Meredith v. Richardson , 10 Ala. 828 ( 1846 )

GOLDTHWAITE, J.

1. The bond, by means of which the defendants in this cause claim to retain the money collected by them from the plaintiff, was declared defective as a statutory forthcoming bond, in Lunsford v. Richardson, 5 Ala. Rep. 618, and the principal question now is, can it be available as a common law obligation, against the plaintiff’s suit to recover back the money made by the sale of the property of his testator, on the void or irregular execution. In our judgment, it is not very material to inquire, whether the execution on the bond was absolutely void, or only irregular, as the form of action selected is assumpsit. There are many cases in which the plaintiff has the privilege of electing, the form of action to redress his supposed injury, but when one is chosen, as preferable to others, it is always open to the de-fences which are peculiar to that form of action. A strong illustration of this rule is found in the case of Smith v. Lewis, 4 D. & E. 211, where a bankrupt on the eve of his bankruptcy, had fraudulently delivered goods to one of his creditors, and his assignees brought assumpsit for their value, instead of trover, as they might have done. It was held the creditor was entitled to a set off, although this would not have been allowed if the other form of action had been pursued.

2. Although not material in this view to be decided, it will perhaps be more satisfactory to know, that the party has not misconceived his action. In point of law, the plaintiff has no act or part in the issuing of execution on a forthcoming bond. The statute makes it the duty of the sheriff, within ten days after the forfeiture of the bond, to return it with the execution, to the clerk of the court, and the latter is required, within five days thereafter, to issue an execution against the obligors. [Dig. 215, § 73.]

There would be a peculiar hardship in holding the plaintiff liable as a trespasser, for an act in which he never participated, and of which, in the majority of instances, he is entirely ignorant. We can perceive no sound distinction between the effect of an office, or statutory judgment, and one rendered in the due course of the courts. In the one instance the clerk is the officer upon whom the law casts the onus of determining the existence of the fact which warrants the issuance of the execution, and in the other the consideration is given by the court. If either the one or the other commits an error of judgment, the laws afford ample opportunities for its revision, and the prevention of any injury from it.

3. It is supposed however, that the plea sustained as good, is defective, because it insists, in effect, on the right to retain the money, as equitably belonging to the defendants, instead of presenting their claim as a set of, and our decision in Dupuy v. Roebuck, 7 Ala. Rep. 484, is chiefly relied on to sustain this position. What is said there is in strict conformity with the universally admitted principle, that any de-fence is admissible to justify thd defendant’s retention of the money claimed to have been received to the plaintiff’s use, which will show the latter is not entitled ex. equo et bono to recover. [Moses v. McFarlane, 2 Burr. 1011.] But we go further, and show that this defence, under the general issue, must grow out of, or be connected with, the same transaction, or subject matter, in which the money was received— otherwise the principle then invoked would let in a set off in all cases, without pleading it — but we there expressly rested our judgment, that the record did not disclose a state of facts which would warrant a recovery for the defendant, if he had been' suing upon the covenants under which he claimed the right to retain the money collected on the reversed judgment. Here, however, the facts are entirely different, because, if the bond is of any validity, enough is asserted to show the defendant’s right to recover upon it the precise sum they have received.

4. And this brings us to what we have already said is the principal question — the validity of the bond as a common law obligation. In its common aspect this cannot be considered an open question, in this court, after the elaborate examination it received in Whitsett v. Womack, 8 Ala. Rep. 466. We there held, that a bond taken by a sheriff was neither void or voidable for want of conformity with the one authorized by the statute, there being no prohibition of any other form — the bond not being extorted colore officii, but voluntarily executed upon the delivery of property — was valid as a common law obligation. In the case before us, the defendant in execution had submitted to, and admitted a levy — the plaintiff’s testator, voluntarily, as we must infer, entered into this obligation as his surety, that the property levied on should be forthcoming at a particular time and place, and we can come to no other conclusion than that he is bound by his contract — and under the influence of Mead v. Figh, 4 Ala. R. 279, he is estopped from denying, either that a levy was made or that his principal had no property in the ' cotton. [Cawthorne v. McCraw, 9 Ala. Rep. 619.

5. It is supposed however, there is a variance between the obligation and the legal proceedings, which is incapable of aid from parol proof, and which prevents it from having any effect. The supposed variance is the omission of the names of some of the defendants, in the recital of the execution, and the omission to conform the terms named in the condition with it. Although these were sufficient to destroy the effect of the bond, as a strict compliance with the statute, they do not render it invalid. It is a strained and forced conclusion, to say, that because the execution issued against Lunsford, it will be concluded that it issued against him alone. This might be correct as a prima facie intendment, but certainly is open to explanation. If we look to the contract evidenced by the bond, it will be seen the description of the execution is no part of it. The levy, and the re-delivery of the cotton to the debtor, is the consideration, or inducement, for him and his sureties to undertake it shall be forthcoming at a particular time and place. The sum due on the execution is of no sort of importance, except for the purpose of ascertaining the damage which may flow from a breach of the condition. It would be a monstrous absurdity, that engagements of the most solemn nature might be avoided, because of the misreci-tal of the facts, or circumstances, which induced them. It is a general proposition, that meets us every where, that the consideration, even when set out in a deed, may be explained by parol evidence. [Cowen & Hill’s Notes, 1441.] Nor are decisions lacking on the precise point we are now considering. In Hewlett v. Chamberlayne, 1 Wash. 367, the forthcoming bond omitted entirely to set out the amount of the execution, yet the court held this to be no objection in an action of debt, although a motion for a summary judgment had been refused, because of the non-conformity of the bond to the execution. In Stockton v. Turner, 7 J. J. M. 192, an injunction bond recited the judgment enjoin-joined as for $280 50, when the true sum was $288 50, yet the court sustained the bond, on the ground of an estoppel. It is said the recital of a particular fact in the condition of the bond, will estop the obligor from denying it. [Willes, 9.] On the other hánd, when the recitals do not constitute a part of the conrract, it is said by Chief Justice Kent, to be a settled rule, that even a mistake in the recital of a bond, does not vitiate it, .for it is no essential part of the bond. [Talmadge v. Richmond, 9 John. 85; See also, St John v. Dagges, Hob. 130; Coke Litt. 352, b; Weissinger v. Crook, 7 Ala. Rep. 710.] In accordance with these principles, a bail bond was held to be good, although the Christian names of both the plaintiffs were misstated in the bond. [Colburn v. Downs, 10 Mass. 21, and a bastardy bond was sustained when the condition was to answer a complaint made in 1816, instead of 1833, when it was really made. [18 Pick. 257.]

The authorities we have quoted, would amply justify the rejection of any description of parties, sums, &c. in the recitals of the bond, which were not in accordance with the fact, but in the present case, no repugnancy is made to appear. We are not informed the sums stated in the condition is not the true aggregate of the judgment, damages, and costs, and we have already remarked, that because an execution is recited as having issued against Lunsford, it is not conclusive that it issued against him alone. The case of Coleman v. Crumpler, 2 Dev. 508, which is supposed by the counsel for the plaintiff to contain a principle which should govern this, is by no means analagous. There the contract was, to perform and abide by such final decree as might be rendered in a suit wherein John Crumpler and Mary Crumpler are defendants. On a replication to the plea of conditions performed, the plaintiff averred that a suit was pending in which John Crumpler and Mary Coleman were defendants, and that the defendants had not paid the decree rendered in that suit. On the issue it was shown that the bond was given in this suit, with the mistake in the name, but the court held parol evidence insufficient to warrant a recovery. Without stopping to consider whether this decision is in harmony with others which we have already quoted, it is sufficient to remark, that the contract made by the obligors, was with reference to a particular suit, and it might well be a matter of doubt, if another suit could be intended without the reformation of the contract by a court of equity, but in the present case the contract is with reference to the delivery of cotton, and the pending suit is no further of importance than to ascertain the contract had reference to it, as by that, the damages arising from the non-delivery are to be ascertained. In this aspect there seems to us no reason whatever why parol evidence should not be admitted to show the bond was taken with reference to the execution in the sheriff’s hands.

On the whole, after giving this case the fullest consideration we are satisfied there is no error.

Judgment affirmed.