Harris v. J. Regester & Sons

16 A. 386, 70 Md. 109, 1889 Md. LEXIS 14

• Court: Court of Appeals of Maryland
• Decided: January 10, 1889
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

Samuel W. Regester, and others, trading as J. Regester and Sons, sued John McCart in the Baltimore City Court in an action of covenant, and recovered a verdict upon which judgment Avas duly entered. McCart then appealed to this Court. He, as principal, and John Harris, as surety, executed an ajopeal bond Avhich Avas approved by a deputy in the office of the clerk of the City Court, the clerk himself being at that time under treatment in Spring Grove Insane Asylum for some mental disorder, though not ■ having been adjudged non compos mentis. The • judgment against McCart Avas affirmed by this Court in March, 1888, (68 Md., 429,) and on the fourth of April following, suit Avas instituted by Regester and Sons against McCart and Harris on the appeal bond referred to. McCart suffered judgment by default to go against himself, but Harris appeared and pleaded several defences, amongst Avhich were these, viz., that the bond Avas never delivered; that it was not approved by the clerk or the Judge of the Baltimore City Court, and that it is not in conformity with, or authorized by, the statutes providing for appeal bonds. Issues were properly framed and the case proceeded to trial. During its progress tAVO exceptions were taken by Harris, one to the exclusion of evidence, and the other to the granting of the .appellees' and the rejection of the appellant's prayers. Judgment having been finally entered against Harris,he has taken this appeal.

The principal and controlling question in the case arises under the fourth prayer presented by the appellant and rejected by the Court. Many of the other questions discussed in argument are of the narrowest technical character, not at all decisive of the case and not likely to arise again; whilst the remaining ones, though subordinate to the main one, are of sufficient importance to require a separate consideration.

The appellant’s fourth prayer asked the Court to instruct the jury, “that the said alleged bond is not in conformity with the statutes providing for appeal bonds, and the said clerk had no authority to accept or approve the same ; there was no legal delivery thereof, and the plaintiffs are not entitled to recover.” This goes to the very foundation of the case and if it correctly announces the law wholly precludes a recovery. Hence, whether this bond is or is not in conformity with the statutes providing for appeal bonds is the inquiry to which our attention must be first directed.

The Code of 1888, Art. 5, sec. 51, provides that “no execution upon any judgment or decree * * * * shall be stayed or delayed unless the person against whom such judgment or decree shall be rendered or passed * * * . * or some other person in his or their behalf shall immediately upon praying an appeal * * * * enter into hond with sufficient securities in at least double the sum recovered, &c.” Precisely the same words “sufficient securities” are used in the Code of 1860, Art. 5, sec. 31; and this section was taken from the Act of 1826, ch. 200, sec. 1, which repealed and replaced the Acts of 1811, ch. 171 and 1713, ch. 4; all of which required sureties in such an appeal bond. The plural, securities, or “sureties,” isthus usedthroughout these statutes, (the earliest of which was enacted a century and three-quarters ago,) and it can scarcely be assumed that it was not designedly done. The form given in Harris’ Entries provides spaces for two securities ; and Mr. Evans, in his work on Maryland Practice, in treating of appeal bonds, and referring to the Act of 1826, ch. 200, says on page 430, “this bond must be with tivo sureties, approved, &c.” Though the form referred to, and the statement made by Mr. Evans are not authoritative declarations of the meaning of the statute, they are cited to indicate the general understanding of the profession, and to show the construction followed in actual practice for a great number of years. Where the Legislature has deemed it expedient to require only a single surety on a bond, it has distinctly-declared that such bond should be entered into “with security” (Art. 9, sec. 19, Code of 1888,) or “approved and sufficient security” (Art. 5, sec. 89, Ib.,) &c. It would seem, therefore, upon looking to the language of the statute, that an appeal bond, effective to stay execution on a final judgment or decree, must be entered into by at least two sufficient securities. Whilst this question has never been passed upon by this Court, exactly similar statutory provisions have been construed by other appellate Courts, whose decisions are entitled to great weight. Blake vs. Sherman, 12 Minn., 420; Beebe vs. Young, et al., 13 Mich., 221; Van Wezel vs. Van Wezel, 3 Paige, 38; North Am. Coal Co. vs. Dyett, 4 Paige, 273. In Blake vs. Sherman an attachment was issued upon an affidavit of the plaintiff' against the property of the defendant. A motion was made to dissolve the attachment, and among other grounds it was rirged that the bond required by the statute had not been given. Sec. 131, page 467, Gen. Stat. provided that “before issuing the writ the Judge or Court commissioner shall require a bond on the part of the plaintiff, with sufficient sureties, conditioned, &c.” The instrument objected to was not a bond, but an undertaking or covenant signed by the plaintiff, as principal, and one surety. The Court on page 424 says, “we think that this section of the statute is not to he regarded as directory. There must he a bond (a term well understood) with a penalty and a condition and with two or more sureties.”

Sec. 6738 of 2 Howell’s Annotated Statutes of Michigan, which was taken from sec. 144, ch. 90, Revised Statutes of 1846, and also from sec. 3597 of the compiled laws of 1857, provides that upon an appeal from a decree or final order of a Circuit Court in Chancery, “the appellant shall, within * * * * forty days file with said register a bond to the appellee or appellees, with sufficient sureties, approved by a Circuit Judge, &c.” In Beebe vs. Youny, et al., which was an appeal in chancery, a motion was made to dismiss the appeal upon two grounds, the second of which was, “that the appeal bond is executed by one surety only.” Judge Cooley, in delivering the opinion of the Court upon this motion, said: “The objection to the bond we think well taken. The statute requires a bond with sufficient sureties; and a single surety does not answer its demands. Van Wezel vs. Van Wezel, 3 Paige, 38; North Am. Coal Co. vs. Dyett, 4 Paige, 273. And as the statute provides that unless ‘such’ bond shall be filed within the time limited no appeal shall be allowed, we must dismiss the appeal unless we are authorized to permit an amendment or to suffer a new bond to be substituted.”

In Van Wezel vs. Van Wezel, there was a motion to dismiss the appeal. Chancellor Walworth, in the course of his opinion, said: “But the appeal was not regularly entered, because, by law, there should have been two or more sureties in the appeal bond. The statute requires a deposit of money on the appeal, or a bond with sureties, in the plural, (2 R. S. 605, sec. 80.) Although the number is not specified in this part of the statute, it requires two to constitute sureties.” The appeal was dismissed.

In North Am. Coal Co. vs. Dyett, the same Chancellor observed: “The eightieth section of the statute, (2 R. S. 605,) declares that the appeal shall not be effectual, until a bond with sureties shalhbe given to the adverse party, and approved by the proper officer of the Court. Under this statute, it has been decided that the term sureties, in the plural, requires two or more sureties to join- in the bond.”

We see no reason for not giving to the language of our own statute the same construction. When the Legislature used the word “securities,” in the plural, we are certainly not warranted in saying that only one surety was intended. The G-eneral Assembly must be regarded as having meant what the word used by it distinctly imports; and it would be little, if any thing, short- of direct judicial legislation to hold that one surety is tantamount to, or gratifies the demand for, “sufficient securities.” The Legislature has declared in plain terms that in such a bond as this, there must 'be securities. This is a matter wholly within its discretion and undoubtedly within the scope of its exclusive powers. The expediency or policy of such an enactment cannot be enquired into or impeached by any other tribunal known to our laws. Obviously, therefore, the Courts are powerless to nullify the statute in this particular, by substituting for its actual provision a different requirement. The consequences of this conclusion in this case may be very injurious to the appellees; but the law is so written, and any attempt to rescue the bond by a strained or a forced construction of the Act of Assembly, would, to the extent that it unsettled the law as enacted, lead to more serious evils.

It has been, insisted that sec. 7, Art. 1, of the Code cures the defect in the bond. That section provides, “The singular always includes the plural, and vice versa, except where such construction would be unreasonable.” If, however, under this section we are to treat the plural as meaning the singular, and therefore to read sec. 51, of Art. 5 of the Code, which requires “sufficient securities” to be given, as though the singular number had been used, and consequently that only one security is necessary, it is not perceived why sec. 20 of Art. 16, which provides for a sxwety or sureties in a trustee’s bond, should not be understood as necessarily requiring at least two, if under the rule of interpretation the singular means the plural. The ultimate effect of such a construction would be that the rule of interpretation would directly reverse the provisions of the Code by making one security sufficient in' cases where securities are mentioned, and by requiring at least two sureties where only one is declared necessary in the body of the law.

It follows from what we have said that the bond not being such as the statute required, did not operate to stay execution on the judgment recited in it. It was not valid as against the appellees had they proceeded to enforce their judgment. They Avere not concluded by it. If the surety is held liable would it not be enforcing “ a contract where there Avas no mutuality ?” Tucker, et al. vs. State, use of Kneighton, 11 Md., 331. The approval of the bond by .the clerk gave to it no additional efficacy, because it was not such a bond as he was authorized to approve upon appeal from a final judgment.

But Avhilst the bond did not conform to the statute, it by no means follows that it might not have been good as a voluntary bond, had it met the other requirements necessary to give validity to instruments of that character. In the recent case of McLuckie vs. Williams, 68 Md., 262, where a.suit had been brought upon an attachment bond made payable to the defendant, instead of to the State as required by the Code, this Court said: “The bond though not effective to maintain an attachment is not illegal: it is not forbidden by any statute, nor does it contravene any principle of morality or public policy; it is simply a voluntary obligation, the act and deed of the obligors by which they declared themselves to he held and firmly hound. * * * * * bond not required by any statute, and not being in such form and containing such terms as to accomplish the expectations and purposes of its makers will, if not impeachable in other respects, nevertheless stand as their act and deed.” In the case now before us had the bond sued on been delivered to the appellees by the obligors, we have no doubt whatever that it could have been recovered on upon proof of a breach of its condition. But delivery is an indispensable requisite to the validity of a voluntary bond. It must he delivered by the party whose bond it is, to the other; Bac. Abr., Obligations C, though the delivery and acceptance may he by attorney. In statutory bonds the approval and filing take the place of delivery. The law does not in such case require the assent of the obligee. Burgess vs. Lloyd, 7 Md., 178. The bond in this case was not delivered to the obligees or to any agent or attorney of theirs. It was never intended to be so delivered. Its delivery to the clerk was not such a delivery as to make it a valid voluntary bond, because he was not the agent of the obligees and he did not receive the bond in any such capacity. There was, therefore, in fact, no legal delivery of the bond at all, and it did not, as it could not without delivery, beconié binding on the surety as a voluntary obligation.

As the bond'did not conform to the statute, and as it never became binding on the surety as a voluntary bond, because not delivered and accepted; the con elusion necessarily follows that no action whatever can he maintained upon it when defence has heen taken on these grounds ; and the fourth prayer of the appellant should therefore have heen granted. In reaching this result we-have not overlooked the cases relied on by the appellees. Those cases announce the same doctrine as that laid down in McLuckie vs. Williams. In McLuckie’s Case no question in regard to the delivery and acceptance of the bond was suggested or considered; but two inquiries were distinctly submitted to the Court by agreement, and one of these was, whether the departure from- the requirement of the statute that the State should be named as the obligee in the bond rendered it absolutely invalid. And the Court held, na otJiér objection being interposed, that it was enforceable as a voluntary bond.

Where a bond was given by a cashier in a penalty of twenty thousand dollars, with ten persons as securities, who bound themselves in the sum of two thousand dollars each, severally and not jointly; the statute provided that “ the' cashier before he enters on the duties of his office, shall give a bond or bonds with two or more sureties to the satisfaction of the directors with condition, &c., ***** and in n0 case shall bonds be taken for a less sum than twenty thousand dollars. * * * *” In an action on this obligation the Court held that the bond did not conform to the statute, but a recovery was sustained upon the ground that it was a valid voluntary bond. It had been delivered to and accepted by the Bank. Bank of Brighton vs. Smith, 5 Allen, 413. Numerous other cases involving the same principle are to be found and they are undoubtedly sound in their conclusions. But they are distinguishable from this case, for here the distinct defence is taken that the bond was never delivered, and without delivery and acceptanee it can have, as a voluntary bond, no validity whatever.

As the conclusion which we have announced on the question just considered, will necessitate a reversal of the judgment appealed from without an award of a new trial, we are not required to pass upon the other points discussed in the argument. Code, Art. 5, sec. 19. But there are two other questions which we think ought to be disposed ,of.

The appellant offered to prove that he signed the bond upon the express understanding with McCart that another security would,unite in it. Upon objection being made'the Court excluded the proffered evidence and the appellant excepted. The first bill of exceptions presents this question. No arrangement between McCart, the principal, and Harris, the surety, with respect to the addition of another security could be binding on or could affect the rights of the obligees, in the” absence of knowledge or information on their part of the existence of such an understanding, unless’ there was something on the face of the bond to put them on inquiry as to the manner of its execution. The rights of the obligees ought not to be put in peril, or to be impaired by any secret and undisclosed conditions or agreements made between the obligors themselves. If the bond shows on its face that several were expected to sign it who have not signed it, the obligees who accept it would then take it with notice that the obligors who do sign it may set up in defence the want of execution by the others. Where this does not appear and where no notice is traced to the obligees, the sureties must be held as declaring to all persons interested to know’that they are parties to the covenant and bound by it. They cannot therefore contravene the statement thus made and relied on without a fraud on their part and injury to another; and where these things concur an estoppel is imposed by law. Dair vs. United States, 16 Wall., 1; State vs. Peck, 53 Maine, 284; Cutler vs. Roberts, 7 Neb., 4. In this last cited case it was held-“that a bond which-was perfect on its face, apparently duly executed hy all whose names appear therein, which purports to he signed and delivered hy the several obligors, and is actually delivered hy the principal without stipulation, reservation or condition, cannot he avoided by the sureties upon the ground that they signed it on the condition that it should not he delivered, unless it should he signed hy other persons who did not sign 'the same, if it appear that the obligee had no notice of such condition, and nothing to put him upon inquiry as to the manner of its execution, provided he has been induced upon the faith of such bond to act to his own prejudice." The ruling, therefore, set out in the first exception was entirely correct.

Much stress was placed on the fifth prayer offered hy the appellant. An instruction was sought hy it to the effect that the approval of the bond by the deputy, under the circumstances stated in the beginning of this opinion, was a nullity. There is'no doubt that a deputy can lawfully approve an appeal bond, — his act is the act of the clerk. The law does not contemplate that the clerk, in his own person, shall he constantly in attendance at his office. Code, 1888, Art. 17, sec. 3. And the Constitution of the State makes provision for the appointment of deputies “to perform together with themselves" (the clerks) “the duties of said office." Con. of Md., Art. 4, secs. 26 and 37. The testimony offered as to the mental condition of the clerk was clearly inadmissible and should have been objected to. His sanity could not properly he brought in question in that collateral way/ If such a course of proceeding was allowable it would lead to great confusion and much uncertainty in the administration of justice. The prayer which we are now considering submitted to the jury, on a trial of issues framed in an action of debt, to find whether the cleric was mentally capable of approving the bond; ancl this too, without affording him the slightest opportunity to be heard in his own behalf. The temporary delirium of a clerk, produced by an acute attack of illness, might, upon the same ground, be relied on, in this collateral way, to defeat every act done by his deputy during the continuance of the malady. And so the sanity of every public official might be brought into issue in the same way. There is no rule of law more firmly established than that which prohibits such a course of proceeding. The prayer was therefore properly rejected. ■

(Decided 10th January, 1889.)

In conformity with the views herein expressed the judgment will be reversed without ordering a new trial.

Judgment reversed, and new tried refused.

Judges Miller and Robinson dissented.