
    Baker and Hunter vs. Agey.
    1. The act of 1825, ch. 40, providing that an officer shall have judgment by motion on a bond of indemnity against the principal and securities therein, does not extend to cases where the recovery is had by the defendant in the execution against the officer, but to those cases only, where the title to the property does not reside in the defendant, but in some third person who recovers the value thereof.
    2. Acts of Assembly changing the common law mode of proceeding, and giving a summary remedy by motion, must be strictly construed.
    James Baker recovered a judgment against Eli Wilson and H. Wilson for fifty-nine dollars. A Ji. fa. was issued upon this judgment, which came to the hands of Alfred Agey, a constable of Campbell county, who levied it upon a horse, bridle, saddle and blanket, in the possession of Eli Wilson. Agey required a bond of indemnity previous to selling the property, which was given by Baker with A. Hunter as security obligating them in the penalty of five hundred' dollars to satisfy and discharge all damages and costs that should be recovered against him as constable for selling the property in any suit or suits thereafter instituted. The property was sold, and Eli Wilson instituted an action of trover in the circuit court of Campbell county against Agey, and recovered a judgment for the sum of one hundred and sixty-sis dollars. A. Hunter died, and Tabitha Hunter was appointed his adminis-tratrix.
    A motion was made by Agey upon the bond of indemnity against Baker and the administratix of Hunter, in the circuit court of Campbell county, at the September term, 1839, and judgment rendered in favor of the officer for the amount of the recovery had against him, with cost and damages. From this judgment Baker and the administratrix appealed in error to this court.
    
      J. A. McKinney, for plaintiffs in error.
    
      Peck, for defendant in error.
   Gkeex, J.

delivered the opinion of the court.

In this case the defendant in error obtained judgment by motion against the plaintiffs in error on an indemnifying bond, and the only question is whether this case falls within the provisions of the act of 1825, ch. 40. (Car. and Nich. Comp. 183.) That act provides that “in all cases where a sheriff, coroner, or constable may levy an execution on property, the title of which is disputed, and may take a bond of indemnity, and may be sued for so doing by the rightful owner of such property so levied on and sold, and a recovery had against such sheriff, coroner or constable, it shall and may be lawful for such sheriff, coroner or constable, upon motion in any court of record, to obtain judgment against the obligor or obligors, or either of them, on such bond of indemnity for the amount of the damages and costs that may have been recovered against such sheriff, coroner or constable.”

This act provides for the single case of a bond of indemnity where the title of the execution debtor to the property levied on is disputed. A judgment by motion is allowed in favor of the officer for the amount the true owner may have recovered of him. The meaning plainly is that the person who disputes the officer’s right to levy must be other than the defendant in the execution. For if the defendant in the execution objects to the levy on the ground that the process issued upon a void judgment, or that the particular article of property about to be levied on was exempt by law from execution, he would not thereby bring into dispute the title to the property, nor would a recovery by him on either of these grounds entitle the officer to a judgment in the summary way upon the bond. It has been always held that the acts of Assembly changing the common law (mode of proceeding and giving a summary remedy, are to be strictly construed. They are not to be extended beyond the cases expressly provided for, although other cases may fall within reasons for which they were enacted.

In the case before us the judgment recites that the plaintiffs in error executed their bond to' the defendant in error to indemnify him against any damages and costs he might be put to for selling a horse which he had levied on as the property of Eli Wilson, by virtue of an execution in favor of James Baker against the said Eli Wilson and Henry Wilson; and that it appearing to the court from the records thereof, that Eli Wilson, in said bond named, recovered a judgment against said.Agey for selling the property in said bond named, therefore the judgment is rendered in favor of Agey on the bond for the amount of Wilson’s recovery against him. This recitation shows that the person claiming the property and recovering the judgment was the defendant in the execution. Whether he recovered because the judgment against him was void, or because the horse was by law exempted from execution, the record does not show; but in either case it is not within the provisions of the act of Assembly by which it is sought to be supported. The party must be left to his common law remedy upon the bond. Let the judgment be reversed.  