
    Head et al. v. Beaty.
    The defendant upon whom the execution is levied, may give a forthcoming bond without the concurrence of his co-defendants in the bond.
    IN ERROR from the circuit court of Yazoo county.
    In February, 1838, Arthur Beaty recovered a judgment in the circuit court of Yazoo county against John R. Head as principal debtor and Y. M. Sublett, John C. Turner, and Alexander Smith, as his sureties. Execution was issued and levied upon certain slaves as the property of Head, who gave a forthcoming bond which was forfeited. Execution was afterwards issued on the bond against the obligors thereon. None of the defendants in the original judgment united in the bond, save Head. At the June term, 1839, a motion was made to quash the bond and execution on the ground that all the defendants to the original judgment did not sign it; and the court sustained the motion.'
    G. S. Yerger, for plaintiff in error.
    It would be a strained and absurd construction of the statute, and would be defeating the object and intention of the legislature, to say that all must join in the bond.
    But the act, (Revised Code, 203,) makes the case very clear. It says, “it shall be the duty of the officer serving the execution, if the person whose property is levied on, will give sufficient security, to take a bond from such debtor and securities, payable, &c. &c. And if the owner or defendant in execution shall fail to deliver, &c., then, &c. And if the bond is forfeited, execution is to issue against the obligors therein, &c.” The act is imperative; the sheriff has no discretion; if the person whose property is levied on will give security, the sheriff must take the bond, ft is the person whose property is levied on that has the privilege. The sheriff cannot say I will not take it unless all join, because the law says he shall take it if the person whose property is levied on asks it. The law intended to give the person whose property was levied on, the privilege of retaining it in his'possession until the sale day, if* he will give security then to. have it forthcoming. This is>his right, and it cannot be taken from him, because a co-defendant refuses to join. .. ." - ' •
    ' • The statute is so plain, that argument would áeem useless. This seems to be the construction put upon the Tennessee and Virginia acts, which are like ours. Camp v. Lair'd, 8 Verger’s .Rep. 246. Langford v. Perrin, 5 LeiglPs Rep. 556-56. , ‘ : <
    The circuit judge-decided the case upon the erroneous’application of a clear principle of law. He said the, execution must conform to-the judgment. And if the judgment ¡was against three, the execution must be against all, and therefore he thought as the execution must isSue against all, all must join.- •; • ;
    It is true the execution must" issue against - ail, .and hbre it did issue against all in the original judgment, but it.does not follow because it must issue against all, that it'must be levied on the property of all; it may be levied on the property of one only, and in- all cases, when as in this, case he is the principal debtor, it should be levied on his property, and when so levied, he is entitled to retain possession, upon executing the bond.- See 2 Tuck er’s Commentaries, 360-61, &c. as to the object of the legislature in authorizing forthcoming bonds; the whole of which will be defeated, by the construction contended fop ‘' - 1
    Miles, for defendant in error.
    The only, point in controversy is, whether the court below erréd in quashing the forthcoming bond. The well settled principle of law is, that unless an execution corresponds accurately with the judgment from-which if emánates' 'in .all respects, it is liable to be set aside or quashed, on motion. It must with the most rigid strictness agree with-the judgment in amount; in the names of the parties, plaintiffs and .defendants,'and in-all other material points. -Bac. Abr. Tif. Execution. ' Tidd’s Practice, Tit. Execution and Variance: Tucker’s Com.- same Tit. Execution.
    The doctrine is laid down by Mr. Tucker in his Corhmentaries, to be the samp in relation’to forthcoming or delivery bonds. If such bonds are forfeitéd they are a completé • satisfaction of the original judgment until set aside ; and, hence the necessity that the judgment on the bond should strictly agree with the original judgment. See 3 Tucker’s Com. Title Forthcoming Bond.
    ■If the law as laid down by Mr. 'Tucker, be'correct, there is no doubt that the -fact of V. M. Sublett’s not being, a party to the judgment on the bond, would be such a variance,as would entitle the plaintiff to his motion to quash. Then the case finally rests itself upon’this last point, whether the plaintiff having permitted one term of the court to pass, could apply at the nexffsucceeding term to quash the forthcoming bond.. We clearly think he might. The principle that an execution is an “entire thing,” is too familiar to discuss j every tyro in the profession is acquainted with it. This being admitted, and it will not certainly be denied,'it is competent for the -plaintiff at any time before a return of execution satisfied, to set it aside for sufficient cause. If this be not the law, at what time will yóu undertake to tell the plaintiff he must set aside-erroneous executions? What length of time shall he have ? Will the court- set up a moek statute of lifuitations on this subject, without statute laws or reported precedents ? If the process of execution be an “entire thing,” will not the court say that either plaintiff or defendant -may take advantage of any error or defect that has'made its way into the execution, at any point of time intermediate between its commencement and completion ? The cáse of Camp v. Laird has no application to this case.
    Wilkinson, on the same side.
   Mr.'Justice Thottee

delivered the opinion.of the court.

The, act of 1837 makes it the duty of the sheriff when he-levies an execution on slaves or personal property of any kind, if the person whose property is levied 'on will give sufficient security, to take a bond from such debtor and sureties payable to the creditor, &c. The language of this statute ys explicit. and peremptory in its directions to -the sheriff, to take the bond, if the person whose property is seized will give security! This lawiyas evidently designed for the relief.and indulgence of the debtor ■whose property, might be taken in execution. But if all the defendants in . the original judgment must, unite in the bond, it will happen in a majority, of cases perhaps that the salutary purposes for which it was designed will be entirely defeated. It is not difficult to imagine cases in which it will be impossible to procure all the judgment debtors .to the bond. In many instances they cannot be found, in others they may refuse. If the property of the principal debtor is seized,, his sureties may be unwilling to lose the benefit of that seizure. In such case, is the .debtor to be deprived of .the indulgence furnished him by-the law? If third persons,-known to the sheriff to be good, will become his sureties, it can surely be no prejudice to the creditor that they are substituted for the original surety. . It is well known that the law makes it the duty of the sheriff to levy -the execution first, upon the property of the principal debtor, and his only, a provision which was intended for the benefit of the sureties, but which must in many instances be entirely defeated under the construction of the act which is insisted on in this case. A levy, to ■ the amount of the execution satisfies it, and'discharges the original judgment. The remedy of the creditor after this has taken place is against the sheriff.- This is the well settled doctrine of the common law¿ The creditor’s security cannot surely be held to- be impaired or lessened, if, instead of forcing the property out of the possession of the debtor, he provides him with an. additional remedy upon a bond with good se'curities. In Virginia, under a statute similar to the act of this state, the right of any one of the defendants whose property may be taken in execution to give a 'bond, has not been questioned. In. the case of Langford v. Perrin, 5 Leigh’s Rep. 555, this right was fully recognized, and the questions discussed and decided- respected the effect of such procedure-’ upon the right of third persons. In Camp v. Laird, 6 Yerger, 248, the same construction of the statute is sanctioned. Indeed, it is difficult to conceive how -a different interpretation could ever have arisen. It is said in the argument of the counsel for the appellee, that the execution must pursue the original judgment. This is certainly, correct, and in this case the execution did issue against ail of the 'defendants in the original judgment. But it does hot hence follow, that it must be levied on the, property of all. On the contrary, the statute, requires the sheriff to levy on the property of the principal debtor, and when this is .done he clearly has the right, to give the bond authorized by the statute.

The judgment must be reversed and the -motion overruled.  