The argument of this cause embraced two general questions, viz: First, whether the judgment in controversy should not be decreed to be satisfied on the ground of invalidity in the bond upon which it was entered ; and, second, whether, at. all events, the execution of it should not be enjoined under the present condition of the defendant Herbert’s claim. We will first consider the latter question.
Assuming the bond to be valid and the judgment *516duly entered, and of force, still there can be no doubt that the execution was illegally issued. The judgment, although upon its face for a debt, stands in fact for an indemnity, having been entered upon what is known as a forthcoming bond, being a bond given in the general sum of $2,900.0.0, conditioned in effect to be void, if Herbert, the obligee in the bond, should be kept harmless and indemnified against loss by reason of the non-forthcoming of certain goods of Jacob Staats upon which Herbert as sheriff, had levied, under the fieri facias, and which he was commanded by the venditioni exponas to sell, but which he had left in Jacob Staats’ possession. Although part of these goods were not forthcoming Herbert has not been held liable for them to the creditor in the judgment under which they were taken in execution—so far the loss is the creditor’s and not Herbert’s. The latter is not entitled to proceed by execution under this judgment until he is damnified and then only to recover the amount of his loss actually sustained. And although the face of the judgment does not shew the purpose for which it was confessed, a court of equity will restrain him from using the judgment contrary to its real design. It was suggested that the complainant had an adequate remedy at law by application to the Superior Court in which the judgment was entered to set aside the execution. It is true that the courts of law do exercise an equitable jurisdiction over their own judgments and process, and will relieve against fraudulent or illegal use of their process, except where the circumstances are such as to render an investigation in chancery more convenient or effectual, in which case our own courts of law have sometimes remitted the parties to this court. It may be that the Superior Court, if in session, might on proper application have set aside this fieri facias and directed an issue to try the fact as to Herbert’s having sustained damage and if so what amount; but, however that may be, the Superior Court not being in session'when this execution was levied *517and pressed to a sale, there was on that ground necessity for the interference of a court of equity. I have been referred on this point to Lansing vs. Eddy, l Johns. Ch. 49, in which an injunction was refused t;o stay a sale under an execution on the ground that the judgment had been fully paid and satisfied. But, in that case, the injunction was refused upon the special ground that the sale could be stopped by an order of a judge of the court in which the judgment moved, a remedy at law prompt and adequate. We have in this State no such proceeding at law and hence the necessity of the interference of a court of equity.
The argument that this judgment could be executed for the use or benefit of the creditor in the judgment under which the non-forthcoming goods were levied upon is not tenable. The creditor has no legal interest in the forthcoming bond. It was taken, not as a security to the creditor "for the debt, but as a personal indemnity to the officer, against his liability to the creditor for the non-forthcoming of the goods or their value." I consider the bond not as an official one in any proper sense, but as a private obligation. It was taken under no law, nor was the taking of it an official duty to protect some interest under the judgment, but it was wholly voluntary and for the private benefit of the officer. He was not bound to assign it to the creditor, nor could he compel the creditor to accept it. It would have served its full purpose had the obligee not been described in it as “late sheriff.” This addition to his name added nothing to its operation, and was mere surplusage. A forthcoming bond differs in these respects from a bail bond, or a replevin bond, which are taken pursuant to law, as an official duty, for the benefit of parties to the proceeding, and to an assignment of which, upon breach of the condition, they are entitled by the statute.
In the argument of this cause the question was much *518discussed whether even if the obligee in the forthcoming bond, Herbert, had in fact been damnified he could take execution upon the judgment, without some proceeding at law, first had, to ascertain judicially upon the record the fact that damage hid been sustained and to what amount, so that execution might go for such amount only. A scire facias or an inquisition of damages upon breaches suggested on the record were suggested by counsel as proper and necessary proceedings,—one or the other of them. But it appears that upon judgments entered by warrant of of attorney, as this is, upon a bond in a penal sum with condition other than for the payment of money,there is no proceeding at law for suggesting breaches of the condition and assessing the damages. Judgments entered under warrants of attorney were held, by construction, to be not within the Statute of 8 and 9 Will. Ill for ascertaining damages in suits on bonds and penal sums, and such judgments are expressly excepted from our statute on the same subject. (Rev. Code 416.)
At common law, prior to the Statute of Will. Ill, all judgments recovered on bonds or penal sums were rendered for the whole penalty upon proof of a breach of the condition, without any proceeding at law to assess the damages ; and under the common law rule, that execution must follow the judgment, executions, issued upon such judgments, went for the whole penalty,subject to the. direction of the plaintiff on the judgment as to the sum to be collected under the execution. If more than the damage actually sustained was exacted from the defendant he could be relieved only by a court of equity. 1 Tidd. 584; Foster on Scire Facias (73 Law Lib.) (33);* 2 Burr 824; 5 T. R. 636.
It was to obviate this necessity of a resort to equity *519that the Statute of Will. Ill, and our own on the same subject, were passed. These statutes provide that in all suits on bonds and penal sums the damages shall be assessed upon breaches either assigned in a case pleaded to issue, or suggested on the record, in the case of a judgment by default or on demurrer ; and the damages being thus ascertained, the judgment is to be rendered for their amount only. But judgments entered under warrants of attorney not being within the statute are governed by the common law ; and consequently, all such judgments are entered for the penalty as debt, and execution goes for the penalty, with no method of ascertaining, upon the record,the actual damage sustained, except, that when the judgment entered under a warrant of attorney is to secure a money debt, it is required under our statute, {Rev. Code 391,) that the real debt, with the time from which interest is payable, be entered on the record ; and although execution even then goes for the penalty, the real debt, with interest, being indorsed on the execution, is alone collected. But where the condition of the bond, on which judgment is entered under a warrant, is not for the payment of money, but for the performance of some collateral undertaking, there is no statute applicable, and consequently, the execution following the judgment goes for the penalty without anything on the record to restrain the plaintiff from collecting the whole. He proceeds at his peril, subject to the interference of a court of equity, if he takes the execution before any breach of the condition has been committed, or, if after a breach he directs the collection óf a larger sum than the damages actually sustained. This Court in a proper case will restrain the execution, direct an issue of quantum damnificatus, and, when the damages are ascertained upon the trial of such an issue, it will grant relief upon the payment of such damages. 2 Story's Eq. Jur. sec. 1314; Sloman vs. Walter, 1 Bro. C. C. 418; Hardy vs. Martin, 1 Cox 64; Errington vs. Aynesley, 2 Bro. C. C. 342.
*520It is, then, under this state of the law that the present case comes before the Court. Assuming the judgment in the forthcoming bond to be valid, the execution is regular on its face. It properly follows the judgment in the amount of it, which is the penalty of the bond. There was nothing and could be nothing on the record of,the judgment to prevent the plaintiff at law from taking execution at any time and for the whole penalty ; but this Court will restrain him from using the judgment except for its real, purpose, which was an indemnity. Now it appears from the whole case as made up by the bill and answer, that Herbert has never been held liable for the non-forthcoming of the goods, with respect to which the bond in question was given. He has sustained no damage. This appearing by the case made before the Court, it becomes unnecessary to direct an issue of quantum damnificatus. A decree may, therefore, be made in the case.as it stands, continuing the injunction already issued so far as to restrain further execution upon this judgment, until the plaintiff in it shall have sustained damage from the breach of the condition of the bond upon which the judgment was entered. I cannot make the present injunction perpetual, for non constat that Herbert may yet sustain damage. I ought not to conclude that question, but should leave Herbert free hereafter to proceed again, though still at his peril.
Upon the other branch of the case, as argued; that in which the validity of the bond was drawn into question, it does not seem to me proper to make any decree. It was argued that the forthcoming bond was illegally taken on two grounds: 1st, because Herbert was at the time out of office; and, 2nd, because, by the stay of the fieri facias under the order of the plaintiff’s attorney, he stood discharged from responsibility for the safe keeping of the goods levied' upon. Now, these are purely legal questions, such as *521concern the practice of the common law court, depending upon matter of record in that court, and which ought to be determined there. The whole subject is within the equitable jurisdiction of the Superior Court over judgments entered upon warrants of attorney, to be examined under a rule to shew cause why the judgment should not be vacated as having been entered upon a bond and warrant of attorney executed either illegally or without consideration. For this object of the bill the defendant having an adequate remedy, this Court need not interfere ; and in such a case it ought especially to refrain from doing so, since it would thereby unnecessarily draw to itself questions of merely legal cognizance.
This treatise contains the fullest exposition of the Statute of 8 and 9 Will. Ill and of the common law prior to it.