
    Jones v. The Mississippi and Alabama Rail Road Company.
    A supercedeas cannot issue in favor of all the defendants, unless they all join in the bond.
    The obligor in the forthcoming bond cannot be heard to complain that the penalty in the bond is too small.
    It will be sufficient if the sheriff return the bond forfeited by endorsement on the execution.
    It is not a valid objection to the forthcoming bond, that there are not ten days stated in the condition of the bond, between the levy and the sale. If the defendant is dam-nified thereby, the remedy is against the sheriff.
    .IN ERROR.
    This writ of error from the circuit court of Yazoo county, was prosecuted to reverse a judgment of that court, overruling a motion to quash a forthcoming bond. A motion was made by the plaintiff in error, who was one of the obligors in that bond.
    The errors assigned are, that the court erred in not quashing the bond, and in discharging the supercedeas. It appeared, execution of fi.fa. issued at the suit of the defendants in error against G-. B. Dixon, & Co., Creacy & Creacy, and Andrew Gibbs, for six thousand two hundred and ninety-four dollars sixty-seven cents, which the defendants in error had recovered by the judgment of said court against the said Dixon and others, which the sheriff returned “ levied on 39th April, 1839, on certain slaves of Creacy, one of the defendants, and took bond for the delivery of said property on Monday the 6th May, with William W. Jones security, which said bond being forfeited, and is herewith returned.”
    The bond was given by Dixon, Creacy, Creacy & Gibbs, and Jones, in the sum of seven thousand dollars, conditioned for the forthcoming of the property levied on, on the day of sale, viz: the 6th May, 1839. It appeared that execution issued on this bond, and that the plaintiff, Jones, petitioned for a writ of error, 
      coram nobis, which was granted, together with a supercedeas, and on the return thereof, a motion was made to quash the super-cedeas, by the said Rail Road Company, which motion was sustained; and another motion was then made by the plaintiff in error, to quash the forthcoming bond, which was overruled, upon which judgments of the circuit court, this writ of error was sued out by Jones alone.
    The errors assigned are, 1st. That the forthcoming bond is void, that there is no return thereon showing whether the property was delivered or not, or that the principal in the bond failed to pay, &c.
    2d. That there is no return on the bond.
    3d. That the return on the execution does not show how the bond was forfeited.
    4th. That the condition of the bond is void because there were not ten days intervening between the levying of the first execution and the day appointed in the condition of the bond for the sale of the property levied on, and for other defects, and that the same is unconstitutional.
    G. and J. S. Yerger, for plaintiffs in error.
    This is a motion to quash the forthcoming bond, which was overruled by the court, and an appeal to this court.
    1. The first objection is, that the statute is positive in its requirement, and requires the “ penalty to be equal to double the amount of the execution.” Revised Code, 203. In this case, the penalty is seven thousand dollars, the execution recited in the bond is six thousand and upwards. As the judgment is discharged by the bond, great accuracy is required, and the provisions, of the statute must be complied with, or the bond will be quashed, says Judge Tucker, in his Commentaries, 2 vol. 361. l Washington’s Rep. 259. 2 Washington, 189. 1 Randolph, 211. 2 Leigh, 545. 1 Leigh, 442. The point is expressly decided in 7 Mass. 98.
    2. The condition of the bond is not in compliance with the law. The act says, the bond shall be forfeited, if the party does not deliver the property or pay the money; the latter should be a condition.
    
      The execution returned with the bond shows the levy was made-'on the 29th April, and the condition of the bond shows the property levied on was to be sold on the 6th May, 1839; there not being ten days intervening between, the, levy and sale.
    The act on this head is explicit. Revised Code, 200, sec. 21, it is mandatory to the sheriff and is; positive and cannot be dispensed with; But it is said the parties are estopped by the bond, &c.-,that they agreed-that it should be, &c.
    There cannot be an estoppel when the act is illegal. No consent or agreement can make an act prohibited by statute, or an act refusing to do what is required to be done by a statute, legal. A party is not estopped to show that the act is illegal.
    • In this case the sheriff arbitrarily advertises the property for sale in six days, when the law requires Yew. ■ By color of his office this is done. If he can reduce it to six or eight days, he can reduce it to one, and thus oppress and, injure the debtor; and he may arbitrarily require a bond or threaten to sell, and the debtor would give the bond rather than have his property sold; although had the ten days been allowed, he might have raised the money or paid the debt.
    There is no agreement of the parties that the property should be advertised and sold in six days, other than the inference derived from the execution of the bond. This practice should not be tolerated, as it will lead to oppression frequently on the part of the sheriff. ...
    It is admitted that if the sheriff had actually sold the property without advertisement, to an innocent third person, such third person, being an innocent purchaser, might perhaps hold the property, ; but still the'' act of the sheriff would be visited on him for all injury, because it was illegal. He cannot, therefore, be guilty of a misfeasance, in not obeying the law; and after he extorts a delivery bond then say the debtor is estopped from showing his illegal conduct. . >
   Opinion of the court by

Mr. Justice Turnee : ,

1 do not consider any of the grounds for reversal sustainable by the plaintiff in error. In the first place, he was only one of many defendants, and they should all have joined in the first writ of error, and the supercedeas ought not to have issued against all, unless all had. given bond to- the plaintiff below. The court did not err, therefore, in quashing the ■ supercedeas, on that or any other ground. . ■

As to the grounds assumed for quashing the forthcoming bond : In the first place, the plaintiff in error complains that the penalty of the bond is not large enough. This objection might have come with some plausibility from the other party; but it is surely hot prejudicial to the obligors., A plaintiff in error should show errors done to his prejudice. Besides, by the statute of 1822, How. & Hut. 618, sec. 25, it- is provided, that if any bond-taken by virtue of any execution, by miscalculation or mistake, shall be conditioned for q larger sum than is due, the plaintiff may release, and such release shall cure any error growing out of such excess; and this may be- done either in the court below, or in the appellate court.. This shows that these statutory bonds may be corrected by release, so as to answer the ends of justice. One reason for this is, because they are not taken by the parties, but by the officers of the law. The defendant who gives these delay bonds has all the benefit of the 'time afforded thereby, and the plaintiff who is seeking his rights by due course of law has- all the disadvantages of delay, and-change of parties to his contract without his consent, and it is the duty of' the courts of justice to afford every indulgence and facility to the plaintiff which the law allows, to enable him to obtain satisfaction of his judgment.

As to the second'and third objection to the return on thé forthcoming bond, there is nothing in them; no such returns as the plaintiff alludes to are required by lawand if they were, the court would permit the sheriff to amend'his return. .It is sufficient for the sheriff to return the bond forfeited, and this he may do as well on the execution under which the bond is taken as on the bond itself. ■’ .

As to the fourth objection, that there was not ten days, as stated in-the condition óf the bond, between the levy and sale, surely that should not prejudice the plaintiff in execution. He has been delayed in the recovery of his demand by this interférence, and had no control over the matter. The sheriff may'or may not have acted oppressively to the defendant in execution; and if he did, he is accountable therefor to him. But he does not complain. The surety is no party to that grievance, if it be one. There does not appear to have -bden any proof before the court, that the property was not advertised ten or more days. ■ The recital in the condition of the bond is not conclusive of this- fact. . But no sale took place, and no injury has been done the defendants in that- execution, and they have not complained of any. They have had the benefit of their property, from that day to this, for aught that appears to the court.

The, bond is constitutional, as has been settled by repeated decisions in this and other courts. 3 Haywood, 11; 5 Yerger, 289; 9 Cranch, 28; 3 Cond. Rep. 249; 2 Little, 396.

Judgment affirmed.  