Grant v. Brotherton's Adm'r ex rel. Janney

• Decision Date: 31 May 1842
• Parties: GRANT & FINNEY v. BROTHERTON'S ADM'R, TO USE OF JANNEY.
• Court: Missouri Supreme Court

7 Mo. 458

GRANT & FINNEY

v.BROTHERTON'S ADM'R, TO USE OF JANNEY.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

KING, for Appellant.

SPALDING & TIFFANY, for Appellees.

NAPTON, J.

This was an action brought by the administrator of James Brotherton, late sheriff of St. Louis county, on a bond given by the defendants (plaintiffs in error), for the forthcoming of property levied on by attachment. This bond is as follows:

“Know all men by these presents, that we, David Grant, as principal, and William Finney, as security, are indebted unto James Brotherton, sheriff of St. Louis county, or his assigns, in the sum of two thousand; for the payment whereof we bind ourselves, heirs, executors, and administrators firmly by these presents, sealed with our seals, and dated this twenty-sixth day of July, in the year of our Lord one thousand eight hundred and thirty-eight.

The condition of this obligation is such that, whereas, in virtue of a writ of attachment issued from the St. Louis Circuit Court, returnable to the November term thereof, in the year eighteen hundred and thirty-eight, at the suit of Nathan E. Janney, plaintiff, against David Grant, defendant, the sheriff of St. Louis county has attached certain property and credits, to-wit: all the right, title, and interest of said Grant of and to a certain steamboat called the Motto, together with her furniture and tackle, of the value of one thousand dollars, which have been restored on the execution hereof. Now, if the said effects so attached and restored, shall be produced and delivered, subject to the judgment of said court, when and where the court shall direct, then this obligation shall be void, otherwise it shall remain in force.

D. GRANT, (Seal.)

WM. FINNEY, (Seal.)”

The defendants craved oyer, and demurred; but afterwards withdrew their demurrer, and pleaded, first, that the obligation was not taken by the sheriff in pursuance of law, but under color of his office; the bond was given for ease and favor, &c., and was therefore void in law; and, second, that the bond was void in law. To these pleas plaintiff demurred; the demurrer was sustained, and judgment upon the demurrer for the plaintiffs.

The only question is as to the validity of the bond. It is urged that, because the bond does not pursue the words of the statute, it is, therefore, void. The act of February 6, 1837, provided that “if any property be seized by an officer, by virtue of a writ of attachment, the defendant may retain the possession thereof, by giving to such officer sufficient bond and security, to be approved by such officer, conditioned that such property shall be forthcoming, in good order and condition, when and where the court shall direct, and shall abide the judgment of the court.” It will be perceived by comparing the bond with the requisitions of the statute, that the bond...