
    Lusk v. Ramsay.
    Argued, Monday, Sept. 23, and
    Saturday, Nov. 9, 1811.
    I. Fieri Facias — Lien—Release of — Forthcoming Bond. —The lien, by virtue of a writ of fieri facias, upon the property of the debtor, is not released by his giving a forthcoming bond, but continues until such bond is forfeited. „ .
    „ . a. Forthcoming Bond — Right of Surety to Deliver Property. — The surety in a forthcoming bond has a right to deliver the property on the day of sale, if he can, on that day, peaceably obtain possession thereof.
    3. Same — Prevention by Sheriff of Delivery of Goods for Sale — Rights of Surety — Equitable Relief. — If the sheriff after taking a forthcoming bond, accept the same goods from the defendant, in discharge of his body from another execution, and prevent the surety in such bond from delivering them on the day of sale therein appointed; a Court of equity, on a bill for discovery and injunction, exhibited by the surety, will require the sheriff, and all parties concerned, to answer a charge of fraud and combination, and (whether fraud be established or not) will perpetually enjoin a judgment rendered against the surety upon the forthcoming bond, as unconscionable against him; leaving the plaintiff, in that judgment, to his remedy against the sheriff; and the sheriff to his remedy against the person who indemnified him, or to whom, by mistake, or in his own wrong, he paid the money in satisfaction of the second execution.
    4. Same — Same—Same—Same—Parties.— The plaintiff in the second execution, to satisfy which the sheriff improperly sells the goods, need not be a party to such suit in chancery; because the surety in the "bond wants no decree against him.
    William Ramsay filed his bill in the superior Court of chancery, for the Staunton district, stating that the goods of a certain David Lusk, of Rockbridge county, being under execution at the suit of Jones & Co., (which property was principally store goods, or the remains of a store,) the complainant, and a certain Robert Moore, at the request of said Lusk, became his securities in a forthcoming bond for the delivery of said goods, on the day, and at the place of sale; the complainant having explained to the said Lusk, in the hearing of Troyman Waytt, deputy sheriff for James Caruthers, the high sheriff of *Rockbridge, who had the goods in possession, that said goods were to remain in the possession of the complainant, and the said Moore, as their security, until the day of sale; to which said Lusk cheerfully consented, and, in pursuance of that agreement, gave up the goods into their hands, together with the key of the room in which they were stored; and thus things stood, until a few days before that appointed for the sale, when the said Lusk, with the said Waytt, (who were prayed to be held as defendants to the bill,) came into the house where the goods were, then in possession of said Moore, and taking the key out of the door delivered it to the said Waytt, and at the same time gave him possession of the goods, in discharge of his body from another execution, in behalf of- — —, then in possession of the' said Waytt, and probably served on said Lusk; although the said Moore was then in the house, and in possession of the goods, and for the express purpose of delivering them (say three days afterwards) te the said Waytt, in discharge of the forthcoming bond given as aforesaid; with all the circumstances whereof the said Wyatt was well acquainted; that, on the day of sale, the key and goods were pointedly demanded from the defendants, that the goods might be delivered in terms of the bond; and when these reasonable demands were refused, the said Waytt was requested, as the goods were in his hands and possession, to proceed to sell them in terms of his advertisement, and in discharge of the bond; which he refused to do, and, under. all those circumstances, returned the bond forfeited, and gave the complainant notice thereon; and a judgment was afterwards entered upon the said bond against the complainant alone; no notice having been given to the said Moore; that, on the return of said bond forfeited, the said Waytt proceeded to the sale of the goods aforesaid, in discharge of the second execution, and actually sold them; which second execution (as a circumstance of fraud the complainant stated) was on a judgment confessed by said Lusk, without *service of writ, the usual forms, solemnities, or delays of the case.
    The bill charged both the defendants with fraud, of which it prayed a discovery, and also an injunction against “the plaintiffs at law, the sheriff, and all parties,” to stay all further proceedings on the judgment upon the forthcoming bond. The complainant alleged, in an amendment to the bill, that he could not prove at law the knowledge of the defendant, Waytt, that the goods were actually pledged to the complainant, and Robert Moore, as their security against that bond; this fact resting in the knowledge of himself, and the said Waytt and Moore only, the Court at law refusing to hear Moore’s evidence; and, further, that the judgment on which the second execution was founded, was confessed in terms of stay of execution until September next following; which fact, although known and believed by the complainant, he could not prove in opposition to the entering of judgment upon the forthcoming bond.
    The defendant, Lusk, by his answer, said, “that a’bout the time the delivery bond was entered into, or shortly after, the complainant, in a conversation with the said Moore, and this respondent, observed that the goods ought to be taken care of, or locked up, or something to that effect; whereupon the respondent observed, that the house was secure; that he did not wish the same to be locked up, as he did business therein, and wished to have the use of it; but that he would be careful not to sell or lessen them; that the complainant, and Moore, then had some few words together, which he did not hear, but heard the said Moore say, he supposed it would do; that the key was then in the respondent’s possession, and continued so; be continuing to occupy the said atore as a counting room, until the execution of Boys & M’Calmont was levied on him; on which day' the said Moore came to the respondent’s house, and the respondent having asked him if he had come for the purpose of delivering said goods in discharge of said bond, he replied he had; *the respondent then told him, he had not time to say or do any thing on the subject at that time, as he was going to muster, but desired him to stay in the store until his return. This, he supposes, must have been the possession, or delivery of the key, mentioned in the bill, but denies that the same was so considered by him, neither did he obtain the same from the said Moore by fraud, as stated in the bill; but when he went to deliver the goods to the sheriff, in discharge ■of his body, the key was in the door as ■usual.” This respondent admitted, “that the said Moore did demand the key of him •on the day of sale mentioned in the delivery bond, but the same was not delivered, being, before that, delivered to, and being in the possession of, Troyman Waytt, deputy sheriff as aforesaid.”
    Waytt, by his answer, admitted that, “about the time the bond was entered into, some observation was made, by some person, he knows not who, that the goods ought to be taken care of, and not sold or lessened before the day of sale, or something to that effect; but denied that he heard them pledged, or particularly delivered to the complainant and said Moore, to be by them delivered at the day of sale, or any thing to that effect: on the contrary, it appeared to him that the complainant reposed confidence in the said Lusk to deliver the goods; for not only the complainant, but the said Moore went off the next day, leaving the said Lusk in possession of the ¡property as usual; and the said Moore did not return until about the time of levying the second execution.” This respondent “had no knowledge of any pledge or other lien on the property, to indemnify the said securities, than is usual in other cases; neither does he believe that any such did exist; but, on the contrary, he then did, and yet does, believe that they were restored to the owner, the said David Lusk, as in usual cases, to remain in his possession, and at his risk, and to be delivered at his pleasure on the day of sale.”
    The respondent further stated, “that, after this transaction, *and before the day of sale, a writ of ca. sa. came to his hands in behalf of Boys & M’Calmont, against said Lusk, and which was executed by the respondent on the body of said Lusk, who was then in his store; the said Moore being also present, or in town, and acquainted therewith, as the respondent believed; that the said Lusk and Moore had frequent conferences together, relating, as the respondent believed, to the delivery of the goods aforesaid, to discharge his body; which proposition was made, but the respondent would not agree thereto, (the said property not being sufficient to cover the debt mentioned in said execution,) until the said Lusk procured written instructions from the attorney of the plaintiffs, to the respondent, to receive the same. The respondent then went with said Lusk into the store, where the said Moore then was, and where some conversation, not heard by the respondent, passed between the said Lusk and Moore, whereupon they all came out of the door together, and the said Lusk (Moore being then present, and making no objections) locked the door, and delivered the key to the respondent.”
    The respondent denied “that the complainant came forward on the day of sale appointed in the delivery bond, or at any time before that time, and after the levying of the execution of Boys & M’Calmont as aforesaid, (although he was frequently in Lexington,) to claim the property, or to direct a sale thereof under the first execution ; but still signified he supposed there was no danger; nor did he make any such claim, or give any such directions, until some time before the sale on the last execution ; when he told the respondent that he would attend on the day of sale appointed by the last execution, and demand the goods to be sold on the first: (this, the respondent believed, was after the time judgment was rendered against him on the delivery bond:) it is true, on the day of sale, on the last execution, he did use these words: “Mr. Wa3rtt, X believe I will claim the goods on the delivery bond, for which I am security.” This he said, at the time *when the goods were about to be offered for sale, by virtue of Boys & M’Calmont’s execution ; but made no other demand: on the contrary, he bid at the sale. The respondent admitted that, on the day appointed for the sale in the delivery bond, the said Moore did apply to him for the key of the store, in order, as he said, to deliver up the said goods to be sold on the first execution; but which the respondent refused, supposing himself answerable for the said goods on the execution of Boys & M’Calmont. He denied all fraud, collusion, or other improper conduct and declared that, in every respect, he had acted as he supposed the law required.”
    William Jones, the acting partner of the mercantile house of William Jones & Co., also answered, observing that, although he was not named a defendant in the bill, he was in the subpoena. He declared himself entirely ignorant as to the conduct of the deputy sheriff, Waytt, or the other defendant, Lusk; and contended that he ought not to be affected by any fraud or deception of which they might have been guilty; but the complainant’s remedy ought to be against the sheriff; that if the property was vested in the complainant and his co-security, Moore, (as he pretends,) it is, then, the ordinary case of an officer executing process upon the goods and chattels of another, for which he has his remedy .at law; that, even if the complainant and this respondent had equal equity, a Court of equity would not take his legal advantage from the latter, and give it to the former, but would leave the parties where the law left them: that if the goods were restored to the defendant, Lusk, upon his entering into the forthcoming bond, as the law directs, this respondent had not such a property or interest in those goods, as to prevent Lusk from disposing of them as he pleased; and he having delivered them to the sheriff, in discharge of his body, the respondent supposed the only inquiry to be made, as to him, was whether the goods were delivered, or the bond forfeited. This was a perfectly legal question, properly triable in a Court of law, ''and not of equity; and, therefore, upon this ground, also, the injunction, as to him, ought to be dissolved.
    A great number of depositions were taken by the parties, chiefly for the purpose of proving, or disproving, the allegation, that goods were pledged, by Lusk, to Ramsay and Moore, for their indemnification, and of charging the defendants, Lusk and Waytt, with a fraudulent combination to fix the loss resulting from the insolvency of Lusk, upon the complainant, or exculpating them' therefrom. But as this Court decided the cause upon the general doctrine, that the lien of the first execution continued, in law, to bind the property after the forthcoming bond was given, the reporter thinks it proper not to notice the depositions further.
    The suit having abated by the complainant’s death, was revived in the names of Edward Graham and Sally Ramsay, his administrators ; and came on to be heard the Sth of April, 1805; whereupon Chancellor Brown delivered the following opinion and decree:
    “This is a case of considerable consequence to the parties, but of still greater importance to the public; inasmuch as it involves the inquiry, ‘whether the giving of a forthcoming bond is a satisfaction of the execution, and a release of the property upon which it has been levied?’ It is contended by the counsel for the defendant, that the question has been decided by the Court of appeals, in the cases of Dun-dass & Taylor, 1 Wash. 92, and Eckhols v. Graham, 1 Call, 493; and that the same principle has been decided in England, in a case of replevin. (This last case I have not been able to find; but conclude that there can be nothing in it, strictly applicable to the case at bar.) If this is so, our inquiries ought to be at an end. Let us examine the authorities in the Court of appeals. In Taylor & Dundass, the question was on the propriety of quashing a second execution, the first having been returned, ‘levied on slaves, and a replevin bond; taken,’ and no other proceedings had thereon. *Here the Court say, ‘that the replevy is the same as if the estate had been sold to the amount of the debt; and, though it is an indulgence: given to the defendant, still the execution is considered as levied, and the judgment discharged; and that, under the act of Assembly, a bond to replevy is as complete an execution of the judgment as if the estate had been sold to the full amount of the debt; and the party is left to pursue his. new remedy upon the bond.’ ‘What is the act of Assembly here spoken of?’ That, where goods taken in execution cannot be sold for three fourths of their value, it shall be lawful for the debtor to give bond and security, &c. to pay the money, or tobacco, and costs and interest, to the creditor, within, twelve months; and on such bond being given, the sheriff shall restore to the debtor the goods or estate so taken. The principle established, or recognised by this decision, is, that the taking a replevy bond was the same thing as levying an effective or productive execution; after which, and while it was in force, no second execution could issue, though the goods, taken on the first should never be sold. What is the doctrine established by the-judgment of the Court in the case of Eckhols v. Graham? That the plaintiff, by suing out a second execution, waives-all benefit under the first, and destroys the lien which the first execution had upon the property on which it was levied. In that case, the appellee had, on the 25th day of September, in the year 1788, purchased certain slaves, on which it was said (though the fact is not found) that an execution had been levied, on behalf of Craig, and a bond given for their delivery on the day of' sale, in the August preceding. After the sale, in September, a second and third execution issued, under one of which the property was sold. It seems, indeed, to have been conceded by the counsel for the appellant, that, if the -forthcoming bond had been legal, the property would thereby have been released from the lien created by the execution. And it is positively asserted by the appellee’s counsel, and in some degree ^admitted by the Court, that the sheriff’s return, ‘that a forthcoming bond was taken, and the property restored to the debtor,’ was a clear release of the property, and enabled the debtor to dispose of it. But as this was not the point on which the Court decided, and as the judge, in delivering that opinion, adds, ‘But be this as it may;’ lam induced to believe that the assertion of the-counsel, and the acquiescence of the Court,. may have proceeded from not attending particularly to the distinction between a replevy and a forthcoming bond. And I am the more inclined to think so, from the language used by the counsel; viz. ‘The restoration of the property. ’ Where' a replevy bond was given the sheriff was bound to restore the property. To replevy is to release. But when a forthcoming bond is given, the law uses a very different language. The sheriff, in that case, ‘shall suffer thé said goods, &c. to remain in the possession, and at the risk of the debtor, until the day of sale.’ Considering myself, then, unfettered by any express authority on the subject, my duty obliges me to hazard my own opinion on the law of this case. This opinion I pronounce with great diffidence, as it is different from what I understand the general opinion to be; but it will afford an opportunity of settling the question (as I think) it remains unsettled.”
    “The intention of the legislature was to indulge the debtor, without hazarding the rights of the creditor. For this purpose, the debtor, on giving bond and security to deliver the property on the day of sale, is permitted to retain the possession and use of it, until that time, and relieved from the inconvenience and expense of a removal by the sheriff, until such removal becomes necessary for the purpose of satisfying the execution. If he pays the money, no sale or removal is necessary. He is also free from the expense of supporting or keeping his property, between the execution and sale, and is much interested in its safe and proper keeping and support. *The creditor can sustain no injury, if the property is delivered according to the condition of the bond; if not, the bond has the force of a judgment, on which a new execution may issue. But does it follow that the giving of a forthcoming bond releases the property frpm the execution? Must a new execution issue before a sale can take place, if the property is delivered according to the condition of the bond? If not, and the forthcoming bond discharges or satisfies the execution, (as contended,) by what authority does the sheriff proceed to sell? How is he to make a return on his execution? In the case of a replevy bond, the execution is always returned without waiting for the day of payment, and the property can never be sold without a new execution. In the case of a forthcoming bond, the execution is seldom returned until after the day of sale, (perhaps it ought not to be returned before,) and none but the goods levied upon can be sold, except by-consent, under the execution ; and yet we are told that the goods are released from the power of the execution by the forthcoming bond! What is the language of the act of Assembly? If the debtor gives bond and sufficient security to have the same goods and chattels forthcoming at the day of sale, it shall be lawful for the sheriff to suffer the said goods, &c. to remain in his possession, and at his risk, until that time. Why at the risk of the debtor, if the goods are released from the execution? The debtor’s own goods are always at his risk. Why until the day of sale? If they are released, the sheriff has no right to call for them on that day, more than for any other goods. The bond creates no obligation to produce them, and yet the sheriff has the right, and it is his duty to demand and receive them, or to be, at the time and place of sale, ready to demand and receive them ; and the delivery of other goods will not satisly the condition of the bond. I am, therefore, of opinion, that the goods are not released from the execution until the day of sale, notwithstanding a forthcoming bond may have been given.”
    *“But it is said, the debtor may dispose of the goods in the mean time, and that the sale will confer a good right to purchasers. How far a bona tide purchaser of such property, without notice, might be protected against a security demanding to deliver in discharge of his bond, is not necessary now to determine. There is no such person before the Court. Perhaps, in that case, the security might suffer for his folly, in putting confidence in a man who was base enough to deceive him. But what is the case at bar? A deputy sheriff levies an execution on certain store goods, and takes a bond for their delivery on the day of sale. A day or two previous to the sale, he receives those very goods from the debtor, in discharge of his body taken on a subsequent execution; he puts the key of the store room in his pocket, and, in the solemn mockery of his official duty, goes to the place of sale at the time appointed, to receive those goods, after he has put it out of the power of the sureties to deliver them; the key is demanded that the goods may be brought forth; the demand is refused; the first debt is secured at the expense, perhaps, the ruin, of the innocent securities; and the second is to be satisfied through the baseness of the debtor, and the connivance of the sheriff! What follows? The bond is forfeited; one security alone is notified, and that one, who was not present at the place of sale, to know what passed there; an execution is awarded against him; and his property must be sacrificed, because the sheriff prevented the delivery of the goods ! I mean here not to insinuate that the deputy sheriff acted corruptly. His character stands far above all imputations of that kind. He appears desirous of doing his duty, and to have acted on the opinions of others, in whose judgment he had greater confidence than in his own. But are the securities to suffer because he has erred? Was it ever intended that the law, for the relief of debtors, should be made the engine of fraud and oppression upon their innocent securities? That a sheriff, having two executions against a man, whose integrity *could be relied upon, and who could, therefore, easily obtain security for the delivery of his whole property, if necessary, should levy one of them upon his property, and, as soon as a bond was obtained for its delivery at the day of sale, should then immediately reseize the same property by virtue of the second execution, and thus subject the securities, in the first place, to the payment of the debt? Yet this is the doctrine contended for. Instances of such proceeding's I have before heard of. It is time to establish, firmly and unequivocally, or to discountenance, forever, such doctrines and such practices. If the lien remains upon the goods, the proceedings are illegal. If it does not, whatever may be the motives of the sheriff, however pure his intentions, yet it is a fraud upon the securities, against which this Court, until better advised, will always relieve. If the goods had been delivered, the bond would have been satisfied, and no execution could have been awarded on it. They would have been delivered, but for the improper interference of the sheriff, who is responsible for his conduct to the creditors. This Court will, therefore, relieve against all persons claiming any benefit under an execution thus improperly obtained.”
    “It is, therefore, adjudged, ordered, and decreed, that the injunction awarded the intestate of the plaintiffs, be perpetual,” &c.
    From this decree the defendants appealed.
    Wirt, for the appellants.
    Peyton Randolph, for the appellee.
    
      
      Fieri Facias — Lien.—See monographic note on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440. The principal case is cited in Cole v. Fenwick, Gilm. 139.140.
    
    
      
      Forthcoming Bond — Right of Security to Deliver the Property. — See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107. See the principal case cited in Langford v. Perrin, 5 Leigh 556. 558.
    
   Wednesday, March 2d, 1814, the judges pronounced their opinions.

JUDGE CABEEE.

Jones & Co., having obtained a judgment against David Eusk, issued a fieri facias against his goods and chattels, which execution was put into the hands of Troyman Waytt, a deputy sheriff for the county *of Rockbridge, and was levied on certain goods, which were restored to Lusk, on his giving a forthcoming bond, in the usual form, and with the usual condition. A very short time before the day of sale, another execution, a ca. sa., in favour of Boys & M’Cal-mont, against the said Lusk, was put into the hands of the same deputy sheriff, Troy-man Waytt, who had taken the delivery bond aforesaid; and he levied it on Lusk’s body. Lusk being still in the possession of the same goods embraced by the delivery bond, tendered them to Waytt, in discharge of his body. Waytt, who appears from the testimony to be a man of most unexceptionable character, and incapable of intentional impropriety in the discharge of his office, received the goods, knowing them to be the same included in the delivery bond, and thereupon discharged Lusk’s body; but he did not receive them until he had convinced himself of the propriety of the measure, by consulting those in whose judgments he had more confidence than his own, nor until he had obtained from the attorney of Boys & M’Calmont, positive instructions to receive them. Waytt attended at the time and place appointed for the delivery and sale of the goods, and was required, on behalf of the securities in the bond, either to produce the goods as he had the possession of them, or to give up the key of the store where they were lodged, that the friend of the security might deliver them up in discharge of the bond. He refused to comply with either of these propositions, but returned the bond forfeited. A judgment, and award of execution thereon, having been rendered against Ramsay, one of the securities, he obtained an injunction, from the chancellor of the Staunton district; who, on the hearing, was of opinion that, an execution being once levied, the lien on the property still continues, notwithstanding the giving of a forthcoming bond; and that the conduct of Waytt (although he believed him incapable of intending to commit a fraud) was, nevertheless, ipso facto, a fraud against the securities; that the goods would have been delivered but for his improper interference; that, by such interference, *he made himself responsible to the creditors, and that the Court of equity ought to relieve against all persons claiming under an execution, thus improperly conducted; and, finally, perpetuated the injunction. From which decision an appeal was taken to this Court.

This case must, in my opinion, be decided on general principles; for it has no special circumstances. Those parts of the bill which allege that the securities were induced to join in the bond, solely on a previous stipulation, made in the hearing of the deputy sheriff, that the goods were to remain in their care and safe keeping till the day of sale, and then to be delivered by them to the sheriff, in discharge of the bond; and that, in consequence of this arrangement, the goods were actually committed to the securities. All these circumstances are flatly denied by the answer. The answer, moreover, is strongly supported by the testimony of John M’Cle-land, who was present, and aided in taking the inventory of the goods. He thinks there was nothing more than the general trust and confidence in cases of delivery bonds, and deposes positively that Lusk, the principal, had, after the execution of the delivery bond, the use of the store, and might have sold the goods if he had been disposed to do so. The allegations of the bill are not supported by a single witness; for I throw out of the 0case the deposition of Robert Moore, one of the securities in the bond, as being an incompetent witness. The release executed to him by his security, Ramsay, was a mere nullity. Moore was bound to Jones & Co., the obligees; and they only could release that obligation. They have not done it, and the obligation remains. But, admit, him to be competent, I cannot believe him; for, in addition to the interest which he still feels to vacate the delivery bond, it cannot be forgotten that he endeavoured, in the first instance, to shield the goods against the operation of the execution, by setting up a fraudulent claim of interest in them. I call it fraudulent, because it was quickly abandoned, and has not been ”since asserted. I have thought it necessary to strip the case of these circumstances, that we may nfore clearly perceive the real question in controversy; but I am not prepared to say that they would have produced any change in my opinion, even if they had been fully established.

The great question in this case is, whether it was competent to Lusk, after the execution of the delivery bond, to tender the same goods, in discharge of his body, taken on another execution. The minor questions, whether it was competent to the same sheriff, who had levied the first execution, and had taken the delivery bond, to receive them, in discharge of the second execution; and whether, having thus received them, and being thus in possession, he was bound to sell them under the first execution, are, in fact, only different modifications of the same proposition. They must all depend on the legal effect of an execution, in relation to the lien upon, or change of the property against which it issues, or on which it has been levied. When I use the term legal, I shall, of course, be understood as alluding as well to our statutes, as to the common law.

The delivery of an execution to the sheriff does not alter the property of the goods, for that still continues in the defendant. It however binds the property, by which nothing more is meant, than that any subsequent sale by the debtor will be void ; the goods being, from that time, in the language of Gilbert, (Baw of Executions, p. 13, 14,) “attendant to answer the execution or, as is more distinctly stated in 2 Equity Cases Abr. (p. 381,) “if the defendant make an assignment of them, unless in market overt, the sheriff may take them in execution.” But by levying the execution, the property of the goods is changed, and they are in the custody of the law. The sheriff acquires, by the seizure, a special property, but it is a special property only; the general property being devested, and in abeyance. (1 Salk. 323, Clerk v. Withers; also, 6 Mod. p. 293, where the same case, and particularly this ^principle, will be found more at large.) As a consequence of this principle, that the property is devested, and out of the defendant, and that the goods are in the custody of the law, he is said to be discharged of the judgment; that is, the plaintiff cannot proceed on the judgment by sci. fa., or action of debt, but must proceed against the sheriff. But what is the nature of the special property acquired by the sheriff? It is only that he acquires the right, and incurs the obligation, to possess, take care of, and sell the goods. As a consequence thereof, he is liable to the plaintiff for rescous, or other casualties, and may therefore maintain trover or trespass against any person who may take away or injure the goods, But if, at any time, the state of things be such that (in the language of Bord Holt, in Clerk v. Withers, 6 Mod. 292,) “there be none who can make title to the goods under the execution, the first owner ought to have restitution.” By which I understand, that the debtor is restored, not only to the possession, but to all his right of property.

I have premised these general principles, that we might clearly perceive the situation of the goods when under execution at the common law, and the nature of the lien which the execution has upon them. Bet us now consider the situation of the goods after a delivery bond has been given; and we shall thus be able to determine whether the above principles are still applicable to them, and whether there remains any lien upon them.

When an execution shall be levied on any goods and chattels, our act of assembly, instead of making it the duty of the sheriff, as at common law, to take them out of the possession of the owner, and to retain that possession till the day of sale, gives to the owner a right to tender, and imposes an obligation on the sheriff to receive, bond and good security, payable to the creditor, with condition to have the goods and chattels forthcoming at the day of sale appointed by the sheriff, who “shall thereupon suffer the said goods and chattels to remain in the possession, and at the risk of the debtor until that time; *and if the owner of such goods and chattels shall fail to deliver up the same according to the condition of the bond, or pay the money or tobacco mentioned in the execution,” the bond is to be returned to the proper office, and to have the force of a judgment. This procedure is unknown to the common law. What is its effect, and what becomes the situation of the goods? The sheriff has no right to seize them, by that execution, against the will of the debtor, either before or after the day of sale; for the function of levying has been already performed, and he has nothing more to do than to sell them, in case they shall be forthcoming at the day of sale, according . to the condition of the bond. He is not liable for the taking away, or for the injury or total loss of the goods; for they are no longer in his custody, but in the custody of the debtor, and at his risk. He can bring no action for, or concerning them; for none of the reasons, on which a sheriff’s right to sue is founded, are applicable to his case. He can take no measure to force the debtor to have the goods forthcoming at the day of sale; for the debtor has his option to deliver them, or to incur the consequences of a forfeiture. If, then, the sheriff, by receiving the delivery bond, parts with the possession of the goods, has no right to seize them again, is in no manner liable for them, can bring no action concerning them, nor take any measure to compel their delivery, it would seem to me to be a necessary inference, that the execution retains no*vestige of lien on the goods; “there is no person who can make title to them, by virtue of the execution;” and, of course, the debtor is restored to all his rights over them.

It is the business of Courts to decide, not the moral duties, but the legal rights of the parties litigant. Delivery bonds were introduced for the benefit of defendants in execution. I presume there can be no doubt, but that the principal in a delivery bond has the legal right, which no Court can obstruct, to forfeit his bond, by failing to have the property forthcoming on the day appointed for its delivery and sale. He incurs thereby the penalty annexed *by law; and that is all that others can require of him. If he has the right to hold back the property on the day of sale; by means whereof the bond becomes forfeited, and the execution is at an end; cui bono, and on what principle, shall he be prevented from making any disposition of it he may please, before the day of sale? This power of previous disposition of the property,' forms, in my opinion, one important ingredient in the policy of our laws on this subject, and has been often exercised to the great benefit of defendants, whilst it can never injure the plaintiffs in the execution.

It is said that the execution is an entire thing. This is unquestionable; but it is equally' true that a delivery bond, before its forfeiture, is a part of the execution ; and although it was introduced for the benefit of defendants, yet it is in no way injurious to the plaintiffs, as it affords them ample amends for the lien on the property which the execution before had, but which lien is removed and substituted by the delivery bond. The execution is not at an end; it is not discharged; but from the moment of giving the delivery bond, and until the day of sale, it does not operate as at common law upon the property; it exists, during that period, in the delivery bond only. If the property is produced on the day of sale, the bond has accomplished its object, and is as much out of the case as if it had never existed; the execution resumes its operation as at common law, and the sheriff proceeds to sell accordingly. If, however, the bond is forfeited, the execution is then completely at an end; the bond assumes a new character, attains the dignity of a judgment, and becomes the foundation of a new procedure.

Much reliance was placed, in the argument of this case, on the different forms of expression applied by our acts of Assembly, to forthcoming, and to replevy, bonds. It is admitted, on all hands, that the latter operated a complete discharge of the property ; and with respect to them, the language of the law is, that the sheriff shall restore the goods to the debtor; whereas, with respect to ^delivery bonds, he is to suffer the goods to “remain” in the possession, and at the risk, of the debtor. From this difference of phraseology, an effort was made to prove a difference of intention in the legislature. But I think the difference of expression may be easily accounted for, without this result, by attending to the history of our laws, and the known practice of the country. The first of our statutes now extant, on the subject of executions, is the act of Car. I. March, 1642-3, (1 Hen. Stat. at large, 259,) referring to a former law on the same subject, which, however, appears to have been lost. From that period, to the year 1726, executions were payable in property at valuation, which the plaintiff was bound to receive in discharge. The proceeding was a very speedy and summary one. The act of 14 Car. II. March, 1661-2, (2 Hen. Stat. p. 80,) directed, that if either party neglected to appoint appraisers, within three days after the service of the execution, the sheriff should appoint appraisers for the party so failing; and that the sheriff should not, before the appraisement, remove the goods out of the possession of the “plaintiff.” This is certainly a typographical error. The assembly clearly meant defendant, for the act goes on to say that the surplusage shall be paid to him, and that, after appraisement, the property shall vest in the sheriff, for the use of the creditor, to whom the sheriff is directed to give notice, that he may take it into his own possession. The act of 4 Anne, 1705, (3 Hen. Stat. at large, 385,) gives us the first notice of a delivery bond; but it was a bond to produce the property at the end of three days, for appraisement. The act of 1726, (Virginia Laws, edit. 1733, p. 356,) repeals the former laws, allowing executions to be paid in kind, and directs the sheriff to sell the property, on giving three days’ notice, allowing the debtor, however, to give a deliverj’- bond, to have the goods forthcoming on the day of sale, whereupon the sheriff is to suffer the goods to remain in his possession, and at his risk; and provides, also, that if the debtor, on the day of sale, shall *tender the debt, damages, and costs, the sheriff shall accept the same, and restore the property to> the debtor. The act of 1748, (edit, of 1769, p. 190,) so far as relates to this subject, is substantially a copy for the act of 1726; and so stood the law until the year 1769. I account for the term “remain,” in the first clause, on this consideration, that the usual practice is for the defendant, who means to avail himself of the privilege of giving a delivery bond, to give it on the service of the execution, before the property is removed,, from his possession. It is indubitable that this is the course usually pursued now, and must have been much more frequently pursued formerly, when the time between the service of the execution and the day of sale, was so much shorter than it is at present. The goods, although seized, not having been taken out of his possession, were very properly said to be suffered to remain in his possession. Besides, the legislature contemplated not only the possibility, but even the probability, that they would not, in the mean time, be disposed of by the debtor, but be forthcoming at the day of sale; and on this ground, also, the expression would be appropriate. But, then, it is contended, that the term restore is used in the proviso relating to the tender of the debt, &c. on the day of sale, both in the act of 1726, and of 1748. There is one state of things which would render that term, or some equivalent one, necessary; and that is, where the debtor delivered the property on the day of sale, but, afterwards, on the same day, tendered the money, &c. In that case it would be incumbent on the sheriff not to sell, but to restore the goods to the debtor. There is no other state of things to which that term could, with propriety, be applied. If the goods were not produced at the day of sale, and delivered to the sheriff, he could not “restore” them to the debtor. They were already in the possession of the debtor; he alone had the control over them, and he required no act on thg part of the sheriff, to complete his title to them. This expression, however, is omitted *in the act of 1769, in relation to delivery bonds. The act of 1748 gives a new privilege to defendants, by allowing replevy bonds, and directing that where an execution has been levied, and the debtor shall, within live days, or at the time of sale, tender bond and security to pay the debt, &c. within three months, the sheriff shall restore the goods to the debtor. This law expresslj' contemplates a case where the goods have been actually taken out of his possession, and, therefore, it provides, not for their remaining in his possession but for their being restored to him. But I think it unnecessary to rely on the critical disquisition of terms, for the discovery of the legislative intention when that intention has been clearlj' and positively expressed, as I conceive it is in the preamble of the act of 1769, (Chan. Rev. p. 3,) which explicitly declares, that the previous act of Assembly, allowing the debtor to give a delivery bond, had provided no remedy for the creditor or officer, in case the debtor refused to deliver up the goods and chattels according to the condition of the bond; and that the creditor or officer, being therefore obliged to commence a new suit on such bond, was compellable, on serving another fieri facias, again to accept security to have the estate taken forthcoming, and might be thereby prevented from ever recovering the debt. This proves, to my mind, that the legislature thought that the giving a delivery bond released the property; and although that legislative exposition of the law might not be binding on the Courts, as to cases occurring before, j’et I should think it conclusive as to all subsequent cases.

I am, therefore, of opinion, not only on general principles, but on a construction of our acts of Assembly, that a defendant in execution, on giving a delivery bond, is restored to all his rights of property; and, of course, that it was competent to Tusk, in the case before us, to tender the property embraced in the delivery bond, in discharge of his body on the second execution. If it be competent to him to tender the prop-ertj', it follows, necessarily, that *it was competent to, and obligatory on, the sheriff to receive it. The circumstance of the sheriff’s knowing that the goods tendered were the same included in the delivery bond, cannot affect the case. That knowledge cannot destroy the rights of the debtor over his own property. Nor is there, in my opinion, any thing in the assertion that the sheriff, being in possession of the goods, should proceed to sell them under the first execution. He is in possession, and has a special property in them by virtue of the second execution, and is authorized and bound to sell them under that only. Nor can the plea of disability, by the act of the law, apply to this case; for it was the party’s own act that put the goods into the custody of the law.

One word as to the securities to this delivery bond. I see nothing in their case to distinguish them from other securities. The law contemplates the liability of securities for the default of their principal. It is for the sole purpose of making them liable, that the law has required them to be given. They arrested the progress of Jones & Co.’s execution, by their own voluntary act, by their confidence either in the integrity of Lusk in delivering the property, or in his ability to pay the debt, or to indemnify them for the failure. They voluntarily became hound that Lusk should deliver the property, or pay the debt, or that they would pay it for him. They now complain that he has disappointed and defrauded them. Admit it. But let the loss fall on those who have imprudently trusted him, and not on just creditors, who, but for their interference, might long ago have received their debt.

On the main question, then, I am of opinion that the decree is erroneous, and ought to be reversed. I give no opinion on the other points, made as to parties and jurisdiction, not deeming it necessary, according to the view that I have taken of the subject.

*JUDGE ROANE. 1 am not certain that the proofs in this cause fix upon the appellant, Waytt, any particular knowledge of Lusk’s agreement, that the appellee, and Moore, should retain the custody of the property until the day of sale, or of their actual custody thereof, in pursuance of such agreement, so as to convict him of a fraud, in acting in contravention thereof; yet the circumstances of the case clearly justified a resort to a Court of equity, to obtain a discovery of this fact from him, and to eviscerate the transaction. That resort was also necessary, for the purpose of making Waytt a party to this suit, who was no party to the judgment on the forthcoming bond. It is also justified by the consideration, that, although the goods taken under the first execution, and for the delivery of which a forthcoming bond was taken, were not, in fact, delivered by the parties thereto, on the day appointed for the sale, (a circumstance which might, possibly, have weighed with the Court of law, in rendering the judgment now enjoined,) yet that delivery having been, in fact, prevented bj' the act of the sheriff, who also had them already in his possession, by virtue of the second execution, with a full knowledge that they were the same goods, it was unconscionable in him to sell them to satisfy the last execution, and to return the bond forfeited which was taken on the first. The case, stripped of the circumstances tending to convict the sheriff of a fraud as aforesaid, depends upon the question, whether the lien acquired on goods seized in execution, and redelivered to the debtor on his entering into a forthcoming bond, is lost, by that circumstance, before the day of delivery has arrived, and the bond is forfeited by the nondelivery of the goods?

This question has never yet received the deliberate consideration of this Court. There have been decisions in relation to replevy bonds, and to forthcoming bonds, after the same had become forfeited. The cases of Downman v. Chinn, and Echols v. Graham, are of this last description. But there are no decisions of this *Court applying to the effect of such bonds, before the day of delivery has arrived. I shall, therefore, consider this as a new question.

I will consider this question, 1st. Upon the acts, allowing a forthcoming bond to be given, anterior to that of 1769, ch. 3, which placed them their present footing; and, 2dly. As affected by that act; but I will first premise some general observations, under the influence of which the case, in both aspects, is to be tested.

I will remark, in the first place, that an execution is the life of the law; that it is the end, and effect, and fruit of the law; that it differs from an action, which only continues until the judgment is rendered; and that, consequently, a release, of all actions would not release it.

I will observe, secondly, that, as the law subjects the sheriff to an action, at the suit of a creditor, in respect of the goods taken, so it vests him with such a posses-sory property therein, that if they are taken out of his possession, he may maintain trespass or trover for them, against the wrongdoer, as well as a carrier or bailee of goods may; and that it is no plea for him to say that they were rescued.

Thirdly, I will remark, that, by the common law, the fi. fa. had relation to the time of awarding it,' and that if, after the teste of it, the defendant had sold the goods, although bona fide, they were liable to be taken in execution, with the exception of a bona fide sale in market overt; and that the principle of this position is not changed by the act of 29 Car. II., (and our act on the same subject,) by which the property is bound only from the time of delivering the writ to the sherifE. This principle is conclusive, to show that the possession of the goods may be in the defendant, and the right in the creditor; that this right accrues even before the service of the execution, and relates back, after, by a service thereof, it has attached on particular goods, so as to overreach all intermediate dispositions thereof.

*Fourthly, But that the general lien on the debtor’s property, arising from the delivery of the writ to the sheriff, is released by the particular one acquired upon the identical goods, seized by a fieri facias. I infer this as a corollary, from its being held that, by the seizure to the amount of the execution, the defendant is discharged; for that the plaintiff having made his election, and taken his goods, no other remedy could be had against the defendant, but only against the sheri£f; and again, that the judgment is discharged by a seizure on a fi. fa.

Fifthly, It is held that, by the seizure, the property is devested out of the defendant, and in abeyance ; and being so de-vested, it will require, I presume, clear and explicit acts, or provisions of the law, to revest the same in him before the execution has performed its office.

Sixthly, That an execution is an entire thing, and if once lawfully begun, must be completed ; • and that when it is once begun it cannot be suspended, This principle would equally go to reprobate any suspension of the lien, (which is the life of the execution,) unless there be positive words to that effect; and, especially, if there be other grounds on which to account for the custody of the goods seized being granted to the defendant.

And, seventhly, That subsequent statutes, which give cumulative remedies, or penalties, neither repeal former statutory ones, nor such as are given by the principles of the common law; and that the criterion, determining whether they are accumulative or not, seems to be, whether the first statute or remedy may stand with the last.

Bearing in mind these several principles and positions, let us examine the first branch of our inquiry; namely, the state of the question before us, as depending upon the acts prior to that of 1769, ch. 3.

This provision in favour of forthcoming bonds, seems to have been first distinctly introduced into our code in the year 1726. (See edit, of 1733, p. 362, sect. 16.) *That act (after declaring, in the previous section, that where goods shall be seized by a fi. fa., and the debt shall not be paid within three days, the sheriff shall proceed to sell the same on the third day after the next Sunday, on which day due notice of the time and place of sale shall be published at the adjacent church, or chapel) enacts, in substance, by way of proviso, that, if the debtor shall give sufficient security to the sheriff, or other officer serving the same, to have the same goods forthcoming at the time of sale, it shall be lawful for him to accept such security, and thereupon to “suffer the same goods to remain in the possession, and at the risk of such debtor, until the time aforesaid;” with a further proviso, that if, at the time of sale, the amount of the debt shall be paid or tendered to the sheriff, he shall accept the same, and restore the said goods to the owner. This last provision, for a restoration of the goods after the debt is paid, not only amounts to the revestiture mentioned as being required as aforesaid, and shows, that when such restitution was intended, the legislature knew how to use the appropriate terms to effect it, but would have been wholly superfluous, if such restitution had been effected by the previous provisions of the act, allowing a forthcoming bond to be taken.

This was, at that time, the only legislative provision on the subject of forthcoming bonds; it was not until the year 1769, that they were, in event, declared to have the force of judgments, and placed on their present footing. Nor was it until the year 1748 that the provisions relative to replevy bonds were introduced into our code.

We have already seen that a particular lien is created upon the identical goods seized in execution, in lieu of the general one existing prior to levying the same; and that the sheriff, in consequence of his liability to the plaintiff, and of this lien, may recover the goods seized by an action of trespass or trover. There is nothing inconsistent with this lien, in the permission given to the ^debtor by this act, to hold his goods for a few days, and until the day of sale. The latter right is merely an exception out of the former, for the convenience of the debtor, and whose custody is, for the time, the custody of the sheriff. It merely amounts to this, that the custody of the defendant, allowed by the act, is not such an eloigning of the goods as would authorize the sheriff to sue therefor. It would excuse him in case of non-delivery. There is no such incompatibility between the right of the sheriff, and that of the defendant, under the delivery bond, as must repeal the former by implication, and deprive the debt- or’s custody, authorized by this act, of its accumulative character. The two may well stand together; the one respects the right, and the other the possession, of the property, until the day of sale. There is not only no such incompatibility between the two, as, in default of an express provision of the act to that effect, would deprive the debtor’s right of custody of its accumulative character, and make the bond, before its forfeiture, a substitute for the execution, but that construction would exhibit a case entirely anomalous in our laws. It would exhibit the spectacle of an execution, which still remains in force, (for it is only bjr its virtue that the goods, if delivered at the day, can be sold,) losing its lien upon the goods, on which it attached by their seizure, and having lost its general lien before, by that seizure, continuing to exist without any power whatsoever over any of the debtor’s property. It would exhibit this spectacle, and by depriving the execution of its soul, (if I may so express ,myself,) leave it a mere caput mortuum, in the face of the principle, which declares, that when the execution has once begun it cannot be suspended. It would, in fact, suspend the essence of the execution, although the execution itself would be permitted to remain in existence. It is acknowledged, on all hands, that if the goods are delivered, that sheriff is to proceed to sell them. He is so to proceed, although no new seizure or lien on them is revived or created, and *although no power to sell them, in case of delivery at the day, is given by the act; but the common law right to sell, after seizure, and by virtue of the lien thereby created, is only admitted, or recognised, by the preceding provision of the act. He is to sell them, although, certainly, the condition of the bond (which is merely to deliver them at the day and place of sale) cannot, of itself, confer a right to sell. When, therefore, the sheriff is authorized to sell the goods, in the event of the delivery, under the bond and that right is neither expressly given by the act, nor is any new lien created or revived thereby, or by the bond, competent to carry with it the right to sell; and as a mere compliance with the condition of the bond does not confer such right, it is only the old lien which gives that right; unless we are prepared to say, that a sale may be made under an execution which has- never been levied on any goods, and much less on the goods offered for sale, or (which is the same thing) upon goods which, though once under a lien, have been absolutely and completely liberated therefrom. There is not only no provision in the act reviving a lien on the goods supposed to be liberated, or expressly giving to the sheriff a right to sell them in case of delivery, but such provisions would have been equally unimportant and unnecessary. It was not necessary to destroy or disturb the even tenor of the existing lien, for the mere and sole purpose of reviving it again, at the end of a few days. There is, therefore, an equal defect of such a provision, and of any-rational ground on which to have founded it. The admitted right to sell the goods, therefore, under all these circumstances, is conclusive to show, that the old lien has never been lost, nor extinguished; it is more conclusive from this consideration, that that right is confined to the same goods which were seized under the execution.

If it is asked, to what purpose is it that this lien is continued, when the sheriff has no right to disturb the custody of the debtor until the day of sale? I answer, it *is equally necessary to enable the sheriff to sell the goods, if delivered, and to preserve his right thereto, if not delivered. I here speak of the case as depending upon the acts prior to that of 1769, which gave to forfeited forthcoming bonds a new character, and destroyed the lien after the day. If it be further asked, why, when this last-mentioned circumstance destroys the lien after the day, (under the present acts,) and when the sheriff’s power over the goods was obstructed by the delivery bond up to the day of sale, is the lien to be considered in force for the mere pittance of time comprised in the day of sale? the answer is still the same; to enable the sheriff, then, to sell; to preserve the principles and symmetry of the law, and to hold the debtor’s goods liable to pay his debts (if he or his sureties should deliver them) in case of his said sureties.

I may ask, on the other hand, why is this lien not to continue? Is it to enable a debtor to saddle an innocent surety with a debt due by himself, by releasing the proper fund for that purpose? Is it to enable a subsequent creditor to get the advantage of a prior one, who has been diligent, and, certainly, did not contribute to the act by which such release is supposed to be effected? Are these the favour-ite objects of the law? Are they to be effected by remote implication and construction? and under a provision introduced solely for the debtor’s benefit and convenience? Certainly not.

It is not a natural construction, in considering the effect of the act in question, that an execution, which is the end of the law, and cannot be suspended, should be surrendered up, or deprived of its power, for a mere right of action upon the forthcoming bond; a right of action, too, only inchoate up to the time of forfeiture; and that, under circumstances which, for want of a provision (prior to the, act of 1769) that “no security should be taken” on serving the execution founded thereon, would involve a plaintiff in the never-ending course of litigation, stated as the evil intended to be remedied by *that act. It would have been a great aggravation of that evil, if the lien acquired by the sheriff, by executing the writ of ii. fa., and which gave the creditor his remedy over against him, should be also adjudged to have been lost.

If that lien in favour of the sheriff, and the plaintiff’s remedy against him, bottomed thereupon, should be adjudged to have been lost by the deliverj' of the goods to the debtor, on his executing the forthcoming bond, and if, prior to the act of 1769, the said debtor’s goods could again have been restored °to him on executing a new forthcoming bond, under the judgment rendered upon the former one, and so, toties quoties, ad infinitum, the plaintiff would, indeed, have been without all remedy to obtain satisfaction for a just debt. This is a state of things which would never have been submitted to in this enlightened country, for nearly forty years, and until the act of 1769 provided the remedy. If that state of things did not exist, it was only because the sheriff’s lien, acquired by levying the execution, still remained, notwithstanding the execution of the delivery bond, and in virtue of which he remained liable over to the plaintiff. If it he said that this lien was obstructed by the delivery of the goods to the debtor, up to the day of sale, and impaired by the nondelivery of them after the day, that proves nothing as to the principle of the point in question; it proves nothing as to the effect of a bond as before the day of delivery, and which it is not to be presumed will be forfeited; and even after the non-delivery at the day, it could only impair the plaintiff’s right of recovery, and graduate it by the scale of the sheriff’s impaired right of possession under his lien. It proves nothing as to cases in which the sheriff could, in fact, make that lien effectual. Again, if it be said, that the act of 1769, ch. 3, sect. 1, declares, that no other remedy existed prior thereto, for the creditor or officer, than the inadequate one of suing on the forthcoming bond, as is therein particularly stated; the answers are, *lst. That this is only legislative construction of the existing law upon the subject, and, therefore, not binding upon this Court; and, 2dly. That that act does not say that no other remedy existed, but only that none such was therein (i. e. in the act of 22 Geo. II, ch. 48,) provided. It does not profess to speak as to any remedy arising from any other source, or one given by the principles of the common law.

This construction is corroborated by every provision of the act; for, 1st. This remedy of a forthcoming bond is given by way of proviso, which always operates as an exception; the lien acquired by the sheriff exists, therefore, subject to the right of custody of the debtor; 2dly. The goods are to be suffered, by the sheriff, to remain with the debtor until the day of sale; which expressions, “suffered, and remain,” are equally indicative of a right in the sheriff, and inconsistent with the idea of an absolute and exclusive ownership in the debtor; 3dly. They are to remain in the possession of the debtor, which provision also excludes the idea of property in him; 4thly. They are also to be at his risk until the day of sale; a provision wholly superfluous and unnecessary, not to say absurd, if the lien on the goods was discharged by giving the bond; 5thly. The omission to provide, in the act, that the property should be restored at the time of giving the bond, and only providing therein, on the contrary, that it should be restored in the event of a payment, or tender of the debt, at the day of sale, is conclusive that it is the latter, and not the former, circumstance which releases the Hen.

These considerations, growing out of the very provisions of the act itself, are entirely corroborated by the aforesaid principle, that the property in the goods being devested from the debtor, by levying the execution, and in abeyance, (as we have seen,) it would require explicit affirmative words to restore the same to him. No such words are found, however, in the act, but entirely the contrary. No such restoration is provided for, until *after the money has been paid. There are not only no words in the act adequate to restore the property to the debtor, prior to that event, but neither are there any adequate to revive the lien (on a supposition that it has been suspended) in favour of the sheriff, nor to authorize him to sell. His acknowledged right to sell, therefore, under these circumstances, is conclusive to show, as aforesaid, that this lien has never been suspended nor extinguished.

This construction thus resulting, as well from-the general principles of the law, applying to the case, as from the particular provisions and expressions of the act of 1726, is supported by analogous provisions in some of our ancient statutes.

For example, by the act of 1705, ch. 37, in relation to goods taken in execution, subject’ to appraisement, and delivered to the debtor, he giving bond to have them forthcoming, for the purpose of appraisement, cat the end of three days; that the goods so seized are not released by the giving of the bond, is evident from this circumstance, that the property thereof, after appraisement is, also, declared to be in the sheriff, for the benefit of the creditor. The lien of the sheriff, acquired by the seizure of the goods, so far from being yielded up to the debtor before the day, is, after the day, extended into a permanent one in favour of the creditor.

In this case, notwithstanding the custody of the goods remains for a short time with the debtor, exempt from the power of the sheriff, and notwithstanding the existence of a bond for their delivery, for the purpose of appraisement, the goods, so far from being released by either circumstance, are held to be- specifically bound, after ap-praisement, in favour of the creditor. If they were released from the lien created by the service of the execution, by reason of the custody and bond aforesaid, they' would not thereafter remain bound in favour of the creditor, without the operation of some new seizure or lien, of which none is pretended to have existed. So, in the *'case before us, the lien on the goods remains, without any new act, and the same goods are to be sold, without any new seizure, if delivered agreeably to the condition of the bond. This result is not varied by the circumstance that, by a subsequent act, another and additional remedy is provided in the event that the goods shall not be delivered.

If, in the case made by the before-mentioned ancient statute, therefore, it is found, that neither the custody of the goods thereby permitted to the defendant, nor the bond given, to have them forthcoming for the purpose of appraisement, was construed to restore to the defendant the goods de-vested out of him by the execution; this construction holds a fortiori in the case before us, in which the act in question has provided that another event only, namely, the payment or tender of the sum due, should work such restoration. I may add, as a convincing circumstance in both cases, that the shortness of time, in which the goods were to remain with the debtor, forbids the idea that the destruction of the lien was intended. It could answer no purpose, and would be even ludicrous, to destroys the lien for the mere purpose of reviving it at the end of three days.

Thus the law stood till the revisal in the year 1748, when the three months’ replevy bonds were first introduced into our code, A replevy bond under that act •operated a release of the property: 1st. Because it is expressly provided, that, on the giving thereof, the property shall be restored to the debtor: 2dly. Because the surety therein is to be approved by the creditor; a circumstance very material in a bond considered as a substitute for an execution, and wanting as to the sureties upon forthcoming bonds: 3dly. Because a re-plevy bond obtained the force of a judgment, by the mere giving thereof, though its execution was suspended till the expiration of the three months, and did not owe its obligation, as a judgment, to the breach of the condition thereof, as is the case of forthcoming bonds: and, 4thly. Because no *security was to be taken on the executions issued thereon; a circumstance wholly wanting as to forthcoming bonds, prior to the act of 1769. There being these material points of difference, therefore, between the two ■descriptions of bonds, it by no means follows that, because the replevy bonds operated a release of the property taken, the forthcoming bonds, taken under the act of 1726, had a coextensive effect.

We are next to inquire, whether the act of 1769 made a change in this respect, and operated a release of the property, taken in execution, prior to the forfeiture of the condition of the bond?

The act of 1769, ch. 3, after reciting the before-mentioned provision of the act of 1726, in relation to forthcoming bonds, adds, that, in case the debtor refused to deliver up the goods, no remedy was therein provided for the creditor or officer, who, being therefore obliged to commence a new suit on the bond, was compellable, on another fi. fa., to accept security to have the goods forthcoming, and might be thereby prevented from ever recovering his debt. The provisions of this act (as I have before remarked) seemed confined to the remedy provided by the act of 1726; namely, that upon the forthcoming bond. It does not purport to relate to any concurrent remedy given by the common law; nor, if it did, would its decision, that none such existed, be binding on this Court. It is not conclusive, therefore, to prove that, prior to the act of 1769, giving to forthcoming bonds a new character, the lien on the goods did not continue, even after the non-delivery thereof by the debtor. The mischiefs intended to be remedied by this act, were, the being driven to a new action upon the bond, in case of forfeiture, and compelled to submit to a new forthcoming bond, on the service of the execution founded thereon. The remedy provided was, that, as to the first, the bond, after forfeiture, should have the force of a judgment; and, as to the last, that no security whatever should be taken. These mischiefs and remedies, however, contemplated, and only contemplated, the case of a bond *after the forfeiture; as to the operation and effect of such bond prior thereto, and under which the delivery of the goods may be presumed, no mischief is alleged to have existed, nor is any remedy provided. Under this act, therefore, every thing already said in favour of the existence of the sheriff’s lien, notwithstanding the indulgence given to the debtor, equally applies, until the bond acquires a new character by the forfeiture, as it did before the passing of the act. When that act provides, that the same goods shall be delivered up to the sheriff at the day of sale, it is difficult to conceive how the lien created by the service of the execution has been released. It is not easy to discern how a penalty, devised to enforce the delivery of the property at a certain day, could absolve the party from the necessity of such delivery: or how a duty enjoined by law, is to be dispensed with by a construction arising out of the act enjoining it. In fine, if the sheriff’s lien on the property is released by the mere giving of the bond, it is not easy to see by what authority he is justified in selling the goods when delivered agreeably to the condition thereof. A condition to deliver property to the sheriff, does not authorize him to sell, unless some coeval lien is created, (which is not pretended in this case,) or unless the former Hen still remains; no new lien is created, and it is an anomaly in our law that the sheriff shall sell without a lien.

Admitting that there is an analogy between forthcoming bonds, under the act of 1769, and replevy bonds, that analogy com-menees only after the forfeiture of the condition of the former. After that event, they become perfected under the act; which is the case of replevy bonds from the beginning, with the exception that three months must elapse before they are to be put in force. Prior to such forfeiture, the former class of bonds have not the force of judgments. Prior to the day mentioned in the condition, they are defeasible by the delivery of the property. Prior to the forfeiture, they are mere collateral and inchoate bonds; liable to be ripened, however, by *the efflux of time, and the non-performance of the condition thereof, into instruments having the force of judgments. Admitting, therefore, that, from the superior dignity of a replevy bond, or a forthcoming bond after the forfeiture thereof, they are to be considered as substitutes for the execution, and to release the property attached thereby, it does not follow that the same dignity is due to this conditional, inchoate, and imperfect instrument; imperfect, I mean, when considered as a judgment. It is conceding enough, on the ground of construction, that an execution, this life, and end, and fruit of the law, should yield to a perfect judgment, and not to this imperfect, inchoate, and conditional one. It is too much to expect that the lien created by the execution should be lost, before even a perfect right of action is given in lieu thereof; for no right of action accrues upon the bond, until the forfeiture thereof has been incurred. It is too much to yield to construction, on this subject, that the execution should lose its hold on the property, before even a right of action has been perfected, for which that execution is to be exchanged. It is too much that a provision introduced for the mere convenience and accommodation of the debtor, and which, according to every rule of construction, is a mere cumulative one, should receive a construction deranging every principle of law applying to questions of this kind, and leaving the execution without any effect or power whatsoever. If it be said, that the lien of the sheriff is lost, in consequence of the right of custody being in the defendant, on the principle that where there is no remedy there is no right, the answer may be repeated, that it is no novelty in our code that the right of property should be in one man, and the right of possession in another. Another answer is, that this argument equally held in relation to these bonds, prior to the provisions of the act of 1769; and, then, if the lien of the sheriff (for the benefit of. the creditor) had been held to be lost, it was altogether without an equivalent; as forfeited bonds had not then *the force of judgments: a construction so unjust, that it ought not for a moment to be entertained.

If it be said that this construction would render unalienable all the property covered by the bond, several answers occur to the objection. 1st. That it was not the policy or intention of the act to give the debtor power over the property of the goods seized, and delivered to him on executing the forthcoming bond; but only over the custody or possession thereof. This is sufficiently manifest from the words of the clause itself, already noticed; 2dly. That this supposed exemption would continue but for a very few days; and, 3dly. That the right of the debtor to sell the property, or of another creditor to seize it, subject, however, to the first execution, is not impaired by giving the bond. The right over the property, in this last réspect, is exactly similar to that which exists over property actually held by the sheriff; and the right of the debtor, or a subsequent creditor, as aforesaid, to sell or seize it, subject to the former lien, is a sufficient check against abuses in covering too much property. It may further be remarked, not only that this act depends on the officer, and not on the debtor, but also that the provision of the act, prohibiting unreasonable seizures, extends as well to property relieved by forthcoming bonds, as to such in which no such bonds have been given: it extends • to all cases of seizures by fi. fa., whatever the ultimate fate or destination of the goods may be.

An idea seems to have gone forth, that the creditor may sell the property for the purpose of paying the debt at the day. A right to sell implies a right of property in the articles sold: but this right is repro-bated, in the case before us, by the provisions of the act in question, which imply merely a right of custody or possession, and not a right of property. Besides, the rights of the surety are to be attended to; he ought to be permitted to do that which the law authorizes him to guaranty to be done; to deliver the property. If the debtor has a right to sell the property, to pay off the execution at the day, *he may sell, and not pay it, but saddle the securities with the loss, by squandering the money. Their interest, as well as every other consideration, combines to hold the property liable. The convenience of the debtor, in other respects, and to save him the expense of supporting the property by the sheriff, were the motives of this indulgence; and not to give him an opportunity to sell. He has the same right to sell this property, however, as property in the actual custody of the sheriff.

It has been said, that the forthcoming bond operates a release of the property, from the time of its execution, in consequence of the obligor’s right to forfeit the same. 'There is no such right of forfeiture, in a case in which the bond admits a duty, and provides for its fulfilment under a penalty. The bond is entirely collateral to, and was intended to preserve the lien, and enforce the performance of the duty. I entirely concur in opinion with one of the judges in the case of Cook v. Piles, that a forthcoming bond is no satisfaction of a judgment, until the forfeiture; and I think it follows that, until such satisfaction has taken-place, the lien created under the judgment is not extinguished. The old right does not cease, until the new one is authorized to succeed it. No chasm between the two, is to be created by implication or construction.

In fine, while I see no utility in considering the property as release prior to the day of sale, I can, by a very simple process of reasoning, consider the property, though loaned to the debtor for a few days, to promote his convenience, as still in the hands of the sheriff, and liable to satisfy the execution; which property, however, is liable to be redeemed, and revested in the debtor after the day, if, by a non-compliance with the condition of the bond, that bond shall then assume the new dignity given to it by the provisions of the act of 1769.

The foregoing remarks have considered the question ^principally in relation to the debtor himself. If the object of the law was (as it is not) to enable the debtor to make sale of his goods, for the purpose of paj’ing the debt at the day, (a duty which, from his standing out so long already, he has evinced he had no desire to fulfil,) that object would be entirely answered by extending the power over the goods to him only: but that is not the case. This doctrine, of a releasement of ■the lien, lets in the power of other and subsequent creditors, who, by instantly seizing the same goods, would disable the debtor from effecting the alleged object of the indulgence. If the case be considered in relation to tne creditors, there is no reason why prior creditors should not be preferred to those who are subsequent. There is no reason why goods, let out to the custody of the debtor, should be differed, in his favour, from those actually holden by the sheriff; nor why, in the first case, as well as the last, the right claimed by the last execution should not be considered in subordination to that vested under the first. I can see no such magic in the custody of the debtor, holding under the sheriff, that it should derange all the principles and symmetry of the law in this particular: nor why property, under those circumstances, should be differed from tnat actually in the chambers of the sheriff. There is no principle of the law, on which such a diversity can be justified; there is no principle, which, on this immaterial and unimportant ground, can affect the rights of innocent sureties, disable them (and even the debtor himself) from performing that which the law has allowed and enjoined them to do — discharge the property justly liable to pay the debt, and give subsequent a preference over prior creditors. If such is the doctrine of the law, I see no solid basis on which it can be erected.

In assigning the above as some of the reasons in which my opinion, on this question, is founded, I beg leave also to refer, in corroboration thereof, to the able argument of the chancellor, found in the record. He has also added some very appropriate remarks, as applicable to *this particular case, which, in the view I have taken of the subject, do not appear to me to be absolutely necessary.

It was observed, that Boys & M’Calmont should be parties to this suit. The answer is, that the appellee wants nothing from them. They have received their money; and if any body has a claim against them, it is the sheriff, who, by mistake, or in his own wrong, paid them the money made under their execution. Every purpose of the appellee will be answered by enjoining the judgment on the forthcoming bond. It is next objected, that Jones, the creditor in that bond, is no party. He has answered the bill, and, I think, is, undoubtedly, a party. It is admitted that the subpoena, extends to him; and so does the bill, which, prays, “that the plaintiff, (Jones,) the sheriff, and all parties may be enjoined,” &c. As to Waytt, he may have acted by advice, and his motives may not have been improper; but he has erred, to the appellee's prejudice, and should make retribution. If, in consequence of the decision now to be given, he is liable to Jones for his money, he has probably, from the proofs in the cause, his remedy over against M’Cleland. At any rate, the decree of the chancellor, that this money should not be coerced from the appellee, after he has, in effect, complied with the condition of his bond, or the non-compliance was owing to the sheriff, is entirely just and equitable, and should be affirmed.

JUDGE FMMIse. I have ever been of opinion that goods taken by virtue of a fieri facias, for the delivery of which, at the day of sale, a forthcoming bond had been given, were not released until the day of delivery had past; but were only suffered to remain in possession of the debtor, for his own convenience, and the ease of the sheriff; nor were they subject to another execution until after that time, for, in my conception, the law cannot (nor was it ever intended by the legislature that it ^should) step in by its own officer to arrest and render impossible, to frustrate, or obstruct, what the law itself requires or permits to be done; especially, when it may tend to the distress and irreparable injury of an innocent third person.

In the case before us, the reasoning of the chancellor, as well as that of the worthy judge who last delivered his opinion, appears to me too sound, cogent, and conclusive, to require any further observations on the construction of the act of Assembly permitting forthcoming bonds to be given.

Besides, on a careful perusal of the whole record, it seems to me, that there was a combination among Dusk, Moore, Waytt, and M’Cleland; in which they artfully practised a palpable fraud on William Ramsay, the intestate of the appellees, (who was wheedled and entrapped into the suretyship in the delivery bond,) in order to secure a desperate debt of Boys & M’Cal-mont, and to- saddle that of Jones & Co. on Ramsay, a credulous, unsuspecting, and innocent security in that bond; or why was not judgment rendered also against Moore, a former partner of Lusk, in trade, who at first claimed the goods taken in execution, but afterwards gave them up, and was also the other security in the bond, and who has, hitherto, had the address to keep his own neck out of the collar?

Without further remark, I most cordially concur in the opinion that the decree, perpetuating the injunction, is correct, and therefore affirmed. 
      
       Gilbert’s Law of Executions, p. 15; 2 Saund. 47; 1 Lev. 282; 1 Salk. 322; 2 Ld. Raym. 1072, and 6 Mod. 290.
     
      
       Revised Code, vol. 1, 298.
     
      
      
        2 Wash. 189.
     
      
       1 Call, 492.
     
      
       2 Bac. Abr. 648.
     
      
       Ibid. 720.
     
      
       Ibid. 733.
     
      
       1 Salk. 322, Clerk v. Withers.
     
      
       1 Burr. 34, Cooper, &c. v. Chitty, &c.
     
      
       1 Salk. 322, Clerk v. Withers.
     
      
       1 Burr. 34; 1 Salk. 322.
     
      
       1 Salk. 322.
     
      
       Cowp. 298, Rex. v. Jackson; & 11 Co. Rep. 63, Dr. Foster’s Case.
     
      
       Ch. Rev. p. 2.
     
      
       3 Hen. Statute at large, p. 385.
     
      
       Edition of 1769, p 194.
     
      
       Ch. Rev. p. 4.
     
      
       Judge Cabeld.
     
      
       2 Munf. 153.
     
      
      Note. He was the attorney who obtained the judgment for Boys & M’Calmont. — Note in Original Edition.
     