
    William F. Smith vs. John Montgomery, administrator of Ezekiel Baxter.
    Where the plaintiff in an execution dies after the issuance of the execution, but before the execution of a forthcoming bond by the defendant therein, such forthcoming bond executed in favor of such deceased plaintiff is void; and if a statutory judgment be rendered on the supposed forfeiture thereof, that also will be void.
    It seems, if a forthcoming bond in such case would be valid at all, it ought to be payable to the administrator of the plaintiff in the execution ; whose duty it is, on the death of the plaintiff in the execution, to see that a proper and valid bond is taken.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    William F. Smith alleges in his bill, that, on the 27th day of January, 1838, Ezekiel Baxter, a citizen of Tennessee, recovered a judgment against William C. Beck, in the circuit court of Hinds county, for the sum of eleven hundred and forty-four dollars sixty cents damages, besides costs, execution upon which issued to Madison county on the 10th day of October, 1838, from the April term, returnable to the October term, 1838, which execution was levied by the sheriff of Madison county on personal property of Beck; a forthcoming bond given and forfeited, with Wm. F. Smith as surety; that executions from time to time issued on the bond; that, after the giving and forfeiting of the bond, Smith ascertained, by information, that before the issuance of the execution, or the giving or forfeiting of the bond, said Ezekiel Baxter had departed this life intestate; and some time after, John Montgomery obtained administration of his goods, &c., and prays that the bond be declared void, and the parties enjoined.
    
      The defendant below, John Montgomery, demurred, and the court allowed the demurrer and dismissed the, bill. Smith appealed.
    The following is the opinion of the chancellor.
    This case was submitted upon a general demurrer to the bill.
    In January, 1838, Ezekiel Baxter recovered a judgment in the Hinds circuit court, for $ 1141.60, against Wm. 0. Beck, upon which judgment and execution issued, and was levied upon some personal property of Beck; whereupon the complainant in this case united with Beck in a bond for the delivery of the property on the day appointed for the sale thereof. The property was not delivered, and the bond became forfeited, according to the provisions of the statute upon that subject.
    The bill asks that the bond may be declared void, and may be delivered up and cancelled, because it is alleged that, after judgment was rendered, and before the execution issued, (and consequently before the taking and forfeiture of the bond,) Baxter, the plaintiff in the judgment, died.
    Whether this fact rendered the execution and the proceedings under it absolutely void, or merely voidable, are the only questions I deem it necessary to examine, because I consider the power of a court of chancery to call out of existence void bonds, or rather instruments, which are liable to be used for unjust purposes, as settled upon grounds as solid as they are just and wise. This jurisdiction is exercised upon the principles of preventive-justice, and is administered in favor of a party who fears that such bond or instrument may be made the ground of vexatious litigation against him, when the lapse of time may have obscured or destroyed his means of defence. I inquire, then, was the execution in this case absolutely void? because, if it were merely voidable, it still conferred authority to make the levy, and consequently to take the bond, and in that case there would be no pretext for the interference of this court.
    I consider it very questionable whether the execution was even erroneous, much less void. It bears test of the term at which the judgment was rendered; and I understand the rule to be that, as between the parties thereto, the execution is to be considered as having relation to its test, although the rule is otherwise as to purchasers. Tidd’s Prac. 915. Hence an execution must be regarded as regular where it is tested before the party’s death, although, in point of fact, it may have actually issued afterwards: and this rule applies equally to both parties. Center v. Billing/iurst, 1 Cow. R. 33; Cleve v. Veer, Cro. Car. 459; 1 Saunders, R. 286, (note.) ■ If this be the correct view of the law, the execution was not only not void, but was entirely consistent and regular, and gave full authority for taking the bond in question. Whether the administrator of Baxter must not revive the suit in his name, in order to have execution on the bond, is a different question. Whether the nonexistence of the plaintiff in the judgment, at the time of the forfeiture of the bond, would render the statutory judgment which attaches thereon void or not, is, in my view, immaterial to the present inquiry ; because if, as I have supposed, the execution gave authority to take the bond, although it might not have the effect of a judgment, it would not necessarily be void, but might, I apprehend, be enforced as a common law bond. That the execution was a full authority to the sheriff to take such bond is, I think, perfectly clear, because even if the commission to revive in the name of the personal representatives of Baxter, was a defect in the proceeding, yet it was not such defect as to radically vitiate the execution, and was such as could only have been taken advantage of by the party against whom it issued; that party having acquiesced in the error, (if it was one,) the complainant could not, I think, be heard to make the objection for the purpose of establishing the nullity of the bond to which he had voluntarily become a party, and by which he had recognized the validity of the execution. This view of the case is fully sustained by the case of Jackson v. Bartlett, 8 Johns. R. 361. Suppose the sheriff, instead of taking a forthcoming bond, had proceeded, with the acquiescence of the defendant in the execution, to make a sale of the property levied on, can there be any doubt that the purchaser would have acquired a good title'? I think not, and the case last referred to is in support of this conclusion; and yet this could not be, if the execution was 
      ipso facto void. From this view of the case, I am satisfied that the bond is not so entirely divested of validity as to authorize me to declare it void, and to declare it to be cancelled. Whether it be merely defective or not, is. an inquiry that belongs to the court that rendered the judgment.
    Let the demurrer be sustained, and the bill dismissed at the complainant’s costs.
    
      Hughes, for appellant.
    1. It is objected, on the part of the defendant, that our remedy is at law. The advice which is said to be given in the bill, is a full answer to this objection. The return term has passed, and beyond that, as has repeatedly been decided, a motion to quash will not be heard. The bond is void, because given on an execution which was void. In Tennessee, it has been decided that a decree rendered against a person who had died during the pendency of the suit, is void, for want of jurisdiction. Kelly v. Hooper's Ex'rs, 3 Yerger, 395.
    2. The same principle will apply to the plaintiff if, during the pendency of the suit, he dies; and so as to execution upon the judgment. It is admitted, that where plaintiff dies after the rendition of the judgment, there is no abatement, but there is an end of the right of the plaintiff to enforce execution; and what was his right while living, is vested in his representative, and this cannot be enforced without scire facias. See 2 Arch-bold’s Prac. 839; Jeffreson Sfc. v. Morton Sfc., 2 Saunders, R. 6, n. 1; note to Underhill v. Devereaux, 2 lb. 72, (o).
    
      Montgomery and Boyd, for appellee.
    The alias process under which the levy was made, relates back to the original. And the remarks of the chancellor, as to the original process and judgment, are therefore strictly applicable. The whole process, till final satisfaction, is but one in the view of the law.
    The remedy on the facts averred, if any, is at law by a writ of error, coram nobis, and there is nothing of an equitable character in it.
    
      The condition of the bond could have been performed by a return of the slave levied on to the sheriff; and it is not inequitable to enforce the collection by execution. Smith was a stranger to the original judgment, and cannot, in equity, be allowed to thrust himself into the case to defeat it.
    The act of Smith, in signing the bond, caused the slave levied on to be released; and he ought not, in equity, to be allowed any advantage, without putting the plaintiff, as to his rights, where he found him, or else paying the debt. The whole matter ought, therefore, to be left as it stands at law.
    It is not distinctly averred that complainant did not know of Baxter’s death, but rather stated as by way of inference. In such case, Smith’s act was a fraud, and deprived plaintiff of a valuable right, and he cannot be heard to take advantage of his fraud in a court of equity.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellant filed this bill in the superior court of chancery, to get rid of a forthcoming bond, which he had signed as surety for one Beck. The bill alleges that, after the judgment, but-before the execution and forfeiture of the bond, Baxter, the plaintiff in the case, had died. The question is, therefore, was this a void bond, having been given in favor of one who was not in being 1

The chancellor seems to have confined his investigation to the validity of the execution, and having concluded that it was not void, but conferred authority to levy, came also to the conclusion that the bond was valid. The question investigated seems to us to be immaterial, inasmuch as it may be true that the first .execution was regular, or at least not void, and still it may be also true that the bond was void. The technical definition of a bond shows that it is “ a deed in writing, whereby one man doth bind himself to another to pay a sum of money, or do some other thing. And he that makes this deed is called the obligor, and he to whom it is made is called the obligee.” Sheppard’s Touchstone, 367. We must reject part of this definition, or hold that this was not a valid bond. There was no obligee. As well might it have been made to a fictitious person, or the name of an obligee might as well have been omitted. After diligent search, we find no case in which a similar question has been raised.

The forfeiture of a forthcoming bond gives it the force and effect of a judgment, but a judgment in favor of a party who had died, would be void; can a statutory judgment be any better? It may be asked, how should a bond be given in such cases? Assuming that none could be given, it is not for us to prescribe a remedy. But perhaps the bond should have been given in the name of the administrator. If by this defective bond, the debt should be lost, the case would be a hard one; and yet the administrator is not blameless. It was his business to see that a good bond had been given. We think, therefore, that the demurrer should have been disallowed, and the party put upon his answer, when, if the facts are sustained, the complainant may be entitled to the relief sought.  