35 Ky. 551 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
We are inclined, to the opinion, and it seems to be established by the case of Hagan vs. Tobin, (Spring Term, 1837,) that a surety in a delivery or forthcoming bond, may, where there has been an improper refusal on the part of the sheriff to receive the property, though tendered to him, in substantial compliance with the bond, be relieved from the forfeiture imposed by law, for a non-delivery—being still made responsible for so much of the property as may appear to have been subject to the execution. We are also inclined to the opinion, that a delivery or tender, at the place and on the day appointed, and at such hour of the day as will enable the sheriff, without inconvenience or violation of law, to proceed in the coercion of the debt, in the same manner, with the same effect, and in the same time, as if the property had remained in his own possession, is a substantial compliance with the bond, notwithstanding it may, by the sheriff’s watch, be a few minutes after the appointed hour of twelve o’clock. Such a delivery fulfils substantially every object of the law, which cannot be supposed to have intended to inflict the penalty of paying the whole debt, for such a variation in the time of delivery as might occur between different time pieces, when the party bound is honestly endeavoring to comply with his obligation, and tenders the property when every purpose of its delivery may be accomplished. Yet, as it is entirely clear that nothing less than the delivery of all the property covered by the bond, or, at least, of so much of that, or other property, as is sufficient to pay the debt, or the payment of the debt by other means, will, according to the proper construc
It seems probable, however, from the deposition of the sheriff, that the saddle and martingal were offered to be delivered with the horse: and the question is whether the proof of this fact, which is not alleged, can supply the defect in the bill, and entitle the complainant to relief, to which he is not entitled, either upon the bill or answer. According to the general rules of chancery practice, it certainly cannot. And whatever may be the hardship of the case, if the fact be as it appears to be on the evidence, such evidence not being within the pleadings or the issue, is entitled to no effect, and cannot serve as the foundation of a decree.
It may be proper to remark further, that, if the complainant had been entitled to any relief, the Court has gone beyond its powers in the decree tendered, by decreeing a cancelment of the delivery bond, and permitting, or professing to permit, the plaintiff at law to sue out execution, on his judgment. As was said in the case of Hagan vs. Tobin, above referred to, “the Chancellor cannot enter the common-law tribunal and quash the bond.” It is the bond, and the return of the sheriff that it was not complied with, which prevent the suing out of process on the judgment. And as the Chancellor can
The decree is therefore reversed, and the cause remanded, with directions to dismiss the complainant’s bill.