
    Carroll, Gov. &c. vs. Fields and others.
    
    A obtained judgment against B (a sheriff,) and his securities; an execution issued upon the judgment, which was levied upon B’a personal property sufficient to discharge it. The officer who levied took a delivery bond and security payable to himself instead of the plaintiff, as the law required. The bond was forfeited and the property was not sold.— An alias execution then issued, which was again levied. B executed another delivery bond with security conditioned, to have the property levied on under the alias execution forth coming upon the day of sale. The property was not delivered and tl)is second bond forfeited; upon which a judgment on motion was rendered against B and his original securities, and also against the securities in the last delivery bond. Held that the first levy was a satisfaction in law of the judgment, and that the subso \ cjucnt proceedings and judgment were erroneous and void.
    On tbe 24th of December, 1839, Thomas Crutcher, Treasurer of Middle Tennessee, produced to the circuit court of Davidson county, the official bond of Lewis H.. Brown, sheriff and collector of Giles -county, and petitioned the court for a judgment against said Brown and his securities for the amount of taxes which had been collected and remained unpaid by said Brown. The court, thereupon rendered a judgment against said Brown, and William H. Fields, Daniel Goodwin, John Brown, Thomas Harwood, James Patterson, Thomas B. Haynie, Bernard M. Patterson, Robert Harris and Samuel Smith, his securities, for $1,578 02. Upon this judgment an execution issued on the 10th of January, 1831, and was levied by Thomas C. Porter, the sheriff of Giles county, on a number of slaves, the property of said Lewis H. Brown. These slaves were sufficient in value to satisfy the judgment. At the time of said levy, Brown, the principal, executed to said Porter a delivery bond, conditioned that the slaves should be forthcoming on the day of sale on which Charles M’Dpuald and Mason T. Up-shaw joined as his securities. This bond was made payable to the sheriff of Giles, instead of the plaintiff in execution. The bond was, however, received, and the property levied on re-delivered to said Brown. The property was not delivered on the day of sale, and the bond consequently forfeited. All of which facts were specially set forth by the sheriff in his return upon said execution.
    On the 16th of July, 1831, an alias execution was issued on the foregoing judgment, which was levied by the sheriff of Giles county on the 18th November, 1831, upon slaves, the property of said Brown. Brown again replevied the slaves, and a delivery bond, conditioned that the slaves should be delivered at the time and place of sale, was executed by said Brown, together with E. D. Jones, W. H, Fields and T. W. Grubbs, as his securities. This bond was also forfeited, and the property not delivered. All of which facts were returned by' the sheriff upon the execution; upon which return, at November term, 1831, of the Davidson circuit court, the plaintiff moved the court for a judgment against said Brown, and his original securities for the faithful discharge of his official duties, and also against the securities in the last mentioned delivery bond: and thereupon judgment was rendered against them all for $1,578 02.
    Before the recovery of the last judgment, and subsequent to the rendition of the first, other judgments were rendered against Brown, upon which executions issued and were levied also, on the foregoing slaves: they were sold and the proceeds applied to the payment of the latter judgments.
    Upon the judgment rendered against said Brown and his securities, for the said sum of $1,578 02, an execution issued and was about to be levied upon the property of the securities, when they filed a petition in the circuit court ef Davidson county, setting forth all the above facts, and praying for a supersedeas to stop the proceedings on the last mentioned execution. The petition alleged that the first levy and bond was a satisfaction of the first judgment; and that the subsequent proceedings and judgment were nullities. The court awarded the super-sedeas. Whereupon, the defendants, the securities of said Lewis H. Brown, moved the court to set aside said last mentioned judgment and to quash the execution which issued upon it.
    At the November term, 1S32, of the circuit court of Davidson county, the motion was argued, the circuit court overruled the motion and discharged the supersedeas, from which judgment the defendant prayed and obtained an appeal in the nature of a writ of error to this court.
    
      G. S. Yerger and D. Craighead, for the plaintiffs in error,
    insisted, 1st. That the original judgment was sat-? isfied by the first levy and delivery bond. The levy itself was a satisfaction, hut the levy and execution of the bond were clearly so, although the bond was made payable to the sheriff instead of the plaintiff. They cited 19 Vin. Ab. 440, note: 2 San. Rep. 343: 4 Mass. Rep. 403: 12 John. Rep. 207: Pigg vs. Sparrow, 3 Hay. Rep. 144: 1 Wash. Rep. 92: 3 Mun. Rep. 32: 1 Mar. Ken. Rep, 
      ‘ ® Mar. Rep. 551: Young vs. Read, 3 Yerg. Rep, 297: Hogshead vs. Carruth, 5 Yerg. 227 : 4 Cowan’s Rep: 7 Cowan’s Rep.
    
      2. If the levy without sale should be held to be no satisfaction, the bond taken in this case, although not taken in conformity to the statute, is a good bond at com- • mon law. And the taking of such a bond by the sheriff is a satisfaction of the judgment. Pigg vs. Sparrow, 3 Hay. Rep. 144: 2 Bacon’s Ab. 720: 7 John. Rep. 426: 6 Mod. Rep. 83.
    
    
      F. B. Fogg and W. E. Anderson, contra.
   Peck, J.

delivered the opinion of the court.

Thomas Crutcher, Treasurer, in the name of the Governor, in November obtained judgment, on motion, in the circuit court of Davidson, for fifteen hundred and seventy-eight dollars, being for taxes which said Brown had collected and not accounted for. Execution was taken out on the judgment on the 10th of January, 183Q, and was put in the hands of Porter, the. their sheriff of Giles county, who levied on negroes, the property of Brown, sufficient to satisfy the demand. Brown gave to the sheriff, Porter, (not to the plaintiff, as tl}e act of assembly requires,) a bond, with security, that the property should be delivered upon the day of sale, and replevied the property. These facts were returned upon the execution, which with the bond, were produced in the court, from which the execution had issued. Then an alias execution was sued out and put in the hands of said Porter, who again levied on the same property. On this another bond was taken payable to the .plaintiffs and the property restored. The bond being returned with the execution, on motion, judgment was taken against the said Brown and his securities, as well those who had entered themselves for the faithful discharge of the duty of the .said Brown, as against ihe securities in the bond as above-last mentioned. At the subsequent term all the securities appeared: filed their petition, stating that they were not notified, and that the judgment was void and in other respects informal and against law. On these promineut facts which the record presents, this court will first consider the effect of the levy made by Porter on the negroes of said Brown, under the execution first put in his hands. The sheriff hav-ving seized property under the execution sufficient to satisfy the demands of the plaintiff discharged the judgment. This is a question so well settled in all the courts and particularly in our own, that it is useless again to repeat the reasons on which the rule is founded. The case of Young and Read vs. Whitcomb, (3 Yerger’s Rep. 298,) following the case of Pigg vs. Sparrow, (3 Haywood’s Rep. 144,) re-examined again and confirmed at Knoxville, are conclusive authorities and will not be departed from. Some additional authorities to those given in the case in 3 Yerger’s Reports, may be here stated. 2 Lord Raymond, 1073: 2 Shower, 394: 8 Price, 319: 4 Cowan: 7 Cowan.

When execution is begun by seizure, the property is so far divested out of the owner, that it is in custody of the law; and execution once begun by law, the sheriff may sell though he has returned his writ; even a venditioni exponas is but to hasten it; it gives no authority which the sheriff had not before. Did the bond taken payable to the sheriff release the property? We are all clearly of opinion itdidnot, even supposing that abond taken in strict compliance with the act of assembly of 1829, could have that effect, a question it is now useless to consider. This bond to the sheriff (not the plaintiff) cannot by possibility, have any such effect; what might be the binding efficacy of the bond at common law, between the sheriff and the obligors is not now to be considered. It is clear that it cannot authorize a summary judgment: it cannot be taken as any part of the return with the execution: is not covered by the act of assembly, and under it the plaintiff could have no benefit. The alias execution was issued improperly; it would not assist the sner-iff, because the law supposes that he had the property, no matter into whose hands he had suffered it to pass; the law fixes the right in him for the satisfaction of the judgment, and this right becomes established in virtue of this process of law, the execution. The sale of the property which was made by the officer, is referable to the execution and seizure under it. 2 Saunders, 57, and note: Cro. Jac.73. Therefore, the money, when made, should have been rendered in obedience to the writ, although that writ had been returned. Therefore, the second levy did not change the value of the right; nor did the replevin bond secondly taken, although the act of assembly in taking it had been pursued.

The truth is, that fixing the right by the seizure on the first execution settles the whole case. With the bill in equity, which is spoken of, we have no concern; it is not before us in any form. If it be true, as stated, that the Chancellor has settled the rights among contending creditors, and has done so on principles at variance with this opinion, any one aggrieved is not without remedy. The judgment taken on the motion against the two sets of securities in the circuit court, is before us; on the legality of that judgment we have to pass; it must be seen in the view we have taken of the case, that it is erroneous and void and must be set aside. Any of the sets of securities seeing the execution with these facts upon it and returned at the day, had the power to oppose the motion against them. They had but to point to the condition of the property first taken to obviate the claim of their liability.

Judgment reversed.  