
    Davis v. Dixon’s Administrator.
    A bond given in pursuance of the statute for the forthcoming of property taken by virtue of an execution is, when forfeited, a satisfaction of the original judgment.
    An injunction granted by a court of equity, which restrains parties from proceeding to the enforcement of execution upon an original judgment at law, will not apply to, or excuse the sheriff for failing to levy the money upon an execution issued upon a forfeited forthcoming bond, taken on an execution upon the original judgment.
    Upon the issuing of an injunction to operate upon proceedings at law, it is the duty of the clerk to endorse on the writ, “ that its operation is to be suspended until bond is given;” and unless bond is given by all the parties obtaining the injunction, the writ will be inoperative.
    ON the 30th day of April, 1830, judgment was rendered in the circuit court of Wilkinson county, in favor of Lemuel Pitcher, administrator de bonis non of James Dixon, deceased, for the sum of seven hundred and sixty dollars and fifty cents, besides costs, against Lucy Shaffer, administratrix, and James Shaffer, administrator, &c., of Robert Spurlock, deceased. Upon this judgment, on the 11th of May, 1830, an execution issued to the sheriff of Wilkinson county, by which he was commanded to levy the amount of the judgment and costs aforesaid of the goods and chattels, rights and credits of the said Spurlock, in the hands of his administrator and administratrix before mentioned, to be administered.
    The sheriff to whose hands the execution came, levied the same upon property, and the defendants gave a bond for the forthcoming of the property levied upon, with Michael Wood’s security, which bond was forfeited and so returned with execution to the October term of said circuit court. Upon the forfeited forthcoming bond, an execution issued upon the 1st day of December, 1830, against the defendants in the original execution, and also against Michael Wood, the security in the forthcoming bond, returnable to the April term following its issuance. At the April term, 1831, of said court, the following motion was entered, to wit: Lemuel Pitcher, administrator of James Dixon, deceased, came by John Henderson, Esq., his attorney, and moved the court for a judgment against Fielding Davis, sheriff of Wilkinson county, for the sum of eight hundred and ninety-one dollars and thirty-four cents, being the amount for which the plaintiff hath execution, on a judgment in favor of the said plaintiff as administrator as aforesaid, against James Shaffer and Lucy his wife, and Michael Wood, with interest from the 25th day of October, 1830, which execution is returnable to the present term of this court, and on which execution the said sheriff hath voluntarily and without authority omitted and neglected to make the money.”
    In answer to this motion the sheriff, as an excuse and discharge, made his return on the execution as follows: “Levied, &c., not sold for reason of the injunction hereto attached. (Signed,) F. Davis, sheriff.” The paper attached to the return was a subpoena to answer from the court of chancery of the western district, at the suit of James Shaffer and Lucy Shaffer, administrators, &c., complainants, against Lemuel Pitcher, administrator, &c., defendant. The subpoena is endorsed, “ This writ shall enjoin and restrain the within named defendant, Pitcher, aud his agents, &c., from farther proceedings, on a judgment obtained by said defendant against the complainants at the April term, 1830, of the Wilkinson circuit court.” The court sustained the motion and gave the judgment asked against the sheriff.
    To this judgment a writ of error was prosecuted.
    Gildart, for plaintiff in error,
    insisted that the judgment of the court below was erroneous, and should be reversed:
    1. Because the record shows no notice of the motion, as required by the statute.
    2. The forthcoming bond upon which the execution was issued, was void, having been executed by a feme covert.
    
    3. The injunction was in the hands of the sheriff, and consequently he would have been in contempt had he attempted to make the money upon the execution.
    Henderson, contra.
    
    
      1. That the excuse offered by the sheriff for not making the money, is no protection against the motion, because the writ was void for want of teste, bearing teste of no term, and not in the name of the chancellor. Revised Code, p. 88, s. 15; Statute of November, 1830, p. 29, s. 10. This has been determined both by the chancellor and the supreme court.
    2. This void writ of injunction does not apply to, or attempt to enjoin the judgment on which the execution issued. The execution issued on an office judgment v. Shaffer and wife and Wood. The judgment attempted to be enjoined was against Shaffer and wife only.
    There is no principle better settled in our statute, than that an office judgment on a forthcoming bond is a satisfaction of the previous judgment. It is so settled in Virginia. See 2 Washington’s Reports, 183; 3 Munford, 417. So in Kentucky. 1 Marshall’s Reports, 20; 2 Marshall, 551. So in Tennessee. 3 Haywood, 144. Wherefore the injunction of the original judgment, after the forthcoming bond forfeited does not stay the office judgment and its executions. See 2 Call’s Reports, 213. See also 1 Paige’s Chancery Reports, 558.
    3. The supposed writ of injunction is defective and void also, because it bears no indorsement that bond and security had been given.
    A bond with security is essential to be given before a judge at law can be enjoined, and without which a writ of injunction has no effect. See Revised Code, p. 95, s. 44; p. 139, s. 149. This, too, has been decided by both the chancery and supreme court.
    The court then must sustain the judgment below against the sheriff and approve it with ten per cent, damages. See Revised Code, p. 210, s. 43; also p. 154, s. 20; p. 139, s. 143.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

On a motion in the circuit court of Wilkinson county, the administrator of Dixon recovered judgment against Fielding Davis, who was sheriff, for failing to make the money on an execution against James Shaffer, Lucy Shaffer, and Michael Wood. He resisted the motion on the ground that the execution had been enjoined.

The injunction is made part of the record, and involves the only questions in the case, The execution emanated from a judgment on a forthcoming bond, and the injunction does not extend to this judgment, but only to the original judgment obtained at the April term, 1830, against Lucy Shaffer and James Shaffer. It has been decided in this state, in three different cases, that the giving of a forthcoming bond is a satisfaction of the prior judgment if the bond be forfeited; and this seems to be the law also in Virginia. Walker’s Reports, 175, 251, 267; 3 Mun-ford, 454. The judgment originally obtained in this case was satisfied, and the injunction should have been on the judgment on the forthcoming bond.

But there is another insurmountable objection to this injunction. No bond was given by the parties who obtained it, and even if administrators are not bound to give bond, yet all the defendants in the execution do not appear to have been administrators, and, consequently, there was nothing to stop the operation of that particular execution. In p. 95, s. 44, of the Revised Code, bond is positively required, and the clerk is required to indorse, that the operation of the injunction is to be suspended till bond is given.

Tfie judgment of the court below must be affirmed.  