The Chancellor.
This case was submitted upon a general demurrer to the bill. The complainants show that they became the sureties of M. D. Patton, deceased, on a forthcoming bond, taken under a judgment against him, in favor of the Bank of the United States. They allege that, at the time of signing and delivering the bond, the same was blank in its most material parts; that there was no designation of any property to be delivered, and that the blank, in this particular, was afterwards filled up, without their knowledge or consent, with the names of different slaves, which did not belong to the .said Patton, and had no real existence.
It appears that a motion was subsequently made, in the circuit court of Adams county, to quash the bond aforesaid for supposed defects, apparent upon the face of it. That motion was overruled, and an appeal was taken to the High Court of Errors, where the judgment below was affirmed, and this' proceeding is insisted upon by the defendants as a bar to any relief in this court, upon the ground that the complainants should have made the defence in the circuit court which they are attempting to set up here.
I have heretofore held, although the power to declare a bond void might be ozre of which a court of law has concurrent jurisdiction, where the bond is sought to be enforced at law, yet, as from the very nature of the proceeding on a forthcoming bond, the obligors could have no day in that court to question its validity, that this, of itself, was sufficient to give this court jurisdiction, even if it did not otherwise exist. Such bond is taken by the sheriff charged with the execution, and the condition is that the obligors will, on the day specified for that purpose, deliver the property, levied on by the execution, to the officer, to be sold. If default is made, the statute declares that the bond shall have “the force and effect of a judgment, and thereupon an execution may issue against all the obligors.” This judgment attaches, in vacation, by the silent operation of law, without the active sanction of any judicial functionary, and becomes complete and perfect the [379]*379moment that a forfeiture of the condition of the bond takes place. If, then, the forfeiture of the bond has, ipso facto, “the force and effect of a judgment,” and is then returned into the court from which the execution emanated, upon what rule of pleading or practice can the obligors be heard to object, in that court, that the bond is not their act and deed, because it was signed and- delivered in blank? That question was foreclosed the moment the judgment took effect. The bond goes into that court clothed with all the legal attributes of a judgment, and is returned there simply that an execution may issue upon it. All inquiry into the foundation of this statutory judgment would seem to be as effectually foreclosed in that tribunal as if the judgment had been formally rendered in that court; for the legislature has declared that it shall have “the same force and effect.”
It is true that the court may entertain a motion to quash for errors of law apparent in the bond, but this is nothing more than the supervisory power it may exercise over its own judgment, by way of motion in arrest thereof.
What is “the force and effect” of a judgment, upon .common law principles? One of its most obvious and salutary effects is, to preclude all subsequent inquiry into the merits or validity of the foundation of the action upon which it was rendered. It would not be pretended, where the court itself rendered a judgment upon a common law or other bond, that, when the plaintiff calls for his execution, the defendant may interpose, as an objection thereto, a plea of non est factum to the bond, and ask for an issue to try that fact; and yet it would be difficult to find any distinction in principle between the two kinds of judgments.
The High Court of Errors have repeatedly recognized a forfeited forthcoming bond as having all the incidents and effect of a technical judgment. Indeed, I understand the cases to accord with the views I have here expressed, and to hold that you cannot at law go behind the judgment on the bond for the purpose of inquiring into its validitjr. The cases of Weathersby v. Proby, 1 How. 98, and the U. S. Bank v. Patton, 5 idem, 238, doubtless hold that doctrine. My attention, however, has been called to a recent decision of that court, in which the right of the circuit court to cause an issue to be made up for the trial of the validity [380]*380of the bond after it had become a judgment, seems to be sanctioned. Such is the case of Williams v. Crutcher, 5 How. 71.
It would, perhaps, be difficult to reconcile the principles of that decision with the previous adjudications of the same court; but that is not my province. It becomes the law to this court, and it is my duty to follow it. According to that case, the circuit court has concurrent jurisdiction with this court, for the purpose of trying the validity of the bond upon grounds arising anterior to its forfeiture. It follows upon familiar principles, that which ever court first takes jurisdiction, must finally decide the case. In Franco v. Bolton, 3 Ves. 368, a bill was filed to have a bond delivered up, after there had been a judgment at law upon it, on the ground that the bond was void. The bill was dismissed upon demurrer, the court held that it was competent for the complainant to have pleaded the same matter at law, and have had the bond declared null and void. Although the authority of that case seems to have been questioned by Lord Eldon in the case of Bromley v. Holland, 7 Ves. 3, yet I do not find that it has been overruled. The case of Gray v. Mathias, 5 Ves. 286, seems to be a recognition of the same doctrine. As then the complainants’ while they were urging their motion to quash this bond in the circuit court, might also have insisted upon its invalidity by reason of its having been delivered in blank, I must hold them precluded from relief here as to that ground, as it cannot be doubted that they were then cognizant of its existence; and they show no sufficient excuse why they did not make it. The omission of their agent to call the attention of the counsel who conducted the motion, to that point, constitutes no excuse:
There is another ground, however, upon which I think the demurrer must be overruled. It is distinctly alleged in the bill, that the bond was filled up with the name of slaves, which did not belong to the defendant in execution; and which had a mere ideal existence, and that the complainants did not know this fact until after their motion to quash, nor until a short time before filing this bill. If the sheriff by combination with the defendant or plaintiff in execution, and without the knowledge of the sureties, inserted in the bond a designation of property which did not belong to the defendant, or which had only a fictitious existence, and conse[381]*381quently could not be delivered, in discharge of the condition of the bond, it was a fraud upon the sureties which entitles them to relief in this court. Such a bond would be wholly without consideration as to the sureties, and would raise no obligation on their part, legal or moral, to pay it. The validity of such a bond, as to the sureties, depends upon there having been a substantial levy made upon actual, tangible property of the defendant in execution, which was restored to him upon the condition that it should be re-delivered on a specified day, to be sold.
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The Chancellor.
This case was submitted upon a general demurrer to the bill. The complainants show that they became the sureties of M. D. Patton, deceased, on a forthcoming bond, taken under a judgment against him, in favor of the Bank of the United States. They allege that, at the time of signing and delivering the bond, the same was blank in its most material parts; that there was no designation of any property to be delivered, and that the blank, in this particular, was afterwards filled up, without their knowledge or consent, with the names of different slaves, which did not belong to the .said Patton, and had no real existence.
It appears that a motion was subsequently made, in the circuit court of Adams county, to quash the bond aforesaid for supposed defects, apparent upon the face of it. That motion was overruled, and an appeal was taken to the High Court of Errors, where the judgment below was affirmed, and this' proceeding is insisted upon by the defendants as a bar to any relief in this court, upon the ground that the complainants should have made the defence in the circuit court which they are attempting to set up here.
I have heretofore held, although the power to declare a bond void might be ozre of which a court of law has concurrent jurisdiction, where the bond is sought to be enforced at law, yet, as from the very nature of the proceeding on a forthcoming bond, the obligors could have no day in that court to question its validity, that this, of itself, was sufficient to give this court jurisdiction, even if it did not otherwise exist. Such bond is taken by the sheriff charged with the execution, and the condition is that the obligors will, on the day specified for that purpose, deliver the property, levied on by the execution, to the officer, to be sold. If default is made, the statute declares that the bond shall have “the force and effect of a judgment, and thereupon an execution may issue against all the obligors.” This judgment attaches, in vacation, by the silent operation of law, without the active sanction of any judicial functionary, and becomes complete and perfect the [379]*379moment that a forfeiture of the condition of the bond takes place. If, then, the forfeiture of the bond has, ipso facto, “the force and effect of a judgment,” and is then returned into the court from which the execution emanated, upon what rule of pleading or practice can the obligors be heard to object, in that court, that the bond is not their act and deed, because it was signed and- delivered in blank? That question was foreclosed the moment the judgment took effect. The bond goes into that court clothed with all the legal attributes of a judgment, and is returned there simply that an execution may issue upon it. All inquiry into the foundation of this statutory judgment would seem to be as effectually foreclosed in that tribunal as if the judgment had been formally rendered in that court; for the legislature has declared that it shall have “the same force and effect.”
It is true that the court may entertain a motion to quash for errors of law apparent in the bond, but this is nothing more than the supervisory power it may exercise over its own judgment, by way of motion in arrest thereof.
What is “the force and effect” of a judgment, upon .common law principles? One of its most obvious and salutary effects is, to preclude all subsequent inquiry into the merits or validity of the foundation of the action upon which it was rendered. It would not be pretended, where the court itself rendered a judgment upon a common law or other bond, that, when the plaintiff calls for his execution, the defendant may interpose, as an objection thereto, a plea of non est factum to the bond, and ask for an issue to try that fact; and yet it would be difficult to find any distinction in principle between the two kinds of judgments.
The High Court of Errors have repeatedly recognized a forfeited forthcoming bond as having all the incidents and effect of a technical judgment. Indeed, I understand the cases to accord with the views I have here expressed, and to hold that you cannot at law go behind the judgment on the bond for the purpose of inquiring into its validitjr. The cases of Weathersby v. Proby, 1 How. 98, and the U. S. Bank v. Patton, 5 idem, 238, doubtless hold that doctrine. My attention, however, has been called to a recent decision of that court, in which the right of the circuit court to cause an issue to be made up for the trial of the validity [380]*380of the bond after it had become a judgment, seems to be sanctioned. Such is the case of Williams v. Crutcher, 5 How. 71.
It would, perhaps, be difficult to reconcile the principles of that decision with the previous adjudications of the same court; but that is not my province. It becomes the law to this court, and it is my duty to follow it. According to that case, the circuit court has concurrent jurisdiction with this court, for the purpose of trying the validity of the bond upon grounds arising anterior to its forfeiture. It follows upon familiar principles, that which ever court first takes jurisdiction, must finally decide the case. In Franco v. Bolton, 3 Ves. 368, a bill was filed to have a bond delivered up, after there had been a judgment at law upon it, on the ground that the bond was void. The bill was dismissed upon demurrer, the court held that it was competent for the complainant to have pleaded the same matter at law, and have had the bond declared null and void. Although the authority of that case seems to have been questioned by Lord Eldon in the case of Bromley v. Holland, 7 Ves. 3, yet I do not find that it has been overruled. The case of Gray v. Mathias, 5 Ves. 286, seems to be a recognition of the same doctrine. As then the complainants’ while they were urging their motion to quash this bond in the circuit court, might also have insisted upon its invalidity by reason of its having been delivered in blank, I must hold them precluded from relief here as to that ground, as it cannot be doubted that they were then cognizant of its existence; and they show no sufficient excuse why they did not make it. The omission of their agent to call the attention of the counsel who conducted the motion, to that point, constitutes no excuse:
There is another ground, however, upon which I think the demurrer must be overruled. It is distinctly alleged in the bill, that the bond was filled up with the name of slaves, which did not belong to the defendant in execution; and which had a mere ideal existence, and that the complainants did not know this fact until after their motion to quash, nor until a short time before filing this bill. If the sheriff by combination with the defendant or plaintiff in execution, and without the knowledge of the sureties, inserted in the bond a designation of property which did not belong to the defendant, or which had only a fictitious existence, and conse[381]*381quently could not be delivered, in discharge of the condition of the bond, it was a fraud upon the sureties which entitles them to relief in this court. Such a bond would be wholly without consideration as to the sureties, and would raise no obligation on their part, legal or moral, to pay it. The validity of such a bond, as to the sureties, depends upon there having been a substantial levy made upon actual, tangible property of the defendant in execution, which was restored to him upon the condition that it should be re-delivered on a specified day, to be sold. The very terms and purposes of the bond distinctly admit the right to deliver the property designated in discharge of such bond; and that right exists in favor of the surety, if he can peaceably get possession-of the property. But how is the property to be delivered, if it does not belong to the defendant in execution, or has only an imaginary existence? Suppose the bond were sued on as a common law bond, the breach assigned, would necessarily be the non-delivery of the property; can it be doubted that the sureties might plead thereto the non-existence of the property, and the fraud practiced upon them in that particular ? I think not. In the case of Lusk v. Ramsey, 3 Munf. Rep. 417, the court decreed a perpetual injunction, at the instance of a surety on a forthcoming bond, upon the ground that afterthe execution of the bond the property was seized upon by virtue of an older execution, and he thus deprived of the right to deliver it.
The principles of that case are every way applicable to the one before me. It recognises the position that the surety on the bond should not be made liable, unless the property was liable to the execution. What injury has the plaintiff at law sustained, if it were not so liable? Which could not be the case if the property did not belong to the defendant, or had no real existence; it could place him in no worse situation. It was not the policy of the law to enable the creditor to entrap by this process, innocent third persons, into a liability for his insolvent debtor. The spirit of the law contemplates that the creditor shall recover nothing more from the sureties, than he might have recovered from the principal debt- or, if he had been allowed to proceed with his levy to a sale of his property. The obligation of the sureties is not that they will pay the debt; but that the property of the defendant in execution [382]*382upon which a levy has been made, shall be forthcoming for that purpose. In the case of Kennedy v. Coleman, 2 Littell’s Rep. 7-8, in a proceeding against a sheriff, for failing to return an execution; although at law he was liable for the amount of the execution, yet it was held, that in equity, he might show that the plaintiff could not have recovered any thing from the defendant in execution.
I see no reason why the same measure of justice should not be extended to the sureties, under the circumstances stated in this bill. The case is altogether analogous in principle. I am accordingly of opinion that the demurrer be overruled, and that the defendant have leave to answer.