
    Harris v. Shackleford, Sampson & Co.
    Where the defendant died between the issue of execution and the levy and the widow gave bond for the delivery of the property at next sale day: Held, That it was not such a bond as is contemplated by article 1:330, Hartley’s Digest, and that execution could not be issued upon the return thereof “forfeited.” (Note 20.)
    
      Quere whether the sheriff could maintain an action on the bond.
    Error from Harris. The defendants in error obtained a judgment in the District Court of Harris county against one McGuffin, and an execution was sued out directed to the sheriff of Grimes comity, which was levied after the death of the defendant on curtain slaves and other property in the possession of the widow of the defendant. The widow and the plaintiff in error gave their bond to the sheriff for the forthcoming of the property levied on. The bond ran: “Know all men by these presents that we, Joyce Y. McGuffin and Robert D. Harris, as securities, acknowledge ourselves justly indebted to Shackleford, Sampson & Co. in the just sum,” &c., and was conditioned for the delivery of the property by the said Joyce Y. It did not appear that there had been either an administrator or executor of the deceased defendant in the execution. It was alleged in the petition that Joyce V. McGuffin, who joined with the plaintiff in error as co-obligor for the forthcoming of the property levied on, was the widow of ttie deceased defendant; and that the property was pointed out to the sheriff by her. The bond was considered by the sheriff as a forthcoming bond under the statute, and the obligors failing to deliver the property on the day of sale, he returned the bond to the clerk as forfeited, and execution was issued against both of the obligors. The plaintiff in error obtained a writ of injunction on the ground mainly that the bond was a nullity and could not authorise the issue of an execution as on a forfeited statutory bond. The injunction was aferwards dissolved and the petition dismissed on demurrer, and the case was brought up by a writ of error.
    
      Sayles, for plaintiff in error.
    The ground upon which the plaintiff in error asks for relief is that the proceeding is an absolute nullity; that the bond is not of that character which authorizes Lho summary judgment and the issuance of an execution. Whatever be the validity of that bond at common law, upon which the plaintiffs might found an action for the breach of its conditions, it is not a good statutory bond. The statute lias prescribed the character of a bond upon which a summary judgment is rendered, or rather the forfeiture of which entitles a party to Ms execution.
    By the act of 1842 concerning executions it is provided that whenever an execution is levied upon personal property or slaves the defendant shall have the right to retain the possession of the same upon giving bond with good security conditioned for the delivery of the property. (Hart. Dig., art. 1329.) And it is further provided that if the defendant shall fail to deliver the property so bonded it shall be the duty of the sheriff to return the bond to the clerk as forfeited; whereupon the clerk shall issue execution against the principal and securities. (Art. 1330, Hart. Dig.) Now, by this act who is authorized .to retain the property levied upon ? The defendant in the execution. To whom is the sheriff required to deliver the property? To the defendant in the execution. Who is required to give the bond? The defendant. Against whom is the clerk authorized to issue an execution? The principal (the defendant) and his securily.
    This is clearly a statutory proceeding, and all the authority to any of the parties — the defendant, the sheriff, and' the clerk — is derived wholly from the statute. Its directions, then, must be strictly pursued. Could the principal in this bond, to wit, Joyce V. McGnffln, have compelled the sheriff to accept this bond? She certainly could not; for she was not the defendant, neither a party to the judgment. She was not the administratrix or executrix of the defendant, and had no right to the control of the property. If the sheriff chose to take her bond for the delivery of the property, he did it at his own risk, and must resort to an-action for his remedy for the breach.
   Lipscomb, J.

There are several grounds of error assigned by the plaintiff. It will not be important to examine any other than the one that brings in question the validity of the forthcoming bond as a statutory bond, on the breach of which an execution could be sued out.

A question somewhat similar in principle to the one now presented was before this court in the case of Jones et al. v. Reynolds, Adm’r, (2 Tex. R., 250.) That was a statutory bond, jointly entered into with the complainant on his obtaining an injunction. On the dissolution of the injunction the decree was entered up against the complainant and his securities. This court held that a substantial conformity with the requisitions of the statute was indispensable; a literal observance was not necessary. If the forthcoming bond in the case now under consideration can be sustained, it must be in conformity with the provisions of article 1330 of the Digest. It is as follows : “Re it further enacted, That whenever an execution is levied upon personal property or slaves, the defendant shall have the rigid to retain the possession of the same upon giving bond with good security, payable to the plaintiff, in double the amount of debt and costs, conditioned for the delivery of the property to the sheriff or other officer on the day of sale.” By this section of the law the privilege of retaining possession is given to the defendant and to no one else on the condition that the defendant gives bond with good security. The defendant must give the bond, with good security. Now, one not a defendant could not demand (he right to retain the possession, and one not the defendant could not give the security in accordance with the provisions of this section. The next succeeding section makes a provision for tlie consequences of a forfeiture of the bond. It provides: “If the defendant shall fail to deliver the property so bonded, it shall be the duty of the sheriff to return, the bond to the clerk of the court from which execution issued, as aforesaid, and indorsed thereon, forfeited, whereupon said clerk shall issue execution against the principal and sureties on the bond for the amount of the debt aud costs.” It will be seen that the defendant is the person referred to in the statute to claim the right of possession and to give the bond, aud it is provided that on forfeiture execution shall go against the principal and sureties. The bond in this case designates no principal. Both assume to he securities. They show no connection with the judgment on which the, execution liad issued, no more so than any other individuals who might have undertaken to keep the property levied on for the sheriff until the day of sale. The sheriff was under no obligation in law to leave the property in their possession, as lie would have been if the defendant in the suit had given a forthcoming bond. The bond maj be a security to the sheriff as a common-law obligation, but it certainly is no such a statutory bond as authorized an execution to -be issued on the sheriff’s return on it that it was forfeited.

-We believe, therefore, that the court below erred in dissolving the injunction and dismissing the plaintiff’s bill; that it ought to have been per-petnatecl. The decree dissolving the injunction and dismissing the bill is reversed and the canse remanded.

Ííoti: 20. — Objections to a delivery bond which has been returned “ forfeited” must be taken in the District Court, and not by writ of error. (Fisland v. Neilson, 20 T., 139.)

Judgment reversed.  