State v. Depeder

• Decision Date: 07 November 1887
• Court: Mississippi Supreme Court
• Parties: THE STATE, EX REL., ETC. v. M. P. DEPEDER, ET AL

3 So. 80

65 Miss. 26

THE STATE, EX REL., ETC. v. M. P. DEPEDER, ET AL

Supreme Court of Mississippi

November 7, 1887

APPEAL from the Circuit Court of Warren County, HON. RALPH NORTH Judge.

In 1885 Depeder & Brother executed a bond on which license was issued to them to retail vinous and spirituous liquors. This bond contained no provision against the sale of liquors to minors as is required by chapter 39, Code of 1880, but contained an obligation as follows: "And they will in all things faithfully observe and keep the provisions of chapter 56 Revised Code of Mississippi, adopted January 1, 1871." This chapter contained no provision against the sale of liquors to minors.

The State, on information, brought this action against the principals and sureties for a breach of such bond, and alleged that the breach consisted in a sale of liquor to a minor. The defendants demurred to the declaration, the demurrer was sustained, and the plaintiff appealed.

Judgment reversed and cause remanded.

McCabe & Anderson, for the appellant.

The demurrer should have been overruled, because the granting of license to M. P. Depeder & Brother to retail liquors, being undoubtedly a "legal proceeding," if, indeed, it was not also a judicial one, and the bond having performed the office of a strictly formal one, all defects and informalities are cured by statute, and they and their sureties are liable thereon for selling to the minor mentioned in the declaration. Code, 1880, § 2305; Carothers v. Leigh Bros., 60 Miss. 258; Clark v Clinton, 61 Miss. 337.

M. Marshall, for the appellees.

1. Does § 2305, Code of 1880, authorize the court to insert in the bond an obligation for a thing not contracted for?

This section was intended not to make contracts for parties, but to cure irregularities in those the parties made.

This is evidently its raison d'etre. And, although the words employed are, "When any bond, etc., etc., shall be executed in any legal proceeding," yet it is manifest that the expression "legal proceeding," means any proceeding at law.

It does not mean any lawful dealings--that is to say, any contract that the law permits to persons in private transactions.

The phrase "legal proceeding," is incidentally construed in State v. Fortinberry, 54 Miss. 316, and the same case on page 321 shows, by enumerating the bonds so spoken of, that all of them are bonds taken during judicial proceedings or suits.

Not to amplify the point, I refer to Andrews Digest, p. 68, title bonds, §§ 7, 8, to show a like use of the phrase.

If the section meant...