11 Ky. 137 | Ky. Ct. App. | 1822
Opinion of the Court.
THE appellant had recovered against one appellee, who was a deputy sheriff and the rest, his securities, a judgment for the full amount of an execution, and thirty per cent, damages thereon, on account of the said deputy sheriff having failed to return the execu
The execution, which the deputy, Robert Harrison, had failed to return, was in favor of Jesse Harrison, the appellant, against Azariah Davis, a principal, and John Gray and Jeremiah Cravens, the securities, in a replevin bond for the sum of $1793 34, with interest, costs, &c. The grounds of equity are, in substance, the following:
1st. That prior executions had previously issued, and that whenever the deputy could have succeeded in making the money, he was prevented from doing so, by the orders of the said Jesse Harrison, or his agent, for staying said executions, and not suffering them to have their course.
2d. That when one of them, which was a ca. sa. was levied on the body of the defendant, Davis, he was released and the execution stayed by order of Jesse Harrison, the appellant.
3d. With respect to the execution, for the failure to return which, the judgment was obtained, it is alleged that Jesse Harrison, the appellant, directed the deputy sheriff to hold it up, with orders neither to levy nor return it; that the fact of such order being given, was known only to the complainant, Robert, and defendant, Jesse Harrison, and could not be made appear on the trial at law. Such secrecy, it is alleged, attended the remaining orders to return the former executions.
4th. That previous to the notice and motion, Jesse Harrison and the principal in the replevin bond, Davis, had made a full and final settlement, including the judgment ; that Davis was relied on, in the trial at law, to prove this fact; but after representing that he would prove it, before the trial, at the trial he proved the contrary; and that there was a combination and fraudulent collusion between Jesse Harrison and Davis, to subject the deputy and securities to the amount of the judgment. And of this matter a disclosure is prayed.
5th. That after the judgment on the notice, Jesse Harrison, admitting the right of the appellees to the original replevin bond, in equity, had given an order to issue the execution for their benefit ; but on issuing
The answer denies any stay upon any of the former executions to have been given, and alleges all the returns to that effect are false, except in the case of a previous one, being a ca. sa. which he was induced to, direct to be stayed, and a fieri facias to be issued, by the artful and fraudulent representations of the deputy sheriff, who represented that Davis could not be taken, and that there was a sufficient property out of which the amount of the execution could be made. The orders to stay or to hold up the last execution, for not returning which, the judgment on notice and motion was obtained, is positively denied. It is also expressly denied, that ever the amount of the judgment was paid, except 955 dollars thereof, made by the sale of 4,200 acres of land on one of the executions, or that said replevin bond was included in the settlement before the judgment on notice against the sheriff, or that the amount was paid since.
It appears, in proof, that defence was made on the trial at law, and most of the witnesses sworn, which are sworn in this cause ; and that after judgment was rendered on the notice, a motion for a new trial was made and overruled.
1. There was an attempt, on the trial at law, to prove most of the grounds of equity relied on in the bill. We do not see how the conduct of Jesse Harrison, in staying previous executions, or releasing Davis from arrest, can avail the appellees; for such conduct did not ultimately release Davis, and against him the last execution, on which the notice is founded, must be still operative; and for a failure to return it, while it was effectual against Davis, although the securities
2. Nor do we see how the surprise, occasioned by the testimony of Davis, can avail the appellees. Surprise is sometimes the ground of a new trial at law, and may authorise the interposition of the chancellor, after the hour for a new trial at law is past; but never ought the chancellor thus to interpose, where the party could have availed himself of it by applying for a new trial ; that is, where the surprise was known in time, as well as the means of defeating it, so that the party could have redressed himself by applying for a new trial in the court of law. If the party in this case was surprised by the testimony of Davis, he might not have been aware of any testimony to defeat it, when he made his application for a new trial; but the means he has resorted to has failed him. The defendant in chancery has denied it, and he has produced no testimony to prove it, except that of Davis himself, who is now called as a witness by his adversary, and, in a deposition of extraordinary length, has doubtless deposed to more facts than he did on the trial at law;
3. It is true, that the appellant did trifle with his right to execution on his replevin bond. On one occasion, he did release Davis from the ca. sa. ; and although he declares, in his original answer, that he was induced to do so by the representations of the deputy sheriff, that Davis could not be found, yet he confesses, in his answer to an amended bill, that he attested a mote executed by Davis to the sheriff, at the same moment; which note was part of the arrangement by
4. But there is another inference may fairly be drawn from all these acts of Jesse Harrison, when coupled with other circumstances in the causes and that is, that the balance of the judgment and replevin bond was considered as of no validity or value between him and his debtor, and that it could not be seriously enforced; and, of course, was considered of no other use, but to cover the estate of Davis and affect the rights of others. Other facts proved by Davis, strongly corroborate this conclusion. He deposes that two notes on a certain Mr. Lamb, were assigned to him by Jesse Harrison, and that these notes composed part of the consideration of the demand of Jesse Harrison against him, on which the judgment at law and replevin bond were founded; that Lamb disputed the consideration of these notes, so that they were considered irrecoverable; that Jesse Harrison agreed, even before the sale of the 4,200 acres of seminary lands was made by virtue of a prior execution, to take back these notes of Lamb, and give a credit on the execution, whenever these notes were produced; that accordingly, since this suit was brought, Jesse Harrison had given a receipt in writing acknowledging that he had received one of the notes, and engaging to give a credit for it and the other, on the replevin bond, or settle it some other way with him. He further states, that Jesse Harrison had purchased the seminary lands, with an understanding that he should have them again; and accordingly, Jesse Harrison gave an instrument of writing, binding himself to restore these lands, and they settled their accounts before judgment was had against the officer for his failure; and in that settlement, the 955 dollars, the price of the seminary lands, was included, but not the balance of the replevin bond, for which judgment was rendered against the sheriff; because he intended to off-set that by Lamb’s notes, and would have attempted an injunction, if ever the demand had been seriously pressed. It is also worthy of remark, that when Jesse Harrison is charged in the amended bill with having settled the original replevin bond with Davis, since the bill was filed, he barely denies, in general terms, that the balance was ever paid ; but says nothing of the merits of the judgment,
or of his having received or agreed to receive Lamb's notes in discharge of it. Hence, the inference before drawn, is corroborated by proof that there was no merit in the balance of his debt ; or, if it had not lost its merits by the failure of value in Lamb’s notes, it never had any merit, and was contrived between Jesse Harrison and Davis, who was a sinking debtor, the purpose of protecting Davis’ property, or wresting it from others who had honestly purchased it; for the so friendly were the two in their arrangements, according to Davis’ tedious and reluctant history, that the execution with which the officer is charged, appears to be managed more like the execution of the debtor, than the creditor, and is always used for his exclusive benefit. We are not at liberty to believe, that this conduct of the two was a collusion, for the purpose of entrapping the sheriff ; for this is denied, both by the answer and the proof ; and, therefore, a design not more meritorious, must be the conclusion. Nor can we say that the balance of the debt is discharged by direct payment ; for this is cautiously denied, and Davis' testimony agrees with that denial. But notwithstanding it may not be literally paid, it may be discounted by Lamb’s notes, or ought never to have been collected at first.
5. Whether the officer and his securities can avail themselves of this matter, to procure relief, involves the question, whether a sheriff, who has, so acted as to lay himself liable to the amount of an execution placed in his hands to collect, can enquire into the equity of the original judgment, and be permitted to show that the money ought never to have been collected. We conceive that in many cases he may ; for although a sheriff is not bound to enquire into the merits of a judgment, yet he ought to be permitted to show that it is equitably nothing. It would seem against conscience, to permit a plaintiff to recover, from a sheriff the amount of his claim, in a case where the sheriff had not received the money, but had barely become liable, by some malfeasance in office, to pay the amount, when, in equity and conscience, the plaintiff is not entitled to receive a cent from his principal. Cases where the sheriff has collected the amount of an execution and fails to pay it over, may be subject to a different rule ; but where the sheriff is made liable as a penalty, it would be iniqui
If this ground of equity is good, it is purely equitable, and such as could not have been matter of defence at law. The court of law would not enquire into the merits of the judgment; and, of course, the failure to make the defence at law, presents no bar to relief.
But a difficulty of some importance lies in the way of the sheriff and his securities, in allowing them this as a ground of relief. They have not, in their bill, attacked the merits of the original judgment, by express allegations. They seem not to question its validity or its merits, though they have labored to show that the appellant has acted so mysteriously as not to merit the money. If they had questioned the merits of the judgment so as to put the appellant upon his guard on that point; and afforded him thereby an opportunity to support it, their case would be a better one. It may be said, in their favor, that they were ignorant in this matter, and that the acts of the parties had not suggested to them the real case. Still, however, when the discovery came out, they might have amended their pleadings and put the matter in issue. If they had done so, we could not have refused relief; but as they have failed to do it, we cannot, on this ground, per se, afford relief.
On the ground of the judgment being discharged, their case presents somewhat a different aspect. They allege it is paid. This is denied. They allege it is settled in some way, and pray a disclosure of this settlement. They are answered, it is not paid. It turns out, however, that the plaintiff in the execution had agreed to discharge it by taking back Lamb’s notes. In this situation it remains undisturbed, except so far as it was used for the debtor’s benefit, until after the judgment, was had for it against the sheriff. Then, in pursuance of the previous promise, he takes in one of Lamb’s notes, and agrees in writing to discount both. This proof, in a case where the complainants must have been ignorant of the real state of the fact, we conceive, is admissible in support of the allegation that the demand was paid and settled, although the appellant has quieted his conscience by saying, in answer to this allegation, that it was not paid, omitting to state feat it was settled by Lamb’s notes. Such proof suf
The decree must, therefore, be affirmed with costs.