
    MATTHEW HUBERT vs. McGAHEY et al.
    A levy of an/sxecution upon the first judgment, and loss of the property by the neglect of tho Sheriff" presents no ground for quashing another execution issued upon another judgment on the forthcoming bond.
   OPINION OF THE COURT — by txie

Hon. GEO. WINCHESTER.

The facts of this case, as contained in the record only, of the petition, the execution, the judgment, and bill of exceptions are,

That an execution was originally issued upon a judgment against Mc-Gahey, and was levied upon a negro slave named Sylvia.

That Richard H. Spears gave a bond with Eugene McGee his security for the trial of the right of property in the said slave Sylvia.

That upon a determination of the right in favor of the Plaintiff in the execution; an execution issued upon the bond, as forfeited against Spears and Magee; and was levied on the said slave Sylvia, who, after the levy was left by the Sheriff in the possession of one Freeny, and before the day of sale was drowned by accident in Pearl River.

That another levy was then made by the Sheriff and a forthcoming bond given, and that an execution was afterwards issued upon the forthcoming bond as forfeited against Magee, 8pears and Whitehead, upon which execution, a supersedeas was obtained, and a motion was made at the ensuing term to quash this last execution; upon the ground that credit ought to have been allowed upon it for.the value of the slave Sylvia, as-by the default and neglect of duty in the Sheriff, in suffering her to remain after the levy in possession of Freeny, and not taking her into custody he was rendered liable for her loss.

The court overruled the motion, to which exceptions-were filed, and an appeal taken. McGahey is improperly entered a party to this mo tion, as he is no party to the forthcoming .bond, so far as appears from the record, or to the execution-upon the -motion.

■Had the motion been to quash the forthcoming bond given upon the 2nd levy of the 2nd execution; the question would -properly have arisen, whether the 'Sheriff was authorised to take the forthcoming bend, upon the ground of default and liability from the loss of the slave Sylvia.

¡But here it appears the execution issued upon a forthcoming bond forfeited after the levy upon and loss of the slave.

The forthcoming- bond upon being forfeited, became a statutory judgment; and the execution issued upon it was in no part satisfied by a levy of a former execution upon a former judgment upon the slave Sylvia.

Had the whole record been before us, any error appearing, we might render the proper judgment upon the whole face of the record. But we have only an appeal, and the record upon the motion to quash the execution -upon which there appears no grounds to sustain the motion. We are therefore .of opinion the .court below were right and affirm the judgment  