Opinion
06-02-1807
Jones and Others v. Hull
This was an appeal from a judgment rendered by the District Court of Hardy on a forthcoming bond. The execution on which the forthcoming bond was founded, was recited in the record, but it did not appear that the sheriff had made any return thereon.
This omission at first created some difficulty. But it was observed that the law only directed the sheriff to return the forthcoming bond to the clerk's office from whence the execution issued, (Rev. Code, vol. 1, c. 151, sect. 13, p. 298,) unless otherwise directed by the creditor; (Rev. Code, vol. 1, c. 249, sect. 5, p. 390,) and that the creditor might even dispense with the necessity of the sheriff's noting on the execution how he had executed it. (Rev. Code, vol. 1, c. 176, sect. 9, p. 325.) In the present case the appellants not having opposed the award of execution upon the forthcoming bond, on any ground whatever, the presumption is that all the proceedings were regular, and that the forthcoming bond was in fact forfeited. --Judgment Affirmed.
During this term, in the case of Fisher and others v. Davis, (Monday, June 15,) all the Judges being present, the same point occurred. Judgment was in like manner affirmed. --Note in Original Edition.
OPINION
Lyons, Fleming, and Roane Judges.