#### B. J. EARLE, TO THE USE OF F. A. WEAVER v. ROBERT DOBSON *ET AL.*

A judgment on a *ca. sa.*bond, payable to one having the use in the judgment, in favor of the plaintiff in the judgment, although taken by default, is erroneous, and may be set aside on motion, though such motion is made on a day subsequent to its rendition.

(Williams v. Bryan, 11 Ire. Hep. 613, cited and approved.)

This was a motion before his Honor Judge Dice, at the Spring Term, 1854, of Rutherford Superior Court, to set asido a judgment.

*516The defendant had been arrested by virtue of a *ca. sa.*issued by a magistrate of Rutherford county, upon a judgment in favor of B. J. Earle, to the use of E. A. Weaver, and, in order to be discharged from custody, gave the following bond:

“ State oe North CaroliNA, *\*

*Rutherford County. j*

“ Know all men by these presents, that I, Robert Dobson, am held and firmly bound to E. A. Weaver, in the sum, &e.

•‘The condition of the above obligation is such, that, if Robert Dobson shall appear at the Spring Term of Superior Court at Rutherfordton, in 1854, then to be null and void; otherwise, to be in in full force. March 4th, 1854.”

(Signed by defendant and his sureties, with their seals.)

At this term of the Court, the defendant failing to appear, on being called, judgment was rendered in favor of the plaintiff B. J. Earle, to the use of E. A. Weaver, against the defendant and his sureties, for the penalty of the bond, to be discharged, &c., on the payment of the judgment and costs.

On the next day of the term, without the defendant’s still having appeared, his counsel moved to sot aside the judgment, which was refused by the Court, and the defendant appealed to this Court.

*Avery*and Craither, for the plaintiff.

*J. Baxter,*for the defendant.

Battle, J.

The defendants counsel has urged several objections against the judgment entered in favor ot the plaintiff, of which it is necessary that we should notice one only, as that is decisive of the case. The bond, taken by the officer from the defendant, in the execution, was made payable to E. A. Weaver instead of B. J. Earle, the plaintiff therein, and yet the judgment was entered upon that bond in favor of the plaintiff, who was no party to it. This was clearly erroneous, as was express-*517*1j*decided in the case of Williams v. Bryan, 11 Ired. Rep. 613, and the judgment ought to have been set aside upon the defendant’s motion, though made the day after defendant Dob-son had been called and failed. The cases of Page v. Winningham, 1 Dev. and Bat. Rep. 113 : Dobbin v. Gaster, 4 Ire. Rep. 71, and Watts v. Boyle, 4 Ired. 331, referred to by the plaintiff’s counsel, show, indeed, that the debtor cannot, after failing to appear, adduce any matter of fact, by way of defence, nor take any objections to the previous proceedings; but that is where the bond is properly taken, payable to the plaintiff in the execution. “ The case (as was said in Williams and Bryan) may be likened to a default in an action of debt, in which the declaration states a bond to A., without deriving any title from A. to the plaintiff, upon which certainly it would be erroneous to give judgment against the defendant, though in default. Here the creditor’s own case, the bond, upon its face, showed that Williams (the plaintiff) could not have judgment upon it in any form of proceeding, whether by action or motion. The default admits the whole case stated in the declaration, in the one case, or in the bond, in the other ; but it admits no more, and does not authorise a judgment on the bond, in favor of any person but the obligee.”

The judgment, therefore, in favor of the plaintiff Earle, on a bond payable to Weaver, was erroneous, and ought to have been reversed.

Judgment reversed.