Wright v. Keyes

Mr. Justice Trunkey delivered the opinion of the court, An action commenced by writ of foreign attachment, issued February 10th 1877, was pending, wherein D. M. Wright was plaintiff and S. S. Moses defendant. In the next month said defendant and D. J. Keyes, by an instrument signed and sealed, acknowledged themselves to be indebted to said D. M. Wright in the sum of $1,000, to be void on the condition that said defendant shall pay to said Wright the debt or damages, interest and cost that may be recovered against him in said foreign attachment. On the 14-tli of March, before a justice of the peace, Keyes acknowledged his signature and made affidavit that he was worth $1,000; the next day the bond was filed with the record in the attachment suit. That suit was duly prosecuted to trial, and judgment was recovered against the defendant, who has failed to pay it. When Keyes executed the writing he did so at the request of Moses, the principal, and said Moses, or the magistrate, took and handed it to the sheriff. That this instrument, on its face, is a complete bond, in a penal sum, conditioned to be void in case the principal obligor should pay to the obligee such sum as should be recovered in a specified suit, is too plain for argument. What difference can it make if it is in the form of a recognizance to procure the dissolution of a foreign attachment? It is concise and easily understood. If it be presumed that it was drawn and [570] executed for tlie purpose of such dissolution, what is there in the facts of this case to relieve the surety ? His undertaking is absolute for payment of the debt upon the defendant’s default; it would neither have been more nor less had he made it a debt of record, instead of an obligation under his hand and seal. Had it been a debt of record, under the terms of the statute relating to dissolution of foreign attachment, the defendant could have enforced the dissolution. He gave his bond, and if the property was released without objection by the plaintiff, there is no equity in his favor. But there is no evidence that the bond was given for the purpose of securing a dissolution or release of the property — evidence of that- was excluded, as well as evidence that the property was released — and rightly, for the plaintiff offered to make the proof. He had no such burden in the first instance. If the bond is prima facie valid, the burden of establishing a defence rests on the defendant. The plaintiff has not contended that a justice of the peace can take a bond in foreign attachment, but he contends that a mere voluntary affidavit by one of the obligers, in which he acknowledges his signature and states what his property is worth, may as well be made before a justice of the peace as any other officer. Such act has not the slightest effect upon the nature of the obligation. It would seem that the proof of delivery of the bond was ample. The surety sealed it, left it with the principal or in his control, without a word that anything farther was to be done to make it binding, and the obligee had right to infer that it was in the principal’s control for delivery. No statute or rule of law has been cited prohibiting the taking of security for a debt in which a suit is pending, whether commenced by foreign attachment or otherwise. It is one thing to compel a plaintiff to take security — to effect that, the law providing for such compulsion must be complied with ; it is another thing for a plaintiff to accept a security which is not in accord with the law that permits a defendant of right to enter security. A statute authorized a constable who had levied an execution to take a certain bond from the defendant, the constable took a bond which differed in form and substance from the bond described in the Act, and was therefore void as a statutory obligation ; it was held good at common law : Olaasen v. Shaw, 5 Watts 468. Where, upon a capias, the statute prohibited the constable receiving a bond or obligation, a stranger to the writ gave the constable a writing in these words: “ I agree that Joseph Watson shall answer the within capias on Saturday the 25th at one o’clock P.M., if not, I will pay the debt and costs of the within,” it was held that the obligation was valid if given to the plaintiff in the capias. The name of [571] the obligee was not in the writing, and it was ruled that the jury might determine whether the plaintiff was intended: Koons v. Seward, 8 Watts 388. See Respublica v. Le Caze, 1 Yeates 55. Where a defendant is entitled to stay of execution upon entering security duly approved, if the security be not approved as the law directs, the creditor may treat the recognizance as a nullity; but the creditor may expressly or impliedly acquiesce in the claim of the debtor for the stay, and after its expiration recover upon the recognizance : Stroop v. Gross, 1 W. & S. 139. We are of opinion that the bond was valid at common law, and that, upon the evidence as it stood, the plaintiff was entitled to recover. Judgment reversed and venire facias de novo awarded.