
    Hewlett v. Chamberlayne.
    October Term, 1794.
    Forthcoming Bond- — Defective -Action of Debt. — An action of debt may be brought upon a defective forthcoming bond, even after an unsuccessful motion had been made on it.
    This was an action of debt brought by the appellee in the District Court of Wil-liamsburg, upon a forthcoming bond, the condition of which upon oyer appeared to be in common form, except that it did not recite the amount of the debt due by the execution — the pleas were, 1st, Conditions performed. 2dly, That the plaintiff had in pursuance of the act of Assembly moved the court at a former term for judgment upon the bond which was over-ruled, the court being of opinion that the bond was insufficient. 3dly, That the bond was taken by the sheriff under colour of his office and contrary to the statute' &c. To the 1st plea, the appellee replied generally. To the 2d, that the motion was made under the act of Assembly of 1769 entitled “an act to amend an act entitled an act declaring the law concerning executions and for relief of insolvent debtors” which said act being construed strictly in motions, an award of execution upon the said forthcoming bond was refused for some inaccuracy in the condition of it. To the 3d plea, the appel-lee replied, that the bond was taken in pursuance of the act of 1769 upon an execution &c.
    The parties agreed the following case; that the bond in the declaration mentioned was taken by the sheriff upon an execution issued at the suit of the appellee, conditioned for the forthcoming of property seized by the said sheriff under *that execution. That the property was not delivered according to the condition of the bond, nor the money paid. That a motion was made for an award of execution upon the said bond, which was over-ruled and the motion dismissed with costs, on account of the insufficiency of the bond. That afterwards another motion was made by the appellee to quash the execution which was also rejected. Judgment was entered below for the appellee.
    Wickham for the appellant.
    This bond was taken under the act of 1769, but not pursuing that act in reciting the execution,' and the amount of it, it is utterly void. The law requires forthcoming bonds to be returned to the clerk’s office and to have the force of judgments; but if the bond be not made in conformity with the law, it can have no greater force than a defective judgment or recognizance, upon which no recovery could be had. An irregular judgment may be set aside upon motion, and if this be considered as such, the appellee could not elect to take it as a thing in pais and bring an action upon it. But if he had such an election, he has made it, and a regular judgment has passed against him upon his motion.
    Marshall for the appellee.
    This question has been fully settled by this court, in the case of Meriweather and Johnson. In that case the objection to the bond was: that it was taken payable to the sheriff, instead of the creditor, as the law required; but the principal decided in that case is strictly applicable to the present.
    In that case, as in this, a motion for judgment upon the bond had also been made and overruled. In short, the very same objections were there stated and argued, which are now urged; and upon full consideration, the court determined, that an action of debt upon the bond might be-sustained.
    
      
      Statutory Funds Failure to Comply with Statute Effect. — On this question the principal case is cited yh foot-note to Johnston v. Meriwether, 8 Call 523; Morgan v. if ale, 12 W. V a. 718. See foot-note to Stuart v. Lee, 3 Gail 431. See monographic note on “Statutory Bonds" appended to Goolsby v. Strother, 21 G-ratt. 107.
    
   The PRRSIDJSNT.

The case of Meri-weather and Johnson is expressly in point.

The judgment must therefore be affirmed.  