
    William F. Walker v. Rebecca McDowell.
    An older judgment will bind personal property which has been sold under a.. junior judgment, unless something has occurred since the rendition of the older judgment which has discharged its lien.
    A levy on sufficient personal property is prima facie a satisfaction of the execution ; but the presumption of satisfaction therefrom may be rebutted by showing that the levy has been legally removed. '
    Where an execution has been levied on personal property, and a claimant’s bond is given to try the right to the property levied on, the condition of which was, among cither things, for the redelivery of the property, and the statute provided that upon the execution of a claimant’s bond the property levied on should be delivered to the claimant; held that the execution of the claimant’s bond removed the levy on the property.
    A plaintiff in <an execution, after a verdict in his favor, upon a trial of right of property, cannot be compelled to pursue his remedy on the claimant’s bond, before another execution can be taken out on the original judgment; that bond is but a cumulative security.
    Where a levy is made on personal property, and the sheriff returns the execution “ superseded,” and it appeared from the record that the judgment upon which the execution issued had been removed to the high court of ertors and appeals, and judgment rendered there upon the writ of error bond against , the principal or sureties therein; held that in view of the practice prevailing in this state of restoring property to the defendant in the execution where a supersedeas is obtained, the facts constituted a removal of the levy.
    ,A voluntary restitution by the sheriff of property levied on by him, to the defendant in the execution might impose liability upon the sheriff, but would at the same time revive the lien of the judgment on which the execution issued.
    It is competent for the court below to qualify instructions asked, so as to make them conformable to law.
    Whether a supersedeas to an execution is an amotion of a levy already made under it 1 Qumre.
    
    A forthcoming bond taken by the sheriff, without sureties thereto, if received by the plaintiff in execution, is a good bond; no one else can object to its validity for that cause.
    In error to the Madison circuit court.
    This was a trial of the title to property levied on by virtue of a writ of fieri facias, issued on a judgment on a forfeited forthcoming bond in favor of the defendant in error against Sion Sanders and Peter Ragsdale3 which property was claimed by the plaintiff in error, who made affidavit and gave bond for that purpose; under the statute, and issue was joined between the parties to try the title.
    The verdict and judgment being against the claimant, he moved in the court below to set aside the same, and for a new trial; which being overruled, he tendered his bill of exceptions, which was allowed, setting forth all the evidence offered on the trial, which is substantially as follows-:
    The plaintiff below offered in evidence a judgment in Madison circuit court in her favor against B. Turner, Sion Sanders and Peter Ragsdale, rendered 25th April, 1837; a ft. fa. issued thereon oh the 27th May, 1837, and a forthcoming bond taken thereon (but without security to it) and returned as forfeited on the 16th October, 1837; also the writ of fieri facias issued on the said supposed forthcoming bond on the 14th January, 1842, under which the property now in controversy was levied on, namely, Ellen and Harriet, two negroes.
    It was admitted that said negroes were, at the date of the judgment aforesaid, the property of said Ragsdale, and continued so until sold by executions against him. She also offered in evidence a ft. fa. issued on said forfeited forthcoming bond on the 14th December, 1837, indorsed by the sheriff, “Received 10th January, 1838, and levied 4th April, 1838, on two negro men, Bob and Ben, and one girl Minerva,” and containing an entry in the following words, namely, “Superseded, S. M. Flournoy, sheriff.” The writ- of supersedeas was not spread out in the record. The clerk, however, made a memorandum in the record, that by consent of counsel it is considered as copied in the record.
    A certificate of dismissal of said cause by the high court of errors and appeals, was also read by said plaintiff in execution, by which it appeared that judgment had been rendered by that court on the writ of error bond against the parties thereto.
    The claimant, the plaintiff in error, offered in evidence a judgment against Peter Ragsdale, rendered in the same court on the 24th October, 1837, a fi. fa. issued thereon on the 14th November, 1837, a forthcoming bond taken and returned forfeited 7th May, 1838, and ft. fa. issued thereon 4th December, 1838. Also another judgment in said court against said Rags-dale, rendered 10th May, 1838, a. ft. fa. issued, and forthcoming bond taken and returned forfeited, 29th October, 1838, and ft. fa. issued thereon 4th December, 1838. Also the sheriff’s returns on the executions issued on these two last mentioned judgments, showing that he had levied on sundry negroes, including those in controversy, ..namely, Ellen and Harriet, which were proved to be the same as those levied on. He also proved that said negroes in controversy were sold under said executions by the sheriff to the claimant, and proved the execution of the bill of sale for said negroes set forth in the record, from said sheriff to the claimant, showing the sale of said negroes by said sheriff to the claimant, at his public official sale, for .f1256.
    The claimant also read in evidence a ft. fa. issued by the said defendant in error on her aforesaid judgment, on the 16th November, 1840, to the sheriff of Winston county, and the sheriff’s return thereon, that he had “levied the same upon negroes Robert, Matilda and her child Martha, as the property of Sion Sanders,” the defendant in said execution, on the 18th November, 1840.
    The said plaintiff in execution then offered in evidence an affidavit made by one Mary Reynolds, claiming the negroes levied on under the last execution above-mentioned, as her property; and a bond, with security given by said Mary Reynolds for the trial of the title of said negroes, by virtue of the statute. Also the issue duly tendered by the plaintiff in execution, and joined by said claimant, to try the title to said negroes in Madison circuit court, which said proceeding to try said title was dismissed at the instance of the plaintiff in said execution after issue joined as aforesaid, upon the suggestion that said Mary Reynolds was a feme covert. Also, that said plaintiff in execution afterwards moved the said court to reinstate said proceeding, which motion was overruled by the court; whereupon said plaintiff in execution took and had allowed his bill of exceptions to the overruling said motion, setting forth, that it was shown on the trial that said Mary Reynolds was a feme 
      
      covert at the time of making affidavit and giving bond as aforesaid, and her husband was not joined with her in said proceeding.
    The claimant asked the court to instruct the jury, 1. That if they believed, from the evidence, that the writ of fieri facias in favor of the plaintiff in execution against Sion Sanders and Peter Ragsdale, returnable to the circuit court of Madison county, at the May term thereof, 1841, was levied by the sheriff of Winston county on personal property as the property of Sion Sanders, one of the defendants, then ' such levy is a satisfaction of said execution, and no new execution could issue on the same judgment, until said levy was duly and legally discharged and disposed of. The plaintiff in execution objected to the instruction ; the court below, however, gave it, and added thereto, without being asked to do so, by either party to the suit, that the claim of property levied on, and the proceedings under said claim, as detailed in evidence, were a due and legal discharge and disposition of said levy, and the execution might therefore properly issue.
    The claimant further asked'the court to instruct the jury, “ That if they believe, from the evidence, that the fieri facias returnable to April term, 1838, of said court, in favor of said plaintiff in execution, against Sion Sanders and Peter Ragsdale, was levied by the sheriff of Madison county on personal property, as the property of the defendant Sanders or defendant Ragsdale, then such levy is a satisfaction of said execution, and no new execution could issue on the same judgment until said levy was duly and legally disposed of and discharged this instruction was opposed, but was given with this qualification, unsolicited by either party, namely; that the writ of error and supersedeas of said execution was a due and legal discharge of said levy, and that the fieri facias could afterwards issue.
    The following errors were assigned
    First. The court erred in not granting the first instruction prayed for on the part of the claimant, and in making the addition thereto, as set forth in the record.
    Second. ■ The court erred in not granting the instruction secondly prayed for on the part of the claimant, and in making the addition thereto as set forth in the record.
    Third.. The writ of fieri facias in favor of the defendant in error, by virtue of which the negroes in controversy were taken in execution, is void in law, and will not support the judgment rendered in this cause in favor of the defendant in error.
    
      A. H. Handy, for the plaintiff in error.
    1. The first prayer of instruction asked by the claimant below should have been given. In pursuance of the execution issued to Winston county, the sheriff levied upon the negroes, of value sufficient to satisfy the execution. He then took an affidavit and bond, under the statute, for the trial of the title of said negroes, from one Mary Reynolds, who claimed' the negroes as her property. Now this proceeding to try the title is either valid, or it is void. If valid, and made in conformity to. the statute authorizing it, it was incumbent on the plaintiff in the execution to prosecute the proceeding, and thereby judicially determine whether the property was subject to the execution. This was especially incumbent on the plaintiff in the execution, as she had tendered issue, and issue was joined. But after this she. voluntarily dismissed the proceeding, and thereby released the property levied on, upon the suggestion that the bond and affidavit were void, as having been made by a feme covert. If then the proceeding was void, the property levied on by the sheriff was still in his custody, in contemplation of law. If actually in his custody, (and there is nothing, either in his return or entry on the execution, or in the affidavit and bond made, to show that it was surrendered to Mary Reynolds,) it was the duty of the plaintiff to dispose of it by issuing a venditioni ex-ponas. If not actually in custody, the sheriff was still bound for it by his levy; and if he had delivered it to a stranger in violation of law, the property was lost to the defendant in the execution, and the execution was thereby satisfied. 12 J. R. 207; Wood v. Tony, 6 Wend. 562. The return of “levied, &c.” fixed the liability of the sheriff for the forthcoming of the property ; and as the proceeding for the claim of the property was void, the presumption of law is that it is still in the sheriff’s custody. The contrary could only be shown by issuing a venditioni exponas, by which the property would be actually disposed of, or its wrongful delivery be judicially established ; in which latter case, the plaintiff in execution would have had her remedy against the sheriff. Wats, on Sher. 191, (5 Law Lib.) ; lb. 189 —199. If the property was delivered to Mary Reynolds, a mere stranger, in virtue of a void proceeding, the execution was thereby satisfied, and the plaintiff had her remedy against the sheriff; if it was not surrendered by the sheriff, (and such is the legal presumption,) it was the duty of the plaintiff to pursue and exhaust the levy before a fieri facias de novo could be issued on the judgment. Such a fieri facias was issued in this case, withofit taking steps to dispose of the previous levy; and the court held that writ to be good and regular, because the proceedings for the claim of the property (which are confessedly void) showed a sufficient and legal disposition of the property levied on; thus holding, in effect, that a discharge by a sheriff, by virtue of a void proceeding, is “ a due and legal discharge and disposition ” of property taken in execution.
    2. As to the second error assigned. The levy by the sheriff of Madison county, on the 4th April, 1838, on three negroes, was not legally disposed of. 1. No writ of error bond is shown, which would stay the consummation of the levy, by sale of the negroes taken in execution. 2. No writ of supersedeas is shown ever to have come to the sheriff’s hands, nor is there any legal return, showing that such supersedeas was ever issued, o,r received by the sheriff. All the evidence either of the existence or reception by the sheriff, of a supersedeas, is the mere memorandum, “Superseded, S. M. Flourney, Sheriff” This certainly has none of the qualities of a sheriff’s return, as to time when received and the particulars of the sheriff’s acts under it, set forth with fulness and certainty, which cause such returns to import verity, and to be conclusive of the rights of parties. Watson, 69. It is clearly insufficient as a return, and is therefore no return, (Watson, 76,) and consequently proves nothing as an official act. 3. But, conceding that the supersedeas was duly issued and received by the sheriff, still it is insisted that that did not stay the proceedings of the sheriff under the execution, because the execution was already levied and the defendant’s property taken from him. .This is the essential thing in law, and it is this, and not the disposition of the property by the sheriff, which operates a satisfaction of the execution. Therefore the sheriff, after personal property has been seized in execution, cannot be superseded in selling such property, because the seizure being the essential act which deprives the defendant of his property, and therefore satisfies the execution, the sale or disposition of the proceeds of sale are mere incidénts, the seizure being the principal. Beatty v. Chapline, 2 Har. & Johns1. 15, et seq. (to which case the attention of the court is respect-, fully invited, as containing an' able exposition of this doctrine.) 7 Bac. Abr., Tit. Supersedeas (G); Wats, on Sher. 200; 1 W. Bl. 57; 1 Cowen, 15. Where more than four days have elapsed after judgment perfected and there is no order to stay execution, nor writ, of error, nor supersedeas within that time, the execution, being after that time levied, cannot be. stayed by supersedeas after the levy, but the party must await the restitution which follows the reversal of the judgment, if it shall be reversed on error. Beekman v. Bemus, 7 Cowen, 418; Jackson v. Schauber, ib. 417. A party, then, has either to obtain' his supersedeas before the expiration of the four days after judgment perfected, or before execution levied ; for, if once levied,.being entire in its nature, and, once begun, it cannot be superseded, but must be completed. 1 W. Bl. 67. This doctrine of'the law has been settled on the wise principle, that parties who have been really aggrieved by erroneous judgments will be vigilant in .taking measures for redress, and must use that vigilance so as not to delay the rights of adverse parties. 4. If, however, we are mistaken in all the above points, still we maintain that the writ of supersedeas, even if it was duly issued and received by the'sheriff, merely operated to stay the sale of the property, to supersede the execution till the determination of the cause in the court of appeals, and did not justify the restoration of the property to the defendant in the execution. There is but one case in which a restoration of the property to the defendant will be awarded, and that is, where the execution levied is irregular, and then it is ndatter of express award under the circumstances. Nothing of this kind appears, or is alleged to exist in the matter in question. ' Both reason and authority clearly show, that where no restoration appears to have been awarded for irregularity in the execution, the supersedeas only stays the sheriff’s proceeding to final execution of the levy by sale, that the property remains in statu quo, in the sheriff’s custody, until the determination of the writ of error; and if the plaintiff in error succeeds, he then may have a writ of restitution of the property; if he fails, the plaintiff below has his venditioni exponas to dispose of the property, which, pending the writ of error, has remained in the custody of the law. Beatty v. Chapline, supra,-32, 33; Wats, on Sher. 200; 1 W. Bl. 67.
    If we are right in any of the above points, it clearly follows either that the execution was satisfied by the levy, the alleged supersedeas being no stay of execution; or that the property remained in the custody of the law pending the writ of error, and after its determination should have been disposed of by ven-i ditioni exponas ; and it is manifest that the court erred in holding, “ that the writ of error and supersedeas,” as set forth in the record, “ were a due and legal discharge of said levy,” and “that the fieri facias, tinder which the negroes in controversy were levied on, could afterwards properly issue.” The plaintiff in the judgment could have abandoned the levy and proceeded on the writ of error bond, if one was given ; but if he proceeded on the original judgment, he was bound to follow up the execution as it was left when the writ of error issued, and must have exhausted the levy by venditioni exponas before he could take a. fieri facias de novo.
    
    3. The fieri facias, under which the negroes in controversy were levied on, was issued on a supposed forfeited forthcoming bond. The record shows that this bond was taken without security, and that two of the three parties defendant in the original judgment only signed if Such a bond was therefore void, as being without security, and the judgment, as well as the execution predicated upon it, was void, and could not be the foundation of any legal proceeding. Nelson, Carlton Sp Co. v. Osgood, et al. 6 How. 285. The fieri facias, and the judgment in this case founded on it, are therefore void.
    
      Thomas Shackleford, for defendant in error.
    By an inspection of the record it will be found, that the court below gave to the jury the first instruction prayed for by appellant’s counsel; the only question for the consideration of ,the court on the first error assigned is, whether the court erred in giving the additional instruction unasked for and set out in the bill of exceptions.
    Appellant’s counsel insists, that the levy made by the sheriff of Winston county, on property as the property of the defendant in appellee’s execution, was a satisfaction of the execution.
    1st. Because she did not prosecute the issue joined, to try the right of property to a final adjudication of the circuit court.
    2d. Because the property levied upon by said sheriff, by contemplation of law, is still in his custody, and that the contrary could only be shown by the issuance of a venditioni exponas, which alone could dispose of the levy.
    Unless the property levied on by the sheriff - of Winston county was the property of the defendant in execution, Sion •Sanders, the levy was no satisfaction.
    The only evidence that appears from the record that it was his property, is the return of the sheriff upon the execution, which, it is true, would .be sufficient proof of that fact, if nothing appeared from the record to the contrary. The record shows that Mary" Reynolds made affidavit that the property levied on was hers, and gave bond to try the right in the same, according to the statute, which was prima facie evidence of her right to the property claimed. When the affidavit was made, and bond executed, &c., the defendant in error had a perfect right to discharge and vacate the levy, without prejudice to her claim or lien. She cannot be compelled to go on with the suit to try the right of property, when she was or might have been satisfied that the property levied on was n'ot the property of the defendant in execution. This position we deem too plain to cite authorities to sustain.
    By the condition of the bond' set out in the record, the property levied on by the sheriff of Winston was delivered back into the possession of the claimant, as the sheriff was bound to do under the statute; which fact rebuts the presumption of law, that the property is still in the custody of the sheriff.
    The cases of Wood v. Torry, 6 Wend. 562, and in 12 Johns. R. 20, relied on by appellant’s counsel, are not analogous to this case. In those cases the property was acknowledged to be the property of defendants in execution by the sheriff, and put into the hands of a third party for safe keeping.
    The proceedings subsequently taken by the defendant in error, in the circuit court of Madison county, relative to the trial of the right of property with the claimant, Mary Reynolds, do not show that the sheriff who took the bond to try the right of property, &c., could be .rendered liable for taking the bond for the trial of the right, &c., and consequently would not become liable under the principles settled and relied on in Wood v. Torry, 6 Wend. 562.
    Whether the bond for the trial of the right, &c., was void, or voidable, it matters' not. There being no proof, as we conceive, of the title of the property being in the said Sion Sanders, the presumption is, that the defendant in error recognizes the claim of Mary Reynolds. If the defendant in error had proceeded to subject the property levied on to sale, under her execution, or by a venditioni exponas, she, Mary Reynolds, could still have given a new bond, and defended her right to the same, and the defendant in error could then have dismissed the issue, and refused to proceed further ; so the quashing of the bond does not affect the principle contended for by us, that plaintiff in execution had a right to dismiss her issue at any time before trial..
    
      2d. The levy made by the sheriff of Madison county, on the 4th of April, 1838, upon three negroes of the defendant’s, in appellee’s execution, and the subsequent proceedings taken by the defendant in execution to prevent the sale of the same, was not a satisfaction of the same, as is insisted upon by appellant’s counsel. But the sheriff’s returnon the execution, we maintain, was (taken in connexion with the other proof developed in the record,) a full and perfect disposition of that levy, and that an execution of fiei-i facias could properly issue after-wards.
    The presumption that the sheriff acted without authority, in returning of appellee “ superseded,” is fully rebutted and disposed of, by the statement in the record, made by the clerk, “that' the supersedeás is mislaid,” &c., and the “consent of counsel that it should be considered as copied,” and which proves conclusively that a supersedeas did issue. Although the supersedeas was not before the court on the trial below, it was considered by the counsel as read, (or the consent by the counsel on both sides would never have been in the record,) and the defendant in error should be entitled to the same benefit to be derived from it, if actually before this court. Farther, the certificate from the high court of errors and appeals, offered at the trial and read, is corroborative of the correctness of the sheriff’s return, on they?, fa. of appellee.
    The fact of the supersedeas and writ of error having issued being fully established by the record, the only question is as to the legal effect of the writ of error and supersedeas issued in this case after levy.
    
    Appellant’s counsel asserts, that even after the supersedeas came to the hands of the sheriff of Madison, he was bound to go on and sell the property levied upon, and if not sold it is in statu quo, and the parties are where they were at the time of the issuance of the writ of error and supersedeas; and a venditioni exponas had to issue, to dispose of the levy; 'and relies on the case of Beatty v. Chapline, 2 Har. & Johns. 7.
    The point contended for in that case was, that “ the writ of error operated as a supersedeas, and as a writ of restitution of the goods taken in execution.
    
      Chief Justice Chase held, that the levy did not change the property of the defendant taken on fi. fa. until the sale is made by the sheriff, and that the fieri facias, until the sale, is not executed, and writ of error is a supersedeas, at any time before sale ; and that if the sheriff return a fi. fa., “property on hand for want of buyers,” the property is in the defendant. Bro. 41, (6 James.) A writ of error is a supersedeas, if sheriff receives it before sale. 2 Roll. Ab. 491, pi. 5. (17 James.) So long as the execution is executable, but not executed, the allowance of a writ of error is a supersedeas, but not afterwards. 1 Salk. 321, 322. 2 Day, 370.
    Buchanan, J., dissenting, held, in the same case, that a writ of error shall not operate as a supersedeas after goods taken, but the sheriff shall go on to sell, the execution being an entire thing, could not be stopped after levy; but adds, that “ when it is said that an execution is an entire thing, and cannot be suspended, it is intended by q supersedeas on writ of error, and not a supersedeas created by statute, &c.
    Although a venditioni exponas was ordered in the case of Beatty v. Chapline, it was gfanted alone upon the principle, that a writ of, error at common law did not operate as a supersedeas and a writ of restitution after levy.
    In the case at bar, the writ of error and supersedeas issued under our statute, which is granted by petition, &c., as a matter of right, at any time before the expiration of three years after final judgment, on the defendants giving bond, &c., with good security, &c. How. & Hutch. 541, sec. 50.
    The principle decided upon in the case of Beatty v. Chapline, cannot govern this case. In the one, the writ of error was without supersedeas, in the other, writ of error and supersedeas.
    
    The execution and delivery of the writ of error bond, with security, &c., we insist, amounts in law to a writ of restitution of property, levied upon by virtue of a fieri facias, or why should bond be required in all cases? The writ of error can betaken out as well after levy as before; there is nothing in the statute prohibiting its being done; if it were otherwise, no bond would be necessary after levy. The statute is positive that bond should be given in all cases, and if defective, &c. “ plaintiff can take out execution,” &c.
    3d. The third ground of error is, that the execution levied upon the negroes in controversy issued upon a supposed forthcoming bond, taken without security, and therefore void ; and the execution issued upon the forfeited bond is void likewise; and relies upon the case of Nelson, Carlton Co. v. Osgood, et al., 6 How. 285. In that case the sheriff forged the name of the security, and the plaintiffs treated the bond as a nullity. In the case at bar, the plaintiff in execution recognized the bond as valid, and had execution of fieri facias issued upon the judgment on the forfeited bond, which execution was superseded', and the case taken to the high court of errors and appeals, and by the judgment of the high court, (Sanders, et al. v. McDowell, Administratrix, 4 How. 9,) the defendant in error was bound to recognize the bond as valid. Whether the same was valid or void, the bond is res judicata, and all parties to it are bound.
    We contend, if that were not the case, that the defendants in the execution could take no advantage of the invalidity of the bond; no third party can.
    It is now too late for the appellant to assign as error, that 1the bond in this case was void: he should have made his objections to the reading of it at the trial below.
    It was settled, in the case of Gelston v. Hoyt, 13 Johns. 561, that no point can be raised in the appellate court, not argued in the court below. The only exception to this rule is, when the foundation of an action has manifestly failed; as, if the declaration should be for slander, and the judgment for a sum due on a promissory note. Then the objection may be taken at any time; but when the party may have objected, and by his silence waived the objections, and which, when waived, leave the merits of the case with the judgment, then he is precluded from taking advantage of the point in the appellate court. Palmer v. Loirillard, .16 Johns. R. 348.
    The appellant was not only silent at the trial below, as to the invalidity of the bond, but he recognized the bond to be valid, as well as the execution of fieri facias issued upon the judgment on forfeited bond, by affirming the execution of fieri facias issued to Winston county, to show that appellee’s execution was satisfied. The appellant could have motioned to quash the bond and the writs of fi. fa. issued subsequent, but did not, and made no objection to the reading of the bond at the trial, but rested the merits of his case on his title to the property levied on.
    Lastly, we contend that the appellant could not, even at the trial below, take any advantage of the defective bond, or the executions issued upon the judgment on bond, after he had joined issue to try the title to the property levied on.
    The issue was above to try the question, whether the property levied on was subject to be sold under the execution of fieri facias levied on the same.
    The objection should have been made before issue joined. The only question for the jury was the title to the property, and not as to the validity of the bond, executions, &c., and that was found for plaintiff in execution.
    Handy, for the plaintiff in error, in reply.
    1. As to the consent of counsel below that the supersedeas “ should be considered as copied.” The evidence of this, is the mere memorandum of the clerk, made without any authority shown, and stating an absurdity, viz. that a document should be considered as copied which was not produced, and not capable of being read, nor its contents stated. It cannot therefore be regarded as properly in the record.
    
      2. The statute of this state, authorizing the grant of writs of error on petition to the clerks of the circuit courts, affects only the mode of obtaining such writs, but does not change their legal effect, when obtained, from what it was at common law and under the English statutes. If, as we have above shown, a writ of error and supersedeas at common law, and under those statutes, obtained after levy made, did not cause a restoration of the property to the party, there is nothing in this statute which changes the rule in that respect. Nor does the writ of error bond alter the case; for this bond (Rev. Code Miss. p. 139, s. 149,) is but equivalent, in its condition, to bail in error under the English statutes, 3 Jac. I. ch. 8, and 3 Car. I. ch. 4, s. 4. And the authorities above cited show, that this security is to stand for the damages the adverse party may sustain by wrongfully suing out the writ of error, and not as a substituted liability for the debt; and consequently, it was the sheriff’s duty to supersede execution, to stay his proceedirigs, but not to release or restore the property.
    3. The case in 4 Howard, 9, does not decide that the forthcoming bond was valid, but assumes that for granted, and the point now raised was not directly presented for the consideration of the court in that case. But the case in 6 How. 285, expressly decides ;that a forthcoming bond without security is void; and, being a nullity, it'can never be the foundation of any judicial proceeding, whether excepted to or not in the court below. Nor can the plaintiff in execution, by recognizing it as valid, render valid that which the law makes void to all intents and purposes. For the same reason, the plaintiff in error may in this court impeach the execution issued on this void forthcoming bond, though it was not objected to at the trial below. The case in 13 J. R. 561, relied on by the defendant, shows simply that a point in'pleading, expressly waived in the court below, cannot be presented as error in the appellate court. There was no express waiver of the objection in the court below in this case. But admitting the rule as it is .contended for, yet the other case cited by counsel (16 J, R. 354,) shows, that it does not apply to an objection, which, if taken, would have destroyed the foundation of the action; and a fortiori, when the foundation of the proceeding, as in this case, was void.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was a trial of the right of property in two slaves, which were levied on by the sheriff under an execution in favor of the defendant in error against Sanders and Ragsdale. Walker, the claimant,' had purchased the slaves at sheriff’s sale under a judgment junior to that of McDowell. McDowell’s judgment being the oldest, must bind the property, which is admitted to have belonged to Ragsdale at the time of the rendition pf the judgment, unless something has occurred since the rendition of the judgment which discharged the lien.

The first ground taken in asserting the validity of Walker’s claim, is that an execution issued on McDowell’s judgment, directed to the sheriff of Winston county, who levied it on sufficient personal property to satisfy the debt. This levy, it is said, has not been legally removed, and the property levied on must be still, in contemplation of law, in the hands of the sheriff The facts in relation to this levy seem to be as follow: One Mary Reynolds claimed the negroes levied on, and gave bond to try the right, and to redeliver the negroes to the sheriff if the issue should be found against her. On this claim an issue was made up at the instance of the plaintiff in execution, which issue, on the motion of the. plaintiff in execution, was dismissed on the ground of the coverture of the claimant. The plaintiff in execution afterwards moved to set aside the dismissal, but it was refused, and exceptions taken, but there the matter rested. Now it is said if this proceeding was void, the property levied on must still be considered as in the hands of the sheriff, and is therefore -a satisfaction. A levy on sufficient property, it is true, is prima facie a satisfaction of the execution; so we held in the case of Kershaw v. The Merchants Bank of New York, 7 Howard, 386. But we also held that the presumption of satisfaction arising from a levy, may be rebutted by showing that the levy has been legally removed. The statute provides that if a claimant of property taken under execution will give bond as required, the sheriff may deliver the property so levied on to the claimant. The claimant did give bond as required, conditioned, amongst other thing's, for the redelivery of the property. This furnishes evidence' that the property was delivered up by the sheriff, and it is a legal discharge of the levy. Nor is the plaintiff in execution to be driven to pursue his remedy on the claimant’s bond, before another execution can be taken out. So long as the issue is pending, the execution, to the amount of the value of the property levied on, is to be stayed; but when the issue has been disposed of by dismissal, the plaintiff is entitled to a new execution; the bond is but a cumulative security. This 'ground cannot therefore avail the plaintiff in error, as the charge of the court was in accqrdance with the view we have taken.

In the next place it is insisted that McDowell’s judgment does not bind this property, because an execution on that judgment was placedla the hands of the sheriff of Madison county, who levied on personal property, which levy, never having been legally removed, operated as a satisfaction. The execution here referred to was levied on three negroes, and returned “ superseded.” There is also a certificate of the clerk of this court in the record, by which it appears that the case was brought here by writ of error, and that it was dismissed, and a judgment rendered against the principal and surety in the writ of error bond. The sheriff’s return is indefinite, it is true, but it is explained by the certificate, and the two together must be regarded as evidence that the operation of the execution was suspended. But it is insisted that after the levy the supersedeas could not have prevented the sheriff from selling property which he had seized. The practice has prevailed in this state to regard a supersedeas as a suspension of the execution, and whether well or ill founded, the practice has been to restore property levied on to the defendant in execution when a. supersedeas has been granted. The levy in this case was prima facie a satisfaction, and in the absence of proof to the contrary we should be bound to presume that the plaintiff, whose execution had been levied, had received actual satisfaction; but in this case we think the presumption is sufficiently rebutted. In the first place, the sheriff returned the execution at the return term, but did not return thereon that he had sold the property. He returned the execution as superseded, which we have said has been usually regarded as entitling the defendant to restitution. In the next place, we perceive from the record that a portion of the same property was subsequently sold under other executions. As the sheriff failed to sell, after the supersedeas issued, he could not have sold afterwards without a venditioni exponas, and if any such process had issued, it should have been produced in evidence. If it rvas improper for the sheriff to restore the property levied on after supersedeas, it was an impropriety of which the plaintiff in execution alone had a right to complain. The record does not, therefore, show such a satisfaction of McDowell’s execution as to discharge the judgment lien. It is perfectly manifest that the property levied on was not sold under McDowell’s execution; nor could the defendants to that execution insist that it had been satisfied, and of course third persons cannot. It may be true that the sheriff improperly restored the property when the supersedeas issued, but that does not affect the judgment lien. A mere voluntary restitution, although it might impose liability on the sheriff, would revive the judgment lien. Satisfaction is predicated on the supposition that the defendant has been deprived of his property, which in this instance is clearly not the case. The defendants have not been prejudiced by the levy, nor has McDowell been benefited. At the request of the claimant’s counsel, the court charged the jury that this levy was a satisfaction, but added that the writ of error and supersedeas operated to discharge the levy, and this qualification to the charge is objected to, because it was not asked by either party; but it is surely competent for the court so to qualify instructions asked, as to make them conformable to law. Whether the levy was legally removed by the supersedeas or not, is a question which is not now necessarily involved, as it is immaterial, so far as the rights of the parties to this controversy are concerned, whether the discharge of the levy was legal or voluntary, by redelivery to the defendant without the consent of the plaintiff. Rucker v. Harrison, 6 Munford, 184.

It is lastly insisted that the fieri facias which was levied on the property claimed is void, because it is predicated on a forthcoming bond taken without surety, which was for that reason void. The plaintiff in execution had a right to object to this as an invalid bond, as did the plaintiff in the case of Carlton v. Osgood, 6 Howard; but no such objection has been made. "Virtually it has been received as a good bond, and no one else can object to its validity for want of sureties. In the case referred to the plaintiff treated the bond as a nullity, but in this case it has been treated as a good bond, and we cannot say that it is incompetent for the plaintiff in execution to dispense with a security which the law provides for him. We therefore think the judgment must be affirmed.

The plaintiff in error filed the following petition for a re-argument :

In the case of William F. Walker v. Rebecca McDowell, Administratrix, &c., the counsel for the plaintiff in error respectfully asks a reconsideration of the decision of the court, for the following reasons:

1. It appears by the record that the execution of the defendant in error had been levied upon the property of the defendant in the original execution in Winston county, which property was claimed -by a stranger, and affidavit and bond given to try the right, and the property was delivered by the sheriff to that stranger. It appears that this bond and affidavit were quashed as void; and it does not appear but that the' property was lost to the original defendants. This was in law a satisfaction of the execution, either absolutely, or at least prima facie. And there is nothing to destroy the prima facie satisfaction arising from this delivery of the original defendant’s property to a stranger; for whether the bond and affidavit given were void or not is immaterial, the essential thing- being that the defendant’s property was seized in execution and delivered to a stranger, which in law was a satisfaction of the execution. 12 J. R. 207; 6 Wend. 562. It seems, therefore, to counsel, clear beyond controversy, that the execution subsequently issued could not be levied again on the property of the original defendant; that the judgment was satisfied, and that the plaintiff’s remedy was against the sheriff, who was, by means of the levy on the defendant’s property, chargeable to the plaintiff with all the consequences arising from the delivery of the defendant’s property to a stranger, which caused the execution to be satisfied; and that the present plaintiff in error, having purchased property of said defendants under a junior judgment, cannot be disturbed as to such purchase by an execution issued on the senior judgment of the defendant in error, because said judgment appears, for the reasons here stated, to be satisfied in law.

2. It appears clear to counsel that the judgment on the forthcoming bond, being without surety,-was absolutely void, not only at the election of the plaintiff in the execution, but as to all persons, and especially as to a bona fide purchaser, who is always a favorite with the law. The forthcoming bond, being a creature of the statute, can have no existence in law where the express requirements of the statute are not complied with in its execution. The statutory judgment purporting to be rendered upon it is equally void, because the law only warranted such statutory judgment to be rendered where the requirements of the statute in the execution of the bond had been followed, certainly not when it appeared on the very face of the bond that the requisites of the statute had not been complied with. If the statute had required the special action of a court in rendering judgment upon the bond (instead of the judgment passing upon its forfeiture by silent operation of law) and the court had rendered judgment on the bond under consideration, it is clear that such judgment would have been void for want of jurisdiction in the court, because the statute authorizing the rendition of the judgment had not been complied with in having a proper bond. And the judgment which passed by silent operation of law, cannot have greater weight, or be less liable to objections, than a judgment rendered by a court, where parties are entitled to be heard. Gwin v. McCarroll, 1 S. & M. 367; Brown v. Campbell, in this court.

It is true that the forthcoming bond and judgment operate as a security to the plaintiff. But this is only in virtue of the provisions of the statute; and how can the plaintiff, by his electing to consider it valid, render that valid and effectual which is an utter nullity, in having no authority of law to sustain it?

3. The important qrrestions involved in this case were argued only by briefs. The counsel are qf opinion that full justice could not be done to them without an argument at the bar, and that their importance well justifies the desire to present as full an argument as possible.

In order to the better understanding of this application, the counsel would respectfully ask the attention of the court to the brief and abstract heretofore presented to the court.

A. H. Handy, for plaintiff in error.

The undersigned, members of the bar of the high court of errors and appeals, having considered the questions presented in the above application, are of opinion that a reargument of the cause should be granted by the court.

W. Yerger,

H. T. Ellett,

C. S.. Tarpley.

The court overruled the application, and adhered to its former opinion.  