Opinion
10-15-1819
Horton and Others v. Haymond and Others
Wickham for the plaintiffs in error, and Nicholas contra,
A Bond was executed on the day of May 1804, by Elihu Horton, Thomas R. Chipps, William G. Payne and James Pindall to " Calder Haymond & c. overseers of the poor for Monongalia County," in the sum of one thousand dollars, with a condition that, " if the above bound Elihu Horton and Thomas R. Chipps should well and truly collect, from the Tithables of Monongalia County, the poor rate for the year, and pay the same to the orders of the said overseers, then the said obligation was to be void," & c.
In the year 1810, an action of debt was instituted upon this bond, by Calder Haymond, Nicholas Vandevort, and others, in the Superior Court of Monongalia County; stating in their declaration that they, on the 21st day of May 1804, and long before and after, were overseers of the poor for the said County of Monongalia, and that the bond was given to them as such, on the said 21st of May; but not stating that they were overseers of the poor at the time of the institution of this suit.
The defendants, after craving oyer, pleaded, 1st, Covenants performed; 2d, that a Judgment was rendered in their favour, on a motion made on the same bond; which Judgment had never been reversed. Issue was joined on the first plea; and to the second, a general demurrer, which, on argument was overruled by the Court. A verdict being found for the plaintiffs upon the first plea, the defendants filed errors in arrest of judgment, which were over-ruled, and final judgment given according to the verdict.
A Petition for a Supersedeas, set forth the following reasons for reversing the judgment: --1st, because the said bond, not being warranted by the common law, but taken solely under the Statute in that case made and provided, was void; the Act of Assembly not being pursued; as would appear on reference to the Act of 1792, Edit. of 1792, 1803, and 1814, c. 102, § 10, Vol. 1st, pa. 182: --2d, because, if the action were maintainable at common law, (which, under the authority of the case of Stuart v. Lee, 3 Call 421, and other decisions, it is not,) it certainly is not maintainable under the Act, in which way it is brought; the plaintiffs suing as overseers: --3d, because the judgment in favour of the defendants, on the motion, was a bar to the recovery in any other form of action; and, for this reason, whether the judgment on the motion was right or wrong, judgment should have been given in favour of the defendants, on the demurrer to the second plea.
Judgment reversed.
OPINION
Page 401
A Judge of this Court granted the Supersedeas; and, after argument, by Wickham for the plaintiffs in error, and Nicholas contra, JUDGE ROANE pronounced the Court's opinion, as follows:
The Court, doubting, (to say the least,) whether an action will lie on the bond in question, in favour of the Overseers of the poor or their successors, on account of certain defects existing in it, taken in reference to the requisitions of the Statute in such case provided, is of opinion that the present action can not be sustained; it not being averred in the declaration that the plaintiffs were overseers of the poor at the time of the institution of the suit; and, if not, the right of action existed in their successors, and not in them.
The Judgment is therefore to be reversed, and entered for the appellants.