Page & Bacon v. Butler

Scott, J., delivered the opinion of the court. The respondents present themselves in an attitude which precludes the court from rendering them the relief which they seek. Here is property levied upon on the 22d day of May, and a bond given for its delivery on the 2d day of September following the day of sale; it is forfeited, and a jury, on the 13th of November, is summoned at the instance and on the claim of one of the sureties to try the right of property, and having found the property described in the bond, to belong to the claimant, that verdict is returned as an excuse for the forfeiture. We hold, that the claimant of property levied on by virtue of its delivery, can only avail himself of his claim by complying with the condition of the bond, delivering the property at the time and place required, and making his claim to it. If he suffers a forfeiture, he cannot, by a future successful assertion of his claim, avoid the consequences The bond is a statutory one, and can only be defeated by such defences as are allowed by law. The statute gives no such defences, and in an action at law for a breach 'of its condition, which is authorized, it is not pretended that such a defence could prevail. The form of procedure adopted to enforce the bond, cannotvary the defence. We do not see the force of the argument, that inasmuch as by the statute, ten days notice of the trial must be given to the creditor, and, as in all cases, a forfeiture of the bond may be had in ten days from, the levy, a trial had after the forfeiture of the bond, should be as effectual, as a defence, as if it had taken place prior to that event. If a claim to the property is interposed on the day of trial, notice may be given on the same day to the creditor, and the trial had on the day of the delivery of the property, according to the terms of the bond. If the claim is made within ten days from the time of delivery, the condition of the bond may be complied with, and the sale postponed to a day that would enable the sheriff to give the creditor the requisite notice. If this should be refused, the claimant would not be without his remedy, as he may sue the sheriff, or the purchaser of the property at his sale. Persons who have claims to property, seized under execution, will find that a forth-coming bond is a hazardous instrument, on which it is dangerous to litigate their rights. They should never become parties to them. If a creditor sues out his execution, which is levied on property, and a party should become security for its delivery, after the bond is forfeited he should not then, for the first time, be heard, in making [77] his claim to the property. Such a course is an injury to the creditor. It arrests his execution for months, as in this case, by interposing a security on which he relies, and after all other property of the debtor may have been disposed of, or made way with, or is too late for another levy and sale, it takes away the means to which he looked for satisfaction of his debt; and that, too, by one who had bound himself that those means should he forth-coming- for the payment of his demand. The determination of this case is based upon the principle, recognized in the courts of many of our sister States, that when goods, seized under execution, are delivered to a third person, on his giving a receipt, promisino- to re-deliver them on a given day, and the receiptor reluses to comply with his promise, claiming that the goods, at the time of the levy and receipt, were his own, he is estopped from setting u,p title in himself, in an action on his undertaking: Dezell vs., Odell, 3 Hill 2.15;. Bursley vs. Hamilton, 15 Pick. 40. The case of Lampres vs. State, 7 Black. 43, cited by the respondents to show, that after a forfeiture, a trial of the right of property in which the right is found for the claimant, though a party to the forth-coming bond, will be a defence against any proceedings on it, is not in point. In that case, it way be gathered from the statement, that the trial of the right of property took place before a forfeiture, and in consequence of the finding there was no delivery. In the case of Long vs. United States, Freem. Miss. Reps., the surety, who was relieved, was not a party to the fo-rth-coming bond. The case of Burseley vs. Hamilton 15 Pick., cited to show that the finding of the jury, that the property is not in the debtor, might be given in evidence, in mitigation of damages, is not applicable. That was an action, of assumpsit, to recover damages for the non delivery of the property by the receiptor. This is a proceeding under a bond with a penalty, and the law has fixed the rule by which the damages shall be estimated in case of a forfeiture. Under the statute regulating proceedings in courts, Butler was a competent witness. The other Judges concurring, the judgment is reversed and the cause remanded.