McDermott v. Doyle

• Citation: 11 Mo. 443
• Parties: MCDERMOTT v. DOYLE.
• Decision Date: 31 March 1848
• Court: United States State Supreme Court of Missouri

11 Mo. 443

MCDERMOTT

v.DOYLE.

Supreme Court of Missouri.

March Term, 1848.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

GOODE, for Plaintiff. The only question which is or can be raised upon the record in this cause, is whether the bond sued upon be void by the reason of the alleged defect in the affidavit to hold to bail, in the original action against Samuel A. Childs, and in which original action the said Samuel A. Childs was arrested and discharged from arrest upon the execution of the bond by him, together with the present defendant, John Doyle, as his security, and not whether he is discharged by the death of his principal. The plaintiff in error contends that the bond is not void for such reason. 1. That the defect in the original suit was a mere clerical error, which could not vitiate even in the original proceeding. Hughes v. Sutton, 3 Maule & Selw. 178. 2. That in the original action of detinue, the defendant could take no advantage of the mistake in the affidavit. 3. That after the giving of the bond, it was too late for the defendant, even if the defect were a material one, which is denied, to take advantage of it. 1 East, 330, D'Argent v. Vivant; 1 East, 81, Jones v. Price; 1 Bos. & Pul. 132, Chapman v. Snow; 8 Term R. 77, Desborough v. Copinger; 1 Maule & Selw. 230, Dalton v. Barnes; 13 East, 272, Clark v. Baker; 5 B. Mon. 472, Johnson v. Cooper; 1 Chitty, 659, 660; 15 East, 159, Benfield v. Maxwell; 2 Wils. 303, Hole v. Finch; 6 Taunt. 185, Shawman v. Whalley; 2 Bos. & Pul. 46, Donnelly v. Dunn; 1 Ld. Raym. 328, Burr v. Atwood; Hardin's Ky. R. 203, Morton v. Heralt. 4. That if too late for the defendant in the original action of detinue to take advantage of, it was too late for the bondsman to take advantage of it by motion to be made in the original action after the giving of the bond. 5. That it is too late, in an action upon the bond, for the surety to raise an objection of this nature: it is not only too late, but the objection is invalid now, as it was then. 6. That the bail, in a suit upon a bail bond, cannot take advantage of any defect in an affidavit to hold to bail, as a defense to an action upon his bail bond.

GEYER, for Defendant.

1. The record in this case shows that the plaintiff below proceeded to the trial before there was any issue to be tried. There were several affirmative pleas to each count unanswered when the jury was sworn--the jury was discharged and the case submitted to the court, there still being no replications, when, as the record has it, “came the parties, by their attorneys, and the plaintiff saith he will not further prosecute his suit in this behalf,” and the court thereupon rendered judgment for costs. Of this judgment, the plaintiff cannot complain, seeing he voluntarily entered a nolle prosequi in a case in which he could have no judgment in his favor. 2. The bond sued on, if given in evidence, which does not appear, was utterly void; it was obtained by duress, under color of a writ unlawfully issued by the clerk there being no affidavit to warrant a capias, in the case in which it was issued. 2 Chitty's Pl. 979; 2 Camp. 270; 2 Taunt. 399; 8 East, 328. 3. The motion was to set aside a non-suit, while it appears there was no non-suit in the case. The judgment was rendered for costs, in consequence of the voluntary act of the plaintiff entering a nolle prosequi. 4. Whether the decision of the Court of Common Pleas was or was not correct is not very material, since the plaintiff was not prejudiced by it. He could not have maintained the action if the instruction had not been given, because the pleas of the defendant not having been replied to, no verdict could have availed; the judgment in the action of detinue would not sustain the action on the bond, that action abated by the death of Childs. It does not appear that there was any lawful administrator, or that he appeared to the action. The verdict is, that the then defendant, Darby (not Childs) doth detain the slave, &c. The judgment is, that the plaintiff recover of the new defendant, Darby, the slave, Bob, or the value, &c. Doyle, the defendant, never undertook that Darby who probably never saw the negro, would deliver him upon any contingency to the plaintiff. 5. The action could only be brought in Circuit Court. 2 Saunders, 616; 8 Term R. 152; Tidd's Pr. 323; 9 Johns. 80; 12 Johns. 459.

MCBRIDE, J.

This was an action of debt brought by McDermott in the Court of Common Pleas of St. Louis county against John Doyle. The bond upon which the suit was instituted was given by Samuel A. Childs, and the defendant, Doyle, as his security, in an action of detinue brought by McDermott against Childs, in the...