Foster v. J. W. Champlin & Co. , 29 Tex. 22 ( 1867 )

Willie, J.

A preliminary question arises in this case upon the motion of appellees to dismiss the appeal because the bond is not under seal. The statute requires “ that any party taking an appeal shall, within twenty days after the term of the court at which the judgment or decree was rendered, enter into bond, with two or more sureties,” &c. (O. & W. Dig., Art. 549.) It does not in express terms require that the bond should be under seal; but it is urged that .the word “bond,” as used therein, has a technical meaning, derived from the common law, which was the rule of decision in our courts at the time of the passage of this statute, and that a seal is essential to the validity of such instruments under that system of laws. So far as the present case is concerned, the objection might be overruled, on the ground that it comes too late, not having been made at the return term of the appeal. (Horton v. Bodine, 19 Tex., 580.)

But in order to prevent the question of the validity of an appeal bond not under seal from ágain arising in this court, it will be determined in this case without reference to the objection that the motion was not filed in time. The term “bond” is of frequent occurrence in the statutes of the Republic of Texas, passed prior to the adoption of the common law, and its signification, as used therein, was defined by the Supreme Court in the case of Cayce v. Curtis, Dal. Dig., 403. They there held, that it was to be referred to the civil law for its meaning, force, and legal construction; that there was no such word as bond known to the civil law, but that its equivalent under that law was the word “ obligation;” and that, a seal not being known to the civil law, and not being required to give force and validity to an obligation, it was not essential to the validity of a bond.

The word “bond,” then, as used in our law, of force previous to the 20th of January, 1840, the date of the introduction of the common law, [Paschal’s Dig., Art. 978, Note 418,] had a defined meaning and construction, which excluded the idea that a seal was at all essential to the validity of such an instrument. The court' go on to say, in the case above cited, that “were a term of art or science wholly unknown to the law of the country, and which in itself imparted a definite meaning, to be employed in a statute, then, indeed, the court would be compelled, ex necessitate rei, to look to the particular art or science from which it was taken for its definition; but when the general or established law affords an equivalent term to the one used in the statute, which is well known and defined in its signification and operation, it cannot be doubted that the legislature intended to give to the new word only that force and signification which the old one possessed.”

When the common law was introduced, the word “ bond” was not a term wholly unknown to the laws of this country; it was not imported with the common law; and we are not to look to that system for its definition. But we are to give it the same meaning in statutes subsequently enacted that it had when used in those which existed prior to the adoption of the common law, and in these latter, as we have seen, it did not signify an instrument under seal.

It would be absurd to hold that bonds executed subsequently to the 20th of January, 1840, under statutes which existed previous to that time, would be void for want of a seal, when, if the same character of bonds had been executed previous to said day, they would have been valid without it. The introduction of this new system of jurisprudence (the common law) could not operate as an amendment of the,statutes then in force, so as to require the senseless addition of a seal or scroll to make that contract good which was already valid by the law of the land.

If the adoption of the common law did not change the definition and requisites of a bond made in accordance with previous statutes, it would be unreasonable to hold that it had this effect as to those executed under statutes subsequently passed. It would make the signification of an important legal term to depend upon the date of the statute in which it was found, and would have a tendency to create confusion in the interpretation of our laws.

But it is said that the legislature intended to require more solemnity in the execution of obligations executed upon an appeal than in those entered into when a case is taken to the Supreme Court by writ of error, because the word “bond” is used in the former case, and the word “obligation” in the latter. [Paschal’s Dig., Art. 1495, Note 587.] Our inference, drawn from this difference in the language, is just to the contrary. There can certainly be no reason for requiring greater formality in the one case than in the other. The object of the obligors in each instrument is to secure the opposite party in his costs and damages and insure the performance of the judgment of the Supreme Court. The effect of each instrument is the same, and their conditions are almost identical. Each has the same binding force upon its obligors, and there is no difference in the remedies to be presumed against them in case of a breach of the conditions. The conclusion is, that the law-givers intended these terms as synonymous, thus giving a legislative definition to them in accordance with the decisions of the Supreme Court of the Republic above cited.

But admitting that, at the date of the foregoing act, in which appeals to the Supreme Court are regulated, the word bond had a technical meaning derived from' the common law, and that such contracts were required to he under seal, that requirement has been wholly abolished by the act of February 2,1858. This act reads as follows": “Ro scroll or private seal shall be necessary to the validity of any contract, bond, or conveyance, whether respecting real or personal property, except such as are made by corporations; nor shall the addition or omission of a scroll or seal in any way affect the force and effect of the same; and every contract in writing hereafter made shall he held to impart a consideration as fully, and in the same manner, as sealed instruments have heretofore done.” [Paschal’s Dig., Art. 5087, Note 1114.] This statute was evidently intended to embrace every instrument in the execution of which seals or scrolls had been before that time used. It is somewhat inartificially drawn, but its object was clearly to abolish and forever dispense with these “ relics of ancient barbarism.” Every bond must be made with respect to either real or personal property; and it is no strained construction to hold that such a one as is now under consideration can be embraced within the language of the above statute.

We are therefore of opinion that the motion to dismiss should be overruled.

The only objection urged by appellants to the judgment of the court below is, that it did not decree that the estate of the deceased principal should be exhausted before execution should run against appellants, one of whom was surety and the other indorser upon the note which is the foundation of the present action. Had the principal been alive, and suit been brought against him jointly with the appellants, and the latter had so required it in their answer, supported by corresponding proof, the proper judgment, under the act of February 5, 1858, would have been, that the execution be levied first on the property of the principal, situated in the coryity where the judgment was rendered, before a levy should be made of the property of the appellants. [Paschal’s Dig., Art. 4783, Note 1070.] But the principal in this case wás dead at the time of the commencement of this suit, and the plaintiff was not, under our law, bound to join his representatives as parties defendant, or to go into the probate court to enforce it against his administrator. Suit was, under the circumstances properly commenced against the surety and indorser alone, and against them only could judgment be rendered. The law of 1858 [Paschal’s Dig., Arts. 4785, 4786] did not operate as a constructive repeal of the former law allowing this course to be pursued. It was not intended to interfere with the former remedies of the holder of a note against the parties bound upon it, nor with the rules of practice before established in such suits, but merely to adjust the order in which debts should be paid as between principal and surety, without causing any additional delay to the plaintiff, who was entitled to the money when collected. [Paschal’s Dig., Arts. 225, 1426, Notes 287, 535.]

The judgment of the court below is

Affirmed.

[Note.—These sections did not in terms dispense with the necessity of joining the . representatives of solvent principals.—Reporter.]