Irvin v. Eldridge & Brackenridge

Court of Appeals of Virginia

Irvin v. Eldridge & Brackenridge

1 Va. 203

DecidedApril 15, 1793

StatusPublished

This text of 1 Va. 203 (Irvin v. Eldridge & Brackenridge) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Irvin v. Eldridge & Brackenridge, 1 Va. 203 (Va. Ct. App. 1793).

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Opinion

The President.

The act of 1769, c. 3 § 2, declares, that if the owner of goods taken in execution, shall tender sufficient security, to have the same forthcoming at the day of sale, the Sheriff shall take a 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 goods forthcoming at the day of sale appointed by such Sheriff, and shall thereupon suffer the goods to remain with the debtor, at his risk, until that time.” But this Court, in the case of Woodw Davis, determined, that it was not necessary for the bond to state that the time when the property is to be produced, i? that appointed for the sale of it; that it is more proper, and more beneficial to the parties, that the bond should ascertain the time and place of delivery, than that it should pursue the literal words of the law, which do not require either to be inserted in the condition, but merely, that the property should be forthcoming, at the day of sale appointed by the Sheriff. It is remarkable, that the next clause of the law, which gives the remedy, drops the expression of the day of sale, and says, “ if the property be not delivered, according to the condition of the bondf a motion may be made. The Court are therefore of [205]*205opinion, that the bond in question is neither lefective nor informal.

The judgment must be reversed, and wc should now proceed to enter it up for the appellan, as the District Court ought to have done, if it appeared to us, that the appellee had no other objection, o¡ defence to make against it, than that, upon which ,ve have decided. But as it is possible that the defendmts may have made payments, or may have other objections, which were not brought forward, in consequence of the opinion of the Court being in their fa voir, it will be most proper to remand the cause to the District Court, that they may proceed to render judgment upon the bond, open, however, to the defendants, to make any other objection thereto than such as respect the legality, or formality, of the bond.

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The President.

The act of 1769, c. 3 § 2, declares, that if the owner of goods taken in execution, shall tender sufficient security, to have the same forthcoming at the day of sale, the Sheriff shall take a 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 goods forthcoming at the day of sale appointed by such Sheriff, and shall thereupon suffer the goods to remain with the debtor, at his risk, until that time.” But this Court, in the case of Woodw Davis, determined, that it was not necessary for the bond to state that the time when the property is to be produced, i? that appointed for the sale of it; that it is more proper, and more beneficial to the parties, that the bond should ascertain the time and place of delivery, than that it should pursue the literal words of the law, which do not require either to be inserted in the condition, but merely, that the property should be forthcoming, at the day of sale appointed by the Sheriff. It is remarkable, that the next clause of the law, which gives the remedy, drops the expression of the day of sale, and says, “ if the property be not delivered, according to the condition of the bondf a motion may be made. The Court are therefore of [205]*205opinion, that the bond in question is neither lefective nor informal.

The judgment must be reversed, and wc should now proceed to enter it up for the appellan, as the District Court ought to have done, if it appeared to us, that the appellee had no other objection, o¡ defence to make against it, than that, upon which ,ve have decided. But as it is possible that the defendmts may have made payments, or may have other objections, which were not brought forward, in consequence of the opinion of the Court being in their fa voir, it will be most proper to remand the cause to the District Court, that they may proceed to render judgment upon the bond, open, however, to the defendants, to make any other objection thereto than such as respect the legality, or formality, of the bond.

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Bluebook (online)

1 Va. 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irvin-v-eldridge-brackenridge-vactapp-1793.