Bayless v. The Belmont Bank of St. Clairsville. At the common law, a writ of error, of itself, operated as a supersedeas to all further proceedings, in the suit in the Court below, if sued out before execution began. In fact, it removed the record to the court of error. This rule of the common law did not suit the taste of our Legislature, for such writs would have been resorted to for mere delay in many instances. To prevent the abuse, perhaps, of this writ, the following act was passed : "That no writ of error shall operate as a supersedeas to any ' execution issued on any final judgment of the Court of Com'mon Pleas, unless the clerk, before signing such citation, shall 'take a bond from the applicant to the adverse party, with one or more good securities, in double the amount of the judgment 'obtained, conditioned for the payment of the condemnation money and costs, in case the judgment of the Common Pleas 'shall be affirmed, in the whole or in part." Swan's Stat. 679, 'sec. 120. The whole object and consideration of such bond is, that it shall operate as a supersedeas as to the execution. If it did not, or could not so operate, it could not operate as a statutory bond in any way, and was of no validity whatever. Did this bond operate to supersede the ca. sa., on which McKee was held in custody? It will be useful to inquire what effect the suing out a writ of error would have, in a case like this, without reference to the statute. At the common law, the writ operated as a supersedeas, if sued out before the judgment had been executed in part or in whole; and an execution was considered as an entire thing, and if begun to be executed, it went on to the end, and the writ of error in such case did not operate as a supersedeas. The case of Kinnie, qui tam, v. Whitford, 17 Johns. Rep. 34, was a motion, on the part of the defendant, that the writ of error filed in this case be a supersedeas to the execution issued on the judgment, &c.. The execution had been levied before the writ was filed. The Court says: "In a qui tam action, the statute does not require that the bail to a writ of error should be put in, in order to make it a IN Bank. Dec. Term, 1846. Bayless v. The Belmont Bank of St. Clairsville. IN BANK. supersedeas. But in this case the execution had issued, and Dec. Term, 1846. 6 was actually levied on the property of the defendant, before 'the writ of error was filed; and this writ of error was, therefore, no supersedeas. This is so decided in Blanchard v. 'Meyers, 9 Johns. Rep. 66." This last case was a like motion. The Court says: “A 'certiorari, allowed after execution began to be executed by the 'constable, is no supersedeas to the execution. The same rule 'applies to cases arising under justices' judgments and executions which exists as to other courts, when a regular writ of 'error is allowed; and it is well settled, that the allowance of a writ of error, after the sheriff has levied under a fi. fa., is no 'supersedeas to it." Meriton v. Stevens, Wills' Rep. 271. The case of Brisban v. Baines, 11 Johns. Rep. 197, was a motion to set aside a fi. fa. The Court says: "In the pres'ent case the writ of error was allowed the fourth of January, and no bail in error was put in within four days after the 'judgment was signed, nor before the execution was delivered to the sheriff, nor does it appear that it has ever been put in 'to this day." The motion was denied. So, in Blunt v. Greenwood, 1 Cowen's Rep. 15, the Court decided that an execution could not be superseded after it had been executed. In the case of The People ex rel. Gould et al. v. The Judges of the Common Pleas, in the city of New York, 1 Wendell, 81, the Court holds that, when the writ of error is sued out in time, and the bail given in four days, the execution will be superseded, but not otherwise. Four days is given during which the person suing out the writ of error may give the bail, and the execution will be superseded and restitution be ordered, if necessary, if issued in those four days; but if the bail is not so given, the same will not operate as a supersedeas. In Meriton v. Stevens, Wills' Rep. 271, the Chief Justice reviews all the cases upon this subject from the earliest period, and comes to the conclusion that, if a levy is made on an execution before the suing out of the writ of error, the sheriff must Bayless v. The Belmont Bank of St. Clairsville. Dec. Term, 1846. proceed to the sale of the goods, and bring the money into IN BANK, Court, to abide the event of the writ of error; in which conclusion he is supported by the whole Court, except Mr. J. Fortescue. It is however well worth observation, that in page 280, the Chief Justice expresses his doubts as to the reasonableness of the rule, when applied to a ca. sa. instead of a fi. fa. "If it were a capias, (he continues,) that being a complete ' execution, it has been holden that a writ of error comes too late ' afterwards, for that the judgment is completely executed, and 'therefore the party shall remain in prison, notwithstanding the writ of error. But, quere, how far this is reasonable, since the statutes, 3 Jac. 1, ch. 8, 16, and 17 Car. 2, ch. 8, in such cases, when bail is actually put in to answer the debt, or dam'ages and costs, pursuant to the directions of the statutes." This writ was issued in October, 1840; the statute prevented it from operating as a supersedeas. On the 2d March, 1841, by means of the operation of the statute, the bank was entitled to an execution, and of course it could not be at any loss for some one to swear out this ca. sa, on which McKee was that day arrested. When he was so arrested, and in custody, the judgment was fully executed; there was in fact nothing left for either party to do. We have seen that, at the common law, such an execution would not be superseded, but that the party would have to be in jail until the judgment should be reversed. The statute does not say that a writ of error, even with the bond, if given in time, shall supersede an execution partly executed, or wholly executed, as in this case, but only that no writ of error shall operate as a supersedeas, unless the bond be given before the issuing the citation, whether there has been an execution or not. The statute requiring this bond is in restriction of the common law, and is to be strictly construed. The case of Craig ads. Scott and others, 1 Wend. Rep. 35, was a motion to quash the writ of error. The Court says: the Court will not inquire in an ordinary case whether the writ of error is prosecuted for delay; it is a writ of right to which the party is entitled, and Dec. Term, 1846. Bayless v. The Belmont Bank of St. Clairsville. IN BANK. the court are averse to impose restrictions upon its prosecution.” It is claimed that inasmuch as there never was in fact any citation issued in the case of McKee, by the Belmont Bank, that the bond was well executed as a statutory bond. The issuing of the citation and notice, and the service of them, was waived by the party against which the same was to be issued and served. This appearance and waiver was done by the party and the clerk of the Court; and McKee could not have prevented this, nor could he have a citation issued after such waiver. The party had the right to waive the issuing and service of those papers, as well as of any other writ. It was intended by the parties, that this act should place it in the same situation as it would have been in by the issuing and service of the papers waived, and such is the legal effect of that act. It was so considered by the Common Pleas, and in accordance with that view the Court ruled the bond to be void as a statutory bond. The statute is positive that no writ of error shall operate as a supersedeas, unless the bond shall be given before the signing of the citation. This must be taken to mean what the words themselves import. There is nothing to explain by; the words are as plain as words can be. Neither does the spirit of the law require anything but a literal construction. I conclude, therefore, that this bond was not a binding instrument under the statute. If not good under the statute, is it binding as a common law bond? The requisites to a good common law bond are, parties competent to contract, and actual contract by the parties upon sufficient consideration. None of these here are found. The parties never did contract. The Bank, the party now seeking to enforce it, had no agency in bringing it into existence. And it was executed without consideration. It was designed to operate as a supersedeas; failing in that, it failed to accomplish what was intended by the maker, and remained a nudum pactum. It was so void and lifeless that vitality could not be Bayless v. The Belmont Bank of St. Clairsville. imparted to it by the judicial decision of Judge Rogers, dis- IN BANK. charging McKee on the habeas corpus. R. J. Alexander, for Defendant. The principal questions arising in this case are The language of the statute is, "that no writ of error shall ' operate as a supersedeas to any execution issued on any final 'judgment of the Court of Common Pleas, unless the clerk, 'before signing such citation, shall take a bond from the applicant to the adverse party," &c. Swan's Stat. 679, sec. 120. The object of the Legislature was, certainly, to so far alter the common law as to prevent the issuing of a writ of error from operating as a stay of execution, unless a bond should be given to the adverse party. It would seem that, by the common law, the allowance of a writ of error is itself a supersedeas. 1 Term Rep. 279. And the allowance operates as a supersedeas, though the plaintiff is ignorant of it. 5 Taun. 203; 1 Chit. Rep. 238. A writ of error is a supersedeas, without bond being given, either before or after the issuing of an execution, and even after a levy is made. 1 Wend. 81, note (a.) Statutes requiring a bond to make a writ of error operate as a supersedeas, are against common right, and must be construed strictly. 22 Wend. 587. By the express provisions of our statute, the writ of error in this case could not have operated as a supersedeas without a bond being given; and there can be no doubt that the writ of error did operate as a supersedeas, if the bond was given before the clerk signed the citation. The statute, then, must be construed strictly, and Bayless himself claims that it shall be so construed; and, by this construction of the statute, strictly as against the bank and liberally in favor of McKee, the question of fact arises, was the bond Dec. Term 1846. |