James Brown, Plaintiff In Error v. John Clarke, Defendant

• Decision Date: 01 January 1846
• Citation: 4 How. 4,45 U.S. 4,11 L.Ed. 850
• Parties: JAMES BROWN, PLAINTIFF IN ERROR, v. JOHN CLARKE, DEFENDANT
• Court: U.S. Supreme Court

45 U.S. 4

4 How. 4

11 L.Ed. 850

JAMES BROWN, PLAINTIFF IN ERROR, v. JOHN CLARKE, DEFENDANT.

January Term, 1846

THIS was a writ of error to the District Court of the United States for the Northern District of Mississippi, to bring up for review certain instructions delivered to the jury in an action of trover, brought by the defendant in error against the plaintiff in error, and in which the plaintiff below obtained the verdict.

The case was this. Brown, the defendant below, obtained a judgment of $8,640.37, by confession, against one Haywood Cozart, in the Circuit Court of Lafayette County, Mississippi, which was docketed on the 18th of May, 1840. Upon which execution was issued on the 6th, and delivered to the sheriff on the 20th of June following, and a levy made the same day on several slaves, the property of the defendant on the execution. A forthcoming bond was given by the defendant, with H. M. Cozart as surety, and which was approved of by Brown, the plaintiff.

This bond is in the penalty of double the amount of the judgment, made payable to the plaintiff in the execution, and conditioned well and truly to deliver the property levied on to the sheriff on the 17th of August (then) next, the day of sale, at a certain place, to be sold to satisfy the judgment, unless the same should be previously paid.

Clarke, the defendant in error, recovered a judgment of $2,117.31 against the same Haywood Cozart, in the District Court of the United States for the Northern District of Mississippi, at the June term of said court, 1840; upon which an execution was issued to the marshal of the district, and a levy made, on the 9th of November following, upon six of the slaves in the possession of Cozart, and which had been before levied on under Brown's execution. They were sold by the marshal on the 7th December thereafter, and purchased in by Clarke, the plaintiff, the highest bidder.

The sheriff returned upon the execution in the case of Brown v. Cozart, and upon the forthcoming bond, that the property was not delivered in pursuance of the condition, nor the money paid; and that it was therefore forfeited. And Brown, at the November term of the Circuit Court of Lafayette County, at which the execution was returnable, made a motion to the court to quash the bond, which was granted accordingly; the ground of the motion is not stated. And on the same day, the 23d of November, 1840, he sued out an alias fieri facias on the original judgment, returnable at the next term of said court.

To this execution, the sheriff returned that he had levied upon six slaves, naming them, in the hands of the Marshal of the Northern District of Mississippi, and also on other property which it is not material to notice. And further, that after the sale of the slaves by the marshal, he was indemnified by Brown, and required to make a levy-upon them on the 7th of December, 1840, and that, on the 4th of January following, he sold them, by virtue of the execution, to Brown, the highest bidder.

It further appeared, that, at the time the marshal levied on the slaves, the 9th of November, 1840, Cozart had some fifteen or eighteen other slaves in his possession; that the marshal took those levied on into his custody, and on the sale under the execution delivered them to Clarke, the purchaser; and that they were afterwards taken out of his possession by the sheriff, under his execution, by the direction of Brown; that Hiram M. Cozart, the surety in the forthcoming bond, was a brother of Haywood Cozart, was a man of but little property, and lived with his brother, some six miles distant from Prown; and that after the levy by the marshal, and before the sale, the two Cozarts left the State of Mississippi for Texas, and carried away with them the fifteen or eighteen slaves not levied on by this officer.

When the testimony closed, the counsel for the plaintiff, Clarke, requested the court to give the following instructions to the jury, namely:—That if they believed the marshal made lawful levy on the property in dispute, the sale under his execution was valid, and vested in the purchaser a good title against other executions, whether founded on judgments of the state or federal courts; and that, if they believed that the sheriff levied his execution on the slaves and took a forthcoming bond, which was afterwards forfeited, the same was a satisfaction of the original judgment, and the subsequent quashing of the same did not affect the rights of the plaintiff, acquired by virtue of the marshal's levy after such forfeiture of the bond; and also, if they believed that the sheriff, after his levy, took a forthcoming bond, which was afterwards forfeited, and that the salves therein named remained in the possession of the defendant Cozart, the levy of the marshal, made after the forfeiture of said bond, and sale in pursuance thereof, were valid, notwithstanding the bond was quashed before the sale, but after the levy. And, further, if the jury believed that the defendant, Brown, agreed to approve of the surety on the forthcoming bond, and thereby permitted the slaves to remain in the possession of the said Cozart, the subsequent quashing of the bond upon his own motion did not place him in any better situation than if he had not issued an execution on the judgment. And, also, if they believed the approval of the bond by Brown was with a view to allow Cozart to remain in possession of said slaves, and to keep off and delay other creditors, then they should find for the plaintiff; and, also, if they believed the conduct of Brown was fraudulent in obtaining proceedings on his judgment, then they should find for the plaintiff.—All which instructions were objected to by the defendant's counsel; but the objection was overruled by the court, and the instructions given.

The counsel for the defendant proposed the following instructions, namely:—That, if the jury believed, from the evidence, the defendant, Brown, obtained a prior judgment in the Circuit Court of Lafayette County to the judgment obtained by the plaintiff, Clarke, in the District Court of the United States, Brown thereby obtained a prior lien upon Cozart's property for the satisfaction of his judgment, and that said lien could only be defeated and postponed by some act of Brown fraudulent in law; that the taking of the forthcoming bond by the sheriff, and the quashing of the same, were not acts deemed fraudulent in law; that the levy and sale of the slaves of Cozart by the marshal, by virtue of an execution on a junior judgment, was subject to the lien of the prior judgment, and communicated no title to the purchaser paramount to the lien of the prior judgment; that the forfeiture of a forthcoming bond, which is quashed for want of conformity to the statute, is not such an one as has the force and effect of a judgment, because not in conformity to the statute. Which instructions were objected to by the counsel for the plaintiff, and were refused by the court.

The record adds, the jury returned a verdict for the plaintiff, and the defendant moved the court to set it aside and grant a new trial, which motion was overruled. To all which the defendant excepts, and tenders this his bill of exceptions, which he prays may be signed and sealed by the court.

The case was argued by Mr. Chalmers and Mr. Johnson, for the plaintiff in error, and Mr. Mason and Mr. Milton Brown, for the defendant. Of these B, p. 486, in order to show that except of Mr. Brown's.

Mr. Brown.

John Clarke, the defendant in error, brought his action of trover against James Brown, the plaintiff in error, for five slaves, in the District Court of the United States for the Northern District of Mississippi. At the December term, 1841, of said court, a verdict was rendered for $3,225, the value of the slaves, and judgment entered accordingly for the amount of the verdict and costs. No exception appears of record to have been taken or filed to the opinion of the court during the progress of the trial. After the verdict and judgment, Brown, by his counsel, moved the court to set aside the verdict, and grant a new trial. The court, on argument, overruled the motion. The entry of this proceeding of record is as follows:——

'This day came the parties, by their attorneys, and then came on to be heard defendant's motion for a new trial; and, after argument, as well in support of as against said motion, it is considered by the court that the same be overruled; to which decision of the court overruling said motion, the defendant, by attorney, excepts, and tenders his bill of exceptions, which is signed and sealed by the court, and ordered to be made part of the record in this cause.'

On this alleged error of the court, in refusing to grant a new trial, this writ of error has been sued out. That the refusal to grant a new trial is no ground for a writ of error is the well settled doctrine of this court. 3 Peters's Dig. 106; Barr v. Gratz, 4 Wheat. 213, 4 Cond. Rep. 430; United States v. Daniel, 6 Wheat. 542, 5 Cond. Rep. 170.

What in this cause purports to be a bill of exceptions is founded on and follows the overruling the motion for a new trial, and was, as appears on its face, drawn up and signed, not only after the trial, but after the motion for a new trial was disposed of. It contains nothing that can be reviewed by this court. It contains a mere statement of facts given in evidence, and the charge of the court to the jury, not made matters of record, but only retained in the memory of the judge, and recalled to regulate the discretion of the court in granting or refusing a new trial. Inglee v. Coolidge, 2 Wheat. 363.

A bill of exceptions, to be the foundation of a writ of error, can only be for matters excepted to at the trial, and must appear of record to have been actually reduced to form, and signed pending the trial; and if, as in this case, it appear to have been drawn up and signed after verdict, it will be fatal. Walton v....