Starr v. Lyon

5 Conn. 538 | Conn. | 1825

Peters, J.

A bond to prosecute is essential to the validity of an attachment. Stat. 25.

It is a recognizance, or bond of record, acknowledged before a magistrate, with condition that the plaintiff shall prosecute his suit; and whatever avoids the attachment, avoids the bond. 1 Swift’s Dig. 376.

By the common law, if a bond or deed be altered, by a stranger, without the consent of the obligee, in a point material, it is void; and the reason given is, that the witness cannot prove it to be the act of the party that delivered it, when there is a material difference from the sense of the contract. 1 Swift’s Dig. 126. And in Henry Pigot's case, 11 Co. Rep. 27. which was an action of debt on a bail bond, it was resolved, “that when any deed is altered in a point material, by the party himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, rasing, or the drawing of a pen through a line, or through the midst of a material word, that shall avoid the deed.” The alteration of a simple contract in writing, avoids it, on the same principle. 1 Swift’s Dig. 126. A fortiori does it avoid an instrument more solemn than either.

The original writ, when issued by justice Wheeler, was void; for it was not returnable to any court. It was issued against, and the bond thereon was taken to, a person not in being. Had it been otherwise, the alteration of the place of trial from one town to another, and the alteration of the recognizance from two recognizees to one, rendered it void. This principle has been recently and repeatedly recognized by this Court. Thus, in Burrows v. Stoddard, 3 Conn. Rep. 431. where an attachment was made returnable to the county court at Norwich instead of New-London, where by law it was to be holden, and the writ was accordingly altered by the plaintiff, it was said by the Chief Justice, “that the alteration made in that instrument, after it had issued, changing the place of trial from Norwich to New-London, undoubtedly nullified it as an attachment;” and I understood all the other judges to be of the same opinion, although in the report they are silent on this point. A similar opinion was expressed, by this Court, in Parsons v. Ely & al 2 Conn. Rep. 377, 379. “In all cases of attachment,’' said the late Chief Justice, “or where the plaintiff lives out of the state, so that bonds are required by law, a material alteration of the writ, after it has been signed and issued, and while the bond continues necessary, will destroy the writ; for it will cease to be the writ on which the bond was taken; and to permit such an alteration might subject the person giving the bond to responsibilities that he did not contemplate. An alteration in the date, or the court to which it is returnable, is material." So in Peck v. Sill, 3 Conn. Rep. 157, where the plaintiff was allowed, by the county court, to amend his writ, by erasing the name of one of the defendants, sued as joint debtors, it was unanimously holden, by this Court, that the lien by attachment was terminated.

I repeat my concurrence in these opinions; and, therefore, I do not advise a new trial.

Hosmer, Ch. J. and Brainard and Bristol, Js. were of the same opinion.

New trial not to be granted.