
    Wheeling.
    S. G. Shaw, et al. vs. J. D. McCullough.
    January Term, 1869.
    Parties who voluntarily enter into a forthcoming bond are estopped from all inquiry into the regularity and validity of the 'levy of the writ of fieri facias upon which the bond was taken.
    J. D. McCullough obtained a judgment, in the circuit court of Mason county, against W. L. Maddy, G. W. Gar-gill and S. G. Shaw. A writ of fieri facias was issued on the 14th day of May, 1867. A forthcoming bond was taken forfeited and quashed. A new bond was taken which was also forfeited and returned to the clerk’s office. The writ of fieri facias had been levied on the property of Shaw ou the 3d day of July, 1867. On the 31st day of October, 1867, the plaintiff in the writ moved the, court for a judgment on the bond, -which had been lost or mislaid, which the defendants resisted, and the court quashed the bond, and ordered that another writ of fieri facias be issued, dated on the 14th day of May, 1867, to be proceeded on according to law. The plaintiff proceeded on the levy made on the 3d day of July, 1867, and took a forthcoming bond from the defendant Shaw and one G. B. Thomas, dated December 2d, 1867. The defendant resisted a motion for a judgment on this latter bond, it being forfeited, because the 1 evy was made after the return day of the writ. The court overruled the motion and gave judgment, and defendants applied to this court for a supersedeas.
    G. W. Jeffers for plaintiffs in error.
    
      M. Mlmiston for defendant in error.
   BERKSHIRE, J.

The judgment on the forthcoming bond in this case was resisted by the obligors therein, solely on the alleged invalidity of the levy of the execution upon which the bond was taken, and the only defense made was a motion to quash the levy of the execution, which levy, it was insisted, was in fact made after the return day of 'said execution.

The condition of the bond recites in substance that a writ oí fieri facias had issued from the clerk’s office of the circuit court of Mason county upon a judgment in favor of the defendant in error against the plaintiffs in error, S. G. Shaw and two others named therein, which writ was directed to the sheriff of Mason County, and that C. Shrewsbury, slier-iff of said county, had taken certain property therein described, belonging to said Shaw, to satisfy the said execution, &c.

The obligors having voluntarily executed the bond, I think they are precluded and estopped from all inquiry as to the regularity and validity of the levy of the execution upon which it was taken, and that the circuit court did not erf in rendering the judgment complained of. Downman, ex’or vs. Downman, 2 Call, 426; Carper and others vs. McDowell, 5 Grat., 212; Cox and others vs. Thomas’ adm’rs, 9 Grat., 312; Cecil vs. Everly and others, 10 Grat., 198; 1 Greenl. Ev., sections 22, 26; 4 Kent, 261, note.

I am of opinion to affirm the judgment, with costs and damages.

The other judges concurred.

Judgment aeeirmed.  