
    Bank of the United States v. Patton et al.
    
    The forfeiture of the forthcoming bond is, in legal intendment, an, extinguishment of the original judgment.
    The statutory judgment on the bond does not preclude an inquiry as to whether there was originally, a valid judgment from which the bond emanated; but neither the circuit, nor appellate court can vacate the judgment on the forthcoming bond for mere errors and informalities in the original judgment.
    The original judgment was in favor of the “ President, Directors and Company of the Bank of the United States.” The fieri facias on the judgment, the forthcoming bond and execution thereon recited a judgment of the “ Branch Bank of the United States at Natchez,” held that the variance vitiated neither the forthcoming bond nor the execution thereon.
    A writ of error will lie from a judgment on a motion to quash a forthcoming bond.'
    ERROR from the circuit court of the county of Adams.
    The President, Directors and Company of the United States (the word Bank omitted,) sued out their capias in the usual form against Matthew D. Patton in an action of assumpsit, on which was the following endorsement:—
    «I hereby acknowledge service of this writ and waive all formality in issuing the same, and I do hereby confess a judgment in favor of the plaintiffs in this suit for the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents, to bear interest at the rate of six per cent, per annum from this date, and the clerk of the circuit court of Adams county, George R. Girault, Esq., is hereby empowered and requested to enter up this confession of judgment on the records of said court at the present term. Given under my hand and seal, this April 14, 1837.
    Mat. D. PattoN.”
    At the April term, 1837, an entry was made as follows:
    “ Now at this term appeared in open court, George R. Girault, attorney in fact for the defendant, Matthew D. Patton, and confessed judgment in favor of the President, Directors and Company of the Bank of the United States, for the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents, with interest thereon at the rate of six per cent, per annum, from the date thereof. April 14, 1837.”
    On the 25th of May, 1837, a fieri facias issued directed to the sheriff of Hinds county, directing “ that of the goods and chattels, lands and tenements of Matthew D. Patton, he should make the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents, which the President, Directors and Company of the United States Branch Bank at Natchez, Mississippi, lately in our circuit court have recovered against him for their damages which they have sustained by reason of the non-performance of a certain promise and assumption by the said Matthew D. Patton to the said Branch Bank of the United States as aforesaid lately made, (with interest at the rate of six per centum per annum from the 14th day of April, 1837, until paid,) also the sum of fourteen dollars and twenty-five cents for costs by them about their suit in that behalf expended, whereof the said M. D. Patton is convicted as appears to us of record.”
    On the 12th day of September, 1837, a forthcoming bond was executed to the President, Directors and Company of the United States Branch Bank at Natchez, Mississippi.
    ■ On it an execution issued on the 1st day of December, 1837, reciting that at the April term of the circuit court for Adams county, the President, Directors and Company of the United States Branch Bank at Natchez, Mississippi, recovered judgment against Matthew D. Patton for the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents, &c., with interest, &c.; also'the sum of fourteen dollars and twelve cents costs, and that on the 25th day of May, 1837, a fieri facias issued from our said court to the sheriff of said (Adams) county, which was levied, &c. and forthcoming bond executed, which bond was returned by said sheriff forfeited. The execution proceeds in the usual form.
    This last execution having been levied, a motion was made to quash it, at the return term of a writ of error coram nobis. The grounds as assigned were,
    1st. Because there is no judgment upon which said execution could lawfully issue, and said execution is void.
    2d. Because there is no such corporation or person as the President, Directors and Company of the United States Branch Bank at Natchez, Mississippi, and the forthcoming bond upon which said execution purports to have emanated on a statutory judgment on a forfeited forthcoming bond, is null and void, and the prior execution on which said bond purports to be taken, is void. The court overruled this motion, and a bill of exceptions was filed.
    Written argument of D. C. Mayes, Esq.
    I wish to prove,^ — 1st. That there was no judgment of the Adams circuit court, formal or informal, against Matthew D. Patton or any other person, upon which the execution recited in the forthcoming bond, issued.
    2d. That if the record contains a judgment at all, it is a judgment against Girault, and not against Matthew D. Patton.
    3d. That if there is a judgment against Patton or Girault, no matter which, it is a judgment in favor of the President, Directors and Company of the Bank of the United States, and not in favor of the plaintiff named in the execution; and,
    4th. That if either of the foregoing positions be correct, the judgment of the circuit court overruling the motion to quash the execution issued on the bond, should be reversed, because the bond was invalid and no execution could rightfully issue on it.
    Unless therefore I sustain some one of the first three propositions, and also that the fourth follows as a legal consequence, the case must be decided against me, so far as it rests on these grounds.
    The only record on the entry claimed to be a judgment, is in these words: “ Bank of the United States v. Matthew D. Patton, April Term, A. D. 1837. Now at this term appeared in open court, George R. Girault, attorney in fact for the defendant, M. D. Patton, and confessed judgment in favor of the President, Directors and Company of the Bank of the United States, for the sum of eleven thousand eight-hundred and eighty-five dollars, and forty-seven cents, with interest thereon, at the rate of six per cent, per annum, from the date thereof, 14th of April, 1837.,;i
    This I contend is no judgment, and not an informal judgment, or an erroneous judgment. If I maintain this point the case is at once beyond the influence of every decision of this court, that you cannot, after the forfeiture of a forthcoming bond, «go be-bind the judgment on the forthcoming bond for any error in the original judgment, or in the execution emanating under the judgment.”
    Let us now enquire what is a judgment ?
    A judgment is thus defined, “ the awarding the judicial consequence which the law attaches to the facts.” Stephen on Pleading, 138, and thus “ Judicium quasi juris dictum,” “ the sentence of the law upon the matter contained in the record.” 2 Tomlin, 287. 3 Bl. Com. 395, c. 24. In this case, the sentence of the law upon the matter contained in the record has not been pronounced; the judicial consequence which the law attaches to the facts, has not been awarded. Now if a judgment be the awarding the judicial consequence which the law attaches to the facts, or the sentence of the law upon the matter contained in the record, or to adopt the language of this court, which is equally correct and expressive, " the conclusion of the law upon the facts in the record,” it follows not that there is a judgment imperfect in form or erroneous in law, but that there is no judgment; for there is neither sentence nor word to be found in the record, which by any manner of construction, can be considered even an attempt by the court to pronounce “ the conclusion of the law upon the facts in the record,” we have only the statement of the confession of Girault, which is but a fact recorded as having taken place in court. Action of the court as consequent upon that fact, there is none.
    In Bouta v. Clay, 1 Litteil’s Reports, 27, it is said, “ It is a principle recognized in all the books that treat of the subject, that a confession of judgment taken and recorded in the usual form, confesses or admits the law, as well as the facts, against- the party confessing.” If this was not the effect of such confessions, they would be no more than a demurrer or agreed case, where the facts are admitted, and the law only contested. A confession of judgment, therefore, silences contest about the law of the case. But notwithstanding the law is thus admitted, and the court is bound to proceed without further contest where it has jurisdiction, it does not follow that the court after such confession has no act to perform, or sentence to pronounce, or that it ought not to draw out on the record the inference of law which the party confessing admits to be drawn against him. Forms of entries which, are wisely held to be evidence of law, plainly show that the court is still to render judgment, and that after the confession, which is the act of the party, is recorded, then the act of the court itself, and not that of either of the parties, must follow, commencing with the words, “Therefore it is considered that” &c. The court continue, “ Many reasons may be given why such an entry is necessary. In a case where the court has no jurisdiction, either between the parties or of the subject matter, it would still be bound to render no judgment against the party confessing, for it is a settled rule that in such case consent cannot give jurisdiction, and the rendering the judgment is the act which assumes and exercises it. It does not, therefore, follow universally that judgment is always to be rendered where it is confessed.”
    Much reliance is placed on this decision, from the great learning and eminent ability of Chief Justice Boyle, and Judges Ows-ley and Mills, by whom it was given; yet its greatest weight is to be found in the reason on which it rests, and its exact harmony with the analogies of the law, and its correspondence with universal judicial usage back to remotest antiquity, and its conformity with the definition of a judgment.
    In that case it was obvious the court had jurisdiction; the confession was there, as here, duly entered up, and then on motion, there was an express award of execution on the confession, by order of court appearing on the record, which makes it a stronger case than this, where there is no act of the court, in consequence of the confession. Yet there the court reverse the order awarding execution, because there was no judgment on which to award it. In that case there had been judicial action upon the confession, in this case there was none. There the action of the court, being an order that execution issue on the confession, was reversed and set aside, because it was an order that execution issue on the confession without a judgment. A judgment, the act of the court, is one thing; a confession, the act of the party is another ; and an order that an execution issue, though like a judgment the act of the court, is not a judgment.
    In the case in Littell, as in the present, “ the record presents every fact necessary to superinduce the judgment of the court.” Taking it for the present, that this is the act of Patton in person, let it it be established as a principle, that if “the record presents every fact necessary to superinduce the judgment of the court,” an execution may issue, as if the judgment were really pronounced, and it follows that if a case stands on demurrer to the declaration, and the cause of action is well assigned, and the sum for which judgment should be rendered is certain, an execution may issue before judgment on demurrer. That if a verdict be rendered and recorded^ execution may issue on the verdict without judgment. If an action be for a sum certain as in debt on specialty, and a default recorded, execution may issue without judgment; and so in a variety of other cases, which will readily present themselves to the mind of the court. All will agree that this is at least without precedent; and yet if we are to have principles by which to be governed, no distinction exists between the case now before the court, and the cases supposed.
    The case of Wethersby v. Proby, 1 Howard, 98, does not militate with the position I am now attempting to sustain. Indeed, I do not think it does so with any position of mine. It is true that there, the only entry which appeared was “judgment confessed,” and that it was assigned for error that there was no judgment of the court authorizing the execution. But the court, I think,-neither decided that there was or was not a judgment, or that an execution could or could not issue on a confession without a judgment thereon, expressly declaring that their “ investigations are limited to much narrower boimds,” and do not at all consider or decide on the effect of such an entry, as far as we learn from any express remark on these points. Assuming now that I have sustained my first position, 1 will proceed to enquire whether the truth of my fourth does not follow, passing by for the. present my second and third.
    Here the case of Wethersby v. Proby appears to oppose me, and if I fail to show that it is in effect overruled, or should be overruled, or that its opposition to me is not real, I must fall short of-my conclusion so far as it depends on my first position. If it is to be understood in the view I shall here take of it, I hope to sustain one of the first two positions.
    The case of Wethersby and Proby was decided in 1834, when the means of investigation and correct adjudication were not as much within the reach of the court as they now are ; and this, together with the facts that no court has failed at some times to have occasion to change an opinion, and that this court particularly has always evinced in its adjudications the utmost readiness to reconsider a point adjudged, encourages me to attempt to show that that case cannot be followed, if it is to be regarded as operating against my cause. I think it does not so operate at all. The first position in that case, which I shall examine, is contained in these words: « we cannot, in this matter, enquire into any thing that preceded the bond, because that was a satisfaction of the judgment. The second position is, “ we cannot even enquire into the judgment on the bond, because that it is not brought in question, further than it is said there is no "judgment to support the execution.” Considering these remarks, for, the present, as applicable to the case at bar, I will enquire : 1st. Can the court en-quire into any matter which preceded the bond ? The case of Witherspoon v. Spring, 3, Howard, 60, was decided at December term, 1838. In that case the court go behind the bond, and decide that an execution having been issued and a forthcoming bond taken and forfeited before the issuing of the execution, by virtue of which the bond was taken, which the plaintiff in error moved to quash, the judgment was satisfied, that the second execution, levy, and bond were absolutely void, and quashed them.
    In the case of McNutt, & Co. v. Wilcox and Fearn, 3 Howard, 418,. January Term, 1839, this court again look behind the bond, and even go not only back tb the original judgment, but back to the note on which the action was founded, to discover that two actions were brought on the same note, and that separate judgments were rendered; and because there were two judgments and not one, refuse to quash the bond, expressly affirming the doctrine, that had there been but one judgment and a bond given by Mitchell, and then a second bond by McNutty it should have been quashed, because the judgment would have been satisfied: thus again recognizing the doctrine of Witherspoon v. Spring. In Jones and others v. Miles’ administratrix, 1 Howard, 50, the court go behind the bond to the execution, and because the execution could not rightfully be levied on the goods, &c. of Jones, (the obligor) quashed the bond. This last case having been decided at the same term with Wethersby v. Proby, leaves' the mere question whether you may or may not go behind the bond, where it would have been, had neither case been decided; so far as that case could, if standing alone, seem to operate against me, and the other cases of 1838 and 1839, certainly overrule it, and decide that you may go behind the bond to show its invalidity.
    2d. Can we call in question the judgment on the bond ?
    In the case of Wethersby v. Proby, and also in the present case the motion was to quash the execution issued on the bond, and not to quash the bond itself. This is supposed to be if it is not said to be the reason on which the court there proceeded.
    I contend that to uphold the present execution, it must have issued on a judgment upon the bond by operation of law; no judgment by legal operation exists if the bond is invalid, and that the bond is invalid, if not taken in virtue of an execution issued on a subsisting judgment. That on a motion to quash an execution issued oh a forthcoming bond, we are necessarily led back to the judgment to see if it has a legal foundation on which it stands, the judgment being the great foundation on which all depend. I do not contend that you may go back and enquire whether the judgment was or was not erroneous, but that we must go back and enquire was there a judgment; for if there was no judgment, the “original execution, levy and bond are void.” This is decided in Witherspoon against Spring, before quoted. There the judgment having been satisfied before the execution issued in virtue of rvhich the - bond was taken, it was held, “that the second execution, levy and bond were absolutely void.” Now if the bond was absolutely void in law, how was it so ? surely by operation of law. Will the law so operate as to make the bond absolutely void, and at the same time, give it the effect of a judgment ? This is impossible; it cannot in the nature of things be absolutely void, and yet the highest security known to the law, a security of superior dignity to the most valid bond. It will not be settled that although an execution, levy and bond are absolutely void, that an execution issued upon that void bond, should not be quashed on motion. It is not necessary to move to quash a bond absolutely void; for-quash it never so 
      often, and it would still be as much a valid bond, as it was at first. A bond void in law, is in law no bond, and we can by no process, make it less than nothing.
    If there was no judgment and an execution issued, it would be a trespass, for which an action might be sustained, to cause it to be levied; a bond taken by reason of such unlawful levy would be as much void as in the case of the unlawful levy in Jones et al v. Miles. If the condition of the bond were complied with, and the property delivered and sold under an execution, issued without a judgment, no title would pass by such sale; and will the law silently pronounce a judgment against me lor not delivering my property to be sold, when that same law declares that my property shall not be sold if delivered, and gives me an action against all who may be concerned in the sale; and will also by its judgment restore me my property. Had we moved directly to quash the bond instead of the execution, the court would only have quashed it because it was of no validity. If of no validity, it cannot be the foundation of a valid execution. Had the statute of Mississippi like that of Virginia, required a motion in court for judgment on the bond, so as to make it necessary that your honors enter up the judgment of the law, you would have entered no judgment if the bond was’taken on account of the levy of an execution issued without judgment. Will the law then pronounce silently a judgment by its own mere operation, when it would have given no judgment if the court as its organ, was required to give it vocal utterance.
    In each case it is strictly the determination of the law upon the facts, and it cannot be that the law will determine one way when left to itself, but differently when its organs pronounce its determination. It is therefore respectfully contended that this bond was in the language of this court absolutely void, and being absolutely void an execution issuing on it must be quashed. All the cases referred to by me, decided by this court, will on close examination be found to coincide with my view, and the case of Weath-ersby v. Proby, I will show hereafter does not oppose it.
    It cannot be that a bond taken in virtue of an execution issued on a satisfied judgment is “ absolutely void,” and that a bond taken on an execution issued without judgment is not absolutely void, for a judgment satisfied is as much in every view of the law as no judgment at áll. I do not contend that on a motion to quash an execution the court would quash it by reason of the bond being void where the matter which rendered it void did not appear on the record, as for coverture, duress, infancy, forgery, and the like. There it might rvith good reason be said we cannot quash the execution which conforms to the bond, leaving the bond as it appears on the record a valid and subsisting bond having the force of a judgment. But where upon the whole record the bond appears void as that it was taken in consequence of a levy on property of A. B. when the execution issued against C. D. or of an execution issued before or without a judgment, or on a satisfied judgment, the record itself showing a state of case in which no execution could ever issue on the bond, the court would quash the execution, because upon the whole record, the plaintiff was not entitled to sue it out, and this because upon the whole record such facts appeared as prevented the law from operating on that bond so as to give it the effect of a judgment. And this is consistent with Weathersby v. Pro'by, as 1 will hereafter show.
    In answer to the remark “ that if the record in that proceeding was regularly before this court on error, there could be no doubt as to its power to render the judgment, which the court below should have done, and that would be of course that the plaintiff recover the'sum confessed by the defendant.” I would respectfully remark now, that I shall attempt hereafter to show the contrary, but if I there fail I now contend:
    1. That the case never could have come before this court on writ of error or appeal, there never having been any judicial act of the circuit court, the case yet standing on the mere act of the person confessing, from whose act neither appeal or writ of error lies.
    2d. That if the case could have come before this court, and it would have pronounced a judgment, the case did not come and the court pronounced no judgment, and a judgment which this court would have pronounced but did not, cannot authorize the clerk of Adams to issue execution. I do not understand that by the expression just quoted it is meant to convey the idea that where there is no judgment, an execution may issue because this court would ou error have pronounced one, but that where there is a judgment the form of which is imperfect, this court would not hold such informal judgment a nullity under such circumstances, but consider it amended. To consider it amended supposes its existence.
    If this is all that is meant I readily accede to it, and only adverted to the expression for fear I did not understand the full bearing of the sentence. If I have succeeded in showing that there was no judgment I have obviated the force of the expression, that this court has “ nothing to do with the regularity of the judgment, it was extinguished by the forthcoming bond by which the defendant released his right to sue out a writ of error on it,” for this proceeds on the idea that there was a judgment on which a writ of error would lie, and whilst it is conceded that the execution and forfeiture of a delivery bond, is a release of the right to prosecute a writ of error to the original judgment, it is contended that it is'not a release of the right to quash an execution issuing on a forfeited forthcoming bond taken under an execution, issued without judgment. The execution and forfeiture of a forthcoming bond extinguish a judgment, according to the decisions of this court. But here there was no judgment to extinguish. By statute it is provided, that after the forfeiture of a forthcoming bond, no writ of error shall lie to the original judgment. This surely contemplates that there was a judgment to which a writ of error would have lain, but here we could not have prosecuted a writ of error, there being no judgment, and the case still remains in the inferior court upon the confession awaiting the judgment of that court. It then comes to this, that, by a proceeding such as the present a party may be concluded as by a judgment, when there was no judgment, and when he never could before or after the execution of the bond have brought his case before this court, unless you may prosecute a writ of error to reverse a judgment when there has been no action of the court below.
    Although “ it is a well settled doctrine of this court, that the forfeiture of a forthcoming bond is a satisfaction of the judgment, it is not yet, and it is presumed it will not be the doctrine of this court, that if there be a void judgment, or a confession and no judgment, any act can be done which, will be valid by relation to the void judgment or the confession. The legislature by its enactments, respecting executions and forthcoming bonds, cannot be held by fair and reasonable construction, to have have intended, that where there is a void judgment or no judgment, the party shall not avail himself of it whenever, and however he may be proceeded against as under a judgment. The whole that they have said, and all that they intended was, that after the forfeiture of the bond you shall not have a writ to reverse an erroneous judgment. This is indeed severe legislation, and operates most disastrously where the error goes to the very right of the case. But more disastrous it must prove, if it be held that you shall not say there was no judgment, or a void judgment, the execution and- delivery of a forthcoming bond- shall conclude the party. Why is it that the forfeiture of a forthcoming bond should have the effect of a judgment, upon which an execution may issue ? It must be, because had the party performed the condition of his bond, by delivering that property, there was a subsisting judgment, to satisfy which the property might have been sold. Could the legislature have intended that the party should pay the sum for which the original execution issued, if the law did not admit of a sale of the property levied on to satisfy that execution. In the case of Jones et al. v. Miles, before cited, the precise reason why this court quashed the bond, was that the property levied on could not be taken and sold under the execution which gave rise to the bond, and is an express authority for me on this point. The case of Witherspoon v. Spring, turns upon the same point. The judgment there having been extinguished by the forfeiture of a bond, the property levied on was not subjeet to sale to satisfy that judgment. That was a stronger case than this for the plaintiff, for in that case there was a judgment, not a cent had been paid; had the execution issued on the forfeited bond, instead of the original judgment, the same property might have been levied on and sold to satisfy the same identical debt; yet as the execution did not issue upon the forfeited bond, but on the original, it was held that the “ execution, levy and bond, were absolutely void,” and the bond was qiiashed, though the debt for which the original judgment was rendered remained unpaid. It was so unpaid in fact, and was so in law, as held in McNutt v. Wilcox & Fearne. Here there was no judgment, no debt by judgment to pay.
    I will now take up my second position, viz: that if the record contains a judgment at all, it is a judgment against Girault, and not against Matthew B. Patton. 1st. Girault had no authority from Patton to confess any judgment. The record shows the authority, and it is an authority in these words, endorsed on the writ: “ I do hereby confess a judgment in favor of the plaintiffs of this suit, for the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents, to bear interest at the rate of six per cent, per annum from this date, and the clerk of the circuit court of Adams county, George R. Girault, Esq., is hereby empowered to enter up this confession of judgment, at the present term. Given under my hand and seal this April 14th, 1837. (Signed,) MAT. I). PATTON.”
    This, if an authority at all, is an authority to do what ? To appear in court as the attorney in fact of Mat. D. Patton, and in his name and for him to confess a judgment ? By no means. The authority is plainly expressed. Girault being clerk of the court, was thereby “ empowered to enter up this confession of judgment. What confession of judgment? Certainly that contained in the words, “ I do hereby confess a judgment in favor- of the plaintiffs in this suit,” &c. Now, is the power to enter up the confession which Patton endorsed on the writ, and the power to appear in court as his attorney, and in his name and for him confess judgment, the same thing? Is the power to record in court my acts, a power to appear and act as my attorney ? No two things can be more widely different. As well may it be said that the power conferred by law on the clerk of the court of probates to record my deed, is a power to make the deed and then record it, as that the power to enter up,my confession is a power to make the confession for lue and then enter it up. In addition to the authorities hereafter referred to, the attention of the court is earnestly asked to 6th Monroe, 85. 6 Johnson, 51.
    Again. The power if a power to confess a judgment was only to confess a judgment “in favor of the plaintiffs in this suit.” Who were the plaintiffs in that suit ? “ The President, Directors, and Company of the United States.” There was no declaration; nothing but the capias, and in that the President, Directors, and Company of the United States are plaintiffs. The judgment was not confessed by Girault, in favor of the plaintiffs in that suit, but in favor of the President, Directors, and Company of the Bank of the United States. Let it not be said that this was a clerical misprision, and that the Bank of the United States were really the plaintiffs. There is nothing in the record from which this appears, for there was no record save the writ. As well might it have been contended, that if Girault had appeared and confessed the judgment in favor of the United States of America, that he was by Patton authorized to do so; and that the words, « President, Directors, and Company” had been, through inadvertence, inserted by the clerk when issuing the writ, as that the words “ of the Bank” had been by inadvertence omitted. Had Patton, appeared in the action and plead “ nul tiel corporation,” would the court upon the production of the charter of the Bank of the United States have decided that there was such corporation? Surely not. No authority for such a determination is known. If upon the trial of such issue there were produced various charters, one of the President, Directors, and Company of the Bank of the United States, another of the President, Directors, and Company of the United States Navigation Association, another of the President, Directors, and Company of the United States Hotel, another of the President, Directors, and Company of the United States Branch Bank at Natchez, Mississippi, (the latter being the name of the plaintiffs as given in the execution in this case,) which of these would be considered the plaintiff? What would the court do but decide that no one of them was the plaintiff in the action, and that the plea of nul tiel corporation should prevail. Now it may be that there is no corporation which has a name as nearly approaching that in the writ as the Bank of the United States ; but this is not sufficient. The Bank of the United States is not authorized to sue or be sued by the name of the President, Directors, and Company of the United States. It is no where known in its charter by that name. It is not so called in common parlance. How then can it be said by this court judicially, that if I authorize A. to confess a judgment for me in favor of the President, Directors, and .Company of the United States, it is an authority to confess in favor of the Bank.of the United States? That institution is no where named in any part of the record until it is introduced-in the heading of the confession made by GirauLt. Even then if it was an authority to confess a judgment, in the name of Patton, in favor of the plaintiff in thdt suit, and it surely is no more than this, it is a confession in favor of a.plaintiff to whom he had no authority to confess; and, indeed, who as far as we know from the record, had never instituted suit. If an attorney is authorized to confess a judgment in favor of one plaintiff in a specified action, surely there'is no safety if he’may bind his principal by a.confession in favor of a different plaintiff.- .It is wholly gratuitous to say the Bank of the United States was here plaintiff. We may guess- it was so intended, but so to -determine would surely be nothing more nor less than to guess. Such latitude has never been ■ allowed to agents or-attornies in-fact./ With the greatest uniformity it. has been held that where a special.agent transcends or departs from his authority, his acts are void or bind . only himself. In 1 Livermore on Agency, 108, after laying down the, rule thát a general agent may bind his principals, if he act within the scope of his general authority, although in the particular instance a limitation, is put upon his discretion, it is said: “ But an agent, constituted for a particular purpose, and under a limited and cjrcumscribed power,'cannot bind the principal by any act in which he exceeds his authority.” The cases of Fenn v. Harrison, 3 T. R. -757, and 4 T. R. 177.. East India Company v. Hensley, 1 Esp. Rep. 111. Batty v. Carswell, 2 Johnson^ Rep. 48. Nixon v. Hyserott, 5-do. 58. Gibbon v. Colt et-al. 7 do.' 390. (Hogg v. Smith et al. 1 Taun-. 347. Hay w. Goldsmith, Ibid. 349. Gardner v. Baily, 6 T. R, 591. • Howard v. Baily; 2 H. Bl. 618, and-many other cases extracted by Livermore, most clearly take and strongly fortify the doctrine for which I here contend; and unless, the present case shall be made to constitute an exception, it is confidently believed a different doctrine Will not be found in the whole range of the elementary treatises, ox of judicial decision. , '
    At any rate I have no recollection of ever having seen in prints word or - sentence from which a contrary- .conclusion may be drawn; on the contrary-, .every writer and every judge, from the earliest ages do,wn to the present day, have in one’ unbroken chain inflexibly, adhered to the doctrine for which I-contend,-as indispensably necessary for the public security; and it is surely infinitely better that in a particular case, that which we suppose was intended - by the. parties shall fail, than that.a precedent be set, that when I authorize one to do one- act, lie may bind me by a different’act,'if in the particular case- it be reasonable to suppose I intended the act which he did, that supposition being founded not oh a construction of the. written authority, but on a partial sameness in the name of the plaintiff designated by me, and the-person, he may have selected to confess a judgment in favor of, although that person was' never known by the háme in my power. " Rather than allow such latitude, the known intent. of statutes shall fail. Sée Dwarris on Statutes.
    The position I take is indispensible for the public security, and is founded in the unalterable nature of things. No man has' by nature the right or power to bind me. If he can do. so at all, it must be because I confer the 'power on him. When I specify what he may do for me, it follows that he cannot go beyond my specification. - If I give him general power, and then put on it a limitation not known publicly, the case is in rpason different. The-general power known to the' public includes the'a'ct, and .the public not knowing the particular exception to tha;t general authority, may confide in .the power I have openly conferred. To permit me under'such circumstances to escape responsibility, would be to enable me to commit a fraud: - It is on this principle, to prevent fraud and .injustice, that the law-binds the principal by the-acts-of the general agent, when he exceeds the authority in a special case, but -still'keeps within the palp of his general authority. Many of the cases referred to will be found to be stronger than the present, in favor of the person seeking to hold the principal bound, and were cases of attorneys in fact, - ,
    But again,when an authority is lawful, the .party to whom' given must do the áct in the name-of him who gaVe the authority.” 1 Tomlins’ Diet. 136. ‘ Title Authority. • 11 Rep. 87. Upon this point I will not multiply references, as it is. believed there is no contrariety to be found hi the books, and the cases are .so numerous that none can doubt the firmness with which the rale is settled at law.' Courts of equity, it is true, have supported and enforced contracts, where by the language of the writing the agent acted in his own name, but it appeared also that the object was to bind the principal,; but a court of law has never departed from the language in which the agent ácts or contracts.' Where an attorney in fact says, “A B, attorney in faet for C D, conveys, &c.” it has ever been held at law to be the deed of A B, and not of C D, by A B, his attorney.
    In this case the entry is not that Matthew D. Patton, by his attorney, came into court and confessed, or that the attorney came for, or on behalf of Matthew D. Patton and confessed, but that Girault, attorney in fact, and not Girault as attorney in fact, confessed. The words “ as attorney in fact”, are not in the record, nor is there a solitary expression of equivalent import. We may again guess that it was so intended, but might this not have been as safely done in the numerous instances in which it has been held to be but the act or deed of the agent and not of the principal. Even the entries of this court' invariably show that the appearance and act is to be expressed as the appearance and act of the party by his attorney, and nót the appearance and act of the attorney. We do not say: «This day came the attorney of A. B. who did so and so.” It is, « This day came A. B. by his attorney or in propria persona.” The appearance is always the appearance of the party, and words are added to show how he did appear, whether by.attorney, in person, or by guardian ad litem, &c. So every act is recorded or stated as the act not of the attorney, but of the party. All the pleadings • and- all the entries are so, and the law is so, that it must be the act of the party in person, or by attorney, &c., and not of the attorney, guardian ad li-tem, &c. It may be that it was the intention of Girault to appear as attorney in fact for Matthew D." Patton, and make Matthew D. Patton’s confession. ■ But did he do so ? It does not appear that he did; but it appears that he did not. -The intention, if he so. intended, does not make it Patton’s confession; the intent and the act must concur. An intention without the act effects no more than would an act without the- intention.' When it is plainly declared that Girault confessed, how can we say he did not do so, but that Patton confessed by him. I most respectfully urge that courts have never, so regarded it, that no known rule of judicial action will sanction it, that no sound or rational criticism will warrant it, and that the public safety forbids it. If courts may so hold, the judicial vessel is loose from its moorings and without helm or compass afloat on a boundless ocean, incapable of pilot-age, for land-mark, or sun or star, by which to steer there is not, and where the passengers are to make land, where to be wrecked, or when overwhelmed no man can tell. For when words have ceased to be the signs of ideas, the judge and the lawyer have nothing by which to direct their course. What mischief will result from deciding that this is not the confession of Matthew D. Patton, it cannot be perceived by me, yet it does seem to me that supremely great should be the evil before a course should be taken which so completely opens the door to deciding by unbridled conjectures, instead of following the known meaning of words and conforming to the long established and universally adopted modes of making entries, that it is the appearance of the party by attorney, &c. Once depart from these well known legal modes of expression, and there will be nothing to restrain or by which to test the meaning of entries, but the discretion of the judge, and this discretion reducible to no fixed rule to govern us in future cases. It is therefore, that in the language of Ch. J. Boyle in the case before referred to, “ the forms of entries are wisely considered evidences of the law.” But really it is not a question of form. Is there not in fact and in law a manifest and real substantial difference between George R. Girault, attorney in fact for Matthew D. Patton, appearing and confessing a judgment, and the appearance of Matthew D. Patton, by George R. Girault, his attorney in fact, and by his attorney confessing. It is too obvious to bear remark, and I should deem an apology due for the time I have consumed on this point, but for reasons which your honors will at once perceive and appreciate.
    And still again. Whether the writing purporting to be a power from Patton is or is not genuine, does not, appear. The record does not show that it was proved. It is in no way, manner or form authenticated; for aught that appears, it may be wholly feigned or fabricated, it does not even appear that the writ was executed upon him, there is no return of an officer, no proof that he had ever seen it or heard of it. In the case of Creary et al. ¶. Turner, 6 Johnson’s Rep. 51, it is decided that the authority of a person as agent for the plaintiff to discharge a defendant from custody on execution without satisfaction must be clearly and fully proved, and strictly pursued. In Harvey v. Bostic, 1 How. 106, this court decided that an acknowledgement in writing endorsed on the writ purporting to be signed by the defendant acknowledging service of the writ, was not of itself evidence of service, but that before entering judgment the court should be satisfied by evidence of the genuineness of the endorsement, and reversed the judgment' because the record contained no such evidence. We cannot too much admire decisions which thus throw walls of safety around the rights of parties. That is an express authority for me that it does not appear that Girault had any power to represent Patton or to confess a judgment for him, and that if this is to be taken as a judgment at all it must be taken as a judgment against Girault, as upon its face it purports to be, and not against Patton, for whom he had no power to appear and confess and for whom the record does not assert he did appear and confess. This case also furnishes a strong ground in support of my first position, that there was no judgment if the court hold that the confession shall be taken to be a confession of Girault” as attorney in fact for Patton, and' not his own confession. If Girault appeared and under that endorsement claimed to be the attorney in fact of Patton, the court might have pursued and should have pursued precisely the course here taken, upon the hypothesis that this was intended as Patton’s confession. The court might have said to Girault I will permit you to file that paper and enter up now on the record your act, the confession, as attorney in fact for Patton, but will suspend or withhold judgment against Patton, until you prove the authenticity of that power. Because in this case the law does not warrant me in rendering judgment until two facts are on the record, or appear; the one is that you have power to confess for Patton, this you must show by proof that he executed the writing you produce, the other fact is that you actually do confess. It is not material which fact occurs first, although it might be more orderly for you first to introduce proof, but if you choose you may now enter up your confession, and let it stand till proof is produced that the paper was executed by Patton, I will then enter the judgment. As this is precisely the course that the court might legally take, and as the court did in the plain language of the record receive the confession and stop there; as this court would have reversed the judgment had the court below, on the facts exhibited, pronounced a judgment; as there is not a word or syllable in the record purporting by any construction to be an act of the court; how can it be said that the court did act, and did give an informal judgment against Matthew D. Patton.
    It is a rule that every presumption will be in favor of the idea that the court acted correctly. It did act correctly as far as the record goes: it would have acted incorreclly to have gone further, and have pronounced a judgment; and will this court presume that it did so ? Surely not. Suppose the fact to have been, that M. D. Patton hearing of this proceeding, and denying the execution of the power, had brought his writ of error upon the entry claimed to be a judgment, and it had been moved to dismiss the writ on the ground that there was no judgment, that the mere confession had been received, but the court not having proof of the power, delayed or withheld judgment, and no proof having been made, had never acted on the confession. Suppose this had been stated to this court by the counsel concerned in the cause below, to have been the fact, would this court have hesitated to dismiss the writ of error ? Now the record is precisely the same whether a writ of error was or was not prosecuted, and whether such motion and statement by counsel was or was not made. It was or it was not a judgment: and that should be determined on the face of the record, and nothing but the record.
    From the face of the record there should have been no judgment, and on the face of the record there is no judgment. It is all as it should be, if. I am sustained, and it is as it should not be, if I am overruled. This distinguishes the present case from the case of Wetherby against Proby, even if it be held to be there decided that the entry, “ Judgment confessed,” was an informal judgment, and not the mere act of the party, and that you could not go back in that case behind the bond. There the record contained every fact necessary to superinduce the judgment of the court; the law and the facts were admitted by the party, the court had jurisdiction, and nothing remained but to draw out the conclusion of law upon the facts in the record, which would have been of course, that the plaintiffs recover. Here the record did not contain every fact necessary to superinduce the judgment of the court, it being a confession not by the party; another fact was necessary, to wit: that he who confessed had authority. Had the conclusion of law on all the facts contained in this record been drawn out, it would have been of course, that the plaintiff could not recover. The case of Wetherby v. Proby, is therefore only an authority, make the most of it, that where the confession of the party is entered, and the court, had it proceeded, must have entered judgment for the plaintiff, you shall not, after the execution and forfeiture of a forthcoming bond, go back and object, that the conclusion of law which necessarily followed from the facts in the record, was not drawn out; that under such circumstances, “ the execution, levy and bond were” not « abso-solutely void,” and therefore if the execution conformed to the bond, the execution should not be quashed; and does not at all war with my position, that where there is no judgment, the execution, levy and bond are absolutely nullities; no execution can ever issue, the law does not give the bond the effect of a judgment, that no motion is necessary to quash the bond, but you will quash an execution which issued on it, and leave the party to whom the bond is given, to seek by action at law to recover on it as a valid common law bond, if he thinks he can do so.
    Upon this view of the case of Wetherby against Proby, it does not conflict with the other cases decided by this court. All its decisions are harmonious, and from them we may deduce without difficulty what seems to me to be a sound, safe, and salutary distinction. That is, that if upon retrospection of the record there is a judgment, not void, or if there be a confession of judgment entered up, (in.a court having jurisdiction of the cause,) by which the party admits the law and the facts to be against him, and an execution issue, is levied, and a forthcoming bond is taken and forfeited, yon shall not go behind the bond and set it aside, (or quash an execution issuing on it if conformable to it,) for any error in the previous proceedings. But if the judgment be void, or there is no judgment, or if the judgment be satisfied or discharged by payment, a release, a forfeited forthcoming bond, or in any other way, so that if the party giving the forthcoming bond had complied with the condition, and delivered the property, it could not have been legally sold; the levy and bond are absolutely void, and an execution shall be quashed, no odds when it issue. Because the law never will so operate on a bond void in law as to give it the effect of a judgment; and consequently, not having the effect of a judgment, an execution cannot issue upon it. The reasoning of the court, in Wetherby v. Proby, seems to me to strengthen my conclusion. Although the court do not investigate the effect of the entry, “judgment confessed,” and decide whether it is or is not under the circumstances of the case to bo regarded as a- judgment, they evidently proceed upon the idea that there was a judgment; for when assigning the reason why they could not “ enquire into any thing which preceded the bond,” the express reason is assigned, “because that was a satisfaction of the judgment.” If there is no judgment to satisfy, this is no reason at all, and so does not apply to the present case against., but does for me; for here we find why it is that you may not go behind the forthcoming bond. The barrier is made known, and that barrier being absent in the present case, we may go back in the strictest harmony with any decision of this court; but cannot be prohibited from going back without doing violence- to the case in which the court say you may go back to show that the judgment was satisfied. There, as here, there was no judgment to be satisfied by the forfeiture of the bond, — there, because it had been previously satisfied; here, because there had never been a judgment to satisfy, nor even the facts ascertained which showed that the defendant by confession admitted the law and facts to be against him. The court.having in that case proceeded on the idea that there was a judgment, add, “ we cannot even enquire into the judgment on the bond, because that is not brought in question further than it is said there is no judgment to support the execution.” It having been before assumed that there was such judgment, the only reason for attacking the bond assigned in that case was false, and therefore the judgment on the bond could not be enquired into. If this was correct reasoning in the court, (and it seems to me to be so, upon the assumption that there was a judgment,) we may, for the same reason, go into the judgment on the bond, because the reason here assigned by us that there was no judgment, is true; besides which, we attack the bond in our motion for other reasons. “ Because there is no such corporation as the President, Directors, and Company of the United States Branch Bank at Natchez, Mississippi; and the forthcoming bond upon which said execution purports to have emanated as a statutory judgment upon a forfeited bond is null and void.” This it is conceived must be broad enough.
    1 now proceed a step further, and contend that even if the writing had been proved, and the confession had been made by Gi-rault, as attorney in fact for M. D. Patton, and it had purported to be a power to confess a judgment, and not merely to enter up that confession, and if also the president, directors and company of the Bank of the United States had been named as plaintiffs in the writ, yet on all these facts the court should not have entered judgment against Patton, because they would not have shown that Girault had legal authority to confess the judgment, but on the contrary they show that he had no such authority. A writing concluding with the words, « witness my hand and seal,” but without seal or scrawl, is not a sealed instrument. Such is here the case. Such writing is but parol, and a pafoL author ity is not sufficient to enable one to bind another by a sealed instrument ; a fortiori, it is not sufficient to enable one to bind another by the highest and most solemn act known to the law, an act of record.
    The confession, therefore, was void for want of authority, as appeared from the record; and the judge rightfully, and of necessity, stopped upon the confession, and withheld the judgment. Indeed, had he rendered judgment in due form, it would have been void for want of jurisdiction, there being no party before him by service of process, appearance, or otherwise.
    I now come to my third original position.
    The judgment, if there be one, is in favor of the President, Directors and Company of the Bank of the United States. The execution issued in favor of the President, Directors and Company of the United States Branch Bank, at Natchez, Mississippi. The United States Branch Bank, at Natchez, Mississippi, is not the same with the United States Bank. Could a suit be maintained in'the name of the President, Directors and Company of the United States Branch Bank, at Natchez, Mississippi ? It could not. Why not ? Because there is no such person or corporation. If so, then this execution issued in the name of no-body. But it has been said that this court cannot judicially know that there was no such corporation. Well, I am willing to take it so, and that there was no such corporation; what follows? That the judgment is in favor of one corporation, and the execution issued in favor of another. My adversaries may choose either branch of the dilemma. It is expressly admitted on the record, that there is no judgment in favor of the President, Directors and Company of the United States Branch Bank, at Natchez, Mississippi.
    In Meze v. Howver, 1 Leigh’s Reports, 443, the forthcoming bond was quashed, because it was not taken to Mayes and Me* Clung, the plaintiffs of record, but to Howver, for whose use the suit was brought, Mayes and McClung having endorsed on thp writ that it was for Howver’s benefit. The court say, “the creditor to whom the bond is to be made payable, is the person entitled to sue out the execution, the plaintiff on the record. No other person-can be known to the officer,, or to the court itsejfi, as the creditor.” The judgment of the inferior court, sustaining the bond, was reversed. This was the sentence of the law, when pronounced by the court of appeals of Virginia, and I have already shown that the sentence of the law cannot be one way when it is left to act for itself, and the reverse when it speaks through the courts. The court, therefore, should have quashed this execution, because it issued on a bond that could not have the effect of a judgment.
    If the remarks I have already made respecting going behind the bond are not satisfactory, I would refer to 1 Washington, 359, Hubbard v. Taylor. 2 Wash. 189, Denman v. Chinn. 1 Leigh, 449, Meze ¶. Howver. 1 Mun. 605, Glasscock’s administrators v. Dawson. In the latter case, the propriety of going back beyond the bond is expressly adverted to, and asserted. If when it is said we cannot go behind the bond, it is only meant we cannot go back and quash an execution, because of error in the judgment, the counsel concur, for that would be in effect to require the inferior court to reverse its own judgment, as if for error in a subsisting judgment, the court quash the execution issuing on it, its whole effect as a judgment is defeated, and an erroneous judgment is in all respects effectual till reversed. But if it is meant that we cannot go back to see that there was a subsisting unsatisfied judgment, or that the execution Avas authorized by the judgment, or that the levy was anthorized by the execution, this court has very correctly decided the reverse.
    I will detain the court no further on the points announced in the commencement of my argument, and proceed to another point. If there be a judgment at all, it is only a judgment for the sum expressed. There is no judgment for costs; the execution recites a judgment for the sum expressed and for fourteen dollars thirty-five cents costs, and commands that sum be levied. In the case of Glasscock’s administrators v. Dawson before referred to, it is expressly decided, that if the levy is for more than the judgment authorized, the bond should be quashed. In Jones et cil. v. Miles, this court says, “ our statute is very similar to the Virginia statutes, and so far as the decisions have gone in that state, they may be considered as authority here, and decide accordingly. No decision of that court rests on better reason than that of Glascock v. Dawson, in which the bond was quashed because the judgment did not authorize a levy to the amount in Avhich the bond Avas taken; and the decisions of this court before referred to, necessarily lead to the same result. Why was the execution or bond quashed when the judgment had been satisfied by the forfeiture of the previous bond? only because the judgment did not authorize the levy, it at last comes to that. Why Avas the bond quashed where the judgment and execution were de bonis testatoris, and the bond shorved a levy on the goods of the executor only because the judgment did not warrant that levyAvhen run back to the ultimate reason it terminates there. Here the judgment not authorizing the levy actually made, the reason is the same, and consequently the law the same. An entire levy for an entire sum cannot be in part good, and in part bad. The bond must at least be bad so far as it rests on a levy for the costs, and the bond being entire, cannot be in part a nullity and in part valid. The execution on the bond must therefore be quashed, because as before shown, such bond would not by operation of law have the effect of a judgment.
    But must the motion to quash be made at the term to which the bond is returned, where the motion goes back to and involves a consideration of the validity of the bond. If I have succeeded in showing that upon the present bond the law would not operate so as to give it the effect of a judgment, I have succeeded so far as this case is concerned, as it appears to me; but weighty considerations demand of me as a member of the bar and of this community, to make an effort against the doctrine that a motion to quash a forthcoming bond must be made at the return term of the bond. This I feel the more necessary because of the great principle it seems to me to involve. The line between legislative and judicial power appears to be concerned.
    There is no statute limiting a motion to quash an execution on a void .forthcoming bond, or a motion to quash a forthcoming bond to the first term. To determine that it is so limited, is plainly to make law, and not to expound and apply it. It would be to all intents, and to every purpose, a limitation law, made by the judges. We find no such thing in the common law, no such thing in the constitution, nor yet in a statute. Then who can establish or make such a regulation ? Surely not the judges. We know no law making power, but the legislature. That body, contemplating the existence of a judgment, the rightful or lawful issuing and levying of an execution, and the giving of a forthcoming bond such as the law held a good bond, (for the law could not have been provided for cases that the same law did not warrant,) declared that that bond should, if the condition was broken, be returned forfeited to the next term of the court, and have the effect, of a judgment, upon which an execution might issue. But is this equivalent to a provision, that if the bond be illegal and void, if there was no judgment, if the levy was illegal and unauthorized, if no title could have passed by a sale under the execution, if the property had been delivered, and you do not move to quash it at the first term, it shall have the force of a judgment, and that no motion shall ever thereafter be made to quash it, or to quash an execution which issues on it, if the execution conform to the bond. Surely the words of the statute carry to the mind no such idea. The legislature have ■ spoken in language clear and unambiguous, and their language admits not of this construction. It could not have been a part of the legislative policy in any of the cases I have supposed, of no judgment, void judgment, a levy forbidden by law, &c., to make the person thus wronged pay the money stipulated for, to give him an action of damages against the plaintiff, for suing out his execution on a void judgment, or without judgment, and causing his property to be seized, and at the same time to give the trespasser the money which it gave the defendant an action against him for attempting to make. But even if such was the legislative intention, it is not expressed, and the rule is this: “ The judges, in interpreting the law, are to explore the intentions of the legislatureyet the construction to be put upon a statute must be such as is warranted by, or at least not repugnant to the words of the act. Where the object of the legislature is plain and unequivocal,^ourts ought to adopt such a construction as will best effectuate the intentions of the law giver. But they must not, to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of the statute a construction not supported by the words, though the consequence should be to defeat the object of the act. Where the legislature have used words of a plain and definite import, it would be very dangerous to put upon them a construction, which would amount to holding that it did not mean what it has expressed. The fittest course, in all cases, where the intention of the legislature is brought into question, is to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the act of parliament.
    The most enlightened judges have for some time lamented the too frequent departure from the plain and obvious meaning of the words of the act of Parliament, by which a case is governed, and themselves hold it much the safer course to adhere to the words of the statutes construed in their ordinary import, than to enter into any inquiry as to the supposed intention of the parties who framed the act. They are not (as the most learned members of a learned body best know) to presume the intentions of the legislature, but to collect them from the words of the act of Parliament, and they have nothing to do with the policy of the law. This is the true sense in which it is so often impressively repeated, that judges are not to direct their conduct “ by the crooked cord of discretion, but by the golden metwand of the lawi. e. not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness.” Dwarris on Statutes, 48, and authorities there cited. These seem to me to be sound rules; such as the jurist should have indelibly impressed on his memory and ever present in his mind. And if it be that even if the known and indubitable object of the statute shall'fail rather than courts shall give a construction not supported by the words, how can it be that the court may declare that I cannot in Mississippi move to quash a void forthcoming bond ; one on ‘which a court would not pronounce a judgment unless I do so at the term to which it is returned, where is the statute which so declares ?
    But if such a rule shall be .established, is it to be universal or only general ?
    If universal, what shall be done when no court is held at the return term ? What if the bond is obtained by duress, executed by married women, infants, idiots, or lunatics? What if the obligor is imprisoned, or confined to a bed of sickness? What if the execution issue from the county of Perry, directed to the sheriff of Tunica or Coahoma, is levied on the second day of the month and a bond given for the delivery of property on the third, and that be the day on which the execution and bond are returnable, and the court of Perry sit but two days, so that the party can by no possibility reach court ? And what in the great number of additional contingencies that may arise, and which must occur to the mind of the court ?
    If it is to be but a general rule, the couit must declare the exceptions and exercise all the functions of legislation over this whole class of cases. Difficulty upon difficulty must arise, and doubt and uncertainty hang over all our proceedings. The peculiar notions of the judge in each case as it arises must be substituted for law, and the poor litigant often find himself ruined, not 
      by the operation of law previously enacted and promulgated by the legislature, but by an ex post facto rule made for the first time to govern his case, after that case had fully occurred, and which he could not with the aid of any intelligence short of omniscience have guarded against. We may know and provide for every thing in the common law, the constitution and statute; but some secret law locked up in the breast of the judges or of which even the judge has not conceived, must be made to govern our rights, and we may be consigned to utter ruin by a rule which no science could discern, and no prudence guard against. There is no court in Christendom that has not considered retrospective legislation as of such dangerous tendency, as to decide that no law, although that by general words it embraces the case, shall be held to apply to past transactions, if by any means, it can be otherwise expounded consistently with the words of the legislature. They will not give it a retroactive effect unless the lawmaking power expressly declare it to be retrospective, or unless such construction rests upon necessary implication. Will the court then venture on a ground which will of inevitable necessity involve so wide a range of retroactive legislation by the courts. Let it be remembered that the rule cannot be fixed by adjudication in any particular until a case come before the court to be governed by it, so that every case must rest in the first instance on ex post facto judicial resolutions, having the effect of, and being in fact and in deed for every practical purpose new made law, invented and declared by the court for the express purpose of governing a case, no one fact or circumstance of which occurred under its known existence.
    It would be as unjust and impolitic as it is inadmissible to limit the time of making the motion to one term, or indeed to any term until the money is paid, and even then it should be allowed, and a writ of restitution awarded in all cases where right and justice require it.
    Where the parties are duly served with process, and appearing have a full investigation of their cases in open court with the aid of vigilant and learned counsel, all the legislatures have allowed years, varying from three to one and twenty for the detection of errors, and suing out writs for their correction. Shall it be that ill a proceeding such as this, where the party is not called before the court, where neither judge nor jury has passed upon his case, but all is done by clerks and sheriffs, sometimes unskilful if not wholly incompetent, generally loose and careless in their rapidly conducted business.. A court will say we will allow only the first term, possibly but one day, and generally not one week, for the detection and correction of errors. It is to be remembered that the bonds are not returned till the first day of the term, and the parties have no means of compelling the sheriff to give copies; during the term, the lawyers are or should be busy with their clients and causes, and have not time generally, for such employment as examining executions and forthcoming bonds. Indeed it may and most generally will happen where the, bond is for too large a sum, that the party only makes the discovery in fact when called on with the execution. Slow justice is bad, but swift injustice is worse. There is a medium in all things, that should be obtained if practicable. The great end of law and of courts is that justice be administered, and all legislation and adjudication not with an eye to this paramount interest of the human race, are perversions of the purpose for which legislatures and courts are ordained.
    I feel that an apology may be.due for the preceding remarks, but my feelings and my judgment as an humble, but I hope a sincere worshipper in the temple of law and of justice impelled me on, and if any thing is exceptionable in word or in thought, I hope it will be ascribed to the true' cause; a zeal, if a mistaken zeal, in the cause of what I consider to be sound- principles.
    The only remaining ground is that assigned in the petition for a rehearing, which I submit without remark.
    Winchester, on the same side.
    Montgomery & Boyd, for defendant.
    The first question is, can it be assigned for error that the court below improperly overruled a motion to quash an'execution.'
    The constitution confers on this court ,only such jurisdiction as properly belongs to'a court of Errors and Appeals. Art. 5, sec. 4.
    This court has frequently - decided that it had no jurisdiction unless there was a final judgment, and refused to return a certificate in a case referred on doubts.
    
      It is very certain, error cannot by the common law be assigned to an order overruling a motion to quash an execution. 6 Peters’ S. C. Rep. 648.
    The writ of error cannot reach the original judgment, nor the qioasi judgment on the forthcoming bond. Not the first, because a bond had been taken, and the writ of error granted by the clerk was not a matter of right. Not the last, because the bond is only a part of the case by the bill of exceptions, and that was taken to the decision of the judge overruling a motion. See collection of Statutes; Act 1837, 333..
    There is no judgment on a forthcoming bond,but a quasi judgment of equal validity, which is governed by the same rules as an actual judgment. It is ideal, and the court gives it the shape and substance as it should have, if a formal judgment were required. It is an extinguishment of the previous judgment on which it is taken, as fully as judgment in debt founded on a former judgment. Would the court after a judgment by default in debt on a judgment, and execution issued and in part executed, permit a motion to set aside the judgment by default, because there was a variance in the description of the judgment sued on? Or even when the record of which proferí was made showed no judgment had been rendered. The statute which gives the forfeited bond the force and effect of a judgment, places it on the same footing it would have stood if a regular action of debt had been brought on the bond and a formal judgment rendered, and you cannot go behind it. 1 Howard, 98. Revised Code, 203, sec. 28. Act 1827, page 124.
    The statute of jeofails cures all the irregularities previous to the forfeiture and return, unless a motion to quash the bond be made at the return term; then the court will interpose on the same principie it would to set aside a judgment by default at the term at Avhich it was taken. After the term, (the judgments all being final on the last day,) the parties are estopped from disputing the record. Coke Lit. 36 a.
    
    The only execution or process outstanding and not returned at the date of this motion, was the venditioni exponas, which issued after the fieri facias on the forfeited bond had been returned. And although the motion does not specify any particular process, yet it must have referred to this, and we utterly deny that a motion to quash a venditioni, opens up any part of the original proceedings. In the case of Wanzer v. Barker, decided by this court in January last, 4 Howard," 363, it is declared that the judgment on a forthcoming bond cannot be attacked after the return term of the bond. The decision is abundantly sustained by principle and authority.
    Forthcoming bonds are not subject to our statutory provision, which allows the consideration as of bonds, bills, &c. to be in■quired into on plea. 'They are not capable of béibg sued, and of course cannot be plead to. Prior to forfeiture, then, they stand on the same footing as common law bonds, and the seal imports a consideration;‘So that no recital contained in them, or other matter set. forth in them, can be questioned or denied by the obligors. There is a complete estoppel.
    ■ After forfeiture they are like all judgments by default, liable to be attacked at the return1 term, and for good cause" may be set aside; but even then, no good cause can ever be shown against what appears on the bond itself. This principle has been carried to a greater length by the supreme court of Virginia than by this court. But.the principle contended for, and it seems undeniable, warrants their decision. In 2 Call’s Reps, (top) page 426, the court decided, that although there may never have been either a judgment or execution against the person who" executes a forthcoming bond as principal, still, after the legal forfeiture is fixed, he cannot be heard to question his own acts. And why, ón principle, should he be'allowed to attack the faith and credit, of the judgment received, after tipie has given to it that sanctity that no other person can be permitted to question its absolute verity ? Before it assumes this sacred character, it may indeed be scrutinized by any one interested in it; but afterwards, the repose of society demands that its condition should remain unchanged, and be placed beyond the reach of any assault. 4 Verger’s Rep. 117, also shows the nature of the estoppel of a. forthcoming bond.
    The case of Weatherby v. Proby, 1 Howard, 98, decides that a motion against an execution on a forthcomine; bond cannot extend beyond the bond itself; and the case of Wanzer v. Barker, before referred to, decides that the forthcoming bond can only be attacked by motion at the return term. These two cases, taken together, would certainly seem to settle,the one before the court.
    The writ of error is, taken to the judgment of the circuit court on the motion to quash the execution, or rather the venditioni exponas on the forfeited bond, and extends only to that error. If the original judgment dr supposed judgment, for any cause, was not legally obligatory, the, parties to it had their day in court to bring it before the appellate tribunal. When that, day or legal time is passed, the parties cannot question the original proceedings. This is a principle running through the whole law. It is not sufficient, that a,defendant has a good defence; ,he must avail himself of it in time. In this case, if the execution corresponded with the bond, the court can go no further, the judgment record is complete. The bond constituted with its recitals and conditions the basis of the judgment. If the bond was not attacked in time, it never can be legally attacked. The prior proceedings, so far as the court is copcerned to know them, are spread' out of record on the fa.ce of the bond; they are there recited by the party himself, and'he never can contradict them, unless he do so before the final judgment on thelpond; that judgment though ideal yet when perfected, is like all other judgments and imports absolute verity., -And the sophistry of the whole argument against it is, that the plaintiff in error professes' to contradict this judgment record by another antecedent judgment record, of no greater validity, and-, which he declares shows the latter to be unwarranted, or even void. It would be a good answer to him, even if this bond were never in suit, to say, that you can never be heard to contradict your, own recitals and admissions, unless you can show some fraud in the other party. .How much stronger does this reasoning apply, when every debateable point has been closed by a solemn judgment. Indeed the original proceedings from the writ till the first judgment, are not before the court.. No question has ever been made in réspect to them, and they have never, been incorporated with the proceedings, except by'the voluntary act of the plaintiff 'in error, and the certificate of the clerk that such papers were on file in his office. It is immaterial whether there, ever was a writ; a confession of judgment is good without a writ. It is' immaterial whether there’was a judgment; a voluntary bond, without any consideration, after a judgment upon it and execution, can never be set aside or inquired into. In truth, under our Jaws, the .giving a forthcoming bond is the commencement of a new case, .the judgment on it is a new judgment, and against new parties, the execution on this, judgment is a new execution, 'and the record is a new record; and when this new record' shows the bond, the judgment and the execution, it is perfect and complete.
    There is a time to attack every stage of those proceedings, but when that time is suffered to go by, the parties are as much pre eluded from complaint and arguing as the rest of the world.
    It is the interest of the commonwealth that there should be an end of legal strife.
   Mr. Justice Thotteh

delivered the opinion of the court.

A preliminary objection has been taken by the counsel for the bank,, that the'judgment of the court .below is notbpen to review or error. That no appeal or writ of error will lie from an opinion or judgment sustaining or refusing a motion of this kind. We are aware that it has been so decided in some of the other states; but it has been uniformly held otherwise in this’ state, both in the old supreme court under the constitution, of 1817, and in this court in several cases which have been brought before it. Walker’s Rep. 175, 215, 317. 2 Howard, 852. 3 do. 1. The practice of allowing writs of error-in such cases, is therefore too well settled to be disturbed, unless some stronger ground is offered against it than has yet been presented to the court.

From the record in this case it appears, that at the April term of the circuit court of Adams county, in the year 1837, the Bank of the United States obtained a judgment against Matthew D. Patton, for the sum of eleven thousand eight hundred and eighty-five dollars and forty-seven cents. A writ oí fieri facias was issued upon the same, which was levied on certain slaves, and a bond for the delivery of the property given by Patton and the other plaintiffs in error. The bond was forfeited, and returned so, together with the execution, to, the court from which it issued.’ On the first day of December of the same year, an execution was issued against Patton, and all the securities in the bond. This writ was returned levied on certain lands described in the sheriff’s return. On the 4th day of May, 1838, a venditioni exponas was issued; and at the October,term following, which was the term for the return of the venditioni exponas, the plaintiffs submitted to the court a motion to quash the execution, which was overruled. The motion was urged upon two grounds: first, that there was no judgment against Patton to support the execution; and secondly, if there was, it'was in .favor of the Bank of the United States, whereas the execution was in favor of the Branch Bank of the United States, at Natchez, &c.

The error relied on, is the judgment of the court upon the motion to quash the execution.. The same grounds which were relied on below, have been insisted upon in this court, and urged with great zeal and force. The confidence expressed, and no doubt felt by 'the able and experienced counsel' for the plaintiffs, in the soundness- of the principles upon which he has asked for a reversal of the judgment in this case, as well as its great importance to the parties and the country, have led .us tó a very careful examination of the questions . which have arisen' for our decision.

When this case was before us at a former term, it was examined on briefs and written ‘arguments merely, and it was then decided mainly upon the authority of. former adjudications of this court. The case of Weatherby v. Proby, 1 Howard, 98, seemed to us a case which fully embraced this, and we were accordingly governed by it. That case decided the limits within which, in questions of this sort, the enquiries of the court must be confined. It put the original judgment and execution entirely out of the question. Regarding that case, too, as falling within the settled rules of this court, as ‘we understood .them, for more than twenty yeárs, we did not think it then necessary to express at length our reasons for concurring in its conclusions, or to criticise upon its reasoning. We were, therefore, much gratified when our attention was called to this, subject again, upon the reargument of this cause, and especially at the very learned and scientific analogies of the questions involved. Considering the fact of the -frequent, nay, almost every day’s recurrence in our. circuit courts, of cases similar to the present, it is .surely.very desirable tó the whole country that it should be determined upon grounds well understood, and under the guide of the best lights which can be had. Thus- admonished of the importance of our duties, and sensible of the great responsibility under which we act, wé have approached the labors before us with every disposition to diligence,-industry and patience. So that whether our conclusions be right or not, we shall at any rate be consoled by the' conviction, that they are the result of the best investigation .of-the subject, we have had in our power to bestow. ' ; . . ,

As the decision of this cause at the last--term, turned principally upon the preliminary question of the power of the court to extend- its enquiries to any proceedings which occurred' anterior to the forfeiture of the delivery bond, we have deemed it proper to consider and settle that point before we notice the other questions, for that we take to be the fpain enquiry before us. Delivery, or as. they are more- generally termed forthcoming bonds, for property levied on by an execution, are unknown to the common law. - They are creatures of statutory law, and to -the law. of their creation we must, therefore, look for the definition of their 'character, and their operation upon the rights, of the parties. By the act of 1-827, which was a modification merely of the act of 1822, the sheriff or Other -officer is required, upon the levy of an execution upon personal property, if tendered,-to take a bond with sufficient security from'the debtor, payable to the creditors^ reciting the service of such execution, and.the' amount due there'on, in a penalty equal to double the amount of such execution, &c. with condition to have the same property so levied on forthcoming on the day of-salé thereof,,'or to suffer the 'same to. remain -in the possession of, and at the risk of such debtor until that timeand if the- owners of such property, or defendant in-the execution, shall-fail to deliver up the same according to the condition of the bond, &c., such sheriff or other officer shall return the bond so forfeited, with the execution, to the. court, from which the same issued, on the return day thereof; and. every bond which'shall be forfeited, shall-have the force and effect of a judgment, and execution shall issue against all the obligors thereon, &c; The object of this law was to relieve the debtor from the inconvenience of .parting with the possession of the property, and the expense of taking care of it between the ,levy and sale day. It is an indulgence granted to him. But this was not to be done at the hazard of the creditor, and the law is therefore cautious to provide for the security of the latter, by exacting good security for a compliance with the condition of the bond. If the property is delivered, the creditor is not injured, the. execution will then sell it; if it is not, his remedy is upon the bond, which then by the operation of the statute acquires- the character of a judgment. The creditor has lost the lien of the old judgment,, but he'is amply compensated by the new;,and more comprehensive lien of the statutory judgment. _

Here it may be proper to pause and enquire 'what effect the bond might have had upon the rights of the creditor, without the further provisions of the statute which give it the force of a judgment after a breach of its condition'. ' As it releases the levy, and restores the property to the debtor, it is tantamount to a satisfaction of the execution, and the creditor would be left to pursue his new remedy upon the bond. In the case supposed, the bond would be similar in its character.to a replevin bond, which has been held to be a substitute for the original judgment. Thus under the replevin law of Virginia, which provided that if the property taken in execution did not sell for two-thirds of its appraised value, the debtor might give bond, with security-, to^ay the debt within twelve months, it has been determined that if the money is not paid according to the stipulation in the bond, the creditor is not at liberty'to resort to a new execution on - the old judgment, but must pursue his remedy, on the bond. This was settled to be the law in.the tías?, of Dundass v. Taylor, 2 Wash. Rep. 92, and the court quashed the second execution.- The -court in that case held that the bond was the same thing as levying an effective or productive execution; it was in lieu of the judgment, and operated as a satisfaction, it was no doubt in view of this principle that .the framers of our statute^ saw proper to relieve the creditor from the delay and expensé of a second suit upon the bond, by giving to it after forfeiture, the force of a judgment against .all the obligors thereon, with a .consequent right to have execution bn the same, and also to provide -that no security should be taken on the execution which is sued out upon the new judgment. Whilst this new judgment is in force, no proceedings can be had upon the original judgment. The security of the old judgment is merged in the higher security of the new one. It is the same in principle as though a second judgment was had in an action of debt upon the old judgment, or upon the bond after breach of its condition. Hence it has always been holden that the statutory judgment on the bond satisfies or extinguishes the original judgment. This is the express ground of the decision of this court in Witherspoon v. Spring, 3 Howard, p. 60.

The second execution was set aside for the identical reason assigned by the Court of Appeals in Virginia, in Dundass v. Taylor, to wit: that the original judgment was satisfied by the levy of an effective or productive execution. The decision of the court in Virginia has never been questioned, so far as we are informed; and surely the principle of that case holds with far greater force when applied to a case where the bond has ripened into a judgment against the obligors. These views are fully and very ably sanctioned in the case of Ramsay v. Lusk, 3 Munford, 434, which arose under the act of the Virginia legislature of 1769, in relation to forthcoming bonds; the provisions of which are the same with the act of this state. It is said that if the bond is forfeited, the execution is completely at an end; the bond assumes a new character; attains the dignity of a judgment, and becomes the foundation of a new procedure.” And the same principle has been mniformly recognized in that state whenever the question has been presented to her courts. Cook v. Piles, 2 Munford, 153. Downman v. Chinn, 2 Wash. 189. Echols v. Graham, 1 Call, 492.

The execution is thus held to have performed its functions and to be completely at an end, and the judgment to be satisfied, on the well settled doctrine of the common law; that by a levy to the amount of the execution, the defendant is discharged, and the creditor has no remedy but against the sheriff, 1 Salk. 322, and that the judgment is discharged by a seizure on a fieri facias. 1 Burr, 34. It is true that if the bond taken by the officer proves to be defective, the creditor may then resort to the original judgment, and is not confined to the single remedy at law against the officer. But as the legislature have by an express provision secured this right to go back to the judgment, it would appear that they were at least apprehensive that without such provision, the creditor must be confined to his remedy of an action against the .sheriff. This being as we conceive a well' established doctrine, the question arises whether the creditor is required to produce a regular judgment to support the proceedings under the perfect statutory judgment? Or in other words, whilst the judgment on the bond is in force, can the process resorted to by the creditor to enforce it and get execution of it be superseded for alledged irregularities in the original judgment? Can the court on a motion to set aside the execution on a forthcoming bond judgment, look for causes to sustain such motion, behind the bond or judgment itself? By the former decisions of this court, this new judgment, which is recorded by the law in the bond, was considered as possessing the qualities, and force of a judgment obtained in the ordinary modes of proceeding. Thus if the execution is not sued out within a year and a day, the plaintiff must resort to a scire facias, quare, &c. 3 Howard, 1. This decision was predicated upon the proposition that there is no connection between the proceedings under the first judgment and those under the second. It treated the original judgment as extinguished and satisfied. And this was the ground of the subsequent determination in the case of Witherspoon v. Spring, 3 How. 60. And hence it was that the case of Weathersby v. Proby, 1 How. 98, limited the inquiries of the court to the proceeding on the bond; and prohibited the parties from going behind it. But whilst it is conceded that the court cannot go behind the bond to inquire after irregularities merely in the original judgment, it may nevertheless inquire whether there be any judgment, and that there is a wide difference in this respect between a defective judgment and no judgment. We were much struck with the force of this argument; for if the original judgment be the foundation of the execution and bond, it appears highly reasonable to conclude, that if this foundation did not in fact exist, if there was no judgment, all proceedings under it must be null and void. And this view of the subject appeared to be fortified by the consideration, that the party might, notwithstanding the execution and levy, the bond and its forfeiture, have reversed the original judgment on error, when he would of course be entitled to a restitution of all his rights,' or to a supercedeas, if final execution had not already been had.

In this view of the question, the argument not only has great weight, but appears to be conclusive, for it is difficult to apprehend any difference in the' effects of the reversal of a judgment on error, and of no judgment whatever. But upon examination, there appears to us to be seyeral insuperable difficulties in the way-of this conclusion. The original judgment can never be revised in the circuit court, being the same court, with concurrent jurisdiction. .If it cannot be revised in a proceeding ex directo, it cannot, of necessity, in a collateral proceeding. Hence it would seem that it could entertain' no inquiry in regard to the original proceedings. It could not, therefore, examine the judgment merely with a view to determine what might be the decision upon it in an appellant tribunal. If;the circuit courts should' once enter upon such enquiries, it would be impossible to define the boundaries of their jurisdiction; for they would, in all cases, be' required to distinguish between defects which render the judgment merely voidable, and cases where there was no judgment at all. And in the settlement of these' troublesome questions, they must of necessity exercise revising powers. In this conflict, the security of the creditor is rendered doubtful, if not worthless.

In the next place, the bond contains a new cause of action, which accrues from the day of its forfeiture, against the original debtor and the sureties. This cause of action, is confessed by the obligors, and the law confers upon it the most solemn evidence of a debt, by giving it the force of a judgment. To supersede 'its execution, for defects, in the original proceedings, is to permit the party to contradict his own deliberate confessions, and to surprise the creditor with objections which resolve’themselves into an alledged want of consideration for the bond. A circumstance of which, from the very nature of the objection, he must have been apprised when he executed the bond, and- suffered it to become invested with all the sanctions of a regular judgment. To permit this to. be done, would effectually open the door to endless litigation. Some such considerations as these, probably, induced the legislature to provide, that after the forfeiture of a forthcoming bond, no writ of error should be prosecuted to reverse the original judgment. And this we regard as a complete answer to the argument of the plaintiffs, bottomed on the consideration that there is no original judgment against M. D. Patton. For if the appellate court is concluded by the new judgment on the bond in a direct proceeding, surely the circuit courts are concluded,- in a mere incidental or collateral enquiry.

In the views thus expressed, we have much confidence, not only upon general principles of reasoning upon the provisions of the statute, but because they seem to us to be sustained by very high authority. In the case of Edmonds v. Green, 1 Rand. 44, we understand the court to have decided against the application for relief, upon the principles we have laid down. In that case, Edmonds was only the appearance bail in the original action, and yet judgment was improperly entered against him at the time it was taken against his principal. Execution was sued out against him, and he gave a forthcoming bond, which was forfeited, and judgment taken against him and the other obligors. He applied for a supersedeas, and alledged the above grounds, but the court held that he could not be relieved. It is true, that in this case, there was a formal judgment of the court against Ed-monds ; but it is equally true, that the judgment, instead of being the conclusion of law, from the facts contained in the record, was a conclusion flatly forbidden by the facts before the court; yet the court held him bound by the judgment on the bond. In Downman v. Downman, 2 Call. Rep. 426, the cáse was that an execution was issued and levied upon the property of a person not a party to the original proceedings, and against whom no judgment was rendered, and he proposed to prove this fact to the court, but they would not listen to the proof. The opinion of the court does not furnish us with any reasoning; but whether they considered it inadmissible, on the ground that he was concluded by the admissions in the forthcoming bond, or that the original judgment could not come in question, it is equally applicable to the case at bar. Other cases in the same court might be cited, but we do not deem it necessary. Hence we feel constrained to acquiesce in the former decisions of this court upon this question.

In Proby’s case, the original judgment was more defective than the one against Patton, for the confession mentioned no sum, and it was rendered with conditions, and there was no “ award of the judicial consequence which the law attaches to the facts.” Yet it was holden that the bond and its forfeiture, concluded the debtor from questioning its validity. The court can, therefore, only enquire whether the execution in this case is conformable to the bond. The only objection to this is, that it is in favor of the Branch Bank of the United States, at Natchez.” In this, however, it follows the recitals in the bond. We think as we did when this case was formerly before us, that the recital of the name of the office, or branch of the mother bank, where it is probable the debt was contracted, instead of that of the mother bank itself, neither vitiates the bond nor the execution.

The judgment must be affirmed.  