Franklin County MsArchives Court.....Witherspoon, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 12:07 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Witherspoon v. Spring.

pages 60-61

After a forthcoming bond taken and forfeited, a second execution, levy, and 
bond, on the same judgment, are absolutely void.

ERROR to the circuit court of Franklin county.

Stuart for the plaintiff in error, cited Rev. Code, 203, sect. 28; acts of 
l827, 96-7.

Mr. Justice PRAY delivered the opinion of the court.

This cause came up from the circuit court of the county of Franklin.

The material facts of the case are as follows:

At the April term of said court, in the year 1833, the defendant in error 
obtained a judgment against the plaintiff for the sum of 245 dollars, 53 1/4 
cents. On the 23d of August, of the same year, he sued out a writ of fieri 
facias upon the judgment so rendered, returnable to the ensuing term of 
October. This writ was duly levied on the property of this plaintiff, a 
forthcoming bond, taken by the sheriff and forfeited.

On the 3d of September, 1834, a second writ of fieri facias was sued upon the 
same judgment, which was also levied on the property of the plaintiff, and a 
forthcoming bond taken. At the term of October, in the same year, the return 
term of the last mentioned execution, motion was made to quash the same, 
together with the levy, and bond made and taken in pursuance thereof for the 
following reason: 

"That the judgment upon which said execution was awarded, had been fully 
satisfied by the levy of a former execution, and the taking and forfeiture of 
a forthcoming bond."

This reason, although fully established in the court below, was deemed 
insufficient to sustain the motion, which was accordingly overruled, and the 
cause brought to this court by writ of error.

It has long been the settled law of this court, that the levy of a writ of 
fieri facias, followed by the taking and forfeiture of a forthcoming bond, is 
a full satisfaction of the judgment upon which the execution was issued.

Ihis law being applied to the case before us, it will appear that the second 
execution, levy and bond were absolutely void.

The judgment of the court below must, therefore, be reversed, and the motion 
to quash sustained.

Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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