Hester v. Keith

COLLIER, C. J. — The eighth section of the act of 1807, “concerning executions, and for the relief of insolvent debtors,” (Aik. Dig. 165,) enacts that “no writ of fieri facias, or other writ or execution, shall bind the property of the goods, against which such writ issued forth, but from the time such writ shall be delivered to the sheriff, undersheriff, coroner, or other officer, to be executed; and for the better manifestation of said time, such sheriff, coroner, his deputy or agent, shall, upon the receipt of any such writ, without fee for doing the same, endorse upon t'he back thereof the day of the month and year, when he received the same; and if two, or more writs shall be delivered against the same person on the same day, that which was first delivered shall be first satisfied.” The statute then enacts a penalty against the officer holding an execution, for a neglect of the duty it enjoins, and in addition, declares that he shall be liable to the action of the party aggrieved by the omission. This act, in requiring the the endorsement of the reception of an execution, must be regarded as director}', and its non-observance by an officer in whose hands an execution is placed, cannot prejudice a plaintiff. The lien attaches, as soon as the execution is received, and the noting upon it the day of its receipt, is only intended to evidence the fact. But the requisition of the statute will not exclude all other proof; and it is competent to show the precise lime the execution was delivered to the officer. That such is a proper construction of the act, is apparent from its terms, which declares that the lien shall become operative from the delivery of the execution; and that the execution first delivered, shall be first satisfied. If then, the original execution was received by the sheriff, a lien immediately attached upon the property of McCown & Conrow, in order to its satisfaction, and it was incompetent for the clerk and sheriff to vacate it, by substituting a copy in its stead. True, we have a statute which authorizes a plaintiff to have several executions at the same time, (under some circumstances) upon the same judgment; but there is no law which approves the proceedings of the clerk and sheriff’ in the present case. [319] The condition of the bond taken by the clerk on issuing the supersedeas, is clearly variant from that prescribed by law. The statute requires that the bond be “conditioned to pay and satisfy to the said plaintiff, or plaintiffs, the sum of money specied in said execution, together with interest and costs, in case the supersedeas shall be set aside or annulled.” (Aik. Dig. 165.) The bond executed in this case, is conditioned that Alexander McCown shall well and truly pay and satisfy such judgment as should be rendered by the county court. The bond given and that required are then materially different; and consequently, the surety of McCown & Conrow, is not liable to a judgment, as the act prescribes; yet, as the defendants have been delayed in the collection of their execution, by the bond that was executed, there is a sufficient consideration to sustain it, and it must be regarded as imposing a legal obligation at common law, so long as the judgment of the county court remains unreversed. As the present is a case of no intrinsic difficulty, we have thought it proper to express an opinion upon the question raised upon the record, though wc are constrained to repudiate the cause. Upon looking into the judgment, we discover that David Hester, who is made a plaintiff by the writ of error, is not a party to the judgment. For the misjoinder, the writ of error is dismissed.