Opinion
11-02-1867
WALKER & als. v. THE COMMONWEALTH.
Page & Maury, and C. E. Dabney, for the appellants. Robt. Johnston, for the Commonwealth.
1. The levy of an execution of fi. fa. does not divest the defendant in the execution of the property, and transfer the title to the plaintiff or the sheriff. Only a special interest is vested in the sheriff as a mere bailee, to enable him to keep the property safely, and defend it against wrongdoers. It is in the custody of the law, and the sheriff has a naked power to sell it and pass the title of the owner to the purchaser.
2. A plaintiff may always, with the consent of all the defendants, abandon a levy upon the property of all or any of them, and afterwards sue out a new execution.
3. If the defendants in an execution be a principal and his sureties, and the property levied on be that of the sureties, the plaintiff may, with the consent of the sureties only, abandon the levy, and afterwards sue out executions against all the defendants.
4. If the levy be abandoned by the sheriff, with the consent of the defendants, without the concurrence or authority of the plaintiff; or if the property is eloigned or removed by the defendant out of the reach of the sheriff, without the consent of the sheriff or the plaintiff, the latter may sue out a new execution.
5. But if the property levied on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied, to the extent of the value of the property; and the plaintiff can then only look to the sheriff for indemnity.
6. A mere suspension of proceedings on a levied execution does not authorize a restoration of the property to the possession of the defendant, or release the levy. And if, by a misunderstanding of the directions of the plaintiff by the sheriff and the defendants, the property is released by the sheriff to them, the plaintiff may have a new execution.
7. In a proceeding at law against several parties, judgments against one or more are entered at one time, and against others at another time, one execution may be issued against all.
8. Upon a motion to quash a second execution in vacation, the judge may, in vacation, allow the sheriff to amend his return on the first execution.
These were motions in vacation before the Judge of the Circuit Court of the city of Richmond to quash three alias writs of fieri facias which issued from the clerk's office of that court in favor of the Commonwealth of Virginia; two of them against C. W. Watkins, sergeant of the town of Danville, and James M. Walker, W. W. Keen and Edward D. Withers, as his sureties, and the other against the said Watkins and William P. Graves, W. W. Keen and J. J. Hankins, as his sureties. The motions were, by consent, heard together as one motion.
It appears that, on the 16th of December, 1866, the Commonwealth recovered two judgments against Walker, Keen and Withers, as the sureties of Watkins, sergeant of the town of Danville--the first for $1,388.47, the balance of the land, property and capitation taxes of 1865, and September license taxes of the same year, with interest thereon at the rate of twelve per cent. per annum from the 25th of March, 1866, till payment, and $208.27 for damages thereon according to law, and the costs of the motion; the second for $5,817.99, the May license taxes of 1866, with like interest from the 30th of May, 1866, till paid, and $872.70 damages, and the costs of the motion. And on the 18th of December judgments for the same amounts and causes were recovered against Watkins, the principal. And one execution was issued upon each set of the judgments against Watkins and the sureties. These executions were placed in the hands of C. L. Powell, sheriff of Pittsylvania county, and he endorsed the same return on both of them, as follows: Property levied upon the 14th day of January, 1867, consisting of thirty thousand pounds of leaf tobacco belonging to W. W. Keen, a large lot of groceries, consisting of bacon, whiskey, sugar and coffee, the property of James M. Walker, and about seven thousand pounds of leaf tobacco, the property of E. D. Withers. And on the 16th January, 1867, I received orders from the Auditor of Public Accounts of Virginia to stay proceedings for sixty days. A short time thereafter an act was passed by the General Assembly of Virginia, giving the defendants until the 1st of August, 1867, to make payment, and the property thereby taken out of my hands.
On the 14th of January, 1867, the third judgment was recovered against Watkins, Graves, Keen and Hankins for the sum of $1,288.61, for three-fourths of the land, property, and capitation taxes of 1866, with interest thereon at twelve per cent. per annum from the 20th day of December, 1866, till payment, and $193.29 for damages, and the costs of the motion. On the 19th of January, 1867, a fieri facias was issued on this judgment, which went into the hands of the sheriff of Pittsylvania county on the same day; on which he returned: Property levied upon February 14th, 1867, and proceedings stayed by special act of the Legislature of Virginia, dated 22d February, 1867. See page 664, Sess. Acts 1866-67.
On each of these judgments, it appears that another execution issued from the clerk's office on the 29th of July, 1867; and these are the executions which the plaintiffs in this motion sought to quash.
Whilst the motions were pending before the judge in vacation, and before the evidence in support of the motions had been concluded, C. Powell, the sheriff in whose hands the original as well as the said alias writs of fieri facias had been successively placed, moved the judge for leave to amend his returns upon the original writs of fieri facias; the said writs and original returns thereon being set forth in the transcripts of the records offered in evidence by the plaintiffs. To this motion the plaintiffs objected; but the court overruled the objection, and permitted the sheriff to amend his return. The amended return on the first two executions is as follows:
Levied 14th January, 1867, on thirty thousand pounds of leaf tobacco, the property of W. W. Keen; on a lot of groceries, consisting of bacon, whiskey, sugar and coffee, the property of James M. Walker; and on about seven thousand pounds of leaf tobacco, the property of E. D. Withers. The property so levied upon of each of the defendants aforesaid, was sufficient to satisfy the share of each defendant. On the 16th of January, 1867, I received from Thos. R. Bowden, Attorney General of the commonwealth of Virginia, orders not to serve this execution, but to hold it for further orders. On the same day, namely, January 16th, 1867, I received orders from Wm. F. Taylor, Auditor of State of Virginia, to stay proceedings for sixty days. On the 22d of February, 1867, an act was passed by the General Assembly of Virginia, relieving defendants from payment of damages on condition that payment of debt and costs were paid by 1st of August, 1867. In consequence of the foregoing facts, I refrained from any further action in the premises.
The amended return on the third execution was: Levied 14th February, 1867, upon seven tobacco screws and all the household furniture of James J. Hankins; and on three head of horses and one wagon, and all the household furniture, consisting of beds, & c., the property of Wm. P. Graves; and on ten thousand pounds of leaf tobacco, the property of W. W. Keen. On the 16th of February, 1867, I received from Wm. F. Taylor, the auditor of the State of Virginia, orders to stay proceedings for sixty days; and on the 22d of February, 1867, the act was passed, & c., as in the returns on the other executions.
There were several disputed questions of fact, which, though much discussed by counsel, were not considered by the court, and therefore, it is unnecessary to state the evidence bearing upon them. The only question of the kind considered by the court is, whether the sureties consented to the discharge of the property by the sheriff from the executions. On this question there could be no doubt as to Walker and Keen, the sureties in the first two executions, and of all the sureties in the second execution. All these parties were united in making the application for relief. Keen, with the concurrence of Walker, telegraphed to his brother, who was a member of the Senate; and Hankins, with the concurrence of his co-sureties, went himself to Richmond to endeavor to obtain relief for them. Watkins, the principal, was not consulted, and had no part in the application; he being insolvent, and having left Danville. The only question about which there could be any doubt is, whether Withers assented to the discharge of the property. On that question the evidence is stated by Judge Moncure in his opinion, and need not be repeated here.
The judge refused to quash the executions; and the plaintiffs excepted. This bill sets out all the facts proved, and is an exception to the permission to the sheriff to amend his return, as well as to the judgment of the court upon the merits: and upon their application, a writ of error was allowed.
Page & Maury, and C. E. Dabney, for the appellants.
1st. The motion to quash these executions was made, and heard by the judge, in vacation, under the authority of the act, Code of 1860, ch. 187, § 23, p. 776. But there is no act authorizing the court to hear and act on a motion, in vacation, by the sheriff to be permitted to amend his return; and as the executions and returns thereon, are among the records of the court in the clerk's office, and can not be taken from thence, the judge in vacation can not have them before him, so as to act upon them.
2d. But the great question in this case is, are the judgments discharged by the release of the property by the sheriff under the circumstances. That there was a valid levy upon property, much more than enough to satisfy the executions, cannot be questioned successfully. Bullitt's ex'ors v. Winstons, 1 Munf. 269; Roth v. Wells, 29 New York R. 471. And if there was a valid levy in each of the cases, we insist that it could not have been released by the sheriff. He is a mere ministerial officer, and derives his authority from the writ, which is his warrant of attorney, and without which he is wholly unauthorized to act. The writ prescribes his duties, and confers a special, not a general, authority. Hence at common law the sheriff had no authority to receive money from a debtor charged in execution under a ca. sa.; for his business is only to execute the writ. Tidd's Prac. 1029. So if a sheriff levies under a fi. fa. and pays the plaintiff with his own money, yet he cannot keep the goods to his own use; for the authority by which he acted was to sell the goods. And so the sheriff cannot deliver the goods seized under a fi. fa. to the plaintiff in satisfaction; for the authority is to sell.
So soon as the levy of a fi. fa. is consummate, the goods are in custodiam legis. The plaintiff's right to satisfaction out of the property levied on, cannot be defeated by the act of the sheriff. It was otherwise when the debtor was charged in execution under a ca. sa. There the least indulgence would sometimes put a prisoner out of the sheriff's power, even though he should voluntarily return, and go into prison. But this exception grows out of the peculiar nature of the ca. sa.; and the reason of it was to deter the sheriff from alleviating the duress of debtors, and thereby defeating the object of the process; which was to compel satisfaction by holding the debtor's body in close custody.
After a levy on property sufficient to satisfy the execution, there can be no other execution upon that judgment, except by agreement of the parties. The property levied on is at the peril of the sheriff, and nothing will excuse him from properly applying it, but the act of God or the king's enemies. He may constitute the debtor his bailee, or he may leave his bailiff in charge of the goods; but this is altogether at the sheriff's risk; and if the levy comes to nought, whether from the act of the debtor or not, the sheriff makes the debt his own: he becomes instantly debtor ex delicto; and there can be no new execution. In fact, there is no need for a new writ; for the sheriff can pursue the property wherever it may be; and if necessary, he may sue the defendant for it. If, therefore, the defendant is solvent, the sheriff will pay the money and go against him: if he is insolvent, then an alias writ would be worthless. In Ladd v. Blunt, 4 Mass. R. 402, Parsons, Ch. J. said: " When goods sufficient to satisfy the judgment are seized on fieri facias, the debtor is discharged, even if the sheriff wastes the goods or misapplies the money arising from the sale, or does not return the execution."
It is the spirit and policy of the law that the sheriff should execute writs of execution with dispatch, and have as little temptation as possible to grant indulgence to debtors. If it should be said that the sheriff and his sureties may be worthless, it is answered that the law tolerates no such presumption. Sir Bartholomew Shower said arguendo, in Buxton v. Horne, 1 Show. R. 174, " as to the sheriff's being a poor man, that is never to be presumed, for the law has provided otherwise."
The law manifests wisdom in thus putting the creditor at the end of his suit, and compelling him to pursue the sheriff. In some cases it may work hardship; but whilst it seems hard to confine the plaintiff's redress to a proceeding against the sheriff, the real effect of the rule is to make the necessity of going against the sheriff much less frequent than it would otherwise be, because the law makes it so very hazardous for the sheriff to grant indulgence to a debtor, and makes it so plainly his duty to go right on and make the money: for the office of the execution is to make the money at once; and to thwart that object is to run counter to public policy. Therefore, whilst it is not essential to a valid levy of an execution, that the sheriff shall take property out of the debtor's possession, yet the law does not commend any such practice. The law has provided only one way of indulging an execution debtor; and that is upon his giving a forthcoming bond.
For the creditor's safety and protection, the law has armed the sheriff with a power commensurate with his responsibility. The posse comitatis is at his command; and as was said by Doddridge, J. in May v. Proby, 3 Bulst. R. 200, " no power by intendment of law is able to resist the sheriff and his power, who hath posse comitatus at his command." Hence it is that " rescous" is no return. It is said by the same judge, in the same case: It is greatly in derogation of the king, that the sheriff should return that he could not have the body there propter resistentiam. And when a sheriff returned in Replevin, that he could not have the beasts, he was amerced. And hence, after the destruction of the gaols in the British metropolis by the rioters in 1780, it was found necessary to pass an act of Parliament to indemnify the gaolers from the consequences of the prisoners' escaping, though no actual negligence could be imputed to them; as it was impossible for them to prevent such escape. Le Blanc and Runnington, arguendo, in Alsept v. Eyles, 2 Hen. Bl. R. 111; Comy. Dig. Rescous D, 7; Mildmay v. Smith, 2 Wms. Saund. R. 344.
At common law, if a debtor died charged in execution under a ca. sa., the creditor could have no other execution. The statute 21 James 1, ch. 24, was passed to remedy this. By 8 & 9 William 3, ch. 26, the plaintiff was authorized to have a new execution when the debtor escaped by any ways or means howsoever; and by 41 George 3, ch. 64, the plaintiff might consent to the debtor's discharge without losing the benefit of his judgment, except that the body of the debtor could not be taken in execution again. This statute, however, expired by its own limitation in three years.
But while the legislature has thus innovated upon the law in relation to the ca. sa., the law in relation to the fi. fa. has remained unchanged. And the reason seems to be this: The ca. sa. is not of the class of valuable executions. 5 Rep. 87a, 87b. It is not in the strict sense final, but only quousque the defendant shall satisfy the plaintiff: but execution is final when the plaintiff is satisfied. The debtor's body was deemed but a pledge for the debt. But there is no law giving the plaintiff more than one sufficient fi. fa.
It seems to be clear, then, that no act of the sheriff could release a levy of an execution of fi. fa. But the act of the creditor could release the levy; for he has plenary power over his execution, and the sheriff must do his bidding. And when the creditor releases the levy the judgment is discharged, upon the principle that volenti non fit injuria. Root v. Wagner, 3 Tiff. R. I, 17. It is familiar law, that if a creditor consents to release his debtor from custody, it was in law a satisfaction. The law conclusively presumed a satisfaction. Said a distinguished judge: " When a party voluntarily extinguishes his own judgment, he cannot afterwards complain of it. If indeed, after having levied the execution on the body, the creditor consents to release his debtor from custody, and agrees that he may go at large, then the law regards the execution, the levy and the discharge, as amounting to a satisfaction of the judgment. No new execution on the judgment ever can issue. 2 Tuck. Com. 355. And so it is where satisfaction is entered on the roll by the plaintiff. Ward v. Vass, 6 Leigh 135.
If a plaintiff gives up a levy without the consent of the defendant, his case is irremediable, and he has himself alone to blame. In the language of Judge Roane, in Bullitt's ex'ors v. Winstons, 1 Munf. 269, " The law does not permit our citizens to be harrassed by repeated and unnecessary executions." In Green v. Burke, 23 Wend. R. 496, 501, the Court says: " The plaintiff may, by tampering with the levy himself, lose his debt: as if he release property from arrest which is sufficient to pay the debt." And it was held in Smith v. Hughes, 24 Illinois R. 270, that when a levy has been made, unless released by agreement of the defendant, it can only be removed by a sale, or by an order of the court issuing the execution.
If, notwithstanding the debtor's release from custody was in favorem libertatis, the law presumed from such release a satisfaction of the judgment, though the debtor's body was a mere pledge to enforce payment of the debt, it would seem to follow a multo fortiori that a creditor's release of a valuable satisfaction, such as a levy, would justify a conclusive presumption of satisfaction. It is, in fact, inconsistent with any other supposition. And such is the law of Virginia. Bullitt's ex'ors v. Winstons, 1 Munf. 269; 2 Tuck. Com. 364, 365. In the case of Bul litt v. Winstons the creditor's hands were not tied, as there was, in fact, no consideration moving from Littlepage to induce the plaintiff to give time. It is no consideration for a party to perform what he was under a previous obligation to do. 1 Parsons' Cont. 437, edi. 1864. Hence, where a party promised a witness who was in attendance under a subpoena, that he would compensate him for his loss of time if he would stay and testify, it was held there was no consideration for the promise. Willis v. Peckham, 1 Brod. & Bingh. 515; Collins v. Godefroy, 1 Barn. & Ad. 950.
That the State is bound by the same rule as private parties, is well settled. United States v. Watkins, 4 Cr. Cir. Ct. R. 270; United States v. Stansberry, 1 Peter's U.S. R. 573; United States v. Thompson, Gilpin's R. 614.
It needs no argument to prove that the Commonwealth did release the levy made under her execution. We are here now asking this court to quash, not writs of venditioni exponas, directing the sheriff to sell property in his hands levied under former executions, but alias writs of fieri facias, commanding the sheriff to levy as well as to sell. And we insist that the Commonwealth, having released the levies, the judgments are discharged; for the defendants, Withers, Graves, Hankins and Watkins were not consenting to the release. And we insist, if any one did not assent, the judgment is released as to him and all his fellows.
A suspension of a right of action for an instant, as to one, extinguishes the right as to all; and the effect of a release to one is the same. In Foster v. Jackson, Hobart 52a, 59a, joint debtors are said to be one debtor when sued jointly; and, therefore, that you could not have a capias against one, and another kind of executions as to others; which you might have done if you had sued them severally. And so a technical release to one is a bar to all others, because it is an admission by the creditor that his debt is paid. Savage, Ch. J., Catskill Bank v. Messenger, 9 Cow. R. 37; and it is tantamount to a receipt in full. Crane adm'r v. Alling, 3 Green C. L. R. 425. And so a discharge of one is the discharge of all. Cheetham v. Ward, 1 Bos. & Pul. R. 630; 1 Parsons Cont. p. 27. And a release by operation of law fulfills the whole requirement of the law; it amounts to a forgiving of the debt, and an extinguishment of the bond, so as to leave no debt remaining. It proves everything that could be proved by a technical release. Crane adm'r v. Alling, supra.
Upon the effect of releases, whether technical or by operation of law, we refer to Bower v. Suadlin, 1 Atk. R. 294; Slater, ex parte, 6 Ves. R. 146; Ex parte Gifford, 6 Id. 805; Robertson v. Smith, 18 John. R. 459; Ward v. Motter, 2 Rob. R. 536; Clark v. Clement, 6 T. R. 525; Nicholson v. Revill, 4 Ad. & Ell. 675, 31 Eng. C. L. R. 166; North v. Wakefield, 13 Queen's Bench R. 536, 66 Eng. C. L. R. 535; 2 Tuck. Com. 356; Bac. Abr. Release G. (Bouvier's edi.); 8 Rep. 136a. And that equity follows the law. 1 Story's Equ. Jur. § 112; Hunt v. Rousmanier, 8 Wheat. R. 174.
The science of pleading knew nothing of the title or relation of suretyship. 2 Amer. Lead. Cas. 395. In a court of law the principal and surety are joint debtors, fixed in the same obligation; and what will discharge one will discharge all. Id. 396.
For the purpose of enforcing contribution among cosureties, one surety who pays the debt is entitled to be substituted to all the rights and remedies of the creditor, as against his co-sureties, in precisely the same manner as against the principal debtor; and although payment of the debt may have discharged the other sureties at law, equity will keep it alive for this purpose. And this principle applies to bonds, judgments, decrees, mortgages and all other securities whatsoever. Amer. note to Dering v. Earl of Winchelsea, 1 White & Tud. Lead. Cas. in Equ. 117. And while the cases fully establish the creditor's right to remain quiescent; they treat him as a defaulter in every instance in which any hold is surrendered or lien is waived, which might have resulted in the discharge of the debt and the exoneration of the surety. 2 Amer. Lead. Cas. 343. And thus it is a well settled principle of equity, that a creditor who has the personal contract of his debtor with a surety, and has also, or afterwards takes, property from the principal as a pledge or security for his debt, is to hold the property fairly and impartially for the benefit of the surety as well as himself; and if he parts with it without the knowledge or against the consent of the surety, he shall lose his claim against the surety to the amount of the property so surrendered. Id. 345.
The release or relinquishment of a security which binds the estate of one co-surety, injures the other, because he would have been entitled to subrogation on paying the debt. 2 Amer. Lead. Cas. 355, 356, citing Rice v. Morton, 19 Missouri R. 263. And the same acts are held to discharge the remaining sureties quoad the shares which such co-surety would otherwise have been required to contribute as would, if done to the principal debtor, discharge the surety. And when a co-surety has been released, the remaining co-sureties will be exonerated as to so much as the discharged co-surety would have been compellable to pay except for the release. In this case, each party had a right to satisfy the debt, and to be subrogated to all the creditors' rights under the executions. But the release of the levies defeated this right, and so discharged the defendants to the extent of the levies.
As to the remedy--The court is armed with plenary power over its own process; and to prevent the abuse of that process, the court will give effect to any defence that would be available in equity. Steele v. Boyd, 6 Leigh 541. The remedy by motion has supplanted the audita querela; which is defined in 2 Sellon's Prac. 253, to be an action in the nature of a bill in equity to be relieved against oppression.
Robt. Johnston, for the Commonwealth.
1. The first question which we have to consider is, whether there was a levy by the sheriff upon the property of these debtors. And on this point, it is obvious that the sheriff was arrested before he finished the levy. He never took possession of the property, either personal or vicarious. He never designed to leave the property in the possession of these debtors as his bailees; but seeing that there would be an effort by them to obtain indulgence, he waited the result of that application. And so, clearly, the matter was understood by the parties; and they went on to use and sell the property, after what occurred, as they had done before. Walker sold his goods, and the others used whatever was in a condition to be used, without any regard to what the sheriff had done.
Whatever may be the rule adopted to define a levy of an execution, it must necessarily include the element, that possession must have been taken by the officer. The continuity of the debtor's possession, as debtor, must have been broken. That was the case in Bullitt's ex'or v. Winstons, 1 Munf. 269, so much relied on by the appellants' counsel. In that case the property was in the power of the officer, and he appointed a bailee to hold it. And if it is said that the debtor may be constituted the bailee, still if so, it must be done by some unequivocal act, such as will break the continuity of the debtor's possession; and the possession of the officer must be a continuing possession. Barnes v. Billington, 1 Wash. C. C. R. 29; Lloyd v. Wyckoff, 6 Halst. R. 218; Beckman v. Lansing, 3 Wend. R. 446; Blades v. Arundale, 1 Mau. & Sel. R. 711. In the case of Roth v. Wells, 29 New York R. 471, cited on the other side, there was possession in the officer through the agency of the debtor.
If there was no valid possession, then the case comes clearly within the principle of McKenney's ex'or v. Waller, 1 Leigh 434; Alcock v. Hill, 4 Leigh 622; and Humphrey v. Hitt, 6 Gratt. 509. This last case refers to all the other cases, and they establish clearly that a creditor may withdraw his execution though it is about to be levied on the property of the principal debtor.
But if the levy was made in these cases, it was immediately released and abandoned by the sheriff. He did not remove the property, or provide for the care of it; and there is not the slightest evidence to show that he appointed the debtors his bailees to keep possession of it for him. Upon the assumption that there was a levy, the property was in the custody of the law. The creditor had no authority to control the sheriff; but the sheriff was a trustee of the debtor as well as the creditor; and he was also the trustee of the sureties. His was a public duty, and he was bound to act for all. If, then, he released and abandoned the levy without the concurrence of the commonwealth, clearly his act did not discharge the judgments. Ward v. Vass, 7 Leigh 135; Winston v. Whitlocke, 5 Call 435; Randolph's adm'r v. Randolph, 3 Rand. 490; Dyke v. Mercer, 2 Show. R. 394; Allen J. in Garland v. Lynch, 1 Rob. R. 545, 560, 564; Norris v. Crummy, 2 Rand. 323; Carr's adm'rs v. Glasscock's adm'r, 3 Gratt. 343; 2 Tuck. Com. 365.
This case has been argued for the appellants as if the State had consented to the release. But the State could only consent through the General Assembly. The auditor of accounts cannot receive a dollar for the commonwealth. A debt can only be paid to or by the State in the mode prescribed by the statute. A payment to the auditor, and his receipt for it, would be worthless. Code of 1860, ch. 45, § 3, p. 267. The auditor cannot release an obligation to the State. He cannot dismiss a prosecution for a claim without the concurrence of the attorney-general. There is but one case in which he can release a claim, and that is, when it has been standing for more than twenty years he may, with the concurrence of the attorney-general, adjust and settle it upon equitable principles. Code of 1860, ch. 42, § 24, p. 255. A sheriff cannot pay money to the auditor or attorney-general collected upon execution; and though an agent to sell delinquent lands may receive the money from the purchaser, he must pay it into the treasury in the mode prescribed by the statute in all cases. Nay, an officer cannot even make a mistake against the commonwealth; not even a court of justice. Id. ch. 42, § 6, p. 252. And if these statutory provisions are not sufficient for the protection of the commonwealth, the prerogative of the crown, except so far as it is inconsistent with our institutions or has been changed by statute, and especially with reference to the revenue, is in force in favor of the government. United States v. Kirkpatrick, 9 Wheat. R. 735; Leake v. Ferguson, 2. Gratt. 419; United States v. Stansberry, 1 Peters R. 573; Locke v. The Postmaster General, 3 Mason's R. 446; United States v. Nicholl, 12 Wheat. R. 505; Martin v. The Commonwealth, 1 Mass. R. 347. These acts and authorities show that the auditor and attorney-general had no power to give up the debt or release it, or in any way to defeat a just claim of the commonwealth. And even if the acts done would have been binding between man and man, they are not binding upon the commonwealth.
But, in fact, there was no assent by these officers to the release of the property from the operation of the levy. There could be no such assent, for they knew nothing of a levy. The attorney-general directed the sheriff not to levy; and the auditor directed a stay of execution for sixty days; but neither directed a release of the property. The mere postponement of a sale will not affect the rights of a creditor. Fisher v. Vanmeter, 9 Leigh 18. These orders moreover were without consideration, and might be recalled at any moment.
If the levy was released, and the commonwealth was entitled to her money, then new fi. fa's. were necessary. There is no doubt of the fact that the levy, if ever made, was released. The appellants held possession of the property, and have disposed of it; and no writ of venditioni exponas could enable the sheriff to get hold of it or sell it. And yet it is said the issue of the new writs of fi. fa. is an assent by the commonwealth to a release made months before. It is certain that the commonwealth can enforce her judgments by the issue of new writs of fi. fa., and yet it is insisted that the issue of these writs is the expression of her assent to that which, according to the views of the other side, discharges her judgments. But the clerk, in issuing a new writ, is not confined to the return on the first; but if satisfied the return is wrong, will issue another fi. fa. And if he refuses to do so, the plaintiff may apply to the court on the ground of the clerk's refusal; and the court will order the issue. Of course, if the execution is improperly issued, it may be quashed; but it is not so clear that where one fi. fa. has been levied you may not take out another, and sell under it. McKey v. Garth, 2 Rob. R. 33; Eckhols v. Graham, 1 Call 492.
The only act done by the General Assembly was the act passed at the instance of certainly some of these parties, whereby they were released from the damages recovered against them, provided that the whole amount of principal, interest and costs were paid into the public treasury on or before the 1st day of August, 1867. This act was passed on the 22d of February. Here is a simple grant of indulgence, without any consideration, either of benefit to the commonwealth or injury to the other parties. Such acts of grace and favor, done by the king or his officers, or parliament, are presumed to be done at the instance of those so favored, and are to be taken most strongly against the grantee. And it was to avoid the operation of this rule of construction that the clause ex mero motu was introduced into the king's grants.
But we are not left to rely upon this rule, which would be sufficient, at least until the contrary appeared; and the evidence is abundant to show that all these sureties concurred in the abandonment or release of the levy by the sheriff, and in accepting the terms granted them by the General Assembly. (The counsel went into an examination of the testimony, and insisted that it showed that all the sureties except Withers were active in obtaining the release of the levy and the act of the General Assembly; that they assumed to act for him, and that he afterwards approved and ratified what was done, and took the benefit of it. And to show how far the courts would go in presuming the consent of the parties, he referred to Hunter's adm'rs v. Jett, 4 Rand. 104, and Ward v. Vass, 7 Leigh 135. And he said, that whether or not the act of assembly released the levy, the sheriff and the sureties so considered and treated it.)
But it is insisted that Withers is discharged, and that the release of one is the release of all.
We are not dealing with the question of the effect of a release of one by contract. There the contract is to be looked to with respect to its intention. Nor are we considering the effect of a release by contract without respect to intention. Nor are we considering the effect of a contract not to sue. That, we are told, is a release in equity of the covenantee. But we know that in such a case the covenant would release both technically; but only in equity. Waggener v. Dyer, 11 Leigh 384. We are here considering the effect of an act--the supposed act of the creditor releasing the levy on Withers' property. The motion here is in fact a motion for an exoneretur, though in form a motion to quash the executions.
In Steele v. Boyd, 6 Leigh 547, a case similar to this, Judge Tucker says: " It is not conceived to be true that the exoneretur of one party judicially pronounced, is a necessary release of all others, upon the principle that a release of one inures to all; for if this was so, then in all cases when the surety is discharged by the creditor's conduct, the principal would be discharged also; which can not be pretended." " When, as in the case of a forthcoming bond, which is always joint and several, one party is absolved by any other means than what the law deems a release, the right to recover is not impaired as to the rest." This position is approved, and a part of the language quoted by Judge Allen in delivering the opinion of the court in the case of Mills v. The Central Savings Bank, 16 Gratt. 94. And indeed, it seems to be well settled, that the release of one surety is not a release of a co-surety in equity. 1 Story's Equ. Jur. § 498a and note 3; Pitman Prin. & Surety, 192 marg.; 40 Law. Libr. citing ex parte Gifford, 6 Ves. R. 805; Stirling v. Forrester, 3 Bligh. P. Cas. 575; Dunn v. Slee, 1 J. B. Moore 2.
The doctrine of subrogation is not applicable between principal co-sureties. This doctrine existed in the civil law, but has never been imported into the common law in this country: certainly not in Virginia. The case of McMahon v. Fawcett, 2 Rand. 514, does not sustain it. That case does not touch the question. There a security given by the principal debtor to one of the sureties was held to inure to the benefit of all. In the English books there are cases of substitution by one surety for another; but they were in different ranks; as in the case of bail and a surety. And so in Virginia where there is a judgment and execution against a principal, who gives a forthcoming bond; there the first surety may go against the surety in the forthcoming bond. But where the sureties are on the same level, there is contribution between the sureties for the share of each, but no substitution. Preston v. Preston & als., 4 Gratt. 88; Buchanan v. Clark, 10 Id. 154.
But let us consider this doctrine of substitution with reference to the case of the levy of a fi. fa. In Carr's adm'rs v. Glasscock's adm'r, 3 Gratt 343, Baldwin, J. says: A lien by levy is temporary, and expires if there is no sale, when the right to sell ceases; and a surety who pays the debt has no right to be substituted to the lien. Suppose that, in this case, the whole debt had been made by the sale of the property of Withers. The levy upon the property of Walker and Keene would have still been in existence, but the right of the sheriff to sell would have ceased. He could not sell after the debt was paid. When Withers had paid the debt, how could the sheriff refuse to deliver up their property to them? What defence could the sheriff make to an action of trover or detinue by them for it? Must he retain the property until Withers should come for contribution? Shall he be required to determine that Withers is entitled to contribution; that the principal debtor is insolvent; for unless he is insolvent Withers would not be entitled to contribution from the sureties. This question of the insolvency of the principal may be one very difficult to solve; as was seen in the case of Harrison v. Lane, 5 Leigh 414.
What equity exists between these parties? Withers has not paid the debt, non constat he ever will pay; and non constat the principal will be insolvent when Withers pays. Non constat that either surety will be insolvent when called upon for contribution. There is no right or duty of contribution at present; not even an inchoate right. In cases like the present, when sureties are released, the law proceeds on the ground of injury; and the party asking relief must show the extent of his injury; and then he will have relief pro tanto. Ward v. Vass, 7 Leigh 135; Norris v. Crummy, 2 Rand. 323; Carr's adm'r v. Glascock's adm'r, 3 Gratt. 343; Baldwin, J. in Humphrey v. Hitt, 6 Gratt. 509; Adams' Equ. 268 marg. note 2; 2 Amer. Lead. Cas. 4th edi., Hare & Wall, notes 343, 344, 345, 348, 353, 355, 367, 368, 369.
What injury has been done to these parties? The release of the property to the debtors respectively was surely no injury to them. If Withers was injured by the release of the property to the other parties, he was injured as a surety. At least he is bound for his aliquot part of the debt, and he is only not bound as surety of Walker and Keen. He can not have this remedy at law after execution sued out and levied. To quash the execution would produce irreparable injury to the plaintiff; and therefore equity is the remedy for the defendants in the executions.
MONCURE, P.
This case has been argued with signal ability by the counsel on both sides. All the points discussed are interesting, but many of them are immaterial to the decision of the case, in my view of it, and will not, therefore, be considered. Without intending to decide, I will assume, for the purposes of the case, that the first executions which issued on the judgments referred to in the proceedings were, in fact, levied, as stated in the returns on said executions; that the auditor had authority by law to control the said executions, and to stay proceedings thereon, even after they were levied; and that the effect of his act in staying such proceedings, either by itself or in connection with the act of the attorney-general, and the act of the General Assembly, passed February 22, 1867, entitled " an act for the relief of J. M. Walker and others, securities of C. W. Watkins, sergeant of Danville," (Sess. Acts, ch. 229, p. 664,) was to discharge the property levied on from the said executions. And upon that assumption I will proceed to consider--Whether the sureties, who were the owners of said property, did not, in fact, consent to the act or acts by which it was discharged as aforesaid, and to the discharge itself; and if so, whether the new executions issued upon said judgments were not lawfully and properly issued, notwithstanding there may have been no such consent on the part of the principal debtor.
First. Did the sureties consent? That all of them did, except Withers, seems to me to be very clear. All of them, at least with that exception only, as soon as the executions were levied, or about to be levied, on their property, earnestly appealed to the authorities at Richmond for indulgence, which was accordingly granted to them, without any other consideration or motive than pure benevolence. Such was the urgency of the pressure upon them; the sheriff having levied upon the goods of the first set of sureties--Walker, Keen and Withers--and being about to advertise them; that two of said sureties, Walker and Keen, made their first application for indulgence by telegraphic dispatch to a brother of one of them in Richmond, Colonel E. F. Keen, a member of the Legislature, then in session; and the answer came promptly back, in the same way, in a direction to the sheriff, first from the attorney-general, and then from the auditor, to stay proceedings on the executions then in the hands of said sheriff. A few days thereafter the sheriff received the execution against Watkins and his second set of sureties--Hankins, Graves and Keen--and levied it on the property of said sureties, who thereupon had a meeting, and agreed that Hankins should apply in person to the auditor for indulgence on the said execution, which was accordingly done; and on the 16th of February, two days after the said levy, the sheriff received a dispatch from the auditor staying proceedings on said last mentioned execution. And six days thereafter, to-wit: on the 22d of February, an act of the Legislature was passed for the relief of all the sureties, releasing the damages recovered against them, amounting to twelve or fifteen hundred dollars, on condition of the payment of principal, interest and costs by the 1st of August, 1867. After the passage of the act, Walker informed the sheriff that he had gotten indulgence to the 1st of August, and the first thing the sheriff knew of the passage of the act was that he saw a manuscript copy of it in the hands of Walker and Keen, sent to them by Colonel E. F. Keen. The sheriff expressly says that Walker and Keen approved of and ratified the said indulgence. But that all of the sureties approved of and ratified it is conclusively proved in the record. How, then, can it be said that they did not consent to it? It is argued, that they only asked for, and consented to, a stay of the proceedings, and not a discharge of the levy. But this is certainly not so. Their conduct and declarations, and the thing itself in its very nature, conclusively prove that this is not so. The sheriff expressly proves that Keen and Walker not only claimed that the act operated as an indulgence till the 1st of August, but sought a release of their property from the levy, and claimed that the proceedings did operate as a release of said levy, which effect was produced, as they contended, by the suspension of the auditor and attorney-general, and the act of assembly aforesaid. And the sheriff took the same view of the subject, and acted accordingly. All of the sureties knew that the sheriff took this view of the subject, and acted upon it; and all of them either expressly insisted on the same view, or acquiesced in it by continuing to use and enjoy their property which had been levied on, or dispose of it at pleasure, without regard to the levy, and inconsistently therewith. No surety made any objection to the delay of proceedings or consequential discharge of the levy, and none at any time required that the sheriff should proceed to sell under the executions any of the property that had been levied on. Each of them took the full benefit of the indulgence, and accorded it to his co-sureties. The nature of the most of the property levied on, and the business of some of the parties, was such as to require the property to be discharged from the levy as a consequence of the suspension of the proceedings. Walker was a merchant, in full and active operation, with a large stock of goods in his store, all of which were levied on. His business could not go on without a release of the levy. So important did he, and even the sheriff, consider it that his mercantile operations should not be suspended for a moment, that those operations continued to go on even while the parties were applying for indulgence by telegraphic dispatch. In asking for indulgence, therefore, Walker asked for a release of his merchandise from the levy as the chief object he had in view. The sheriff told Keen and Walker, after the indulgence was given by the auditor, that he would not do any thing further until the indulgence was at an end; and Walker told him he expected to have his part of the money ready: Have it ready, no doubt, by means of his mercantile operations. Keen and Withers were producers, and Keen a manufacturer of tobacco. Their tobacco had been levied on in the leaf; and it was necessary, as well for the preservation of the subject as to provide the means of paying off the judgments, that the tobacco levied on should be prepared for sale, and carried to market and sold. And this was accordingly done by the parties themselves. It surely cannot be necessary to say anything more to show the consent of all the sureties, except Withers, to the discharge of the levy.
And now as to Withers. A good deal has already been said incidentally, tending to show his consent also; but what remains to be said will, I think, make his consent almost as clear as that of his co-sureties. He was not in Danville when the executions were levied and the application for indulgence was made by his co-sureties; but was at his home in southwestern Virginia. He had a farm and crop of tobacco in Pittsylvania, on which tobacco the executions in which he was a defendant were levied. His overseer was informed of the levy at the time it was made, and no doubt promptly informed him of it. He knew that the judgments had been obtained, for he had been duly notified of the motions, and must have known that executions would soon be out against him. He knew that his principal Watkins was insolvent, and that the burden of the judgments would have to be shouldered by the sureties. It was natural that the sureties should confer together as to the best means of meeting the difficulty and bearing the burden, and they doubtless did so confer. That an appeal to the public authorities was spoken of and contemplated by them in their conferences is very probable. The executions came out and were promptly levied when he was far away; and of course he could not actively join in the measures, at once from necessity used, to prevent a forced sale and sacrifice of the property of the sureties. There cannot be a doubt that he would have so joined had he been present. It was his manifest interest to do so, and his conduct and declarations afterwards prove that he would. Being absent, his associates applied for him and them, and obtained indulgence for both. The appeal must have been presented to the auditor, attorney-general and legislature in behalf of all the sureties, and relief was accordingly granted to all. The order given by the attorney-general and auditor was, generally, to stay the executions. And the act of the legislature was for the relief of the sureties generally. It is impossible to believe that this general indulgence would have been given had it been imagined by those who gave it that the boon was not desired by all who were intended to be benefited by it. Keen and Walker certainly intended to make the application on behalf of all. They did not expect or desire that their property should be discharged, and not that of their associate Withers. They, therefore, applied for the indulgence in general terms, believing it would be as acceptable to Withers as it certainly was to them. To grant the indulgence in the terms in which it was asked would be to discharge the levy as to Withers as well as themselves. They surely did not mean, by asking the indulgence, to discharge Withers, and shoulder his part of the burden as well as their own. They must, therefore, have intended to act for Withers, either because he had authorized them, of because they knew or believed that he would sanction it. And now let us enquire whether it does not appear, by what he afterwards said and did, that he either authorized it beforehand, or at least afterwards sanctioned it. Withers, though not present when the executions were levied and the applications for indulgence were made, yet came to Pittsylvania very soon thereafter, and before the passage of the act of the legislature; having come over, as he said, for the purpose of meeting the executions like a man, and making some arrangement to pay them. On that occasion, he said to the sheriff that he was very glad the indulgence had been granted, and expressed the hope that something might be made out of the assets of Watkins (the principal) to alleviate the liability. The sheriff judged from Withers' conversation that he had been to Danville, and heard of the indulgence. Now here it will be remarked, that the proceedings to obtain the desired indulgence to all the sureties were not then completed, but were still in course of execution. The act of assembly, which was expected to give indulgence to the 1st of August, had not then been passed, but its probable passage was no doubt communicated to Withers by his associates. Did he object to what had been done, or protest against what was about to be done, either to his associates, or to the sheriff, or to the auditor, or to the legislature, or to any person whatever? Not a word of any such thing is to be found in the record, where it would certainly have been if it had existed. On the contrary, what he said to the sheriff shows that he approved and sanctioned what had been done and was doing in his behalf, and " was very glad the indulgence had been granted," not only because it was an indulgence to his associates, but especially because it was an indulgence to himself. And he " expressed the hope that something might be made out of the assets of Watkins to alleviate the liability" --that is, the liability of the sureties, himself in the number, thus admitting that their liability was to continue, and was only to be alleviated by means of the indulgence. We see, in this expression of Withers, a common object between him and his co-sureties, thus showing that they had conferred together and concurred in regard to one of the benefits to be expected from the indulgence. A similar expression was made by Keen and Walker, when they claimed to the sheriff that they had received an indulgence till the 1st of August, 1867, " by which time they hoped that Watkins would settle up his business, and that they would realize something from that source." And Withers accepted, and has enjoyed, the full benefit of the indulgence thus granted to him and his associates. Instead of his tobacco being sold in the leaf, in his barns in the country, at a forced sheriff's sale, he has had the advantage of preparing it for sale and carrying it to the best market, and selling it for the best price. And in May or June, 1867, we find him speaking to the sheriff of the fine price he had gotten for his crop of tobacco--the very crop on which the execution had been levied, by the discharge of which levy he had been enabled to obtain such a price. It thus appears, from all the circumstances of the case, that Withers either previously authorized his associates, Keen and Walker, to apply for the indulgence which was granted to him and them, or sanctioned the application after it had been made, and even before it had been fully granted, and accepted and has enjoyed the benefit of the indulgence. And in either view it may be said, that he as much consented as did the other sureties to the indulgence which was given, and the effect of it (if it had that effect) in discharging the levy of the first executions. And now I proceed to enquire, Secondly. Were the new executions which were issued upon the judgments lawfully and properly issued, notwithstanding there may have been no such consent on the part of the principal debtor. If all the defendants, principal as well as sureties, had consented to the discharge of the first levy, it is abundantly proved by the authorities, and indeed admitted on all hands, that it would have been no bar to new executions. It is not pretended that there was any new contract which satisfied the judgments or tied the hands of the commonwealth, even for an instant; but there was simply a voluntary release of the levy, and if all the defendants had consented to such release, there would have been no question in the case. All the sureties did consent, and there is no evidence whether the principal, who is the only remaining defendant, consented or not. If he had been consulted, he would no doubt have consented to that or any other course which his sureties might have thought would be a benefit to them, or which they might have desired to pursue. He was insolvent, and really had no interest in the subject. The executions were not levied on his property, for he had none, but only on the property of the sureties. And they, and all others concerned, doubtless thought it wholly unnecessary to consult him as to whether his sureties should be indulged or not in the payment of his debt. His consent might fairly be presumed and inferred in the case, if it could be affected by such consent. He is not here complaining. He made no motion to quash the new executions, and of course did not join in this appeal from the judgment overruling the motion of the sureties. We might, therefore, properly stop at this point. But let us proceed further, and treat him as not having given his consent. And then how does the matter stand?
The learned counsel for the plaintiffs in error contend, that though the sureties may have consented to the indulgence which released the levy upon their property; though such indulgence may have been granted only at their request and for their benefit; though they may have received and enjoyed the full benefit of the indulgence; and though they may be in no danger of sustaining any loss by reason of it; yet, because their insolvent principal did not also consent (though there is no evidence whatever of his dissent) they are, by reason of such indulgence and its effect, forever released from the debt! And not only so, but that the principal debtor himself is thereby released from the debt, and must go quit thereof forever! The counsel maintain that this strange effect is produced by a technical, unbending rule of law, that when the plaintiff in an execution against several defendants which has been levied on sufficient personal property, voluntarily discharges the levy without the consent of all the defendants he thereby releases such of the defendants as do not consent to such discharge; and that a release of one or more of several joint, or joint and several debtors, is a release of all. They maintain that the rule applies to this case, and therefore, that the discharge of the levy on the property of the sureties, (though at their request,) without the consent of the insolvent principal, (supposing that he did not consent,) was a release of the principal, and that a release of the principal was, by operation of law, a release of the sureties also. Now if there be such a technical, unbending rule of law, and it applies to this case, we will have to be governed by it, unjust and unreasonable as its operation would certainly be. But surely a rule of law which would lead to such consequences ought to be well and firmly established by authority before we are required to follow it. Is there such a rule of law? I think not.
It has been often said by judges, in general terms, that a levy of an execution on personal property sufficient to discharge it is a satisfaction of the judgment; but this is certainly not so. Clerk v. Withers, 2 Ld. Raym. R. 1072, the source from which the expression seems to have been derived; and though there may be dicta to that effect in the opinions of some of the judges who decided that case, there is certainly nothing in the decision itself which gives any warrant to the expression. Nobody can find any fault with that decision. A sheriff had levied an execution in favor of an administrator on the property of the defendant, and before the sale of the property the plaintiff died. The defendant then sued the sheriff for his property, upon the ground that the death of the plaintiff put an end to further proceedings on the execution. But the court held, that the sheriff was bound to go on and make the sale, and pay the money into court, according to the mandate of the writ. This case is fully reviewed and commented upon in the opinions of the judges in Giles v. Grover, 6 Bligh's R. 277, decided in 1832, in which the effect of a levy, and the nature of the lien thereby acquired, are subjects of much observation. All the cases show that the mere levy of the execution on property of the defendant is not satisfaction of the judgment, but only a step towards it. A levy on property is not the object of the execution, but payment of the money. The levy does not divest the defendant of the property and transfer of title to the plaintiff, or even to the sheriff. The property still remains in the defendant, notwithstanding the levy, and only a special interest is vested in the sheriff, as a mere bailee, to enable him to keep the property safely, and defend it against wrongdoers. While subject to the levy it is in the custody of the law, and the sheriff has a naked power to sell it and pass the title from the owner to the purchaser. Several successive steps are to be taken between the issuing of the execution and the satisfaction of the judgment. The first step is, to place the execution in the hands of the sheriff. The effect of this step is, to make it a lien on the property of the defendant to a certain extent and of a certain character. The nature of this lien is commented on and explained in Humphrey v. Hitt, 6 Gratt. 509, as well as elsewhere. It is of so imperfect a nature as that the plaintiff may abandon it at pleasure by withdrawing his execution from the hands of the sheriff, or directing him not to levy it, without discharging the judgment, or even affecting the liability of a surety who may be one of several defendants. Id. and the cases therein cited of McKenney v. Waller, 1 Leigh 434, and Alcock v. Hill, 4 Id. 622. The second step is, to levy the execution on specific property, by which such property is set apart from the general property of the defendant and placed in the custody of the law until it can be sold and applied to the payment of the execution. The third and last step is, the sale of the property. Then, and not till then, the plaintiff may be said to have gotten to the end of his suit, at least so far as the defendant is concerned, and to the extent of the value of the property, unless indeed the property be lost by the neglect or misconduct of the sheriff, without the defendant's consent; in which case also the plaintiff may be said to have gotten to the end of his suit. Now until this last step is taken, the thing remains in fieri, and may, in a certain manner and under certain circumstances, be so undone as that the plaintiff may be placed in the same situation in which he was before he sued out execution, and may therefore sue out a new execution. But by taking the second step, to wit: the levying of the execution, the plaintiff increases his responsibilities and makes it more difficult to withdraw the execution without endangering the debt. He has thereby acquired a specific and a better lien; still not perfect, but yet so nearly so, as that he cannot always safely release it of his own accord. He then becomes, as has been said, a trustee of the execution for the benefit of all parties concerned. The defendant is interested; because a specific portion of his property having been seized and placed in the custody of the law for the payment of the execution, he has a right to be protected against another seizure under a new execution for the same debt, without his consent, or unless there be a necessity for it. The sureties, if there be any, of the defendant on whose property the levy is made, are also interested, in having the property of their principal, thus specifically bound for the payment of that debt, applied to that purpose, in their exoneration in whole or in part, according to the value of the property. They also, therefore, have a right to be consulted by the plaintiff in giving up the levy, and must consent thereto in order to make them liable to a new execution; at least without having credit for the amount of the first levy. Until the plaintiff " has gotten to the end of his suit; " in other words, until he has gotten satisfaction of his demand, or what is equivalent thereto, he may continue to prosecute his remedy to judgment and sue out execution after execution thereon; taking care not to oppress or injure the defendant or his sureties, if there be any. The court in which the judgment is rendered has ample power to superintend and control the execution of process thereon, and will take care to prevent its being perverted to purposes of injustice or oppression. A plaintiff, therefore, may always, with the consent of the defendants, abandon a levy upon the property of all or any of them, and sue out a new execution. If the defendants be a principal and his sureties, and the property levied on be that of the sureties, the plaintiff may, with the consent of the sureties only, abandon the levy and sue out a new execution against all the defendants. No injury is done to the principal by releasing the lien on the property of the sureties, for that lien cannot enure to his benefit in any possible event. If his sureties are satisfied, he, certainly, has no cause to complain. So also if the levy be abandoned by the sheriff with the consent of the defendant, without the concurrence or authority of the plaintiff; or, if the property be by the defendant eloigned or removed out of the reach of the sheriff, without the consent either of him or the plaintiff, the latter may sue out a new execution. But if the property levied on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied to the extent of the value of the property, and the plaintiff can then look only to the sheriff for indemnity. The reason of this is plain. The plaintiff, by pursuing his remedy, has caused the defendant's property to be taken out of his hands and placed in the custody of the law for the satisfaction of the debt. If that property be lost by the default of the officer of the law, who in this respect may be said to be the agent of the plaintiff, and without the consent of the defendant, it is reasonable and proper that the loss should not fall on the defendant, and he be thus, to that extent, compelled to pay the debt twice. The plaintiff must incur the risk of ultimate loss in this respect, as the result of an inherent defect of his legal remedy.
These principles seem to be fully sustained by the cases, especially the most recent; among which are Green v. Burke, 23 Wend. R. 496; Ostrander v. Walter, 2 Hill's N.Y. R. 329; Taylor v. Ranney, 4 Id. 619; The People v. Hopson, 1 Denio's R. 574; Peck v. Tiffany, 2 Comst. R. 451; United States v. Dashiel, 3 Wall U.S. R. 688. In The People v. Hopson, the court, Bronson, Ch. J., said: " If the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon sufficient personal property, without anything more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended. He cannot have a new execution," & c. " But without something more than a mere levy, the judgment is not extinguished. There is no foundation in reason for a different rule. The mere levy neither gives anything to the creditor, nor takes anything from the debtor. It does not divest a title: it only creates a lien on the property. It often happens that the levy is overreached by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases there is no color for saying that the judgment is gone; and yet they are included in the notion that a levy satisfies the debt." " The true rule I take to be this: the judgment is satisfied when the execution has been so used as to change the title, or in some other way deprive the debtor of his property. This includes the case of a levy and sale; and also the case of a loss or destruction of the goods after they have been taken out of the debtor's possession by virtue of the process. When the property is lost to the debtor in consequence of the legal measures which the creditor has pursued, the debt is gone, although the creditor may not have been paid. He must take his remedy against the officer, if he has been in fault; and if there be no such remedy, the creditor must bear the loss. But until the debt is paid, or the debtor has lost his property in consequence of his levy, the judgment remains in force." In Peck v. Tiffany, the court, Hoyt, J., clearly states in effect the same doctrine thus: " There are some old cases in which dicta are found that a levy upon sufficient property to satisfy an execution, is a satisfaction; but that doctrine has long since been exploded. When a sheriff levies upon sufficient property, and through his negligence or misconduct it is lost, destroyed, or otherwise disposed of, so that the defendant is deprived of the benefit of it, there is no doubt it should be regarded as a satisfaction of the execution, and the plaintiff must in such case seek his remedy against the sheriff. But when the debtor has neither paid the debt, or been deprived of his property, the simple act of levying upon it is not satisfaction, whether the debtor has been permitted to retain the property either by his own misconduct or by his request, or the voluntary act of the officer; because neither works any wrong to him." In the United States v. Dashiel, decided in 1865, the last case we have on this subject, it was decided that the levy of an execution, even if made on personal property sufficient to satisfy the execution, is not a satisfaction of the judgment, and accordingly, therefore, does not extinguish it, if the levy have been abandoned at the request of the debtor, or for his advantage; as for example, the better to enable him to find purchasers for his property. In the opinion of the court delivered by Justice Clifford, the rule is laid down in the same words in which it is laid down by Ch. J. Bronson as before mentioned, which words were repeated by the latter in Taylor v. Ranney, referred to by the former.
There is nothing in any case decided by this court, so far as I am aware, at all in conflict with the principle before stated. The decisions of this court which were relied on in the argument as having a bearing upon this subject, are cases in which sureties sought relief, generally by motions to quash executions on account of some act of the creditor done, as they supposed, in derogation of their rights; as by making a new contract with the principal debtor which tied the hands of the creditor, or by releasing the lien of a levy on the property of the principal debtor, without the consent of the sureties. In this case there was no contract between the creditor and debtor, principal or sureties, which tied the hands of the creditor for an instant; indeed, no contract at all between them, except that on which the judgments were obtained. The orders given by the attorney-general and auditor were founded on no valuable consideration, and were revocable at pleasure, though that of the auditor was for a stay of proceedings for sixty days. And the act of assembly, as was properly conceded in the argument, merely released the damages on condition of the payment of principal, interest and costs into the treasury on or before the 1st day of August, 1867, and did not give a moment's stay of proceedings on the executions, or in any manner affect the levy thereof. And in addition to all this, as I think I have shown, the sureties not only consented to the said orders and act, but solicited and obtained them for their special relief and accommodation; the executions having been levied alone on their property, and their principal being insolvent. What analogy there can be between this case and the decisions of this court above referred to, and how any title to relief can be worked out by the sureties or any of them on the authority of those decisions, or otherwise, upon the facts as I think I have conclusively shown them to be, I confess I cannot comprehend. If I am right as to the facts, I think I am certainly right in my conclusion. If the facts were different, I would have some interesting questions yet to consider, but as they are not, it is unnecessary to notice them. I intended to have reviewed at some length the cases of Baird v. Rice, 1 Call 18; Bullitt's ex'ors v. Winstons, 1 Munf. 269; Steele v. Boyd, 6 Leigh 547; and Ward v. Vass, 7 Id. 135; but I do not think it necessary to do so, and the length of this opinion admonishes me of the propriety of drawing it to a close. Before I do so, however, I must notice one or two other matters.
I have thus far considered the case as if the Commonwealth, through her agents, had consented to and concurred with the sheriff and the sureties in the discharge of the levy. But such I think is not the fact. Evidently neither the attorney-general nor the auditor knew anything of the executions having been levied when they gave their orders of suspension. The question of levy or no levy was one of doubt upon the facts--at least as to some of the parties--and it does not appear that any of the facts were communicated to these officers of government. Indeed, it appears that even Keen and Walker were probably under the impression that no levy had been made when they applied by telegraphic dispatch to Richmond for indulgence; for the sheriff proves that they made no objection to the levy otherwise than they desired the levy delayed until they could hear the result of their application. But however that may be, the attorney-general and auditor, even if they knew when they gave their orders that the executions were levied, did not intend thereby to discharge the levy, but merely to suspend proceedings on the executions; and such is the true construction of their acts. They did not direct the property to be restored to the possession of the defendants. A mere suspension of proceedings on a levied execution does not authorize a restoration of the property to the possession of the defendant, nor release the levy. Fisher v. Vanmeter, 9 Leigh 18. That the auditor did not intend to release the levy of the first execution is shown by the conversation which occurred between the sheriff and the auditor's clerk, when the first executions were returned, from which it is obvious that the auditor expected the money to be made on the first executions if not paid on or before the 1st of August. That the act of assembly did not operate a discharge of the levy has already been shown. So that if this view be, as it seems, correct, the release of the levy in this case has resulted, not from any act or consent of the Commonwealth or her agents, but solely from a misconception by the sheriff and the sureties, of the meaning and effect of the orders of the attorney-general and auditor and act of assembly aforesaid, and from the consequent abandonment of the property by the sheriff, and conversion of it by the sureties to their own use. In this view of the case, the right of the Commonwealth to sue out the new executions, would, if possible, be still more manifest.
In regard to the last assignment of error, which was not relied on or noticed, if it was not in fact withdrawn, in the argument, to wit, that the judgments rendered against Walker, Keen and Withers at one time, and the judgments rendered against Watkins at another time, the first process not having been executed as to him, are not joint judgments against all the said parties, whereas the executions are against all the said parties jointly, and therefore do not pursue or correspond with the judgment. If that be any defect at all, it is only formal and not substantial, and has not injured, but rather benefited, the plaintiffs in error. I therefore think it is not a good ground for reversing the judgment, especially as it does not appear that the objection was taken in the court below. The Commonwealth had a right to have her motion against the sureties continued until the notice was served on the principal, and then to take a joint judgment against all; or she had a right to take several judgments against the sureties and the principal, as they were respectively served with notice, as she did; and she might lawfully have sued out several executions on the judgments as they were obtained. But she chose to wait after getting judgments against the sureties until she had also gotten judgments against the principal in the joint proceeding against all, and then to sue out joint executions against all. I can see nothing objectionable in this, and certainly nothing of which the plaintiffs in error have any reason to complain.
In regard to the right of the Judge in vacation to give the sheriff leave to amend his returns; there can be no doubt, I think, but that he has that right, as incidental to the right expressly given him by the Code, chap. 187, § 23, to hear and decide on in vacation, a motion to quash an execution. A return on a former execution is generally very material evidence on the hearing of such a motion, and it is often important, in the course of the proceedings, to permit the sheriff to make or amend his return according to the truth of the case, and with a view to its effect upon the decision of the motion. Such permission has always been given by our courts. Bullitt's ex'ors v. Winstons is an instance of this kind. When, therefore, the statute gave to the Judge in vacation power to quash an execution, it gave him also, by implication, power to permit the sheriff to make or amend his return, as the case may be, on the former execution, and I think the Judge did not err in permitting the amendments in this case. But whether we look to the original or the amended returns, the result will not be varied. In either case, we must look also to all the facts of the case as contained in the record, and decide accordingly. Ward v. Vass, 7 Leigh 135. There is, indeed, no material conflict between either of these two sets of returns and the other facts of the case.
I am of opinion that there is no error in the judgment, and that it ought to be affirmed.
The other judges concurred in the opinion of MONCURE, P.
JUDGMENT AFFIRMED.