McLuckie v. Williams

Bryan, J., delivered the opinion of the Court. We are requested by the counsel in the cause to give •our opinion on two questions: Eirst, 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 plaintiff for wrongfully suing out the attachment. The Act of 1864, ch. 306, 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 proceedings, 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 cf the •condition. If the bond does not meet the requirements -of the statute, and the attachment is nevertheless issued and afterwards quashed 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 according to the tenor of their bond. Nor is it easy ²⁶⁴ 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 he -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 he 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