#### Beale v. Wilson and Others.

Argued March 20th, 1815.

1. Forthcoming Bond* — Penal Part — Blank for Obligors — Effect, † — A forthcoming bond, appearing in other respects to be in proper form, ought not to be quashed on the ground that, in thq obligatory or penal part thereof, a blank is left for the names of the obligors.

2. Same — ¡lotion on Record — Necessity of Certificate of Clerk.‡ — A forthcoming bond, being inserted in the transcript of the record, is to be taken as the bond on which the court gave judgment, without any certificate by the clerk to that effect.

3. Appellate Practice§ — Reversal of Judgment Quashing Forthcoming Bond. — if a judgment quashing a forthcoming bond be reversed, the Appellate Court will not proceed to give judgment for the plaintiff, unless it regularly appear that the defendants had legal notice of the motion, or appeared to oppose it. If, therefore, there be no bill of exceptions, making the notice, stated in the record, a part thereof, and it do not appear by the judgment itself, that the defendants had legal notice, or appeared in the court below, the cause should be sent back, to give the plaintiff an opp ortnnity to prove his notice, and the defendants to make any defence thereto, which their case may admit of, according to law.

A motion was made, in the Sweet Spring's 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 Dakin ; without certifying that the motion was made upon that bond and notice. The plaintiff obtained from a judge *177of 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. Yates, 2 H. & 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 & others, 2 H. & 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.

*March 20th, 1815.

*

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

†

Same — Penal Part — Blank for Name of Obligors— Effect. — See monographic *note*on "Bonds” appended to Ward v. Churn. 18 Gratt. 801; *foot-note*to Bartley v. Yates, 2 Hen. & M. 398; *foot-note*to Bellv. Allen, 3 Munf. 118. The principal case was cited with approval on the point in Beery v. Homan, 8 Gratt. 52.

‡

Same — Motion on — Record.—In a summary motion on a forthcoming bond, the bond is considered a part of the record without being spread upon it by exception: for it is the foundation of the plaintiff’s claim, and the bond certified by the clerk is taken to be that on which judgment was given. Skipwith v. Mutual Ass. Soc., 10 Leigh 506, citing the principal case as its authority. See principal case also cited in Ayres v. Lewellin, 3 Leigh 614, and distinguished in Goolsby v. Strother. 21 Gratt. 109.

§

AppeIIate Practice. — See generally, monographic *note*on “Appeal and Error" appended to Hill v. Salem, etc., Turnpike Co., 1 Rob, 263.

The president pronounced the court’s opinion.

The court is of opinion, that, under the authority of the case of Bartley & Ferguson v. Yates, (2 H. & 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 ; hut 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.