#### Chapman, &c. v. Harrison.

June, 1826.

Execution — Payment to Sheriff after Return Day— Effect.†- — A payment to a Sheriff in discharge of an execution, after the return day of the execution is passed, is not binding on the creditor.

Equitable Relief — Defence Available at Law, — Equity will not grant relief on the ground of a defencewhich might have been made at law, unless the plaintiff alledges and proves a good excuse for not having used it at law. Cabb, Judge.

Injunction — Perpetuation of. — Itis error to perpetuate an injunction against a party, without having him before the Court.

This was an appeal from a decree of the-Richmond Chancery Court, affirming a decree of the County Court of Brunswick, in which Court Harrison filed a bill against Rhoda Goodrich, administratrix of John Goodrich deceased, and John H. Chapman. The following opinions present a full view of the case. *'*

*Leigh, for the appellant.

Attorney General, for the appellee. JUDGE CARR.

Goodrich obtained a judgment against *137Harrison, and issued his execution. It went into the hands of Wallace, a Deputy Sheriff, in September, 1814, (as we see by his endorsement,) and was returnable to the 4th Monday in November, fie returned it to the clerk’s office, (at what time, we do not know,) without any other endorsement than that marking the time when it came to hand. The plaintiff died. R. Goodrich, his administratrix, sued out a Scire Facias, obtained, judgment, and issued execution. Harrison then tiled his bill to injoin. He states, that the original *juágmeni*was obtained in 1815; the execution put into the hands of Wallace, the deputy; and that he paid the full amount thereof, to him, as will appear by a receipt filed. On this receipt, the bill rests the whole equity of the case. As a reason why he did not avail himself of this receipt on the trial of the Scire Facias, the plaintiff states, that he told Chapman, the agent of the administratrix, of the receipt, and referred him to his attorney who had it; and that Chapman said, it was Wallace’s handwriting, and he was satisfied; which prevented his attending to his defence, as he expected to hear nothing more of the affair; and his attorney, who had the receipts, supposing that the proceeding, in which they were to be used, was a motion, did not attend to the Scire Facias. The administratrix and Chapman as her agent, are made defendants ; and he is called on specially to state, whether he did not say he was satisfied, on examining the receipt, and that it did cover the execution. In his answer, Chapman, directly responding to the interrogatory, avers, that he said no such thing: that on the contrary, he was dissatisfied after examining the receipt: that the plaintiff ought *to have used this defence at law, or shewn some good excuse for not doing so; and that having failed in this, equity has no jurisdiction, on which he insists, as if formally pleaded. This may be cjnsidered as the plea and answer of the defendant, and raises the question of jurisdiction expressly.

The rule on this subject, as settled by many cases in this Court, I understand to be this: That a party having a good legal defence, shall not, after judgment at law, bring the case into equity upon the legal matter, without alleging and proving a good excuse for not using it at law. The bill in this case did allege a sufficient excuse. If Chapman had told the plaintiff, that the receipt was Wallace’s hand-writing; that it did cover the execution, and that he was satisfied; and having thus lulled him into security, had gone on, and taken a judgment against him, without defence, equity would have considered it a fraud, and would so far have relieved against it, as to give him the benefit of that defence, whatever it might be. But Chapman denies that he ever told him any such thing; denies that he had any excuse for not making his defence at law. It devolved on the plaintiff, then, to prove the excuse he had alleged. He should have examined evidence to establish the conversation, and also to prove the mistake of his counsel. Having failed to do this, we are bound by the settled rules of evidence to say, that he stands without excuse for not making defence at law; and of consequence, that equity has no jurisdiction of the case. Upon this ground, I think the Court below erred in not dismissing the bill.

Another-palpable error was, perpetuating the injunction against the administratrix, without having her before the Court. The record states her to be a non-resident. Publication is ordered, but no evidence that it was ever made.

If it were proper to examine the case upon its merits, after deciding against the jurisdiction, I would say that in my opinion, the defence set up ought not to avail the party before any tribunal. The receipt is long after the return *üay of the execution, and speaks as of a payment made at its date, when the deputy had no power to bind the creditor by his act; and the affidavits introduced to prove a payment, while the execution was in force, do not, to *my*mind, prove any such thing. They are so loose, vague, and unsatisfactory, that it would he unsafe to rely on them as proof of any thing. But, give them full weight; they do not si ew that the Sheriff received a cent of money. He has made no return of satisfied in whole or in part, on the execution; and though he should have made a promise that lie would enter a credit for some execution against somebody, of which we have an imperfect rumour, as he did not choose to comply with this promise, I do not think the creditor bound by it. I think both judgments should be reversed and the bill dismissed.

†

Executions — Payment to Sheriff after Return Day— Effect. — A sheriff or other officer has no authority to receive payment under an execution after the return day thereof, unless the execution has been-previously levied. Such payment would not bind the creditor, nor would it impose any liability upon the sureties of the sheriff on his official bond. Although the sheriff may be responsible in his private capacity for money so received, no responsibility would attach to him in his official character on that account. Grandstaff v. Ridgely, Hampton & Co., 30 Gratt. 15, citing principal case as authority. And in Cockerell v. Nichols, 8 W. Va. 163, it is said: “It is well settled that the officer cannot levy a writ of *fieri facias on*the property of the debtor after the return day thereof. But if the officer levies the execution upon the property of the debtor before the return day he may, generally, sell the property by virtue of the levy after that day, and may also, generally, receive, in such case, payment of the debt, in whole or in part, after such return day and before the sale of the property levied on in relief of the property levied on. And where the execution is not levied before it expires, which is on the return day thereof, a payment to .the officer, on the execution, in whole or in part, after the return day thereof is passed, is not binding on the creditor. *Chapman v. Harrison, 4 Rand.*336. ” On the same subject, the principal case is cited in O’Bannon v. Saunders, *24*Gratt. 141. See further, monographic *note*•on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.

JUDGE GREEN.

An injunction was awarded to judgments upon Scire Facias to revive other judgments, upon the allegation that the debtor had paid the full amount of the executions upon the original judgments, to the Deputy Sheriff, in whose hands those executions were. To prove this allegation, the receipts of the Sheriff, dated April 25th, 1815, are produced. One of the executions was returnable to the fourth Monday in November, 1814; the other, to the fourth Monday in January, 1815. The defendant relies that the payment to the Sheriff was after the executions were returnable, and they not having been levied, the payment does not bind him, and was no satisfaction of the judgments; especially as the Sheriff has returned the executions, without any endorsement of what was done under them. The plaintiff has offered proof by parol, for the purpose of shewing, that notwithstanding the date of the receipts, the payments were made before their dates, and whilst the Sheriff was authorised to receive the money. It is not suggested that the executions were ever levied. This proof is extremely loose *and vague, both as to the fact, and date of the payments. The receipts are prima facie evidence, that the payments were made at the date of the receipts, and there is internal evidence in the transaction, that this was the truth of the case. The principal and interest, up to the date of the receipt, with costs and Sheriff’s commissions, amount to $208 67. The receipt is for *138$208 58, a difference of nine cents; whereas, the principal and interest to the return day, with costs and Sheriff’s commission, amount only to $202 94; a difference of $5 64, a few cents more than the interest from the return day to the date of the receipt, with the Sheriff’s commission thereupon ; a clear proof that the payment, however made, was made when the Sheriff had no authority to receive the money; so that the debtor could have made no defence at law.

Both decrees should be reversed, the injunction dissolved, and the bill dismissed.

JUDGE COALTER.

On the first view of this .case, I would have been satisfied to have reversed the decree for the error assigned in relation to Rhoda Goodrich, a judgment in whose favour has been injoined when she was not before the Court. It is often proper to dissolve an injunction, and ev,en dismiss a bill, before all the parties interested are before the Court; as in cases where it is apparent that the plaintiff has made out no case as to any one, and has sought no discovery, and could have no decree, except for an injunction against those not before the Court. There is nothing to prevent the dismission of a bill in such a case. But, it does not follow that the party, whose bill may be dismissed because he has failed to shew his equity, shall have a decision in his favour upon that equity, against one who is not before the Court.

The question then is, whether the appellee has shewn sufficient grounds why his bill ought not at present to be dismissed?

*It is said he has not; first, because he has mads out no case which could have availed him as a defence at law, had every thing that now appears been made known to that Court; and between these parties, the equity being equal, the law must prevail. Secondly, it is said, that if this defence would have prevailed at law, there is no sufficient excuse why it was not made there; and therefore equity will not relieve.

As to the first. I am fully satisfied that whilst the executions were in the hands of the Deputy Sheriff, an arrangement was made with him, by which he was to receive the benefit of other executions then in force, in favor of the appellee, and who, in consequence thereof, had agreed not to proceed to levy the executions on the property of the appellee; and I am also satisfied, that he did receive the avails of those executions, either to the full amount of the executions against the appellee, or that the appellee, in some other way, paid up the balance, as he believed, in fuli discharge of those executions; and that the Deputy Sheriff is the party who really ought to pay the amount of the judgments sought to be injoined. Erom the delay in suing out the Scire Eacias in this case, I have also little doubt, but that the creditor or his representative had reason to believe, that the appellee was discharged, and that their recourse was against the Deputy Sheriff. No return has ever yet been made on the executions, although they are in the clerk’s office, the Deputy Sheriff having merely endorsed when they came to hand, but not what he did with them. It may be, that the creditor, having for several years endeavoured in vain to get the money from him, was better satisfied with no return, although he could have forced one, than with a return of the truth of the case; or it may be that Wallace is dead, and that the executions have been found among his papers, and returned by his executor or administrator to the clerk’s office. It may be too, that funds enough were placed in his hands by the appellee, when the execution was in full force, to discharge *the whole debt, and that he agreed to apply them and return the execution satisfied. All these things, I think, are highly probable; much more so, than to suppose that this receipt in 1815, was given when in reality the Deputy Sheriff had not received the full amount of the executions.

I think it highly probable too, that those funds may not have been instantly available to the Deputy Sheriff, though agreed to be received by him in discharge of the executions, or so far as they would go; and if not enough, that the balance was finally to be made up on a settlement: that such settlement took place in a short time after the return day, and most probably when the executions were yet in the hands of the Deputy Sheriff, and the receipts given; and that the Deputy Sheriff ought, in justice, to have returned the executions satisfied. All this might probably have appeared more fully, had the Deputy Sheriff been made a party to the suit, and had the appellee taken the trouble to develope more fully the nature of these transactions.

I was therefore, at first, disposed simply to reverse the decree, and send the cause back; for, had the executions been thus fully and legally discharged, though the Sheriff failed to return them satisfied, and did not give receipts for the money until after the return day, such payment before the return day, was a complete defence at law, and under the circumstances of this case, ought to be equally available in equity. On more full examination, however, the fact that the executions were calculated up to the date of the receipts, throws more doubt upon the subject, as to the time when these transactions took place, and as to the real nature of them when they did take place; and as the appellee has been indulged with a hearing in equity, after a failure to defend himself at law, he ought, and that promptly, to have made out a clear case there. He ought to have shewn clearly, that ' he could have availed himself of this defence at law, had it been made there; but, not having shewn this, with sufficient certainty, it is perhaps most proper no longer to delay the case for further explanations on his part, b'ut to dismiss the bill.

*Had he shewn such a case as would have been a clear defence at law, I am satisfied this Court ought to have relieved. My opinion on this subject, as supported I think by the great current of decisions in this Court, growing out of the peculiar situation of our country, and of our Judicial *139•■systems, which renders it necessary for Courts of Equity to extend relief here where it might properly be refused in England, I have lately had occasion to express in the case of Oswald, Deniston & Co. v. Tyler, ante, p. 20. I still entertain the same opinions as there expressed. Here the party had fully and fairly paid off the executions whilst they were in full force, snd in the hands ot the Sheriff, (which is the postulatum in this view ox the case) and had obtained receipts a few months thereafter, the efficacy of which to protect him he had no doubt of; or, if we hold him bound to know the law, that these receipts, without further proof that the payment was made when the executions were in force, would not do, he would know also that he had such proof. The fact was, that he had paid the debts, and thought the receipts all sufficient. Some five or six years after, he is served with a Scire Facias, to shew cause why executions shall not again issue; no arrest; a simple notice to shew cause. This, as he alleges in his bill, he takes to be a notice of a motion about to be made against him at the next term. He employs counsel to defend him against such notice, and gives him the receipts. He also communes with his neighbour, the agent oi manager of this business, on the way. He tells him that he has such receipts; refers him to his attorney for an examination of them; is told by the agent that he had seen them, that they were in the hand-writing of Wallace, the Deputy Sheriff, and that he was satisfied. This conversation, he avers, threw him off his guard; and his mistake of the nature of the process also, threw the attorney off his guard; and so judgments were obtained at law.

The plaintiff, in the bill, avers on oath, that he did understand that the defendant was satisfied. How does the ‘answer deny or disprove this? It does not deny the conversation, and that he did admit that he had seen the receipt, and that he was satisfied they were in the hand-writing of Wallace. But, he denies that he told the complainant, after seeing the receipts, that he was satisfied; but, on the contrary, he was dissatisfied then, and is now, and will be so, until he receives the money; but, that he told the plaintiff so is not averred. As, however, he told him he was satisfied that the receipts were in the hand-writing of Wallace, he might well have supposed that was all that was necessary to satisfy him about. But, the defendant may well have been dissatisfied at not having received the money, and remain so until he does receive it; and this in fact is all he substantially says, and that in answer to a bill which calls upon him to answer “unevasively and particularly.” The truth is, that he did then believe it was a good defence. He says, “although from the first appearance of the papers, it would seem that if the proper defence had been made, the complainant ought to have been allowed the said receipts as offsets against the executions, yet upon a proper examination it will be found that he ought not; for, that they bear date after the return day, &c.” Had he given them this proper examination, and come to the conclusion above, at the time of this conversation? In charity, I think not; for it would have been a direct fraud to have answered in such a way in relation to them, as might have been construed into an admission that they were a defence. He ought to have said, “I have given these papers a proper examination, and, though I admit they are the handwriting of Wallace, they will not avail you. They are after the return day.” He would then have been told, “But, I will prove that these payments were before the return day.” There is a great immorality in any man who has once enforced the payment of his debt, to compel a second payment, merely because, from mistake or surprise, he has gotten a judgment at law for it. Such injustice is only tolerated by the Courts, not as justice between ‘man and man, but on the ground of policy in putting an end to controversies by one suit, when that can be done; as a punishment to the negligent, not as a premium to injustice; for injustice, abstractly speaking, it certainly is. The punishment is often greatly inadequate to the offence, and will not be imposed, when from fraud, accident or surprise, the defence has not been made at law. I think sufficient accident or surprise, if not fraud, exists in this case ; and had the party now shewn, as I think, in all probability, with proper diligence he might have shewn, that he had a defence at law, I would grant him relief. He has hitherto failed to do this; and I think I go far enough in saying, that this controversy ought not further to be protracted ; but that the bill, on this ground, ought to be dismissed.

Both decrees must be reversed, and the bill dismissed.*'

*

The President and Judge Cabell, absent.