16 Mo. App. 1 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This'was an action of replevin for a horse, wagon, and harness. The plaintiff having made the affidavit and given the bond required by law, the property was delivered to him by order of court. The defendant’s answer sets up, that he is a constable of the city of St. Louis, and had levied upon the property as the property of defendant in a certain execution in his hands issued upon a judgment of a justice of the peace against one Cabanné ; that the plaintiff in this action claimed the property under the provisions of the sheriff and marshal’s act of 1855; whereupon the plaintiff in the action before the justice, gave to this defendant a good and sufficient indemnification bond, as provided by that act. The reply is a general denial. The cause was tried without a jury, and there was a finding and
The claim offered in evidence seems to be in the language of the statute. The claim, after its address to the constable, proceeds thus: “Sir: Take notice that I, the St. Louis Dairy Co., claim,” etc. It concludes thus: “St. Louis Dairy Company, per J. C. Cabanné, Sec. Sworn to and subscribed before me this 15th day of June, 1883. Charles A. Davis, Notary Public.”
The bond, which was offered in evidence by defendant and excluded by the court, is as follows: “ We, Frederick A. Schroeder and Isidore M. Bon, composing the firm of Schroeder & Bon, by Jacob Rowak as principal, and B. Womer and Joseph Schlange as securities, are held and firmly bound unto Julius Sauer in the sum of six hundred dollars, to the payment whereof well and truly to be made, we bind ourselves, our heirs, executors, and administrators jointly and severally, firmly by these presents. Sealed with our seals,” etc. The condition under written, is that of the usual indemnification bond prescribed by the statute. The bond is signed as follows: “ F. A. Schroeder & I. M. Bon, composing firm of Schroeder & Bon, seal. By J. Rowak, seal. B. Womer, seal. Joseph Schlange, seal.”
The testimony as to the execution of the bond is that of Jacob Rowak, as follows: “I know the firm of Schroeder & Bon. They do business in New York City. Some time last'May they telegraphed me about S. C. Cabanné’s note going to protest, and directed me to act to the best of my knowledge in their case against him, with the advice of my attorney. They had no other agent here at the time. I informed them of my having given the bond, and who the bondsmen were, and they did not dissent.”
It is claimed by respondent that the evidence did not establish the defence set up: 1. Because the claim shown is insufficient. 2. Because no authority appears in Rowak to execute the bond in the name of the principals. 3. Be
One whose property is seized on execution directed •against another, need not proceed to claim under the provisions of the special act of the 3d of March, 1855. He may, if he chooses, begin an action of replevin, disregarding his remedy under the act. If, however, he proceeds under the act, and makes a valid claim, and the officer in accordance with the act receives a sufficient indemnification bond from the plaintiff in the execution, then the claimant has no remedy against the officer, but must resort to his action on the bond. Bradley v. Holloway, 28 Mo. 150.
The claim which will have the effect of confining the claimant to the remedy on the bond, and which will deprive him of his right to replevy his property, must be a claim in conformity to the statute. There can be no legal difference between making no claim, and making a claim which is not in conformity with the statute, and so it is held in the case just cited. Whether the claim in evidence in this case can be regarded as verified by the affidavit of the claimant or of the agent of the claimant, we need not determine.
The statute requires a bond. The term bond imports an obligation in writing under seal. There can not be a bond without seal; and an instrument which speaks of a seal, but which has no seal or scroll, is held in Missouri not to be a specialty, and to be an instrument that can not be sued upon as a bond. The State ex rel. v. Clay Co., 46 Mo. 231; The State ex rel. v. Thompson, 49 Mo. 188. It is well settled, wherever the distinction between a specialty and a simple contract is preserved, according to the common-law doctrine on the subject and the recognized principles of agency, that an authority to an agent to execute an instrument under seal, whenever this is not done in the actual presence of the principal, must itself, in all cases, be under seal. Heirs, etc., v. McCullough, 1. M. L. 69; Hibblewhite v.
As, then, Schroeder and Brothers were not present, and no member of the firm was present, when Bowak signed the bond, in view of the general rule that an agent, unless authorized under seal to do so, can not execute a specialty for another in his absence (Story on Ag. sects. 49,242) there seems to be no sufficient evidence of any authority on the part of Bowak to execute the bond for them, and the bond is not shown to be a sufficient bond. The act provides that, on receiving the claim, the officer may demand a bond of the plaintiff or his agent. This does not imply any
The amendment' of March 14, 1859, to the original act provides (sect. 2, Gottschalk’s St. Louis County Laws, p. 563) that “ any indemnification bond taken, as aforesaid, with good and sufficient security, shall be deemed an indemnification bond within the meaning of the act to which this act is amendatory.” But this language, evidently, is not intended to repeal the provision of section 2 of the original act, that the bond shall be payable to the state and conditioned as the law requires. It obviously means that the bonds spoken of in the amended act, though by the amendment more than one bond may be taken, and the amount of the bond may be fixed by appraisement at a sum not based upon the value stated in the claim, and though the condition of the bond is made to conform, not to the original law, but to the execution act, are nevertheless to be considered as indemnification bonds under the original act and subject to its provisions.
We held, in The State to use v. Donnelly (9 Mo. App. 519), that a bond, otherwise in strict conformity to the statute, would protect the officer, though it contains a clause indemnifying the sheriff, which might be rejected as surplusage. The supreme court, in The State to use v. Leutzinger (41 Mo. 498), held that a bond taken to secure jointly several claimants was sufficient to protect the officer, since each claimant could have his several action on the bond. And Judge Wagner says in that opinion, that a bond that does not literally follow the statute will protect the officer, if it substantially follows the law. We are inclined to think that a bond not
The law should undoubtedly be construed with some strictness ; but it is also clear, both on reason and authority, that the officer is not to be deprived of the protection which the act was intended to extend to him where there has been a substantial compliance with its provisions. When sued in trespass, however, if he would set up this act. for his protection, he must bring himself within its provisions. This he does not do by introducing a bond of which the state is not the obligee, and which is signed in the name of the principal by an agent, who shows affirmatively that he had nothing but parol authority to sign the bond.
There was no declaration of law asked or given in the court below. It is admitted that plaintiff made out his prima facie case. As we think, for the reasons given,, that defendant failed in making out his defence, we ought to affirm the judgment. It is so ordered.