
    THE STATE TO USE OF CAMERON vs. BERRY & BERRY.
    1» A bond executed under the statutes concerning “attachmchis,” which omits part of the conditions specified in the act, is nevertheless valid as to the conditions contained in it;
    APPEAL FROM ST. LODIS COURT OF COMMON PLEAS.
    Hudson, for appellant:
    1st. The bond oh which this action was founded conforms to the provisions of the statute under Which it Wak taken, with the exception that one or two of the conditions contained in the act have been omitted in the bond; The omissions, it will be seen by reference to the pet and bond itself diminish the liability of the defendants, and by reason 'of the omissions the bond is more favorable to defendants. This being the case,it does not become the defendants to complain of the insufficiency of their own voluntary obligation ; they should not bo permitted to take advantage of their own neglect or omissions. This court held in the case of Grant and Finney vs. Brotherton’s administrator, 7 Mo. Reps. 458, that a bond given under a statute, but not following the words used in the act, is, nevertheless, valid, unless the stature prescribes a form, and declares that all bonds not taken in conformity thereto shall be void. On this point see also 10 Peters Rep. 115.
    2d. A statutory bond ought to ednibrm to the requirements of the act; but if it docs not, and there should bo nothing in it illegal, it will bo good as a common law bond; and a recovery may bo had for a breacli of its conditions. 8 Shop. 385 ; 2 Dallas 138 ; 9 Cranch 28; 26 Wend. 530 ; 12 Wend. 306.
    3d. The obligor in a statutory bond can in no ease bo permitted to take advantage of an omission of a condition, when such omission is beneficial to himself. Dudley Geo. 22 ; 17 Wend. 67.
    4th. Bonds taken under a statute are not void because they do not comply with all the requirémenta of the act, unless by some provision in the act itself they are declared void. 17 Wend 67 ; 7. Mo. Rep. 358 ; 10 Peters Rep 115 ; Dudley Geo. 22 ; 1 Watts & S. 261.
    5th. Although a bond may contain conditions beyond those required by the statute, yet it will be good as to those which are specified in the act. Our statute is merely directory on this subject R. C. Tit. Art. 3 Watts & Sergt. 324. The rule is that bonds are good as to such conditions as are legal, and void as to those only which are illegal. 6 Peters 335.
    6th. The bond in this case is good either as a common law or statutory bond. Gilpin Rep. 153; 8 Mass. Rep. 153; 5 lb. 314; 5 Peters 375.
    7th. The court below erred in giving judgment for costs against the plaintiff. 11 John Rep. 141; Gill. & John 407 ; 2 Dev. 386.
    8th. Where a party obtains an arrest of judgment for what he might have demurred to, the supreme court of Vermont refused to allow him costs. 1 Chip. 144.
    Carroll, for appellees insists :
    1st. That the law proscribes a form for the bond in this ease, stating expressly what the bond shall contain.
    2d. The cases oited by Mr. Hudson are not like the case at bar m this, viz : 1st. That no forms were prescribed in these cases for the bond ; and they were cases where there was more in the bond than the law required ; or the parts omitted were 'unimportemt, 2d. They were good common law bonds, and the case in 7 Mo. Hep. is a good bond at common law.
    
      3d. The case cited by me in 1st Brocken borough p. 177, Dixon et al. vs. the United States, is exactly in point here.
    The true test of the material parts of a bond is, “all the omitted parts generally important, or important m themselvesand not “are they important in the particular case at bar.”
    Now the parts omitted in the ‘bond in this case are both of intrinsic importance, and gencialJy so in the cases brought under the attachment law.
   Judge Birch

delivered the opinion of the court.

The appellant brought his suit in the St. Louis court of Common Pleas, on a bond executed by the defendants, and filed before a justice of the peace of the county of St. Louis-, upon which he obtained and levied an attachment against the plaintiff. The suit was subsequently dismissed by the justice, and the question presented for our consideration is, whether the bond is sufficient to sustain the action commenced upon it. The bond is admitted to be right enough, except in the condition, which is in these words :

“The condition of the above obligation is such, that whereas James H. Berry, as plaintiff, is about to institute a suit before W. B. Harwood, a justice of the peace, within and for Central township, in St. Louis county, Missouri, by attachment against Harvey Cameron, as defendant, returnable on the 26th day of October, 1847, for the sum of ninety dollars. Now, if the said plaintiff shall prosecute his action without delay, and with effect, and shall pay all damages which may accrue to Harvey Cameron, defendant, or any garnishee, by reason of the attachment, or any process or proceeding in said suit, then this obligation to ■be. void, &c.”

The fourth section of the first article of the ‘fact to provide for the recovery of debts by attachment,” enacts that the bond shal} be “conditioned that the plaintiff shall prosecute his aetipn without delay, and with effect, refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiff and not justly due to him, and PaY damages that may accrue to any defendant or garnishee by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon.”

It will be perceived that the bond taken omits so much of the statutory condition as would (had it been inserted) have obliged the plaintiff in the attachment to ff refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiff and not justly due him,” and also so much as “ by reason of any judgment or process thereon,” the defendant had been injured, in fhe way of damages.. The breach assigned, however, is that Berry had “failed to prosecute his suit with effect,”—one pf the conditions embraced in the bond, and to which he had committed himself—and the jury having found the issue, and such damages as were proven, for the plaintiff, it would seem that the authorities ought greatly to preponderate against the abvious naturalness of such a proceeding to induce the court to arrest the entry of a proper judgment. So far from this being ■the case, however, the authorities of other courts to which we have referred almost entirely, concur in sustaining a previous decision of this court, (7 Mo. Rep. 458) in which it was substantially holden that where the bond merely fell short of the statutory enumeration in such 'a manner as to be more favorable to the party executing it, he could not be permitted to complain, if, after it had answered all his purposes, he was held liable to its penalties.

For as much, then, as it appears to us that the court below committed an error in sustaining the motion in arrest of judgment, its decision is Reversed, and the cause remanded.  