#### John McLean, Appellant, v. Joseph B. Emerson, Appellee.

APPEAL FROM GALLATIN.

The act of the 22d March, 1819, respecting replevin bonds, declaring that such bonds shall be executed to the sheriff, does not mean that the sheriff shall be the obligee in such bonds, the word “ executing ” meaning nothing more than a making and delivery to the officer named, and such bonds, made payable to the plaintiff in the original action, are legally executed.

In a replevy bond, the fees of the officer are correctly inserted, and it is regular, though it should be for more than double the amount of the judgment.

Opinion of the Court by

Justice Smith.

This is an appeal from the decision of the Gallatin circuit court, on a motion to quash a replevin bond entered into by appellant in 1819, as security, which motion the circuit court overruled.

The grounds of error relied on for the reversal of the judgment of the court below, may be embraced in two points:

1. Whether the bond is void because taken in the name of the plaintiff in the original action.

2. Whether, in other respects, the provisions of the statute of 1819, respecting replevin bonds, have been complied with.

By the first section of the act for the relief of debtors, approved March 22d, 1819, † it is declared “ that all executions which now are or hereafter may be issued on any judgment or judgments, which heretofore have been, or hereafter may be recorded or given, the defendant or defendants shall be permitted to replevy the same for twelve months, upon executing bond, in double the amount of the execution, with sufficient security or securities, to the sheriff of the county, conditioned for the payment of the amount of such execution, with legal interest, and all costs that may accrue *321thereon,” unless the plaintiff has previously authorized the sheriff to take certain bank notes, enumerated in the statute, which bond is to be deposited by the sheriff in the office of the clerk of the circuit court. It is further provided, that such bond shall have, in all respects, the force and effect of judgments of record, and be subjected to be proceeded on in like manner. Under the first section, it is contended that the bond should have been taken in the name of the sheriff, and that being in the name of the plaintiff, it is, for that reason, void.

The act declares that the bond shall be executed to the sheriff, but does it, because the statute requires it to be executed to the sheriff, necessarily imply that the sheriff is to be the obligee in the bond? Does the term “ executed” imply any thing more than a making and delivery of the bond to the officer named, and is it not used in a synonymous sense ? Can the term “executed” imply that the sheriff, who is no party in the original action, and who has no interest in the judgment, shall thus become the plaintiff in a judgment to be subsequently entered up upon the bond, and become entitled to control that judgment, receive the avails thereof, and no provision be made for his accounting to the creditor, for the proceeds of the judgment to be thus received ?

The statute, it will be perceived, has not required the sheriff to make an assignment of the bond, as is always provided where bonds are taken by a sheriff for the benefit of third persons in his name, and in the absence of such a provision, and when no possible reason can be given, why the legislature should have intended that the sheriff should be the obligee in the bond, it is seriously contended that the bond is void, because the name of the plaintiff in the original cause, is inserted in the bond as the obligee.

If such a construction were sanctioned, it would involve the incongruity of subjecting the defendant, in the first action, to two judgments for the same cause, in right of different parties, and place the legal rights of the creditor under the disposal and entire control of one, having no possible right or interest in the original judgment.

The legislature could never have contemplated such an absurdity, and it ought not, from any ambiguity in the statute, to be inferred.

The objects and reasons of the statute clearly imply that the sheriff is only to receive the bond, and by executing the bond to the sheriff, no more than a making and delivery to *322that officer of a bond could have been intended, supposing •that it would be in the name of the plaintiff in the original execution, of course. This inference is also to be drawn from the provision requiring him to deposit the bond in the clerk’s office. The taking of the bond in the name of the plaintiff in the original cause, is conformable to the relation and right of the respective parties, and is in accordance with the spirit and intention of the statute. Such has been the constant, and I believe, uniform practice under the statute, and the correctness of it has never before been questioned. Such is the course pursued in the state of Kentucky; and one provision of their statutes relating to replevins is, in this very point, equally ambiguous ; indeed, it says that the party may replevy by “ giving bond with approved security to the officer, to pay the amount of debt, interest, and costs of such execution to the plaintiffAccording to the construction contended for by the appellant, it might with the same propriety be urged that the bond, under this clause of their statute, ought to be taken to the officer. Yet neither under this clause of the Kentucky statute', nor any other relating to replevin bonds, is it the practice.

Under the second point, it is also urged that the bond is taken for more than double the amount, and that the sheriff’s fees are included. The fees of the officer are correctly inserted. The statute authorizes all costs arising on the execution to be included, and the insertion of a sum greater than required, has been assented to by the obligors in the bond, and can not now be urged by them as error. Independently of these considerations, the appellant has clearly concluded himself by his own act and gross neglect. The replevin bond was executed in September, 1819, and in November, 1820, execution was sued out; between this time and up to the 7th of March, 1826, a period of more than five years, various other executions were sued out and levied on the property of all the defendants, and in one instance the appellant caused the property of the principal debtor to be released from execution, and tendered real estate of his own for such purpose, and in lieu thereof, which was received. It also appears, that under some of these executions the sum of 330 dollars has been collected. Under every view of the facts in this case, and the statute under which the bond has been taken, we are constrained to say that the bond has been rightly taken, that nothing appears to vitiate it, and that, more especially, from the great delay and acquiescence of the appellant himself in the proceedings, he has himself waived all *323possible benefit of the exceptions taken, even if they were tenable.

Eddy, for appellant.

Gatewood, for appellee.

The judgment below is, therefore, affirmed with costs.

Judgment affirmed.

†

Laws of 1819, p. 159.