Sloo & Byrne v. Powell and Others, 1 Dallam 467

HUTCHINSON, Justice. This is a voluminous case terminating in one question, arising upon the act regulating attachments, of January 28, 1839.

On the 23d February, 1839, the appellants as a mercantile firm filed their petition, alleging that Powell, on the 24th January, 1837, made three promissory notes to Foster, due at sixty, ninety and 120 days, for sums that amounted in principal to $3962.13; that they were indorsed by the payee to the plaintiffs, who deposited then in the Commercial Bank of New Orleans for collection; that at their maturity respectively, due diligence through a notary was exerted in order to charge the maker and indorser, the evidences whereof are exhibited; that the time of suing, Foster, the indorser was itinerant, without domicile, but then in Mata-gorda Bay, with goods enumerated, on board the schooner Texas, part of which goods were in the possession of Belknap, a citizen of that county, who had colluded to alter the manifest of the goods or ship, so as to make them appear to be his; and praying that Powell, Foster, Belknap, with Shackelford, the master of the schooner, should be impleaded; presenting interrogatories to the two latter persons; that an attachment should be issued; that the defendants should be decreed to pay the amount, etc.

Byrne, one of the plaintiffs, on the same day (February 23, 1839) made ¡affidavit as the basis of the attachment against the goods, and gave a bond, with a surety, payable to all of those impleaded, with condition substantially conforming to the bond prescribed in the statute referred to. On the same day citations were issued, all of which were served; and an attachment against Foster’s estate was also issued, and on the day following was levied. On May 31, 1839, Foster replevied the goods by giving bond of that date to both plaintiffs in the penalty of $8000.

At October term, 1840, the bond to prosecute the attachment was quashed and a new bond ordered to be given nunc pro tunc; and the exceptions taken to that action of the court shows that the ground assumed for quashing was that the bond was not given alone to the actual defendant, Foster. There ■was a motion to quash the attachment but it was overruled. On the 16th October, 1834, the new bond required was given by Byrne as principal, with a surety in the penalty of $8000, payable to Foster, his heirs, etc., and to be void on condition such as is prescribed in the attachment law.

On the 6th October, 1841, on the seventh and eleventh days of that month successively, the court below quashed the last bond, on the ground that it was not signed by all the plaintiffs; from which they prayed an appeal. The attachment was quashed for want of sufficient bond, and it was decreed that the plaintiffs should recover of Powell and Foster the amount of the notes with interest on each, from their maturity, with costs. The only question raised in the court below or presented on the brief of the counsel for revision here is, whether the district court erred in quashing the last bond.

The suit originated at a period when the Spanish law, based on the civil law was in force here; and it is manifest from the verbiage of the attachment and of both bonds, that the act concerning attachments of the 28th January preceding, was.promulgated at Matagorda and was before the counsel of the plaintiff at the filing of the petition. It will be recollected, too, that the principles of the English jurisprudence regulating the course of civil prosecution, and separating the ordinary from the extraordinary form, had not been introduced.

The court had cognizance of the subjects or matters of the complaint; and as the parties have stirred no other question here, we may proceed singly and at once to inquire, was the last bond valid under the attachment law? We think it was, and that the court below erred in quashing it. The inquiry leads us into an examination of the first bond, and the disposition made of it.

By the law existing when it was given, a plaintiff might implead all the persons connected with the transaction, and was not put on the strict rule of the common law requiring that in an action ex contractu only those bound or liable should be sued, and those, too, liable in the same degree. Here as well the maker as the indorser of the notes were sued; and so were Belknap and Shackelford upon alleged interest in the goods of Poster, or fraud and collusion with him concerning them. We are therefore not prepared to say that the first bond was such as afforded the principal defendant, Foster, no available security.

Indeed we believe that in view of the law then prevailing it was valid security, so that although the court below erred in quashing it, there was no error in the refusal to quash the attachment; and as the security required by the defendant Foster was afforded by the new bond ordered by the court, he ought to have been contented with it, especially if in all other respects it conformed to the requisitions of the attachment act and was such as his motion recognized as good. It is true, as urged by the appellee’s counsel, that attachment laws whose operation is in rem, being mostly ex parte, should receive a rigid

interpretation, and should not be applied to cases not within their plain and obvious meaning. It is also true that at common law one partner can not bind his associate without his consent, by signing the associative name to a seal; for in that case, only he who signs is bound. And though this rule did not apply to the bond in question, it may be conceded that the name of Byrne, as in favor of the obligee, did not in any degree bind Byrne’s partner.

By the act, however, the party or his agent, attorney or factor might take the oath required to obtain the attachment; and if the agent, attorney of factor might make the affidavit, assuredly one of the plaintiffs might make it. So, too, with the bond. It was allowed to be given by the plaintiff, his agent, attorney or factor; and if it was sufficient for a third person as agent, attorney or factor to give it, was there, or can there ever be, any reason why one of the plaintiffs should not give it? What was the object? To furnish the adverse party a collateral security that should be sufficient.

It could never be pretended that either of the obligors could ever urge as an objection to a recovery on the bond that the partner of the principal obligor was not joined. In Cayce v. Curtis and Cayce v. Horton, January, 1841, we decided that a seal was not required to render an instrument given as a statutory bond obligatory, previous to the introduction of the body of the common law; and that as the party had chosen to bind himself, so he should be bound.

Holding it proper to give a strict construction to the act, we yet consider that under its third section, if either or any of several plaintiffs executes a good and formal bond, with sufficient surety or sureties, it is a security by the plaintiffs, although all of them do not sign as principals; and is as available a statutory security as if given or furnished by an agent, attorney or factor.

Foster had been cited, had replevied the goods attached, and as the object of the process was to bring him into court or reach his property, it was too late to move to quash the attachment at the term next after the return term. The statute authorizes a plea in abatement, and that ought to have have been filed at the first term. A motion to quash is indeed in the nature of that plea and ought to be made with equal diligence.

We are not prepared, however, to say that if a plaintiff in an attachment case is prepared and offers to give such bond as the court may require for the perfect security of the defendant, and if this be done previous to the decision of such motion or plea, it ought not to be received. The current of modern decisions seems to allow it to be done generally, because the object of the bond is to secure collaterally the obligee, and because there should be but one suit, if possible, on the same demand or complaint.

If a defendant in an attachment be not cited, we should proceed with strictness and vigilance for his security. The appellants, therefore, on these principles must be restored to their rights under the levy of attachment and replevy bond; but as the case has not been tried on a plea to the merits, but has been decided erroneously in part below on preliminary questions, the judgment must be set aside and the cause remanded.

We will not omit noticing that in the judgment rendered it was particularly proper not to compound the interest, but to give judgment for it from the dates of the maturity of the notes, respectively, until payment. Reversed and remanded. Concurred in by Chief Justice John Hemphill, Judge R. E. B. Baylor and John T. Mills. Judges R. Morris and C. P. Jack dissenting.