123 Va. 536 | Va. | 1918
delivered the opinion of the court.
This case is the sequel to Fields-Watkins Co. v. Hensley, 117 Va. 661, 86 S. E. 113. It was there decided that where an execution is levied on property in the possession of the execution debtor and the property is claimed by another, it is necessary under the provisions of section 3001 of the Code, not only for the claimant to execute a suspending bond, but also within thirty days after the
This claimant, however, had also given a; bond which it is claimed’ should be construed to be a forthcoming bond under section 3004 of the Code, and the case in judgment is a motion upon that forthcoming bond. The bond is in these words:
“Know all men by these presents, that R. E. Hensley ' and Albert Breeding, surety, are held and firmly bound unto G. F. Kiser, sheriff of Dickenson county, Virginia, in the sum of one thousand dollars, to the payment whereof well and truly to be made to the said G. F. Kiser, as aforesaid, and we bind ourselves and each of us jointly and severally firmly by these presents. And we hereby waive the benefit of our homestead exemptions as to this obligation, sealed with our seals and dated this the........day of October, 1913.
“The condition of the above obligation is such, that, whereas, Barker-Jennings Hardware Co. and Fields-Watkins Co. have sued out of the clerk’s office of Russell county, Virginia, writs of fieri facias against A. E. and J. W. Sprinkle and have placed same in the hands of G. F. Kiser, sheriff as aforesaid; and
“Whereas, said G. F. Kiser, sheriff, as. aforesaid, by Jeff Long, his deputy,- has levied same upon five mules, one horse, two wagons and harness which property is claimed by the above named R. E. Hensley, and the said R E.*539 Hensley desired the sale of said property suspended until his claim to same can be litigated; and,
“Whereas, said property was at the time of said levy and is now in the possession of the said R. E'. Hensley; and,
“Now, therefore, if the said R. E. Hensley, shall have said property forthcoming and subject to the order of the court, then this obligation is to be void, otherwise to rmáin in full force and effect.”
It is perfectly well settled that to be good as statutory bonds, such instruments must substantially conform to the statutes authorizing their execution. Unless they do so conform, while they may be good as common law bonds, they are not valid as statutory bonds. Downman v. Chinn, 2 Wash. (2 Va.) 189; McClunn v. Steel, 2 Va. Cas. (4 Va.) 256; Glascock v. Dawson, 1 Munf. (15 Va.) 606; Martin v. Sturn, 5 Rand. (26 Va.) 696; Meze v. Howver, 1 Leigh (28 Va,) 443; Lynchburg, etc., Bunk v. Elliott, 94 Va, 700, 27 S. E. 467; Hall v. Wadsworth, 35 W. Va. 375, 14 S. E. 6.
A comparison of this bond with the statute demonstrates that it cannot be held good as a statutory bond, because—
(a) The statute requires that it shall be payable to the creditor, while this bond is payable to the sheriff;
(b) The statute requires the bond to recite the amount due upon the execution, including the fee for taking the bond, commissions and other lawful charges, if any, while such a recital is entirely omitted from this bond;
(c) The statute requires the bond to have a condition that the property shall be forthcoming at such time and place of sale as may be thereafter lawfully appointed, while the condition of this bond is that the claimant shall have the property forthcoming and subject to the order of the court.
It is clear, then, that the bond is not good as a statutory forthcoming bond.
The court, however, sustained the defense that the claimant was not liable for the balance due on the executions, but was only liable for the value of the property levied upon which he failed to redeliver to the sheriff, and so instructed the jury. There was a verdict .and judgment in favor of the plaintiff in error for such value only, instead of for such balance due, and this is the only question which needs consideration.
Inasmuch as the statutory proceeding by interpleader
The measure of recovery on a replevin bond, when part of the goods only are returned, is the value of the goods not so returned. Edwin v. Cox, 61 Ill. App. 567.
“The interest of the sheriff on levy upon property is to the amount of his execution—by virtue of the execution he is entitled to the possession of the property for the purpose of sale and satisfaction. Hence, if the property levied upon be replevied, and be of greater value than the amount of the execution, the rule of damages would be the amount of the execution, interest and costs made upon said suit; if the value of the property be less than the amount of the execution, then the full value of the property.” Jennings v. Johnson, 17 Ohio 154, 49 Am. Dec. 451; Dodge v. Chandler, 13 Minn. 114 (Gil. 105); La Crosse, etc., Co. v. Robertson, 13 Minn. 291, (Gil. 269); Booth v. Ableman, 20 Wis. 21, 88 Am. Dec. 730; Bleiler v. Moore, 88 Wis. 438, 60 N. W. 792; 34 Cyc. 1568, 1575; Larabee v. Cook, 8 Kan. App. 776, 61 Pac. 815; Sands v. Fritz, 84 Pa. 15; Gingell v. Turnbull, 3 Bingham’s N. C. 881. This seems to be the universal rule. 34 Cyc. 1582, and cases cited.
A very recent case is Trindle v. Register, etc., Co., 58 Colo. 81, 142 Pac. 282.
So that it seems to us clear that the trial court-correctly instructed the jury, and that there is no error in the judgment.
It may be remarked in passing that it may well be doubted whether, even if this bond had conformed strictly to the statute, the result would have been different.
Affirmed.