The opinion of the court was delivered by Ford, Justice.
Ford, J.
To an action of debt on bond the defendant craves oyer of the condition, and then pleads the general issue together with four special pleas in bar; and gives notice of twenty-three other matters, which are not specially pleaded, that he intends to offer in evidence under the general issue. It has been decided that the same matter cannot be presented in the double form of a special plea, and also of notice; but in this case the matters appear to be so different that no two of them are alike, and there is an option in respect to each matter, to plead it at the common law, or give notice of it under the general issue; either way being lawful cannot be prohibited by the Court.
The plaintiffs’ next motion is to strike out all the notices, because of an insufficiency alleged to be apparent in each one, which renders a detailed consideration of them unavoidable.
1. The defendant is certainly estopped from denying that Dayton was Cashier, after having recited in the bond under hand and seal that he was “ Cashier of the State Bank at Elizabeth.” There is no way to destroy this admission, but by denying the deed itself; he cannot admit the deed and at the same time traverse the truth of its contents.
2. A party may be bound to the performance of duties by [30] the double securities of an oath and a bond; but can it be pretended that the bond is void because the party might have sworn to perform it and did not ? Can his not being sworn justify him in breaking the bond? If it was a duty incumbent on him to be sworn before he entered on the duties of his office, it was a breach of the condition not to be sworn; for the condition was to perform, all the duties of Cashier; now to break the condition of a bond is what gives an action on it, but was never holden to bar one.
3. and 4. Notice—■“ That the bond was never delivered,” amounts to the general issue, and could not be specially pleaded. If, without the previous formality of a requirement to give the bond, it was given according to the statute, the requirement must be so implied in the giving as to be no more traversable than an arrest after giving a bail bond.
5. A party to an instrument can never hold it as an escrow; and therefore a plea that the bond was delivered to one of the co-obligors to hold as an escrow is ill. But if it was never delivered to the plaintiffs, that may be shewn under the general issue.
6. There is a difference between the delivery of an instrument and the tender of one; in case of tender there may be no acceptance; but delivery necessarily implies the notion of acceptance. The case cited from the newspaper must have been governed by the provisions of some statute.
'7. and 8. Set out no special matters.
9. That if the cashier erred, he did so by mistake and not for want of fidelity. In support of this defence a case is cited, from 10 John. 271, where the condition of the bond was for fidelity only; but it cannot be applicable to a bond like the present which is for the performance of many specific acts at his peril, and duties appertaining to the office of cashier.
10. Non damnificatus cannot be specially pleaded to a condition that is multifarious, because the issue would be unintelligible alike to the parties, the court and the jury. I [31] am of opinion, therefore, that the first ten notices are insufficient and ought to be stricken out.
The 11th Notice is, that the cashier resigned his office to the plaintiffs, and delivered to an authorized committee of directors, all the property in his hands as cashier belonging to the plaintiffs, in satisfaction of all damages by reason of anything in the condition of the bond, and that the plaintiffs accepted thereof in satisfaction. An objection to this notice, that the matter in it is pleaded in the fourth special plea does not appear to be founded in fact; in the plea, the delivery is to the company, and in the notice, it is to an authorized committee; so that instead of being identical, they are diverse enough for two special pleas. The other objection is, that performance of some of the things he was bound to do, cannot be pleaded in satisfaction of the whole; as in JPinnel’s ease, 5 Co. 117, where payment and acceptance of £5 was holden to be no good satisfaction for £8; the reason assigned, being, that five can by no possibility be satisfaction for eight; yet in 2 Term Rep. 24, Ashurst and Buller, Justices say, that an agreement to take part in nudum pactum unless afterwards accepted; clearly implying that if it be no longer executory but executed, accptance of part in satisfaction of the whole is a good accord. But be this as it may, the case before us is different; the cashier pleads that what he did was not a part of what he was bound by the bond to do, but they were other things; he resigned his office in satisfaction, and that he was not bound to do; he made delivery to a committee, when the bond bound him to deliver only to his successor. Now, though according to Binnel’s case, a less sum (of money) could not be in satisfaction of a greater ; yet it was determined in that case, that any other thing, such as a horse, or a hawk, delivered and accepted in satisfaction, would be good. Injured parties, have a right to accept anything that they please to take in satisfaction ; they might accept of resignation alone if they pleased; the law would not prevent them; and the [32] question of their having done so or not, must be left to the jury. I do not think it necessary to go into the next three notices, because they depend on the same principle as the present, and therefore the lltli, 12th, 13th and 14th notices, ought to stand for trial.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by Ford, Justice.
Ford, J.
To an action of debt on bond the defendant craves oyer of the condition, and then pleads the general issue together with four special pleas in bar; and gives notice of twenty-three other matters, which are not specially pleaded, that he intends to offer in evidence under the general issue. It has been decided that the same matter cannot be presented in the double form of a special plea, and also of notice; but in this case the matters appear to be so different that no two of them are alike, and there is an option in respect to each matter, to plead it at the common law, or give notice of it under the general issue; either way being lawful cannot be prohibited by the Court.
The plaintiffs’ next motion is to strike out all the notices, because of an insufficiency alleged to be apparent in each one, which renders a detailed consideration of them unavoidable.
1. The defendant is certainly estopped from denying that Dayton was Cashier, after having recited in the bond under hand and seal that he was “ Cashier of the State Bank at Elizabeth.” There is no way to destroy this admission, but by denying the deed itself; he cannot admit the deed and at the same time traverse the truth of its contents.
2. A party may be bound to the performance of duties by [30] the double securities of an oath and a bond; but can it be pretended that the bond is void because the party might have sworn to perform it and did not ? Can his not being sworn justify him in breaking the bond? If it was a duty incumbent on him to be sworn before he entered on the duties of his office, it was a breach of the condition not to be sworn; for the condition was to perform, all the duties of Cashier; now to break the condition of a bond is what gives an action on it, but was never holden to bar one.
3. and 4. Notice—■“ That the bond was never delivered,” amounts to the general issue, and could not be specially pleaded. If, without the previous formality of a requirement to give the bond, it was given according to the statute, the requirement must be so implied in the giving as to be no more traversable than an arrest after giving a bail bond.
5. A party to an instrument can never hold it as an escrow; and therefore a plea that the bond was delivered to one of the co-obligors to hold as an escrow is ill. But if it was never delivered to the plaintiffs, that may be shewn under the general issue.
6. There is a difference between the delivery of an instrument and the tender of one; in case of tender there may be no acceptance; but delivery necessarily implies the notion of acceptance. The case cited from the newspaper must have been governed by the provisions of some statute.
'7. and 8. Set out no special matters.
9. That if the cashier erred, he did so by mistake and not for want of fidelity. In support of this defence a case is cited, from 10 John. 271, where the condition of the bond was for fidelity only; but it cannot be applicable to a bond like the present which is for the performance of many specific acts at his peril, and duties appertaining to the office of cashier.
10. Non damnificatus cannot be specially pleaded to a condition that is multifarious, because the issue would be unintelligible alike to the parties, the court and the jury. I [31] am of opinion, therefore, that the first ten notices are insufficient and ought to be stricken out.
The 11th Notice is, that the cashier resigned his office to the plaintiffs, and delivered to an authorized committee of directors, all the property in his hands as cashier belonging to the plaintiffs, in satisfaction of all damages by reason of anything in the condition of the bond, and that the plaintiffs accepted thereof in satisfaction. An objection to this notice, that the matter in it is pleaded in the fourth special plea does not appear to be founded in fact; in the plea, the delivery is to the company, and in the notice, it is to an authorized committee; so that instead of being identical, they are diverse enough for two special pleas. The other objection is, that performance of some of the things he was bound to do, cannot be pleaded in satisfaction of the whole; as in JPinnel’s ease, 5 Co. 117, where payment and acceptance of £5 was holden to be no good satisfaction for £8; the reason assigned, being, that five can by no possibility be satisfaction for eight; yet in 2 Term Rep. 24, Ashurst and Buller, Justices say, that an agreement to take part in nudum pactum unless afterwards accepted; clearly implying that if it be no longer executory but executed, accptance of part in satisfaction of the whole is a good accord. But be this as it may, the case before us is different; the cashier pleads that what he did was not a part of what he was bound by the bond to do, but they were other things; he resigned his office in satisfaction, and that he was not bound to do; he made delivery to a committee, when the bond bound him to deliver only to his successor. Now, though according to Binnel’s case, a less sum (of money) could not be in satisfaction of a greater ; yet it was determined in that case, that any other thing, such as a horse, or a hawk, delivered and accepted in satisfaction, would be good. Injured parties, have a right to accept anything that they please to take in satisfaction ; they might accept of resignation alone if they pleased; the law would not prevent them; and the [32] question of their having done so or not, must be left to the jury. I do not think it necessary to go into the next three notices, because they depend on the same principle as the present, and therefore the lltli, 12th, 13th and 14th notices, ought to stand for trial.
The 15th Notice, supposes that the cashier applied the money of the Bank, to pay checks that were drawn on him by Aaron Ogden, for doing which, he had no other authority than that of the President; and as that was not plenary authority for making it an act of the Bank, he did not enter . it on their books, but held it out of them as a transaction for which he himself was answerable to the Bank, and Aaron Ogden answerable only to him, unless the Bank, by some further order of their own, should see fit to take A. Ogden, (the drawer of the checks) for the money, as they had a right to do by accepting the checks and charging the money to him on the books of the Bank. That the Bank might fairly exercise their election, the cashier laid the whole matter before them; and it resulted in their agreement to make A. Ogden, answerable to the Bank; accordingly they accepted those checks from the hands of the cashier, and not only legalized his original appropriation of the money by directing it to be charged on their books to A. Ogden but actually bound A. Ogden, to themselves for the whole sum, by taking from him a bond and mortgage for the amount. Now, when A. Ogden, under this agreement, became liable for the money to the Bank, his prior liability to the Cashier necessarily terminated, otherwise his remaining liable to both parties would have amounted to a double charge for the same debt; and beside, the Cashier could not have maintained an action to recover this money in his own name, after a bond and mortgage had been given for it to the Bank, with the assent of all parties. In consequence of this settlement, the Cashier (with the knowledge of the Bank) proceeded to give up moneys that were in his hands belonging to A. Ogden, out of which he might have [33] redressed liimself as Cashier for those advances, if the remedy he first had against A. Ogden, as receiver, had not been taken out of his hands. With these matters spread on the plea, as facts, it is not possible for the Court to overrule them, and say that they amount to no defence. They must therefore stand for trial.
The 16th Notice is, that the chocks were merged in the bond given for the amount of them, by Col. Ogden, to tho Bank. Now, that they are extinguished as to him, may be true without varying the case of the Cashier, whose liability arises on the bond and not on tho checks, which are collateral matter. The facts, as set out in this notice, cannot bar the action of the plaintiffs.
The 17th Notice is insufficient, because it does not allege that the directors knew of the Cashier’s improper appropriations at the time they approved of his accounts.
The 18th Notice contains a direct averment that the plaintiffs ratified and confirmed the accounts of the Cashier, containing the checks that he had received of Col. Ogden for them, after they knew the manner in which they had •been received. It is beyond all manner of doubt that the plaintiffs were competent in law to ratify and confirm the doing of tlieir Cashier if they were so disposed; it must therefore go to the jury to determine whether the plaintiffs ratified the transaction or not. It will be open for thorn to contest tho fact, or to shew that they had power, right or reason to retract the ratification, if' ever it was made; if they shew none of these things, and tho ratification is matter of fact, they surely cannot recover damages for an act that has received their approbation under a full knowledge of the circumstances.
The 19 th allegation is, that the plaintiffs accepted these checks of the Cashier as cash, knowing the circumstances under which they had been received of the President, for the Bank. Now, when the}'' accepted checks from their Cashier, and gave him credit for them as cash, if they [34] intended that the credit should not be absolute, but conditional, either they ought to have seen that the entry on their books was a qualified one, or else they ought to have notified the Cashier that they did not accept in the ordinary way as cash, but on condition that they could get the amount from Col. Ogden, or the security he had pledged for it; otherwise an unconditional acceptance of them as cash in the ordinary way and with a knowledge of all the circumstances, would be such a close of the affair between the Bank and their accounting officer, that they could not retract their settlement and resort to him afterwards in case the security failed. It is the province of a jury to determine upon the alleged acceptance of the checks as cash, and if they find it was so done at the time, and with a full knowledge of all the circumstances, it will be a good bar to their recovery.
The 20th Notice must be stricken out, because their continuing the Cashier ten months afterward in office did not, in law or reason, heal breaches of an anterior date. So, also, as to the 21st and 22d, for there is nothing in the condition of the bond that he was to be watched, nor any neces- • sity for the plaintiffs to give notice when damages accrued, if the case be taken abstractly from attending circumstances.