
    Wilkinson v. M’Lochlin & Co.
    [Friday, November 17, 1797.]
    Forthcoming Bond. — If in a forthcoming bond the teneri be right, though the solvendum be wrong, it will notvitiate; but the bond is good.
    Upon the 6th day of August, 1794, Duncan M’Eochlin & Co. issued a writ of fieri facias against the estate of- Wilkinson, who gave a forthcoming bond, which he forfeited. The execution only amounted to 1871. 13s. 7d. but the condition of the bond recited that it amounted to 1951. 12s. 6d. “including interest, Sheriff’s commissions and all legal costs.” The bond acknowledged the obligors to be held and firmly bound to Duncan M’Eochlin & Co. in the sum of 3911. 5s. 6d. to be paid to the said Duncan M’Eochlin, his certain attorney, his heirs, executors, administrators or assigns:
    The condition recites, whereas Duncan M’Eochlin hath sued out of the County Court of Cumberland a writ of fieri facias, &c.
    The County Court gave judgment for the amount of the condition of the bond. The District Court affirmed the judgment, and from the judgment of affirmance Wilkinson appealed to this Court.
    Washington, for the appellee.
    Upon the ground that the bond is taken for too much, the obligation will not be held void; but the Court will enter judgment for as much as is really due, if the party will release.
    And as to the exception that the execution is at the suit of M’Eochlin & Co. and the condition of the bond is for payment to M’Eochlin only; Scott v. Hornsby, 50 the other day, went the *full length of deciding that point: In which case the Court determined that the bond might be corrected by the execution. Eor, although the condition mentions M’Eochlin only, yet that is an evident mistake; because the penalty mentions the right name, and therefore, we need not go out of the record to ascertain it. If we reason by analogy to the statute of Jeofails, which being in pari materia is therefore applicable, it will be clear; for the provisions of that statute are, .that if the sum or name be right in any part, it shall not vitiate. Though in motions upon bonds of this kind the Court may hold to some strictness, yet the bond being for the benefit of the defendant he ought not to be allowed to object.
    Duval, for the-appellant.
    The bond is in the nature of a scire facias: in which such a variance would have been fatal. The including of the Sheriff’s commissions was palpable error.
    
      
      See foot-note to Scott v. Hornsby, 1 Call 41.
      The principal case is cited in State v. Purcell, 31 W. Va. 56, 5 S. E. Rep. 308; Holt v. Lynch, 18 W. Va. 571; Ambler v. McMechen, Fed. Cas. No. 373, 1 Fed. Cas. 593.
      The principal case is cited as authority in Meredith v. Duval, 1 Munf. 84.
    
    
      
      The four preceding cases being all, in one respect, upon the same subj ect, are printed together, in order that the reader might have the whole doctrine before him at one view.
    
   PER CUR.

The error as to the Sheriff’s commissions might have been corrected; but the solvendum is to Eochlin only, and so does not pursue the execution.

Washington. That will not prejudice; because the teneri is right, and the solvendum is repugnant, and therefore void. It is the teneri which creates the obligation, and the subsequent matter will not vitiate, Robert v. Harnage, 2 Ld. Raym. 1043; 5 Bac. Abr. [163, ed. Gwil.] [Queen Mother v. Challoner,] 1 Sid. 295 ; 3 Dyer, 350. Upon these authorities the bond is clearly good.

ROANE, Judge. Those authorities are satisfactory. The act requires the bond should be made payable to the creditor; and the legal effect of this bond is, that the obligor is bound to the creditor for payment of the money.

The rest of the Judges concurred.

PER CUR. Correct the mistake as to the commissions, and enter such judgment for the appellee as the District Court 51 ought to have entered'; that is, *for the sum due by the execution without the Sheriff’s commissions.  