Conklin v. Goldsmith

5 Fla. 280 | Fla. | 1853

SEMMES, J.:

This was an attachment suit brought by appellants against the Respondents.

The attachment bond was signed by Moses W. Garrison as agent, binding himself and not his principals, Conklin & Smith.

Upon motion, the Court below quashed the attachment, because the bond was not given in the name of the principals, and the question for our consideration is, whether this was necessary to the validity of the writ ? Ve confess the point is not free from embarrassment. The whole difficulty arises out of the peculiar phraseology of the statute, which to say the least, renders the intention of the legislature as to the mode in which the bond should he executed, somewhat doubtful. The Words of the statute are, that “ before the issuing of any writ of attachment, the party applying for the same shall by himself, his agent or attorney, enter into bond with two of more good and sufficient securities,” &c.

However important it is to give significance and effect to every word, clause and sentence in a statute, yet less regard is to be paid to the words used than the policy which dictates the act. Broome Leg. Max., MO. And therefore where the language used is doubtful, or susceptible of two meanings, that which will better advance the remedy and is more consistent with the intention of the Legislature, should prevail; and it is thus the object of the law becomes one of the surest guides to its proper exposition. Notwithstanding the truth of this principle, and its application as a general rule, in the construction of the statutes, yet if the mode in which the bond should be executed in this case was clearly defined by the statute, the argument drawn from the general purpose and policy of the law, would be entitled to but little weight in determining the question before ns. For, though the policy of the attachment law was to facilitate the collection of debts by giving an additional remedy to the creditor, yet the main object of that part of the statute before us, was to protect the debtor from an improper use of this remedy, by requiring two good and sufficient securities to tbe bond. This object can as well be accomplished where tbe agent executes tbe bond in his own name as in the name of his principal. A very familiar rule in the construction of the statute, and one we think much more applicable to this case is, that the different parts of the statute should be so construed with reference to each other, that effect may if possible, be given to the whole act, and to this purpose the words should receive their ordinary meaning, and be prevented if possible, from becoming superfluous, void or insignificant.

If, as is contended by respondent’s counsel, tbe bond should be executed in the name of the principal, the question may well be asked as to the meaning to be given to the words “ agent or attorney,” or whence the necessity of using them at all % The principal being required to give a bond “ by himself,” it was but an idle ceremony in lieu of this, to authorize him to give the bond a by bis agent.” For what he does through his agent, in contemplation of law, he does himself. Why therefore clothe him with a power which he had at common law, above and independent of the grant in the statute ? Besides the word attar-my is evidently used in contradistinction to the word agent. If the agent was required to execute the bond in the principal’s name, as is insisted on, he must of necessity be an attorney in fact; otherwise, he could not bind the principal. But it could not have been contemplated in the use of the word attorney, to imply he should be one in /®<3¿,but an attorney at law, unless we conceive the folly that after the word agent, the Legislature should have seen the necessity of using the relative term, conveying the same identical idea. If the word attorney does not mean one at law, then it must be rejected as superfluous and unmeaning. The absurdity then seems manifest, that the party applying for the attachment is required to give a bond by himself or through his agent, who must have special authority for that purpose, while it would be a literal compliance with the statute for bis attorney at law to execute the bond in his own name, binding of course upon no one himself and the sureties who might subsequently sign.

The inconsistency of this construction is avoided by holding, as we do, that the bond is a good one under the statute if the agent execute the same in his own name, and this seems the only construction which the law seems susceptible of, to preserve its unity and give force and effect to the language. Being a remedial act, it should receive a liberal interpretation, such as, while it looks to the object of the statute, and secures ample indemnity to the defendant, leaves the remedy unfettered by a useless restriction, and one in our opinion not designed by the Legislature. An argument drawn from inconvenience, is invoked in favor of this construction, and we think it is entitled to great weight.

The remedy afforded by the statute would, in a majority ■of cases, be unavailing if the creditor, who is supposed to be .absent, is expected to furnish Ms agent with special authority to execute attachment bonds in anticipation of his debtors fraudulent acts. In this case, the agent having executed the bond in his own name, and given two good and sufficient securities, the end and purpose of the law, in our opinion, was complied with, while the consistency of the statute is preserved.

Statutes similar to our own have received in some of our States a judicial construction which support the foregoing views.

In Mississippi, the law requires that before the attachment is granted “ bond and security shall be taken from the party for whom the same shall be issued, his agent or attorney,” &c. TJpon the same question as the present, coming before the Court, in the ease of Frost vs. Cook, 7 Howard R., 358, Clayton, Justice, said : “ The bond given by the agent complied substantially with the statute; the object was to secure the defendant in the recovery of costs and damages, and that object is as well obtained by a bond of the- agent as of the principal.” See also Page vs. Ford, 2 S. & M., 266.

Let the judgment of the Court below be reversed and set aside, and the cause remitted to the Court below with instructions to deny the motion to quash, and to proceed in the cause.

Hon. J. Wayles Baker of the Middle Circuit, who satin this cause, was understood to dissent from the judgment of the Court,