1. Green v. State, 58 Ala. 190; s. c., 29 Am. Rep. 739; Ford v. State, 53 Ala. 150; s. c., 2 Am. Cr. Rep, 161; Ellis v. State, 42 Ala. 525. See Frasher v. State, 3 Tex. App. 263; s. c., 30 Am. Rep. 131.

Fornication Laws and the Civil-rights Act. In Green v. State, supra, the court say: "The question this record presents is whether or not the State may make the marriage of a white person with a person of the negro race a punishable offence. The statute is as follows: 'If any white person and any negro, or the descendant of any negro to the third generation inclusive, though one ancestor of each generation was a white person, intermarry, or live in adultery or fornication, with each other, each of them must, on conviction, be imprisoned in the penitentary, or sentenced to hard labor for the county, for not less than two years nor more than seven years.' Sec. 4189 (3602) of the code of 1876. This statute was assailed, so far as it concerned the living in adultery or fornication' of a man and woman of the different races, in Ellis v. State, 42 Ala. 525, and Ford v. State, 53 Ala. 150. For the like offence between a man and woman of the same race, a penalty less severe was denounced. Sec. 4184 (3598). And this inequality of punishment was supposed to bring the section first quoted above into conflict with the Civil-rights Act' of Congress, enacted to prevent certain discriminations against persons of African descent, on account of race, color, or previous condition of servitude. But this court, in both the cases, held the law in question to be valid.

"In Burns v. State, 48 Ala. 195; s. c, 17 Am. Rep. 34, according to the fourth head-note, the decision in Ellis v. State, supra, was overruled. Burns, a justice of the peace, had, as such, performed the rites of matrimony between a white person and a negro, contrary to a statute; and having been convicted of and fined for the offence, our immediate predecessors reversed the judgment, holding that the section first above cited and that under which the conviction was had were in conflict with the act of Congress referred to, and therefore void. The argument in support of this decision was as follows: Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right

to make a contract as is enjoyed by white citizens means the right to make any contract which a white citizen may make. The law intended to destroy the distinction of race and color, in the respect of the rights secured by it.' And, again: 'One of the rights secured by citizenship, therefore, is that of suing any other citizen. The Civil-rights Act now confers this right upon a negro in express terms, as also the right to make and enforce contracts (neither of which was ever denied to a free person of any color, in the courts of this State), amongst which is that of marriage with any citizen capable of entering into that relation.'

"This seems to us a very narrow and illogical view of the subject. And it might perhaps be a sufficient answer to it to say:

What the law declares to be a punishable offence is marriage between a white person and a negro. And it no more tolerates it in one of the parties than the other-in a white person than in a negro or mulatto; and each of them is punishable for the offence prohibited, in precisely the same manner and to the same extent. There is no discrimination made in favor of the white person, either in the capacity to enter into such a relation, or in the penalty. Moreover, at the time of the passage of the so-called Civil-rights Act,' similar laws to those of Alabama existed against such intermarriages in several, perhaps in nearly all, of the Northern States whose representatives in Congress voted for that act; and as no mention was made in the act, or in any other act of Congress, of such intermarriages, the presumption is that it was not intended to secure to persons of the negro race any greater rights in those Northern States, or consequently in any other, than they already enjoyed in them. It is apparent, therefore, that the statute of Alabama is not in conflict with the act of Congress, if that be consistent, to the extent supposed, with the Constitution of the United States.

2. To forswear is not necessarily to commit perjury, for the oath may have been an extrajudicial one, or some other of the necessary elements of perjury may be wanting. To say, therefore, that another is forsworn is not actionable. To . make the word, or its equivalents, swear falsely," swear a lie," etc., actionable, it must be introduced by an averment and

A bond given under statute, but not following the words of the statute, is valid, unless the statute prescribes a form, and declares that all bonds not taken in the prescribed form shall be void. Grant 2. Brotherton, 7 Md. 458.

A delivery bond, although given by a party other than the defendant, and made payable to the officer instead of the plaintiff, or the plaintiff instead of the officer, is good as a common-law bond; although, not being in conformity with the statute, it would not authorize the statutory proceedings, and its forfeiture does not operate as a judgment. Waterman v. Ryan, 21 Mo. 108; Selmes v. Smith, 21 Mo. 526; Butler v. O'Brien, 5 Ala. 316; Goodrum v. Carroll, 2 Humph. (Tenn.) 490; s. c., 37 Am. Dec. 564; Carroll v. Field, 6 Yerg. (Tenn.) 305; Brum v. McDonald, 8 Yerg. (Tenn.) 158; s. c., 29 Am. Dec. 112; Thompson v. Wilson, I Blackf. (Ind.) 358; Parkinson v. Waldron, 7 Smed. & M. (Miss.) 187.

A forthcoming bond taken by the sheriff, without sureties thereto, if received by the plaintiff in the execution, is a good bond. Walker v. McDowell, 4 Smed. & M. (Miss.) 118.

And, as a rule, bonds which, because of any deficiency, fail to meet the requirements prescribed by the statutes, may be good common-law bonds if they embody the essentials required by the common law. Murfree on Sheriffs, § 649; Palmer v. Vance, 13 Cal. 553; Branch Bank at Mobile v. Darrington, 14 Ala. 192; Butler v. O'Brien, 5 Ala. 316; Meredith v. Richardson, 10 Ala. 826; Munter v. Reese, 61 Ala. 395.

Statutory Provisions-When Authorized in Ohio. — In Ohio, the taking of a delivery bond is authorized only for the security of the sheriff, when goods and chattels remain upon his hands unsold for want of bidders, or for want of time to advertise and sell, or "for any other reasonable cause." Murfree on Sheriffs, § 647; Rev. Stat. Ohio (1880), $ 5384. And where, upon a fi. fa., the sheriff levies upon chattels, and leaves them with the debtor, taking bond for their delivery, and the goods are not delivered a return of the facts does not excuse the sheriff from liability to the plaintiff upon amercement for the whole debt. worth v. Parsons, 6 Ohio, 450. Where the statute prescribes that If the debtor shall give sufficient security to the officer to have the goods . . . forthcoming at the day and place of sale, it shall be the duty of the officer to take a bond payable to the creditor," etc., it is not necessary that the debtor execute the

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bond. Love v. Smith, 4 Yerg. (Tenn.) 117. But where the statute only authorizes the party whose property is levied on, to execute a forthcoming or delivery bond, it is only to bonds so executed by such a party that it gives the force and effect of a judgment. Nabours v. Cocke, 24 Miss. 44.

The same general principles run through the statutes of the different States, in reference to delivery bonds; and the decisions construing the statutes of one State, are generally applicable to those of many other States. Murfree on Sheriffs, § 648.

Essentials to the Validity of Forthcoming Bonds-Recitals-Execution. — The service of the execution must be recited in the bond, which ought to show the names of the parties and the amount of the execution, and that the goods were permitted to remain in the possession of the owner or debtor. Lewis v. Thompson, 2 Hen. & M. (Va.) 100.

Practice. An execution issued on a forthcoming bond, which does not recite the parties against whom judgment was rendered, will be quashed. Moffitt v. Branch Bank of Mobile, 7 Ala. 593; Hubbard v. Taylor, I Wash. (Va.) 259. But it is not a fatal objection that it recites the execution as against two persons, when, in fact, it was against one alone,-Walker v. Shotwell, 13 Smed. & M. (Miss.), 544;—or that it fails to recite, where the execution is against more than one defendant, whose property was taken in execution,-Harpers v. Patton, I Leigh (Va.), 306. See also Jayne v. Dillon, 28 Miss. 283; Pugh v. Calloway, 10 Ohio St. 488: Roebuck v. Thornton, 19 Ga. 149. It need not contain the names of the parties at whose instance the executions levied on the property have issued,—Grady v. Threadgill, 13 Ired. (N. Car.) 228; Baker v. Planters Bank, 5 How. (Miss). 566;— nor the return of the execution, nor the certificate of service, nor the name of the person by whom it was served. Ambler v. McMechen, I Cranch (U. S.), 320.

In Mississippi, where the plaintiff in the execution dies after the issuance of the execution, and after his death the defendant executes a forthcoming bond in favor of the deceased plaintiff, such bond is void. Smith v. Montgomery, 11 Smed. & M. (Miss.) 284. But in Virginia. the bond is valid, and will support a judgment on motion by the administrator of the creditor. Entwistle v. Bussard, 2 Cranch (U. S.). 331. Upon principle, it would seem that if, as required in many of the States, the bond had been taken payable to the sheriff, it

would be valid notwithstanding the death of the plaintiff before its execution. Murfree on Sheriffs, § 648.

In Tennessee, the defendant need not join in the execution of the bond. Love v. Smith, 4 Yerg. (Tenn.) 117. But, in Mississippi, unless he join in it, it is not in conformity to the statute; and no execution emanating on it can bind the property of the obligors to the bond. Nabours v. Cocke, 24 Miss. 45.

In Louisiana, an interviewer, in whose possession, other than as owner, pledgee, or assignee, property has been judicially sequestered, has not the right in law to release said property on a forthcoming bond. Hardy v. Lemons, 36 La. Ann. 107.

In an attachment proceeding against property in the hands of a third person, who gives a forthcoming bond therefor, such person cannot, after final judgment and a return of nulla bona on the execution, interplead, and claim the property as his. McAlfatrick v. Macauley, 18 Mo. App. 102.

In Indiana, the statute contemplates the insertion in the delivery bond of a stipulation that the execution defendant may dispose of the property at private sale; but as the stipulation is for his benefit, if he execute the instrument without inserting it, it will be presumed that he waived it, and the bond will be valid without it. Paul v. Arnold, 12 Ind. 197; Patterson v. Brown, I Ind. 567.

Validity of the Bond.-But the bond must conform to the execution; and if it does not, it will be quashed. Lumford v. Richardson, 5 Ala. 618. But a small and unimportant variance will be disregarded. Anderson v. Rhea, 7 Ala. 104.

The validity of a forthcoming bond depends upon there having been a substantial levy made upon actual, tangible property of the defendant in the execution; and a surety on the bond is not liable when the property levied on and described in the bond is not liable to the execution. Long v. United States Bank, I Freem. Ch. (Miss.) 375. If it be signed in blank, and afterwards filled up by the sheriff without authority, it is void. Patterson v. Denton, 1 S. & M. Ch. (Miss.) 592; Long v. United States Bank, i Freem. Ch. (Miss.) 375. And a forthcoming bond signed by one surety, and delivered to the principal as an escrow until another surety signs, is void unless signed by the other surety. Sessions v. Jones, 6 How. (Miss.) 173. If the judgment upon which a forthcoming bond purports to be founded is void by reason of the want of jurisdiction of the court

over the subject-matter, or over the parties, the forthcoming bond, and the judgment consequent upon its forfeiture, are likewise void. Buckingham v. Bailey, 4 S. & M. (Miss.) 538; Ex parte Cheatham, 6 Ark. 531. It must not have been satisfied by a prior levy. Miller v. Ashton, 7 Blackí. (Ind.) 29. If the bond be taken for more than the sum due, if the plaintiff release the excess the bond will support a judgment. Scott v. Hornsby, 1 Call (Va.), 41; Beel v. Marr, 1 Call (Va.), 47.

Effects of the Bond-Estoppel of Defendant. A defendant is estopped from denying the admissions made in the condition of the bond, or of controverting their existence. Crisman v. Matthews, I Scam. (Ill.) 151; Mead v. Figh, 4 Ala. 279; Portis v. Parker, 8 Tex. 23. Nor can he dispute the sheriff's return. Love v. Smith, 4 Yerg. (Tenn.) 117.

A third party executing a forthcoming bond for property levied on, reciting it being the property of the execution defendant, cannot, without proof of fraud or mistake, assert ownership and claim to such property by executing a claimant's bond, and thereby prevent judgment against him on his forthcoming bond. Sparks v. Shropshire, 4 Bush (Ky.), 550.

The taking of a delivery bond is equivalent to a seizure. Pugh v. Calloway, 10 Ohio St. 489; Roebuck v. Thornton, 19 Ga. 149. And will preclude the officer, in an action of trespass, from contesting the fact of seizure. Portis v. Parker, 8 Tex. 23.

Bond Made for Benefit of Third Party Void. Where the statute provides that the sheriff shall take a bond from the debtor and sureties payable to the creditor, a bond made payable to a third party is void, though the fi. fa. contain an indorsement that the judgment is for the benefit of said third party. Meze v. Hower, 1 Leigh (Va.), 442.

What it Does Not Waive. -Entering into bond for the forthcoming of property levied on in execution is not a waiver of previous irregularities in the execution. Page v. Coleman, 9 Port. (Ala.) 275; Van Clean v. Heaworth, 5 Ala. 188. Nor of the right to claim that the property is exempt from execution; and a bond exacted by a sheriff to compel the delivery of property levied on but so exempt is void. Robards v. Samuel, 17 Mo. 555; Perry v. Hensley, 14 B. Mon. (Ky.) 474. Nor does the giving of it take away the trial of the right of property when it is claimed by another. Waterman v. Frank, 21 Mo. 108.

On the Original Judgment.-In Mississippi, a forthcoming bond, whilst the execution remains unquashed, is a complete satisfaction of the judgment, as if the estate had been sold to the full amount of the debt; and the party is left to pursue his remedy upon the judgment upon the forthcoming bond. Stewart v. Fugue, I Walk. (Miss) 175; Connell v. Lewis, I Walk. (Miss.) 251; Sampson v. Breed, I Walk. (Miss.) 267.

But in Texas, it is held that the original judgment is not satisfied, and that the implied judgment on the forfeited bond is an additional security growing out of and dependent on the original judgment, designed for the protection of the plaintiff's rights. Cole, Adm'r, v. Robertson, 6 Tex. 356.

As to Lien on the Property.-The execution of the bond removes the lien from the property attached, and leaves it under the debtor's control, subject to his debts or to other liens. The sheriff has no title to it of any sort, and the levy is released. Jones v. Pearsly, 3 Greene (Iowa), 52; Biscoe v. Sandefur, 14 Ark. 569; Brum v. Clarke, 4 How. (U. S.) 4: King v. Terry, 6 How. (Miss.) 513; Witherspoon v. Spring, 3 How. (Miss.) 60: Bank of U. S. v. Patton, 5 How. (Miss.) 200; Parker v. Dean, 45 Miss. 408; Malone v. Abbott, 3 Humph. (Tenn.) 532.

But in Illinois, it has been held that property levied on is not discharged from the power of the execution because a forthcoming bond has been given. Brush v. Seguin, 24 Ill. 254.

In Pennsylvania, where, after a levy on personal property under an execution, the judgment is opened by the court to let the defendant into a defence," all proceedings to be stayed, the sheriff to be secure in his levy," and a bond is given by defendant to the sheriff, conditioned for the delivery of the property on demand, or for the payment of the amount of the execution, the lien of said levy is preserved as against a subsequent levy on the same property under another execution. In such a case, the condition of the bond is not fulfilled by a compulsory delivery of the property to the sheriff under the second execution. Slutter v. Kirkendall, 100 Pa. St. 307; 12 W. N. C. 245. To continue the lien of the execution, it is not necessary that the property levied on should be taken into actual possession; it is not affected by taking a forthcoming bond. McGinnis v. Prieson, 85 Pa. St. 14; Lewis v. Smith, 2 S. & R. (Pa.) 142; Hastings v. Quigley, 2 Clark (Pa.), 431; Gratt's App., 14 Pitts.

Law Jour. (Pa.) 241; Coar v. Green, 5 Luz. Leg. Reg. (Pa.) 77.

Description of the Property. It must describe the property accurately, not vaguely as "a lot of dry-goods," or it will be voidable. Murfree on Sheriffs, S 648; Packinson v. Waldron, 7 S. & M. (Miss.) 189.

A forthcoming bond which recites the levy (under a fi. fa.), and that the property was appraised according to law, is void when in fact the appraisement was under the vend. ex. and stated a gross sum as the valuation, no schedule being annexed, as required by the statute. Frisch v. Miller, 5 Pa. St. 310.

Where there is a material variance between a forthcoming bond and the execution, the bond should be quashed. Holt v. Lynch. 18 W. Va. 567.

Fraud in Executing.-A fraud committed in the execution of the bond, by the principal, will not vitiate it unless he is implicated in it. Walker v. Shotwell, 13 S. & M. (Miss.) 544; Gordon v. Jeffery, 2 Leigh (Va.), 410.

A forthcoming bond without security, or with fictitious security, is absolutely void, and does not affect the lien of the judgment creditor; he may treat it as a nullity. Carleton v. Osgood. 6 How. (Miss.) 285. But if received by him, it is a good bond; no one else can object to its validity for that cause. Walker v. McDowell, 4 S. & M. (Miss.) 118; s. c., 43 Am. Dec. 476.

Party Benefited-The delivery bond, though taken to the sheriff, constable, or other officer, is not for his personal benefit, but for the sole benefit of the judgment creditor, and it inures in law accordingly. If suit be brought upon the bond, the officer's name is merely used for the benefit of the creditor. The officer, as such, can only bring an action on the bond when he has been made liable for the judgment, and actually satisfied it. Walker v. Howell, I Coldw (Tenn.) 240; Smith v. Alexander, 4 Sneed (Tenn.), 482; Lintz v. Thompson, 1 Head (Tenn.), 457.

A forthcoming bond, with condition to deliver property taken in execution on a day of sale occurring after the return day, is valid. Ballard 7. Whitlock, 18 Gratt. (Va.) 235; Dix v. Evans, 3 Munf. (Va.) 308.

Care Required of Custodian of the Property.-It seems that, where property is in litigation, the party who has given bond for its forthcoming at the termination of the suit is only bound to use such care and vigilance as a sheriff would be bound to exercise over it. Trotter v. White, 26