Patterson v. Denton , 1 S. & M. 592 ( 1840 )

Chancellor.

It is insisted upon the part of the defendants in< these cases : 1. That the remedy of the complainants is at law. 2. That the sheriff’s return of “ bond forfeited,” is conclusive evidence of the due execution and delivery of the bond, and can be’ impeached only by a direct proceeding, to which the sheriff must be a party. I shall examine the latter point first: If the proposition be true, that a sheriff’s return is conclusive, it can only be so in relation to those facts which the law requires him to return,, and not beyond this. It certainly cannot be conclusive of any and every fact that he may choose to embody in it. It becomes then material to inquire, what facts the sheriff is required by law to return. They are to be found declared in the statute, How. and Hutch. 634 ; and the facts which he must return in such a case as this, are, that he has levied the execution ; that a forthcoming bond was taken, and that bond was forfeited; this is the extent of the return he is authorized and required to make. It will be seen, at once, that with the execution of the bond itself he has nothing to do, in his return. The law does not call upon him to say one word upon that subject. A return by him on any instrument of writing that might legitimately come into his hands, or upon process of the manner in which he has served the same, is a very different thing from the instrument or process itself, upon which the service has been effected ; and would not preclude a party from showing that the process, or instrument of writing, was void on its face, or by reason of facts arising aliunde.

It is insisted, that because it is the sheriff’£ duty to take a forthcoming bond, the return that he has taken it, and that it was forfeited, is conclusive. It may be replied, that it is also his duty not only to take it, but to take it in conformity with law. If the return, then, that it was taken be conclusive of that' fact, it must for the same reason be equally conclusive of the other, and yet such a conclusion would scarcely be insisted on ; for surely it might be quashed for ii07i-conformity with the law. The return then is mere evidence of the taking, and not of the manner of taking or executing the bond. This then is not a proceeding to contradict a return. It may be admitted that the bond was taken, but the manner of the taking may be questioned without the denial of the other. To illustrate my meaning, I will put a case. Suppose a minor, or person non compos mentis, were to become a surety on a forthcoming bond, and that bond to be returned forfeited, would such return be conclusive of their liabilities ? or would it not, only be conclusive of the isolated fact of taking the bond, and that the property mentioned in it was not delivered on the day and at the place appointed ? This it is presumed is the only extent such a return could have. If an action of trespass de bonis asporlatis be instituted against the sheriff, where the property which he had returned “ levied upon,” had been left with the plaintiff, would the sheriff’s return, that he had “ levied” be’conclusive against him ? The rule itself, that a sheriff’s return is conclusive, and cannot be collaterally contradicted, is one of public policy, and should yield to such modifications as that policy suggests. It rests, as I presume, upon the credit and sanctity which the law gives to the acts of its own officers. It is a rule of evidence, and one in derogation of the general law of evidence, which guarantees to a party the right of examining and sifting whatever is offered in evidence against him. It is one, therefore, which should rather be restricted than extended in its application.

But it is said the sheriff’s return cannot be questioned except in a proceeding for that purpose,,,and to which he is made a party. Suppose the complainant had had a day in a court of law upon this bond, might he not have moved to quash it for errors apparent upon its face, and that upon mere motion, without notice to the sheriff ? Such is the daily practice. Might he not have pleaded non est factum to the bond, and have given the very facts stated in this bill, as evidence upon the trial ? or must he have been driven to the necessity of first bringing his action against the sheriff for a false return, and have had that return actually falsified by the verdict of a jury, before he could have resisted the enforcement of the bond ? It is believed, that no such step would be necessary. Will a court of chancery narrow his ground, restrict his rights, and throw burdens upon his remedy here, which would not have encumbered it at law ? Such a course would be contrary to the very elements which constituted the existence of this , Court. I can have no doubt of the power of this Court to inquire into the truth of the sheriff’s return, without his being a party to that inquiry.

2. Upon the question of jurisdiction, or that the remedy of the complainants is at law, apart from the general rule, that a court of equity will relieve where a party has no remedy or a doubtful and inadequate one at law, it will be seen, that the case reported in 2 Leigh, 157, deciding an appeal from the Court of Chancery,, is, directly in point. It was a case where a forthcoming bond had been delivered by a surety as an escrow, upon condition that others should also sign it, which was not done ; and that court held, that the facts amounting to proof of non est factum, the party should not be held liable in equity beyond what would have been his liability at law. The ground in that case for going into chancery was, that he had no notice of the motion for execution, and could not, therefore, have availed himself of the defence. In Virginia, the statute regulating the forfeiture of forthcoming bonds, and the judgment rendered thereon, differs from ours. There, judgment on the bond can only be rendered upon notice duly served upon the parties to the bond ; while here, the forfeiture of the bond is made by operation of law an immediate and operative judgment against the obligors in the bond, upon which execution may immediately issue, and proceedings be instantly had thereon. With us, no notice to the parties is necessary. And yet, in the case to which I have referred, it was not even hinted at, that the sheriff’s return of having taken the bond precluded all inquiry, or barred the defence.

In M'Nutt v. Wilcox and Fearne (3 How. 417), the Court of Errors and Appeals of this State, have decided, that a writ of error, coram nobis, would not lie from a judgment or a forfeited forthcoming bond. And I apprehend, that a motion to quash, would be confined to defects apparent upon the face of the bond ; the party could not, as I believe, upon such motion, present an issue of facts, which could only be tried by a jury. In what other mode, then, can a party circumstanced like the complainants in these cases, obtain that relief to which they are, without,question, entitled, except that which they have sought through this Court ? Independent then of all other grounds for taking jurisdiction of the case, and giving that decree which its circumstances demand, if all these were wanting, I should not hesitate, upon that familiar branch of equity jurisdiction, which decrees bonds or other instruments which are void, or which have been fraudulently obtained, and where the defence might be difficult or uncertain at law, to be delivered up and cancelled, to grant the decrees asked for in these cases.

Let decrees be prepared according to the prayers of the respective bills.