
    James Hendricks & Jesse Taylor v. John Dundass.
    April Term, 1795.
    Execution of Process-Power of Court over. — Every Court Ras a power to watch over the execution of its process, and where it hath been irregularly, or fraudulently executed, to quash it.
    Replevy Bond — When Quashed. — If the Commissioners who take a replevy bond act improperly, the Court will on motion, quash the bond.
    In consequence- of the opinion of this court (see ante Vol. I. p. 92) Dundass moved the County Court of Fairfax to quash the first execution and replevy bond, principally, because the former issued without his order, or permission, and was unfairly executed. The County Court quashed the execution and replevy bond, from which an appeal was entered by Taylor, after having stated the grounds of it in a bill of exceptions, made part of the record. The substantial parts of the bill are, that it appeared in evidence to the court, that Dundass was in Philadelphia at the time the execution issued. That it was done at the request of Taylor, but in the presence of, and with the assent of Mr. Eee, (who had been attorney for Dundass, in a suit in chancery brought to injoin the judgment obtained at law by Dundass, but who was not his attorney in that cause,) and that of Mr. Hepburn, the partner & father in' law of Dundass; but that the debt in question belonged exclusively to Dundass, having been due to him before either of the above connections took place with Hepburn, who had no authority from Dundass to transact this business. That after Dun-dass returned from Philadelphia, he gave notice to Taylor, and to the attorney of Hendricks, that he should appeal to the County Court of Fairfax from the opinion of the commissioners who took the replevy bond, and should move the *court, to adjudge the security taken by them insufficient, and further to do whatever the law should authorise in that" behalf, to the end, that the said debt and costs might be satisfied. But that no motion was made, or other proceedings had under that notice. That the agent of Taylor who pursued Hendricks into the county of Cumberland, informed the commissioners, that James and John Hendricks had left Alexandria greatly in debt, and were considered as bankrupts, but did not inform them that he was the agent of Taylor.
    The District Court of Dumfries affirmed the judgment of the County Court, after examining witnesses, whose testimony is also made part of the record. The amount of the evidence is, that the person, who was sent into Cumberland County by Taylor with the execution, went with the permission of Hepburn, and that Hepburn and Dundass never intermeddled in the separate business of each other.
    Campbell for the appellants. I doubt the power of any court to set aside a replevy bond, on account of the insufficiency of the security, unless the mode of proceeding, by an appeal from the opinion of the commissioners, which is specially authorised by the act of Assembly, be pursued.
    At all events I contend, that a bond taken under the direction, and with the approbation of those who by the law are constituted Judges for this purpose, will be considered as valid until the contrary appear. No presumption can lie against the acts of persons thus constituted, and if a court undertake to annul them, the reasons ought plainly to appear.
    This record exhibits but a single ground, and therefore it will be supposed, that none other was urged, or proved; it is, that the execution issued without authority.
    This is a mere dispute about a fact, and theretore the court must decide according to the ordinary rules of evidence. The mind can ttot, after a view of the testimony stated in the record, withhold its assent from this truth. That the execution was ordered by persons having special, or general authority from Dundass to act as they did. The Attorney, and the father in law and partner, in the absence of the plaintiff, place themselves in his stead; from the relative situation of the parties, such a power is fairly to be presumed. But that which confirms this presumption to the satisfaction of the most incredulous mind is, that after Dundass returned home, instead of disavowing the act as unauthorised, he recognizes it, and takes steps, not to avoid the proceedings, but to affirm the execution, and to obtain better ^security under the act of 1787. Now if the original act was not his, he should not have taken it up where he found it, but should have protested against it from the beginning. This solemn recognition does completely conclude him now from denying the authority of those whose act he has ratified.
    Washington for the appellee. An inferior court ought always to be considered as having decided right, unless the contrary appear upon the record to the appellate court. This is a principle universally admitted. The County and District Courts have quashed the replevj' bond; and Ihe appellant complains that they have erred. It becomes him then to point out the error, and to prove it by the record. He attempts it, by presuming that Mr. Dee as the attorney, and Mr. Hepburn as the partner and father in law of the appellee, were cloathed with authority; he does not pretend that it is proved, nor does it follow as a necessary consequence from the connexion with the appellee. Even if the attorney who obtains the judgment, may order the execution, (of which I much doubt) yet surely one not concerned in the action at law, can have no authority to do it. Neither can a father in law, or partner, dispose of the property belonging exclusively to his son in law, or partner. It is contended that presumptions are inadmissible to defeat a forthcoming bond. This is very true, and with less reason ought they to be received against a judgment which is a more sacred thing. But it is said, that Dundass has ratified the act. If by mistaking his right; if by misconceiving the law, he supposed that the remedy first contemplated was the best, or perhaps the only one, is he therefore to be concluded, tho’ upon better advice he determined not to proceed in that, but in some other mode? Unquestionably not. The court of Fairfax was satisfied upon this point, or else they would not have given the judgment they did. It does not appear that alt the evidence which was given, was ^spread upon the record. Presuming therefore in favor of the judgment, as is always done in favor of a general verdict, (which would not have, been found unless the essential facts had been proved,) this court must affirm the judgment, so far as it depends upon the weight of evidence.
    The court were not bound to state the reasons of their judgment. The party objecting to it, was bound to furnish an appellate court with the same lights to decide by, as the inferior court had, and therefore should have stated the whole evidence. The consequence of his not having done it is, that if this court were to reverse the judgment, they would do it in the dark, because the inferior court may have quashed the bond for fraud in taking it, and this court might saj' they did right, if they had the same evidence before them that that court had.
    Campbell in reply. I do not say that any one fact in this cause proves the authority by which this execution issued. But as the whole question turns upon the weight of evidence and the conviction it brings to the mind, it is fair to contend as I have done, that the relative situation of Dee and Hepburn with Dundass, supported by his after recognition, is conclusive to prove that they acted by authority.
    
      
      Execution of Process — Power of Court over. — Every court has a perfect right to watch over the execution of its judgments, and where its process has been irregularly or fraudulently executed, to quash it, as being the best and speediest mode of doing justice. To this point, see the principal case cited in Snavely v. Harkrader, 30 Gratt 493; Steele v. Boyd, 6 Leigh 553, 39 Am. Dec. 220.
      In windrum v. Parker, 2 Leigh 367, the court said: “The cases of Taylor v. Dundass, 1 wash. 94, Hendricks v. Dundass, 2 Wash. 50, Downman v. Chinn, 2 Wash. 303, suffice to show, that it has been the constant and approved practice of our courts, to exercise the power of quashing process which has irregularly issued, or been abused in the execution of it, on motion."
      Execution — Quashing after Return Day — Motion of Plaintiff. — The principal case is cited in Reinhard v. Baker, 13 W. Va. 809, 810, as authority for the proposition that an execution may be quashed after the return day, and on the motion of the plaintiff in the execution. The court said further, that this practice, of quashing an execution after return day, is incidentally recognized and impliedly approved in Claiborne v. Gross, 7 Leigh 344, and in Beale v. Botetourt Justices, 10 Gratt. 282.
      Same — Quashing—Necessity of Notice. — And that a party may, without any previous notice, move the court to direct an execution to he issued (where the clerk refuses to issue one) as well as he can move the court to quash an execution, without notice, see the principal case, and Taylor v. Dundass, 1 Wash. 93, cited in Com. v. Hewitt, 2Hen. & M. 185.
      Same — Bond—Right of Creditor to Quash. — As to the point that a creditor cannot, without good cause, quash the bond which has supplied the place of a levy, and sobe remitted to his original judgment, see the principal case cited in Garland v. Lynch, 1 Rob. 662. In this case the court said: “Nor has it been decided that the creditor has no right to quash except for apparent defects. The contrary may be implied from the case of Hendricks v. Dundass, above cited. There the motion was made and sustained upon prooí that the execution issued without authority.” The principal case is the sequel to Taylor v. Dundass, 1 wash. 92.
      See monographic note on “Executions" appended to Paine, Surv., etc., V. Tutwiler, 27 Gratt. 440.
    
    
      
       Ch. *í, | 5. “In any case where the creditor, his a fren l or attorney shall he dissatisfied with the insufficiency of the security admitted by such valuers, it shall be lawful for such creditor to appeal to the next court to be held for the county or corporation, thereupon givinpr notice thereof to the debtor or his attorney; and if such court shall be of opinion that the security so admitted was insufficient, the execution upon which such security was admitted shall be deeihed and taken as alien upon the noods and chattels of such debtor, and shall not be discharged but upon payment of the debt and costs, or render of other sufficient security satisfactory to the court, and moreover the bond and security given by such debtor shall remain valid until such counter security be given,'’ — Note in Original Edition.
    
   LYONS J.

It is unnecessary to decide, whether the execution in this case issued by sufficient authority or not, the opinion of the court being with the appellee upon another point. It may suffice to observe, that the permission obtained from Mr. Hepburn and Mr. Dee, was merely intended as a favor to Taylor, and ought not to have turned to the disadvantage of the person on whose account they acted. This tho’ not expressed, must have been understood.

The facts stated upon this record certainly exhibit as strong a case as can be imagined, to warrant the interposition of the court, whose justice was so glaringly attempted to be eluded and abused. The execution is carried by the agent of Taylor into a distant county in pursuit of Hendricks, who, with his property, was removing from the reach of his creditors. It is there levied upon his property, and the commissioners are informed that both James and John Hendricks had left Alexandria greatly in debt; were there considered as bankrupts, and were clandestinely removing from thence. Notwithstanding this caution, they restore the debtor his property upon his giving a twelve-months bond, and accept his brother as security who was then absconding with his property, and as well as the principal was considered as being insolvent. Such conduct in the commissioners, if it deserve *not the epithet of fraud, was certainly highly improper and unjustifiable. Tho’ they might have been made liable, yet a shorter and more effectual method was, for the court, whose process had been thus abused, to quash the execution. That such a right belonged to that court, cannot be questioned. Were it otherwise, it would be in vain for courts of justice to render their judgments. If this charge against the commissioners were unfounded, the appellant has had time enough to justify their conduct. The insolvency of the security was suggested by the appellee, yet no attempt has been made to disprove it. Upon the whole, we are clearly of opinion, that every court hath a perfect right to watch over the execution of its judgments, and where its process hath been irregularly, or fraudulently executed, to quash it, as being the best and speediest mode of doing justice, and that in this case, the court had sufficient ground to afford this summary interposition.

Judgment affirmed.  