Watmough v. Francis

Rogers, J., (after stating ' the case.) — The points raised on the special plea we are relieved from considering, as it is agreed that the only question on which the opinion of this court is desired, is whether there is any breach of the bond; that is, whether the plaintiff, as sheriff, did execute the writ, did attach and make sale of the goods, according to the true intent and meaning of the condition. As it forms part of the case, I will premise that the fact that the goods were seized on the first writ, before the second was put — 213 — in the hands of the sheriff, that the action of the sheriff was partly before and partly after the date of the bond, is immaterial. For the execution of a writ, though it may consist of several acts, is but one thing in contemplation of law. It may be deemed to have been made after the date of the bond, if completed after that time. Otherwise, as is justly remarked, a bond given after a seizure of goods upon claim made by a stranger, would be no security to the sheriff, unless he begins his proceedings de novo, by making a new seizure. But this would be nugatory, for the law unquestionably is, that the receipt of a second execution, from the time it is endorsed by the sheriff, amounts to a re-seizure of the property on which the prior levy has been made. From that moment the goods are considered in his custody on all the executions. And from this it results that the consequence is the same, and, consequently, the question must be viewed in the same aspect as if the levy had been made on the writs in his hands, after the execution of the bond. In the latter case, it would be a trespass eo instanti the levy was made, and if made at his instance, the execution creditor would be liable with the sheriff at the suit of the person whose property was unlawfully taken. At the time the bond of indemnity was given, there were two executions in the hands of the sheriff; a levy had been made, and the goods of the defendant seized in satisfaction of the debts due on both. But, as before remarked, it is immaterial whether the seizure was made before or after the date of the bond. The law on which this case turns is well settled. Thus, in Jones v. Atherton, 7 Taunt. 56, it is ruled that though a sheriff makes a warrant and seizure of goods under a fi.fa. last delivered to him, yet the plaintiff in a fi.fa. first delivered, is entitled to be first satisfied out of the fruits of that seizure. And if a second fi. fa. be delivered to a sheriff after he has the defendant’s goods in possession under the prior fi.fa., the goods are bound by the second execution, subject to the first from the date of the delivery of the last writ. And that without warrant on the second writ or further seizure, McCormick v. Miller, 3 Penna. Rep. 234, is to the same point. But where, as in McClelland v. Slingluff, 7 Watts & Serg. 135, two executions are placed in the sheriff’s hands at different times, and he makes a levy on the defendant’s personal property, and a sale upon that which came to his hands last, he must appropriate the money to it, and not to the first upon which he had endorsed or attached no levy. But, although this be so, yet it is held in the same case, if two writs of fi. fa. are delivered on the same, or different days, the sheriff ought to execute that first which — 214 — was first delivered. If, however, either by mistake or design, he levy goods in execution by virtue of the writ last delivered, and make sale of them, the property in the goods is transferred by the sale, and the party cannot seize them by virtue of the writ first delivered, but he may have his remedy against the sheriff: Wats, on Shff. 176. The usual practice is to endorse the second writ, “levied subject to prior executions,” and as the first levy enures to the benefit of the second, a formal levy is not required: Lex neminem eogit ad vana seu impossiMlia. It is the duty of the sheriff to levy and sell the goods on all the executions, and to pay the proceeds in the order of date. The sheriff, it is true, has power to do otherwise. If he chooses to violate his duty, he does so at his peril; and when it appears that it is done with the design of favoring the second execution creditor at the expense of the first, it would present a case of such palpable disregard of duty, as would call, as I apprehend, at the hands of the jury, for exemplary damages. That a seizure in execution operates as a seizure under all the writs of fi. fa. then-in the hands of the sheriff, is also decided in Wintle v. Freeman, 11 Ad. & Ell. 549, and Goldschmidt v. Hamlet, 6 Mann. & Gr. 190. It is true that in Wintle v. Chetwynd, Mr. Justice Patteson is reported to have said that it was impossible to seize under two writs. But in this he was clearly mistaken, as he himself acknowledges in Wintle v. Freeman, 11 Ad. & Ell. 548. There may be many writs in the hands of the sheriff at the time of the seizure, and he seizes under them all. In contemplation of law, he is deemed (unless it appears to be clearly otherwise) to have seized, under the second writ, the same property that was seized under the first, and not merely the surplus from the time the second writ comes to his hands, or at any rate, from the time he endorses the seizure. That the levy is on the surplus only, is supported neither by reason nor authority; on the contrary, it is held that it is the same thing whether an execution is the first execution in point of fact, or whether it becomes a first execution by reason of a prior execution being superseded: The Prince’s Case, 8 Rep. 1. So the second execution creditor becomes the first execution creditor, upon that execution which was de facto the first, being withdrawn: 1 Mann. & Gr., and 6 Mann. & Gr. 192. But this could not be if the levy was only on the surplus after paying the first execution. Here two writs were in the hands of the sheriff, on which a levy had been made in due form, and the sheriff was about to proceed and sell as he was commanded, when notice was given that the goods seized were not the goods of the defendant in the execution. The autho — 215 — rities cited clearly indicate the duties of the sheriff, and it may shed some light on the question to inquire what were his rights. Under the circumstances of the case he is entitled to protection,,as is ruled in Nagle v. Stroh, 4 Watts, 124. As he is bound to execute the writ at his peril, when there is a reasonable doubt whether the goods are liable to be taken on thefi.fa., he may apply to the court from which the writ issues, and in a proper case the court will enlarge the time for making the return to the writ, until the right he tried, or a sufficient indemnity he given. But where he has received, or is tendered an indemnity, it is his duty to proceed, on pain of being attached or fixed for the debt. Now, what is the nature and extent of the indemnity *which the sheriff has a right to demand, and that the court would, on a proper application being made, require from the execution creditor ? Certainly, an indemnity commensurate with the risk he incurs from the performance of his official duty; that is to say, an indemnity for seizing and attaching the goods, an indemnity for selling them on the writ, and an indemnity for the complete execution of the writ. This he would have, undoubtedly, a right to demand, and unless given, the court would stay the proceedings. That he would be entitled to indemnity for seizing the goods, is plain; because, otherwise, when the execution is stayed, or no further steps taken in executing it, the sheriff would be without remedy for damages arising from the illegal seizure of the goods of a stranger. Here no application to the court was necessary, as the defendant, who was one of the execution creditors, complied with all he had the right to require ; and the.question is as to the extent of his liability upon the bond. The sheriff proceeded to sell the goods, at the instance of the defendant, for a sum less than the amount of the first execution, and applied the proceeds to that instead of the second execution. And this is the burden of his complaint, for the defendant contends that inasmuch as he received nothing, the avails of the sale being paid to the first execution, there is no breach of the agreement; but in this he is in error, because there was a breach of the condition eo instanti the trespass was committed, which consisted in seizing the goods of a stranger for the debt of the defendant in the execution. The defendant agrees to save, keep harmless, and indemnify the plaintiff, for and by reason of his executing his writ, and attaching and making sale by force and virtue of it. Now, what was the intention of the parties to the agreement? On this the question turns. The natural presumption is, that the sheriff intended to exact, and the defendant to give, a full — 216 — and complete indemnity against every risk incurred by tbe officer in the performance of his duty; and as the indemnity is in the usual form, we have no warrant for believing he intended to waive any of his rights. Directly the reverse is the most probable supposition. The inference is strong, that the defendant designed to indemnify him for attaching or seizing the goods, selling them in pursuance of the seizure; and, in short, for all the consequences arising from a partial or complete execution of the process in his hands. The authorities show, and for this purpose they are cited, that there was a breach of the condition, ipso facto, the goods of John It. Thompson were seized to pay the debt of Joseph P. Norris. From the moment of the levy, a trespass was committed, for which the sheriff and the defendant, at whose instance the goods were taken, were answerable. To save the sheriff from the consequences of an act which might eventually be proved to be unlawful, we cannot doubt, was one of the objects of the bond. If the goods aré levied on, and afterwards delivered to the owner without further proceeding, the damages would, it is true, be nominal; but nevertheless it is a trespass, for which it would be unjust the sheriff should be answerable out of his own pocket. But if not only seized, but sold, it is a continuation and aggravation of a trespass already committed, for which the measure of damages would be the value of the goods; or, if the owner chooses, it would be the foundation of an action to recover the proceeds of sale, in assumpsit. But it is said that the term used" in the condition, viz., executing said writ, is the most comprehensive. That attaching and making sale by force and virtue of said writ, does not enlarge the meaning of the condition, nor does it impose any duty not comprised,in the former. This position constitutes the strength of the defendant’s case. That we entertain a different opinion, may be seen from the remarks already made; but assuihing the question to be as stated, let us view the case in this aspect. At the time the bond was given, both parties are procuring what one had a right to exact, and the other was bound to do, to secure the execution of his writ, viz., a full and complete indemnity against the consequences of tho act he was compelled to perform, in the absence of any indication to the contrary. We cannot presume the sheriff intended to content himself with less; nor can we suppose the defendant designed to give less than the law required. And much less is there any thing in any part of this transaction which shows any thing like an agreement by the sheriff to violate his duty, by paying over the proceeds to the defendant, in fraud of the rights of the prior — 217 — creditor. That there was an express agreement to that effect, is not pretended. It is an inference, without the shadow of support. At the time the bond was given, it was known to the defendant, at least he had legal notice of it, that there was in the hands of the sheriff a prior execution, entitled to be first paid. The irresistible inference from this state of facts is, that he consented to run the risk of the goods being the property of the defendant in the execution; and, moreover, to incur the hazard that the property, when sold, would bring a sum sufficient to pay not only the first execution, but the whole, or at least part of his own debt. And this reasonable supposition is strengthened by the fact that the property seized (as afterwards appeared) was worth upwards of five thousand dollars, although it was suffered to be sold at a much less sum. That the defendant received nothing in payment of his debt, it is clear, was his own fault; for after entering into such an agreement, with a full knowledge of the prior execution, it was his duty, as well as interest, to see that the goods seized were not sacrificed at the sale. Under the circumstances in which he ivas placed, what was the sheriff to do ? On the tender of indemnity, he was bound to execute the writ; so say all the authorities. It is also clear that the court will not stay the proceedings on the allegation, simply, that he has another execution in his hands, against which he is not indemnified. The answer to such an allegation would be, — that is nothing to you; you have a sufficient bond of indemnity, and it matters not by whom it is given, whether by the first or second execution creditor. You are not entitled to two indemnities. You cannot execute one writ without executing the other; the levy and sale on one is the levy and sale on both. It matters not by whom the indemnity is given, whether by the first or second execution creditor, by one or all, by separate or joint bonds. That must be left to be settled by the execution creditors among themselves. With their arrangements you have nothing to do. Had the defendant applied to the first execution creditor, it is very probable he would have joined in the bond, and agreed tts share the responsibility. Had he refused, it would then have been for him to determine whether he would incur the whole risk himself. But with a knowledge of all the facts, he enters into a bond, by which he assumes the whole responsibility. Has, then, the sheriff done, or omitted to do any thing which exempts the defendant from refunding the loss which the plaintiff has sustained by the recovery of Thompson against him, is the next inquiry. It is strenuously contended that he has, because he has not executed — 218 — the defendant’s writ, by returning the property sold or that writ, ■and paying the proceeds of sales on the second execution. That the plaintiff executed the defendant’s writ in the most approved form, has been, and hereafter will be, more fully shown; so that the complaint is nothing more nor less than that he refused to violate his duty, by paying the money over to the second execution, to the detriment and manifest wrong of the first. The plaintiff assumes, that unless there is a complete execution of the writ, by payment of the money to his execution, there can be no recovery. But that there may be an execution of the writ, in legal parlance, although the money is not paid, nor a cent raised applicable to the execution, is abundantly shown by authority. Thus in Sawle v. Paynter, 1 Dow. & Ry. 307, the seizure and levy of the sheriff is treated as the execution of the writ. And in Goldschmidt v. Hamlet, 6 Mann. & Gr. 192, Cresswell, J., says, the general rule is, that an execution is executed by seizure. And in Swain v. Morland, 1 Brod. & Bing. 370, it is held, that the writ is executed when the goods are sold. In that case the goods had been seized under a fi. fa., part were sold on Saturday, and the remainder on Monday, and an extent put into the sheriff’s hands at six o’clock, after the goods sold had been delivered to the purchaser, and the money received by the sheriff; it was held, the execution was executed, and that the party which issued the fi. fa. might recover of the sheriff in an action for money had and received, the money levied under the sale. It was a contest between the crown and the plaintiff in the execution, and was ruled in favour of the latter, on the ground that, by the sale, the execution was executed, and the property changed. It is an authority directly to the point, that payment of the money to the execution creditor is not indispensable to the execution of the writ: that a writ may with propriety be said to be executed, without payment of the money over., The authorities cited clearly show that the term, « executing the writ,” has no fixed, precise, legal signification, but that the interpretation must be referred to the subject-matter in controversy. That payment is not a sine qua non of the execution of the writ, is further evident from this, that by a fi. fa. which is a judicial writ, the sheriff is commanded to levy the debt, or damages, on the goods and chattels of the person against whom the recovery is had, and bring the money and the writ before the court on the return-day. He may, if he chooses to incur the risk, pay the money to the person entitled to it, but he is not bound to do so; he performs his duty by paying the money into court: Shafner v. Gilmore, 8 Watts & Serg. 438. That the de — 219 — fenclant receives nothing in payment of his execution will not relieve him from his responsibility on his bond, in all cases, is manifest from the authorities, and indeed has in effect been conceded in the argument. Thus, where 'there is one execution in the hands of the sheriff, and the proceeds of sale pay the cost only, it is not denied that the creditor will be liable on the bond of indemnity; or when, as in Sawle v. Paynter, 1 Dow. & Ry. 307, the proceeds are taken for the payment of rent, the law is the same. And so, in the case in hand, if the property had brought more than was required to pay the first execution, leaving a surplus applicable to the second execution. And yet it is difficult to see the distinction, when the same effect is produced by a first execution being in his hands, and consequently first paid. It is a distinction without a difference; the principle is the same. What then was the meaning of the parties to this contract ? To my mind it is clear, when we consider all the attending circumstances, that one had the right to ask, and the other was bound to concede, that by the word execute the writ, was meant, levying and selling the goods, paying the proceeds according to law, viz. into court, or to the first execution creditor, and applying the surplus, if any, to the payment of the plaintiff’s debt. These duties the sheriff performed to the letter. In nothing has he failed. He levied on the plaintiff’s writ, sold on his writ, and paid the money to the persons legally entitled, as he was commanded. It is not the less a levy and sale, on the plaintiff’s writ, that he had another writ in his hands, for, as we have seen, he levies and sells on all the writs. The fundamental error is in supposing that it was the duty of the sheriff to sell exclusively on the writ of the defendant, whereas it is plain he must sell, unless he chooses to violate his duty, on all the writs in his hands. This is a mistaken view of his duty, for it is not so written in the bond, and there is nothing to indicate such intention. And that this is the opinion of Lord Denman, is declared in Drewe v. Lainson, 11 Ad. & Ell. 539. The duty of a sheriff, where he has several writs of execution, is clear: he is to execute them according to their priority; which, as to writs of fi. fa., is according to the time of their delivery to him. By “ executing” is meant, (in the language of the learned judge,) that he is to apply the proceeds of goods seized in that manner. It is not material whether he seizes the goods under the first or last writ. As soon as they are seized, they are, in point of law, in his custody, under all the writs which he then has, and when he sells, then he sells, in point of law, under all the writs. This is obviously so, — 220 — for if the proceeds are more than sufficient to satisfy the first, he must apply the surplus to the second, and so to the third and others; and as the amount for which the goods will sell is uncertain, he cannot he said to sell under the first writ only: vide, also, 2 Miles, 447, 3 Penna. Rep. 230. We cannot suppose that it was designed by the parties to indemnify the sheriff only, on condition that he violated the law; but this monstrous and startling proposition is the plain result of the defendant’s argument. He contends that he only agreed to indemnify, provided the money, raised by the sale, was paid on his writ ,• but this, as we have seen, would be contrary to his duty, and had such a stipulation been inserted, it would, I apprehend, avoid the bond. For an agreement to indemnify a public officer, for a violation of his official duty, is simply void. This is a principle, I believe, without exception. It is said, that inasmuch as there was no surplus, the proper return to the plaintiff’s writ was nulla bona. That a sheriff may, when the money raised will not reach the second execution, make such a return, may be conceded, but that he is bound to do so, I deny. Nor is it necessary to consider what effect would be produced by a return of •nulla bona. It is enough that the sheriff made the usual and proper return; that he had levied upon the goods and chattels of the defendant, (subject to a prior levy, &c.,) and sold the same for $>3290 58. As, then, the sheriff performed his duty, we are of opinion there has been no breach of the condition, and that he is entitled to indemnity from the defendants. And now, to wit, this 3d day of January, in the year of our Lord one thousand eight hundred and forty-eight, come the parties aforesaid, and their attorneys, &c., whereupon as well the record and proceedings aforesaid, and the judgment aforesaid, in form aforesaid given, as the matter aforesaid, by the said John Gr. Watmough above, for error assigned being seen and by our said court now here fully understood, it appears to our said court that in the proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error; therefore, it is considered that the judgment aforesaid for the errors in the said record and proceedings be reversed and altogether held for nothing. And upon mature deliberation had, it appears to our said court here, that the pleas of the said plaintiff by him pleaded, by way of replication to the third, seventh, ninth, and tenth pleas of the said defendant, are sufficient for the said J. Gr. Watmough to — 221 — have and maintain bis aforesaid action thereof against the said Charles Francis, wherefore it is considered that the said J. G-. Watmough ought to recover judgment thereof against the said C. Francis. But forasmuch as it is unknown to our said court what damages the said J. Gr. Watmough hath sustained by means of the premises, or what judgment shall be finally given on the whole record, by reason of issues of fact therein yet remaining and undetermined, whereupon the record and proceedings of the said judges of the said District Court, before them had in the premises, are remitted by our said court here, and let a venire, &c., to the sheriff, &c., issue out of the said District Court, to summon a jury, &c., as well to try the several issues, whereupon the said C. Francis-hath put himself upon the country, as to inquire what damages the said J. G. Watmough hath sustained by reason of the said matters, whereof judgment hath been given against the said C. Francis, and thereupon let the said District Court proceed and giye judgment as upon the whole record, shall be according to law.