Doak v. Duncan

16 Ky. 176

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1813
• Status: Published

Opinion

Opinion of the Court, by

Ch. J. Boyle.

THIS is an appeal from the decision of the Adair circuit court, overruling a motion made by the appellants to quash an execution issued against them at the suit of the appellee, on a replevin bond.

The only objection taken to the execution, which deserves any consideration, is, that it issued for the sum named in the condition of the bond; whereas it should have issued for the penalty, to be discharged by the payment of the sum contained in the condition.

The latter is believed to be the usual, and no doubt the most formal and correct mode of issuing an execution upon a replevin bond; but when thus issued, it is in effect an execution only for the sum by the payment of which it is to be discharged, and is substantially the same as if it had issued simply and unconditionally for that sum. The objection, therefore, is too nice and technical to be regarded as fatal in itself. As tending to prove a variance between the execution and bond, it might be entitled to some weight, were there not other circumstances sufficient to evince their correspondence. But it is apparent from the execution, when compared with the bond in this case, that the former was issued upon the latter. The execution purports to be issued upon a replevin bond, is for the precise sum which is due by the replevin bond in this case, and with respect to the parties in both the execution and bond, there is a perfect coincidence.

Judgment affirmed with costs.