
    George R. Bowdoin, Jeremiah Larocque, and others v. Thomas J. Colman and James McGregor, Jr.
    An assignment by a defendant, who prevails in an action of claim and delivery, of the judgment recovered by him, and all moneys to be obtained by means thereof, or by any proceedings to be had thereon, transfers to the assignee any undertaking executed in the action upon requisition made for the delivery of the property to plaintiff; and the assignees may maintain an action upon such undertaking.
    
      Where, in action upon an undertaking given on the part of plaintiff in an action of claim and delivery, by an assignee of defendants, the undertaking is produced upon the trial, a delivery of it to the promisee pursuant to section 423 of the Code may be presumed.
    Upon appeal to the General Term, the court may treat the pleadings as having been amended so as to conform to the facts proved, in any respect in which the court ought clearly to allow an amendment upon application at Special Term.
    Tn an action brought upon an undertaking given upon a requisition in an action of claim and delivery by assignees of only a portion of the original promisees, there is a defect of parties; all the promisees should be represented. But the objection to such defect is taken too late, if raised for the first time upon appeal from a judgment upon a verdict for plaintiffs.
    (Before Oakley, Ch. J., Hoffman and Slosson, J.J.)
    General Term,
    October, 1856.
    Appeal from a judgment entered upon a verdict in favor of the plaintiffs.
    The complaint set forth, that on the 3d of June, 1850, at the city of New York, the defendants executed their certain undertaking in a certain action in the Superior Court, wherein John H. Keyser was plaintiff, and William H. Harbeck, John H. Harbeck, Samuel Ward, Rodman M. Price, and Louis Dietz were defendants, in the following words and figures :—
    “Superior Court oe the City op New York.
    “ City and County of New York.
    
    John H. Keyser v. William H. Harbeck, John H. Harbeck, Samuel Ward, Rodman M. Price, and Louis Dietz. Undertaking of plaintiff’s sureties on claim and delivery of personal property-
    “Whereas the plaintiff in this action has made an affidavit, that the defendants therein wrongfully detain certain personal property in the said affidavit mentioned, of the value of eight thousand and fifty dollars, and the plaintiff claims the immediate delivery of such property as provided for in the second chapter of the seventh title of the second part of the Code of Procedure;
    “ Now, therefore, and in consideration of the taking of the said property, or any part thereof, by the sheriff of the city and county of New York, by virtue of the said affidavit and of the requisition thereupon endorsed, we, the undersigned James McGregor, Jr., of the city of Hew York, patentee, and Thomas J. Colman, of the same place, broker, do hereby undertake and become bound to the defendants in the sum of sixteen thousand one hundred •dollars,' for the prosecution of the action of the plaintiff, in the Superior Court of the city of Hew York, against the defendants for wrongfully detaining the said property, for the return to the defendants of the said property, or so much thereof as shall be taken by virtue of the said affidavit and requisition thereupon endorsed, if a return thereof shall be adjudged, and for the payment to them of such sum as may for any cause be recovered against the plaintiff in this action.
    “Dated Hew York, 3d June, 1850.
    (Signed) “ T. J. Colman,
    “ James McGregor, Jr.”
    The defendant Dietz was not served with a summons, and never appeared in that action.
    The firm of Harbeck & Co., appeared and put in a separate defence ; and-the same was done by Ward & Price. A verdict was taken for the plaintiff Keyser, subject to the opinion of the court at General Term, and that court set aside the verdict and ordered judgment for the defendants. It was then adjudged “that the defendants William H. Harbeck and John H. Harbeck, recover against the plaintiff their costs and expenses, adjusted at the sum of $382.17; and that the defendants Ward and Price recover against the plaintiff their costs, adjusted at $395.30, and that the said defendants respectively have execution therefor.”
    It' was admitted, on the trial, that this action (of Keyser v. Hwrbeck, and others,) was the action in which the undertaking was executed. The undertaking was produced in evidence by the present plaintiff, and it was further admitted by the plaintiffs’ counsel, that an action had been brought upon it by William H. Harbeck and John Harbeck, who recovered a judgment. for $474.88 in March, 1855, against the defendants in this action, which judgment the defendant Colman had paid.
    In August, 1854, an execution was issued in favor of the original defendants, Ward & Price, against Keyser, for the amount of $395.30, the costs adjudged to them, and returned unsatisfied.
    
      On the 21st of March, 1855, Ward & Price executed an instrument of assignment to the present plaintiffs, reciting that they had recovered a judgment on the 17th of July, 1854, against John Keyser for the sum of $395.50, and assigning and transferring to them “ and their assigns the said judgment, and all sum and sums of money that may be had or claimed by means thereof, or on any proceedings to be had thereuponconstituting them lawful attorneys to sue out executions and take all lawful ways for the re • covery of money owing, or to become due on the said judgment; and, on payment, to acknowledge satisfaction or discharge of the same. When the plaintiff rested, the defendants’ counsel moved to dismiss the complaint on the grounds sufficiently stated in the opinion of the court. The motion was denied, and the counsel excepted; no testimony being given on the part of the defendant, Mr. Justice Slosson directed the jury to find a verdict for the plaintiffs. To this direction the defendants’ counsel excepted. The cause was now heard upon a case containing the evidence and exceptions.
    
      M Pierrepont, for the defendants, appellants.
    
      J. Larocque, for the plaintiffs.
   By the Court. Hoffman, J.

There are three questions involved in this case :

1st. Whether the right of Ward and Price to sue upon the undertaking passed to the plaintiffs in this action by the assignment of the 21st of March, 1855 ?

2d. As to the sufficiency of the complaint, and whether the alleged defect can now be taken advantage of?

3d. Whether Ward and Price could have sued the defendants upon the undertaking separately? This question involves, that of the effect of the action by John and William H. Harbeck.

I. We think it clear that Rodman and Price, having in fact a distinct judgment for a separate sum, with an award of execution in their favor separately, could assign, and have assigned, this right to the plaintiffs. As against Keyser, the benefit of the judgment passed to them, with every right to recover the demand from him by execution or supplementary proceedings. (Code, § 274.)

We think, also, that the assignment is sufficient to transfer any right which Ward and Price had under the undertaking, that provided for the payment of such sum as may for any cause be recovered against the plaintiff. The sum of $395.50 is adjudged to be paid to these defendants by the plaintiffs. The assignment transfers that debt which the parties have covenanted to pay. It is a sum of money claimed by means of the judgment assigned, although in form claimed upon the undertaking. When the debt is assigned, the security incidental to it, and given to meet the contingency of its accruing, must follow the debt. The principle is found in those cases which hold that the assignment of a debt secured by a mortgage, passes the mortgage, and in other authorities establishing a similar doctrine in other instances. (Curtis v. Tyler, 9 Paige, 432; 10 Smedes & Marshall, 631.)

We conclude, that if the undertaking had been executed to Ward and Price alone, the assignment of the judgment to the plaintiffs would have vested them with all rights under the undertaking.

II. The second question relates to the sufficiency of the complaint. It is objected, that there is no averment of the plaintiff’s title to the undertaking, or of their right to bring the action, no averment or proof of a consideration for the undertaking, no averment of a delivery to the assignors, and no averment of facts stated to show that the action in which the undertaking was given, was within the statute.

The decision of the Common Pleas in the case of Slack v. Heath (1 Abbott’s Pr. Rep. 334), which has been cited, is almost precisely in point, and would settle these questions against the defendants. Mr. Justice Woodruff, however, dissented. Ho proof had been given at the trial, but the case came up on a motion to dismiss the complaint, as not showing a good cause of action, which motion had been denied, and the jury directed to find for the plaintiff. The learned Judge who dissented, stated the question to be, “ Whether the Judge was warranted in charging the jury, that upon the admitted facts stated in the complaint, and without even the production of the alleged undertaking, the plaintiff was entitled to recover?” “It seems to me plain, that unless there be enough to show, on the complaint, that the undertaking was given and received under the 211th section of the Code, the plaintiff has failed to show a cause of action.” The defect was in not averring that the bond was taken in and for the prosecution of an action of replevin, now claim and delivery.

Without expressing an opinion upon the point as it was nakedly presented in Slack v. Heath, this case presents facts which may authorize a decision consistently with the dissenting opinion. The undertaking was produced at the trial by the plaintiffs; and here a section of the Code, not noticed in the argument, is of some moment. The 423d section directs that an undertaking in cases of claim and delivery, shall be delivered by the sheriff to the parties respectively for whose benefit they had undertaken. A delivery enjoined by law may be inferred. This meets one of the defendants’ points.

Again, it was admitted on the trial, that the action in which the undertaking was given, was the action of Keyser v. Harbeck and others; and the pleadings, proceedings, and judgment in that action are in evidence here, that that was an action of claim and delivery. The case, then, as made upon, the evidence combined with the complaint, answers the objection in point of fact, assuming it to have been a valid one upon demurrer. The 173d section of the Code appears, then, to apply, and to sanction an amendment so as to confirm the pleading to the proofs. We Cannot doubt that if the plaintiff had applied at the trial to amend his complaint by inserting an allegation, that the undertaking was given in an action of claim and delivery commenced under the 206th section of the Code, and was given pursuant to the 209th section, the Judge would have been bound to permit it. The question is, Whether, on appeal, the General Term may not order it or treat it as done ?

The 173d section of the Code provides that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by, etc., or when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved.

Raynor v. Clarke and Lawrence (7 Barb., 582), and Clark v. Daly (20 Barbour, 67), are instances in which the power of the General Term to amend was asserted and exercised.

In Bate v. Graham (1 Kernan, 137) the court says: “ If the complaint had been demurred to for not stating facts sufficient to constitute a cause of action, we do not see how it could have been sustained.” The defect was, that a creditor brought an action to set aside an alleged fraudulent sale of personal property by a testator, without averring that the executor refused to impeach or support it. The answer of the executor supplied the defect, insisting that the sale ought not to be set aside; and the Court of Appeals held, that the defect should be deemed supplied under the 173d section, on the ground that the court below should have permitted or ordered an amendment.

In Brown v. Colie (1 E. D. Smith’s Rep. 270) the Court of Common Pleas express the opinion that the General Term, as a mere appellate tribunal, ought not to order amendments of this nature, and this in a, case in which it thought that an application at Special Term, after a referee’s report, would have been successful ; and this we understand was its general rule.

The 148th section of the Code, indeed, permits an objection that the complaint does not state facts sufficient to constitute a cause of action, to be taken in some other way, and at some other state of the cause, than upon demurrer or answer; the omission so to take it is not a waiver. It might' have been taken formerly by motion in arrest of judgment. This proceeding is not now allowable in practice; but we will assume that it is an objection which may be taken on appeal from a judgment (7 Barbour, 582).

We may also notice the 172d section, by which, after the decision upon a demurrer, either at General or Special Term, the court may allow the party to amend upon terms.

The general tenor of the Code, undoubtedly, is, to consider, upon an appeal, the General Term as simply a revisory tribunal, to act upon the record or case as it finds it; and to affirm, reverse, or modify the judgment or order in the respect mentioned in the notice of appeal, and as to any or all the parties. It possesses, also, the additional power of reviewing any intermediate order involving the merits and affecting the judgment.

But the decision of the Court of Appeals seems to warrant this court, as it would that court, to consider the amendment suggested as in fact made, or to disregard the defect. If the counsel of the plaintiffs considers himself safe under that authority, he may take an affirmation of the judgment at once. We do not consider ourselves as warranted in reversing it upon the ground suggested. If the counsel should deem it prudent .to apply for an amendment at Special Term, he can do so, and have the affirmance of the judgment here suspended.

The next question is, Whether the plaintiffs can sue upon this undertaking without making the other obligees or promisees parties ? The leading cases upon this point, irrespective of the Code, are as follows:—Engs v. Donnithorne (2 Burr. 1190); Forsbie v. Park (12 Mees & W. 146); Knightly v. Watson (3 Ex. Rep. 716; Shepard’s Touchstone, by Preston, 166); Ehle v. Purdy (6 Wend. 629); Dean v. Hitchcock (2 Com. 388). See, also, the authorities cited in Platt on Covenants, 123, et seq. Lord Mansfield, in the case from Burrows, says, “ The language of severalty or joinder, and not the interest, is the test of the quality of the covenant quoad covenantors.” And the same rule governs as to covenantees. “ It has been held in a series of cases,” says Mr. Parsons, “ that the interest which the covenantees take by the covenant, quite irrespective of the words severalty and joinder, is the decisive test.” But the correct rule, as stated by Mr. Preston, is that by express words, indicative of the intention, a covenant may be joint, or joint and several, to or with the covenantors or covenantees, notwithstanding the interests are several. Where the words are ambiguous, they will be construed according to the interest.

In Knightly v. Watson (3 Ex. Rep. 716) Pollock, Baron, said: “ The rule is, that a covenant cannot be treated as joint or several at the option of the covenantee. If a covenant be so constructed as to be ambiguous, that is, so as to serve either the one view or the other, then it will be joint if the interest be joint, and it will be several if the interest be several. On the other hand, if it be in its ternas unmistakably joint, then, although the interest be several, all the parties must be joined in the action. So if the covenant be made clearly several, the action must be several, although the interest be joint. It is a question of construction. See also, Ehle v. Purdy (6 Wend. 629). In Pearce v. Hitchcock (2 Com. 388), upon an attachment under the absconding debtor act, the defendant executed to the plaintiffs, and Peter Y. Lane, William B, Guild, and Ziba N. Kitchen, (three other creditors who had come in under the attachment,) a bond in double the amount sworn to by all the attaching creditors, and conditioned to pay to each of the attaching creditors the amount justly due to him from said Condit and Peck; the declaration set 'forth the indebtedness of these parties to the plaintiffs, and concluded with the usual averments of the forfeiture of the bond, etc. On demurrer for non-joinder of all the attaching creditors, the Common Pleas, on the authority of Arnold v. Talmadge, (19 Wend. 527,) held the objection fatal. On appeal, Chief-Justice Jewett said, that at the common law the objection would be decisive. He states that the correct rule was laid down by Gibbs, Ch. J., in James v. Emery (5 Price, 533), with the qualification stated by Mr. Preston: “ That rule is, that a covenant will be construed to be joint or several according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint. I think that is the true distinction. In this case, although we can see from the recitals in the bond that the obligees had separate and distinct interests, yet it is expressly joint, and the words of it will not admit it to be construed as a several bond. Therefore, by the rule of the common law, the action could not be sustained, if all are living, in the names of any member of the obligees less than all.” He then proceeds to determine that the statute (2 R. S. 12, § 57) created an exception to the rule, and enabled the plaintiffs to sue for their separate interests. Arnold v. Talmadge is overruled.

Mr. Justice Bronson dissented as to this latter point, but repeated the rule as stated by the presiding Judge, with equal precision. The covenant will be construed to be joint or several according to the interest of the parties appearing on the face of the deed, if the words are capable of that construction;-but it cannot be construed to be several by reason of several interests, if it be expressly joint.”

I assume, therefore, that upon demurrer to this complaint, the objection would be good. The whole frame of the undertaking is a responsibility to the five defendants named in the title, without a word to import a separate interest, and to treat it as on its face a disjunctive liability, as facts might afterwards occur, would be contrary to sound rules of pleading.

But the objection is one of a non-joinder of proper parties, and admitting it to have been ground of arrest of judgment before the Code, yet sections 144, 147, 148, apply, and settle that it is too late now to take the objection, as it does not go either to the jurisdiction or to show the entire want of a cause of action.

The remaining point on the part of the defendants, is the effect of the judgment in favor of the Harbecks upon the undertaking, and payment of the amount recovered by them. This is set up in the answer of the defendant Colman as a bar.

If plead as a former judgment, the answer to its availability is, that it is not between the same parties, nor in point of fact for the same cause of action. That cause of action was separated by the judgment of the General Term, and made distinct for one sum in favor of the Harbecks, and for another in favor of the present plaintiffs.

Hor can it be set up as a payment or satisfaction, for the same reason. Another reply is, that had the action been brought in the names of all the promisees in the undertaking, and upon answer or evidence, all the facts now developed had been made out, the judgment could have been in favor of some of the plaintiffs, namely, those recovering, and against the others. (Code, § 274.) The result which would then have been reached is precisely the same as is attained in the present suit.

We consider that the judgment must be affirmed, with costs on the appeal, but the plaintiffs may apply as before suggested, if so advised.  