
    Bunnell and Others v. The State, on the relation of Munson and Others.
    In a suit against an administrator and his sureties, on his bond, a general judgment is, perhaps, authorized by the statute; but if the judgment should, in such case, be entered as non-repleviable by the principal, and repleviable by the sureties, the error is not available in this Court, where no motion was made, in the Court below, to correct the judgment.
    
      Saturday, December 1.
    
    APPEAL from the Warren Common Pleas.
   Perkinb, J.

Suit upon an administration bond, against principal and sureties. Judgment for plaintiff.

The appellants object, that the judgment is not sustained by the evidence, and that it is irregular in point of form.

1. As to the evidence. The following is the bill of exceptions: “Be it remembered, that on the trial of the above-entitled cause, the following was all the evidence given to the Court. The plaintiff gave in evidence, four several bonds, copies of -which are filed with the complaint; the inventory, accounts current, applications for sale of real estate, reports o1^ sa"''es rea'' estateJ a^s°’ sa^e‘biH of personal property of the said estate, and the judgment in favor of the relator. The defendant offered in evidence, part of the uncollected notes for the purchase-money of real estate which was sold by the administrator, John W. Bunnell, and in his possession at his decease, and also some notes made payable to the intestate, which remained uncollected, in the hands of said administrator, at the time of his decease •, which was all the evidence given to the Court: and, thereupon, the Court found generally, against all the defendants, and the defendants moved for a new tidal and filed their reasons therefor, which will elsewhere be found; but the Court overruled the motion, and rendered a judgment against said defendants, to which the defendants excepted, and pray that this, their bill of exceptions, may be signed and sealed and made a part of the record, which is done.”

J. B. M. Bryant and T. W. F. Bryant, for appellants.

B. A. Chandler, for appellee.

“¥m. R. Boyeb, O. P. Judge.” [seal.]

It is very manifest that this bill of exceptions does not contain the evidence. In another part of the record, the clerk copies divers papers which, he says, were given in evidence, but we cannot regard his statement. He can not thus bind the Court and parties.

2. As to the form of the judgment. It is general against the principal and sureties. It is claimed, that it should have been non-repleviable, as to the principal, and repleviable, as to the sureties. Perhaps 2 R. S., § 164, p. 287, construed with § 429, p. 133, of the same volume, authorizes the judgment as rendered; but, if they do not, the judgment may be corrected below, on motion, as to form. The point has not been presented to the Common Pleas.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs.  