46 Ky. 289 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
It was settled by this Court in Richardson and Letcher vs Bartley, (2 B. Monroe, 328,) that when the ■execution is endorsed “no security of any kind to be taken,” the officer has no right to take a statutory forthcoming bond, and if taken, that it could not be returned •and made the basis of an execution. It might be good as an indemnity to the officer, as a common law bond, but not otherwise.
The delivery bond in this case was, -therefore, not authorized as a statutory bond, and was improperly and illegally returned by the Sheriff as such, and the execution which issued upon it was consequently unauthorized and illegal. But we are of opinion it was not the province of the Chancellor to interfere and restrain the officer, who, in this ease, had taken and returned the bond and who was endeavoring to collect the execution which had illegally issued upon it. It is the peculiar .province, and every Court has ample power to correct its own -process. In this case the'complainant, who was surety, first in the replevin bond and then in the delivery bond, and upon whose property execution upon the latter bond had -been levied, had ample remedy at law. The Court, upon motion, would have quashed the execution, or, if relief in that mode could not be obtained in time to prevent a sale of his property under the execution, which is urged as a reason for seeking the aid of the Chanceller, he could have arrested the action of the officer by writ of error co-ram vobis. The Chancellor had no jurisdiction upon the ground that the delivery bond and the execution thereon, were illegal, and upon no other ground has the complain
Wherefore, the decree is reversed and the cause remanded, with directions to discharge the complainant’s injunction and dismiss his bill with costs.
