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Whitsett v. Womack, use, &c.

that the bond was intended to conform to the statute; but be this as it may, we have seen that it imposes a common law obligation, if it was voluntarily entered into, and is at least a good security for the sheriff, against the obligors. Considered as the under- . taking of the custodian of the sheriff, the condition is entirely legal and it would seem most appropriate.

It does not appear from the bond, or the pleadings, that the boat was bailed with the understanding that it was to be navigated. In one or more of the counts, it is stated in substance, that the seizure prevented it from being thus used, and by committing it to the possession of the obligors, it was allowed to continue and complete its passage to the point of destination; but it is not alledged that this was a matter of stipulation between the sheriff, or that it in any manner entered into the contract of the parties. Suppose however, that the obligee did assent to the employment of the boat, can the obligors, after having availed themselves of the benefit derivable from the contract, be permitted to alledge its invalidity? Or could there be any legal objoction to the navigation of the boat, if the purpose was to go to some point not very remote, where its master had undertaken to deliver goods, and there unlade? A contract contemplating such an employment, it seems to us, would oppose no rule of policy or law, and could not be prejudicial to either of the parties to the suit.

There was nothing said by us, when this case was previously here, that is decisive of any point now raised. True, we remarked, that "the bond taken by the sheriff' in this case, is not the one prescribed by the statute, and therefore the lien was not discharged by it; but continued in full force, and the steamboat is to be considered as yet within the jurisdiction." This is nothing more than a declaration, that as the bond does not conform to the statute, it did not release the boat from the right which the plaintiffs acquired by the seizure, to have the decree in their favor satisfied by its sale; or in other words, that the bond in question did not, in virtue of the statute, inure to the plaintiffs, and was not a substitute for the boat. This proposition is not now controverted, and is entirely consistent with the idea, that the bond is a good common law obligation. Does it follow that because the lien upon the boat was not discharged, that the bond was gratuitously given? We think not. The sheriff may have giv

Whitsett v. Womack, use, &c.

en some other equivalent for the engagement which the obligors took upon themselves. Such would be the legal intendment, and the reverse cannot be presumed in the absence of a plea and proof drawing the consideration in question.

In Cromwell v. Grundale, 12 Mod. Rep. 194, it was held, that where the words of a bond are not sufficiently explicit, or where their meaning if construed literally would be nonsense, we must endeavor to discover the intent of the obligor, and be guided thereby. In giving a construction to a bond, the Court will look to the intention of the parties at the time it was executed, and expound it as the law then was. [Union Bank v. Ridgely, 1 Har. & G. Rep. 324.] And the condition of the bond ought to be so construed, by rejecting insensible words, as to fulfil the intent of the parties. [Gully v. Gully, 1 Hawk's Rep. 20.] The Court may depart from the letter of the condition of a bond, to carry into effect the intention of the parties. [Cook v. Graham, 3 Cranch's Rep. 229; Minor, et al. v. The Mechanics' Bank of Alexandria, 1 Peter's Rep. 46.]

In Pennyman v. Barrymore, 18 Martin's Rep. 494, it was determined, that the words "fourteen hundred and ten," in a bond, may be understood to mean "fourteen hundred and ten dollars.” The cases here cited, rest upon a principle so reasonable, and well founded that their authority cannot be questioned; applying them to the condition of the bond declared on, and there can be no difficulty in adjusting its meaning. The undertaking of the obligors as gathered from the terms employed, is, that if the libellants shall recover a judgment, or decree in the suit they had instituted against the steamboat Triumph, her tackle, &c., then they would return her, with tackle, &c. to the obligee, or his successors in office, at the port of Gainesville, where she then lay -demand being made by the obligee, or his successor in office, or the deputy of either of them, having an execution in his hands issued upon the judgment or decree. This exposition of the condition, seems to us perfectly clear, without doing the least violence to the language employed. It was not contemplated that a demand should be made at any particular point; and the form of the execution is wholly immaterial. If it was one that warranted the action of the sheriff against the boat, its sufficiency is indisputable; and as there was no stipulation, such as the statute

Whitsett v. Womack, use, &c.

requires, the most reasonable inference is, that it was process operating in rem, and authorizing the sale of the boat.

The office of an inuendo in pleading, it is said, is to explain, not to enlarge," and is the same in effect, as that is to say." It is used almost exclusively in practice, in actions for defamation, and in such case the plaintiff cannot merely by force of an inuendo apply the words to himself. "The inuendo means no more than the words aforesaid." The introduction of facts under it will not be deemed a sufficient averment of them; that which comes after it, is not issuable; if an inuendo is repugnant, it may be rejected, or if intended to enlarge it will be treated as surplusage. [4 Bac. Ab. 516; Corbet v. Hill, Cro. Eliz. 609; Dane's Ab. ch. 63, Art. 5 and 8, and citations there found.] It is immaterial then, whether the inuendo is used for the purpose of enlarging or other unauthorized purpose, it is not issuable, and furnishes no warrant for sustaining a demurrer to the declaration.

It is immaterial whether the bond was taken by the sheriff in person; if the boat was bailed by a deputy, the inference would be, that the act was authorized by the principal, or that it was sanctioned and approved by him. In any event, if the obligors had the benefit of their contract, and there was no effort by the sheriff to disannul it, they cannot be heard to set up the want of authority on the part of the deputy.

Let it be conceded that the bond contemplates a demand as necessary to put the obligors at fault, and entitle the obligee to maintain an action against them, and still we think it clear, that it is quite sufficient, if a demand has been made of the defendant alone. The statute of 1818 enacts, that every joint bond shall be deemed and construed to have the same effect in law, as a joint and several bond; and it shall be lawful to sue out process and proceed to judgment against any one or more of the obligors. [Clay's Dig. 323, § 61.] Thus we see that the obligors undertook each for himself and the others, and that the remedy of the obligee is against each, or all, at his election. This being the law, we think it will not admit of serious question, that a demand of the party sued, and a failure to comply, entitled the plaintiff to institute his action.

In respect to the interlineations of the bond, it is perhaps enough to say, that there was no issue which imposed upon the plaintiff the onus of proving its genuineness as declared on, or

Hughes, et al. v. Garrett, et al.

set out on oyer, and we cannot conceive that the plaintiff was bound to account for its interlineations. If it had been offered merely as evidence, without being the basis of an action, then perhaps, if the erasures or interlineations were such as to warrant the suspicion that they were made after the bond was executed, or without authority, the obligee should account for them.

This view is decisive of the cause as presented, and the consequence is, that the judgment of the County Court is affirmed.

HUGHES, ET AL. v. GARRETT, ET AL.

1. A surety in a claim bond, in which the principal is trustee for a feme covert, has no equitable right to prevent the feme covert from removing the property, covered by the condition of the bond, out of the State, previous to a forfeiture of the condition.

Appeal from the Court of Chancery for the 39th District.

THE case made by the bill is this:

Certain executions had been levied on slaves as the property of Warner Washington, a citizen of Cherokee county, which were claimed by William Garrett, jr., as trustee for Arianna Washington, the wife of Warner Washington; and this claimant, on the 9th August, 1841, gave the claim bonds required by law, to which he procured Hughes and McCluny, the complainants, to execute as his sureties. The suit growing out of this claim is yet pending.

One of the slaves covered by the condition of the bond, had been removed before the time of filing the bill, and the others were then in the possession of Arianna Washington, the cestui que trust, and of her husband, who were about to remove the slaves out of the State, to parts unknown. That Garrett, the claimant is insolvent, and connives at the removal of the slaves, or

Hughes, et al. v. Garrett, et al.

at least is unwilling to do any thing to prevent their removal, and is unable to respond to the complainant in damages, if the claim is determined against him. The prayer of the bill is, for an injunction against removing the slaves out of the State, and for their scizure, as in case of attachment, repleviable however if bond shall be given for the delivery of the slaves, to answer the requisitions of the law, when the claim shall be determined.

Garrett, Washington and his wife, the creditor at whose suit the slaves were levied on, and the co-defendants of Washington, in those suits are made parties defendant.

An injunction and attachment were directed by the order of a Circuit Judge, but the Chancellor, on motion of the defendants, dismissed the bill for want of equity. This is assigned as error.

L. E. PARSONS, for the appellants, admitted he was unable to cite any case in which a Court of equity had interposed for a surety, before the maturity of the engagement of his principal, but argued, that relief was due in every instance of fraud, and the removal of the slaves under the circumstances set out in the bill is a fraud on the sureties. In Benson v. Campbell, 6 Porter, 457, the Court seemed to consider that a surety was entitled to relief, if the principal is non-resident. If this was a debt, an attachment at the suit of the creditor would lie, and there is no reason why the surety should not have a similar remedy in equity. He also cited Rives v. Wilborne, 6 Ala. Rep. 47; Campbell v. Macomb, 4 John. C. 534.

W. B. MARTIN, contra.

GOLDTHWAITE, J.-It seems to us impossible to sustain this bill, upon any recognized principle of equity. The case made by the bill is, in effect, nothing more than a statement by the complainants, that the confidence they had in the integrity of the principal in the bond, when it was executed, has ceased to exist, and the only relief prayed, or indeed which can be given, is, that they may be indemnified by some counter security. It is evident if such a course could be sustained, that every dissatisfied surety would go into equity for the indemnity which he might, in the first instance, have stipulated for. There is no analogy between the principle asserted here, and that which governs bills

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