Foster v. J. W. Champlin & Co.

• Decision Date: 31 January 1867
• Citation: 29 Tex. 22
• Parties: JEANETT B. FOSTER ET AL. v. J. W. CHAMPLIN & CO.
• Court: Texas Supreme Court

29 Tex. 22

JEANETT B. FOSTER ET AL.

v.J. W. CHAMPLIN & CO.

Supreme Court of Texas.

January, 1867.

The statute requires that a party taking an appeal shall, within twenty days after the term of the court at which the judgment or decree was rendered, enter into bond, with two or more sureties. Pas. Dig. art. 1491, note 583.

The term “bond” is of frequent occurrence in the statutes of the republic of Texas, passed prior to the adoption of the common law, and its signification as used therein was defined by the supreme court in the case of Cayce v. Curtis, Dall. Dig. 403. They there held, that it was to be referred to the civil law for its meaning, force, and legal construction; that there was no such word as bond known to the civil law, but that its equivalent under that law was the word “obligation,” and that a seal, not being known to the civil law, and not being required to give force and validity to an obligation, it was not essential to the validity of a bond. Overruled, 30 Tex. 738.

The word “bond,” as used in our law, of force previous to the 20th January, 1840, the date of the introduction of the common law (Pas. Dig. art. 978, note 418), had a defined meaning.

Where the general or established law affords an equivalent term to the one used in the statute, which is well known and defined in its signification and operation, it cannot be doubted that the legislature intended to give to the new word only that force and signification which the old one possessed.

When the common law was introduced, the word “bond” was not a term wholly unknown to the laws of this country; it was not imported with the common law, and we are not to look to that system for its definition; but we are to give it the same meaning, in statutes subsequently enacted, that it had when used in those which existed prior to the adoption of the common law; and in these latter, as we have seen, it did not signify an instrument under seal.

The introduction of this new system of jurisprudence (the common law) could not operate as an amendment of the statutes then in force, so as to require the senseless addition of a seal or scroll to make that contract good which was already valid by the law of the land.

But it is said that the legislature intended to require more solemnity in the execution of obligations executed upon an appeal than in those entered into when a case is taken to the supreme court by writ of error, because the word “bond” is used in the former case, and the word “obligation” in the latter. Pas. Dig. art. 1495, note 587. Our inference, drawn from this difference in the language, is just to the contrary. There can certainly be no reason for requiring greater formality in the one case than in the other. The object of the obligees in each instrument is to secure the opposite party in his costs and damages, and insure the performance of the judgment of the supreme court. The effect of each instrument is the same, and their conditions are almost identical. Each has the same binding force upon its obligors, and there is no difference in the remedies to be pursued against them in case of a breach of the conditions. The conclusion is, that the law-givers intended these terms as synonymous, thus giving a legislative definition to them in accordance with the decision of the supreme court of the republic above cited.

But admitting that, at the date of the foregoing act, in which appeals to the supreme court are regulated, the word bond had a technical meaning, derived from the common law, and that such contracts were required to be under seal, that requirement has been wholly abolished by the act of February 2, 1858. This act reads as follows: “No scroll or private seal shall be necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, except such as are made by corporations; nor shall the addition or omission of a scroll or seal in any way affect the force and effect of the same; and every contract in writing hereafter made shall be held to impart a consideration as fully, and in the same manner, as sealed instruments have heretofore done.” Pas. Dig. art. 5087, note 1114.

This statute was evidently intended to embrace every instrument in the execution of which seals or scrolls had been before that time used. It is somewhat inartificially drawn, but its object was clearly to abolish and forever dispense with these “relics of ancient barbarism.” Every bond must be made with respect to either real or personal property, and it is no strained construction to hold that such a one as is now under consideration can be embraced within the language of the above statute.

The law of 1858 (Pas. Dig. arts. 4785, 4786), allowing cross remedies in favor of indorsers and sureties, did not repeal the previous laws, allowing the principals to be dispensed with as parties. Pas. Dig. arts. 225, 1426, notes 287, 535. It was not intended to interfere with the former remedies of the holder of a note against the parties bound upon it, nor with the rules of practice before established in such suits, but merely to adjust the order in which debts should be paid as between principal and surety, without causing any additional delay to the plaintiff, who was entitled to the money when collected. Pas. Dig. arts. 225, 1426, notes 287, 535.

APPEAL from Calhoun. The case was tried before Hon. FIELDING JONES, one of the district judges.

The principal question decided in the case arose upon the motion to dismiss the appeal, because the appeal bond was not under seal.

The difficulty on the question of principal and surety grew out of the fact that, the principal having died before suit was brought, his representative was not made a party--indeed could not well have been; for it was averred that the claim had been presented to his administrator, and allowed and approved by the county court; therefore the demand stood as a judgment against the principal's estate, of which there was no satisfaction. And now the surety and indorser were sued, but they did not bring in the representative of the principal.

This action was brought against the appellants, J. B. Foster and S. J. Lee, on two promissory notes, made by W. J. Foster and J. B. Foster, payable to S. J. Lee, and by Lee indorsed to the appellees. Before the institution of the suit, W. J. Foster died, and the suit was instituted against J. B. Foster, maker, and S. J. Lee, indorser. J. B. Foster plead that she was the surety of W. J. Foster, which was found by the jury to be true. She claimed, in her plea, that the estate of the principal was solvent, and that the judgment in the cause should be so framed that the estate of the principal should be first exhausted before execution should issue against her.

Holts & Finley, for appellant. By the statute passed July 1, 1858 (O. & W. Dig. arts. 1599, 1600), it is provided, that, when one of the defendants to a suit on a bill or note is found by the jury to be a surety, the court shall make an order directing the sheriff to levy the execution first upon the property of the principal subject to the execution, and situate in the county in which the judgment is rendered, before a levy shall be made upon the property of the surety, etc. The case before the court is not one in which judgment was rendered against the principal and surety, yet we believe it is one coming within the remedies sought to be given by the statute. It is evidently the purpose of the statute to protect the property of the surety from sale until the property of the principal in reach of the creditor shall be exhausted. Will the fact that the principal creditor dies change the protection given to the surety, and suffer the creditor to pass by the estate of the principal, and proceed to levy his debt against the surety, in the first instance? We think not. In the case before the court, it is not questioned but the estate of the principal is solvent. We hold that the equity of the statute will require the creditor to go into the probate court for the collection of his debt, where the estate of his principal debtor is solvent. We ask that the judgment may be so changed that execution shall be stayed against the surety until the estate of the principal debtor shall be exhausted.

D. V. Cleveland, for appellees. The only question made by the appellants in this cause is, whether a judgment can be rendered against a surety, and execution be issued thereon, without first exhausting the estate of the principal; or, rather, whether the district court should stay execution on...