Whitsett v. Womack

COLLIER, C. J. It is said to be a general rule, that a bond, whether required by statute or not, if entered into voluntarily, and for a valid consideration, and not repugnant to the letter or policy of the law, is good at common law. [2 J. J. Marsh. Rep. 418; 3 Id. 437-8; 1 Ala. Rep. N. S. 316; 3 Ala. Rep. 593.] In Sewall v. Franklin, et al. 2 Porter’s Rep. 493, this Court, after an extended review of the authorities, concluded, that “ bonds taken by civil officers, and in relation to judicial proceedings, though without the authority of our statutes, (like bonds between individuals under other circumstances,) if they appear to have been given on valid and sufficient consideration, such as is neither illegal or immoral, may be good as common law bonds.” The bond in that case did not conform to the statute, because it was payable to the plaintiff, instead of the sheriff, and although the Court was equally divided upon the question, whether it was operative, many adjudications were cited which maintained, that when such a bond is executed voluntarily, it is good at common law. See 1 Call’s Rep. 219; 1 Munf. Rep. 500; 5 Mass. Rep. 314; 2 Stew. Rep. 509. But see Purple v. Purple, 5 Pick. Rep. 226. Replevin, and other bonds/required by statute have frequently been adjudged to be valid common law obligations, though not executed in obedience to the legislative direction. [7 John. Rep. 554; 2 Bibb’s Rep. 199; 2 Litt. Rep. 306; 4 Id. 235; 3 Monr, Rep. 342; 4 Id. 225; 5 Mass. Rep. 314.] — 476 — A statute of Kentucky required that a bond for building a bridge should be made payable to the Commonwealth, but instead thereof, the Justices of the County Court were made the obligees. It was held, that as there was “no statutory provision making such a bond void,” and the subject matter was such as the parties had a right to contract about, the bond was valid. [2 J. J. Marsh. Rep. 473.] It is said that a bond taken by a sheriff when the constable alone has the right to execute the process to which it relates, is void. [3 J. J. Marsh. Rep. 181.] So is a bond given to an officer, in consideration of an act that hé has no legal authority to do. [3 Id. 621.] Oras an indemnity to an officer to induce him to perform a duty required of him by law. [5 Monr. Rep. 529.] Or to indemnify him for not returning an execution. [2 Bay’s Rep. 67.] But if it be given to a sheriff by one who claims the property levied on by him, to indemnify him for not selling, it is valid. [6 Litt. Rep. 273; 2 Pick. Rep. 285.] A bond taken of one in custody, by the officer who arrests him, is unlawful and void. [2 Chip. Rep. 11; 5 Mass. Rep. 541; 1 South. Rep. 319.] But a bond given for the prison liberties, though not strictly conformable to the statute, is not a bond for ease and favor, and may be good at common law. [8 Mass. Rep. 373; 3 Greenl. Rep. 156; 5 Id. 240.] If a statute require that a bond shall be taken in a certain prescribed form, and not otherwise, no recovery can be had thereon, if it vary from the statute, or contain more than the statute requires. [Gilpin’s Rep. 155-] But if the statute does not declare, that the bond shall not be taken in another form, a bond not conformable to the statute may be good by the commonlaw. [2 J. J. Marsh. Rep. 473; 4 Monr. Rep. 225; 4 Litt. Rep. 235.] Where the authority to take a bond is wholly derived from the statute, if the bond be in a larger sum than is required, or on conditions, and be not voluntarily given by the obligors, it is void. [7 Cranch’s Rep. 287; 3 Wash. C. C. Rep. 10.] And so also, is a bond exacted by an officer, when he has no authority. [11 Mass. Rep. 11; 15 Johns. Rep. 256; 2 J. J. Marsh. Rep. 418; 1 Leigh’s Rep. 485.] A bond variant from that prescribed by law, extorted from the principal obligor and his sureties, colore officii, it is said, cannot be enforced. [8 Greenl. Rep. 422; 5 Pet. Rep. 129.] — 477 — If part of the condition of a bond conform to the statute under which it was taken, and part does not, a recovery may be had for the breach of the former, where so much of the condition as is illegal is not malum in se. [Bates and Hines v. The Bank of Ala. 2 Ala. Rep. 484, 487; 4 Wash. C. C. Rep. 620: 2 Bailey’s Rep. 501; 7 Monr. Rep. 317; 2 Green’s Rep. 479.] And although a statute bond may not embrace every thing required to be inserted in the condition, yet judgment may be recovered to the extent of the breach of the condition. [7 Yerg. Rep. 17.] A bond to indemnify against an unlawful act or omission already past, it is said, is not unlawful. [1 Caine’s Rep. 440.] In Claasen v. Shaw, 5 Watts Rep. 468, it was determined that a bond given by a stranger to a constable, who held an execution against a third person, conditioned for payment of the debt, interest and costs of the execution, o,r the delivery of the property to satisfy the same, at a certain time and place, is not valid as a statutory obligation; but is good ,at common law. So where an act in relation to the prison limits was repealed, in March, 1821, and a bond to keep within the same was taken in November of the same year. The bond was payable to the creditor, as re-quh’ed by the repealed,statute, which the parties supposed was in force; and the question was whether the bond was valid. It was objected that the bond was void on the ground of ease 'and favor; but the Court said that the bond was payable to the creditor, and was never intended as a security to the officer. Further, the bond is hot void, because it restrains liberty, and is thus opposed to public policy. “ The principles of the common law give validity to the bond. Th'ere is no reason why the bond should not be good at common law, it having been voluntarily entered into for the benefit of the principal, to procure a relaxation of a lawful imprisonment, to which he could not be entitled without giving bond, and the bond being accepted by the obligee, he is entitled to judgment. [Winthrop v. Dockendorff, 3 Greenl. Rep. 156.] When a sheriff has duly seized goods under a writ of fieri fa-cias, he has such a special property in them as to enable him to maintain trespass or trover against any person who may take them out of his possession; for he is answerable to the plaintiff for the value of the goods, and the defendant is discharged from the judgment, and all further execution, if the goods levied on — 478 — amount to the debt, although the sheriff does not satisfy the plaintiff. [Watson’s Sheriff 191.] Further, it is said, that “the sheriff may, if he please, take a bond conditioned to pay the money into Court, on the return of afi.ja. or to save him harmless against a false return to a fi.fa. — such bonds not being void for ease and favor, under the statute of 23 Hen. VI. c. 9 ; that statute extends “ only to bonds given by, or for prisoners in custody on mesne process. But the sheriff, for releasing the defendant’s goods, on taking a bond, would be liable to the plaintiff in an action for a false return, and the sheriff must seek his remedy over upon the bond.” [Watson’s Sheriff, 190.] By the act of 1824, (Clay’s Dig. 537-8,) proceedings in the nature of a libel in admiralty ai’e given for the collection of certain debts against steamboats, &c. And it is enacted, that if the master, &c. of any boat, &c. shall enter into stipulation or bond, with sufficient sureties to answer all the demands, &c. against the boat, &c. the same shall be released and discharged from such lien. Further, the clerk of the Court in which the libel is filed, shall take the bond, or stipulation, and it shall not be void for want of form, but shall be proceeded on and recovered according to the plain intent and meaning thereof. A subsequent statute, passed avowedly for the security of « merchants, mechanics and others furnishing materials or stores to steamboats, or other water craft, in th.e State of Alabama,” enacts that the claimants of a boat which has been seized, “ may replevy by entering into bond with sufficient surety to pay such judgment as shall be rendered on the libel.” [Clay’s Dig. 139, § 23.] We have stated these principles, and cited some of the numerous authorities by which they are supported, that it might be seen how closely the law adheres to the dictates of reason and morality in carrying out the intentions of parties as evidenced by their contracts. If' these citations are to be recognized as correctly ascertaining the law, it is then perfectly clear, that the bond is not either void or voidable, because it does not show that the obligors, or some one or more of them were claimants of the boat, or otherwise interested in the litigation respecting it; or because it was not made payable to the libellants, instead of the officer who executed the order of seizure. It is clearly the duty of the sheriff to provide for the safe keeping of goods which he — 479 — may seize under legal process. The statutes prescribe one mode in which this may be done, and where the appropriate bond with surety is executed, the officer is relieved from the obligation to keep it. But it by no means follows, that these statutes were intended to control the sheriff beyond what their terms indicate; and if the bond they respectively require is not proposed to be executed, he may provide some other custody. Thus he may retain it under his continued supervision, or if he think proper, he may commit it to other hands, upon the bailee’s undertaking, either with or without bond, that it shall be returned at some definite time, or upon the happening of some event in the future; and such an engagement will be obligatory upon the bailee, and his sureties. True, a bond executed otherwise than as the statute directs, would not discharge the sheriff from liability to the plaintiff, nor would the plaintiff be required to institute proceedings thereon. Yet if the bond was made payable to the plaintiff, it is difficult to conceive of a well founded objection to the maintenance of an action thereon,'in the event of a breach. Such a suit would be the adoption of the act of the sheriff, and operate in law, (at least between the obligor and obligee,) as if the sheriff had acted under an authority previously granted by the latter; and thus the obligor would be estopped from insisting upon the informality of the bond, or the irregularity of the sheriff’s proceedings. It is not perhaps formally alledged, in some one or more of the counts that set out the condition of the bond, that the obligee was a sheriff, or other officer, authorized by process to seize the boat; yet this substantially appears by the undertaking in the condition, that the obligors should deliver ft to his successor in the office of sheriff &c. But would the bond be bad because it did not disclose the circumstances under which it was executed, or the authority of the obligee for taking it 1 Would not all presumptions be indulged in favor of its validity, and if it is obnoxious to legal objections, or is sustained by no sufficient consideration, does not the onus of making this, apparent, devolve upon the obligors ? These questions we think’ must be answered affirmatively. True, the condition of the bond does not stipulate «to pay such judgment as shall be rendered on the libel,” but merely for the return of the boat to the obligee and his successors in the sheriffalty. We should not suppose, if it were not so alledged in one count, — 480 — that the bond was intended to conform to the statute; but be this as it may, we have seen that it imposes a common law obligation, if it was voluntarily entered into, and is at least a good security for the sheriff, against the obligors. Considered as the undertaking of the custodian of the sheriff, the condition is entirely legal and it would seem most appropriate. It does not appear from the bond, or the pleadings, that the boat was bailed with the understanding that it was to be navigated. In one or more of the counts, it is stated in substance, that the seizure prevented it from being thus used, and by committing it to the possession of the obligors, it was allowed to continue and complete its passage to the point of destination; but it is not alledged that this was a matter of stipulation between the sheriff, or that it in any manner entered into the contract of the parties. Suppose however, that the obligee did assent to the employment of the boat, can the obligors, after having availed themselves of the benefit derivable from the contract, be permitted to alledge its invalidity ? Or could there be any legal objoction to the navigation of the boat, if the purpose was to go to some point not very remote, where its master had undertaken to deliver goods, and there unlade? A contract contemplating such an employment, it seems to us, would oppose no rule of policy or law, and could not be prejudicial to either of the parties to the suit. There was nothing said by us, when this case was previously here, that is decisive of any point now raised. True, we remarked, that “ the bond taken by the sheriff in this case, is not the one prescribed by the statute, and therefore the lien was not discharged by it; but continued in full force, and the steamboat is to be considered as yet within the jurisdiction.” This is nothing more than a declaration, that as the bond does not conform to the statute, it did not release the boat from the right which the plaintiffs acquired by the seizure, to have the decree in their favor satisfied by its sale; or in other words, that the bond in question did not, in virtue of the statute, inure to the plaintiffs, and was not a substitute for the boat. This proposition is not now controverted, and is entirely consistent with the idea, that the bond is a good common law obligation. Does it follow that because the lien upon the boat was not discharged, that the bond was gratuitously given ? We think not. The sheriff may have giv — 481 — en some other equivalent for the engagement which the obligors took upon themselves. Such would be the legal intendment, and the reverse cannot be presumed in the absence of a plea and proof drawing the consideration in question. In Cromwell v. Grundale, 12 Mod. Rep. 194, it was held, that where the words of a bond are not sufficiently explicit, or where their meaning if construed literally would be nonsense, we must endeavor to discover the intent of the obligor, and be guided thereby. In giving a construction to a bond, the Court will look , to the intention of the parties at the time it was executed, and expound it as the law then was. [Union Bank v. Ridgely, 1 Har. & G. Rep. 324.] And the condition of the bond ought to be so construed, by rejecting insensible words, as to fulfil the intent of the parties. [Gully v. Gully, 1 Hawk’s Rep. 20.] The Court may depart from the letter of the condition of a bond, to carry into effect the intention of the parties. [Cook v. Graham, 3 Cranch’s Rep. 229; Minor, et al. v. The Mechanics’ Bank of Alexandria, 1 Peter’s Rep. 46.] In Pennyman v. Barrymore, 18 Martin’s Rep. 494, it was determined, that the words “ fourteen hundred and ten,” in a bond, may be understood to mean « fourteen hundred and ten dollars.” The cases here cited, rest upon a principle so reasonable, and well founded that their authority cannot be questioned ; applying them to the condition of the bond declared on, and there can be no difficulty in adjusting its meaning. The undertaking of the obligors as gathered from the terms employed, is, that if the li-bellants shall recover a judgment, or decree in the suit they had-instituted against the steamboat Triumph, her tackle, &c., then they would return her, with tackle, &c. to the obligee, or his successors in office, at the port of Gainesville, where she then lay —demand being made by the obligee, or his.successor in office, or the deputy of either of them, having an execution in his hands issued upon the judgment or decree. This exposition of the con-ditiop, seems to us perfectly clear, without doing the least violence to the language employed. It was not contemplated that a demand should be made at any particular point; and the form of the execution is wholly immaterial. If it was one that warranted the action of the sheriff against the boat, its sufficiency is indisputable; and as there was no stipulation, such as the statute — 482 — requires, the most reasonable inference is, that it was process operating in rem, and authorizing the sale of the boat. The office of an inuendo in pleading, it is said, is to explain, not to enlarge, “ and is the same in effect, as Chat is to say.” It is used almost exclusively in practice, in actions for defamation, and in such case the plaintiff cannot merely by force of iminuendo apply the words to himself. “ The inuendo means no more than the words aforesaid.” The introduction of facts under it will not be deemed a sufficient averment of them; that which comes after it, is not issuable; if an inuendo is repugnant, it may be rejected, or if intended to enlarge it will be treated as surplusage. [4 Bac. Ab. 516; Corbet v. Hill, Cro. Eliz. 609; Dane’s Ab. ch. 63, Art. 5 and 8, and citations thei’e found.] It is immaterial then, whether the inuendo is used for the purpose of enlarging or other unauthorized purpose, it is not issuable, and furnishes no warrant for sustaining a demurrer to thel declaration. It is immaterial whether the bond was taken by the sheriff in person; if the boat was bailed by a deputy, the inference would be, that the act was authorized by the principal, or that it was sanctioned and approved by him. In any event, if the obligors had the benefit of their contract, and there was no effort by the sheriff to disannul it, they cannot be heard to set up the want of authority on the part of the deputy. Let it be conceded that the bond contemplates a demand as necessary to put the obligors at fault, and entitle the obligee to maintain an action against them, and still we think it clear, that it is quite sufficient, if a demand has been made of the defendant alone. The statute of 1818 enacts, that every joint bond shall be deemed and construed to have the same effect in law, as a joint and several bond; and it shall be lawful to sue out process and proceed to judgment against any one or more of the obligors. [Clay’s Dig. 323, § 61.] Thus we see that the, obligors undertook each for himself and the others, and that the remedy of the obligee is against each, or all, at his election. This being the law, we think it will not admit of serious question, that a demand of the party sued, and a failure to comply, entitled the plaintiff to institute his action. In respect to the interlineations of the bond, it is perhaps enough to say, that there was no issue which imposed upon the plaintiff the onus of proving its genuineness as declared on, or — 483 — set out on oyer, and we cannot conceive that the plaintiff was bound to account for its interlineations. If it had been offered merely as evidence, without being the basis of an action, then perhaps, if the erasures or interlineations were such as to warrant the suspicion that they were made after the bond was executed, or without authority, the obligee should account for them. This view is decisive of the cause as presented, and the consequence is, that the judgment of the County Court is affirmed.