
    Henry Bell, et al. v. The Tombigbee Railroad Company.
    An illegal order, quashing a forthcoming bond after the return term thereof, being absolutely void, does not affect the validity of the bond; and an execution may issue thereon, notwithstanding such order.
    An illegal order, quashing a forthcoming bond, at a term subsequent to its return term, does not vitiate the bond, and an execution therefore Upon the original judgment, having no judgment to rest Upon, cannot be sustained.
    Where a forthcoming bond was ordered to be quashed after its return term, and an execution issued upon the original judgment, which was levied on property of the defendant thereon, who at the time acquiesced in it, but who afterwards took a writ of error therefrom to this court; held, that the issuance of the execution on the original judgment being absolutely void, the acquiescence and consent of the defendant could confer no jurisdiction to issue it.
    Consent cannot confer a jurisdiction to give judgment, when not authorized by the law.
    However general the expressions in an opinion may be, they must be construed with reference and in connection with the, facts of the case.
    In error from the Lowndes circuit court.
    At the October term, 1838, of the Lowndes circuit court, the Tombigbee Railroad Company recovered judgment against Henry Bell, Charles E. Taliaferro, and Thomas Bell, for $4,207 59; on the 4th of December, 1838, a fieri facias issued on this judgment, was levied on ten negroes, a forthcoming bond taken and forfeited on the 4th of March, 1839, and so returned. On the 26th of April, 1839, a fieri facias issued on this forfeited forthcoming bond, which was returned to the April term, 1840, “ stayed by supersedeas.” At this April term, 1840, a motion was made to set aside the original fi. fa., and to quash the forthcoming bond; the motion was sustained, and the bond quashed. On the 8th of January, 1841, a fi. fa. issued on the original judgment to Noxubee county; a levy thereof was made on certain negroes, which were claimed by Mary E. Shotwell, and a bond to try the right of property given. At the April term, 1841, a motion was made to quash this execution to Noxubee county ; 1. Because more than a year and a day had elapsed after the judgment before its issuance. 2. Because the judgment had been paid and satisfied. This motion was sustained, and exceptions taken thereto by the plaintiff, who took the case by writ of error to the high court of errors and appeals; which court reversed this judgment of the court below, and remanded the case for further proceedings.
    At the October term, 1843, a motion was made to quash the above-named execution to Noxubee, for the following reasons, to wit: 1. No execution issued on the judgment in this case, until long after the expiration of a year a'nd a day from its rendition. 2. The said judgment had not been revived by scire facias, although no execution had issued thereon for a year and a day. 3. The execution issued without authority of law and against law. This motion was overruled, and exceptions filed by the defendants, who prosecuted this writ of error.
    It appears in the record, that Henry Bell, the principal defendant, died in August, 1840.
    These are all the facts, out of the voluminous record, which it is deemed requisite to notice.
    
      Evans and Cocke, for plaintiffs in error.
    It appears by the bill of exceptions, upon which the present writ of error is based, that a forthcoming bond was taken and forfeited, and so returned to court. Upon it two successive executions issued. After the bond had been thus treated as a judgment' of the court, it was at the second term after its return term quashed by the court upon motion.
    The circuit court had no jurisdiction over the motion after the return term had passed. Its judgment thereupon is consequently null and void.
    After the return term of the bond, it had no jurisdiction over the person of Thomas Bell, one of the defendants in the origi-' nal judgment, but who did not join the forthcoming bond. At the return term, the'defendant; Thomas Bell, may be supposed to have attended to see whether the bond would be quashed or become a confirmed judgment of the court; but after the return term had passed, and the bond matured into an established judgment, then he was discharged from liability, the original judgment extinguished, all connection between him and the court, dissolved, and he put out of its jurisdiction. Could the court subsequently quash the bond, and review the original judgment, it would draw Thomas Bell back within its jurisdiction without process, and subject him to the judgment without notice.
    To pronounce a valid judgment, the court must have jurisdiction not only over the subject-matter, but also over the person affected. In this case it had jurisdiction over neither. The forthcoming bond is consequently a subsisting forthcoming bond, and the original judgment is extinguished thereby. 5 How. 200. Hence the execution to Noxubee, embraced in the motion, is null and void. 3 How. 60 ; King v. Terry, 6 Ibid. 513.
    The above ground is deemed conclusive as to the error of the court below, in not quashing the execution to Noxubee.
    To the above ground, however, may be added the fact that Henry Bell, the principal defendant, died in August, 1840, before the execution to Noxubee issued; there should, therefore, have been a scire facias to his administrators, and, for the want thereof, the execution ought to have been quashed. 2 How. 601.
    It may further be remarked, that the levy made on ten slaves, under the original execution, was yer se a satisfaction and ex-tinguishment of the judgment, and a discharge of the defendants. 4 Cow. 417; 4 Mass. 402 ; 12 Johns. 207; 5 How. 625; Kershaw v. The Bank of New York,, 7 How. 386. The defendants being thus discharged, could be held to no further liability, except by their own voluntary act. Such, for instance, as giving a forthcoming bond, and taking possession of the property levied on. This act would continue the liability only of those joining in it. If one or more of the defendants refuse to join in the bond, or other act of the defendants, relative to the property levied on, it is a complete discharge as to him. And such is the condition of the defendant, Thomas Bell. Upon what principle, then, can Thomas Bell, who refused to join in the forthcoming bond, or to intermeddle with the levy made, be held liable to the original judgment after its extinguishment by the levy, and the giving and forfeiture of the forthcoming bond ? If we be correct in the belief, that it is the settled law of this, court that the circuit court has no jurisdiction to quash a forthcoming bond, returned forfeited, after the term of the court has elapsed to which the same was returnable, it follows that the judgment of the circuit after the second term in this case, in quashing the forthcoming bond, was a nullity ; that the judgment on the forfeiture of the forthcoming bond is still valid and subsisting; and that the circuit court erred in refusing to quash the execution which issued thereafter on the original judgment, we think is settled by repeated decisions of this court. If the circuit court had lost the jurisdiction over the judgment on the forfeiture, its judgment in quashing the bond afterwards was a nullity, a mere waste paper. 1 Pet. R. 340;il0 Ibid. 449. To reverse the decision of the circuit court; we alsp.„ cit&>Conn v. Pender, 1 S. & M. 386; Field v. Morse Sp Harrod, 1 S. <¿ M. 347.
    
      Foote and Hutchinson, for defendant in error.
    This cau'se-on the record submitted, unfolds a concatenation of empty, frivolous and vexatious quibbles, evasions, and resorts to prevent the execution of a regular judgment, to which, we venture to assert, no parallel can be found in the lax casuistry of the monkish ages, or amjdst all the vicious trash of the schoolmen.
    The first abuse, deserving the rebuke of this court, is that' the transcript, instead of commencing with the motion, the action on which below, the writ of error is prosecuted to revise, and concluding with the hill of exceptions taken on that motion, it commences with the original suit at law down to judgment, and thence through the final process, and its passage through the superior court of chancery and high court of appeals — then starts at the third motion to quash, on which motion the whole farrago is repeated, when the matter of the bill of exceptions could by a concise statement of the facts appearing of record and testified, have been presented upon three or four instead of forty pages. Allow us to say that twenty of those pages are the fault of the clerk, and at least ten others are to be ascribed to him who drew the bill of exceptions. We humbly submit, if it be not an evil too serious to be endured without an effort at correction. This, however, wholly apart from the questions raised.
    It is impossible to present an intelligible idea without prefixing a chronological exhibition of the case preceding the third motion. On September, 30, 1838, the appellees sued the appellants upon a note, and in October following, after due monition, obtained a judgment for $>4207 59 beside costs; on December, 4,1838, a fieri facias issued thereon in every particular correctly; including a load of useless verbiage, but subject to one misprision ; John instead of Thomas Bell wa^mentioned. It was levied on March 4, 1S39, Henry Bap^iiX'^fe?®aliaferro replevied the slaves taken, and gave a ©OHttior tndwAdptery on the sale-day designated. Thomas BeÉmAñ&mitted. '^Fljibond recited the process as being against Mhn facias issued on the bond, as a statutory jufcnjjwU.and at April term, 1840, it was returned as stayed by su^WsealíSf^®^ ®Jt was, as shown by the transcript, a bill had 1%S^^led.iini superior court of chancery to enjoin the original judgment. At that term, April, 1S40, a motion was made in the circuit court by Henry Bell, C. E. Taliaferro, and the same Thom,as Bell, to quash the first fieri facias, and the forthcoming bond, and the motion was sustained. This is to be marked down; for Thomas Bell, not included in the bond, did nevertheless unite in moving to quash it, and succeeded — and that judgment is of record not reversed, recalled or vacated! The company thus driven back upon the original judgment, on January 8, 1841, sued out execution thereon to Noxubee; it was levied on C. E. Taliaferro’s slaves — a third person made affidavit of claim — gave the required bond to try the right; on which an issue was tendered. Before this execution issued, the suit in equity had been revived in the name of Henry Bell’s representative, and had been dismissed by the complainant’s counsel. At April terra, 1841, of the circuit court, a motion was made to quash the execution to Noxubee in the name of all the primitive defendants, Thomas Bell included, because the actual judgment was defunct for want of final process within the year and day, and because the judgtaent was satisfied, R. Shotwell having purchased the judgment at Henry Bell’s request. The court quashed the execution. An appeal was taken to this court, and the judgment quashing the execution to Noxubee was reversed. Replevy, quashal, equity, resort to this court, interpleader, all having failed, it became expedient, if not proper, to take a fresh Start, to use the sportsman’s word. Accordingly at October term-, 1843, Henry Bell, whose decease had been solemnly announced to the chancellor, the same C. E. Taliaferro and the identical Thomas Bell, who had succeeded in quashing the first execution and the forthcoming bond, made their third motion in the circuit court, to quash the execution to Noxubee, on which the interpleader still hung, and which had been once quashed on the second motion, but had been re-animated by the decision of this court. This last motion was on three grounds: 1. That there was no execution on the actual judgment within a year and a day! 2. That the judgment was extinct, and had never been resuscitated. 3. That the Noxubee execution issued without law, and against law! What disposition has been made of the negroes taken by the second levy and rescued by the second replevy, being that on the bond of the interpleader, we are not allowed to speak or to conjecture, because the forty folios of the record are, on that score, silent.
    If the facts have been unusual, the argument, made on the brief of the appellants, is remarkable. The first position assumed is in substance that the circuit court had no jurisdiction to quash the first execution and the forthcoming bond taken upon it; that it had no cognizance over the subject, as the time for action upon it had passed, and no power to act in regard to Thomas Bell, so as to reinstate, the original judgment, as he could not be presumed to have been before the court on the motion:.and so that the fieri facias to Noxubee, (being upon the original judgment,), was illegal and void. By recurring to the transcript it will be seen that all three of the original defendants united in the motion to quash, and succeeded. Beyond doubt, in consequence of the clerk’s error in issuing the final process against John instead of Thomas Bell, it would have been proper in the court to have quashed it, and the bond taken upon it if the motion had been made at the return term of the execution and bond; but whose affair was it to move at the proper time 1 The bond was returned forfeited as a substituted security to the creditor; it was not void on its face, but merely voidable. It is plain then that the creditor was not in default in failing to move the quashal. If any dereliction from the right line occurred, it was plainly on the part of the obligors to the forthcoming bond. Instead, however, of moving to quash, they, or some of them, invoked the chancellor’s aid upon alleged equities. Having obtained all the delay they could before the court of conscience, they dismissed, voluntarily dismissed their bill, and the whole trio, Thomas Bell included, moved the circuit court to quash the first execution and the forthcoming bond. It is true the creditor might have objected upon the decisions limiting the motion to quash to the return term of the bond; and having saved the point, if overruled, might have obtained the decision of this court upon it; but if there be a decision, or a dictum requiring him, at his peril, to make the objection, and if necessary to prosecute a writ of error to sustain it, we have neither seen nor heard of it. We may safely assert there is none. It is quite sufficient that all the defendants to the original judgment did move to quash the bond — did succeed — and as an irresistible result cast the creditor back upon that judgment. It is a principle of universal application, that no one shall be allowed to make advantage of his own wrong; and as an example of the principle that a party shall not assign for error his own act. Even in a prosecution for murder, the prisoner cannot assign for error a change of venue granted for his benefit. Loper v. the State, 3 How. 431. After obtaining what they regarded a benefit, else they would not have sought it, the appellants now occupy the very graceful posture of urging that the very decision they procured was 
      coram nonjudice, and that although they, for their convenience ánd to the destruction of their creditor’s security had it condemned and vacated, yet the creditor must be turned round and compelled to rely on the vacated bond as his sole existing security. Does the law utter such a voice ? Is it possible it can be made to countenance such iniquity ?
    Could the abstract proposition be maintained that the court had no jurisdiction to quash the bond, still it would be absolutely certain that the appellants could not avail of the nullity of the act, for were it permitted it would be to effectuate under the forms of law, and through the solemn ministry of its officers, a most vicious and ruinous fraud. But the quashing of the bond was an act of the court, done upon full jurisdiction over the subject. Its jurisdiction was derived from the constitution, and not from any writ out of chancery ; nor could its power be subverted by any decision of the appellate court, virtually creating a statute of limitations. Although it might have been ruled by the appellate court that a motion to quash could not properly be entertained after the lapse of the return term, yet does it follow that a motion made and sustained after such term, in which the creditor was represented, and did not urge the application of the rule, was- void for want of jurisdiction ? If so, any judgment obtained in a circuit court on a demand over fifty dollars, is a nullity, if, at the institution of the suit, the demand was barred by a statute of limitation; and this too, though the defendant pleaded the general issue, or any plea other than that of the statute : and what lawyer or jurist could entertain such notion of jurisdiction? In either case it would be the same preposterous principle. Then as to the power of the court over the person of Thomas Bell, it is urged that though he might be presumed to have been present at the return term of the bond, to see if it should be confirmed, and he released, as he was not one of the obligors, yet he was not bound to attend to the matter farther, and the quashing of the bond resulted to his injury in reinstating the original judgment. This is another non sequiter. Does it follow, that because the quashing of a forthcoming bond restores to the creditor the original judgment, the obligors cannot move to quash ? They had the right to move to quash; and having exerted it, Thomas Bell, in consequence, was resubjected as judgment defendant. The adverse counsel, however, has doubtless overlooked what the record shows, that Thomas Bell was one for whose benefit the motion was made, and the bond was quashed at the instance of all the original defendants. Upon this state of facts it is sufficient for us to say that the principles ruled in the Bank of the United States v. Patten, 5 How. 200, afford no shadow of aid to the appellants. Though it be there held that the forfeiture of the bond is in legal intendment an extinguishment of the original judgment, it is not there, or in any case, decided that a quashed bond is such extinguishment. The principle stated is laid down with a view to a subsisting bond and statutory judgment as a substitute for the actual judgment. It is not there decided, and we presume never will be, that when the substitute is vacated the original is not restored. We submit if it would not have been more appropriate to say of a forfeited forthcoming bond, that it is a conditional satisfaction of the judgment, instead of regarding it as an extinguishment; for the judgment is not thereby actually satisfied, and should remain as the básis of the bond, to become vital and operative in the event the bond should be quashed, recalled, cancelled, or an issue factum vel non found against it. This, however, is verbal cavil. By extinguishment the court mean only that it is supplanted by a valid subsisting security. Were it necessary we would respectfully submit, in addition to the argument of Mr. Mayes, reported in the case, our views at length in opposition to the doctrine that a motion to quash a forthcoming bond, to be regular, should be made at the return term. We shall do so whenever opportunity may occur, and the question be involved directly. Here it is not. The creditor is not seeking in this court to reverse the judgment quashing the bond. He has submitted to the judgment quashing it. The question now before the court is whether it will, in favor of the appellants, annul collaterally what the court below formerly did, on their motion, to the creditor’s injury, in order to inflict an injury perfectly irreparable, by resurging the quashed b'ond, reextinguishing the original judgment, and releasing the obligors upon the bond of interpleader — for if the court below erred in refusing to quash the last execution, and that is quashed by the decision to be here rendered, the trial of the right in the inter-pleader is cut off, and the interpleader bond is a nullity. If, indeed, such is to be the result of all the procrastination and vexation already inflicted, the report of this cause will be a sad commentary upon the certainty, consistency, and efficacy of our jurisprudence.
    There is another answer to the position assumed, that the execution on the original judgment should have been quashed. On the execution issued thereon presently after the bond was quashed, it was moved to quash it, because the judgment had not been revived, and because Shotwell’s purchase of it was a payment and satisfaction. The first ground had no other pretence for support than that the quashing of the first execution and the forthcoming bond, they were to be regarded as nullities, and so there had been no execution within a year and a day. That ground, however, seemed to have been abandoned; and the second ground' being sustained below, a writ of error became necessary to correct the blunder, and 'to permit the creditor to proceed with the process on the original judgment. Now that motion had for its object to prevent process on that judgment; and such was the object of the third motion now in review. If on the former motion the grounds urged upon the latter were not taken, they might have been taken, for the last execution was in precisely the same plight, being issued to enforce the original judgment, and being suspended to await trial of the interpleader. The party, therefore, on the second or former motion having opportunity to make the objections lastly made, and failing to make them he was forever precluded. Were not this the principle of law well settled there would be no end to vexatious litigation. A defendant might move to quash on one ground, and if that should be overruled, he could take another and come up upon that, and so on in infinitum. It will moreover be seen that the former motion assumed the position that the quashing of the first execution and the forthcoming bond was perfectly correct; and that the last, with the most perfect duplicity, assumes the converse, and urges that that proceeding was a nullity.
    The cases cited from 3 How. 60, and 6 lb. 513, are to the point, that after the taking and forfeiture of a forthcoming bond, process on the original judgment cannot issue. Those decisions are obviously correct; but they are on the predicate that the bond subsists as a valid statutory judgment.
    The second position is that Henry Bell died before the execution to Noxubee, and that the judgment as to him ought tohave been revived against his personal representative, and Smith, fyc. v. Winston, $*c., 2 How. 601, is cited. It is true, had the judgment been against Henry Bell alone, and had it been attempted to levy on his lands specifically devised or descended, the devisees or heirs, as well as terre tenant, should have been brought into court by scire facias. But it would have been a strange anomaly tsjhave brought in the administrator of Henry Bell, in order to have issued execution as to him de bonis intestatis, and against Taliaferro and Thomas Bell, de bonis propriis. No: if a defendant die after judgment and execution issued, the execution may be levied of his goods without revivor. But here the levy was not of Henry Bell or Thomas Bell’s personalty, but of Taliaferro’s slaves. It is nevertheless remarkable, that, notwithstanding the suggestion of Henry Bell’s death in the chancery suit, he, as if raised up from the tomb, is brought into court with Taliaferro and Thomas Bell, in two successive motions, one to vacate the original judgment as defunct and paid, and the other to resuscitate a forthcoming bond they had caused to be quashed. Nor is this all. The ghost of Henry Bell is introduced into the writ of error in the present instance, and stalks upon your docket and records for the prolonged benefit of his friend Taliaferro, whose property, taken in execution, has been restored to the collateral claimant. The trial of the right awaits the decision of this court on the last motion to quash. Is it not extraordinary that the appellant’s counsel should complain of the absence of revivor as to Henry Bell, when the objection directly reaches the writ on which this court acts in revision of a pretended error below? 2 Tidd’s Prac. 1038, 1039; 1 Salk. 319; 4 Comyn’s Digest, title Execution, F ; 1 Rolle’s Ab. 890. If, after the issuance of execution on the original judgment, there had been a levy on Henry Bell’s property, he having died after its issuance, the sheriff could have consummated the execution without revivor against his administrator, it is certain that execution, if necessary, could have been renewed without revivor, for the renewal is only a prolongation of the same process. It is not competent for the appellants to object for the want of execution within a year and day, for they are now urging the validity of that execution ; nor can they avail of the fact of it having been quashed ; for they procured that result. But the judgment being against several it would have been absurd, idle and irregular, to have issued the execution to Noxubee against Henry Bell’s administrator, and against Taliaferro and Thomas Bell. It issued,, and was levied on Taliaferro’s slaves, a sale of which was prevented by the claim interposed, which is still pending.
    
      Elliott v. Peirsol, 1 Peters, 340, is cited, doubtless, to show that if a court act without authority or jurisdiction, its judgment is void. The case of Voorhees v. The Bank of the United States, 10 Peters, 449, contains no doctrine in conflict with the views here presented. On the contrary, according to the principles there declared, the judgment quashing the forthcoming bond must remain of absolute verity, and cannot be here reversed or disturbed collaterally.
    Upon another ground the judgment quashing that bond cannot be disturbed or questioned by the appellants. The object of the chancery suit was to enjoin the original judgment as a valid or subsisting judgment, not noticing the forthcoming bond. Pending that suit a motion was made at law to quash the bond, and prevailed. It was surely, then, after the voluntary dismission of the chancery suit, too late to raise any question as to the subsistence of the original judgment.
    We will add, that, although the bill of exceptions is voluminous to a fault, it omits to state that the evidence presented therein was all the evidence offered. The court, therefore, according to former decisions, will presume that the judgment refusing to quash was upon sufficient grounds or matter shown.
    Regretting the length of these remarks, we trust to be excused, from the importance of the case, and the necessity of removing what, it is to be hoped, will be the last obstruction to the enforcement of the judgment.
    
      Hains and Harrison, on the same side.
    
      $. Cocke, in reply.
    The commentary of the defendant’s counsel, on abstract elementary law, we cannot perhaps equal. We have, however, no disposition to flourish in that department at the present.
    The important matters presented for consideration by the record, are, 1st. Had the circuit court jurisdiction at the second term after the return and forfeiture of the forthcoming bond, or power to quash it on motiou 1 We think not.
    It cannot be material whether the motion was made by the one party or the other. If the court had no jurisdiction in law, neither the act of one party nor the other could confer it; even the consent of both could not give it; nor is the fact that this cause has been in this court before, material. It came here solely on the ground that the judgment had been paid and satisfied. The judgment of the circuit court in this respect was reversed, and the cause remanded. Thus was appropriately presented the privilege in the court below to move to quash the execution, which issued on the original judgment after the giving and forfeiture of the forthcoming bond. This motion should have been sustained, the judgment of the circuit court in quashing the forthcoming bond being a nullity.. The plaintiffs should have prosecuted their execution of the statutory judgment, notwithstanding the order quashing the forthcoming bond.
    The issuing of the execution on the original judgment was irregular, and that execution should have been quashed. Conn 
      v. Pender, 1 S. & M. 386 ; Pender v. Felts and Conn, 2 Ibid. 539.
    2d. It is also correct to say, that those defendants in the original judgment, who had been discharged by the giving and forfeiture of the forthcoming bond ought, at least, to have had notice before any proceedings could lawfully have been had against them in the circuit court, from whence they had been thus discharged.
   Mr. Justice Clayton

delivered the opinion of the court.

Although the record in this case is voluminous, the point in controversy lies in a narrow compass. In October, 1838, a judgment was obtained, by the Tombigbee Railroad Company, against Henry'Bell, Charles E. Taliaferro, and Thomas Bell, in the circuit court of Lowndes county; an execution issued, and a forthcoming bond was given, which was forfeited at the April term, 1839. At the April term, 1840, a motion was made to quash the execution and forthcoming bond, which was sustained by the court below. In 1841, an execution was issued upon the original judgment, to Noxubee county, which was levied by the sheriff upon several slaves, which were claimed by Mary E. Shotwell, and a bond given to try the right of property. In April, 1841, a motion was made to quash the execution, because more than a year and day had elapsed after the judgment before its issuance, and because it had been paid off. The court sustained the motion upon the latter-ground. From that judgment a writ of error was prosecuted to this court, and the judgment here reversed, at the January term, 1843. See 7 How. 216. The cause was remanded.

At the October term, 1843, of the circuit court, the present plaintiffs in error again moved to quash the execution issued to the sheriff of Noxubee county, which motion was overruled, and the cause again brought, by writ of error, to this court.

The principles which govern this case have already been repeatedly decided by this court. The order made, at the April term, 1840, quashing the forthcoming bond, was absolutely void. Conn v. Pender, 1 S. & M. 386. Field v. Morse, Ib. 347. Of consequence, the executions subsequently issued upon the original judgment, which'had been merged in the judgment upon the bond, cannot be sustained. There is no judgment upon which they can rest. The execution now under consideration is in this situation.

The judgment of the court below must, therefore, be again reversed, and the original plaintiffs put to their execution, upon the judgment on the forfeited forthcoming bond. The order, purporting to quash it, made at a time when the court had no jurisdiction over it, is void, and interposes no obstacle to their proceeding upon it by another execution.

The course which this cause has taken is somewhat singular. It was formerly decided in this court upon one point, but a different result now reached upon another. This is explained, however, by the fact, that upon the former argument the present point was not made by the counsel, and if disclosed by the record, was overlooked by the ■ court. The record has been removed from the clerk’s office, and we cannot have access to it, to discover whether it was so full as the present. The argument was confined to the question of satisfaction of the judgment by the assignment, and the opinion went no farther. It is matter of regret that the whole subject was not brought to the view of the court, but as it was not, and as the judgment went only to a single point, the effect cannot be to render an act valid, which we have repeatedly decided to be void. Were the act of the court, in quashing the bond at a term subsequent to the return term, only erroneous, we might be justified in holding, that the error was cured by the conduct of the parties, and their acquiescence under it; but as it is wholly void, it is our duty to declare it to be so, whensoever the matter is brought to our view. It is an unauthorized act of the court, incapable of confirmation by the parties, because it had no jurisdiction to give the judgment ; and consent cannot confer a jurisdiction to give judgment, when not authorized by the law.

The judgment is reversed,' and the cause remanded.

The counsel for the defendant in error filed the following petition for a rehearing:

To the Honorable the High Court of Errors and Appeals : the petition of Robert Shotwell, by his counsel, for a rehearing of No. 1245, H. Bell, &c. v. The Tombigbee Railroad Company, of whom he is transferred, respectfully shows : —

Petitioner, at the time the decision was pronounced, resided' at a distance, and was not in court; and his counsel, if either of them was present when it was delivered, did not hear or learn that the opinion in that case was delivered. About a week since the counsel heard of it. No opportunity, in fact, occurred, to enable petitioner, or his counsel, to avail of the Rule XI. requiring the application to be within four days. It is believed the rules adopted by the court, to regulate its own actions in matters solely of discretion, may be suspended, when the court itself may think it proper or necessary, to the end of special or general justice.

Although the decision in this case can only be greatly and peculiarly grievous to the petitioner, yet if the prior decisions of the court, on which alone it turned, formed a correct and sustainable doctrine, he ought to submit, and refer his irreparable loss to the accidents that caused it; but if it be demonstrable that the principle of jurisdiction, noticed in those previous cases, cannot be sustained as sound, then it is confidently believed that this court, as the tribunal of final resort, and the interpreter of the rules of civil conduct, will feel bound to overrule those decisions, and declare a surer, safer, and sounder principle.

It will, therefore, be unnecessary to recur to the facts of this case, and we will, as distinctly and briefly as possible, present the question, which we solemnly believe ought to be reconsidered. It is this — Whether the circuit court is wholly deprived of jurisdiction in any case supposable, to quash a forthcoming bond, at a term subsequent to that at which it is returned forfeited 1 And is such action of a circuit court, in every case, as to all purposes, absolutely void 1 We hold the converse of these propositions, and believe it is demonstrable that there is no reason in law, justice, or expediency, for the adoption of either.

The statute allowing the defendant in execution to replevy the things seized, by giving a forthcoming bond, is silent as to any question arising upon the bond ; on its return, as forfeited, it is to have the force of a judgment, execution on it may issue, and no other security is to be taken. Jt was intended to afford temporary relief to the debtor, and a corresponding security to the creditor. It gave no day in court to the obligors, as was unduly affirmed by Judge Turner, 4 How. 369. Where is the statute giving a day in court, or any remedy whatever, to the obligors in such bond 1 There is none.

Whence, then, the remedy ? It existed in necessity ; and since legislation was silent, it was to be found .in the jurisprudence of the country. It was educible thus: Every court is expressly or inherently invested with the power of enforcing its judgments by final process, and of controlling its ministerial officer in the execution of it; the bond was taken by him in such execution ; and since it is incumbent on the court, on the presentation of the matter, to see if its officer have conformed to the law, it will compare the process with the. judgment, and quash it if it be unauthorized ; and compare the bond with both, and if it be such, on its face, as was not allowed by them and the law, will quash it also. The creditor being entitled to a valid security, will be allowed to question the bond. As the surety is supposed to have contracted without actual consideration, and from social and benevolent motives, he is permitted to ask judgment, if the officer have taken a bond to bind him. Much more may either obligor demand judgment on his plea of non est factum„ This last defence arises from a dictate of justice that is irresistible.

We next ask, what is the remedy 1 The bond is to be returned into court on the return day of the process, as forfeited, if the condition have been broken ; and “ thereupon ” it is to have the force and effect of a judgment. What, then, can resist or overturn it 1 If it had been, in fact, an adjudication on that day of the term, it would have been open for correction, or revision, or recall, on any subsequent day of that term ; but it was not an actual judgment; the court had no concern in its concoction, and the act, in attaching the effect of a judgment to its forfeiture, designed no more than to engraft it, if valid, as a cumulative security upon the judgment, and to enforce it as a substitute. Tacitly, it left open every legal remedy to vacate it, if invalid. If the ministerial acts, in taking and returning the bond, must be regarded as an adjudication, it would follow that the same court could only reach it to recall it for some error of fact. For an error in law, an appellate court could only revise or reverse it. Yet if the bond be obtained by fraud, duress, or be forged, it would seem that as an adjudication it could only be controlled in chancery. Since, however, in modern practice the writ of error of fact became supplanted by the summary and more available mode of a motion, that substitute has been generally applied in other states, and in this, though never to the exclusion of the more formal remedies, to vacate statutory bonds; and that substitute has been extended, so as to perform the function of the writs of error of both kinds, and also of a bill in equity. Hence it has been assumed as a maxim of jurisdiction, that he who resorts to the substitute, may not afterward relitigate in the ampler original mode. Hence, too, we say it must follow, that the summary remedy should be rendered coextensively efficient with the mode that is more ample as to mere form, and is adequate to redress. The remedy by writ of error, of either sort, is only barred by the lapse of three yearsand within that period the chancellor, in a proper case, would relieve ; and the question recurs, from what statute, principle, analogy, or notion is drawn the position, that the motion to quash can only be made at the return term 1

At January term, 1840, Judge Turner delivered the opinion in Wanzer v. Barker, 4 How. 363. In that case, there were the writs of supersedeas and of error, that intervened between the bond and the motion to quash; and the motion was to quash not only the bond but the execution; The main question argued was, the constitutionality of the statute. Authorities wore cited, to show that a motion to quash an execution is addressed to the discretion of the court; and that since its refusal does not preclude the common law remedy of audita querela, &c., that refusal might not be assigned for error ; and, in fact, that a motion to quash ah execution after its return, and after becoming dead, was irregular. Judge Turner, in conclusion, says : Besides, the appellant was too late, in moving to quash, when he suffered a term-to pass.” Whether this sentiment was sprung upon the motion in reference to the execution, or to the bond, we are left to conjecture. Be it as it may, this is the leading case. No law, reason, or ground is given, either in the argument or in the opinion, to show why the motion on the bond should be limited to that term. Now when an execution has been returned it is dead, and there can be no sufficient motive to quash it. It has performed its office, and has ceased. The acts done, or omitted, during the period it had to run, may properly be subjects of judicial investigation ; and the time, mode, form and parties, may all be important elements. The bond remains in force and vitality until satisfied, recalled, or vacated. Upon the writ of error of fact, sued out on the last day of the third year, you would look at the judgment and execution, to see if they sustained it; and if not, it would be recalled. That a petition to vacate the bond may be presented, subsequent to the return term, was allowed in Williams v. Crutcher, 5 How. 71. There, after the return of execution on the bond, satisfied by levy and sale of Williams’s property, as surety, he filed his petition, stating that his signature had been put to a blank, and praying to be allowed to plead non est factum. Pleas to that effect were filed, demurred to, and the demurrer sustained and petition dismissed. On full argument and consideration in this court, the judgment below was reversed, and rendered for the petitioner. This case established the principle for which we contend, as broadly as could be desired ,• for there can be no substantial difference between a motion made in open court, upon specifications and affidavit, if required, and a petition presented in or out of court, stating the same matter. If a petition may afford a remedy against the bond at a subsequent term, is there, or can there be any reason why it should not be afforded by motion ? This is asked with urgent anxiety, to find in response a conceivable ground or motive for the discrimination.

Kernighan v. Scanland, 6 How. 540. Judgment was rendered at July term, 1838, Kernighan v. Mitchell; execution on it and bond taken, with Scanland surety. Execution issued on the forfeited bond, which in April, 1841,- was levied on Mitchell’s property. Scanland proceeded by writ of error, coram nobis, to quash the original execution, the bond, and the last execution. 1. Because there was no original judgment on which to issue the first execution. 2. Because, therefore, the bond was void. 3. Because, accordingly, the last execution was irregular. The court quashed both executions and the bond, and Kernighan appealed. The counsel of the appellant, inter alia, relied on the estoppel created by the recital of the judgment in the condition of the bond; but whether in fact there was or was not a judgment, the report of the case does not show. Turner, Judge : The court erred in going back and quashing a process to a preceding term, as has been often decided by this court. Scanland, the security, was not injured,” &c. Here the court seemed to have regarded solely the irregularity of interfering with a defunct execution, and so far there can be no objection ; but assuredly the opinion delivered left the case undecided. The main question was, whether the court below erred in recalling the statutory judgment on the writ of error, coram nobis ? Was there an original judgment ? If not, did Scanland make a judgment by his signature to the bond % Could the writ of error, coram nobis, be presented after the lapse of the return term of the bond 1 Those were questions that were not met. The decision, however, without adverting to the merits, had the effect, as the law of the case, to reverse the proceeding below.

We now come to Conn v. Pender, 1 S. & M. 386. The bond of Felts, and Conn, his surety, to Pender, was returned to September, 1838. At June term, 1840, the bond, as to Felts only, was quashed. Then execution issued on the bond against Conn, the surety, who moved to quash the bond and execution on it, which the court below refused to do, and he appealed. That judgment of refusal was by this court reversed, and the last execution quashed. In the report of the opinion per Curiam, this sentence is used : “ The judgment of the court, in quashing the bond at a term subsequent to that at which it was returned forfeited, was, in our opinion, wholly void. It was clearly erroneous in quashing it, as to the principal,” &c. The counsel for the appellee asserts, that the appellant had been once heard at law, and once in equity, and that at the late day, April, 1841, ought not to have been heard a third time on the same complaint. We have not the record before us, so as to see on what ground the quashal of the bond occurred. It was certainly erroneous to quash it as to one obligor, and leave it to stand as obligatory against the other. With profound deference we ask, if in this case it was competent for this court, though the court of the highest power, to pass in review upon the judgment of June, 1840, when it was the judgment of April, 1841, that was brought up for revision. But considering it as competent, it is manifest that the ^principle, that a judgment, quashing such bond at a term subsequent to its return term, is void, is here for the first time introduced ; introduced incidentally, and, as we trust, not upon full deliberation. That the quashal, as to one, was clearly error, we must ever admit. But that a judgment quashing a bond must be necessarily void, if rendered at a subsequent term, we confess we are unable to perceive.

It could not be regarded as ipso facto void on any ground but the total want of jurisdiction. This we are prepared to assert forever. We are then brought to examine the question whether the court had jurisdiction ? We have intimated the utter absurdity of quashing a spent execution, because no end is to be obtained by it. It is not so as to an execution not spent, for in many instances it may be important to supersede and quash it to prevent the mischief or injustice about to be inflicted under it. So it is with a forthcoming bond that is illegal, fraudulent, or spurious — whilst it is unquashed, recalled or vacated, a reason or cause exists to resort to some remedy that is adequate to remove it; and of course a corresponding reason prevails to afford the remedy. We have shown that the statute does not expressly give any remedy ; but that the courts everywhere had concurred in resorting to the summary mode of a motion to quash. Even Conn’s case concedes that a motion might have been properly made at the return term. In Williams v. Crutcher, supra, relief was sought by petition after the return term, and after satisfaction of the execution on the bond, and was granted by this court. We have shown that the cases in 4 and 6 How. did not establish a principle in conflict with that on which this court proceeded in Williams v. Crutcher. Where, then, we repeat, is the reason or the authority for the declaration in Conn’s case that the court’s action at a subsequent term was void because made at that term 1 Is it that, what a court does judicially at one term cannot be undone by it at another 1 It is true, as a general proposition, that the same court, exerting original jurisdiction, cannot, at one term, make an order or judgment affecting materially or definitively the rights of litigants, and at a subsequent term reverse it for error in law, or improvidence. But the return into court by a sheriff of a bond taken by him is not a judicial act, and nothing but omnipotence could make it so. It is necessary that those reported as obligors should have time, opportunity, and a proceeding adequate to solve the question of their liability qn it. If it be a forgery they may not hear of its existence until after execution on it is about to be enforced. Were it a contract they would not be bound to contest it until cited to defend suit brought. As a judgment they have three years within which to revise it for error of fact or of law, or to invalidate it for fraud or forgery; and this though collection have been enforced. Now they, in any supposable case, move at the first term to quash, no matter for what; it is well, the court has unquestionable jurisdiction. In another case in all things similar, a motion of the same kind is made at a subsequent term Iqut within three years, and it is said the court has no jurisdiction ! How is this 1 If it were by petition it would be entertained ! If by writ of error or bill in equity jurisdiction would exist! But a motion is coram nonjudice! We may say, with due deference, that if the court could take cognizance of the matter, in any mode, the question of jurisdiction could not be interposed as a barrier. The obligee might have urged the lapse of time as a barrier, if by any law the motion had been limited to the return term; but even if such law had ever existed, and if the objection had not been urged, the jurisdiction would have been clear beyond all question. To illustrate : A bond over sixteen years old is put in suit; and the defendant pleads but does not rely on the limitation or presumption of payment, and judgment goes for its amount. Is it void ? If the defendant plead the statute, he may succeed on it; but certainly the jurisdiction is not involved. The jurisdiction of the circuit court is imparted by the constitution, and does not depend on the writ out of chancery, or any fiction or mere form of proceeding, but wholly on the subject-matter and amount of litigation. If the matter have ever been cognizable before it in any form, and be introduced after the remedy is barred, if judgment be given, though it be never so erroneous it is not void, not co-ram nonjudice.

We respectfully suggest, also, that the decisions of this court on this question, stand in direct conflict with each other, and especially those of Conn v. Pender, and Williams v. Crutcher. Most of the views here presented were indeed offered by way of brief in the case sought to be now reconsidered; but we feel regret that it seems not to have been noticed. We have only to add tíiat if a reconsideration and modification of the rule under a former decision can be justified in any case, it will be in this, where, by turning the creditor round on a bond that was quashed, the security afforded by the interpleader bond is rendered abortive, and his debt utterly lost. Foote & Hutchinson.

So far as the preceding petition seeks a modification of the doctrine, that a judgment of a circuit court quashing a forthcoming bond, for any cause, at a term subsequent to the term at which it is returned forfeited, is ipso facto void, we concur with the counsel of petitioner in believing a reconsideration proper.

C. R. Clifton,

John D. Freeman,

L. Lea,

J. F. Foute,

L. Sanders, jr.

Chas. Scott.

Upon this petition for a re-hearing,

Mr. Justice Clayton

delivered the following opinion.

We have given to this petition the best consideration in our power, and shall proceed to state our conclusion. It says, in the opening, it will state the question, which the petitioners solemnly believe ought to be reconsidered. “It is this: Whether the circuit court is wholly deprived of jurisdiction in any supposable case, to quash a forthcoming bond, at a term subsequent to that at which it is returned forfeited 1 Is such action of a circuit court, in every case, as to all purposes, absolutely void-1 We (the petitioners) hold the converse of these propositions, and believe it is demonstrable that there is no reason in law, justice, or expediency for the adoption of either.”

To this we must content ourselves with the answer, that in making the decision sought to be reviewed, we confined ourselves to the state of facts which existed in the case. To have done otherwise, would have been to travel out of the record, and to volunteer an opinion not called for by the circumstances. We deal with actual, not supposable cases; and we have often laid down the rule, that however general the expressions used in an opinion may be, they must be construed with reference to and in connection with the facts of the case.

The petition- not only remarks upon this particular decision, but it purports to pass in review all which have been made in this court upon that subject. Several, however, were overlooked by the learned counsel. Besides the cases which they cite, the point was decided in Merrett v. Vance, 6 How. 498; Fields v. Morse, 1 S. & M. 347; and Pender v. Felts, 2 S. & M. 535. After so many adjudications on the subject, we thought, in the case under review, that we might regard the point as settled, so far as our decisions can settle anything. We are called upon, however, in the petition, in very strong terms, either to retrace our steps, or to give some reason for the decision. For our reasoning, Ave will refer to the case of Fields v. Morse, above cited, which the counsel have not adverted to; and will add one further remark. After the return term of the bond, if forfeited, it becomes a judgment, on which an execution may issue. Now we do not know of any means to quash a judgment upon motion Avithout notice, after the term at Avhich it Avas rendered, unless it were Avholly void. If void it may be done at any time. 2 Yerg. 242. Buckingham v. Bailey, decided at this term of this court.

The case of Williams v. Crutcher, 4 How. 71, is pressed upon us as an authority, to show our error in this case. To our minds, the tAVO cases are very distinct. There a petition Avas filed, alleging that the bond was signed in blank, and praying for permission to plead non estfactum to the bond. The opposite party was brought into court; the plea was filed, and demurred to; and upon the demurrer judgment was rendered in favor of the plea. This is very dilferent from a proceeding ex parte and without notice. One strong reason Avhy a judgment on the bond cannot be quashed after the return term is, that the parties are not then in court. The final judgment is rendered, and cannot again bé drarvn into contestation, unless the parties are again brought into court in some recognized mode. A proceeding to get rid of the execution, upon grounds not alfecting the judgment, stands upon a dilferent principle. The power of the court over its process remains until the finis and ejfectus, the end and fruit, are attained.

The case of Kernaghan v. Scanland, 6 How. 540, is next adverted to in the petition. The report of the case is very brief, and is defective in not showing whether or not there was an original judgment in the cause, as the want of such judgment was assigned as canse for quashing the bond and execution. We have examined the original record, and find that there was a judgment rendered, after plea filed and withdrawn by the defendant, as stated at this term, in the case of Buckingham v. Bailey. This fact reconciles that case with the other decisions.

The case of Conn v. Pender, 1 S. & M. 386, is next made to pass through the ordeal. After some remarks upon it, the learned counsel ask, “if in this case it was competent for this court, though the court of the highest power, to pass upon the judgment of 1840, when it was the judgment of April, 1841, which was brought up for revision.” This difficulty is of easy solution. The judgment of June, 1840, quashing the judgment on the forthcoming bond, at a term subsequent to the return term of the bond, was decided to be void. But the court below only quashed it as to one of the parties. An execution was after-wards issued upon the judgment on the bond, against the other party, as to whom it had not been quashed. A motion was made to quash the bond and this last execution, which was overruled, and the case brought to this court. We decided that the last execution ought to have been quashed, because the judgment of June, 1840, was void; it did not affect the judgment upon the bond; and, consequently, an execution against one of the parties only was erroneous. We quashed the execution, but did not touch the bond, and in another branch of the same case it was subsequently holden, that the party was at liberty to pursue his judgment upon the bond. Pender v. Fells, 2 S. & M. 540. The counsel then proceed to say, “that the principle that a judgment quashing a forthcoming bond at a term subsequent to the return term is void, is here for the first time introduced; introduced incidentally, and, as we trust, not upon full deliberation.” If they had consulted page 347, of the same book, they would have seen that this was not the first case in which the principle was introduced. The point was in that case expressly made in the argument, and was decided upon the best consideration we could give it. The case of Conn v. Pender was decided about the same time, and it was thought unnecessary to repeat the reasoning, or again to go over the authorities. This case is referred to in the opinion under review, yet not the slightest notice is-taken of it in the petition for a re-argument. We had also decided aboiit the same time, in another case, that a judgment without notice was void. Gwin v. McCarroll, 1 S. & M. 363. If a judgment rendered without notice is void, it is difficult to conclude that a judgment quashing another judgment without notice is not equally so. This subject of the effect of want of notice upon judicial proceedings, just at that time engrossed much of our attention, and the principle was adopted upon mature and full consideration. Neither was its introduction into that case incidental; it lay directly in the way of a correct decision, and we therefore ap-* plied it.

If there is any conflict in our various decisions on this subject, we are unable even now to perceive it. They stand, as it seems to us, on sure foundations. We have no pride of opinion which would induce us to adhere to a decision, when convinced of its error. “The mind, conscious of rectitude,” has, to us, a much higher charm than consistency of adjudications.

In conclusion the counsel say, “ Most of the views now presented were offered by way of brief, in the case sought to be now reconsidered; but we feel regret that it seems not to have been noticed.” The learned counsel are mistaken, if they believe the brief was not read before the case was decided. Our sense of duty leads us, in every case, to read the briefs which are submitted with the record. It is the remark of a celebrated political writer, “ that an ingenious lawyer may find plausible, perhaps unanswerable, arguments on any side of any question.” To some extent this is true. It is the province of the judge, in our estimate of duty, to weigh these arguments in his mind, and to decide according to the best lights of his understanding; but it cannot be expected that he should meet in detail every argument that is urged upon him. To do so, would be wholly impracticable.

We have very recently reviewed the doctrine now under discussion, in the case of Buckingham v. Bailey, to which reference is here made. If we have fallen into any error, we have not been able to discover it upon the best examination we could give it. If we entertained doubts, it would be our duty to grant a rehearing; but in the absence of any such, it would be injustice, both to these parties, and to the other suitors in the court to do so.

The application is therefore overruled. 
      
       See this ease (Buckingham v. Bailey,) ante, page 538.
     