Rankin v. White

66 Ky. 545 | Ky. Ct. App. | 1868

JUDGE ROBERTSON

delivered tee opinion op the court:

In response to a rule to pay into court three hundred and sixty dollars, which had been deposited for conflicting creditors and loaned, by order of cpurt, to G. W. Nichols, the commissioner who loaned it taking the borrower’s bond with the appellant as surety, the appellant resisted payment on the ground that the bond was executed to “ operate as a replevin bond,” and that, no execution having been issued on it for more than a year after it became due, he was released by section 11 of chapter 97, page 400, of Revised Statutes, in these words: “ If the plaintiff in any bond, having the force of a judgment, shall, at any time for the space of a year, while he is entitled to have execution, fail to issue execution, and, in good faith, prosecute the collection thereof, the surety in such bond shall be released from all liability as such.”

Neither the letter nor spirit nor aim of this section applies to judicial bonds, the collection of which “ by execution, rule, or attachment,” must be controlled by the court alone, as to the time and manner of enforcement; and might be prudently suspended for much more than a year, and even during the pendency of the litigation between the creditors claiming the fund.

And this being the opinion of the circuit court, its judgment is affirmed.