#### *Richardson v. Perkins.

Argued Thursday, November 33d, 1815.

i. Statute — “Concerning Executions” — Rights under.*— Under the act of January 31st, 1809, “concerning executions, and for other purposes,” the debtor *was not*entitled to a stay of execution, or to a sale of the property on credit, on any forthcoming bond executed after the passage thereof.

3. Same — Same—Construction,—The provision of the 13th section of that act, requiring the debtor to pay all costs, &c. did not embrace the case of a sale under the 14th section.

This was an action of trespass on the case, in the Superior Court of Cumberland County, brought by the appellant, against the appellee, deputy sheriff of that county, for an illegal sale, under colour of the defendant’s office, of two slaves of the plaintiff taken in execution by the defendant; that is to say, a sale for cash, instead of on credit, until the expiration of the act of assembly of January 31st, 1809, “concerning executions and for other purposes,” according to the provisions of that act, then in force. Plea “not guilty,” and issue.

On the trial of the cause, the plaintiff introduced evidence for the purpose of proving, that the defendant, as sub-sheriff of the County of Cumberland, under the executions in the declaration mentioned, took the two negro slaves, therein named, the property of the plaintiff, during the operation of the act aforesaid ; that the said executions issued on judgments on forthcoming bonds, taken on contracts entered into anterior to the 31st day of January, 1809; that the slaves 'were advertised for sale by the defendant, under the said executions ; that, the plaintiff having failed to avail himself of the provisions of the said act of assembly, by giving bond and security in court or in the clerk’s office, the defendant proceeded, on the day appointed for the sale, to sell them for ready money to the highest bidder, for prices greatly inferior to what they would have sold for on a credit until the end of the session of the legislature then next ensuing; — that the plaintiff attended on the day of sale, and, before the property was set up to be bid for, offered to give to the defendant bond and security for the amount of the said executions, including principal, interest, and costs ; that the security offered by the plaintiff was acknowledged by the defendant to be sufficient, but he refused to take such bonds ; that, when the property was offered for sale, the plaintiff demanded of the defendant that he should sell the same for the amount of the executions, (in-eluding all costs,) on a credit *until the end of the session of the legislature then next following, or the repeal of the said act; which he refused to do, but *243sold the same for ready money: whereupon, the defendant, by his counsel, moved the court to instruct the jury, that, if the foregoing facts were proved to their satisfaction, yet, if it did not appear in evidence to them that the plaintiff had, before the sale, paid off, or satisfied, or offered to do so, all the costs, which had accrued on the said judgments at the time of issuing the said executions, that the defendant was not bound to sell the property on the credit aforesaid, but was justifiable, under the law, in selling the same for ready money: which instruction was given by the court to the jury.

The plaintiff excepted to the court’s opinion, and (a verdict being found, and judgment rendered, for the defendant,) obtained a writ of supersedeas from this court.

Samuel Taylor, for the appellant.

The decision of this case depends on the construction of the 13th and 14th sections of the act, “concerning executions,” &c., passed January 31st 1809. (a) The 14th section is merely directory to the sheriff, and does not require any thing to be done by the defendant. Where he “fails to avail himself of the indulgence” granted in the foregoing sections, the sheriff was directed to sell the property on twelve months credit; in which case, evidently, the defendant was not bound to pay the costs, before such sale. It was the intention of the legislature to provide for the relief of every description of debtors, upon the terms of securing the debt.

Leigh contra.

It is fairly to be inferred, from the bill of exceptions, that the executions were issued upon forthcoming bonds, taken after the 31st of January 1809 ; if which was the case, the judgment ought, at all events, to have been for the defendant; for, according to the third section of the act, the contemplated stay of execution was to be granted on such forthcoming bonds only as were executed before that *day. The judgment, therefore, being right in itself, ought to be supported, even if founded on a wrong reason.

It may be said, that a forthcoming bond is not a new contract, and that the act excepts only contracts entered into previously to its passage. But I may safely contend, that, in relation to this act of assembly, the forthcoming bond may with propriety be considered a new contract.

The 13th section is, in terms, almost, the instruction given by the court in this case. It is not reasonable that the plaintiff should be made to pay the costs to the clerk, sheriff, &c., and then get only a stay-bond, for those costs and his debt also. It is equally reasonable in every case that the defendant should pay the costs, before he should have the benefit of the act.

It may be said, that the executions ought not to have issued, until sixty days after the judgments were rendered. But the time when they issued does not appear ; and a judgment ought to be presumed to be right until the contrary appears.

I submit a question, whether the action lies against the deputy sheriff ?

Wirt, on the same side, confined his remarks to the construction of the 13th section ; contending, that no “sale, or other proceeding,” could be stayed, nor could the defendant avail himself of “any of the provisions of this act,” without paying all costs which had accrued. Is not the 14th section one of the provisions of the act ? and must not the act be construed by taking it all together ?

Taylor, in reply.

The inference, that the forthcoming bond was executed after the passage of the act, is not warranted by the record. According to the case of Brooke v. Roane & Co., 1 Call, 245, a forthcoming bond is not a new contract, but merely an evidence of an old debt. The proviso annexed to the 8th section clearly shews, that the act applies to all judgments founded on prior contracts, though pronounced ^afterwards ; and there is no provision in the act making the forthcoming bond a new contract.

If the defendant had not demanded any stay of the judgment, or execution, it would still have been the duty of the sheriff, under the provision of the 14th section, to sell the property on credit.

The General Assembly was legislating for the benefit of the defendants ; to prevent a sacrifice of their property. There are in the act very few provisions for the benefit of the plaintiff.

As to Mr. Leigh’s last point; I contend, that, in this country, the deputy sheriff may be sued for malfeasance in office. In England, there is no such officer known to the law : but, in Virginia, he qualifies in court, and is made personally responsible in many cases.

Saturday, November 25th, 1815.

*

On the subject of executions, see generally, monographic *note*on “Executions” appended to Paine, Serv., etc., v. Tutwiler, 27 Gratt. 440.

(a)

 See acts oí 1808, ch. 5, p. 8, Supp.; to Rev. Code, eh. 5, p. 8.

The president pronounced the opinion of the court as follows :

The court is of opinion, that the third section 'of the act “concerning executions and for other purposes,” passed the 31st of January, 1809, limited the privileges contemplated by that act to such forthcoming bonds as had been executed prior to the passage thereof ; and that the provisions of the 14th section, respecting a sale on credit, so far as regards executions on forthcoming bonds, is to be taken under the same restriction.

The court is farther of opinion, that the provisions of the 13th section, requiring the debtor to pay and satisfy all costs that had accrued on the judgment, decree, execution, &c., do not embrace the case of an actual sale under the 14th section ; and, on this ground, admitting that the forthcoming bonds, stated in the bill of exceptions, were executed either before or after the passage of the said act, the instruction of the Superior Court to the jury was improper ; yet if it had sufficiently appeared, by the facts, stated in the bill of exceptions, on which the instruction of the court was asked for by the defendant, that the forthcoming bonds therein mentioned were executed subsequently to the passage of the *said act, the court is of opinion, that the judgment in that case would be affirmed, inasmuch as it would have been immaterial whether the plaintiff had paid and satisfied the costs, or had refused to do so ; but that not appearing to the satisfaction of the *244court, the court is of opinion, that the judgment aforesaid of the superior court of law is erroneous, and must be reversed ; the verdict set aside, and the cause remanded to the said superior court of law, for a new trial to be had therein on which the instruction in the bill of exceptions is not to be given.