King v. Baker

7 La. Ann. 570

• Court: Supreme Court of Louisiana
• Decided: October 15, 1852
• Status: Published

Opinion

By the court:

Rost, J.

The plaintiff brought suit against 'W. J. Q. Baker, on a bond executed by Ellen A. Crownritch and the said Baker, as her surety, conditioned that certain slaves seized at the suit of the plaintiffs, as the property of John M. Crownritch, the husband of the principal in the bond, should be delivered to the sheriff on the day of sale, which bond had become forfeited by the non-delivery of the slaves at the time stipulated.

The defendant resists the payment of the bond on two grounds: 1st. That there was no legal execution in the hands of the sheriff at the time he took the bond. 2d. That the defendant alone had the right to give a delivery bond, and there is no law authorizing the sheriff to take the bond sued upon.

The plaintiffs have appealed from the judgment rendered in the court below in favor of the defendant.

It is proved, that the seal of the court was not affixed to the writ under which the sheriff seized the slaves, and that this defect was only supplied after the bond sued upon had been executed.

It is not denied that, under article 626 of the Code of Pratice, orders of execution must be sealed with the seal of the court; but the plaintiffs contend, that the defendant in eitacution alone can take advantage of the informalities of the proceedings in the suit or under the judgment, and that Baker is a stranger to him and should not be permitted to assert his privileges or to dispute the validity' of the seizure of his property.

It appears to us, that this argument proves too much. If the principal in the bond represented her husband, and acted in his behalf, her surety was, in fact, the rurety of the defendant in execution, and may avail himself of all thp means of defence of his principal which do not result from his condition or his personal incapacity. A surety cannot be bound, as a general rule, under more onerous conditions than his principal. Gilbert v. Meriam, 2 Ann. 160.

If, on the other hand, the principal and surety on the bond are strangers to the defendant in execution, then it is clear that the sheriff had no authority to take the bond, because the act of 1842, under which it was taken, gives to the defendant alone the privilege to retain in his possession the property seized, on executing a delivery bond.

The plaintiffs invoke the rule, that in whatever manner a party chooses to bind himself, he should be held to be bound ; but we have uniformly adhered to the decision of our predecessors, in the case of Slocumb v. Roberts, that this rule is not applicable to judicial bonds, and that, in such cases, a sheriff has no power to take any other bond but that which he is authorized by law to take. 16 L. R. 174.

The judgment is affirmed, with costs.