
    Turnbull, Ex’or &c. v. Claibornes.
    December, 1831.
    (Absent Tucker, P.)
    Executions — Levy after Death of Plaintiff — Validity— Case at Bar, — Robertson ex’or 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 property of defendant, and takes a forthcomingbond payable to Robertson ex’or of Colé: Held, the execution was properly levied, though Robertson was dead before it was delivered, and the forthcoming bond was rightly taken to Robertson as ex’or, and was good.
    Forthcoming Bond — Motion on — Case at Bar. — A motion for award of execution on the forthcoming bond was made by Turnbull ex’or of Robertson who was ex’or of Cole; Held, the forthcoming bond belonged to Cole’s estate, and Turnbull was entitled to the motion, and to award of execution on the bond, as the representative of Cole, not as the representative of Robertson.
    Robertson executor of Cole recovered judgment against P. Claiborne administrator with the will annexed of R. Claiborne, in the circuit court of Dinwiddie, and sued out a writ of fieri facias thereon, and delivered the process to the sheriff. The sheriff levied the execution on property belonging to the estate of R. Claiborne, in the hands of the defendant, his administrator; who gave a forthcoming bond with surety, payable to Robertson executor of Cole, for the delivery of the property to the sheriff, at the day and place appointed for the sale thereof to satisfy the execution. The bond was returned “forfeited.” The plaintiff Robertson *died after the execution was delivered to the sheriff, but before it was levied, and, consequently, before the forthcoming bond was executed. Turnbull, being the executor of Robertson who was executor of Cole, made a motion in the circuit court, for award of execution on the forthcoming bond; but, the fact of Robertson’s death before the levying of the fieri facias and the execution of the bond being proved, the court not only refused to award execution on the bond, but quashed both the bond and the fieri facias. Turnbull applied to this court for a super-deas to the judgment, which was allowed.
    Allison and Leigh for plaintiff in error.
    Johnson for defendants.
    
      
       Executions. — See monographic note on “Executions” appended to Paine v. Tutwiler, 37 Gratt. 440.
    
    
      
       Forthcoming Bond. — The principal case is cited in Van Winkle v. Blackford, 28 W. Va. 690. See mono-graphic note on "Statutory B.onas” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   CABELL, J.

The first question is, whether the sheriff could properly proceed to levy the execution after the death of the plaintiff Robertson? In Clerk v. Withers, 2 Ld. Raym. 1072, 1 Salk. 322, 6 Mod. 290, it was decided, that a sheriff having levied an execution might go on to sell, notwithstanding the subsequent death of the plaintiff. The principles on which that case was decided, have been uniformly considered as authorizing the sheriff to levy, after the plaintiff’s death, an execution which bad issued before. At common law, a fieri facias bound the goods from its teste; and though a subsequent statute declared, that it should bind only from the time it was delivered to the sheriff, yet it was held, that that was for the benefit of purchasers for valuable consideration, and did not change the rights of the parties. The plaintiff, therefore, so far as the defendant was concerned, acquired a lien on the property, from the date of the execution ; and as the sheriff derived his authority from the writ, and as the execution is an intire thing, the sheriff might proceed to levy and sell, notwithstanding the death of either party. 2 Bac. Abr. Execution, C. 4, p. 716; Tidd’s prac. 916; 1 Archb. prac. 260.

*If the sheriff was right in levying the execution, he was, of course, bound to receive the forthcoming bond. And I conceive it perfect^ clear, that if he is to take the bond, he ought to take it payable to the plaintiff, although he may be dead. To whom else could it be taken? for no person may have qualified as his executor or administrator. Besides, if it be not taken to him, it will not conform either with the execution or the judgment. If there could, formerly, have been any question as to the validity of a bond thus taken, all doubts are removed by the statute of 1819-20, ch. 28, 'i 2, Sess. Acts, p. 24, which, after mentioning particular bonds, declares that “all other bonds and obligations, given for a good and valuable consideration, shall be as good and available in law, though the obligee, or obligees, or part of the obligees therein mentioned, be dead at the time of the execution thereof, as if such obligee, or obligees had then been in full life.”

The only remaining question is, as to the person who is entitled to move for judgment on the forthcoming bond; whether it be the personal representative of Robertson the obligee, or the personal representative of the estate of Cole of whom Robertson was the executor. The statute (Tate’s Dig. Executions, p. 225, 6), provides, that motions on forthcoming bonds, are to be made, ‘ !in behalf of the obligee or obligees, their executors or administrators.” A literal construction of this act might, probably, require the motion, in this case, to be made by Turnbull in his character of representative of Robertson, and not in his character of representative of Cole. But the court is of opinion, that the law ought not to receive that construction. The judgment in this case, was in favour of Cole’s estate; and if no execution had issued, the judgment could have been revived by no person but the personal representative of Cole’s estate. Now, the forthcoming bond adds nothing to the force of the former judgment. It has itself only the force of a judgment, and is not an administration of the assets. This bond, then, is still the property of Cole’s estate: that estate *ought to be considered the obligee in the bond, and it ought to be proceeded on by the person entitled to the assets; namely, the representative of Cole’s estate. That has been done in this case; for the motion was made by Turnbull as representing Cole’s estate.

The judgment is to be reversed, and judgment entered for the plaintiffs in error, awarding execution on the forthcoming bond.  