Adams v. Keeler ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

The executions having been issued against the defendants, Ward Keeler and John M. Jordan, jointly, a payment by one was a satisfaction. If Jordan was, in fact, but a surety for Keeler on these debts, which were the foundation of the executions, he ought, after this payment to have made such fact “satisfactorily appear to the Court from whence the executions issued,” when that Court would judicially have given to him the control. Cobb’s Dig., 595. Not having done so, he had no right to control the executions against his co-defendant. Hence the subsequent levy and sale of the lot in controversy under these executions, as the property o Keeler, was illegal and void, and conveyed no title to the purchaser at such sale.

It is insisted by counsel for plaintiff in error, that the entry made by the Justice of the Peace, the same who issued the executions “of payment from Jordan, security,” is a substantial compliance with the Act before referred to, sufficiently so, at least, to give Jordan control of the executions against Keeler. We do not think so. These entries were made by the Justice of the Peace as receipts for the money paid to him for the plaintiff in execution, and as a collecting officer — not as a Court. It does not appear to have been done in Term time, or upon proof that Jordan was but surety; all of which is fatal to the position of counsel. ■

Judgment affirmed.