State ex rel. Crawford v. Woodward

• Decision Date: 31 January 1844
• Citation: 8 Mo. 353
• Parties: THE STATE, TO USE OF CRAWFORD AND ADAMS, v. WOODWARD ET AL.
• Court: Missouri Supreme Court

8 Mo. 353

THE STATE, TO USE OF CRAWFORD AND ADAMS,

v.WOODWARD ET AL.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO COOPER CIRCUIT COURT.

HAYDEN, for Plaintiff. Covenant will lie upon a sheriff's bond, and th court erred in deciding to the contrary. 1 Chitty, pp. 131-3-4; 1 Pirtle's Digest, 227, § 132; 2 Bibb, 465; 3 J. J. Marshall, 496, Davis v. Noaks; 4 Bibb. 314; 1 Saunders, 58, a, note 1; 3 Comyn, 250; 3 Johns. R. 44, Hallet v. Wylie.

ADAMS, for Defendants. 1. Covenant will not lie upon a sheriff's bond. See William Clark, Governor of Missouri, to the use of William Gentry v. Murphy, &c., 1 Mo. R. 114; Digest, Laws of Mo., 1835, p. 261, § 54; 1 Payne's Crim. Court R. 422; 1 Peters' Digest, 688. 2. The securities in a sheriff's bond are not liable for a greater amount than the penalty of the bond, and in an action of covenant, a greater amount than the penalty might be recovered.

SCOTT, J.

This was an action of covenant on a sheriff's bond, against him and his securities. The declaration contained two breaches of the condition of the bond, and after the assignment of the breaches it is averred, that the defendants have not paid the penalty. To this declaration there was a demurrer, on which judgment was rendered for the defendants. The question is, whether an action of covenant will lie on a sheriff's bond? It is clear that, by the common law, an action of covenant was a concurrent remedy with debt on a single bill obligatory, or a penal bond, subject to be defeated by the performance of conditions. In such an action, the breach of covenant would be the non-payment of the debt in the one case; in the other the non-payment of the penalty, and on that breach, damages would have been assessed equa, in amount to the penalty for which judgment would have been rendered, and the defendant, in order to obtain relief against the penalty, was driven to his bill in equity. This being found oppressive, the common law was altered by the statute of 8 and 9 William III. Our statute regulating actions on penal bonds is similar to the English law, and declares that when any action shall be prosecuted in any court of law, upon any bond for the breach of any condition, other than for the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff in his declaration shall assign the specific breaches for which the action is brought. Section 5. The sixth section of said act prescribes, that upon the trial of such actions, if the jury find that any assignment of such breach is true, they shall assess the damages occasioned by the breach, in addition to their finding, or any other question of fact submitted to them.

It must be admitted, that in all actions of covenant, some breach of covenant must be assigned, otherwise the declaration is bad. In a bond for the payment of $5000, conditioned to be void upon the faithful discharge of the duties of an office, wherein consists the covenant? Is the condition a covenant? It cannot, with any propriety of language be so called. It is a collateral thing, which the obligor has not covenanted to do, and which he may do or not, without violating any covenant, if he is willing to pay the penalty. A. binds himself to pay B. $1000 to be void on condition that A. performs a journey to Rome. Does A. thereby promise to go...