92 Va. 601 | Va. | 1896
delivered the opinion of the court.
The demurrer to the declaration in this case, we think, ought to have been sustained.. The condition of the bond sued on, as stated in the declaration, was that the principal obligor therein would pay all costs and damages which might be awarded against him, or sustained by any person by reason of his suing out an action of detinue.
The breach assigned, and the damages claimed in each count of the declaration, were for the failure to pay and satisfy the damages sustained by the defendant in error by reason of the seizure and sale of her property in proceedings under section 2907 of the Code, ancillary to the action of detinue.
The condition of the bond was to do one thing. The breach assigned, for which damages were claimed, was for failure to do another. The breach of the bond is the gist of the action, for without a-breach there is no cause of action.
The condition of the bond is not sufficiently broad, as the defendant in error contends, to cover the breach assigned. This is apparent from the form of the bond prescribed by the statute. (Section 2907 of the Code.) It provides that the bond shall be “ payable to the defendant, with condition to pay all costs which may be awarded against the plaintiff in such action or warrant, and all damages which may accrue to the defendant, or any other person, by reason of the seizure of such property ” under the order or process issued in the proceeding given by that statute. The obligors in the bond, if it is taken in accordance with the statute, undertake to do two things—first, to pay all costs that may be awarded against the plaintiff in the action of detinue; second, to pay all damages that may accrue to the defendant, or any other person, by reason of the seizure of the property under the statutory proceeding.
The former was intended solely for the benefit of the defendant in the action of detinue, by securing the payment of his costs. The latter was intended for the benefit of the defendant in that action, and any other person who might be injured by the seizure of the property. The plaintiff in this case was not the defendant in the action of detinue, and could only rely upon the latter undertaking required by the statute, and that was wholly omitted from the bond sued on. But its omission does not render the bond void, as the plaintiffs in error insist.
It would not be in consonance with the rules of the common law, nor with the dictates of common sense, to hold such a bond void. Where the court or officer taking it has the authority or capacity to take it, and makes a mistake, by omitting some condition prescribed, or by inserting a condition not authorized, the bond is not vitiated, unless the statute, by express words or necessary implication, makes it wholly void. The bad does not vitiate the good ; and the bond may be sued on, so far as the conditions are good, as a statutory bond. Pratt v. Wright, 13 Gratt. 175; Gibson v. Beckham, 16 Gratt. 321.
The breach assigned in the declaration not being within the condition of the bond, the court erred in overruling the demurrer.
Upon the trial of the case, the bond was introduced in evidence. It contains no other condition than that stated in the declaration. This action having been brought for a cause not within the terms or conditions of the bond, it cannot be maintained. The defect is not one of form, but goes to the foundation of the action.
Reversed.