president and cashier shall each take an oath or affirmation that he will faithfully and honestly discharge his duties. And the board of directors shall require of the president and cashier to execute separate bonds, with sureties, in such sums as they may deem proper, conditioned that they will honestly and faithfully discharge their several duties as such officers (which said bond shall be filed in the office of Secretary of State for the benefit of stockholders and creditors of such bank) during their continuance in office." Section 3331, Burns 1908; Acts 1873, p. 21, § 3. It will be noted that, while this statute leaves the amount of the bond to be fixed at the discretion of the board of directors, it is mandatory upon them to exact a bond from each of the officers named, and by its terms states the simple condition upon which it must be given in clear and unmistakable words, namely, that the officer will honestly and faithfully discharge his duties as such officer during his continuance in office. Such a plain and simple obligation with the broad and comprehensive condition the statute requires, and one less direct and less burdensome for the surety does not satisfy it. A bond such as the one given in this instance, which is manifestly prepared with studied care to avoid all liability on the part of the surety, except such as might grow out of a loss that might occur to the one to whom the bond was given, even after he had exercised that close and relentless vigilance which makes stealing well-nigh impossible, certainly does not fulfill the requirements of the statute.

The statute fixes upon surety companies the character of lawful sureties upon statutory bonds, but it gives them no authority to change the character or legal effect of the bonds which the statute exacts. Such a company could not enter into a recognizance bond and by adding to the ordinary condition for the appearance of the defendant the proviso that it would not answer for the default of the principal if the sheriff failed to keep him under constant surveillance and thereby escape liability by showing the defendant's failure to appear was due to the sheriff's neglect. When appellant was requested to furnish a bond to the bank for its cashier, it was bound to know the nature of the condition it would become liable upon if broken. It is, of course, to be conceded that a surety company may, in dealing with a private citizen, with a free hand unhampered by statutory restrictions, make such a contract of suretyship as it chooses and guard and limit its liability by as many provisions as it pleases, and, if the one for whose benefit it is given accepts it in good faith, the surety is bound only according to the terms of the bond. But even in such a case the rule of strictissimi juris, which has been invoked for the benefit of private individual sureties who sign for accommodation and not for compensation, and which requires a strict construction of the contract in their favor, and a resolution of all doubts in their favor does not apply to the involved contract of a surety company which becomes surety for profit. In the latter case the rule is reversed, and the contract, when there is room for construction, is to be construed most strongly against the surety and in favor of the indemnity which the obligee had reasonable ground to expect. Bank of Tarboro v. Fidelity & Deposit Co. (1901) 126 N. C. 320, 35 S. E. 588, 83 Am. St. Rep. 682; Geo. A. Hormel & Co. v. American Bonding Co. (1910) 112 Minn. 288, 128 N. W. 12, 33 L. R. A. (N. S.) 513, and many cases cited in note; Philadelphia v. Fidelity & Deposit Co. of Maryland (1911) 231 Pa. 208, 80 Atl. 62, Ann. Cas.

& Surety Co. (1911) 232 Pa. 337, 81 Atl. 410, 38 L. R. A. (N. S.) 698; 32 Cyc. 306.

A bond of the character of the first named, appellant was authorized, by the provisions of our laws relating to surety companies, to execute in compliance with section 3331, supra, but not so one of the latter class. It is provided by section 1 of the act of 1897 (Acts 1897, p. 192, § 5728; Burns 1908): "That whenever any bond, undertaking, recognizance, or other obligation is by any law of the state of Indiana, or the charter, ordinances, rules or regulations of any municipality, city government, common council, 1912B, 1085, note; Brown v. Title Guaranty board of county commissioners, and savings bank, state bank or private bank, ** required or permitted to be made, given, ten- No other bond was taken in this case than dered or filed filed with with surety surety or sureties, the one in suit, and it is not denied that it * such bond, undertaking, obligation, was taken by the directors and given by recognizance or guarantee may be executed Behrens and appellant in compliance with by a company qualified to act as such surety the statute, and pursuant to the statute it or guarantor; and such execution was filed in the office of the Secretary of by such company of such bond, undertaking, State. It has long been the rule in this state obligation, recognizance or guarantee shall that, when a bond is given in obedience to a be in all respects a full and complete com- command of the statute, a construction shall pliance with every requirement of every law be given it which binds the obligors to the that such bond, undertaking, obli- performance of the conditions which the gation, recognizance or guarantee shall be statute declares it shall contain, even though executed by one surety, or by one or more the bond does not specifically so provide. sureties, or that such sureties shall be resi- The rule has been applied to personal suredents or householders, or freeholders, or ties who have obligated themselves for accomeither or both, or possess any other qualifi- | modation without pecuniary reward. The

*

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others who engage in the business of becom- | Berg (1875) 50 Ind. 496; Graham v. State ing sureties or guarantors for profit, and who ex rel. (1879) 66 Ind. 386, 389; Opp v. Ten offer themselves as common sureties or guar- Eyck (1885) 99 Ind. 345. antors for hire, is greater.

That it is the settled policy of the state to fix the conditions of bonds required by statute and to hold sureties thereon to the performance of the conditions named clearly appears from statutory provisions. In the statute relating to the bonds of public officers, it is provided that such bonds shall be obligatory for the faithful discharge of all the duties required of the officer by law, and that no such bond shall be void because of defects in form or substance, but upon the suggestion of such defects such bond shall be obligatory as if properly executed. Sections 9111 and 9113, Burns 1908. As we have seen, the law prescribes the condition which the bonds of the president and cashier of banks incorporated under the laws of the state shall contain. And such is the policy in relation to many other bonds required by law which will easily suggest themselves. See, also, section 2024 relating to bonds in criminal actions.

In State ex rel. v. Fletcher, supra, it was said at page 586 of 1 Ind. App., page 113 of 28 N. E.: "The wording of the bond neither adds to nor takes from the recognizor any liability created by statute. Where a bond contains more or less than is required by statute, it operates and has the force and effect of the statute authorizing it. If the bond contains less than required by statute, the bondsman will be held to what it should have contained; and, if it contains more than required by statute, the measure of liability would be to the extent defined by statute."

In Opp v. Ten Eyck, supra, it was said on page 348 of 99 Ind.: "The force and effect of this section is to cure defects and to supply omissions in the class of bonds named, whether the defects or omissions be of form or substance, and to hold the obligors, both principals and sureties, to the full extent of the law requiring the bond.”

[6] It has been held that, where the bond sued upon shows upon its face the defect or failure to meet the statutory requirements, the complaint need not further suggest it. Cook v. State (1859) 13 Ind. 154; Boden v. Dill (1877) 58 Ind. 273.

[4] Again it is provided in relation to other bonds required by law, generally, in addition to the above provision relating to the official bonds of public officers: "No official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken It is said in Childs on Suretyship and by any officer in the discharge of the duties Guaranty, § 91, p. 122, that the general rule of his office, shall be void for want of form is that, where a contract of suretyship is or substance or recital or condition, nor the entered into pursuant to a statute or to a principal or surety be discharged; but the by-law, the statute or by-law forms a part principal and surety shall be bound by such of the contract of the surety. If the law bond, recognizance, or written undertaking has made the instrument necessary, the parto the full extent contemplated by the law ties are deemed to have had the law in requiring the same, and the sureties to the contemplation when the contract was executamount specified in the bond or recognizance. ed. See, also, Adams v. Williams, 97 Miss. In all actions on a defective bond, recogni-113, 52 South. 865, 30 L. R. A. (N. S.) 855, zance, or written undertaking, the plaintiff Ann. Cas. 1912C, 1129; Growbarger v. Unitor relator may suggest the defect in his com- ed States Fidelity & Guaranty Co. (1907) 126 plaint, and recover to the same extent as if Ky. 118, 102 S. W. 873, 11 L. R. A. (N. S.) 758, 128 Am. St. Rep. 274; Ihrig v. Scott

such bond, rcognizance, or written undertaking were perfect in all respects." Section 1278, Burns 1908.

It has been frequently decided in this state that bonds taken pursuant to a requirement of a public statute are official bonds within the meaning of this section of the statute. Faurote v. State ex rel. (1887) 110 Ind. 463, 467, 11 N. E. 472; Robling v. Board (1895) 141 Ind. 522, 40 N. E. 1079; State v. Rowles (1912) 98 N. E. 722; State ex rel. v. Fletcher (1891) 1 Ind. App. 581, 586, 28 N. E. 111; Herod v. State ex rel. (1896) 15 Ind. App. 648, 43 N. E. 144, 44 N. E. 378; Holthouse v. State ex rel. (App.) 97 N. E. 130. See, also, Murfree on Official Bonds, §§ 36, 37.

[5] It has also been held that the provisions of the statute requiring the bond enter into and become a part of the bond, whether written in it or not, and constitute the contract upon which both the rights and the liabilities of the surety are to be determined.

(1893) 5 Wash. 584, 32 Pac. 466; Slocomb v. Robert (1840) 16 La. 173; Boswell v. Lainhart (1830) 2 La. 397; United States Fidelity & Guaranty Co. v. McLaughlin (1906) 76 Neb. 307, 107 N. W. 577, 109 N. W. 390; United States Fidelity & Guaranty Co. v. Union Trust & Savings Co. (1904) 142 Ala. 532, 38 South. 177.

In the case last cited the bond was almost identical in its terms with the one in suit. It was given pursuant to a statute as the bond of a register in chancery and he acted under it. It was said by the court: "It is therefore of no consequence that the condition of the bond is different from that which the statute prescribes for official bonds, nor of any consequence that the condition expressed in the bond may not have been broken by the officer. The condition which, though not written into this paper, is as es

of appellee and dismissal of his action, and reinstating it upon the application of appellee. The cause was set for trial on December 9, 1907. Appellee's counsel resided 30 miles from Petersburg, the county seat, and failed to reach there until 2:15 o'clock p. m. of that day. Prior to their arrival the cause was, about 11 o'clock a. m., dismissed on motion of appellant. Upon the arrival of appellee's counsel, they moved to set aside the

tion the court subsequently granted. Affidavits were filed by the respective parties in support of and against this motion. The statute (section 405, Burns 1908) expressly and properly vests in trial courts a discretion in the matter of relieving a party from a judgment taken against him by default, which this court will review only when that discretion has been abused. Moreover, the discretionary authority to relieve a party in default is inherent in all courts of record exercising a general jurisdiction, independent of the statute. Hoag v. Old People's, etc., Soc. (1891) 1 Ind. App. 28, 27 N. E. 438; Mastin v. Ind. Car., etc., Co. (1900) 25 Ind. App. 175, 57 N. E. 148; 6 Encyc. of Pl. & Pr. 149.

this action as if it and it alone were written into it is that the officer, Wm. H. Parks, will faithfully discharge the duties of the office of register in chancery during the time he continues therein, or discharges any of the duties thereof (Code 1896, § 3070); and the obligors thereon are liable for any breach of this condition for the use and benefit of every person sustaining damages by such breach. Code 1896, § 3087. It would be immaterial whether such bond is in terms pay-default and reinstate the action, which moable to the state. The law makes it so payable. It would be immaterial to the sureties' liability whether Parks executed it. The surety is liable whether he did or not. And it is immaterial that the instrument, though signed by Parks, yet on its face imports no obligation on his part to the state. The law imports that obligation into the bond. On the other hand, no account is to be taken of and no operation is to be given to the several stipulations and conditions set down in this paper which tend to limit the liability which an official bond imports or to clog or impeach the remedy for the enforcement of such liability. The right of recovery is the same in the abstract and as to amount as if the bond had expressed the statutory conditions and those only; and action upon it is maintainable under the same conditions. It is altogether inapt and inaccurate to say that the city court in its ruling on the demurrer in line with the foregoing views made a bond for the parties or even that the law has made a bond which the parties have not made. The law known of all men (and even of all corporations) said to these parties, ‘If you put forward a paper writing as and for the official bond of this officer and the officer acts under it, that paper writing imports and involves certain liability upon you in certain contingencies.' The parties make and exploit this writing for this purpose knowing the legal consequences of their action, and they thereby take those consequences upon themselves. The law, as it was competent for the law to do, merely gave a certain character and attached certain liabilities to certain acts. The defendant performed those acts, and it is not only no legal wrong but not even a legal hardship for the law through its ministers to enforce such liability."

It fairly follows from what has been said that the bond in suit must be held to be an official bond within the meaning of section 1278, supra, and that appellant's liability on it must be measured by the breach, which is plainly shown, of the simple condition that Behrens would honestly and faithfully discharge his duty as cashier of the bank during his continuance in office.

[7] In addition to the many questions not necessary to decide by reason of the conclusion just stated, it is contended that the court below erred in setting aside a default

[8] Complaint is presented of the misconduct of counsel for appellee in making improper statements in the opening statement of the plaintiff to the jury prior to the introduction of testimony. So far as these statements were improper and harmful to appellant, the court sustained its objection and instructed the jury to give them no consideration. The character, as well as the extent of the statement of a case to the jury, is left much to the discretion of the trial court. Aylesworth v. Brown (1869) 31 Ind. 270; Elliott's General Practice, § 559.

[9] During the argument of the cause to the jury one of appellée's counsel discussed the difference between the terms and conditions of the bond as given and as the statute required it to be. In view of the conclusion reached as to the character of the bond, we find nothing in the statements of counsel to which objections were objections were made that would amount to improper argument.

As it appears that a just result was reached in the trial court, the judgment is affirmed.

within the jurisdiction of the courts of the state, an employé of a corporation, which has factories both in and out of the state, whose wages, exempt under the laws within the state, were garnisheed upon a claim assigned by a resident of the state to one outside thereof, has a right of action against the assignor of the claim, since the acts constituting a public wrong are peculiarly injurious to him.

[Ed. Note. For other cases, see Exemptions, Cent. Dig. § 162; Dec. Dig. § 134.*] 2. CONSTITUTIONAL LAW (§ 205*) - EXEMPTIONS (§ 106*)-PRIVILEGES AND IMMUNITIES-PROTECTION OF EXEMPTION.

Burns' Ann. St. 1908, § 2669, imposing a fine on one who assigns a claim against a resident of the state to a nonresident to avoid the exemption laws, does not violate Const. art. 1, §§ 1, 23, recognizing the right to life, liberty, and the pursuit of happiness, and forbidding the granting to any citizen of privileges which are not upon the same terms granted to all, since the exemption of a debtor's property is required by Const. art. 1, § 22, and this provision is reasonably in aid of that right.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 591-624; Dec. Dig. 8 205;* Exemptions, Cent. Dig. §§ 132, 162; Dec. Dig. § 106.*]

sum for wages; that defendant, in violation of section 2669, Burns 1908, for the purpose of depriving plaintiff of his right to claim his wages exempt from execution, assigned and transferred his claim against plaintiff to one Smith, of West Virginia, for the purpose of having the claim sued on and collected in West Virginia, by proceedings in attachment and garnishment; that such proceedings were had in a West Virginia court; that the corporation was compelled to and did pay defendant's claim from the wages due plaintiff from the corporation. Appellant contends that the court erred in overruling his demurrer to the complaint because, as asserted, the law recognizes no cause of action, on the facts averred, and because the statute (section 2669, Burns 1908) is void, by reason of violating the provisions of sections 1 and 23, art. 1, of the Constitution of Indiana, and the fourteenth amendment of the federal Constitution.

[1] The statute in question reads as follows: "Whoever, either directly or indirect3. CONSTITUTIONAL LAW (§§ 206, 250*)-PRIVI-ly, assigns or transfers any claim for debt

LEGES AND IMMUNITIES OF CITIZENS OF THE
SEVERAL STATES.

Nor does the statute, Burns' Ann. St. 1908, § 2669, violate the fourteenth amendment to the Constitution of the United States.

against a citizen of Indiana for the purpose of having the same collected by proceedings in attachment, garnishment, or other process

[Ed. Note.-For other cases, see Constitution-out of the wages or personal earnings of the al Law, Cent. Dig. §§ 625-648, 711-713; Dec. debtors, in courts outside of the state of Dig. § 206, 250.*]

Appeal from from Superior Court, Madison County; J. A. Van Osdol, Special Judge. Action by Brady Murphy against John M. Markley. Judgment for the plaintiff, and defendant appeals. Affirmed.

Herman F. Willkie and Henrietta Willkie, both of Elwood, for appellant. Campbell & Kidwell, of Elwood, for appellee.

MORRIS, J: Action by appellee, against appellant, for damages, resulting from alleged oppressive garnishment.

Indiana, when the creditor, debtor, person, or corporation owing the money intended to be reached by the proceedings in attachment the courts of the state of Indiana, shall, upare each and all within the jurisdiction of on conviction thereof, be fined in any sum not less than twenty dollars nor more than fifty dollars." It is a substantial .copy of section 2163, R. S. 1881.

It is claimed that there is no cause of action here, because the violation of a criminal act is a public wrong only, and cannot result in the creation of a private, actionable, wrong.

In Kestler v. Kern, 2 Ind. App. 488, 28 N. E. 726, the facts alleged were similar to those here averred, and the same questions (aside from the constitutional one), relating to the sufficiency of the complaint, were there determined as are here presented. In a learned opinion by Crumpacker, J., the complaint was held sufficient. The following paragraph from Cooley on Torts was quoted with approval: "When the act or neglect

The complaint avers that plaintiff was indebted to defendant on account, for goods sold, in a certain amount; that plaintiff, defendant, and the American Sheet & Tin Plate Company, a corporation, were within the jurisdiction and subject to the process of the courts of Madison county; that the corporation was operating a manufacturing plant in West Virginia, but at the same time was operating one in Madison county, and had office and officers and agents there; that which constitutes a public wrong is specially plaintiff was a bona fide resident householder of Indiana, residing in the city of Elwood, and defendant was a bona fide resident of the same city; that plaintiff owned less than $300 worth of property, including wages due him from the corporation, and was unable to pay the debt owing to defendant, and had the right to claim such property as exempt from execution against defendant's claim; that plaintiff was a laborer in the employ of the corporation at Elwood, and the latter was indebted to him in a certain

and peculiarly injurious to an individual, and obstructs him in the enjoyment of some right which the law has undertaken to assure, the offender may be subject to a double liability; he may be punished by the state, and he may also be compelled to remunerate the individual."

In Kestler v. Kern, supra, it was contended, as here, that the doctrine declared in Uppinghouse v. Mundel, 103 Ind. 238, 2 N. E. 719, barred any right of action on a state of facts as there averred, but it averred, but it was held