Lovejoy v. Isbell

• Decision Date: 01 June 1898
• Citation: 70 Conn. 557,40 A. 531
• Court: Connecticut Supreme Court
• Parties: LOVEJOY v. ISBELL.

40 A. 531

70 Conn. 557

LOVEJOY

v. ISBELL.

Supreme Court of Errors of Connecticut.

June 1, 1898.

Appeal from superior court, New Haven county; Alberto T. Roraback, Judge.

Action brought to superior court for New Haven county the first Tuesday of September, 1897, by Jocelyn E. Lovejoy against George A. Isbell. Judgment for defendant on plea in abatement. Plaintiff appealed. Error.

The magistrate issuing the writ accepted the recognizance of the American Surety Company of New York, a corporation transacting business in this state as surety on obligations of persons, in pursuance of the laws thereof, in lieu of the recognizance of a substantial inhabitant of this state, mentioned in section 896, Gen. St. The defendant pleaded such acceptance of a recognizance in abatement. The plaintiff demurred, and the court (Roraback, J.) overruled the demurrer. An answer to the plea was then filed, and upon the issue joined the court (G. W. Wheeler, J.), following the ruling on the demurrer, rendered judgment for the defendant. The plaintiff appealed, assigning error in overruling the demurrer, and also certain errors in the subsequent proceedings.

John Albert Matthewman, for appellant.

E. P. Arvine and George E. Beers, for appellee.

HAMERSLEY, J. (after stating the facts). "An act relating to corporate suretyship," passed in 1885, authorized corporations of other states organized "for the purpose of transacting business as surety on obligations of persons or corporations" to transact such business in this state, prescribed certain conditions for securing the solvency of such companies, and provided for their being sued here as if residents of the state. Pub. Acts 1885, p. 469. This act covered the whole business of suretyship on obligations except in relation to bonds prescribed by statute, and at the same session "An act relating to the giving of bonds required by law" was passed (Pub. Acts 1885, p. 468), which provided that any company authorized to transact business as surety on obligations of persons or corporations may "be accepted as surety upon the bond of any person or corporation required by the laws of this state to execute a bond, in lieu of any surety or sureties as now required by law, and such company may be released from its liability on the same terms and conditions as are by law prescribed for the release of individuals, it being the true intent and meaning of this act to enable corporations created for the purpose to become the surety on bonds required by law, subject to all the rights and liabilities of private persons." These acts appear in Gen. St. 1888, §§ 3787-3801. Section 896, Gen. St., requires that before a magistrate can issue process in a civil action the plaintiff therein, if he be not an inhabitant of the state, shall "enter into a recognizance to the adverse party with some substantial inhabitant of this state as surety, or some substantial inhabitant of this state shall enter into a recognizance to the adverse party that the plaintiff shall prosecute to effect," etc. Such recognizance must be satisfactory to the authority issuing the writ. In the present case the magistrate accepted the recognizance of the American Surety Company, duly authorized to transact in this state business as surety on the obligations of persons. The defendant pleaded in abatement the acceptance of the recognizance in lieu of the recognizance of some substantial inhabitant of this state, and the plaintiff demurred. The superior court overruled the demurrer. This is error. A recognizance is a bond, in the strict sense of the word; and a statutory requirement to give bond with surety is satisfied by entering into a recognizance to that purpose. Town of New Haven v. Rogers, 32 Conn. 221, 224. When the statute authorized any officer charged with the duty of approving such bonds to accept a corporation as surety upon the bond of any person required by law to execute a bond, it included a recognizance as well as other bonds. It is claimed that the corporation was not in this case accepted as surety, but assumed an independent obligation. If this be true, it is only so in the most technical sense. The relation of principal and surety exists between the plaintiff and the corporation. It is the plaintiff that is required by law to give bond. In accepting the recognizance of the corporation the magistrate accepts the corporation as surety for the person who is by law required to give bond. That the formal joinder in the recognizance of the principal may in certain cases be dispensed with, does not alter the nature of the obligation. The corporation is still accepted as surety. In Ripley v. Bank, 41 Conn. 187, 190, it was intimated a bond for costs given by a surety might satisfy a statute requiring a bond by the plaintiff with surety, although the point was not decided. This was in 1874, and in 1875 the legislature passed the act which now enables a bond for costs to be given either by the plaintiff with surety or by the surety without the plaintiff. Pub. Acts 1875, p. 24. The effect of this act was to treat a bond by the surety as the equivalent of a bond by the plaintiff with surety. It is claimed that section 896, in requiring the surety to be a "substantial inhabitant of this state," sought to give a peculiar protection to the defendant; that this protection has existed by law since 1703; and that a repeal of this law by permitting a foreign corporation to take the place of a "substantial inhabitant" must, to be valid, be direct, and not by implication. Attachment on mesne process was...