Baker ex rel. Hazlehurst v. Smith

Shippen, C. J. did not amend the argument, and therefore gave no opinion. Yeates, J. It has been admitted, that the execution which issued on the 5th October in the first action, cannot be supported. On the face of the bond, the money was not due until the 29th December, nor was any part of it payable until January following, under the parol agreement of paying it by instal-ments. Besides, the bond on which the judgment was entered, was surrendered to the defendant, before the execution issued ; and a new bond was executed payable on the 27th September. On both grounds therefore, the first fieri facias clearly cannot be maintained. The greatest difficulty rests on the regularity of the second execution, at the suit of Hazelhurst and son, issued on the 8th December, upon the judgment entered up on the preceding day, returnable to 29th December 1804, being the last return day of the term. I do not take into consideration the teste day of this fi. fa. Because if it was erroneous merely in this particular, it being the mistake of the officer without special directions, it may be amended, according to the authority of many cases. The strength of the objection is, that the judgment being confessed of December term, after the court had begun to sit, no real execution could issue, returnable at an earlier day than the next March term. The plaintiff’s counsel have contended, that the general words of the act of 18th April 1795, comprehend this case. It extended “ to all writs original, mesne or judicial process or other pro- “ ceeding, which might be made returnable at 'the election of “ the party suing out the same,” &c. They assert, that it is the uniform practice to issue mesne process, after the term has commenced, returnable on the last return day of the same term ; and that no distinction can be drawn from the expressions in the act, between mesne and judicial process. On the other hand, it has been insisted, that the issuing of mesne process in such cases was a common error, which having prevailed for nearly ten years, was mellowed down into evidence of right, and could not be attended with any bad consequences ; but that stricti juris, the practice ought to have been restrained to cases, where the party had an election, to make his process returnable to the first, or second return days. * 192] Ewing et al. v. M'Nair, 2 Dall. 269, has been cited *on 1921- both sides, determined in December term 1796. According to my note of that case, the court declared, “ that where [192] “ the filing of writs was merely formal, as in the matter then “ before the court, of filing a ft. fa. whereon to ground a testa- “ him, or of a venire facias whereon to found a distringas, in “order to accelerate a trial, no injury whatsoever could arise “ from making the ft. fa. or venire, returnable on the second re- “ turn day of the term. But the adoption of the same practice, “ as to suing out a ca. sa. whereon to charge special bail, or a “ft. fa. to levy lands, whereon a venditioni exponas might imme- “ diately issue, required more consideration ; as these did not “ appear to be the delays and inconvenience intended by the “legislature, to be remedied by the law of 18th April 1795.” Salk. 589. 2 Barnes, 169, 171, 174. 1 Barnard. B. R. 392. 2 Tidd 743. The court thus early distinguished between formal fictitious writs, which might be filed as matters of course, and real writs, which required the effective services of the ministerial officers. But it'has been urged, that no serious evils could arise in the present instance, the ft. fa. being levied on goods ; and that though the ft. fa. had been made returnable on the first day of the March term ensuing, the sheriff might sell on the delivery of the writ, after duly advertising • the personal property. It will not be denied, that the ft. fa. being made returnable at a short day, necessarily quickens the sheriff’s pace. If the pres ent execution can be maintained, even considering its teste to be amended, the consequence must be, that on every judgment obtained by confession, or on a verdict during the term, an execution against the body, or lands and goods of the defendant, may immediately issue to the last return day of the term, which the majority of this court conceive, was never contemplated by the law of 1795. We are fortified in our opinion, by the sentiments of the court, expressed in Ewing et al. v. M'Nair, and the uniform practice of the bar. Attentive as those gentlemen are to their clients’ interests, this is the single instance, wherein an effective execution has been issued to the second return day of the term, on a judgment entered up the same term. It is strong evidence of their sense of the practice. We have been called upon, to award restitution of the monies and effects levied, and under the circumstances of this case to impose terms on the plaintiffs. This applies to the legal discretion of the court. We are not insensible to the harshness of the measures pursued by Mr. Samuel Hazelhurst, in levying on all the goods of the defendant, by an illegal execution, and locking them up from the 5th October, while interest was running on upon the second bond : but we also know, from what passed during the argument, *that if the amount of sales is restored to the de- p fendant, a probable if not certain loss will be incurred by 93 the plaintiffs. Besides, the terms of the act are not sufficiently clear and precise, to exclude reasonable grounds of doubt, on its true construction. Cited in 9 S. & R. 284 in support of the decision that an omission in a levari facias of the command to levy the debt, is a clerical mistake, and may be amended, after error brought, by the court above. Cited in 10 S. & R. 107 ; Bright. 455. Cited in 12 Pa. 254; 27 Pa. 288 to shew that restitution is not of mere right. It is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it, or where the process is set aside for a mere slip, and there is danger that the plaintiff may lose his demand. Messrs. Ingersoll and Rush, pro quer. Messrs. M. Levy and Wilson, pro def. Under these impressions, we do not think ourselves warranted to interpose the summary powers of the court, as prayed for by the defendant’s counsel; but find ourselves constrained to leave the party injured to his remedy at law by an impartial jury. At the same time, we flatter ourselves that the distressed situation of the defendant, and a sense of justice and propriety on the part of the plaintiffs, will induce an early compromise and settlement of this unfortunate business. Smith, J. concurred. Brackenridge, J. I am of opinion, that the first execution was irregular, but' not so of the second. I think the second execution is both within the plain wbrds and policy of the second section of the act of 18th April 1795. The shadow follows the substance, and why shall we not pursue the expressions of the legislature,^ which shew best their true meaning ? I am decidedly of opinion, that the defendant should have his remedy by his personal action, and agree fully with the sentiments of the court already expressed, except so far as they respect the return day of the second execution. Executions in both actions -set aside, and the rules made absolute so far, but no further.