Stuart v. Lee , 3 Va. 364 ( 1803 )

ROANE, Judge.

I am of opinion, that the judgment ought to be reversed for the reasons assigned by the appellants’ counsel. As this action is, by the successor of the Governor, for the benefit of persons injured, it is to be brought under the act of Assembly; and the only question is, whether, it is sustainable under it or not? It is not: By the then law, the bond should have been given to the Justices: A 1,000Z. also, is stated in the act, as an essential part of the condition; and, therefore, not to be varied from.

FLEMING, Judge.

The bond is not taken as the act of Assembly directs; for, by that, it should have been made payable to the Justices, and the penalty should have been 1,000/. only. The suit is brought upon it, however, as a bond taken under the act; and, therefore, the action not sustainable. I am, consequently of opinion, that the judgmerit ought to be reversed.

LYONS, Judge.

The Court are unanimously of opinion, that the judgment is to be reversed; and the entry is to be as follows:

“ The Court is of opinion, that the said judgment is erroneous in this, that as the bond in the declaration mentioned, on which the suit is brought in the name of the said Henry Lee, esq’r. Governor of the Commonwealth of Virginia, as successor to Beverly Randolph, &c. as above mentioned, was not taken pursuant to law, or the act of Assembly in such case made and provided, no action can be had or maintained thereon by the said Henry Lee, esq'r. in his character of Governor or successor in office only; therefore, it is considered that the same be reversed, anti that the appellants recover their costs against the said defendant Burnside