Kelly v. Collins ( 1842 )

Lane, C. J.

Whenever it is made to appear to the court rendering a judgment, that one of the parties is a surety, the court is required to certify which is principal and which is ^surety, so that execution may be first levied on the property of the former. Swan’s Stat. 482. The plaintiff in error insists, that where this fact appears of pleading, as in this case, it is matter of error to omit the certificate. We think the party has mistaken his remedy. The judgment in such case is right, and there is nothing to reverse. There may be good cause why the certificate is omitted by the court. If it were refused in a proper case, and the facts appeared in a bill of exceptions, we would correct it; but bare omission can be corrected'only in the court where the judgment was rendered.

Judgment affirmed.