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Darling and others v. Peck and others.

Dec.

1846.

In Bank, execution, and the other plaintiffs in error, a bond under the

9. statute then in force, to the defendants in error, in the penal - sum of one hundred and fifty dollars, conditioned to be void if

said Darling should deliver, at the time and place of the next sale, to the officer having in his hands an execution upon the same judgment, the property to him restored, (meaning the property held by the constable under the execution) or other property of equal value, to be selected by the officer -- which value should be determined by an inquest of three householders; that upon the execution of said bond, the property was redelivered to the said Darling by the constable ; that on the 19th March, A. D. 1845, a further vendi. exponas was issued on the judgment, and delivered to a constable to execute on the 7th April, A. D. 1845, who returned that he “advertised the prop(erty for sale, but the same was not offered for sale, in conse

quence of the failure to deliver.” The defendants in error thereupon brought the present action of debt upon the bond against the plaintiffs in error, as the obligors, and filed their declaration in two counts, averring, in substance, the making of the bond — the issuing of the last vendi. exponas — the delivery of the writ to the constable for service — the advertise ing of the property for sale by the constable — and the failure of Darling, although he had notice of the time and place of sale, to deliver the property described in the execution to the constable, or any other property of equal value, from which a. selection might be made according to the condition of the bond; and in one of the counts was an averment, that the constable made demand of the property from Darling; and in the other, that averment was omitted. To this declaration the plaintiffs in error pleaded the single plea of non est factum, with notice that they should prove and insist, as a bar to the recovery. by the defendants in error, that, at the time when the said property was advertised for sale, the said Darling had other property which he offered to turn out at the appraisement of three householders, and that the constable then and there neglected and refused to select the same, or to call said householders to de

Darling and others v. Peck and others.

termine the same. Upon the issue thus joined, the cause was In Bank. submitted to the Court; and the defendants in error, in support of their case, gave in evidence the bond declared upon, and the transcript of the original judgment upon which the execution was issued. To the introduction of this transcript in evidence, the counsel for the plaintiffs in error objected, but for what cause, does not appear of record. The defendants in error then proved by the constable, to whom the last execution was delivered for service, that, having in his hands the execution, he called upon Darling for the property described in the execution, and made demand thereof, or other property, as provided for in the bond, but that Darling neglected to produce, on the day of sale, either the property levied upon or any other. To the admission of this testimony the counsel for the plaintiffs, objected, but his objection was overruled, and they tendered their bill of exceptions; and the Court upon this state of facts gave judgment for the defendants in error in the amount of the penalty of the bond, and ordered that execution issue for the amount found to be due upon the original judgment, and costs. : ... .. . ..

To reverse this judgment of the Court, the present writ of error is prosecuted.

Several errors are assigned, which are stated in the opinion of the Court.

Spink & Hosmer, for Plaintiffs in error.

· Young & Waite, for Defendants in error.

BIRCHARD, J. The second error assigned is, that the bond was void; the third, that there was no breach of it. The bond was executed in pursuance of the 4th section of the act passed January 19, 1843, (0. L. vol. 41, page 10) which act expired by its terms of limitation on the first day of March, 1845, The first three sections of the act provide for the appraisement of personal property levied on execution, and also, that it shall

Darling and others v. Peck and others.

1846.

In Bank. not be sold for less than two-thirds of its appraised value. Dec. Term, The fourth section provides that when the goods or chattles"

thus “ levied and appraised shall not be sold for two-thirds the appraised value, it shall be lawful for the officer holding such execution to return upon the same, not sold for want of bidders ;' and such officer shall deliver such unsold goods (and chattles to the person against whom execution had

issued,” &c., &c., “upon his giving bond," &c., "conditionied that the said debtor in execution will deliver at the time

and place of the next sale, to the officer having in his hands (an execution upon the same judgment, the goods and chat· tels to him restored, or other goods and chattels of equal • value,” &c., “which bond shall be made payable to the other party in the execution.”

The 11th section of the act declares what shall constitute a breach of the bond, in these words: “That if the debtor in execution shall not at the time specified in the condition of

the bond, deliver to the proper officer the goods and chattels "to him restored as aforesaid, or other goods and chattels of equal value as aforesaid, the condition of said bond shall be

considered broken, and the creditor may sue out a writ of <scire facias,” &c.

The ground taken in support of the second and third assignments of error, is, that as the statute expired on the 1st March, 1845, and the execution upon which the property that had been levied upon, or other property of equivalent value, was demanded, issued on the 19th March, 1845, after the expiration of the statute; the bond itself was absolutely dead, and all rights under it were gone. In support of this it is urged, that to suppose differently, is to suppose that the creature is greater than the creator - the bond may survive the statute which called it into existence. That it was the duty of the justice to issue another vendi. exponas immediately, and the duty of the defendant in error to see that he did his duty in this respect. We cannot sustain such views, believing, as we do, that they are unsound. When made, the contract was

Darling and others v. Peck and others.

Dec. Term,

1846.

good and valid in law; it was a contract which the officer was In Bank. authorized expressly to enter into on behalf of, and for the ben- Dec efit of the defendant in error. Without the aid of the statute -he could not have entered into it, but that gave him power to receive the bond and return the goods to the judgment debtor; and he acted under its authority. The taking away of the authority cannot affect acts lawfully done under it, while it existed. The bond was valid once, and if once so, is so now. It is not a penal bond, to be construed like a conveyance, as will be seen hereafter. As to the duty of the magistrate to have forthwith issued an alias vendi. exponas on the return of the bond, little need be said. The 10th section of the act is imperative; it forbade the issue by the magistrate in any case, unless directed by the judgment creditor, his agent or attorney.

The next point to be considered, is, whether there could be a lawful breach of such a bond after the expiration of the act.

All that the law requires to constitute a good breach of the bond, is, a refusal to deliver the property bonded, upon the day of sale, or its equivalent in other property, to the officer having an execution upon the same judgment.

According to the evidence, there was in this case literally just such a breach of this bond. It is the precise breach appearing from the proof set forth in the bill of exceptions. The only difficulty in the way, is a supposed want of authority in the constable having the execution, to sell, after the expiration of the act, any other property than that originally levied upon. It would seem hardly fair to allow such an objection to avail the plaintiff in error.

It was the business of the officer to see to his own authority, the business of the defendant in execution to comply with the terms of his bond; and had he lived up to the letter of his obligation, and voluntarily placed the property originally levied, in the hands of the constable, there would be no question of his right to sell, and as the other equivalent property would have been delivered for the purpose of sale on the execution, we think the officer, had it been turned out to him pursuant to the

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Dec. Term,

IN Bank. terms of the bond, might have sold it and applied the proceeds

erm, in satisfaction of the same, with perfect safety.. 1846.

The fourth assignment is, that the Court erred in admitting parol evidence of the acts of the constable.. .

It is necessary in disposing of this point, to bear in mind the issue between the parties, which was non est factum, unaccompanied by an affidavit of the truth of the plea. The introduction of the instrument itself, proved this issue against the plaintiff, and entitled the defendants in error to judgment for the penalty of the bond. It is not the same issue as nil debit, and did not require any other proof of indebtedness before a recovery could be had. · It is true that the plea of non est factum was accompanied by a notice that they would prove that Darling offered to turn out other property at the appraisement of three householders, and that the constable neglected and refused to call upon said householders to determine the value of the same. Under this notice the plaintiffs in error had the affirmative, and if the Common Pleas erred in admitting the adverse party to introduce incompetent testimony to establish a fact admitted by plaintiff's own pleading, he cannot be heard to alledge that the error is to his prejudice. The general rule is, that what is not avoided or denied in a plea, is confessed, and, as before said, the plea only denied the execution of the bond. - But was the parol evidence incompetent? The vendi. exponas commanded the sale of the certain specific property therein named. The officer returned that he could not sell that specific property, because the debtor refused to deliver it to him. This was a full return, because the law had expired which required of him a demand and sale of other property of equal value. The proving that other acts were done, by no means contradicted the return upon the execution made by the officer. The demand of other property in lieu of that specified in the writ, was an extrinsic fact, not proper to be returned under the circumstances, or at least not required to be indorsed upon the writ, and might therefore well be established by parol.

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