
    James S. Pritchard vs. Thomas Myers.
    In a trial of right of property levied on under execution, in which the claimant asserted title to the property by virtue of a purchase under a judgment of the same date, and against the same defendant, with that of the plaintiff in execution, except that in the case in which the claimant claimed, a forthcoming bond had been given and forfeited; it was held, that the plaintiff in execution was entitled to the property.
    It seems, that where in a trial for the right of property, a claimant claimed under a purchase, on an execution against the same defendant with that of the plaintiff in execution, but on a different judgment, and one in which a forthcoming bond appeared to have been taken and forfeited, that if it were competent for the claimant to object that there had been no levy to uphold the forthcoming bond, the recital in the bond that a levy had been made, would be sufficient evidence that such levy had been made.
    Where a forthcoming bond is returned with the word “ forfeited ” upon it, it is sufficient evidence of its forfeiture.
    It seems that if a forthcoming bond is taken, and returned “forfeited,” by a deputy sheriff not appointed according to law, the bond would not be obligatory, and the original judgment would be in full force.
    Where a deputy sheriff has taken a forthcoming bond, and returned it forfeited, it seems it will not be sufficient evidence of his legal incapacity to do so, that the clerk of the probate court had twice searched the records of his office unsuccessfully to find the record of his appointment as deputy sheriff, and believed it did not exist in that office, when it was also proved, that the office had been kept in a careless manner by his predecessor, and that besides the taking and returning the bond, there was other evidence that the deputy sheriff had' served in that capacity.
    It seems that where instructions are refused which ought to have been given, yet the jury have, notwithstanding, given a correct verdict, which could not or should not have been changed had the instructions been given, the verdict will not be set aside for such refusal.
    In error from the circuit court of Leake county; Hon. Morgan L. Fitch, judge.
    Thomas Myers, on the 9th of April, 1839, recovered a judgment in the circuit court of Leake county, against George S. Fitler and Robert E. Halford, for the sum of $152-50; an execution on which, after repeated returns of nulla bona, was on the 16th of January, 1843, levied on two negroes and a wagon as the property of Halford. James S. Pritchard claimed them as his, and an issue to try the right was accordingly made up.
    At the trial, Myers, after reading his judgment and executions, proved by P. M. West, that on the 16th of January, 1843, Halford was the owner of the property levied on; on which day the witness, as deputy sheriff of Leake county, sold the same property to Pritchard, under an execution in the case of Loyd, Bobbitt <fc Co., use of Eli B. Warren against P. R. Pearce and said Halford ; the witness also proved the value of the property.
    
      The claimant then read to the jury the record in the case of Loyd, Bobbitt & Co., referred to, under which he claimed. The proceedings were all regular to the judgment, which was rendered on the 9th of April, 1839, for $705 debt; $14-10 damages against Pearce and Halford, as stated.
    On the 13th of April, 1839, an execution issued, which was indorsed “Received 13th April, 1839, S. Loyd, sh’ff;” “Received of P. R. Pierce, on receipt on James Brewer, attorney, for the collection of a debt on James W. Dickson, which receipt calls for $109-92, which account when collected, is tobe placed to the credit of this execution. April, 13, 1839. A. C. Tyree, D. Sh’ff.”
    Immediately following this execution and return in the record, is a bond signed by P. R. Pearce, R. E. Halford, and Robert Vincent, payable to Loyd, Bobbett & Warren, in the sum of of $1436, dated 18th of April, 1839; the condition of which was as follows : —
    
      “ The condition of the above obligation is such, that whereas Stephen Loyd, sheriff of Leake county, by his deputy, A. C. Tyree, has this day levied an execution, sued out of the circuit court of Leake county, Miss., by the said Stephen Loyd and R. R. Bobbitt, who sue for the use of said Eli B. Warren, on one bay mare and one gray stud horse, as the property of P. R. Pearce. Now if the said P. R. Pearce and R. E. Halford shall have forthcoming, and deliver to the sheriff of the county of Leake, aforesaid, on the second Monday in October next, then and there to sell, to satisfy an execution in favor of Loyd, Bob-bit & Co. for seven hundred and five dollars debt, and thirteen dollars and ten cents costs, which execution is founded on a judgment bearing date the 9th day of April, 1839; then this obligation to be void, otherwise to be in full force and effect the day and date above written.
    P. R. PeaRCe. (Seal.)
    R. E. Halford. (Seal.)
    Robeet Vincent. (Seal.)
    
      “ Signed in the presence of A. C. Tyree.
    “ Forfeited October 14th, 1837.”
    
      On the 27th day of July, 1839, another execution issued in the same case; on which the sheriff made no return. On the 29th of November, 1839, another execution issued against Pearce and Halford only; not reciting the judgment on the bond, or noticing its execution or forfeiture; it was returned “nulla bona” on the 7th of April, 1840; on the 8th of October, 1842, the execution under which the sale to the claimant took place issued; it also took no notice in any way of the bond; the sheriff’s return recited the levy on the property in controversy and the sale to Pritchard.
    The claimant objected to the bond being read; 1, because the execution on which it was taken, recited no levy; 2, it did 'not appear who took the bond; 3, that Tyree, who is alleged to have taken it, was not in fact qualified as a deputy sheriff; and in behalf of this last objection, the claimant proved, by the probate clerk of the county, that since the date of the bond, he has made diligent search in his office twice for the appointment of Tyree as deputy sheriff, but could find none, and he believed none existed; he stated, also, that Tyree acted as deputy sheriff about that time, and that Myers, who was then probate clerk, kept his office very carelessly, but he did not know that he ever lost any papers; and D. Williams also proved that Myers kept his office carelessly. The court refused to exclude the bond, and this, being all the testimony, at the instance of the plaintiff, instructed the jury that the execution and forfeiture of the forthcoming bond postponed the lien of Loyd, Bobbitt & Co.’s judgment to that of Myers ; and that all the' subsequent executions since the bond were void, for not being predicated on it; and that Pritchard derived no title to the slaves and wagon by his purchase. The court refused to instruct the jury, that if they believed Myers was not duly qualified, according to law, as a deputy sheriff, his acts were void, and the forthcoming bond not obligatory; and that, if they believed the bond was taken without a previous levy, it was void.
    Pritchard excepted, and sued out this writ of error.
    
      H. A. H. Lawson, for plaintiff in error.
    I. The evidence shows conclusively, that A. C. Tyree had never secured the appointment of deputy sheriff. There was no authority given Tyree by the high sheriff, specially to execute the fieri facias in the case of Loyd, Bobbitt & Co. against Pearce and Halford. There are but two modes of appointing deputy sheriffs. One is by appointment under the hand and seal of the sheriff, to do a particular act only. The other is, “ by writing under the hand and seal of the sheriff.” And the deputy, before he enters on the duties of his office, “ shall take and subscribe before a justice of the county court, or justice of the peace of the county, an oath or affirmation, faithfully to execute the office of deputy sheriff.” “Which appointment, with the certificate of the oath or affirmation thereupon, indorsed and attested by the said justice, shall' be by such deputy sheriff carefully filed and securely kept in the office of the clerk of the county court in and for the same county.” And if any person shall proceed to execute the office of deputy sheriff before he shall have received an appointment as aforesaid, and taken the oath or affirmation of office, and filed the same appointment as aforesaid, and taken the oath or affirmation of office, and filed the same appointment and certificate of such oath or affirmation in the clerk’s office as aforesaid, then all such his acts and proceedings, done under color of office, shall be absolutely void.” H. & H. 292.
    The forthcoming bond, as it purports to be, but which we contend is absolutely void, was taken by A. C. Tyree. The fieri facias in the sheriff’s hands was delivered to A. C. Tyree, as appears by his name thereon, and A. C. Tyree took the bond, made the levy, if any were made; and not having complied with the above statute, all his acts done under color of office are absolutely void. The taking of the bond in this case, as appears in the recitals and from the attestation, is the act of A. C. Tyree, done under color of office as deputy sheriff, and the bond is, therefore, absolutely void ; and hence, should not have been admitted as evidence to prove the original judgment satisfied, and that claimant’s title void, it being derived under an execution emanating from the original judgment.
    That contracts or other acts in violation of law are void, is too well settled to require authority. See 2 Peters, R. 539, and authorities there cited.
    2. That it was the province of the court to decide the competency of the evidence, and all the facts necessary to that end, see 1 Phil. Ev. 18.
    3. The instruction asked by plaintiff Myers, which was given by the court, precluded all inquiry into the fact, whether A. C. Tyree was deputy sheriff, and whether or not the bond taken by him was void, although the proof at least made out a prima facie case that he was not deputy, and if not deputy sheriff, his acts are void by the statute before referred to;
    We know that at common law there was such a distinction, as officers de facto and officers de jure ; but such distinction as to deputy sheriffs cannot exist in express violation of our statute. A deputy here can never make himself such by exercising the functions of the high sheriff. He must have an appointment as required by our statute, or all his acts done under color of office are absolutely null and void. The taking the forthcoming bond was an act done under color of office, and is null and void in the language of the statute.
    4. It may be insisted, however, that the giving of the bond and its forfeiture, precludes an inquiry into the regularity of the judgment on the bond. If the bond be void, we cannot conceive how a valid judgment can be predicated upon a void bond. Things void cannot be confirmed. A sale of property, under a void judgment, passes no title. The first fieri facias was not levied by the sheriff, but A. C. Tyree takes a pretended forthcoming bond, when he was not authorized to do so, and thus the act of a stranger is to give or make a judgment on a bond taken by such stranger. The plaintiff in execution never recognised this bond as of any validity, but treated it as void. Every execution that issued in the case after the date of the bond, is founded on the original judgment. The defendants never questioned the regularity of these executions, but defendant Halford stood by and saw his property sold under a fieri facias on the original judgment to the claimant Pritchard.
    5. Neither the pretended forthcoming bond, norfieri facias upon which it purports to be taken, have any return made upon them to show that a levy had been made, or bond taken, or that the bond was forfeited.
    The bond could not have the force of a judgment until the same was forfeited, even if it had been properly taken; and no execution could issue thereon until the sheriff returned the forfeiture, and even on this ground the execution rightfully issued.
    
      R. Huntington, for defendant in error.
    1. It has already been contended in this court, (3 S. &M. 42,) that the forthcoming bond does not belong to the case. The clerk’s certificate shows the contrary, and he is the sworn keeper of the records, and it is presumed that he does keep them appropriately arranged. 2 S. & M. 496. Besides, the bond and the recital therein sufficiently identify the execution. 5 How. 573.
    2. The omission of the words “ said property,” in the forthcoming clause of the bond, is supplied by intendment. 3 S. & M. 64. The bond recites a levy.
    3. For the returns of forthcoming bonds by the sheriff, the courtis referred to 4 How. 363; 5 lb. 407, 410, 566, 573; 6 lb. 262.
    4. The judgment on a forthcoming bond is like the judgment by default which cures defects which are cured by a verdict. A verdict cures defects subject to a general demurrer, such, for instance, as the non-joinder of plaintiff, as insisted by the adversary. 3 S. &. M. 42; 2 How. 930; 2 Archbold’s Pr. 232.
    5. The court will not look behind the bond for defects, if the court below had jurisdiction of the case, &c. 1 How. 98; 3 lb. 26; 5 lb. 231, 238, 239; 2 Call, R. 5'07; 4 Yerg. 117. The reporter’s inference in 5 Howard, above cited, as to the inquiry whether there be an erroneous or no judgment, is not warranted by the reasoning and decision of the court.
    6. The bond, as a judgment, is amendable. H. & H. 618, sec. 24; 3 How. 25, 32; 4 lb. 248 ; 5 lb. 286, 410, 574; Caines’ Cases, 41; 14 Johns. R. 219; 1 Cowen, 131; 7 lb. 344. So, also, is the, sheriff’s return of a forthcoming bond. 5 How. 510.
    
      7. If the bond be amendable or reformable, it is not void, and cannot be questioned collaterally. 5 How. 239, 240; 4 lb. 270, 369; 8 J. R. 361; 13 lb. 378; 2 Cowen, 454.
    8. An execution on the original judgment and levy thereon, &c., after the forfeiture of a forthcoming bond, are void. 3 How. 60. And a purchaser under such an execution, gains no title. 4 How. 270.
    9. The sheriff, by his deputy, A. C. Tyree, took the forthcoming bond in question, and because he failed to file in the clerk’s office his appointment and the certificate of his official oath, as required by the statute, it is contended that the said bond is void for that reason. H. & H. 292, sec. 6.
    It was in effect proved, that the said Tyree acted publicly for some time in the capacity of deputy sheriff, in the county of Leake, and that he was publicly received and accepted as such. As such, he served the original process in the case of Myers against Fitler & Halford, wherein the judgment was taken by default. It is insisted, that the said Tyree acted as a competent public officer de facto, when as deputy sheriff he took the said bond on the said execution, and that the said bond is valid as the rights of third persons are involved, &c. For the doctrine generally, the court is referred to the following authorities. 24 Wend. 522; 23 lb. 480, 490; 16 lb. 514; 6 lb. 422 ; 5 lb. 170, 231; 5 Hill, 194, 616; 1 lb. 118, 279, 674; 7 Cowen, 402 ; 9 J. R. 131; 7 lb. 549; 3 lb. 431.
    
      Wm. and Wm. G. Thompson, on same side.
   Mr. Justice Thacher

delivered the opinion of the court.

This was a trial of the right of property in two slaves and a wagon.

Two judgments had been obtained by different parties against Robert E. Halford and others upon the same day, to wit, the 9th day of April, 1839. An execution proceeding from one of the judgments had been levied upon the above-mentioned slaves and wagon, as the property of Halford. Upon the 16th day of January, 1S43, the sale under this execution took place, and Pritchard, the claimant, became the purchaser of the property in question. Upon the same day, and after the sale, an execution proceeding from the other judgment was levied upon the same property, as still the property of Halford; whereupon Pritchard proceeded in the usual way to procure a trial of the right in the property.

At the trial, the plaintiff in the execution having introduced the record of the judgment under which he sought to subject the property, and proof of its title in Halford, the claimant then introduced the record of the judgment and execution under which the sale took place. By this record, it appeared that in one stage of its proceedings an execution had issued upon the judgment, and a forthcoming bond had been taken by a deputy sheriff, which had been returned, and constituted a part of the proceedings.

By the plaintiff in the execution it was contended, that as a forfeiture of a forthcoming bond had occurred in the judgment under which the sale took place, it caused a satisfaction of the original judgment, extinguished the lien of that judgment, and of course, let in, in full force, his execution, which had regularly emanated from his judgment, bearing date the 9th day of April, 1839.

On the part of the claimant, it was contended, that the judgment, by virtue of the forfeiture of the forthcoming bond, was null and void for various reasons. First, that it did not appear that a levy had been made by virtue of the execution, in consequence of which the forthcoming bond was executed; secondly, that the forthcoming bond was not returned forfeited under the hand of the sheriff; and thirdly, that the deputy sheriff, who seemed to have taken the forthcoming bond, was not duly authorized by law to act in the premises. These grounds were the points upon which instructions were asked by the claimant, and refused in the circuit court.

To the first reason we may reply, that if the objection can fairly be raised in a trial like this, the bond narrates the levy, and is evidence of it. To the second, that the forthcoming bond bears the word “ forfeited ” upon it, and was returned into the circuit court, which circumstance alone is evidence of its forfeiture. Talbert v. Melton, 9 S. & M. 9. The third reason, founded upon the objection, that the deputy sheriff who took the forthcoming bond, acted without appointment according to law, might, perhaps, prevail, did the proof support the averment. This proof is limited to the evidence of the clerk of the probate court, who testified, that he had twice searched the records of his office unsuccessfully to find the record of the appointment of the deputy sheriff, and to his belief in its non-existence in that office. This same witness, however, and another testified to the careless manner in which that office had been kept by a predecessor in it. On the other hand, the record of the judgment was prima facie evidence of his appointment as deputy sheriff, and there was other testimony that he served in that capacity. At all events, the position of claimant, as to his legal capacity, was far from conclusively established.

The instruction asked for by the claimant, calling the attention of the jury to the evidence respecting the qualifications of the deputy sheriff, might properly have been given; but when the jury have given a correct verdict, it will not be set aside for erroneous instructions, or for a refusal to give instructions, where instructions given or correctly given, could not or should not have changed the result. Hill v. Calvin, 4 How. 231.

The jury found the property subject to the execution of the defendant, Myers, and the judgment is affirmed.  