January 1, 1828
WILLIAM B. ALEXANDER, FRANCIS SWANN, AND THOMAS SWANN, PLAINTIFFS IN ERROR,
ELISHA BROWN, DEFENDANT IN ERROR.
ERROR for the Circuit Court of Alexandria. This case was argued by Mr. Swann, for the plaintiffs, and Mr. Jones, for the defendant. The material facts of the case appear in the opinion of the Court.
The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.––
This was a motion to the Circuit Court for the District of Columbia, sitting in Alexandria, for an award of execution upon a forthcoming bond, taken in pursuance of the execution law of Virginia. That law directs, that if the owner of any goods or chattels, which shall be taken by virtue of a writ of fieri facias, shall tender sufficient security to have the same goods and chattels forthcoming, at the day of sale; it shall be lawful for the sheriff or other officer, to take bond from such debtor and securities, payable to the creditor, reciting the service of such execution, and the amount of the money or tobacco due thereon, and with condition to have the money or tobacco forthcoming, at the day of sale appointed by such sheriff or other officer; and shall thereupon suffer the said goods and chattels to remain in the possession, and at the risk of the debtor, until that time. And if the owner of such goods and chattels shall fail to deliver up the same, according to the condition of the bond, or pay the money or tobacco mentioned in the execution, such sheriff or other officer, shall return the bond to the office of the clerk of the Court, from whence the execution issued, to be there safely kept, and to have the force of a judgment; and thereupon it shall be lawful for the Court, when such bond shall be lodged, upon the motion of the person to whom the same is payable, his executors or administrators, to award execution for the money and tobacco therein mentioned, with interest thereon from the date of the bond, till payment, and costs; provided the obligors, their executors or administrators, or such of them against whom execution is awarded, have ten days' previous notice of such motion.
In this case, the condition of the bond recited a fieri facias against William B. Alexander and Richard B. Alexander, but was levied on the property of William B. Alexander only. The bond was executed by William B. Alexander, and his sureties. The notice of the motion to award execution on this bond, was addressed to the obligors, and imported that the motion was to award execution on their forthcoming bond, bearing date, &c., and taken by virtue of a writ of fieri facias issued, &c., 'in my name, against William B. Alexander, &c.'
On the motion, the forthcoming bond, and the execution on which it was taken, were shown to the Court; and the proceedings were regular in all respects, except that the notice stated the bond to be taken by virtue of a writ of fieri facias, issued against William B. Alexander, whereas it was in fact issued against William B. Alexander and Richard B. Alexander. It was admitted, that this was the execution on which the forthcoming bond was taken, and the only execution in which the said William B. Alexander was a party.
The counsel for the defendants took exceptions to the notice, but the Court gave judgment on the motion; which judgment is brought before this Court by a writ of error.
The Act of Assembly prescribes, that the forthcoming bond shall recite the material parts of the execution on which it is taken, but gives no other direction respecting the notice, than that it shall be served ten days before the motion. Its sole purpose is to inform the party that the motion is to be made, thereby enabling him to show that the money has been paid; or, that for any other reasons, execution ought not to be awarded. If it gives him the information, which enables him to do this, it effects all the substantial purposes of justice. A false recital of the execution, would be fatal, because it might mislead the obligor; but in this case, the execution was against William B. Alexander, though not against him alone. He could not mistake the case in which the motion was to be made, because, it is admitted, that this was the execution on which the bond was taken, and the only execution in which the said William B. Alexander was a party.
After judgment has been rendered, an execution issued thereon and levied, the property restored to the debtor, on his bond to produce it on the day of sale, and his failure to do so, we do not think that nice and technical objections to the notice, where every purpose of substantial justice is effected, ought to be favoured. The law only requires notice, and where the notice is sufficiently explicit, to render mistake impossible, we think it justifies the award of execution.
The judgment is affirmed, with costs and damages, at the rate of six per centum per annum.
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