Ward v. Alexander , 1 Stew. 382 ( 1828 )

JUDGE PERRY

delivered the opinion of the Court.

By a reference to the different statutes relating to appeals and wiits of error, the liability of securities in appeal and writ of error bonds, and the method of enforcing that liability, it will be found, that previous to tbe act of January, 1826, 0 on the affirmance of judgements either in the Circuit or Supreme Court, a certificate of such affirmance went to the Court below; and if the judgement was not satisfied, a scire facias issued against the securities, to bring them into Court to shew cause why judgement should not be entered against them. This was the manner of proceeding against securities until the passage of the act above referred to. This act provides that the Supreme Court shall,' in all cases of affirmance ofjudgements rendered by any inferior Court, give judgement against the security or securities in the bond, executed on obtaining the appeal or writ of error. It is the opinion of the Court, that the provisions of this act do not apply to writs of error prosecuted in the Circuit Courts, because it only authorizes the Supreme Court, by name, to render judgement against the securities in appeal or writ of error bonds prosecuted in the Supreme Court, and there is no provision in the act extending the same powers to the Circuit Court. The liability of securities, and the mode of enforcing that liability against them on bonds for appeals or writs of error from the County to the Circuit Courts, remains the same as it was before the passage of the act referred to. The case of Brown, Maxwell and others, against Butler, determined at the last term of this Court, decided the principle involyed in this case. In the opinion of the Court, there was no error in awarding judgement for fifteen per cent damages; but there was error in rendering judgement against the securities. The judgement must therefore be reversed and the cause remanded.

Note. See Bishop against Cox and Noble, Minor’s Ala Tiepi 204. and Otys’ administrator against Rives, ibid, 401, as to the damages, Judge White not sitting.