Bank of the Commonwealth v. Patterson , 41 Ky. 378 ( 1842 )

Judse Marshall

delivered the Opinion of the Court,

It seems to this Court that'the 19th section of the act of 1828, relating to executions, (Stat. Law, 645,) which refeases a security in any bond having ihe force of a judgment on the failure of the plaintiff therein, at any time f°r the space of twelve months after execution is ¿ue him, to issue execution thereon, bona fide, with a view to the collection of the debt, applies not only to a failure to issue execution for twelve months immediately aher the bond falls due, but also to any failure for the same length of time to issue a subsequent execution af. °. , , , , , „ , ter a previous one has been returned and not satisfied; for not only is there the same reason for the release of the security in the latter case as in the former, but as upon the return of one execution not satisfied another execution is due the plaintiff on the bond, this case, as well as the first, comes substantially within the terms of the statute. Nor is the case changed, in our opinion, when the previous execution is levied on property of the principal, ■and the plaintiff fails for a year to issue a venditioni ex-ponas. The statute makes no exception from the declared consequence of the failure to issue execution for twelve months, but in case of such failure being caused by a supersedeas or injunction; and certainly the failure to compel a sale of the goods of the principal actually taken in execution for a year, in which time they may perish or be lost, would seem to furnish as just aground for the release of the surety as the failure to seize such goods for the same period.

Cates Sr Lindsey for plaintiff; Owsley <† Goodloe for defendant. «

In this case there appears to have been a suspension of all means for compelling a sale of the property levied on, for two or three years, from 1834 to 1836 or 1837, and on the subsequent vendiiioni exponas, no sale was effected; but the Sheriff in his return states that the property was returned to the defendants, and-»it does not appear that the suspension of execution, as above stated, was occasioned by supersedeas or injunction. Under these circumstances we are. of opinion, that the security was released, and that the Court did not err in directing the Clerk to indorse that fact upon the subsequent execution and upon all executions which might afterwards issue, as provided for by the statute.

Wherefore, the order and judgment of the Court, directing said endorsement, is affirmed.