M'Coy v. Elder , 2 Blackf. 183 ( 1828 )

Scott, J.

Debt on a delivery-bond. Demurrer to the declaration, and judgment for the plaintiff for the penalty of the bond, to be discharged by the payment of the damages sustained. Writ of inquiry waived and damages assessed by the Court, by consent of the parties. The record of the original judgment, on which the execution and replevin-bond were founded, was produced in evidence, and final judgment rendered for the amount appearing to be due.

It is objected by the plaintiff in error that the execution is void, because it refers to a judgment against Angus C. M’Coy and others, not named, and the sheriff is commanded to levy it on the property of Angus C. M’Coy, John C. M’Coy, James Hamilton, Cyrus Hamilton, and John S. Forsyth. In the execution, as set out in the bill of exceptions, the command to the sheriff is in these words: You are hereby commanded that of the goods, chattels, lands, and tenements, of Angus C. M’Coy, James Hamilton, Cyrus Hamilton, John C. M’Coy, (and John S. Forsyth as security,) you cause to be made, to satisfy Andnew Elder, the sum of 212 dollars, which the said Andrew Elder, late in our Decatur Circuit Court, recovered against the said Angus C. M’Coy and others. There is no ambiguity in this phraseology; the execution-defendants are all named in the first instance, and the allegation that the amount to be made had been recovered against the said Angus C> M’Coy and otN ers, is tantamount to saying it had been recovered against the said defendants, repeating all their names.

It is further objected that the execution is against five defendants, and the judgment on which it was issued is against four only. There is nothing in this objection. The judgment is against Angus C. M’Coy, James Hamilton, Cyrus Hamilton, and John Q. M’Coy; and, after judgment rendered, John S. Forsyth became replevin-surety; the execution therefore very properly issued against the five.

The only remaining objection, which we deem it necessary to notice particularly, is, that the judgment, replevin-bond, and execution, were not proper evidence of the amount which the plaintiff was entitled to recover. Had the amount of the original judgment exceeded the penalty of the delivery-bond, and had judgment been rendered for that amount, there would have been some ground for this objection. The statute, authorising delivery-bonds, contemplates a bond in double the amount of the value of the propertyseized; that value is a matter to be settled between the sheriff and the execution-defendant at the time of giving the bond, and the penalty of the bond is a limit to the damages, which the defendant and his sureties agree to pay in case of failure to deliver the property. Below this amount, we know of no measure of damages better adapted to the purposes of justice, than" the original judgment with interest and costs ⁽¹⁾,

Stevens, for the appellants. Lane and Smith, for the appellee.

Several ¡other points have been noticed by the plaintiff in error, as defects in the proceedings, which,' if they are defects at all, should have been taken advantage of at an earlier stage of the proceedings. The judgment of the .Circuit Court must be affirmed.

Per Curiam.

The judgment is afijrmed, with 5 per cent, damages and costs.

(1) The statute now is, that, in cases like that in the text, the amount due on the execution shall be assessed in favour of the plaintiff, provided the property so taken be' of sufficient value to satisfy the same, -and if not, then ¡the value of the property so taken, together with ten per centum thereon. R. C. 1831, p. 239.

It is decided, that, under this act, the plaintiff is entitled to the 10 per cent, damages, as well where the value of the property is sufficient to satisfy the execution, hs where it is not. Mitchell et al. v. Denbo, May term, 1833. The law is the same in the case of delivery-bonds taken by constables. R. C. 1831, p. 107.