3 Ga. 266 | Ga. | 1847
By the Court.
delivering the opinion.
The errors complained of in this case, grew out of exceptions taken to the oath and the bond in an attachment cause. The first exception to the attachment was, that the affidavit was signed by Daniel Herman, and the name which was inserted in the body of the affidavit was Daniel Harman, and therefore there was no sufficient oath according to the attachment law, taken by the plaintiff in attachment, Daniel Herman.
The second exception was, that the bond given by the attaching creditor in its conditions exceeded the requirements of the law, in this, that a part of the condition of the bond is, that the plaintiff “ should prosecute said attachment with effect at said court,” and therefore the attachment ought to be dismissed.
The Court below, Judge Hill presiding, overruled both of these exceptions; and to his decision in these regards, the plaintiff in error excepts.
The attachment law requires that the party suing out an
We are inclined to think with Judge Hill, that this is an instance of idem sonans. The sound of a, in the common use of this name, we can well conceive to be given to e. But we are not inclined to hold a very rigid rule as to this kind of pleadings; under the
The case of The King vs. John Morrison, reported in 2 Burrow 1189, was an indictment for perjury, in swearing to an answer in chancery. It was objected on the trial, “ that there was no proof of the identity of the person who swore to the answer, nor even proof that any person at all swore to it.” 'Lord Mansfield and the whole court held, “ that as the name subscribed to.the answer was proven to be the hand-writing of the defendant, and the master had proven that the jurat was subscribed by him, as being sworn before him; this was sufficient proof that he was the same person, and also that he actually swore it.” The court further say, “ and as to the actual swearing, it is in the nature and course of business quite necessary to take the jurat, attested by the proper person before whom the oath ought to be taken, as sufficient proof of its being
If in this case, upon an indictment for peijury, such proof were had, what could Daniel Herman reply f He might reply, if it were so, that he was personated, or that his name was subscribed by mistake; but would it be a sufficient reply, that in the body of the affidavit it appeared that Daniel Harman was the person actually sworn 1 I am sure it would not. This affidavit, too, is to be taken in connexion with the facts, that the attachment recites that Daniel Herman was sworn, and that the attachment bond was executed by him. We do not find that Judge Hill committed any error in this regard.
The statute of Georgia declares that the attachment shall [2.] issue, provided, that the officer before whom application shall be made “ shall take bond and security of the party for whom the same may be granted, in a sum equal to double the amount sworn to be due, payable to the defendant, for satisfying and paying all costs which may be incurred by the defendant, in case the plaintiff suing out such attachment shall discontinue or be cast in his suit, and also all damages which may be recovered against said plaintiff for suing out the same.” The' same act further declares every attachment issued without such bond taken, to be illegal, and shall be dismissed with costs. Prince 31. The ^ conditions of the bond which the statute requires are,
1. That in the event that the plaintiff shall discontinue or be cast in his suit, the obligors will pay the defendant the costs which may be incurred, and
2. In that event, that they will pay him all damages which may be recovered against the plaintiff for suing the attachment.
The bond given in the case under review contains the two conditions above expressed, and also the further condition, as it is said to be, that the plaintiff shall prosecute his attachment with effect at the court to which it is returnable ; and because of this further condition, it is said not to conform to the statute, and therefore the attachment ought to be dismissed.
The object of the bond required by) the statute, is the protection of the citizen against frivolous or vexatious suits of this kind. The benefits of it are the defendant’s; the burden is the plaintiff’s. It is material to remark, that the statute does not declare the bond
Blackstone says: “A'discontinuance is somewhat similar to a nonsuit.” And what is a nonsuit ? “ If the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law, in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and therefore a nonsuit or non prosequitur is entered.” 3 Blade. 296. Fortified by these considerations and authorities, I think I may with confidence adopt the definition of the terms discontinue his suit, above given.
Now, we inquire, what is&the meaning of the condition in this bond, “ to prosecute the suit with effect at the court to which it is returnable” ? It is to do at that term all that the law requires him to do — to be guilty of no default or delays against the rules of law.
We think for these reasons, that the bond given, is substantially in conformity with the statute.
But, admitting that it is not in exact conformity with the statute, we then say that not only will not the attachment be dismissed for that cause, but the bond is not void for that cause. To render a bond taken under a statute, void, it must be so according to express enactment; or must be intended to operate as a fraud upon the obligors by colour of the law, or as an evasion of the statute. The statute requiring this bond to be given, does not expressly enact that it shall be void unless taken in exact conformity with its provisions; it says, in fact, nothing about th.e validity of the bond; it only declares that if such a bond as it requires is not given, the attachment shall be dismissed with costs. If the bond is not expressly enacted to be void unless taken in conformity with the statute, then the rule is, that a bond taken under such a statute, is good so far as it conforms to it, and void only so far as it does riot conform. Commissioners of the Treasury vs. Davis, cited in 2 Nott & McCord, R. 426; The State vs. Mayson, id. 425; Treasurer vs. Bates, 2 Bailey R. 376; Stephens et al. vs. Crawford, Gov. &c., 1 Kelly, R. 581. Under this rule the bond is good as to - the other conditions, if it is void (which we have not admitted,) as to that condition which is claimed to be in disconformity with the
Let the judgment of the Court below be affirmed.