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Page Sprague Manuf'g Co., Waterman v. Tyler, bcates v. (Pa.)......

43 (Conn.).... 240 | Tyler, Scates v. (Pa.).

51 Springer v. City of Philadelphia (Pa.).. 490 Ulmer, Appeal of (Pa.).

686 Springer v. Groom (Pa.)..

446 Union Co. v. Peckham (R. I.). 130 Stager v. Ridge-Ave. Pass. Ry, Co. United States Trust Co., Hart v. (Pa.)... 821 (Pa.)...

561 State v. Brady (R. I.)..

238 State v. City of Jersey City (N. J.).. 774 Van Campen v. Ingram (N. J.). .... 537 State v. City of Newark (N. J.)... 770 Vanderbilt v. Little (N. J.)....

188 State v. City of Trenton (N. J.).. 902 Vanderford, Appeal of (Pa.). 491 State v. Collins (R. I.)...

121 | Van Dusen, Leatherman v. (Pa.)... 171 State v. Ervien (N. J.).....

136 Vau Ness, Busick v. (N. J.)...... 609 State v. Liquors and Vessels (Me.).. 794 Van Stavoren, Appeal of (Pa.)..... 499 State v. Miller (Vt.). 526 Vernon, Woods v. (Del.)...

656 State v. Township of East Orange Village of Irvington, State v. (N. J.) 712 (N. J.)......

911 Volkavitch v. Commonwealth (Pa.) 84 State v. Village of Irvington, (N. Voorhees, Traphagen's Ex'r v. (N. J.).... 712 J.).....

895 State, Biscoe v. (Md.). .

25 Voorhis v. Westervelt (N. J.)...... 533 State, McMillan v. (Md.)..

8 State, Peak v. (N. J.)... 701| Walker, Afrott v. (Pa.).

280 Steer, Warren v.(Pa.). 264 Warden v. Lyons (Pa.).

408 Stern, Pennsylvania R. Co. v. (Pa.). 756 Warren v. Steer (Pa.).

264 Still v. Buzzell (Vt.). . 209 Washburn. Cleaves v. (Me.).

734 Stockham v. Boyd (Pa.).

258 Waterman v. Sprague Manuf'g Co. Storey, Zebley v. (Pa.)...

569
(Conn.). ...

240 Stoutenburgh v. Hopkins (N. J.)... 689 Weaver v. Sheeler (Pa.).

558 Stull, Croman v. (Pa.). 812 Weaver, Foster v. (Pa.)..

313 Sun Mut. Aid Soc., Earnshaw v. Weaver, Appeal of (Pa.)

312 (Md.). 884 Webb v. Carpenter (R. I.).

129 Susquehanna Mut. Fire Ins. Co., Webb v. Fuller (Me.)...

731 Crawford v. (Pa.). .

844 Weinman v. Wilkingsburg & E. L. Pass. Ry. Co. (Pa.)..

288 Taylor v. Slater (R. I.).

727 Weller v. City of Burlington (Vt.). . 215 Taylor, Perrine v. (N. J.)... 769 Western Union Tel. Co. v. City of Terry, Smith v. (N. J.)... 204 Philadelphia (Pa.)....

144 Thayer v. Eaton (Me.)..

879 Western Union Tel. Co. v. Landis Theel v. Commonwealth (Pa.). 148 (Pa.)....

467 Theis, Kost v. (Pa.). .....

262 Westervelt. Voorhis v. (N. J.). 533 Topsbam v. Williamstown (Vt.).... 112 West Phila. Ry. Co., Rose v. (Pa.).. 78 Town of Bridgeport, Turney v. Wetter, Appeal of (Pa.),

260 (Conn.).... 520 Wheeler, Castleberg v. (Md.).

3 Town of Dover, Fulton v. (Del.).... 394 Wheeler, Frost v. (N.J.)..

612 Town of Frankfort, Cunningham v. Widener v. Beggs (Pa.)...

311 (Me.).. 636 Wight, Chapman v. (Me.)

546 Town of Johnston, Gardiner v. (R. Wigton, Ashman v. (Pa.)..

74 I.). 888 Wilbur, Dill v. (Me.)

545 Township of Blairstown, Painter v. Wilcox, Appeal of (Pa.).

578 (N. J.)...

187 Wilkingsburg & E. L. Pass Ry. Co., Township of Blythe, Appeal of Weinman y. (Pa.)..

288 (Pa.)...... 849 Wilkins v. Wilkins (N. J.)..

620 Township of East Orange, State v. Willey v. City of Allegbeny (Pa.)... 453 (N. J.)..... 911 Williams, McLuckie v. (Md.).

1 Trapbagen v. Houston (N. J.)... 771 | Williams, Appeal of (Pa.).

826 rapha Ex'r v. Voorhees (N. Williamstown, Topsham v. (Vt.). 112 J.). 895 Wilmer v. Gaither (Md.).

8 Trego v. Pierce (Pa.). 864 Wilmer v. Gaither (Md.).

253 Trost v. Dingles (Pa.). . 296 Wilson v. Lyle, (Pa.)..

365 Troxall, Silverthorn v. (N. J.).. 614 Wilson, McIntire v. (Md.).

253 Truitt, Pierce v. (Pa.). .

661 Windham Co. Sav. Bank v. Himes, Turney v. Town of Bridgeport (Conn.).

517 (Conn.)..... 520 Wineland, Appeal of (Pa.).

301 Tuttle, Chase v. (Conn.)..

874 Wisecarver v. Adamson (Pa.). 358 Tyler, Putnam v. (Pa.).. 43 | Wood v. Short (Del.)....

247 Page 359 392

Page Woods v. Vernon (Del.)....

656 Yard, Appeal of (Pa.). . Wordell, In re (N. J.). ....

133 Young, Petty v. (N. J.).... Worthington. McIntire v. (Md.). . 251 Wright, Lycoming Fire Ing. Co. v. Zebley v. Storey (Pa.)..... (Vt.).......

103 | Zillhaver, Fleek v. (Pa.)...

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THE

Atlantic

Reporter.

VOLUME XII.

(68 Md. 262)

MOLUCKIE et al. o. WILLIAMS.

(Court of Appeals of Maryland. January 5, 1888.) 1. ATTACHMENT_BOND PAYABLE TO DEFENDANT-ACTION ON.

Although the statutes of Maryland prescribe that a bond in attachment proceedings shall be made payable to the state, yet where the bond is erroneously made payable to the defendant, and the attachment proceedings are dismissed, suit can be

maintained on such bond. 2. SAME-ACTION AGAINST BONDSMEN-RECOVERY LIMITED TO Costs.

On such bond the defendant in the attachment proceedings can maintain an action and recover the costs of such proceedings, after they have been dismissed as against the bondsmen, although he has not previously sued the plaintiff in the attachment suit for such costs; but he cannot recover other damages. Appeal from circuit court, Allegany county.

This was a demurrer to the declaration in an action on a bond, brought by David J. Williams against William McLuckie and Adam E. Hitchins. The demurrer was overruled, and defendants appeal.

Wm. Brace, for appellants. A. Hunter Boyd, for appellee.

BRYAN, J. We are requested by the counsel in the cause to give our opinion on two questions: First. Whether a suit can be maintained on a bond given to obtain an attachment on original process when the bond is made payable to the defendant; and, secondly, whether a suit can be maintained on such bond when the defendant in the attachment has not brought suit against the plaintiffs for wrongfully suing out the attachment. The act of 1864 directs that the bond shall be made payable to the state of Maryland, and that it shall be conditioned for satisfying all costs which may be awarded to the defendant, or to any other person interested in the proceeding, and all damages which shall be recovered against the plaintiff for wrongfully suing out the attachment. In the form given in the statute for the condition of the bond, the language is slightly varied; in case of breach, the plaintiff is required to pay the defendant “all such costs in said suit,” and such damages as shall be awarded against the plaintiff “in any suit which may hereafter be brought for wrongfully suing out” the attachment. Every attachment issued without such a bond is declared to be illegal and void, and directed to be dismissed. If a bond be given in accordance with the terms of the statute, and the attachment be afterwards quashed, the obligors become liable according to the terms of the condition. If the bond does not meet the requirements of the statute, and the attachinent is nevertheless issued, and afterwards quashed

v.12A.no.1-1

or dismissed, the injury to the defendant is the same as in the former case; and there is no meritorious reason why the obligors should not be liable ac- . cording to the tenor of their bond. Nor is it easy to see why, according to any legal principle, they should be discharged. The bond, though not effective to maintain an attachment, is not illegal; it is not forbidden by any statute, nor does it contravene any principle of morality or public policy, it is simply a voluntary obligation,—the act and deed of the obligors, by which they declared themselves to be held and firmly bound. The seal to a bond imports a consideration, and hence it is that in an action at law the failure of consideration cannot be inquired into or proved. A bond not required by any statute, and not being in such form, and containing such terms as to accomplish the expectations and purposes of its makers will, if not impeachable in other respects, nevertheless stand as their act and deed. Obligors have always been held liable on their voluntary bonds, and ought to be so held. A party sui juris is certainly able to contract; and if the contract is embodied in an instrument under seal, it has all the validity which can be imparted by a valuable consideration. We do not speak now of cases where the obligee has no capacity to receive a bond, nor where a bond is void by statute unless it is made in a prescribed form, nor where it is exacted from the obligor without authority of law. Our opinion is that the first question ought to be answered in the affirmative.

The express terms of the statute makes the bond liable for the costs of the attachment suit. We suppose, therefore, that there can be no difficulty in recovering them in an action on the bond as soon as there is a failure to prosecute the suit with effect; that is, with success. But the bond is also liable for such damages as might be recovered against the plaintiff in any suit which might thereafter be brought for wrongfully suing out the attachment. If the defendant should bring a suit against the plaintiff, and recover damages for the wrongful attachment, the bond would be liable for these damages. In such an event, the non-payment of them by the plaintiff is a breach of the bond. It would be a strange anomaly if the suit could be brought before the breach had occurred. The plain and obvious meaning of the statute is that the suit is to be brought against the plaintiff alone. It would be a great misuse of language to speak of “such damages as shall be awarded against him, if it was intended to mean such damages as should be awarded against the bondsmen. It must be remembered that it is not necessary that the plaintiff should be one of the bondsmen; the statute provides that the bond shall be taken "from the plaintiff, or some person on his behalf.” Language might have been used which would have imposed responsibility directly on the bondsmen, as if the condition of the bond had been that they should pay all damage caused by the attachment. Provisions of this kind have sometimes been made in our legislation, as in the twenty-third section of article 10 of the Code, relating to appeals from orders quashing attachments, and the twenty-third section of article 5, relating to appeals from orders in equity. Our conclusion is that a suit may be brought on the bond to recover the costs in the attachment suit; but that nothing else can be recovered on the bond, unless a suit against the plaintiff for wrongfully suing out the attachment has been prosecuted to judgment.

The appeal comes before us on a demurrer to the declaration. All errors impleading were waived, and by agreement of counsel the case was rested on the two questions which we have considered. The circuit court overruled the demurrer; and, as a cause of action is stated in the declaration, we must affirm the judgment.

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