Boyd v. Boyd , 11 S.C.L. 125 ( 1819 )

The opinion of the Court was delivered by

G-antt, J.

By the Act of IT99/ the necessity of petitioning a judge, for leave to issue an attachment, is done away, and they are demandable of common right, subject, however, to this proviso, which immediately follows: “ Provided always, that no writ of attachment shall issue, before the plaintiff has given bond to the defendant in double the amount for which the attachment issues, to be taken by and lodged with the clerk of the district, to be answerable for all damages which the defendant may sustain by any illegal conduct in obtaining said attachment.” ¹ Brev. Dig. 41. ,

*The case, therefore, resolves itself into this proposition: Was this a bond? L i"ib

A bond is defined to be a deed or obligatory instrument," in writing, whereby one doth bind himself to another," to pay a sum of money, or do-some other act. It contains an obligation with a penalty, and a condition, which expressly mentions what money is to be paid, or other thing to be performed, and the limited time for the pérformance thereof; for which the obligation is peremptorily binding. The ceremonies necessary to a bond or obligation, consists of writing on paper or parchment, sealing and delivery. Signing hath been held not to be necessary. 2 Co. 5, a. Hoy’s Max. 54. 2 Salk. 462. 5 Mod. 281. And Lord Coke says, that though sealing and delivery be essential in an obligation, yet there is no occasion in the bond to mention that it was sealed and delivered, because he says, these are things which are done afterwards. Goddard’s case, 2 Co. 5, a. Hence, there can be no doubt, but that the obligation, with a penalty, and the condition underwritten, must precede the sealing and delivery. The case before us, is the reverse of Lord Coke’s doctrine, and if established, would go to show, that there may be a bond without writing. In 4 Comyn’s Dig. Obliga. B. 3, referring for support to an authority highly prized, Perk. S. 1S8, the law on this point is express, and thus laid down :

“ If a blank be signed and sealed, and afterwards written, it is no deed.”(6) Surely, then, this cannot be considered a good bond, where there is no writing at all.

How the Act of Assembly is express, that no attachm,ent shall issue before the plaintiff has given bond in double the amount for which the attachment issues.

Where do we find a fulfilment of what the act requires upon this paper ? The remedy by attachment is one which must be strictly pursued; nor have the Court power to dispense with any of those pre-requisites prescribed by the Act.

*The Court are of opinion that the decision below was correct and legal, and that the plaintiff can take nothing by his motion. ■-

Colcock, Hora, BichaRdson and Johnson, JJ., concurred.

1 7 Stat. 244, § 7.