McMechan v. Hoyt , 16 Ark. 303 ( 1855 )

Mr. Justice "WalKek

delivered tbe opinion of tbe Court.

This is an action of assumpsit by attachment. Tbe defendant pleaded in abatement of tbe suit, tbat it was brought without first having filed a bond to indemnify the defendant against loss or damage, by reason of suing out the writ of attachment, as required by statute. To which, tbe plaintiff filed three replications : tbe first and third of which were stricken out. Tbe second replication set forth a penal bond, conditioned as required by the statute, purporting to be executed by James P. Spring, and Solomon P. Clark, as securities for the plaintiff, and averring tbat it was their deed, accepted and filed by the clerk, before tbe writ issued, and tbat such securities were solvent, and well able to pay tbe penalty of tbe bond, or any damages that might accrue to the defendant by reason of a breach of the conditions thereof. >

To this replication, tbe defendant rejoined, tbat tbe bond set forth in plaintiff’s replication, was net tbe deed of said Clark & Spring, and concluded to tbe country. Tbe issue thus made, was submitted to tbe court, by consent of parties, sitting as a jury, upon tbe following evidence :

Plaintiff offered to read a paper, purporting to be the bond of Clark & Spring, and which in all respects, appeared to be a good statute bond, filed in proper time; but tbe defendant objected to tbe reading of tbe bond, as evidence, until tbe execution thereof was proven. Which motion, the court sustained; and, thereupon, the plaintiff introduced James P. Spring as a witness, who testified, that tbe names of Solomon F. Clark, and James P. Spring, subscribed to the bond, were in the bandwriting of the said Clark; that witness and Clark were partners in tbe practice of law: that he, witness, had given Clark permission to subscribe bis name to attachment bonds, whenever be saw fit, and that be and Clark were in the habit of signing each other’s names to such bonds. That witness and Clark were attorneys in tbe case, and prosecuting tbe suit. That first before tbe suit was commenced, Clark bad stated to witness that this suit was about to be commenced, and that it would be necessary for witness and himself to become bound in such bond, as securities for the plaintiff, and that witness then gave Clark full, express, and legal authority to execute the bond and sign bis name to it. That he, witness, was not present when the bond was executed and filed in the clerk’s office, nor did be see the bond until some time after; that be, at all times since, and yet does recognize it as bis bond, executed in pursuance of tbe authority given to .Clark. That witness and Clark were always abundantly sufficient securities in the bond, and responsible for the whole amount of the penalty of tbe bond: and that Clark alone was abundantly sufficient and responsible for the amount of the penalty of the bond.

Upon this evidence, the Circuit Court decided, that the bond was not tbe deed of Clark & Spring; and, therefore, that the bond could not be received in evidence, and disregarding the same, adjudged that the writ be quashed, and that defendant go hence, with costs, &c.

The plaintiff moved for a new trial, which was overruled; and, thereupon, excepted.

The Circuit Court seems to have decided against the plaintiff upon tbe ground, that inasmuch as the plaintiff bad replied and set up a bond executed by both Spring & Clark, and as tbe defendant bad rejoined, denying the execution of the bond by' them, it devolved upon the plaintiff to produce, and prove, a bond executed by both of them, 40 sustain the issue on their part; and because, in the opinion of the Court, whilst there was abundant and clear proof that it was the deed of Clark, and that he, without Spring, was amply sufficient security, the proof was not sufficient to prove the execution of the bond by Spring also; and, for that reason, that the bond was inadmissible under the issue. In this, we think the Circuit Court was mistaken. The defence was, that the plaintiff had filed no sufficient bond before suing out his writ of attachment. Whether those executing the bond were many or few, or whether, by principal and securities, or by securities alone, was wholly immaterial, if the security was sufficient. Taylor vs. Hoffman, 5 Eng. The sufficiency of the bond, the valid security, was the substance of the matter. And it is very well settled, that in a suit upon the bond, even if it had turned out upon an issue upon a plea of non est faotv/m, by one or more of the defendants, that it was not their deed, and that they were not bound by it; still, judgment in their favor, upon such issue, would not discharge the other defendants. Such was the express decision of this court in Ferguson et al. vs. Bank, 6 Eng. 512. Our statute placing joint contracts, and joint and several contracts, upon the same footing, has changed the common law rule, and makes joint contractors severally liable. If, then, upon a direct suit upon this bond, declaring upon it as the deed of all the parties, the proof, in this case, would have been sufficient to entitle the plaintiff to recover against Clark, and he is shown to be good, can it be said that the same evidence is not sufficient in this case to prove that there was a valid, sufficient bond filed before suit brought? We think not.

When the defendant complained that no bond had been filed, as required by statute, the plaintiff replied that such bond had been filed, and set it forth. The defendant was therefore left no alternative, but to take issue upon the replication, and that, too, according to the defence set up by himself. From that, he could not depart. The true issue was, bond or no bond, and not whether it was executed by Clark & Spring, or by Clark alone. The same strictness in describing the instrument, if sued upon, is not required in replying to a plea, denying the existence of a bond; because, the reasons, which require such strictness, do not apply. The question of former recovery can never arise; but, even if tested by the strictest rules of pleading, the evidence would still have been sufficient; because, the number of the securities in this instance, was not a material matter in the issue.

It is laid down by Ci-iitty, (Pleadings, vol. 1, ¶. 685,) that if the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial, it is not a departure. As if, in a declaration, a promise be stated to have been made twenty years ago, and when the defendant pleads the statute of limitations, the plaintiff replies that the defendant did undertake within six years, it was held not to be a departure; because, in the case stated, time in the declaration was immaterial. So, in the case of a deed, or other instrument, the plaintiff may reply or show in evidence, that it was really made on a day different from the day of the date. And so in this case the whole scope of the rejoinder was to put in issue the existence of a valid statute bond, filed before the writ of attachment issued; and, if such was not its effect, then it tendered an immaterial issue, which, when found by the verdict of the court, would not determine the merits of the controversy, and would leave the court at a loss for which of the parties to give judgment. See 1 OhiM-i/s Pleadings 692.

The rejoinoder put in issue the existence of a sufficient bond. It denied that Clark & Spring executed such a bond. If the bond of either of them, and sufficient, it was a sufficient bond, and the plaintiff sustained the issue on his part. See 1 Saunders Rep. 312, note 5; Cobb vs. Byrne, 3 Bos. & Pul. 348. The case, when thus considered, presents no difficulty. The issue was fully sustained by the proof, because, although not the bond of both Clark & Spring, it was the bond of Clark; and being formal, and approved by the clerk, and filed in proper time, and he being solvent, and of himself sufficient security, the court should have permitted the bond to be read in ^vidence ; and, under the evidence, there can be no doubt, but that the decision and judgment of the court should have been for the plaintiff.

The Circuit Court, therefore, erred in refusing to set aside the verdict and finding of the court, and to grant the plaintiff a new trial; and, for this error, the judgment must be reversed, and the cause remanded, with instructions to grant a new trial to the plaintiff; and for father proceedings to be had, according to law, and not inconsistent with the opinion herein delivered.