Bergen v. Boerum — 2 Cai. 256

Majority

p. 256

Bergen and Garritson against Boerum.

Headnote

If a judgment has been entered, and execution sued out for the penalty of a bond, the court will set aside the execution, and order satisfaction to be-entered, on payment of the debt, and interest due on the condition, with the costs of the suit, though the bond was given for a larger debt than that mentioned in the condition, and for the overplus, a promissory note had been given, which is unpaid, and for which there was, at the time, a verbal agreement, execution should be taken out if it was not duly honored. No more can be levied by an execution, on a judgment upon a bond, than the sum due on the condition, and costs. A notice signed with the Christian and surname ofan attorney is good, though it have not the addition of “ attorney for,” &c. A motion cannot be supported by an affidavit, not served, though the matter it contain be not known till the day of applies tion. A copy ought to be served, and a motion made on the next day.

Evertson moved to set aside the execution issued in this cause, and to have satisfaction entered on the judgment upon an affidavit stating that the amount of the debt in the condition of the bond, on which judgment had been confessed, had, together with interest and costs, been paid to the sheriff, *who nevertheless threatened to go on and sell, in pursuance of the directions he had received, as the fi. fa. issued was on a judgment for the penalty, and the writ endorsed to levy more than the sum paid.

"He insisted that the sum in the condition is the actual debt. By the words of our statute^[1] it is made so. It allows the bringing into court the principal, interest, and

p. 257

costs, in bar of the suit; and though the terms of the law are, that it be “ pending the action,” which may be now deemed to be at an end, yet in Rich. K. B. 211, and 1 Sell. 359, 360, it will be seen that, the courts of common law will extend the equity of a statute in cases like this, and that by virtue of their general controlling power over their own judgments.

JEmott, contra,

read counter-depositions, setting forth that the bond and warrant, on which the execution was issued, were given to secure a debt larger than the condition, for the surplus of which a promissory note was made by the defendant, payable at 30 days, under an agreement that if it was not duly honored, the amount might be levied by execution, on the warrant of attorney; that the plaintiffs had also other demands against the defendant, for Iona fids debts, on notes of hand, to the amount of which the sheriff had been directed to levy, but that the whole did not exceed the penalty of the bond) the condition of which, together with interest and costs, had not been fully satisfied, as, on calculation, two dollars appear to be still due.

From these circumstances, he argued, the court had no jurisdiction. At common law they could not relieve against the penalty, after forfeiture, because that, after a lapse of the day, was, on legal principles, the amount of the debt. To mitigate this severity, it was necessary to have recourse to a positive statute. The provisions of that, however, went, as had been acknowledged, to authorize an interposition while the suit “is pending,” not afterwards. This court proceeding under the statute, cannot go beyond it, and equity alone is the tribunal to which recourse can be had. These principles are to be collected from 5 Bac. Abr. 256, title Obligation. If, however, the court can interfere, it must be on equitable principles alone. What, then, would equity do ? It would refuse to relieve from the penalty, unless all fair and just debts were discharged. The defendant, therefore, should have sworn the other gums endorsed are not due. He is not otherwise entitled to the favor he asks. ' He that seeks equity should *do it. Francis’s Max. 1. The whole debt also is not paid, and it appears from the affidavits that the defendant is insolvent.

Evertson, in reply,

was stopped by the court.

We have no doubt of our equitable jurisdiction. It would be attended with the most mischievous consequences to allow collecting more than is due on the condition. It would be trying the equity of the case in this way. It is against the very form of the contract, and liable to great abuse. It would be a deception on the world, for the condition which is to discharge the -judgment is on record. If, therefore, it was to reach to other demands, it would be impossible to know what would satisfy the debt. As to the two dollars, de minimis non curat lex. Take the effect of your motion, with the costs of this application and those of that to the judge for the order to stay proceedings.

Motion granted.

\*An objection was taken to the notice of motion, for being signed, simply, “Nicholas Evertson,” without the addition of “attorney for the defendant,” but the court paid no attention to it.

N. B. — It was ruled in this cause, that an affidavit containing new matter, could not be read in support of a motion, though the facts in it were not known till the day of bringing it on. The party should have served copies, and moved the next day.