Selmes v. Smith

Scott, Judge,

delivered the opinion of the court.

This is a proceeding against sureties, and it is well settled that the obligations they contract, are to be strictly construed'. The 31st section of the execution law directs that, “ when the sheriff or other officer charged with the service of an execution, shall levy it upon personal property, the defendant may retain possession thereof until the day of sale, by giving bond in favor of the plaintiff, conditioned for the delivery of the property at the time and place named in the condition.” From the return made by the sheriff to his writ, it appears that the property of the defendants in the execution had been levied upon ; it was advertised, and the sale actually commenced on the day appointed. It would seem from these facts, that the power of the sheriff, as far as this levy was concerned, was exhausted as to a delivery bond. He was under no obligations at- that day to take a forthcoming bond, and acted accordingly, by refusing to take one without the consent of the plaintiff. After-wards, by a written agreement between the parties to the execution, in which, however, the sureties did not join, the day of sale was postponed, and the bond, the foundation of this proceeding, was taken for the forthcoming of the property on the *528 day agreed upon. Now, it seems to us, that it cannot be said, that this bond derives its validity from the statute authorizing the taking of delivery bonds. The bond was taken under circumstances which would not warrant the taking of a bond, which was to be enforced by a motion in case of a breach of its condition. The facts show that it was a bond arising purely out of the consent and agreement of the parties. It cannot, therefore, be used as a statutory bond. It is good, for aught that appears, as a common law bond, and the parties must look to the ordinary remedy in order to enforce it.

The other judges concurring, the judgment will be reversed.