| Tex. | Jul 1, 1852
Lead Opinion
It is manifest that the conditions of the bond sued on are not in conformity with those expressly required by the statute under which the bond was taken; but is such non-conformity sufficient to invalidate the bond ? In the cane of Janes et al. v. Reynolds, administrator, (2 Tex. R., 255,) this court acknowledged that the general rule on the subject of statutory bonds is, “ that when directed to be made in a particular mode, that mode must be pursued;” but we say that “this rule is subject to modifications, and it is laid “ down that to render a bond void for want of conformity to a statute it must “be made so by express enactment, or must be intended as a fraud on the “obligors, by color of law, by an evasion of tlie statute.” (Treasurers v. Bates, 2 Bail. R., 376; United States v. Tingey, 5 Pet. R., 129; United States v. Bradley, 10 Id., 343; United Slates v. Lynn, 15 Id., 290; Speake et al. v. United States, 9 Cr. R., 28.) There is no provision in the statute making the bond void for non-conformity to the mode prescribed ; and if it- is void as a statutory bond, it is so on the ground of some other vice in it.
it is laid down iii the decision of this court in the case we have just cited, if not in express terms by implication at least, that if the covenants contained in the bond are more onerous than those imposed by the statute, such departure from the statute would invalidate tlie bond. The condition of the bond in this caséis “that they shall well and truly perform and discharge all the duties required of them as ferrymen,” language sufficiently comprehensive to embrace not only all the conditions expressly enumerated and required by the statute direct ing the bond to be taken, but also all other duties required by law from the licensed ferryman. And if there are other duties required by law it would result that the bond is more onerous to the.obligors than those imposed by the law under which it was taken. It will be found that the last sentence of the 15th section of t lie same, act gives to any person who may be detained at a public ferry, by the neglect of the ferryman performing his duty, the right to recover by a warrant from a justice of the peace ten dollars for such delay. The 16th section imposes a penalty for exacting- more toll than is allowed by law. These are duties not imposed by the conditions of tlie statutory bond, but would be embraced in the conditions of the bond sued on.
Again, the 5th section of tlie act to amend an act organizing justices’ courts, and defining the powers and jurisdiction of the same, January 19th, 1S40, (Dig., art. 1391,) enacts “That the County Courts throughout tlie Bepublic shall “require the owner or owners of tlie ferries- established in their respective “counties to give bond with good and sufficient security in the sum of one “thousand dollars, payable to the judge of tlie County Court of the county “where such ferry is established, and to his successors in office; conditioned, “that the person or persons giving- such bond shall keep the banks on either “ side of the water-course in good repair, and that the slope or amount of rise “from the water’s edge of such bank shall not exceed two feet for each rod.
“ And if any ferryman or owner of any ferry shall not comply with the
The conditions of the bond sued on would render the obligors bound for the fonnancc of the duty here imposed on the ferryman, whether any damage uau been sustained or not, if the duty had not been, performed. The object of the two statutory bonds required to he given by ferrymen or owners of ferries was obviously distinct; the first, was intended as a security for those who should sustain damage from the breach of its conditions; and if no damages had been sustained there could bo no ground for an action. The second was to secure the penalty for the non-performance of it duty imposed, without regard to the question whether damages had been sustained or not; and yet the"bond sued on is so framed that it could with as much propriety, and perhaps more, claim to he taken under the last as under the first. A literal conformity to the statute in a statutory bond in general would not he required; hut where its conditions are specially and particularly set out, as they are in the statute under which the bond sued on was made, the bond should substantially embrace eaeli of those conditions. The conditions expressed in the statute' have been so entirely disregarded in the bond sued on that we believe it could not be the ground of an action under the statute, and that the judgment must be reversed and cause dismissed.
It may be proper to remark that the law under which this suit was brought and the provisions of other statutes cited have all been repealed or suspended by the act of 23d of January, 1850. (Dig., art. 1413.)
Rehearing
REHEARING.
After the opinion of the court in this case had been delivered at the last term, on the petition of the appellee’s counsel a rehearing was granted, and an argument has been heard at this term. The counsel for the appellee has endeavored with much ability to establish two positions: 1st, that the bond sued on is a good statutory bond; 2d, that if not good as a statutory bond, yet it is a good and valid bond at common law, sufficient to sustain the judgment of court below.
We have endeavored to bestow due consideration on his arguments and the very respectable authorities referred to by him. On the first position assumed we will, in addition to what is said in our opinion in support of the coa-
To this last proposition, notwithstanding the great and sincere respect we entertain for the court so ruling, we are unable to yield one assent. We believe that, if a bond, intended tolie taken by the authority of a statute, cannot he sudained as a statutory bond, it caunot be valid as a common-law voluntary bond unless it Will stand as such without the aid of the statute by which it lias been repudiated. There is a class of bonds that may well be, sustained, from their form and structure, without the aid of any statute : injunction bonds, hail bonds, replevy bonds, forthcoming bonds, appeal and writ of emu- bonds, and all such as are made payable to the beneficiary or the interested party, unless taken raider coercion and oppression, or by fraudulent imposition on the party; they would be valid at common law without resorting to the statute to give them effect as such.
Again, we are. not prepared to say that the bond sued upon in this case, is a voluntary bond, because, independently of all statutory enactments, the appellants were under no moral obligation to give a bond before they could exercise the privilege of keeping a ferry boat upon their own lands and demanding a compensation from those who received their services. But by our statutes this natural right lias been abridged, and it lias been made a franchise to be exercised on giving bond and obtaining a license for its enjoyment. The statute should therefore require a more strict observance. Now, it will be seen that in most of the cases cited by the appellee’s counsel the suit was ou an official bond, as was the case in 3 Kelly, and it cannot be contended that to require an official bond from an officer on entering upon tlic discharge of official duties is any abridgement or restraint upon liis rights; yet the eminent judge wiio delivered tlie opinion in the case referred to, to support the conclusion that the second bond was a voluntary boud, seems to place much stress ou the fact that Stephens was already in the office of sheriff when that second bond was given by him. Had the appellants been already in the enjoyment of the franchise under a license when they gave the bond it would have been analogous
In the case of the Commissioners of the Poor for Lawrence District v. Gains et al., 1 vol. South Carolina Rep., 459, which was a suit on a bastardy bond, Judge Bolt, who gave the opinion of the court, says that the bond is not valid as a statutory bond; that where an act of the assembly requires a tiling io be done in a particular way, that way and that alone must be pursued; that every feature of the act is so distorted by this bond that one would hardly suppose it had any relation to it; and he proceeds, “ I do not think it a good bond at “common law; if it had been voluntarily entered into, for the purpose of sup- “ porting this child, I should consider it a duty which the obligor was under a “ natural and moral obligation to perform, and therefore a debt which he was “legally bound (o pay; but it appears on the face of it that he was taken by “virtue of a warrant from a magistrate, and compelled, under color of legal “authority, to enter into a bond for purposes which he was neither naturally “nor morally bound to perform.” Independently of the statute as before said, the appellants were neither legally nor morally bound to give the bond as a prerequisite to the exercise of the right to keep a ferry, and as they wore required to give the bond before exercising’ it, the giving’ it cannot well be called a voluntary act.
Unless we felt very clear that the bond was valid as a voluntary common-law bond, sound policy would forbid our sustaining’ it as such. Airy latitude allowed to officers whose duty it is to take bonds, in departing from the terms required by the statute in the structure and framing the bond, will be an encouragement to a further disregard and inattention to its requisitions, and it must bo productive of an evasion of tlie statute altogether, because it seems to be well settled that if a bond is sued upon as a common-law bond, there can be hut one recovery on it, (see case 3 Kelly, before cited;) hence a bond might so far depart from the-statute as not to be sustainable as a statutory bond, and this through design; and when sued upon as a common-law bond — say that it was a sheriff’s bond — the sheriff might invoke a recovery against him for a few dollars, which would prevent,|iiiy other suit being sustained on it — a bond that the statute contemplated should he a security against delinquencies to the amount of twenty or even one hundred thousand dollar» would he discharged by a judgment on it, as a common-law bond, for a mere nominal amount.
Believing that the bond sued on was neither void tinder the statute nor at common law, we adhere to the opinion that the judgment must he reversed and tlie cause dismissed. The only legal remedy that the appellee had was a suit at common law against the appellants as common carriers, if he had suffered by the negligence of themselves, their servant, or agents.
Reversed and dismissed.