Coyle v. Porter ( 1820 )

Judge Owsley

delivered the opinion of the court.

This is an appeal from the decision of the circuit court, overruling Coyle’s motion to quash a replevin bond and execution which issued thereon.

The bond was taken by the sheriff the 9th of October, 1819, under an execution which issued upon a judgment recovered by Coyle; and the first execution issued upon the bond the 11th of January, 1819.

The motion to quash the replevin bond and execution was made at the September term of the Harrison circuit court, 1819.—Without deciding whether or not the replevin bond and execution might have been quashed, if the motion had been made in proper time, it is perfectly clear, under the act of December, 1802, 3 Littell, 92, the court did right in overruling Coyle’s motion. The 4th section of that act provides, that “every motion to quash or amend a faulty replevin or forthcoming bond, shall be made at the court to be held next after the return of the bond to the office of said court,” to the time of issuing the first execution on such bond, or at the first court to be held next after the issuing of such execution, but at no time thereafter.”

Motions to quash executions on defective replevy or forthcoming bonds, must be made at the first court after the executions issue:—To amend such faulty bonds, must be made at the first court after they are returned. Talbot for appellant, Pope contra.

The first execution having issued upon the replevin bond in January, 1819, there must have one term intervened between that time and the term in September, at which Coyle’s motion was made; and, consequently, to have quashed the bond would have been a palpable violation of the express letter of the act.

The judgment must, thetefore, be affirmed with cost.