
    Tombigbee Railroad Company vs. Henry Bell, et al.
    The absence from the record of the petition for a writ of error, where that writ ■ has been, under the statute, issued by the circuit clerk, will not be sufficient ground to dismiss the writ of error from this court. The presumption is, that the clerk acted correctly.
    A writ of error may issue from the circuit clerk’s office without a bond previously executed, where no supersedeas is sought.
    Where a forthcoming bond has been quashed, and a Writ of error issued to revise the original judgment, and the writ of error recites as parties to the record, as well the sureties in the forthcoming bond, as the defendants in the original judgment; held, that the writ of error sufficiently identified the record.
    Where the record contained an entry of satisfaction of the judgment, the propriety of which entry the plaintiff therein sought to revise; held, that that entry would not, of itself, be sufficient ground to dismiss the writ of error.
    In error, from the Lowndes circuit court.
    The Tombigbee Railroad Company sued Henry Bell, Charles E. Taliaferro, and Thomas Bell, in the court below, and obtained a judgment on the 9th day of October, 1838, against them. Upon this judgment execution issued, was levied on slaves, and a forthcoming bond given and forfeited. Upon this bond Louis B. Taliaferro was surety. This forthcoming bond was afterwards quashed by the court. Other executions were issued, and proceedings had thereon, and the court below, on a subsequent day of the term, ordered an entry of satisfaction of the judgment to be made, which was done, and exceptions taken in due form.
    The record contained no petition to the clerk of the Lowndes circuit court for a writ of error, and the writ of error, filed with the record, recited the name of the surety in the forthcoming bond as a party to it.
    Upon this condition of the record, a motion was made to dismiss the writ of error,
    1. For want of a petition for the writ of error.
    
      2. Because there was no writ of error bond.
    
      3. Because there is no such record filed as the writ of error discloses.
    4. Because it appears that the judgment had been satisfied.
    Cocke, in behalf of motion to quash the writ of error.
    It is true a writ of error, by statute law, is matter of. right, but there are only three ways in which it can be obtained ; these are:
    1st. From the supreme court, or one of the judges, on an inspection- of the record, by which it must appear that good cause is shown to reconsider the judgment. How. & Hutch. 638, sec. 39.
    2d. By the party filing a transcript of the record in the office of the clerk of the supreme court, and obtaining the writ of error from the clerk. How. & Hutch. 540, sec. 47.
    3d. By applying by petition to the clerk of the court in which the judgment was rendered. Plow. & Plutch. 541, sec. 50; and it is in this latter form that this writ is sought to be sustained, though issued without any petition to support it.
    On behalf of the motion to dismiss, it is submitted,
    1st. Whether this court can allow the party to dispense with the requirements of this statute. The law allowing a writ of error, must be strictly complied with, 3 Plow. 75, and it is contended that the petition must be in writing. It will also be seen, by an inspection of the record, that the writ of error issued after a forthcoming bond had been given and forfeited in the cause. The statute provides that no writ of error shall issue in a cause, after the giving and forfeiting of a forthcoming bond. Plow. &. Hutch. 541, sec. 50.
    This practice cannot be allowed of. Sanders v. McDowell’s Admr. 4 How. 9. Stamps v. Neioton, 3 How. 34. Duval, et al. v. Cot., 5 How. 12.
    It is contended, in the second place, that the record intended to be brought into this court is not the same as that in the court below, nor between the same parties.
    To the writ of error the defendants are, Henry Bell, Charles E. Taliaferro, Thomas Bell, and Lewis B. Taliaferro; whereas ia the record the defendants are only Henry Bell, Charles E. Taliaferro, and Thomas Bell.
    The writ of error should be in the name of the proper parties. If this were not the law of this court, it is obvious much confusion and injustice would creep into'the practice in this court. That the writ of error must’ agree with the record intended to be removed, in the nameá and addition of the parties, see Grayham’s Practice, 947 ; 1 Stra. 606, 200; 2 T. R. 237 ; and in the description of the action, 2 Ld. Raym. 1170; 5 Taunt. 82; for the court can proceed only on that record which the writ authorizes them to examine ; the writ will be quashed when the names are not the same. 4 Wend. 205. The real parties must be correctly stated. 11 Wend. 522.
    3. The question of satisfaction properly arises on the merits of the case, if the writ is sustained.
    
      Harris, Clayton, and Harrison, and Rucks and Yerger, for plaintiffs in error.
   Per Curiam.

A motion is made to dismiss this case : 1st. Because there was no petition for the writ of error; 2d. Because there is no writ of error bond ; 3d. Because there is no such record filed as the writ of error describes ; 4th. Because it appears the judgment has been satisfied.

• 1. The writ of error having been issued by the clerk of the circuit court, we must presume that he had a petition, and proceeded according to the statute.

2. A bond is only necessary where there is a supersedeas ; here there is none, the case being brought up by the plaintiff.

3. The writ of error names the sureties in the forthcoming bond, as well as the defendants in the original judgment. As the bond was quashed this was unnecessary, as no objection was taken to that proceeding. But still their names appear in the record, and the writ of error sufficiently describes the record, and identifies it, to show that there cannot be a mistake. But if we were to quash it, we should, under the rule, be compelled to grant a new one.

4. The question of satisfaction involves the whole merits of the case. It is the judgment of satisfaction which the plaintiffs in error seek to reverse. We cannot dismiss on this ground.  