
    JACKSON:
    MAY TERM, 1835.
    Jennings vs Pray, use of Biles & Carter.
    The court has jurisdiction of a cause, brought into it by certiorari, notwithstanding, the bond to prosecute the certiorari with effect, may be defective.
    It is error for the court to dismiss a cause brought into it by certiorari, because the bond taken to prosecute it is defective, when the party offered in court, to execute such bond as the law required.
    Where a judgment was obtained by A, for the use of B and C, and execution issued in the name of B and C, it was held, there was no judgment to authorize the issuing of the execution, and that it ought to be quashed.
    In thjs case, the suit was commenced before a justice of the peace. The warrant is in the name of Oliver I|£ay, for the use of Biles and Carter. The note was executed to Pray, and the judgment was properly rendered in his name. The fieri facias, however, issued in the names of Biles & Carter alone, “to satisfy (so it recites) a judgment that Biles & Carter obtained against defendant."
    The defendant, in the execution, presented his petition to the circuit judge, and obtained writs of certiorari and supersedeas, whereby the cause was brought into the circuit court. In that court, a motion was made to dismiss the certiorari, on the ground, that the bond which had been given for the prosecution of the certiorari was defective. The defendant also moved for leave to give another bond, conditioned as the law requires. The court refused to permit a new bond to be given, but dismissed the certiorari. The plaintiff then moved for judgment against the defendant, which was refused by the court. The defendant appealed, in error, to this court.
    
      Garrett, for plaintiff in error,
    Insisted, that the epurt erred in dismissing the certiorari, because the bond taken to prosecute the certiorari was defective, when the defendant offered to execute such a bond as the law requiredin court. Lima vs. Pinkston, 1 Ten. Rep. 344.
    The court had jurisdiction of the cause, notwithstanding the defect in the bond, and having jurisdiction, had the power to amend any defect , which existed in the bond or proceedings. Act of 1809, ch. 49, sec. 21.
    The case is also within the equity of the act of 1821, as the certiorari, when granted, had the effect of an appeal; both the “appeal” and the “certiorari” are resorted to, to retry the case upon its merits.
    The execution must conform to, and strictly pursue the judgment, or it will be quashed. 6 Term Rep. 525: 2 Bac. Ab. Execution G.
    
      Harris, for the defendant in error.
    Defendants in error insist, that the plaintiff’s petition was properly dismissed by the circuit court. 1st. Because the prosecution bond is not taken pursuant to the act of 1807, chap. 81, sec. 1; which section also provides, that “it shall not be lawful for any clerk to issue a writ of certiorari and supersedeas, without bond and security taken as aforesaid.” See 1 Haywood & Cobb, 34.
    The circuit court did not err, in not permitting the plaintiff to amend his bond, or give a new one. See Peck’s Rep. 290, Greer vs. Williford. The act of 1821 applies only to appeals. There is no authority to support the case of Lima vs. Pinkston, in 1st Ten. Rep. 344. The principle there assumed, is overruled by the case above cited in Peck’s Reports.
    Defendant insists, that if the court permit plaintiff to amend bis bond, that they will permit defendant to amend his execution and warrant, by inserting the Christian names of Biles & Carter.
   Gkeen J.

delivered the opinion of the court..

The first question to be considered in this case is, wlie-the defendant in the court below ought not to have been permitted to give another bond. In the case of Greer and others vs. Williford, (Peck’s Rep. 290), it was held, that the court could take jurisdiction of a cause brought into it by appeal, although the appeal bond was defective. In that case, the appeal bond was defective; and the question was, how far the securities were bound. It was held, and has been often so ruled by this court since that time, that a judgment might be pronounced against them to the extent of their undertaking. There is much more reason for holding, that the court, notwithstanding the bond may be defective, has jurisdiction of a cause brought into it by certiorari, than where'it is brought up by appeal. Indeed, the judge having granted this process from his court, commanding an inferior jurisdiction to send the cause into his court, must manifestly have had the authority’ (if,any defect existed in the process so ordered, or the prelimin-aiy steps which had been taken in the cause) to act upon the same petition, and order any such defect to he supplied. This was as much the duty of the court as it was the duty of the judge to grant the certiorari, when the petition was first presented. Having jurisdiction of the cause, the amendment asked for, was within the provisions of the statute of Jeofails, (1809, ch. 49, sec 21).

The case is also within the equity of the act of 1821, ch. 21. The certiorari is in fact, an ajipeal in effect. It is resorted to for attaining the same end; are-investigation of the cause. Although, therefore, the act of 1821, ch. 21, applies in terms, to an appeal only, yet it may, by fair construction, be extended to the case of certioraris also. The mischiefs which existed in the one case, were as great as those in the other.

We conclude, therefore, that the court erred in refusing to take a new bond when offered, and in dismissing the certiorari.

The execution ought to have been quashed, there being no judgment to support it. The execution must conform to the judgment; the judgment having been rendered in favor of Pray, for the use of Biles & Carter, and the execution omitting altogether the name of Pray, it had no connection with the judgment. The judgment must be reversed, aid the cause remanded to the circuit court of Henry county, where a sufficient bond will be taken, if offered, and the cause to be determined upon its merits, on the motion to quash the execution.

Judgment reversed.  