McIntosh v. Shotwell

6 Blackf. 281 | Ind. | 1842

SuuiiiVxYN, J.

Scire facias by the defendants against Mcln-tosh as the replevin-bail of one Lent. The suit was commenced before a justice of the peace. The facts are, that-a judgment was obtained by the defendants against Lent on the 11th day of May, 1839, for the sum ,of $98. On the 19th of July, 1839, it was replevied o$ the docket of the justice by Charles E. Sturges according to the law then in force. On the 13th of April, 1840, the judgment not being satisfj^d, and the defendant supposing himself entitled to the additional stay provided by the act of the 24th of February, 1840, procured Molntosh to replevy the-judgment for the term of four months from the 1st day of March, 1840, according to the provisions of that act. This suit was against McIntosh on the replevy last mentioned, and the Circuit Court gave judgment against him.

The only question is, whether the act of the justice in taking additional bail, was a valid act, so as to bind the plaintiff in error ? 1

The act of February the 24th, 1840, provides for two classes of cases: 1, That all judgments rendered by a justice of the peace, previously to its enactment, and which had not been replevied under the law then in force, might be replevied for the period of four months from the 1st day of * March next following; 2, That on all judgments rendered by a justice subsequently to the 1st day of December, 1839, and which had been replevied, the judgment debtor might have a further stay of four months from the lsi day of March next following, provided he gave addition a. bail.

The judgment in favour of the defendants in error against Lent, did not come within either of the cases provided for by the act. It was rendered in • May, 1839, and replevied by Sturges in the month of July following, and the statute did not enjbrace judgments rendered previously to the 1st day of December, 1839, that had been replevied.

There being no law to authorize the replevy by McIntosh, we are of opinion it was a void act. It is only by statutory law, that judgments in our Courts can be replevied. The length of time for which they may be replevied, and the manner of doing it, as prescribed by tlie statute, must be observed to make it a valid act.

S. Cooper, for the plaintiff. W. Wright, for the defendants.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.