Opinion
(December Term, 1855.)
A judgment exceeding the sum demanded in the writ, is irregular and erroneous, but not void; its validity, however, cannot be questioned collaterally. Therefore, where the writ demanded $300, and the judgment was for $309, it was Held, that a sheriff who had become bail, by failing to take a bail-bond from the defendant, could not avail himself of this variance as a defense upon a suit by sci. fa. to subject him as bail.
A sci. fa., to subject a sheriff as special bail, by reason of his default, need not set forth the cause of action upon which the judgment against his principal was obtained.
SCIRE FACIAS against defendant's intestate as special bail of one George Gwyer, tried before his Honor, Judge PERSON, at the Fall Term, 1855, of Duplin Superior Court.
W. A. Wright, for plaintiffs.
Reid, for defendant.
The following is the reciting portion of the sci. fa., viz: "Whereas, heretofore, a capius ad respondendum issued to the sheriff of Duplin, at the instance of Edward Savage and Gaston Meares, trading under the name and style of Savage Meares, against George Gwyer, defendant, commanding the said sheriff to seize and take into his custody the body of the said George Gwyer, and him safely keep, so that he might have him before the justices of our court of pleas and quarter sessions, in and for the county of Duplin, at the court-house in Kenansville, on the 3rd Monday in October, 1851, then and there to answer the said plaintiffs of a plea of trespass on the case, to their damage three hundred dollars; and whereas the said capias ad respondendum, came into the hands of Edward E. Hussey, esquire, sheriff of the said county, and was by him executed, c.; and whereas the said sheriff took no bail of the said George Gwyer, wherefore, and by force of the statute, the said Edward E. Hussey became special bail of the said George Gwyer; and whereas, at c., judgment was duly entered against George Gwyer, in favor of the said Savage Meares, for the sum of three hundred and nine 56-100 dollars damages, with interest on $296,95, from the rendition of the judgment, till paid, c., which said judgment remains altogether unpaid and unsatisfied, c."
The writ in the case of Savage Meares, was shown to have come to the hands of defendant's intestate; it was in Case, and demanded $300 damages. It was returned, "executed," but no bail-bond was returned, for, in fact, none had been taken by the sheriff. At January Term, 1852, plaintiffs took judgment against Gwyer, for $309,56-100, and $8,90-100 costs. The case came up to the Superior Court by appeal.
The defendant insisted, 1st. That the plaintiffs could not have judgment, for the reason that the writ against Gwyer was for $300, and judgment rendered against him was $309, 56-100, and costs.
2nd. That the sci fa. does not recite the cause of the action, in which the judgment against Gwyer was obtained.
His Honor, being of opinion with the defendant, gave judgment accordingly, from which the plaintiffs appealed.
The judgment, being for a sum exceeding that demanded by the writ, is irregular and erroneous; but it is not void, and has full force and effect until it be reversed. This must be done by a direct proceeding. Its validity cannot be impeached collaterally; consequently, the defendant cannot go behind the judgment, for the purpose of taking advantage of this variance.
Had the defendant taken a bail-bond, the penalty would have been $600, (double the amount named in the writ,) which is amply sufficient to cover the amount of the judgment rendered in this case. The defendant, by neglecting to take a bail-bond, made himself liable as bail, and of course his liability extended to $600. Had the judgment exceeded that amount, for instance, if it had been for $1000, it may be that the defendant might have gone behind the judgment, and had reference to the writ, for the purpose of fixing the extent of his liability. That question is not presented. The plaintiffs do not seek to charge the defendant beyond the amount of his admitted liability; that is, double the amount named in the writ.
As to the second question. If the sheriff takes a bail-bond, the sci. fa. must allege the execution of the bond, and the liability of the defendant by force and effect thereof, for the purpose of enabling him to deny the execution, or take advantage of a variance or the like, which he will do under the plea non est factum. If the sheriff has neglected to take a bond, the sci. fa. must allege that the defendant was sheriff; that a capias ad respondendum was put into his hands, which was returned executed; and that he had failed to take a bail-bond, wherefore, by force and effect of the statute he became liable as bail. It is necessary to make these allegations, for the purpose of enabling the defendant to traverse any one, or all of them.
So, it is necessary to allege a judgment against the principal, for the purpose of enabling the defendant to traverse that fact by a plea of nul tiel record. Before the late statute, it was necessary to allege that a ca. sa. had issued, and the return of non est inventus, for the purpose of enabling the defendant to traverse one, or both, of these facts. For what purpose, should the sci. fa. allege the cause of action in the suit in which judgment had been taken against the principal? It in no wise affects the liability of the defendant, and he can take no advantage of it, one way or the other.
PER CURIAM. Judgment below reversed, and judgment for plaintiffs according to sci. fa.