Opinion
June Term, 1853.
A surety on an official bond cannot, as relator, bring an action at law against his cosureties for a default of the principal. And the objection is well taken under the plea of general issue.
(The cases of S. v. Lightfoot, 24 N.C. 306; McLaughlin v. Neill, 25 N.C. 294; Justices, Etc., v. Bonner, 14 N.C. 289, cited and approved.)
THIS was an action of debt, brought upon the official bond of the defendant, Bean, a constable. Plea, general issue.
Kelly and Dargan for defendants.
Strange for plaintiff.
Upon the trial, at MONTGOMERY, on the last Spring Circuit, before his Honor, Judge Dick, it appeared that the relator was one of the sureties to the bond sued upon; although the writ had been executed upon the principal and other sureties only. The defendants insisted under such a state of facts, the plaintiff could not recover. The objection was overruled by his Honor, upon the ground that the relator was not sued in this action. There was a verdict for the plaintiff, and the defendants having failed to obtain a new trial, appealed to the Supreme Court.
It cannot now be denied that the relator, in a suit upon an official bond, made payable to the State or to an officer of the State is the real plaintiff in the cause. It was so expressly decided in the cases of S. v. Lightfoot, 24 N.C. 306, and McLaughlin v. Neill, 25 N.C. 294, and we are not at liberty to dispute their authority. That being established, it follows as a necessary consequence that the objection made by the defendants to the recovery in this suit is fatal. If the suit were against all the obligors in the bond, of whom the relator was one, it would be directly within the principle that a man cannot sue himself, either alone or with others. Pearson v. Nesbit, 12 N.C. 315. Can it make any difference that the relator did not include himself in the suit? We think not, because his right to sue depends upon the fact that the bond was in effect delivered to him, or that a contract was made with him, which could not be, as he could not either by himself or with others, deliver the bond to himself, or contract (319) with himself. Justices v. Bonner, 14 N.C. 289.
But it is contended by the plaintiff's counsel that the objection was not open to the defendants upon the pleadings, and could not be taken at the trial. We do not see why, as it appeared upon proof of the bond, and was besides expressly admitted that the relator was one of the obligors. The objection could not be taken by a plea in abatement, because the defendants could not give the plaintiff a better writ. It did not appear in the declaration, and therefore no demurrer could be put in. If good at all, it must have been taken on the trial upon the general issue, when it appeared in the evidence. That the relator should not be permitted to sue at law in such a case will appear to be placed not more upon a technical than upon a substantial difficulty, when it is recollected that he is equally liable with the other sureties for the officer's defaults, and that in case of the insolvency or removal from the State of one or two of them, it might be almost impossible at law properly to adjust the loss among the solvent or remaining sureties.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Becton v. Becton, 56 N.C. 423.
Distinguished: McDowell v. Butler, 56 N.C. 313.