Commonwealth v. Merrigan ( 1871 )

JUDGE HARDIN

delivered the opinion oe the court.

The. appellee, indicted as a common gambler under sec. 13, chap. 42 of the Eevised Statutes, having pleaded “ guilty” as charged, was adjudged “ to make his fine to the commonwealth by the payment of fifty dollars,” for which a capias pro fine was awarded against him, which he replevied, with Fred. H. Wyman, his surety, and at the maturity of the replevin-bond an execution was issued thereon, which was returned indorsed “no property found.” Afterward a second capias pro fine was issued on the judgment, which on the motion of the defendant was quashed, and from that judgment the commonwealth has appealed to this court.

Unless the act of replevying the first capias was unauthorized and void, the judgment was merged by the bond, and consequently the second capias was properly quashed. The only question to be determined therefore is whether the first capias was subject to be replevied?

By section 1, article 11, chapter 36, of the Eevised Statutes, defendants in judgments, except in a class of cases not including this, are allowed to replevy them, where no execution thereon is in the hands of a collecting officer; and the second section of the same article confers the right of replevying any execution issued on a judgment which might have been replevied; and by the first section of an act approved April 4, 1861 (Myers’s Supplement, 213), a capias pro fine is made to operate as an execution against the property of a defendant for the collection of the debt upon which it issued; and if so used to be returned as an ordinary execution.

We regard these statutory provisions as conclusive of the question under consideration. The taking of the replevinbond merged the judgment in it, and the second capias was improperly issued, and the motion to quash it was properly sustained.

Wherefore the judgment is affirmed.