
    Kercheval vs. Harney.
    Bond. Performance or breach of condition — 1831, c. 2“, of delivery bonds, apportionment of damages for breach of where several executions of the same teste are levied on the same property. An obligor cannot be held responsible for a breach of the condition of his bond, caused by legal constraint.
    Thus, under the act of 1831, c. 25, which embraces delivery bonds taken after its passage, though founded upon executions issued before, if several writs of f. fa. be levied on the same property, the obligors in a bond executed to the plaintiffs in one of them, conditioned to deliver the whole property, will be bound to deliver only so much of it as will be of value suflicient to satisfy the proportion of the execution of the obligees to which they would be>ntitled a-against the plaintiffs in the other executions.
    The plaintiffs, Samuel Kercheval, Richard G. Scoggin and Andrew H. Ballantine, merchants of Pulaski, and partners under the name of Kercheval, Scoggin & Co., on the 2d of August, 183 L, recovered a judgment for $4409 50 cents in the cicuit court of Giles against Lewis H. Brown as principal, and Robert B. Harney and John Hawkins, his sureties in an appeal in the cause from the county court. Upon this judgment, the plaintiffs sued out a fi. fa. on the 15th September, 1831, tested as of the proceeding August term, directed to the sheriff of Giles, by whom it was levied, on the 12th of December, 1831, upon eight negroes of the value of $3444, the property of Brown. He proposed to replevy the property, which was done by his executing to the plaintiffs a bond with the defendants, Robert B. Harney, Edward D. Jones and James W. Eastham, as his sureties, of the same date as the levy, conditioned, in the event the execution should not be satisfied, for the delivery of the slaves to the sheriff on the 6th of February, 1832, at the court house in Pulaski, then and there to be sold to satisfy said execution.
    Besides this execution there came to the hands of the sheriff of Giles several other executions against Brown, as follows: 1. One in the name of the Governor of the State, issued to have execution of a judgment obtained upon a forfeited delivery bond of the same slaves, issued on the 13th of January, 1832, tested the first day of November term, 1831, which came to the sheriff’s hands on the 16th, and was levied on the same property on the 17th of February, 1832.— 2. One in the name of Robert Turner, founded also on a judgment obtained on a forfeited delivery bond of some of the same slaves, issued the 15th of February, 1832, tested the first Monday and levied on the 7th of February, 1832, on a slave Daniel, and on the 10th of April, on several of the fisrt mentioned slaves. 3. One in the name of Paul J. Watkins, founded on a forfeited delivery bond of one of said slaves, issued the 17th; tested the first Monday of February, 1832, and levied on the day of its issuance on some household furniture of Brown. 4. One in the name of Ezra Webb & Co., issued on the 17th and tested the first Monday of February, 1832, and levied on the day of its issuance on the same slaves and others. 5. One in the name of John Laird, founded on a forfeited delivery bond of the same slaves, issued on the 17th, tested the first Monday of February, 1832, and levied on the day of its issuance on the same slaves.
    These executions were all founded upon judgments recovered in the circuit court of Giles. But besides these, sis; other executions founded upon judgments recovered against Brown in the county court of Giles, had copie into the hands of the sheriff, upon which he sold the negroes in question on the 9th and 20th of May, 1832; and the proceeds, amounting to $3,909 50, were applied towards these latter in exclusion of the circuit court executions.
    The delivery bond executed to the plaintiffs was of course forfeited, and on the 2d of November, 1835, the plaintiffs sued the defendants upon the bond in the circuit court of Giles. Pleadings were filed, but the cause was submitted to his Honor Judge AoteRson sitting for Judge Dillahun-T5r, at June term, 1838, upon an agreed case, of which the above facts are the substance; and if the law should be for the plaintiffs, they were to have judgment for the amount of the judgment recited in the delivery bond, interest, fees, commissions, &c.
    His Honor gave judgment for the defendants, upon the ground that they were discharged from the obligation of their bond by the seizure and sale of the slaves by the sheriff under the county court executions, — it being on that account impossible for them to make the delivery. The plaintiffs appealed in error.
    The debate here related — 1. To the extent of the responsibility of the defendants, if resposible at all; and this involved the question, whether the bond was to be controlled by the act of 1831, c. 25, or by the previous laws upon the subject of delivery bonds? If by the former, the defendants were responsible only for the value of the property specified in the bond, not delivered. If by the latter, they were responsible for the whole debt of the plaintiffs, without reference to the value of the property levied upon under their execution. 2. To the amount of damages sustained by the plaintiffs, by reason "of the non-delivery. Was it the value of the negroes, or only so much of their value as they would have been entitled to receive? And here the question arose, whether the plaintiffs in the other executions of the same teste, and levied on the same negroes were entitled to a part of their value?
    Wíiight, for the plaintiff,
    said — 1. One question raised by the record, is, whether the delivery bond sued on, is to be controlled by the act of 1831 ? We contend that act can have no effect upon this bond; if so, it is immaterial what the value of the property levied on is, when the bond became forfeited the sureties were liable for the whole debt. Love vs. Smith, 4 Yer. 117.
    That the legislature intended the act to operate prospectively, is manifest from its purview, and especially the second section. Bacon says, “the most natural and genuine way of construing a statute, is to construe one part by another part of the same statute.” 4 Ba. Ab. 645. The sense and meaning of the whole act is the law. Id. Ibid.
    Again, it is undeniably true, that the second and subsequent sections have no application to this bond; and it cannot be supposed, for a moment, that the legislature intended to affect, by the first section of the act, a class of cases not provided for in the subsequent sections. No reason can be given for such distinction. The first section lays down its objects and principles in general terms; the second section proceeds immediately to give the details of its operation, and to designate the class of cases upon which the act was to operate.
    Again, by the law, as it stood prior to this act, the levy and the forfeiture of the bond, whether the property was of value to pay the debt or not, discharged the original judgment, and those only who executed the bond became liable. Camp vs. Laird, 6 Yer 246; Brown vs. McDonald, 8 Yer. 160.— These two cases are identical with the one now before the court. The executions issued the same day, and the levies and bonds and forfeitures occurred at the same time. It follows, therefore, if the act of 1831 controls this bond, the plaintiffs may lose their whole debt, the judgment being satisfied; and their only remedy being upon the bond, if that proves insufficient, the residue of their debt is gone!
    And if the plaintiffs have a remedy against the original defendants in the judgment, how is that remedy to be enforced? by motion or by a new suit at common law?
    A construction so unjust, inconvenient, and against reason, will not be given. 4 Ba. Ab. 653.
    This bond cannot, by any possible construction, come wholly under the act of 1831; if not, why should any portion of the case be effected by its provision?
    By the provisions of the act of 1831, the levy of a fi. fa. upon property of the principal debtor, sufficient to pay the debt, and the taking of a delivery bond and its forfeiture, do not discharge the judgment. The original parties thereto are still liable; but in the case of Camp vs. Laird, this was held to be a satisfaction of the judgment and a discharge of Mrs. Camp, who did not join in the bond; if that decision is to be regarded, the act of 1831 can have no influence in this case. 6 Yer. 246.
    Such a construction must therefore be given as to avoid these absurdities. In all cases, therefore, where the execution issued prior to the passage of the new law, the old law governs; but aliter, if the execution issued after the passage of the act of 1831. 7 John’s Rep. 477-
    Lastly, The agreed case fixes the liability of the defendants for the whole debt, minus the payment by Harney.
    The fi. fas. of Ezra Webb & Co., John Laird and Ker-cheval, Scoggin & Co., bore the same test, and were entitled to a pro rata division of the property levied on, and of course the Sheriff might lawfully levy, one or all of them upon the same property. Porter vs. Earthman, 4 Yer. Rep. 358; 3 Murphey. Rep. 43.
    As to the cases of Robert Turner and Paul J. Watkins, on the former no fi. fa. was issued from the August Term of the circuit court 1831; and on the latter the Ji. fa. issued was not levied. It is clear they were not in the way of our execution.
    It seems, therefore, that there was nothing in existence at the time the bond sued on was taken, that can exonerate the defendants from the payment of this debt.
    3. The next question is, has any thing transpired since the execution of the bond, that is sufficient to release them from its penalties? It is supposed and argued by the defendants, that they, in law, complied with the conditions of the bond, by doing what they say was equivalent to a delivery of the ne-groes. It was upon this ground the circuit Judge put the case. For the plaintiff, we contend nothing of this sort happened.
    1. The negroes having been seized by virtue of the execution in favor of Kercheval, Scoggin & Co., on the 12th day of December, 1831, the sheriff’s lien, created thereby, re-máined until the forfeiture of the delivery bond sued on, and if the negroes had been delivered on the day of sale, the priority of the plaintiff’s levy would have prevailed. Lusk vs. Ramsey, 3 Mun. 417; Porter vs. Sfawell el- al.\ Supreme Court, Nashville!, MSS. But the momentthe bond was forfeited, the lien' of the county court executions attached.
    2. Between the taking and forfeiture of the delivery bonds, the negroes being in the custody of the law, could not be seized or taken by a subsequent execution. The' seizure made by the sheriff, under the county court executions, during this period, therefore, operated nothing. By the levy of an execution, a special property is vested in the sheriff, the whole property in the goods is divested out of the debtor, and the general property is in abeyance until the day of sale. Hence nothing is left for the' subsequent execution to affect; a levy give's the sheriff no power or control over the goods. 7 Law Lib. 131, top page; Ord. Car. 149; Property once levied on by a sheriff is like money in his hands made on a ft-fa., Or balance on hand, after satisfying the judgment, it is not the subject of levy in his hands. Turner vs. Fendall, 1 Cranch. 122.
    Bu't 3. If a levy in such' case could, be made, it must, of course, be subject to the lien and priority of the levy already ma'dej and if the property be left in the actual possession of the debtor until the day of sale, it is his duty to deliver it in discharge of the bond. This results from the very nature of his undertaking. Luskvs. Ramsey, 3 Mun. 417.
    4. But aside from all this, on the day of sale, and for a long time before and afterwards, the debtor and his sureties in this bond, had it perfectly in their power to deliver this property. It was in their actual possession and fully under their control.
    5. But to go further: where a person by word undertakes to do an act, it is not sufficient for him to show that he has done all in his power; for the condition is for his benefit, and if not performed he is subject to the penalty. This rule is Subject only to three exceptions, to wit, where the condition is prevented being performed by the act of God, the act of the law, or the act of the obligee. Dougherty vs. Jfeal, Í Saund. 21 Id, 214, 215, also note 2, latter part. He was to deliver the property or pay the debt. It is not pretended that he was prevented, either by the act of God or of the law. And if the obligor might have performed the condition he was bound to do so. Bigland vs. Skelton, 12 East, 436} Mounsey vs. Drake and Goff, 10 Johns. Rep. 27; Mitchell vs. Palillo 2 Hawk’s Rep. 40.
    When a person undertakes to do an act to a stranger, no'thing short of a performance will discharge the bond; an offer and refusal on the part of the stranger will not do. 10 Johns. Rep. 27; 2 Hawk’s Rep. 40. In this case there was no offer or attempt to perform the bond. It is not sufficient that the Sheriff might have taken the property, and did not. 10 Johns. Rep. 27.
    6. It is undeniably true, that the property was subject tú the levy of our execution at the time it was made. If the dé-fendants had not interposed by giving this bond, our debt would have been secure. We had no power to say they should not give the bond; nor had the sheriff. We were forced to this course without our consentí The act of the defendants in giving the bond, and its subsequent forfeiture, was a complete satisfaction of our judgment, and a destruction of the lien created by our levy. If the defendants confided too much when they became the surety of Brown, it was their own folly; they interposed against our wish, and should sustain the loss.
    7. If the principle should be assumed and decided that the defendants are not liable, then the plaintiffs have lost their debt forever, without any neglect or fault on their part. They have no remedy on the original judgment. The sheriff did nothing but his duty in all that he did. He was bound to receive the delivery bond when tendered; had no power of control over the goods until the day of sale, and not then, if they were not delivered. This court, in a bill of interpleader, filed by the sheriff, have already determined that the lien of our levy was lost by the forfeiture of the bond sued on, and that the county court executions were entitled to the proceeds of the sale. If so our only hope is upon the bond.
    S. If it should be determined that the taking of the delivery bonds, discharges the lien of the levy before its fo rfeit ure, still we must recover; the fact that the property could be legally taken .and applied to other executions, will not excuse a performance of the bond. 3 Mun. 417.
    If the levy was destroyed, and the sheriff bound to seize the property under other executions, it follows, that when he possessed the property he had no power to apply it in discharge of the bond. 3 Mun. 417.
    Combs, for the defendant,
    argued — that at the time of the levy and bond in favor of the plaintiffs, the negroes were not the subject of levy, being then in the custody of the law by virtue of the levy of the Governor’s first execution.
    A sheriff cannot take in execution goods, pawned or gaged; nor goods demised or let for years; nor goods distrained; nor goods previously seized upon execution. Croke Car. 149; Roll’s Abridgt. 893; 4 Term. Rep. 640, 651; Shower’s Rep. 174; 7 Modern Rep. 37; 6 Bac. Ab. 176 Sheriff N.
    That the negroes were still held and bound by the Governor’s execution, see Carroll vs. Fields, 6 Yerger, 305.
    2. That after the levy of the plaintiff’s execution, and taking the delivery bond by the sheriff, and before the day stipulated for the delivery of the property, the same sheriff seized and took into his custody and possession, the same property, and kept it until he afterwards sold it to satisfy sundry executions, and therefore there was no breach of the condition.
    If by the act of the law, the act of the covenantee, or the act of God, it be put out of the power of the covenantor to perform, this will be a good defence to a suit on the covenant. Vide Croke, Eliz. 374; Coke. Litt. 206. b. & 210 b.; Powell on Contracts, 417, 418 and 419.
    In this case, then, if the sheriff acted correctly, when he seized the property by virtue of the county court executions, he was the agent of the law, and the act was that of the law, and' defeated the performance by defendants. If the sheriff did not act legally when he seized the property upon those executions, because of the former incumbrances, it folio ws, of course, that the levy and seizure by virtue of the plaintiff’s execution, was also illegal, because the property at that time was subjected, to the Governor’s execution, by virtue of a previous levy thereof, made on the 12th of May, 1831, that execution being still unsatisfied.
    January 17
    3. The plaintiffs abandoned their right to enforce this co-venant by taking out an aliasfi.fa. That the right to enforce the performance of a covenant may be lost by abandonment, see 9 Mod. Rep., 2 and 3; 2 P. Williams, 82; Powell on Contracts, 420; 8 Rep. 92. By taking out the alias fi. fa., the plaintiffs clearly manifested their intent to abandon the first fi. fa., and the proceedings under it, because the alias was in direct opposition to the proceedings of the first fi. fa.
    
    4. Although the defendants might not have satisfied the covenant on the day stipulated, yet they did afterwards com-ply with, and satisfy the covenant, by a delivery of the pro-perty to the sheriff; and it was by him sold to satisfy all such process as he had then against it so far as it would go. So that neither the plaintiffs, nor any one else, has received, or sustained any injury on account of the non-delivery of the pro-perty on the day stipulated for the delivery in the condition in the plaintiff’s bond.
   Turley J.

delivered the opinion of the court.

Previous to the passage of the act of 1831, c. 25, the sure-ty in a forfeited delivery bond was responsible for the payment of the whole amount of the judgment, without regard to the value of the property levied on. This sometimes operated a great grievance; to remedy which, the statute provides, that “the security or securities, on any forfeited bond for the deli-very of property levied on by execution, shall not be held res-ponsible for more than the value of the property specified in such bond, that shall not have been delivered on the day of sale.”

This statute governs the case under consideration. Where the bond, as in this case, was taken after its passage, it will not do to say that it only applies to cases where the execution was issued after its passage; for it is by virtue of the bond, and not the execution, that any rights are acquired against the surety. And the statute makes no exceptions in favor of exe-cutions issued before its passage.

Then, in this case, the plaintiffs are entitled to judgment against the sureties in the forfeited delivery bond, for the amount they lost by their failure to comply with their contract.

It has been held, that a levy upon personal property and a delivery bond, is a satisfaction of the judgment; and that the property levied on is released by a forfeiture of the bond, and liable to other executions. But to constitute a satisfaction of the judgment, the property levied on must be of value sufficient to pay it; inasmuch as the surety in the delivery bond, since the act of 1831, is only responsible for its value, and if it be not of value sufficient, it is only a satisfaction pro tanto.

The property levied on by plaintiff’s execution, is stated in the agreed case, to have been worth $3444; but there were three other executions, bearing the same teste, and having an equal lien levied on the same property; to wit, one in favor of John Laird for $ 679 55; one in favor of Ezra Webb & Co. for $1751 20; and one in favor of Watkins for $438 52; and bonds taken for a delivery on the same day with plaintiffs. Now if the property had been delivered and sold, the proceeds would necessarily have been distributed pro rata among the other three creditors: to wit, the plaintiffs, John Laird, Ezra Web.b & Co., and Watkins. Then, what loss have the plaintiffs sustained by the non-delivery? Just the amount they would have received if the property bad been delivered and sold; to wit, their share, to be estimated in the proportion their debt bears to the debts of the other three creditors; and for that amount, with interest, they are entitled to judgment here.

Judgment accordingly.  