A party may, after an appeal has been discussed for informality,
if within five years, bring up the case again.
The plaintiffs united severally in a suit, claiming the return
of money paid by them on distinct promissory notes given to the
defendants. They are several contracts, having no connection with
each other. These parties cannot join their claims in the same
bill.
Several creditors may not unite in a suit to attach the effects
of an absent debtor. They may file their separate claims, and be
allowed payment out of the same fund, but they cannot unite in the
same original bill.
At an early day in the term, Mr. Coxe, as counsel for the
appellees, moved to dismiss the case, as he alleged it had been
already twice discussed by the Court,
32 U. S. 7 Pet.
220.
Mr. Swann and Mr. Neale opposed the motion.
The case was dismissed at a prior term of the Court for want of
an appeal bond. There had been but one appeal prior to the present,
which was entered in 1833. The counsel for the appellants are now
prepared to proceed with the argument.
It is not admitted that a previous irregular appeal prevents
another unless the five years allowed by law for an appeal have
expired.
The record of the former appeal was not filed in the time
required by the rules of the Court, and after it was dismissed, the
appellants went into the Circuit Court of the County of Alexandria
and prayed for this appeal, which was granted, and now all the
requisites of the law and of the rules of Court have been fully
complied with. While it is admitted that after an appeal, the
appellees, on the omission of the appellants to do so, may file the
record, have it opened, and pray to have
Page 33 U. S. 124
it dismissed and thus finally disposed of, and precluding a
second appeal, yet this has not been done, and the action of the
Court in the case, when formerly before it, has not such
effect.
The Court refused the motion. A party may, after an appeal has
been discussed for informality, if within five years, bring up the
case again.
The case came on afterwards for argument: Mr. Swann and Mr.
Neale for the appellants and Mr. Coxe for the appellees.
The Court gave no opinion on the questions of law submitted in
the argument, but dismissed the case for informality in the
institution of the suit.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The plaintiffs, with several other persons, had, previous to the
year 1804, associated with each other under the name of the Marine
Insurance Association of Alexandria for the purpose of making
insurances on vessels and cargoes against sea risks. On 26 June,
1804, James Wilson obtained an insurance on the
Governor
Strong on a voyage from Norfolk to Liverpool to the amount of
$10,000. The policy is inserted on the record. It is not a joint
contract made by the association as a company, but by each for
himself. Each subscribes the sum for which he becomes responsible.
James Wilson had purchased the
Governor Strong from
Alexander Henderson & Co., and appears to have endorsed their
notes in the Bank of the United States. After his death, his
representatives, in September or October, 1805, made a transfer of
the vessel to the bank, for the security of that debt.
Sometime after the vessel had sailed, intelligence was received
of injury sustained by the
Governor Strong, and Wilson
claimed from the insurers a considerable sum on that account,
informing them at the same time that the money belonged to the
bank. Although the insurers were not satisfied of their liability,
they agreed to advance their several notes, dated 25 May, 1805, to
the said Wilson, payable sixty days after date at the office of
discount and deposit, Washington. The
Page 33 U. S. 125
bill charges that these notes were advanced on condition that
the money should be returned to them by the bank, should it
afterwards appear that they were not liable for the partial loss
sustained by the
Governor Strong, and that this agreement
was communicated to the bank. These notes were passed to the bank
and paid by the several makers when due.
In a suit afterwards brought on the policy for the benefit of
the bank, it was determined that the underwriters were not liable
for the loss sustained by the
Governor Strong, after
which, application was made for the return of the money paid on the
notes given to Wilson, which the bank refused, alleging that the
money had been paid absolutely on account of the debts due from
Alexander Henderson & Co.
The charter of the bank having expired, and its affairs being
committed to trustees, the makers of the several notes which have
been stated united in this suit against the trustees. As they were
nonresidents of the district, their property was attached in the
hands of the debtors of the bank, who were also made
defendants.
James Davidson afterwards undertook to perform the decree of the
court, and the attachment was discharged. At a subsequent term,
Davidson was, by consent, made a defendant, and his answer was
received as an answer for the trustees.
He says that in January, 1806, the bank received promissory
notes from James Wilson, executed to the plaintiffs severally,
amounting to $2,124.04, to be placed, when paid, to the credit of
Alexander Henderson & Co., on account of a loss by the
underwriters. Should the underwriters not be liable, the notes were
to be returned if unpaid; if paid, the money was to be refunded.
These notes, not being paid, were returned. He admits that the
notes mentioned in the bill were deposited on 30 May, 1805, to go,
when paid, to the credit of Alexander Henderson & Co., but has
no recollection of any condition respecting their return. An
amended bill was filed in which the said Davidson was again
required to answer more precisely respecting the transaction -- to
say whether he was not, at the time, cashier of the office at
Washington; to state in what way the notes were deposited in bank
on 30 May, 1805; were they sent in a letter? If so, the defendant
is
Page 33 U. S. 126
required to produce it, or a copy of it, and the entry made on
the books of the bank in relation to the said notes.
The answer of Davidson refers to his former answer respecting
the notes deposited on 30 May, 1805, and says that he has no other
information than is there given. He does not recollect in what
manner the notes were transmitted, nor whether they were
accompanied by any letter.
"No such letter is now in his possession. No entry was made in
the books of the bank in relation to said notes, except that they
were to go, when paid, to the credit of Alexander Henderson &
Co., to whose credit such of them as were paid were carried."
The entry on the bank books is made an exhibit, and is as stated
in the answer of Davidson.
A correspondence which took place on this subject with the then
president of the office of the bank at Washington is contained in
the record, and some testimony was taken by the plaintiffs. The
letters and the depositions furnish strong presumptive evidence
that if the bank supposed the notes to be paid absolutely on
account of the debt due from Alexander Henderson & Co., the
makers supposed them to be paid conditionally, and that the money
was to be refunded should they not be held responsible for the
partial loss sustained by the governor Strong.
On a hearing, the bill was dismissed with costs and the
plaintiffs appealed to this Court.
Whatever might be the condition on which the plaintiffs
delivered their notes to Wilson, the bank cannot be affected by it
unless it was communicated to the office. The testimony that it was
communicated has great plausibility, but when it is recollected
that the deposit of January, 1806, might be confounded with that of
May, 1805, we are not satisfied that the testimony ought to
countervail the answer of the cashier and the entry on the books of
the bank. We are, however, relieved from the difficulty of deciding
on a doubtful fact by an objection taken by the appellees to the
action.
The plaintiffs who unite in this suit claim the return of money
paid by them severally on distinct promissory notes. They are
several contracts having no connection with each other. These
parties cannot, we think, join their claims in the same bill.
Page 33 U. S. 127
The appellants contend that several creditors may unite in a
suit to attach the effects of an absent debtor. We do not think so.
They may file their separate claims and be allowed payment out of
the same fund, but cannot unite in the same original bill.
The decree of the circuit court is
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Alexandria, and was argued
by counsel, on consideration whereof it is ordered and decreed by
this Court that the decree of the said circuit court in this cause
be and the same is hereby affirmed with costs.