
    *Rucker v. Harrison.
    Decided October 15, 1818.
    i. Judgment — Supersedeas — Effect on Forthcoming Bond. — If a Supersedeas to a Judgment, (execution being levied, and a forthcoming bond taken,) be issued before the day of sale; and thereupon the property be not forthcoming; the penalty of the bond is saved, and no motion lies upon it.
    2. Same — Same—Restoration of Property to Owner.— It seems, too, that, if the property taken in execution be in the Sheriff’s hands, at the time of his receiving the Supersedeas, or be delivered to him, on the day of sale, after his receiving' such Writ, he ought lo restore it to the owner.
    3. Sheriffs Return — Sufficiency.—An amended return, by a Sheriff, upon an execution, stating that a Writ of Supersedeas was issued on a day specified; being a day previous to that appointed for the sale of the property taken in execution: that he thinks the said Writ was delivered to him on the day of sale; and that the property for which a forthcoming bond was given, was not delivered at the day and place of sale; is sufficiently precise and certain.
    4. Same — Amendment after Seven Years. — In this case, the Sheriff was permitted by the Court to amend his return, after a lapse of seven years from its date.
    A motion was made by Josiah Harrison, to the County Court of Amherst, in May 1810, for award of execution against Joseph Brock and Isaac Rucker, upon a forthcoming bond dated May 21st, 1803.
    The original return made upon the said bond, was as follows; — “The within bond was forfeited on the 4th of July 1803. J ames C. Moorman D. S. for William Scott, Sheriff. ’’ On the motion of the said James C. Moorman D. S. for William Scott late Sheriff of Campbell county, he was, on the day ■of the motion upon the Bond, permitted to alter his return theretofore made on the Execution and forthcoming bond; which return, on the Bond aforesaid, as amended, was in the following words and figures, to wit: — ‘!To the within judgment, a Super-sedeas issued from the District Court of Charlottesville, dated the 1st of July 1803, which writ of Supersedeas the Sheriff thinks was delivered to him on the day of sale. The property within named was not delivered at the day and place of sale.” James C. Moorman D. S. for William Scott Sheriff Campbell County.”
    The County Court overruled the motion, and entered judgment that the defendant Rucker (as to whom alone the notice was proved,) should recover costs against the plaintiff1.
    On an appeal to the Superior Court, this judgment was reversed, and judgment was given against Rucker, who then obtained a Supersedeas from this Court.
    Wickham for the plaintiff in error,
    contended, on the authority of the case of Wilson v. Stevenson, 2 Call 213, that the penalty of the forthcoming bond was saved by the Supersedeas. This indeed is a stronger case than that: — for it might have been contended that a Court of *law was not bound to take notice of an Injunction from a Court of Equity ; but here the Writ of Supersedeas is a common law remedy, in the face of which the Sheriff could not proceed without a contempt of the Court.
    Stanard contra,
    insisted, 1st, that the forthcoming bond must be regarded as forfeited, according to the only return of which the Court can take notice. After such a lapse of time, the Sheriff could not be permitted to amend his return, especially from a recollection confessedly imperfect. No return, whether original or amended, ought to be accepted unless it be precise and certain, (a) But the only positive part of this amended return, is that which says that the property was not delivered.
    2diy, The facts that the Supersedeas was awarded and emanated before the day of sale, do not appear by evidence of which the Court can take judicial notice. If these facts existed, they were of record, and were proveable only by the record.
    3dly, The emanation of a Supersedeas to a Judgment after the levying of ai Execution thereupon, does not supersede the farther proceeding upon the execution, in relation to the property taken by the Sheriff.
    The principle determined in the case of Wilson v. Stevenson, 2 Call 213, is that, if a forthcoming bond be not ■ forfeited when an injunction issues, the penalty is saved, because compliance with the condition would be useless, since the prop rty, immediately upon it’s being delivered to the Sheriff, must be restored to the defendant. This proposition, that the property must be restored, is drawn from the case of Ross v. Poythress, 1 Wash. 120. In that case, the Court, idverting to the position of Counsel, that, under the law of England, an injunction would not authorize the restoration of goods on which execution had been levied, but would stay them in the Sheriff’s hands, (b) says, “we give no positive opinion as to the effect of an injunction obtained upon an execution against the goods and chattels, after seizure; as that *case is not before us: — probably it would be considered as settled by the Act of 1791, which, directing a restitution of the money levied, would seem to include inferior cases, and to extend, by an equitable construction, to the restitution of goods seized in execution, and not sold.” The decision therefore rests solely on the equitable construction of the Act of Assembly, and not on the common law. But that Act applies to the case of an Injunction ; saying nothing of a Supersedeas.
    Bet it be conceded, that, if the effect of a Supersedeas be to restore the property to the defendant, the principle in Wilson v. Stevenson will cover this case: the question then is, does a Supersedeas entitle the party suing it out to a restoration of the property actually in execution?
    There is no statutory provision on the subject: — it consequently is a question of common law : — and, by a series of decisions ever since the year books, it has been settled, that an Execution is an entire thing, which, being once begun, (that is levied,) can not be stopped or superseded, (c)
    
      Wickham in reply. No exception was taken to the act of the Court in giving the Sheriff leave to amend his return. The circumstances do not appear which induced the Court to give that leave. It therefore must be presumed to be right, since nothing appears to the contrary.
    If any argument can be drawn from the delay, it was chargeable to the plaintiff himself, who let seven years elapse before he moved on the bond. If the return was uncertain, let him go against the Sheriff for making an insufficient return. But the return is positive, that the Supersedeas was issued before the day of sale. The Sheriff says he thinks it was delivered to himself on that day.
    As to the point of law concerning the effect of the Supersedeas, the practice of the Courts in this Country is to be relied upon. In Moss v. Moss’s administrator, 4 H. & M. 297-8, Mr. Munford, in argument, relied on the English practice to shew, that judgment could not be against “part of the obligors in a joint bond (the others *being alive,) until further process (even to outlawry) had been taken out against the others who failed to appear:” but the practice of this Country, being different, prevailed, (d) There is no such thing in England, as a forthcoming bond. I am certain it is the established practice of this Court to grant the Supersedeas, even when informed that Execution was levied; and the Sheriff thereupon, if the property is in his possession, restores it to the defendant.
    
      
      Judgment — Supersedeas — Effect on Forthcoming Bond. — See generally, monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425; monographic note on "Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107. The principal case is cited in Hull v. Bloss, 27 W. Va. 655, 656.
    
    
      
      Sheriff’s Return — Amendment.—A court from which process is issued may permit the sheriff’s return thereon to be amended at any time, even though a suit or motion founded on the original return l)e then pending, and even though theixro-posed amendment be inconsistent with the original return, and take away the foundation of the suit or motion. Stone v. Wilson, 10 Gratt. 533, citing principal case. For further information on this point, see foot-note to Walker v. Com., 18 Gratt. 14; foot-note to Wardsworth v. Miller, 4 Gratt. 99; foot-note to Smith v. Triplett, 4 Leigh 590; monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
       Note. See Bullitt’s executors v. Winstons, 1 Munf. 269.
      (a) Dalton’s Sheriff, 163-168.
      (b) 2 Har. Ch. Pr. 225, Wyatt’s Regr. 237.
      (c) Case 2 Hen. 7, folio 12 b., and many cases in the margin as far back as 17 Edw. 3, folio 27 Milton; v. Eldrington, 1 Dyer, 98 b; Charter v. Pete; broke, Eliz. 597; Moor 542; Yelv. 6; Langston v. Grant, Comb. 389; 2 Ld. Raym. 989; 1 Salk. 147; Ibid. 323; 1 Ventr. 255; Meriton v. Stevens, Willes 271; 4 Term Rep. 411.
      (d) 4 H & M. 293. Note.
    
   October 15th 1818, the Court reversed the judgment of the Superior Court, and affirmed that of the County Court.  