
    *M’Kinster, &c. v. Garrott and Others.
    December, 1825.
    Forthcoming: Bond-Motion on — Pleadings.—No formal issue need be joined on a motion on a forthcoming bond,.as the pleadings may be ore tenus, and the Court may pronounce judgment on the evidence. '
    Same — Delivery of Goods — When Not Good. — Where, on the day of sale mentioned in the forthcoming bond, the property is on the spot before 1 o’clock, but not delivered to the sheriff until after 4 o’clock, this will not be a good delivery under the act of 1821, in certain cases, and the bond will be forfeited.
    This was an appeal from the Superior Court of Buckingham, in which 'Court a judgment of the County Court had been reversed.
    The case was this. A forthcoming bond had been executed on the 14th day of March, 1821, by John Coughlan, with Drury Childers and Charles' Garrott, as his sureties. This bond was returned “forfeited.” A motion was made, and the defendants pleaded that they had performed the condition of the bond by delivering the property at the day of sale, to the sheriff.
    On the trial, the defendants proved by witnesses, that the slave mentioned in the forthcoming bond, was tendered to the sheriff at Buckingham court-house, in the evening after 4 o’clock, and before 5 o’clock of the day of sale: that the sheriff refused to receive it, saying it was too late; and that the slave was in the cellar of a tavern at /Buckingham court-house, between 12 and 1 o’clock of the same day.
    The County Court rendered judgment for the plaintiffs; and the defendants excepted to the opinion of the Court, setting out the foregoing evidence, and appealed to the Superior Court.
    The Superior Court reversed the judgment, and the plaintiffs’ appealed to this Court.'
    Bacchus, for the appellants,
    relied on the act of Assembly, Sessions Acts of 1821, p. 35, to prove that the property must be sold before 4 o’clock of the day of sale; and *this not having been done, ’ the bond was forfeited and the sureties remained bound.
    S. Taylor, for the appellees.
    The bond was executed in Buckingham county, only ten days after the passage of the act in question. It is hardly to be supposed, that the defendants could have had notice of it. But however this may be, the act was made entirely for the benefit of the debtor, who might renounce its benefit if he pleased. In this case, he did renounce it by delivering the property after 4 o’clock.
    The proceedings were irregular, because no issue was joined, and none tendered.
    December 1.
    
      
      Forthcoming Bond — Motion on — Pleading.—In Hornbrooks v. Lucas. 24 W. Va. 503, it is said: “It is claimed, as it was in the last' cited English case, that the tenant has not sufficiently set up this defense. To the motion on the forthcoming bond in this case the defendants filed no written plea; and no written plea need be filed to a motion on a forthcoming bond. The pleading in such case may be and usually is by parol; and this of itself would prevent any mere technical advantage of this sort being taken, provided the record shows, as this record does, that the parties had full knowledge of the questions in controversy, and no point of this character was made in the court below. See McMmterv. Garrott, 3 Band. 554.” In a summary motion, the pleadings maybe ore tenus and thecourt may pronounce judgment on the evidence. Cecil v. Early, 10 Gratt. 202, citing principal case as authority. To the same effect the principal case is cited in Bunch v. Fluvanna Co.. 86 Va. 454. 10 S. E. Rep. 532; Wallace v. McCarty. 8 W. Va.’ 200; Cent. Land Co. v. Calhoun. 16 W. Va. 375.
      Same — Sheriff’s Return — Conclusiveness of. — In Adler v. Green, 18 W. Va. 206. it is said; “The uniform practice in Virginia has "been to contradict the sheriff’s return of ‘forfeited’ upon forthcoming bonds, as illustrated in a number of cases in the Virginia reports, without even a suggestion being made in any of those cases, that the sheriff’s return was conclusive of the forfeiture. McKinster v. Gar-rott. 3 Band. 554: Bernard v. Scott. 3 Rand. 522; Pleasants v. Lewis. I Wash. 273: Nicolas v.Fletcher, 1 Wash. 330; Burke v. Levy, 1 Rand. 1; Jones v. Raine. 4 Rand. 386; Cole v. Fenwick. 1 Gilm. 134. I am of opinion, therefore, that a sheriff’s return upon a forthcoming bond is not conclusive but only prima facie.” See further, monographic note on “Statutory Bonds’.’ appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
       Absent, thePKíisnasHT, and Judge Coalteb.
    
   JUDGE GREEN,

delivered his opinion:

The objection, that no issue was joined in form upon the defendants’ plea, has no weight. Executions are awarded on forthcoming bonds, in a summary way, upon motion. The pleadings may be ore tenus; and the Court may pronounce judgment on the evidence.

The forthcoming bond in question, was given after the act of 1821, was in force; by which it was directed, that in certain cases, sales under executions should be made at the court-houses, on the first day of the Court, and between the hours of 12 and 4 o’clock. The parties are to be presumed to have known this law; and I am satisfied, upon the facts stated in the bill of exceptions, did know it. When the obligors bound themselves to deliver the property, at the time and place appointed for the sale, “to be sold to satisfy the execution,” they bound themselves to deliver it, at such time as that it might then and there be legally sold, for that purpose; and the legal effect of the contract would be the same, if those words were omitted in the bond. In contracts appointing some act to be done on a given day, there is no inflexible rule that the party shall have until sundown of the day, to perform his contract. *That time is allowed, when it appears, from the circumstances of the case, to be most convenient to both parties; as if a sum of money is to be paid, that rule is adopted to avoid the inconvenience of one party being bound to wait the whole day for the other. But even in that case, payment must be made in time to count the money before sun-down. So that if a very large sum were to be paid, the payment should be made early in the day. 5 Co. 114. The rule is, that the stipulated act is to be performed at that period of the day, which may appear, from the circumstances of the case, to be the most proper for attaining the object of the contract, as, in case of a contract to pay money upon the transfer of stock; the party must pay within the hours, when the transfer of the stock can be made, according to the rules of the institution, which can alone complete the transfer. 1 Esp. N. P. 160. If the parties are bound by the rules, in this respect, and must be supposed to have those rules in view when contracting, they are surely bound by a statute. This statute, T incline to think, may fairly be considered as declaring the common opinion of the country, as to the convenient time for effecting a sale under execution, and as affording a good general rule, even in cases to which it does not, in terms, apply.

It is true, as was said at the bar, that this statute was introduced for the benefit of the debtor, in respect to the place of sale, but not as to the period of the day when sales should be made. In respect to that, the plaintiff, as well as the defendant, is interested; and it requires the consent of both parties, to justify the sheriff in departing from the directions 'of the statute. The consent of the defendant alone, would not be sufficient; nor would the delivery of the property, after the appointed hour, amount to such consent. Tn this case, the defendant did not intend that the delivery of the property should have that effect. The property was on the spot between 12 and 1 o’clock. He delayed delivering it, until after 4 o’clock, for the purpose *of avoiding the sale, at the same time that he supposed that the bond would be saved. If the sheriff had accepted and sold the property, we should probably now be considering, whether he was not liable to the defendant, in damages, for that act.

The judgment of the Superior Court should be reversed, and that of the County Court, affirmed.

The other Judges concurred.  