#### *Jett v. Walker.

October, 1822.

Forthcoming Bond — Motion to Quash† — Case at Bar.— Where a motion is made to quash an execution *83and forthcoming bond, on the ground that a previous execution had issued, and a forthcoming bond taken for the same debt, which- execution and bond, it was alleged, had been improperly quashed, the court will not enquire into the validity of the first execution and bond, upon the motion to quash the second. The judgment of a competent court, will be considered right, until regularly reversed.

Appeal from the superior court of law of Brunswick county. The facts were these: Thornton Jett became the appearance bail of Robert Wallace, in a suit brought by Robert M. Walker, against the said Wallace. Judgment was obtained against the principal and bail; and an execution issued against the goods and chattels of the said Wallace and Jett. The forthcoming bond recites in the condition, that an execution had issued against Wallace only. This bond being forfeited, notice was given by the plaintiff, that he would move for judgment; but the plaintiff himself moved the court to quash the bond; which was accordingly done.

This bond being thus quashed, Walker issued a new execution against the goods and chattels of Jett, appearance bail as aforesaid of Wallace, which was levied on two negroes, and a forthcoming bond taken. Jett gave notice to Walker, that lie should move the court to quash the last mentioned execution and forthcoming bond, the said execution having issued illegally. Upon hearing this motion, the court over-ruled it; and Jett filed a bill of exceptions, setting forth the foregoing facts, and appealed to this court.

Wickham for the appellant,

relied on the case of Beale v. Wilson,(a) as an express authority, to shew that the order quashing the first forthcoming bond was erroneous; and if so, the second execution must have been improperly issued.

*Leigh, contra,

contended that as Jett was no party to the judgment on the first forthcoming bond, he could not appeal from that judgment. It was res inter alios acta. But, if he could appeal from that judgment, he has not done so in the present case. The judgment appealed from, is the judgment on the second forthcoming bond; and the proceedings on the first, are only brought to the view of the court incidentally, by a bill of exceptions in a different suit. The judgments of competent courts, are not to be reversed in this indirect mode. But, even if these principles are erroneous, the judgment of the superior court quashing the first bond, was perfectly correct. The execution was issued against the goods of Wallace and Jett, but the execution mentioned in the condition of the bond, is one against the ■estate of Wallace only. This variance clearly vitiated the bond, and left the appellee at liberty to1 take out a new execution.

Wickham replied.

†

See principal case cited in Garland v. Lynch, 1 *83Rob. 562; Holt v. Lynch, 18 W. Va. 571. See also, generally, monographic *note*on “Statutory Bonds" appended to Goolsby v. Strother, 21 Gratt. 107.

(a)

 4 Mnnf. 380

JUDGE BROOKE,

delivered the opinion of the court.*

The supersedeas in this case, upon an inspection of the record, is found to extend only to the judgment overruling the appellant’s motion, to quash the second execution and forthcoming bond. The court, therefore, not deciding whether the appellant, even if there was error in the first judgment, would be entitled to a supersedeas, is of opinion that there is no error in the second judgment, and it is therefore affirmed.

*

tjdgb Cabell was absent.

Note. — After the decision in this case, Wickham intimated that he should apply for a supersedeas, to the judgment quashing the first forthcoming bond; but Judge Brooke informed him, that the judges had taken that subject into consideration, and had determined, if such a motion should be made, to refuse it; on the ground of the variance, between the execution and the forthcoming bond. —Note in Original Edition.