
    JANUARY TERM, 1847.
    Joseph S. Talbert vs. Michael H. Melton.
    When a forthcoming bond taken by a sheriff is actually forfeited, the statute requires the return of the bond into court, with the execution upon which it was based; but it does not require any indorsement of its forfeiture, by the sheriff, upon the bond itself.
    A return, by the sheriff upon an execution, of bond taken and forfeited, unaccompanied by the forthcoming bond itself, would be bad, because the statute compels the return of the bond ; but an actual return of the bond with the execution, though without a verbal return of forfeiture, is tantamount to evidence of forfeiture, until the contrary be made to appear, and is all the statute seeks to ascertain.
    It is well settled that a sale under a junior judgment is void as against an elder one, and the property may still be seized and sold in satisfaction of the prior judgment; but if the prior judgment creditor be guilty of gross negligence or delay, as by giving time to the defendant, he may lose his lien ; the showing, however, for the purpose of defeating the prior lien, must come from the party who wishes to defeat it.
    
      
      No indulgence of the sheriff or negligence to proceed to sell, without any act of the plaintiff, will render an execution dormant as to subsequent executions.
    The sheriff returned an execution indorsed “ money not made, by order of the plaintiff.” Held, on the trial of the right of property between the plaintiff in that execution, and a purchaser under an execution which issued on a junior judgment, that the indorsement of the sheriff on the first execution, even when confirmed by the testimony of the sheriff to the same effect, was not competent evidence to establish laches on the part of the plaintiff in the elder judgment, or to postpone his lien.
    The lien of a judgment cannot be defeated or lost by the judgment debtor’s being subsequently declared a bankrupt and discharged from his debts. Especially if the subject of the lien was not before the bankrupt court.
    The High Court of Errors and Appeals cannot adjudicate upon a question which was not a subject of decision in the case below, or which is not presented by the record in a proper form.
    Error from the circuit court of Yalabusha county; Hon. Benjamin F. Caruthers, judge.
    This was an issue to try the right of property in certain slaves. The record discloses the following facts, to wit: That an execution was issued by the clerk of the circuit court of the Yalabusha county, on the 26th day of June, 1843, on a forthcoming bond stated in the execution to have been forfeited on the 10th day of September, 1838, in favor of Michael H. Melton against Benjamin D. Smith and Nathaniel Howard, surety in the forthcoming bond; which execution was, on the 14th day of September, 1843, levied on three slaves, named Kiah, Bob and Bill, as the property of Nathaniel Howard. The slaves were claimed by Joseph S. Talbert, who made the requisite oath and gave bond to try the right of property. The issue was tried on the 15th day of November 1844, and the jury found the slaves levied on liable to the plaintiff’s execution. The claimant moved for a new trial. “ Because the jury found against law and evidence; and because the court erred in permitting the transcript of -the record in the case of Mellon v. Smith to be read as evidence of a judgment against N. Howard; and in rejecting the certificate of bankruptcy of N. Howard to be read in evidence.” Which, motion being overruled by the court, the claimant filed a bill of exceptions, setting out in substance the following facts, to wit: That on the trial of the issue the plaintiff read in evidence to the jury a transcript of the record, from the circuit court of Yalabusha county, showing that Michael H. Melton recovered a judgment, in the circuit court of that county, against Benjamin D. Smith, on the 21st day of March, 1838, for one thousand dollars debt, fifteen dollars damages, and the costs of suit. On which judgment an execution was issued on the 24th day of July, 1838, and subsequently returned with the following indorsement, to wit: “ Received, August 1st, 1838. David Mabray, sheriff.” “Levied the 17th of September, 1838, on one negro man named Granville, as the property of Benjamin D. Smith, and bond taken. “ David Mabeay, Sheriff,
    “ By H. TalbeRT, D. Sheriff.”
    A forthcoming bond, executed by Benjamin D. Smith and Nathaniel Howard as surety, dated the 7th day of September 1838, and reciting the issuance and levy of the above stated execution, and obligating themselves to have the property levied on, forthcoming, &c. on the 10th day of September, 1838, was returned with the execution. No indorsement was made on the bond, nor was any other indorsement made on the execution than the one above stated. On the 1st day of February, 1839, an execution was issued on the bond against Smith and Howard, which was returned with the following indorsement. “ Money not made by order of the plaintiff. March 18th, 1839. D. Ma-bray, Sheriff, by H. Talbert, D. sheriff.” On the 12th day of June, 1839, an alias execution was issued on the bond, and levied on a negro man named Granville, as the property of Smith; the negro was claimed by William G. Kendall, who gave bond to try the right of property, and the execution was returned — “ Stayed by filing a bond to try the right of property.” On the 20th day of May 1840, the court ordered the property levied on and claimed by Kendall, to be discharged, because no issue was tendered at the return term of the execution. On the 10th day of October 1839, a pluries execution was issued on the bond, and levied on a negro man named Jim as the property of Smith; which negro was sold on the 20th day of April 1840, for $395. On the 29th day of April, 1840, a writ of audita querela was issued upon the petition of Howard, who claimed to be released and discharged from all further liability on the forthcoming bond; because the plaintiff, without his knowledge or assent, instructed the sheriff not to make the money on the execution returnable to the March term, 1839; and because the plaintiff failed to try the right of property in the negro man named Granville, claimed by William G. Kendall ; and all further proceedings on the forthcoming bond against Howard, were stayed by supersedeas until the questions presented by the audita querela were disposed of. At the May term, 1842, the supersedeas was made perpetual, and Howard discharged from all further liability on the forthcoming bond. The claimant objected to reading the above record to the jury, because it contained no evidence of a judgment against Howard; but the court overruled the objection, and permitted the record to be read to the jury, to which the claimant excepted. The plaintiff then offered to read to the jury the transcript of a record from the high court of errors and appeals, showing that the judgment of the circuit court on the audita querela had been reversed, the writ of audita querela and the supersedeas discharged ; to the reading of which the claimant also objected ; the court overruled his objection, and permitted the record to be read to the jury, to which the claimant excepted. The plaintiff then read to the jury the execution above mentioned, which was issued on the bond, on the 26th day of June, 1843, and levied on the slaves, which were claimed by Joseph S. Talbert, and also the affidavit and bond made and executed by Talbert. To the reading of all of which the claimant objected; his objection was overruled by the court, and he excepted. The plaintiff then read in evidence a written agreement signed by the parties, which was in these words. “We agree that the negroes levied on in this case, the right of which is to be tried in this cause, are the same, or a parcel of the same negroes, that the claimant bought under execution, as the property of N. Howard, who is the defendant, the same the claimant bought under, being a fi. fa. in favor of N. & J. Dick & Co.; and perhaps others. And this is proof of the identity of the property, and admitted as such.” The plaintiff then read the deposition of Daniel Roberson, the deputy sheriff who levied the execution on the negroes in controversy, which proved that Bill was worth about six hundred dollars, Bob about three hundred dollars, and Kiah about one hundred and eighty or two hundred dollars. And the plaintiff here closed his evidence. The claimant then called Hillary Talbert, who testified that he was the deputy sheriff, who made the return on the execution which issued on the forthcoming bond returnable to the March term, 1839, and that the return, “ held up by order of the plaintiff,” was made with the plaintiff’s knowledge and assent; plaintiff informed witness he did not wish to press Smith, and that if a new forthcoming bond were given, so as to make the debt secure, the execution might be held some short time to give Smith a chance to go and get a discount. Witness stated, that a new forthcoming bond was taken by him ; but he never delivered it to the plaintiff or told him of its execution; nor did witness return it to the clerk’s office, as he considered it of no effect, and it was then lost or mislaid. The claimant then read to the jury a transcript of a record from the circuit court of Yalabusha county, showing that Morris, Howard & Co. recovered a judgment in that court against David M. Beck and Nathaniel Howard, on the 13th day of September, 1839, for $6289 38. Upon which judgment an execution was issued on the 6th day of Jahuary, 1840, and levied on several town lots in Grenada as the property of Beck, and also on the slaves Bill, Bob and Kiah, and others as the property of Howard. The sheriff’s return shows that the sale of part of the property levied on as Howard’s was enjoined, and the residue sold; but it does not show which property was sold, nor who was the purchaser. The claimant also read a transcript from the records of the circuit court of Yalabusha county, showing that on the 12th day of March, 1839, Samuel Pool for the use of John Reed recovered a judgment in that court against James M. Stanton, Nathaniel Howard and S. Smith for $348, upon which an execution was issued, and levied on the negroes in controversy as the property of Howard, and they were sold on the 7th day of September, 1840; but the return does not state who was the purchaser. The claimant also read a transcript from the records of the circuit court of Yalabusha county, showing that on the 21st day of September, 1838, N. & J. Dick & Co. recovered a judgment in that court against William B. Pryor and Nathaniel Howard for $630 05. Upon which an execution was issued, and also levied on the negroes in controversy as the property of Howard, and they were sold on the 7th day of September, 1840, but the name of the purchaser is not mentioned in the sheriff’s return. The claimant then offered to read a certificate, showing that Nathaniel Howard filed his petition in the district court of the United States for the northern district of Mississippi on the 24th day of November, 1842; was declared a bankrupt on the 2d day of January, 1843, and discharged from all his debts on the 24th day of April, 1843. To the reading of which the plaintiff objected. The court sustained the objection and refused to let this certificate be read to the jury, to which the claimant excepted.
    
      Acee, for plaintiff in Error.
    The first question that arises in this case is, was the forthcoming bond, executed by N. Howard as the surety of B. D. Smith, the defendant in the original execution, ever forfeited, so as to give the appellee a statutory judgment against him (Howard.) In the case of Jones v. The Mississippi and Alabama Railroad Company, 5 Howard’s R. 407, the doctrine is expressly laid down “that it is sufficient if the sheriff return the bond forfeited by indorsement on the executionand in the case of Barker v. The Planters Bank, 5 Howard’s N. 566, while the court expressed the opinion that the statute does not require an indorsement of the forfeiture upon the bond itself; still it plainly intimates that some return showing that the forfeiture has taken place, is necessary, so as to identify the bond forfeited.
    A bond given in pursuance of the statute for the forthcoming of property taken by virtue of an execution, is, when forfeited, a satisfaction of the original judgment. Davis ?. Dixon’s Administrator, 1 Howard’s R. 64; Weathersby v. Proby, 1 Howard’s R. 98 ; Bank of the United States v. Patton, 5 Howard’s R. 200.
    But again; the record shows that, on the 24th day of November, A. D. 1842, N. Howard filed his petition in bankruptcy; that on the second day of January, A. D. 1843, he was declared a bankrupt; and that on the 24th day of April, A. D. 1843, he was by a decree of the district court of the United States for the northern district of Mississippi, discharged from all his debts. All this occurred not only before the levy was made upon the property in dispute, which happened on the 14th day of September, A. D. 1843, but also before the issuance of the ft. fa. in this case (M.. H. Melton v. B. D. Smith & N. Howard,) which did not take place until the 26th day of June, A. D. 1843.
    In the case of McDougald v. Reid & Talbot, 5 Alabama R. (New Series,) 810, the doctrine is distinctly declared that “ a decree in bankruptcy obtained according to the statute, operates at once as a discharge of all the debts of the bankrupt, whether reduced to judgment or not.” In the case cited, a levy made on an execution against a bankrupt, and which issued previous to the procurement of his certificate, was discharged, on the ground that, the judgment having become null and void, the lien of the execution ceased, and consequently that the levy could no longer be sustained.
    But it may be contended by the appellee that, upon the trial of a case of this kind, the appellant had no right to deny the validity of this judgment, or impeach the binding force of the execution, and levy, by the introduction of evidence showing the discharge of N. Howard in bankruptcy. If this position is true, then a bona fide purchaser of property, under a junior judgment, could not, upon a trial of the right of property, prove that an execution issued upon a senior judgment had been satisfied, nor could he show that in fact there was no such judgment, nor that any lien had been postponed or discharged. This point, however, has in eifect been settled in our favor, by this court, in a case similar to the one at bar. In the case of Ross v. Garey, 7 Howard’s R. 47, the court says: “ This proceeding is assimilated by the statute to the action of detinue, and the o?itis lies on the plaintiff in execution. It was necessary that he should produce evidence of his right to proceed against the property before the complainant could be put on his defence.”
    In the case at bar, what evidence did the law require the appellee to produce in the court below to entitle him to a judgment in his favor according to the doctrine just cited ? Certainly nothing less than a valid, subsisting judgment, and a legal levy on an operative and binding execution. It was, furthermore, incumbent upon him to establish the fact that the identical property levied upon was subject to his Ji. fa,., and liable to be sold to satisfy the same. This kind of testimony the appellee neither did nor could produce, and yet he succeeded in the court by means of the decision we now seek to revise and correct, although the appellant was able and offered to prove the very reverse!
    The court below then, erred not only in admitting as evidence the transcript of the original' judgment against Smith together with the original execution, the forthcoming bond, and all the other Ji. fas. connected therewith, but also in rejecting and ruling out from the consideration of the jury the certificate of bankruptcy granted by the district court of the United States for the northern district of Mississippi to N. Howard.
    
      A. C. Baine, for defendant in error.
    1. The first point is that the jury found contrary to law and evidence. The foundation of Talbert’s title, as argued, was a purchase under the judgment of N. and J. Dick & Co., rendered on the 21 st September, 1838, and the sale under it on the 7th September, 1840. Our judgment is dated the 10th day of September, 1838. The deposition of Roberson proves the separate value of each negro. Grouping these together, a very complete case was made out.
    2. The next point is that the record introduced of the original judgment, and all its consequent proceedings, afforded no evidence of a judgment against Howard, because it did not show by any return, either on the fi. fa. or bond, that the bond was forfeited. The statute does not require this. See Statutes, from 1824 to 1828, page 124. By it all the officer is required to do. is “ to return the bond so forfeited, with the execution, to the court from whence the same issued.” No act of the sheriff forfeits the bond; and no other act of his is made evidence of its forfeiture, than returning it with the execution to the court from whence it issued. He is neither required nor authorized to do anything else. If he does more, he does it without authority of law. In Minor v. Lancashire, 4 Howard, 351, this court said, “It is evident that the bond itself has the force of a judgment as soon as it becomes forfeited. There is no action of the court necessary to give it that effect. The return of it by the sheriff with the execution is what gives it all its efficacy. The failure to deliver the property is a breach of the condition, and produces the forfeiture.” In Shields et al. v. Graves Ex’r. 6 How. 264, the court said', “ A bond can only be quashed for some inherent defect. The return constitutes no part of the bond ; and a defective return, or no return at all, will not justify the quashing of a good bond. The bond may be perfectly good, though the sheriff may make a bad return or no return at all.” But how often, suppose this irregular, has this court decided a bond cannot be quashed after the return term. See 6 Howard, 540; 4 Ibid. 347, 363; 1 S. & M. 347, 386; 2 Ibid. 535.
    3. The next error that will be insisted on will doubtless be the exclusion of the certificate of bankruptcy. Such proof is not competent on the trial of such an issue as this. To permit it would be to allow the claimant to abandon a right of his own and to set up an outstanding title in another. It is a mode of defence foreign to the issue, and the oath of the claimant. It is beyond the scope of his right under the statute. He is only authorized to come in on his own claims of right. And he is not upon any other terms warranted in obstructing the execution of the levy, though it be manifest to every man on earth, that the defendant in the judgment has no right in the property levied on. If he has no right, then the creditor ought, unmolested, to go on and make his money. The single question is, is the claimant’s right to the property superior to the judgment lien ? — not whether the judgment is void, irregular, or whether the defendant to the judgment has a good title. But rather, I would say, whether the claimant has such a right, in himself, as will authorize him to obstruct the execution of the levy. If he has not, he must fail on the issue. For these reasons I hope the court will settle the general principle as I contend for; though there is no necessity for their application to the present case. Me Grew v. Hart, (1 Porter’s Alab. R. 175-184,) is express on this point of the case, independent of the reasoning.
    4. It then comes to another point, made below, that by ordering an execution held up, we lost our lien so far as to let in junior judgments at least. The principle is, “that nothing short of fraud or gross negligence will let in the junior judgment. Robinson et al. v. Green et al. 6 How. 223. The elder lien is said to be as potent as a mortgage. “There can be no difference in principle between a mortgage and a statutory lien.” Andrews v. Doe ex dem. Wilkes, 6 How. 563. What do the court mean by “gross negligence or fraud?” Doubtless by “ negligence, gross,” they mean that degree of it, that works a wrong or some privation of right to the junior judgment, without any evil intent. By fraud they mean, fraud in' the true sense, an injury from a corrupt motive.
    5. The time of the levy is immaterial. Being so, “though impossible or inconsistent, will do no harm, upon the principle that utile, per inutile, non vitiatur.” Stephen on Plead. 344 ; 1 Chit. Plead. 287.
    The matter of utility and materiality was an actual levy and the sealing and delivery of the bond, not the time of the levy. In Com. Dig. Pleader, (C. 19) it is said, “So it is sufficient, though it (time) be imperfectly alleged; as in trover, if the plaintiff says that he was possessed of the goods on the 9th of May, and lost them, postea, soil. ; 1st May, converted them, it is good, though the conversion is alleged before the loss.” “So in covenant, if the plaintiff declares on articles dated 30th Sept., 5 Geo. (which is 1718,) and then says, postea, soil.: 1st May, 1718, it is good.”
    But after a judgment on the bond, certainly our statute of jeofails, (which always applies after the return term,) settles all this little clerical difEculty. See Rev. Code, 124, § 91. And see also these decisions, that a bond cannot be quashed after the return term. 6 How. R. 540 ; 4 lb. 347; lb. 363; 1 S. & M. 347; lb. 386 ; 2 lb. 535. But they say they do not want to quash it, but to let it stand, and consider it not in existence! Hold it for nought, and yet not disturb it! I must confess I am too dull, by degrees infinite, to perceive the force of this distinction, or the reasons establishing it.
    
      Waul, on the same side.
    This case having been argued so elaborately by associate counsel, I will simply bring before the view of the court, the exclusion of Howard’s certificate of discharge in bankruptcy, which is assigned for error.
    And we will contend, first, that the judgment is such a lien as is protected and preserved under the act of congress to be enforced in our state courts ; and second, that the district court of the United States had no jurisdiction whatever in the cause.
    That in such a lien as is protected by the bankrupt law, it will be only necessary to refer to the various adjudication in the United States courts. Briggs v. Stephens, 7 Law Reporter, Oct. 1844, 281; Ex parte Enoch Cook, 5 Ibid. Feb. 1843, 443; Downer v. Bracket, Ibid. Jan. 1843, 392; Western Law Journal, p. 15, 51. .
    The bankrupt court has no jurisdiction, because the property was held by no claim of the defendant for years before his petition in bankruptcy. The assignee not being entitled, as the bankrupt’s interest was divested by the sale under the execution, through which Talbert’s claim is made, and Talbert has all the interest of defendant, subject to the prior lien of Melton’s judgment.
    The question is one between Melton and Talbert only; a question of priority of lien, and which Howard’s bankruptcy cannot at all aifect. And should satisfaction of the judgment be entered, it could only be as to Howard alone, and not as to his sureties, and so as not to destroy, ox in any manner influence prior liens.
    
      
      B. D. Howard, for plaintiff in error.
    1st. The sheriff made no return that the bond was forfeited, either upon the bond itself, or upon the execution. The statute authorizing the sheriff to take a forthcoming bond, gives it the force and effect of a judgment when it is returned into court forfeited by the sheriff. The bond cannot become a judgment by force of the statute, unless it is forfeited. It is conditioned to pay the money or deliver the property, either of which will prevent the statutory judgment on the bond. How is this court to ascertain that the condition of the bond has not been complied with, but by the sheriff's return ? In the language of chief justice Sharkey, in 6 Howard, 267, “ there is no law that requires a party to forfeit his bond, and for anything that appears, the condition may have been literally performed by delivery of the property.” The court does not enter a judgment on the bond, but if there be a judgment the statute gives it. There must be some evidence that the bond has been forfeited, and the sheriff’s return is the proper evidence from the nature of the transaction.
    It is the sheriff’s sworn duty to return the bond, if it be forfeited, and his “return” is therefore the best and only legal evidence of forfeiture. Stainer v. James, 1 Croke’s R. 311 ; 2 Mason R. 76 ; Metcalf v. Gittet, 5 Conn. 400 ; 4 Mass. 402; 7 How. 47; Willington v. Gale, 13 Mass. 483; 8 Mass. 240; 10 Wend. 525-627.
    But if the statute does not,' by express terms, require him to make a return of forfeiture, he would be required to do so by general principles of the common law. What is a sheriff’s duty in relation to> the “ returns! ” Blackstone says, (2 Com. 275,) “ whatever a sheriff does in pursuance of a writ, he must return or certify to the court.” 3 Tomlins’ Law Dictionary, 388, defines a sheriff’s returfi to be, “ the certificate of the sheriff, made to the court, of what he hath done touching any writ'directed to him.” •
    When the “sheriff returns,” that is certifies, that the bond is forfeited, it becomes record evidence of the fact of forfeiture, is conclusive between the parties to the record, and notice to all the world. 3 Phill. on Evid. and notes, 1096, and authorities there cited. That the sheriff’s return is record evidence, shows the policy of the law in requiring him to return the fact of forfeiture, The bond, if forfeited, has the force and effect of a judgment, without any act of the court, and that judgment is to bind the property of the defendant against subsequent purchasers and creditors. And why ? Because it is notice to all the world. Must not every fact then necessary to superinduce the judgment, be upon record, in order to give the party notice? There can be but one answer. The plaintiff in execution claims a right to divest our title to property, by force of a judgment lien. To do this upon general principles, he must show by record evidence, every fact necessary to the existence of a judgment. 3 Phill. on Evid. and notes, 1094; United States v. Slade, 2 Mason, 75 ; Stas v. Badger, 6 N. Hamp. R. 394, 395 ; Boomer v. Lame, 10 Wend. 525 -527.
    But this court has in effect decided, that the sheriff’s return of forfeiture was necessary to show a judgment on the bond. Your honors have decided, that the return of forfeiture by a sheriff, was evidence that the bond was forfeited. No principle is better settled, than that the return of a sheriff, when it relates to facts which it is not necessary for him to return in the discharge of his official duty, will not be considered evidence for any purpose. 3 Phill. Ev. and notes, 1083, 1084.
    If, then, his return is evidence, it is because the law makes it his duty to return the forfeiture; and if the statute requires him to make the return of forfeiture, his return is the evidence which the statute requires, and the forfeiture can be proved in no other way, but by his official return, or certificate, which is the legal definition of a return. Tide authorities before cited : 2 Mason R. ; 4 How. 363; Ibid. 351 ; 5 Ibid. 407, 566; 6 Ibid. 264.
    2d. The sheriff’s return upon the execution issued on the original judgment, shows a levy made on “the 17th of September, 1838, and bond taken.” The bond shown in the record is dated the 7th of September, and is conditioned to deliver property on the 10th. The bond shown is not such a bond as the levy authorized the sheriff to take; and is not, therefore, such a bond as the statute says shall have the force and effect of a judgment. A levy made on the 17th, does not authorize the sheriff to take a bond conditioned to deliver property on the 10th. The condition is impossible, and the bond is therefore void. The record shows that no other fi. fa. ever issued upon Melton’s original judgment, save the one levied on the 17th of September. This court has decided, that where the bond recites a levy, and there is no other levy proved, the recital in the bond is sufficient evidence of a levy. But it has not decided, that when the record shows that the levy made would not, under the statute, authorize the bond taken, that the statute would give such a bond the force of a judgment, nor is it apprehended that this court will so decide. In this case, the recital in the bond contradicts the record, and the recital must give way to the record. Stainer v. James, 1 Cro. R. 311.
    3d. It is only when the statute gives to the bond the force and effect of a judgment, that this court says, you cannot go behind the judgment on the bond after the return term. We do not propose to go behind the judgment on the bond ; we propose to show, by the record, that the statute gave no judgment .upon it against Howard. Neither do we move to quash the bond. •It is enough for us to show that the party is not entitled to execution upon it, for then his levy must be discharged. But this doctrine, in relation to the time and manner of taking advantage of errors in the proceeding, applies only to the parties to the 'bond, and does not apply as against purchasers who are third parties.
    4th. The holding up of Melton’s execution discharged the •surety in the bond. The consideration for the stay is fully proved by Talbert. The stay also postponed the lien of his judgment to that of Pool’s, under which we claim, as well as under the judgment of N. & J. Dick & Co. Pool obtained his judgment 12th of March, 1839, and it never was stayed. The stay on Melton’s execution was dated 18th of March, 1839. 5 Cow. 390 ; 4 Wend. 333; 4 How. 139.
    5th. A fi. fa. issued upon Melton’s bond on the 8th of March, 1842, and was levied on two town lots in Granada. The sheriff has made no return that he has disposed of this levy. The levy “ is so far evidence of satisfaction, that he is not entitled to another execution until that is disposed of.” 5 How. 629. Per Chief Justice Sharkey.
    6th. The plaintiff in execution does not show that his judgment has been enrolled under the act of 1844. Unless it has been enrolled, his lien ceased by force of the statute. Sheet Acts of 1844, § 6, pp. 98, 99.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Yalabusha county circuit court.

In a trial of the right of property in certain slaves, Melton, the plaintiff in execution below, claimed to subject the property to his execution, by virtue of the lien which its judgment upon a forthcoming bond of date the 10th day of September, 1838, had established. Talbert, the claimant, held the property by purchase under two judgments against the same defendant, one of date the 21st day of September, 1838, and the other of date the 12th day of March, 1839. The forthcoming bond aforesaid and the execution, upon which it purports to have originated, were returned into the court below, but neither the one nor the other contains any certificate or return by the sheriff of the forfeiture of the bond. On the 18th day of March, 1839, a fieri facias on the forthcoming bond was returned by the sheriff with the words, “ money not made by order of the plaintiff.” The defendant in all the above named judgments, filed his petition in bankruptcy on the 24th day of November, 1842, was decreed a bankrupt on the 2d day of January, 1843, and received his final certificate on the 24th day of April, 1843. The execution, from whence arose this trial of the right of property, issued on the 26th day of June, 1843, and the levy under it was made on the 14th day of September, 1843. There is no evidence in the record that the judgment upon the aforesaid forthcoming bond had been duly enrolled upon the judgment roll of the court, where it was rendered. The bond for this trial of the right of property, was filed by the claimant on the 14th day of September, 1843, and a judgment rendered in favor of the plaintiff in the execution below, the defendant in error here, on the 15th day of November, 1844.

From the foregoing abstract of the facts presented in the record cof this case, it will be seen that several questions are presented for the consideration of this tribunal. These are the effect of the omission of the sheriff to make a return of forfeiture upon the forthcoming bond, or upon the execution from which it arose ; the effect upon a junior judgment of the language of the return of an execution emanating from its senior judgment, as described in the above abstract; the effect of the decree of bankruptcy in favor of the defendant, in the various judgments involved in this case, and the effect of the absence of the affirmative proof of the enrolment of the judgment, rested upon by the plaintiff in the execution below, in the judgment roll of its court.

Upon the first point, it is to be observed that the omission of the sheriff to make the return of forfeiture upon the forthcoming bond or its parent execution, is claimed for error, and not the circumstance that the bond was thereby void, or was not, in point of fact, forfeited. The statute, H. & H. 653, § 73, does not require any indorsement of its forfeiture by the sheriff upon the bond itself. It requires, in the event of actual forfeiture, its return into court with the execution upon which it was based. Barker et al. v. The Planters Bank, 5 How. 566. If, on the other hand, the bond be not forfeited, it need not be returned into court at all. Under such circumstances, it becomes the property of, and should be delivered up to its obligors. The statute being silent in reference to the precise mode of certifying the forfeiture of a forthcoming bond, or indeed, of the mode of apprizing the court of such a fact, the return of an execution, without a verbal return, accompanied by a forthcoming bond evidently emanating from such execution, is prima facie evidence of its forfeiture, because still in the hands of the officer, and therefore is a sufficient return in the first instance, until rebutted. The validity of a sheriff's return, upon a forthcoming bond, being liable to be rebutted, (Williams v. Crutcher, 5 How. 71,) it is therefore a question of fact, which may be raised upon circumstances, as well as upon official statements or verbal returns. A return by the sheriff, upon an execution, of bond taken and forfeited, unaccompanied by the forthcoming bond itself, would be bad, because the statute compels the return of the bond ; but an actual return of the bond with the execution, but without a verbal return of forfeiture, is tantamount to evidence of forfeiture, until the contrary be made to appear, and is all the statute seeks to ascertain. Again, in connection with this point it is proper to add, that in Shields et al. v. Graves, Executor, 6 How. 262, this court has said, that “the return constitutes no part of the bond, and a defective return of the sheriff or no return at all, will not justify the quashing of a good bond. It might afford a reason for quashing the execution, which purports to emanate on a forfeited bond.” A motion to such an end, if it could prevail, could only when seasonably made, and as between the parties to the original action or judgment, because it is settled, that a purchaser under an irregular or voidable execution, is not prejudiced for that reason. Mitchell v. Evans, 5 How. 548. It is‘also to be noted here, that the objection has been seized by counsel, that the forthcoming bond in this case was executed on the 7th day of September, and is-conditioned for the return of the property described therein on the 10th day of September, while the levy of the execution, set up as the parent of the forthcoming bond, shows a date of the 17th day of September of the same year, and the discrepancy is insisted upon as a palpable inconsistency, and as demonstrating an entire disconnection between the instruments. A more impartial view, however, of the bond and levy, will discover enough of substance to trace their relationship, and to establish the belief that the date of the return is a mere clerical error. The property levied upon, for instance, and the property described in the bond, are identical beyond mistake, and a recital in the bond shows that the levy must have taken place at latest upon the same day with the date of the bond.

The next question for consideration is the effect of the sheriff’s return upon the execution, issued on the forfeited forthcoming bond, and in the terms, money not made by order of the plaintiff.” It is well settled in this state, as well as elsewhere of authority, that a sale under a junior judgment, is void as against an elder one, and that the property is still subject to be seized in satisfaction of the prior judgment. It is equally well settled, that the lien created by a judgment may lose its priority by the act of the judgment creditor himself. The same principle that gives a prior judgment a right to a prior satisfaction, requires that this security should be pursued with as little delay as possible in view of later judgment creditors. It may be lost by gross negligence or delay, as, for instance, by giving time to the defendant in the prior judgment; but the showing for the purpose of defeating a prior lien, must come from the party who wishes to defeat it. Michie v. The Planters Bank, 4 How. 130; Robinson et al. v. Green et al. 6 How. 223. It has just been said, that the laches, by means of which the lien of a prior judgment will be lost so as to transfer the priority to its junior, must be the act of the plaintiff himself; and hence it follows, that the mere indulgence or negligence of the sheriff to proceed and sell, without any act' of the plaintiff, will not render an execution dormant as to subsequent executions. Russell v. Gibbs, 5 Cowen, 390. In the case before us, the only showing to establish the charges of plaintiff’s laches is, the return of the sheriff, that the money was not made by the order of the plaintiff, which is confirmed by the sheriff’s testimony to the same effect. It is the duty of the sheriff to make the money upon an execution in his hands if he can, unless checked by the plaintiff, who interrupts the consummation of process at the peril of his lien, if there be outstanding prior judgments against the same defendant. Such is the duty of the sheriff, but these requirements of the law from a sheriff would be inoperative, if he be allowed to rest conclusively upon his return, although confirmed by his own evidence to justify an omission in the performance of his duty. The recognition of such principle would, in effect, authorize a sheriff to make evidence for himself in any such contingency, and thus violate a fixed, as well as most obvious rule of evidence. The return of a sheriff is not clothed with such solemnity as to make it competent evidence, in all cases, of the truth of the statement it contains. Rowand v. Gridley, 1 How. 210. With this view of the law, the conclusion is deduced, that the showing to establish the plaintiff’s laches was insufficient. It cannot either, with legal propriety, be urged, that because the plaintiff failed to challenge this return of the sheriff, that he thereby recognized its truth in point of fact. The only legitimate deduction from that circumstance is, that the plaintiff did not see fit to exercise his remedy against the sheriff, which is always a matter of his own option. But this delay could not have prejudiced the claimant; it occurred after he had purchased the property under the junior execution. For the same reason, it was not a fraud, or the evidence of fraud as to him, or the plaintiffs in the junior executions.

It is next to be inquired, what was the effect of the bankruptcy of the defendant in the execution below, upon the judgment whose lien is sought to be enforced by its plaintiff in the execution. The lien accrued upon the 10th day of September, 1838, and, as we have seen, was not lost by any act of the plaintiff up to the 24th day of November, 1843, the date of the defendant’s final decree in bankruptcy, and therefore so remained unless annihilated by that act of that defendant. It seems sufficient to say upon this point, that the lien upon the property in question, being valid by the laws of this state, and having accrued before any act of bankruptcy or petition by the judgment debtor, continued to hold its security upon the property, because it is within the provision of the second section of the bankrupt act of August 19th, 1841, which declares that nothing in the act shall be construed to annul, destroy or impair any liens which may be valid by the laws of the states respectively. And there is nothing in this case to show that the subject of this lien was before the bankrupt court.

The last point called to our notice, in this case is, that the record does not show that the judgment upon the forfeited forthcoming bond, had been enrolled upon the judgment roll of the court in which it was rendered. It is true that the record is entirely silent on this subject, but so is also the bill of exceptions taken to the ruling of the court below in refusing to grant the claimant’s motion for a new trial. It does not appear by this bill of exceptions, that this objection was made in the progress of the trial below, nor does the bill of exceptions purport to set out all the evidence adduced upon that trial. This court cannot, therefore, undertake to adjudicate upon a question which was not a subject of decision in the case below, or which is not presented by the record in a proper form. Byrd v. The State, 1 How. 163.

Judgment affirmed.  