Reynolds v. Lowry

Coulter, J. Judgment is entered below against tbe plaintiffs in error, in favour .of defendant in error, on a bond, with warrant of attorney, &c. The bond is for the purpose of indemnifying the defendant in error, and contains a condition as follows: “ That the obligors shall well and sufficiently pay the several debts heretofore contracted, and now due, and owing by the late firm of Reynolds, Lowry & Co., and shall indemnify him against the same, and any and every part thereof, so that the said Lowry shall in no wise sustain loss, &c.” The bond also contains an agreement, that on failure of the obligor to indemnify the said Lowry as aforesaid, he shall be at full liberty, as often as he shall have occasion to pay or become liable to pay any of the debts before contemplated, to file a statement of the same with the record, &c.; and thereupon to issue execution, or executions, and collect the amount. The judgment was entered the 4th May, 1846; and on the 26th of August following, a statement of debts which he was liable to pay as one of the firm of Reynolds & Lowry, was filed by him; and on the same day he issued execution on the- judgment. The defendant applied to the court below to set aside this writ of fi. fa., which they refused to do; and the plaintiff in error, who sued out this writ, assigns the following exception to the proceeding, to wit: “ Execution ought not to have issued without a scire facias, or a certificate filed in conformity with the condition of the bond.” The certificate filed by Lowry was in exact conformity with the bond. It specifies the debts which he had become liable to pay, and that satisfied the exigency of the condition so as to make the issuing of the execution proper and provident in that respect. Whether he claimed too much was a matter for the equitable clisr cretion of the Court of Common Pleas, to which the defendant below appealed unsuccessfully; and we think, from the evidence sent up, that the discretion of the court was wisely exercised. Part of the condition of the bond was, that Reynolds would pay and satisfy the debts of the late firm, for which purpose, no doubt, sufficient assets was left in their hands by the retiring partner, Lowry. He waited three months before he attempted to coerce the plaintiff in error to comply with their engagements, and, as the evidence shows, until he was sued on one of the claims, and until he was compelled to enter into stipulations and incur trouble with respect to it, and until the plaintiffs in error had failed to comply with other arrangements according to their agreement. It was not necessary that Lowry should wait until he was sued and harassed on account of these claims, nor until he had paid them. It [468] is evident, from the whole proceeding, that the bond was given to enable him to compel the plaintiffs to do that which, in equity and good .'conscience,'.they were bound to do bra reasonable time. As the law stood at the time of the passage of the statute of 8 and 9 William, chap. 11, if there was a judgment in a court of law for a penal sum, -either upon a demurrer or a cognovit actionem, or by default, the defendant was exposed to the danger of an execution for the whole, of the penalty, and had no mode of preventing such an inconvenience, but by filing a bill in equity; and the statute was framed to prevent such mischief, by compelling the plaintiff to show,on the record in the. common-law court the amount of the debt and damages really due; thus making an appeal to the Court of Chancery unnecessary, 6 Binn. 385. In Collins v. Gray, 2 Burrows, 820, it was ruled that this statute extended to- bonds payable by instalments. But in Longstreth v. Gray, 1 Watts, 60, Chief Justice Gibfion says that it never was construed as extending to judgment on warrant of attorney, and'the words of the statute clearly indicate and justify this distinction. The words are, “that if judgment shall be given for the plaintiff by confession-or nihil dicetand-the commencement o'f the section provides, ¿‘that in all actions commenced upon any bond or bonds for any penal sum the ' plaintiff may assign breaches, -&'c.” So that breaches were only requir'ed to be assigned when judgment had been obtained in court by writ for a penal sum. In 2 Barn. & Cres. 82, it was ruled that on a- post oljt bond- upon which a forfeiture has taken place, it is not within the statute, and that therefore it is not necessary to assign-breaches. The rule has been well settled, that on a bond payable by instalments, and sued by writ,- and judgment entered thereon by default, for want of an affidavit of defence, that a scire facias, or application to the court for leave -to issue execution for the instalments, is necessary undpr the act of 8 & 9 Will. cap. 11. Yet not so when judgments are entered on warrant of attorney without writ; Skidmore v. Bradford,-d^Barr, 296. - ’ In the case in hand, the Court of Common Pleas had and has full power to protect the defendant below from injustice by the exercise of their equitable- discretion. Our courts have and do exercise control over their own process, so as to permit no one to do injustice to another by its instrumentality, ' The party is , not driven to another court to ^seek protection from a penalty-. He’is efititled- to it in the same court where judgment for the' penalty was rendered by due course’ and propriety of proceeding;, and people are Jround t'O know, When they give a judgment bond with [469] warrant of attorney for a penalty, the mode .and 'manner of relief which they are-entitled to, if more than right is demanded .and sought, to he enforced. ' ;- . We are of opinion there' is no error- in the record of the eóúrt below, and the proceedings are' ■ ■ Affirmed.