Opinion
10-11-1816
Garland v. Bugg
Wickham for the plaintiff in error, Wirt contra.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
After the affirmance by the Court of Appeals of the judgment obtained by Bugg against Garland, in Detinue for a female slave, (which case is reported in 1 Hen. & M. 374-377,) a writ of distringas issued on the said judgment, August 5th, 1807, and was returned, September 11th, 1807, " executed on the lot and houses in which the said Garland lived."
September 23d, 1808, an order was made by the District Court, on the motion of Bugg, directing the distringas issued " from the office of the said Court, to be superseded, so far as it related to the specific property, and to be executed as to the alternative value."
See Rev. Code, 1st vol. ch. 151, sect. 48, p. 305.
May 10th, 1809, on his farther motion, an order was made by the Superior Court of Albemarle County, (to which the record stood removed under the act of Assembly,) reciting, " that the plaintiff could not have delivery of the slave," and directing that a ca. sa. or fi. fa. might issue on the said judgment. Whereupon, a writ of fieri facias was sued out of the Court last mentioned, and executed on the negro woman aforesaid, and two other slaves, who were sold for the sum of one hundred and eighty-five pounds, one shilling; and Garland, becoming the purchaser, on credit, by virtue of the act of Assembly concerning executions, passed January 31st, 1809, gave bond and security for the money.
See Acts of 1808, ch. 5, sect. 14, p. 8.
At October Term, 1809, a motion was made by Garland to the said Superior Court to quash the writ of fieri facias, and to set aside the several orders aforesaid. It appeared to the Court, that, from the date of the judgment until the sale under the fi. fa., the negro woman had remained in the possession of the defendant; with this exception, that before the date of the order superseding the Distringas, as to the specific thing, and after the issuing and levying that Distringas, the plaintiff, Bugg, found her at a distance from the defendant's house, took possession of her peaceably, and delivered her to a certain John Penn, Jr. (to whom he had sold her provided possession of her could be peaceably had; ) declaring, at the time, that he delivered her in pursuance of his contract; that Penn remained in possession about half an hour, in the town of New-Glasgow, (where the defendant lived,) and was about removing the slave, when he was met by the defendant, who demanded her, and finally compelled him to relinquish his possession; that Bugg was not present when she was thus retaken; that, for this act, the defendant commenced actions of trespass against Bugg and Penn, in the Superior Court of Amherst; contending that, as Bugg had resorted to his distringas, he was not warranted in taking said slave; in which suits he was cast; Bugg and Penn producing, in their defence, a bill of sale from Garland to Bugg, (who contended that he had also obtained a judgment for the same slave; ) and it appearing that they had used no force. In support of his motion, Garland urged, that it did not appear from the record that any notice was given to him of the motions, on which the foregoing orders were made.
This being all the evidence offered by either party, the Court overruled the motion; whereupon Garland filed a bill of exceptions. He afterwards obtained a writ of supersedeas from a judge of this Court, to stay all proceedings on the original judgment, and on the several orders aforesaid.
Judgment and Orders affirmed.
Wickham for the plaintiff in error, relied on the following points: 1st, That the order of the 23d of September 1808, was erroneous: being made ex parte, without notice; and no good cause for the same being stated on the record. Wherever a motion is made on facts to be proved by evidence aliunde, the opposite party ought to be summoned to give him an opportunity of controverting those facts.
2d. Admitting the said order to be in other respects proper, the Court had no right to make it after the distringas had been executed.
3d. The order of the 10th of May, 1809, was improper; the writ of distringas having been superceded only as to its object, and being in full force in point of execution; so that the appellant was made subject at the same time to the operation of a distringas on his lands, and a fi. fa. against his goods for one and the same debt; and this order was also erroneous in being ex parte, and without notice.
4th. Under any circumstances, the awarding a fi. fa. for the alternative value after a distringas had been executed, was illegal.
This point is important because, in consequence of an oversight in this Court the judgment was affirmed, although the jury had fixed the value of the slave at a higher sum than that stated in the declaration. At any rate the distringas should have been set aside. A dictum in 3 Bl. Com. 413, may be relied upon by the counsel, on the other side; but it must be understood that the fi. fa. is to be allowed only as a substitute for the distringas, not as a cumulative remedy. It may be contended that the order awarding the fi. fa. virtually set aside the distringas. But how can it be so understood? No direction is given that the sheriff should stay his hand.
Note. In this position, Mr. Wirkham appears to have been mistaken; for, in the case of Bigger's adm'r. v. Alderson, 1 Hen. & M. 54, it was decided that, " in Detinue, the jury may exceed the prices of the slaves laid in the declaration." --Note in Original Edition.
5th. Credit ought to have been given for the issues received by the sheriff; for he must have received some, as he took possession of an house. It is not to be inferred from the silence of the return on the execution, that there were no issues. In 8 Viner 39, pl. 6, it is laid down that there may be a fi. fa., where no issues are received on the distringas.
Wirt contra. The objection to the order for want of notice has been made and disposed of in this Court on sundry occasions. The controversy is pending until consummated by execution, and the parties are in Court as to all motions and orders touching the execution itself. That no notice is necessary, was expressly considered and determined in the case of the Commonwealth v. Hewitt.
The Commonwealth v. Hewitt, 2 Hen. & M. 181-188; Hendrick v. Dundas, 2 Wash. (VA) 50.
The objection taken to the same order, that it is not stated for what cause the writ of distringas was superseded, & c., is equally untenable: for Courts have a right to watch over the execution of their judgments, and to give them effect, without assigning on the record the reasons of their orders; and they will be presumed to have done right, until the contrary appears.
Mr. Wickham's objection to the order of May 10th, 1809, that a fi. fa. was thereby awarded, while the distringas was in full force, is incorrect in point of fact. The distringas in this case had been executed merely as a distringas to compel the production of the specific thing, and was returned executed on the 11th of September, 1807. The return day of the writ had passed: the return had been made: the writ was out of the sheriff's hands: it was functus officio; and there was no possibility of its being re-levied, without a trespass by the officer. It is true it was still operating on the property of the defendant; but that operation was removed by the order of the 23d of September, 1808; by which, and by its return-day having passed, it was annihilated. That it had been executed as a distringas merely to force the delivery of the slaves, is apparent from the language of the writ itself. When the last mentioned order came to act upon the distringas, it was not to change the purpose or effect of its past execution: that order professes no such thing; nor is any such power given to the Court by the act of Assembly: the language of both is future; the words used being " to be executed as to the alternative value."
Note. The distringas issued in this case was to compel the production of the negro woman " of the price of $ 750, if she may be had, or the price aforesaid, if she may not be had." And such appears to be the usual form of the writ of distringas: but it seems that the sheriff is not authorized to determine that the slaves cannot be had, and thereupon to receive the alternative value. --Note in Original Edition.
The order of September 23d, 1808, had not itself the effect of an execution: it merely authorized the levying an execution for a particular object. At the time of making the order, there was no execution out, on which it could operate. Its effect, therefore, was to remove the operation of the former, and to authorize the plaintiff to take out a new distringas, with the new object of the alternative value. But, until he should do so, this order of permission was a dead letter, not binding in any way the real property of the defendant. It does not appear that the plaintiff ever availed himself of this permission; and the Court will not presume it for the purpose of vitiating the order of May 10th, 1809. On the contrary, that order will be presumed to have been correct, until the contrary appears. When, therefore, the Court was moved for the writ of fi. fa. in May, 1809, it is not correct in point of fact that there was another execution of a different character in full operation. There was at that time no execution out: the cause in the mean time had been carried up to the Court of Appeals after the return of the distringas; and it was on its return to the Court below, that the order of May, 1809, was made; as appears by that order itself.
The question is, whether, under these circumstances, the court erred in directing that the plaintiff might have either a ca. sa. or fi. fa., at option.
That order, I insist, was right both at common law and by statute.
1. At common law.
The plaintiff is entitled to satisfaction of his judgment. True it is, he can have but one execution; but that must be an execution with satisfaction. Hence, if the defendant be taken on a ca. sa., it is held that this is no satisfaction, but a security merely; and if he die in prison, the plaintiff may have a fi. fa. against his goods, or an elegit against his lands. The plaintiff may change his execution as often as he pleases, unless in the case of a valuable execution, on which there has not only been a seizure, but a satisfaction. But a distringas is not a valuable execution: it is a mere measure of constraint: the party is considered in contempt of the Court; and the rents, issues and profits go to the King, or to the Commonwealth; not to the plaintiff.
Blumfield's case, 5 Co. Rep. 486, recognized in Taylor v. Dundas, 1 Wash. (VA) 95.
Dykes v. Mercer, cited in 2d Ld. Raym. 1072; Hayling v. Mullhall, 2 Bl. Rep. 1235; 1 Lilly's Abr. 565; Hobart 57; 4 Com. Dig. 138; and 2 Mallory's Ent. 426.
6 Com. Dig. 100-101-Title Process, D. 7, Gilbert's Law of Executions, 27, 28, 30, 31.
2. It is only in consequence of the statute 10 Geo. 3, ch. 5, that the issues on the distringas are sold and applied to the plaintiff's demand; a statute not in force in this country, and to which we have nothing analogous.
1 Sel. Pract. 230-1.
If the distringas be not a valuable execution, there is no objection to its going at the same time with a valuable one. Like a ca. sa., it is a measure of constraint; --a security merely; and a ca. sa. and fi. fa. may issue together; but both cannot be executed: --if one be executed, the Court will quash the other on motion. So, a distringas and writ of inquiry, or capias for damages, may be issued together.
4 Com. Dig. 138.
Coke's Entries. Detinue, pl. 1, p. 169, b.; Yelverton's Rep. 71, accord't.; --Rastall, 212-213.
The doctrine laid down in 3 Bl. Com. 413, seems written directly to fit this case. Mr. Wickham says it is a mere dictum; but Keilw. 64, the authority there referred to, fully supports the position of Blackstone; as also does 2 Mallory 426; and 8 Viner 40, pl. 15. But there can be no difficulty arising from the distringas and fi. fa. being both in operation at the same time; for a party, by suing out a second execution before the property taken on the first is sold, abandons the lien given to him by the first.
Echols v. Graham, 1 Call. 492.
OPINION
The President pronounced the Court's opinion.
Friday, October 11th 1816, the President pronounced the Court's opinion, that there was no error in the said Judgment and Orders; all of which were therefore affirmed, with costs and damages for retarding the execution thereof.