18 Mich. 93 | Mich. | 1869
In 1865, the plaintiff commenced a suit by attachment in the Circuit Court for the county of Bay, against William A. Cook, Charles M. Smith and George H. Rozet; and the sheriff levied the writ upon a large amount of personal property in the hands of one Charles Orton. In order to prevent the removal o'f such property, Orton caused to be executed and delivered to the sheriff, a bond as prescribed by the statute, Gomp. Laws, §§4754, 4755, with the condition, that if the obligors should well and truly pay any judgment which might be recovered by the said Peter C. Andre, in the suit commenced by the writ of. attachment, within sixty days after the judgment should be recovered, that then the obligation should be void, but otherwise of force. The present defendants were the makers of that bond. Upon the trial of the suit commenced by the attachment, the plaintiff, by permission of the court, under rule seventy-one of the Circuit Court, discontinued as to the defendants William A. Cook and Charles M. Smith, and proceeded against the defendant Rozet, against whom he recovered judgment for $4,692 61 damages, and $45.32, costs.
The bond given to the sheriff was subsequently assigned to the plaintiff by whom this suit was brought against the present defendants as makers of that bond, and the breach relied on consisted in the non-payment of the judgment in attachment against Rozet alone. In this action upon the bond, the defendants took the position that the discontinuance by the plaintiff, as to the two defendants, Cook and Smith, discharged the makers of the bond from their lia
The court below being of opinion however, that the statute gave the plaintiff the right to demand ■ judgment upon the bond for the full value of the attached property, notwithstanding the discontinuance as to Cook and Smith, and without regard to the value of Rozet’s interest in that property, refused permission to the defendants to show that Rozet was not the owner of any of the attached property, and awarded judgment against the defendants for the whole amount of the judgment in the attachment suit, with interest.
That the statute under which the bond was given, if applied according to the literal import of the language, may be thought to support the view taken by the Circuit Court is very probable, but we think that a just interpretation of that statute must necessitate a different result.
We are led to this conclusion, by considering the object of the statute, the nature of the contract evidenced by the bond, and its connection with the proceeding to which it belongs, and also the serious consequences which a contrary judgment would allow, and which therefore we are not to suppose the legislature intended.
The bond to be given by the defendant or person found in possession of the goods is to be executed by sureties. When executed, it must be considered as tacitly referring to the suit as then constituted in respect to parties, and not as it should possibly be thereafter constituted at the instance of the plaintiff to avoid defeat. The sureties, on .entering into the contract, measure the risk they incur by the chances which the plaintiff has to recover against the defendants in the writ, and the ability of the latter in case of defeat to respond to the plaintiff or the sureties themselves, if called on. As the writ only issues against i;he particular defendants, after a showing upon oath by the plaintiff or some one in his behalf, that the defendants named
Any such change of parties, however, as that made by the plaintiff in this case, would not only transform the prosecuted cause of action from a joint to an individual one, but would necessarily alter the operation of the contract of the sureties, and without their consent.
It would allow the plaintiff to recover, when, but for the discontinuance, he would be defeated; and, therefore, upon the theory of the plaintiff, would fix a liability upon the sureties which could not otherwise exist.
It would also have the effect to compel the sureties to look for indemnity to such defendant, or defendants, as should be left in the case at judgment, instead of the whole number of defendants named in the writ at the giving of the bond; and it might well happen that in the responsibility of the latter, the sureties would know themselves to be safe, while in that of the former they would know themselves to be without remedy.
It is believed that these considerations are sufficient to show that the construction contended for by the plaintiff is untenable, and that the judgment of the Circuit Court ought not to be supported.
The judgment must be reversed, with the costs of both courts.
