Opinion
03-15-1808
Lewis v. Thompson, Scott, and Haskins
Call for the appellant. M'Rae, for the appellees
[Syllabus Material]
This was an appeal from a judgment of the District Court of Prince Edward, overruling a motion made by the appellant for a judgment and award of execution on a forthcoming bond, executed by the appellees.
Lewis sued out of the said Court, a writ of fieri facias against the goods and chattels of Thompson & Scott, which was levied on five negroes, whose names are indorsed on the execution inserted in the record: a forthcoming bond was taken, which was " forfeited," as appeared by the sheriff's return, both on the execution and the bond itself.
The penalty of the bond was in the usual form, with the following condition: " The condition of the above obligation is such, that whereas John Lewis hath sued out of the District Court of Prince Edward a writ of fieri facias against the estate of the above bound William Thompson and John B. Scott for the sum of 329l. 11s. 10 3-4d. including interest, costs and sheriff's commissions, which writ hath been duly executed by Nathaniel Carter, deputy, for Walter Bennett, sheriff of the County of Halifax, on the following property, to wit, five negroes [naming them]; and the said William Thompson and John B. Scott being desirous of keeping the aforesaid property in their possession until the day of sale of the same, hath tendered the above bound John Haskins, as security for the forthcoming and delivery of the said property at the place and on the day of sale agreeable to law. Now if the said William Thompson, John B. Scott, and John Haskins, or either of them, do and shall deliver the aforesaid property to the said Walter Bennett, sheriff as aforesaid, at John M. Clay's tavern, in the said County of Halifax, on the fifth day of November next, then and there to be disposed of according to law for the discharge of the said writ of fieri facias, then," & c. concluding in the common form, and signed and sealed by the obligors.
Notice having been duly proved, Lewis moved the Court for judgment on the foregoing bond, which motion being overruled, he took an appeal to this Court.
Call for the appellant. The District Court gave a general judgment overruling a motion on a forthcoming bond, without stating, as ought always to be done, the grounds of their decision. The objection is said to be, that in the condition of the bond, it is not stated on whose property the execution was levied. If such recital be necessary, it sufficiently appears, in the present case.
The condition recites the execution against Thompson and Scott; which writ had been duly executed on certain property, without saying whose; and that Thompson and Scott were desirous of keeping the property in their possession till the day of sale. It could not be duly executed, if not levied on their property. This proceeding is entirely for the benefit of the defendant: he ought to give bond conformably to law; and according to the liberality of the Courts, a mere implication is sufficient.
In Hubbard v. Taylor, it was decided to be necessary that the bond should state whose property was taken: but that case was never argued on either side, and probably passed sub silentio. It is contrary to the spirit of all the latter decisions. In that case also, it was not recited against whom the execution issued, which is otherwise in this.
1 Wash. (VA) 259.
The above quotation is accurately made from the record, by which it also appears that there was no counsel for the appellee. --Note in Original Edition.
M'Rae, for the appellees, relied on the case of Hubbard v. Taylor, as conclusive. In the present case, it neither appears by the execution with the sheriff's return indorsed, (which he presumed was to be considered as part of the record,) nor by the forthcoming bond itself, that the execution was levied on the property of Thompson and Scott, or either of them. This is expressly required by law.
In Hubbard v. Taylor, two points were decided: 1st. That it must appear against whom the execution issued; and, 2dly. On whose property it was executed. The second point directly applies to the case now before the Court; nor could any decision be found in opposition to it.
Call in reply, insisted that the execution was properly described. After reciting the service, it proceeds to state that Thompson and Scott were desirous of keeping the property in their possession till the day of sale. This implies that they were the owners.
The case of Hubbard v. Taylor, he conceived, was not conclusive against him. Even if it appeared so by the report, it was not by the record of the decision. The record states that the bond was " defective in not reciting against whom the execution issued, or to whom the property belonged." This plainly shews, that either would have been sufficient. The record also proves, that no counsel appeared for the appellee. 1
M'Rae. The execution law not only requires that the forthcoming bond shall recite the service of the execution, but that the sheriff shall return on whose property it was levied.
See Rev. Code, vol. 1, ch. 151, sect. 13, p. 298, and sect. 1, p. 295, 296.
Call. The law respecting the returns of sheriffs on executions, makes no difference as to the forthcoming bond. Why should the Court hunt for possibilities, that the execution might have been levied on the property of some person other than the defendant, when no such person complains; and when this would be done to defeat the justice of the case.
[The record containing the forthcoming bond itself, in the case of Hubbard v. Taylor, was sent for at the instance of Judge Roane; and on inspection, it appeared that the service of the execution was not recited in any part of it. After the penalty which is in the usual form, and bears date the 23d of May, 1792, the condition proceeds: " The condition of the above obligation is such, that if the above bound William Hubbard and Mordecai Tompkies shall deliver to Samuel White, sheriff of the County aforesaid," & c. (as recited in 1 Wash. (VA) 259.)]
Judge Tucker. Judges Roane and Fleming.
OPINION
Friday, March 18. The Judges delivered their opinions.
JUDGE TUCKER.
The appellant moved for a judgment on a forthcoming bond taken for the delivery of certain slaves taken on an execution issued by him against Thompson and Scott. An objection was taken to the bond as defective, in not stating to whom they belonged; and the District Court being of opinion that the bond was defective in that respect, overruled his motion; whereupon he appealed. Mr. M'Rae, for the appellees, relied on the case of Hubbard v. Taylor, as shewing this to be error; the judgment in that case (as appears from the record) being that the bond was defective, in not reciting against whom the execution issued, or to whom the property belonged.
1 Wash. (VA) 259.
The act concerning executions provides, that if the owner of goods taken in execution shall give sufficient security to the sheriff to have the same goods forthcoming at the day of sale, it shall be lawful for the sheriff to take a bond from such debtor and securities, payable to the creditor, reciting the service of such execution, and the amount thereof, and with condition to have the goods forthcoming at the day of sale, and shall thereupon suffer the goods to remain in the possession of the debtor, & c. The service of the execution must be recited in the bond, which ought to shew the names of the parties, and the amount of the execution; and that the goods were permitted to remain in the possession of the owner, or debtor. This was not done in the case of Hubbard v. Taylor; but in the case before us the execution is sufficiently recited and the service thereof upon the slaves by name: it then proceeds to state that the defendants were desirous to keep them in their possession until the day of sale; which, to my apprehension, is sufficient to shew they were the owners of them. I therefore think the judgment should be reversed, & c.
L. V. 1794, c. 151, sect. 13.
JUDGES ROANE and FLEMING being also of opinion that the judgment of the District Court should be reversed, the following was entered as the opinion of the Court:
" That the bond in the proceedings mentioned is neither informal nor defective, but a good and legal bond; and that the judgment of the District Court is erroneous. Therefore it is considered that the same be reversed and annulled, and that the appellant recover against the appellees his costs by him expended, in the prosecution of his appeal aforesaid here. Whereupon the Court would have proceeded to give judgment for the appellant on the said bond as the District Court should have done, if the appellees had none other objection thereto than the one stated; but as it is possible that the appellees may have made payments, or had other objections which were not brought forth because of the opinion of the District Court in their favour, the cause is remanded to the said District Court for that Court to proceed to judgment on the said bond, when the appellees are to be at liberty to oppose the same by proof of payment, or by other legal objections than that of the legality or formality of the said bond."