170 Mo. 531 | Mo. | 1902
This case had its origin in the following circumstances now about to be related:
Elizabeth Burnside obtained a divorce from her husband, James Burnside, in the circuit court .of St. Louis, on June 5, 1894, with an allowance of fifty dollars a month for alimony and maintenance of herself and children. Thereafter, on March 29,1895, the court, on plaintiff’s motion, ordered the defendant in the divorce case to give bond with surety, ‘ ‘ in the sum of six thousand dollars within ten days, conditioned for the payment of the monthly allowance of fifty dollars a
“Now, therefore, be it known that we, the undersigned, James Burnside, as principal, and Thomas Wand, as surety, are held and firmly bound unto the said Elizabeth J. Burnside in the sum of six thousand dollars for the payment of which, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents.
“The condition of this bond is such, however, that if the said James Burnside shall well and truly pay unto the said Elizabeth J. Burnside the said monthly allowance of fifty dollars a month to plaintiff mentioned in said order of March 29, 1895, in accordance with the terms and provisions of the above recited decree of June 5, 1894, then this bond to be null and void; otherwise to remain in full force and effect.”
James Burnside failed to pay the fifty dollars a month, but became in arrears on account thereof as follows: fifteen dollars of the fifty dollars due on February 1, 1897, and fifty dollars a month from March 1, 1897, to September 1, 1897, aggregating three hundred and seventy-five dollars. Thereupon, on September 9, 1897, Elizabeth Burnside brought suit on said bond against Thomas Wand alleging the facts here stated and assigning as a breach of said bond the failure to make the payments above specified. The prayer of the petition is as follows: “Wherefore, plaintiff prays judgment against defendant, Thomas Wand, for six thousand dollars, the penalty of said bond, and that execution issue for the sum of three hundred and sixty-five dollars, with interest, as damages aforesaid, and the costs.”
James Burnside was not made a party to that suit, nor does it appear from the record before us whatever
Thereupon the clerk made the following entry in his minute hook: “1898. April 20. Judgment for plaintiff for $6,000, penalty of bond; damages $384.50. ”
The clerk then entered the following judgment upon the records:
“E. J. Burnside, v. Thomas Wand,
Judgment for plaintiff.
“St. Louis, April 20, 1898.
“Now, at this day, this cause coming on for hearing come the parties hereto, by their respective attorneys, and submit said cause to the court upon the pleading and evidence adduced, and the court having heard and duly considered the same, and being fully advised of and concerning the premises, doth find that the plaintiff is entitled to recover of the defendant the sum of six thousand dollars,-the penalty of the bond sued on, with a further judgment of three hundred and eighty-four and fifty one-hundredths dollars damages. It.is therefore considered and adjudged by the court, that the plaintiff recover of the defendant the sum of six thousand dollars, the penalty of the bond sued on, to be satisfied upon the payment of the sum of $384.50 damages, together with her costs and charges in this behalf expended, and that execution issue therefor.”
This judgment was set aside and re-entered, in the same terms, on April 29, 1898.
The defendant appealed from this judgment to the St. Louis Court of Appeals, and that court affirmed
On February 14, 1899, plaintiff, after notice to defendant, filed a motion in the St. Louis Court of Appeals, to correct the judgment of the circuit court “so as to make said judgment to stand as security for future breaches and to provide in terms for execution for damages assessed, in conformity with the provisions of chapter 22, article 1, of Revised Statutes of Missouri, 1889.” The Court of Appeals struck the motion from the files and directed the plaintiff to apply to the circuit court for relief.
The plaintiff, then on February 27, 1899, filed the following motion in the circuit court, giving the defendant notice thereof:
“Now comes the plaintiff, by her attorney, and moves the court to correct by nunc pro tunc order the informality in entry of judgment in this cause, so that it shall not express the debt to be discharged upon the payment of damages, but shall express the amount of damages awarded, with provision for execution therefor, and a further provision that the judgment for the penalty of the bond, six thousand dollars, shall stand as security for further breaches of said bond, in conformity with chapter 22, article 1, of Revised Statutes of Missouri of 1889, and particularly with sections 869 and 871 of said article.’’ ■
Upon a hearing, the circuit court, on March 22, 1899,- sustained the motion and amended the judgment as requested, nunc pro tunc, as of April 29, 1898, and defendant, after saving proper exceptions, and taking proper steps, appealed, and this is the matter now before this court for adjudication. It also appears that on December 8,1899, on motion of plaintiff, upon notice
1. A nunc pro tunc judgment, at a subsequent term, can only be made upon evidence furnished by the papers and files in the cause, or something of record, or in the'clerk’s minute book, or on the judge’s docket. In other words, a nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. It can never correct a mistake or oversight of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render. [Freeman on Judgts. (3 Ed.), sec. 69; Ross v. Ross 83 Mo. 100; Bank v. Allen, 68 Mo. 474; State v. Jeffors, 64 Mo. 376; Belkin v. Rhodes, 76 Mo. 652; Wooldridge v. Quinn, 70 Mo. 371; Gamble v. Daugherty, 71 Mo. 599; Railroad v. Holschlag, 144 Mo. l. c. 256; Young v. Young, 165 Mo. 624.]
Tested by these rules, there is nothing in this record which authorizes or justifies an amendment of the judgment, nunc pro tunc. The judgment as entered by the clerk is strictly in conformity to the prayer of the petition, the memorandum of the decision of the court, the memorandum filed with the clerk by the plaintiff’s counsel, and with the entry on the minute book of the clerk. The petition, the memorandum for judgment filed by counsel, the entry by the clerk on the minute book and the judgment entered of record, all treated the bond as a penal bond for the payment of money, “in which there is a condition or defeasance, by which the same is to become void on the payment of a less sum. ’ ’ In other words, as such a bond as is contemplated and governed by sections 862, 863, 864 and 865, Revised Statutes 1889, and not as a bond with collateral condition, other than the payment of money, such as is contemplated and governed by sections 866 to 875, Revised Statutes 1889.
There was no mistake or misprision of the clerk in entering the judgment therefor. He entered exactly
The fact that this judgment now entered nunc pro tunc, was not the judgment asked or expected by the plaintiff or intended to be entered by the court, is thus conclusively established by the acts of the plaintiff and her counsel. And -the institution of such second suit also indubitably proves that at that time counsel for plaintiff either did not know of the provisions of the statute whose aid he now invokes, permitting a judgment to be entered for the full penalty of the bond, with an execution for the damages then due, the judgment to stand as security .for further breaches, or damages, if any, or else knowing thereof, he did not intend
2. In the whole proceeding in this case, from its. inception to the satisfaction of the judgment, the plaintiff treated the bond as a penal bond-such a bond as is contemplated by sections 862 to 865, Revised Statutes 1889.' That is, a penal bond containing a condition or defeasance that it shall become void upon the payment of a lesser sum. But this bond is in no sense a penal bond, with such a condition or defeasance. It is a bond for the payment of money, that is, for the payment of sis thousand dollars, in equal payments of fifty dollars a month. There is no condition or defeasance by or under which the six thousand dollars, which is nowhere spoken of as a penalty, shall become satisfied by the payment of a lesser sum. The bond in question therefore is not a penal bond at all, and it is not such a bond as is within the contemplation of sections 862 to 865, Revised Statutes 1889, which sections are in some respects the same as the act of 4 Anne, ch. 16, secs. XII and XIII, as will be more fully demonstrated hereafter.
3. Neither is the bond in question such a bond as-is contemplated by sections 866 to 875, Revised Statutes 1889, which is in some respects the same as the act of 8 and 9 William III, ch. XI, sec. VIII. The bond contemplated and governed by these sections and this act is a bond with a “collateral condition, other than the payment of money.” In other words, it is a bond for the faithful performance of a covenant or agreement other than the payment of money. These sections of the statute have therefore no bearing upon bonds or suits upon bonds like the bond in question.
4. It is contended, however, that under chapter 22, article 1, Revised Statutes 1889, and particularly un
This is a misapplication of the case cited and a misconception of the statutory provision quoted.
The case of Railroad v. Mockbee, supra, was a suit to condemn land of defendant for a right of way for a railroad. Commissioners to assess the damages to the defendant were appointed and made* a report, which found that the defendant would not be damaged by the taking. The defendant filed exceptions to the report. The court overruled the exceptions and ordered a judgment for the railroad company as prayed for in the petition. The clerk entered a judgment that the plaintiff take nothing by his action, and that defendant recover costs; It was held that: ‘ ‘ This was not the judgment required and authorized by the law governing the case. When the objections were overruled, and the judgment given for the plaintiff, it should have been a 'judgment vesting the title in the company. ’ ’ The correction of the judgment by a nunc pro tunc order was therefore held proper. It is significantly said, however, “All this sufficiently appears of record and presented the requisite data to amend by.”
But there is no data in this case to amend by, and the statutory provisions relied on do not. authorize or require such a. judgment as was entered by the nunc pro tunc order in this case, for sections 866 to 875, Revised Statutes 1889, have no application to bonds of the character of the bond in question here.
5. Chapter 22, article 1, Revised Statutes 1889, is,
It will be observed that nothing is here said about a judgment for the penalty of the bond, with an execution for the damages then due, the judgment to remain as security for further breaches. But on the contrary, the judgment is required to be for the sum really due at the date of the judgment.
Now observe the provisions of the Statute of 4 Anne, ch. 16, secs. XII and XIII, which are as follows:
“XII. And be it further enacted by the authority aforesaid, that from and after the said first day of ’Trinity Term, where any action of debt shall be brought upon any single bill, or where action of debt or scire facias, shall be brought upon any judgment, if the de-f endant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such action or suit, and where an action of debt is brought upon any bond which hath a condition or de-ieazance to make void the same upon payment of a les*548 ser sinn at day or place certain, if tlie obligor, Ms heirs, executors or administrators, have, before the action brought, paid to the obligee, his executors or administrators, the principal and interest due by the defeazance or condition of such bond, though such payment was not made strictly according to the condition or defeasance;, yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual a bar thereof, as if the money had been paid at the day and place according* to the condition or defeazance, and had been so pleaded.”
“XIII. And be it further enacted by the authority aforesaid, that if at any time, pending an action upon any such bond with a penalty, the defendant shall bring into the court where the action shall be depending, all the principal money,-and interest due on such bond, and also all such costs as have been expended in any suit or suits in law or equity upon such bond, the said, money so brought in shall be deemed and taken to be-in full satisfaction and discharge of the said bond, and the court shall and may give judgment to discharge-every such defendant of and from the same accordingly. ”
On.tbe other hand, sections 866 to 875, Revised Statutes 1889, relate to bonds with a “collateral condition other than the payment of money,” and provide that if the plaintiff recovers, the verdict assessing the-damages shall be entered on the record, and that a judgment shall be rendered for the penalty of the bond or for the penal sum forfeited and with a further judgment that the plaintiff have execution for the damages so assessed. [Sec. 869.] The judgment rendered for the penalty of the bond or for the penal sum forfeited is required by section 871 to remain as security for further breaches. And when further breaches occur the-plaintiff is given authority by scire facias to suggest, further breaches and like proceedings are then had as-were originally taken, and execution awarded for such further damages. [See. 872.]
Now note the provisions of the Act of 8 and 9 Will
“VIII. And he it further enacted, that in all actions, which from and after the said five and twentieth ■day of March, one thousand and six hundred ninety and ■seven, shall be commenced or prosecuted in any of his majesty’s courts of record, upon any bond or bonds; or ■on any penal sum, for non-performance of any covenants or agreements in any indenture, deed or writing •contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit, and the jury, upon -trial of such action or actions, shall and may assess, not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages of such of the said breaches so to be assigned, as the plaintiff upon the trial of the issues shall prove to have been broken, and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall be given for the plaintiff on a demurrer, or by confession, or nihil dicit, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ to the sheriff ■of that county where the action shall be brought, to summon a jury to appear before the justices or justice of assize, or nisi prius, of that county, to enquire of the -truth of every one of those breaches, and to assess the •damages that the plaintiff shall have sustained thereby; in which writ it shall be commanded to the said justices •or justice of assize, or nisi prius, that he or they shall malee return thereof to the court from whence the same ■shall issue, at the time in such writ mentioned; and in ■case the defendant or defendants, after such judgment •entered, and before any execution executed, shall pay unto the court where the action shall be brought, to the use of the plaintiff or plaintiffs, or his or their executors or administrators, such damages so to be assessed by reason of all or any of the breaches of such covenants, together with the costs of suit, a stay of execution of the .said judgment shall be entered upon record; or if by reason of an execution executed, the plaintiff or plain*550 tiffs, or Ms or their executors or administrators, shall be fully paid or satisfied all such damages so to be assessed, together with his or their costs of suit, and all reasonable charges and expenses for executing the said execution, the body, lands, or goods of the defendant, shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record; but notwithstanding in each ease such judgment shall remain, continue, and be, as a further security to answer to the plaintiff or plaintiffs, and his or their executors or administrators, such damages as shall or may be sustained for further breach of any covenant or covenants in the same indenture, deed, or writing contained, upon which the plaintiff or plaintiffs may have a scire facias upon the said judgment against the defendant or against his heirs, terre-tenants, or his executors or administrators, suggesting other breaches, of the said covenants or agreements, and to summon him or them respectively to show cause why execution shall not be had or awarded upon the said judgment, upon which there shall be the like proceeding as was in the action of debt upon the said bond or obligation, for assessing of' damages upon trial of issues joined upon such breaches, or inquiry thereof upon a writ to be awarded in manner as aforesaid; and that upon payment or satisfaction in manner as aforesaid, of such future damages, costs, and charges, as aforesaid, all further proceedings on the said judgment are again to be stayed, and so toiies quoties, and the defendant, his body, lands, or goods, shall be discharged out of execution, as aforesaid.”
The act of 8 and 9 William III, was passed in 1697, and the act of 4 Anne was passed in 1707.
For a proper understanding and appreciation of the force and reason of these respective English statutes, a short retrospect of the law in England prior to their enactment is both necessary and pertinent.
The old English law is dramatically shown by Shakespeare, when he pictures Shylock demanding his pound of flesh. That is, in England, before the adoption of the statutes quoted, in cases upon a penal bond
The practice obtained in England, in every sort of action, to permit the defendant to bring into court the principal, with interest and costs, demanded, and thereupon to obtain a stay of further proceedings against him. [Tidd’s Prac., marg. p. 541.] The learned author just cited, says (p. 542): “In debt on bond, conditioned for the payment of a less sum, it was usual for the courts, even before the Statutes of 4 Anne, c. 16, section 13, to relieve the defendant against the penalty of the bond, on payment of the principal, interest and costs; but then the whole penalty must have been brought into court, and when the plaintiff was satisfied, the defendant might have taken what remained.”
The author then points out that under the Statute of Anne, the defendant must bring in the whole principal and interest, due on the bond, with the costs, and upon his doing so, “the court shall and may give judgment to discharge every such defendant of and from the same accordingly. ’ ’
The difference between the practice of the courts and the rule of action prescribed by this statute is, the courts required the defendant to bring into court the full amount of the penalty with interest and costs, paid the plaintiff what was really due him and returned the balance, if any, of the fund so paid into court to the defendant. Whereas, under the Statute of Anne, the defendant was only required to pay into court the sum actually due on the bond (not the whole penalty) with interest and costs, and then if the plaintiff did not accept such payment into court (like our fender by payment into court) and prosecuted his case further in
Neither the Statute of Anne nor our statute contemplates that in suits on penal bonds for the payment of money, that is, bonds “in which there is a condition or defeazance by which the same is to become void on the payment of a less sum,” any judgment shall ever be rendered for any more than the sum really due on the bond. Neither statute gives any authority to the court in suits upon such bonds to enter a judgment for the penalty of the bond, award an execution for the amount really due, and have the judgment for the penalty remain as security for further payment. But, on the contrary, the English statute expressly declares that upon the defendant bringing in the sum really due, with interest and costs, he shall be discharged, and our statute provides that upon the payment into court of the sum really due, with interest and costs, “thereupon such action shall be discontinued.” [Sec. 864.] In addition, instead of our statute allowing a judgment for the whole penalty and an execution for the sum really due, the judgment to stand as further security, it is expressly provided by section 865, Revised Statutes 1889: “If judgment be rendered on any such bond, such judgment shall be rendered for the sum really due, according to such condition, with interest and costs, and execution shall issue thereon accordingly.”
The Statute of Arme abolished and superseded the practice of courts requiring the whole penalty, with interest and costs, to be paid into court, the plaintiff to be allowed what was really due him and the balance to be returned to the defendant, and in lieu thereof permitted the defendant to pay into court the amount really due,
It is necessary to say, however, that our statute does not include all that is embraced in the Statute of Anne. In this: the Statute of Anne, like our statute, covers bonds for a penalty, with a condition or defeasance by which they shall become void upon the payment of a lesser sum. But the Statute of Anne also covers actions for debt brought upon any single bill, or upon any judgment, in which case the defendant may discharge himself by paying into court the full amount of the debt, bond or judgment, with interest and costs. Whereas our statute contains no such provision. In fact, such bonds are not treated by our courts as penal bonds, nor as falling within the same class as penal bonds, but they are treated like any other agreement to pay money where the plaintiff is only entitled to recover what he can prove was actually due at the time the suit was brought. In other words, such a bond is properly a simplex obligatio. Whereas a bond for the payment of money upon a condition is denominated a double or conditional bond. [4 Am. and Eng. Enc. Law (2 Ed.), p. 620-621, notes.]
Thus it will be seen that neither our statute nor the Statute of Anne authorizes a judgment for the penalty of a penal bond for the payment of money, with a de-feasance that it shall become void upon the payment of .a lesser sum, with an award of an execution for the amount then due, the judgment to stand as security for further breaches, etc. But that it is only in cases of penal bonds, other than for the payment of money, with .a collateral condition, that the judgment is entered for fhe penalty, with an execution for the damages then due, the judgment to stand as security for further breaches, and that our statute in this regard is like the Statute of 8 and 9 William III. It will be noted that the Statute of 8 and 9 William III. was in existence in England for ten years before the Statute of Anne was passed, but it was never thought during that time or afterwards,
It is too plain, therefore, to admit of argument, or serious discussion, that our statute does not give any authority for entering a judgment in the case at bar for the penalty of the bond,.with an execution for the sum really due, the judgment to stand as security for further breaches. No such judgment was asked or contemplated by court or counsel when the suit was brought, or at any stage of its progress through the court, nor when the judgment was rendered, or when the satisfaction was entered, and no such judgment is permitted by our statute or by any English statute. This being so, it is not true that the circuit court has any power to enter such judgment by a nunc tunc order, on the theory that the statute provided that such should be the form and character of the judgment, and that it was therefore a mere mistake or misprision of the clerk not to enter such a judgment.
No such judgment is permissible under our statute, and, therefore, no such judgment could legally be entered by the court in the first instance, and, a for-tiori, not by a nunc pro tunc entry,
The plaintiff admits that the bond in question in this case is a bond for the payment of money, and not a penal bond for the payment of a penalty with a condition or defeasance that it shall become void upon the payment of a lesser sum, and not a bond, other than for the payment of money, with a collateral condition. In other words, the plaintiff admits that this bond is not such a bond as is defined or provided for by our statute.
But the plaintiff contends that this is a bond for the payment of money in installments or like a bond for the payment of an annuity and that therefore upon failure to pay any installment when due, the whole bond became due, and that she was entitled to a judgment for the whole amount of the bond, with an execution for the installments then due, the judgment to remain as security for the future installments. In support of this
Tidd’s Practice, marg. p. 543, says: “It was formerly holden, that this statute ’ ’ [he refers to the Statute of Anne] “did not extend to an action of debt on bond, conditioned for the payment of an annuity, or of money by installments. But it is now settled, upon the equity of the statute, that in such an action, when the defendant is solvent, the courts will stay the proceedings, on payment of the arrears and costs, and giving judgment as a security for future payments, with a stay of execution till they become due .... And if an installment of an annuity secured by bond, be not paid on that day, the bond is forfeited, and the penalty is the debt in law.”
In other words, in the earlier English cases construing the Statute of Anne (Ex Parte Groome, 1 Atkyns 118; Land v. Harris, 1 Strange’s Rep. 515) such a bond was held not to be within the words or meaning of the contemplation of the Statute of Anne, while in the later English case, such bonds while held not to be within the letter of the statute were said to be within the equity of the statute; whatever that may mean. An analysis of the cases cited by the author in support of the text, and the course of procedure adopted in those cases is interesting and pertinent. Thus, in Bridges v. Williamson, 2 Strange’s Rep. 814, the condition of the bond was to pay forty .pounds by five pounds per annum, and the defendant had leave to bring the arrears of five pounds per annum into court, under the Statute of Anne. But it will be observed that there was no judgment for the whole amount of the bond, nor was the judgment ordered to stand as further security, etc., the judgment was for the sum then actually due. Massen v. Touchet, 2 Blackstone’s Rep. 706, was an action of debt on a bond conditioned to pay six hundred pounds and interest in three years, in installments of fifteen pounds half-yearly, and six hundred and fifteen pounds at the end of the term, which had not arrived; when the suit was brought. The obligor failed to pay the interest when due, and the obligee brought suit for the whole
Rogers, Assignee, v. Stanford, Assignee, Barnes’ Rep. p. 288, was an action for rent on covenant broken. Under a rule of court, tbe defendant paid tbe rent into court. Nothing further was done during tbe life of tbe plaintiff. After bis death, bis executor moved for leave to take tbe money out of court for tbe rent that bad accrued up to tbe testator’s death, witb tbe accrued costs. Tbe defendant did not object to tbe money for tbe rent being taken out of court, but did object to tbe costs being taxed against him. It was shown that if tbe executor was not allowed to do this be could bring another suit for tbe rent that accrued between tbe institution of this suit and tbe testator’s death, and in such other suit be would recover costs. Thereupon, tbe defendant withdrew bis objection and judgment was rendered by consent, for tbe executor, that tbe money in court be applied to tbe rent that was due up to tbe time of tbe death, witb costs, and that no action should thereafter be brought by tbe executor for tbe same cause of action for which tbe former action was brought. It will be noted that neither tbe Statute of Anne, nor of 8 and 9 William III., nor tbe old English practice that obtained before tbe passage of those statutes, nor tbe rule of procedure adopted in Massen v. Touchet, supra, of entering a judgment for tbe whole amount, issuing an execution for tbe rent then due, and letting tbe judgment
Van Sandau v. ---, 1 Barn. & Aid. 214, was a suit on a penal bond for ten thousand pounds conditioned for the payment of five thousand two hundred and fifty pounds on September 29, 1820, with interest in the meantime payable half-yearly. The obligor did not pay the interest due on September 29, 1817. He had left bills of exchange with his agent to have discounted and applied to the payment of the interest; and had left London two days before the interest fell due and did not return until the end of October. His agent failed to pay the interest. The obligee sued for the penalty of the bond. The obligor applied toking’s bench for a rule to stay proceedings, on the payment of the interest due and costs. Lord Ellenborough, C. J., said: “The defendant in this case has-been guilty of a slip which amounts to a breach of the-condition of the bond; he has thereby given to the-plaintiff the advantage of obtaining a judgment for the whole penalty. To what extent the court may feel disposed to relieve the defendant against the consequences of such a judgment, is another question; but we are of opinion, at present, that the plaintiff is entitled to-proceed in this action, and that the judgment must stand as a security. Rule absolute."
This decision was rendered in 1817, and the Statute of Anne was passed in 1705. That statute was not noticed by the court or counsel, but counsel for the-plaintiff cited 8 and 9 William III. and argued that under it the defendant was entitled to pay the interest into court and that the judgment must stand as security, etc. And it is plain that the court fell into the error of applying that statute to the case, and it is equally plain that that statute, which related only to bonds other than for payment of money, with a collateral condition, had no possible application to the bond in-
Murry v. Earl of Stair, 2 Barn. & Cress. 82, decided in 1823, was a suit on a penal bond for four thousand pounds, conditioned to become void upon the payment of two thousand pounds, within sis months after the death of the Earl of Stair. Default was made, and suit brought for the full penalty. The court held that it was a post obit bond; that it was not within the Statute of 8 and 9 William III., but was controlled by the Statute of Anne, and that the defendant was entitled to be discharged upon tendering or paying into court the money due (the lesser sum), with interest and costs, and that the plaintiff was not entitled to recover the full penalty of the bond because he was cut off by the Statute of Anne from enforcing a claim for the whole penalty.
This case practically overruled the Yan Sandau case decided by Lord ElleNbobough, and is undoubtedly the correct construction to place upon the Statute of Anne, and of William, and supports and justifies the criticism herein made of the decision in the Van San-dau case. Therefore, notwithstanding loose and unguarded statements of text-writers and of some courts, that bonds securing the payment of annuities or bonds payable in installments, fall within the Statute of 8- and 9 William III. and the equally illogical statements of other courts that such bonds do not fall within the Statute of William, but do come within the Statute of Anne, and the likewise incomprehensible statement of some text-writers that while such bonds do not come
The practices of the earlier English cases of entering a judgment for the penalty, with execution to issue for the damages then due, the judgment to stand as security, etc., that obtained before the passage of the Statutes of William and Anne, never obtained in Missouri, for the reason that it was abrogated by those statutes in England, and such a practice is not within the letter or spirit of our statute relating to penal bonds for the payment of money.
It is easy to understand why the English courts construe such bonds to be governed by the old English practice, before the passage of the Statutes of William and Anne, and why those courts having invented that old rule of having the judgment entered for the full penalty with execution for the damages due, the judg
The premises considered, it follows that the circuit court erred in entering the nunc pro tunc order in this case, and likewise in setting aside the satisfaction of the judgment, and its judgment is therefore reversed, but the cause will not, for reasons already given, be remanded.
Separate OpiNiow.
This is an appeal from a judgment of the circuit court of St. Louis, amending, by a
It is said that the circuit court had power to enter the nunc pro tunc order upon either one of two grounds, to-wit: first, because the original judgment was a misprision of the clerk and was not the judgment the court ordered to be entered, and that there was evidence furnished by the papers and files in the case, the record proper, or the clerk’s minute book or the judge’s docket to show that this was true, and also to show what judgment the court did order to he entered; and, second, that if the first ground aforesaid he not true, still the statutes of this State prescribe the character, nature and form of the judgment that shall he entered in cases of the character of the case at bar.
Of course, all lawyers will admit that the conclusions stated are correct, if the premises are true. The question therefore is, are the premises true?
Is it a fact that there is any evidence furnished by the papers and files in the cause, or by the record, or by the clerk’s minute book, or by the judge’s docket showing that the judgment of April 29, 1898, was a misprision of the clerk, and likewise showing that the judgment as amended by the nunc pro tunc order of March 22, 1899, was the judgment the court originally ordered to be entered?
A short review of the evidence furnished as the rule above stated requires, will easily solve the first contention. On June 5, 1894, Mrs. Burnside obtained a decree of divorce from her husband with an allowance of fifty dollars a month alimony. He did not keep up the payments, so on March 29, 1895, the court ordered him to give bond “in the sum of six thousand dollars, within ten days, conditioned for the payment of the monthly allowance of fifty dollars a month to plaintiff. ’ ’ In pursuance to this order he gave a bond, with the defendant herein, Thomas Wand, as surety in'the sum of six thousand dollars, conditioned as follows; “The condition of this bond is such, however, that if the said
The defendant appealed from the original judgment, to the St. Louis Court of Appeals, where the judgment was affirmed, and the defendant paid the judgment, and the plaintiff entered satisfaction thereof. The plaintiff then on February 27, 1899, filed a motion to have the judgment amended nunc pro tunc “so that it shall not express the debt to.be discharged upon the payment of the damages, hut shall express the amount
The court amended the judgment nunc pro tunc as requested, and entered a judgment finding “for the plaintiff the sum of six thousand dollars, the penalty of the bond sued on, and that the plaintiff hath sustained damages by reason of the breaches of said bond in the petition set forth in the sum of $384.50. It is therefore considered by the court that the plaintiff recover of the defendant the sum of six thousand dollars, the penalty of the bond sued on, which judgment shall stand for the damages assessed, and shall remain as a security for any damages that may be thereafter sustained by the further breach of any condition of such bond; together with the costs by plaintiff in this behalf expended ,• and it is further ordered and adjudged that the plaintiff have execution for the sum of $384.50, the damages by the'court as assessed as aforesaid, together with costs.”
I.
Upon such a state of facts no one can fairly or successfully contend that there is any legal data furnished by the papers and files in the case, or by anything of record, or by the clerk’s minute book, or by the judge’s docket, that convicts the clerk of any clerical error, mistake or misprision, or that, in the slightest degree even tends to show that the court did not order such a judgment as the clerk entered or that the court did order such a judgment to be entered as it afterwards entered by a nunc pro tunc entry.
This is so true that it amounts to a demonstration, as can be very easily shown. The petition treats the bond as a penal bond conditioned for the payment of money. The prayer of the petition is for a judgment
The memorandum handed to the clerk hy the judge was simply, “Judgment for plaintiff.” “What judgment? The judgment prayed for, of course. There-was no hint hy the judge that he intended or ordered, any other kind of a judgment than one for six thousand, dollars “the penalty of said bond,” with execution for $375 “as damages aforesaid.” The most powerful. Roentgen ray can not discover any order for any other kind of a judgment. The most penetrating X-ray would fail to show, even in the mind of the counsel or the court, up to that time, any idea of entering any other kind of a judgment than that prayed for. The clerk did faithfully enter an order for such a judgment on his minutes and did enter the only kind of a judgment that the petition asked, and that the order of the court,, read in the light of the petition, directed to be entered.. The clerk, therefore did his duty, and was guilty of no-clerical error, mistake or misprision. If there was any mistake in the judgment as originally entered, it was the mistake of counsel in asking for that kind of a judgment. There was no mistake of the judge; for he simply ordered such a judgment as the plaintiff asked.. But if there was a mistake of the judge in ordering such a judgment to he entered, he had no power to correct, that mistake hy a nunc pro tunc entry, after the term at which the judgment was entered had expired.
It is therefore as clear as the noonday’s sun that there is nothing in the papers or files of the case, or in the record, or in the minutes of the clerk, or on the-docket of the judge that gives any color or countenance to the claim that the judgment of April 29, 1898, was a clerical error, mistake or misprision of the clerk or that the judgment so entered was not in truth and in fact the identical judgment the court ordered and intended to he entered.
Not only is this the fact as it appears hy all the data in the case that it is legal or proper to refer to,
For these reasons it is worse than idle to devote any more time or attention to the first contention, for the question of clerical misprision, in not entering the judgment the court ordered, is not in this case at all, nor is there 'any foundation for such a contention under ■the record in this case.
II.
The next question is, does the statute prescribe the nature of the judgment that must be entered upon bonds like the one in question here, and particularly does it require that the judgment entered nunc pro tunc, in "this case, should have been originally entered?
“At common law, if the principal be not fully paid according to the stipulation, the penalty becomes the debt, for which the action is brought and judgment is recovered. Of course, therefore, it is at common law no answer to the whole action for the debtor to plead that after his default he paid the principal. Such payment . is a discharge as far as it goes, but the penalty being then the debt, nothing less than the penalty can discharge the action, although, of course, any payment of less will be pro tanto a defense, and will reduce the amount for which judgment is to be given. [2 Bl. Com. 341; 2 Min. Insts. (4 Ed.), 832; Bac. Abr. Oblign. (F).]
“The hardship of regarding the penalty as the debt wherever the obligor made default in the payment of even the smallest part of the principal, intolerable as it appears to us, was ultimately relieved against in equity, but by very slow degrees. Chancery, from an early period, had given relief against penalties and forfeitures in a few cases, such as where the money was*567 paid but no acquittance taken, or an acquittance not under seal, or the acquittance was lost, and afterwards where the obligor was prevented by fraud or casualty from paying the money punctually; and finally, but not it seems until the reign of Charles I., in all cases of money bonds, however the default might have been brought about. [1 Spence’s Eq. Jurisd., 628 to 630.]
“In the progress of this amelioration by the court of chancery of the harsh exercise of the jurisdiction of the common-law courts, there took place, in the time of James I., a fierce conflict between Thomas Egerton, Lord Ellesmere, then lord chancellor, and Lord Coke, as to the power of the chancellor to interfere, by injunction, with an action at law, or with the judgment therein. Lord Coke insisted that the suing out of a subpoena in chancery, thus to arrest the judgment, or obstruct the proceedings of a court of common law, subjected the parties, their attorneys, and all concerned, to the penalties of the formidable statutes of praemu-nire (or, as it should rather be, praemoneri, drawing the subject before a foreign jurisdiction, 4 Bl. Com., 103, and seq., 428); and he used all his influence with the grand jury to cause all the parties in what he considered a grievous infraction of the law of England to be indicted for that offense. The strife was finally composed by the interposition of the king in council, who gladly availed himself of the odcasion to exalt the royal prerogative, by deciding in favor of the chancellor, and to settle the question of jurisdiction in all time to come, ordered the royal decree to be enrolled in the court of chancery, accompanied by the declaration, that it ‘appertained only to his princely office to judge over all judges, and to discern and determine such differences as at any time might arise between his several courts touching their jurisdictions, and the same to settle and determine as he in his princely wisdom should find to stand most with his honor.’ [2 Campb. Lives of Chancellors (Ld. Ellesmere), 210 and seq.; 1 Campb. Lives of Chief Justices (Ld. Coke), 282; 3 Bl. Com., 434-35; 2 Swanst. 22, n. (b); 2 Bac. Works, 489.]
*568 “In 2 Swanst. 22 n. (b), is a summary of tbe argument upon tbe antborities touching’ the question of the original jurisdiction of equity to enjoin judgments at law, drawn up by Mr. Hargrave; and in 2 Bac. Works, 489, is Lord Bacon’s account of the proceedings of the king’s council upon that subject, and also upon that of commendams, in which Lord Coke shows to more advantage than in his contest with Lord Ellesmere about the enjoining of the judgments of the courts at law.
“Thus was settled the power of the chancery to intervene in fitting cases; but the precise extent of that power, that is, in what cases it should be exercised, was not determined, as has been said, until the next reign. Meanwhile, it appears that, even in the latter part of the reign of James I., after Lord Ellesmere’s death, and the unhappy fall of Lord Bacon, whilst the great seal was in the custody of Bishop Williams, not only was it not agreed that penalties should be relieved against, except in rare cases of fraud or casualty, but it was considered the better opinion that they should not be, for which Lord Ellesmere’s authority was cited. This is discovered from an interesting MS. in the British Museum, printed by Mr. Hargrave, being an address touching ‘The Abuses and Remedies of Chancery, by Mr. G-eorge Norburie, and presented unto the Lord Keeper.’ In that address, Mr. Norburie discourses as follows of the
“ ‘MATTERS PROPERLY BELIEVABLE IN CHANCERY."
‘ ‘ ‘ Touching the affirmative part, what matters are relievable in the chancery, I have heard they must be one of these kinds, viz.: Matters of fraud, trust, extremity, or casualty, or else not lightly to be dealt in here. For almost all other besides these do arise from the remiss, careless, and negligent dealings of men, who, having precipitated themselves into some great inconveniences, come with open mouths into the chancery, seeking relief; wherein how far they shall be thought fit to be holpen, I will not presume to determine. Doubt*569 less many wise men do think it better to smart in some measure for their follies, than that their adversarys, haply honester men than themselves, should be vest here with a tedious and expensive suit, the court so much troubled as it is, and the course of honest, careful and precise dealings between man and man should be inverted. For to what purpose are bonds made with penalties, leases with forfeitures, nomine poenae, and ■clauses of re-entry, if the willful violators shall be exempt from all punishments, and who will take care to pay either debt or rent? I have heard the late honorable and worthy chancellor, Lord Ellesmeke, say, that he would not relieve any that forfeited a bond, unless it were in case of extremity, or that he would make it appear that by some accidental means he was occasioned thereunto; and if he did help any, the party here complaining should pay all the defendant’s .charges, both at the common law and in chancery (if he were able), if there was cause. Whereas of late much lenity has been used to all debtors, so that many, after four or five years’ suit and charges in this court, were glad to go away with their principal, without either cost or damages.’ [Hargrave’s Law Tracts, 431.]
“But when, in the time of Charles I., the equity of redemption, after forfeiture of a mortgaged estate, was established, it would have been inconsistent not to have extended the same doctrine to the forfeiture of the penalty in a money bond, as between the parties beneficially interested in the performance of the condition. The principle in either case was the same, namely, that the substance of the transaction was to secure the payment of the money within a reasonable time, so that if the debt were discharged within a reasonable time, with lawful interest, although the very letter of the engagement was not observed, yet the real substance of it was achieved; and it was not equitable, nor consistent with good conscience, that the creditor should demand or be allowed to have more, agreeably to that maxim of the court, that ‘ Equity regards the substance, and not the form of things.’ [1 Spence’s Eq. Jurisp., 629-30.]
*570 “The student is desired to observe, that in these cases where equity, either formerly or at present, interposes by injunction to prevent what it deems an iniquitous advantage from being taken of a judgment or other proceeding in a court of common law, it does not address itself to the common law court, over which it is acknowledged to have no control; but it directs its mandate to the parties, and, if need be, to the executive officers of the law, and prohibits those from suing out, and these from executing, any process in pursuance of the judgment, etc.
“After the lapse of somewhat over half a century, the relief which at first was given dubiously, even in equity, was deemed so obviously to conform to substantial justice that it was directed, by Statute 4 and 5 Anne, c. 16 (A. D. 1707), to be administered in the courts of law, the provision being that, although suit should be brought and judgment given as before for the penalty, yet the judgment should be accompanied by an entry upon the record that it should be discharged by the payment of the principal sum and interest. And this statute is found in our Code in almost the same terms. [2 Bl. Com., 341; Bac. Abd. Oblig. (F); V. C. 1873, ch. 173, secs. 16, 17, V. C. 1887, ch. 166, secs. 3393, 3394.] And as. a corollary to this enactment, it is provided that in any action of debt [meaning, doubtless, on a penal bill, or bond with condition, for such a plea was always proper on a single bill] the defendant may plead payment of the debt (or of so much as is due by the condition) before action brought’ that is, although after default made by the debtor. [V. C. 1873, ch. 168, sec. 1; V. C. 1887, ch. 160, sec. 3295.]
“As at common law the penalty becomes the debt upon the obligor’s default, so by that law the penalty usually limits the recovery, as it still does in respect to the surety. Equity, however, upon any application by the obligor for its aid (because he who asks equity must do equity), will compel the payment of principal and interest, though the aggregate exceed the penalty. [Bac. Abr. Oblig. (A.)] In Virginia the courts of law*571 habitually allow interest to be recovered in full, although, together with the principal, it may exceed the penalty, the excess being recovered as damages. [Tennant’s Exr. v. Gray, 5 Mnnf. 494; Baker v. Morris’s Admr., 10 Leigh 284; Tazewell v. Saunders, 13 Grat. 354.]”
It will be at once observed that in cases of penal bonds for the payment of money where there is only a single sum due or secured, there can be but one breach of the bond, and hence, there never was in the law such a thing in suits upon such bonds, as a judgment for the penalty of the bond, with an assessment of the damages for the past breaches, with a further, provision that the judgment should stand as security for further breaches. Under such bonds there could be only one breach, and the only question there ever was in the law was, whether the recovery should be for the sum actually due or for the whole penalty. This being true, the judgment could not stand as security for further breaches, for there could be no further breaches.
It is of such bonds that the Statute of Anne treated, and because there can be but one breach of such bonds, the statute provides that judgment shall be entered, not for the penalty, but for the sum actually due, and this also explains why neither at common law, nor under the Statute of Anne, was there ever a provision that the judgment should stand as security for further breaches.
Our statute (R. S. 1899, secs. 464 to 467) is in most respects like the Statute of Anne. It is like the Statute of Anne in that it relates to penal bonds conditioned for the payment of money, with a defeasance to become void upon the payment of a lesser sum, and in that it permits a judgment only for the amount actually due, and not for the penalty at all. But it is unlike the Statute of Anne in that it contemplates that there may be several breaches of the bond, and permits the assignment of as many breaches as have occurred at the time the action is begun. But our statute in respect to bonds conditioned for the payment of money is directly oppo
It is to be observed that the bond in this case has been treated by the plaintiff and the lower court as a penal bond conditioned for the payment of money. The petition prays for a judgment for the penalty of six thousand dollars, “the penalty of the bond, and that execution issue for the sum of three hundred and seventy-five dollars, with interest, as damages”— (nothing is said about the judgment standing as security for further breaches). The original judgment was for six thousand dollars, “the penalty of the bond sued on, to be satisfied upon the payment of the sum of $384.50 damages. ’ ’
The only difference between the petition and the judgment, therefore, is that the petition asked that execution issue for the damages, while the judgment was that it be satisfied upon the payment of the damages. In neither, however, was there any idea expressed or involved that the judgment was to stand as security for further breaches, nor could there be such a thing if thjs bond was a penal bond conditioned for the payment of money, nor if the bond was such a bond as is covered by our statute or the Statute of Anne.
The third kind of a bond was a penal bond conditioned to do a collateral thing. Of such bonds Prof. Minor, in his Institutes, vol. 3, p. 355, says:
“A bond with condition to do a collateral thing is a bond promising to pay a named sum of money, with a condition underwritten, that if a stipulated collateral thing (something other than the payment of money) be 'done or omitted, the obligation shall be void.
*573 “In this case also, as in the case of the bond with, condition to pay money, the common law holds- the whole penalty to he forfeited if the condition be not observed in every particular, however trivial; bnt the court of equity having interposed, upon the same principle as before, to compel the obligee to accept a suitable compensation in damages in satisfaction of the bond, it was provided by Statute 8 and 9 William III., c. 11 (A. D. 1697), in terms which the Virginia statute substantially reproduces, that the plaintiff may assign as many breaches of the condition as he shall think fit, and a jury shall ascertain the damages sustained by reason of such breaches, and judgment shall be entered for the penalty, to be discharged by the payment of the damages so ascertained, and such further sums as may be afterwards assessed, or be found due upon a scire facias assigning a further breach. [V. C. 1873, ch. 173, sec. 17; V. C. 1887, ch. 166, sec. 3394.] But let it be observed, that whilst one complaining of subsequent breaches, say of an official bond, like that of a sheriff, may thus resort to a scire facias upon the judgment already obtained at the relation of some one else, yet he is not precluded from a new action on the bond, as if there had been no previous recovery. [Sangster v. Commonwealth, 17 Grat. 124.]”
The statute of 8 and 9 William III. prescribed: "That in all actions . . . upon any bond or bonds, or on any penal sum, for non-performance of any covenants or agreements in any indenture, deed or writing contained, ’ ’ the plaintiff might assign as many breaches as he pleased and the judgment should be for the penalty of the bond, but execution should issue for suchL damages only as were due by reason of such breaches, and that the judgment should stand as security for further breaches, for which a scire facias might issue wherever such further breaches were thereafter found by the court to have occurred.
Our statute (sections 468 to 477 inclusive) is somewhat similar to the Statute of William III., but in some
The bond in question in this case is not such a bond as is contemplated by this statute. It is not a penal bond conditioned other than for the payment of money, and it is not a penal bond conditioned for the performance of any covenant or written agreement. It is not a penal bond at all. It contains none of the elements of a penal bond. It contains m> penalty whatever. It provides for the payment of a sum certain, to-wit, sis thousand dollars, not in gross, but in installments of fifty dollars a month. It nowhere provides that if any installment is not paid at the time specified, the whole sum of the bond shall become at once due and payable. •
In our statute the provisions of law relating to penal bonds conditioned for the payment of money, and also penal bonds conditioned to do a collateral thing other than the payment of money, are contained in article 1 of chapter 6, Revised Statutes 1899, but although this is true it is plain that the article is made up of two originally different acts. The main idea permeating the provisions of law relating to the two kinds of bonds are the same as the Statutes of Anne and William. But there are such differences apparent between our' statute and the English statutes as to arrest, at once, the attention, and to force the inquiry whether our statute is made up of the Statutes of Anne and William, with such changes as suggested themselves to the minds of our legislators,' or whether our statute is borrowed from the statutes of some other State.
Induced by this thought, the mind is at once prompted to look to the statutes of the State of New York, principally because so larga a part of our statute laws have been borrowed from that State. The result of such an inquiry is that the laws of New York are
They are as follows:
See. 468, R. S. Mo. 1899.
“When an action shall he prosecuted in any court upon any bond for the breach of any condition other than 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 petition, shall assign the specific breaches for which the action is brought.”
Sec. 5, Art. 2, Title VI, Chap. VI, Rev. Stats. N. Y. 1829.
“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.”
The only differences between our statute and the New York statute are the four words .italicised herein in the New York statute, and those are immaterial.
Now read the corresponding part of the Statute of 8 and 9 William III., which is as follows: “That in all actions which from and after the said five and twentieth day of March, one thousand, six hundred and ninety-seven, shall be commenced or prosecuted in any of his majesty’s courts of record, upon any bond or bonds, or on any penal sum, for non-performance of any covenants or agreements in any indenture, deed or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit,” etc.
It is therefore convincingly apparent that our statute is borrowed from the New York statute, and not. from the English statutes. It is a rule of law that when a statute is borrowed from another State, the decisions of the State from which the statute is borrowed, interpreting such statute, are borrowed also. Eor it is presumed that the Legislature adopting the-statute of a sister State knew of the interpretation placed upon the statute by the courts of such sister State, and intended that a like interpretation should be put upon the statute, after it became a part of the laws of the adopting State. When we adopted the New York statutes we therefore adopted the interpreting, decisions, of that State also.
It is conceded by every one that the bond in this-case is not such a bond as comes within the express terms of either the Statute of Anne, or the Statute of William III., or of our statute. And this- is strictly true. It does not come within the Statute of Anne because it is not a bond for the payment of money with a condition or defeasance to become void upon the payment of a lesser sum. It does not come within the Statute of William because it is not a bond for the breach of any condition other than for the payment of money, or for a penal sum for the non-performance of any covenant or written agreement. It is a bond for the payment of six thousand dollars in installments of fifty dollars a month.
But it is said that the English courts have held that bonds payable in installments, and likewise bonds conditioned for the payment of annuities, are within the statutes. It is true, as pointed out in the opinion of Sherwood, J., in this case, that the earlier English cases held that while such bonds were not within the letter they were within the equity of the Statute of Anne,
But for the purposes of this case let it be conceded that the English courts have so held, and then let the legal tests be applied to see if those cases should be followed in this ease.
Take, first, annuities. Under the old English practice the grantee of an annuity had three remedies to collect arrears due: first, by an action of annuity; second, by an action of debt; and, third, by an action of covenant. Of these, the old action of annuity has been abolished and entirely superseded by the action of covenant, and the action of debt is now held not to lie during the life of the annuity. So that for the recovery of arrears of an annuity, during the continuance of the annuity, only the action of covenant remains. Under the action of covenant, the recovery is only for the arrears due and no more. Under the obsolete action of annuity, the judgment was for the arrears due and the judgment remained as a security for subsequent breaches. During the space of a year after the judgment the plaintiff was entitled to take out executions to collect any arrears that fell due during that time, and after the year the plaintiff was entitled to a scire facias for subsequent arrears. [Lumley’s Law of Annuities, p. 392.]
On the other hand, under the action of covenant, which, as stated, has entirely superseded the action of annuity, the plaintiff “recovers all the arrears which may be due when the action is commenced, but no more. The judgment does not remain as a security for the annuity in future, but a fresh action must be' commenced
After thus pointing out the state of the law in England in cases where there is an agreement or covenant to pay an annuity, the same author (p. 399) in speaking of cases where there was a bond conditioned to pay an annuity, calls attention to the case of Morant v. Gough, 7 B. & C. 206, in which an action of debt was brought against the devisee of the obligor, after the obligor’s death, and after the devisee’s estate in the land had ceased, and says: "The point decided there was, that as the bond was for the payment of the annuity, and there was no penalty, the devisee was only liable to pay the annuity while his estate in the land continued. If it had been secured by a penalty, and that had been forfeited, either before the devisor’s death or during the continuance of the devisee’s interest, the latter might have been liable for the whole amount of the penalty, provided the value of his interest in the land was equivalent. ”
The author then adds (pp. 399 et seq.):
"At present, when an annuity is frequently granted by a bond in a penalty conditioned for the due payment of the annuity, the bond becomes forfeited on the breach of that condition by default of payment, and the obligee may sue in debt for the penalty. 'Where an action is brought on such a bond, the plaintiff must assign breaches, under the Statute 8 and 9 William III., c. II, as was holden in Collins v. Collins. And on judgment for the plaintiff on demurrer, or on default or confession, there must be a suggestion of breaches on the roll. In these cases the judgment by the provision of that statute remains as a-security for the annuity as far as the penalty of the bond, and farther breaches which may occur, after the satisfaction of those for which the action is first brought, may be recovered thereon, though a scire facias must be sued out, calling upon the defendant to show cause why he should not satisfy these last-accrued*579 .•arrears. So that the proceedings appear very similar to those in the writ of annuity.
“After the judgment of the court in Collins v. Collins, two cases occurred in the court of common pleas, where a sort of equitable discretion was exercised, and "this statute was not called in aid. In one, Howell v. Hanforth, where judgment was entered upon a warrant of attorney given to confess judgment on an annuity bond, and execution was sued out for the several breaches from time to time, without any scire facias, the court directed the judgment to stand as a security for the annuity, and execution to he taken out from time to dime, as might be necessary, on application to the court.' And in a subsequent case of a judgment on an annuity bond, the judgment was ordered to stand as a security, with a like liberty to issue execution for the arrears.
“Hence it was thought that this statute did not apply to annuity bonds, but after it had been held in Roles v. Rosewell, that the statute was compulsory on “the plaintiff, it was determined by the Court of King’s Bench that the judgment in Collins v. Collins was correct, and that on such bonds, after judgment for the plaintiff on demurrer, he must suggest breaches on the roll and proceed according to the directions of the act; which decision has been recognized in subsequent cases, .and the practice has been conformable with it.”
It is instructive to briefly analyze the English cases referred to by the author for the purpose of seeing the facts in judgment in those cases, and the reasoning employed-by the courts in regard to the applicability of the Statute of William.
Collins v. Collins, 2 Burrow 820, was an action of debt upon a bond. The amount of the bond is not stated, nor does it appear whether it was a penal bond -or a single bond. Upon oyer the condition of the bond .appeared to be: “to pay the plaintiff an annuity of 10 pounds a year during his life; and likewise to. maintain him’ in meat, drink, washing and lodging, in 'the •dwelling house at Crundall-end, for and during his life.” To the annuity the defendant pleaded .a"set-off,
“It is objected, first, ‘that this is not an action, brought upon a penalty for non-performance of an. agreement or covenant contained in any indenture, deed or xoritmg. ’ This is an. agreement between the parties, and an agreement in writing; the condition of the bond' is an agreement in writing; and people have frequently gone into courts of equity upon conditions of bonds, as-being agreements in writing, to have a specific performance of them.
*581 “It is said that if the plaintiff should take his judgment npon this act of Parliament, it would- not he a judgment for the penalty, bnt a judgment- only for the sum due, and no more; and that after the matter has once passed in rem judicatam, the plaintiff can not af-tenvards .recover any more upon this bond, whatever may become due by future non-payments, for there is no provision ‘that the judgment shall stand as a security for future payments,’ as there was in the Act of 8, 9 W. 3, c. 11, made for the better preventing frivolous and vexatious suits.
‘ ‘ The judgment is indeed by this act of 8 G. 2 directed to be entered ‘for no more than shall appear to be justly due to the plaintiff: ’ but as it. is clearly within the words and meaning of the act, that the penalty is to remain as a security against future breaches, in this case of a set-off pleaded, as much as it would have done upon the Act of 8, 9 W. 3, c. 11, if payment had been' agreeably to the directions therein contained.
“But as this case has not been before settled, ‘that a set-off may be pleaded in such a case as this, where the condition is for the payment of an annuity on growing sum’ ” leave was given to withdraw the demurrer and plead over.
This is the case, and thesq are the facts in judgment in the case, which is relied on to support the English, doctrine that bonds for the payment of annuities come within the Statute of 8 and 9 William III. It will be observed that the question of whether such bonds came within the Statute of William III., was not raised in that case at all. What is said there about that statute was wholly arguendo. The point in the case was whether a set-off was allowable against arrears due upon an annuity.
However, as will be hereinafter pointed out, even if annuity bonds do properly fall within the Statute of William, it by no means follows that the bond in question here falls within sections 468 et seq. of our statutes.
The eases of Howel v. Hanforth, 2 Wm. Black
Roles v. Rosewell, 5 T. R. 538, was an action of debt for a penalty of 100 pounds. It arose in this way. There was a controversy between the plaintiff and the-defendant respecting the title to certain chattels, and for the purpose of settling the controversy it was-agreed, “that B. L. and W. W. should take an inventory and make a valuation of the goods; that the defendant should give his note, payable to the plaintiff, for so much as the goods should be valued at; that the note should remain in the hands of B. L. until the opinion of counsel could be obtained on a case to be stated between the parties, as to their respective claims, such case to be drawn up by H. Stephens and W. Tin-ney; that the defendant on giving such note should be put into the actual possession of the goods; and that the said opinion should be conclusive on the parties and each party bound himself to the other in 100 pounds for abiding by that opinion, and for the performance of the agreement.” The defendant got possession of the goods, and gave his note. The arbitrators valued the goods at 73 pounds, 18 shillings, 11 pence. The plaintiff’s attorney prepared a. draft of the case, but the defendant refused to join in it or to settle. The suit was to recover the 100 pounds. The defendant made default. The plaintiff, without executing a writ of inquiry, took out execution for the whole penalty, but indorsed on the writ, “Levy 73 pounds, 18 shillings, 11 pence, besides costs and poundage."
Upon a rule to show cause why the execution should not be set aside because the plaintiff had not assigned breaches as required by the Statute of William, it was-argued, for the plaintiff, that notwithstanding the statute, the plaintiff was entitled to sue as at common law' for the whole penalty. The Court of Exchequer held that the plaintiff could elect to proceed, as at common.law, or under the Statute of William, and discharged the rule. Upon writ of .error to King’s Bench, this
It is to he noted that that case did not involve the question of whether a bond conditioned for the payment of an annuity is or is not within the Statute of William. On the contrary the bond involved in that case was a bond conditioned for the performance of an agreement iu writing, and hence was clearly within the Statute of William. And would also fall within the provisions of 'section 468 of our statutes, because it was a penal bond for the performance of a covenant or written agreement.
Willoughby v. Swinton, 6 East 550, arose under a rule to show cause why a fieri facias should- not be quashed, and the money paid thereon be restored to the defendant. It appeared that the defendant had given the plaintiff a bond in the penal sum of one thousand and eighty pounds, conditioned for the payment of 494 pounds, 4 shillings, 5 pence, by yearly installments of fifty pounds each. The condition was that if default be made in the payment of any of the installments the bond should remain in full force. At the time the bond was given the plaintiff gave- the defendant a memorandum which recited the terms and the giving of the bond, and then stipulated as follows: “Now'I do hereby declare that nothing in the said bond contained shall authorize me to proceed upon any' default of payment for any sum which shall not have become actually due at the time, nor tend in any manner to accelerate any of the other payments mentioned in said bond or the condition thereof.”
Under this bond the defendant made payments, but became in arrears on account thereof in the sum of seventy-five pounds. He was arrested in an action of-debt for the whole penalty but held to bail only for
Lord Ellenborough, Ch. J., held that Collins v. Collins, was decisive of the case, and that there was no difference between a bond to secure an annuity for life and a bond to secure a certain number of annual payments for so many years. Grose, J., was of the same opinion. Lawrence, J., said that if a bond securing an annuity was within the Statute of William, he could not say that a bond payable in installments was not within the statute. And LeBanc, J., was of, substantially, the same opinion.
Walcot v. Goulding, 8 T. R. 126, was an action of debt on a bond for 5,000 pounds, conditioned to pay an annuity of 250 pounds to the plaintiff during his life. 'The plaintiff had judgment, and toot out execution for 204 pounds, 10 shillings, without suggesting on the roll any breach of the condition: whereupon the defendant obtained a rule to show cause why the judgment and execution should not be set aside, on the ground that the plaintiff ought to have suggested a breach of the bond, under the Statute of William. The court said, “that it was established by the case of Collins v. Collins, that a bond conditioned for the payment of an annuity, was within Stat. 8 and 9 W. 3; and that it was decided in the cases of Hardy v. Bern (5 T. R. 636), and Roles v. Rosewell, after great consideration, that in all cases within the provision of the Statute 8 and 9 W. 3, the plaintiff must assign breaches on the record, that statute being compulsory on him.” Therefore the rule was made absolute.
Thus it will be seen that the evolution of the law
But if it be conceded that the English courts finally found a proper classification of annuity bonds and bonds payable in installments under the Statute of 8 and 9 William III., still that fact is by no means decisive of the case at bar, nor are those decisions controlling here, for the following reasons:
First. Because our statute is borrowed from New York and not from the English statutes, and the decisions of New York construing the statute were borrowed with the statute, and those rendered since then are persuasive authority, and the New York courts hold that' annuity bonds and bonds payable in installments áre-' not within the statute. [Spaulding v. Millard, 17 Wend. 331; Harmon v. Dedrick, 3 Barb. 192; Wood v. Wood, 3 Wend. 454; Nelson v. Bostwick, 5 Hill 37.] The courts of that State further hold that the several breaches are in the nature of distinct causes of action. [Beach v. Barons, 13 Barb. 305.]
In Harmon v. Dedrick, supra, the Supreme Gourt of New York refer to the English rule laid down in Willoughby v. Swinton, 6. East 550, and hold that no such
Nelson v. Bostruck, 5 Hill l. c. 40, was an action on a bond for $250, conditioned to pay the costs of a certain case, and Bronson, J., discussing the difference between the New York statute and the English statute, said:
“The Statute 8 and 9 William 3., c. 11, provided that the plaintiff might assign breaches, and only extended, in terms, to bonds for the performance of covenants. And yet upon the construction of that statute, it has been settled that the. plaintiff must assign breaches, and that he must do so in all cases, except upon bail bond, where the condition is not for the payment of a gross sum of money by the obligor at a specified time. He must even do so where the condition is for the payment of an annuity. [2 Saund. 187, note (2); Walcot v. Goulding, 8 T. R. 126.] But with us, breaches need not be assigned where the condition is that the obligor will pay a certain sum of money in specified installments. [Spaulding v. Millard, 17 Wend. 331.] Under the English decisions this was clearly a case for assigning breaches, and our statute is much broader in its terms than theirs. The words are, ‘the plaintiff shall assign breaches when the action is upon a bond “for the breach of any condition other than for the payment of money.” ’ [2 R. S. 378, sec. 5.] It extends to every kind of condition, excepting one that the obligor will pay a certain sum of money at a particular time, or in specified installments. ’ ’
In the same case Cowen, J., said:
“The 2 R. S. 300, (2 Ed.), sec. 6, requires breaches to be assigned by the declaration in an action on a bond for the breach of a condition other than for the payment of money; also in an action for any penal sum for the non-performance of any covenant or written agreement. The bond in question was conditioned to pay money. The award of costs could be for nothing else. The case is, therefore, out of the words of the statute. In Mann*589 v. Eckford’s Ex’rs (15 Wend. 502, 514), cited for the plaintiff in error, the action was on a bond or penal sum to secure the payment of money due by the written agreement of another. It came literally due within the last clause of the statute. Here the penalty is to secure the payment of money to become due under a future award of costs. This is the same as a sum in numero, except that the certainty is to arise by the act of a court. It is none the less certain in legal construction; for that is certain which can be made so. It may be admitted that where the condition is not to pay money in terms, but only to do what may or may not be resolved into an obligation to pay it, e. g., to perform an award, breaches must be assigned. [Allen v. Watson, 16 John. 205, 209; Welch v. Ireland, 6 East 613.] The rule must be drawn from the peculiar phraseology of our own statute, however, rather than that of 8 and 9 William 3., ch. 11, sec. 8, whose language is different. There are some decisions under the latter act which certainly can not be applied to ours {such as that a bond conditioned to pay money by installments calls for an assignment of breaches. [Willoughby v. Swinton, 6 East 550.] The case cited by the counsel for the plaintiff in error, viz., Walcot v. Goulding (8 T. R. 126) would probably come within the second clause of our statute, as being of a bond conditioned to pay money due on an independent written agreement. To say, as some of the English cases do, that the statute extends to a condition for performing an agreement implied by the condition itself, would destroy all exception, and require breaches in an action on every common money bond. [Vid. 1 Saund. 58, note (1); 1 Selv. N. P. (Ed. of 1839) 588.] However, if the rule be taken, as it is understood by Serj. Williams [2 Saund. 187, note (2).] that breaches must be assigned in all cases except where the condition is to pay a gross sum of money, or where the action is on a bail bond, it can scarcely be said to follow that the present case would not be without the statute.”
These decisions are emphasized and accentuated by
It is only necessary to add that our statute was borrowed from New York, and is impressed with the construction of the New York courts, and .the decisions of those courts are and ought to be controlling here.
Since writing the foregoing, my attention has been called to the fact that the Statute of 1835 hereinbefore referred to, was not the first statute on the subject of penal bonds that was enacted in this State, but that prior to that, in 1821, there was enacted, a law on that subject which was carried unchanged into the revision of 1825, and appears in vol. 2, pp. 615 and 616, and is as follows: “An Act to regulate proceedings on Penal Bonds.
“Be it enacted by the General Assembly of the State of Missouri: That in all actions brought upon bonds or bills, in which there is a condition or defeasance to be void on payments of a lesser sum at a day certain, if the defendant shall bring into court all the principal, interest and costs of such action, the money so brought in shall be deemed a free discharge, and the court shall give judgment accordingly, and in all actions brought on such bonds or bills, the plaintiff shall set out the condition in his declaration, and may assign as .many breaches as he may think proper, and if judgment be recovered either on verdict, confession, by default cr nil ¿Licit, such judgment shall be entered for the sum or sums of money really due, according to such condition or defeasance with interest and costs, and. execution shall issue thereon accordingly, and for no more.
“Sec. 2. Be it further enacted, That all actions upon deeds or bonds for any penal sum for non-performance of any conditions, covenants or agreements in any indenture, deed, or writing contained, the plaintiff may assign as many breaches as he may think fit, and the jury upon the trial of such action, may assess damages for such of the said breaches so to be assigned, as the plaintiff
It is apparent that section 1 of this act is substantially the same as the Statute of Anne, and that section 2 is almost literally the Apt of William. So that originally we adopted the English -statutes and with them, we adopted the decisions of the English courts construing those statutes.
Thereafter, the Act of 1835 was enacted, and the question is, was that act evolved out of the brains of our legislators as an original act, founded upon and built up from the Act of 1821, or was it borrowed from the New York statutes?
The similarity of language employed in the Act of 1821, with the Statute of Anne, and especially with the Statute of William, clearly .shows that the Statute of 1Í321 was borrowed from the English statute, with only such changes as the difference in our practice and in the composition and character of our courts necessitated.
On the other hand, the language, arrangement and genius of our Statute of 1835, is so nearly identical with that of the New York Statute of 1829, as to point unerringly to the latter as the model and source of the former.
Our'statute and the New York statute are so much alike that the conclusion is unavoidable that our statute was borrowed from the New York statute, or else that both came from a common source, and that source was not the Statute of Anne or William. In fact, the likeness between our statute and the New York statute is so great that if any man had claimed that with the English statutes as a basis, he had written our statute without having seen the New York statute, no one would have
Upon this showing the impartial legal mind is forced to the conclusion that onr Statute of 1835 was borrowed from the New York Statute of 1829, and this being true, we took the New York cases, reviewed herein, with it. Therefore, the New York cases enunciate the rule that should obtain in the construction of our statute, and the English cases construing the essentially different English statutes are not proper precedents to follow.
But for the sake of argument, let it be assumed that our statute was not borrowed from the New York statute, but was a wholly independent, original production ; the question then arises, how should our statute be construed?
Under this assumption, the question is a matter of first impression in this State: which cases ought this court to follow, the English eases, construing the dissimilar English statutes, or the New York cases, construing the exactly similar New York statute? Can there be but one answer to this question? But suppose the mind is still in doubt, there is yet one consideration which ought to settle the question, to-wit, why was the Act of 1835 passed? What evils was it intended to remedy? If the Act of 1821, borrowed from the English statutes and understood as the English courts construed it, was intended to be the law in this State thereafter, why did the Legislature pass the Act of 1835? If the English law and the English cases had proved satisfactory from 1821 to 1835, why was the law amended in 1835? It can not be said that the Act of 1835 was intended as a simple continuation of the Act of 1821, but dressed in different words. For, as the New York courts have aptly pointed out, there is so much difference between their Act of 1829 and the English statutes as to compel the courts of that State to cease following the English cases, and to take a radically different and diametrically opposite view of their statute.
The conditions that thus operated to change the course of decisions in New York, are present in this case in Missouri to-day. The only difference is that in New York, prior to 1829, they had only the English decisions construing the English statutes, as a guide and precedent, while in Missouri, prior to 1835, we had our Act of 1821, which was clearly taken from the English statutes, with the English decisions impressed thereon. The difference, therefore, is not real, and hardly seeming.
The same reasons must therefore have operated to cause the repeal of the Act of 1821, by the passage of the act of 1835 in Missouri, that operated to cause the passage of the New York Statute of 1829, and the consequent abandonment of the English rule and of the English cases. That reason could only have been that our people were not satisfied with the old law and the English decisions, and, therefore, changed the law by enacting the Act of 1835. This being true, the New York cases construing the similar New York law, are the only cases extant that construe a law like ours, and, hence, these de
Aside from these considerations, the New York decisions correctly construe the New York statute and, therefore, apply to our similar statute. Bonds securing the payment of annuities and bonds payable in installments are not within the letter of our statute, nor are they within the evils intended to be remedied by our statute. Such bonds are conditioned for the payment of money, and, therefore, they do not fall within the first class of bonds treated of by section 866, Revised Statutes 1889, for that pertains only to bonds conditioned ‘‘other than for the payment of money.” Neither do such bonds fall within the second class of bonds treated of by section 866, for that pertains to actions for a ‘‘penal sum for the non-performance of any covenant or written agreement.” Such bonds are not penal bonds at all. They have no penalty prescribed for the non-performance of any covenant or written agreement. The evil sought to be remedied in England, first by courts of equity, and later by statute, was to prevent the recovery of the whole penalty wherever the obligor failed in the slightest particular to comply with his agreement, and to limit the recovery to the damage actually suffered. In bonds payable in installments there is no penalty, hence, there could be no action to recover any penal sum, and, therefore, such bonds do not fall within the terms of the statute. And this is true even If the condition of the bond be construed to be a written agreement as Lord Mansfield held in Collins v. Collins. That eminent jurist failed to observe the fact in that case, that the suit Was not to recover a penal sum and that the Statute of William only covered suits to recover a penal sum for the non-performance of a covenant or written agreement, and that'the evil intended to-be remedied by that statute, was the recovery of the penalty and not of the real damages.
The original idea of having the judgment upon a.' hond conditioned to do a.collateral thing, remain as se- ” <curity for further breaches, was that the bond .became:'.
It necessarily and logically follows that the statutes-of this State relating to penal bonds conditioned other than for the payment of money (sec. 468 et seq., R. S. 1899) do not apply to bonds payable in installments and, therefore, there was no law which commanded, required or permitted the entry of such a judgment as was entered by the nunc pro tunc order in this case. It also follows that the cases of Rees v. Morgan, 3 T. R. 192; Jones v. Hart, 60 Mo. 358, and Railroad v. Mockbee, 63
For these reasons, I am of opinion that the circuit •court has no power to enter the nunc pro tunc judgment in this case, and, therefore, its judgment should be reversed. I further agree with the opinion of Sherwood, J., in this case.