Opinion
05-02-1811
Bronaughs v. Freeman's Executor
Botts, for the plaintiffs in error, Williams, contra,
In the condition of a forthcoming bond given by John Bronaugh and Thomas Bronaugh, with Benjamin Bronaugh surety, to Freeman's executor, the writ of fieri facias was described as " against the goods and chattels of John Bronaugh and Thomas Bronaugh, and levied on two Negroes, which they were desirous of keeping in their possession, until the day of sale," & c. The sum mentioned in the bond to have been that for which the execution issued, was 633 dollars and 35 cents; to which the sheriff's commissions and fee for taking the bond were added.
A judgment was entered by the county court of Fauquier, and affirmed by the Haymarket district court, upon this bond; the defendants having had legal notice of the motion, and appearing by their attorney, without moving to quash the bond, or filing any bill of exceptions. A copy of a writ of fieri facias, apparently differing, as to the sum due, from that recited in the forthcoming bond, was inserted by the clerk in the transcript, but does not appear to have been regularly made a part of the record.
A writ of supersedeas to the judgment was awarded by a judge of this court; the petition assigning the following errors, viz.
1st. That it does not appear, by the forthcoming bond to whom the property taken belonged; and
Hubbard v. Taylor, 1 Wash. (VA) 259.
2d. That the condition does not recite the execution truly.
Judgment affirmed.
Botts, for the plaintiffs in error, (in the absence of Love, their counsel,) made another objection; that the sheriff's fee of 62 cents was improperly included in the bond.
Glascock's Adm'x v. Dawson, 1 Munf. 608.
Williams, contra, relied on the case of Lewis v. Thompson and others, 2 Hen. & Munf. 100, as decisively repelling the first objection. He passed over the second without comment; and, as to that mentioned by Mr. Botts, observed, that the point was not settled in Glascock's Adm'x v. Dawson. It depends on the construction of the act of assembly; and, as the sheriff is allowed the fee, it seems reasonable that it should be paid by the party giving the bond.
The president pronounced the opinion of the court.
OPINION
Wednesday, October 9th. The president pronounced the opinion of the court, that there is no error in the judgment, which is therefore affirmed.