
    Ann B. Robinson et al. vs. James E. White.
    After a judgment by default upon due notice, on a three months’ replevy bond for rent, a clear case of error must be made out to entitle the defendant to a reversal.
    It is no objection to a three months’ replevy bond for rent, that it does not recite to whom the rent is due; the obligor is estopped by the bond from denying that the rent is due; and if the bond be made payable to the constable, a payment to him before assignment will be valid ; and so also will ' a payment to his assignee; and a motion and judgment on such bond by the assignee would be a bar to all future action upon it.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge.
    The defendant in error, made the following motion in the court below against the plaintiffs in error, viz. :
    “ James E. White, by his attorney, moves for judgment against A. B. Robinson and Edwin Moody, for debt, $203.25, and damages, the interest on that sum from the 17th day of November, 1843, until judgment rendered. For that whereas, on the said 6th day of November, 1843, the said James E. White, sued out his attachment before James H. Boyd, a justice of the peace, for Hinds county, Mississippi, against the said A. B. Robinson, for $203.25, for rent due and.in arrear, which attachment was, on the 17th day of November, 1843, levied on certain personalty, the property of the said A. B. Robinson, by J. W. Fite, constable of said county. And whereas the said property was replevied by the said A. B. Robinson and Edwin Moody, (by the style of E. Moody,) making and delivering to said J. W. Fite, constable, (by the style of J. W. Fite, const.) their bond sealed with their seals, and here to the court shown, dated the 17th day of November, 1843, in the penal sum of four hundred and dollars, conditioned, that if the said A. B. Robinson, should well and truly pay the amount of two hundred and three dollars, with lawful interest on the same, and all costs at the end of three months from the date of said bond, then said obligation to be void, otherwise to remain in full force and virtue. And whereas the said bond was on the 17th day of November, 1843, assigned and delivered to the said James E. White, by the said Joseph W. Fite, constable, (written const.) And whereas, the said sum of §203.25, and interest and costs have not been paid, or any part thereof. Therefore the said James E. White, moves the court for judgment as aforesaid.”
    Notice that this motion had been filed, and would be tried on the 23d day of March, 1844, was served on both defendants on the 6th of March, 1844.
    On the 23d of March, the motion was taken up, and judgment rendered for the plaintiff, for the debt and interest by default.
    It is to reverse this judgment that the writ of error is prosecuted.
    
      TV. G. Thompson, for plaintiffs in error.
    In the case of Tooly et al. v. Culbertson, 5 How. R. 272, it was expressly decided by this court, Chief Justice ShaRKEy, delivering the opinion, that the proceedings previous to the bond, given by the defendant in attachment, form no part of the record, unless spread out in a bill of exceptions; that in such case the defendant’s bond becomes the foundation of a new proceeding. It is contended, that the bond in this case is not sufficient to authorize the awarding of an execution thereon. It is the breach of the condition only which gives the party a right to his execution. But there is nothing in the condition of this bond, nor in its recitals, to show that ever James E. White had any transaction or contract for rent, or other thing with the plaintiffs in error. The condition is not to pay the amount of the bond to him. The bond does not recite that an attachment for rent was issued in his favor. The bond is assigned to him by the payee, Jo. W. Fite, const., (whatever such soubriquet be taken to mean); but he does not appear from the bond itself to have any connection with the cause. How is it possible to say that the breach of the condition in this bond could give to the defendant in error a right to an execution 1 The bond itself, and that alone, as decided in 5 How. already cited, is the foundation of this cause. And in the bond must appear everything which can entitle the party to-call for an execution. The bond appearing in court unsatisfied, the court will, on due notice given, award an execution ; just as judgment will be rendered on a declaration. In both alike, the plaintiff’s right must appear. Admitting that the condition of this bond has been broken, is there anything whatever to show that James E. White has been damnified! It is not payable to him, does not recite an attachment in his favor, the condition is not to pay money to him. The mere assignment to him, by the payee, gives him no right to call for an execution. The statute requires that replevy bonds, given on attachments for rent, shall be delivered by the officer to the lessors. And if it appears by the bond itself that it was given for the benefit of the party holding it, and who calls for an execution, the court is bound to award it in his favor. But the statute does not direct the officer to assign such bonds. And if a party claims an interest in the bond by virtue merely of an assignment under any other statute authorizing the assignment of bonds, he must assuredly proceed in the assertion of his rights in this case under such statute as in all cases of assigned bonds, by ordinary suit. For there is nothing whatever here, showing that he is entitled to the privilege granted by statute to lessors, in the mode of recovering rent. It does not appear that this bond was made payable to any officer authorized to take such bond.
    
      D. Shelton, for defendant in error.
    
      I. The whole argument urged for the plaintiffs in error, applies to the bond upon which the motion was founded, and not to the motion, or any proceedings thereon. ■
    That bond is no part of the record. It is no part of the proceedings on the motion. It is the cause of action on which the motion is brought, and the foundation of the motion like a promissory note, is the foundation of an action of assumpsit, or like this same bond, would be the foundation of debt brought thereon, and like the note, or the bond in debt, it is the evidence in the cause, not a part of the pleadings, or record therein.
    2. But it may be asked if the motion be sufficient, and the bond not such as the statute requires, how shall the defendants make their defence. The answer is plain, such a state of facts would be a material variance between the bond offered in evidence and the description of it in the motion. And again on such a motion the statute would allow no such bond to be read in evidence as was then offered; for either of these reasons, therefore, the evidence would be excluded, or before the court, either would be good cause why the judgment should not be rendered for the plaintiff on the motion ; but if the court erred, exceptions could be taken to the judgment of the court on the evidence given, and by the exceptions the whole of the evidence be made part of the record, and revised by this court. Such would be the proper practice, any other would be loose and informal and tending to confound the evidence in the cause with the pleadings th.ereon.
    3. But admitting the bond to be a part of the record, it is in accordance with the statute, it is made payable to the officer levying the attachment, and by him assigned to the landlord. The bond is property taken, and the assignment transfers the right of action. 7 How. R. 254, 248 ; 5 How. 272. The statute requires that the bond shall mention that the same was entered into for goods distrained for rent, and restored to the debtor, and that before the three months expire, it shall be delivered to the lessor for whom distress was made. H. & H. 559, § 48. Every one of these requisitions are complied with in this case. But it is urged that the bond should have recited for whose benefit and in whose favor the attachment was levied. The statute makes no- such requisition, nor is such a recital necessary to determine the rights of the parties; the defendant executes the bond, knowing for whom the distress is made by such bond ; he acknowledges the rent to be due to the lessor distraining. 5 How. R. 271. Any description therefore of the attachment that is levied, would be wholly superfluous, and any variance, however material, between the attachment levied and the description thereof in the bond, would not vitiate the bond, because the whole recital would be superfluous. It is sufficient to recite that the' bond was entered into for property distrained for rent, and the co-urt would not refuse to give efficacy to the bond, because it contained a superfluous recital. To sustain such objections would be to sacrifice the ends of justice to its forms. 7 How. R. 248.
    4. But I farther contend that, for the purpose of showing for whose benefit the breach of the condition of the bond accrued, we had a right to read, on trial of the motion, the whole proceedings in the attachment cause, and also the assignment of the constable on the bond itself, and that such showing wás as good evidence in that court as a recital of the facts in the bond itself would be, and indeed better, the recitals being but admissions, the other being record evidence of the same facts; and upon the other hand, the defendants might have read these proceedings to show any fact there shown material to their de-fence, and to the judgment of the court thereon either party might except and by his bill bring up that evidence to this court. 5 How. 272.
    But this court must make all presumptions in favor of the judgment of the court below. It must therefore presume that all these things were read in evidence below, and read without objection by the defendants, and if so, the objection cannot be made available here.
   Mr. Justice Clayton,

delivered the opinion of the court.

This was a motion in the circuit court of Hinds county, against the plaintiffs in error, upon a replevy bond, executed by them for the release of property taken under a distress for rent. The obligors were duly served with notice of the motion, but they did not appear, or make defence, and afterwards sued out this writ of error.

Under these circumstances, a clear case of error must be made out, to entitle a party to a reversal. The principal cause relied on as error is, that the bond does not recite to whom the rent is due. It is made payable to the constable who levied the attachment; recites the amount of rent that is due, and undertakes to pay at the end of three months. It is assigned to the defendant in error. It estops the obligors to deny that the rent is due. 5 How. 271. There can be no doubt, that if payment had been made to the consl^ble, before the assignment, it would have been a valid discharge of the bond. So if made to White after the assignment. The proceedings in this case would likewise be a bar to all future action upon it. Moreover the statute does not require such recital, and it is not for us to add to its requisitions or impose.new terms.

The judgment will be affirmed.  