#### *Anderson v. Leitch & Co.

November, 1829.

Forthcoming Bond — Motion for Award of Execution on Particular Ground Overruled — Reversal of Judgment, † — Where county court overrules motion for award of execution on forthcoming bond, on particular ground, which renders all other defence unnecessary, and this judgment is reversed by circuit court for error in the particular point; held, circuit court ought not to proceed to award, of execution immediately, without giving defendant opportunity to make other defence, unless it appear from record he had no other defence to make.

Same — Same—Appeai.‡—where county court overrules motion for award of execution on forthcoming bond, and circuit court reverses this judgment and awards execntion, an appeal lies from such-judgment of circuit court, as of right; aliter. where circuit court affirms judgment of county court awarding execution, or itself gives original, judgment awarding execution, on such bond.

A fieri facias, dated November 18th 1826, and returnable the second Monday in January following, was sued out by Leitch & Co. against Anderson, upon a judgment of the county court of Buckingham, and delivered to the sheriff of the county; who returned it with the following indorsement and return thereon, viz. “Came to hand November 20, 1826” — “January 6th 1827, levied on two negro men Edmund and Spencer, the property of Anderson ; forthcoming bond taken and forfeited.” The forthcoming bond was dated January 6th, and the day appointed in the condition for the delivery of the property for sale, was February 14th 1827; and it was returned with the execution, indorsed “February 14th 1827, forfeited.” Leitch & Co. gave a regular notice to Anderson and his sureties in the forthcoming bond of a motion to be made-at the ensuing April term of county court, for an award of execution thereupon, upon the trial of which, the sheriff was allowed to amend his return on the fieri facias, by striking out the last two words “and forfeited,” upon condition that such amendment should not affect the motion then pending. The county co'urt overruled the motion for award of execution on the bond. Leitch & Co. appealed to the circuit court of Buckingham; which reversed the judgment of the county court, and proceeded itself to give judgment awarding execution *on the bond. Anderson prayed the circuit court to allow him an appeal from its judgment; which that court, considering that it could hot allow an appeal in such a case,§ refused to allow. And then Anderson applied to this court for a supersedeas, which was granted.

Booker, for the plaintiff in error; Michie, for the defendant.

*

Ingraham’s Edi. Philadelphia. *1820.*

†

Forthcoming Bonds. — See monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother, 31 Gratt. 107.

‡

Appeals. — See monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

§See 1 Rev. Code, ch. 64, § 12, p. 193.

CABELL, J.,

delivered the resolution of-the court. The record shews, plainly enough, the grounds of the judgment of the county court, viz. that according to the original return of the sheriff on the execution, it appeared that the forthcoming bond, taken under that execution, was forfeited on the 6th January 1827, whereas the bond on which the motion was made, could not have been forfeited sooner than the 14th February 1827, that being the day on which the property was to be delivered to the sheriff; and, consequently, it did not appear, that there was any execution to justify the taking of the bond on which the motion was made. And although the court, before it pronounced judgment in the case, permitted *165the sheriff to amend his return on the execution, by striking from it the words “and forfeited;” yet it considered, that that amendment, not having been made until •after notice .given and proved on the motion, ought not to affect the judgment to ■be given under a notice.

If the return of the sheriff were susceptible of the construction put upon it by the county court, the judgment of that court would be correct. But it cannot admit of .that construction. The date mentioned in ■the return (January 6th 1827) refers to the ■.time when the execution was levied, and when the bond was taken; and not to the ■time when the bond was forfeited. The forfeiture of the bond was, of necessity, posterior in point of time. The return was correct and required no amendment.

The county court ought-, ^'therefore, to have awarded an execution on the bond, unless the defendants had shewn .some valid objection thereto.

But the circuit court, although it correctly' reversed the judgment of the county' court, committed an error in the judgment which it proceeded to render. The cases of Irvin, Galt & Co. v. Eldridge, 1 Wash. 162, and Lewis v. Thompson, 2 Hen. & Munf. 104, shew, that a superiour court in reversing a judgment of an inferiour court which overruled a motion for award of execution on a forthcoming bond, ought not to give final judgment for award of execution, where the motion had been overruled by the inferiour court, on a ground, which rendered it unnecessary for the defendant, in the inferiour court, to give evidence of payments, or make any other objections than those involved in the opinion of the inferiour court; unless, indeed, the record shews that the defendants had no such evidence, and no such objections. In the case before us, it is possible that the defendants may have made payments, or may have had other objections than those founded on the sheriff’s first return on the execution.

The plaintiff in error was also entitled to an appeal, as a matter of right; for the inhibition of arbitrary appeals from judgments of the circuit courts, applies only to original judgments rendered by those courts awarding executions on forthcoming bonds, or to judgments affirming judgments of inferiour courts that had awarded such executions, not to a judgment like the present, by which a judgment of the county court, overruling a motion for award of execution, is reversed by the circuit court, and award of execution is then adjudged by the circuit court.

The judgment of the circuit court is therefore reversed, with costs; and the cause is remanded to the circuit court for that court to proceed to judgment on the bond, when the plaintiff in error and his sureties are to be at liberty to oppose the same by proof of payment, or by other legal objections than those founded on the sheriff’s original return on the execution.