Osborne v. Crawley

The plaintiff having obtained a judgmerit, issued an execution from the district court office of Petersburg, against the goods of Rice Newman, and Benjamin Crawley, for 20,000 lbs. inspected tobacco, and the costs, but to be discharged by payment of 10,000 lbs. like inspected tobacco, with legal interest thereon, from 20th December, 1789, till payment and the costs. A forthcoming bond was given by the parties, with Alexander Jones as security. Notice having been given to the defendants, a motion was made for judgment and award of execution on the bond, and the district court ordered “that the said motion be referred and adjourned to the general court for this novelty and difficulty, to wit, that the delivery bond, instead of reciting the quantity of tobacco appearing due by the writ of fieri facias, is taken for 585 pounds of tobacco, more than appears to be due thereby, but this excess appears, by a calculation made in court, of the sum due by the execution, and not on the face of the delivery bond without such palculation: and this court is in doubt whether judgment should be entered for the plaintiff on 114 his releasing *'the said 585 pounds of tobacco, which his counsel offered to do, or whether the motion should be altogether rejected, because the bond was not taken in pursuance of the act of assembly.” The general court, (on the 16th June, 1795,) consisting of Judges Prentis, Parker and Nelson, certified their opinion to be, “That upon the plaintiff’s releasing to the defendants 585 pounds of tobacco, for which the forthcoming bond was taken, more than was due by the execution, by virtue of which it was taken, judgment on the said bond ought to be rendered for the plaintiff.” See Scot v. Hornsby, 1st Call 41; Bell v. Marr, ib. p. 47, &c.