Thomas Cayce v. Hinton Curtis, 1 Dallam 403

TERRELL, Justice. This cause comes up on an appeal from the District Court of Matagorda County to reverse a judgment rendered on a motion to quash an execution which had been issued by the clerk of that court in favor of the appellee against the appellant, upon what is termed in common parlance, a twelve month’s bond. The bond was taken under the provisions of the eighth

section of

an act, “entitled

an act for the collection of the amounts due on judgments of the Supreme, district and county courts.” Two grounds were taken in support of the motion, viz: First, that the bond upon which the execution issued was not under seal; and second, that the sheriff had made no return on the original execution under which the property was sold and for the payment of which the bond was given. The court below refused to quash on either ground and the cause is brought here for the reconsideration of that decision.

On the first point it is urged by the counsel for the appellant that the word “bond,” used in the statute, being a common law term, we must refer to the common law for its legal signification; and that by that law-no instrument is a bond which is not under seal. The truth of the proposition that sealing is an absolute requisite to the validity of a bond at common law is readily admitted; but the applicability of that rule to the case under consideration is not perceived.

This bond was taken at a time when the common law afforded no rule of decision or practice in this country; and consequently that law can not be legitimately resorted to, even for the purpose for which it is invoked by the counsel for the appellant, unless it be shown that the civil law (which under certain modifications was at that time the law of the land) had no term of similar import; for we regard it as a correct rule of construction, that where technical terms are used in a statute they are to be referred for their signification to terms of similar import in the system of laws which prevails in the country where the statute is passed, and not to another system which is entirely foreign to the whole system of municipal regulations by which that country is governed. 3 Martin, 185; 7 Martin (N.

S.), 162 Were a term of art or science wholly unknown to the laws of the country, and which in itself imported a definite meaning, to be employed in a statute, then indeed the court would be compelled, ex necessitate rei, to look to the particular art or science from which it was taken, for its definition; but when the general or established law affords an equivalent term to the one used in the statute, which is well known and defined in its signification and operation, it can not be doubted that the Legislature intended to give to the new word only that force and signification which the old one possessed.

In the civil law there is a term, and one in very common use, too, which is equivalent to the word “bond” in the common law. That term is “obligation,” which is defined to be, first, “the binding power of any contract or agreement,” and second, “a notarial instrument, or deed.” This definition, embracing as it does all the essential properties of a bond, shows that the two words are used correlatively under the two systems.

The word “obligation,” it is true, is one of more extended signification than the word “bond,” because it not only embraces all such undertakings as would at common law require a technical bond to sustain them; but it also embraces such other undertakings as are known to that system by the term “parol contracts.” But the simple fact of its being a term of more comprehensive legal signification affords no presumption that in particular instances it is not the equivalent word; it may be said to be the generic term, and the other the species. “Obligation,” then, being equivalent under the civil law to the word “bond” in the common law, we are of the opinion that the latter term when employed in the statutes of the country, previous to the adoption of the common law without other definition, is to be referred to the civil law for its meaning, its force, and its legal construction; and that as the seal, not being known to the latter, was never required to give effect and validity to the one, we are satisfied that it is not essential to the validity of the other.

There is another ground on which we should hold this instrument to bind the parties according to the terms of the statute which authorizes it to be taken. It is a well established principle in the civil law, that “in whatever way a party binds himself, he shall remain bound.” 5 Martin, 194; 4 Martin (N. S.), 25, 116; 3 Martin (N. S.), 517. The appellant was the purchaser of property at sheriff’s sale, and for the purchase money of which, he was, by the statute, entitled to a credit of twelve months, provided he gave bond for the payment of the money at the expiration of that time.

In consideration of this right, and for the purpose of getting immediate possession of the property, he bound himself in writing to pay the money as directed by the statute; and according to the above mentioned principle, he must remain bound in the terms of his obligation; and upon his failing to comply with those terms, the statute gave the remedy, viz., an execution upon the bond. We are therefore unanimously of the opinion that the court below did not err in refusing to quash the executions, for the reasons presented in the first ground upon which the motion was predicated.

Upon the second point also we have no hesitation in deciding that there is no error in the judgment rendered by the court below. The statute does not require that the sheriff should have made any return in writing on the original execution; had it done so, however, we should have considered the requirement as only directory to the sheriff—and consequently could not impair the plaintiff’s right under the law, in the security which was given for the purchase money of the property sold under execution for his benefit. 12 Wheat., 64; 6 C. R., 440.

We are therefore of the opinion that the judgment of the District Court for Matagorda County was correct, and order that the same be affirmed with costs. Affirmed.