ISAACS AND BAGLEY vs THE JUDGE OF THE COUNTY COURT OF JEFFERSON, 5 Stew. & P. 402

SAFFOLD, J. In the Court below, the plaintiffs in error moved, on notice previously given, to quash an execution, purporting to have issued against them on a bond, taken in a case of bastardy, prosecuted under the statute. Several grounds were relied on in support of the motion to quash ; the effect of' all which was, that there was no record or proceedings in the office from which the execution issued, sufficient to authorise it. On the hearing, the motion was overruled, at the cost of the defendants in execution.

A bill of exceptions then taken, shows the record and other evidence, on which the decision was made; the material parts of which are, in substance, as follow : The plaintiffs in execution produced an execution from the clerk of the County Court, dated the 4th of August, eighteen hundred and thirty-one, which had issued against defendants for 50 dollars, in favor of the Judge of said Court, of which sum if was stated they were convicted, as appeared by a bond remaining in the office of the clerk of said Court, bearing date in January, eighteen hundred and twenty-three.

On this fi. fa. a levy on personal property appears to have been made, a delivery bond taken, and the same returned, by the sheriff, forfeited on the twenty-second of August, eighteen hundred and thirty-one, which was also the date of the notice of this motion. The plaintiffs in execution then produced a record of the same Court of January term, eighteen hundred and tw'enty-three, which shewed the trial by jury of an issue of bastardy, between the State and Elijah Isaacs, prosecuted by Sally Early, and a verdict convicting Isaacs of being the father of the child, as alleged by the prosecution.

On this conviction, it appears the Court gave judgment that the defendant should “ pay not exceeding the sum of fifty dollars, yearly, for the term of ten years,” for the benefit of the child, and should give bond and security for the payment to the Judge of that Court, and remain in custody until he complied.

Then the parol evidence of the clerk and deputy clerk of the same Court was introduced, stating, that on repeated diligent examinations of the office, before, and at the time of the issuance of the execution, no bond, or other record, than as above stated, was to be found; but that Bagley had told the clerk that he had entered into a bond as the security of Isaacs, for the support and maintenance of the child. Bag-ley objected to the competency of parol evidence to establish the execution of the bond. This was all the evidence before the Court, when the motion to quash was overruled.

The refusal of the Court, to set aside the execution, is assigned for error. From the state of the record, as shewn, the issuance of the execution was confessedly illegal, and the process irregular. Had the earlier proceedings in the cause been regular, the execution could have’ issued only on the bond, which the imputed father and his security were required to give, pursuant to the judgment of the Court. But here was no evidence of any grade, shewing the tenor and effect of any such bond; nor was there any competent evidence of the existence, at any time, of any bond, intended for this purpose.

It is true, that Bagley is shewn to have said to one of the clerks, that he had entered into such bond, as the security of Isaacs; but this evidence, on account of its grade, and uncertainty in the description of the instrument, as well as the objection, that it was an admission of one only of the obligors, was clearly inadmissible, jn a proceeding of this nature.

A farther difficulty in the establishment of the bond, was, that the statute required one which was to have the force and effect of the judgment, undei which it was to have been given • and the judgment itself, was defective, in not ascertaining the sum in which the accused was condemned. Instead of condemning him to the payment of some certain annual sum, which did not exceed fifty dollars, the judgment was for an indefinite amount; consequently, it was, at least, extremely doubtful, if any valid bond could have been given, under the' judgment.

But, it is unnecessary to press this inquiry, as there was no sufficient shewing, that, in fact,any bond was given ; and consequently there could have been no legal foundation, for the execution: But, it is contended, that the execution having been returned, the Court then had no power over it* sufficient to quash, or set it aside. There seems to be no difference, as respects the power of the Court to quash executions, whether returned or not — especially if they still have virtue, as the foundation for further proceedings — as in this case.

Here, the future proceedings on the forfeited bond, must have reference to the execution, under which it was taken; so that the reason and necessity of the action of the Court, upon it, were no less than before its return; and no less than if it had been returned with the money made upon it, and the motion to quash had been with a view to have the money restored to the defendant.

In the case of Brand vs Mears, testatum fieri, facias, was cet aside afta? it b>>4 been executed, the irregularity, that'no original ji. fa. had previously issued, to warrant it. a In 2d Dunlap’s Practice, (p.-773,) it is said, that u If a writ of execution he irregular, the defendant may move the Court to set it aside, and discharge him out of custody, if taken on a ca. sa.: or, that the goods or money levied on a fi. fa., may he restored to him.” The same principle was recognised by this Court, in the case of Creighton vs Denby, and, in this latter case, the judgment of the Circuit Court, refusing the motion, was reversed, and the execution here quashed.

In the case before us, the substratum being insufficient, the superstmob'ro rvvd fall. The judgment below must be reversed, and the execution be quashed by the judgment of this Court. 3 Term.R. 388. Ala Rep; 250.