Lovejoy v. Bright

Dewey, J. This was an action of debt by Bright against Lovejoy and Rogers. The declaration states that the plaintiff recovered a judgment in the Decatur Circuit Court against Lovejoy and one Dragstrem (describing it); that a fieri facias against Lovejoy and Dragstrem issued upon the judgment and was placed in the sheriff’s hands. The execution is set out, and correctly recites the judgment. The declaration further states that, for the purpose of replevying the judgment, one Watson executed his written instrument, which the sheriff returned into the clerk’s office with the execution. The writing is without a seal, and its condition recites a judgment varying from the one before mentioned in the sum recovered, and an execution different in amount from that which was alleged to be placed in the hands of the sheriff. It is then averred that a fieri facias against Love-joy, Dragstrem, and Watson, which was issued upon the [207] judgment first mentioned and upon the writing executed by Watson, was placed in the hands of the sheriff; that the sheriff levied it upon certain property of Lovejoy’s; that the defendants, Lovejoy and Rogers, executed their delivery-bond, payable to the plaintiff, whereupon the property was delivered to Lovejoy. The condition of the delivery-bond recites an execution, on which the property was taken, different from that which was alleged last to have been in the sheriff’s hands, on which the property is previously alleged to have been taken. The breach of the delivery-bond assigned is, that Lovejoy did not deliver the property according to the condition. The variance between the first-mentioned judgment and execution, and those recited in the condition of the writing executed by Watson, and the variance' between the execution w’hich issued against Lovejoy, Dragstrem, and Watson, and the execution recited in the condition of the delivery-bond, are attempted to be explained by innuendoes that the recitals of certain sums meant other sums, and that the judgment meant another judgment. The defendants pleaded three pleas, to one of which there was a demurrer, which was sustained. Replication to the other two pleas, and issues. Yerdict for the plaintiff. Motion in arrest of judgment overruled, and judgment on the verdict. It is unnecessary to state the plea which was adjudged bad on demurrer, because it is immaterial whether it is good or bad, as the declaration is substantially bad in two respects: First, the execution which is alleged to have issued against Lovejoy, Dragstrem, and Watson, on which the officer seized the property named in the delivery-bond was unauthorized and irregular. The statute which governs this case authorizes the officer holding an execution to take a replevin-bond for the stay of the execution, requires him to return the bond with the execution to the clerk’s office, the clerk to record the bond, gives to the bond the force and effect of a judgment confessed against the obligor, and authorizes an execution to issue upon it. R. S. 1838, pp. 280, 281. The writing executed by Watson was not a bond: it had no seal, and was not a compliance with the statute. It could not therefore have the force and effect of a judgment, or sustain [208] an execution. The consequence is, that the plaintiff has failed to show any legal title to the delivery-bond for the property taken by the officer; he has in fact shown that the bond was given without any consideration. Secondly, the declaration is defective on account of. the variances before stated. They are material and fatal. The innuendoes, attempting to explain them by alleging that certain recitals in the instrument executed by Watson, and in the condition of the delivery-bond, mean what their language does not import, are unavailing. To allow them to prevail would lead, to the introduction of parol evidence to contradict the face of the written instruments to which they refer. This is dearly inadmissible. Bowen et al. v. Gresham, 6 Blackf. 452. The demurrer to the plea should have been decided in favour of the defendants, on account of the' defects in the declaration; and the motion in arrest of judgment should have prevailed for the same reason. G. H. Dunn, for the plaintiffs. J. Ryman and P. L. Spooner, for the defendant. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.