McGovern v. Hoesback

The opinion of the court was delivered, by

Woodward, C.J.

Two objections were taken to the admission of the insolvent bond in evidence, both of which were groundless. The first, that it was not proved, was answered by the fact that a copy of it was filed with the precipe, and no sworn plea of non est factum was put in by the defendants. Under the rule of court this entitled the plaintiff to give the bond in evidence without proof of execution.

As to the second objection, that the bond was not stamped, it is sufficient to say that the Stamp Act exempts from duty all bonds that are made necessary in legal proceedings.

It was argued that an insolvent bond is ex volúntate and not ex necessitate, but we do not think so. Arrested upon judicial process and liable to be thrown into jail, the debtor gives the bond to avert the legal effect of the process and to secure to himself his liberty. In a very high sense, this is a necessity created by legal proceedings, and such a bond may be fairly considered as falling within the exception of the Stamp Act. But if this be not so, there is no evidence that the stamp was omitted with any design to evade the Act of Congress, and it is only instruments that are made with that intent that are void.

The sureties are no more able to avoid the bond for such a reason than the principal would be, and as it was his duty to add the stamp, if indeed any were necessary, it would not lie, either in his mouth or that of his sureties, to allege his own neglect in avoidance of his own bond.

The 3d and 4th errors assigned suggest a more substantial defence. It appears that on the 22d April 1865, McGovern, the debtor, was duly discharged under the insolvent laws. If his case had not been regularly continued to that day, it was not because he had failed to appear in court at the proper time, but because the court had adjourned without doing any business in consequence of the startling intelligence of the assassination of the President; and to give McGovern the benefit of an order made at the proper time the court entered their order of 22d April 1865, nunc pro tune. Whilst the record stood in that condition this suit was brought against the sureties, on the 6th June 1865. On the 26th September following a rule was granted upon McGovern, to show cause why said order of discharge should not be revoked. On the 1st February 1866 this rulo was made absolute, but immediately a rule was made upon the plaintiff to show cause why another day for hearing McGovern on his original petition should not be appointed, and this rule is still pending.

Now, in view of this state of facts, it is not necessary to decide at present whether the bond had 'become forfeit by McGovern’s default prior to 22d April 1865, if indeed any default had occurred, nor is it necessary to consider the effect of the order nunc pro tune, nor the consequences of its discharge — for, if the record •did not import a legal discharge at the institution of this suit, it is manifest beyond all doubt that the whole matter of McGovern’s discharge and performance of his bond is still suspended upon the rule that was granted February 1st 1866. Until that rule is discharged any action upon the bond is premature. Whether the, suit was prematurely brought or not, it was prematurely" tried.

What if we should sustain this recovery against the sureties, and McGovern should finally-effect his discharge? That discharge would import a compliance with al*l orders of the court, and a performance of all conditions of the bond, and yet the sureties would already have suffered as for a forfeiture of the bond. A bond performed by the principal, and yet enforced against the sureties, would be a preposterous record.

Such a record ought not to be made in a court of justice. The court ought to have stopped the trial till the last rule was disposed of. Whether a suit commenced when this was could then proceed, or whether the plaintiff would b§ put to a new actionj are points that need not now be considered.

Sufficient for the present is the error in proceeding to judgment upon a bond that is not yet legally ascertained to be forfeit.

We think the court should have sustained the. defendant’s points on this subject.

We see nothing in 2d error assigned.

The judgment is reversed, and a venire facias de novo is awarded.