
    
      Abner Osborne v. Benjamin Crawley, and Alexander Jones.
    Forthcoming Bond—Excess of Interest—When Error Immaterial.*—A forthcoming bond is taken for a greater sum than is due upon the fieri facias; but this appears by computation in court upon a motion for award of execution, and does not appear on the face of the bond. Held, the court may award execution for the true amount due.
    
      
      Forthcoming Bond—Excess of Interest—When Error Immaterial.—In Holt v. Lynch, 18 W. Va. 570, it is said: “The court below awarded execution for the amount named in the bond instead of for the correct amount due on the execution, the fee for taking the bond and the sheriff’s commissions. This, it would seem, was through inadvertence, as it is not ma’de the subj ect of assignment of error in this court or referred to at the bar. It was error to award execution for that sum; and the judgment of the lower court in that respect must be reversed, and judgment entered here for the corrected amount due (Bell & Harrison v. Marr, 1 Call 47; Scott v. Hornsby, 1 Call 41; Worsham v. Egleston, 1 Call 48; Wilkinson v. McLochlin & Co., 1 Call 49; Osborne v. Crawley, 1 Va. Cas. 113; Williams v. Lyles, 2 Cranch 97), unless there is some other ground of objection to the judgment of the lower court, which will prevent a judgment at all against the obligors in this bond.”
      See also, monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   The plaintiff having obtained a judgmerit, issued an execution from the district court office of Petersburg, against the goods of Rice Newman, and Benjamin Crawley, for 20,000 lbs. inspected tobacco, and the costs, but to be discharged by payment of 10,000 lbs. like inspected tobacco, with legal interest thereon, from 20th December, 1789, till payment and the costs. A forthcoming bond was given by the parties, with Alexander Jones as security. Notice having been given to the defendants, a motion was made for judgment and award of execution on the bond, and the district court ordered “that the said motion be referred and adjourned to the general court for this novelty and difficulty, to wit, that the delivery bond, instead of reciting the quantity of tobacco appearing due by the writ of fieri facias, is taken for 585 pounds of tobacco, more than appears to be due thereby, but this excess appears, by a calculation made in court, of the sum due by the execution, and not on the face of the delivery bond without such palculation: and this court is in doubt whether judgment should be entered for the plaintiff on 114 his releasing *'the said 585 pounds of tobacco, which his counsel offered to do, or whether the motion should be altogether rejected, because the bond was not taken in pursuance of the act of assembly.”

The general court, (on the 16th June, 1795,) consisting of Judges Prentis, Parker and Nelson, certified their opinion to be, “That upon the plaintiff’s releasing to the defendants 585 pounds of tobacco, for which the forthcoming bond was taken, more than was due by the execution, by virtue of which it was taken, judgment on the said bond ought to be rendered for the plaintiff.”

See Scot v. Hornsby, 1st Call 41; Bell v. Marr, ib. p. 47, &c.  