Young v. State

7 G. & J. 253

Opinion

Dorsey, Judge,

delivered the opinion of the court.

This case being brought up by an appeal from the judg ment of the county court given upon a general demurrer to the pleas of the appellants, it is insisted by them, that conceding the insufficiency of those pleas, the judgment must be reversed, because, profert of the original bond being made upon the prayer of oyer, there was read to them instead of the original bond, an exemplification of the record thereof. That this was a prior substantial defect in the pleadings of the plaintiff below, and the court being bound to mount up to the first defect in pleading, could render no judgment in his favour. But this ground of reversal cannot be sustained. The opinion of this court, in Butler and Belt vs. the Stale use of Contee and Bowie, is decisive of this question. It was there held, that the bond being filed with the county clerk (as it was in this case) there to remain and become a public record, could not in legal contemplation be in the possession of the plaintiff, or be the subject of a profert; and that the mere fact of profert imposed on the plaintiff no obligation to produce the original bond upon oyer craved. The oyer given in this case, wras the only oyer, in the power of the plaintiff to give.

The next question to be considered is, do the pleas, or either of them, of the defendants below, present a legal bar to the plaintiff’s right to recover ? The defence set up is, that the bond is of no legal validity. First, because it has not literally pursued the form for sheriffs’ bonds contained in the act of 1794, c. 54 sec. 8. Secondly, because it has not substantially complied with that form. Thirdly, because the bond was not attested by the two justices of the Orphans’ Court, by whom it was taken. And fourthly, because no judgment was passed by them on the sufficiency of the securities offered. In giving a form for sheriffs’ bonds, the legislature have no where said, that all bonds thereafter given by sheriffs, not in literal pursuance thereof, shall be void. Such a provision, instead of protecting and promoting the rights and interests of the State, and the community at large, which was the design of the General Assembly, would in its practical operation, have been suicidal of the very objects which it w'as intended to accomplish. Every man acquainted with the history of judicial proceedings well knows, that conformity, to the letter in an instrument of this character and length, is of rare occurrence. With a knowledge of this fact, which we must impute to the legislature, it would be unreasonable to suppose, that they intended to open the wide door of immunity to those, from whom, it was their great object to deprive of every avenue of escape from responsibility. That substance, and not form, is to control the construction of legislative enactments, prescribing a mode in which acts are to be done, is evinced by the decisions ot the courts of this State, in a case much stronger than the present. By the 11th section of the act of 1715, c. 47, it was provided, “that if any feme covert, be named as a grantor in any such writing indented, the same shall not be in force, to debar her, or her heirs, except upon her acknowledgment of the same, and the person or persons, taking such her acknowledgment, shall examine her privately, out of the hearing of her husband, whether she doth make her acknowledgment of the same, willingly, and freely, without being induced thereto, by fear, or threats of, or ill usage by her husband, or fear of his displeasure,” “ and that the person or persons so examining her shall (in a note or certificate of the taking of the said acknowledgment) certify her examination and acknowledgment thereupon.” Yet, although the form of acknowledgment is thus strictly prescribed, for the benefit too of the feme covert, and her heirs, a literal compliance with the specified form has never been required; a substantial conformity being all that is requisite. Hollingsworth et ux. vs. McDonald and al, 2 Harr. and John. 230.

Does the bond in this case, subject the sheriff and his securities, to all and the same obligations, designed to be imposed on them by the act of assembly referred to ? If so, the act of the legislature has been substantially complied with. The commencement of the condition of the bond provides, “ that if the above bounden Thomas Bruce, as sheriff of Prince George’s county, do and shall well and faithfully execute the same office in all things appertaining thereto.” Under this provision, we think the sheriff is bound to the discharge of every duty, which the omitted words, if inserted in the condition of the bond, would have imposed upon him. The bond upon which the present action is founded, we therefore regard as sufficiently accordant to the form set forth in the act of assembly, to render it obligatory on the Sheriff and his securities. Does it appear, that the Justices of the Orphans’ court, as required by law, did judge of the sufficiency of the securities offered by the Sheriff’, is the next inquiry? There is no mode, marked out by the act of assembly, by which such their judgment is to be evidenced; no form of words, by which it is to be expressed. No approval is required to be indorsed on the bond. What meaning will you ascribe to the indorsements in this case made by the Justices of the Orphans’ Court, unless you regard it, as the written expression of their opinion, that the securities are sufficient? Nay, their delivery of the bond to the county clerk to be recorded, might perhaps be regarded as competent testimony to prove their recognition of the sufficiency of the securities; it certainly is sufficient to remove one of the obiections urged in the argument, that the bond was never so accepted, as to be obligatory on its signers.

The only remaining objection, suggested to the validity of this bond, is, that it was not attested, by the Justices of the Orphans’ Court, as required by the act of Assembly. Does this omission exonerate the Sheriff and his securities, when the instrument they have signed, is viewed as a statutory bond? Was the prescribed attestation designed for their benefit ? Did it form any inducement to their entering into the contract? Assuredly not. — The requisition was made solely for the benefit of others. Not to limit or impair the liabilities of the Sheriff and his securities; but to multiply the facilities by which their liability would be rendered certain. — There is nothing then in the nature of the contract, nor in reason, or justice, which should give to the omission of this ceremony, the effect of annihilating this bond. The act of assembly does not intimate such a legislative intent; no such consequence can be deduced from the numerous authorities cited in its support. The cases of the United States vs. Morgan and Farquhar, 3 Wash. C. C. Rep. 10. Stewart and others vs. Lee. Governor, &c., 3 Call, 364, and the United States vs. Hipkin and others, 2 Amer. Law Journal 80, can have no influence on the case at bar. The statutory bonds, were there declared void, because the liabilities of the obligors, by the terms of their bonds, were extended beyond the provisions of the statute under which they were taken — Johnson, et al securities of Williams vs. State of Maryland, 3 Har. and McH. 221. Quin vs. the State use of Pue and others. 1 Har, and John. 36. Branch and others vs. The Commonwealth, 2 Call. 510. Morgan vs. Blackiston. 5 Har. and John. 61, and Morgan vs. Morgan, Admr. D. B. N. of Booth, 4 Gill and John. 395; are cases where the liability sought to be enforced, was not covered by the bonds whereon the suits were prosecuted. In the case of Kerr, et al vs. the State use of the Levy Court, it was held, that the statutory bond was not binding, because the principal, therein named, was not appointed according to the directions of the act of assembly; and consequently, not being the officer recognized by the law, he could give no official bond under it. In Frazier vs. Frazier's Ear's, 2 Leigh, 642, the bond was in substance not comformable to the statute. The case of negro James vs. Gaither, 2 Har. and John. 176. is clearly distinguishable from the present. The act of 1752, ch. 1, s. 5, in requiring two witnesses to attest deeds of manumission, designed to surround those acts, with this form, and solemnity, that slave-holders, might be guarded against the execution of hasty inconsiderate deeds of manumission. To have given efficacy to such a deed, by a single witness would be to deprive the master of the protection, with which the law had surrounded him, contrary to the manifest intent of the legislature. In the case before us, the securities of the sheriff, seek to be absolved from all liability on their bond, by reason of the omission of a ceremony prescribed not for fheir protection, but to render them more securely bound; and which never was designed in any possible aspect of their case, to operate to their benefit. There is therefore no reasonable ground, upon which they can insist upon a compliance with this ceremony, or indulge in complaint in consequence of its non-observance.

The authorities bearing upon principles of analogy, more directly upon the case now under consideration, are The United States vs. Speake and others, 9 Cranch, 28. The United States vs. Kirkpatrick, 9 Wheat, 720; and the United States vs. Vanzandts, 11 Wheat. 184. In the first of which, a bond taken under the embargo law of 9th January, 1808, instead of before, was executed after the clearance or departure of the vessel, was held by the Supreme Court to be binding upon the obligors, they declaring, that “the statute as to the time of taking the bond, and granting the clearance, is merely directory to the collector. It is undoubtedly his duty to comply with the literal requirements of the statute. If he neglect to do so, it may subject him to personal peril and responsibility.” And in the latter case, the court says, “the provisions in both laws, are merely directory to the officers, and intended for the security and protection of government, by ensuring punctuality and responsibility; but they form no part of the contract with the surety.”

But the case bearing in principle the strongest similitude to the present, is that of Bartlett vs. Willis and others, 3 Mass. 86. An action was instituted by a creditor, against his debtor, and his securities on a bond for prison bounds, that by the statute under which it was taken, was required to be approved of by two justices of the peace; a formality wholly neglected. The court held, that this formality was designed for the debtor’s benefit, to prevent oppression by the creditor; that the omission was the fault of the debtor, and his securities, and that they were answerable in the same manner, as if the bond had been approved. By the creditor agreeing to take the bond, “the intent of the statute is complied with, and there is no necessity for the approbation of the sureties, by the justices to entitle the debtor to the privileges and liberties granted by the statute, or to indemnify the sheriff for allowing them.” So in the case at bar, the justices of the Orphans’ Court, the agents- of the public, authorized to take the bond, having approved of the securities and accepted it, the mere omission of the formality of attestation, will not impair its obligatory influence on its makers; or withhold from the sheriff that investiture of official authority, with which he would have been clothed by its formal attestation. It is the omission of a duty purely directory of a ceremony designed for the protection of the State and its citizens ; but not indispensable to their safety. A departure from directions, rendering the justices of the Orphans’ Court accountable to the public, but in no wise affecting the validity of the bond.

By the act of 1806, Ch. 16, Sec. 1, the mandate to the justices of the Orphans’ Court, to deliver the bond for record, to the county clerk, and to the clerk to record it, is equally imperative with the mandate to attest it.' Suppose these justices, after approving the securities and taking the bond, omit its delivery to the county clerk, retaining it in their own possession ; or suppose the county clerk after its delivery, should neglect to record it. Upon a suit being instituted, against the sheriff and his securities for his official misconduct, could they exempt themselves from all responsibility, by pleading the fact of such omission or neglect? Such a defence would not be listened to for a moment.

There is nothing in the 42d article of the Constitution of Maryland, as has been supposed, impugning the remedy on the bond sought by the appellee. It simply provides, that no sheriff shall act before he has given bond; a condition precedent in this case, substantially complied with.

The views we have expressed on this case, render it wholly unnecessary for us to examine the authorities adduced, to prove that this bond if not available as a statutory instrument, could or could not operate as an obligation at common law.

JUDGMENT AFFIRMED.

Chambers, Judge, dissented.