Robards v. Samuel

Scott, Judge, delivered the opinion of the court. 1. This case is not like that of Page & Bacon v. Butler, 15 Mo. Rep. 73, where it was held, that a party to, a forthcoming bond for the delivery of property seized under an execution, could not, after a forfeiture of the bond, successfully assert a claim to the property mentioned in it. Our courts have repeatedly held, that a voluntary bond, given to an officer, if not contrary to the policy of the law or in violation of some statutory enactment, is valid and will support an action. Rut bonds extorted involuntarily, by virtue of any authority, or to compel a man to do an act which he is not bound to do, are void. The objection to the bond in controversy is, that it was taken to compel the delivery of property which was not subject to execution. If such was the case, the officer had no warrant in law for his proceedings. If the defendant in the' execution pursued the proper course to relieve his property from the execution, it should have been restored to him without exacting any bond for its delivery at a subsequent day. If he failed to do this, or if he waived an appraisement of the property when an opportunity was offered to do this, he should be bound. The facts not appearing in the case, the judgment will be reversed and the cause remanded, with the concurrence of the other judges.