
    Downman v. Chinn Executor of Downman.
    April Term, 1796.
    Forthcoming Bond — To Whom Payable — Recital of Amount of Execution. — A forthcoming' bond should he made payable to the creditor, and not to the Sheriffthe amount of the execution ought to be recited, and the condition should be to deliver the property at the time and place of sale, and not when demanded.
    Same — Quashal  — if the bond be defective in any of the above instances, or in others, the Court may, and ought to quash it on motion.
    Same — When Satisfaction of Judgment. — A faulty forth-coming bond, whilst in force, is a satisfaction of the judgment, and a second execution cannot issue until itis quashed.
    Same — Execution—Quashal—The common course is. to quash the execution as well as the bond, if a motion for that purpose be made, otherwise it is not necessary.
    On the 3d of October 1791, a writ of fi. fa. was sued out by the defendant in error against the plaintiff, upon a judgment of' the District Court of Northumberland.
    The sheriff took a forthcoming bond payable to himself, with condition to deliver the property to the sheriff when demanded;: but the amount of the execution was not recited.
    It appears from the record, that on the 4th of January 1793, a second execution issued upon the original judgment, by which part of the money was made, but this, execution is not spread upon the record by a bill of exceptions, nor does it appear to» have been noticed by the court. Upon the motion of the defendant in error, the forthcoming bond above stated was. quashed, as being informal. The order of the court was entered as follows viz: on the. motion of John Chinn &c. executors of' Rawleigh Downman deceased, against. Rawleigh Downman, on a bond taken on. an execution sued out of this court by the said executors, against the said Rawleigh Downman, it is ordered, that the bond taken' on an execution sued out of this court by the said executors against Rawleigh Down-man to Richard Beale sheriff of Richmond county for the forthcoming of property taken on the said execution, be quashed, it appearing to the court that the same is insufficient.”
    *To this order a supersedeas was. awarded by one of the judges of this court.
    Campbell for the plaintiff in error,
    contended, that the court had no right to quash a forthcoming bond, although it should be informally taken; that it was to have the' force of a judgment, and was as completely out of the reach of the same court to which it was returned, as the judgment of a preceding term would have been. But that if the court might properly exercise this power, the second execution ought also to have been quashed, since it improvidently issued upon the original judgment, after a. forthcoming bond had been taken and returned; and to prove this he relied upon the case of Taylor v. Dundass decided in this court, (see ante vol. 1, p. 92.)
    Washington for the defendant,
    contended, that the bond being clearly defective, could no otherwise be got rid of, so as to authorise the plaintiff to proceed to obtain the effect of his original judgment, than by a motion to quash it; That in the case of Hendricks and Taylor v. Dundass (ante p. SO) this court had affirmed the judgment of the county court, quashing a forthcoming bond.
    As to the second execution, that was merelj' a ministerial act, and could only have been quashed by the court from whence it issued, upon a motion regularly made for that purpose, and if upon that motion the court had given an erroneous opinion, it might properly have been corrected upon an appeal to this court.
    But upon this appeal, the court is confined to the judgment of the District Court upon the motion which was made, and cannot notice the second execution which is regularly no part of the record. This point was settled in the case of Beftwich and Stoval (ante vol. 1, p. 303). In the case of Taylor v. Dundass, a second execution issued without a previous motion having been made to quash the forthcoming bond, and the motion which produced the judgment in that case, was to quash the second execution.
    
      
      Forthcoming Bond — To Whom Payable. — That a forthcoming bond which is made payable to the sheriff, instead of to the creditor, is faulty, and will be quashed on motion, see the principal case cited in Hall v. Wadsworth, 35 W. Va. 379, 14 S. E. Rep. 6; Meze v. Howver, 1 Leigh 443.
    
    
      
       Same-Quashal. — In Wallace v. McCarty, 8 W. Va. 199, it is said: "It was competent for the court to quash a forthcoming bond for defects and irregularities. Downman v. Ohinn, 2 Wash. 189: Couch v. Miller, 2 Leigh 545. In each of these cases -the bond was quashed on motion of the defendant.”
      In this connection the principal case is cited with approval in Windrum v. Parker, 2 Leigh 367; Lynch-burg T. & S. Bank v. Elliott, 94 Va. 702, 27 S. E. Rep. 407. See foot-note to Hendricks v. Dundass, 2 Wash. 50.
    
    
      
      Same — Bar to Proceedings on Original Judgment.— A forthcoming bond, even if defective, is a bar to any further proceeding's on the original judgment, until quashed. The principal case is cited, in support of this proposition in Randolph v. Randolph, 3: Rand. 492-, Garland v. Lynch, 1 Rob. 561.
      In this connection, see the principal case cited in Ward v. Vass, 7Leigh 143; Lusk v. Ramsey, 3 Munf. 439.
      See generally, monographic note on ‘‘Statutory Bonds” appended to Goolshy v. Strother. 21 Gratt. 107.
      Variance — Execution and Forthcoming Bond. — As to-what is a fatal variance between the execution and the forthcoming bond, see the principal case cited in Glascock v. Dawson, 1 Munf. 606. See Bronaughs | v. Freeman, 2 Munf. 266.
    
   ROANE, J.

There is no doubt, but that this bond is faulty in the following instances at least, 1st, that it is made payable, not to the creditor, but to the sheriff. 2dly, the amount of the execution is not recited in it; and 3dly, the condition is to deliver the property, not at the time and place of sale, as it should have been, but when demanded. But it is objected that the court had no power over the bond, so as to quash it, though ever so faulty. The cases which were cited by the counsel for the defendant in error, and another also decided in this court of *Hubbard and Taylor (ante vol. 1, p. 259) furnish a compleat answer to this objection.

The order of the District Court though right upon the main points, is rather too general, in not specifying the bond more particularly by its date, amount &c. however, as it is spread upen the record, we must suppose, that it was that bond to which the motion and order related.

As to the second execution, there is no doubt, but that the court ought to have quashed it, if a motion for that purpose had been made. But it does not appear that the court were informed of its existence, and therefore we cannot say that they erred.

CARRINGTON, J.

Concurred in the same opinion.

BYONS, J.

It seems to have been admitted by the counsel for the plaintiff, that this bond was faulty, but .the power of the court to quash it is denied. It would cer■tainly be highly inconvenient, if ministerial acts like the present were without the con-troul of that court to which the officer belongs, and if the only remedy for the party aggrieved by his mistakes, were an action against the officer. I hold the law to be otherwise, and that the court may properly correct the ministerial acts of its own officers.

The proceedings in this case have certainly been very irregular; the court ought to have quashed the second execution, if an application for that purpose had been made, because the forthcoming bond whilst in force, was a satisfaction of the first judgment. The general course is to quash the execution, as well as the bond; but as no motion for this purpose was made, we cannot condemn the order which was made.

Order affirmed.  