Hyman v. Seaman, Peck & Co.

33 Miss. 185 | Miss. | 1857

Handy, J.,

delivered the opinion of the court.

The first ground of error insisted upon, and which it is necessary to notice, is that the forthcoming bond, on which the execution involved in the case issued, was void, because it bears date on the 19th August, 1856, and stipulates for the delivery of the property to the sheriff on the 4th day of the same month, which was impossible. No objection was made at the proper time in the court below to quash the bond, and after its forfeiture, any presumption will be indulged to support it; and hence it will be presumed that it was sufficiently explained to the court that the bond bore a wrong date.

Again, it is objected that there is no return of forfeiture indorsed by the sheriff either on the bond or on the execution, and therefore, that no judgment of forfeiture is shown. But it is held that the non-return of the bond with the execution is prima facie evidence of forfeiture, and a sufficient foundation for the judgment of forfeiture; for, if it was not forfeited, the presumption is that it would be delivered up to the obligors. Barker v. Planters’ Bank, 5 How. Miss. 566; Talbot v. Walton, 9 S. & M. 24.

Another objection urged in behalf of the plaintiff in error is, that the execution was levied upon the property of the surety, without an affidavit of the insolvency of the principal in the execution ; and' therefore, that the levy was illegal under the 6th, 7th, and 10th sections of the Statute of 1837. Hutch. Dig. 853.

These provisions of the statute are intended for the benefit and protection of the surety, or those claiming under him, and whose rights might be affected by the execution. But they have no application to a stranger, who claims title, not under the surety, but adversely to him, and in opposition to him, although the execution might be properly issued and levied upon the property of the surety. The plaintiff in error, therefore, had no right to make this objection.

Judgment affirmed.