Walker v. Shotwell et al.

ered, or even executed; that he did not know at that time, nor till after the return term of said execution, that said two slaves aforesaid were included in it, as he paid no attention to the property said to have been levied upon when he signed said supposed forthcoming bond, and he had no knowledge at that time that said mortgage was in full force and bound said slaves; that, if he had even noticed the names of said slaves, he believes he would not have remembered that slaves of the same names were included in said mortgage.

They all say that the facts, as they existed, were not made known to them by the sheriff, when they executed said supposed forthcoming bond, and charge that they were deceived; and that the taking said supposed forthcoming bond by Brown, the deputy sheriff, under the circumstances, was a fraud on them, and that the same is without consideration, illegal, and void, and that, unless the same is cancelled and delivered up, they fear and believe they will be harassed with proceedings under it from time to time. They insist, that even if there was a levy on said two slaves, (which they deny,) that the same was void, as an equity of redemption is not the subject of levy.

The prayer is, that the sale of Jones's four slaves be enjoined, and that they be delivered up to him, unless the sheriff should hold them under the other executions; that said supposed forthcoming bond be cancelled and delivered up, and the judgment thereon perpetually enjoined, and for general relief. The injunction was granted.

James Walker demurred to the bill generally, and the circuit court overruled the demurrer, and he appealed to this court.

A. H. Handy, for the appellant, contended,

1. That the forthcoming bond, on which the complainants were proceeded against, was not void, because it recites a judgment against Smith and Webb, when the judgment was against Smith alone. He cited 11 S. & M. 458; Ib. 347; 6 How. 513; 5 Ib. 239.

2. That it was not void, because the property purporting to be levied on, and for the forthcoming of which it was given,

Walker v. Shotwell et al.

was under mortgage and not subject to levy. He cited and reviewed Long v. U. S. Bank, 1 Freem. Ch. Rep. 375.

3. That there then was no actual levy by the sheriff, by seizing or actually taking possession of the property, for which the bond was given, did not vitiate the bond; there was a constructive levy. 10 S. & M. 9.

4. That it was not void for fraud, because the deputy sheriff, when he took the bond reciting a judgment against Smith and Webb, did not inform the sureties that the judgment was against Smith alone; and because he concealed from them that he had made no actual levy. These facts did not amount to fraud.

Mr. Handy discussed these points at length, and insisted that they furnished no ground for relief.

George Calhoun, for appellees.

1. The forthcoming bond is void, because it was not taken upon any judgment whatever. There is no judgment against Smith and Webb.

2. It is void, because the execution under which it was taken was not levied upon the property of the defendant. The property was under mortgage, and was not the subject of levy, as is expressly decided by this court. 5 How. 71.

3. It is alleged in the bill, that there was in fact no actual levy; that the sheriff had never seen the slaves; and this is admitted by the demurrer. The mere inserting in a forthcoming bond, or indorsing on an execution, a description of property as levied upon, without even seeing the property, the sheriff neither seizing it, nor being in a situation which would enable him to reduce it to possession, does not constitute a levy. See Banks v. Evans, 10 S. & M. 57; 3 Wend. R. 446; 14 Ib. 123; 16 Johns. R. 288.

4. The bond, as to the securities, was without consideration. The right of the securities to deliver the property on the day of sale, forms the consideration upon which forthcoming bonds are given. This right to deliver is fully held in 3 Munf. 438, et seq. And this very point is settled by chancellor Buckner, in the case of Long v. The U. S. Bank, 1 Freem. Ch. Rep. 375.

Walker v. Shotwell et al.

5. The forthcoming bond is void, for actual fraud on the part of the deputy sheriff.

On this point, Mr. Calhoun reviewed the allegations of the bill.

Mr. Chief Justice SHARKEY delivered the opinion of the court. This bill was filed to obtain relief against a statutory judgment, which accrued by virtue of the forfeiture of a forthcoming bond. The first ground made by the bill is, that the bond recites that the levy was made under an execution in favor of Walker against Williamson Smith and John Webb, when in truth the execution was against Smith.

The consideration of such a bond, is the redelivery of the property levied on. To sustain it, there must be an execution which authorized the seizure. Then there is a sufficient consideration. In this instance there was an execution in favor of Walker against Smith, and Smith's property was levied on. Here then was a valid execution and a valid levy. The mere recital in the bond, that the execution was against Webb and Smith, does not vitiate the bond; that is no part of the obligation, nor can this misrecital in any way affect these parties. If the execution had been against two as recited, if one gave the bond, he and his sureties alone are bound, the party who did not join being thereby discharged. The case of Wilkinson v. McLochlin & Co., (1 Call, 49,) was a stronger case against the validity of the bond than this; the name of one of the plaintiffs in execution was omitted in the bond, and yet it was held good. These parties were not sureties for Webb, and his solvency, and the insolvency of Smith for whom they were sureties, cannot be ground of relief.

The next ground is, that there was no actual levy, but the names of the negroes were inserted by Smith in the bond, in which condition it was handed to the sheriff. We cannot say that this was not equivalent to an actual seizure. It was an admission of a levy by the defendant in execution, and he could not be heard to object on this ground. An actual seizure is necessary to change the property, and in a controversy between

Walker v. Shotwell et al.

the sheriff and a claimant of the property, it is necessary to prove an actual seizure. But the right to personal property, and the right of possession will pass by a constructive delivery, and this was in effect such delivery. In the case of Long v. U. S. Bank, (Freem. Ch. Rep. 375,) Chancellor Buckner decided that a bond given for fictitious property, or without a substantial levy, was void. The bond in that case was delivered in blank. Here there was a substantial levy.

In the next place, it is insisted that the bond was void because the negroes were subject to an unsatisfied mortgage. This objection is answered by the decision in Lyme v. Montague, (4 Hen. & Munf. 180,) in which it was held, that the bond was good if the defendant had a qualified property. Neither the principal nor his sureties can set up an outstanding title to defeat their own obligation to deliver the property, unless such title has been asserted so as to prevent a delivery. It was the business of the sureties to inform themselves as to the condition of the property, inasmuch as they had a right to deliver it in discharge of the bond. But the mortgage did not prevent the delivery. Whether the sheriff could have sold or not, is a different question. It might operate as a fraud upon the execution creditor, to release parties to a forthcoming bond, who had voluntarily filled up the bond with property not liable to sale, and then to permit them to set up this as an excuse for a failure to deliver.

The last objection is, that it was a fraud in the deputy sheriff, not to inform them that the execution was against Smith alone. It was their business to inform themselves on this subject. The bond may have been filled up entirely by Smith, as it seems to have been delivered to him at least partly in blank. The facts charged do not amount to fraud even if true; but if they did, the plaintiff in execution is not implicated; nor indeed is there any charge of fraud as to him. If fraud was committed by the principal in the bond, he is not affected by it. Decree reversed, and bill dismissed.

Person et al. v. Valentine et al.

JAMES J. PERSON and JAMES T MARYE, Trustees of the Bank of Port Gibson, vs. RICHARD VALEntine et al.

It is a settled rule, that a defendant to a scire facias, to revive a judgment, cannot plead any matter which he might have pleaded to the original action, or which existed prior to the judgment; whether such judgment be obtained by confession, default, or upon plea.

To a scire facias, therefore, to revive a judgment obtained by the Bank of Port Gibson, in favor of the trustees of the bank, a plea was adjudged bad which set up that a judgment of forfeiture had been rendered against the bank, and, prior to the rendition of the judgment sought to be revived, the bank had assigned the note sued on to certain persons as its assignees.

IN error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.

On the 22d of May, 1843, the bank of Port Gibson recovered judgment in the Claiborne circuit court, against Richard Valentine and John Patterson, for $362.

At the May term, 1845, judgment of forfeiture was rendered against said bank, and James J. Person and James T. Marye, were duly appointed trustees thereof.

On the 29th of April, 1848, Person and Marye, as trustees, sued out a scire facias, to revive this in their names against the defendants.

In this scire facias, the defendants pleaded that the judgment in the scire facias mentioned, was founded upon a promissory note made by them, which note was, prior to and on the 11th of May, 1843, the property of the Bank of Port Gibson; that, on said last mentioned day, the said Bank of Port Gibson transferred said promissory note to James J. Person and James T. Marye; that, at the time of said transfer, suit was pending on said note in the name of said bank, which was prosecuted after said transfer, and the aforesaid judgment recovered in the name of said