Patton v. Walcott

By the Court, Dickinson, J. The statute {Rev. Code, sec. 37, 38,' Chap. 60,) authorizes the defendant, when a levy is made upon his property by execution, to “ retain possession until the day of sale, -by giving bond, in favor of the plaintiff, with sufficient security, to be approved by the officer, in double the value of such property, conditioned for the delivering of the property to the officer at the time and place of sale, to be named in such condition; and that, if the property be not delivered according to the condition of the bond, the levy shall remain a lien upon the property taken for the satisfaction of the judgment, into whose possession soever the same may have passed.” The 40th section of the same act provides, that, “ if the condition of the bond be broken, and the execution be returned unsatisfied, the plaintiff may, at his option, bring an ordinary suit on the bond.” The 39th, 41st, 42d, and 45th sections of Chap. 60, of the Revised Code, upon the subject of executions, are expressly repealed, by name, by an act op the General Assembly, passed at Nov. session, 1840, which takes away the remedy, by motion, when the condition of the delivery bond is broken, and changes 'the rate of damages and the mode of appraisement of the property lowed upon. By repealing the 41st section, the Legislature totally destroyed the summary mode of proceeding upon a delivery bond, when the condition of it was'broken; and that express declaration, by ¡.lie Legislature, necessarily repeals that portion of the 40th section which has reference to judgments being taken in this summary mode; thus leaving the party to bis common-law remedy, by bringing an ordinary suit upon the bond, or to pursue the property as provided for in the 38th section of the act, which declares that the levy shall remain a lien upon the property taken for the satisfaction of the judgment, into whose possession soever the same may have passed; or to prepare his declaration upon the bond, and file the same on the return-day of the execution, or on any subsequent day of the term at which the execution is returned; and the defendant ■ and his security shall be deemed to have notice of the facts, that the condition of the bond has been broken, and the execution returned unsatisfied, thereby rendering the issuing and service of process unnecessary, as he is presumed to have notice of the facts to the same extent as if process was served. The proceedings, in this case appear to have been summary, on motion, without the form of pleading, and therefore clearly erroneous. Judgment reversed.'