Cook v. Armstrong , 25 Miss. 63 ( 1852 )

Mr. Justice Fisher

delivered the opinion of the court.

The complainant filed his bill in the vice-chancery court at Fulton, alleging that in 1842 the defendant, Armstrong, recovered a judgment in the circuit court of Monroe county, against the complainant, for the sum of $818, besides costs of suit. That an execution was issued upon this judgment, forthcoming bond taken by virtue of a levy of the execution; and that the bond was returned forfeited. That an execution was issued upon the bond, and returned nulla bona. That in 1846, Austin Pollard, the clerk of the circuit court of said county, moved the court for a sale of the said judgment on the bond, for the payment of the costs, &c., which motion was granted, and the judgment ordered to be sold.

The bill also alleges, that at the sale of the judgment, in 1849, Pollard became the purchaser thereof, as the agent of the complainant, who was defendant therein, at the price of $310; and that said Pollard, in fraud and violation of his agreement, has transferred said judgment to Armstrong, the plaintiff therein.

The answer shows that no sale of the judgment on the bond was ever ordered, but that it was of the original judgment'. This part of the answer is fully sustained by the records of the com’t. It also appears, that the complainant has not paid any part of the said $310.

The sale of the original judgment was absolutely void. It was satisfied by the forfeiture of the bond. The court could only order a sale upon a return of nulla bona. As to the original judgment, no such return has ever been made.

The only injury which the complainant can sustain, will be the loss of an opportunity to speculate upon his own indebtedness, arising from his own default in discharging the judgment of the court. If he had,, at the sale, the sum of $310 with which to purchase the judgment, he could have paid the costs, and to this extent have discharged the judgment of the court against him.

Decree affirmed.