Joseph Story

“ It is sufficient, that in the event the judgment is consistent with the general principles of the action. If a nolle prosequi may be entered after verdict, and before judgment, without discharging the other party, there is no good reason why it may not be done after judgment, when there has been no proceeding which binds the plaintiff to consummate a judgment against the party whom he wishes to dismiss. In each case the judgment upon the whole record is consistent with the writ. ”

“ If, therefore, the present suit had been brought against the four sureties only, and they had omitted to take the exception by a plea in abatement, the judgment in this case would have been unimpeachable. Is the legal predicament of the plaintiffs changed, by having sued all the parties, and subsequently, entered a nolle prosequi, against one of the obligors? If not in general, then, is there any legal difference, where the party in whose favour the nolle prosequi is entered, is not a surety, but a principal in the bond? ”

“ Now, the general reasoning comes very close to the case at bar; for here the bond is several, as well as joint, and an action might have been maintained severally against the defendants; and what is not immaterial to be considered, all the parties were retained, who had joined in their pleas, and between whom there existed a right of mutual contribution. Even in the case of bankruptcy, the practice is, in England, to require all the joint contractors to be sued, as is proved by the case of Bevil vs. Wood, (2 Maul & Selw. 23,) which makes it really less strong than a joint and several contract. ”

“ If the plaintiff may, in any case, recover a judgment against one on a joint action against two, who sever in their pleadings, it is wholly immaterial to the regularity and effect of that judgment, in what stage of the cause the suit has ceased to be prosecuted against the other. ”

“ When the legislature intends to restrict the capital stock of a bank, or to require any portion of stock or stockholders to be indispensable for its legal existence and operations, it is not uncommon to incorporate such a restriction into the charter. ”

“ The cases put are strong, but they demonstrate the principle only in a more forcible manner Every act of fraud-every known departure from duty, by the board, in connivance with the Cashier, for the plain purpose of sacrificing the interest of the stockholders, though less reprehensible in morals, or less pernicious in its effects, than the cases supposed, would still be an excess of power, from its illegality-and, as such, void, as an authority to protect the Cashier, in his wrongful compliance. Now, the very form of these pleas, sets up the wrong and connivance of the board as a justification ”

“ The officers of the bank are held out to the public as having authority to act, according to the general usage, practice, and course of their business; and their acts within the scope of such usage, practice, and course of business, would, in general, bind the bank in favour of third persons possessing no other knowledge. ”

“ The pleas are also insufficient, as, although collusion is set up, there is no certainty in the charge or allegation of the persons concerned in it, or the place of the same. The whole purpose of the law is, to limit the amount of trading by the Bank; and it is not a fair construction of the Act of Incorporation, to interpret the terms 'may consist' into 'must consist.' The company went into existence in 1812, and the Cashier was appointed in 1817, after many successive years of business by the Bank, which could not be affected by the proceedings of 1812. ”

“ It is conceded, that if the instructions given on the prayer of the plaintiffs were correct, as to the issues on the third and fourth pleas, the qualifications annexed to them by the Court in their applications to the other issues, were perfectly proper.
The first instruction is, in substance, that if Minor, upon his leaving the bank, failed to pay over or to account to the bank for any portion of the moneys of the bank, received by him as Cashier; then the jury may, and ought to infer that the moneys so unaccounted for, were wilfully wasted by Minor, or applied to his own use ”

“ The bond of the Cashier must be construed to cover all defaults in duty, which are annexed to the office from time to time, by those who are authorized to control the affairs of the bank; and sureties are presumed to enter into the contract, with reference to the rights and authorities of the President and Directors, under the charter and by-laws. ”

“ At all events, we cannot perceive any clear legislative intention to make the subscription of the whole capital stock, a condition if not an ample, at least of the bank, and unless it is so made by the charter, the matter of the plea falls, and cannot sustain the defence. ”

“ The reason is, that the law requires every issue to be founded upon some certain point, that the parties may come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters. A covenant or condition for general performance, is broken by any single omission of duty, and no inconvenience can arise from stating the particular breach with suitable certainty. ”

“ The demurrers to the first and second pleas, were not on the ground of an admission of the facts, but the pleas were considered invalid. It was not obligatory on the Bank, that the capital should be 500,000 dollars, as the expression that it 'may' consist of 500,000 dollars, authorizes it to be less, if it shall be deemed proper; and even admitting the collusion charged, as to the creation of a false capital, to the amount of 180,000 dollars, the remaining capital of 320,000 dollars was sufficient, under the charter. ”

“ It is true, that in a declaration upon a covenant for general performance of duty, if no breach be assigned, or a breach which is bad, as not being in point of law within the scope of the covenant, the defect is fatal, even after verdict. Com. Dig. Plead., p. 14. But that is not the present case. Here the declaration does assign a good breach, by the non-payment of the penal sum stated in the bond. The defendants disclose the condition of the bond upon oyer, and set up a general performance of it ”

“ It shall be the duty of every other officer, clerk, and servant of the Bank, to do and perform all other duties, that may, from time to time, be required of them respectively, by the President and Cashier ”

“ We are of opinion, that where the defendants sever in their pleadings, a nolle prosequi ought to be allowed. It is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matter of form, not absolutely subjected to authority, may well yield to the substantial purposes of justice. ”

“ In America, the cases have gone a step further. In Hartness vs. Thompson, (5 John. R. 160,) where an action was brought against three, upon a joint and several promissory note, and there was a joint plea of non assumpsit, and the infancy of the defendants, that was set up at the trial; it was held no ground for a nonsuit; but the plaintiff upon a verdict found in his favour against the other two defendants, might enter a nolle prosequi, as to the infant, and take judgment upon the verdict against the others. ”

“ These cases were distinguishable from that in 1 Wilson's R. 89, in the fact, that the plea went, not only in personal discharge, but proceeded upon a matter which established an original defect in the joint contract; whereas the plea of bankruptcy was for matter arising afterwards. The distinction was not thought to be sound. Indeed, the Court seem to have considered the question rather as a matter of practice, to be decided upon convenience and policy, than as matter of principle. ”

“ If the duties are performed negligently and unskilfully-if they are violated, from want of capacity or want of care, they can never be said to be 'well and truly executed.' The operations of a bank, require diligence, with fitness and capacity, as well as honesty, in its Cashier ”

“ In some cases it was considered in the nature of a retraxit, operating as a full release and discharge of the action, and, of course, as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agreement not to proceed further in that suit, as to the particular person, or cause of action, to which it was applied. And this latter doctrine has been constantly adhered to, in modern times, and constitutes the received law. ”

“ Without question, such a construction is proper, in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object of the legislature in the enactment. ”

“ The obligors in the bond were not thereupon estopped, as the bond was given to supposed or fictitious persons, and not to an existing corporation; and there was no one in esse to take the bond. An estoppal cannot be alleged against an Act of Parliament. 1 Chitty's Pleadings, 435. Comyn's Dig. Abatement, 16. 3 Instructor Clericalis, 89. Story's Pleadings, 24.
Dealing with a pretended corporation, does not preclude a party from denying its existence; it must have existed de jure. It is no objection to the matter in the first and second pleas, that they are not pleaded in bar ”

“ If a judgment could not be obtained against four obligors, on a bond given by five, in a suit so institued, it cannot be obtained by the entry of a nolle prosequi against one. 1 Saunders, 207. 1 Chitty on Plead., 32. 38. 546. 5 Espinasse's Nisi Prius Cases, 47. Jeffray vs. Frebain-Chandler vs. Parks et al. 3 Esp. 76. The cases which impugn the doctrine contended for, are Noke vs. Ingraham, 1 Wilson, 89. 5 Johnson's Reports, 160.
If the parties to a joint and several bond are joined in an action, they never can be separated ”