Allen v. Hart

• Decision Date: 08 June 1868
• Citation: 59 Va. 722
• Parties: ALLEN & als. v. HART.
• Court: Virginia Supreme Court

59 Va. 722

ALLEN & als. v. HART.

Supreme Court of Appeals of Virginia.

June 8, 1868

The defence of set off is admissible in a motion upon a forthcoming bond taken on a warrant of distress.^[a1]

On the 8th of December, 1866, Benjamin Hart moved the Court of Hustings of the city of Richmond for award of execution upon a forthcoming bond which had been executed by J. V. H. Allen treasurer National Express Company, M. G. Harman and Thomas Branch, and given under a distress warrant for rent. The distress warrant had been issued at the suit of Hart against The National Express and Transportation Company, and was levied on the property of the company. The rent claimed to be due was $1,500, and the penalty of the bond was $3,000.

On the hearing of the motion, the defendants offered to prove that the plaintiff was, before and at the time of the making and delivery of the said bond, indebted to the National Express and Transportation Company in a sum greater than the penalty of the bond, viz.: in the sum of $5,000--it having been agreed between the parties that any such debt might be urged by way of set-off to the said bond, if evidence of such debt should be admissible. But the plaintiff objected to the introduction of this evidence; and the court sustained the objection. And the defendants excepted.

There was judgment of award of execution in favor of the plaintiff for the penalty of the bond, to be discharged by the payment of $1,546.10, and interest; and on a writ of error to the District Court of Appeals at Williamsburg, this judgment was affirmed. Allen & c. then obtained a writ of error to this court.

Page &amp Maury, for the appellants.

Ould &amp Carrington, for the appellee.

MONCURE, P.

This is a supersedeas to a judgment of the District Court at Williamsburg, affirming a judgment of the Court of Hustings for the city of Richmond, rendered on a motion on a forthcoming bond given under a distress warrant for rent. On the hearing of the motion in the Court of Hustings, the defendants in that court, who are the plaintiffs in error here, offered evidence tending to prove that the plaintiff in that court, who is the defendant in error here, was, before and at the time of the making and delivery of the said bond indebted to the said defendants; or, which is the same thing, to the National Express and Transportation Company, a body politic and corporate, upon whose goods, chattels and effects the warrant of distress in the condition of the said writing obligatory named was levied, in a sum greater than the penalty of the said bond, to wit, in the sum of $5,000; it having been agreed between the said plaintiff and the said defendants that any such debt might be urged by way of offset to the said bond, if evidence of such debt should be admissible; and the plaintiff thereupon objecting to the admissibility of the said evidence, the court rejected it, upon the ground that the defence of such offset was inadmissible in a motion upon a forthcoming bond taken under a warrant of distress. To this ruling of the court a bill of exceptions was taken, which presents the only question we have to decide in this case. That question, as already shown, is, Whether an offset, or a set-off, as it is more commonly called, is a good defence to a motion on a forthcoming bond taken under a distress warrant?

A forthcoming bond was for the first time authorized by law to be taken under a distress warrant at the Revision of 1849. So much of the law as is material to this case is contained in the Code, ch. 189, " of forthcoming bonds," §§ 1, 2, 3, 4 and 5, and is as follows:

1. The sheriff or other officer levying a writ of fieri facias, or distress warrant, may take from the debtor a bond with sufficient surety, payable to the creditor, reciting the service of such writ or warrant, and the amount due thereon, (including his fee for taking the bond, commission and other lawful charges, if any,) with condition that the property shall be forthcoming at the day and place of sale. Whereupon such property may be permitted to remain in the possession and at the risk of the debtor.

2. If the condition of such bond be not performed, the officer unless payment be made of the amount due on the execution or warrant, (including his fee, commission and charges as aforesaid,) shall, within thirty days after the bond is forfeited, return it, with the execution or warrant, to such court, or the clerk's office of such court, as is prescribed by the 27th section of chapter 49. The clerk shall endorse on the bond the date of its return; and against such of the obligors therein as may be alive when it is forfeited and so returned, it shall have the force of a judgment. But no execution shall issue thereon under this section.

3. The obligors in such forfeited bond shall be liable for the money therein mentioned, with interest thereon from the date of the bond till paid, and the cost; the obligee or his personal representative shall be entitled to recover the same by action or motion.

4. In an action or motion on such bond, when it is taken under a distress warrant, the defendant may make defence on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal.

5. If any such bond be at any time quashed, the obligee, besides his remedy against the officer, may have such execution on his judgment, or issue such distress warrant as would have been lawful if such bond had not been taken.

In a note of the Revisors to chap. 148, § 7, of their report, p. 735, they say, in reference to the abolition of the action of Replevin, (which they recommend,) and of the remedies which they propose to substitute in its place, as follows: " The act of 1822-3, p. 31, ch. 29, § 3, after reciting that doubts exist whether the action of replevin, as provided for by the common law of England, is not still in force in this State, declared that the action should be construed to exist in no other cases than should arise under and by virtue of the act in 1 R. C., p. 446, ch. 113, concerning rents. If it is to exist in no other cases, we think it better to abolish it altogether, and to attain its objects by other means. In the case of an attachment, the defendant from whom rent or money is claimed, or a third party claiming the property attached, can assert his rights before the court to which the attachment is returnable. In the case of a distress, we have in a subsequent chapter (concerning interpleader and the settlement of the right to property distrained or levied upon), placed a third party claiming property distrained, upon the same footing as if he claimed property taken under execution. The only other case to which the writ of replevin is now applicable in Virginia, is that of a tenant illegally distrained upon. We propose that a tenant be permitted to give a forthcoming bond when his goods are distrained for rent, in like manner as a debtor may give such bond when his goods are taken under execution; and that on a motion on a forthcoming bond taken under a warrant of distress, the tenant be allowed to controvert the legality of the distress. Thus all the purposes for which the writ of replevin is now resorted to in Virginia, will be attained by other remedies with which counsel in this State are more familiar." " If the action of replevin were retained, we think it would be better to extend it as a means of retaining specific property, to other cases than those of distress and attachment for rent." " Seeing, however, that it has been the pleasure of the General Assembly to narrow its range to a few cases, and that in those cases it is a remedy attended with a good deal of inconvenience, we have thought that it would probably suit counsel in this State and the community best to drop it altogether, and to adopt in lieu of it the other remedies mentioned in this note."

Thus it appears, that the defence which a tenant may make to an action or motion on a forthcoming bond taken under a distress warrant, was intended by the Legislature to be a substitute for his common law remedy by the action of replevin, which was abolished by the Code. It seems to be material, therefore, to enquire, in the first place, whether the defence of set-off could be made in that action.

It seems to be well settled in England, that a set-off cannot be pleaded to an avowry for rent. Babington on Set-off, p. 8, 6 Law Library; 2 Pothier on Obligations by Evans, p. 115; Sapsford v. Fletcher, 4 T. R. 511. In that case Lord Kenyon, Ch. J., said: " It is much to be lamented that it should have been so decided; however, for the sake of certainty in the law, we must submit to those decisions till the Legislature alter the law."

On the other hand, it was at least as well settled in this State, that a set-off was a good defence to an avowry for rent in an action of replevin; as the cases cited by the counsel for the plaintiffs in error plainly show. Turberville v. Self, 2 Wash. 71, decided in 1795; same case, 4 Call 580; Nicholson, & c., v. Hancock, & c., 4 Hen. & Mun. 491, decided by Chancellor Taylor in 1809; and Murray, & c., v. Pennington, 3 Gratt. 91. Turberville v. Self was an important case, and was argued by Washington and Marshall on opposite sides. It is imperfectly reported in 2 Wash.; but is fully reported in 4 Call, from Mr. Marshall's notes. The latter report was not published until 1833; which accounts for its not having been referred to by Chancellor Taylor in Nicholson, & c., v. Hancock, & c., supra, nor in 1 Rob. Pr., old ed., p. 420.

The language of the English statutes of set-off, 2 & 8 Geo. 2, is different from that of ours. " Where there are mutual debts between the plaintiff and defendant, &amp c., one debt may be set against the other," & c., is the language of ...