Phansteihl v. Vanderhoof

22 Mich. 296 | Mich. | 1871

Cooley, J.

.This case is within the ruling of Clark v. Dorr, 7 Mich., 310.

The suit was upon a bond given to obtain the release of property attached. The condition of the bond was that' the obligors would pay any judgment recovered by the-plaintiff in the attachment suit. The plaintiff recovered judgment, and the only question here is, whether the obligors in the attachment bond are liable to -him for the full amount of this judgment, or, on the other hand, only to-the amount o.f the value of the property released to them-on giving the bond, -if that sum is less than the judgment..

Upon the bond alone there could be no question whatever; but the statute — Comp. L., § 4757 — provides that “ In case of failure to perform the condition of any such bond, the-plaintiff shall be entitled to recover thereon the full value of the property attached, or so much thereof as shall be sufficient to satisfy the judgment rendered on such attachment, with interest and costs.” The defendants insist that the plaintiff can only recover the value of the property, not exceeding in any case the amount of the judgment. We think, on the other hand, that he is entitled to recover the-amount of the judgment, irrespective of the value of the-property.

By referring to Comp. L., § 4755, it will be seen that the party giving bond had his option either to have it conditioned for the payment of the judgment, or for the production of the property to satisfy any execution that-might be issued thereon. He chose to give the bond first, mentioned. It can hardly be supposed that the statute-would have required from the obligors an absolute under-' taking to pay the judgment if their liability was to be conditional. Section 4757, before cited, provides the rule of damages for botli these bonds; and this fact presents a reason for the reference therein, to the value of the property. The bond given to produce'the property to satisfy an execution, has express reference to its value, and is only to be given in a penalty of twice its value, which may be much less than the demand sued for; but the bond given for the payment of the judgment must be in a penalty of double the amount mentioned in the attachment affidavit; a very .singular requirement, if the obligors were in no case to be liable beyond the value of the property attached. There is .a reason for this difference in the penalty provided, and we discover that reason in the different condition of the bond. When the statute requires a bond in double the amount in controversy, conditioned for the payment of the judgment, we cannot doubt that its intention was that the obligors should be liable for such judgment.

We find no error in the record, and the judgment must be affirmed, with costs.

The other Justices concurred.