Hibbard v. McKindley

Walker, J. Was the declaration, as originally filed, and previous to its amendment, sufficient to warrant a recovery ? Under our practice, the plaintiff, in an action on a penal bond, is required to assign the breaches in his declaration, and not upon the record, as required by the ancient English practice. According to the rules of pleading, the plaintiff may assign as many breaches as he deems necessary, on a penal bond, in one count, or he may file as many counts as there are breaches of the bond. When the former course is adopted, each breach, answers the place of a separate count. The commencement,, the general breach, and conclusion, are all to be considered in. reference to each special breach, as though it formed the only breach in the count. And as a further consequence, each breach is subject to a demurrer, precisely as is each several, count in the declaration. And it may be sustained to several and awarded to others, in the same manner that it may to several counts in the same declaration. To each of the five breaches in the declaration, in this case, there was a several demurrer, and on which special grounds were assigned. One of the grounds to a portion of these assignments was, that they.fail to aver that the defendants had failed to pay the sum of money claimed in the breach. It is urged, that, to have been formal, they should have averred that defendants, nor either of them, had paid the money to plaintiffs. It is obvious, that where a number of persons are jointly, or jointly and severally, bound for the performance of an act, its performance hy one of them is a performance by all, and no other construction can be given to the language of the breaches. Had it appeared upon, the trial, that either of the defendants had paid the money demanded, it would have undeniably defeated a recovery. This part of the breach is is not obnoxious to the special demurrer. The other averment that the defendants “had not paid the money” demanded, is, perhaps, insufficient of itself, but the general breach contains a full formal averment that the defendants had not paid the money, or any part thereof, to the plaintiffs, or to either of them. When the general breach is considered as a continuation of the special breach, it renders them technically formal and precisely accurate, and renders them unobjectionable. It is further insisted, that when the plaintiffs aver a failure to pay John H. Sherwood, James A. Hibbard and Robert S. Randall, there is no breach shown, as the agreement was to pay James H. Sherwood and the others. The body of the bond is payable to John and the other persons. The condition recites, that the injunction was sued out against John H. Sherwood and the other persons named. Rut in the latter part of the condition his name is written James. It having been three times previously written “ John,” there can be no question, from the instrument itself, that John H. Sherwood was the obligee. And where reference is made to the “ said James H. Sherwood,” there can be no room to doubt that John is the person intended. It is perfectly apparent that such was the design. We have to resort to the whole instrument to ascertain the intention of the parties, and no other can be gathered from this bond and condition. The name “James,” where it appears in the condition of the bond, should therefore be disregarded, as inoperative and repugnant to the other portions of the bond, and thereby give effect to the intention of the parties, otherwise so clearly manifested. The other grounds of demurrer urged upon the argument are general, although assigned as special causes. It is insisted, that the bond is conditioned to pay all such costs and damages as shall be awarded against the obligors, and that the breaches fail to aver that any damages were awarded on the dismissal of the bill and dissolution of the injunction. It is manifest that a statutory bond, where the form is prescribed, and it is observed, will be construed to have the effect given by the statute, as it enters into and forms a part of the instrument. Love v. Fairfield, 5 Gilm. 303; Churchill v. Abraham, 22 Ill. 455. But when the bond is a common law instrument, the liability of the obligors is limited by the terms of the condition. The condition is the limit of their liability. These breaches are not all assigned in the terms of condition, but it is insisted that they are according to the legal effect. The fourth breach avers, that a large amount of costs were awarded against MeKindley, “ to wit, the sum of fifty dollars,” and defendants have not paid it. This breach is in the precise terms of the condition. When the bill was dismissed at complainant’s costs, they were in terms awarded against him. There is no averment in the first breach, that solicitors’ fees were awarded to plaintiffs. Nor in the second, that damages were awarded for the loss of rents and profits, on the dissolution of the injunction. Nor in the third, that damages were awarded for damages occasioned by a loss of credit, produced by the wrongful suing out of the injunction. Nor in the fifth, that any amount was awarded for damages for the wrongful suing out of the injunction. This presents the question, whether the condition of the bond authorizes a recovery, unless the damages are awarded at the time the injunction is dissolved. The condition is “to pay” all such costs and damages as shall be awarded against complainant, in case “ the said injunction shall he dissolved.” It will be observed, that it is not the damages and costs to be awarded on the dissolution. If such were its terms, then it might possibly confine the liability to the damages and costs then found and ascertained by the decree. But in this condition it is the costs and damages that shall be awarded in ease the injunction is dissolved. This condition does not provide, that the damages shall be awarded at the time of the dissolution of the injunction. It only provides, that if the worst shall happen, the obligors shall pay such damages as shall be awarded, and whether they shall be awarded at that or a future period, in that or a different proceeding, makes no difference. A recovery in an action upon the bond, would be an award of damages within the condition. Nor was it necessary that a separate recovery should be had against the complainant, before the liability attached against the securities. When a judgment is recovered against him and the other obligors, the condition is answered, as the damages are then awarded against him. The first, second and fourth breaches were also well assigned. The third and fifth breaches, however, were obnoxious to a demurrer. The third claims damages for a slander of the firm, or rather for an injury to its credit, by suing out the writ of injunction. The damages, if any, resulting from that cause are too remote to be included in a recovery on this bond. The object of the bond is to indemnify the defendant against immediate and actual loss. The fifth breach is too general and indefinite. It avers no fact constituting the breach, but simply the wrongful suing out of the writ. The demurrer was properly sustained to the third and fifth breaches, but should have been overruled as to the others, as they were sufficient without any amendment. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.