3 Stew. 427 | Ala. | 1831
It is insisted by the dant’s counsel, that the bond varies from the statute, and is void for two reasons. 1st. Because it contains a condition not authorized bylaw, in the following words, viz: “and shall in all things, stand to and abide by all orders be made by the said James H. Wood and John Thomas, (the justices,) in relation thereto. ” 2d. Because it is not specified in the bond that the time at, and place on which Nixon was bound to appear to take the oath of insolvency, had been designated by the justices to whom the application had been made. But if this Court should consider the bond sufficient, it is urged that the judgment must be affirmed, because the declaration is defective, in not averring that the bond had been returned forfeited, according to the requisition of the statute.
In support of the position that the bond is void for the reason first assigned, we are referred to 19th Johnson 233. In that case, the sheriff had added to the conditions required by law, to a prison-bounds bond, one in the words following: “that the said A. shall at the request of the said J. L. B. as sheriff aforesaid, surrender himself to the said prison,” &c. It was determined that this bond was void. The Chief Justice, Spencer, in delivering the opinion of the Court, says “this is a substantial and material part of the condition. A mere verbal difference, or departure from the provisions of the statute, will not render a bond to the sheriff void; but when there is a substantial variance, as if the sheriff adds to the condition that he shall be kept without damage to the plaintiff, that will make the whole condition void. The sheriff in this case, had no right to require the defendant to surrender himself to prison at his request.” In the case cited, there was an express illegal stipulation contained in the bond; when the statute of New York, by virtue of which it was taken, expressly declared every bond void, taken in any other form than the one which it prescribed. It is true we are to understand that the same decision would have been made without that clause in the statute. But there is a wide .distinction between that case and this. Here the obligox*, Nixon, was “in all things, to stand to and abide by all orders to be made by the justices,” &c.; no specific obligation is imposed upon him, and the justices, we are told, are not authorized to make any order. If so, the words have no obligatory effect. Although justices of the peace frequently err, yet we must believe they would not so far
Nor do I think that the second objection to the validity of the bond can be sustained. The statute enacts that the bond shall be conditioned, that he personally appear, &c. “at such time and placeas maybe designated by two jus* tices of the peace, where such person may make his application.9’ There can be no reason to require that the bond shall recite that the justices have designated the time and place; it could have no possible effect on the party defendant to the execution. It is at his instance that the bond is entered into; he makes the application to the justices, and must have a knowledge of the time fixed on by them; he is aware of the agreement or disagreement of the time specified in the bond with that appointed by the justices, and if the officer were to refuse to insert the proper time, he would become responsible to him. Nor can any person, principal or security, be led into error on this subject. The bond specifies the purposes for which the defendant to the execution is required to appear; in this instance, the act is sufficiently pursued in that respect, and the securities have all the knowledge which is necessary to put them upon their guard, and cause them to see that the principal fulfils the condition of the bond.
I come now to consider the declaration. In cases which are carried from justices of the peace into the Circuit or County Courts by appeal, or certiorari, if the amount in controvery exceed twenty dollars, the parties are required to make up an issue, under the direction of the Court. It is true this may be an issue at law, where the parties wish to contest some principle; as in the present case, where the validity of a bond is brought into controversy. But I believe it would be a great departure from the simplicity of practice, intended to be introduced by the statute, to decide such cases upon astute questions. It is intended that merits shall be investigated, and it would be inconsistent with this object, to dispose of the cases upon formal objections. If either party therefore had committed an error in this respect, the Court upon being informed of it, should permit the pleading to beso amended as to do jus-
The legislature has evinced great solicitude, that suits instituted before justices of the peace, which are always for small amounts, should be freed, as far as practicable, from the rigid requirements of special pleading; and the Court is inclined to second such laudable efforts, by giving such a construction to the statutes, as is best calculated to promote the intention of their framers. We, therefore, in such cases, always feel inclined to discourage technical objections. The judgment is reversed by the unanimous opinion of the Court.
Judgment reversed.