Barnes ex rel. Hayes v. Webster

16 Mo. 258

• Court: Supreme Court of Missouri
• Decided: March 15, 1852
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

1. By the common law, when a bond was given for the payment of money, with a defeasance to be void upon the performance of a collateral undertaking, if there was a breach of the condition, the whole penalty was forfeited and might be recovered in an action on the bond. Courts of chancery, however, whose province it was to relieve against forfeitures, would restrain the collection of the penalty and compel the plaintiff to receive such damages as he had actually sustained. The statute of 8 and 9 of William III, dispensed with the necessity of resorting to chancery, by requiring the plaintiff to set out the breaches and show the damages occasioned thereby. Judgment was entered for the penalty, and a memorandum was endorsed on the execution, that it might be discharged by the payment of the damages assessed and the costs. The judgment remained, as a security for the future breaches of the condition of the bond, the remedy for which was enforced by scire far-das toties quoties, until the penalty of the bond was exhausted. This statute extended to those bonds only, in which the obligee himself was injured by a breach of the condition. The provision with respect to official and other bonds, by the breach of the condition of which, others than the obligee might be injured, was an extension of the terms of the statute of 8 and 9 of William III. At common law, if A. covenanted with B. to pay C. a sum of money, B., for the use of 0., may maintain an action on this covenant. 3 Chit. Robbins v. Ayers, 10 Mo. Rep. Under the equity of the statute, the obligee is regarded as trustee for those who may sustain an injury by the breach of the condition, as it is supposed that the collection of the penalty, which is forfeited by the breach, would, in a court of equity, be restrained only by the payment of the damages sustained by him, for whose use and benefit the bond was given. In the case of McRea v. Evans, 2 Dev. 383, it was held, that a bond given to a trustee with condition to secure the rights of others, may, at common law, he put in suit in the name of the trustee, and an injury to a cestui que trust, assigned as a breach. That the act authorizing official bonds to be put in suit, by persons injured by the misconduct of the officers, without an assignment, is an affirmance of the common law, and although coroner’s bonds are not mentioned in it, they may be sued on in tbe same manner. To tbe same effect is tbe ease of Skinner v. Phillips, 4 Mass. Rep. 68. This last case is not impugned by that of tbe Commonwealth v. Hatch, 5 Mass. 198 ; for there it appears, that tbe bond was given for tbe sole use of tbe Commonwealth, and, of course, no one but her authorized agents- could put it in suit. Tbe rights of individuals were not designed to be protected by it, and, of course, they bad no right to sue. Tbe plaintiff is regarded as a trustee, for those who may be injured by a breach of tbe condition; they have a right to use bis name in tbe prosecution of tbe suit, and as tbe obligors could only get relief, at common law, by paying tbe damages actually sustained by tbe breach, so, on tbe forfeiture of tbe penalty, though tbe plaintiff' has sustained only nominal damages, yet tbe defendant cannot be relieved, but by tbe payment of tbe damages which another may have sustained by breach of tbe condition of tbe bond made for bis use and benefit. In other words, tbe plaintiff sues for the benefit of those for whom tbe bond was given as an indemnity, and the case, if not within tbe letter, is within tbe spirit of tbe law. This determination has not been made without an examination of tbe cases of Pickering v. Fisk, 6 Ver. 104. Spencer v. Watkinson, 11 Conn. 1. White v. Wilkins, 24 Maine, 299.

2. It is needless to cite authorities that this bond, although voluntary, and not authorized by any statute, is good as a common law bond. All bonds, though voluntary, if they do not contravene public policy, nor violate .any statute, are valid and binding on tbe parties to them.

3. As regards tbe case , in which tbe United States is tbe obligee and plaintiff, we do not see tbe force of the objections", that a bond to tbe United States, for tbe purposes indicated in that one, is not valid, not being executed in pursuance of any law, nor in connection with any business of tbe United States, or any duty of tbe obligor to them; and that, no one being authorized to accept the bond, there could be no delivery of it. In the multiplied transactions of the government of tbe United States, in both the executive and judicial departments, many cases occur, in which it is deemed necessary and prudent to take bonds, though there is no statute authorizing them. In all such cases, it is very convenient to make the bonds payable to the United States, as, thereby, many delays are prevented and intricate questions avoided, which would arise upon bonds payable to individuals or officers, by reason of deaths, successions, &c. The United States are not liable for costs, and no evil can arise from this practice. The process of foreign attachment can be issued by the Circuit Courts of the United States, in cases where the defendant is found within the district in which the process issues, so that it can be served upon him. In analogy to the practice which prevails in this state, bonds may be given before the process issues. Such bonds would stand upon the same footing as the bonds in the cases of the United States v. Tingey, 5 Pet. 115. United States v. Bradley, 10 Peters, 343. Postmaster General v. Rice, Gilpin’s Rep: 561. Postmaster General v. Norvell, ib. 120. In all these cases, the acceptance of the bond was presumed, although there was no law authorizing the officer to take them.

Judge Ryland concurring, the judgment is reversed, and the cause remanded. Judge Gamble not sitting.