#### Wootten v. Bragg.

April, 1844,

Richmond.

Forthcoming Bonds—Notice.*—A notice upon a forfeited forthcoming bond, given to a regular term of a court which the judge fails to attend, is sufficient to authorize an award of execution on the bond, at a special term held under § 17 of the circuit superior court law, Sup. Rev. Code, p. 141.

Bragg assignee of Bishop gave notice to Wootten & Moore, that he should move the circuit superior court of law and chancery for the county of York, at the regular fall term of that court for the year 1838, for an award of execution upon a forfeited forthcoming bond, in which they were the obligors: and the bond was returned to the clerk’s office before the time for the commencement of the court, and docketed for motion at that term.

The judge being sick the court was not held; and afterwards under the provisions of the act of assembly, *Sup. Rev. Code, p. 141, ch. 109, *§*17, a special term was appointed for and held on the 23d of January 1839.

At this special term of the court, Bragg without having given any other notice than that above stated, moved the court for an award of execution upon the bond; which motion was opposed by the defendants by their attorneys, on the ground of the insufficiency of the notice. The court overruled the objection, and awarded the execution ; whereupon the defendants excepted, and applied to this court for an appeal, which was allowed.

The cause -was argued here in writing, by Scott for the appellant, and Harrison for the" appellee.

Scott said—The only question is, whether a notice to the regular term of the court entitled the party to a judgment at the special term; and the solution of this question depends upon the correct construction of the 17th section of the circuit superior court law. Sup. Rev. Code, p. 141. The latter clause of this section prescribes and defines the jurisdiction of these special terms. They are to be held “for the trial of all causes, civil and criminal, which were depending, and could lawfully have been tried,” at the regular terms of such court. Was this a civil cause, depending in the court? If not, then it certainly could not be tried. The docketing the motion by the clerk was not required by law, and was entirely voluntary on his part. This did not make the motion a cause then depending. The defendants were only notified of the design of the plaintiff to bring the case before the court. Until the defendant was called he could take no action ; ask no judgment. The plaintiff might have relented, and have determined to submit no motion; to subject himself to no costs. Can that be called a pending cause, where only one party can ask the action of the court?

*If then the defendant was not so before the court, that he had the legal right to ask any thing; to call up the motion ; to ask its dismission, and a judgment for his costs, how can there be a civil suit depending?

The notice was a matter in pais, and until the defendant was called and the notice proved, or the case continued for such proof, there was no civil suit depending, and therefore the special court could take no jurisdiction of the subject; and the judgment is therefore erroneous and ought to be reversed. *

Harrison for the appellee.

The counsel for the appellant has correctly stated the question involved in this cause.

Por the appellee, it is contended that all proceedings in personal actions between parties, from their origin to their final termination ; that is, until the satisfaction of the judgment by the payment of the debt, or damages, and costs, form but one suit or action; and that until satisfaction of the judgment be made, the suit or action is constantly pending in court. The issue of the execution, the levy thereof, the taking a forthcoming bond, and award of execution thereon, are parts of proceedings in the same suit, between the same parties, pending in court; which may be lawfully heard and determined, within the terms of the act.

Proceedings on forthcoming bonds are so entirely parts of proceedings in the original, or same cause, that a confession of judgment upon a forfeited forthcoming bond, amounts to a release of all errors in the original action. TOdmonds v. Green, 1 Rand. 44; M’Rae v. Turnpike Company, 3 Rand. 160. Proceedings upon appeal are parts of the same suit. So proceedings npon scire facias to revive; so all notices to the parties required by law.

*

See monographic *note*on “Statutory Bonds" appended to Goolsby v. Strother, *21*Gratt. 107. The principal case Is cited in Henley v. Menefee, 10 W. *Va.*780.

By the Court.

The judgment is affirmed.