
    Glascock’s Administratrix v. Dawson.
    Wednesday, May 23, 1810.
    i. Execution — Forthcoming Bond — Variance.—A writ of fieri facias against an administratrix, “to be levied, as to certain damages and costs, of the goods and chattels of her intestate, and as to ’ other damages and costs of her own goods and chattels,” was returned “executed on certain slaves the property of the administratrix, and a forthcoming bond taken,” &c. The bond being given by the administratrix, eo nomine, but expressing that the fi. fa. was against the goods and chattels of the said administratrix, was decided to-be variant from the fi. fa. and therefore quashed.
    2. Appellate Practice — Forthcoming Bond — Judgment by Default. — In reviewing a judgment by default on a forthcoming bond, the appellate Court will compare it with the execution on which it was. ■ taken.
    John Dawson obtained a judgment in the County Court of Lancaster against Catharine Glascock, administratrix of George Glascock, deceased, for 130 dollars and 19-cents damages, and 49 dollars and 40 cents costs; which judgment was affirmed by the Northumberland District Court; the damages allowed for retarding the execution thereof by the appeal being 24 dollars and 10 cents, and 6 dollars and 87 cents costs. A writ of fieri facias issued, commanding the Sheriff that, of the goods and chattels of the decedent in the hands of the administratrix, he cause to be made the above-mentioned sums recovered in the County-Court ; and of her own goods and chattels the damages and costs adjudged in the District Court. The return on this execution was ‘ ‘executed on one negro woman and child, the property of the within named Catharine Glascock, and forthcoming bond taken,” &c. The bond expressed that “Catharine Glascock, administratrix of George Glascock, deceased, and her security, were held and firmly bound, &c. in the penalty of 445 dollars and 50 cents; to which payment they bound themselves, their heirs, executors, &c. jointly and severally. Its condition recited that the writ of fieri facias had been sued out against the goods and chattels of Catharine Glascock, administratrix of George Glascock, deceased, for the sum of 211 dollars and 56 cents, together with the sum of 10 dollars and 59 cents for Sheriff’s commission, and sixty-two cents for taking this bond, amounting in the whole to the sum of 222 dollars and 75 cents, which writ had been executed on a negro woman and child, (without saying to whom they belonged,) and the said Catharine Glascock, being desirous of keeping the said property in her possession till the day of sale, &c. hath given bond, &c.
    A judgment was rendered on this bond in general terms, against Catharine Glascock, administratrix of George Glascock, 606 deceased, *but not expressing that any part thereof was to be satisfied out of the goods and chattels of the decedent in her hands to be administered, to which judgment a writ of supersedeas was awarded by a Judge of this Court.
    Warden, for the plaintiff in error,
    made four points; 1. That the execution was erroneous in directing the damages and costs, incurred by the appeal to the District Court, to be levied of the goods and chattels of Catharine Glascock herself; 2. That it was improperly levied for the whole amount, on two slaves, the property of the said Catharine; 3. Because the Sheriff oppressively inserted in the condition of the forthcoming bond, not only his commission, but also a fee for taking the same bond; and, 4. Because it appears by computation that the condition of the forthcoming bond requires more money to be paid than is warranted by the execution independently of these two items.
    Nicholas, contra.
    The judgment for damages and costs to be levied de bonis propriis is correct. The appeal was the individual act of the administratrix, for which therefore she ought herself to be charged, and not the estate of her intestate,  The case comes up on a judgment on a forthcoming bond; by entering into which she bound herself individually. If the property was not liable, she ought to have contested the right: but, by giving the bond, she is now estopped, 
    
    The Sheriff’s commissions were properly included in the bond, 
    
    Friday, May 25.
    
      
      Execution — Forthcoming Bond — Variance.—By a fieri facias; the sheriff is commanded to cause principal, interest and costs to be levied of the goods and chattels, of J. W. deceased, in the hands of S. H. his administrator, if so much thereof he hath, but if not, then out of the goods and chattels of S. H. There being no goods and chattels of J. W. in the hands of S. H., the sheriff levies the execution on the individual property of S. H. and takes a forthcoming bond, which recites the execution as being against the goods and chattels of S. H. administrator of J. W. deceased. There is no substantial variance between the execution and the recital thereof in the forthcoming bond. Hairston v. Woods, 9 Leigh 308. In this case, both Brockenbrotjgh, J., and Tucker, P., distinguished the principal case, Tucker, P., saying (p. 310); “The case is not like Glascock v. Dawson (1 Munf. 605). There the administratrix was to be liable, in the event of there being no assets, for the damages and costs only; yet her own proper goods were seized for the-whole debt. The bond was therefore properly quashed. Here, as there were no goods of the decedent, the defendant was liable for the whole. It was, therefore, unnecessary to preserve the distinction in the recital of the bond; nor was there any thing illegal in levying on his own proper goods for the whole, since the court would intend, even if it did not appear by the return, that the officer could find no goods of the intestate on which to-levy.”
      For further information on this subject, see monographic note on “Executions” appended to-Paine, Surv., etc., v. Tutwiler, 27 Gratt. 440; mono-graphic note on “Statutory Bonds” appended to. Goolsby v. Strother, 21 Gratt. 107.
      To' the point that, where there is a material variance between a forthcoming bond and the execution upon which it is taken, the bond must be quashed, the principal case is cited in Holt v. Lynch, 18 W. Va. 571.
    
    
      
      -AppeIlate Practice — Forthcoming Bond — Judgment by Default. — If there be a judgment by default on a forfeited forthcoming bond, the appellate court will regard the execution as a part of the record; but if there be a variance between it and the execution, the judgment will be reversed. When therefore there is a j udgment by default, it is very proper to recite in it that the execution, as well as the bond, was produced and inspected by the court. Central Land Co. v. Calhoun, 16 W. Va. 372, 373, citing the principal case, and Preston v. The Auditor, 1 Call 471. To the same effect, the principal case is cited in Couch v. Miller, 2 Leigh 549; note to Hill v. Harvey, 2 Munf. 526; note to Harrison v. Lane, 4 Munf. 240.
      See also, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Toller's Law of Executors, 336.
    
    
      
       Syme v. Montague, 4 H. & M. 180.
    
    
      
       1 Rev. Code, c. 176, s. 11, p. 326.
    
   The Judges pronounced their opinions.

JUDGE TUCKER

(after stating the case) observed: It is the duty of the Sheriff to pursue the directions contained in the execution. The execution commanded him to levy the damages on the goods and chattels of George Glascock, deceased: the forthcoming bond recites an execution as having issued against, and been levied on, the goods and chattels of Catharine Glascock, administratrix of George Glascock. There is a variance, then, between the execution and the forthcoming bond, which is fatal, For the Sheriff might have levied an execution, on the goods and chattels of Catharine 607 Glascock, corresponding *with the description thereof in the forthcoming bond. The judgment therefore appears to me to be erroneous, and it ought to be reversed, and the forthcoming bond quashed.

JUDGE ROANE.

This is a supersedeas to a judgment of the District Court upon a forthcoming bond. The judgment was for 445 dollars and 50 cents, the penalty of the forthcoming bond to be discharged by the payment of 222 dollars 75 cents, with interest from July 31, 1805, till paid, and the costs. The style of the judgment as headed in the record is against Catharine Glascock, administratrix of George Glascock, deceased. The bond on which the judgment was rendered is set out in the record, and states that Catharine Glascock, administratrix of George Glascock, deceased, (with a surety,) is bound to the appellee in the sum of 445 dollars and 50 cents ; and the condition states, that whereas the appellee had sued out of the District Court “a writ of fieri facias against the goods and chattels of Catharine Glascock, administratrix of George Glascock, deceased, for the sum of 211 dollars and 56 cents, together with 10 dollars and 59 cents, for Sheriff’s commissions, and 62 cents for taking this bond, amounting in the whole to 222 dollars and 75 cents, which has been executed by the Sheriff on a negro woman and child, (without saying whose, but the case of Lewis v. Thompson, 2 H. & M. 100, cures that omission,) and the said Catharine Glascock, being desirous of keeping the same in her possession till the day of sale, has tendered security, &c. The bond therefore agrees, with the judgment, both as to the penalty thereof, and the sum by which it is to be discharged.

Several objections, however, are taken to this judgment, by referring to the execution, which it is admitted may be properly looked into, under the decisions of this Court, in reviewing the judgment upon the bond.

In the first place it is said, that the bond shews that the goods taken were the goods of Catherine Glascock, in her own right, and not those held by her administratrix. If this objection were founded in fact, it might be fatal: but I conceive that it is not founded in fact. In the penal part of the bond she binds herself as administratrix of George Glascock, deceased ; and, although the condition states that the execution issued against the goods of Catharine Glascock, yet it does not stop here, but adds, “administratrix of George Glascock, deceased.” This annexation in the condition, taken 608 in connection *with the description in the penal part of the bond is satisfactory to shew, that the goods directed by the execution to be taken, were those held by her as administratrix, and not her own proper goods. We need not require technical precision in such cases: it is enough that we can discern from the whole bond, taken together, that the property against which the execution issued, was the property liable thereto. In this case we cannot take them ■to have been Catharine Glascock’s own proper chattels, without rejecting the annexed words “administratrix of George Glascock, deceasedand I consider this as only an irregular mode of describing the goods of the intestate, in the hands of his administratrix: if, therefore, the. case stopped here, I should have no hesitation to affirm the judgment.

But it is objected that this bond is illegal, and the judgment on it erroneous, in having included in the bond the fee of 62 cents for taking the same. I am inclined to think that the act of 1794 does not authorize the Sheriff to include in the forthcoming bond, the fee for taking the same, which would probably have been provided for, as well as the commissions, had the Legislature intended it: or, if they so intended, it is a casus omissus in the act. This being a summary proceeding, execution could only be awarded “for the' money or tobacco mentioned in the execution” under the act of 1793, and- for the commissions, (in addition) under the aforesaid act of 1794. It cannot be said that this objection cannot be taken by the appellant, because it is beneficial for her: the same answer existed in case of the commissions, prior to the act of 1794; and yet it was held that the inserting them was erroneous. It might be equally argued in both cases, that it is favourable for a party to give him credit for a sum by including it in the bond, rather than compel it to be paid down.

Again, this whole execution issuing against the goods of the intestate, as I have supposed, as aforesaid, the appellant in her character of administratrix objects that, by the execution, a part thereof, viz. the damages and costs on the appeal, were only leviable upon her proper estate, as appears by the execution. It is not for us in this case, to investigate that execution, in this particular : the judgment and execution is to be taken to be correct; and, being so, a departure from that execution in the respect in question is injurious to the estate of the appellant’s intestate by levying more upon it than the judgment au609 thorized. *It is of no consequence that both rights happen to exist, in this case, in Catharine Glascock solely. The maxim “that, when two rights concur in the same person, they are to be considered as if they existed in different persons,” seems in this case to apply ; and I can give no other judgment in this case than I should if the persons were entirely distinct, or if other persons were associated with Catharine Glascock in her character of administratrix.

Again, the sum for which this judgment is given exceeds, in a small sum, (say 98 cents,) the “sum mentioned in the execution.” I will not decide, at present, whether this single exception of a trifling error in calculation would be sufficient to overturn this judgment; but I am clearly of opinion that these three last objections taken together must have that effect.

JUDGE ELEMING.

It is the unanimous opinion of the Court that the judgment is erroneous and to be reversed ; and it is my opinion that the bond, not pursuing the judgment, must be quashed.

Judgment reversed, and bond quashed. 
      
       1 Wash. 259, Hubbard v. Taylor; 2 Wash. 189, Downman v. Chinn.
     
      
       1 Rev. Code, p. 326.
     
      
       Ibid. 298.
     
      
      Note. In this case, the writ of fieri facias was made a part of the record without any plea or bill of exceptions ; the judgment on the forthcoming bond being by default, on a notice proved by a witness, but not inserted in the record. — Note in Original Edition.
     