I am -unable to concur in this judgment. I cannot resist the impression that the true question involved is somewhat overlooked in the opinion of the. court. The opinion turns almost entirely upon the validity of the assignee's bond, rather than upon the validity of the assignment upon which the rights of the parties rest.
The opinion of the court holds, and I have no doubt correctly, that the statute makes the county judge or court com*607missioner the proper obligee of the bond. It proceeds, however, to hold the bond executed to the clerk sufficient to support the assignment; but whether as a statutory or as a common-law obligation, I am unable to gather with any certainty from the opinion.
If the assignee’s title had not been questioned, and he had disposed of the property assigned, he would doubtless be liable to the creditors for whose benefit the trust was created. Geisse v. Beall, 3 Wis., 367. And it may be that the bond given by the assignee might, in that case, be held a valid obligation at the common-law, though I entertain great doubt of it. For the obligee of the bond, in his official capacity, would be a stranger to the subject matter, without interest or duty in the premises. And upon his death, any title he could take in the bond might go to his personal representatives, as held in Hibbitts v. Canada, 10 Yerger, 466.
I have carefully consideréd what is said by Dixon, C. J., in Lewis v. Stout, 22 Wis., 234, on the doctrine that defective statutory bonds may be good as common-law obligations; and have examined all the authorities which he cites. I always feel great deference for all that so great a jurist has said, upon full consideration, of points an which his judgments turn. But in Lewis v. Stout he had already upheld the bond as the proper statutory bond; what he added in reference to defective statutory bonds was purely obiter/ and, as obiter dicta so often are, perhaps not considered with the care and research which it was his habit to give to controlling questions.
It has undoubtedly been often held that a defective statutory bond may be enforced against the obligors, as a common-law obligation, for acts done under it, in favor of parties who would have been protected by the proper statutory bond; though the contrary has also been held, as in Justices v. Shannonhouse, 2 Devereux, L. R., 6. But I know of no case, I should — on principle ■ — ■ be reluctant to follow any, holding a defective statutory bond sufficient, as a common-law obligation, to fulfill a statutory condition precedent to a statutory right. In the former case, defective statutory bonds are *608upheld as obligations at the common law, ex postfacto, to protect rights accrued in p>ast transactions, which should have been protected by proper statutory bonds. In the latter case, courts cannot assume to support defective statutory bonds, in ;-principio, as obligations at the common law, to fulfill the office of the proper statutory bonds as the foundation of future proceedings. The-former is not inconsistent with the statute, but in aid of it. The latter would defeat the statute. And the question here is not the liability of the assignee under his bond, as a common-law obligation, for his doings under the assignment, had the assignor’s creditors submitted to it; but whether the bond is a sufficient statutory bond to vest title in the assignee, as against creditors, under the assignment. The bond is, so to speak, jurisdictional. The assignee takes no title, as against creditors, by the assignment, except upon execution of the statutory bond. Neither he nor the court can fulfill the statutory condition precedent by a common-law obligation. And the validity of the bond given, as a common-law obligation, appears to me to be foreign to the question.
The late learned chief justice remarks in Lewis v. Stout, that “ a bond taken under a statute is not void because it does not conform to the statute, tinless the statute so declares.” And a similar remark is made in the opinion of the court in this case: “The statute does not provide that the bond here required shall be void for any departure from the statute, which is not material; and this omission so to pi’ovide is proper to be considered in passing upon its validity.”
I entertain grave doubt of the accuracy of the late chief justice’s remark, as broadly as it is made. Conceding it, however, it is true that the statute hero does not expressly declare a bond, purporting to be given under it, void for any cause. But it does expressly declare that any voluntary assignment for the benefit of creditors shall be void as against creditors, unless the assignee shall execute the bond required by the statute. That may or may not make a bond, different from the statutory bond, void as a common-law obligation; but it certainly makes void, as against creditors, any assign *609ment where the assignee does not execute the bond prescribed by the statute. Failing the statutory bond, the creditors of the assignor in this case had an absolute statutory right to treat the assignment as void, and to deal with the property assigned as the property of their debtor.
The opinion of the court concedes that the bond in this case does not comply with the statute; but rests the judgment in part upon the position that it is not materially different, for the protection of creditors, from the statutory bond. The difficulty is, that it is not even a defective statutory bond, but a bond essentially different from the statutory bond; not the like thing with a difference, but an essentially different thing. It does not purport to comply with the statute. The question is not one of detail, material or immaterial. It goes to the whole instrument. It is not executed to the statutory obligee, but to a different officer. Certainly the obligee of a bond goes to the essence of the bond itself, and cannot be immaterial, in a legal sense, even when the obligee is an officer without interest or duty. Two bonds, in the same penalty, with the same condition, to different obligees, are essentially different contracts. -One obligee may enforce the bond, because of his interest in the subject matter, his right to the performance of the condition. The other may fail to enforce the bond, for want of interest in the subject matter, want of right to the performance of. the condition. Here one officer has statutory right to take the bond; the other, the actual .obligee, has no statutory right to take it. As a statutory bond, it is nudum pactum. So here is not a partial, but a total, failure to comply with the statute; not a failure in intent to follow the statute, but a voluntary departure from .the statute; a voluntary substitution of another obligee for the statutory obligee; a total failure of the statutory bond.
It may be true that the statute might as well or better have required the bond to be executed to the clerk. The trouble is, that the statute requires the bond to be executed to another officer, and thereby, in contemplation of law, prohibits its execution to the clerk. Ita lex scripta est. The court has no *610authority to sustain the assignment without the statutory bond, because it may consider that the bond given out of the statute might he as good for the purpose as the bond prescribed m the statute; or to sanction a bond which has no sanction in the statute. It is neither for parties nor courts to adopt substitutes for statutory proceedings. The legislature has declared that the bond must run to the county judge or court commissioner — to no other officer or person, in order to sustain the assignment as against creditors. And I submit, with great deference, that the court was outside of the judicial function in holding the bond to the clerk sufficient.
It is a dangerous precedent to sustain so plain a departure from a statutory obligation. It appears to me that, within the rule adopted in this case, the assignee might as well have elected, at his own pleasure, in disregard of the statute, to have executed his bond to the circuit judge or to any other public officer, as to the clerk; perhaps even to a private person. And this judgment may be taken to sanction other statutory bonds voluntarily executed to wrong obligees, other voluntary departures from the prescribed form of statutory proceedings.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
A motion by the respondent for a rehearing was denied.