#### *Governor for Fisher v. Vanmeter.

November, 1837,

Richmond.

[33 Am. Dec. 221]

(Absent Cabell, J.)

Executions* — Postponement of Sale — Acquiescence of Plaintiff — Discharge of Sheriff — Case, at Bar. — A sheriff having1 levied a fi, fa. on goods of the debtor, receives an order to postpone the sale from an unauthorized person, and postpones the sale accordingly ; and the sheriff relies on the acquiescence of the plaintiff in the order, to discharge him from liability for conforming with it: Held, it is incumbent on him to prove such acquiescence and the time of it; for if it occurred after the sale day of the execution, it would be of little weight, since then all the mischief had been done.

Same* — Same†—- Restoration to *Debtor of Goods*Taken— Effect on Lien, — When goods have been taken in execution under a fl. fa. a direction given by the creditor to the sheriff to restore the goods to the *19possession of tlie debtor, is fraudulent, and destroys the lien of the execution on the goods ; but a mere order to postpone the sale, without collusion, does not affect the lien of the execution.

Same* — Same—Restoration by Deputy of Property Taken — Liability of Sheriff. — A deputy sheriff having levied a fl. fa. on the goods of the debtor, receives an order from the creditor to postpone the sale for two months, holding the property subject to the sheriff’s control to satisfy the debt; and the deputy sheriff postpones the sale, but instead of holding the property restores it to the debtor, whereby the lien of the execution is destroyed and the debt ultimately lost: Held, this is official misconduct in the deputy, for which the sheriff and his sureties are liable in an action on his official bond.

Appellate Practice — New Trial — Rule of Decision When Facts Certified.‡: — Exceptions to an opinion of a court refusing a new trial, are not analogous to a demurrer to evidence : and in reviewing such an opinion, upon a bill of exceptions setting forth the facts proved at the trial, where there appears no conflict of evidence and no dispute concerning the credit of witnesses, the appellate court inquires, whether the verdict conforms with the fair inferences of fact from the facts stated ; and if it sees that it does not, reverses the judgment, and directs the new trial.

Debt on a sheriff’s official bond, brought in the circuit court of Hardy, in the name of The Governor at the relation of William Fisher, against Vanmeter, the sheriff of Hardy, and M’Mechin and Williams, his sureties, to recover damages for an official default of the sheriff.

*‘‘'The declaration demanded 10,000 dollars, the penalty of the bond ; and, after stating'the execution thereof, and setting forth the condition, which was in the usual form, — that the sheriff should well and truly execute and due return make of all process and precepts to him directed, and pay and satisfy all sums of money by him received by virtue of such process, to the person or persons to whom the same should be due, and in all other things should truly and faithfully execute and perform the duties of the said office of sheriff during the time of his continuance therein, — assigned the breach, in substance, to the following effect: that a writ of fieri facias, sued out by William Fisher, the relator, upon a judgment of the circuit court of Hardy, against Machir and Hopewell, for 682 dollars and costs, to be discharged by the payment of 341 dollars with interest and the costs, had been delivered to Craigen, a deputy of Van-meter the sheriff, and by him levied on fourteen horses the property of Machir, which he failed to make sale of, and though Fisher afterwards sued out a writ of venditioni exponas commanding the sheriff to make sale of the property, yet the deputy, without authority, returned it to Machir the debtor ; whereby Fisher had lost the debt.

The defendants pleaded, 1. Conditions performed. 2. That William Fisher, the relator, had given written instruction to Craigen, the deputy, after the execution was levied, to postpone the sale for two months, and hold the property subject to the control of the sheriff, and that the sale was accordingly postponed; whereby the property was released from the execution. And 3. that no such writs of execution as were in the declaration supposed, had come to the hands of the sheriff or his deputy, or had been levied on the property, nor was the property surrendered as in the declaration alleged. Issues were made up on all the pleas.

Upon the trial of the issues, the jury found a verdict for the defendants, which the plaintiff moved the court *to set aside, and to order a new trial. But the court overruled the motion, and gave judgment for the defendants.

Whereupon, the plaintiff filed a bill of exceptions to the opinion of the court overruling his motion for a new trial; setting forth, in hssc verba, the official bond of the sheriff and his sureties, on which the suit was brought; the judgment of the circuit court of Hardy for William Fisher against Machir and Hopewell, on which the fieri facias mentioned in the declaration was sued out, whereby it appeared that it was an award of execution on a forfeited forthcoming bond in which Machir was principal and Hopewell his surety ; and the fieri facias. And then the bill of exceptions stated, that it was proved that the fieri facias was, before the return day thereof and while it was in full force, put into the hands of Craigen, the deputy of v anmeter, sheriff of Hardy : that Machir and Hopewell were then possessed of goods and chattels out of which the sheriff could have made the debt and costs in the execution mentioned ; that Craigen, the deputy, levied the execution on fourteen horses, the property of Machir, the principal debtor, and afterwards returned the execution with the following return indorsed thereon — “Executed on fourteen head of horse creatures, and two months given by Jacob Fisher” — though it was not proved at what time the execution was so returned. That it was admitted, that in a suit in the court of chancery of Winchester, wherein the parties to this suit were parties, Hopewell had been relieved from all liability on William Fisher’s judgment and execution against Machir and him, in consequence of the return made by the sheriff on the execution ; that Hopewell yet had sufficient prop*20erty to satisfy the debt, if he had not been so relieved from liability for the same ; that the fourteen horses of Machir, on which the execution was levied by Craigen the deputy, were, subsequently to the levy thereof, mortgaged by Machir to other' creditors; that, *in consequence of the return made by Craigen on the execution, the mortgage had gained a preference over the execution; and that, after the making of the mortgage, Machir became, and died, insolvent. That the defendants, on their part, then offered in evidence an order, proved to be in the handwriting of Jacob Fisher, the father in law of William Fisher, the relator, in the following words — “Mr. George Craigen, sheriff. You will postpone the sale of the property of mr. James Machir, taken in execution ■ in behalf of William Fisher, for two months. You will hold the property subject to your control to satisfy the debt, should it not be done otherwise. (Signed) Jacob Fisher.” That the defendants then introduced Jacob Fisher as a witness, who proved, that he was not the agent of William Fisher, and was not authorized by him to control or manage his execution against Machir and Hopewell; after that he had given the order above recited to the sheriff, but before the two months had expired, he told William Fisher what he had done, who was offended at it, but told the sheriff to go on and sell the property at the end of the two months, and make the money as soon as he could. That it was proved, that the sheriff advertised the property for sale at the end of two months, but he did not attend at the day and place of sale. That it was proved, by a witness for the defendants, that after the above recited order was given by Jacob Fisher, and the execution returned, the father of Craigen, the deputy sheriff, told William Fisher, that “ now he might make his money out of Machir;” to which he answered, “ that he looked to Hopewell for it.” And that these were all the facts proved in the cause. Whereupon, the plaintiff’s counsel moved the court for a new trial, because the verdict was contrary to the evidence. The court overruled the motion, and the plaintiff filed his exceptions.

Fisher applied by petition to this court for a supersedeas ; which was allowed.

^Johnson, for the plaintiff in error,

objected, that the cause was tried on immaterial issues : That the order to postpone the sale, relied on in the first of the special pleas, furnished no ground of defence, since such order would not in law discharge the property from the execution : That the second of those pleas rested the defence on a denial, that such writs of execution as the declaration supposed ever came to the hands of the sheriff or his deputy, that those executions were levied on the property of Machir, and that the property was surrendered to Machir, as the declaration alleged ; but it could not be material, that both the writs should have come to the sheriff’s hands, much less that they should both have been levied ; it was enough if the fieri facias came to his hands, and was levied ; nor was it material, that the property should have been surrendered to Machir, since if it was retained by the sheriff, and yet not sold, his responsibility was complete. But of this objection no notice was taken by the court.

The objection on which he mainly relied, was, that the verdict was contrary to the plain justice of the case, upon the uncontested facts stated in the bill of exceptions. He •said, the order given by Jacob Fisher to the sheriff, was given without authority from William Fisher, and was nowise so sanctioned by him as to make it available to the defence of the sheriff; indeed, it did not appear that he had any knowledge of the. order, till after the sale day appointed on the fieri facias, and even the return day of that writ, had elapsed ; and then his disavowal of the order could not have obviated the mischief of the sheriff’s compliance with it. But if the order had been given by William Fisher himself, it neither justified the surrender of the property to the debtor Machir, nor the return which was made on the execution ; not the surrender of the property, because the order only authorized a postponement of the sale, upon condition that the sheriff should hold the property ^subject to his . control, and sell it if necessary ; not the return that was made, for that return only stated, in general, that Jacob Fisher (a stranger) had given time, whereas the return, to have been true to the order, should have stated the real effect thereof, namely, that the sale only was postponed, and the property retained by the sheriff. It might be objected, that the venditioni exponas alleged in the declaration was not shewn at the trial, or proved to have been sued out ; but it was immaterial, for that writ was not necessary, not being required by'law to authorize a sale, and none could in this case have been availing, because the property had been sold under Machir’s subsequent mortgage, which, it is agreed, had gained a preference in consequence of the sheriff’s return.

Stanard, contra, argued only the question arising on the refusal of the new trial. He insisted, that the jury having found a verdict, and the court below having approved it as being well warranted by the evidence, and therefore refused a new trial, the exceptions to that opinion ought to be treated in the appellate court like a demurrer to evidence, so that if there were any admissible inferences from the facts stated in the exceptions, which would warrant the verdict, or any defect in the case of the party excepting, this court should not reverse the judgment of the court which tried the cause. Now, he said, there was no proof here, of the principal fact complained of in the conduct of the sheriff ; namely, that he had returned the property on which he had levied the execution, to Machir, the debtor. [Brooke, J. Is not the inference irresistible, that the property was restored to Machir ? If the sheriff had retained it under his own control, he could have sold it to satisfy the execution ; if it had not been restored to Machir, his mortgage of it could not have given any preference over the. execution.] Stanard an*21swered, that in such a case as this, he thought the appellate *court ought not to make such inferences of fact as those suggested, contrary to the finding of the jury, approved by the circuit court. But suppose the fair inference on that point to be such as had been suggested from the bench, there was another point on which nothing certain could be inferred from the facts stated in the exceptions ; which was, the time when the fact of 'the order given by Jacob Fisher to postpone the proceeding on the execution, was communicated to William Fisher. If he was informed of that order before the sale day originally appointed under the levy of the fieri facias, and yet told the sheriff to proceed to sell after the lapse of two months, he thereby, in effect, approved and sanctioned the order; he himself consented to the indulgence given to Machir, which exonerated Hopewell, the surety of Machir, from further liability for the debt, and which gave the creditors by mortgage, their priority over his execution. And the circumstance, that the exoneration of Hopewell, and the priority of the mortgage, was the consequence of the indulgence given by the order, and the sheriff’s return on the execution, is enough to shew, that William Fisher’s knowledge of the order having been given by Jacob, and his implied sanction of it by directing the sheriff to conform to it, preceded the sale day under the execution ; otherwise, the court of chancery would not have held Hopewell exonerated, or if it did, the decree should not have been acquiesced in, as it was, by William Fisher, neither would he have yielded to the preference claimed for the mortgage over his execution. [Brooke, J. Here again, the fair inference seems to be, that the sale day under the fieri facias had passed, before William Fisher was informed of Jacob’s unauthorized order ; for when he was informed of it, he did not tell the sheriff to proceed to sell on the sale day, though he was offended that the order had been given, and would therefore most probably have countermanded and rescinded it, if he could *have done so with any effect; that is, if the sale day had not passed, and if the property had not been restored to the debtor.] Stanard thought that the just inference, or rather the fact, was, on the contrary, that though he disapproved the order, yet he did not disavow it, but directed the sheriff to conform with it; for the sheriff’s conduct, and his return of the execution, without any such sanction from the creditor, could hardly have exonerated the surety of Machir from the debt, or given a subsequent mortgage a preference over the execution. If a creditor put his execution into the sheriff’s hands with instructions to forbear from serving it, the lien of the execution on the debtor’s goods was lost; if the execution was levied, and the creditor then directed it to be held up, the lien was waived. He said, it was in that way, without doubt, in this case, that Hopewell the surety was exonerated, and the lien of the execution on the property was lost; and that William Fisher acquiesced in those results. He referred to Bullitt’s ex’ors v. Winstons, 1 Munf. 269, in which it was held, that a plaintiff directing the sheriff to put off a sale of property taken in execution to a day after the return day, and to suffer it to remain in the possession of the defendant, without the concurrence of the sureties, released the sureties from that or any subsequent execution ; and the plaintiff, in such.case, adding to the direction, that the sheriff should hold the property subject to the execution, would not prevent the release from operating. But how, he asked, could the sheriff be held responsible for such an act as was here imputed to his deputy? The deputy, of his own head, not in virtue-of his office, not in pursuance of any trust or authority from his principal, made an-arrangement with Jacob Fisher, by which indulgence was to be given upon William Fisher’s execution to his debtor. The deputy, in thus acting, made himself personally responsible, but *acting beyond the limits of his official authority, he could not bind his principal.

- Johnson replied, that it was exactly in the fact of the deputy, acting for the sheriff in the execution of the process, having taken upon him to give an indulgence to the debtor, which the law did not permit a sheriff, to give, that he violated the official duty of the sheriff. Of course, his principal- was liable for his default. If the order of Jacob Fisher was really the act of William, and this were a question between William Fisher and Hopewell, the case of Bullitt’s ex’ors v. Winstons would be an authority to shew that Hopewell was exonerated; but that authority could have no influence on the question to be decided here. He maintained, that this court, in reviewing the judgment of the circuit court on the motion for the new trial, had to perform the simple duty of inquiring whether the verdict of the jury was a fair conclusion from the facts proved at the trial, as stated in the bill of exceptions. There was here no contrariety in the evidence ; no dispute as to the credit of witnesses. Was the order under which. the deputy sheriff gave the debtor the indulgence, the act of William Fisher? That it was not given by him, or by Jacob Fisher with any previous authority from him, was certain. He never sanctioned it, in any way, or at any time. The sheriff rested his defence, wholly, on William Fisher’s subsequent acquiescence, and on his-acquiescence signified while the execution was yet in his hands, and it was in his power to proceed with the sale. It was incumbent on him to prove such acquiescence. The court did not certify, that the fact of William’s acquiescence in the order of Jacob was proved : it only certified, that William, when told of the order given by Jacob, was offended, and then told the sheriff to sell at the end of the two months, and make the money as soon as he could. The fair inference from the facts proved at the trial, was, that the deputy sheriff had restored the property *to the possession of the debtor, in consequence of the order given him by *22Jacob, before William knew of the existence of the order: the sheriff’s return itself sufficed to prove the fact beyond doubt, for it was founded on Jacob’s order alone, without the least reference to William’s sanction : and that fact produced all the mischief of which the plaintiff complained. But, he repeated, the order itself, supposing it had been given with the authority of the plaintiff, warranted the sheriff to do no more than postpone the day of sale, not to part with the possession of the property, and so to destroy the lien of the execution upon it.

*

Executions. — See monographic *note*on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.

†

Same — Suspension of Proceedings — Effect.—A mere suspension of proceedings on a levied execution does not authorize a restoration of the property to the possession of the defendant nor release the levy. Walker v. Com., 18 Gratt. 50, citing the principal case.

*

 See * on page 18.

‡

 Appellate Practice — New Trial — Rule of Decision When Facts Certified — In Slaughter v. Tutt, 12 Leigh 163, it is said: “Where the facts certified to this court under the rule established in Bennett v. Hardaway (6 Munf. 125), present but a naked question of law, there seems to be no difference of opinion. In such a case, this court would not be influenced by the opinion of the jury or inferior court as to the law of the case, and would grant a new trial or not, according to its own opinion of the law arising upon the facts stated. *Fisher v. Vanmeter,*cited at the bar, rests on this principle.” To the same point, see the principal case cited in Vaiden v. Com., 12 Graft. 727 ; Strode v. Clement, 90 Va. 560, 19 S. E. Rep. 177. See further, monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

PARKER, J.

The bill of exceptions in this case does not state the fact that the property levied on was returned by the sheriff to the debtor, but the other facts proved sufficiently establish it. For, otherwise, the sheriff would have proceeded to sell at the end of the two months, and the mortgage of the property by Machir would not have affected the preferable lien of the plaintiff’s .execution, although the consent to postpone the sale, would, according to the authority of Bullitt’s ex’ors v. Winstons, have released the surety.

The gravamen of this action, therefore, is that the sheriff did not retain in his possession the property levied on, and proceed to sell it; and from this obligation he was not released by any act of the plaintiff. If the conversation of the plaintiff with the sheriff took place after the return day of the execution, it can hardly be construed into a recognition of Jacob Fisher’s officious act, for then the mischief had been done, and the surety released ; and if before, it was no more than a direction to postpone the sale, holding the property in his own hands to satisfy the debt after the expiration of the two months, which did not authorize the sheriff to return it to' Machir, nor, in my opinion, discharge the lien of the execution. The deputy sheriff must be considered *as still holding it as sheriff; and if, at the expiration of the time, he failed to sell, or, by any previous act of his, suffered the property to be eloigned, or rights to be acquired in it by others, preferable to the plaintiff’s, his principal is liable for its value.

I think, therefore, the new trial ought to have been awarded.

BROCKENBROUGH and BROOKE, J., concurred.

TUCKER, P.

I am also of opinion, that the judgment should be reversed, and a new trial awarded. Although the court and jury have concurred, yet the facts, and not the credibility of testimony, being fairly before this court, it must decide whether upon the facts stated the defence was made out. I think it was not. The order to the sheriff was given by an unauthorized person, and the acquiescence in that order by the plaintiff subsequently, ought to have been established in order to charge him. The fact, that he directed the sheriff to proceed at the end of the two months, would have afforded strong evidence of acquiescence, if it occurred before the day appointed for the sale. But if it occurred afterwards, it would be of little weight, as the mischief was then done. It was incumbent, then, on the defendant to shew the time at which the alleged acquiescence occurred,' and that fact not appearing, his defence as to this matter was not made out.

I am, however, farther of opinion, that if William Fisher had given the direction which Jacob gave, it would not have been a sufficient defence. The sheriff was not directed to return the property to Machir’s possession. It was a mere direction to postpone the sale, but to hold the property subject to his control. The mere postponement of a sale under an execution does not affect the plaintiff’s rights, unless there be collusion. But if he directs the sheriff not to sell, but to *leave the property in the debtor’s possession, the execution is fraudulent, and any other creditor may take the property in execution ; 13 Vin., Abr. Fraud G. pl. 3, p. 524, cited by Green, J., in Claytor v. Anthony, 6 Rand. 305, 2 T. R. 595. The difference is obvious. So long as the goods are in the hands of the sheriff, they are in the custody of the law. But when the plaintiff directs a return of them, he takes them out of the custody of the law ; and from that moment they are no longer bound by his execution. These principles will be found to be maintained by the cases of Baird v. Rice, 1 Call 18, and Bullitt’s ex’ors v. Winstons, 1 Munf. 269. In this case, then, the order had not the effect of removing the lien, and leaving the property subject to the execution of another, or to be encumbered by trusts in favour of other creditors. The sheriff, however, failed to obey the order; he failed to hold the property, or if he does hold it, he has failed to appropriate it by sale for the benefit of the plaintiff. ■In point of fact, the property was encumbered by a mortgage and sold under it. The sheriff, therefore, must have permitted it to go out of his hands, and this without authority. If so, he is responsible. It is the simple case of a levy, and an eloignment by his default.

Judgment reversed, verdict set aside, and cause remanded for a new trial.