Carleton et al. v. Osgood et al., 6 Howard 285

Mr. Chief Justice Sharkey stated the case, and delivered the opinion of the court. The ground of the motion is that the lien of the original judgment in favor of Nelson Carleton & Co. was extinguished or raised by the forfeiture of the bond, and that the bond taken in the case of Osgood & Co. having been quashed, they were restored to their lien under the original judgment, which was two days younger than that of Nelson Carleton & Co. That the lien of Nelson Carleton & Co. only commenced with the forfeiture of the bond.

The property was sold under both executions, and it is therefore a proper case for the interposition of the court. The right of Osgood & Co. is resisted mainly on the ground that the bond taken under the execution of Nelson Carleton & Co. was absolutely void, because the name of the security was fictitious; and also on the ground that the bond never was returned forfeited, and it is also contended that the forfeiture of such a bond does not raise the lien of the judgment.

The sheriff when he levies an execution on personal property is authorized to let it remain with the defendant, on his entering into bond with sufficient security for its delivery on the day of sale; but the sheriff is not authorized in such cases to take a bond without security. It is only on the condition of getting security that the statute authorizes him to take a bond. It is true, that if the security be insufficient in point of ability, the sheriff may be substituted; this is a privilege to the plaintiff, and it does not follow that the sheriff may take a bond without security.

The bond is intended for the safety of the plaintiff, and when forfeited has the force and effect of a judgment, by which the security becomes also liable on a new judgment with the other defendants, and a lien is also given on his property. But if the bond be taken without security, what does the plaintiff gain by the forfeiture? The object of the law is thereby defeated, and a fraud committed on the plaintiff. This, as a forthcoming bond under the statute was void, for want of authority in the sheriff to take it.

The sheriff when he made the levy could not legally leave the property with the defendant, unless on the terms prescribed in the statute; and if he did so, the plaintiff’s rights could not thereby be defeated. On a bond of this description there can be no necessity for driving the plaintiff to his motion to quash it; he may treat it as a nullity. Surely he may disregard a bond signed by the defendants alone without any security, and a fictitious name cannot change his right. In this instance it was disregarded, and execution taken out under the original judgment.

His original judgment is two days older than that of Osgood, and as the lien has not been interrupted, it is entitled to prior satisfaction; for which reason the judgment must be reversed, and the sheriff ordered to appropriate the money in his hands, made by a sale of property under these executions, first to the satisfaction of that in favor of the plaintiffs in error.