
    Thomas J. Coffee vs. The Planters’ Bank, use of Anthony V. Winans.
    Where a forthcoming bond is given by one of several defendants, the others who do not join in the bond are, upon its forfeiture, discharged from the original judgment; and a subsequent quashal of the bond, after its return term, being void, does not revive the original judgment against those defendants who did not join in the bond ; as to them, the original judgment is and should be, on motion, entered satisfied, by the giving and forfeiture of the bond by the other defendant; yet it seems if the forthcoming bond were absolutely void, the rule would be different.
    Where there are several defendants to an execution, and the property of one of them is levied on, and one of the other defendants gave a bond for its forthcoming, in which the owner of the property did not join, and the plaintiff allowed the bond to be forfeited, and did not move to have it quashed at the return term ; it was held, that though the bond might be out of the usual course of things, and even irregular, yet the plaintiff had the right to accept it, which he virtually did by failing to have it quashed at the proper term.
    Where there are several defendants in a judgment, and one only moves to have it entered satisfied as to him, and on the motion being overruled he only prosecutes a writ of error; held, that it was not necessary that the other parties should unite in the writ of error.
    In error from the circuit court of Rankin county; Hon. John H. Rollins, judge.
    The Planters’ bank, for the use of Anthony V. Winans, sued Gilbert'Coates, John E. Richardson, John S. Gooch, James R. Harris, and Thomas J. Coifee, to October term, 1838, upon their joint promissory note for $2000.
    At the October term, 1838, a judgment for plaintiff for $2026-26 and costs was entered, and by consent of parties execution was stayed six months.
    On the 29th of April, 1839, a fieri facias issued to the sheriff of Warren county, which came to his hands the 19th of June, 1839, and was returned indorsed, "Levied 9th of August, 1839, on the following negro slaves, to wit, Cinthia, Joshua, Henry, Ned, and Davy, the property of the within named John E. Richardson ; and took a forthcoming bond for the delivery thereof from John S. Gooch, with Thomas J. Green, and H. McNeill as his securities; which bond was forfeited, August 19, 1839. See bond inclosed,” &c.
    The bond is copied in this record. The record contains copies of a fieri facias upon this forthcoming bond, issued on the 13th of December, 1839, and on the 25th of February, 1841, which was returned on the 4th of June, 1841, “ nulla bona.”
    
    On the 6th of June, 1842, the plaintiff, by his attorney, moved the court “ to quash the forthcoming bond on file in this case, dated 9th of August, 1839, signed by J. S. Gooch, Thomas J. Green, and H. McNeill, taken by the sheriff of Warren county, and returned forfeited on the 19th of August, 1839, taken under a levy of a fieri facias, dated and signed the 29th of April, 1839, in favor of the plaintiff, on a judgment dated the 20th of October, 1838, for $2026-66, against G. Coates, John E. Richardson, John S. Gooch, James R. Harris, and Thomas J. Coffee, because said bond was not taken by authority, or according to law, and is variant from the judgment and execution, and for other reasons.” The record states, that this motion was “ argued by counsel for plaintiff in support of, and by counsel for the defendants in opposition to, said motion, and it was considered, ordered and adjudged by the court, that said motion be allowed, and that said forthcoming bond therein mentioned be quashed, set aside, and held for nought.”
    The record then recites, “that the defendants, by counsel, excepted to this opinion of the court, and tendered their bill of exceptions, which was signed and sealed, &c., and made a part of the record, &c. But there appears no such bill of exceptions in the record.
    At the same term, Thomas J. Coffee, one of the defendants, entered a motion to have satisfaction of the execution entered thereon, upon petition and affidavit filed.
    The petition states the rendition of the judgment, the issuance of the execution, the levy and forthcoming bond, as hereinbefore stated; and that the property thus levied on was re-delivered to Richardson, without petitioner’s knowledge or consent; which facts, he insisted, discharged him from the original judgment, and he prayed that it might be entered satisfied as to him. With this petition was filed the affidavit of Gooch, that the levy had been made, and bond given and forfeited, as stated ; and stating also that a subsequent execution had issued, which had been levied on land of Green’s, and two negroes and a family carriage of his, and that Richardson had given the plaintiff’s attorney collateral notes and bills to the amount of $4340-09, and a mortgage to stay the execution, which had been accepted, and the execution stayed. The motion was taken under advisement by the circuit judge, and his opinion delivered in vacation, overruling the motion of Coffee. At the December term, 1842, the judge below signed on the 9th of that month the bill of exceptions to the refusal of Coffee’s motion, which contains his petition and Gooch’s affidavit, and recites the delivery of the opinion refusing the motion, and ordering execution in vacation.
    On the 27th of September, 1842, Coffee alone gave bond, and alone sued out this writ of error with supersedeas.
    
    
      
      W. Yerger, for plaintiff in error.
    1. That the giving of a forthcoming bond by one defendant, discharges the co-defendants, seems clear from previous decisions. A forthcoming bond is a satisfaction of the original judgment. 1 How. 64; lb. 98; 3 lb. 25, 60.
    But again, the court has decided expressly the point presented in Sanders v. McDowell, 4 How. 9; 6 lb. 513; 1 S. & M. 347; 5 How. 480.
    2. Hid the giving of the forthcoming bond by Gooch, alone, discharge Richardson’s property 1
    
    The affirmative of this would seem to follow from the above decisions.
    3. Is a forthcoming bond valid, without an actual levy on the property of the party who gives it?
    To this I would answer, that whether valid or not, is an objection which coaid only be interposed by the parties giving the .bond, as they only could be prejudiced by a failure to levy; and I presume that the rule would be clear, that they would be es-topped from denying the fact of levy.
    ' 4. The court clearly erred in quashing the forthcoming bond at the term when it was done. It was long subsequent to the return term, and the judgment quashing the bond was an absolute nullity, as this court has repeatedly ruled. 6 How. 540; 1 S. & M. 347; lb. 386; 2 lb. 535 ; 3 lb. 64; 4 lb. 549 ; 7 lb. 189.
    And as the giving of the bond satisfied the original judgment, the motion of Coffee to have satisfaction entered on the execution emanating on it, after the quashing of the bond, clearly brings up the question of the validity of the order quashing the bond. As the forfeiture of the bond satisfied the original judgment, Coffee had a right to quash or have satisfaction entered on any execution issued on it against him. If the order of the court quashing the bond was void, the bond still existed, and execution on the original judgment was void; and therefore, on Coffee’s motion, the court must look to the validity of the order quashing the bond. If it was void, the motion of Coffee ought to have been sustained.
    
      
      Foute, for defendants in error.
    1. The pretended forthcoming bond in question, was in fact no forthcoming bond. It was not in accordance with the statute; it was a nullity, and void ah initio. See H. & H. 653, sec. 73; Head v. Beaty, 5 How. 480. It is not contended, under the decisions, that one defendant may not give a forthcoming bond discharging the others; but it is contended, under those same decisions, that this defendant must be the one upon whose property the actual levy has been- made. See case ante, 5 How. 480; H. & H. 653, sec. 73.
    2. Gooch alone could not give a bond which could discharge Richardson’s property, when the levy had not been made upon Gooch’s property, but upon Richardson’s. There was therefore no legal levy, and the bond is void. See Long v. Bank of U. S., Freem. Chan. Rep. 380; Bingaman v. Hyatt, 1 S. & M. Ch. Rep. 446.
    3. We insist that the record in this case does not present the question of the “correctness of the decision in quashing the forthcoming bond.” By reference to the record, it will be plainly seen that nothing but the refusal of the court to enter satisfaction is presented. This court is bound to take it for granted, that all the previous steps taken in the case, were properly and legally taken. Spraiules v. Barnes, t S. & M. 631; Pender v. Felts, 2 S. & M. 539.
    How is this court to know that the quashing of the forthcoming bond was incorrect? They cannot know it, except it appear from the record. It cannot be argued that the question arises incidentally, or by intendment from the record; and yet it seems to us that this is the only way in which it can possibly arise.
    4. The writ of error is prayed, sued out, and bond given by Coffee alone, and that, too, without any writ of summons and severance.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This case comes up from a judgment of the circuit court, refusing to enter satisfaction on an execution against the. plaintiff in error and others.

It seems that the defendant in error recovered a judgment against Gilbert Coates, John E. Richardson, and John S. Gooch, who composed a mercantile firm under the name of Coates, Richardson & Co. and against J. R. Harris and T. J. Coffee, all joint makers of a promissory note.

Sundry executions and also a forthcoming bond are appended to the record, but for the defendants it is insisted that they cannot be noticed, as they were not made part of the record by the bill of exceptions. This is true, and we must decide the case as it is presented by the record proper.

On the 6th of June, 1842, the plaintiff in execution moved to quash a forthcoming bond taken in the case. The motion shows that the bond was dated 9th of August, 1S39, and returned forfeited on the 19th of that month. It recites the judgment, the levy on five slaves on the 29th of April, 1839, and the giving of the bond by J. S. Gooch, Thomas J. Green, and H. McNeill; and as a reason for moving to quash it, that it was not taken by authority of law, and varies from the judgment and execution. This motion was sustained.

At the same term, (June, 1842,) Coffee moved to have satisfaction entered, which motion was taken under advisement, and overruled in vacation. At December term, 1842, Coffee took his bill of exceptions to the decision of the court in overruling the motion. As the decision was made in vacation, the exception could not have been taken sooner.

In support of his motion, Coffee introduced as evidence his petition, accompanied by the affidavit of John S. Gooch. The petition seems to have been read without objection. It shows that execution issued against all the parties; that it was levied on the slaves of Richardson; that Gooch gave a forthcoming bond with Green and McNeill as sureties, and that thereupon the negroes were re-delivered without the knowledge or consent of Coffee; that the bond was forfeited; that at that term (June, 1842,) the bond was quashed on motion, after a previous execution had issued on it, and that in truth the judgment had been paid, off in the manner stated in Gooch’s affidavit. The affidavit states the levy, and the giving of the forthcoming bond as above stated; that another execution issued, which was levied on land of Green, and two negroes of Gooch; that Richardson gave the plaintiff’s claims to the amount of $4340 and a mortgage as collateral security, and obtained a stay without the consent of Coffee.

On this state of facts, did the court err in refusing to enter satisfaction 1 Assuming that the plaintiff in error was in court, which is a point not controverted, we think it did. Although we cannot inquire into the correctness of the judgment quashing the bond, yet we may determine whether it was void or not, and in a similar case we have held such a judgment absolutely void. The case of Field v. Morse & Harrod, 1 S. & M. 347, is directly in point. A bond was given by one defendant, but after the return term it was quashed, and execution sued out on the original judgment. We held that, as the return term of the bond was permitted to elapse, the judgment afterwards quashing it was void, and that being so, the bond still had the force of a judgment, and the defendant who did not join in it was discharged. See also Fellows v. Griffin, 9 S. & M. 362. When a bond has been given, the plaintiff cannot proceed on the original judgment. If the bond is quashed he can do so, but if the judgment quashing the bond is void, then the case stands as though it had not been rendered.

The giving of a bond by one defendant, discharges the others, if the bond was good; but it is said to have been void. Of this we cannot judge, as it is not before us. It seems it was given by one defendant for the re-delivery of property belonging to another of the defendants. This may have made it somewhat out of the usual course of things; it may have even been irregular, but the plaintiff had a right to accept it, which he virtually did by failing to have it quashed at the proper time. We see no reason which will authorize us to say that it was not binding on the signers; if so, it was a discharge of the other defendants. Field v. Morse & Harrod, 1 S. & M. 347; 5 How. 580; 6 Ib. 513. As to Coffee, then, the satisfaction should have been entered.

It is said that all the defendants are not joined in this writ of error. It brings up only the judgment on the motion, which was made by Coffee alone. He is therefore the only party against whom judgment was rendered.

Judgment reversed, and cause remanded.  