Kerningham, Appellant, v. Scanland, 6 Howard 540

Opinion of the court by Mr. Justice Turner. This appeal is .taken from the judgment of the circuit court, rendered at May term, 1841, quashing a forthcoming bond and execution which was issued and made returnable to the November term, 1838, and on which execution issued to May term, 1841, and quashing this last execution also. .The original execution was against Adam Mitchell, and Scanland became his security in the forthcoming bond which the sheriff took under said execution. The last execution was levied on Mitchell’s property. Scanland, the security, moved to quash.

Kerningham, the plaintiff in'the suit below, and plaintiff in error, relies on two grounds to reverse the judgment. First — because it was too late at May term, 1841, to entertain a motion to quash an execution and bond returnable to November term, 1838, several terms having intervened. Second — because the last execution having been levied on the property of the principal, the security had no power or right to interfere. On the first ground we have no doubt. The court erred in going back and quashing process to a preceding term, as has been often decided by this court.

As to the second ground, it seems equally clear. Scanland, the security, was not injured. The property of his principal, Mitchell, was levied on; and, for aught that appears, that levy was sufficient to satisfy the judgment. See 5 How. 237, 239. The judgment of the court below is reversed.