. The sheriff, Miner, one of the obligees, was a citizen of Illinois, of the same State as the defendants in this case; so the plaintiff avers, and so the fact was. This contrivance in pleading was therefore resorted to to support the jurisdiction of the United States court; for, if the suit had been brought in the name of all the obligees, it must have failed, because one of the plaintiffs, Miner, would have been a citizen of the same State with the defendants. Can this pleading be supported by the authorities? It must be kept in mind that this is an action of debt on the penalty of the bond, and that all the authorities make a wide distinction between this form of action and one of covenant upon the undertakings in the conditional part of the obligation, and most, if not all, the cases turn on this distinction. Keeping this in mind, we refer to 1 Williams Saunders, 291, 1st Am. Ed., (Cabell vs. Vaughan,) where it is said 'all the obligees or covenantees, if alive, ought to join in the action; if dead, that fact should be averred.' The plaintiff in this case averred in substance that the obligees not joined were still alive. 1 Chitty's Pleadings, 9; 1 Saunders' Pl. & Ev., 9; Pearce vs. Hitchcock, (2 Comstock, 388;) Arnold et al. vs. Talmadge, (19 Wendell, 527;) Bailey vs. Powell, (11 Missouri, 414;) Sims & Hollis vs. Harris, (8 B. Monroe, 55;) Gayle et al. vs. Martin, (3 Alabama, 593.) This defect of parties may be taken advantage of by demurrer, plea in abatement, objection at the trial, motion in arrest of judgment, or by writ of error. 1 Chitty's Pleadings, 12 a; Cabell vs. Vaughan, (1 Saund. Rep., 291.) The plaintiff filed a declaration, which ws demurred to. He then amended by filing two new counts, to which the defendants stipulated that they would plead to the merits, (and this was all the answer they ever made to it.) They did plead to the merits; at the trial, insisted on the objection. The judge overruled it then overruled the motion in arrest, because he thought the objection too technical to be sustained; yet the authorities all say that the objection was a good one at any stage of the proceedings, and ought to prevail when insisted on.