Shaw v. McCullough

3 W. Va. 260

• Court: West Virginia Supreme Court
• Decided: January 15, 1869
• Status: Published

Opinion

BERKSHIRE, J.

The judgment on the forthcoming bond in this case was resisted by the obligors therein, solely on the alleged invalidity of the levy of the execution upon which the bond was taken, and the only defense made was a motion to quash the levy of the execution, which levy, it was insisted, was in fact made after the return day of 'said execution.

The condition of the bond recites in substance that a writ oí fieri facias had issued from the clerk’s office of the circuit court of Mason county upon a judgment in favor of the defendant in error against the plaintiffs in error, S. G. Shaw and two others named therein, which writ was directed to the sheriff of Mason County, and that C. Shrewsbury, slier-iff of said county, had taken certain property therein described, belonging to said Shaw, to satisfy the said execution, &c.

The obligors having voluntarily executed the bond, I think they are precluded and estopped from all inquiry as to the regularity and validity of the levy of the execution upon which it was taken, and that the circuit court did not erf in rendering the judgment complained of. Downman, ex’or vs. Downman, 2 Call, 426; Carper and others vs. McDowell, 5 Grat., 212; Cox and others vs. Thomas’ adm’rs, 9 Grat., 312; Cecil vs. Everly and others, 10 Grat., 198; 1 Greenl. Ev., sections 22, 26; 4 Kent, 261, note.

I am of opinion to affirm the judgment, with costs and damages.

The other judges concurred.

Judgment aeeirmed.