McLuckie v. Williams

• Decision Date: 05 January 1888
• Citation: 12 A. 1,68 Md. 262
• Parties: MCLUCKIE ET AL. v. WILLIAMS.
• Court: Maryland Court of Appeals

12 A. 1

68 Md. 262

MCLUCKIE ET AL. v. WILLIAMS.

Court of Appeals of Maryland

January 5, 1888

Appeal from circuit court, Allegany county.

This was a demurrer to the declaration in an action on a bond brought by David J. Williams against William McLuckie and Adam E. Hitchins. The demurrer was overruled, and defendants appeal.

Wm. Brace, for appellants.

A Hunter Boyd, for appellee.

BRYAN J.

We are requested by the counsel in the cause to give our opinion on two questions: First. Whether a suit can be maintained on a bond given to obtain an attachment on original process when the bond is made payable to the defendant; and, secondly, whether a suit can be maintained on such bond when the defendant in the attachment has not brought suit against the plaintiffs for wrongfully suing out the attachment. The act of 1864 directs that the bond shall be made payable to the state of Maryland, and that it shall be conditioned for satisfying all costs which may be awarded to the defendant, or to any other person interested in the proceeding, and all damages which shall be recovered against the plaintiff for wrongfully suing out the attachment. In the form given in the statute for the condition of the bond, the language is slightly varied; in case of breach, the plaintiff is required to pay the defendant "all such costs in said suit," and such damages as shall be awarded against the plaintiff "in any suit which may hereafter be brought for wrongfully suing out" the attachment. Every attachment issued without such a bond is declared to be illegal and void, and directed to be dismissed. If a bond be given in accordance with the terms of the statute, and the attachment be afterwards quashed, the obligors become liable according to the terms of the condition. If the bond does not meet the requirements of the statute, and the attachment is nevertheless issued, and afterwards quashed or dismissed, the injury to the defendant is the same as in the former case; and there is no meritorious reason why the obligors should not be liable according to the tenor of their bond. Nor is it easy to see why, according to any legal principle, they should be discharged. The bond, though not effective to maintain an attachment, is not illegal; it is not forbidden by any statute, nor does it contravene any principle of morality or public policy, it is simply a voluntary obligation,--the act and deed of the obligors, by which they declared themselves to be held and firmly bound. The seal to a bond imports a consideration, and hence it is that in an action at law the failure of consideration cannot be inquired into or proved. A bond not...