Bennett v. . Brown

Selden, J.

The appellant is undoubtedly right in the position, that although a deed is duly signed and sealed by the party to be bound by it, yet if, instead of being delivered absolutely, it is left in the hands of a third party to take effect upon some contingency thereafter to occur, it does not become obligatory,-and is not the deed of the party signing it until

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the contingency happens. The question here is, whether this is such a case.

In determining the effect of the agreement upon which the bond, in this case was left with the justice, we are not to look solely at the mere words of the parties, but are to consider the nature of the transaction, and the circumstances of the case. The object of executing the bond was to comply with the statute provided a bond was required. Both parties knew that in case a bond was necessary, it must be executed before the attachment could be legally issued. It was clearly in reference to this necessity that the bond was given before settling the question as to the requirements of the statute. It must have been the intention of the parties, that the bond should take effect, so as to support the attachment, in case upon further investigation it should turn out that such a bond was necessary.

This intention is clearly indicated by the consent of the defendant to sign the bond and deliver it to the justice in advance, and by the action of the justice in issuing the attachment without waiting to settle the construction of the statute. Hence, although the words used by the parties, if construed by themselves, might seem to create a condition precedent; yet when considered in the light of the attending circumstances and the action of the parties, it is clear that a condition subsequent was intended. Any other construction would impute to the justice gross misconduct, in issuing the attachment before he knew whether he had any bond or not.

This construction is confirmed too by the fact, that no time was fixed for producing the decision of the Supreme Court. If the failure to produce such a decision was intended to be—as the defendant contends—a condition precedent, and no time was set when the defendant should be deemed to have failed, then the justice might have been obliged to go through the whole proceedings upon the attachment, without having any bond, or knowing whether he had or not. The justice should not be charged with entering into such an arrangement in a matter of public duty, unless his acts will admit of no other interpretation.

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The next question is, whether the condition of the bond was satisfied by the recovery of a judgment before the justice, notwithstanding that judgment was reversed upon

certiorari.

The condition was, that if the obligors should pay to Morris and Jesse Bennett (the defendants in the attachment), all damages and costs which they should sustain by reason of the issuing of the attachment, if Sineads (the plaintiff in the attachment) should fail to recover judgment thereon, then the bond to be void.

The defendant contends that when the plaintiff in the attachment recovered a judgment before the justice, the bond was at an end, whether that judgment was legal or illegal, or' whether it remained in force, or was abrogated or reversed. This I apprehend is putting far too literal a construction upon the words of the bond. It is true the defendant is a surety, and is therefore entitled to the favorable consideration of the court, but this cannot entitle him to a construction which in this case would defeat the whole object of the bond. That was intended to afford an indemnity to the plaintiffs against the consequence of the attachment, if wrongfully obtained. By the defendant’s construction, if the wrong in obtaining the attachment is followed up by a wrong decision of the justice, then the party injured has no remedy upon his bond, although he is put to the additional expense of a

certiorari

to get rid of the judgment. '

I do not believe this is the true meaning of the condition. The statute could never -have intended to make the indemnity of the party, proceeded against in his absence, dependent upon the accuracy of the justice. This question was decided in accordance with these views, by the Supreme Court,in the case of

Ball

v.

Gardiner

( 21

Wend.,

270 ), and I see no reason to doubt the correctness of that decision.

A further question arises as to the liability of the defendant for the costs of the

certiorari,

as a part of the damages to be recovered. This question admits, I think, of less doubt than that just considered. The undertaking of the defendant was, to pay all damages and costs, which the plaintiff should sustain “by

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reason of the issuing of the attachment.” The costs of the

certiorari

were not only within the fair import of the condition, but strictly within the terms used. These costs were clearly caused by the issuing of the attachment. There is nothing in the language of the condition limiting the damages to such as should arise in the suit commenced by the attachment.

The judgment should be affirmed.

Comstock, J., expressed no opinion.

Judgment affirmed.