Tomkies' v. Downman

6 Va. 557

Opinion

• The argument upon these points, took place February 27th 1819, in the absence of the Reporter; but the subject appears to be fully discussed in the following opinions of the Judges, pronounced the ,28th of March 1820.

Judge Co at,ter.

In this case it appears that the appellee has received, in fines, more than his original debt and interest; after allowing him full compensation for all his trouble and extra expenses. He has also executions for farther sums; and the question is whether the Court of Equity has power to relieve against, what appears to me, such manifest oppression.

The Court, I believe, (at least a majority,) are of opinion that all the fines imposed, after the first, were illegal, and that if the point had been made, so as to present it to an appellate Court, every one of those judgments might have been reversed in a Court of law. The point, however, was not made, as we have reason to believe; for it was not even thought of when this Bill was filed, or when the case was first argued in this Court. In fact this point was suggested by this Court itself, and an argument directed upon it.

The amount of fines, since the first, exclusive of those sought to be enjoined, as well as I recollect, is about $>1500, or upwards, exclusive of costs. These have been imposed and collected clearly contrary to law. After the first fine, the party’s remedy was to sue the Sheriff; and the measure of damages would have been the amount of the execution with interest, unless the Jury chose to add something by way of punishment on the officer, and as compensation to the plaintiff for extra trouble; but surely it would have been wrong to have added to the original debt and interest, $1500 or $2000, (the amount of all the other lines,) by way of smart money. The Court of law could not have sanctioned such a verdict.

But the plaintiff in Equity lias submitted to these fines; and as he was a public defaulter, it is said to be conscionable for the defendant to fake them, and also those sought to be enjoined, and still to demand of him the original debt, because he bad a remedy at law, and his ignorance thereof won’t avail him here. I am not clear that this isa fair conclusion. Why did the party submit to the fines so repeatedly assessed upon him? Because he thought he had no redress. If those judgments were now in a state to be reversed, would it be unconscionable in the party, now asking redress in equity, to have them reversed? and would a Court of Equity interpose to prevent his recovering back the money? But they are not in that state; first, because, before this illegality is discovered, the time for a supersedeas has elapsed; and 2dly, because the point, not being thought of, may not, have been made, and, consequently, the record may not shew, in any of the cases, that there had been a previous fine.

Shall this ignorance of law, universally prevailing ’till this moment, and in consequence of which this party has been deprived of his legal defence, be a sufficient excuse for him in this Court? and will not this igno- , ranee, together with the loss of the execution as stated in the Bill, so far charge the conscience of the defendant, as that it shall be considered contrary th good conscience in him to put more into his pocket than his original debt and interest, (the first fine, which wras lawfully imposed, and to which therefore lie has as clear a right as to his original judgment,) and also all his extra costs? I think it ought. Agreeably to the Commissioner’s report, it appears to me that all these extra costs are amply covered by the monies received; and that the Injunction ought to have been not only made perpetual as to the judgment sought to be injoined, but that he ought to. be injoined from any other or farther recovery on ao count of this transaction.

I think the authorities, to wit, the case of the Count* egg of Gainsborough v. Gifford, in 2 P. Wms. 425, Branch v. Burnley, 1 Call 147, and Bullock v. Goodall, 3 Call 44, and many other cases not necessary to be mentioned, justify this opinion. Indeed, under the last case, I should incline to interpose, even if the fines had been legally assessed, on the ground that they were far beyond the degree of thé offence, and the injury to the party.

I should therefore be satisfied with a perpetuation of the Injunction, extending it to future actions as above; or I would agree to send the cause back to have an account taken, on the following principles, to wit; that the appellant here should be debited with the. amount of the original execution against Ball, and interest thereon; with the first judgment for a fine, and interest thereon; and with all legal and extra costs and charges, incurred by the appellee in prosecuting those judgments; with directions to the commissioner to allow liberal extra (Costs; and have credit for all monies paid with interest: on the coming in of which account, a decree should be made either for plaintiff or defendant, as the case mighi be. I consider that, if the appellant comes here to be relieved either because the fines are oppressive though legal, which is the case supposed in the Bill, or oppressive and illegal, as now turns out by the opinion of this Court on the law, yet he is a public defaulter coming Into equity for relief, and, ought to put the opposite party in the situation he would have been in had the appellant done his duty. Had he paid up the amount of the execution after the first fine, and which the appellee was xvilling to receive, and had a right to receive, these extra costs, in the legal pursuit (as the party supposed,) of his just rights, would never have been incurred. These are not speculative damages,

(a) but actual costs and charges incurred, and therefore can not be called mon~.s p~ti~o the pocket of ~he appellee without consideration, though they caij~e put of that of the app~11apt; aiid the fO~u~r ought to he charged only what he actually put into his pocket clear of expense.

Believing the accounts now to he pretty nearly square, according to these principles, l have no desire myself to send the cause back for a farther account.

Judge Cabell.

All the fines subsequent to the first were illegally imposed; for the Act of Assembly does not warrant more than one fine for failing to return an Execution. These fines illegally imposed, and actually paid by Tomkies, amount to more than double the principal, interest and costs of the Execution which he had failed to return. Downman having no right to extort these subsequent fines as a punishment on Tomkies, and having only a right of action against him for damages, the utmost measure of which would be the consolidated amount of principal, interests and costs on the execution not returned, together with interest on that consolidated amount it would seem just to compel him to apply the monies, he had illegally received from Tomkies, to the discharge of his legal demand against him. if this principle be correct, it must be eminently against conscience that Downman, after having already received from Tomkies the full amount of the only fine which the law authorised, and, after having received in addition thereto, under colour of illegal fines, double the amount of all the damages he had sustained or could legally have recovered, should still seek to oppress him by farther illegal fines.

This case bears a striking resemblance to that of Bullock and Clough v. Goodall, 3 Call 44. That, like this, was the case of a judgment for a fine against a Sheriff for having failed to return an execution. It was the first fine, and, in that respect, free from the legal objection arising from the repetition of the fine. But the real objection in that case, as well as in this, was that the fine was excessive, oppressive, and against conscience. It is worthy of particular attention that the bill, in that case, stated that the party had offered to prove to the Court of law, the circumstances on which he claimed relief in equity. And yet this Court granted the relief, and decIaretlit would'have done so, even if the defendant had pleaded to the jurisdiction or had demurred. I ckn perceive no substantial difference between the cases. It js.true that, in this case, the fine was illegal, as well as against conscience^ but I presume it acquires no additional sanctity on that account. Why then is not the party equally entitled to relief? If it be said that the matter, relied upon for relief in equity, was proper for the consideration of the Court of law, and that the party should have taken such steps, by excepting to the opinion of that Court, as would enable him to correct the error of the Court of law by appeal or supersedeas, the remark applies with equal force to Bullock and Clough v. Goodall. The omission to do so, proceeded, in both cases, from the mistake of the parties, in supposing that an exception to the opinion of the Court would be unavailing. Such an omission, in a case where the judgment of the Court is not only erroneous, but against conscience, shall not prevent a Court of Chancery from giving relief on equitable principles. But I am not disposed to go farther than to protect Tomkies from all future exactions, which is all that he himself asks. Although Downman has got .from him more than his principal, interest and costs, yet he was compelled to receive it by piece meal, and to encounter mucli trouble and extra expense, for which the legal costs, recovered by him, afforded him no compensation. As it would be very difficult, upon any legal principle heretofore established, to settle the accounts between the parties so as to compensate Dowvman for the trouble and expenses forced upon him Tomkies’s obstinacy, I think it better to decline the investigation altogether, and leave the parties as they now stand. I am therefore of opinion to reverse the decree of the Chancellor, and to reinstate and perpetuate the injunction, and, moreover to injoin all future motions or actions at law founded on the failure to return the execution.

Judge Brooke.

It will not be material to consider, •in this case, what is the correct construction of the Act under which the fines were imposed on the plaintiff. Unless I entertained the opinion that he had in his bill laid a foundation for the interposition of a Court of Equity, it would be superfluous; as this Court, when exercising its equitable jurisdiction, cannot reverse a judgment for error at law. It is the peculiar province of a Court of Equity to relieve against penalties for the breach of contracts, hut this is on the ground that it can place the parties in the situation, in which they ought to stand according to the justice of the case; and on the farther ground, that it is against conscience to insist on a greater sum than the actual value of the contract—6 Bro.parl. cases, 470, 12 Vesey jr. 202. In the case of a penalty inflicted by the law for some offence or delinquency, these grounds can not he relied on: a Court of Equity is incompetent to place the party and the commonwealth in the situation in which they stood before the offence was committed:— atonement to the public for the breach of a public duty, for the violation ol‘ a law, cannot be made. To relieve in such case, by remitting the fine or penalty, according to the theory and practice of our government belongs to another department. The power to pardon crimes, according to the common law and the practice of our government, includes also the power to remit fines and penalties. That power has always been exercised by the Executive, until, in the last particular, it was taken away by an act of the Legislature in conformity to the constitution. That the fines in the present case have been by the law given to the party injured, does not vary the principle:—it is not to be distinguished what portion of them is in compensation for the injury done him, and what in atonement for the failure to perform a public duty; and, if it were,, the fines being transferred to him by the law, instead of being brought into the public Treasury, it is not against conscience to retain them. The. first act on this subject gave only one half of the fine to the party injured. That fines ought to be assessed according to the injury to the party and to the public, is not denied; but that assessment is confided to the Court of law and not to this Court.

The object of the foregoing remarks is to shew that Courts of Equity can not relieve against fines or pen-a^*es> inflicted by law, on the principles that they relieve-in other cases. That Courts of Equity can interfere on the principle that the fines are excessive and in violation £|ie ^qide of the Bill of rights, I think can not be insisted on. On that subject, the Court of law was as competent as this Court. But there are two grounds on which a Court of Equity can interfere in such cases: the one is, that the defence could not be made at law, because of the particular frame of the law itself; in that case, the party is relieved on the ground that, if' his defence could haxe been made at law, the Court would not have adjudged against him: the other is the common ground of relief, either fraud, accident, mistake, or surprise, in consequence of which he failed to defend himself at law. The pretensions of the complainant, I think, can not be sustained on either of these grounds. His complaint is that he has been fined, by successive judgments in the Court of law, an amount greatly exceeding the sum due on the execution; and that the defendant will go on to move against him, unless he is relieved by the Court of Equity. He admits in his Bill that he adjusted a part of the debt, due the defendant on the execution, with the debtor Ball, •and alledges the loss of the Execution, though he admits it to have come to the hands of his deputy, and relies for relief on the hardship of his case. It, is in proof, I think, that he, in effect, received the whole amount of the execution from the debtor. He does not alledge an excuse for not defending himself at law. His case is not distinguishable, therefore, from a series of cases decided in this Court, in all of which it has been held that some adequate excuse must be alledged and proved, for the failure to make the defence at law. In the case of Terrel v. Dick, 1 Call. 546, the line which separates the two jurisdictions is plainly marked. In Turpin v. Thomas, 2 H. & M. 139, though Judge Tucker was inclined, on the ground of hardship I presume, to make a distinction, the doctrine in Terrel v. Dick was recognised by the whole Coui’t. The former case was really a hard one: the High Sheriff had suffered a judgment to be entered against him, under the impression that he had x’ecourse •against bis deputy, in which he was mistaken; that judgment also was not for afine. In Kincaid v. Cunningham, 2 Munf. 1-10, the previous cases were reviewed, and relief refused. Soon after, in the case of the Auditor v. Nicholas, 2 Munf. 31, the same question occurred. In that case, there was some excuse offered for failing to perform a public duty; the want of a commissioner to certify the return; but it did not avail, because it might have been made in the general Court, As in this, in that case, also, the judgment war on a summary proceeding, and the penalty very enormous. That it was on a summary proceeding, made no difference; because, though Courts of law will see that the proceedings conform to the law, that circumstance furnishes no ground for the interposition of a Court of Equity. The circumstance, ■also, that in that case the law fixed the penalty, can not avail the plaintiff in this: the law has fixed the penalty, •as soon as it is assessed by the Court to which the act has confided that power. The case of Bullock v. Goodall, 3 Call 44, is unlike the case now before the Court. In that case, relief was afforded on grounds that can not be relied on in this: it was alledged and proved that ,the creditor directed the Sheriff to hold up the execution. He had been guilty of no default within the spirit of the act, though there might have been some question whether he could defend himself at law. He stood on very different ground from that which the plaintiff in this case occupies; he had done nothing in violation of his duty: in this case the plaintiff converted the money of the defendant to his own use. In refusing to pay it when required, (as is proved,) and subjecting himself to repeated fines, he added contumacy to delinquency. He comes into Equity with a different face: if the case is a hard one, he has made it for himself; and, if he is to be received, contumacy and delinquency must be his passport; not, at least, an innocent omission to perform his duty. He violated the trust reposed in him by the law, most palpably— "When he insists that the execution was delivered to his deputy, (which is not proved,) to him it anight have been confided, and, for all that appears, the creditor would have received his money. Under all the circumstances, the case of Bullock v. Goodall was decided prior to some of the cases referred to,* and it is not now material to inqUire whether it is not in conflict with them. The case of Branch v. Burnley, 1 Call 147, I think has as little application. Bronch had subjected himself to no imputation of bad conduct,* there is much reasoning on the point of jurisdiction, and the President finally relied on the absence of the creditor abroad, and the power of his Attorney to sue out an execution, as an excuse for paying the money to him instead of the former. The loss of the execution in this case, if proved, was no obstacle to payment of the money actually received by the plaintiff. As to the general delusion, (which is not hinted at in the bill,) he appears to have been influenced by a very different motive,* he seems to have been satisfied to keep the money of the creditor, until the repeated fines amounted to much more, and then expects to set off one against the other: he even appealed from one of the judgments, to gain time. Before the Court can relieve him on the ground of delusion, it must reverse the judgments at law: the supposed delusion is in opposition to the judgments,* and the moment the Court relieves on the ground of delusion, it reverses the judgments. On the ground taken, the judgments ought first to be reversed at law, If any analogy is relied on to the case of Branch v. Burnley, in the case of Lyon v. Richmond, in which this point Comes in question, 3 Johnson’s New-York Chancery cases, the Chancellor, I think very properly, says, " Courts of " Equity do not relieve parties from their acts and deeds "done on full knowledge of the fact, though under amis- " take of the law: every man is to be charged, on his peril, " with a knowledge of the law.” There is no other principle which is safe and practicable in the common intercourse of mankind. To permit a subsequent Judicial decision in any one given case, in point of law, to open and annul every thing that has been done in other cases, of the like kind, for years before, under a different understanding of the law, would lead to the most mischievous consequences. Fortunately for the peace of Society, no such previous precedent is to he found; there is yet no such precedent in this Court: if it now makes one, it will be new, and, at the same time, it will, in my opinion, confound the jurisdictions of a Court of law and Equity.—I am therefore for affirming the decree of the Chancellor.

Judge Roane.

This is a Bill praying to be relieved against repeated judgments obtained by the appellee against the appellant, formerly Sheriff of the County of Gloucester, for the default of one of his deputies in failing to return an execution. The judgments recovered, and the amount received thereupon, greatly exceed what was due upon the execution; and the appellee is therefore, already, in a much better situation than if the execution had been duly returned. The repetition of several judgments for the same offence, is not warranted by a sound construction of the Statute; and all the judgments except the first might have been reversed, upon an appeal, by a Court of law.—I infer this, because a second judgment can not be rendered for the same default, unless the Court departs from the express provision of the Act, in a highly penal and summary proceeding, by commencing the interest from the date of the first, (or immediately preceding,) judgment, (as is said to have been the practice,) instead of the return day of the execution; or unless you compute the interest again, (and toties quoiies,') for the lapse of the same period of time. My construction is also fortified by the general principle which forbids a double punishment for the same offence. A contrary construction has however prevailed, and has governed not only the transactions of our citizens, but also the judgments of our inferior Courts. Of this we are, in some sense, officially informed by a note to the new Code of our Law’s, Vol. 1. p. 542. It wTas this common error, or general delusion, perhaps, which both prevented the appellant from reversing the repeated judgments in a Court of law, and from assigning this as a ground of relief in the present bill. At the time of filing that bill, this construction had not been discovered to be erroneous. While a particular ignorance of the law forms no ground of relief in a Court of Equity, such a delusion as this is, may he relied on; and many cases to that effect might be cited.

Another ground of relief is the enormity of the fines in question, taken in relation to the sum due, and the in- . jury actually sustained. This ground was taken by this Court in the case of Bullock v. Goodall, 3 Call 44; and an oppressive fine was relieved against in that case, as being forbidden by the principles of the bill of Rights.— •It was also said, in that case, that the fine ought to be graduated, in the discretion of the Court, by the degree of the inj'ury sustained.

I am therefore of opinion, that the present judgment ought not only to be perpetually injoined; but the appellee should be decreed to refund all that he may have received under the several judgments, except the first; and saving to him also the principal and interest due upon the original execution. Every argument which goes to injoin the present judgments, equally applies to all the judgments subsequent to the first; and, consequently, the appellee ought to refund all that he has received upon them. As to the claim of the appellee, of compensation for his trouble and loss of time, extra fees to Lawyers, the loss of a horse, &c.;—.these, as well as all speculative losses and damages, must be thrown entirely out of our consideration. The just measure of relieving against fines or penalties, is that of the principal and interest actually due. The case, at least, must be strong and peculiar, in which this standard is to be exceeded.

This is my opinion in the present case. The decree ought, I think, to be reversed, and an account taken in order to a final decree conforming to these principles. While I agree with two of the Judges, that relief in this instance ought to be granted, I go beyond them as to the measure of that relief. In so doing, I, of course, concur with them, as to their measure, and unite with them in reversing the decree to the extent proposed by them. The decree drawn up by them, and to which I accede, as aforesaid, is in the following terms.

The Court is of opinion that the decree of the Chancery Court is erroneous; which therefore is reversed, with costs; and, this Court proceeding &o„, it is farther adjudged, ordered and decreed, that the Injunction be reinstated and made perpetual as to the judgments sought to be injoined, and that the appellee be also perpetually in-joined from instituting or prosecuting any future suit or suits, for or on account of the failure of Morgan Tomkies to return the execution in the bill and proceedings mentioned.

Halcomb v. Flournoy, 2 Call 438.