U.S. Supreme Court Farni v. Tesson, 66 U.S. 1 Black 309 309 (1861)
Farni v. Tesson
66 U.S. (1 Black) 309
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF ILLINOIS
1. Where a contract is joint, and not several, all the obligees who are alive must be joined as plaintiffs.
2. If one of the joint obligees be dead, a suggestion of that fact is sufficient to show a right to sue in the names of the survivors.
3. If by the condition of a bond, the money to be recovered be not for the joint benefit of all the obligees, the suggestion of that fact cannot alter the obligation; but all the parties having a legal title to recover must join in the suit, and the judgment will be for the use of the party named in the condition and equitably entitled to the money.
4. The rule is that a covenant may be construed as joint or several according to the interests of the parties appearing upon the face of the obligation, if the words are capable of such, a construction, but it will not be construed as several by reason of several interests if it be expressly joint.
5. Where some of the obligees of a bond who should be joined as plaintiffs in a suit brought upon it are omitted in order to give jurisdiction in the case to a federal court, such a reason, even if alleged in the pleading, would not cure the omission.
6. A defendant can object to a nonjoinder of plaintiffs not only by demurrer, but under the plea of the general issue, or on motion to arrest the judgment.
Tesson & Dangen recovered a judgment against Bontcum and Carrey in the Circuit Court of Peoria County, Illinois, on the 12th of September, 1857, for $8,000. On the same day, an execution was issued directed to Woodford County, and a levy was soon after made on real and personal property. Bontcum and Carrey filed a bill on the equity side of the court for an injunction to stop further proceedings under the judgment, and the injunction was directed to issue according to the prayer of the bill, "upon the complainants entering into bond in the penal sum of sixteen thousand dollars with Christian Farni and Peter Farni, conditioned according to law." A bond was accordingly
executed, in which the two Farnis with Bontcum and Carrey were the obligors and Tesson, Dangen, Tuber, Garesche, and Miner the obligees. This bond, it was conceded, was not framed in accordance with the order of the court, but upon its being filed, the injunction was issued. Afterwards the plaintiffs, perceiving the insufficiency of their bond, had a new one executed, to which the parties were the same as to the former one, but the conditions were different. This bond was filed by the clerk of the court without the authority of the court and without the knowledge of the defendants in the bill, who on discovering the fact moved to dissolve the injunction because no sufficient bond had been filed prior to the issuing of the writ. The plaintiffs afterwards moved for leave to file a new bond, but no action was taken upon their motion, and in October, 1858, the injunction was dissolved, and after some time, they dismissed their bill. At December term, 1858, Tesson brought suit on the second injunction bond against Christian and Peter Farni in the Circuit Court of the United States for the Northern District of Illinois. The suit was brought in his own name as surviving partner of the firm of Tesson & Dangen, omitting as plaintiffs the other three obligees to whom the bond had been given and making only two of the four obligors who executed it defendants. To avoid the objection of non-joinder of the other obligees the plaintiff averred that he was the only one interested in the judgment enjoined; that Miner, one of the obligees, was the sheriff who held the execution enjoined, and the other obligees were merely the agents or trustees of Tesson. The defendants demurred to the declaration, and the plaintiff amended it; but the names of the parties to the action were the same in the amended as in the first declaration, and the averments of their several and separate interests in the bond remained unchanged. To this amended declaration the defendants, in accordance with a stipulation they had made to plead to the merits, on the 26th of February, 1859, filed their plea of non est factum, with an affidavit that the writing sued on was never delivered by them. Replication was filed to this plea and issue upon it to the country, and a verdict and judgment rendered in favor of the plaintiff. The defendants excepted
to the instructions given by the court to the jury, which related, however, to points not touched on in the opinion of the Supreme Court. Before signing the bill of exceptions the judge put on record a written explanation to the effect that the objection to the nonjoinder of the proper parties, though made by the defendants on the trial, had been understood by the court to have been waived, and was only pressed upon a motion made to arrest judgment, when it was overruled as merely technical. This overruled objection is the only matter in the record to which the opinion of the Supreme Court was addressed, and it has seemed necessary to state only such of the facts as form a necessary introduction to that opinion. The defendants sued out this writ of error.
MR. JUSTICE GRIER.
The amendments made to the declaration after demurrer have not removed the original mistake, as to the parties who should have been joined as plaintiffs. In an action of debt on bond, the demand is for the penalty. The condition of the bond is no part of the obligation. It is true, the judgment for the penalty will be released, on performance of the condition annexed to it. The plaintiff may declare on it as single, and defendant would then have to pray oyer of the deed, and have the condition put on the record, so that he could plead a performance of it, or any other defense founded on it. The bond being set forth at length in the declaration, precluded the necessity of oyer, but did not relieve the pleader from the mistake patent in his plea. He sues on a several covenant to pay a sum of money to A, and shows a covenant to pay A B and C jointly. If one of the joint covenantees be dead, a suggestion of that fact is sufficient to show a right to sue in the names of the survivors. If, by the condition, the money to be recovered be not for the joint benefit of all, the suggestion of that fact cannot alter the obligation; but will show only that, though all the parties to it should join in the suit, and show a legal title to recover, the judgment will be for the use of the party named in the condition, and equitably entitled to the money. The true reason for the course pursued by the pleader in this case, though not alleged in the pleading, was, perhaps, to give jurisdiction to the circuit court of the United States, by omitting the names of obligees who are citizens of Illinois. But it is admitted that such a
reason, even if alleged in the pleading, would not have cured the omission.
It is an elemental principle of the common law that where a contract is joint and not several, all the joint obligees who are alive must be joined as plaintiffs, and that the defendant can object to a nonjoinder of plaintiffs, not only by demurrer but in arrest of judgment, under the plea of the general issue.
When there are several covenants by the obligors, as, for instance, to "pay $300 to A and B, viz., to A $100, and B $200," no doubt each may sue alone on his several covenant. The true rule, as stated by Baron Parke, is that
"a covenant may be construed to be joint or several, according to the interests of the parties appearing upon the face of the obligation, if the words are capable of such a construction; but it will not be construed to be several, by reason of several interests, if it be expressly joint."
In this case, the covenant is joint, and will admit of no construction. The condition annexed cannot affect the plain words of the obligation.
It has not been denied on the argument that such is the established rule of the law, and such the plain construction of the bond; but it is insisted, that the court should disregard it as merely a technical rule, which does not affect the merits of the controversy. The same reason would require the court to reject all rules of pleading. These rules are founded on sound reason, and long experience of their benefits.
It is no wrong or hardship to suitors who come to the courts for a remedy, to be required to do it in the mode established by the law. State legislatures may substitute, by codes, the whims of sciolists and inventors for the experience and wisdom of ages; but the success of these experiments is not such as to allure the court to follow their example. If anyone should be curious on this subject, the cases of Randon v. Toby, 11 How. 517; of Bennet v. Butterworth, 11 How. 667; of McFaul v. Ramsey, 20 How. 523; and Green v. Custard, 23 How. 484, may be consulted.
The judgment of the circuit court is therefore reversed with costs.