#### Garland and Others v. Lynch.

February, 1843,

Richmond.

(Absent Brooke and Stanard,* J.)

Forthcoming Bond†—Forfeiture—Effect on Original Judgment.—The decisions in Randolph’s adm’x v. Randolph, 3 Rand. 490, Taylor v. Dundass, 1 Wash. 93, and Downman v. Downman’s ex’or, 2 Wash. 189, approved. In conformity with the principle of the first case, held, that if judgment'be rendered against tvfo, and one gives a forthcoming bond with security, which is forfeited, the other is not discharged from the original judgment, if‘the obligors in the forthcoming bond prove insolvent. But also held, according to the decisions in the two' last cases, that the forfeited forthcoming bond will prevent any execution or other proceeding on the original judgment, until the same be quashed.

Same—Creditor’s Right to Quash.—Even after execution has been awarded on a forthcoming bond, the bond may be quashed on the motion of the creditor, to enable him to have execution on the original judgment, if the case be one in which the execution on the forthcoming bond has proved unavailing, without any default of the creditor.

Same—Security—Sufficiency of—Liability of Sheriff.— Where the sheriff takes from the owner of goods levied on under execution a forthcoming bond with security, and, upon the same being forfeited and execution awarded thereon, the obli&ors prove ’¡’insolvent, the sheriff will not generally be liable to the creditor on account of such insolvency, if he can establish that the security was sufficient at the time of taking the bond. But where execution against two is levied on the goods of one, and he gives a forthcoming bond with the other as his only surety, such surety, being already bound, is not security such as the law requires; and if the execution on the forthcoming bond prove unavailing, the sheriff will in this case be liable to the creditor, although he may prove that the surety in the forthcoming bond was sufficient in point of estate at the time of taking the bond.

Same—Same—Same—Same—Measure of Damages.—In a suit on a sheriff’s bond under the act 1R. O. 1819, ch. 78, § 13, p. 279, there is a demurrer to the evidence, and it appearing thereby that the party for whose use the suit is brought had an execution against two, which was levied on the goods of one, who gave a forthcoming bond with the other as security, and that, the bond being forfeited, the execution awarded thereon proved unavailing, the circuit court holds the evidence sufficient to *345support the action. Some oí the evidence which had been introduced tending- to shew that part of the debt might have been made under the execution on the forthcoming bond if the creditor had not interfered, the counsel for the defendants then insists that the jury should weigh the evidence in assessing the damages. But the opinion •of the circuit court is, that the plaínlííf must recover the amount of his debt, or nothing, and that the evidence cannot be urged before the jury in mitigation of damages. that in fixing the damages absolutely at the amount of the debt and thus taking from the jury all discretion, the circuit court erred. Accord. Perkins and others v. Giles governor, 9 Leigh B97.

In March 1820, an action of debt was brought in the county court of Amherst, in the name of Jones P. Preston governor of the commonwealth of Virginia, for the benefit of John Lynch jr. against David S. Garland late sheriff of Amherst county, John London, William Turner and John Coleman, on a bond executed the 15th of September 1817, to Preston as governor of the commonwealth, by Garland and the other obligors as his sureties, with a condition (as prescribed by the last form in 1 R. C. 1819, p. 278, i 12,) for the faithful execution and performance by Garland of the office of sheriff of Amherst county, during his continuance therein. In the ^'condition, the commission was recited as dated the---day of - past. The declaration, after setting forth the bond and condition, averred that Garland, having duly qualified as sheriff of Amherst under his said commission, appointed one Benjamin Harrison his deputy, who duly qualified as such. And it assigned three breaches. 1. That Lynch, having obtained a judgment in the superior court of Amherst against Leroy Camden and Jabez Camden for *300*dollars with interest from the 2d of October 1816, and 7 dollars and 75 cents costs, caused a writ of fieri facias to issue therefor against their goods and chattels, which writ was delivered to Harrison, the deputy of Garland, to execute: that Harrison executed the same upon a negro boy named Harry, the property of Leroy Camden, and suffered the boy to remain in his possession, lipón his giving bond to have the boy forthcoming at the day and place of sale, with the said Jabez Camden as security therein, and with no other security: that the boy was not delivered at the day and place of sale, and the said Leroy Camden and Jabez Camden became, a'ter the time of taking said bond, wholly insolvent: and that Lynch, by the 'misconduct of the said deputy sheriff in the premises, had wholly lost his debt. 2. That Lynch obtained a judgment against Leroy Camden, and caused an execution to be sued out upon it, which was put into the hands of Harrison, then a deputy sheriff for Garland; and Harrison could have levied it upon property of Camden sufficient in value to have satisfied the execution, but there was a failure to levy the same, and the debt has been lost. 3. That Lynch, having obtained a judgment against Leroy Camden and Jabez Camden, caused a fi. fa. to be issued upon it, which was delivered to Harrison, the deputy of Garland as sheriff; that the same was executed by Harrison on a negro boy, the property of Leroy Camden, who was of value sufficient to pay the amount of the judgment, and the said boy was returned by Harrison into the possession of *Camden, without the judgment being paid or discharged, and the said boy was not advertised and sold, or otherwise legally disposed of, by Garland as sheriff, or by any of his deputies, and the said boy was never after taken possession of by Garland as sheriff, nor by any of his deputies, and the said judgment has never yet been paid.

At May term 1822, the defendants pleaded conditions performed, and issue was joined.

At November term 1822 they offered two pleas, to wit: 1. that a forthcoming bond was taken in discharge of the execution, which forthcoming bond, being forfeited, was accepted by the plaintiff in the execution without objection thereto, and on his motion an execution was awarded thereon; 2. (after craving oyer of the condition of the bond in the declaration mentioned) that the defendants “have well and truly performed the said condition, as by law the said David S. Garland was bound to do.” The court refused to permit these pleas to be filed, and the defendants excepted.

The defendants then tendered four other pleas, which were received; to wit, 1. that at the time of the execution of the forthcoming bond, the obligors were solvent, and of sufficient ability to pay the debt, and the failure to take security in said bond was by the leave and license of the creditor : 2. that although no security was taken in the forthcoming bond, yet the creditor in said bond waived his right to have security therein: 3. that the debt has not been lost on account of any negligence or misfeasance in office of the sheriff: 4. that if the debt has not been made, it has been owing to the negligence of the creditor, and not owing to any fault or negligence of the sheriff. To the second, third and fourth of these pleas, the plaintiff replied generally. To the first he replied that the obligors in the forthcoming bond, at the time of taking the same, were not both of them solvent, and that the said Jabez was not good security, and that the failure in taking security in *said bond was not by leave and license of the creditor. The replication concluded to the country. ’

At August term 1823, after a suggestion of the death of the defendant London, a jury was impanelled, but failed to agree.

Át June *term*1824, a verdict was found for the defendants, and judgment rendered thereupon, from which the plaintiff appealed.

In the superior court of law, on the 2d of October 1824, the judgment was reversed with costs, and it was ordered that a new *346trial be had; and for that purpose, by consent of parties, the cause was retained in the superior court.

At the first trial in the circuit superior court, a verdict was found for the defendants ; but it was set aside.

Afterwards, to wit, on the 10th of September 1832, another jury being impanelled, the plaintiff introduced the following evidence, to wit: 1. A record of the county court of Amherst at September term 1817, stating that David S. Garland, sheriff of the said county, appeared in court, and entered into and acknowledged bonds with John Coleman, William Turner and John London his sureties, conditioned according to law. 2. The bond of Garland as sheriff, mentioned in the declaration. 3. A record of the qualification of Garland as sheriff; which, as copied, was without date, and stated that Garland produced in court a commission from his excellency Linah Mims lieutenant governor of the commonwealth, appointing him sheriff; that he had theretofore entered into three several bonds, in the penalties and with the conditions required by law, and that he took the several oaths required by law, and was, agreeably to said commission, appointed sheriff of the county. 4. A record of the qualification of Benjamin Harrison as deputy; which, as copied, was also without date, and stated that on the motion of David S. Garland sheriff of the county, Benjamin Harrison and Richard H. Burks were qualified and admitted as deputies *under said Garland. 5. The record of the case of Lynch against Camden, in which the judgment mentioned in the declaration was obtained; shewing, that on the 5th of May 1818 a fieri - facias was issued on the said judgment against Leroy Camden and Jabez Camden: that a return was made thereon in these words— “Executed, 23d May 1818, on one negro boy named Harry, the property of Leroy Camden ; D. bond, and forfeited 25th June 1818. B. Harrison D. S. forD. S. Garland sh’ff that the forthcoming bond was executed only by Leroy Camden and Jabez Camden : that after the same was forfeited, judgment was rendered thereon against Leroy Camden at September term 1818: that upon that judgment a fieri facias issued the 5th of October 1818, returnable to the first monday of December following, which was delivered to Benjamin Harrison, and was returned with this return thereon—“Not time to execute. Alex’r Mundy D. S. for David S. Garland sheriff;” and another fieri facias issued thereon the 4th of January 1819, on which the following return was made—“No effects found. J. S. Dillard D. for J. Dillard that subsequently a judgment was rendered on the forthcoming bond against Jabez Camden, after which a fieri facias issued against both the said Leroy and Jabez the 4th of May 1819, which was returned, “No effects whereon I .can make the money. Wm. Dillard D. S. for J. Dillard sh’ff;” and afterwards a capias ad satisfaciendum issued against them the 10th of June 1819, which was returned “Not found,” and two other writs of fieri facias were issued, which were returned without effect. 6. A sheriff’s ticket in these words: “John Lynch jr. ass’ee of C. Anthony, to the sh’ff Amherst. 1818. To commission on execution v. Camden and bail, - - $15 75 D. bond 63, notice 50, - - 1 13

B. Harrison D. S. Garland sh’ff.” *7. A witness who deposed, among other things, that the execution of the 5th of October 1818 was delivered to the witness by Harrison a few days before November court 1818, which happened on the 16th of that month; that the witness was at that time acting as deputy, for Garland, who was sheriff; that the witness acted by virtue of a contract with Harrison ; that the term of Garland expired at November court 1818, and that Harrison and the witness acted till that time, and then went out of office with Garland. There was other evidence shewing that the original qualification of Garland as sheriff, and of Harrison as deputy, took place in 1816. And the fact that Harrison continued to act as deputy until November term 1818, was shewn as well by his returns on process, as by the testimony of witnesses. Two executions issued on the 7th of October 1818, in other cases, appeared to have been levied by Harrison, one on the 29th of that month, and the other on the 12th of November 1818. And the clerk of Amherst deposed that the deputy sheriffs generally attended a few days after the rising of the court to receive executions; that Harrison was always anxious to take them out, and that the general rule in delivering them out to the deputy sheriffs was, to deliver them in the order in which they stood recorded on the execution book.

The defendants, on their part, introduced evidence for the purpose of shewing that Jabez Camden, at the date of the forthcoming bond, was good and sufficient security for the amount of money mentioned in the said forthcoming bond, and that at the date of the writing presently mentioned, there was some property on which an execution in favour of Lynch might have been levied. (The evidence was very far from establishing clearly the facts which it was designed to establish; it is sufficient however to state here its object and tendency.) The said defendants introduced a writing (that just alluded to) in these words: “The sheriff of Amherst *will please permit the property on which he may levy my execution against Leroy Camden, to remain in his possession until monday next. J. Lynch jr. 10th Nov’r 1818.” The handwriting of Lynch was proved, and the paper was proved to have been delivered by him to Leroy Camden to carry to the sheriff. It was further shewn that in June 1818, Leroy Camden had a boy named Harry, who would have sold for between 300 and 400 dollars. (That, it will be observed, is the name of *347the boy mentioned in the forthcoming bond.)

After all the evidence had been heard, the plaintiff demurred to it. The defendants objected to joining in the demurrer, but their objections were overruled, and they thereupon joined in the same.

The counsel for the plaintiff then tendered to the jury the conditional verdict hereinafter mentioned, to be found by them. Whereupon the counsel for the defendants insisted on submitting the evidence to the jury, that they might weigh the case and ascertain the amount of damages. But the court was of opinion, from the proceedings in this case, that the plaintiff must recover the amount of his debt, or nothing, and that the said evidence could not be urged before the jury in mitigation of damages. To this opinion the defendants excepted.

Thereupon the jury found a conditional verdict (the same which the plaintiff’s counsel had previously tendered) assessing the damages to 358 dollars 99 cents, with interest on 354 dollars 13 cents, part thereof, from the 23d of May 1818, if the court should be of opinion for the plaintiff on the demurrer to evidence.

On the 14th of September 1832, the demurrer to evidence being argued, the court pronounced its opinion thereupon against the defendants. And on the 2d of April 1833, final judgment was rendered for the plaintiff.

To that judgment, on the petition of the defendants, a supersedeas was awarded.

*Stanard for plaintiffs in error.

It was incumbent on the plaintiff, upon the plea of conditions performed, to shew, 1. that the act complained of was committed by one who, at the time, was the sheriff’s lawful deputy; and 2. that it was 'so committed at a time when the sureties in the sheriff’s bond were bound for his acts. The evidence offered to establish these facts must be subjected to those tests which, under the practice of this state and the decisions of this court, are held to be applicable to the evidence of that party who, by demurring, has withdrawn the question of fact from the consideration of that tribunal which is the most proper for deciding the facts. When subjected to these tests, the evidence must be held insufficient. The bond that is produced neither shews when the sheriff came into office, nor how long he was to continue in office, nor indeed that he was ever in office at all. A man may be regularly commissioned and give bond as sheriff, but if he be never sworn into office, the sureties in the bond will hardly be liable for his acts. The sheriff may be bound for his own acts, but the sureties are hound only for the acts of the officer. There must, it is clear, be something besides the bond to establish the fact of the qualification of the sheriff, and the time when it occurred. What is there in this case? An order reciting that he was commissioned by Linah Mims lieutenant governor of the commonwealth; whereas this bond was payable to James P. Preston governor, and executed when he was in office. It may be said that this bond was for the second year of Garland’s sherivalty. If it were, still the necessity of shewing a qualification for the second year is not dispensed with. Commonwealth v. Pairfax & others, 4 Hen. & Munf. 208. But there is no evidence that this bond was for the second year. Besides (supposing it was) when Harrison was first appointed, the appointment could only have been during Garland’s continuance in office under his first ^'commission. Harrison’s term of office must therefore have expired before this bond was executed; and there is no evidence of reappointment. Munford v. Rice and others, 6 Munf. 81.

II. When a judgment is rendered against two or more, and an execution issues upon such judgment against all, which is levied upon the property of one, and the owrner gives bond with adequate security for the forthcoming of the property at the day of sale the forthcoming bond, when forfeited, is in law a satisfaction of the original judgment, to this extent at least, that so long as the bond remains in force and unquashed, no proceedings can be had upon the judgment against any of the parties thereto. Taylor v. Dundass, 1 Wash. 92; Downraaa v. Downfall’s ex’or, 2 Wash. 189; United States v. Graves and others, 2 Brock. 385, 6. In the last case, chief justice Marshall clearly considers that there is no remedy unless equity could interfere; and it must be admitted that it would be very difficult to sustain equitable jurisdiction in such a case. When, then, the sheriff took Jabez Camden as security, he took a person who could clearly not be proceeded against both upon the forthcoming bond and upon the original judgment: if the bond should be forfeited and proceedings had upon that, there could be no execution against him on the original judgment; if on the other hand the bond should be quashed, so as to permit an execution on the original judgment, by the very act of quashing the bond, Jabez Camden would be discharged from liability as an obligor therein. It is apparent, then, that it was no breach of duty in the officer to take him as surety in the forthcoming bond, if, at the time, he was sufficient in point of estate; a matter to be determined upon the evidence.

III. The decision in Perkins and others v. Giles governor, 9 Leigh 397, shews that the court erred in the opinion which it gave as to the damages.

*C. and G. N. Johnson for defendant in error.

On the demurrer to evidence, it will suffice to say that the conclusions of fact must be such as the jury might from a just and reasonable construction have made, and not arbitrary inferences. Stephens v. White, 2 Wash. 211.

II. The material question is, whether the sheriff was justified in taking Jabez Cam*348den as surety in the forthcoming bond. If the law be, chat by levying the execution on the property of one, and taking from him a forthcoming bond, the other is discharged, then the sheriff should be held liable for not levying the execution on the property of the other, as well as of that one. But the law is not so. Where the first execution which issues on a judgment does not produce satisfaction, the statute provides for a new execution in every case except where a capias ad satisfaciendum against two is levied on one, and he is discharged by the act of the plaintiff. 1 R. C. 1819, p. 527, *1*3, 4, p. 528, § 8, and p. 538, *$*33. And the whole course of decision, as well in England as in this country, is, that the judgment is not to be considered satisfied, except in the case just mentioned, until the creditor has received his money or given a release. Where the body of the debtor is taken in execution, the remedy remains in force against every other person bound for the debt. Hayling v. Mulhall, 2 W. Bl. 1235. So likewise where the goods of one obligor are levied upon. Dyke v. Mercer, 2 Show. 394; Clerk v. Withers, 2 Ld. Rayin. 1072; Winston and others v. Whitlocke, 5 Call 435. If a forthcoming bond be taken and forfeited," the forfeited bond is onljr an apparent satisfaction. Taylor v..Dundass, 1 Wash. 92; Downman v. Downman’s ex’or, 2 Wash. 189; Randolph’s adm’x v. Randolph, 3 Rand. 490. The latter case explains the two former, and shews that there is no actual satisfaction until payment is made of the money. It is true that in that case 'the judgment was only against one obligor, whereas in this it was against two, and the '^property of one was taken. But the difference is not material. The principle of the decision is, that the forfeited forthcoming bond is not a satisfaction of the debt, and that the creditor may still have recourse against others previously bound. The law works detriment to no man. Nadin v. Battie &c., 5 East 147. Therefore, where the creditor has not been an actor, but the subject of the law’s action, and has pursued the remedies of the law as far as he can, he will not be prevented from going against those previously bound. There is no case in which, under such circumstances, relief has been denied. Its denial would be manifestly unjust, and against the intention of the legislature. They have taken from the creditor the certain advantage which would result from a sale of the property levied on, and in place of the property have provided for him bond and security. But what benefit does the creditor derive, if, when he gets this securits', all sureties previously bound are discharged? The forthcoming bond is a mere substitute for the property for which it is taken; and as the property would only discharge the judgment so far as money was obtained for it, so the forthcoming bond should only be a discharge so far as money is paid in satisfaction of it. In the case of The United. States v. Graves and others, 2 Brock. 385, 6, the mind of chief justice Marshall seems to have been turned to a remedy in equity. But the principle on which he rested was, that there ought to be a remedy. There can be no occasion to turn the creditor over to equity. Eor a surety is never discharged at law by the act of law.

III. What excuse is offered for the failure to levy, complained of in the second breach? It seems to have been supposed that the creditor had improperly interfered. But it is not proved that any thing more was done in relation to the note, than to write it and deliver it to the defendant.

The probability is that the defendant *never used it. And the case is as if the note had never been written. But it did not, by any possible construction, authorize the sheriff not to levy.

IV. It seems to have been supposed that the plaintiff was negligent in not having the execution levied on a particular slave. But the plaintiff had nothing to do with any particular property. He had only, when one execution was returned, to issue another; and this has been done.

On any view, the plaintiff was entitled to a verdict. Eor there was unquestionable evidence of misconduct in office. The stronger the proof that Harry was liable and might have been taken under execution, the stronger the case made out for the plaintiff.

V. The assessment of damages was no doubt the province of the jury. But the court might instruct the jury -when engaged in the assessment. The only question is whether the instruction was correct. If it had been shewn that the whole debt had not been lost, but only a part, then the jury should only have assessed the damages for the part lost. But here there is no such evidence. The plaintiff seeks to recover on the ground that the whole has been lost by the misconduct of the sheriff in taking insufficient security in the forthcoming bond; and if the allegation be made out, then the proper measure of damages must be the whole debt. The case of Perkins and others v. Giles governor, 9 Leigh 397, is no authority against us. . In an action by an assignee against his assignor, the court would never hesitate to say that the criterion of damages is the amount of the debt lost: and that is all that is done here.

*

He had been counsel for the plaintiffs in error.

†

Forthcoming Bond—Rights of Sureties—Subrogation.—A surety in a forfeited forthcoming bond is a surety for the debt; and when he pays it as such surety, he is entitled to all the rights of the creditor against the original debtor, subsisting at the time he became bound for the debt; and the judgment, for the benefit of the surety so paying, is not extinguished .but transferred with all its obligatory force against the principal, and constitutes a legal lien upon his real estate owned at the date of the judgment, and thereafter acquired. Hill v. Manser, 11 Gratt. 525, citing the principal case; Powell v. White, 11 Leigh 309; Robinson v. Sherman, 2 Gratt. 178; Leake v. Ferguson, 2 Gratt. 419. See *foot-note*to Hill v. Manser, 11 Gratt. 522; Robinson v. Sherman, 2 Gratt. 178. The principal case is- cited ih this connection in Robinson v. Sherman, 2 Gratt. 181; Leake v. Ferguson, 2 Gratt. 431, 434; Coffman v. Hopkins, 75 Va. 648; Dent v. Wait, 9 W. Va. 48. See monographic *note*on “Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11, and mono-graphic *note*on “Statutory Bonds" appended to Goolsby v. Strother, 21 Gratt. 107.

Same—Same—Same.—In Sherman v. Shaver, 75'Va. 10, the court said: “If an execution against principal and surety be levied on property of the principal, and a' third person, at the request of the principal but without the consent or concurrence of the surety, intervene and bind himself as surety in a bond for the forthcoming of the property on the day of sale and the bond be forfeited, although such third person thus becomes bound *as surety for the debt (Garland v. Lynch,*1 *Rob. R.*576), yet he is not entitled on making payment to be substituted for contribution to the original judgment against the-original surety (Givens v. Nelson, 10 Leigh 383; Stout v. Vause, 1 Rob. R. 169, 180).”

Same—Security for Debt—Quashing Bond—Grounds for. —The principal case is cited in Rhea v. Preston, 75 Va. 774, for the proposition that a forfeited forthcoming bond stands as a security for the debt, and though while in force no execution can be taken out or other proceeding be had at law to enforce the original judgment, yet the bond is not an absolute satisfaction. For if it be faulty on its face, or the security when taken be insufficient, or the obligors, though solvent -when the bond is taken, become insolvent afterwards, the plaintiff may, for these or other good reasons, on his motion, have the bond quashed and be restored to his original judgment. And though the bond be not quashed, if it appear that it may properly be, a court of equity, which looks to substance, and when occasion requires, treats that as done which ought to be done, will regard the bond as a nullity, and the original j udgment as in full force. See Jones v. Myrick, 8 Gratt. 179, and *note.*

The principal case is cited in this connection in Cooper v. Daugherty, 85 Va. 351, 7 S. E. Rep. 387.

5ame—Effect of Forfeiture on Original Debtors.— The execution and forfeiture of the forthcoming bond by one of several joint debtors does not utterly discharge the original joint debtors; but if the forthcoming bond proves unavailing, it will still be competent to proceed on the judgment against the other joint debtors, until satisfaction is obtained; and, therefore, the security in a forthcoming bond, given by one, is entitled, on paying the debt, to the remedies of the creditor against the others. Leake v. Ferguson, 2 Gratt. 431, citing, as authority for this statement, the principal case, and Robinson v. Sherman, 2 Gratt. 178.

ALLEN, J.

It has not been contended in argument that the sheriff would be liable, if, in the proper discharge of his duty, he took a delivery bond with security sufficient at the time, and the surety should thereafter becomq insolvent. The law imposes no such responsibility *upon him. It was introduced for the convenience of the owner, and not in ease of the sheriff. It would have been unreasonable, under such circumstances, to require any thing more of the sheriff than to take security good at the time. The act authorizing the sheriff to *349demand a bond of indemnity was for his benefit, to relieve him from his common law liability; and therefore the provision was inserted, that the claimant of the property, upon the execution of the indemnifying bond, should be barred of his action against the sheriff levying the execution, unless the obligors in the bond should become insolvent. In the first breach assigned in this case, it is not averred that the obligors were insolvent when the bond was executed, but that they became insolvent afterwards. This, though necessary to be averred in order to shew that the plaintiff suffered injury, would not of itself constitute any ground of complaint against the sheriff. There must have been some other act, which was improper, and subjected him to the action of the plaintiff; and the loss consequent on that act would respect the damages alone. The facts alleged shew that the sheriff took a codefendant alone as securitj'; and this, it is maintained, was such an improper act as subjected him to the action of the creditor.

To the correct determination of this question it becomes necessary to enquire what effect a delivery bond given b3' one of several defendants, whose property has been levied on, has upon the condition of the other defendants, who do not join in the bond; and what is the nature of the undertaking of the surety in the forthcoming bond. Does a forthcoming bond forfeited constitute an actual satisfaction of the original judgment, so that no further proceedings can be founded on that judgment? If it does—if the remedy of the plaintiff, after a valid forthcoming bond taken and forfeited, is on the bond alone, and that is substituted for the judgment *which is thereby extinguished, one of two consequences must follow: either the sheriff incurs a liability if he omits any of the defendants in the execution, (for by so doing they are discharged and the creditor’s rights impaired;) or if not, then he may receive as security a codefendant who is sufficient in point of estate; for, if not taken as security, he would be discharged, and the plaintiff sustains no injury by his being received as the security.

There is nothing in the act which makes it the duty of the sheriff to require every defendant in the original execution to join in the delivery bond. The law was passed for the benefit of the owner of the goods taken; to enable *him,*at his risk, to retain the possession and use of the goods, and to avoid the expense of their safekeeping until the day of sale. The words relate to the owner, and make it the duty of the sheriff to suffer the goods to remain with him, upon his tendering a bond with sufficient security to have them forthcoming at the day of sale. His right to retain the possession is not dependent on the other parties to the execution. The law respects his condition as owner, and for his convenience in that character, gives him the privilege of retaining possession of his property upon complying with the terms imposed. And the practice has been in conformity with this construction of the act. Several cases have occurred in this court, where the bond was given by one of several defendants; and in no instance has it been held that the bond was defective for that cause. If then a bond may properly be taken from one of several defendants, and the sheriff, upon the tender of such a bond with good security, is bound to receive it, does this bond, when forfeited, actually satisfy the original judgment, and exonerate the other defendants from all further responsibility? It is apparent that if the act is to receive this construction, a provision introduced for the benefit of the debtor may in practice operate *most harshly on the rights of the creditor. A creditor having several persons bound to *him*may, without any default on his part, and whilst in pursuit of a legal recovery, be deprived of all remedy except against the one giving the delivery bond and his surety. And if the surety, though sufficient when taken, should, with the principal obligor, prove insolvent before actual payment, the debt would be lost though the other defendants, remain solvent. I should be unwilling to-come to a conclusion leading to such results, if it can be avoided. Nor do I think any of the cases referred to have established the proposition. They have merely decided that a forfeited forthcoming bond, whilst it remains in force, is- a satisfaction of the judgment, so as to prevent a new execution. To the same extent, it may be said that a ca. sa. executed, or a fi. fa. levied on the property of one, is a satisfaction of the judgment. Whilst the body remains in custody, no new execution can issue against that defendant; but if he dies in custod3, or escapes, the creditor is remitted to his original judgment. And where a fi. fa. is levied on a sufficienc3' of goods, the property of one of the defendants, a new execution cannot issue on that judgment until the levy is exhausted. Blumfield’s case, 5 Co. Rep. 87; Taylor v. Dundass, 1 Wash. 94.

The first and leading casie is Taylor v. Dundass. The bond there in question was a replevy bond. By subsequent cases, however, a replevy bond and a forfeited forthcoming bond seem as to Ihis point to be placed on the same footing: both have the effect of a judgment, the first from the date, the last from the forfeiture. In that case an execution issued and was levied on the property of one defendant, who gave a twelve months replevy bond. Afterwards, but within the year, (as appears from the dates of the executions and order of court,) a second execution issued: and this was quashed on motion, upon the ground that the proceedings under *the first execution were a bar to the second. Judge Pendleton in one place says, that a replevy bond is the same as if the estate had been sold to the amount of the debt, and though it is an indulgence to the defendant, the execution is considered as. *350levied and the judgment discharged. This language, standing alone, would cover the whole ground: but in a subsequent passage the judge qualifies it, by remarking that the replevy bond, whilst the execution remains unquashed, is as complete an execution of the judgment, as if the estate had been sold to the full amount of the judgment. So in Downman v. Downman’s ex’or, 2 Wash. 189, judge Dyons observed, that a forthcoming bond, whilst in force, was a satisfaction of the judgment. Remarks of the same kind will be found in many of the cases since. In Randolph v. Randolph, 3 Rand. 490, judge Green observed, that the only effect of the decisions is that a replevin or forthcoming bond, even if defective, is a bar to any further proceedings on the judgment until quashed.

These authorities leave no doubt that as long as the bond remains in force, it arrests all proceedings on the original judgment. So long, it constitutes a technical satisfaction, and operates, as it respects the other defendants, like a fi. fa. executed on the property of one. But no case has yet decided under what circumstances and for what cause the bond may be quashed, so as /to remit the plaintiff to his original judgment.

The law provides that the creditor, if the bond at any time be quashed as faulty, besides his remedy against the sheriff, may moreover have execution on his original judgment as if such bond had never been given. By this provision, literally construed, the right to quash would seem to be restricted to the case of defects apparent on the bond. That the creditor has not the right, at his own discretion, to quash a good bond, seems to me clear. The bond, at the least, is a substitute for *the levy. When the execution is levied on the property of the principal, if the creditor interferes and releases it, he thereby discharges the surety. Baird v. Rice, 1 Call 18; Bullitt’s ex’ors v. Winstons, 1 Munf. 269. To hold that he could, without good cause, quash the bond which has supplied the place of a levy, and so be remitted to his original judgment and all his remedies to enforce it, would be to authorize him to do indirectly, after the execution of the bond, what he could not do directly, before its execution, without releasing the other defendants. In Hendricks &c. v. Dundass, 2 Wash. 50, the creditor moved to quash the replevy bond, because the execution had been issued without authority. The motion was resisted by the other defendant: but it was not pretended in argument, nor is there any intimation in the opinion of the court, that the creditor had the absolute right to quash without cause. In Jett v. Walker, 1 Rand. 211, on a judgment against two a forthcoming bond had been taken, which was quashed on the motion of the plaintiff. A second execution was levied on the property of the bail, 'who moved to quash it, as having issued irregularly. His motion was overruled, and he appealed. The court held that the appeal extended only to the judgment overruling the motion to quash the second execution; and without deciding whether the appellant would be entitled to a supersedeas to the first judgment, even it was erroneous, affirmed the judgment. By a note of the reporter it appears, that the counsel intimated an intention to apply for a supersedeas to the first judgment, but was informed by the president of the court that the judges had considered the subject, and determined to refuse the supersedeas, on the ground that the bond varied from the execution, and was of course properly quashed. These cases, though not decisive of the very point, tend strongly to prove that the creditor’s right to quash is not unlimited. Nor has it been decided that the creditor *has no right to quash except for apparent defects. The contrary may be implied from the case of Hendricks &c. v. Dundass, above cited. There the motion was made and sustained upon proof that the execution issued without authority. So, I suppose, it would not be doubted that if the sheriff fraudulently received as security a person notoriously insolvent, the court, upon this fact being shewn, would quash the bond; and this notwithstanding the sheriff had made himself liable; for he might be insolvent, and unable to indemnify the plaintiff. Such a bond would, in the words of the act of assembly, be faulty, the law requiring the sheriff to take sufficient security.

If the plaintiff may for the cause just mentioned, or for the reasons appearing in the case of Hendricks &c. v. Dundass, quash upon other grounds than that of apparent defects, may he not do so as well after an award of execution on the bond, as before? The court gives no judgment on the bond; the effect of a judgment is acquired when the bond is forfeited. The bond may be quashed whenever a motion is made for the award of execution, no matter how many terms have intervened since the forfeiture. It may be so quashed as well for defects apparent, as for objections shewn aliunde. Then why should the award of execution change the rights of the parties? It imparts no new character to the judgment; that was complete upon the forfeiture of the bond; and the proceeding to enforce it is *for,*the benefit of all interested. The surety may have been sufficient when taken, but afterwards have become insolvent; or he may have been then insufficient, and the fact unknown to the officer or creditor, or so doubtful in his circumstances as to render it uncertain whether his insufficiency could be < proved. By proceeding on the bond, the creditor avoids delay: if the debt is made, no further question arises; if the obligors prove insolvent and the money cannot be made, that is conclusive ^evidence of the insufficiency of the security. It seems to me, therefore, that after the award of execution, if the execution proves unavailing without any default of the creditor, that furnishes sufficient ground to quash the bond; and that *351the court, upon such proof, should quash it, so as to remit the plaintiff to his original judgment. Any other construction places the creditor who has a joint judgment against his debtors, in a much worse condition than the creditor who has no judgment, or a separate judgment against one. In Dyke v. Mercer, 2 Show. 394, two were bound in a bond jointly and severally, and judgment was obtained in a separate suit against one. A fi. fa. was issued, and a seizure to the value returned, but the property was not sold, nor the money paid. To a second action against the other obligor, this matter was pleaded in bar; but the court determined against the defendant, holding that nothing but actual satisfaction by his co-obligor was sufficient to discharge him. In Winston & al. v. Whitlocke, 5 Call 435, a forthcoming bond having been given by two, execution was awarded and a fi. fa. issued against one of them, under which property was taken; but the fi. fa. was not returned. Upon the authority of Dyke v. Mercer, it was held that these proceedings were no bar to a motion on the bond against the other obligor. Why should the mere form of proceeding affect so materially the right of the creditor? Whether he proceeds by a separate action or a joint action, the object is the same, to obtain actual satisfaction ; and if in the one case he may proceed until that satisfaction is procured, there can be no good reason why a mere technical satisfaction should discharge the other defendants finally in the other case. The point has not been expressly decided in this court; but principles have been established incidentally, which cannot be reconciled with the proposition, that a forfeited forthcoming bond extinguishes the original claim, although it is shewn that the *bond has proved unavailing. Thus in Randolph v. Randolph, 3 Rand. 490, judgment having been rendered against a surety in an obligation, he gave a forthcoming bond, which was forfeited. After many years he paid this bond, and then moved against his principal. The motion was resisted on the ground that the forthcoming bond, when forfeited, satisfied the original judgment; that the surety’s right of action then accrued, and that it was now barred by the lapse of time. The court held, that though the forfeited forthcoming bond arrested all proceedings .on the judgment whilst it remained in force, it did not amount to an actual payment or satisfaction of the debt, so as to bar an action against the other obligors. In Smith &c. v. Triplett &c., 4 Ueigh 590, the assignee of a note obtained judgment against the obligor, who gave a forthcoming bond, upon which execution was awarded; and the obligors proved insolvent. This was held not to be such a satisfaction as precluded the assignee, from resorting to his assignor. There the bond was not defective on its face. By the original judgment, the instrument assigned was merged in a higher security; and if this security was satisfied, either by the forfeited forthcoming bond or the proceedings under it, upon what ground could the assignor be held responsible?

There is but one serious objection to this construction of the law. Where there is an execution against two defendants, bearing towards each other the relation of principal and surety, and the execution is levied on property of the principal sufficient to pay the debt, the surety, if the property were sold, would be relieved. But if a forthcoming bond be executed, and the surety therein, though sufficient when taken, afterwards become insolvent, to hold that the creditor may be permitted to resort to the original judgment, would be to subject the original surety to a loss. To this it may be answered that the surety was guilty of the first default. ^Contracts are made not with a view to their breach, but to their fulfilment. Having engaged to pay the debt, he was bound to comply with his undertaking. His failure to perform his obligation has driven the creditor to the judicial tribunals for redress. If, in the due and regular prosecution of his claim, injury is inflicted on the surety by the operation of law and the act of the principal, over which the creditor could exercise no control, the creditor should not suffer. And as between the two, equally innocent as respects the particular transaction, he should bear the burthen whose original default has resulted in the special injury.

If then the other defendants are still ultimately liable on the judgment, in the event of the insolvency of the obligors in the delivery bond, as I think they are, it becomes necessary to enquire for what the surety in the forthcoming bond is liable. The act provides that if the owner of the goods and chattels taken shall give sufficient security to the sheriff to have them forthcoming on the day of sale, it shall be lawful for the sheriff to take a bond payable to the creditor, reciting the service of the execution, and the amount due thereon, with condition to have the goods forthcoming &c. and then provides that if the owner fails to deliver the goods or to pay the money mentioned in the execution, the bond is to be returned to the office and i have the effect of a judgment. The bond, until forfeited, is part of the execution, collateral to the payment of the debt, and a forfeiture may be saved by a delivery of the goods. It may therefore, in this view, be considered not as a security for the payment of the debt, but for an independent act, the delivery of the property alone. But all the provisions of the law must be adverted to for the purpose of ascertaining the true character of the surety’s undertaking. The bond is a statutorj' bond, and its operation must be determined by reference to the law under which it was taken. The law requires that *the bond shall recite the service of the execution, and the amount due thereon; obviously for the purpose of fixing the extent of the surety’s liability. He cannot discharge *352himself by paying the value of the property to be delivered, if that is less than the amount of the execution. The forfeiture is saved, either by a delivery of the property, or the payment of the money due on the execution. If the value of the property, therefore, exceeds the amount due, a breach of the condition is saved by paying that amount. And execution is to be awarded not for the value of the property, to be ascertained by a jury or in any other way, but for the amount of the execution as recited in the bond. All these provisions shew that the surety, though he may discharge himself by delivering the property before forfeiture, also undertakes for the debt in the event of a failure to deliver- the property. His undertaking bears a double aspect, and the alternative is with him, not the creditor. If he chooses to deliver the property, he is discharged; having elected to do that which constitutes his undertaking collateral to the payment of the debt. Failing to deliver, he elects the other alternative which his undertaking embraced, the payment of the debt. In entering into the bond, therefore, he becomes (as it seems to me) a surety for the debt, with the power to relieve himself from that liability by doing another act within the period prescribed. If this be the true character of his undertaking, and if, as I have before attempted to shew, all the original defendants continue ultimately responsible until the actual payment, notwithstanding the intermediate execution and forfeiture of the forthcoming bond, then it follows that such a defendant is not sufficient security. He is already bound for the debt, and continues so bound until discharged by actual satisfaction of the judgment. He cannot therefore be considered as sufficient security, or security in any sense, for that for which he already stands *bound by the judgment; and the sheriff is not warranted in receiving him.

I therefore think, that as the evidence demurred to in this case proves that the surety in the forthcoming bond was a defendant in the original judgment, that evidence supports the issue charging the sheriff with a breach of duty in taking him as security; that whether he was sufficient in point of estate or not, in point of law he was no security.

To sustain the issue on the part of the plaintiff, it was incumbent on him to prove that Garland was sheriff on the 23d of May 1818, that the bond sued on covered his transactions for that year, and that Harrison, who levied the execution, was his deputy. The plaintiff offered in evidence an order shewing the qualification of Garland as sheriff, under a commission from Linah Mims lieutenant governor, and also an order shewing the qualification of Harrison as his deputy. These orders are copied into the record without their dates, but I do not think the imperfection of the_ record in this respect material. The plaintiff also offered the official bond of Garland, executed at September court 1817. The condition recites that Garland was appointed sheriff by commission from the governor; and under that commission the bond ivas taken. This, therefore, must have been the bond given for the second year. And it seems from the evidence, and the returns of his deputy Harrison on process, that under this second commission he continued in office until November 1818. There is no conflict in the evidence in reference to this point; and the orders, bond, and returns on the process clearly establish that Garland was the sheriff, and Harrison his acting deputy, during the period referred to.

The defendants in their fourth plea alleged that the debt was lost by the negligence of the creditor. In the view already taken of the rights and duties of the respective parties, as growing out of the forthcoming *bond, I have attempted to shew that the creditor has not the absolute right to quash the bond, where it is not defective on its face, and has been regularly taken. If, however, the codefendant in the original judgment was not a legal,, security, the bond might have been quashed for this defect, and the creditor, besides his remedy against the sheriff, would have been at once remitted to his original judgment. He elected to pursue the bond. Of this the sheriff could not complain, unless the debt was afterwards lost by the negligence or misconduct of the creditor. The defendants have introduced evidence tending to prove that there was property of Leroy Camden, on which the sheriff *might*ha.ve levied, and that he was arrested by the improper interference of the creditor. The. only interference consisted in the written memorandum given by Lynch to Leroy Camden on the 10th of November 1818, four days before the sheriff went out of office. It does not appear that this memorandum ever came to the sheriff’s hands; and though, as against the demur-rant, a jury might fairly have inferred that it did, as it was produced in evidence by the defendants, yet the memorandum did not warrant the sheriff in failing to levy; it merely authorized him to permit the property on which he might levy to remain in t.he possession of Leroy Camden until the succeeding monday. This, it seems to me, did not justify the sheriff in omitting entirely to levy. He had already incurred a liability by taking improper security in the forthcoming bond. For his own protection, it was his duty at least to levy the execution, if there was a sufficiency of property; and then, if loss ensued in consequence of this interference of the creditor, it must have been borne by him. The facts fairly deducible from this evidence do not, as it seems to me, make out a bar to the action. They tend to prove that part of the debt might possibly have been made, and therefore were proper for che consideration of the jury in assessing *the damages, but do not defeat the plaintiff’s action.

The second breach avers the delivery of the execution on the forthcoming ' bond *353against Beroy Camden to the sheriff, and that the sheriff could have levied the execution on sufficient property of Beroy Camden to satisfy it, but failed and refused to levy the same. The execution referred to was returned “Not time to execute.” The breach is imperfectly assigned, and it is somewhat doubtful whether it was intended to aver that the defendant had sufficient property upon which the sheriff might have levied, or that he received the execution in time to levy the same. If the former was intended the record presents the parties as relying on the same evidence; the sheriff, as proving that there was property sufficient to have satisfied the debt, if the creditor had been diligent; and the creditor, as establishing the same fact, to prove misconduct in the sheriff. Booking at the breach in connexion with the execution set out and the return, it seems to have been intended to put in issue the truth of the return, and to aver that the execution came to the sheriff’s hands in time to levy it. So considering it, the evidence, it seems to me, does not prove the issue. The execution is dated the 5th of October 1818; but there is no proof shewing when it was delivered to the sheriff, or returned. It seems that other executions against the same defendant, dated afterwards, did come to the sheriff’s hands, and were levied before the return day of the one in question; and the clerk proves that the sheriff was in the habit of calling at the office and taking out executions. I do not think this sufficient, in opposition to the return of a sworn officer, to prove the return false. The affirmative was with the plaintiff, and he demurs. He might and should have proved when the execution was delivered. The jury would not have been justified in inferring from the evidence *adduced that such delivery was in time, against the return; and the plaintiff cannot, by demurring, deprive the defendants of the benefit of it. According to the well established rule, he is to be considered as waiving all his evidence which conflicts with that of the defendants.

No evidence was given to sustain the issue on the third breach. The law being, as I conceive, for the plaintiff on the facts, as proving the issue made under the first breach, if the case stopped here, the plaintiff would be entitled to an affirmance of the judgment. But after the demurrer to evidence was joined, (the court having ruled the defendants to do so,) the plaintiff’s counsel tendered a conditional verdict for the amount of the debt: the defendants objected, contending that the quantum of damages was a question to be decided by the jury, and insisted on submitting the evidence to the jury; but the court was of opinion that, from the pleadings, the plaintiff must recover the a *mount*of his debt, or nothing, and that said evidence could not be urged before the jury in mitigation of damages; and thereupon the jury signed the verdict. To this decision the defendants excepted. This was an action on the official bond, against the sheriff and his. sureties; and the case of Perkins and others v. Giles governor, 9 Leigh 397, decides, that in such an action the recovery is confined to the damages sustained, and these may amount to the debt, or may amount to less. The sheriff having levied, and having released the goods by taking a defective bond, might, if the debt were lost in consequence of this discharge, be made liable for the whole. But even in an action on the case against him alone, the recovery would be limited to the amount of the injury sustained. In this case, the creditor having proceeded on the bond, it was competent to shew that the debt, or part of it, was made, or that the debt, or a portion of it, might have been collected if the creditor *had not interfered, or that loss has resulted from his culpable neglect. Such evidence would be proper for the consideration of the jury on the question of damages. The only points submitted to the decision of the court upon the demurrer were, that the facts shew a cause of action against the sheriff, and do not shew that the debt was lost through the negligence of the creditor. The plaintiff was therefore entitled to a recovery; but the extent of that recovery must depend on the evidence as to the injury sustained. This the jury may hear and consider in assessing the damages. It may be entitled to little weight; but of this the jury are the exclusive judges, and the.,plaintiff cannot, by demurring, deprive the defendants of the benefit of it. The opinion of the court took from the jury all discretion, and fixed the damages at the amount of the debt. In this, and in excluding the testimony offered from the consideration of the jury' on the quantum of damages, it seems to me the court erred; and for this cause the judgment should be reversed, the verdict set aside, and a nrw writ of enquiry awarded.

The other judges concurred. And the president stated that he was authorized by judge Brooke to say, that if present he would also have concurred.

Judgment reversed.