
    Nicolas v. Fletcher.
    October Term, 1794.
    Forthcoming Bonds — Motion on — Defendant Must Prove Performance. — Upon a motion for judgment on a forth-coming bond, the plaintiff is not bound to show a breach of the condition; but the defendant is to prove performance.
    This was an appeal from a judgment of the District Court of Petersburg, affirming a judgment of the County Court of Amelia, rendered in favor of the appellee, upon a forthcoming bond, endorsed by the sheriff, “that the property therein mentioned, had not been delivered on the day appointed for the sale, to be dealt with according to law.”
    An exception was taken by the defendant below, that the plaintiff did not prove a non-performance of the condition, by good and sufficient testimony.
    Marshall for the appellee.
    It was not necessary for the plaintiff below to prove a forfeiture, or breach of the condition, but it was incumbent on the defendant to prove performance. On the contrary, the sheriff has returned upon the bond, that the'property was not delivered.
    
      
      Forthcoming Bonds — Motion on — Defendant Must Prove Performance. — In Wheeling v. Black, 25 W. Va. 285, the principal case is cited to the point that in an action on a bond the defendant must allege and prove performance.
      Same — Return of Sheriff — Conclusiveness.—In Adler v. Green, 18 W. Va. 206, the principal case is cited to the point that the uniform practice in Virginia has been to contradict the sheriff’s return of “forfeited” upon forthcoming bonds. See collection of cases in foot-note to Cole v. Fenwick, Gilm. 134, among others, the principal case. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   The court affirmed the judgment.  