#### *Nadenbush and Others v. Lane.

July, 1826.

Bond with Condltionf— Bail.† — It is error to require bail in an action on a bond with a collateral condition.

Judgment by Default — Record—Writ.‡—In cases of judgments by default for want of appearance, the writ, with the endorsement, is a necessary part of the record.

Appeal from the Superior Court of Berkeley county; where Dane brought an action of debt on a bond against Nadenbush and Harrison. The declaration is in the simple form of a declaration on a bond for the payment of money, without any breaches assigned. An office judgment was obtained for want of appearance, and a writ of enquiry executed ; on which the jury found a verdict for the plaintiff. The Court rendered judgment against the defendants and their appearance bail.

The record contains a bond, filed with the declaration, which is an appeal bond. The writ has an endorsement in these words: “Debt on an appeal' bond. Bail is required.”

The defendants Nadenbush, Harrison, and their appearance bail, obtained a supersedeas.

Johnson, for the appellants,

contended: 1. That bail was improperly demanded in this case, it being an action of debt on a bond with collateral condition. For this, he referred to 1 Rev. Code, 499, ch. 128, § 42, 43. Ruffin v. Call, 2 Wash. 181. Henderson v. Hepburn, 2 Call, 238, 239. Metcalfe v. Battaile, Gilm. 191. The judg*163ment may be set aside for this cause, as is proved by cases before cited.

2. No breaches are assigned in this case, which is erroneous, according to the established principles of law. 1 Rev. Code, ch. 128, § 82. 2 Chitt. Pl. 153. Hardy v. Bern, 5 Term. Rep. 636. Ward & al. v. Fairfax Justices, *4*Munf. 494.

Leigh, for the appellee, contended, that the facts on which the objections were founded, did not appear judicially *to the Court, as the bond was not a part of the record; and for this he cited the case of Craghill v. Page, 2 Hen. & Munf. 446.

*

The President and Judge Coalter absent.

†

Bond with Condition — Action on. — There are two-modes of declaring on a bond with a collateral condition, one by declaring upon it as a single bond without noticing the condition, in which case the defendant craves oyer of the condition and pleads performance, and the plaintiff replies by assigning breaches. The other is to set out the condition in the declaration and assign the breaches in it. Reynolds v. Hurst, 18 W. Va. 650, citing principal oase. See further, monographic *note*on “Bonds" appended to Ward v. Churn. 18 Gratt. 801.

‡

Judgment by Default — Reversal—Defective Service. —Por defective service, a judgment by default at common law is reversable by writ of error, and not by motion, and the writ and return are part of the record. Adkins v. Globe F. Ins. Co., 45 W. Va. 391, 32 S. E. Rep. 197. The principal case is also cited in Bargamin v. Poitiaux, 4 Leigh 422. See further, monographic *note,*on “Judgments" appended to. Smith v. Charlton, 7 Gratt. 425.

July 31.

JUDGE GREEN.

It is admitted that there is error in this case, in requiring bail, and entering judgment against him, and failing to suggest breaches of the condition of the bond, if the Court can ascertain from the record, that the bond sued upon was really a bond with a collateral condition. But, it is suggested, that in a case like this, when the declaration states the obligation, without intimating that there was any condition ; and when there was a writ of enquiry, the bond, although copied into the record, is not properly a part of it. If this were so, still this would appear to be a suit upon a bond with a collateral conditio», from the plaintiff’s endorsement on the writ, which is a part of the record. In all cases of a judgment by default for want of appearance, the writ with the endorsement is a necessary part of the record, that it may be seen whether there was a proper foundation for the judgment, both as to the defendant and the bail; and the fact of there having been a writ of enquiry, is a proof that the bond had a condition, and that it was collateral. If it was a single bill, or a bond with a condition to pay money, no writ of enquiry could have been awarded; but final judgment should have been entered for principal and interest by the clerk.

The judgment must, therefore, be reversed; and as the Court below ought to have dismissed the suit, instead of executing the writ of enquiry, this Court, giving such judgment as the Court below ought to have given, should dismiss the suit.

The other Judges concurred, and the suit was dismissed.*