
    Samuel M. Puckett vs. Thomas Graves, Use of Thomas Lyne.
    Although, as a general rule, a writ of error cannot be prosecuted after the forfeiture of a forthcoming bond, yet, if that bond be made the subject of a motion and judgment, a writ of error may be granted to reverse that judgment, because it is a distinct and independent matter.
    Where the record showed that, at the December term, 1842, of the circuit court, a motion was made to quash a forthcoming bond, which was taken under advisement, and not decided in four months, as required by the statute ; and afterwards, at the December term, 1843, a like motion was made to quash the forthcoming bond, which was sustained, and the bond quashed ; held, although no forthcoming bond was embodied in the record by bill of exceptions, yet it sufficiently appeared that the motion to quash, which had been sustained, was not made at the return term of the forthcoming bond, and was therefore erroneously sustained.
    Where a motion to quash a forthcoming bond is taken by the circuit judge, under advisement, and his decision not rendered in four months, as required by the statute, H. & H. Dig. 481, the motion will be considered as having expired with the term.
    Every motion made in a cause constitutes part of its history, and is as much a part of the record as the declaration, plea, or judgment.
    Tn error, from the Rankin circuit court.
    The record in this case exhibits the following statement of facts, viz.: The record of a judgment in favor of Thomas Graves, who sued for the use of Thomas Lyne against John Shields, Samuel M. Puckett, and William H. Shelton, for $1755 54, rendered on the 17th of April, 1838. At the April term, 1839, a motion was made, in these words: “Motion in this case by defendant’s counsel to quash the forthcoming bond for the following reasons, viz. : ” (The record contains eleven reasons, which it is not deemed requisite to copy.) “ Whereupon,” proceeds the record, “ argument being heard, and the court now sufficiently advised, it is considered that said bond be quashed, upon the ground that it does not appear by the return of the sheriff on the bond that the same was forfeited.” Following this entry in the record is a writ of error and supersedeasto remove the case from that judgment to the high court of errors and appeals; the decision in that court, whether sustaining or reversing the judgment below, does not appear in the record.
    There then follows this entry in the record:
    
      “ December Term, 1842 ; Thomas Graves, use, Spc. v. John Shields et al. Motion by plaintiff in execution, to quash the forthcoming bond, for the following reasons, apparent on the record : 1st. There was no levy made at the time of executing the bond; 2d. The bond is not in double the amount due on the execution; 3d. The condition of the bond is not such as is required by the statute, in this, it does not provide that the bond shall be void on payment of the money; 4th. The bond' is not such as the statute provides.
    D. Shelton, for motion.
    
    Lombard, contra.
    
    “ Entered at December term, 1842, and taken under advisement by the court.”
    Then follows this entry in the record, viz.;
    “ December Term, 1843; Thomas Graves, use, &pc. v. John Shields etal. The plaintiff moves the court to quash the forthcoming bond in this case for reasons filed.
    D. Shelton, for motion.
    
    Lombard, contra.
    
    “And thereupon said motion being heard, and the court being sufficiently advised thereof, it is therefore ordered, adjudged, and decreed, by the court, that said motion be granted, and that said forthcoming bond be quashed.”
    Upon this record, Samuel M. Puckett, one of the defendants in the original judgment, applied, by petition, for a writ of error, to have the judgment quashing the forthcoming bond revised. The writ of error was granted, and the record exhibiting the foregoing facts filed' in this court. Upon it the defendant in error moved to dismiss the writ of error. The cause was submitted upon that motion, and if that was overruled, then upon the merits.
    
      D. Shelton, for motion to dismiss.
    This writ of error was taken out under the 47th section of H. & H. 540, and complies with that section. That act was passed in 1830.
    The motion to dismiss is predicated on the 4th section of an act passed in 1837. Laws of Miss. 753. (H. & H. 541.) I refer to Laws of Mississippi, because in H. & H. the sections are not given; in the Laws of Mississippi they are, and the section referred to is as follows :
    “ Sec. 4. Be it further enacted, That no writ of error shall be granted in a case where a forthcoming bond shall have been given and forfeited; and upon all affirmances of the judgment under this act, the same damages shall be allowed as are now recognized on appeal cases.”
    My position is, that this section takes from the clerk the power to grant a writ of error where the record filed in his office shows that a forthcoming bond has been taken and forfeited. The language of the section is neither doubtful nor equivocal. It requires no construction by reference to other parts of the act, or to the object of the law. It is prohibitory in all cases. Its meaning may easily be drawn from the language of the section itself. Its construction is not doubtful, but its language is direct and certain: nothing less, therefore, than palpable absurdity upon the face of the act, can prevent its language from being the law of the land.
    But it may be replied, that it takes from the party all remedy for an erroneous judgment of an inferior court. If such were the case I would concede the point; but it is not. By H. & H. 538, sec. 39, 40, 41, he has an appeal from the judgment of the court below, to be taken during the term of the court. This is an efficient remedy, and, moreover, it is a remedy more politic and more proper than that by writ of error. The object of the 1st and 2d sections of the law of 1837, is to afford facilities for testing the merits of the cause before the highest tribunal in the state. The object of the 4th section is to cut off contest after those merits have been tested; both objects are legitimate and proper; a full adjudication of the cause first, and an end of strife afterwards.
    The practical results of enforcing the statute will be fair and just. After judgment has been given against a defendant, after he has given a forthcoming bond, by which he acknowledges the correctness of that judgment, after he has violated his good faith by not delivering the property as he by said bond binds himself to do, it is scarcely fair that he should renew the conflict by motion ; coerce some judgment of the court upon that motion, it may be a correct judgment; remain passive for three years, or until the money is about to be forced from him, and then, as a matter of right, suspend, by writ of error supersedeas, the payment, until the cause can be litigated in the supreme court. See 3 How. 34.
    The act of 1837 very wisely leaves in force the remedy by appeal from all judgments rendered subsequent to the forfeiture of the bond, because that remedy will attain justice equally well with the writ of error, and cannot be made a mere engine to harass an adverse litigant, and to prolong payment. It is guarded from abuse, because it must be taken during the term at which the judgment complained of was rendered, and may pot be obtained three years afterwards, because it may not be demanded as a matter of right, but must be allowed under an order of court.
    For these reasons I think the act should be enforced, and that its language correctly interprets the object of the legislature, and must be enforced.
    This view of the case is strengthened by the 3d section of the act of 1837, which provides “ that all acts, or parts of acts, inconsistent with the provisions of this act, are hereby repealed.”
    Now so much of the 47th sec. H. & H. 540, as authorizes the clerk to issue a writ of error, after a forthcoming bond taken and forfeited, is inconsistent with the 4th section, above recited.
    
      
      W. ~Yerger, for plaintiff in error.
    There is no bill of exceptions incorporating the bond in the record, and consequently it is said this court cannot say whether there was error or not. To this I answer, that this court has repeatedly decided that a judgment quashing a forthcoming bond after the return term, is void. Now it appears clearly from the record, that this motion was made many terms after the return, to wit, the return on the execution, showing when the bond was taken. Second, the motion and order, quashing the bond made at the May term, 1839, and which was reversed by this court. Third, a motion made at the December term, 1842, to quash the bond taken under advisement, and not disposed of; —all of which entries and orders are on record, and show that the motion in this case was made many terms after the return, and is therefore void.
    
      D. Shelton, for defendant in error, on final hearing.
    To avoid unnecessary controversy, I will admit the principle decided in Field v. Morse and Harrod, 1 S. & M. 347, “ That an order of court, quashing a forthcoming bond, after the return term, is erroneous.” But I am far from admitting that that principle decides the present case.
    There is nothing in this record to negative the position that the bond quashed at the December term, 1843, was returnable to that term. I admit that the transcript filed shows that a bond was taken, returnable to the October term, 1838. I admit that, by the judgment of this court, at the January term, 1841, (6 How. 262,) the judgment of the circuit court of Rankin county quashing that bond, made at its April term, 1839, was reversed, and consequently that bond was in force and effect after the January term, 1841, of this court. But I deny that the plaintiff in error can sustain- by this record that the bond before mentioned is that bond which was quashed by the order made at the December term, 1843. If the plaintiff in error seek to reverse a judgment, he must put his finger upon the error, and show its existence by the record; all doubts and presumptions are in favor of the correctness of the judgment below. 6 How. R. 266. And though there be a copy of a forthcoming bond in the transcript, there'is no evidence that it is the same that was presented for the consideration of the court below. And this court cannot notice it unless it be made a component part of the record, by being spread at length in a. bill of exceptions. The bond constitutes no part of the record, unless madg so by bill of exceptions. 2 How. R. 845 ; 4 Ibid. 328; 5 Ibid. 278; 6 Ibid. 262, 5S0; 1 S. & M. 629; 2 Ibid. 535.
    A comparison of the case of Conn v. Pender, 1 S. & M. 386, and Pender v. Felts, 2 Ibid. 539, will, I think, correctly-settle the rule upon this question. These cases both grew .out of the same bond, and the same motion to quash,
    In the .circuit court Pender had obtained judgment against Felts. He gave a forthcoming bond, with Conn as his surety, forfeited September term, 1838. At the June term, 1840, a motion was made to quash the bond. It was quashed as to Felts, and motion overruled as to Conn. A ji. fa. was issued against Conn on the bond, and again he moved to quash both bond and execution, which the court refused to do. Conn excepted, and on his exceptions brought this last motion before this court, which reversed the judgment and quashed the execution, without quashing the bond.
    But Pender had taken no exceptions to the order quashing the bond as to Felts, at the June term, 1840. Nevertheless, by writ of error, he brought up to this court the judgment of June term, 1840, and asks this court to reverse that, and thereby restore, the validity of the bond. The court say, “ The bond is not made a part of the record, nor does it appear at what terpa the bond was forfeited, or for what reason it was .quashed. A judgment is a conclusion of law upon .ascertained facts. We can only judge of the propriety of the conclusion, from an inspection of the facts. We must presume, under these confined means of judging, that the court below did not err.”
    The decision in the case of Conn v. Pender is that which I admit at the beginning of this argument, “That an order quashing a forthcoming bond, after the return term thereof, is erroneous.” The case of Pender v. Felts determines all that I contend for in the present case, and what is decided in other cases already referred to, “ that this error is not shown, and cannot be noticed by this court, unless the bond quashed be made a part of the record, by being spread at length in a bill of exceptions.”
    All that this court can do in the present case, is to affirm the judgment of the court below, because no error is apparent upon the face of the record.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

On petition for re-argument.

This case is submitted on a motion to dismiss the writ of error, and also on the merits, if that motion should be overruled. The ground relied on for dismissing is, that a writ of error was granted after a forthcoming bond had been forfeited, and yet on the merits it is insisted that the judgment of the circuit court must be affirmed, because there is no forthcoming bond set out in the record. If there be no bond, how are we to know that the writ of error was granted after a bond had been forfeited'? The counsel for the defendant in error seeks first to dismiss, and if that cannot be done, then he seeks to sustain a judgment by which a forthcoming bond was quashed. If the-bond was quashed, the presumption is that it was void, and presented no impediment to the suing out of a writ of error. But the truth is, the writ of error brings up the judgment only by which the bond was quashed, rendered at December term, 1843. Although a writ of error, as to the original judgment, is barred by the forfeiture of a forthcoming bond, yet if the bond be the subject of a motion and judgment, a writ of error may be granted to reverse that judgment, because it is a distinct and independent matter; it is then a new proceeding, and that is the case in this instance. There is therefore no ground for dismissing.

As the record is defective in not containing the bond, properly incorporated in a bill of exceptions, we have no means of knowing whether the bond was so defective as to justify the judgment, and the presumption -would be that the judgment was correct, until the contrary was shown. But on the other side, it is insisted that the judgment by which the bond was quashed was rendered at a term subsequent to the return term, and for that reason ought to be reversed. To this it is answered, that no such fact appears by the record. What, then, does the record show 1 First, the original proceedings in the suit up to judgment; second, amotion to quash a forthcoming bond, made at April term, 1839, and sustained; third, a motion made at December term, 1842, to quash a forthcoming bond, which was taken under advisement, but the record does not show any judgment on it; and, fourth, another motion to quash the forthcoming bond, made at December term, 1843, which was sustained, to reverse which this writ of error was granted. The argument is, that nothing but this last motion is properly a part of the record, and beyond this we cannot look. It is impossible to perceive any reason why one motion to quash a forthcoming bond in a cause should be part of the record, and another motion of the same kind, made in the same cause, should not constitute part of the record. It is a mistake to suppose that it is not so. Every motion made in a cause constitutes part of its history, and is as much a part of the record as the declaration, plea, or judgment. The evidence offered is no part of the record, unless made so by bill of exceptions. In this aspect of the case how does the matter stand 1 In April, 1839, a bond was quashed on motion. At December term, 1842, another motion was made to quash a forthcoming bond, which was taken under advisement, and never decided; and a year afterwards, at December term, 1843, another motion was made to quash the same bond, as we must suppose, that was attempted to be quashed at December term, 1842. We say that the two last motions were made to quash the same bond, because there can be but one valid bond given; the law does not allow more, and, as the bond was not quashed on the motion in 1842, it must have been the same bond which was quashed in 1843. Assuming, then, that December term, 1842, was the return term of the bond, that was the proper term to quash it; and although the court may have had the power to take the motion under advisement, yet the decision should have been made in writing, within four months. H. & H. Dig. 481. And as it was not so made, the effect was, that the motion expired with the term. According to this view of the case, the bond was quashed twelve months after the return term. That was too late, and the judgment was therefore void. The truth is, however, the first judgment quashing the bond, rendered at April term, 1839, was brought to this court by writ of error, and the judgment reversed. The bond, then, which was quashed at December term, 1843, was returnable at least as early as April, 1839. But it is insisted that this does not appear by the record; that it is only theory. It is a theory which we shall always feel bound to adopt when an effort is made to get rid of the effects of the judgments of this court, and the rules of law they establish. If we are to shut our eyes against our own judgments, we may be called on to decide cases over and over again.

Judgment reversed.

The defendant in error, on the delivery of the foregoing opinion, applied in the regular way for a rehearing. The application was refused.  