Opinion
03-20-1815
Beale v. Wilson and Others
Wirt, for the defendant.
Argued March 20, 1815
A motion was made, in the Sweet Springs District Court, by Charles Beale, against William Wilson, John Cartmill, and Nathaniel Eakin on a forthcoming bond. " For reasons appearing to the court," it was ordered that said bond be quashed. No bill of exceptions was filed: but the clerk inserted in the transcript of the record a forthcoming bond, on the back thereof notice was acknowledged, in writing, by William Wilson and John Cartmill, and a notice, with affidavit of its service upon Nathaniel Eakin; without certifying that the motion was made upon that bond and notice. The plaintiff obtained from a judge of this court a supersedeas to the judgment; suggesting, in his petition, that as it did not appear that any evidence was adduced by the defendants, or that any appearance was entered for them, or that the demand of judgment was in any sort contested, it could not be presumed that there was any fact before the court whereon to ground such a judgment, except such as might appear on the face of the bond; and the said bond being in the legal and proper form, and drawn up in the usual mode in every respect, except that the names of the obligors were not inserted in the obligatory or penal part, the plaintiff presumed it was quashed for this supposed error.
He was advised that it is not necessary, in order to give validity to a bond, that the names of the obligors should be recited in the penal part thereof; it being sufficient that their names are subscribed and their seals annexed; which point was expressly decided in Bartley & Ferguson v. YatesHen. & M. 398.
Wirt, for the defendant. It is not stated in the record that the forthcoming bond copied therein is that on which the motion was made. It therefore shews nothing to prove the decision of the court erroneous.
Wickham, in reply. In Lewis v. Thompson & othersHen. & M. 100, the forthcoming bond was not spread on the record by bill of exceptions. The court will always take notice of the forthcoming bond, provided the clerk inserts it in the record. They will not intend the bond on which the motion was made to be a different one from that appearing in the record. If there was any difficulty on the subject, the court would award a certiorari.
The president pronounced the court's opinion.
OPINION
The court is of opinion, that, under the authority of the case of Bartley & Ferguson v. Yates, (2 Hen. & M. 398,) and on general principles, the bond in the record is a sufficient bond under the act of assembly. The judgment of the District Court is therefore reversed; but there being no bill of exceptions making the notice, stated in the record, a part thereof; and it not appearing by the judgment of the District Court, that the appellees had notice of the motion, or appeared in the court below, the cause is to be sent back to the Superior Court of Monroe County, that the plaintiff may have an opportunity to prove his notice, and the defendants to make any defence thereto, which their case, according to law, may admit of.