32 Vt. 297 | Vt. | 1859
The only question which seems to be raised in the argument of the demurrer in this case, is in regard to the form of the action and the joinder of counts. There can be no question that the whole declaration is in assumpsit. The only remaining- question then seems to be, whether the term bond, is such an indication of the form of the contract as to exclude an action of assumpsit? It is true, in Denton v. Adams, 6 Vt. 40, the court held that the words “ writing- obligatory,” in a declara-' tion Upon a jail bond, imported that the instrument was signed
Terms of this kind vary somewhat in their import with reference to the subject matter. Jail bond, and sheriff’s bond, when the statute requires them to be executed under seal, would naturally enough imply sealing and signing, as has been held in regard to the term “ writing obligatory.”
But we are not prepared to say that the word bond, ex vi termini, implies a contract under seal. The term is used in various significations in popular language, as importing the substantive action expressed by the verb to bind. If one is bound, he is in bonds or under bonds. In that sense it implies nothing more than a binding contract, in whatever form. And although, in the phraseology of the law, the term usually denotes a specialty, we do not think it necessarily implies that, in the connection in which it is used in this declaration. Here it is used as the name of that class of contracts issued by railway companies, and secured by the mortgage of their roads. These instruments are made payable to the trustee named in the mortgage, or bearer, or to bearer generally, and pass, by delivery irom hand to hand, as money. So also with coupons attached for the semi-annual interest! They are called bonds, or railway bonds, but they are in fact, both the bonds and the coupons, mere bills or notes, and as strictly negotiable as bank bills. They have become a kind of currency in the country, and pass current at the banks until discredited. They are not, or should not be, under seal, and we suppose are not of late, certainly. And if they were, it might bo'cbme necessary for the courts to disregard that incident, in order to give them that legal operation which the unwritten law of commerce has already given them.
¥e think, therefore, that notwithstanding the use of the term, bond, this declaration describes a note, or a bill, and as such, that such contract may be declared upon, the same as bills of exchange, or promissory notes, as an instrument importing a consideration.
It has been before held that the bearer may maintain an action upon these instruments in his own name, both in the State and United States’ courts. It would be strange to hold otherwise
In this view there is no fatal defect in the declaration, or any* misjoinder.
Judgment affirmed.
