
    Brown vs. Newton.
    The condition of a bond to prosecute a certiorari was, “Now if the «aid J. N. shall prosecute his said certiorari with effect, or in case he fail therein, to pay and fulfil the judgment of the court herein, then this-obligation to be void,” &e. Held, that no judgment could be given upon said bond against the principal and his securities, when the certiorari was dismissed.
    Brown, the plaintiff in error, recovered a judgment against Newton. Newton filed his petition for a cer-tiorari^ which was sworn to before the clerk of the circuit court out of term time. The judge issued a fiat upon this petition, and Newton entered into a bond, with securities, to which was the following condition: “Now, if the said John Newton shall prosecute his said cer-tiorari with effect, or in case he fail therein, to pay and fulfil the judgment of the court herein, then this obligation to be void,” &c. The certiorari was dismissed before the proceedings were brought up, because the petition was sworn to before the clerk out of term time. Judgment on motion was asked in the circuit court on the dismissal of the certiorari, against the principal and his securities in the bond, and refused. The plaintiff, Brown, prayed an appeal in error to this court.
    
      Stoddart and M. Brown, for the plaintiff in error.
    Plaintiff in error contends that, when the court dismissed the certiorari, judgment should have been entered against the petitioner and his securities for the amount of the judgment below, and interest, according to the statute oí 1817, ch. 119, sec. 2. This statute is general, applying to all cases where a certiorari is dismissed “for want of prosecution or other causes,” and in every case requires judgment to be entered up for the amount of the judgment below and interest,
    
      B. Gillespie, for the defendant in error.
    The defendant contends that the circuit court, if they were right in the first question, in dismissing his petition, had no jurisdiction of the cause, and could not render the judgment asked for by plaintiff. The act of assembly, although it seems imperative, can only apply to cases where the court have the case before it, and can look into the petition and merits of the cause.
   Catron, Ch. J.

delivered the opinion of the court.

The judgment could alone be granted on the bond; nothing else was there to charge even the principle upon.

The bond was authorized by the act of assembly of 1817, and the proceedings on it being by motion, the statute must be in substance pursued.

The bond is to be with a condition that the same shall be void if said party prosecute his certiorari with effect, or in case he fail, that he will perform whatever judgment shall be awarded, and rendered by said court in said cause. That is, the parlies to the bond covenant to pay the judgment, if one be had on the trial of the merits, against the party bringing up the proceedings. To this extent the bond is good in the present cause. But then the act provides that another condition shall be inserted in the bond, viz. in case said certiorari shall be dismissed by the court for informality, or for want of sufficient substance, that said person so obtaining the same, shall well and truly satisfy such judgment as the court below, or the justice shall have given against him.

This condition is not in the bond, and to enforce payment of the judgment had before the justice, without a trial of the cause in the circuit court, it was indispensable. Truly the bond in this instance provides that Newton shall prosecute his suit with effect, and in case he fail therein, then he and the securities are to fulfil the judgment of the circuit court against the principal. The covenant does not extend to a performance of a judgment on the bond itself, but to a judgment rendered in the suit brought up by the writ of certiorari, and until the cause is in court, and a proceeding had on it, a bond with a condition like the present cannot be forfeited, because the judgment must be awarded and rendered “in said cause.” Here the cause never got into court, and no judgment was or could be given in it, and therefore the judgment will be affirmed.

Judgment affirmed.  