author: Hithcock, J. Saffold, C. J.

text:
    M’RAE and AUGUSTIN versus M’LEAN, for use, &c.
    THE QUESTIONS IN THIS CAUSE.

      As to a creditor*slienin attachment; and the effect of a replevy bond thereon.

      As to a description, in pleading, of the name of an obligee in a bond.

    1. The giving of a replevy bond, under the attachment laws of this State, does not discharge the lien first acquired on the property, under the attachment.
    2. So, it is a good plea by the sureties, to a replevy bond in attachment, in a suit against them thereon, that the sheriff was notified to retain the property in his custody, by virtue of the proceedings under which it was attached; and that he delivered possession thereof to a stranger, who eloigned it from the State.
    3. An averment, that one promised to pay the plaintiff, “by the name and description of Duneari>'> M’L., &c. is sustained by the production of a bond, made payable to “D. ” M’L., &e.
    In error from Autauga Circuit Court.
    This was an action of debt upon a bond, which had been executed bj the plaintiffs in error, to the defendant, as a replevy bond in attachment. ' Certain slaves, the property of one Thomas J. Augustin, had been attached by one Watson, and replevied by Augustin, who gave the usual bond to McLean, the Sheriff, with the plaintiffs as sureties, conditioned for a return of the slaves, or a payment of any judgment rendered in the case.
    The declaration, after setting out the bond in. a formal manner, assigned, as a breach of the condition, the non-payment of the judgment rendered in the cause, and a failure to return the property. In defence, it was plead, first, that the defendants ought not to have been charged, &c., because they said, that while the said sheriff held the said slaves in possession, at the suits of sundry creditors of said Thos. J. Augustin, which had been commenced by attachment, said defendants then and there requested, and notified, said sheriff, to retain said slaves in his custody, by virtue of the said attachment, levied on them by the said Watson, and under which the defendants were bound, &c., and that the said sheriff had after-wards delivered the said slaves to a stranger, who had eloigned and removed them from the State, &c.: and, second, performance of the conditions of the bond sued on, &c.
    To the first plea, the plaintiff demurred; and to the second replied and took issue.
    On the trial, the court below sustained the demurrer to the first plea, and judgment on issue was had for the plaintiff.
    The plaintiff having produced the bond in evidence to sustain his action; it appeared that the same was made to “D. M’Lean,” and it was objected on the part of the defendants, that this bond did not sustain the averment, of a bond made to “Duncan M’Lean,” as set out in the plaintiffs’declaration: but the Court held the bond proper evidence under the averment, and so it was read to the jury; and the defendants excepted.
    The plaintiff having also submitted, as evidence, the judgment and execution in the attachment cause, and proved that no property could be found, the defendants requested the Court to charge the jury, that a notice to the defendants to produce the property, and a demand of it, were necessary to have been made either by the plaintiff in the attachment, or by the sheriff; but the Court refused so to charge, and informed the jury that it was not essential to prove more than the execution, in the hands of the sheriff, and diligence by him: to which the defendants also excepted. And a writ of error was taken to this Court.
    The cause was argued by Mr. Goldthwaite for the plaintiffs in error.
   Hithcock, J.

This was an action of debt, brought by the defendant in error, in the Circuit Court of Autauga county, against the plaintiffs in error, upon a replevy bond in an original attachment, by the plaintiffs in error, as securities of Thomas J. Augus-tin, whose good were attached at the instance of one Isaac C. Watson, for whose use this suit was brought. The bond appeals to haye been given in pursuance of the act of 1818, relating to attachments against absconding debtors, the attachment having issued prior to the act of 1833, consolidating the attachment laws into one act, as the bond appears to bear date the third April, 1830.

The condition of the bond, after reciting the attachment, and the levy by the sheriff, upon certain slaves, the property of the defendant in the attachment, provides,that if the said Augustin, (the defendant,) or the said M’Rae and Augustin, (the securities,) or either of them, in case judgment should be rendered against the said Augustin, should, immediately thereafter return the said property to the sheriff, or pay and satisfy such judgment as should be rendered against said Augustin, then the bond should be void.” The breach assigned is the nondelivery of the slaves, or the payment of the money.

The defendants pleaded, that on the third day of January, 1831, the sheriff of Autauga county, had the said negroes in his possession, at the suit of sundry creditors, against Thomas J. Augustin, commenced by attachment, and that the said defendants, then and there, requested, and notified, the said sheriff, to retain the said negroes in his custody, under the terms and by virtue of the said attachment, heretofore issued by the said Watson, mentioned in the plaintiff's declaration, and in the writing obligatory aforesaid, and in the condition thereto. That the ' sheriff afterwards, to wit, on the day and year aforesaid, delivered the said negroes to one Josiah Haic, who eloigned and removed them from the State.

To this plea the plaintiff demurred.

There was anbther general plea of performance, upon which issue was taken:

The Court below sustained the demurrer, and a verdict and judgment were had in favor of the plaintiff below, and the case has been brought here for revision.

The question which is distinctly presented by the demurrer in this case, is, whether the giving of this bond thereby destroyed the lien, which the attaching creditor had acquired by virtue of his levy, so as to subject the property to a subsequent levy, by other attaching creditors; or whether, notwithstanding the bond, the lien continued, so as to discharge the defendants upon their giving the sheriff notice, as set forth in the plea. If the lien continued, it cannot be doubted] that the condition of the bond was substantially performed. If not, then the defence is insufficient, and the defendants were liable for the amount of the judgment in the original attachment.

This case came before the Court at the last term, and the Court then decided that the lien was discharged, in which I then concurred. Upon an application, a rehearing was granted, and the cause was continued to this term. It has again been argued— this argument, together with the authority produced, and my own reflections, have convinced me that the opinion I then entertained, was wrong. I now entertain the opinion that the lien which the attachment had acquired, was not lost by giving the bond by the defendants.

This being my opinion, I cannot hesitate to avow it, though I do so with great deference to the opinion of the Chief Justice, who still continues to entertain the opinion expressed at the last term. As the other Judge concurs with me in this opinion it becomes my duty to give the reasons which have led us to this result, with all convenient brevity.

The fourth section of the act of 1807, which was the first general law regulating the issuance of attachments, after pointing out the manner in which the sheriff shall attach the goods of the defendant, declares that the “goods, money or effects, so attached, shall remain in the officer’s power, and be by him secured, in order to answer and abide the judgment of the Court in the case, unless the garnishee shall give security for the same. And, by the fourteenth section of the same act, it- is made lawful for the defendant in the attachment, at any time before final judgment entered, or writ of inquiry executed, upon giving special bail, to replevy the estate so attached, and plead to issue, so that the plaintiff be not there by delayed of his trial.

Without enquiring what, kind'of bond the garnishee, under the fourth section, should give, we are all agreed, that if the property remains in the hands of the sheriff until final judgment, the levy of the attachment gives such a lien as will continue to subject the property to the payment of it, to the exclusion of all other claims, or subsequent attachments; and, I presume there can be no doubt that the sheriff could proceed to sell the property, by virtue of the levy, without any writ of fieri facias, or venditioni exjpo-nas.

The lien created by the levy, diverts the property, for the time being, out of the defendant, and gives the sheriff a special property in it. It is- taken into the custody of the law, and is “to abide the judgment of the Court in the case,” and must be sold as in ordinary cases, when judgment is rendered in favor of the plaintiff in the attachment.

It is equally clear, and it is also admitted, by all, that if the defendant should appear and give special bail, he might take the goods from the sheriff, and thereby discharge the lien. The person of the defendant was substituted for the goods; the case proceeded as in the ordinary case of cap. ad responden-dum, and the bail might discharge himself by surrendering the body of the defendant.

Thus the law stood until 1818, when an act was passed which prohibits, the replevying of the goods, in cases of absconding debtors, “ unless the security in the replevy bond, should undertake to return the specific property attached, or pay and satisfy the judgment which should be rendered against the defendant.”

This act was undoubtedly intended to give additional security to plaintiffs in attachmdnts, as against absconding debtors. The goods were still subject to be replevied, but the conditions imposed upon the security were much more burdensome, and subjected them to much greater liabilities. The act does not, however, subject the securities absolutely to the payment of the judgment. It provides a contingency upon which the bond might be discharged, which which was to be by returning the goods to the sheriff, and thereby placing the plaintiff in the same condition he was, when the levy was first made, and the lien created. This condition is one highly favorable to the securities, and ought not to be lost sight of in construing the statute.

The counsel for the plaintiff in error contends, that the principles which apply, in preserving the lien, in cases of forthcoming bonds, when property is taken in execution upon judgments, are applicable to this case, and herelifes principally upon the decision in the case of Lord vs. Ramsey, reported in 3 Munford, 417.

In that case, the security in the forthcoming bond suffered the property to remain with one Moore, who subsequently suffered the defendant to deliver the same goods to the same officer in discharge of his person in custody upon a car sa. in favor of a third person, subsequently issued, but before the day for the delivery of the goods, in the forthcoming bond, had arrived. The majority of the Court, Judges Roane and Fleming, (JudgeCabell, contra,) held, that the lien was not destroyed by giving the bond, but continued until lost by the non-delivery of the property by the defendant, or bis securities, on the day of sale. I understand that the correctness of this decision is not questioned, by any of us, in this particular case, but, by a part of the Court, is thought not to be applicable to the case of a levy under an original attachment.

I will here remark that the term replevy, in its general sense, includes every return of property levied on, for whatever cause, and under whatever conditions the same may be subject to, whether the lien is continued or discharged, and that the question of lien or no lien, depends more upon the nature of the stipulations entered into in the bond, than upon the particular circumstance which may attend the case. All our injunction and writ of error bonds are reple-vy bonds; yet there is no lien retained on the property attached, the conditions being to pay and satisfy the judgment or decree of the court, whenever made. I therefore readily admit that some of the reasons urged by Judge Roane, in the opinion given by him in the case alluded to, are not strictly applicable to the facts of the case before us. But I think the principles to be extracted from that case, are applicable to this, and that the facts in which they differ do not authorise us to come to a contrary conclusion.

He lays down certain propositions as the basis of his reasoning, most of which appear to me to be applicable to this; such as—

1. That an execution is the life, end, effect and fiat of the law; that it differs from an action,-which continues only until judgment is rendered. A writ of attachment, under our law, is, I apprehend, in this respect, equally comprehensive and efficacious, for, by it, the goods are seized, and held till judgment, and then sold.
2. The law subjects the sheriff to an action, af the suit of a creditor in respect to the goods taken, and he may maintain trespass or trover for them, against a wrong doer: such would be the case when goods are taken by the sheriff on attachment.
3. That by the commmon law, the fi. fa. had relation to its test, and bound the property from that time, and that though this lien is restrained by statute to the delivery of the writ to the sheriff, it will, after delivery, prevent all intermediate sales: though this does not apply to a writ of attachment, before a levy, yet it does not militate against the force of the lien after the levy is made.
4. That the general lien on the debtor’s goods, is relieved by the particular levy, and that consequently the debt is discharged, and the defendant released from the judgment. The same rule, I apprehend, would apply to a case of a levy by an original attachment, unless otherwise directed by statute. The plaintiff having selected his remedy, must abide by it. But; whether it does or not, the admission of the contrary would not prove, that the continuance of the lien, is incompatible with the giving of the bond.
5. That by the seizure, the property is divested out of the defendant, and in abeyance; and, being so divested, it will require, (he presumes,) clear and explicit acts, or provisions of the law,' to revest the same in him, before tije execution has performed its office. This positional think, applies with all its force,- to a levy under a writ of attachment.
6. That an execution is an entire thing, and if once lawfully begun must be completed, and that when it” has once begun, it cannot be suspended.— This principle, he remarks, would equally reprobate every suspension of the lien, (which is the life of the execution,) unless there be positive words to that effect; and especially, if there be other grounds on which to account for the custody of the goods seized, being granted to the defendant.

It may be assumed that a writ of attachment performs not only the office of commencing the proceedings, but, by virtue of it, all the subsequent proceedings are upheld, and brought to a conclusion.— It commands the sheriff to levy on the goods of the defendant, to pay the specific debt, and by virtue of this power, all the proceedings, to final judgment and satisfaction, are carried out; and what is said by Judge Roane, as to the suspension of the lien, applies equally to this as it does to an execution.

Having premised these principles and positions, he examines, at some length, the several statutes of Virginia, relating to forthcoming bonds. He shows that the lien, having been created by the levy on the identical goods siezed, there is nothing inconsistent with the continuance of it, though the debtor has permission to hold them. It is true that he lays some stress upon the shortness of the time between the levy and the sale ; but he does not derive his argument in favor of the lien from that source; neither does he intimate that his opinion would be changed if the time were greater. He expressly says, that, “the latter right, that is, the right to the possession by the defendant, is merely an exception out of the former, for the convenience of the debtor, and whose custody is, for the time, the custody of the sheriff.” The two interests may well exist together: the one respects the right, the other the possession of the property. It is acknowledged, he says, on all hands, that if the goods are delivered, the sheriff is to proceed to sell them. He is to proceed although ho new lien, or seizure, on them, is revived or created, and although no power to sell them is given by the act; when is it, then, but by virtue of the old lien, that the sheriff is authorised to proceed to sell?

It appears to me that'the whole of this reasoning is applicable to the case under consideration. The convenience of the debtor requires it, in one case as well as in the other, and though the time between a levy and a sale, in the one case, may be longer than in the other, yet I do not perceive any objection to the application of the principle on that account. If the lien can be preserved in abeyance for ten days, it can for as many months; and if, as is admitted, the object in the two cases is the same, why should not the same principle be applied to each. That property may, in this way, be incumbered for a long time, may be an inconvenience, but that does not alter the rule; for it will be so, if the property is not replevied. This is one of the consequences which attaches to all legal proceedings, and applies to injunctions in Chancery as well as to cases of this kind.

It is true, that in the case of an execution, the debt has been ascertained and matured into a judgment. But the presumption of law is in favor of the justice of the claim, in the case of an attachment. Oath is required to be taken of the debt, a bond of indem-nita is to be given, and justice, we are bound to pre-sante, will be administered without delay. With these circumstances to sustain it, I do not think we can presume any thing against an attachment.— At least, not enough to authorise us to change the rule of decision; if there is no other ground, for it.

Judge Cabel, in his dissenting opinion, derives an argu ment against the lien, from the fact that the sheriff, during the stay, cannot interfere with the goods, and he asks what use there is in preserving the lien, when it cannot be asserted except by the voluntary act of the debtor? This, I think, is well answered by Judge Roane, by saying that it is to enable the sheriff to sell the goods, if delivered, and to preserve his right to them if they are not And, although it is true, that, in Virginia, since 1769, the forthcoming bond, after forfeiture, has the force and effect of a judgment, and from that time, after forfeiture, the lien is admitted to be lost, yet, he maintains, the same principle as applicable before forfeiture, in order to enable the sheriff to sell them, if delivered to preserve the principles and symetry of the laws, and to hold the debtor’s goods liable to his debts,.if he, or his securities should deliver them, in ease of his securities.

He asks, in his turn, why the lien is not to continue? and suggests, that it must be to enable a debtor to saddle an innocent security with a debt, due by himself, by releasing the proper fund for that purpose, or to enable a subsequent creditor to get the advantage of a prior one, who has been diligent; for such must inevitably be the consequences of the principle, and, by construction and remote implication, injure securities, under a provision introduced for the debtor’s convenience.

The condition of the bond contemplates a return of the property, for the benefit of the securities, and I think, the language of Judge Fleming is quite applicable to this part of the case. He says, that, “in his conception, the law cannot step in by its own officer, to arrest and render impossible, to frustrate or obstruct, what the law itself requires, or permits, to be done; especially, when it may tend to the distress and irreparable injury of an innocent third person.” This appears to me, to be the proper view of the case, and I cannot agree with Judge Cabel, that before forfeiture of the bond, the property can be either sold or levied on, by another attachment or execution.— That the property is to be,at the risk of the debtor and his securities, pending the suit, I admit: that they should then have the privilege of returning it, the bond expressly stipulates, and that no principle of law, which will permit any other disposition of it inconsistent with the lien, is to be tolerated, I do not hesitate to maintain.

I do not contend that securities are to be favored in this, more than in any other case; but that the law is to be so administered to them, as to protect their obvious rights, none will deny. They are not officious intermedlers in other men’s business. The law contemplates their interference for wholesome purposes, which are not less beneficial to the plaintiff than to the defendant, and it does not seem just to me to turn round and upbraid them for their imprudence for what may, and often will, turn out to their injury, if the principle of continuing the lien is abandoned.

Again, how would the principle stand when applied to forthcoming bonds, given, when property levied on by execution, or attached in an attachment, is claimed by a third person. Here the bond contains a condition to return the property, if the claim-antis cast, or to pay the debt, and the claimant is entitled to the possession of the property, pendente lite. Is the lien lost here? If so, what becomes of the securities? Are they to suffer? If the property is taken in execution by another creditor, either of the original debtor or of the claimant? This must be the consequence, on the principle that the lien is lost.

This view of the case may be farther illustrated, by supposing two attachments to be delivered to the sheriff, at the same moment, upon which a levy is made on property only sufficient to pay one, a case which often happens. Here, if no replevy is made, it is clear that each attachment is entitled to its share of the proceeds, though judgment may be recovered on one, a term or more before it is on the other. — • But suppose the property is replevied, and judgment is obtained in one case, a term before the other. If the lien is lost by virtue of the replevy, and the property is delivered upon the first, it is clear that it must all be appropriated to that, and when' the other is matured into a judgment, the securities, not being able to comply with the condition of the bond, must pay the whole amount of the judgment. Or, if the delivery on the first bond will be a sufficient discharge of the security, the plaintiff in the judgment last obtained, will be without any remedy. If, however, the lien is continued, the delivery of the property upon one, places it in statu quo, and it must be appropriated equally, according to the original liens.

Other cases might be put to show the manifest injustice of the doctrine, which denies the continuance of the lien.

I have hitherto treated the case in reference to the provisions of the act of 1818, which is confined to cases of absconding debtors, and which does not prescribe the mode of proceeding in case of forfeiture of the bond. By the act-of 1833, this form of bond is extended to all cases of attachment, and the act goes farther, and directs the sheriff to suffer the property to remain in the possession and at the risk of the defendant, and declares the bond to have the form and effect of a judgment in case of forfeiture. I consider, there is no difference, in principle, between the two acts; that so far as the question of the lien is involved, the result is the same, and that, though the act, as it is now in force, assimilates itself more, in all its forms, to the act in Virginia, which has been' the subject of comment, yet, that the principle I contend for, derives no aid from that circumstance.

There is one feature of the act of 1833, which it is proper to notice. That act, while it extends the provisions of the act of 1818, relating to the condition of the bond, to all cases of attachment, also retains the provision of the old act as to giving special bail, thereby giving the defendant his'election to make either kind of replevy, and although it is admitted that these provisions are open to the defendants election, and that he may, when two cases are pending against him, give the one kind in the one case, and the other in the other, and thereby give one a preference over the other, yet this does not alter the view which I take of this kind of bond, for the same result may grow out of the case, whether the lien is decided to be retained or not, as he may elect, to which case he will return the property, after judgment, if the lien is decided to be lost; or he may elect to which he will give the lien, when he comes to give his bonds. For this inconsistency in the law, if it be such, we are not responsible. It is for legislation to correct it, if it require it.

I consider the following propositions as sustaining the propriety of the lien :

1. The object of the attachment law is to enable the plaintiff to seek a recovery of his debt, out of the goods of the defendant. i
2. The levy of the writ, on the goods, gives a lien, which divests the defendant of his property in them, and gives a special property,in the sheriff.
3. The lien having been once created, is not to be discharged, except by positive enactment.
4. That the condition of the bond authorising the redelivery of the property, is given by way of proviso, and operates as an exception, and does not impair the lien, but only impedes its operation pending the suit, and therefore, that the defendant is not restored to his right in the property, but has only a right of possession.
5. That this class of cases is entirely distinct from ■thosebonds that require the obligors to assume a direct liability to pay the debt, such as stay bonds, in Virginia and Kentucky, and our injunction and writ of error bonds.

The result of which is, that, as in this case, the plea avers that the property was restored to the sheriff, before forfeiture; and, notice given to him, to apply it to the payment of the judgment against Augustin, the proviso in the bond was complied with, and the securities discharged; that the plea should have been sustained on demurrer, and that, therefore, the judgment must be reversed. •

Saffold, C. J.

An action of debt was brought in the Circuit Court, by Duncan M’Lean, as sheriff, for the use of Watson, against the plaintiff in error, on a replevy bond, dated third April, 1830. The bond recites the issuance of the attachment, in favor of Watson, against the estate of Thomas J. Augustin, and a levy on certain slaves, which had been returned to Augustin, in his lifetime, he having been principal in said bond.

The condition expressed in the bond, was for the return of the property attached, or payment of the debt, in the event of a judgment for the plaintiff, as prescribed by the statute of 1818, in case of absconding debtors. The declaration alleges the execution of the bond in favor of-the plaintiff, “by the name and description of Duncan M’Lean, sheriff of said county, his heirs,” &c.; then describes it as above, and states the further circumstances relating to the attachment, except that it does not disclose the particular cause of it; whether for the non residence, removal, or absconding of the debtor. It charges the rendition of the judgment in favor of Watson, and that a scire facias issued thereon, which was put into the hands of said M’Lean, as sheriff, and by him afterwards delivered to Shackelford, his successor in office; yet that the defendant failed to pay the judgment, or deliver the property to either sheriff, though often requested, &c.

The defendants pleaded — ■

1. That after the replevy of the property as aforesaid, the sheriff of said county had the same negroes in his possession, at the suit of sundry creditors, against said Augustin, commenced by attachments,- and the said defendants then and there requested and notified the sheriff to retain them in his custody, under the terms and by virtue of said previous attachment. But he afterwards delivered them to one Josiah Huic, who has eloigned and removed them from the State.
2. The defendants also pleaded performance of all the conditions of the bond.

The plaintiff demurred to the first plea, and took issue on the second.

On hearing of the demurrer, the first plea was overruled as insufficient. ,

On the trial of the second plea, a verdict was returned for the plaintiff below: at which time a bill of exceptions was ‘taken, shewing that the bond, when introduced as evidence in support of the action, acknowledged an indebtedness to “D. M’Lean, sheriff,” &c. instead of “Duncan M’Lean, sheriff,” &c., as described in the declaration; and that for this variance the defendant objected to the reading of the bond as evidence, but the objection was overruled, and the evidence admitted. To which the defendants excepted.

It also shows that the plaintiff introduced, as farther evidence, the judgment and execution, with a return upon the latter of nulla bona; also, the origin^al writ of attachment as described in the declaration ; that he farther proved that Shackelford, as sheriff, while the execution was in his hands, endeavored to. fin.d property, and could not; but that there was no farther proof of notice to the defendants to produce the property, or of any demand having been made. That on this evidence the defendant moved the Court to instruct the jury, that demand and notice were necessary to entitle the plaintiff to recover; which instructions the Court refused, and charged the jury that it was only necessary to prove that the execution was in the hands of the Sheriff, and diligence by him. To this also, the defendants excepted.

The matters assigned as erroneous, are the following:—

1. The overruling the first plea on demurrer.
2. The Court admitted the bond in evidence.
3. The instructions given to the jury; and the refusal to instruct differently, as requested.

1. The first assignment presents the question whether the replevin bond operated as a release of the property, so as to discharge the lien created by the attachment.

I would premise, that, as there appears no available objection to the bond, as a statute bond; as it was declared upon as one regularly taken by the sheriff, in permitting a replevy of the attached property, and is in the form prescribed in cases of absconding debtors, a sufficient presumption exists that such was the ground of the attachment, to supersede the necessity of any more definite averment of the fact If the fact were otherwise, it would'have been available as matter of defence. Where the bond has not been taken, pursuant to the statute authorising the replevy, and has been sued upon merely as a l’dW bond, as in the case of Sewall vs. Franklin, et al. (decided at last term,) and the non-delivery of the property has been assigned as the breach, the amount of damages sustained cannot appear, without a shewing of the inducement for the bond, and the consequences of the non-performance of the condition. These facts could not. be required to be proved, unless averred in the declaration. In such cases it is necessary to aver them, but not so in a duly executed replevy bond, where the plainliff has the benefit of the legal intendment, created by the authority under which it was taken, together with the presumption that the officer taking it has duly performed his trust.

I have no hesitation in saying, that the levy of an attachment on personal property of the defendant, creates a lien upon it, which, if nothing be done to destroy it, such as a replevy will continue, until it be appropriated in satisfaction of the debt. That such is the effect all attachments of property, as well on the ground of removal, or non-residence of the debtor, as of his absconding. At the time of the institution of this suit, it was only in cases of the latter kind that bonds for the return of the specific property were authorised. In cases of the former kind, it is entirely clear that a replevy of the property discharged the lien, for it was effected by giving special bail, merely; thereby placing the defendant, his securities and the plaintiff, in the same relation to each other, as if the suit had been commenced and the bail required by the ordinary process.

By the statute in force at the institution of this suit, different security was afforded to the creditor in the event that his debtor absconded. In such case the property could be replevied only on bond and security being given for a return of the specific property, or the payment of the judgment that might be rendered in the suit.

To what extent any of these principles might have been vaiye(j by the subsequent statute of 1833, it is unnecessary to inqure, as this case must be governed by the previous acts. It is, however, worthy of notice, that, by this latter act, the defendant, his attorney, agent or factor, has his election, in all cases, to replevy, as was done in this, or by merely giving special bail.

If, prior to the levying of the subsequent attachments on the property, which placed it a second time in the hands of the sheriff, as averred by the plea, the .former lien had been discharged, so that it had become subject to other liens, or to the disposal of the defendant, it necessarily results that the notice and request of the securities that it should be retained for the satisfaction of this demand, could not have the effect to restore the lien, or to influence the duties of the sheriff in relation to it.

The case of Harrison vs. Wilson, involved a ques-tion of lien, bearing a strong analogy to the present. It appeared that one Thomas, against whom Harrison, as deputy sheriff, held a fieri facias, at the time, sold and delivered a quantity of iron to Wilson. Af-terwards the execution was replevied by Thomas and several persons as his securities in the replevy bond. For the purpose of indemnifying his securities, Thomas had executed to them a mortgage on other property. Subsequently, the replevy bond having become payable, a fieri /«aAsissued thereon, against the estates of Thomas and his securities., and in virtue thereof the iron was taken and sold by Harrison, who still continued deputy sheriff. For this, Wilson brought his action of trespass, against Harrison. The replevy was authorised by a statute of that State, on bond and security being given by the defendant for payment of the judgment, within three month, which if forfeited, was to have the force and effect of a judgment, and execution might issue thereon, against the defendant and his securities; and be endorsed by the clerk, that “no security shall be taken.” It was further provided, that after the execution of such bond, the estate of the defendant should be released, or returned to the defendant. It does not appear that the first execution, in that case, had been actually levied on the iron; but, as the lien had been created, the principle is considered the same, so far as is material to our present inquiry.

The question, whether the lien created by the execution which issued on the forfeited forthcoming bond, related back to the date of the former, .so. as to overreach the sale of the iron, as the former had done; was brought before the Supreme Court of Kentucky. That Court decided, that unless the iron was purchased by Wilson with a fraudulent intent, it was perfectly clear that the sheriff was not justifi-ble in taking and selling it under the execution.— That the lien under the first execution was discharged by the replevy bond; and, that that created by the second could not be so translated and attached to the former as to justify the sheriff.

If the case referred to, be in principle distinguishable from the one under consideration, it must be alone for the reason that in this, the condition of the bond was in the alternative for the return of the property, or the payment of the condemnation money— in that for the payment of the judgment simply.— But I think it will appear, in the course of my remarks, that this difference cannot vary the continuance of the lien.

The same principle was fully investigated in the case of Lusk vs. Ramsey, which has been referred to, and mainly relied upon by the present plaintiff in error. That was the case of a forthcoming bond, given for the delivery of goods . on the day of sale.— Ramsey, one of the securities, had explained to Lusk the defendant in the execution, 4n the presence and hearing of the sheriff, who had the goods in his possession, that they were to remain in the possession of himself and the other securities, as an indemnity to them until the day of sale, to which Lusk had consented,'and, after the execution of the bond, placed the property in their possession, with the key of the room in which it was stored. Lusk retook the property from them, and delivered it to the same sheriff, in discharge of his body from a second execution in favor of a different plaintiff, and the same being sold under the second execution, the securities were prevented from delivering it as required by the condition of the bond. After which, Ramsey alone having been proceeded against on the bond, he filed his bill in Chancery against Lusk, the sheriff, and others concerned, stating the circumstances; charging fraud and combination, and praying a perpetual injunction of the proceedings against him.— The Court decided that the prior lien had not been discharged by the forthcoming bond; that it continued until the forfeiture of the bond, but no longer: consequently, that the security had a right to deliver the property on. the day of sale, if he could then peaceably obtain possession of it. It was also held, under the circumstances of that case, that the security was entitled to relief. To these conclusions I cheerfully assent, on the ground, that there was a valid agreement by which the security was placed in possession of the property for the purpose of his indemnity. It is to be observed however, that the question there, related to a forthcoming, not a replevy bond; to a bond the object of which was merely to insure a re-delivery of the property, taken under execution, within a short time, on the day of sale. The nature of the procedure clearly contemplated an early sale of the same, property, in satisfaction of the identical final process. That question was, therefore, essentially different from the one before us. — * Here, after the replevy, no sale could be made of any of the defendant’s property, until the termination of the suit, then just commenced; the sale could at no time be made unless in the event of a recovery in the attachment suit, and a failure to pay the judgment without; nor was there any authority, in the events supposed, for the issuance of a venditioni ex-* ponas, for the sale of the specific property.

But in the Virginia case, Lusk vs. Ramsey, the Judges also examined the doctrine of liens, under their replevy bonds, as authorised by statute, similar to the statute of Kentucky, to which I have referred, and by virtue of which defendants could obtain a stay of execution for three months. It was unanimously conceded by that Court, that such replevy bonds did release and discharge the property previously levied upon. They justly considered the true policy ofthelaw to be, not to permit, such property to be bound, and its alienation fettered or restrained; that the seeurity in the replevy bond was responsible, generally for the satisfaction of the debt, either by means of the same, or other property or money.— They also held, in that case, that after the forfeiture of even a forthcoming bond, the lien was discharged.

The effect of a replevy, in an attachment case, is much less favorable to the preservation of the lien, than either of the others noticed, for the reasons already alluded to, i. e. the uncertainty, as respects the ultimate recovery, the great lapse of time necessary to determine it, and the danger and inconvenience to the community, from having the titles to personal property so long incumbered. The securities embark voluntarily, and may, if thought necessary, require an express lien on the same or other property, for their indemnity; otherwise they should, as other securities, risk both the ability and integrity of their principal; except so far as law or Chancery will relieve them, on timely application, against dagger not previously provided against.

As the case referred to of Lusk vs. Ramsey is to govern the decision of this,I will investigate its principles more thoroughly, to test its authority, and see bow far Judge Roane’s reasoning is sustainable and applicable to this case. It is to bs- views, merely concurred in by Judge Fleming, and mostly on questions inapplicable to the case before him, that I object. That his opinions are entitled to high respect, I am free to admit On this principle, however, he was opposed at the time, by a very full and learned opinion of Judge Cabel, the three constituting the Court. As already remarked, these opinions were given in a case so far different from this, as is an execution from the leading process in a suit. Forthcoming bonds are taken to alleviate the force of executions, which even before levied acquire liens on all the defendants property. Not so in the case of attachments, they create no lien until the property be actually seized, then it is coufmed to the articles taken. The balance of the defendants property, has not been, nor can it be, affected by the suit, during its pendency.— After the termination of the suit, if judgment be obtained, I apprehend an execution may issue upon it, against all the defendant’s goods and chattels, lands and tenements, as in ordinary cases. Such would, doubtless, be the correct course, where the property has been replevied. An execution, in virtue of which alone, a forthcoming bond can be taken, cannot issue until the debt or demand has been definitely ascertained by the final adjudication. The replevy bond is intended as a security for a claim which may never be established; or if proved, satisfaction is not contemplated in less than one or more years from the time of the replevy, and a half a dozen may intervene, during which the defendant has the absolute use, control and disposal of the property. I consider his right to sell it unfettered by the slightest lien, undeniable — all admit that a mere failure or refusal to deliver it on the day of sale, operates asa discharge of the lien, if any existed.

It would appear to me an anomaly in jurisprudence, that the debtor should enjoy the full benefit, and unrestricted right of disposing of the property during the pendency of the suit — a perfect discretion whether this property shall go in satisfaction of the attaching creditor’s debt, yet that it shall be exempt, during all this(time from the claims of other creditors.

In the case referred tp, Judge Roane seems to admit, even in case of the Virginia forthcoming bonds, that the lien is destroyed, that the lien is destroyed, except during “ the mere pittance of time comprised in the day of sale;” but contends that this is necessary “ to enable the sheriff then to sell; to preserve the principles and symetry of the law, and to hold the debtor’s goods liable to paj^ his debts, [if he or his securities should deliver them,) in ease of his said sureties.”

This I take as a farther admission that the sheriff could not reseize the goods, even on the day of sale, unless delivered to him; and I deny the authority of the security to deliver the property, unless in virtue of a contract with the principal to that effect, or of his consent in someway given. The common law authorising the bail, on the authority of a bail piece, to arrest and surrender his principal, does not apply to the delivery of attached property. If the necessity of it were admitted to be the same, it is very clear that neither the common or statute law has conferred the power. The Chancellor, whose decree was affirmed in Lusk vs. Ramsey, admitted the validity of the sale of such property by the defendant, if bona fide, and to a vendee, without notice of the execution and forthcoming bond.

On this point Judge Cabel, (in the same case,) remarks, that, “if the sheriff, by receiving the delivery bond, parts with the possession of the goods, has no right to seize them, is in no manner liable for them, can bring no action concerning them, nor take any measures to compel their delivery, it would seem to be a necessary inference, that the execution retains no vestage'of lien on the goods; ‘there is no person who can make title to them by virtue of the execution/ and of course the debtor is restored to all his rights over them.” He further says, “I presume there can be no doubt that the principal in a delivery bond, has the legal right, which no court can obstruct, to forfeit his bond, by failing to have his property forthcoming on the day appointed for its delivery and sale. He incurs thereby the penalty annexed by law, and that is all that, others can require of him. If he has the right to hold back his property on the day of sale, by means whereof the bond becomes forfeited, and the execution is at an end, cui Iona, and on what principle shall he be prevented from making any disposition of it he may please, before the day of sale? This power of previous disposition of the property forms, in my opinion, one important ingredient in 'the policy of our laws on this subject, and has often been exercised to the great benefit of defendants, whilst it can never injure plaintiffs in execution. He also insists there is nothing in the case of securities of this kind, to distinguish them from other securities, that having arrested the process, (even in case of execution,) by their own voluntary act, by their confidence either in the integrity of the defendant, in delivering the property, or in his ability to pay the debt, or to indemnify them for the failure, they have no right, to complain that they have been disappointed and defrauded; that the loss should fall on those who have imprudently trusted the defendants, and not on his just creditors, who but for their interference, might long before have received their debts. The same may be said with equal propriety in this case.

It is important tq observe that, in another material point, the principle of Judge Hoone’s opinion does not apply to cases like the one under consideration, to any replevy of atiachtd property. He admitted, as I have shewn, that the sheriff’s control over the property is revived and continued for the one day only — the day advertised for the sale of the property. How can the principle be applied to this case? — • When was the property to have been delivered ? — ■ Must it have been on the day of rendering the judgment, (should this ever happen,) on the day of the receipt of the execution by the sheriff, (if casually known in time,) or should it be delivered on some day when the property might be advertised for sale? Neither proposition is sustainable: not, surely, either of the two first. The latter, I think, is fully answered, by saying, the execution cannot be considered as levied, or binding, on that or any other property until the sheriff receives it: moreover, a delivery of the attached property to the sheriff, after the execution has been placed in his hands for codec 'ion, or his seizure of it, or other property cf the defendant, as in cáse of an original levy, would be indispensable, previous to any advertisement for a sale. Then, which day is to be considered “ the mere pittance of time,” during which the sheriff’s control over the property is revived and continued.

The language of our statute is, that on the execution of the replevy bond, in case of attachment, “the officer shall suffer the property to remain in the possession, and at the risk of the defendant.” This, it is true, is, in part, the language of the Virginia statute, authorising then forthcoming bonds on execution. The latter, however, defines the time that the property ip thus to remain — it is until the day of sale; a limitation inapplicable to property taken under attach ' ment, for the reasons I have mentioned. Judge Roane lays great stress on these words, in the construction of the stetute of that state. He contends they are indicative of a right in the sheriff, and inconsistent with the idea of an absolute and exclusive ownership in the debtor. He also mentions, that the omission to provide in that, statute, for the restoration of the property at the time of giving the bond, and the direction for its restoration only in the event of payment, or tender of the debt, on the day of sale, is conclusive that it was the latter, and not the former circumstance which could release the lien.

Whatever may have been the just influence of this language, in the construction of the Virginia statute, containing,both forms of expression, and providing for the satisfaction of executions, which are the end of the law, I can not ascribe to them the same tabs-manic influence, when used in relation to the replevy of property taken.under our attachment law. • But, even if the same be allowed them, so far as they .go, the same result does not necessarily follow; because, in several material respects, the language bearing on the point is different: 1st — that our statute is indefinite as to the time ofdelivery, when the other is certain, (as already shewn;) 2d — ours directs no other restoration of the property, than that provided on the execution of the bond ; nothing being expressed as the consequence of making payment on the day, similar to the Virginia direction for then restoring the property. The defendant 'would, doubtless, continue te hold it, unless he had previously parted with it: but this he would do without the agency of the sheriff, in virtue of his possession under the replevy, and his election not to suffer it sold ; and this, equally whether the money were paid or not. 3d. The bond required by our said statute, contains the condition, that the security hould return the specific property attached, or pay and satisfy such judgment as might be rendered against the defendant. The Virginia forthcoming bond is conditioned, simply for the delivery of the property ora the day of sale, at the expiration of a definite term of only three months, and this after a final adjudication of the debt.

In the case before us I recognise no authority in the sheriff to have refused to levy the subsequent attachments on the same property which had been replevied under the former, unless other property could have been found, which is presumed not to have been the case, nor do I think lie had any discretion to refuse the second replevy of the property, by virtue of which Huic obtained the possession.

As a farther illustration of the consequences of the principle to be established by -this decision, a brief notice may be taken of the existing statute on this subject, passed a few years after this bond was given, and which, consequently, does not govern it.The act of 1833 revised and consolidated the attachment law. The 11th section authorises the defendant, his agent, &c. to replevy the property in all cases of attachment, on giving bond and security, “conditioned, that if the defendant be condemned in the action, he shall return the specific property attached, and in case he fail to do so, the securities will do it for him.” The 13th. section retains the provision of the earlier statute, (applicable to attachments for other causes than the defendant’s absconding,) that “any person against whose estate an attachment has issued his or her attorney,” &c. “may at any time before final judgment entered, or writ of inquiry executed, upon giving special bail, replevy the estate so attached, and plead to issue.”

Both these provisions now apply equally to attachments for any or all the causes for which attachments can issue, and abolish the distinction between the mode of replevying in the case of absconding debtors and others; consequently, defendants in an attachment will have their election under this statute, to replevy in either form, in all cases, I can not suppose the legislature intended .to submit the discretion to the defendant by his mode of replevying, either to continue or discharge the lien : such must be the consequence of sustaining this lien.

My doctrine is, that the lien by either mode of re-plevy is discharged. If replevied in the manner this was, that the sureties are bound for the debt, in the event of a recovery against a defendant, unless they deliver the attached property, unincumbered by any subsequent title or lien, to the sheriff, after the execution shall be placed in his hands for collection. If delivered, that the ji. fa. alone, without the aid of the levy of the attachment would give him all necessary authority to sell. If, however, the debt be satisfied out of other property of the debtor, or his money, the security would, of course, be discharged, If the replevy be made by giving only special bail, it is clear the lien is discharged and the securities subject to only the same responsibility of other bail.

2. The second assignment presents the question, whether an averment of indebtedness or a promise to pay the plaintiff “ by the name and description of Duncan M’Lean, sheriff of said county,” is sufficiently sustained by the production of a bond in all other respects the same, except that the Christian name Duncan, is represented by the initial D. In considering this question,' the inquiry is natural and proper, whether any doubt or uncertainty respecting the name of the obligee exists, when Duncan M’Lean, sheriff, &c. is the plaintiff, and the declaration charges the acknowledgment to have been made to him? Would not this have been a sufficient averment of that fact? If there was reasonable certainty as to the obligee’s name, and a sufficient averment of an acknowledgment of the defendant’s indebtedness to him, the addition of the words that it was to him by the name and description of “Duncan,” instead óf D. could introduce no other or different name. The effect is considered the same as if Wm. had been inserted for William. It is true that the latter abbreviation could represent, with propriety, no other name, when D. might represent a variety of others: but here the correct description of the parties in other parts of the declaration, precludes the idea that any other was intended. The description of the obligee, I take to be this in substance, this, that the defendants acknowledged themselves indebted to the plaintiff, by the name of Duncan M’Lean, also describing him as “sheriff of said county” (the declaration having previously disclosed his proper name.) Then, if, under the circumstances, the court and jury could have interpreted the name of the obligee to be no other, there was no authority for rejecting the bond when offered in evidence. I think it could have been understood in no other light.

The case relied upon in argument to support this assignment, is Peas vs. Morgan. There, Morgan had declared against John B. Peas and George for that, “whereas, the said John'B. and George,” on, &c., made their note in writing, their own proper hands and names being thereunto subscribed, “ by the name and description of John and George Peas.” It appeared in evidence that one only of the defendants had signed the note; for this variance the defendants objected to its introduction as evidence. The Supreme court held the note to have been inadmissible. The reason given was, that the declaration contained no averment that the defendants were partners, or acted under the firm of “Jolm and George Peas;” but that the contrary was implied by the charge that the defendants made the note, “their own proper hands and names being thereunto subscribed.” That as the proof showed that only one of the defendants signed the note, it was different from that declared on.

That case is considered materially dissimilar to this. In that, the note offered in evidence was variant from the one described both in form of execution, and in legal effect, no less so than is a partnership, from an individual transaction.

An English case is given in a note to. the above, nearly resembling it, in which the variance was not considered fatal, Jones et al. v. Mar et al. There, declaration being against the drawers of a bill of change, stated that the defendants made the bill, their own proper hands being thereunto subscribed, and the bill produced in evidence was drawn in the name-of Mars & Co. It was objected that this was a fatal variance. But Lord Ellenborough, though expres-ing some doubt on the subject, refused to non suit the plaintiff. In another case, Levy vs. Wilson , it was ruled that a bill endorsed by procuration, was not evidence under an averment that the .defendants indorsed it, his own hand writing being thereunto subscribed. This latter case, admitting its authority, is also essentially different from the one before us. It may often be material, especially in England, where proof of instruments declared on is generally required, to inquire whether they were executed by the defendant in person, or by another, professing to act as his agent or attorney.

The case of Sheehy vs. Mandeville, affords more plausibility to this exception. In that case the note was drawn payable sixty days after date, and was signed R. B. Jamison. The declaration described it as a note signed by the defendant, under the name, style, title and firm of Robert B. Jamison, and omit-ed to state when it was payable. The note having been rejected as evidence on account of the variance, the decision was revised in the Supreme court.— There, the only variance insisted on by the counsel, or noticed by the Court, was that relating to the time of payment. On the well settled principle, that a promise to pay, without reference to any future time for payment, must be construed into a promise to pay immediately, the court held the variance material and fatal. It was clearly so. As no notice was taken of the difference between R. B. Jamison as subscribed to the note, and Robert B. Jamison as laid in the declaration, the latter having been given as a matter of special description, it is a fair inference that the name was considered the same, written in either form,

But, it is the language of Chief Justice Marshall, in delivering that opinion, which affords most.plausibility to this exception. When, however, his remarks are understood as referring to the facts of that case, no difficulty can arise. He says, courts being established for the purpose of administering real justice to individuals, will feel much reluctance at the necessity of deciding a cause, on a slip in pleading, or on the inadvertency of counsel. They can permit a cause to go off, on such points, only when some rule of law, the observance of which is deemed essential to the general administration of justice, peremptorily requires it.” That one of these rules is, that in all cases on special agreements or written contracts, the contract given in evidence, must correspond with that stated in the declaration.” That, “it is not necessary to recite the contract in Ticecver-ba; but, if it be so recited, the recital must be strictly accurate. If the instrument be declared on, according to its legal effect, that effect must be truly stated. If there be a failure in the one respect or the other, an exception, for the variance may be taken, and the plaintiff can not give the instrument in evidence.”

Admitting the principle, as above stated, I think, it sufficiently appears, from the views already advanced, that the names in question, in this suit, are identical: that, though one is a literal copy of the other, which is the more approved form, when attempted to be given as a special description, or inhmc verba, yet, therp is no substantial variance: the literal import and le^al effect of the description are the same, in the manner and form presented in this record.

3. With reference to the last assignment which was not particularly relied upon in argument, it only remains for me to say, that my opinion, as expressed, that the lien on the property had ceased, supersedes any inquiry respecting the necessity of having demanded the property. Under a different conclusion on this point, I should think, the question, whether the demand was not necessary before proceeding on the bond, worthy of consideration.

My own opinion is that the judgment of the Court below should be affirmed, but the majority think otherwise on the first point, involving the question of lien.

       Ala.L.21

       2 R. 493.

       Ala. L.21

       Aik. D.31

       2Mar.540

       3Mun.417

       7 John.R. 467

       2 Camp. 3045

       5 Esp,180

       7Cran.208


source: Caselaw Access Project

author: Hopkins, J.

license: Public Domain

text:
    COLVIN versus RICH.
    QUESTION IN THIS CAUSE.

      Upon the conclusiveness of a judgment in garnishment, againt the maker of a note, after notice of its transfer.

    1. The bearer of a promissory note, is not precluded from a recovery thereon, by evidence, that the maker has been garnisheed by a creditor of the payee, and a judgment recovered against him — it appearing that the maker received notice of the transfer of the note, before he answered on the garnishment.
    This suit was instituted by Rich, in Montgomery Circuit Court, and was assumpsit, upon a promissory note. The note was executed by Colvin, and was made payable to B. B. Ginn, or bearer; and Colvin resisted a recovery against him, by pleading that he had been garnisheed in respect to the amount of this note; under which he had answered, and made payment thereto.
    The bill of exceptions showed, that on the trial of the cause, the plaintiff proved, that he was in possession of the note before the service of the garnishment, and that he notified the defendant of the fact; but there was no proof, that the defendant had notice of the transfer of the note, before, the service of the process of garnishment.

    It was asked of the Court, in reference to these facts, to charge the jury, that if there was a subsisting judgment against the defendant in garnishment, rendered by a Court of competent jurisdiction — the same, while in force, and unreversed, operated as a bar to this action. But the Court held otherwise, and said, that, if the defendant, when he answered, knew, that the note was the property of the plaintiff, he should have resisted a recovery in the process of garnishment.
    And the defendant excepted.
    Argued by Mr. Goldthwaite, for the plaintiff in error; and by Mr. Dargan, for the defendant.
   Hopkins, J.

Upon the trial of an issue, between these parties, in the Circuit Court of Montgomery County, in an action, brought by Rich, against Col-vin, upon a note, made by the latter, to B. B. Ginn, or bearer, of which the defendant in error was the bearer, it was proved, that Rich was in the pos session of the note, before the service of a garnishment upon the maker, as a debtor of Ginn, the payee. Notice of this fact was given by Rich to Colvin, after the service of the garnishment-, but before his answer, as garnishee, was made; and, in the answer the fact was stated.

Upon the answer, a judgment was rendered against Colvin, for as much of the sum due on the note, as was equal to the demand against Ginn, in favor of his creditor, who had sued out the garnishment.

Upon this testimony the Circuit Court refused to instruct the jury, that the judgment rendered against the maker of the note was to the amount of it, a bar to this action; but, did instruct, that if he knew upon the trial of the case, of the garnishment, that the note was the property of Rich, he ought to have “ resisted” the judgment.

The question for this Court to decide is, did the judgment against the garnishee rendered upon his answer, which staled that the note belonged to Rich, diminish his liability to the bearer upon the note and operate as an acquitance from it to the amount of the judgment? That the payee’s transfer of the note by delivery left no interest in him, and entitled the bearer to the entire and exclusive property in the note, are propositions clear and demonstrable. After the transfer, the bearer had a right to an action in his own name against the maker. In such an action the maker can make any defence, to which he acquired a right, after the transfer; and must be allowed, also, the benefit of all payments, discounts, and sets-off, to which he was entitled against the payee, before he had notice of the transfer. If a judgment should be obtained against him, by the procedure of garnishment, in favor of a creditor of the payee, before he received notice of the transfer, the judgment would give him a right to a defence against the bearer, and to the same extent to which he would be entitled to it against the payee, if the note had never been transferred.

The effect of the judgment would be a payment pro tanto, of the note — and, being made before notice of the transfer, the statute law of the State would entitle the maker to the benefit of it, against the bearer.

But, should the maker of a note or bond, with the knowledge, before he made his answer upon a garnishment, that it had been transferred, acknowledge, in his answer, that he owed the debt to the payee or obligee, he would be as clearly and justly liable to pay the whole amount, to the assignee, as he would, after a voluntary payment, with such knowledge, to the payee or obligee himself.

The object of an attachment and a garnishment against a debtor of the defendant in attachment, is to obtain a tranfer, by a judgment, of the right of the defendant to what his debtor owes him; and such would be the effect of a judgment in favor of the plaintiff in such a case. But, if the right of the defendant had been transferred before the attachment issued, there would be nothing for the plaintiff in the attachment to acquire — certainly nothing which he ought to acquire, and, if the garnishee had notice of the transfer, before be makes his answer, the demand, by the attachment and garnishment of the debt, no more impairs his obligation to pay it to the assignee, than an application made by the payee, for payment, to the debtor, with such notice, would.

We do not think the judgment against the garnishee has any effect upon the right of the bearer of the note in this case. If the note had been transferred, after the judgment against, the garnishee, the bearer would be bound by the judgment, because the right to the note was in the payee, who was a party to the cause, in which the judgment was rendered, that transferred to a creditor, a part of his interest.

In one of the cases, cited by the' counsel for the plaintiff in error, it was decided, upon a bill filed by an executor, to compel the legatees to refund epough of the property, which he had distributed among them, to enable him to satisfy a decree, which had been made against him, as executor; that, in the absence of all proof of fraud, on the part of the executor, the-decree was evidence of the justness of the demand.

An executor succeeds to all the rights of his testator, in personal property, winch may be sold while in his hands, to satisfy any judgment rendered against him, in his character of executor; and such a judgment is conclusive jiroof, upon his bill against the legatees, that the amount of it was a debt due from the testator, unless fraud or collusion be shown, on the part of the executor, in permitting it to be rendered.

The case cited from 1 Munf. Rep. 501, was an action against a sheriff, for an escape, and the Court determined, that a judgment in a previous suit, that had been prosecuted by the plaintiffs in the action, against the sheriff, was evidence against the sheriff, who was no party to the suit.

The previous suit was upon a prison bounds bond, which the sheriff had taken; and the judgment in the cause, was, that the bond was void, because it had not been properly taken. If the bond were void, the sheriff was liable for an escape. That the bond was void, had been determined by a competent Court, in an action by plaintiffs, who derived their claim to that action, from the act of the sheriff, in taking the bond. As the claim, which they derived from him, and prosecuted by his authority, was adjudged to be unfounded, they resorted to the remedy to which they were entitled, for the want of a binding prison bounds bond.

The judgment was testimony against the sheriff, on the same principle, upon which a judgment against an assignee of a note, in a suit against the 0iah?r, upon the ground, that the payee obtained it by fraud, would be evidence against the payee, in a subsequent action against him, by the as-signee.

But, this principle has no application to the bearer of the note, in this case. His right to the note did not belong to any party to the cause, in which the judgment against the garnishee was rendered.— No party to that suit had acquired any interest in the note from him; and he had given no authority of any kind, to any of them, to assert the right he claimed to the note.

The only effect of the notice he gave to the maker, was to make his right against the maker perfect.

If the obligee of a bond, after he had assigned it, were to sue the obligor upon it, as a lost bond, and upon an issue taken to the plea of the obligor, that the bond was not the property of the plaintiff, but had been transferred by him to another, who still owned it, there should be a judgment for the obligee; we do not think, it would impair the right of the assignee to recover the amount of it, from the obligor.

That the right of an assignee is not affected by a judgment against a garnishee, rendered under the circumstances, in which that read as evidence, in this case was, has been decided by the Court of Appeals, of Kentucky.

A judgment against a garnishee, if it were one of a Court of record, may be reversed in three years, if erroneous, after it has been rendered.

Could the Court recognise, as a principle, what is relied upon to sustain this defence, the operation of it would diminish the liability of a maker upon his note, and for error in the judgment against him, as garnishee, that might be reversed.

The judgment is affirmed.

       4 Munf’d 219

       Hard.Rep 160


text:
    GILL versus TAYLOR.
    POINTS IN THIS CAUSE.

      What evidence mill enable a parti/ to maintain trespass to try title.

    1. A certificate of the first payment for lands, sold by the United States, under the credit system, it not appearing by proof of any kind, that the terms of the purchase have been complied with; and filial payment made; and the presumption of forfeiture, thus rebutted, will not authorise a party to maintain the action of trespass to try title.
    Trespass to try title in Dallas Circuit Court.
    The action was by the defendant in error, to recover damages for cutting down and carrying away the timber of the defendant, off and, from a certain fraction of land, the freehold of the plaintiff.— The defendant plead, first, not guilty; and, second, justified; and alleged that the said timber &c. was cut from the soil and freehold of the defendant.— On issue, the plaintiff produced, to sustain his action, a certificate, issued by the land office of the pro* per district, in conformity with the act of Congress regulating the sale of lauds under the credit system, by which it appeared that one-fourth of the purchase money had been paid; but it did not appear that the final payment had been made, nor was any certificate produced, to that effect. Nor was it, proved that the plaintiff had title to the land, or had ever been in possession thereof.
    The Court below, on this state of facts, charged the jury, that the certificate was prima facie evidence of title, sufficient to authorise a recovery. And the defendant excepted, and took a writ of error to this Court.

      Mr. Ciar It for the plaintiff in error, Mr. Gold-tlmaite for the defendant.
   Hopkins, J.

Several questions were submitted to us by counsel for each of the parties, but as one, only, is, in our opinion, decisive of the case, we shall confine our examination to it, and upon the determination of it rest our judgment. For the- defendant in error, who brought the action in the Circuit Court of Dallas county, to recover damages for a trespass upon the land described in his declaration, it has not been asserted that he has a right to the action, without proof either of a title to, or of the actual possession of the land. There is no testimony that Taylor ever had the actual possession of the land. His claim to the action was put upon the ground that he had the title, and, as the effect, of it, the constructive possession of the land, and, therefore, as there was no adverse possession, he could maintain this action of trespass, upon the authority of a previous decision of this Court. There can be no constructive possession, unless there be a tille to give it. The inquiry to be made is, did the plaintiff in the action prove that he had the title to the land? The only evidence upon the subject which he produced was a certificate, of the register of the land office for the district in which ihe land lies. The certificate shows that he purchased the land on the 20th of October, 1818, paid then one-fourth part, of the purchase money, and contains an acknowledgment of bis right to a patent, upon his payment of the balance of the purchase money,'in three instalments, to become due at the times stated in the certificate. The last one was payable on the 20th October, 1822. The certificate was issued during the continuance of the credit system, as it was called, under which the lands of the United States were formerly sold.— The acts of Congress, which established that system, required a purchaser to pay one fourth part of the purchase money at the time of the sale to him. No bond or note was made by a purchaser for the balance of the price. He received from the register such a certificate of his purchase as the one in this case, and if he failed to pay all the instalments within one year after the last one was payable, the land and first payment were forfeited, and the land might afterwards be sold by the proper officer to another person. Such having been the law's of the United States, under which Taylor purchased the land, his interest in it, if the certificate be-his only evidence of title, wras extinguished by forfeiture, in October 1823. If he máde full payment for the land, he was entitled to a final certificate as an acknowdedgment of the fact, and if he have such a one, that, or the fact of the payment proved in some mode, and not the original certificate, would be evidence of his title.— The interest which he acquired by the certificate could not endure longer than October, 1823, without full payment for the land, and he ought not to be allowed the benefit of the effect of such payment, without proving that he made it. If he surrendered this certificate, under law's enacted after his purchase, he was entitled to a certificate of the fact, and of the extended credit. As he produced no certificate of either kind, to one of which he would have been entitled, if he had done what the laws authorised, we cannot presume that he acquired a right to a certificate of either description. Could we do so, we might, unrestrained by the want of testimony, conclude also, that he made full payment and acquired a right to a patent.

There is a distinction between forfeitures at common law and under statutes. The rule of the former requires the party entitled to the forfeiture, to do an act which the law directs, to derive any benefit from the forfeiture. But if a statute prescribes that a forfeiture shall be the consequence of an act, which is prohibited by it, or of an omission to do what is required, any one who may incur a forfeiture will be deprived of all his interest in, and title to, the estate, upon which the forfeiture operates, at the time the forfeiture accrued, and is disabled, by law, from retaining the title or other interest until the party, entitled to the forfeiture, shall assert his light to it. The common law allows a discretion, and gives a forfeiture to the party entitled to it if he choose to take it. But such a statute gives no discretion; it determines the will of the party entitled to the forfeiture, and makes the act, when it is done or omitted, an absolute and complete forfeiture.

Against the effect of sucha forfeiture, there is relief but in an act of the legislative power, by which the statute that directed the forfeiture was enacted. The fee simple in the land embraced by the cate, in this case, was in the United States, while the certificate was effectual; and the forfeiture, from the failure to pay the balance of the purchase money, deprived Taylor of the interest which he previoi^sly had in the land, and consequently of the construc-tivé possession, that depended upon the continuance of that interest.

The effect of the forfeiture was the extinguishment of his interest, and the title was then in the United States, without the incumbrance of his interest. As the trespass alleged, was committed after the forfeiture, we are of opinion that the instructions of the Circuit Court were erroneous, and that Taylor, upon the evidence, had no right to the action. That a forfeiture prescribed by a statute, has the effect which we ascribe to it, was determined by this court in the case of the Trustees of the University of Alabama against Winston, in the construction of statutes of this State, similar in respect to the sale and forfeiture of lands, to the acts of Congress, on which the credit system was founded. In that case, it was decided also, that the trustees were bound to aver and prove that they prevented a forfeiture by commencing, as the statute required, a suit against the purchaser within three months after an instalment of the purchase money was due.

Let the judgment be reversed and the cause remanded.

       Stew.229.

       3 Cranch 349, 351—8 id. 405, 408, 409-11 John R. 331, 332—14 id. 128-3D. & East. 65.


author: Hitchcock, J.

text:
    BURNS versus TAYLOR.
    QUESTIONS IN THIS CAUSE.

      The competency of a defendant in attachment, to testify as to the title of goods levied on-, as of his property.

      As to the admission in evidence, of the record of an attachment cause, under which goods have been levied, in trespass against a sheriff.

      What taking, by a sheriff’s deputy, will justify trespass against the sheriff.

    1. In trespass against a sheriff, for wrongfully taking goods (under an execution in attachment,) the defendant in the attachment is not a competent witness, to prove that he had sold the goods to the plaintiff for valuable consideration.
    2. In trespass against a sheriff, for taking goods, the property of a plaintiff, the record of an attachment cause, in which the plaintiff is neither a party or privy, (its relevancy to the issue being not otherwise shewn,) is no evidence for the defendant.
    3. Where goods were levied on, under an attachment, by a sheriff’s deputy, and the goods were in possession of a stranger, whose receipt was taken for their delivery; and, upon his subsequent delivery were sold by the deputy — held, that trespass will lie against the sheriff, for the act of his deputy, on this levy and sale.
    This was an action of trespass, for taking cotton, in Dallas Circuit Court, and was brought by Burns, against Taylor.
    The pleas were, “ not guilty,” and that the cotton was taken by virtue of an attachment, and sold under execution thereon. There was a demurrer to the second plea, which was sustained; and a verdict and judgment rendered for the defendant, on the plea of “ not guilty.”
    It appeared by a bill of exceptions, taken in the cause, and upon which was predicated the writ of error to this Court, that the property had been levied on by the defendant’s deputy, as part of the estate of one Durham; that it was, at the time of the levy, in the possession of one Dubose, whose receipt was taken for the delivery; and that, on the day of sale Dubose delivered to the deputy, and by him sold as Durham’s property. The plaintiff offered to prove by the testimony of Durham, the defendant in the attachment, that the property had been sold by him to the plaintiff; which testimony the Court below excluded.
    The defendant then offered in testimony the record of the attachment cause, under which the property had been sold, which, notwithstanding the objection of the plaintiff, was admitted by the Court to be read.
    In reference to the fact that the property was in the possession of Dubose when the attachment was levied, and was brought to the place of sale by Du-bose, and by him delivered to the deputy of the defendant — the Court was asked to charge the jury that under such a state of matters, trespass would not lie against the defendant; and the Court did so charge — saying, that if the cotton went into the possession of the deputy, without any active agency on his part; and he was quiescent, and it was carried to him by Dubose — -then the defendant was not liable in trespass.

      All these matters were excepted to, and assigned as causes for reversal in this Court.

      Mr. Clark for the plaintiff in error — Mr. Gold-thrvaite for the defendant.
   Hitchcock, J.

This was an action of trespass, brought by Burns against Taylor, for taking and carrying away three bales of cotton. The defendant pleaded—

First — Not guilty.

Second — That he had taken the cotton as sheriff of Dallas county, by virtue of an attachment, before a justice of the peace, in favor of John B. Jones vs. one Green B. Durham, and that he had sold the same by virtue of an execution issued on a judgment in favor of the plaintiff in the attachment.

Issue was joined on the first plea.

To the second there was a demurrer, which was sustained, and the cause was tried on the first plea, and a verdict was had for the defendant.

There was a bill of exceptions taken at the trial, to sundry opinions of the judge, in excluding and admitting testimony, and to the charge to the jury, only so much of which wall be noticed as is material in the decision of the cause.

It appears that, at the trial, the plaintiff offered the deposition of Green B. Durham, the defendant in the execution on the attachment, to prove that he had sold the cotton to the plaintiff before the levy for a valuable consideration; this deposition was objected to on various grounds, one of which was'the incompetency of the witness, from interest in the event of the suit. This, we think, was a sufficient objection, and comes within the decision of the case of Pruitt & Martin vs. Lowry, decided at the July term, 1834, of this court.

In the progress of the trial, the defendant offered the record and proceedings of the attachment suit, to which the plaintiff objected, but the objection was overruled and the evidence read. The bill of exceptions further states, that, " it was proved that the defendant had never taken the property into his own possession, but it was proved, that, at the time of the issuance of the attachment, it was in the possession of one Dubose, and that the deputy of the defendant, sheriff as aforesaid, took the receipt of the said Dubose for the delivery of the property, and made an entry on the writ of attachment, in these words, ‘ levied this attachment on three round bales of cotton; Isaac Dubose’s receipt taken for the delivery when required by sheriff. Levy made eighth January, 1830. A. Taylor, Sheriff, U. Brooks, D. S.’

It was proved that on the day the property was advertised to be sold by the sheriff, it was brought to the place of sale by Dubose, and sold by the deputy of the defendant who was then sheriff.

The defendant’s counsel requested the Court to charge the jury, that under such a state of facts, the action of trespass would not lie against the defendant; and the Court charged the juiy, that, if the cotton came to the possession of the deputy, without any active agency on his part, if he was quiescent and it was brought to him by Dubose, that the defendant would not be made liable in the action of trespass; to this the plaintiff excepted and requested the Court to charge the jury, “ that the act of selling the cotton by the deputy, no matter how it came to his possession, if it was the property of the plaintiff, constituted such a taking as would enable trespass to be maintained;” but the court refused so to charge.

We think the court erred, in admitting the record of the attachment as evidence, in behalf of the defendant. The question at issue was, whether the plaintiff had title to the property at the time of the levy; and, it is not possible to conceive, in what way this evidence would tend to disprove that fact — it was a proceeding, to which the plaintiff in this action was neither a party or privy: at all events, it is the duty of a party offering testimony, to shew its relevancy or competency. If it was intended to be used in connection with the subsequent evidence, as to the manner in w'hich the property was brought to the place of sale, by Dubose, it was clearly inadmissible — the object of which was to controvert the fact of the levy, against the return of the officer making it; a fact which would not be controverted by him.

The Court also erred, in giving the charge requested by the defendant, and refusing that asked by the plaintiff.

That there was a levy and sale by the deputy of the sheriff, is not controverted. The acts of Du-bose, who was the bailee of the sheriff, are to be held as the acts of the sheriff.

The position taken by the defendant’s counsel, that it does not appear, that the property was ever in the actual possession of the sheriff, or that it was delivered by him, to the purchaser, cannot be sustained. The bill of exceptions states that the property was sold by the sheriff’s deputy; this was such a taking as constitutes trespass, if the property belonged to the plaintiff; and the court should so have instructed the jury. It necessarily implies a delivery.— This proposition is too plain to require, or admit of illustration.

Let the judgment be reversed and the cause remanded.

       1 Por. 101


text:
    GAYLE and HEUSTIS, Adm’rs versus WEIR.
    QUESTION IN THIS CASE.

      Extuse by a Constable for failure to return an execution.

      J. On amotion against a constable for failure to return an execution, it is no excuse that he forgot to make a return, when' he delivered it to the magistrate.
    2. So, where on an appeal to theCounty Court, upon such motion,the constable was permitted to make a return upon the execution, alleging that he forgot to do so when he returned it-to the justice,-held to be ervror.
    This was a motion against Weir, a constable' of the county of Wilcox, for failing to make clue return, on an execution, which had gone into his hands, and in which the plaintiffs in error were plaintiffs.
    The motion was tried before a justice of the peace' of that county, and judgment rendered against Weir, from which he took an appeal to the County Court.Before the County Court, proof was made that the execution went into the defendant’s possession ; that, at-the time, he was a constable, and that he had delivered the same to the magistrate, without making any return thereon. The defendant, by his own oath, (the amount being under twenty dollars,) swore that it was bona ficle his intention to have returned the execution, regularly, but that, at the time of delivering it to the magistrate, he forgot to indorse the words of his return upon it. The Court* on this-statement, permitted the defendant to make his return of “no property found.” And judgment was given for the defendant.

      The plaintiffs having excepted to the decision of the Cpurt, on the points above stated, took a writ of error to this Court.

      Mr. Clarice, for the plaintiff's in error.
   Hopkins, J.

The plaintiffs in error obtained, upon a motion before a justice of the peace, a judgment against the defendant, for the amount of an execution, and interest thereon, which had been delivered by the justice to the defendant, as a constable, and which he had failed to return to the justice, on or before the day on which it was made returnable.

The defendant appealed from the judgment, to the County Court of Wilcox county.

When the motion was heard by that Court, the plaintiffs proved by the justice, that the defendant had delivered the execution to him without any written return upon it, but, whether the delivery to him was made before or after the return day, he did not remember.

The defendant then made an affidavit, in which among other things not material enough to be noticed, he stated, that from accidental cause he had omit-ed to write upon the execution a return of “ no property found,” and moved the Court for leave to make the return then. By the permission of the Court the return was made, ar .'judgment rendered for the defendant.

If the delivery of the execution did not satisfy the demand of the statute, that it should be returned to the justice, the plaintiffs had a right to the motion when they made it. A return ought to contain the constable’s answer relative to that which the writ commanded him to do. It must consist, necessarily, of a statement of one or more facts, and if the statement be untrue, the officer who made it would be liable to the plaintiff in the execution for the false return.

If any thing, the effect of which due diligence could not enable him to avoid, had prevented him from making the return within the proper time, and it had been stated and proved, the Court, in the exercise of the power conferred upon it by the statute law, to try appeals from justices according to the equity, as well as the justice, of the case, might have released him from the penalty, which the plaintiffs claimed. But neither forgetfulness of his duty, or any other cause, against the consequences of which diligence could guard him, can give him a right to relief. The statute law gives the plaintiffs a right to obtain, in the mode which they pursued, for such a failure of the constable, a judgment for the amount of that which the justice rendered, and of this right no subsequent return of the constable can deprive them.

Let the judgment be reversed; but because it does not appear when the judgment was rendered, upon which the execution issued, this court cannot ascertain the amount of interest to which the plaintiffs are entitled, the cause must, therefore, be remanded.

Saffold, C. J.— not sitting in this cause.

       19th No.L L. 68-1 stew. 10

       Aik. Dig. 175-4 Bib. 332—Min. R. 48