Lyman v. Mower

The opinion of the court was delivered by Prentiss, J. The question, whether the act, exempting the body of the judgement debtor from arrest for a limited time, and discharging him from his imprisonment on the creditor’s execution, was admissible as a defence to this action, must be considered as settled by the decision in the case of Ward vs. Barnard. — 1 Aik. Rep. 121. The decision in that case did not proceed upon the ground, that the bond was a contract within the provision of the constitution of the United States, prohibiting the state legislatures from passing acts impairing the obligation of contracts, but upon the ground, that the act was an enactment in a particular [519] «ase, affecting private rights, was retrospective in its operation, and, on the general principles oflaw, void. The decision was in conformity with opinions expressed by several successive cils of censors, composed of men of the first respectability ior intelligence, having great experience in legislation, and a thorough knowledge of the principles of our government. The question was several times argued, was maturely considered, and the court were unanimous in the opinion which was pronounced.— Subsequent reflection has not shaken our confidence in the soundness and correctness of the decision ; nor do we think it at all impugned by the determination in the cáse of Mason vs. Haile, 12 Wheat. 370. That case is distinguishable in several very .essential and important particulars, and may well be considered as resting on different principles. The defence, that the sheriff", the plaintiff’s intéstate, had hot been in any way damnified, and that his estate had been represented insolvent, and the commission closed, without any claim having been exhibited by the creditor against the estate, is tantamount to a plea of non damnificatus. In Woods vs. Rowan, 5 John. Rep. 42, it was held, that such a plea was no answer to an action, brought by the sheriff, on a bond given to him, as security for the liberties of the prison. That decision appears to us to be founded on just principles. The bond is not simply and merely a bond of indemnity. The condition is, not only to indemnify and save the sheriff harmless, but that the judgement debtor shall faithfully and absolutely remain within the liberties of the prison, and not escape or depart therefrom, until he shall be lawfully discharged ; and it is a settled principle, that if any sub-, stantive part of the condition of a bond is broken, the bond is forfeited at law, and an action accrues thereupon. By the statute, the creditor may lake an assignment of the bond, and maintain an action upon it in his own name ; and his right of action against the sheriff’for the escape is suspended, until he has demanded the bond, and there has been a refusal to assign h, or he has failed to recover and obtain satisfaction upon it. The bond is a part of the process prescribed by law for enforcing payment of the judgement debt, and is intended for the benefit of the creditor. But the sheriff has a right of action upon the bond, on the escape of the debtor, and may recover upon it, whether he has paid any thing to the creditor or not. Indeed, circumstances may render it necessary for him, before the creditor calls for an assignment of the bond, to bring an action upon it in his own name, for his own security. If he recovers upon the bond, it is a satisfaction by the debtor of the judgement debt, and the sheriff is lia520 kle overto the creditor. This right of action in the sheriff, iti case of his death, goes to his personal representative ; and in an upon the bond by the representative, it can be no defence, that the creditor’s cause of action against the sheriff does not at law survive against his representative, or if it does, that no claim has been exhibited by the creditor against his estate. If the judgement debt is not paid, or released, or in some way extinguished, but still subsists unsatisfied against the debtor; no good reason can be assigned, why the representative of the sheriff may not enforce payment of it by a suit upon the bond. If he recovers satisfaction, he will hold the money for the use of the "creditor. It will not be assests in his hands to be distributed as part of the estate of his intestate, but will be the money of the judgement creditor, received in satisfaction of his debt, and held in trust for him ; and he may maintain an action at law to recover it, or at at any rate a court of equity would order it paid over to him. In Hall vs. Walbridge, 2 Aik. Rep. 215, it was determined, that where goods under attachment were wrongfully taken from the officer, his administrator might maintain an action of trover for the ‘goods, for the benefit of the attaching creditor, though nothing had been paid to the creditor by the officer in his life time, and though his estate had been represented insolvent, and no claim had been presented by the creditor against it. In the case before us, the bond, on application of the creditor; was delivered over to him by the administrator of the sheriff; and the exceptions state, that the action is brought and prosecuted by the creditor, in the name of the administrator, for his own benefit. In any view of the case, it is very clear, that no defence can avail the defendants, that would not be allowed, if the bond had been formally assigned to the creditor, and the action had been brought his name. From these principles it results, that the amount the creditor’s judgement must be the measure of damages; and that evidence of the poverty of the judgement debtor; or his inability to pay the debt, was inadmissable. The only remaining point presented by the exceptions, and discussed in the argument, arises from the direction given to the jury, to compute interest, in the assessment of the damages, from the rendition of thejudgement. On this itissufficient to observe; that it has always been the rule, in assessing damages on the forfeiture of a bond of this description, to allow interest from the date of the judgement. Judgement affirmed;