Barnes ex rel. Hayes v. Webster

• Decision Date: 31 March 1852
• Citation: 16 Mo. 258
• Parties: BARNES, TO USE OF HAYES, Plaintiff in Error, v. WEBSTER, Defendant in Error; UNITED STATES, TO USE OF HAYES, Plaintiff in Error, v. FERGUSON, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 258

BARNES, TO USE OF HAYES, Plaintiff in Error,

v.WEBSTER, Defendant in Error;

UNITED STATES, TO USE OF HAYES, Plaintiff in Error,

v.FERGUSON, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

A., commencing an attachment suit against B., in the United States Circuit Court, executed a bond to B., conditioned to pay all damages that might accrue to B., or to any garnishee, by reason of a failure to prosecute the suit with effect and without delay. Held,

1. In case of a breach of the bond, B. may maintain a suit thereon to the use of any garnishee who has been damaged.

2. Such a bond, although voluntary and not authorized by any statute, is good as a common law bond.

3. A bond with the same condition, made to the United States instead of B., is valid, although not executed in pursuance of any law, nor in connection with any business of the United States, nor any duty of the obligor to them. A garnishee may sue on such a bond in the name of the United States to his use.

Error to St. Louis Court of Common Pleas.

Barnes, to the use of Hayes, brought an action, in the St. Louis Court of Common Pleas, against Webster, on a penal bond for $1,743, dated April 3d, 1844, reciting that one Ward had brought a suit by attachment, in the United States Circuit Court, against said Barnes, and conditioned that if the said Ward should prosecute his suit with effect, without delay, and should pay all damages that might accrue to the defendant, Barnes, or to any garnishee, in consequence of said attachment, that the obligation should be void, otherwise to remain in full force and effect. The declaration then avers that Hayes was, on the 5th day of October, 1841, summoned as garnishee in said cause, and all debts due from him to said Barnes attached in his hands. The main breach is that Ward did not prosecute his suit with effect, but, on the contrary, at the April term, 1845, of the United States Circuit Court, the attachment was dissolved, the suit dismissed, and Hayes, the garnishee, discharged; that by reason of the premises Hayes was injured and had sustained damages to the amount of $1,743, which Ward refused to pay. The declaration does not aver that Barnes, the plaintiff in the suit, had sustained any damage by reason of any breach of the bond. The defendant, Webster, demurred generally, and the demurrer was sustained on the ground that the declaration did not aver that Barnes, the plaintiff, had sustained any damages by the alleged breach of the bond, and that Barnes had no legal interest in the damages stated in the declaration to have been sustained by Hayes, and that neither Hayes nor Barnes could, in this form, if in any, recover such damages on the bond.

E. Bates, for plaintiffs in error.

In view of the record, the ground upon which the Court of Common Pleas sustained the demurrer is not a construction of the bond, for that is plain and admits of but one meaning; but it presents the question whether or not the obligor could legally make such a bond, or the obligee receive it; and the court, in effect, decided that Webster and Barnes could not contract, the one to pay and the other to receive, such damages as Hayes, the garnishee, might suffer by reason of the attachment. It is hard to conceive of a law denying the power of the parties to make such contract, and if they could legally make it, the court must, of course, enforce it according to its terms. The breaches are the exact negatives of the language of the condition, and, therefore, on the demurrer, which admits the facts as stated, there can be no objection but to the legal validity of the bond, or the condition itself. I assume that it is the right of every free man to bind himself in any contract that is not either wrong in itself, forbidden by law, or injurious to some other person; and this bond is neither. It is a bond volunteered by Webster to advance the ends of an attachment suit, in which he had no concern, but in which Barnes was defendant and Hayes garnishee. The suit was pending in the Federal court, and it may fairly be inferred (and, in fact, it was so,) that the bond was given under the circumstances, and by analogy, to the like proceedings in the state courts, under our statute. Rev. Code, 1835, Attachment, article 1, section 38. There is no act of Congress regulating suits by attachment, nor giving jurisdiction of attachment cases; and, therefore, unless the Federal court has jurisdiction of the person of the defendant, it cannot entertain the attachment of his property. See 12 Pet. Rep. 300, Toland v. Sprague, which is recognized in 15 Pet. 167, Levy v. Fitzpatrick. The attachment suit in which this bond was given, was held on for several terms, to get personal service on the defendant, but failing in that, the attachment was dissolved, and the suit dismissed. If it be argued here, as below, that the law required no bond in this case, I answer that a voluntary bond is, at least, as good as a bond made under compulsion of law or duress of fact. Every security in a bond is a volunteer; and that is not only so among private persons, in their ordinary business, but applies equally to the government and its agents. See 5 Pet. Rep. 115, United States v. Tingey. A bond voluntarily given to the United States, and not prescribed by law, is a valid instrument. And this case is recognized in 10 Pet. Rep. 343, United States v. Bradley. And this principal is constantly acted on and carried out in practice in the Circuit and District Courts of the United States. See 4 Wash. C. C. R. 620, United States v. Howell, to the effect that officers of the government may, without any law, take security from the debtors of the public. Again, Gilpin's D. C. R. 561, _______ v. Rice, to the effect that the Postmaster-General has a right to take bonds from his deputies, although not required by law. And again, 1 Gallis. C. C. R. 476, a voluntary bond given upon the delivery of property to a claimant on his application is good, although the condition does not conform to the statute.

Geyer & Dayton, for defendants in error, submit the following propositions:

I. The declaration shows no cause of action in favor of the plaintiff against the defendant. The bond sued on is a penal one, and the penal sum, in case of a breach, though the limit, is not the measure of damages. The obligee can recover only such damages as he has actually sustained by a breach. The declaration, in this case, does not aver that the plaintiff had sustained any damages from any breach of the bond, or that he had any legal interest in the damages, stated to have been sustained by Hayes, the garnishee. It is, therefore, bad, unless it is authorized and can be maintained under the provisions of our statute concerning penal bonds.

II. The declaration is not aided by statute. The act of 1835, in force when the bond sued on was made, and the act of 1845 are identically the same, so far as they relate to this question. Each of these statutes provides, that suits on certain classes of bonds can be brought in the name of the obligee, to the use of the party injured, but only in cases where, by the law of this state, such party is authorized to prosecute a suit to his own use on the bond. See secs. 15 and 28, act of 1835, pp. 432-3, and secs. 15 and 28, act of 1845, pp. 407-8. The bond in question is not under, in obedience to, or in conformity with, any statute of Missouri, though it is claimed to be under the 38th section of the act of 1835, concerning attachments. Revision of 1835, p. 81. But that act, or any other, does not authorize a suit upon the bond mentioned in said section 38, in the name of the obligee to the use of the party injured. This bond is not of the class mentioned in the 28th section of the acts of 1835 or 1845, concerning penal bonds, and if it were, it is not within the provisions of the 15th section of said acts, because, by no law of this state is any person authorized to prosecute a suit to his own use upon such bond. We submit, therefore, that Hayes, the party claimed to have been injured, cannot, by virtue of our statute, maintain an action in the name of Barnes to his use on this bond, and that the declaration in this case derives no support from the statute. We do not understand the 28th section of the act concerning penal bonds to authorize, in respect to the bonds therein embraced, the person aggrieved to prosecute a suit in the name of the obligee to his use, except in three cases, when the statute, in providing for giving the bond, also provides that any person aggrieved may prosecute a suit to his own use upon it. We contend that suits on the bonds, embraced by the 28th section, are subject to the same restriction mentioned in section 15, in respect to official bonds. The bond of an administrator must be to the State of Missouri. Rev. Stat. 1845, p. 35, sec. 15, article 1st, of act concerning executors and administrators; also, the bond of an executor, sec. 17, same article and act, p. 36. The bond of an executor or administrator may be sued on, at the instance of the party injured, in the name of the state, to the use of such party. Section 8, article...