Imagens das páginas
PDF
ePub

CHAPTER 104.

be released or ob

SURETIES AND CO-OBLIGORS.
How relieved from liability-Rights as against principal and co-sureties.

§ 1. If a surety in any official bond, or bond of a person2 R. S., 96. al representative, guardian, curator, committee of a lunatic, Proceedings by a surety de-iring to master commissioner, receiver, or in any bond or covenant tain indemnity. which by law may be required to be executed in court, or

before an fficer at the commencement or during the progress of any civil judicial proceeding, wishes to be relieved from future liability, and to obtain indemnity for such as may have been incurred, or either, he may, by written notice to the principal obligor, require him, by a day named therein, to appear before the court in which the original bond was given, or in whose clerk's office the same is required to be kept; or if the bond was not given in any court, or required to be kept in any office, then before the circuit court for the county in which the principal resides, or if he has no residence in this Commonwealth, then in the circuit court for the county of the residence of the surety.

§ 2. If the principal is within the Commonwealth, the Notice of proo notice shall be not less than ten days, otherwise there shall ceedings.

be thirty days' notice, by advertisement, posted at the door of the court-house in the county in which he resides, or last resided, or by publication in some newspaper printed in the county.

$ 3. The notice shall apprise the party of the object of Object of the mo- the intended application, whether for a new bond with other tion explained in notice. security, to effect a discharge from future liability, or as in

demnity for the past act of the principal, or for both. If indemnity for liability incurred be one of the objects, notice in like manner shall be given to each of the other sureties in the bond who may not have joined in the application.

$ 4. The remedy given to the surety in this chapter may same remedy. be adopted by his personal representative.

$ 5. Any surety in the bond may, at any time before the Other suretics in final action upon the application, unite with the applicant, unite in the ap- and ask for the same relief. plication. Effect of a new

$ 6. If a new bond is given, it shall operate a discharge of all the sureties making the motion, from all liability for

Personal representative to have

bond if one is given,

the acts of the principal thereafter done; and if the object be so specified, the bond shall contain a stipulation or covenant to indemnify the said sureties against any loss, cost, or damage legally incurred by reason of said suretyship.

$ 7. If a new bond is not given on the day named in the if no bond given notice, or fixed by the court, the party moved against shall moved, &c. be at once removed from office, if an officer, or if not, his powers revoked, or he be deprived of all right further to act in discharge of the duties or functions of the trust, post, or employment; and the court shall make all needful orders for the protection of the surety, and the benefit of the estate or trust which had been confided to him.(a) § 8. If a surety pays the whole, or any part of a debt or Remedies to a

surety who pays. liability for which he is bound as such, he may recover the amount, with interest from time of payment, from the principal, by action at law, or by motion after ten days' notice in writing. He may also sue a co-surety separately, or as a joint defendant with the principal, in such proceeding, and in like manner recover judgment against him, separately or jointly, at the same time, for his proper part of the debt or liability so paid, as if the sureties were the sole obligors; and if one or more of several co-sureties be insolvent, or reside out of the State, the recovery against the solvent and resident surety or sureties shall also be for a proper part of the share of liability pertaining to such insolvent or nonresident surety. If the surety afterwards make further payment on the debt or liability, he may again have like remedy therefor. But nothing herein shall preclude the party sued from making such defense as might have been made against the original demand, unless the payment was made after and in consequence of a judgment in an action of which he had notice.

§ 9. If the surety pays the whole or part of a judgment, Surety to have ashe shall have a right to an assignment thereof, from the plaintiff or the plaintiff's attorney, in whole or in part; and when the plaintiff has been fully satisfied, such assignment shall give him the right to sue out or use any existing execution, or otherwise control the judgment for his own

(a) On sufficient notice and motion, the sureties in a sheriff's official bond moved the county court for additional security, “in consequence of official default.” After hearing the parties the court required additional security in a prescribed time, and the sheriff failing to give it, was, by order of the court, removed from office, and a successor was appointed and qualified. The judgment of removal is affirmed. (Bartly vs. Fraine, 4 Bush, 375.)

sessment-when.

Remedies as be

and co-contractors.

benefit, against the other defendants, so far as to obtain satisfaction from the principal for the whole amount so paid by the surety, with interest, or from any co-surety, his proper part of such payment, according to the principles of the last section. Such assignment shall also transfer, to the surety so paying, the benefit of any lien existing under or by virtue of such judgment; and the right to the assignment shall exist, though the money was made or secured by sale of the property of the surety, under execution.

$ 10. Co-obligors or co-contractors shall, as between each tween co-obligors other, have the full benefit of the last two sections, as if they

were co-sureties.(a)

§ 11. A surety, co-obligor, or co-contractor, or one of Obligor may be several defendants to a judgment, may, by notice in writing required to insti. tue suit-how « served in person within the State, on the creditor or plaintiff

, when.

or if the plaintiff be a non-resident, or absent from the place of his residence for the period of thirty days consecutively, upon his agent or his attorney, require him to sue or issue execution; and if the creditor shall not sue to the next term thereafter at which he can obtain judgment, and in good faith prosecute the suit with reasonable diligence, or if the plaintiff shall not, within ten days thereafter, sue out execution, and in good faith prosecute the collection thereof, such co-surety, co-obligor, co-contractor, or defendant, shall be discharged from all liability as such, except for the proper share of such co-obligor, co-contractor, or defendant, according to the then existing condition of the several obligors, contractors, or defendants; and in any joint suit against the whole, or separate suit against him, judgment shall be rendered against him separately, and only for such proper

shåre. Notice required, The written notice herein required shall not be waived, unless pleaded unless in such waiver be in writing; and no waiver of such notice shall

be plead as a defense, or given in evidence, unless such waiver be in writing

$ 12. If the plaintiff in any bond having the force of a Delay of a year judgment shall, at any time for the space of a year,

re he is entitled to have execution, fail to issue execution, and leased, when.

in good faith prosecute the collection thereof, the surety in (a) The payment of a replevin bond by a surety therein, and its assignment to him, in par. suance of section 8, chapter 97, Revised Statutes, transfers to the assignee the benefit of any lien existing under or by virtue of the bond assigned; but it does not operate to revise, as against third parties, any equity or lien which had been merged or waived by the execution of the bond. (Bank of Hopkinsville vs. Rudy, 2 Bush, 326.)

writing

whilst

to sue out execution, surety

until

such bond shall be released from all liability as such, and any execution thereafter issuing on the bond shall be so indorsed.(a)

$ 13. No surety shall be released from his obligation on Delay to sue out any lost or destroyed judgment, or bond having the force of record lost or

destroyed of a judgment, by reason of any failure to sue out execu- the same is suption thereon for twelve months, unless such failure be for months thereafter twelve months after the re-entry of judgment or order of execution, as provided for in this chapter; but this chapter shall not apply to a surety who was released by law at the time of the destruction or loss of the record or bond, nor unless proceedings to have a re-entry of such judgment or order of execution had been commenced before the second term of that court in which the same should be had.

§ 14. If a sheriff or other officer is compelled to pay the Sheriff paying, whole, or any part of an execution, by reason of some de- substitution or as

signment fault of his concerning the same, he shall be entitled to an

ssignment of the judgment, and a substitution in the place of the plaintiff, in the same manner as is herein provided in favor of a surety paying a judgment.

(a) Execution upon a replevin bond was returned by the sheriff satisfied by the sale of land in 1861. After this sale the land was recovered from the purchaser and subjected to the payment of the execution-defendant's debts under the act of March 10, 1856. On notice and motion of the purchaser, who was the plaintiff in the execution, the court, at the November term, 1865, set aside the sheriff's return of the sale of the land, and thereupon execution issued on the replevin bond, which was enjoined by the sureties therein. The judgment of the court setting aside the return affirmed, and the injunction ordered to be perpetuated, upon the ground that the sureties were released by lapse of time. (Newman vs. Hazelrigg, i Bush, 412.)

2. The surety in a bond having the force and effect of a replevin bond, executed to a commissioner for money in litigation, deposited in court and loaned by order of court, is not released by a failure to issue execution on the bond for more than a year after its maturity. (Rankin vs. White, 3 Bush, 545.)

3. Sureties are exonorated in a judgment on a note by the plaintiff's forbearing to issue execution for more than a year, in consideration of ten per cent. advanced to him by the principal obligor without the consent of the sureties in the note. (Champion vs. Robertson, 4 Bush, 17.)

4. A surety in a bond having the force and effect of a replevin bond, executed to the clerk for money in litigation, loaned by order of court, is released from liability thereon by failure of the party to whom the money was adjudged to issue execution or move the court for a rule on the bond for more than a year after he was entitled to an execution on the bond. (Wintersmith vs. Tabor, 5 Bush, 105.)

An Act to authorize sureties for costs to obtain a release from further liability. § 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, Any one who stands bound as surety for costs in any action, may, on ten days' written notice to the party for whom he is so bound, if such party is in the county where the suit is so pending, or to his attorney or agent, if he is absent from such county, move the proper court to be released from all further liability on his bond; and the court shall require new security to be given within reasonable time by the party legally bound to give the same, and, upon failure so to give such new security, shall dismiss the cause. When such new surety is given, the liability of the former surety for costs accruing after that time shall cease. 22. This act shall take effect from its passage.

Approved April 23, 1873.

CHAPTER 105.

SURVEYORS.
ART. 1. Bond and oath of office.

2. Powers and duties of Surveyors.
3. Miscellaneous provisions.
4. Surveyor of Military Lands.

ARTICLE I.

Bond and Oath of Office. § 1. The surveyor of each county, before he enters on the

duties of his office, shall give an obligation and good surety 2 R. S., 402.

in the county court thereof, for the faithful and due execuThe bond of a

by tion of the duties of his station.

1. The clerk of the court shall attest and preserve the obligation.

2. Any person aggrieved may institute suit on such obligation. It shall not be discharged by the first recovery, but may be put in suit until every person aggrieved is indemnified.

surveyor
whom attested.

Suit thereon.

uties.

ARTICLE II.

Powers and Duties of Surveyor. § 1. On the recommendation of the surveyor of a county,

one or more deputies may be appointed by the county court May appoint dep- thereof, the court being satisfied of the qualification and

fitness of such persons.

1. The principal shall be answerable for the conduct of his deputies.

2. A deputy surveyor may act in any case in which a principal could act.

3. He shall be subject to the same penalties as the principal, and may be removed at his discretion, which removal must be entered on the records of the county court.

§ 2. Every surveyor shall promptly and faithfully execute or- every order of survey made by any court, of lands lying in

his county, and make out and return a true plat and certifi

cate thereof, accompanied by explanatory notes. Penalty.

to do so, he shall forfeit twenty dollars to the party injured, and with his sureties shall be, moreover, liable, jointly and

severally, to an action for damages on his official bond. Magnetic merid. $ 3. In surveying lands which shall have been previously ed in old surveys. surveyed, he must execute the same by the magnetic meri

To execute ders of survey how,

If he fail

ian to be obsery.

« AnteriorContinuar »