
    THOMAS LEE, THOMAS MARTIN, AND JOHN FINNEY vs. WILLIAM MOORE et al.
    1. Where a defendant in an execution' executes bond for the delivery of property on the day of sale, and fails to comply with the conditions of his Bond ; if the value of the property be Jess than the debt, the judgment against him and his securities should be for the value of ths property and ten per cent, interest.
    2. In such case where the value of the property is greater than the debt, the judgment should bé for the debt and ten per cent, interest.
    •3. If part of the property be delivered, (though not a performance of the condition of the bond) whatever amount is made by the sale of it should bo credited upon such .judgment.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS,
    STATEMENT OF THE CASE.
    The appellees, plaintiffs in the court below, sued out from the clerks office of the St. Louis court of common pleas five several executions against the appellants, Lee and Martin, one in favor of each of the appellees, and amounting in al! to the sum of three thousand eight hundred and three dollars and fifteen cents ($3803 15.) These five executions were all delivered to the sheriff on the same day as appears by his endorsement on each of them, and were all returnable to the February term 1849, of said court. To satisfy these five executions, the sheriff of St. Louis county levied upon certain personal property of the appellants, Lee and Martin, and advertised the same for sale according to law. The sheriff states in his return on the execution (No. 9) in favor of the appellee Dillon, one of the above named, that tho property which was levied upon, and which is in the said return enumerated and described, was taken and levied upon to satisfy this and four other executions in favor of the appellees, and that it was suffered to remain in thé possession of the appellants Leo and Martin., until the day of sale upon their giving bond to the appellees in double the value of the property levied upon, to wit, in the sum of seven thousand hree hundred and fifty dollars with John Finney, the appellant assecurity, conditioned as the law directs, for the forth coming of the property levied upon as aforesaid, and every part thereof on tho day of sale. There was but one bond taken, and it is made a part of the return on each execution, and specially referred to in said return. Upon the day of sale a partonly of the property named in the bond was delivered to tho sheriff by tho appellees, which tho sheriff proceeded to sell, the proceeds of the said sale amounting to the sum 2016 dollars and 33 cents. The sheriff’s returns further state that t.he portion of the property levied upon and not delivered on the day of sale, Was not found in his county, and no other property of the appellants Lee and Martin found in said county, and each of the said five executions was thereupon returned unsatisfied.
    At the February term 1849 of the court, the appellees filed their motion for judgment on the bond against the appellants Lee, Martin and Finney, for the sum of three thousand six hundred and seventy-five dollars, (§3675) the value of the property levied upon, and ten per cent damages, for delay, and for costs, and offered in evidence the five executions, and the sheriff’s return upon each, and also.the bond of the appellants. To this evidence the appellants objected, as stated in the record, and their objection being overruled, the appellants expepted to the opinion of -the court.
    The court then proceeded to dispose of the motion summarily under the provisions of the rev. statutes page 255, see. 31, 32, 33, 34 and 35, and it appearing from, the evidence before the court that the value of the property levied upon was less.than the amount of the five several executions, and the said property not having been delivered on the day of sale according to the condition of the bond, the court rendered judgment against the appellants for the value of the said property, being the sum of three thousand six hundred and seventy-five dollars, and also for ten per cent, damages thereon, being the sum of three hundred and sixty-seven dollars and fifty cents, and also for costs, and directed the said judgment to be credited with the sum of 2016 dollars and 33.cents, the amount realised by the sale of a portion of the property as aforesaid, and the residue of the judgment to be appropriated pro rata to the payment of so much of the original debts named in the said five executions, the said sum of 201,6 dollars and 33 cents having been in like manner also paid. The appellants, Lee, Martin and Finney, by their counsel excepted to the opinion of the court in giving this judgment, and filed their motion for a rehearing of said cause, for the reasons set forth in said motion, and made a part of the record, which motion was overruled by the court» and the appellants by their counsel excepted to the opinion of the qourj, in the overruling thereof and the case is brought to this court by appeal.
    Rut.ley & Ryland, for appelles.
    The appellees insist that the judgment, should be affirmed in.tbese oases, because the court below committed no error in the rendition thereof.
    No other or different judgment could have’been given without conflicting with the provisions of the statutes of Mo., and overturning the great mass.of decisions of the courts of other states upon statutes similar in their provisions to our own. Tire statute referred to is inoperativein its requirements upon the sheriff to take the bond of the defendants in execution upon their security in “double the value of the property levied upon,.” conditioned for its forthcoming on the day of sale, and he has no authority or power under the law to take it for more or for less than double the value. Before the sheriff could take a.bon;! at all in,conformity with the provisions of the statute he must of necessity ascertain,and affix.a value to the property levied upon, as he is by law the judge of the value thereof. How else could a bond be. taken, in any amount or at all ? This valuation is invariably made in the presence of the defendant in execution, and his security^ and they, ratify and assent to the valuation by signing the bond, and are thereby estopped from disputing it ever, afterwards.
    The statement in the sheriff’s return upon the execution, that the bond for the forthcoming or the property was taken in double the valuation of the property levied upon,.!.* a sufficient state ment of the value of the properly, if there be any sum named in the bond, and it is unnecessary to state the value.in.any other way or manner, either in the bond or upon the execution. The statement in the return upon the execution, that the condition of the bond has been broken is sufficient without making any return upon the bond itself. Seo Barkeron Planters* Bank 5 Howard Mi, Hop. page 566.
    
      One bond may also be taken on several executions. Winston vs. the Commonwealth 2 Call. 29ff The delivery of a part of the property on the day of sale is not a compliance with the condition, of the bond. Seo Pleasants vs. Lewis! Wash. Va. Rep. 273
    The failure to deliver any part of the property isa broach of the condition of the bond and the rights of the plaintiff to his remedy upon the bond attach at once, and the court is bound to, hoar anti dispose of the motion summarily and without notice, and if the condition of the bond be found to be broken, and the execution returned unsatisfied, the return upon the execution and the bond itself is all the evidence the plaintiff need produce. The defendant must prove performance of the condition of the bond, or he cannot evade his liability. See Nicholas vs. Fletcher 1 Wash, Va. Rep. 330; II cv. Statut.es page 255,
    The court must then render judgment according to tiie following circumstances: If the, property levied upon and not delivered (and by delivery is meantthe delivery of the whole, of the property and every part thereof)be less in value than the amount of the debt named in the execution, the judgment must be for the value of the property, and ten per cent, damages an that value and for costs. If the value of the property levied up on exceed or equal the amount of the debt, the judgment must he for the amount of the debt and ten per cent, damages thereon, and costs in both eases As in the last named event that is to say, in all cases where the value of the property is eijual to the amount of the debt, the levy in such case isa satisfaction, and the original judgment is merged in the bond which, until quashed, is a satisfaction, and the plaintiff is left to his remedy upon the bond, in addition to his remedy by statute against the sheriff, if the bond returned be insufficient. See Mitchell vs. Denbo 3 Blackford Ind. Rep. 259; Bell vs, Tombigbee Rail Road 4 Smedes, Marshall 549; Stuart vs. Fuqua Walker Mi. Reps. 175; Connell vs. Lewis lb. 251; Sampson vs. Breed lb. 207.
    If there be any class of bonds which should be more strictly construed against the makers, than all others, it should be forthcoming bonds. They operate almost invariable to the delay of justice as against "the plaintiff" in execution, whilst the defendant and his securities can at any and all times put an end to their liability for debt, penalty, damages and costs, by paying the execution, and compelling the sheriff to return it satisfied. To allow an obligorin such a bond to dispose of or remove a portion of the property out of the reach of (he execu-. tjon, and then to insist upon a reassessment of its value when it can neither be seen nor examined, and when it is not produced on the day of sale, would be establishing a principle that would be not, only against good morals, but fruitful of infinite, mischief and injustice, Such a principle the court will hardly consent to establish by that which would seem to be an improper "cons.h-qel.ion of the provisions of the 35th section of the act relating to executions, the phraseology of which section, although singularly awkward and ambiguous, cannot be forced to support such a construction as that contended for by the appellants in this case. 'This court has decided that whatever is plainly implied by the terms of a statute jg just as much a part of that statute as if it were expressed in so many words. It has also been sanctioned and enforced, the principle that in all cases whore we adopt the statute of a sister State, wo adopt also the construction of it by the courts of, the State.from which it is borrowed.
    The condition of forthcoming bonds canpot bo broken in pan and performed in part. The failure to deliver any portion whatever of. the property levied upon and bonded, is a forfeiture of the bond, and the plaintiffs remedy and rightp upon the bond attach at once, and no act of the obligor in such'bond, or, the sheriff can prejudice those rights or the remedy unless the execution ho paid up and returned satisfied.
    In this case the measure of damages for a breach of the condition of the bond in question, was, wisely and properly settled by the court. The payment of the proceeds of the sale of that part of the property which was delivered to the several plaintiffs.in execution pro rata, wa? an act vyhich enured more parlicnlarly to the advantage and benefit of the security, than to any one sisci and with this he should be satisfied, and ought not. to, ask that it shou'd also work a. substantial and positive injury to the appellees who in this ease have been delayed in the collection of [heir bebí by the act of the appellants.
    In strict justice the appellees are not only entitled to (he. stautory datpngos for the forfeiture of the appellant’s bond in the first instance, but also to other and further damages lor the increased delay occasioned by this appeal.
   Judge Ryland

delivered the opinion of the court.

This was a proceeding under our statute concerning executions, in order to qbtain judgment on a forthcoming bond, which had been taken by the sheriff for the delivery of property levied on by him, to satisfy the five executions, in favor of the appellees separately, as mentioned in the appellees statement of the case as above.

This proceeding is founded on the following sections of the said act:

Sec. 31. When the sheriff or other officer charged with the service of an execution shall levy it upon personal property, the defendant may retain possession thereof until the day of sale, by giving bond in favor of the plaintiff with sufficient security to be approved by the officer, in double the value of such property, conditioned, for the delivery of the property to the ofiice, at the time and place of sale to be named in such condition.

Sec. 34. If the condition of the bond shall be brokep and the execution returned u-nsatisfied, the defendant and the sureties shall be deemed to have notice of the facts, and tbe plaintiff, without further notice, may, on the first or any subsequent day of the- return term of the execution, mpve the court for judgment on the bond against the defendant and his sureties, or any of them, as the plaintiff may at his option bring suit on the bond.

Sec. 35. If any controversy arise on the motion, it shall be heard and determined in a summary way, without the form of pleading, and, unless the demand be avoided, a judgment shall be rendered thereon without delay, according to the circumstances, as follows: “If the value of the property so levied on, and not delivered at the day of sale, be less than such amount, the judgment shall be 1‘oe tbe value of tbe property so not delivered, with ten per cent, damages for the delay and costs in both cases.”

In this case the amount of the value of the property levied on, as appears from the bond taken by sheriff is less than the amount of the judgment in which executions had issued, and had been levied—that is, the value of the property- was less than the debt.

. It was then right of th.e plaintiff under this statute to have judgment for the amount of the value of the property levied on with ton pev cent, damages thereon—that value being less than the debt. Had the value of the property levied on been more than the debt, the judgment would have been for the amount of the debt only, with ten per cent, damages.

A delivery of a pa,rt of the property levied on is not a performance of the condition of the bond. The plaintiff may still have his motion and judgment and damages ; but whatever amount shall have been made by the sheriff upon a sale of the delivered property, shall be credited on the judgment.

We se^ no error in th§ judgment of tin? coui;t below, and its jtidg-r meat is affirmed.  