Keaton v. Cox

By the Court. Bennincí J. delivering the opinion. Was the Court below right in overruling the affidavit of illegality ? It is true, that the judgment is general against Jas. J. Keaton and Jno. R. Hampton — not specifying, that it is against the latter as surety; but the statute does not require that the judgment should specify any thing in this respect. What the statute requires, is, that when “any security to any note,’ [164] “shall subscribe himself as security,” it shall be held as evidence of his beiug such security, “and the plaintiff shall sue out original and mesne process, accordingly.” Cobb, 594. But if the statute did require the judgment to specify this, the omission to specify it, would be amendable. Cobb, 488. [l.] There is nothing, then, in the first ground of the affidavit of illegality. [2.] Nor is there any thingin the second. In a fi. fa. against several defendants, the plaintiff has the right to make his money out of any of them, at his pleasure; and this, although it may be, that some of them are but sureties. The judgment binds equally, the property of all. This being the plaintiff’s right, neither he, nor the Sheriff, is bound to regard instructions from one of such defendants who is only a surety, to make the money out of the property of another of the defendants, who is a principal. No law was read to show the plaintiff or Sheriff so bound. Judgment affirmed.