18 W. Va. 567 | W. Va. | 1881
announced the opinion of the Court:
It is obvious, that in taking the bond in this case the sheriff made a considerable mistake in the am'ount of the execution with its interest, his fee for taking the bond and his commission, which together, he recites in the bond, amounted to the sum of $1,019.59 when in fact they aggregate several hundred dollars less than that sum. The court below awarded execution for the amount named in the bond instead of for the correct amount due on the execution, the fee for taking ' the bond and the sheriff’s commissions. This, it would seem, was through inadvertence, as it is not made the subject of as
The only ground, assigned in the petition for appeal, of variance between the execution and the bond is, that the execution issued against four persons: George Lynch, Jr., George Lynch, George W. Silcott and Peregrine Hays, while the bond recites, that it was taken upon an' execution issued against three persons: George Lynch, Jr., George W. Silcott and Peregrine Hays, Where there is a material variance between the execution and the bond, the bond must be quashed. (Glasscock’s adm'x v. Dawson, 1 Munf. 605; Couch v. Miller, 2 Leigh 545.) What is a material variance, has been discussed in a number of cases in Virginia. Without discussing the subject here it is only necessary for the purposes of this opinion to say, that it has been distinctly held in Virginia, that if the execution issue against two persons, and the condition of the bond recites it to have been again'st one only, the variance is material, and the bond should be quashed. (Jett v. Walker, 1 Hand, 212; 1 Rob. (old) Pr. 593.)
The execution in this case on its face is an execution against four persons; and the bond recites an execution against three only. If this was the only question raised by this execution and bond, there would be no difficulty upon the authority of Jett v. Walker and 1 Rob. in determining, that there was such a variance as required the quashing of the bond. But it is claimed, that one of the judgment-creditors died, before the execution issued, which fact is endorsed on the execution, and that the legal effect of the execution thus endorsed with the fact of the death was to make it really an execution again'st the survivors, and that the sheriff properly recited the writ in the bond according to that legal effect, that he was not bound
It is necessary then to consider, what effect the death of one of several judgment-debtors has upon the right to sue out execution by the judgment-creditor. If such death has any effect upon his rights in that regard, to what extent and in what way are his rights affected? At common law in personal actions, if the plaintiff1 did not sue out execution within a year and a day after the judgment, his right to sue out execution was lost altogether, and his only remedy was an action of debt upon the judgment; but by the statute of Westminster 2, if he failed to sue out execution within the year and day, instead of “ being driven to his new original ” he was allowed to revive the judgment by scire facias, 3 Tho. Co. Litt 525 ; 2 Inst. 469-471; Carr, Judge, in Allen el als. v. Cunningham et als, 3 Leigh 401. But at common law where execution was sued out within the year and one of the parties died, instead of being put to a new action he was entitled to revive by scire faeias upon the principle, that where one is to be charged or to have a benefit from a judgment, to which he is not a party, he is entitled to be made a party to the judgment. Pennoir v. Brace, 1 Salk. 319; 2 Inst. 471.
It seems at one time to have been much doubted, whether this right to a scire facias in such case was a right at common law or by virtue of the statute Westminster 2. In Allen et als. v. Cunningham et als, 3 Leigh 401, Judge Carr seems to have thought, that it was by virtue of that statute. He says: “Where a new person, who was not a party to the judgment, derives a benefit by, or becomes chargeable to, the execution upon it, there must be a scire facias to make him a party to the judgment, 2 Wm. Saund. 6, note 1, 72 e. note 3. At common law no scire facias would issue on a judgment except in real actions. In all personal actions, where the lapse of time or the change of parties had been such as to prevent the taking out execution, the party entitled to the judgment was obliged to bring an action of debt on it, 2 Inst. 269. To remedy this inconvenience the statute of Westminster 2, 1 Ed. I. ch. 45, gave a scire facias in personal actions.”
Green, Judge, in the case of Dykes & Co. v. Woodhouse’s adm’r, 3 Rand. 291, disagrees with this view oí Judge Carr,
Robinson in his old Pr. 574 agrees with Judge Green in his view of this matter, and commenting upon Judge Carr’s view of it and 2 Inst. 469, 471 and 3 Inst. 525 says: “ The proposition is often laid down, that the writ of scire facias did not lie at common law upon a judgment in a personal action, but was first given by the statute of Westmin ster 2. (See Carr, Judge, in Allen et als. v. Cunningham, et als., 3 Leigh 401.) By this it is only to be understood, that before the statute of Westminster 2 no scire facias would lie upon a judgment in a personal action, where the plaintift had failed to sue out execution within the year. This is clearly Lord Holt’s meaning in the passages, which have been quoted from 1st and 2d Institutes. He does not mean to say, that by the statute Westminster 2 a scire facias is given to an executor or administrator or against an executor or administrator or in any other case, where the parties upon the record are charged. The statute makes no provision for cases of this
From a consideration of these authorities I understand the law to be, that at common law before the statute of 2 Westm. the judgment-creditor was entitled to sue out a scire facias at common law and proceed to his execution in those cases, where he desired to charge in execution a person, who was not a party to the judgment, that is, where the original party to the judgment is dead, and it is desired to charge his representative. But if there was any party to the judgment still surviving, although one or more in the same interest was dead, he was not put to his scire facias to revive, but could proceed in execution against the surviving party. In the case of Pennoir v. Brace, 1 Ld. Raym. 245, it is held, that the death of one of the defendants does not abate the judgment or necessitate a scire facias, but execution may issue on the judgment, but it must follow the judgment and be in the name of all the defendants, otherwise it would be variant from the judgment, “unless cause for omitting any appears on the record.” In Pennoir v. Brace, (S. C.) 1 Salk. 319, one of the defendants died pending a writ of error to the judgment. It was held, that the writ of error was abated by the death, and that execution could go without scire facias, but it must be in the name of all the judgment-debtors. If it was in the name of the survivors, it was erroneous.
In the case of Withers v. Harris, 2 Ld. Raym. 808, Lord Holt says: “Where there are several plaintiffs or defendants and one of them dies, execution may be sued by or against the survivors upon suggestion of the death made upon the .roll.” In this case Lord Holt does not say, in what form the execution shall issue, as is said in 1 Salk. 320 and 1 Ld. Baym. 245; but as he delivered the opinion in each of these eases, the language, “execution may be sued out against the survivors” must be understood as meaning merely, that the death of one of several execution-debtors did not necessitate a scire facias, but execution could issue notwithstanding that death, just as if the death had not occurred, in the name of all the debtors to conform to the judgment.
In 2 Wm. Saund. 72, i note it is said: “ But it seems clear, that where there are two or more plaintiffs or defendants in a personal action, and one or more of them die after judgment,
I think it clear from a review of all these authorities, that an execution could be sued out at commom law without a scire facias against execution-debtors, though one or more die, if any survived ; but that such execution must be in the name of all of them, the dead as well as the living, because an execution must conform to the judgment, upon which it issues, and an execution against three would not conform to a judgment against four. I do not understand what Lord Holt means in Withers v. Harris by saying, that in such case execution may issue “ upon suggestion of the death made upon the roll,” if that language was used with reference to all cases, where one of the several joint plaintiffs or defendants had died, because I see no reason to make a suggestion upon the roll of a fact, that cannot in any way affect the issuing of the execution. If that suggestion resulted in an execution issuing in the name of the survivors only, as would seem to be intended at first blush, there would be reason for suggesting the death upon the roll; but as has been shown by other cases decided by Lord Holt, he did not intend that. In the cases of Pennoir v. Brace, 1 Ld. Raym. and Pennoir v. Brace, 1 Salk, where five were sued in trespass, and judgment against all, and a writ of error was allowed in their favor, and pending that error one of them died, which abated the writ, the plaintiff sued out execution without suggesting the death upon the record, this execution was held to be erroneous, “because the death of the party did not appear to them by any matter of record, and until they were so apprised of it, they were bound up by the writ of error.”
It is plain, that where the judgment has been superseded, and the supersedeas abated by death, that death must be sug
In the case of Erwin’s lessee v. Dundas et al., 4 How. 58, Mr. Justice Nelson in delivering the opinion of the court uses this language : “ The writ however must be in form against both to correspond with the record, but it could be executed against the goods of the survivor only; or on making a suggestion of the death upon the record the writ could be against the survivor alone.” He cites for this position 2 Tidd. 1120; 1 Salk. 320; Bing, on Executions 136; Norton v. Lady Harvey, 2 Wm. Saund. 50, 51 n. 4 and 72 n. 3; 16 Mass. 212 n. 2 ; 1 Cow. 738. I have examined these authorities and do not find one, that supports the latter point of the statement, that upon the suggestion of the death upon the record the
In Bing, on fEx. 136, this language is used: “And it is now clear, that where one or more of two or more plaintiffs or defendants-in a personal action die after judgment, execution by fi. fa. or ea. sa. may be had for or against the survivors without a sei. fa.; but the execution must agree with the judgment and be sued out in the joint names of all the parties, otherwise it would not be warranted by the judgment.”
I do not find any reference to the subject in Tidd’s Pr. on p. 1120; but on page 1171 I find : “ And it is now settled, that when there are two or more plaintiffs or defendants in a personal action, and one or more of them die, within a year after judgment, execution may be had for or against the survivors without a seire facias ; but the execution in such case should be taken out in the joint names of all the plaintiffs or defendants, otherwise it will not be warranted by the judgment.”
In note 4, 2 Wm. Saund. 50, 51, I find: “But it was said, that if he bring scire facias against both,” that is, the survivor and the heir of the decedent, “and has judgment upon it, he may have a fieri facias against the survivor only or an elegit against both.” Unquestionably this is so, because the judgment is rendered against the survivor, and an execution to conform to that judgment must be against the survivor only, the very reason, I think, that without a new judgment upon scire facias no suggestion upon the roll or record or elsewhere can authorize an execution against the survivor alone, but in conforming to the judgment must be against all. The reference to n. 2 16 Mass. 193, simply refers to 2 Ld. Raym. 808, Wither’s v. Harris, without- comment upon that decision, and in connection with the proposition, that “ one who has recovered judgment for possession of a certain parcel of land may, as it is said in the books, enter peaceably without the aid of the sheriff, and if an action is brought against him for the entry, he may defend himself under the, judgment.” - ■
In 1 Cow. 711, in the case of Woodcock v. Bennett, the do,c-
It has been suggested, that not having such a proceeding as an entry upon the roll, the endorsement by the clerk under our practice of a suggestion upon the execution, or upon the face of the execution would be analogous to the entry upon the roll in England, and that the legal effect of the execution in this form or thus endorsed would be an execution against the survivors. In my view of the law there is no occasion whatever for a suggestion anywhere or by any one, but the execution goes “ in like manner, as if no death had taken place.” But if such a suggestion were necessary, I know of no authority upon the part of the clerk to make an endorsement of the death, and without such authority such endorsement would be without effect; nor can I see the necessity for introducing such a practice. It does not benefit or charge any one or change the rights of any one in any respect whatever andywould^be productive of no good, that I can discover.
It follows from these views, that the endorsement of the death of George Lynch on the execution in this case did not work any change in the execution whatever, that in law it was an execution against all four of the parties, “in like man
The judgment of the court below must be reversed, and judgment entered in this Court for the appellants with costs.
JudgmeNt Reversed.
