The City of Marshall v. James M. Bailey and others, 27 Tex. 686

Moore, J. We are not advised by the record of the reasons which influenced the court below in sustaining the defendant’s exceptions to the plaintiff’s petition. It is said by counsel that the ground upon which the judgment of the court below was given, was that the directions of the city council not being set out in the petition, it did not sufficiently appear that they had been pursued in drawing the bond. If this was the case, we are of the opinion that the court gave too strict and technical a construction to the plaintiff’s petition.

The bond was copied in the petition, and its execution and the purpose for which it was given were fully set forth, and these allegations, together with the additional one found in the petition, that ‘‘the city council did direct that Bailey should give bond in the form, manner and amount that he did,” would seem, when fairly considered, to have authorized the overruling of the exception to the petition upon which the court was called to act. (Warner v. Bailey, 7 Tex., 517; Prewitt v.

Farris, 5 Tex., 370.) But if it appeared that the bond had not been executed in strict conformity to the instructions of the city council, and was not, therefore, to be sustained as a valid statutory bond, we see no reason why it could not have been proceeded upon as a good common law bond. It was voluntarily given, and not under any coercion or extortion by color of office, nor to enable the obligor to enjoy any common law right from which he was otherwise restrained. In the case of Goodman v.

Carroll, 2 Humph., 490, the Supreme Court of Tennessee say: “A bond executed by a public officer and his sureties, though not good as a statutory bond, may nevertheless be binding as a voluntary obligation, and an action at common law may be maintained thereupon.” And in Justices of the Inferior Court, &c., v. Ennis, 5 Ga., 569, which was a suit on a constable’s bond, executed with one surety, where the statute required two or more, it is said: “ Our judgment is, that the bond is good as a voluntary bond at common law.

It was executed by Bryan and the defendant, duly delivered to the persons authorized to take it; Bryan entered upon the duties of Ms office, and in that office made default.” For the error of the court in sustaining the demurrer to the petition, the judgment is reversed and the cause remanded. Reversed and remanded.