
    Marcy v. Russ.
    The levy of an execution taken out upon a judgment by default, against a person out of the state, without giving bond agreeable to the statute, is error, of which the party only, may take advantage. < i
    ActioN of ejectment. Plea not guilty. Issue to the court. Plaintiff’s title, the levy of an execution against Major Dana, upon this land as his, in December, A. D. 1788.
    The defendant set up title from one Fletcher, who attached the land for a debt due him from Major Dana, who then was removed out of the state, in August, A. D. 1786; Fletcher obtained judgment by default, and took out execution without giving any bond as the law requires, and in September levied it on this land, and had it set off to him.
    
      Tbe only question in this case was — Whether Fletcher’s taking out his execution without lodging a bond as the statute requires, was such an irregularity as made void the execution and levy. Judgment for the defendant.
   And

by the Court.

The bond with surety which is to be lodged with the clerk upon taking out execution on a judgment by default, against an absentee, is altogether in favor and for the security of the debtor, provided he returns into the state and seeks redress within a twelve month; but the creditors of such absentee cannot take advantage of it, the execution and levy therefore, are good and valid, as to all other persons besides the debtor.  