
    Barker et al. v. The Planters’ Bank.
    The statute does not require an endorsement of forfeiture upon the forthcoming bond. It is not necessary that the forthcoming bond should recite a judgment: it will be sufficient if the'execution, and the sum for which it issued, be stated.
    A judgment on a forthcoming bond is a judgment in law, and no judicial judgment is necessary.
    IN ERROR from the circuit court of the county of Jefferson.
    At the June term, 1837, of the circuit court of Jefferson county, the Planters’ Bank recovered a judgment against Samuel Barker for the sum of @1385 26. Execution was issued; on which the sheriff returned, “Bond taken and forfeited.” The bond was dated 15th of November, 1837, and recited that an execution had issued against Barker for the sum of $1401.65, with interest on @1385 26 from the 14th day of June, 1837, and had been levied on five good negro slaves, and was conditioned for their delivery on the day of sale.
    An execution was afterwards sued out against Barker and D. W. Mitchell, the other obligor in the bond.- At June term, 1839, the plaintiff's in error moved to quash the bond and execution. The court overruled the motion, and the case was brought to this court by writ of error. • ■
    It was assigned for error:
    1st. That there was no return on the bond or execution, showing that it was forfeited, so as to give it the effect of a judgment. There was no return on the bond. On the execution was this endorsement by the sheriff: “ Bond taken and forfeited.”
    2d. It was assigned, that the bond was in a different name from the execution. The éxecution was in the name of the President, Directors & Co. of the Planters’-, instead of the Planters’ Bank, which is a part of the corporate style of said company. In another recital in the execution, the corporation was styled, “ The Planters’ Bank.” The bond was also payable to “ The Planters’ Bank.” .,j
    3d assignment: there was no judicial record of any judgment to support the execution.
    Other points were made in the argument, but are not pertinent to the decision. ^
    
    Sanders, for plaintiff in error.
    There is no such bank or corporation known to the laws of Mississippi 5 and although the court may be fully impressed with the conviction of the meaning of the contraction of the name given, the law will not tolerate such looseness in its process, or judgments, or executions. The execution must follow the judgment; and if the bond is a judgment, this execution does not follow it. The recitals of the bond are also defective. The execution does not show that any levy was made; without which the bond has no validity. And the recital that five negroes, without description, or suggesting whose property taken, is too loose a mode of executing process to merit the countenance and indulgence of this court, as it is clearly a violation of law.
    Montgomery, for defendant in error.
    The substance of all these assignments of error is, that the court below erred in overruling the motion to quash the bond, &c.
    To determine the correctness of the decision, let us examine separately the reasons assigned for quashing them.
    1st. There is no judgment or execution authorizing the taking of said bond, nor such as is described in the condition thereof. ■
    The statute of 1827, which authorizes the sheriff to take a bond for the forthcoming of personal property at the day ap pointed for the sale thereof, provides that if such bond is forfeited, the sheriff shall return it to the court to which such execution is returnable, and thereupon it shall have the force and effect of a judgment. See acts 1827. Taking it for granted, for the present, that this law is constitutional, let us inquire by what authority the circuit court would inquire whether the bond conformed to the original proceedings on which it was based, or not, at a term subsequent to the term at which it acquired the force and effect of a judgment. See 2 Pirtle’s Digest, 335-6. Hardin, 516. 7 'Monroe, 260. 2 Littell’s Rep. 126.
    It is a well settled rule, that the same court cannot revise a judgment on its merits, or even grant a new trial at a subsequent term. 3 Black. Com. 406, n. 4.
    The objection taken by this assignment goes to the'merits of the action. The original judgment, the execution and levy, and permission to the defendant to retain possession of the property levied on, constitute the consideration of the bond; and all these considerations being recited in the bond, the parties would, by the common law, be estopped from proving that no such consideration existed. . And out statute, allowing the consideration of bonds and .other specialties to be inquired into, cannot apply to a forthcoming bond; because a different rule is established by the law itself, which prescribes that the return of the bond forfeited shall have the force • and effect of a judgment, which precludes the idea of any inquiry into the consideration. 3 Monroe, 176. 4 Yerger, 117. 9 Cranch, 28. 5 Yerger, 288,'
    It is true, the statute seems to contemplate that the courts would examine into the regularity of the bonds at a proper time, as it gives the plaintiff a remedy in case the bond be quashed as faulty.. But as no mode of attacking the validity of the bond is prescribed by the statute, we must look elsewhere for the powers of the court to interfere. And we can find no precedent to authorize this interference at any other time than the return term of the execution; at which term the court will interfere upon the same principle it supervises judgments of the term, either to set them aside, or amend them, according to circumstances. 3 Black. Com. 396, for definition of a judgment.
    The true mode of testing a question is, to suppose an action of debt had been brought on the bond, and the defendants had suffered judgment by default to go against them: could they be permitted to come into court at a subsequent térm, and move to quash an execution on such judgment, and set aside the judgment, on the ground that the bond was without consideration and void ? Unquestionably not. Even without ■ the aid of the statute of jeofails, the judgment would be conclusive, and beyond the reach of the tribunal in which it was rendered. To give full effect to the statute, which declares the bond itself, when forfeited and returned to the court, shall have the force and effect of a judgment, wo must suppose or conceive a judgment rendered on such bond, according to the regular mode of proceeding, and give the same force and effect to such ideal judgment, as a real judgment clothed with all the solemnities of judicial proceedings. It is not the bond, but this ideal judgment, to which the court gives effect. 3 Black. Com. 407. 1 Coke Lit. 39a, 168a, 1716, 172a. 3 Howard’s Rep. 25. 1 do. 64, 98.
    2d assignment: because there is no return made by the sheriff of Jefferson county of the forfeiture of said bond, on the same, as required by law.
    Whether this is intended as an objection to the act of the sheriff, in not making his return on the bond itself, or to the sufficiency of the return on the execution, is somewhat uncertain. If to the former, we would merely remark, that the execution was the proper instrument on which the sheriff should certify to the court what he had done in obedience to its mandate; but he might have made it on any other paper, and if made on the bond it would have been good. But the law requires the bond to be returned to the court with the execution; and of course the sheriff’s return must relate to the execution in obedience to which he acted.' Petersdorf’s Abrid. 410. 2 Marshall, 196. 1 J. J. Marshall, 350. 2 do. 481,. As to the right to amend the return. 2 Howard’s Rep. 684. 3 do. 35. 2 Littell’s Rep. 396.
    The return on the writ specifies “ bond taken and forfeited.” This is very brief, and nearly unmeaning when taken alone, but when taken in connection with the bond which is returned with the execution, and which recites the execution, the levy, and all other important circumstances, it is identified with the execution, constitutes a part of the return, and shows in connection with the writ and endorsement, “ bond taken and forfeited,” all that is necessary to give it the force and effect of a judgment. Where is the necessity of a full statement by the sheriff of all his acts, in obedience to the commands of the execution, if the defendant’s own recitals in the bond fully set them out. The whole object of the return is to inform the court how the writ has been executed. Cannot that as well be seen by the recitals of the bond as by the statement of the sheriff; and is it not as obligatory on the sheriff, who returns the bond as part of his service of the writ; and the defendant who acknowledges the specific manner in which the writ was executed, by his bond, as if the sheriff had entered a formal certificate of all the circumstances, as they transpired, on the execution? 1 Bibb, 282.
    
    Sd assignment: Because the said bond does not show that the execution upon which it was taken, issued upon any judgment of any court whatever.
    If.we have not succeeded in establishing the position, that these objections cannot be taken after the term at which the bond is returned forfeited, we would remark, in answer to this objection, that it is only necessary to recite the execution, for that is the authority under which the sheriff who takes the bond acts; and he has nothing to do with the original judgment on which it is founded.
    4th assignment: Because there is no judicial record of any judgment authorizing the issuing of said execution now moved to be quashed, because the sheriff is a ministerial officer, and cannot exercise judicial functions; and no act or return of his, can give to such bond the force and effect of a judgment. Such attempt is in violation of the constitution of the state of Mississippi; and because the bond is otherwise defective, informal and illegal. Upon this point, see Peck’s Rep. 414. Martin & Yerger’s Rep. 182. 4 Wheaton, 240. 12 Peters’ Rep. 69, 70. 1 Littel, 16, 17. 5 Monroe, 98. 2 Cook, 391.
    As to the want of a formal record, we conceive the law,authorizing these bonds to be taken, does not require a formal record of a judgment to be made and kept as in ordinary judgments; nor can such be presumed from a fair construction of the law, as it would have been full as easy to require a formal judgment to be rendered up on such bonds, and a record kept, as to prescribe that the bond should have the force and effect of a judgment. The law requires the judge’s imagination to invest the bond with all the'requisites of a perfect judgment; and when the bond is produced, we may properly say, in legal language, that it is a record of the judgment.
    The objection that the sheriff is a ministerial officer, and cannot exercise judicial functions, is not applicable to the case. The law does not require of the sheriff the exercise of any judicial function. He is only required to take the bond if tendered, and in case it is forfeited to return it with the execution. This return of the sheriff is a ministerial act, and does not partake more of a judicial character than a return on a capias ad res. that he had executed it. It requires as much judicial power to return a capias “ executed” as to return on an execution that a forthcoming bond had been taken and forfeited. In the case of the service and return of the capias, the court would render up a judgment in case no defence were made, without inquiring into the validity of the plaintiff’s demand. In the case of such return of an execution and bond the law silently renders a judgment by default, and the sheriff has no control over it. The court however, if applied to at the proper time, would arrest such judgment for good cause, and do what justice and the nature of the case required. The sheriff’s return does not give the bond the force and effect of a judgment, any more than his return on a capias gives a judgment by default; without which return, however, the judgment by default would be a nullity, or the bond would not have the force and effect of a judgment.
    We cannot conceive what provision of the constitution is violated by the proceeding under the forthcoming bond law. It cannot be that which provides for the right of trial by jury, for that provision only applies to such cases as were triable by jury by common law, or may be made so by statute. As well might we contend that judgments by default, or on demurrer, were definitions of this right of trial by jury. The right of trial by jury can only extend to the trial of issue of facts, and when no such issue is made there can be no jury.
    It cannot be, as it would seem from the statement in the assignment, that it is not a judicial act, because in contemplation of law it is a judicial act. The law which gives it the character of a judgment, in effect converts it into a judgment, and imposes on the court the necessity of treating it as a judgment of the court in which it is filed. It is not the constitution which requires a record of the judgments of the circuit court to be kept in a particular manner, or prescribes the formal or substantial requisites of a record of a judgment,,but the law; and undoubtedly, as the law could prescribe one form of reeord, it may another; and if the legislature thought fit to declare that a verdict should have the effect of a judgment, there could be no constitutional objection to the law.
    In many countries, judgments by default ar;e taken in the clerk’s office, and the court knows nothing of them; and indeed in our own the court never inquires into the nature or merits of the cause of action, but grants a judgment as a matter of course, where the defendant has been served with process and fails to plead. No person can doubt the legislature could, if they thought proper, have given all those powers to the clerk of the court, as there is no right of the defendant infringed. If they had any objection to a judgment the court was open to hear, them, and as, they made no defence it must be considered as a confession of the justice of the demand, and a consent to the rendition of judgment. And although the court might not have been in session, the defendant’s remedy was not affected, as he could move 'for leave to quash the bond, or for leave to put in any legal defence by giving .notice to the plaintiff, and entering his motion on the docket, which would suspend the legal operation of the bond until the motion could be heard. - .
    5th assignment. Because there is no judgment to sustain said execution. Because the parties are different from those recited in the condition of the bond, on which it purports to issue: and because it is otherwise informal, insufficient, and illegal.
    As to the first branch of this,assignment, we conceive we have, shown that the bond was a legaL judgment. It is too late to deny to the legislature the right of creating a fiction of law, and giving it all the importance, force, and efficacy of a real proceeding. The courts in furtherance of justice have exercised the power from time immemorial, without ever claiming the right to make a law to suit the case in which they adopt the fiction; unquestionably the legislature, with the power to make a law, may authorize the adoption of a fiction which will subserve the same purpose. 3 Bl. Com. 42-3, 107. The objection that the parties to the execution are different from those named in the condition of the bond, will be found on reference to the bonds and executions not to be true, unless the court should consider that the erroneous recital in the execution on the bond, that the plaintiff had recovered a judgment against Samuel Barker, James Allison and A. S. Campbell, as changing the parties. This, we admit, was an awkward blunder of the clerk, but it cannot be considered a ground to quash the execution, because it could have been amended if deemed of sufficient importance. The bond was a proper basis for the amendment, and being a mere recital which was unnecessary at any rate, (for it is not necessary to recite the judgment in the execution,) the court would have permitted an amendment, even after it was executed: but this objection only applies, to one of the cases.
    Decisions have frequently been made on all the points in these cases in the states of Virginia, Kentucky, and Tennessee, in which states there are similar statutes.
    Boyd, on the same side.
   Mr. Justice Tkottek

delivered the opinion of the court.

It is insisted that the court below should have sustained the motion, on the following grounds: 1st. There was no return on the bond or execution, showing that it was forfeited, so as to give it. the effect of a judgment. In considering this objection it may be remarked, that the statute does not require any endorsement of its forfeiture upon the bond itself. It simply provides that if it be forfeited, it shall be returned to court with the execution. The sheriff, or other officer who receives the execution, is required to return it to the proper court, and to note on it how he has executed the same. The return is prima facie evidence of the facts stated in it. By comparing the date of the bond, and its recitals with the execution, there is no room to doubt that the bond on which the execution issued, is the one referred to in the sheriff’s return. That being ascertained, the return gives it the force of a judgment, until it is disproved in the regular way.

2d. It is next urged that the bond is in a different name from the execution. The execution is in the name of the President, Directors & Co. of the Planters’ — omitting the word « Bank.” This is evidently a mere clerical error, as is evidenced by a recital in another part of the execution, in which the plaintiffs are styled the Planters’ Bank.” The bond is payable ft the « Planters’ Bank,” so that in point of fact, the record, taken together, will not sustain the objection.

3d. It is next objected that the bond does not recite any judgment. This was not necessary, as we have seen that it is only necessary to recite the execution, and the sum for which it issued.

4th. It is said there is no judicial record of any judgment to support the execution. To this it may be answered, that it is not necessary. The law gives the judgment, and it is enrolled in the bond after it becomes forfeited.'

5th. It is said the parties named in the execution do not correspond to' those named in the bond. This objection is the same as that .stated in the second ground, which has been sufficiently noticed. We can see no reason for reversing the judgment of the court below.

Judgment affirmed.  