#### *Cunningham v. Mitchell.* Two Suits.

May, 1826.

Forthcoming Bond — Principal—Surety †—Case at Bar. —A. B. & C. execute a forthcoming bond, to release the goods of A. taken in execution. C. pays the debt, and mores against B. as a principal in the bond. There is nothing in the bond to shew whether B. was principal or surety. B. contends that he was only a surety jointly with C. The Court below give judgment for C. on tbe motion. No evidence is in the record to shew whether B. was surety or principal. The judgment was affirmed in this Court, as it will be presumed, that the Court below had evidence before them, that B. was a principal and not a surety.

Record — Papers Inserted by Clerk, ‡-Papers inserted in the record by the clerk, cannot be considered as part of the record, unless they are made so by the party wishing to avail himself of them. Sheriff's Return — Contradiction of.§ — A Sheriff’s return may be contradicted by evidence aliunde; in which case the Sheriff himself would be a competent witness to prove its truth. But after judgment by default, a party cannot object in an Appellate Court, to the truth of the return.

This was an appeal from the Superior Court of Law for Spottsylvania county. The case was this:

Two motions were made upon due notice, by Reuben Mitchell, against Joshua Long and James Cunningham, for the sums of $215 73, and $455 91, money which he had paid as surety on two forthcoming bonds executed by Long and Cunningham, and himself as their surety. The clerk certifies, that the plaintiff, in support of his motions, introduced two executions against Long and Cunningham, his appearance bail, and forthcoming bonds in pursuance thereof. These bonds are executed by Long, Cunningham and Mitchell, reciting in the condition, that a Fi. Fa. had issued against the goods and chattels of Long and Cunningham, his appearance bail, a negro man &c. of Long's taken and released upon giving the said

*87bond; but they do not state whether Cunningham was a principal obligor or a surety. They only state that Long "hath tendered the above bound Reuben Mitchell, as security, &c.” The Sheriff states in his returns, that the forthcoming bonds were taken of the said Long and Cunningham, with Mitchell as surety. Judgments were obtained on xtfaese forthcoming bonds, executions issued, and the money paid by Mitchell, as appears by the return of the Sheriff.

On these motions, judgments were rendered by default; and Cunningham obtained a supersedeas.

Stanard, for the appellee.

No Counsel, for the appellant.

The principal question made, was, whether, upon this record, Cunningham was to be considered as a surely or a principal obligor. The counsel for the appellee, relied on the case of Preston v. The Auditor, 1 Call, 471, to shew that it ought to be presumed, that the Court below had evidence that Cunningham was a principal and not a surety; and that if the appellant contested that point, he ought to have made his evidence part of the record.

*

For monographic note on Records, see end of case.

†

Principal and Surety — Parol Evidence to Establish the Relation. — In. Williams v. Macatee, 86 Va. 684, 10 S. E. Rep. 1061, it was said that the relation of principal and surety can be proved by parol evidence and tbe principal case was quoted from to sustain the point.

‡

Record — Papers Inserted by Clerk. — It is not the province of the clerk to make anything a part of the record, his province is to copy the record as it is: and the clerk’s certificate that the papers were relied on cannot make them a part of the record. To this point the principal case is cited in Roanoke Land & Imp. Co. v. Karn, 80 Va. 592, 593; Davie v. Hughes, 86 Va. 920, 11 S. E. Rep. 488.

In Sweeney v. Baker, 13 W. Va. 202, the clerk copied at tire end of the record a certificate signed by the judge stating that a demurrer had been filed and overruled by the court but no entry of it had been made by the clerk. The record book failed to show the filing of the demurrer at any time: and this memorandum of the judge was not referred to on the record book. It was held that the memorandum of the judge could not be considered as a part of tbe record in tbe case, though the clerk did certify that it was a transcript of a paper in the cause; the court citing the principal case to sustain its holding. To the same effect, the' principal case is cited in Bowyer v. Chesnut, 4 Leigh 4; White v. Toncray, 9 Leigh 352: Phares v. Saunders, 18 W. Va. 341.

§Sheriff’s Return. — See monographic *note*on Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.

Appellate Practice —Notice of Suit — Waiver.—By appearing to the action and going to trial, on the merits, the defendant dispenses with a formal service of process and waives any objection to tbe alleged irregularity and cannot raise the objection for the first time in the appellate court. Pulliam v. Allen, 15 Gratt. 62, citing principal case as authority. On the same subject, the principal case is cited in Freeman’s Bank v. Ruckman, 16 Gratt. 126; Watson v. Wigginton, 28 W. Va. 545.

May 9.

JUDGE GREEN

delivered the opinion of the Court.

In these cases, the defendant in supersedeas having given due notice that he should move for judgments against the plaintiff in supersedeas and Joshua Long, for money paid for them, as their surety, under execution; the defendants in the tnofions failed to appear, and judgments were given according to the notice. The proofs upon which the judgments were given, do not appear in the records. The plaintiff in supersedeas, having obtained copies of the records, and also, certain papers which the clerk certifies were the evidence upon which the judgments were rendered, objects that the judgments were erroneous, because it appears from the papers, certified by the clerk as the evidence, that in truth, Mitchell was not the surety for Cunningham, but for Long only; and, that Cunningham was a joint surety with Mitchell for Long, the principal debtor. Erom these papers it appears that two suits were ^brought against Long, and judgments were rendered against Long and Cunningham as his appearance bail; upon which executions issued and were levied upon Long’s property, which was restored upon his tendering Mitchell as his surety in forthcoming bonds. Cunningham joined in these bonds; but it is not said upon the face of the bonds, whether he joined as principal or surety. The Sheriff’s returns upon the executions state, that forthcoming bonds had been taken of Long and Cunningham, with Mitchell as his surety, and forfeited. Executions were awarded upon these bonds, and being issued, were paid to the Sheriff by Mitchell.

If the papers which disclose these facts could be considered as properly a part of the record, the judgments were right upon the merits, taking the Sheriff’s returns that Long and Cunningham were the principals and Mitchell the surely, to be true. These returns did not contradict the evidence afforded by the executions and bonds. Although Cunningham appears to have been Long’s appearance bail in the first instance, and tne executions issued against him in that character, yet he might have stipulated with Mitchell to execute the bonds as principal, and to save him harmless, as an inducement to Mitchell to execute them as surety; and Mitchell might have refused to execute the bonds on any other terms. The bonds themselves do not ascertain whether Cunningham executed them as principal or surety, and, as in all other cases of joint bonds, the question whether one was principal and another surety, was to be solved bv evidence aliunde. Cunningham might have contradicted the Sheriff’s return ; and in that case, the Sheriff himself would have been a competent witness to prove its truth. He cannot now, after submitting to a judgment by default, object, in this Court, to the truth of the return ; for it cannot be here supported by parol proof, as it might have been in the Court below, if it had been there objected to.

*But, the certificate of the clerk, that those papers were the evidence upon which the, judgments were founded, cannot be received as a part of the records. His certificate to that effect can have no more effect than that of any other individual. He may certify that such records exist in his office, but not what use was made of them. That ought to have been shewn by the record; and it was the duty of the party wishing to avail hirnseif of the fact, to have it made a part of the record. We are bound to consider the fact, that Mitchell was surety for Long and Cunningham, which was the foundation of the motions, was properly in proof before the Court, and this was the ground of the judgment in Preston v. The Auditor, 1 Call, 471.

The judgments should be affirmed.