
    Waynick and Another v. Connelly.
    
      W. having separate judgments against T. and L. on their joint and several promissory note, issued a fi. fa. on the judgment against T. which was levied on certain real estate. Whilst the execution was in the sheriff’s hands, C. entered into a recognizance as bail in the case on the order-book of the Circuit Court. Held, that W. had his election to collect his money by an execution on the recognizance if valid, or by an execution on the judgment against L. Held, also, that if the recognizance was objectionable, C.’s remedy was by motion, on the law side of the Circuit Court, to set it aside.
    APPEAL from the Putnam Circuit Court.
   Blackford, J.

This was a bill in chancery filed by Connelly at the April term, 1845, of the Putnam Circuit Court, against John Waynick and Daniel W. Layman for an injunction and other relief.

The bill states that Waynick had obtained separate judgments against Daniel W- Layman and James Townsend on their joint and several promissory note; that an execution had issued on the judgment against Townsend, and been levied on certain real estate; that whilst said execution was in the hands of the sheriff, the complainant and another entered themselves replevin-bail in the case on the order-book of the Circuit Court; that Townsend is insolvent, and that Layman has property sufficient to satisfy the judgment against him; that Waynick has issued execution on the recognizance of bail entered into as aforesaid by the complainant and another, and has caused it to be levied on certain real estate the complainant. Prayer, that all proceedings on the execution against the complainant be enjoined until the property of Layman, subject to execution, be sold to satisfy the judgment against him; that the recognizance of bail be set aside; and for general relief.

J. Cowgill, E. W. MiGaughey, R. W. Thompson, and C. W. Barbour, for the appellants.

W. P. Bryant, J. M. Hanna, J. A. Wright, and 8. F. Maxwell, for the appellee.

The Court ordered the injunction as prayed for; and from that order the defendants have appealed.

We see no good reason for the filing of this bill. Way-nick had his election to collect his money by an execution on the recognizance of bail if valid, or by an execution on the judgment against Layman. There is not the slightest ground for saying that the replevin-bail of Townsend could not be made liable, except on the default of Layman. The bail were not sureties of Layman, nor was there any connection between them and him.

If the recognizance of bail is objectionable, respecting which we give no opinion, the complainant’s remedy as to that is at law. He might, at the time he filed this bill, have moved the Circuit Court on the law side to get aside the recognizance.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  