Opinion
(December Term, 1851.)
1. In a forthcoming bond it is not necessary to insert the names of the parties at whose instance the executions levied on the property have issued.
2. The obligors in a forthcoming bond are not discharged because the return day of the executions levied is before the day on which, by the terms of the condition, the property was to be delivered, though no new executions were issued.
3. No form is prescribed by our act of Assembly for a forthcoming bond, and a condition that the property shall be forthcoming or be delivered at the time and place of sale is sufficient.
4. To enable a plaintiff to maintain an action on a forthcoming bond, it is not necessary for him to have paid the amount of the executions to the plaintiffs therein.
5. The omission to deliver to the surety in the forthcoming bond a descriptive list of the property levied on does not render the bond void. It is a privilege of the surety, and he may waive, or not require it, if he thinks proper.
APPEAL from Bailey, J., at Fall Term, 1851, of ANSON.
(231) Winston for plaintiff.
Strange for defendants.
DEBT on a forthcoming bond, and on oyer prayed and had, the defendants pleaded general issue, illegal consideration, and that the bond was not taken according to law, and therefore void. A copy of the bond, marked A, accompanies and forms a part of this case.
The defendant did not produce the negroes mentioned in the bond on the day mentioned in the bond, or afterwards, and plaintiff, who was constable, in support of the breaches alleged and in proof of damages, offered in evidence several judgments and executions obtained before a justice of the peace, levied on the slaves mentioned in the bond, none of which judgments and executions, except two, were particularly named in the bond; but it was insisted on the part of the plaintiff that the word "others" in the bond allowed him to introduce them. This was objected to by the defendants, but allowed by the court. It (229) was further objected by the defendants that none of these papers could be offered in evidence without further proof of their having been in plaintiff's hands at the time of the execution of the bond than plaintiff's own return upon each execution that he had levied upon the three negroes mentioned in the bond, and his possession of the papers at trial, except as to those mentioned by name in the bond, and that as to any others there must be other proof of their having been levied on the negroes besides plaintiff's own return. It was further objected that the return day of some of these executions was before 10 July, 1848, when, according to the terms of the bond, the negroes were to be delivered, and there was no evidence that the said executions had ever been returned or renewed, after 1 July. And it in fact appeared that some of these executions bore date on 1 April, and some of them on the 8th, and that they never were renewed or returned by the plaintiff or any other officer before any justice of the peace.
It was further objected on the part of the defendants that the condition of the bond was not conformable to the act of Assembly, and was therefore, according to the decision in Denson v. Sledge, 13 N.C. 136, void, and could not, therefore, be enforced. It was further objected that the plaintiff could not maintain an action of debt on this bond and recover, without proof that he had actually paid the money to the plaintiff in the executions, or been otherwise actually damaged before bringing his action. It was further objected that the plaintiff could not recover, as he had not proceeded according to act of Assembly, by furnishing a list to the securities under his hand and seal of the property levied on. But all these objections were overruled by the court. Defendant then offered to prove that the same negroes were levied on and sold by the sheriff of the county, under executions of a (230) teste anterior to plaintiff's levy, in mitigation of damages, which was objected to by the plaintiff and excluded by the court. A verdict and judgment having been rendered for the plaintiff, the defendant appealed.
(Copy of Bond A, referred to in the case.)
STATE OF NORTH CAROLINA — Anson County.
Know all men by these presents, that we, Thomas H. Threadgill and George Allen, all of the county of Anson, are held and firmly bound unto Dennis Grady, constable of our said county, in the sum of fifteen hundred dollars ($1,500) current money of this State, to the whole payment of which well and truly to be made and done, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 10 day of June, 1848.
The condition of the above obligation is such that, whereas the said Dennis Grady, constable, hath levied executions at the instance of John Smith and son, Wilkins Leak, Jacob Hubbard and others, on certain property, consisting of three negro slaves, named Moses, Watt, and Adeline, and which said property, at the request of said Thomas Threadgill, is left in his own care and possession until the same shall be sold: Now, if the said Thomas Threadgill shall well and truly deliver the said property hereinbefore mentioned to the said Dennis Grady, constable, at the court house in Wadesboro, on or before 10 day of July next, without damage or further hindrance, then this obligation to be void; otherwise, to remain in full force and virtue.
THOS. H. THREADGILL. [SEAL] G. ALLEN. [SEAL]
Signed, sealed and delivered in presence of
W. ALLEN.
As the bond was taken at the instance of the defendants, it would be a matter of regret if, by reason of any defect or technical objection, it should fail to answer the purpose of protecting the plaintiff. None of the many exceptions, however, are tenable.
1. We are satisfied that by a proper construction the word "others" was used in the sense of other persons, at whose instance executions were levied, and not in the sense that "Jacob Hubbard and others" are plaintiffs in a single execution, for to say nothing of the rule that words are to be taken most strongly against the obligors, as the words are used by them, this restricted sense would make only their judgments each within the jurisdiction of a single justice; and yet their negroes were levied on, and the penalty of the bond is $1,500, which would make an inconsistency on the face of the bond. But further, the statute does not require the executions to be particularly named and set forth in the bond; it is mere matter of recital, and, although the obligors may reasonably insist upon having the executions there set out, it is only as a precaution against the fraud of the officers, and because it will operate as a restriction of their liability; but, like a recital in a sheriff's deed, it is not of "the essence," and the omission to insert them does not impair the legal effect and validity of the instrument.
2. The return of the plaintiff was proper evidence as to the executions that were in his hands and had been levied by him at the date of the forthcoming bond. A constable, like a sheriff, is a sworn officer, and his return is prima facie evidence, and is taken to be true until disproved.
3. Personal property is vested by the levy in a constable or (232) sheriff for the purposes of the execution, and he has a right to go on and sell, after the return day, without any other writ. So the fact that the return day of several of the executions happened to be before the day on which, by the terms of the condition, the property was to be delivered, and it did not appear that new executions were taken out, could not have the effect of discharging the obligors, for the plaintiff had made himself liable to the creditors by his levy, and the property thereby vested in him, and gave him a right to require that the defendants should deliver his property to him and leave it forthcoming at the time agreed on.
4. The condition of the bond does conform to the act of Assembly. No "form" is given in the act, and our interpretation of it is that the condition should be for the forthcoming of the property at the time and place of sale. Mr. Strange says the words, "to answer the said executions," ought to have been added, so as to give the obligors the right to pay up the executions prior to the day of sale, and thereby save the condition of the bond. We apprehend a satisfaction of the executions would have precisely the same legal effect, whether these words are added or not; this conclusion is confirmed by the fact that they are not used in the act of 1844, and the condition, as expressed twice in that statute, is simply for the forthcoming of the property on the day of sale.
5. To enable the plaintiff to maintain this action it was not necessary for him to have paid the amount of the executions to the plaintiff therein. Officers would not be disposed to take forthcoming bonds if, upon default of the obligors, there was no right of action for damages until the amount of the execution had been satisfied by the obligors. (233) The taking of these bonds was not compulsory, and such a construction would make it unreasonable to expect any officer ever to take one, and the policy of the statute, which was to induce officers to take them for the convenience of debtors, would have been completely frustrated.
In pursuance of this policy, in 1822, an act amending the act of 1807 was passed, which provided a summary remedy on these bonds at the next term of the county court, on motion, for all such damages as the officer had sustained, or be "judged liable to sustain." This remedy is cumulative, and no reason can be conjectured why the officer may not recover in an action of debt upon the same proof that will enable him to recover on motion.
6. The act of 1844 makes it the duty of the officer to furnish the security with a list of the property levied on. This does not seem to be made, or intended to be, a condition precedent to the execution of the bond, so that the omission to do it would not make the bond void and of no effect. We have given to the statute much consideration, and have come to the conclusion that the meaning is simply to confer upon the security the right to require the officer to give him such a list, "duly attested under his hand and seal," with the intent that the property should thereby be deemed in the custody of the security, as the bailee of the officer, so as to enable him to prevent other officers from levying on it and taking it away. This right the security may, of course, waive; and if he does not see proper to require such a list to be furnished to him, he cannot afterwards take advantage of his own folly as a ground on which to avoid his deed. Our conclusion in regard to the construction of this statute is fortified by considering the mischief which (234) it was the object of the statute to remedy. It had been decided that when the property was left in the possession of the debtor, another officer might make a levy and take it away, whereby the security on the forthcoming bond was unable to deliver the property and was fixed with the damages. Of course, it became difficult to procure securities upon a forthcoming bond, and, therefore, the Legislature, carrying out the same benevolent policy of the act of 1822, inducing officers to take such bonds for the purpose of inducing others to become security, provided that the security should have a right to require the officer to give him a list of the property under his hand and seal, which would protect it against other officers, except that they might put their levies "on the backs" of the former levies.
7. The fact that the negroes were afterwards levied on and sold by the sheriff under executions of a teste anterior to the plaintiff's levy has no tendency to mitigate the damages. "The teste anterior to the plaintiff's levy" did not relieve him from liability to the creditors in whose favor he held the executions which he had levied upon the negroes, and under which he had the right and it was his duty to hold them, even against the sheriff, with executions of prior teste.
This is his ground of complaint: "At your request, I did not take the negroes into my possession and keep them, as I had a right, and as in duty to the creditors, whose executions I had levied, I was bound to do. If I had done so, the sheriff had no power to touch them; they are not forthcoming, according to the condition of your bond, upon whom shall the loss lie?"
PER CURIAM. No error.
(235)