Shields et al. v. Graves, Executor &c., 6 Howard 262

Opinion of the court by Chief Justice Sharkey. A motion was made in the circuit court .to quash a forthcoming bond, which was sustained; to reverse which error is brought, but the bond is not placed on the record by bill of exceptions, and still it is insisted that it constitutes properly a part of the record, and that the court may notice it as such. We incline to adhere to the decision of this court in the case of Grigsby v.

Francis, 2 Howard, 845, in which it was held, that, on motion to quash a forthcoming bond and fieri facias, they must be placed upon the record by bill of exceptions, otherwise they will not be regarded as constituting a part of the record. But this question is immaterial in the present case. We always regard the judgments of the circuit courts as correct, unless the error be shown; and it devolves upon the plaintiff in error to put his finger upon the error in the proceedings; but when the judgment contains on its face an apparent error, he need go no further than point to that.

This judgment does exhibit such an error. We have the record of the motion and the reasons on which it was founded; we have the judgment sustaining the motion, which, on its face, states a fact as the reason for sustaining the motion. The court ordered and adjudged that the bond should be quashed “upon the ground that it does not appear by the return of the sheriff on the bond that the same was forfeited.” This was erroneous, for three reasons: First.

It is sufficient if the sheriff return on the execution that the bond was forfeited; it is not required that the return should be indorsed on the bond, and, for aught that appears, such return may have been made. Second. There is no law that requires a party to forfeit his bond; for any thing that appears, the condition may have been literally performed by a delivery of the property, and still it is quashed, because it was not returned forfeited, when there is nothing to show that it was forfeited. Lastly. A bond can only be quashed for some inherent defect.

The return constitutes no part of the bond; and a defective return of the sheriff, or no return at all, will not justify the quashing of a good bond. It might afford a reason for quashing the execution, which purports to emanate on a forfeited bond. The bond may be perfectly good, although the sheriff may make a bad return, or may fail to make any return. The bond is the act of the defendant, the return the act of the sheriff, and they are not dependent on one another. The judgment must be reversed.