
    *Couch v. Miller.
    February, 1831.
    (Absent Coalter, J.)
    Forthcoming Bond — Motion to Quash — Record on Appeal. — Upon a motion to quash a forthcoming bond, for defects apparent on the face of the execution on which it was taken, an appellate court will regard the execution as part of the record, though not made so by. any express order to that effect.
    Same* — Variance between Execution and Bonds— Effect.: — A fi. fa. is directed to the sheriff of Campbell, but is delivered to and levied by the sergeant of Lynchburg, who takes a forthcoming bond upon it, reciting that the writ had been directed to the sergeant: Hehd, the writ gave no authority to the sergeant, and no warrant to him to take the forthcoming bond, and that the bond is variant from the execution, and therefore the bond ought to be quashed.
    Same* — Who May Move to Quash. — It is competent to the obligors in a forthcoming bond to move to quash it for irregularity.
    A writ of fieri facias sued out of the hustings court of Bynchburg, by Miller against Marshall Couch, was directed to the sheriff of Campbell county, but was delivered to the sergeant of Bynchburg, by whom it was levied on the property of Marshall Couch, who gave a forthcoming bond, with John Couch his surety, for the delivery of the property at the day and place of sale. The bond being forfeited, and the hustings court having, on the motion of Miller, awarded execution upon it against Marshall Couch the principal, Miller, at a subsequent term, moved for award of execution against John Couch, the surety; and he made a cross motion to quash the forthcoming bond, “ for defects apparent on the face of the execution upon which it was taken.” The hustings ■court quashed the bond.
    The fieri facias was not made part of the record, by any express order of the court, or by a bill of exceptions to the judgment spreading it, on the record ; but it was subjoined to the judgment by the clerk, and certified to be the execution on which the forthcoming bond was taken.
    Upon comparison of the bond with the fieri facias, the bond appeared regular and corresponded with the execution, *in all respects but this, that the execution was directed to the sheriff of Campbell, whereas the condition of the bond stated, that the writ was directed to the sergeant of Lynchburg, that it had been levied by him, and that he had taken the forthcoming bond.
    From the judgment of the hustings court quashing the forthcoming bond, Miller appealed to the circuit court of Lynchburg. The circuit court held, that the fieri facias was to be regarded as part of the record, but that there were no defects, apparent on the face' of the execution upon which the forthcoming bond was taken, as the hustings court supposed, nor any other error apparent on the record of the proceedings, to justify the quashing of the bond ; and, therefore, reversed that judgment, and remanded the case to the hustings court, for further proceedings on Miller’s motion for award of execution. And then Couch appealed to this court.
    Johnson, for the appellant.
    1st, If the fieri facias is not a part of the record, the judgment of the hustings court must be taken to be right, since there will then be nothing in the record by which it can be impugned, or by which, indeed, its correctness can be examined. And the fi. fa. is nowise made part of the record, nor can an appellate court look into it at all. Jones v. Hull, 1 Hen. & Munf. 212; Bronaugh v. Freeman, 2 Munf. 266 ; Burk v. Levy, 1 Rand. 1. 2dly, If the fi. fa. can be regarded as part of the record, it was directed to the sheriff of Campbell, and gave authority only to that officer ; the sergeant of Lynchburg had no authority to levy,it, and no warrant to take the forthcoming bond upon it ; and the bond falsely reciting that the execution under colour of which it was taken, was directed to the sergeant, was fatally variant from the execution: therefore, the judgment of the hustings court quashing the bond, was right. So quacunque via data, the judgment of the circuit court mus< be reversed, and that of the hustings affirmed.
    *The attorney general, contra.
    The fi. fa. is part of the record, and may be looked into here, since the forthcoming bond was impugned, in the court below, for defects apparent on the face of the execution on which it was taken, and may be impugned here, for variance from the execution, or for want of warrant given by the execution to take the bond. Glascock’s adm’x v. Dawson, 1 Munf. 605. The reporter, indeed, seems to have thought, the court looked into the execution in that case, because the judgment was by default: but the court intimated no such reason. The cases cited by Mr. Johnson only decide, that upon appeal from a judgment on a forthcoming bond, the execution cannot be looked into here, for the purpose of raising objections here, not taken in the court below. And if the execution is no part of the record, in this case, and so may not be looked into by this court; then, here is a forthcoming bond perfectly regular on its face, quashed by the hustings court, for no cause apparent on the record whatever. The court will not intend that such a judgment is right. Beale v. Willson, 4 Munf. 380. But, looking into the execution, and comparing the forthcoming bond with it, the bond is good. The only objection to it, that the execution was directed to the sheriff of Campbell, but was levied by the sergeant of Lynchburg, and the forthcoming bond of course taken by him, is obviated by the provision of the statute, that an execution or other process, appearing duly served in other respects, shall be deemed good, though not directed to any sheriff. 1 Rev. Code, ch. 128, § 107, p. 512. The plaintiff might have struck out the name of the sheriff, and inserted that of the sergeant. In our practice, the direction of the process has always been considered, and is, mere form. Purcell v. Richardson, per chancellor Taylor, 4 Hen. & Munf. 405. Besides, it seems very doubtful, whether a forthcoming bond can be quashed on the motion of the obligors. For, though the obligee may move to quash it for fatal irregularity, in order that he may have the benefit of his original judgment, of which the forthcoming bond, however defective, operates *as a complete satisfaction, so long as it remains in force, yet a forthcoming bond, irregular and bad as a statutory bond, is good as a common law bond ; and the obligee is entitled to an action upon it, though not to the summary remedy given by the statute. Hewlett v. Chamberlayne, 1 Wash. 367; Johnstons v. Meriwether, 3 Call, 523. To allow the obligors to quash their own bond, is to allow them not only to defeat the summary statutory remedy, but the common law rights and remedies, which accrue from it to the obligee.
    Johnson said, the only effect of the statute referred to, was, that an execution or other process left blank as to the direction to the officer, should be regarded as directed to any officer to whose hands it should come ; but this could not be, where the process was expressly directed to a particular officer. As to the right of the obligors in a forthcoming bond, irregularly taken or faulty on its face, to move to quash it, they were the parties especially entitled to such a motion ; and it had been often done. He mentioned Meze v. Hoover, 1 Leigh, 442.
    The attorney general said, the point was not made in that case, or in any other: it passed sub silentio.
    
      
      Forthcoming Bonds, — See generally, monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
      Same — notion to Quash — Record on Appeal. — It seems thaton a motion to quash a forthcoming bond, the appellate court will regard the execution as a part of the record. Harwood v. Creel, 8 W. Va. 581, citing principal case.
      And in Central Land Co. v. Calhoun, 16 W. Va. 372, it is said: “If there be a judgment by default on a forfeited forthcoming bond, the appellate court will regard the execution as a part of the record; but if there be a variance between it and the execution, the judgment will be reversed. When, therefore, there is a judgment by default, it is very proper to recite in it that the execution, as well as the bond, was produced and inspected by the court; and such is the form of a judgment by default laid down by Robinson. See Conway Robinson’s Forms, page 274, and Glascock’s Adm’x v. Dawson, 1 Munf. 605, and Preston v. The Auditor, 1 Call 471. But the appellate court will not regard such a variance, if the defendant appeared in the court below and made no objection to such variance, and did not make the execution a part of the record by bill of exceptions or otherwise. See Bronaughs v. Freeman’s Ex’r, 2 Munf. 266; Burke, Adm’r v. Levy’s Ex’r, 1 Rand. 1. But if the record shows affirmatively, that it was objected to in the court below, because of defects in the execution, and that it was for that reason quashed, the execution will be inspected, though not more formally made a part of the record. See Couch v. Miller, 2 Leigh 545.” The principal case is also cited in Ayres v. Lewellin, 3 Leigh 614.
    
    
      
      Same — Variance between Execution and Bond — Ef° iect. — Where there is a material variance between the execution and the forthcoming bond, the bond must be quashed. Holt v. Lynch, 18 W. Va. 571, citing principal case and Glascock v. Dawson, 1 Munf. 605. In this case (Holt v. Lynch), the execution was against four persons, but the forthcoming bond recited that the execution was against three. This was held to be a material variance for which the bond should be quashed.
      Same — Quashing for Defects. — To the point that it is competent for a court to quash a forthcoming bond for defects and irregularities, the principal case wás cited in Wallace v. McCarty, 8 W. Va. 199. See also, foot-note to Dowman v. Chinn, 2 Wash. 189.
    
   CABELL, J.,

delivered the opinion of the court. It is objected in this court, by the counsel for the'appellant, that the execution not having been made a part of the record, by any express order of the hustings court, or by a bill of exceptions filed for that purpose, it is not competent to the appellate court, to look into it, and to compare it with the bond, for the purpose of ascertaining-, whether it gave authority for taking the bond, or whether the bond was in any manner variant from it: and we are referred, in support of this objection, to the cases of Jones v. Hull, Bronaugh v. Freeman, and Burke v. Bevy. It is true, that in those cases, the court did refuse to look into the executions. But, in all of them, the defendants, though they appeared in the court below, had made no objection to the bonds, on the ground of their being unauthorized by or variant from *the executions. This court said, their failure to make such objections in the court below, furnished ground to presume that the bonds had been rightly taken, so far as related to the executions, and therefore it would not look into the executions, to see whether that was in fact the case or not. The principle on which those cases were decided, does not apply to that which is now before us ; for here, it is expressly stated, that the bond was objected to by the defendant, and quashed by the court, on account of defects apparent on the face of the execution. This necessarily made the execution a part of the record, and imposes on the appellate court the duty to look into it, as the only means of testing the correctness of the judgment appealed from. The propriety of this course, in such a case, is much stronger than if the judgment had been by default, for want of the appearance of the defendant. Yet, it is clear, that even if the judgment had been by default, the court would look into the execution, and compare it with the bond, as was done in Glascock v. Dawson.

Booking then into the execution, the question arises, whether it was a warrant to the officer for taking the forthcoming bond? The execution was directed to the sheriff of Campbell but it was levied by the sergeant of Bynchburg, by whom also the bond was taken. It has been decided in Fngland, that mesne process, and even that kind of mesne process, which operates only in the nature of a summons, can be executed, only by the sheriff of the county to whom it is directed. Chase v. Joyce, 4 Mau. & Selw, 412. See also Grant v. Bagge, 3 Hast, 128. And it never was doubted, but that this was the case at common law, as to final process of execution. This principal of the common law has not been changed by any of our statutes, except in one particular; that an execution, writ or other process, appearing to be duly executed in other respects, shall be deemed good, though it be not directed to any sheriff. That, however, is different from this case, where the execution was in fact directed to a particular sheriff. It *gave authority to that sheriff, and to him only ; nor could he transfer that authority to any other. And even the plaintiff himself, having once made his election, to direct his execution, to the sheriff of a particular county, cannot revoke that election, but by recalling the execution, and taking out a new one. On this ground, the judgment of the circuit court is to be reversed, and that of the hustings court affirmed.  