Claasen v. Shaw

[472] The opinion of the Court was delivered by Rogers, J. The eighteenth section of the act of the 20th of March 1810, authorizes a constable who levies an execution, issued from a justice of the peace, to take a bond, in the following, or like words, viz: We, A. B. and C. D., or either of us, are held, and firmly bound with E. F., constable, in the sum of---, upon condition that the said A. B. shall deliver unto E. F. aforesaid, the following goods and chattels-, on the-day of-, at the house of --, which is taken in execution at the s -it of G-. H. against A. B., or pay the amount of the said execution, with costs. Witness our hand and seals, &c. The bond is taken for the forthcoming of goods, on which the constable has previously levied, and is a bail bond, which it is intended shall be executed by the defendant, with surety, conditioned in the alternative, either for the delivery of the goods taken in execution, or for payment of the amount of the execution, with costs. Tne obligation, on which suit is brought, differs not only in form, but in substance, from the bond prescribed in the act. The obligation is given to the constable by a stranger, to which the defendant in the execution is no party, with condition to deliver property, other than the property levied, or (for in truth no levy was made) to satisfy the debt, interest and costs. These are substantial variances which avoid the instrument as a statutory obligation, the distinction being between a variance iri form and substance. The former does not avoid the bond, but the latter does, as has been held in repeated decisions. If any thing be added to the condition prescribed in the act, which is not legal, that which is inserted against the form of the act, avoids all the rest. Plowd. 66; 10 Rep. 100. But if a bond be taken, in a circumstance contrary to the provisions of the statute, that is only prescribed for the direction of the sheriff, as to take sureties, which is for his safety; or if any thing is required specially by the condition, that the act only imports, but does not literally require, such variations do not hurt. Beawfage’s Case, 10 Coke 100; Webb v. Cliffton, Cro. Eliz. 808; Blackbourn v. Michelbourn, Ibid. 852; Farmers’ Bank in Reading v. Boyer, 16 Serg. & Rawle 4. Being therefore void as a statutory obligation, the question is, is it good at common law? and we are of the opinion that it is, on the authority of Beawfage’s Case, 10 Rep. 99. A bond to pay money into court, at the return of a fieri facias, is good; for, although it be done by colour of office, and the condition is not according to the statute, yet it is valid, for the statute 23 Hen. 6, c. 9, extends only to bonds by or for prisoners. In Beawfage’s Case the doubt was, upon the general words of the act, that if the sheriffs, or any other officers, take any other obligation, in other form than is prescribed in the act, by colour of their offices, the bond shall be void. The court, however, held, upon full consideration, that since the statute 23 Hen. 6, upon a fieri facias delivered to the sheriff, he may take a bond from the defendant to pay the money into the court at the return [473] of the writ. And if he can take a bond from the defendant, there is no reason why he cannot take one'from a stranger for a similar purpose. Before the statute the sheriff was not obliged to admit a person to bail who was arrested on mesne process, unless he sued out a writ of mainprize, though he might have taken bail of his own accord. This arbitrary power in the sheriff, of admitting or refusing bail, produced great extortion and oppression, and hence the passage of the statute by which the sheriff, who arrests a person on mesne process, in a civil suit, is not only authorized, but obliged to take a bail bond, if sufficient surety is offered, otherwise he subjects himself to an action by the party aggrieved. It is obvious that a bond, taken for the payment of money, on a fieri fiadas, does not come within the mischief, nor is it within the purview of the statute. And, therefore, since the statute 23 Hen. 6, it was held in Beawfage’s Case, already cited, when & fieri facias is delivered to the sheriff, he may take a bond of the defendant, and, as before observed, of a stranger, to pay the money into court at the return of the writ; such bond is not within the statute 23 Hen. 6; for that statute, as is there held, extends only to such bonds, which any in his ward makes to the sheriff, but is good at common law. Here, the writ was directed to the constable, and although, by the requirements of the eleventh section of the act of the 20th of March 1810, the execution performs the double office of a fieri facias and ca. sa., yet it is only for want of sufficient distress, that the constable, under his writ, can take the body of the defendant into custody. In the absence of any averment, in the defendant’s plea to the contrary, we must intend that there were goods and chattels, on which a levy may have been made, sufficient to answer the plaintiff’s demand, and, of course, the defendant’s body was not liable to be taken in execution; and this brings it within the principle of Beawfage’s Case, already cited. The defendant avers in his plea, that the bond was taken for ease and favour, and this raised a doubt whether, on the authority of Sir John Lenthall v. Cooke, 1 Lev. 254, where it was held that the traverse for the ease and favour is the most material thing, the want of the traverse did not vitiate the plea. But that was a case were the defendant was a prisoner in execution, and on that ground it was ruled, that the traverse of the ease and favor was material. In answer to the argument urged at the bar, that the traverse was immaterial, the court say, that the traverse, for the ease and favour, is the most material thing, and it may well be intended to be taken for the better security of his imprisonment — for the prisoners of the king’s bond are so numerous, that the house cannot hold them, but they are permitted to lodge within the rules, and, therefore, there is good reason to take security for their true imprisonment, and constant usage has been, to take such obligations. It is obvious, therefore, when the defendant is in custody, that the intention of táking the bond becomes material, and, like every other material averment, must be traversed. Not so when the bond is taken on a fieri facias, for it is of no consequence [474] what the intention of the parties may be, for the bond is good notwithstanding; and hence, the averment that it was taken for ease and favor is immaterial, and there is no necessity to tender a traverse on an immaterial averment. Judgment affirmed.