Edward Flowers v. Sarah Fletcher, 1 Sneed 225

It does not appear from the officer’s return, nor otherwise in the record, that the forthcoming bond had been forfeited; on the contrary, it appears from the return made on the execution, that further proceedings had been stayed by a supersedeas. In the case where an execution has been levied, or even the money made, but not paid to the plaintiff, if the defendant obtains an injunction, the property is to be restored or the money returned to the defendant by the'sheriff.

If, in this case, the sheriff had retained the property on which he had levied the execution instead of taking a bond for its security for its forthcoming at the day of sale, it is presumed that he should have restored it to the defendant when he produced the sujDersedeas. Again, if the property had been delivered'to the sheriff on the day of sale, agreeably to the condition of the bond, he had no authority to sell or retain it, and therefore it was unnecessary to deliver it.

Wherefore, it is adjudged and ordered, that the said forthcoming bond, and the execution issued thereon, be quashed with costs; the plaintiff in the inferior court is to be at liberty to sue out an execution on his original judgment, which is ordered to be certified to the circuit court of G-arrard county.