
    Columbia
    November Term 1815.
    James W. Darby Commissioner in Equity vs. Executors of Thomas Hunt.
    Gist, for the Motion.
    CRES WELL~ Con fra~
    Motion to set aside non-suit.
    Action of Debt.
    This was an action of debt brought on a bond given to the commissioners in equity upon a writ of ne exeat issuing out of the Court of Equity in a suit wherein B. H. Saxon~ was complainant and. J. D. Pucliett defendant to restrain the defendant from leaving the state or departing from the said court without the leave thereof.
    The condition of' the said bond was as follows: " The condition of the above obligation is such that if th~ above bound D. J. Puckett do app ear at the Court of Common Pleas to be holden at Union court-house for Union district on the fourth Monday in June next to answer to B. H. Saxon in a bill of equity now pending in the said Court and not de part without leave thereof then the above obligation to be void and of no effect; or else to remain in full force and virtue.
    (Signed)
    D. J. PTJOKETT (L. S.)
    Tb'S. B. HUNT (L. S.)
    Signed sealed and delivered in the presence of JOHN LUSL
    
      The defendant pleaded the general issue. On the trial it was proved that Thomas B. Hunt gave the bond, and he acknowledged several times afterwards that he had given a bond for one thousand dollars, for jPuckett’s appearance at the Court of Equity, in June, 1813, and that he should have it to pay. It was also proved, that the Court of Equity sat the fourth Monday in June, at Union court house ; that Puckett did not appear, and that soon after he gave the bond, he removed from this state into the western states, and has not since returned. It was proved that Puckett was a lawyer, and that the blanks in the bond were in his handwriting. The decree of the Court of Equity was produced for seventeen hundred thirty-seven dollars and eigh!y-seven cents, in favour of B. II. Saxon against D. J. Puckett, and the writ of ne exeat, with the bill and other papers. The plaintiff then closed his testimony; on which the Court ordered a non-suit, on the ground that the condition of the bond was void in law. The plaintiff gives notice that he will move the Constitutional Court to be holden at Columbia, on the conclusion of the Circuit, to set aside the non-suit on the following grounds :—
    1st, Because there was sufficient evidence to have been left to the jury.
    2ndly, Because the ambiguity of the condition of the bond was explained by parol testimony.
    
      3rdly, Because the condition of the bond was suf-fieiently certain to support the action.
    4thly, Because the bond was drawn by one of the obligors, who was a lawyer, and drawn designedly erroneous, and the defendant could take no advantage of the error.
    5thly, Because fraud, in drawing the bond by the obligor, was alleged and sufficiently proved; and under all the circumstances ought to have been left to a jury.
   Nott, J.

The court must judge of the validity of this bond from the instrument itself. If it is not good on the face of it, parol evidence could not make it so, and ought not to have been admitted. It appears to me so erroneous, both in form and substance, that there can be no doubt about it. It requires the party to appear at the court of common pleas, at Union court house, at a time when there was no court sitting, to answer to B. H. Saxon in a bill in equity, a subject over which the court had not control, and for a purpose which the process did not require, even in the court of equity. The non-suit, therefore, was well ordered and ought not to be set aside.

Grimke, Brevard, Smith, Colcock, and Bax concurred.  