25 Ky. 476 | Ky. Ct. App. | 1829
delivered the opinion of the Court.
Nathaniel Sanders instituted an action of covenant in the Franklin circuit court, against Charles Buck, Peter C. Buck, Clemant Bell, and Daniel Weisiger. Process having been returned as to Peter C. Buck, “no inhabitant of Franklin, coun
Nathaniel Sanders vs. Charles Buck.
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In covenant.
This day, the defendants, Charles Buck, Peter C. Buck, Daniel Weisiger, ClemantBeli, together with Thomas Helm, their security, came into my office, as clerk of the Franklin circuit court, and undertook that they would satisfy and pay Nathaniel Sanders, his judgment and costs, amounting to four thousand one hundred and forty-three dollars, and ninety-one and a half cents, rendered in his favor, against the said Bucks, Weisiger, and Bell, by this court, within two years, with legal interest on the whole amount thereof,. from this date, October, 29th 1825.
CHARLES BUCK, seal.
P. C. BUCK, (by J. Swigert, his attorney in fad,) seal.
CLEM ANT BELL, seal.
DANIEL WEISIGER, seal.
THOMAS HELM, (by J. Swú gert, his attorney in fad,) seal.
On the 10th December, 1827, a writ of error, coram vobis, with supersedeas, issued upon the order of two justices, the same having been applied for, by the cognizors, with a view to procure the quashal of the recognizance, and the execution which issued thereon, in the name of Robert Sanders, as administrator of Nathaniel Sanders. The errors, assigned in the petition for the writ, are as follows:
1st. The replevy bond or recognizance, is not taken, according to law.
2d. It is not witnessed, as required by law.
3d. It purports to have been taken upon a judgment, in the name of Nathaniel Sanders, against
4th. It does not appear, that said recognizance was entered into, before the clerk of the Franklin circuit court, or any person authorized to take the same.
5th. The execution which issued upon said recognizance, is notin the name of said Nathaniel Sanders, he being dead; but in the name of Robert Sanders, as his administrator. The death of said Nathaniel: never having been suggested, or the proceedings renewed in the name of his administrator.
The circuit court upon the errors assigned, quashed the recognizance. Sanders’s administrator excepted, and has prosecuted a writ of error, with supersedeas. It will not be necessary to notice, particularly, the first assignment of error, because, owing to its general and comprehensive character, every tiling embraced by it, will be considered in adjudicating upon the more particular and special assignments of error, which have been made.
As to the 2d. assignment of error. The form observed in the recognizance, taken substantially, pursues that given by the act of assembly. See I. Dig. 502-3. After prescribing the form, the act says, “which recognizance shall be dated, and shall be signed by the defendant or defendants, giving the game, and the security or securities, and witnessed^ an^ have the force and effect of a replevin bond.” The objection is, that the recognizance has not been witnessed, as required by law. It may be remarked, that the statute does not prescribe who-shall witness the recognizance. But as the recognizance is an official paper, we are inclined to think that it was in the contemplation of the legislature, that the clerk should be the witness. It is not said, however, whether it shall be the clerk, or a stranger; neither is the mode of attestation or witnessing, prescribed, as is done in' the statute, relating to wills. If the statute had made the validity of the recognizance depend upon the fact, whether there was or nota subscribing witness to it, and declared it invalid,unless
If the plaintiff were moving to quash the recognizance because the defendants, in their esparte proceedings, had not complied with the law, it would present a different question. ' In that event* the princi-
As to the 3d. error relied on. It is admitted, that the recognizance is incorrect, in point of fact, so far as it conveys the idea, that the judgment was rendered against P. C. Buck. For, although, he had been a defendant to the action, yet it was abated, as to him, by the sheriff’s return; and he was no party to the judgment. Is this error fatal to the recognizance?
If an execution issue against two, when the judgment is against one only, the execution, and any re-pfoyjn bond, taken in pursuance of it, in which both are compelled to unite, will be quashed as erroneous. See Bridges &c. vs. Caldwells, II. Marshall, 196; Monel vs Bamer, IV. Litt. 10. What is the
Here there has been no compdlsion. Instead of the cognizors being constrained, they have volunteered. They have taken the burden on themselves; it has not been forced on them. We conceive, therefore, that the cases cited are not analogous to the present. The only question with us upon this assignment is; does it appear with sufficient certainty, that the recognizance in question, was given in satisfaction of the judgment against C. Buck, Weisiger, and Bell? They had a right under the statute, by entering into a recognizance, in the clerk’s office, a form tor which is given, to exempt themselves from the costs of replevying. If they have availed themselves of this privilege, and this recognizance was by them Intended, and executed as a sati-faction of Sanders’s judgment, and Sanders has accepted it as such; then we are of opinion, that the recognizance is valid and binding, notwithstanding the error in stating the judgment to be against said Bucks, instead of C. Buck. That the recognisance was intended and executed for this purpose, we have no doubt. The judgment was rendered on the 27th October, 1825; the recog-hizance entered into two days thereafter. Their amounts making alldwanee for the costs; correspond. The clerkin making out the record of the suit, Sanders vs. Buck, &c. gives the recognizance as an appendage to it. Even the error complained of, may be accounted for from the fact, that P. C. Buck, was a party in the writ and declaration, though not in the judgment. The defect is not as striking as many which t'nis court has refused to regard as fatal to the rights of parties. See Bank of Kentucky vs. Lacy and Cox, I. Mon. 7.
The case of Bridges vs. Caldwells shews, that a replevin bond cannot be quashed for every inaccuracy. The case of Smiley vs. Thomas, supports this recognizance. In the case of Smiley vs. Thomas, the circuit court quashed a traverse bond, because in its condition, it set out an inqusition of
The fourth'error assigned is, we think, sufficiently negatived by the fate of the recognizance. It is expressly said, that the cognizors “ came into my office, as clerk, &c.’’ That is a sufficient answer.
The ñlh. error relied on, could not authorize the judgment quashing the recognizance, even if it were sufficient to quash the execution which issued in the. name of Robert Sanders, as administrator of Nathan-¡{q Sanders. But we are of opinion, it is not sufficient for this latter purpose. See I. Dig. 511. If the defendantsin error, had denied that Robert Sanders was in fact the administrator of Nathaniel, and Qn j_|ie crfaf 0f an issue, formed on that point, it had been found he was not administrator, the execution in his name ought to have been quashed. The objection seems to be predicted on an admission that he is administrator; but that it was improper to take out execution in his name, until a revivor by scire facias. We think such a course is dispensed with by the statute, and certainly, considerations of policy favor the construction. It obviates delay, and saves expense. We cannot conjecture what object the legislature had in view, unless to rid plaintiffs of the delay, and defendants of the expense attending a revivor by scire facias, and to give executors and administrators the same rights they would have possessed, in case they had revived by scire facias.
Cognizors and obligors, in replevin bonds, are not deprived of remedy to arrest one proceeding as executor or adminstrator, when in ttruth, he is not the executor or administrator.
Upon a careful examination of all the errors assigned, we have found none of them tenable.
Wherefore, 'the judgment of the circuit court is reversed, and the cause remanded, with directions to renderjudgment for the plaintiiF; dismissing the writ with costs and damages.
The plaintiff in error, must recover his costs in this court.