Work v. Titus , 12 Fla. 628 ( 1868 )

Hon. T. T. LONG, Judge of the Suwannee Circuit'

(who sat in this case in place of Baker, J., disqualified), delivered the opinion of the court.

The rulings of the court excepted to and relied on are as follows:

1st. That the court erred in holding that the bond was insufficient, “ inasmuch as George D. Gilchrist, the party principal thereto, is not described in the said bond as agent of plaintiff; nor does it appear that said bond was executed by the said plaintiffs or their agents.”

The statute requires, before a writ of attachment can issue, that the parties suing out said attachment must make the necessary affidavit, and enter into bond, with two good and sufficient securities. A failure to make the proper affidavit in terms of the law, or to give the bond as proscribed by tho statute, authorizes the judge of the court, either during the term of the court or in vacation, to dissolve tho same. Does the bond given in this case come up to tho requirements of the statute ? Did the plaintiff, his agent, or attorney give the required bond? We think clearly not. The bond purports to have been given by George D. Gilchrist in person. In no part of the bond does it appear that he was tho plaintiff, the agent, or attorney; and for aught we know from tho bond, it is a voluntary act of a stranger to the proceedings. There is no recital in tho body of the bond that he is a party in iirterest, or agent, or attorney; but to the contrary, that W. A. Work & Son are the plaintiffs. The bond is separate and independent of the affidavit, and must stand or fall upon its own merits. Was the objection to the bond that it was merely informal, or a clerical mistake, it doubtless could be amended, and would not be held void against tho obligors. In statutory proceedings, whilst tho court is not disposed to construe the statute with too great rigor, it is equally unwilling to depart from settled principles, especially when in thus departing it conflicts with the statutc'Ltself. The statute governing this class of proceedings is precise and positivo, and admits of no doubt or ambiguity, and evidences to the mind of this court that the bond is fatally defective.

The other point taken is, can a party amend tho bond as desired and asked for by plaintiff’s counsel ? If such an amendment could be made, it would impair the lien of defendant, if not entirely destroy it. The sureties were bound with one George D. Gilchrist, and not George D. Gilchrist, agent. The amendment would entirely change the character of the bond. Even if Gilchrist were present in person, ho could not change it, especially when there is no evidence whatever that he is, or was at the time of signing said bond, the authorized agent of plaintiffs ; and this court will not seek to ascertain that fact by testimony dehors the record.

Note. — This case was decided before the organization of the . present Supreme Court, and should have been reported in Part I. of this volume of reports, but was omitted. — [Reporter.

The “ Act to Amend Pleading and Practice in Courts of this State,” (pamphlet laws, I860,) making it the duty of the courts of this State to amend all defects and errors in proceedings in civil causes, cannot be so construed as to allow parties ad libitum to change the character of a bond, or amend the defects in the affidavit upon which the bond was given.

The judgment of the court below is affirmed.