Adkins v. Allen

By LIPSCOMB, Chief Justice. The plaintiff discontinued as to M‘Laren, and declared against his securities ; and from aught that appears in the record, judgement was rendered on the verdict of a jury at the return term of the writ, for six hundred and eighty-six dollars debt, and five cents damages, the debt being the precise amount of the bond, and something more than double the amount of the judgement recovered against M‘Laren. From this statement, it is very clear that there is sufficient error to reverse the judgement. It has been decided at the previous term of this Court, that it is error to discontinue against one of several joint obligors who have been sued, if the one discontinued against has been served with process. If service has not been executed, the plaintiff may discontinue ; but a discontinuance as to one who has been served with process, is a discontinuance as to all. There is another point of much importance in practice; it is contended that the replevy bond in this case is not assignable. By the attachment law of 1807, the property levied on could only be replevied by giving special hails the bail was bound for the amount of such judgement as should be rendered against the defendant, or for the surrender of his person in custody. There is no question but this bond was assignable under the provisions of the act authorizing the transfer of bail bonds. The act of 1818, provides that the bond shall be conditioned for the payment of such judgement as shall be recovered against the defendant or the forthcoming of the property levied. The statute is silent as to whom the bond shall be made payable ; but as the property, if surrendered in discharge of the bond would necessarily be [132] delivered to the sheriff, there seems nothing unreasonable in die pvesuraption, that the law designed that it should j)C maje payable to him ; and by reference to the former ]aWi we feel authorized to say, that it can be assigned in like manner as the special bail bond under the former law-,- The judgement must be reversed.