
    Buchanan v. Maynadier.
    [April, 1806.]
    Forthcoming Bonds — Recital ot Execution — Variance —When Unimportant. — It the forthcoming- bond recites an execution, and that property has "been taken to satisfy it, a variance, between the sheriff’s return and the bond, provided the bon d agrees with the execution, is unimportant.
    Same — Alteration by Clerk — Effect.—If the clerk of the court alter a forthcoming bond, it will not prejudice the plaintiff; but the bond will be restored to what it originally was.
    The appellee issued an execution, returnable to the clerk’s office, and directed to the sheriff of Berkeley county, ag-ainst the body of the appellant; who surrendered property, and then gave a forthcoming bond, which recited that the property was in the hands of Janies Campbell, high sheriff of Berkeley county. The return made upon the execution was subscribed, “ B. Stevenson, D. S. for W. Little.” The forthcoming bond, when returned to the clerk’s office, bore date the 10th of July. Judgment was rendered upon it; but, by mistake, the clerk inserted July 20th : And, afterwards, as appeared, the date of the bond was altered to the 20th ; but this was not discovered until a subsequent term. Buchanan appealed to the court of appeals.
    *Hay, for the appellant.
    The writ is made returnable at the clerk’s office, without even stating that the sheriff should have the defendant’s body before the justices : which it ought to have done, as the justices only had power to make an order upon it. The return upon the execution is by Stevenson, as deputy of Little ; and the bond says that Campbell was the sheriff: Which is a plain variance, and not explained. Therefore it does not appear, that the bond was taken upon the execution ; for it is not shewn that Little ever was sheriff. But the bond must be taken by the sheriff, or it is not a forthcoming bond. The bond having been altered, the court cannot now enter judgment on it, Shep. Touch. 66 : And it makes no difference, that the clerk, instead of the party, did it; for the party may have redress against the clerk. The bond is not a record, but a bond only. The law calls it by the latter name ; and in all proceedings it is treated as such. A record is a memorial of judicial proceedings, Co. Litt. 260; but a bond is an instrument sealed and delivered.
    Wickham, contra.
    The place of return is not material; for the sheriff is hound to commit the prisoner to the lawful prison, whatever place of return is named in the writ. The variance between the return and the bond is unimportant; for the obligor should shew that he has performed the conditions of the bond ; which prima facie is a good one, 1 Wash. 330 ; and the court does not regard exceptions on the ground of variance, with a favourable eye. 1 Call, 40, 49. Besides, the return is matter of evidence only ; and therefore the mistake does not vitiate. The alteration of the bond has not destroyed it; for alterations by mistake, or otherwise, do not prejudice, unless the obligee was privy, and consenting to them. 1 Wash. 152.
    Hay, in reply.
    There is a distinction between the case of a bond, which has been lost or mislaid, and one where *the bond has been altered; for in the first the obligation continues; but, in the latter, not.
    Cur. adv. vult.
    
      
      See monographic: note on “OfficialBonds” appended to Sangster v. Com., 17 Gratt. 124.
    
   TUCKER, Judge.

The form of the writ of execution is well enough ; for the sheriff is to commit the defendant to the proper prison, let the place of return he where it may ; and as the law directs that it shall be returnable in vacation, the clerk’s office was perhaps the fittest place. The variance, between the forthcoming bond and the return upon the execution, is not important; for the bond recites that the execution had issued, and that the sheriff was in possession of the property under it: After which the obligor is estopped to deny the regularity of the proceedings. The alteration of the bond does not affect the plaintiff’s right; for the court gave judgment upon the bond before the alteration, when it was certainly free from the objection ; and this court is now to give the judgment which ought to havq been given at that time. I think, therefore, that the judgment should be reversed, and one entered for the plaintiff according to the bond as it originally stood.

ROANE, Judge.

The bond, on which the judgment of the district court is given, is entirely such a bond as the act of assembly contemplates in cases of this sort.

It varies indeed from the execution set out in the record, in not tracing all the intermediate assignments ; hut, on the authority of many cases here, this variance will not be held to be material.

The bond agrees with the execution in all substantial particulars. There can be no possible ’ doubt that it was founded on that execution ; and the omission to state all the assignments, was perhaps merely to save trouble and writing in a matter supplied by other things, and therefore immaterial.

This bond, admitted to be good, is not attempted to he impeached by the execution, but by the sheriff’s return.

*The exhibition of that return is no how necessary to complete the plaintiff’s case: And, if it were, it may be, that it was made a considerable time afterwards, when another high sheriff had taken place ; or it shall he intended to be a mistake of the deputy sheriff.

We have higher evidence than his, to shew that Campbell was sheriff at the time of giving the bond. I mean the bond itself; which the defendant did not, and probably would not have been permitted to contradict at the trial.

As to Mr. Hay’s objection to the form of the execution, the ans.wer of Mr. Wickham is entirely satisfactory.

With respect to the amendment of the bond, whatever may be the case of an erasure made by a party, or others, before the rendition of the judgment, the bond, after it comes into the custody of the court and its officers ; and whether considered as a record, or quasi a record; stands, in this respect, on a common foundation with other records.

After an erroneous judgment has been entered up against a party, through whatever cause, it shall not be in the power of the officer of the court, or of any other person, by an alteration made after the expiration of the term, to bar the party injured of his writ of error, and to support a judgment otherwise erroneous.

As to the power of the court in cases of this sort, it is held, in 1 Bac. Ab. 169, “That if any part of the record be vitiated by erasure, the court will restore it by amendment; because the wickedness of any person, in corrupting the record of the court, ought not to obstruct the justice of the court, or prejudice any of the parties.” This is the general position; and I have no doubt, but it is entirely supported by the cases put in the same passage ■ of the book, and by the reported cases referred to, although I have not had time to examine them. It is impossible that the law. can be otherwise : And I am consequently of opinion, that the judgment should be reversed, and one rendered agreeable to the bond, as now restored and amended.

«CARRINGTON, Judge.

The bond was originally good; and the clerk’s alteration ought not to prejudice the plaintiff ; but it should be restored to what it was. I think, therefore, that the judgment should be reversed, and judgment entered for the plaintiff according to the bond as it was originally made.

LYONS, President.

Forthcoming bonds should be favourably treated, as they are for the ease of the debtor, who should not be allowed to impeach them upon slight grounds: And as no exception was taken to the variance in the court below, where it might have been explained, I think none ought to be admitted here. The alteration of the bond (after it was in the custody of the law) by the officer to whose keeping it was confided, ought not to prejudice the plaintiff: For if that were to be allowed, it would be a disgrace to the justice of the country. I concur that the judgment should be reversed, and one entered for the plaintiff, according to the bond as it originally stood.  