L. J. Appel Sons, Inc. v. State Ex Rel. Townsend

Sloan, J., delivered the opinion of the Court. L. J. Appel Sons, Inc., a corporation, caused to be issued out of the Court of Common Pleas of Baltimore ⁶²⁸ City an attachment for unliquidated damages against Arthur W. Townsend and Walter J. Townsend, upon filing a bond in the penalty of $1,000, with John J. Appel and A. Frederick Schlee as sureties thereon, for which a new bond was substitúted later with the wives of the original sureties, Anna M. Appel and Lena Schlee, respectively, joined as sureties (Code art. 9, sec. 44), and property of Arthur Stephen Townsend and Walter J. Townsend, a partnership, was wrongfully seized to satisfy the attachment against Arthur W. Townsend and Walter J. Townsend. See Townsend v. L. J. Appel Sons, Inc., 164 Md. 255 , 164 A. 679 . The attachment bond was given to the State of Maryland in the form prescribed by Code art. 9, sec. 39, conditioned that, “if the said L. J. Appel Sons, Inc., shall prosecute their suit with effect, or in case of failure thereof, shall well and truly pay and satisfy to the said Arthur W. Townsend and Walter J. Townsend and any other persons interested in these proceedings all such costs of said suit and all such damages as he or they shall or may suffer or incur by reason of the wrongful suing out of said attachment, then the above obligation to be void; otherwise to remain in full force and effect.” After the decision in Townsend v. L. J. Appel Sons, 164 Md. 255 , 164 A. 679 , the appellees, who were the successful claimants of the property seized, brought suit, in the name of the State of Maryland for their use, on the attachment bond, resulting in a judgment in their favor, from which the attaching creditor and its sureties appealed.

The original suit between L. J. Appel Sons, Inc., and Arthur W. Townsend and Walter J. Townsend was entered “agreed and settled,” from which the appellants argue that there has been no breach of the bond and therefore no action can be maintained by. the obligees (2 Poe, Pl. and Pr., sec. 236), and that therefore there is no liability to any one under the conditions of the bond. The appellee’s contention is that it runs to a third party injured in the execution of the writ of attachment under ⁶²⁹ the condition that the principal shall “pay and satisfy to the said Arthur W. Townsend and Walter J. Townsend and any other persons interested in these proceedings all such damages as he or they shall or may suffer by reason of the wrongful suing out of said attachment,” and it is agreed that the decision on this appeal depends on the construction of the condition here italicized, with reference to one whose property has been wrongfully seized. Under an attachment bond it has been uniformly decided that an action can only be maintained by the defendant in the original suit, unless the bond is so conditioned as to run to others not named, who may be damaged. As stated in 3 Enc.

Pl. and Pr. 639, with respect to bonds generally: “The rule is drastic at common law that only the obligee or his personal representatives could sue on a bond.” The same rule is applied to the ordinary bond in attachment cases, though, the proceeding being statutory, the extent of liability, as well as the validity of the attachment, depends on the compliance with the statute. Hodge and McLane on Attachment, sec. 213; McLuckie v. Williams, 68 Md. 262 , 12 A. 1 . The appellants rely in their brief on the statement of the rule in Drake on Attachments (7th Ed.) sec. 162, that “ the bond is not required for the protection of the officer executing the