ÓktoN, J".
The plaintiff, Isaac Klauber, relies for his title to the property in question, upon an assignment made to him by one Bernard Kohner, for the benefit of his creditors. The only objection to this assignment, relied upon in the argument before this court, is, that the assignment is void because the bond, required by section 1 of ch. 64, Laws of 1858, to be given to the county judge or a court commissioner as the obligee, was in this case executed to the clerk of the circuit court.
The language of the first section, “ execute and deliver to the county judge or court commissioner,” and “ satisfy the officer taking such bond,” and of the second section, “ be filed by the officer to whom such bond is executed,” and of the third section, “ in the presence of such officer to whom such bond is made,” admits of no doubtful construction, and unquestionably requires such bond to be executed in form to the county judge or court commissioner as the obligee. Whether the assignment is void for this reason depends upon the further question, whether the bond so executed is void. If the bond is substantially a good bond, and effectual to secure all the objects and purposes contemplated by the statute, although not executed strictly according to the letter and formalities of the statute, it would be most unreasonable to assume that it was the intention of the statute that the assignment should be void. The statute does not provide that the bond here required shall be void for any departure from the statute which [603] is not material; and this omission so to provide is proper to be considered in passing upon its'validity. Lewis, Governor, v. Stout, 22 Wis., 235. In tbe case of Hutchinson v. Brown, 33 id., 464, tbe validity of tbe assignment is made to depend upon tbe validity and sufficiency of tbe bond; and tbis case seems to be fully within tbe principle of that case, as to tbe validity of tbe bond supporting the assignment.
Tbe departure from tbe statute in that case was, that tbe bond was in a sum not less than tbe real value of tbe assets, and tbe statute requires tbe bond to be in a sum not less than tbe nominal value of tbe assets.
■ Tbe difference between the real and nominal value of tbe assets might be very great, and the nominal value would, in most cases if not invariably, be greater than the real value, and tbe bond based on such sum would be safer and better security for tbe creditors and the assignor, because in all cases it would be sufficient, while one based upon tbe real value might and probably would'be in many cases insufficient. Tbis would seem to be almost a material departure from the statute, as affecting tbe security of the creditors; and yet tbis court held in that case that both the assignment and the bond were valid, and the late eminent chief justice says in bis opinion, that “tbe objection thus taken savors very strongly of nicety, and an over-scrupulous regard for literal statutory construction,” and that tbe bond in that case “will satisfy the real object tbe legislature bad in view, and accomplish tbe substantial purpose of tbe enactment;” and again: “ Protection to the creditors being tbe great and only object aimed at by tbe statute, and that being fully attained, we cannot pronounce tbe bond insufficient.”
Tbe statute, literally construed, requires tbe county judge or a court commissioner to be tbe obligee of tbe bond; but' why and for what reason or purpose it is so required, it is impossible to conceive. Tbe obligee in other cases generally has some discretion to exercise; ~or he has to administer some trust, or has some responsibility for the proceeds of tbe bond, when executed to him personally or colore officii; or bis name [604] has to be used in suits upon tlie bond for his own benefit, or for the use of others; or he is required to have the legal custody of the bond; and, if given to him as an officer, his successors in office would have the same relations to it by substitution. But in this case, the obligee is merely nominal, and essentially formal. Neither the officer named as obligee nor his successors in office have anything whatever to do with the bond after its formal execution, except to file it in the office of the clerk of the circuit court; and it cannot even be sued in his name, or in the name of his personal representatives or official successors. The county judge or court commissioner, after taking such bond, executed to himself, eo nomine, or in the name of his office (and in which form the statute does not even direct), immediately files it in the office of the clerk of the circuit court; and all suits thereon for the benefit of the creditors of the assignor must be brought by such creditors themselves, and alone in the name of such clerk or his successors in office. This filing of the bond in the office of the clerk is equivalent to, and is in effect, an assignment of it, by the nominal obligee, to such clerk and his successor in office; and the statute operates as such an assignment vigore cujus, to the only proper person who can sue upon it. This is the indirect and unaccountable method prescribed by the statute; the method of accomplishing precisely the same result, far more direct and reasonable, would be to execute the bond to the clerk as the obligee, as was done in this instance.
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ÓktoN, J".
The plaintiff, Isaac Klauber, relies for his title to the property in question, upon an assignment made to him by one Bernard Kohner, for the benefit of his creditors. The only objection to this assignment, relied upon in the argument before this court, is, that the assignment is void because the bond, required by section 1 of ch. 64, Laws of 1858, to be given to the county judge or a court commissioner as the obligee, was in this case executed to the clerk of the circuit court.
The language of the first section, “ execute and deliver to the county judge or court commissioner,” and “ satisfy the officer taking such bond,” and of the second section, “ be filed by the officer to whom such bond is executed,” and of the third section, “ in the presence of such officer to whom such bond is made,” admits of no doubtful construction, and unquestionably requires such bond to be executed in form to the county judge or court commissioner as the obligee. Whether the assignment is void for this reason depends upon the further question, whether the bond so executed is void. If the bond is substantially a good bond, and effectual to secure all the objects and purposes contemplated by the statute, although not executed strictly according to the letter and formalities of the statute, it would be most unreasonable to assume that it was the intention of the statute that the assignment should be void. The statute does not provide that the bond here required shall be void for any departure from the statute which [603] is not material; and this omission so to provide is proper to be considered in passing upon its'validity. Lewis, Governor, v. Stout, 22 Wis., 235. In tbe case of Hutchinson v. Brown, 33 id., 464, tbe validity of tbe assignment is made to depend upon tbe validity and sufficiency of tbe bond; and tbis case seems to be fully within tbe principle of that case, as to tbe validity of tbe bond supporting the assignment.
Tbe departure from tbe statute in that case was, that tbe bond was in a sum not less than tbe real value of tbe assets, and tbe statute requires tbe bond to be in a sum not less than tbe nominal value of tbe assets.
■ Tbe difference between the real and nominal value of tbe assets might be very great, and the nominal value would, in most cases if not invariably, be greater than the real value, and tbe bond based on such sum would be safer and better security for tbe creditors and the assignor, because in all cases it would be sufficient, while one based upon tbe real value might and probably would'be in many cases insufficient. Tbis would seem to be almost a material departure from the statute, as affecting tbe security of the creditors; and yet tbis court held in that case that both the assignment and the bond were valid, and the late eminent chief justice says in bis opinion, that “tbe objection thus taken savors very strongly of nicety, and an over-scrupulous regard for literal statutory construction,” and that tbe bond in that case “will satisfy the real object tbe legislature bad in view, and accomplish tbe substantial purpose of tbe enactment;” and again: “ Protection to the creditors being tbe great and only object aimed at by tbe statute, and that being fully attained, we cannot pronounce tbe bond insufficient.”
Tbe statute, literally construed, requires tbe county judge or a court commissioner to be tbe obligee of tbe bond; but' why and for what reason or purpose it is so required, it is impossible to conceive. Tbe obligee in other cases generally has some discretion to exercise; ~or he has to administer some trust, or has some responsibility for the proceeds of tbe bond, when executed to him personally or colore officii; or bis name [604] has to be used in suits upon tlie bond for his own benefit, or for the use of others; or he is required to have the legal custody of the bond; and, if given to him as an officer, his successors in office would have the same relations to it by substitution. But in this case, the obligee is merely nominal, and essentially formal. Neither the officer named as obligee nor his successors in office have anything whatever to do with the bond after its formal execution, except to file it in the office of the clerk of the circuit court; and it cannot even be sued in his name, or in the name of his personal representatives or official successors. The county judge or court commissioner, after taking such bond, executed to himself, eo nomine, or in the name of his office (and in which form the statute does not even direct), immediately files it in the office of the clerk of the circuit court; and all suits thereon for the benefit of the creditors of the assignor must be brought by such creditors themselves, and alone in the name of such clerk or his successors in office. This filing of the bond in the office of the clerk is equivalent to, and is in effect, an assignment of it, by the nominal obligee, to such clerk and his successor in office; and the statute operates as such an assignment vigore cujus, to the only proper person who can sue upon it. This is the indirect and unaccountable method prescribed by the statute; the method of accomplishing precisely the same result, far more direct and reasonable, would be to execute the bond to the clerk as the obligee, as was done in this instance.
Whether this was such a material variance from the requirement of the statute as to invalidate the bond, may well be answered in the language of this court above cited: “ Protection to the creditors being the great and. only object aimed at by the statute, and that object being fully attained, we cannot pronounce the bond insufficient.” In the case of Vandyke v. Weil, 18 Wis., 278, involving the question of the validity of an undertaking upon an appeal, this court said: “The intention of the legislature clearly was, to make the undertaking effectual to secure some benefit to the respondent in case the [605] judgment was affirmed in any part or as to any of the appellants; and to attain that object a liberal interpretation is allowable. Such is the language of the authorities, and no doubt the correct rule of law. "We are to construe the undertaking in conformity to the intention of the act under which it was made, and with reference to which the makers must be supposed to have executed and delivered it, giving to both a fair and liberal interpretation to attain the end in view.” In Lewis, Governor, v. Stout, supra, where the bond was executed to the governor, instead of to the state as the law required, and objection was taken to its validity by the obligors for that reason, this court held that, “ the subject matter being sufficient, and the parties competent to contract with reference to it, the contract so freely executed is valid and binding. It is a good common-law obligation.”. We do not think that this departure from the strict and literal requirement of the statute as- to the nominal obligee of the bond in this case is at all material, or that it impairs the validity of the bond as a statutory obligation, or at all affects the liability of the obligors upon it. “ It is unnecessary to the validity of a bond taken under the statute, that it should strictly comply in every respect with the requirements of the statute. Nor is it void for slight departures from the statute, unless expressly declared to be so.” Nunne v. Goodlett, 10 Ark., 89; 6 Term R., 702; 2 Bailey, 362. Whether this bond is valid as a statutory bond or as a common-law obligation, where it secures all the objects of, and in all other respects so fully conforms to, the statute, and the statute itself so fully provides its uses, and how and by whom and in whose name it shall be sued, and its proceeds made available to the creditors of the assignor, is quite immaterial; for its effect as a common-law bond, would, at most, in such a case, determine in whose name suit should be brought upon it; and here even that is provided for by the statute itself, which in that respect is imperative and explicit. The statute also determines the official succession of the bond, and therefore it is quite idle to speculate upon questions not in the case, and to which many of the authorities cited on both [606] sides are alone applicable, as, whether the county judge or the clerk, as the obligee of this bond, is qxioad hoc a corporation sole, or whether'the personal representatives or assigns of either of them could sue upon it. In the case of People v. Jones, 22 Mich., 461, where the county treasurer, by the statute, was required to give a bond to the auditor general of the state as obligee, to be approved by the prosecuting attorney and circuit court commissioners of the county, before selling lands for taxes, and it was not approved by the prosecuting attorney, and only by one of the court commissioners, and where suit was, according to the statute in the cases of such bonds, to be brought in the name of the people, the bond was held valid. The language of the opinion of the chief justice in that case is far more applicable to the question raised in this case than to the one in that: “It may be»admittedfor the purposes of this case, that unless, as between the people and the defendants, this can be treated as a statute bond, the action shorrld have been brought’ in the name of the obligee. Such seems to be the general current of authority — a doctrine, however, which, when applied to cases where the bond is valid, and was evidently intended by the parties for the same purpose as that required by the statute, savors more of technicality than justice and common sense.”
The circuit court having ordered the j ury to find a verdict for the defendant for the reason that the assignment is void, because the bond does not conform to the statute, and for no other or sufficient reason, as appears from the record or the argument of counsel, the judgment must be reversed.