McGowan v. Hoy

32 Ky. 347, 2 Dana 347, 1834 Ky. LEXIS 96

• Court: Court of Appeals of Kentucky
• Decided: October 30, 1834
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court in this case

in the decision of which Judge Underwood took”no part.

McGowan made a motion in the circuit court, to quash two executions for costs, which had been issued, in his fa.vor, against Hoy, and also to quash certain endorsements thereon by the clerk, stating" that, the e: had, at the instance of oiie Graves, who wai styled attorney in fact for McGowan, been i the benefit of the clerk, and of others who be his assignees.

The court having overruled the motion, this writ of error is brought to reverse the judgment.

It appeared, that the whole amount had been collected ; and the bill of exceptions does not exhibit any evidence tending, in any degree, legitimately to prove, that, jjje cjerlt had any legal authority to endorse either execution for his own benefit.

The endorsements furnished no ground for quashing ^ executionSj especially after each of them had become fundus.

But, although McGowan may possibly not be prejudiced by the endorsements, in as much as they might afford no justification for paying the money to any other person than the plaintiff in the executions ; nevertheless, they might subject him to peril, delay and costs; and therefore fm would have had a right to an order setting them aside ; arid it would have been the duty of the court to sweep them out of the way — because, by making them, the process of the court was abused, and the creditor might thereby be prejudiced — had the record shewn, that there was no proof of authority to make the endorsements.

But the bill of exceptions does not state, that it cootains all the evidence ; nor can we make such an inference from what it does state.

Wherefore, on this ground alone, the judgment must b,e affirmed.