Wheeler v. Wooten

Bell, J. The court below did not err in overruling the motion to quash the bond. After the bond had served its purpose of securing to the obligor a trial ofithe right of property, after judgment against him upon the issue involved in that suit, and after failure to return the property to the custody of the sheriff, in conformity with the statute, it was not competent for him to move' the quashal of his own bond and thus escape the consequences of Ms failure to surrender the property. If the party could be heard to-allege any equitable defence against the execution which the' statute awarded - upon his failure to return the property, that could not be done by a simple motion; but such matters ought to be fully set forth in a bill for injunction. In this matter the plaintiff in error has proceeded by injunction as well as by the present motion, and in disposing of this case,., we do so without [259] prejudice to the injunction suit, which will be held under advisement until the next term. The judgment of the court below in this case is affirmed. Judgment affirmed.