
    Davis v. Davis.
    October Term, 1845,
    Richmond.
    Pleading — Indemnifying Bonds — Plea.—In an action against a constable, for taking tile property of the plaintiff, upon three executions against a third person. The constable filed a special plea, in which he set up an indemnifying bond executed by the plaintiffs in the executions. The plaintiff craved oyer of the bond, and demurrer to the plea; and it was Ilisitn.
    1. Same — Same—Same—Necessity for Setting Out Judgments. — That It is not necessary to set out the judgments in the plea.
    2. Same — Same—Executions—Validity—Case at Bar. —That though the executions appeared on their face to be issued by a justice of Hardy county, yet'having in fact been issued by a justice of Hampshire, where they were levied, and this being averred in the plea, they are valid, and give authority to the officer to execnle them.
    
      3. Same — Same—Same—Necessity for Setting Out.— That it is not necessary to set out the executions in the indemnifying: bond.
    4. Indemnifying Bonds — Several Executions. — That one indemnifying- bond may be taken on several executions.
    5. Partnership — Bonds Executed by One Member— Effect. — That a Arm being the plaintiffs in the executions, the bond executed by one of the Arm, in the partnership name, is a good bond of the person so executing it.
    
      6. Same — Bond—Recital of Names of Plaintiff. — That the reciting in the bond, the names of the plaintiffs in the execution, by their partnership name, is sufficient.,
    In July 1837, Jesse Davis instituted an action of trespass in the Superior Court of Hampshire county, against ^Samuel Davis for unlawfully taking and selling the plaintiff’s horse. The defendant appeared, and pleaded the general issue, and also a special plea. The special plea stated: That heretofore, to wit, on the 15th of Hay 1837, at the county of Hampshire, one Reuben Davis, a justice of the peace in and for said county, issued three several executions of fieri facias, directed to any sworn constable of the district No. , to execute and return; commanding him to execute and sell as much of the personal estate of James Murphy as would satisfy •Vance & Kuykendall. (The three executions were then set out at length in the plea; and seem to be in proper form, except that in the caption it is “Hardy county” instead of “Hampshire.”) The plea then proceeds: which said several executions, afterwards, to wit, on the 5th day of May 1837, (the date of the executions,) at the county aforesaid, and whilst the same was in full force, and unsatisfied, were placed in the hands of said defendant, then and there being a constable in and for the said county of Hampshire, with district , to execute and return according to law. And said defendant avers, that afterwards, to wit, on the day of May 1837, at the county aforesaid, and whilst the said several executions were in his hands as constable aforesaid, and whilst the same were in full force, and unsatisfied, and before the return day thereof, and within the district for which he was constable in said county, he levied the said several executions on an iron grey horse, which the said Vance & Kuykendall then and there alleged to be the property of said Francis Murphy; and a doubt having arisen whether the title to said property was in the said Francis Murphy, or not, William Vance, one of the partners of the said firm of Vance & Kuy-kendall, afterwards, to wit, on the 26th of June 1837, in the county aforesaid, and whilst said defendant had said horse under said executions, and whilst they were in full force and unsatisfied, by the name of * Vance & Kuykendall, together with David Gibson as his surety, executed and delivered to the said Samuel Davis, so being a constable of the said county of Hampshire, a bond in the penalty of eighty-nine dollars, with condition. (The bond is set out at length in the plea, and recites “that whereas the said Vance & Kuykendall had sued out from Reuben Davis, a justice of the peace for the county of Hampshire aforesaid, three different writs of fieri facias, to wit, one, and another, and another, against the goods and chattels of Francis Murphy, upon three different judgments obtained before the said justice of peace, which said writs, with the' legal costs attending the same, amounted to the sum of forty-four dollars and fifty cents. And whereas the said Samuel Davis, constable of the county of Hampshire aforesaid, by virtue of the said writs, to the said constable * directed, had levied the same on the following property, viz: one iron grey horse, and a doubt arising” &c. This bond was signed “Vance & Kuykendall.”) The plea then proceeds to aver that the security was sufficient, that the defendant proceeded to sell the horse under the executions, and that, within twenty days from the date of the bond, he had returned the executions and the bond to the clerk’s office of Hampshire county.
    The plaintiff craved oyer of the bond, and demurred to the plea; and assigned for causes of demurrer:
    First. That the judgments are not set out in the plea.
    Second. That the executions upon their face were issued by a justice of Hardy; and are averred in the plea to have been issued by a justice of Hampshire.
    Third. The indemnifying bond was not taken pursuant to the statute:
    1st. Because 'the executions are not set out in the bond.
    2d. Because the bond is taken on three executions, when there should have been a bond on each execution.
    *Fourth. The bond is not good because signed by a firm.
    Fifth. The bond does not shew who were the plaintiffs in the executions. The defendant joined in the demurrer; and the cause coming on upon the demurrer, it was overruled by the Court, and a judgment was rendered for the defendant. From this judgment the plaintiff obtained an appeal to this Court.
    Mason, for the appellant; and
    Cooke, for the appellee,
    submitted the case.
    
      
      The principal case is cited in Evans v. Graham, 37 W. Va. 662, 17 S. E. Rep. 202. See monographic note on "‘Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   By the Court.

Affirm the judgment.  