of H. the sheriff levied the execution, and took a forthcoming bond, payable to H. The bond held fatally defective, and quashed, the act expressly requiring that the bond should be taken payable to the creditor. Meze v. Howver, i Leigh, 442. If taken payable to the sheriff or other officer, instead of to the creditor, sheriff, &c., may maintain an action of debt on it. Beale v. Downman, &c. 1 Call, 249; Johnstons v. Meriwether, 3 Call, 523. 'Tis not essential that it should be recited in the condition, in express terms, that the execution was levied on the defendant's property, the fact sufficiently appearing therein. Lewis v. Thompson et al. 2 H. & M. 100; Bronaughs v. Freeman's ex'r, 2 Munf. 266.

Fi. fa. against A. T. & H. Forthcoming bond taken, the condition whereof does not distinctly state to which of the three defendants the property taken in execution belonged, and omits to state that it was restored to the debtor: the bond held good. Harpers et al. v. Patton, 1 Leigh, 306.

By a fi. fa. the sheriff is commanded to cause principal, interest and costs to be levied of the goods and chattels of J. W. deceased, in the hands of S. H. his administrator, if so much thereof he hath, but if not, then out of the goods and chattels of S. H. There being no goods and chattels of J. W. in the hands of S. H., the sheriff levies the execution on the individual property of S. H., and takes a forthcoming bond, which recites the execution as being against the goods and chattels of S. H. administrator of J. W. deceased: Held, there is no substantial variance between the execution and the recital thereof in the forthcoming bond. Hairston v. Woods, 9 Leigh, 308.

(p) The bond need not designate a place of sale. Burwell v. Court, 1 Wash. 254; nor, that the time appointed for the delivery of the property, is that at which the sale is to take place. Wood v. Davis, 1 Wash. 69; though it should be certain as to the time and place of delivery. Irvin et al. v. Eldridge et al. 1 Wash. 161.

To avoid the forfeiture of the bond, the property must be delivered at such time, as it may be legally sold. Therefore, where the property was not delivered until after 4 o'clock of the day of sale, (the act of 1821 being in force, see ante, No. 17,) the bond was forfeited. M'Kinster et al. v. Garrott et al. 3 Rand. 554.

(q) The lien of the plaintiff, acquired by the levying of the fi. fa., is not impaired by the defendant's availing himself of the provisions of this section; the property is sub

ject to the operation of the writ, until the forthcoming bond be actually forfeited. Therefore, the property thus restored, is not liable to a second execution, to the injury of the first, so long as the condition of the bond may be complied with. The security to the bond has a right to deliver up the property according to the condition, though he must not violate the peace in possessing himself of it. If the officer, before the forfeiture of the bond, accept the same property from the defendant in discharge of his body from another execution, and prevent the security from complying with the condition by delivering it on the day of sale, the security will be relieved by a court of equity, on a bill for discovery and injunction, who will perpetually enjoin the judgment against the security on the bond, as unconscionable against him, leaving the plaintiff in that judgment, to his remedy against the officer, and the officer to his remedy against those who indemnified him, or to whom he paid the money on the second execution. The plaintiff in the second execution need not be made a party, the security wanting nothing from him. Lusk v. Ramsay, 3 Munf. 417-457, Cabell, J. dissenting. This is a leading case, in which the effect of a forthcoming bond before its forfeiture, was for the first time solemnly considered by the court. See Roane, J. opn. for a review of the Virginia law of Executions, 439-456; and see Hogan v. Lucas, 10 Peters, 400.

(r) To save the penalty, this condition must be strictly performed; the non-delivery of a part of the property, however minute, is a forfeiture of the bond. And it will not be relieved against, though the non-delivery was owing to an accident, (as the absconding of a slave, &c.) the property being at the defendant's risk, who undertakes that it shall be delivered. Cole v. Fenwick, 1 Gil. R. 134-142. This case distinguished from Lusk v. Ramsay, 140. The officer may, however, receive and sell the part delivered, and credit the amount thereof on the execution. Pleasants et al. v. Lewis, 1 Wash. 273; Cole v. Fenwick, 1 Gil. R. 135, 139.

The penalty may be saved by obtaining an injunction before the day of sale; but, if the bond be forfeited before the injunction issues, it will not be discharged thereby. Wilson v. Stevenson, 2 Call, 217. And the penalty may be saved by obtaining a supersedeas to the judgment before the day of sale. And if the supersedeas be delivered to the sheriff or officer on the day of sale, though the property be actually in his hands

in discharge of the condition of the bond, if it be not sold, he ought to restore it to the owner. Rucker v. Harrison, 6 Munf. 181. The endorsement on the bond by the sheriff, "that the property therein mentioned was not delivered on the day appointed for the sale," is sufficient evidence of the breach. Nicolas v. Fletcher, 1 Wash. 330.

(s) The fee, and the sheriff's commissions, may be included therein. Bronaughs v. Freeman's ex'r, 2 Munf. 266; and see Bernard v. Scott's adm'r, 3 Rand. 522.

(t) 'Tis not essential that the bond should be filed in the clerk's office, in order to warrant a motion for an execution. Where the bond was delivered by the sheriff to the plaintiff who gave notice to the defendant of motion thereon, the court awarded execution, though it was objected to, on the ground that it had not been filed, &c. according to law, and the court of appeals affirmed the judgment. Eppes's ex'rs v. Colley, 2 Munf. 523.

It seems that a forthcoming bond has not the force of a judgment, till it is returned forfeited, and filed in the clerk's office; and even after it is filed, it is only in a partial sense that it has the force of a judgment before execution upon it is awarded. Lipscomb's adm`r v. Davis's adm'r, 4 Leigh, 303. See post. tit. LIMITATION, No. 5, note (e).

If the clerk of the court alter a forthcoming bond, it will not prejudice the plaintiff; but the bond will be restored to what it originally was. Buchanan v. Maynadier, 6 Call, 1.

(4) Robertson, executor of Cole, recovers judgment against Claiborne, and sues out execution thereon; before the execution is delivered to the sheriff, Robertson dies; the execution being then delivered to the sheriff, he levies it on defendant's property, and takes a forthcoming bond, payable to Robertson, executor of Cole: Held, execution properly levied, and forthcoming bond correctly taken, and that the bond belonged to Cole's estate, whose representative was entitled to move thereon, and not the representative of Robertson. Turnbull, ex'r, &c. v. Claibornes, 3 Leigh, 392.

(3) If the court, instead of awarding execution on the forthcoming bond, enter judgment, that the plaintiff recover the debt against the defendant, 'tis sufficient in substance, though irregular in form. Harpers et al. v. Patton, 1 Leigh, 306.

(u) If there be a variance between the

judgment on the forthcoming bond and the execution, the defendant to avail himself thereof should put the execution on the record by bill of exceptions or otherwise; he cannot take the exception for the first time in the appellate court. Bronaughs v. Freeman's ex'r, 2 Munf. 266; Burke et al. v. Levy's ex'r, 1 Randolph, 1.

On a motion to quash a forthcoming bond for defects apparent on the face of the execution on which it was taken, an appellate ⚫ court will regard the execution as part of the record, though not made so by any express order to that effect. Couch v. Miller, 2 Leigh, 545.

If a forthcoming bond recites an execution, and that property has been taken to satisfy it, a variance between the sheriff's return and the bond, provided the bond issues with the execution, is unimportant. Buchanan v. Maynadier, 6 Call, 1.

If the execution is against two, and the forthcoming bond recites in the condition that an execution had issued against one only, the bond should be quashed. Jett v. Walker, 1 Randolph, 211.

If the bond be taken for a greater sum than is warranted by the execution, the plaintiff by releasing the excess may obtain judgment thereon for the correct amount. Scott v. Hornsby, 1 Call, 41. And if the judgment be given on the bond thus defective, the plaintiff by releasing the excess during the same term will thereby cure the error and validate the judgment. Bell et al. v. Marr, 1 Call, 47.

A fi. fa. directed to the sheriff of county, but delivered to the serjeant of L., who takes a forthcoming bond on it, reciting that the fi. fa. was directed to the serjeant. Held, bond radically variant from the execution, and to be quashed. Couch v. Miller, 2 Leigh, 545; See Hairston v. Woods, 9 Leigh, 308.

If on motion on a forthcoming bond the defendant pleads non est factum, concluding to the country, 'tis discretionary with the court to render judgment without the intervention of a jury, or to submit the issue to a jury. Burke et al. v. Levy's ex'r, 1 Randolph, 1, on the principle of the distinction taken in Watson v. Alexander, 1 Wash. 356. It is competent to the obligors in a forthcoming bond to move to quash it for irregularity. Couch v. Miller, 2 Leigh, 545.

No formal issue need he joined on a motion on a forthcoming bond; the pleadings may be ore tenus, and the court may pro

,

(y) The sheriff having taken goods under a fi. fa. is not justifiable in selling them greatly under their value, though to the highest bidder. If he cannot obtain a reasonable price, he should return, that they remain in his hands for want of buyers; but, on his receipt of a venditioni exponas, 'tis his duty to "sell for the best price he can obtain," which is the meaning of that writ. Knightley v. Birch et al. Ld. Ellenborough, C. J. 3 Campb. Cas. 523.

And see M'Donald v. Neilson, 2 Cowen, 139, 6 Johns. Ch. R. 201. A sheriff interested in an execution, cannot lawfully levy it himself. If he be not interested in the debt, can he become the purchaser in a sale made by himself? A sale by sheriff will be vacated, if he raises doubts, or makes impressions, unfavourable to a fair sale, and then buys in the property at an underrate. Such a sale will be void, if the sheriff is the only bidder, or if another bids only to give a colour of fairness to the sale. Carter & al. v. Harris, 4 Rand. 199. In this case, Carr, J. stated as his impression, without intending positively to decide, that a sheriff who is selling property under an execution, though he has no sort of interest in the debt, cannot legally buy of himself, p. 204.

"The plaintiff in actions of detinue, after judgment rendered therein, in any of the courts of this commonwealth, may sue out, and prosecute at his election, either a distringas, or an execution, for the specific property, if to be found, or any other execution necessary to recover the alternative value thereof, now authorized by law upon other judgments. And if the plaintiff should sue out one or more executions, upon the same judgment, at the same time,

or before the return day of the first execution which may have issued, the clerk shall tax the costs of but one of the said executions against the defendant, and charge the costs of issuing such other executions as aforesaid to the plaintiff." Act of March 13, 1839, c. 69, p. 44.

(z) On a distringas returned executed, but without satisfaction, the court, on motion of the plaintiff, will direct the distringas to be superseded, so far as it related to the specific property, and to be executed as to the alternative value. After a distringas has been executed, without satisfaction, or superseded as to the specific property, and directed to be executed as to the alternative value, if it appear to the court, that, in consequence of the defendant's persisting in withholding the specific property, the plaintiff cannot get it by distringas, a ca. sa. or fi. fa. may be issued for the alternative value. The defendant need not have notice of these several motions. Garland v. Bugg, 5 Munf. 166.

On a distringas fi. fa. the sheriff cannot distrain the very property for which the execution issued; nor can he seize and sell it to pay the damages mentioned in the execution; for that would be to sell the plaintiff's own property to pay a debt due to himself. Jordan's adm'r v. Williams, 3 Rand. 501.

In scire facias on a recognizance of special bail in detinue, it is not necessary, that the scire facias should shew, that the execution against the principal had been superseded for the specific thing, and given for the alternative value; and sci. fa. omitting to state such matter is good on general demurrer. Cloud v. Catlett's ex'r, 4 Leigh, 462.