M'Divitt's v. M'Divitt
4 Watts 384
Pa.
1835
Check Treatment

The opinion of the Court was delivered by

Kennedy, J.

—From the case as stated it appears to be an action of debt brought in the court below by Henry M’Divitt upon an administration bond against Dennis S. Scully, the plaintiff in error, executor of Eleanor M’Divitt deceased. The deceased, in her lifetime, had joined with the plaintiff below in administering on the estate of Patrick M’Divitt deceased ; and became a co-obligor with the said Henry, and two others, Samuel M’Cord and Charles M’Cabe, as their sureties, in the bond upon which this suit was instituted. A prior action was brought on it in the court below to April term 1828, No. 185, by Samuel Kingston, Esq., for his use, against Henry M’Divitt, the plaintiff below, and Samuel M’Cord, one of the sureties, jointly, they then being the only surviving obligors named in the bond. Judgment was obtained against them in that action for the amount of the bond on the 12th of August 1830, which remains still in full force. The bond in its terms is joint and several, and the condition thereof in the usual and prescribed form. The court below, being of opinion that the plaintiff was entitled to recover, rendered judgment accordingly.

Two objections have been taken to the plaintiff’s recovery : the first is, that the judgment obtained in the previous action brought by Mr Kingston on the bond, is a bar to this or any subsequent action of debt upon it. The second is, that the plaintiff below being a co-principal and obligor with the defendant’s testatrix in the bond, can maintain no action upon it for his use.

Either of these objections is fatal to the plaintiff’s recovery.

In regard to the first, the law is well settled that where two or more have become bound jointly and severally in an obligation, the obligee, in case of the bond’s becoming forfeited, may at his election maintain an action against them all jointly, or against each severally ; but having once made his election by commencing and prosecuting an action iri the one form to judgment, he is bound thereby and cannot afterwards bring an action in the other. Downey v. The Farmers and Mechanics bank of Greencastle, 13 Serg. & Rawle 288; Walter v. Ginrich, 2 Watts 204, b ; 1 Saund. 291, note 4, by Sergeant Williams, and the cases there cited by him. At the time of bringing the first suit upon the bond, Henry M’Divitt and Samuel M’Cord being the only surviving obligors, and the suit having been brought against them jointly, and prosecuted to judgment, it follows from the rule just mentioned that the present action cannot be maintained. Had actions been commenced against them severally, and prosecuted to judgment, this action, being also several against the *387executor of a third obligor upon the same bond, would have been perfectly consistent in that case with the plaintiff’s election in bringing the first; and consequently would have been sustainable, provided the party at whose instance it was commenced were otherwise entitled to claim any thing under the bond. It is not a sufficient objection to the application of the rule laid down, that the commonwealth is the obligee named in the bond, and that it was given in her name, not merely for the benefit of Mr Kingston, but for that of all others having an interest in the due and faithful administration of the estate of Patrick M’Divitt, and that it is therefore unreasonable that he should bind and conclude these others by his election to sue upon it jointly and not severally: for it must be kept in mind that the suit by Kingston was instituted and prosecuted to judgment on the bond under the authority and direction contained in the fourteenth and fifteenth sections of the act of the 27th of March 1713, Purd. Dig. {Edit, of 1831) 669, 670, which permitted but one judgment to be obtained on it against the same party ; and this judgment so obtained was to be and remain cautionary for the satisfaction of all such as should, from time to time, upon writs of scire facias sued out thereon by them respectively, prove themselves damnified. Hence it is obvious that it would militate against the express provision of the act, as well as the rule previously established and already mentioned, to permit the obligors in the same administration bond to be sued jointly and severally, as it might occasionally produce more than one judgment on the bond against some one or more of them. By the act, however, now in force on this subject, the course of proceeding upon a bond given by administrators for the faithful discharge of their duty, is changed, and every person concerned therein, and for whose benefit it was given, upon his being injured by a breach or neglect of duty on the part of the administrators, is entitled to institute an original suit on the bond itself for his own use, and to have his damages assessed by the jury empanelled to try the cause ; and, of course, may sue the obligors either jointly or severally at his election.

Now as to the second objection, it seems to be one which, from the very structure of the bond, as well as the design of giving it, would naturally strike the mind as being insuperable. It certainly could not have entered into the contemplation of the obligors, at the time of giving the bond, that they were becoming bound by it to each other, or that it was entered into for the purpose of indemnifying one of the administrators therein named against any faithless conduct that the other might be guilty of; because the terms of the bond itself convey no such idea. This, then, being the case, the law will not give an effect and operation to it that would be altogether different from, if not directly contrary to, what was intended by the parties. From the tenor and form of the bond, it is perfectly clear that all and each of the obligors are bound to the same extent and to the same end; so that whatever any one of them is bound or respon*388sible for under it, each and every of the others is alike bound and answerable for. Now it will be admitted, I presume, that if Eleanor M’Divitt or her estate be liable under the bond (o answer and pay to Henry M’Divitt, the plaintiff below, the amount of his demand, Samuel M’Cord and Charles M’Cabe, being her sureties in the bond, ought, as such, to be liable also to pay the same. Rut Henry M’Divitt is a principal obligor in the bond himself with Eleanor M’Divitt; and M’Cord and M’Cabe are his sureties as well as hers; and having become such, as it must be presumed in the absence of testimony to the contrary, at the joint solicitation of the two principal obligors, Henry M’Divitt, as well as the estate of Eleanor M’Divitt, is bound in equity at least, if not in law, to save the sureties harmless, and to keep them free from all liability to pay any thing under the bond ; and, therefore, it cannot be that he can claim to recover on the bond what in equity and good conscience he is bound to protect the sureties against paying. It is perfectly manifest from the terms of the bond that nothing can be recovered by suit upon it from the principals unless the sureties be liable also, forit is equally and alike binding upon both. To permit the plaintiff below, then, to recover in the present case, would not only be running counter to the terms of the bond itself, but to every principle of equity and natural justice.

Besides, what seems to be still more preposterous, if possible, is that Henry M’Divitt being a joint obligor with the defendant’s testatrix, was bound in every respect to the same extent by the bond that she was, so that if the non performance of the condition of it happened from the neglect of either of them, it became forfeited alike against both, and both were rendered alike liable to be sued for the forfeiture, whether it arose from the act or the neglect of the one or the other; consequently no action can be maintained on the bond against the executor of Eleanor M’Divitt, unless for a cause that would be sufficient at the same time to support it against Henry M’Divitt himself, the plaintiff below. But it is legally impossible for Henry M’Divitt to be both plaintiff and defendant in the same action, which shows that this action cannot be maintained by him or for his use.

The judgment of the court below is reversed, and judgment rendered by this court for the plaintiff in error.

Judgment reversed.