Walker v. Shotwell

Citations

• 21 Miss. 544

Syllabus

<p>It is not a fatal objection to a forthcoming bond, that it recites that the execution, under which the levy was made and the bond taken, was against S. and W., when, in fact, it was against S. alone; S. and his sureties for the forthcoming of the property being' the only parties to the bond.</p> <p>Nor, in such case, will it make any difference that the party against whom the execution was, was insolvent, and the other against whom it was not was solvent; the sureties on the bond were sureties of the party whose property was levied on, and who was the principal in the bond, and not of the other.</p> <p>It is a sufficient levy to uphold a forthcoming bond, that, without an actual seizure of the property by the sheriff, the principal in the bond inserts in it the description of the property, procures the signatures of the sureties with his own, and in that condition delivers the bond to the sheriff.</p> <p>A forthcoming bond is not void, because the property levied on was under mortgage at the time of the levy ; though it seems, if the obligors in the bond were prevented from delivering it according to the terms of the bond, by reason of the action of the mortgage creditor, they would be released from their liability.</p> <p>It seems it would he a fraud upon the creditor to allow parties to a forthcoming bond, who had themselves voluntarily filled up the bond with property not liable to sale, to set up this as an excuse for a failure to deliver the property.</p> <p>It is not a fraud upon the sureties to a forthcoming bond, given by S. as principal, that the bond recited that the execution was against W. and S., and the sheriff did not disclose the fact that it was against S. alone ; yet if such omission were a fraud, without proof that the creditor was implicated in it, it would not discharge the bond.</p>