#### Burke, Administrator, &c. v. Levy’s Executors.

November, 1821.

Forthcoming Bond-Motion on — Plea of Non Est Factum — Necessity of Jury.* — Where non est factum is pleaded to a motion on a forthcoming bond, the court may render judgment without the intervention of a jury; or they may empanel a jury to try the issue, at their discretion.

Same — Judgment on — Appeal—Record.†—Although the judgment on a forthcoming bond, should be rendered for a larger sum than that due by the execution, yet if the execution is not made part of the record by bill of exceptions, nor any objection made in the court below, such objection cannot be sustained in the court of appeals.

This was an appeal from the superior court of law for Richmond county. The appellee made a motion against the appellant and his surety on a forthcoming bond, which recited the execution with the legal costs attending the same, as amounting to 2041. 11s. 2d.; but the execution itself is not made part of the record by bill of exceptions, nor does it appear that any objection was made in the court below to any excess in the judgment beyond the amount due by *the execution. The defendants in the motion put in a plea of non est factum and concluded to the country; which plea was duly sworn to. The court rendered judgment for the plaintiff without empanelling a jury to try the issue of non est factum. The defendant, Burke, took an appeal to this court.

Stanard, for the plaintiff in error.

Leigh, for the defendant.'

Two objections were made by the appellant to the judgment of the court below. 1st — -That the bond was taken and the execution awarded thereon, for more than the amount of the execution on which the bond was taken. 2ndly — That the plea of non est factum ought to have been tried by a jury.

*

Forthcoming Bonds — Motion on — Plea of Non Est Factum — Necessity of Jury. — In Wallace v. McCarty, 8 W. Va. 199, it is said: “In the case of *Burke v.*Levy, 1 *Rand.*1, it was decided that ‘when *non est factum*is pleaded to a motion on a forthcoming bond the court may render judgment without the intervention of a jury to try the issue at their discretion.’ This decision was made before the enactment of the present statute. But in Claflin v. Steenbock, 18 Gratt. 842, it was held that ‘on a motion to abate an attachment on the ground that it was issued on false suggestion and without sufficient cause, the plaintiff declining to express any wish for a jury and the defendant expressing a wish that a jury might be dispensed with, and that the court should hear and decide the case; the court should hear and decide it.’ The decision was made under the last-named section which is in the Code of Virginia. § 8, p. 708.”

If the defendant chose, on a motion on a forthcoming bond, he may file a formal plea in writing: and on issue being taken, the court may try it or may submit it to a jury, as to it seems best. Cent. Land Co. v. Calhoun, 16 W. Va. 375.

The pleadings in a motion are sometimes in writing; but in such cases less strictness is required than in common-law actions, and an objection that the issues on the pleadings are not formally joined will have no weight. The court may itself try the issues, although of fact, or call in a jury for that purpose, at its discretion. Cecil v. Early, 10 Gratt. 202, citing principal case, and McKinster v. Garrott, 8 Rand. 554.

Same — Sheriff’s Return — Conclusiveness of. — In Adler v. Green, 18 W. Va. 206, it is said: “The uniform practice in Virginia has been to contradict the sheriff’s return of ‘forfeited’ upon forthcoming bonds, as illustrated in a number of cases in the Virginia reports, without even a suggestion being made in any of those cases, that the sheriff’s return was conclusive of the forfeiture. McKinster v. Garrott, 3 Rand. 554; Bernard v. Scott, 3 Rand. 522; Pleasants v. Lewis, 1 Wash. 273; Nicolas v. Fletcher, 1 Wash. 330; *Burke v.*Levy, 1 *Rand.*1; Jones v. Raine, 4 Rand. 386; Cole v. Fenwick, 1 Gilm. 134. I am of opinion, therefore, that a sheriff’s return upon a forthcoming bond is not conclusive but only *prima facie*

See further, monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.

†

Same-Judgment on — Appeal—Record.—In Couch v. Miller, 2 Beigh 545, a motion was made to quash a forthcoming bond for defects apparent on the face of the execution upon which it was taken. On appeal, it was objected in the court of appeals that the execution not having been made a part of the record, by any express order of the lower court, or by a bill of exceptions filed for that purpose, it was not competent for the appellate court to look into it, and compare it with the bond. In support of the objection, the principal case and Jones v. Hull, 1 Hen. & M. 212, were cited. Judge Cabell, who delivered the opinion of the court, in regard to these cases, said (p. 548): “It is true, thatin those cases, the court did refuse to look into the executions. But, in all of them, the defendants, though they appeared in the court below, had made no objection to the bonds, on the ground of their being unauthorized by or variant from the executions. This court said, their failure to make such objections in the court below, furnished ground to presume that the bonds had been rightly taken, so far as related to the executions, and therefore it would not look into the executions, to see,whether that was in fact the case or not. The principle on which those cases were decided, does not apply to that which is now before us; for here, it is expressly stated, that the bond was objected to by the defendant, and quashed by the court, on account of defects apparent on the face of the execution. This necessarily made the execution a part of the record, and imposes on the appellate court the duty to look into it. as the only means of testing the correctness of the judgment appealed from.” Ayres v. Lewellin, 3 Leigh 614; Cent. Land Co. v. Calhoun, 16 W. Va. 373.

See further, monographic *note*on “Appeal and Error" appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263: monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.

JUDGE ROANE,

November 26 delivered the opinion of the court:

The court is of opinion, that as the jurisdiction in this case was given to the Superior Court, to proceed by motion in a summary way, although that court might have called in a jury to decide the points submitted by the plea, it was not compel*8lable to do so, under the distinction taken by the court in the case of Watson v. Alexander.(a)

The court is also of opinion, that although there may still exist an excess in the judgment of the Superior Court beyond the sum due by the execution, yet that execution not having been made a part of the record, by bill of exceptions or otherwise,and no objection having been made to the judgment on this point in the court below, that objection ought not to be now sustained in this court under the case of Bronaughs v. Freeman.(b) There is no error, therefore, in the judgment, and it is to be affirmed.

(a)

1 Wash. 356.

(b)

2 Munf. 266.