
    Tooley et al. Appellants, v. Culbertson.
    In an attachment for rent, .the replevy- bond may be taken, payable to the sheriff, and by him assigned to the party interested.
    It is provided by statute, that if an attachment for rent be levied, and the defendant does not replevy after notice, the sheriff may proceed to sell the property, on a credit of three months, taking from the purchaser bond with security, for the payment of the .money. But if the debtor chooses to replevy, he may do So, by giving bond with security, to pay the money in three months, and the property is then delivered back to him. And if the bond of the purchaser of the property, or the bond of the defendant be not paid when due, then thejiarty to whom the rent is due, may move the proper court with which the bond is lodged, to award execution on the bond. This provision of the statute applies to cases where there is no contest about the debt, the giving of the bond being construed an acknowledgement of its justness. But if the defendant seeks to contest the plaintiff’s right to recover, he must sue out a writ of replevin, and give bond conditioned to satisfy the judgment of the court in case he be cast.
    APPEAL from the circuit court of the county of Adams.
    Julius Culbertson sued out an attachment for rent, against the goods and chattels of J. D. Cornell, which was levied, and Cornell entered into'bond with the appellants, H. Tooly, and L. Pitcher, as his security, payable to- Mark Izod, sheriff of said county, for the sum of three hundred and sixty dollars, reciting the attachment and levy on sundry articles specified, and that the same had been returned on the execution of the bond, which would be void, provided Cornell paid said shm at the end of three months. Cornell having failéd to pay the bond, Culbertson gave notice to the appellants, the obligees in the bond, that he would move for judgment thereon, according to. the statute. The notice recited the- bond and thé default of payment, &c. On the 22d of February, 1838, Tooley and Pitcher appeared and filed objections to the motion, as-follows:
    1st.-The bond is payable to the sheriff, inste,ad of-the plaintiff. 2d. Becausé the sheriff has no right to assign the bond, which h e had assigned to the plaintiff in the motion. 3d. Because the plaintiff has not given bond to Cornell, according to the statute. 4th. Because the bond taken provides for the payment of sums not allowed by the statute. Sth. Because the bond was payable to the sheriff, for a sum due the plaintiff. 6th. The bond contemplated by the statute, is not an official bond. 7th. Because the affidavit and oath, made before the. justice of the peace, for the issuance of said attachment, was not made by the plaintiff nor his agent or attorney, but by one Charles A. Lacoste, between whom and the plaintiff in the attachment, there did not appear to be any privity. Sth. Because the notice did not describe the bond relied on. 9th. Because the notice relied on is not ■ the notice served on defendants. 10th. Because the bond was assigned by the sheriff after the forfeiture, and after Cornell’s death.
    The attachment bond was signed • by Briggs, Lacoste & Co.; but there was no bill of exceptions, making the papers objected to á part of the record.
    The court below awarded an execution upon the bond, from which there was no appeal.
    Baker & Winchester,
    Assigned the following errors in argument, in this court:
    1. That the notice is given to, and a motion made at a special term of the circuit court of Adams county, at which special term said court had, by law, no power to hear and determine said cause.
    2. It does not appear in and by the record that the said appel-lees executed a bond according to law, or that there is any bond on file or of record in the office of the clerk of the circuit court of Adams county, on which said motion was predicated, and on which execution might lawfully issue.
    3. That there was no sufficient bond given by said plaintiff below (appellee,) before suing out said attachment for rent, &c., as is required by law.
    4. That it does not appear by said record that the said Briggs, Lacoste & Co., or said Charles A. Lacoste, were or are the authorized agents or attorneys of the said appellee, or had any authority to sue out said attachment.
    5. That there is no authority in writing, appearing in the record to show that the said bonds or éither of them was executed, so as to bind the appellees, there being no power of attorney shown by the record to support their authority to bind the ap-pellee by bond. ■ ' '
    6. The record does not show that either Briggs, Lacoste & Co., or Charles A. Lacoste, had power by law to bind the said appellee by affixing his name to said bonds] or that the said Charles A. La-coste had power by law to bind the said Briggs, LaCoste & Co., by affixing the name of said firm to a sealed instrument.
    7. It does not appear by the record that any sufficient affidavit
    was made by any one authorized by law, before suing out said attachment. The statute requires said affidavit to be made by the plaintiff, his agent or-attorney. Charles A. Lacoste who made the affidavit upon which the attachment in this case was issued, does not appear by-the record to have acted in either, of these three capacities. -
    8. The court below erred in sustaining said mbtion of said ap-pellee and awarding execution thereon. •
    Montgomery and Boyd, for áppellees.
    Errors assigned are eight in number.
    The real state of the case is this, the plaintiff gave the defendants notice that on a certain day he would move for an execution on.a replevin bond for rent. To that motion defendants appeared, showed cause against the motion, and on the hearing the motion was sustained, and execution awarded. As there was no exception taken to the judgment of the court, nothing can properly be considered as part of the record except the bond, the notice of the motion and the exceptions assigned and the judgment. See 1 Howard Rep. 162. See Revised Code, 169, S. S. ■
    Giving a replevin bond conditioned to pay the rent due with interest and costs, at the end of three months, was a waiver of the irregularity in taking out the attachment, if there were any 5 and on the motion all the court had to enquire into was, whether the bond was in conformity with law, was forfeited and due, and proper notice given to the defendants or obligors in the bond. The objections in this case were multifarious: some applied to the face of the proceedings, and some to facts dehors the record. So far as they apply to the face of the proceedings this court will examine into their correctness. 1
    
      The first is, that the bond on which the motion is based, is payable to the sheriff, instead of the plaintiffs.
    The language of the statute is, that the officer shall take surety to pay the money with interest, &c. in three months; and the third section prescribes the condition of the bond .: but the whole statute is silent as to the payer of the bond, the condition shall be to pay to the lessor the rent due, &c. Rev. Code, 168-9.
    The sheriff may well take the bond payable to himself. 18 John. Rep. 438. 7 Bacon ab. 73-4.
    The second objection is included in the same principle.
    The party is estopped from denying the existence of such bond as is mentioned in the third objection.
    The fourth and fifth objections are not true in fact, as will be seen by comparing the bond with the statute.
    The sixth and seventh objections cannot come before the court, as the bond alluded to, is not made a part of the record by the bill of exceptions.
    The eighth and ninth objections are contradicted by the record.
    The tenth objection is wholly immaterial.
    The case Cornell v. Rulon, does not apply; that was argued on one side only, and the- court were not called on to decide what effect giving a bond to pay the rent had. 3 Howard’s Rep. 54.
   Opinion of the court by

Chief Justice Shakkev.

Culbertson sued out an attachment for rent, against the goods and chattels of J. D. Cornell, which was levied, and Cornell entered into bond with the other appellants, as his securities, to pay the money at the end of three months; and having failed to pay, the appellee moved the circuit court for execution on the bond, according to the statutel The motion was sustained by the court, and execution awarded, from which judgment this appeal was taken.

For the appellants, various objections are made to the regularity of the proceedings below, whilst for the appellee, it is contended that most of these objections, even if well taken, are not before this court in such a way as to present them for adjudication.

The whole of the points made can be disposed of by an exposition of such portions of the statute as bear upon them, without a separate examination of each.

By the 47th section of the statute, Howard & Hutchinson’s Digest, 559, if an attachment for rent be levied, and the defendant does not replevy after notice, the sheriff may proceed to sell the property, on a credit of three months, taking from the purchaser bond with security for the payment of the money. But if the debtor chooses to replevy, he may do so, by giving bond with security, to pay the money in three months, and the property is then delivered back to him. If the bond of the purchaser of the property, or the bond of the defendant, be not paid when due, then the party to whom the rent is due. may move the court having jurisdiction of the amount, the bond being lodged in such court, to award execution on the bond. This section applies to cases where there is no dispute about the amount due; the giving of the bond being an acknowledgement of the debt. The effect is to delay the payment three months, by giving security. But if the defendant wishes to contest the plaintiff’s right to recover, he may do so by sueing out a writ of replevin, under the 59th section, in which case he also gives bond, conditioned to perform and satisfy the judgment of the court in such suit, in case he be cast. In neither case, is it expressly said to whom the bond shall be payable. By the 47th section, it is provided that the defendant may replevy, “by sufficient security given to the sheriff or proper officer serving such distress.” It seems to be difficult to determine, whether the bond should be made payable to the plaintiff] or to the sheriff, without adopting a rule which may appear to be arbitrary. Indeed, it must be so to some extent, since the law is entirely silent on the subject. The language would as well justify the sheriff in taking the bond, payable to himself, as otherwise. How is the replevy to be made? “ By sufficient security given to the sheriff or proper officer, serving such distress.” To give a bond with security, payable to the plaintiff, would not be giving security to the sheriff, but to the plaintiff, an yet it would evidently comport with the object of the law, to. wit: the indemnity of the plaintiff. The same object may be as well attained, by making the bond payable to the sheriff, with condition to pay the rent to the plaintiff. It is not to be denied that there is great want of harmony in the several sections relating to attachments for rent, but if they can be fairly construed so as to give them effect in carrying out the object of the legislature, such construction should be given. We should not incline to weaken the remedy by a doubtful construction. In this case the bond was made payable to the sheriff, conditioned to pay the rent to the plaintiff, and by the sheriff assigned. It is certain that this is sufficient to entitle the party to his execution, for it is the breach of the condition which gives that right j that condition is to pay him his rent, and it is not certain that it was intended that it should be made differently, and we must accordingly hold it to be good.

If the bond is not paid, by lodging it in the court having jurisdiction, a foundation is laid for the motion, but the law does not in express terms require the proceedings in attachment to be returned to a court, nor is it fairly to be inferred that it was so intended, because by giving bond under the 47th section, the party waives, impliedly, ail further contest. The other proceedings could be of no use. The bond becomes the foundation of a new proceeding. The previous proceedings constitute no part of the case. It would be different, in case a writ of replevin should be taken out; then the affidavit, bond and attachment would come properly before the court. In this case the bond was filed, and notice given, and the defendants appeared and contested the motion. All of the objections taken, except to the bond which has been already noticed, relate to the affidavit made on suing out the attachment and the bond then taken. If these were materia], they should have been embodied in a bill of exceptions, they being no part of the record in the cause. We have repeatedly decided, that we will notice nothing which is not a part of the record proper, unless it be placed there by bill of exceptions, although it may be attached to the record.

Judgment affirmed.  