
    Lipscomb’s Adm'r v. Davis’s Adm’r.
    February, 1833.
    (Absent Bhookh, J.)
    Debt on Judgment-Statute oí Limitations — Effect as to Forthcoming Bond. — The statute of limitations, 1 Rev. Code, ch. 128, § 5, whereby the remedy on a judgment by debt or scire (acias is limited to ten years, is no bar to a motion on a forthcoming bond of more than ten years standing.
    Forthcoming Bond — When Has Force of a Judgment. —It seems, that a forthcoming bond has not the force of a judgment, till it is returned forfeited and hied in the clerk's oíñce; 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.
    B. Davis administratrix of R. Davis deceased, having, in July 1806, sued out a writ of fieri facias, upon a judgment recovered by her in the county court of KingWilliam, against R. Madison and T. Butler, and this execution having been duly levied by the sheriff on the property of Madison, he with M. Lipscomb his surety, gave a forthcoming bond dated the 8lh July 1806, payable to the administratrix, for the forthcoming and delivery of the property at the day and place appointed for the sale thereof. The sheriff made return upon the execution, that he had levied it, and had taken a forthcoming bond, which had “not been complied with,” but there had come to his hands a subpoena in chancery returnable to the ensuing August term of the county court, with an injunction to stay proceedings as to part of the debt.’ Whether the forthcoming bond was returned with the execution, or not, did not appear.
    *Henry Davis, the administrator of B. Davis the obligee in this bond, in 1826, gave a notice to the administrator of Lipscomb, the surety therein bound, of a motion to be made in the county court at its July term of that year, for an award of execution on the forthcoming bond. The motion was made accordingly; but the' county court, being of opinion that recovery on the bond was barred by the statute of limitations, overruled it, and gave judgment for the defendant; from which the plaintiff appealed to the circuit court, which reversed the judgment, and remanded the cause to the county court, with directions, in substance, to disregard the bar of the statute of limitations. And then Lipscomb’s administrator appealed to this court.
    The cause was argued here, by Johnson for the appellant, and Claiborne for the appellee.
    As the statute of executions, which authorizes the taking of forthcoming bonds for the delivery of property taken in execution at the day and place of sale (1 Rev. Code, ch. 134, 'i 16, p. S30,) provides, that the sheriff shall return such bond, if forfeited, to the clerk of the court from which the execution issued, there to be safely kept, and to have the force of a judgment; and as the statute of limitations (Id. ch. 128, § 5, p. 489,) limits the remedy upon judgments, by scire facias or action of debt, to ten years; the question discussed at the bar, was, whether the motion on this forthcoming bond was barred by the statute?
    
      
      Forthcoming Bond — When St Has the Force of a Judgment. — A forfeited, forthcoming bond has the force of a judgment only from the time the bond was returned to the clerk's office. Cabell v. Given, 30 W. Va. 760, 5 S. E. Rep. 442 citing the principal case at page 770. See also, citing the principal case, Allen v. Hart, 18 Gratt. 734. See monographic notes on “Statutory Bonds’’ appended to Goolsby v. Strother. 21 Gratt. 107, and “Judgments" appended to Smith v. Charlton. 7 Gratt. 425.
    
    
      
       It appeared, that this suit in chancery, and the injunction awarded therein, remained unnoticed by both of the parties and the court, till September term 1818, when the injunction was dissolved. But this fact was not regularly stated as part of the county court record; and, in the view of the case taken by this court, was wholly immaterial. — Note in Original Edition,
    
   TUCKER, P.

This case turns upon the question, whether the Sth section of the statute of limitations applies to motions upon forthcoming bonds. Eor although, if no reason had been assigned for the judgment, we must have affirmed it, as there is no bill of exceptions, yet as the county court rests its decision upon the statute of limitations, it must be reversed if there be no part of that statute applicable to the case. It is contended to be within the Sth section

relating to judgments.

*The statute of executions, it is true, provides that the officer taking a forthcoming bond shall return it to the clerk’s office, to be there safely kept, and to have the force of a judgment. The filing previous to the motion, is not indeed essential to it, Eppes’s ex’ors v. Colley, 2 Munf. S23, but the bond must be filed when the judgment is given, and until filed, it will not, I presume, have the force of a judgment. Were it otherwise, these newlj' created judgments, instead of being deposited in a fixed and known office, for examination and as notice to all concerned, would be ambulatory in the pockets of the plaintiffs or the sheriffs, to the great prejudice of executors and administrators, who must"look to them as debts of superi-our dignity, and to the entrapping of purchasers of the lands of the debtor, or his sureties, which would be overreached by these judgments in abmuscade. I am inclined, therefore, to think, that the bond can only have the force of a judgment after it has been filed; and as this bond does not appear to have been filed until the motion, the statute could not even have commenced running, when the court admitted it to be a bar of the demand. When execution has been awarded, then indeed the case is within the principle, and perhaps within the letter of the statute; and if the plaintiff omits to take out execution for ten j’ears, his remedy is gone forever.

Admitting, however, that the bond has, to some intents, the force of a judgment as soon as it is filed, I think it obvious, that it has not all the effect of a judgment until there has been an award of execution. No execution can be sued on it, at the mere will of the party; the authority of the court must first be obtained by motion. And even after the lapse of a year, that authority may be obtained by motion. Moreover, it cannot be obtained by scire facias, but the motion and the action of debt are the only remedies. Then, again, though the statute gives to the bond the force of a judgment, still it looks upon it, until execution has been awarded, in a far different light. A judgment is certain, fixed and conclusive. It can only be controverted *by a proceeding in error; and execution is accordingly awarded upon the demand of the party, without the authority or leave of the court. And, as he has this uncontrolled power-to pursue his debtor by execution, a presumption of payment arises from his failure to do so. The forthcoming bond, on the other hand, is not final and conclusive. It was foreseen that these instruments, taken by ministerial officers, would be exceedingly liable to errors, and hence the intervention of the court was required, to ascertain the validity of this new species of judgment. No execution can issue upon it but on motion; for the regularity of the bond may be questioned, a performance of its conditions averred, even .the execution of it denied. It has not, therefore, until the award of execution, the most important characteristics of a judgment Nor does an equally strong presumption arise from the failure to move for an award of execution, as from a failure to sue out execution. To the latter there is no conceivable impediment. To the former there may be; as, for instance, the difficuly of finding the defendant, or his absence from the country, and the like; difficulties, which, if the case is within the Sth section of the statute of limitations, from no excuse for delay, since the bar of that section is absolute. There is yet another consideration : if a forthcoming bond be faulty, an action of debt may be brought upon it; which is clearly not within the statute. Has not the plaintiff the same right if the bond is good? If he chooses to bring debt upon the bond, for the purpose of holding his adversary to bail, instead of serving a notice on him, which might have the effect of a notice to abscond, could his right be denied? And if the action would lie, could it be barred by the Sth section of the statute, when the party has elected to consider the bond, as a common law bond, and not as a judgment? I should think not. And, upon the whole, I am well satisfied that this provision of the statute of limitations does not apply to a forthcoming bond before the award of execution. But when upon motion, execution is awarded, it acquires all the ^characteristics of a judgment, and from that moment is within the statute. The party can never after elect to consider it as a common law bond; he has fixed its character as a judgment; he can now take out execution at his pleasure. If he fails to do so within the year, he is driven to his scire facias; and if his failure continues for ten years, he is barred forever.

The other judges concurred. Judgment of the circuit court affirmed.  