
    Supreme Court of Errors and Appeals. Charlotte.
    1823.
    STUART v. DAVIDSON ET AL.
    Defendant in error who had succeeded in the court below dies pending the writ of error*, scire facias issues, and is made known to the personal representatives; the cause stands for hearing at the first term. [Acc. Code 2944.]
    The plea of non est factum, specially stating that the bond for an appeal was signed in blank, held not sufficient for want of an averment that the same was not sealed and delivered; for there may have been a subsequent acknowledgment and delivery. [Acc. Grissom v. Fite, 1 Head, 335, citing this case.]
    An excess of damages in debt above that in the writ, not fatal to the judgment: it may have arisen by procrastination of the suit, and the objection does not go to the merits. [See Goodman v. Floyd, .2 Hum. 69; Thompson v. French, 10 Y. 458; Crabb v. Nashville Bank, 6 Y. 332.
   Reck, J.

delivered the opinion of the Court. '

After this writ of error had been taken and the cause brought up into this Court, one of the defendants in error departed this life. On suggestion of his death in the Supreme Court, scire facias issued and was served upon his personal representatives, calling upon them to appear and hear judgment; and the question was made whether'or not the cause stood for ai’gument at the present term.

The Court is of opinion that the cause now stands for hearing on the issue made. Sellon’s Practice, 406, 407; 2 Saunders, 101.

The cause progressed, and it appeared from the record that this was an action of debt brought in Stuart County for $ 1,865.62^- and damages $ 100.

The cause remained in the County Court upon the plea of payment and issue, when a trial was had at May term, 1820, and a verdict rendered for $ 1,050, and damages $167.75 on which verdict judgment is rendered, and an appeal taken to the Circuit Court. James Caldwell. and Thomas Buckingham appear by the record to have entered themselves security for the appeal.

On a trial in the Circuit Court there was a verdict and judgment for $ 1,121.13 and damages $ 156.95.

On motion at the time of taking the judgment, it was rendered against the securities for the appeal. Fieri facias issued against the original defendant and securities ; which was superseded by an order from the circuit judge, and at the subsequent term Buckingham and Caldwell appeared and suggested their errors in the said judgment, in this: that the said paper purporting to be an appeal bond signed by Davidson and the said Caldwell and Buckingham, at the time of the signature thereof, was a blank piece of paper, and that the said writing, purporting to be an appeal bond, written above the names of them, &c., was written on the said paper long subsequent to the signature thereof by them, &c., and so they say the same is not their deed, which they are ready to verify.”

This was sworn to and filed, to which there was a general demurrer. On the argument whereof the Court gave judgment against the demurrer, set aside so much of the judgment as had passed against Caldwell and Buckingham with cost, from which judgment Stuart prayed his appeal in the nature of a writ of error to this Court.

Several points are made, two of which only will be noticed.

First, It is said in the matter assigned by way of error, it is not averred that there was no sealing and delivery of the bond, and that the truth of every fact stated may be safely admitted, and yet the bond may have been good, by subsequent delivery or acknowledgment, and of this opinion was the whole Court. 3 Bibb’s Ky. Rep. 351; 11 Rep. 10 ; 5 J. R. 66; Plowden, 231; 2 Henry Bl. 182, 776.

Second, It is said that more damages have been given than the amount laid in the writ. Answer, that may have arisen from the length of time the cause remained in court, or from the manner the jury gave the credits on the bond, by not applying them to the extinguishment of the interest; no new trial was asked for in this cause in the Circuit Court, and the objection does not go to the merits.

Judgment against principal and the securities in the appeal.  