Handley v. Rankins

Court of Appeals of Kentucky

Handley v. Rankins

18 Ky. 151, 2 T.B. Mon. 151, 1825 Ky. LEXIS 78

DecidedOctober 28, 1825

StatusPublished

This text of 18 Ky. 151 (Handley v. Rankins) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Handley v. Rankins, 18 Ky. 151, 2 T.B. Mon. 151, 1825 Ky. LEXIS 78 (Ky. Ct. App. 1825).

Pincite

Opinion

Judge Davidge

delivered the opinion of the Court.

THE appellants moved the court to quash a replev-in bond, upon several grounds; among others, that the [152]*152bond was given to the defendants in their proper character and right, when the execution is in their charatí-ter as administratrix and administrator.

The law is the authori-exeoutionthe guide to the officer, in plevirf bondf Where there variance, it'is fatal, and the bond may be quas e . Case cited. proper right, taken on an execution in administra-topi is erro-s ‘ Replevin bond to plaintiffs in their fee quashed. Triplett, for appellants.

The law may be considered the authority, and the execution the guide to the officer in taking replevin bonds. A material variance between the execution and the bond, will be fatal, and a good ground to quash the bond,

Had this been a suit, and the process qui lam, or as ex-ecu tor or administrator, or assignee of a bankrupt, the. declaration could only have been in the sainé character. 1 Chitty on Plead. 253. We consider that the principle Equally applies to the present case. Had the bond been taken in a fiduciary character, it would have ap-peered from its face, that the money was assets of the decedent; as it is taken, other evidence would be rendered necessary, in a contest for the money, to prove it assets. This is an inconvenience to which the officer h,ad no right to subject parties. It has long been held, that a variance in the name of the party, his abode, or addition, is fatal. 1 Roll. 754, 6 Com. Dig. 173. Nor have our predecessors been less scrupulously exact in their adhesion to the doctrine of variance. In Coleman vs. Edwards; 4 Bibb 347, the court held the variance between the judgment and scire facias fatal, the scire facias alleging the judgmentto have been rendered by a cdurt held for the district of Paris, and the judgment produced in evidence was of the district cnirt held in Paris, composed of the counties of Bourbon, Harrison and Nicholas.

We Would not, however, be understood as deciding that every variance, however inconsiderable, between an execution and replevin bond, would be a sufficient §ro«nd for Washing the bond.

As the judgment must be reversed for tbe foregoing reasons, it is unnecessary for us to say any thing about objections that were made,

The judgment reversed with costs, and the cause remanded to the court below, for new proceedings to be bad, not inconsistent with this

Free access — add to your briefcase to read the full text and ask questions with AI

Judge Davidge

delivered the opinion of the Court.

THE appellants moved the court to quash a replev-in bond, upon several grounds; among others, that the [152]*152bond was given to the defendants in their proper character and right, when the execution is in their charatí-ter as administratrix and administrator.

The law is the authori-exeoutionthe guide to the officer, in plevirf bondf Where there variance, it'is fatal, and the bond may be quas e . Case cited. proper right, taken on an execution in administra-topi is erro-s ‘ Replevin bond to plaintiffs in their fee quashed. Triplett, for appellants.

The law may be considered the authority, and the execution the guide to the officer in taking replevin bonds. A material variance between the execution and the bond, will be fatal, and a good ground to quash the bond,

Had this been a suit, and the process qui lam, or as ex-ecu tor or administrator, or assignee of a bankrupt, the. declaration could only have been in the sainé character. 1 Chitty on Plead. 253. We consider that the principle Equally applies to the present case. Had the bond been taken in a fiduciary character, it would have ap-peered from its face, that the money was assets of the decedent; as it is taken, other evidence would be rendered necessary, in a contest for the money, to prove it assets. This is an inconvenience to which the officer h,ad no right to subject parties. It has long been held, that a variance in the name of the party, his abode, or addition, is fatal. 1 Roll. 754, 6 Com. Dig. 173. Nor have our predecessors been less scrupulously exact in their adhesion to the doctrine of variance. In Coleman vs. Edwards; 4 Bibb 347, the court held the variance between the judgment and scire facias fatal, the scire facias alleging the judgmentto have been rendered by a cdurt held for the district of Paris, and the judgment produced in evidence was of the district cnirt held in Paris, composed of the counties of Bourbon, Harrison and Nicholas.

We Would not, however, be understood as deciding that every variance, however inconsiderable, between an execution and replevin bond, would be a sufficient §ro«nd for Washing the bond.

As the judgment must be reversed for tbe foregoing reasons, it is unnecessary for us to say any thing about objections that were made,

The judgment reversed with costs, and the cause remanded to the court below, for new proceedings to be bad, not inconsistent with this

Cite This Page — Counsel Stack

Bluebook (online)

18 Ky. 151, 2 T.B. Mon. 151, 1825 Ky. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handley-v-rankins-kyctapp-1825.

Opinion

Related

Cite This Page — Counsel Stack