Grubb vs. McCoy, &c.

in the warrant, with ten per cent. thereon, if the property is of the value of the rent so specified; or, if it is of less value, that he will pay to such party the value thereof, and ten per cent. thereon." (Civil Code, sec. 721.)

In the same section it is provided that "upon the giving of the bond, the levy, if one is made, shall be discharged, and the bond and warrant shall be returned to some justice of the peace of the county, where the amount claimed does not exceed fifty dollars; and where it does exceed that sum, to the clerk's office of the circuit court of the county."

The appellees failed to execute the bond here provided for, and consequently there was no discharge of the levy according to the terms of this section.

And it is entirely clear that the bond which was executed by them could not have operated to discharge the levy for these obvious reasons:

By section 713 the sale of personal property upon which an execution is levied shall be suspended at the instance of any person, other than the defendant in the execution, claiming the property, who shall execute a bond to the plaintiff in the execution to the effect that "if it shall be adjudged that the property, or any part of it, is subject to execution, he will pay to the plaintiff the value of the property so subject," &c.

Section 718 provides that the giving of this bond “shall not discharge the levy of the execution upon the property claimed." But the officer may leave it, subject to the lien of the levy, with the person in whose possession it was found pending the proceeding on the bond; and may, in the meantime, proceed with the execution against any other property of the defendant.

These provisions are made to apply "to proceedings upon distress warrants, levied or about to be levied upon personal property claimed by any person other than the tenant, his assignee, or under tenant." (Sec. 720.)

It is therefore manifest that the appellees, under a misapprehension, doubtless, of their legal rights, executed a bond which is intended and expressly provided for a different class of claimants, and which the officer had no legal authority to accept. The bond as a statutory obligation was ineffectual,

Grubb vs. McCoy, &c.

and did not operate either to discharge the levy or to divest the constable of his right to the possession of the property levied on. And even if the appellees had occupied the position of such claimants as were authorized to give the bond, still the effect of its execution would have been merely a suspension of the sale, and not a discharge of the levy, as the statutes referred to explicitly declare.

Inasmuch, then, as the levy remained in full force, unaffected by the execution and acceptance of this unauthorized bond, and as the officer had improperly surrendered the possession of the horses to the appellees, he had a right, in a peaceable manner, to regain his lawful possession, and in doing so he violated no right of the appellees. They had failed to comply with the terms upon which alone they could have entitled themselves to be restored to the possession. The officer had, in virtue of the levy, acquired a qualified right of property in the horses, and to that right of property the right of possession was necessarily incident.

The fact that the distress warrant had been returned, and was not in the hands of the officer at the time of the recapture, is wholly immaterial. The facts stated in the official return of the constable show that the warrant was improperly returned, and that his authority to effectuate the levy had not been impaired by anything that had occurred since the levy.

In the case of Ferguson, &c., vs. Williams, &c., (3 B. Mon., 304,) it was held that the writ of replevin was not an abrogation of the levy, but that the levy remained in full force, although the slaves had been taken out of the possession of the sheriff, and restored to the possession of the claimant; and that upon the rendition of the judgment of restitution the sheriff had the unquestionable right, and it was his duty, to receive the slaves and to make sale thereof, though the execution which had been levied upon them had been returned, and no venditioni exponas was in his hands; that this latter writ was intended only to compel the sheriff to do his duty, by making sale of property levied on which he might do without it, even after the termination of his office.

VOL. 2-62.

Jones vs. Bunn.

The judgment is therefore reversed, and the cause remanded for a new trial and for further proceedings not inconsistent with the principles of this opinion.

CASE 34-PETITION ORDINARY-JANUARY 2.

Jones vs. Bunn.

APPEAL FROM JEFFERSON CIRCUIT COURT.

1. In an action on a bail bond executed by a party in custody under an order of arrest, to enforce the liability of the bail, it is necessary that the petition should allege that the bond was executed in the presence of the sheriff or other officer authorized to take bail. (Civil Code, sec. 190; 4 Bibb., 450.)

2. The requirement that the bond, when accepted, shall be returned to the clerk's office, is directory to the sheriff, and his failure to comply with it would not defeat or impair the rights of the obligee.

3. The petition must also allege that the judgment had not been paid or satisfied. An averment that judgment had been obtained against the principal, that he had not surrendered himself or been surrendered by his bail, and that execution had issued and been returned "not found," is insufficient.

4. That execution upon the judgment against the principal was returned "not found" before the return day thereof, does not prejudice the bail, since he is not thereby prevented from surrendering the defendant to the sheriff by the return day of the summons in the action against the bail, which surrender exonorates the bail. (Civil Code, sec. 200.)

MORRIS, for appellant, cited Civil Code, sec. 190; 14 B. Mon., 84; 4 Bibb, 450; 5 Litt., 59; 4 Mon., 147; Civil Code, secs. 196, 197, 198; 2 B. Mon., 35.

BULLITT & SMITH, for appellee, cited Civil Code, secs. 196, 200,

198.

JUDGE DUVALL DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court overruling a demurrer to the petition in which the plaintiff sought to recover upon a bail bond executed by the defendant.

Various objections to the sufficiency of the petition have been urged in argument, the most material of which we proceed to notice.

Jones vs. Bunn.

1. It is insisted that the petition is defective because it fails to show that the bail bond was executed by the appellant, before or in the presence of the sheriff or other officer authorized to take bail, or that it was returned to the clerk's office, as required by law.

This objection is well taken. The Civil Code, (scc. 190,) in prescribing the manner in which bail may be given by the defendant on his arrest, directs that "it shall be done by causing one or more sufficient bail to execute a bond to the plaintiff in the presence of the sheriff, or of the jailer where the defendant has been committed to jail, to the effect that if judgment shall be rendered in the action against the defendant, he will render himself amenable to the process of the court thereon. The bond, when accepted, shall be returned to the clerk's office, and the defendant discharged."

It is certainly essential to the validity of the obligation here provided for, that it should appear to have been executed in substantial conformity to the requirements of the statute. It would hardly be pretended that if the bond in this case had been executed by the appellant at the request of the appellee, and delivered to him, in the absence of the sheriff and without any agency on his part, it would have been enforceable against the obligor as a bail bond. And yet, for all that appears to the contrary, either upon the face of the petition or of the bond as exhibited, such may have been the manner of its execution. To prevent frauds and oppressive exactions against parties in custody under an order of arrest, the law has wisely provided that the instrument which secures his release shall be executed in the presence of the officer having him in charge, who thus becomes a quasi agent of both the parties, and whose duty it is to protect the rights and interests of each.

In a proceeding to enforce the liability of the bail, it is therefore necessary to show by appropriate allegations that the substantial requirements of the statute had been conformed to in the execution of the bond.

This point was directly decided in the case of McMahan, &c., vs. Knox, (4 Bibb, 450,) in which it was held that a scire facias on a recognizance of bail was insufficient to authorize a judg

Jones vs. Bunn.

ment against the bail, because it was not shown in the scire facias before whom it was taken; for if it was not acknowledged before the proper person authorized to take the recognizance, it could not form the basis of a recovery. The case of Harris vs. Simpson, (4 Litt., 165,) is referred to in the opinion as settling the same principle.

The requirement that the bond, when accepted, shall be returned to the clerk's office, is directory to the sheriff, and his failure to comply with it would not defeat or impair the rights of the obligee.

2. The second objection must also be sustained. The petition fails to allege, in terms or in effect, that the judgment had not been paid or satisfied. The plaintiff merely avers that he had obtained judgment against Harding, and he not having surrendered himself, or been surrendered by his bail, execution had issued, and had been returned "not found." All this may be true, and yet the defendant in the judgment may have paid or satisfied it, which would undoubtedly have exonerated the bail. The insufficiency of the petition in this particular is so obvious that further comment is deemed unnecessary.

3. The objection that the execution upon the judgment had been prematurely returned, cannot be sustained upon any fair construction of the provisions of the Code which relate to the liability and discharge of bail. Although the execution may have been returned before the return day, the bail is not thereby prevented from surrendering the defendant to the sheriff by the return day of the summons in the action against the bail, and such surrender exonerates the bail. (Sec. 200.)

For the errors mentioned the judgment is reversed, and the cause remanded, with directions to sustain the demurrer, and for further proceedings in conformity with this opinion.