Van Winkle v. Blackford

28 W. Va. 670

• Court: West Virginia Supreme Court
• Decided: October 23, 1886
• Status: Published

Opinion

Statement of tbo casé by

GreeN, Judge :

This was an action of assumpsit brought in the circuit court of Wood county by W. W. VanWinld e against G. L. B'acktord, administrator de bonis non with the will annexed of Peter G. VauWinkle, deceased. The facts, upon which this spit wits based, as appears from the evidence before the jury on its trial, were as follows: The city of Parkersburg subscribed $50,000.00 to the stock of the NorthWestern Virginia Railroad Company, and by an ordinance of the said city passed October 29, 1855, bonds to that amount were issued payable in twenty years, the interest being payable annually. These bonds were placed for registration in the hands of the trustees of the sinking fund consisting of three persons, two of whom were appointed and removable for cause by the council of the city of Parkersburg? and the president of the city council for the time being was the third. If these bonds were sold for more than $50,000.00 the residue was to be retained by the trustees of the sinking fundas a part of .the sinking fund; they were out of the sinking fund to provide for the payment of the interest on these city-bonds punctually each year and pay the bonds as they should become due; and whenever they might have in their hands $500.00 or more of money after paying this interest, they were to invest it in the purchase for the city of these city-bonds, if they could be bought below par, or, if that could not be done, bonds or stock of the State of Virginia; and any sum less than $500.00 they might temporarily loan for not more than six months on bonds with good personal security; and they were authorized to borrow on the credit of the sinking fund any sums of money not exceeding in the aggregate at any time $1,500.00. The sinking fund was to consist first of the $50,000.00 of the stock of said Railroad Company, the dividends on which they were to collect, and they were authorized in a specified way and in a manner provided for to sell this stock adding the proceeds to the sinking fund; secondly, all proceeds of wharf-age rates of said town, which were to be paid over to them, and one fifth of the taxes collected by the city of its inhabitants; and lastly, such appropriations from the general funds of the town, as the city-council should from time to time make.

These trustees were to appoint one of their own number treasurer, who was to have the custody of the fund and to give bond with approved security to account for the same, and to make a report to the city-council at the end of each year. On November 2, 1870, C. W. Shattuck, the mayor, P. G, Van Winkle and W, N, Chancellor were the trustees of this sinking fund, and P. G. VanWinlde was the treasurer. P. G. VanWinlde continued to be one of these trustees and such treasurer until his death April 15, 1872. He had been one of these trustees ever since. May 6, 1859. W. N. Chancellor, who was appointed a trustee May 6,1870, continued to be such trustee till the trial of this suit; he was appointed treasurer on the death of P. G. VanWinlde. The plaintiff, W. W. VanWinlde, was appointed a trustee in 1881.

On November 2, 1870, the trustees, Shattuck, Chancellor, and P. G. VanWinlde lent to one of their number, P. G. VanWinlde, $734.57 and took from him a bond with the plaintiff as his security.

This bond was in the words and figures following :

“$734.57.

“On or before the first day of May next we or either of us promise and bind ourselves our heirs, &c., to pay the trustees of the sinking fund (of Parkersburg, W. Va.) seven hundred and thirty four dollars and fifty seven cents for value received, with interest from date. Witness the following signatures and seals this 2nd day of November, 1870.

• “P. G. Van Winkle, [seal.]

“W. W. Van Winkle, [seal.]”

P. G. Van Winkle was not only a trustee of the sinking fund but its treasurer also, when this loan was made to him. lie paid nothing on this bond in his lifetime, and on his death April 15, 1872, the plaintiff, W. W. VanWinlde, was appointed his administrator with the will annexed. This bond was then in a box in the custody of P. G. VanWinlde, treasurer, with other assets belonging to said sinking fund amounting in all to $35,000.00, distinct from P. G. Van Winkle’s individual property. The plaintiff, W. W. Van Winkle, having as administrator, &c., of P. G. VanWinlde got possession of this box turned it over to W. N. Chancellor, who upon the death of P. G. VanWinlde became treasurer of the sinking fund, and as administrator of P. G. Van Winkle, the plaintiff on July 11, 1878, paid to W. N. Chancellor, treasurer, $57.72, and on July 18, 1881, the further sum of $850.00, which sums were as directed credited on said bond, leaviug a balance due upon it of about $306.06. In January 1884 this bond was taken up by W. W. VanWinkle, the surety, by giving his own individual note for it with security. On the 24th day of April, 1883, the powers of the plaintiff as administrator of P. G. VanWinkle were revoked, and Godwin L. Blackford, the defendant, was appointed and qualified as aduíistrator de bovis non with the will annexed of P. G. VanWinkle.

This action of assumpsit was brought against Blackford as .such administrator by the plaintiff to recover back this $306.06, which -he claimed to have paid as the security of P. G. VanWinkle on this bond, the payment being by this substitution of his own note with security for it. The declaration consisted of the common counts in assumpsit including all the money counts and among them a count for money paid by the plaintiff for P. G. VanWinkle in his lifetime at his request. The other counts set out the. facts in detail substantially as above stated, except that he states, that on the 1st day of May, 1881, (just ten years after this bond became due) he paid assurety for P. G. VanWinkle the balance due $1,197.34, and that there was repaid by him as administrator to himself individually on July 18, 1881, $850.00 leaving a balance due him of $306.06, which Godwin L. Blackford the administrator de bonis non e. t. a. of P. G. VanWinkle wholly refused to pay him. There -was filed with this declaration the 'following bill of particulars:

“May 1st, 1881. — To amount paid as surety for and on behalf of said decedent on his note for the sum of $734.57, dated November 2, 1870, payable on or before the 1st day of May next, 1871, to the.trustees of the sinking fund of Park-ersburg, $306.06.”

The first summons in this ease was returnable to June rules, 1884, and a plea of abatement was filed, on the ground that it was not properly served, and a motion was also made to quash it, aud the court did quash it, and another' summons was issued, which was served in person on the defendant, and ánother plea in abatement was filed in proper time and duly sworn to. The sole ground and substance of this plea is thus stated in its conclusion : that “on the 8th day of January, 1883, before the issuing of the said writ in this cause, a proceeding was begun by Mary V. Blacktord, a devisee and legatee of said Peter G-. Yan Winkle, deceased, under his last will and testament, against the said plaintiff before the then commissioner of accounts of said Wood county, under the statute of said State and subject to the jurisdiction, supervision and control ot the county court of said county, to compel and require the said plaintiff to render an account of his administration of the estate of said Peter G. Yan Winkle, deceased, since the date of his qualification as such fiduciary, as by the records and proceedings therein in said county court of said Wood county fully appear.

“And the said defendant further says that said former proceeding, so begun by said Mary Y. Blackford against the plaintiff as aforesaid, is still pending in said county court of said Wood county; and this the said defendant is ready to verify.”

This plea was demurred to by the plaintiff and the demurrer sustained. The defendant demurred to the declaration, which demurrer was overruled, and he pleaded non assumpsit and the statute of limitations of five years, which pleas were replied to generally, and issue was joined. The defendant also made the following special plea:

“And the said defendant, administrator as aforesaid, for further plea says, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because, he says, that the said plaintiff did not make the said supposed payment of money, or any part thereof, in manner and form as he hath alleged in his said declaration and bill of particulars filed therewith as surety for and on behalf of said decedent, P. G. Yan Winkle, on the said writing obligatory in said declaration and bill of particulars mentioned, within ten years next after the right of action accrued on said writing obligatory against the obligors therein, to-wit, the said decedent and the said plaintiff, his surety; and this the said defendant is ready to verify.”

To this special plea the defendant tendered two special replications, which the court refused to permit him to file; and he then replied generally to said special plea, and issue was joined upon it, The jury found a verdict for the defendant; and the plaintiff moved the court for a new trial, because the verdict was contrary to the law and the evidence. The court overruled the motion for a new trial and rendered on December 21, 1885, a judgment for the defendant against the plaintiff for his costs. A bill of exceptions was taken to the refusal of the court to permit the defendant to file his special replications to the plaintiff’s special plea, which special replications are set out in the bills of exceptions. I deem it sufficient to state briefly the substance of these two special replications. The first of them states, that P. G. Van Winkle as treasurer of said sinking fund was on November 2, 1870, a defaulter by reason of his having appropriated to his own use the $734.57, and to secure it this bond of $734.57 was executed by him with the plaintiff, W. W. VanWinkle, as his surety. And the plaintiff on May 1,1881, well knowing that this $306.06 was justly and honestly due as a balance on said bond, and that no defence could be made, that would prevent the payment thereof, agreed with the trustees of said sinking fund to pay oft this balance, and he did accordingly pay it off on January 4, 1884. The second replication in substance is like the first, except that this promise to pay the amount still due on said bond of $734.57 to the trustees of said siukingfund was alleged to have been made to said trustees of said sinking fund on May 1,1881, within ten years after said bond became due by W. W. VanWin-kle, as administrator of P. G. VanWinkle, the principal in said bond, the payment to be made out of assets of the estate of P. G. VanWinkle, when the same should be received. The ordinances of the city-council of Parkersburg are made a part of each of these special replications.

An instruction was given to the jury during the trial of this cause, to which the plaintiff excepted. This instruction was asked by the defendant, after all the evidence had been given, and before the jury retired. The instruction asked as shown by the bill of exceptions was as follows:

“The jury are instructed that liability, if any, on the note mentioned in the plaintiff’s declaration and bill of particulars, executed by P. G. Van Winkle and W. W. Van Winkle, his surety, to the sinking fund of Parkersburg ceased after the expiration of ten year’s after May 1,1871 — that is to say, after May 1,1881; and if they believe irom the evidence that W. W. VanWinkle, as surety on said note for P. G. VanWinkle and plaintiff in this action, made the payment of money sued for, being the balance due on said note after crediting the payments theretofore made on the same after said May 1, 1881, then he is not entitled to recover in this action, and they must find for the defendant; and it will not avail the plaintiff any, that before the expiration of said ten years he as administrator or surety agreed or promised orally to pay or assumed payment of the same without actual payment thereof.”

To the giving of which instruction the plaintiffby counsel objected, and the court in lieu of the said instruction gave the following:

“The jury are instructed that no acknowledgment or promise by any personal representative of a decedent shall charge the estate of such decedent in any case in which the decedent’s estate could have been protected under the sixth section, chapter 102, Acts of 1882, but for such acknowledgment or promise; and if the jury believe from the evidence in this cause that at the time of the payment by the plaintiff of the debt referred to in the declaration the said debt was barred by the statute of limitations, although he as administrator 'of P. (1. VanWinkle, deceased, made an oral acknowledgment or promise to pay said debt, while he was such administrator, and before the same was barred, then such promise or acknowledgment by the plaintiff was not binding on the estate of P. G. VanWinkle, deceased, and they must find for the defendant in this action upon the issue joined upon the plea of the statute of limitations.”

To the giving of this last instruction the plaintiff by counsel objected, but the court overruled the objection and gave the same, and a'bill of exceptions was taken by the plaintiff. A bill of exceptions was also taken to the refusal of the court to grant a new trial to the plaintiff; and this bill of exceptions set out all the evidence given on the trial. It proved the facts above stated; and in addition thereto it was proved, that W. W. VanWinkle both as the administrator of the principal P. G. VanWinkle and in his individual capacity verbally promised to pay the balance due on said bond of $734.57, but whether he made said promise before or after the 1st of May, 1881, when said bond became barred by the statute of limitations, that being ten years after it became due, was a subject of controversy, and the weight of the evidence shows beyond reasonable doubt, that such verbal promises were made by W. W. VanWinkle as administrator of P. G. VanWinkle prior to May 1, 1881, the promise being to pay the balance due on this bond out of the assets of the estate, when they came into his hands as administrator. But the weight of the evidence does not satisfactorily show, that any such verbal promise was made by W. W. Van Winkle to pay the balance due on this bond personally till after May 1, 1881. He never either as administrator of P. G. VanWinkle nor personally promised in writing to pay the balance due upon this bond.

Prom the judgment of the circuit court of Wood rendered on the 21st of December, 1885, the plaintiff has obtained a writ of error and supersedeas.

Opinion by

It has been urged, that this Court can not review the supposed errors of the court below in its rulings during the trial of this case; for, though the rulings were objected to when made, and the point saved, and a bill of exceptions taken showing these rulings during the term of the court, and a new trial was asked of the court below and refused during the term of the court, and such refusal was objected to in the court below, and though all this appears of record, as it must do to justify us in reconsidering these rulings according to the case of Danks v. Rodeheaver et al., 26 W. Va. 274,’ it is insistéd, as the entry on the record-book does not expressly state in terms, that the plaintiff objected to the refusal of the court below to award him a new trial, that according to this decision in 26 W. Va. these rulings of the court below during the trial can not be reviewed by this Court. There is nothing in this position. It is in effect and, in view of our decisions we might say, expressly noted on the record-book of the court below, that the plaintiff did object to the overruling of the court below of his motion for new a trial. The entry of December 31, 1885, is in these words : “ Be it remembered that upon the trial of this cause the plaintifl by counsel tendered three bills of exception to the rulings and decisions of the court, numbered respectively bios. 1, 2 and 3, and prays that the same may be signed, sealed and saved to him and made part oí the record in this action, which is accordingly done.” The bill of exceptions isTo. 2 referred to and thus made a part of the record expressly states, that “ the plaintiff moved the court to set aside the verdict and grant him a’ new trial, on the ground that the verdict was contrary to the law and the evidence;” and after setting out at length all the evidence it concludes by saying, that “said motion was overruled aud judgment was entered on said verdict, to which opinion of the court overruling said motion and entering up judgment on said verdict, the plaintiff by his counsel excepted and his exception is ordered to be made a part of the record in this case.” This is precisely the same as if this objection to the overruling of this motion for a new trial as well as everything else set out in these bills of exceptions had been formally spread ou the face of the record-boolc, and under the decision in Danks v. Rodeheaver we may properly review the rulings of the court below in the trial of this case.

Before considering these rulings we will consider briefly the pleadings in the case. After the return on the first summons had been quashed, and an alias summons issued, there was filed at the proper time a plea in abatement, which ou general demurrer the court held insufficient in law. The court obviously did not err in this, as this plea was, as I understand it, though very badly pleaded, that a legatee under the will of the defendant’s testator had under the statute (§8 ch. 87 Warth’s Am. Code.) required the defendant as administrator de bonis von with the will annexed of Peter G. "VanWinkle to make an ex parte settlement of his accounts as such personal representative, which proceedings to compel this settlement were pending, when this suit was brought, and were still pending. This obviously-furnished no ground for abating any suit against a personal representative. It can not possibly have any effect whatever on such suit. I confess, that I am unable to conceive, why the defendant’s counsel put in such a plea. It has not been insisted on as a good plea in this Court.

The defendant also filed a special plea, which amounted to this, that the plaintiff had not paid for the use of the defendant the money, which he claimed to have paid as the surety . of the defendant’s testator on a bond, till after ten years had elapsed, since said bond became due, that is, that when the plaintiff paid the money he claimed to have paid as the surety of the defendant’s testator, he did so voluntarily and not at the defendant’s instance or request or for his use, as the plaintiff, when he made this payment, could not have been enforced to do so, as the bond, on which he made this payment, could uot have been then enforced against him, being then barred by the statute of limitations, which provides that every action to recover money, which is founded upon any contract in writing, under seal executed on or after April 1, 1869, shall be brought, within ten years next after the right to bring the same shall have first accrued. Tins plea amounted to an allegation, that the payment, the. recovery of which was sought by the plaintiff, was a voluntary payment made by him neither at the request of the defendant nor for his use, as the bond, which, the plaintiff says, it was paid upon as the defendant’s security, was, when this payment was made, barred by the statute of limitations and could not have been enforced by any action against either the plaintiff or the defendant. Waiving any objection to the form of this special plea, this would clearly have been a good defence ; but still, if this special plea had been objected to by the plaintiff, it is clear, that the court ought not to have permitted it to be filed : for it is obvious, that the defence was in effect nothing but the plea of non assump-sit. It was simply a denial of any obligation on the defendant to pay the balance on the bond or of any consideration enuring to the defendant or his testator’s estate by the voluntary payment made by the plaintiff; and of course it denied, that there was any promise express or implied on the part of the defendant as administrator d. b. n. c. t. a. to repay him this money.

It may be, that, if the special plea admits, that the plaintiff once had a cause of action, but insists, that it has been discharged, such a special plea would be permitted to he filed, though such defence might be made under the general issue of non assumpsit; but the authorities are agreed, that ii the special plea is simply a denial, that the plaintift ever had any cause of action, such defence should be made under the general issue ot non assumpsit, and if the filing of such special plea is objected to by the plaintiff, the court ought not to allow it to be filed (Merchants’ and Mechanics’ Bank of Wheeling v. Evans & Dorsey, 9 W. Va. 373, pt. 4 of syll. and 382; Hale v. The West Virginia Oil and Oil Land Co., 10 W.Va. 229 and 236, pt. 2 of syll; First Nat'l Bank of Wells-hurg v. Kimberlands, 18 W. Va. 595-6). But in this case there was no objection to the filing of the special plea; it was replied to generally, after the court had rejected two special replications offered by the plaintiff. These replications could, it seems to me, have been properly rejected on account of the manner in which they were made. The replications, it seems to me, violated to such an extent the rules of- pleading, as would have justified the court in rejecting them. Instead of the ordinance of the city of Parkersburg, which created the trustees of the sinking fund of Parkers-burg, to whom the bond' was given, which the plaintiff claimed to have paid as security for the defendant’s testator, being properly pleaded,it being a material part of both these pleas, without stating the material contents of this ordinance in the first of these replications, it is simply said on this subject that ‘‘P. G. Van Winkle was duly appointed by the city of Parkersburg under and pursuant to an ordinance lawfully and duly passed by the mayor and coum.il of said city on the 20th day of October, 1855, now presented and shown to the court,” &c. Had the substance of this ordinance been set forth properly, we shall hereafter see, it would, when taken in connection with the other allegations in the first replication, have shown, that the plaintiff could not maintain the action. In the second replication this ordinance is still more defectively pleaded, it being referred to only as said ordinance named in the first replication. There were other serious objections to the manner of the pleading in each of these two replications, but we will waive them, it being unnecessary for us to decide, whether these errors in the mode of pleading rendered the replications so obscure and uncertain, as to justify the court in rejecting them.

But, if w.e look to these replications as explained by the subsequent evidence and arguments of counsel and treat them as properly made and as setting up the reply to the plea, which was relied upon, we can not see, that any injury has been sustained by the plaintiff by reason, oi their rejection by the court, even if the replications had been in law sufficient; for the plaintiff was permitted to prove all the facts stated in each of these replications on the trial before the jury, they being such facts, as, if they had constituted a sufficient replication to the defendant’s special plea, were clearly admissible on the issue joined under the plea of non assumpsit. The replications attempted to be made on the special plea, it would seem, were, that, though more than ten years had elapsed, when the money was paid by the plaintiff as security on said bond of the defendant testator, yet as the personal representative of this testator had within the ten years made a verbal promise to pay this bond, when assets ot his testator should come into his hands, this verbal promise made before the statute of limitations had barred the recovery of this bond kept the bond alive by removing the bar of' the .statute of limitations and continued the liability of the personal representative of the principal obligor in said bond, so that, when it was paid after the expiration of said ten years by the plaintiff, such payment was for the use of the defendant, the personal representative of the principal obligor, relieving him from an existing liability on said bond, which could have been enforced against him by suit, though more than fen years had elapsed since it became due, because this verbal promise made before the lapse of the ten years removed the bar of the statute ot limitations. The other ground attempted to be assumed in these replications was, that the principal obligor in this bond, the testator of the defendant, had given the bond to cover a balance in his hands due the trustees of said sinking fund, which as treasurer he held as a fiduciary and used tor his own purposes in violation of his trust; and therefore an action would lie after ten years had elapsed to enforce such liability, and it having been paid, though after the ten years had elapsed, by the plaintiff as the surety of the defendant’s testator in this bond, he had a right of action to recover back this money.

If we were to admit' these replications to have been sufficient in law, yet their rejection by the court did not prejudice the plaintiff, as all the facts alleged in them, admitting they were sufficient in law, could obviously have been just as properly proven under the issue joined on the plea of non assumpsit-, and under this plea it is obvious from the evidence, all of which is certified, that the plaintiff was permitted to introduce all his evidence without objection to establish the facts alleged in the replications. The whole argument of the counsel for the plaintiff in error before this Court, which is very elaborate, lias been an' effort to satisfy this Court, that all the facts alleged in these special replications were fully proven before the jury, and that because of those facts the plaintiff was entitled to recover. This Court in the First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 557, pt. 20 of Syll. decided “that this Court will presume, that the plaintiff is injured by the court’s permitting an improper plea to be filed, after objection is made to it, unless it affirmatively appears by the record, that no injury could have been sustained by the plaintiff.’’ To this we may add, that, if it does appear affirmatively by the record, that no injury could have been sustained by the plaintiff by the improper rejection of a replication, the court will not reverse a judgment simply because of the rejection of such replication. The presumption in such case would be, that the plaintiff had suffered injury, but this might be rebutted, if this Court had before it all the evidence, and it plainly appears, that under the pleadings actually in the case all the evidence was introduced properly, which could have been introduced, if the plaintiff’s replication had not been rejected. On this subject in delivering the opinion of the court in First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 596-7, I said :

“In the case of Hopkins v. Richardson, 9 Gratt. 488, it was decided that ‘the admission of an improper pleais error, and the Appellate Court will not inquire, whether, or not the plaintiff could be injured by its admission.’ Judge Lee says in that case: ‘LTor is it any answer to this objection, to say the plea can if bad do the plaintiff no harm by being in the record. That is an inquiry, upon which this Court should scarcely enter, nor should it speculate upon the effect of an improper plea filed in prejudice of the plaintiff’s rights. It it be insufficient and no answer to the plaintiff’s action, it should be rejected when objected to, nor should the plaintiff be put to an issue upon it.’ The views of Judge Lee were cited approvingly by Judge Haymond in delivering the opinion of this Court in Griffie v. McCoy, 8 W. Va. 206. In my judgment the refusal to reject a plea, which the court ought to reject, is a good ground for reversal, unless, when all the facts have been certified by the court below, it appears affirmatively to this Court, that the plaintiff could not have been injured by having to try his case on such improper plea.”

These remarks would obviously be equally applicable, where the plaintiff has been denied his right to file a proper replication. But in this case, if the replications tendered by the plaintiff'to the special plea were proper, it appears most satisfactorily from the record, that he could not have been injured by the improper rejection of them by the court; for not only was all the evidence, which the plaintiff would have introduced under them, assumingthom to have been sufficient in law, equally admissible on the general issue of non assump-sit, which had been filed, but the certificate of facts shows, that in point of fact all theplaintiff’s evidence'offered toprove every fact in these special replications was permitted to go before the jury without objection; but, as we will presently show, the plaintiff himself proved another fact before the jury, which necessarily made these special replications though fully proven no answer to the defendant’s plea of von assump-sit, and render a verdict against the plaintiff, such as the jury returned, inevitable, if the law was not utterly disregarded.

We will now consider, whether the plaintiff established his cause by the evidence before the jury. His action was to recover back money, which, he claims, he was compelled to pay as security on a bond dated November 3, 1870, for $734.57 payable on May 1, 1871, to the trustees of the sinking fund of Parkersburg, W. Ya. This bond was signed and sealed by P. Gr. YanWinkle, the testator of the defendant, and by W. W. YanWinkle, the plaintiff, as his security. The plaintiff by his own evidence proved, that the trustees of this sinking fund, when this bond was executed, were the mayor of the city of .Parkersburg, C. EL Shattuck, the defendant’s testator, P. G. VanWinkle, the principal in this bond, and W. 1ST. Chancellor. These trustees who were not a corporation but were a committee to manage the sinking fund of the city of Parkersburg so as to-pay off the subscriptions of the city to the North Western Virginia railroad, &c., consisting of the mayor of said city for the time being and two other persons appointed by the council of the city of Parkersburg, who were removable for cause by the council. The persons, who composed these trustees, were in this manner changed from time to time. It follows of course, that this bond must be legally regarded as executed to the defendant’s intestate, P. G. VanWinkle, C. II. Shattuck and W. N". Chancellor, the designation in it of them as trustees of the sinking fund of Parkersburg, W. Va., being legally nothing but desniptio personis.

Of course a bond could not be executed to the “trustees of the sinkiug fund of the city of Parkersburg W. Va.” unless we regard this as simply a mode of describing the persons, who when the bond was given, were then trustees. Por the trustees of the sinking fund of Parkersburg, W. Va., not being a corporation", it would be impossible to give a bond, in which the obligees should be not only the then trustees but should change from time to time, as these trustees were changed. Such a bond would be utterly void for uncertainty; for in every bond or other obligation there must of course be a certain obligee. There can of course be no contract, unless there be at least two certain parties to it. It is therefore impossible to give any legal effect to this bond, unless we regard the obligees in it as the individuals P. G. VanWinkle, C. II. Shattuck and W. N. Chancellor. So regarded it presents the case of a bond joint and several in form, in which the obligees are three individuals and the obligors are one of the obligees and another person. If this bond had been a joint bond instead of a joint and several bond, the cases are all agreed, that the obligors could have brought no suit at law upon it for the obvious reason, that all the obligees would have been necessarily plaintiffs and all the obligors defendants, and as one of the obligees was also an obligor, one of the plaintiffs would necessarily have been also a defendant, and in a common law suit a party never could be both a plaintifi aud defendant, and it has been held by highly respectable courts, that such a bond though joint and several was absolutely null and void as to all the obligors, the reasons for so holding-being, that there can in such suit be no description of the bond set out without showing, that it was a bond, in which one at least of the obligors was also an obligee, and no person can bind himself to paying money to himself;— secondly, because there can be no delivery' to an obligee in a bond by the obligee, nor can there be a delivery of a bond by one obligor to another obligor, and yet this must in such case occur, for a delivery is absolutely' necessary to make any bond valid. These reasons necessarily make such a bond invalid as to the person, who is both obligor and obligee; and, if so, it ought to be declared void in toto; as otherwise the intention of the parties would be violated; for in such a case as the one now before us the surety must have intended, that the principal should be also bound by the bond, and not that he, the surety, should alone be bound ; and as such a bond could not be enforced at all without such a construction, it should be taken to be void altogether. There is certainly much force in this view' of the legal effect of this bond; and such a view of it is sustained by decisions in the Supreme Court of North Carolina. (Justice v. Armstrong, 3 Dev. 284; Justice v. Dozier et al., 3 Dev. 287; Justice v. Bonner, 2 Dev. 289; Fitz v. Green, 3 Dev. 291).

But some of the courts while admitting, that one can not be both plaintiff and defendant in the same suit at law, whether others be associated with him or not, are yet disposed to regard the objection above stated as technical and not as substantial and radical defects; and if these technical objections are overcome in any way, they hold, that such a bond might be enforced in a common law suit, and that it ought not to be regarded as void in toto. Thus in Bradford v. Williams, 4 How. 576, the Supreme Court of the United States held, that, it by statute as in this State an assignee of such a bond, when it was a joint and several bond as in the ease before us, was allowed to bring a "suit at law in his own name, lie might enforce such a bond in a common law suit against the party, who was an obligor and not an obligee -in the bond (W. W. VanWinkle in the case before ns), even though it could not be enforced against the party, who was both obligor and obligee (P. G. Van Winkle in this ease), it being absolutely void as to him. When such suit was brought, none of the objections above named would be applicable; first, there would be no necessity for the bond to be described in this suit otherwise than as simply the obligation of W. W. VanWinkle. So that on the plea of the declaration it would not appear, that the obligor on the bond was also an obligee; secondly, according to the views of the Supreme Court the difficulty in reference to the obligor, in this ease P. G. Van Winkle, delivering the bond to himself was, when the suit was brought by an assignee in his own name, overcome in this way; W. W. VanWinkle was competent to deliver this bond to the obligee, P. G. VanWinkle was the only-obligor, who could not have delivered this bond, as he was also an obligee; but if the obligees had assigned the bond, P. G. VanWinkle joining in the assignment wonld be es-topped from setting out the objection for the purpose of invalidating his own act; and thus the inchoate and improper delivery as to him in the first instance arising out of his double relation as obligor and obligee became complete by his joining the assignment and delivering the bond to the plaintiff If this reasoning be regarded as sound, and the trustees of the sinking fund of Parkersburg, the obligees in this bond, had assigned the bond to a third person, snch third person might have brought a suit at law upon it against W. W. VanWinkle; and though the bond might have been void as to P. G. VanWinkle, it would when sued upon by an as-signee be held valid as to W. W. VanWinkle, and his intention in executing this bond would not be violated, as he must have intended to bind himself securely, when he signed the bond.

The Supreme Court in this case expressly waived the question, whether the obligees by a suit at law could have enforced this obligation, it being joint and several, against the obligor, who was not an obligee in the bond, that is, iu this case against W. W. VanWinkle, In the case of Daniels v. Crooks, 3 Dana 64, tlie court based its decisiou upon the assumption, that, where a bond with collateral condition was given by several obligors to several obligees, a portion of the condition being that the principal obligor would redeem the stock of the several obligees in a certain company at its par value per share, a suit at law might be brought against all the obligors in such bond, though some of them were also obligees, by any single obligee not also an obligor for the breach of trust portion of the condition above specified, in which each obligee had a separate interest, though such a suit could not be brought for a breach of any part of the condition, in which all the obligees were jointly interested.

It seems to me, that the soundness of these views expressed in this Kentucky case are very questionable; for long since it was held, that, though a contract be by its language made joint and se.oera.1 with several obligees for the payment of a sum to one of them only, all the obligees must join in the- suit at law on such contract, because by it but one thing is to be done, and all have a legal interest in the performance of that thing, although but one of the obligees has a beneficial interest. (Anderson v. Martindale, 1 East 497). ".But where as in the Kentucky case not one but a number of different things were to he performed, perhaps the law would be different. I do not deem it necessary to express any decisive opinion as to whether the law laid down in this Kentucky case be or be not good law.

The question under consideration was before the court of appeals of Virginia in the case of Booth v. Kinney, 18 Gratt. 560. The views taken by Judge Moncure, who delivered an opiniou in this case, were substantially these; that it is impossible for a man to be a debtor aud creditor at the same time. As applied to a single individual in his own right there is an inherent impossibility in the thing; and in such case the defect is substantial and radical. But a man either severally or jointly with others can he either debtor or creditor to himself and others. That is the case, whenever one partnership is indebted to another, and some one person is a partner in each partnership. The same principle applies to other cases; for in every case of the kind there is a quasi partnership between the parties associa d on either side, that is, be-tweeu the several obligors on the one side and the several obligees on the other side; but each of these partnerships is limited to the purposes of the contract. By the one quasi partnership the obligors are partners to receive the money, and by the other quasi partnership the obligees are partners to pay the money agreed to be paid. It is certainly true, that in the same suit at law aman can not be either a sole plaintiff 6r a joint plaintiff with others and at the same time be a sole defendant or a joint defendant with others. But this is a technical and not a substantial or radical defect. It applies to the remedy and not to the right; and may be obviated by resorting to a court of equity, in which a man can be a plaintiff and a defendant in the same suit, or by introducing a new party to the contract, in whose name the suit at law may be brought as in Bradford v. Williams, 4 How. N. S. 576, or by suing at law in such manner (if the form of the contract or the law will admit it) as not to exhibit the apparent inconsistency of making the same person plaintiff and defendant.

Judge Moncure expresses the opinion on p. 568, that when a bond is joint and several, and the obligee is one of the obligors, he might maintain an action at law in his own name against one of the other obligors, but such suit could not be maintained at law, if the bond was a joint bond and not a joint and several bond. It is admitted, that this view is opposed by the North Carolina cases before cited, which Judge Moncure disapproved not even admitting that the bond was a. nullity even as to the obligor who was also obligee ; and this principle was not, as thus broadly delivered by Judge Moncure, decided in the case before the Virginia court, which was the case of a forthcoming bond, and it was by virtue of the statute not only a joint and several obligation, but it was an obligation, which could, if it were given by them, be enforced against two by the statute, though at common law no joint and several obligations executed by them could be enforced against two of them but only against each of them severally or all of them jointly. Then by the statute a delivery of a forthcoming bond was to make it binding not to the creditor, the' obligee, but to the sheriff. And it was good according to Turnbulls ex’or v. Chaibornes, 3 Leigh 392, though made payable to a creditor, who was dead, when the bond was executed, and to whom, therefore it could not be delivered. But an ordinary bond executed to a dead person would clearly be void.

Judge Daniel did not go so far as Judge Moucure but confined his views strictly to the case before them, a motion on a forthcoming bond, in which the obligee, the creditor, was also one of three obligors. Such obligee, it was decided by the court, could sustain a motion against the other obli-gors. It was also held, that in such a case the obligor being one of the two securities in the bond could in a court of equity be enjoined from enforcing more than a moiety of the debt against the other security, he being entitled to contribution as against the creditor the other security. Judge Daniel in his opinion speaking oí the North Carolina cases said, the reasons given by theNorth Carolina supreme court for holding the bond an absolute nullity are mainly of a technical character and had, he thought, very little application to the case then before them, when the peculiar nature of a forthcoming. bond was considered and the remedies upon it together with the statutory provisions for the summary relief of securities against their principals and co-securities.

From this review of the authorities it would seem to be not satisfactorily settled, whether an ordinary bond for the payment of a specific sum by several obligors jointly and severally to several obligees, one of whom was also one of the obligors, is a bond voidwi tolo, or whether the defect in such a bond is to be regarded as a technical defect affecting the remedy and not as a substantial and radical defect affecting the validity of the bond itself; or whether the true view be, that such a defect in an ordinary bond for the payment of a sum of money, if the bond be joint, would be a substantial defect rendering the bond a nullity, but if the bond be a joint and several bond, the defect would be a substantial defect, so far as it purported to bind the obligor, who was also one of the obligees in the bond, but would be only a technical defect, so far as the bond purported to bind the other obligor, who was not an obligee also in the bond. Much might be said in advocacy of each of these views ; but I regard it as unnecessary in this case to determine the legal effect of such a joint and several bond generally, as, let it be what it way, the facts in this case, it does seem to nu, clearly establish, that this bond of $734.57 dated November 2, 1870, payable May 1, 1871, with interest from its date to the trustees of the sinking fund of Parkersburg, W. Va., and signed and sealed by P. G. VanWinkle as principal and W. W. VanWinkle as surety, and which purported to bind them jointly and severally, was from its inception a mere nullity and imposed upon neither ot the obligors any obligation either legal or equitable.

The facts proven show beyond controversy, that this bond though properly signed and sealed by each of the obligors was never in tact delivered by them to the obligees, who were neither the city of Parkersburg nor the trustees of the sinking fund of Parkersburg, as they never were a corporation. The obligees in this bond were three individuals P. Gf. Van-Winkle, W. N. Chancellor and O. II. Shattuck, and they were to hold this bond as trustees for the use and benefit of the city of Parkersburg and the North Western Virginia Railroad Company. P. G. VanWinkle, the principal obligor in this bond, was at the time, he and his surety W. W. Van Winkle executed it, not only one of the obligees in the bond i but after its execution it remained up to the time of his death some eighteen months under his exclusive control and in his possession, he being the treasurer ot the trustees ot the sinking fund of Parkersburg. This bond never was during the lifetime of P. G. VanWinkle, so far as the facts proven in this case show, ever in the custody of either W. N. Chancellor or C. H. Shattuck the joint obligees in this bond with P. G. VanWinkle. This bond having always remained undelivered in the possession of P. G. VanWinkle, the principal obligor in it, up to April 15, 1872, when he died, came into the possession oí W. W. VanWinkle, the other obligor in it, he having qualified as the administrator with the will annexed of P. G. VanWinkle. After this bond had thus coihe into the possession of W. W. VanWinkle, one of the obligors, he handed.it together with other assets of the trustees of the sinking fund of Parkersburg to W. N Chancellor, who was one of the obligees in this bond, but who' never had possession of it till after the death of P. G-VanWinkle, the principal obligor. It was handed to him then by W. W. VanWinkle not as a delivery of the bond to him as one of the obligees to give it efieet as a bond; but it was handed to him, simply because he W. 1ST. Chancellor had been appointed the treasurer of the trustees of the sinking fund of Parkersburg.

It thus clearly appears, that there never was any delivery of this bond by the obligors in it to any of the obligees so as to make it effectual as a bond, it' being unquestionable, that the delivery of an ordinary bond such as this is absolutely essential to give it any effect either in a court of law or equity. Without such delivery such a bond is an absolute nullity. This bond was therefore void in toto and utterly incapable of being enforced either in a court of law or equity. Ho doubt the trustees of the sinking fund of Parkersburg or the city of Parkersburg or the Horthwestern- Railroad Company by proper proceedings in a court of law or equity-might have compelled P. G. Van Winkle as the treasurer of the sinking fuud of Parkersburg to have accounted for any portion of this sinking fund remaining in his hand, as treasurer and unaccounted for by him, and his sureties on his official bond as treasurer would have been responsible for any such defect. But the responsibility of P. G. YauWinkle as treasurer of this sinking fund and his responsibility on this bond ot $734.57 are two entirely different things. If P. G. YanWinkle never could have been sued on this bond of $734.57, it is equally obvious, that his surety in this bond, W. W. YanWinkle, was never liable to be sued upon it, as it had never been delivered, and I'can not see, how he could have been subjected to any suit in a court of equity because of his having signed this bond as the surety of W. W. Yan-Winkl'e. If the fact, that he executed this bond, imposed on him no legal obligation, I can not see how a court of equity could upon any principles, which control such a court, have imposed any obligation on him, when he had neither incurred a legal obligation nor received any benefit or consideration in the transaction.

My conclusion therefore is, that there never was a time, when there was any obligation imposed on W. W. YanWin-kle, the plaintiff in this suit, either legal or equitable-, to pay any portion of this bond of $734.57; and when he settled it by giving his note and Thomas Murphy as his security on or about January 1,1884, he was clearly under no obligation of any sort legal or equitable to pay this bond, which had then been due for more than thirteen years.

It is contended however by the counsel for the plaintiff, that, if this bond was originally a nullity, still the plaintiff is entitled to recover in the action of assumpsit, because this sum of $306.06, which he settled with the trustees of the sinking fund by giving his individual bond with security to them, and to recover which this action was brought, may be regarded as a payment made to them by the plaintiff on the indebtedness of P. G. VanWinkle, their late treasurer, arising out of his default as treasurer in accounting for the funds, which came into his hands. The first difficulty in sustaining such a view is, that this suit was not brought by the plaintiff to recover money, which at the request of P. G. VanWinkle the plaintiff paid to the trustees of the sinking fund of Parkersburg, to be applied to what might be his default as treasurer of such sinking fund. The character of the suit, which being an action of assumpsit with the common counts in the declaration is indicated by the bill of particulars filed with it as well ashy the special count. The bill of particulars is for “amount paid as security for and on behalf of said decedent (P. G. VanWinkle) on his note” (should be bond) “for the sum of$734.57, dated November 2,1870, payable on or before the first day ot May next, 1871, to the trustees, of the sinking fund of Parkersburg. $806.06.” Under' such a bill it would have been clearly not admissible for the plaintiff to prove, that he had at P. G. VanWmkle’s request paid money for him to the trustees of the sinking fund of Parkersburg to satisfy his default as their treasurer.' But if the bill of particulars had shown, that this suit was brought to recover back money, which the plaintiff had paid to the trustees of the sinking fund of Parkersburg to satisfy the default of P. G. VanWinkle as their treasurer, still the evidence would have failed to sustain such suit, as P. G. Van Winkle never made such a request of the plaintiff; and though, when the plaintiff made the payment to these trustees, for‘which this suit is brought, the personal representative of P. G. VanWinkle may have still been bound for any breach of his trust as treasurer of such sinking fund despite the lapse of time, yet it was a mere voluntary payment on the plaintiffs part made without any request either verbal or written by P. (1. Van Winkle. The plaintiff’s counsel argues, that such a request was made by P. G. VanWinkle, because these minutes of the trustees of the sinking fund of Park-ersburg of November 2, 1870, were proven and signed by P. G. VanWinkle, treasurer. This record is as follows:

“Mr. Chancellor, from the committee on investments, reported that the sum in hank, belonging wholly to the railroad-loan-fund, amounting to the sum of $734.57, had been loaned to P. G. VanWinkle, who with his surety, W. W. VanWinkle, had executed to the trustees of the sinking fund their single bill for the amount, dated on this day and payable on the first day of May next, with interest from date, which single bill the committee exhibited to the board.

“On notion, the board adjourned.

“C. H. Shattuck, President.

“P. G. VanWinkle, Treasurer.”

I am unable to see in this any such request. This entry does show, 'that the plaintiff, W. W. VanWinkle, did execute this bond of November 2, 1870, for this $734.57, and this was then the balanee in bank to the credit of the sinking fund. What was the balanee due from P. G. Van Winkle treasurer at his death eighteen months afterwards, in no way appears. But be it what it may, there was in this transaction uo request by P. G. VanWinkle, that this balance should be paid by the plaintiff, W. W. VanWinkle. What he did do was to request him to sign this bond of $734.57 as bis surety. But this bond, we have seen, was never delivered but remained in the hands of the principal obligor and under his control till his death, and it was a mere nullity. The case of Thompson v. Thompson, 5 W. Va. 190, is relied on by the plaintiffs counsel as sustaining his view, that in an action of assumpsit the plaintiff might recover in this case the money, which he paid as surety on this bond, by treating it as money paid on the default ot the principal in the bond P. G. Van Winkle as-treasurer of the sinking fund. But the case will not sustain him. In the first place there was in that cause an item in the bill of particulars specifying accurately, that the amount sued for was recovered by the defendant for the hire of plaintiffs slave which the court regarded as proved, though the form the transaction took ivas, that the hire was not directly collected as hire, but that the defendant’s intestate as agent of the plaintiff first hired out the slave and took the bond payable to himself instead of to his principal, and after the death of the agent his administrator collected this bond knowing, that it was for the hire of one of the plaintiff’s slaves, and accounted for it in his settlement as such administrator. When he collected this money, he knew that it was for the hire of the plaintiff’s slave, and that the amount ot this collection did not belong equitably to him as administrator of this agent, who had taken improperly the bond to himself. The court held, that this hire of this negro of the plaintiff collected by the defendant as the administrator of the plaintiff’s agent on this bond for this hire to him payable improperly to this agent, and which hire the estate of the agent got the benefit of, could be recovered in an action of assumpsit by the plaintiff; and this decision seems to me to have been right; for in an action of assumpsit I may recover mouey in your possession which ex equo et bono belongs to me. But this case in no way resembles the one before us. If it were true, as claimed by the counsel of the plaintiff, that this bond of $784.57 was originally binding and that the administrator of the principal obligor, P. T. VanWinkle, before it became barred by the lapse of ten years, after it became due, prevented the statute of limitations from becoming a bar by a verbal promise to pay this bond out of the assets of the estate of the principal obligor, this verbal promise might not have prevented, it seems to me, W. W. VanWinkle from successfully resisting the enforcement of of this bond against him in January, 1884, by relying on the statute of limitations, even had he been originally bound legally to pay the bond.

The question, whether the enforcement of this bond, assuming that it was originally a valid obligation, was barred by the statute of limitations on January 1, 1884, when paid by the plaintiff in this action, has been elaborately argued, it being contended by the counsel for the plaintiff, that the statute of limitations did not bar this claim, first because it was a trust-fund in the hands of P. G. VanWinkle as treasurer ot the trustees of the sinking fund of Parkersburg, and secondly because the personal representative of fhe pi’incipal obligor, when this debt was untouched by the statute of limitations ” promised to pay this debt verbally out of' the assets of the estate when received. And that, it is claimed, is the law despite the provision in our Code, “ that no acknowledgment or promise by a personal representative shall charge the estate in any ease, in which but for such acknowledgment or promise the estate could have been protected by the plea of the statute of limitations,” and the other provision that “ If any personal representative shall pay any debt, the recovery of which could have beon prevented by reason of lapse of time or otherwise, knowing the facts by which the same could have been prevented, no credit shall be given him therefor.” 2 Kelly’s Stat. eh. 119 § 9 and eh. 92 § 6.

I have not deemed it necessary or proper to express any opinion on these questions, because according to the views, which I take of this case, they are not involved in the case before us; and for the like reason I deem it unnecessary to express any opinion as to whether the instruction given by the court below to the jury was or was not correct. It is clear, that, if the views, which T have expressed, be correct, the instruction given by the court to the jury could not possibly have prejudiced the plaintiff, who proved by his own oath, that he was not entitled to recover in this action, as the amount, which he claimed, that he had paid as surety on behalf of the decedent P. G. Van Winkle on this bond of $784.57 payable to the trustees of the sinking fund of Parkersburg, was not paid as such security but was paid by him voluntarily, when he was under no obligation legal or equitable to pay the same. The court below committed no error, which could have been prejudicial to the plaintiff, and upon the testimony introduced by him before the jury upon a demurrer to it by the defendant the court must have rendered the judgment, which it did, that the defendant recover of the .plaintiff his costs about his defence expended.

The judgment of the circuit court of December 21, 1885, must be affirmed ; and the defendant in error must recover of the plaintiff in error his costs-in this Court expended and $80.00 damages.

Abtirmed.