
    Solomon S. Pender vs. Nathaniel H. Felts, et al.
    Where a record is so incomplete, that it does not appear upon what state of fact the judgment of the court below was rendered, the presumption of law is in favor of the correctness of the judgment below.
    Where a circuit court at a term subsequent to the forfeiture of a forthcoming bond, ' has quashed the bond, that judgment being void, an execution may issue, notwithstanding it is quashed, upon the judgment on the bond.
    If a void judgment be affirmed from purely technical causes, the affirmance cannot cure the radical error.
    This cause is brought by writ of error from the circuit court of Attala county.
    The record shows that the plaintiff in error, Solomon S. Pender, obtained a judgment in the said circuit court of Attala, at the spring term, 1838, on the 30th of March, against the defendant, Nathaniel H. Felts, for seventeen hundred and forty-six dollars and fifteen cents, upon w'hich judgment an execution issued, and was levied upon the property of Felts. A forthcoming bond was taken on the 3d of August, 1838, with the defendant, Conn, as security, which was returned to the fall term, 1838, “ forfeited,” on the 24th September, 1838.
    A ft- fa. on this bond issued, returnable to March term, 1839, which was levied upon lands, and returned “held up.” A vendi. expo, issued, returnable to the fall term, 1839, which was returned, “ lands sold, and money applied to older executions.” An alias ft. fa. issued, returnable to March term, 1840, which was returned into office with the return upon it, “ Levy made on land and cotton, and enjoined.”
    At the June special term, 1840, to wit, on the second day of July, 1840, a motion was,made by Felts to quash the forthcoming bond, which had been forfeited on the 24th of September, 1838, which motion was sustained as to Felts, and refused as to Conn.
    To reverse which judgment this writ of error is brought. The bond was not placed of record, nor did it appear for what reason it was quashed.
    . The error assigned was: “ The judge below erred in quashing the bond, or in taking any action on it by motion, at the term at which the motion was made and tried. Because many terms before this motion was made, the forthcoming bond by operation of law had ripened into a judgment, which judgment the judge had no right to avoid or annul upon motion, which he did by quashing the bond.”
    
      W. E. Pugh, for plaintiff in error.
    This court has so often declared that a motion to quash a forthcoming bond after the term to which it is returned forfeited, comes too late; that the question no longer admits of doubt or argument. I shall therefore content myself with calling the attention of the court to the reported cases, in which this question is placed at rest. Wanzer v. Barker, 4 How. R. 363. Kerningham v. Scanland, 6 How. R. 540.
    In fact, this court has gone still farther, and said that the quashing a forthcoming bond at a term subsequent to that at which it was returned forfeited, was wholly void. Conn v. Pender, determined at the July term, 1843.
    But it may be contended that a writ of error will not be sustained from a judgment on motion to quash a forthcoming bond. In the case of the Bank of the United States v. Patton, 5 How. R. 200, this court has also determined this point with the plaintiff in error. With these opinions before me, I cannot doubt the court will sustain the positions assumed by the plaintiff, and reverse the judgment of the court below. Confident in this, I am content here to rest my client’s cause.
    I will add, with reference to the question determined at the last term of this court, in which the parties to this cause were parties; that it was upon a motion below to quash an execution, issuing under the' following circumstances. Pender recovered a judgment against Felts in the circuit court of Attala, which he bonded by giving the defendant Conn as security. Several terms after the forfeiture of the bond, Felts moved to quash said bond, which was done as to Felts, and left in force as to Conn. At a subsequent term to the quashing the bond as to Felts, Conn moved the court to quash an execution issuing upon this bond against him alone, which was refused by the court below, from which judgment Conn appealed to this court, which judgment this court reversed, because there was no-judgment to sustain the execution; but does not'reverse the judgment quashing the bond as to Felts». Pending the cause brought tó this court by Conti, which' was determined at the last term, Pender sued out his writ of error to reverse the judgment of the court below, quashing the bond as to Felts. The determination of the cause of Conn v. Pende?', does not correct the error of the court below, in quashing the bond, or does it only by implication, which leaves Pender in "the condition that he cannot sue out any execution. He cannot sue out upon the original judgment, because there is in being a judgment upon bond upon that judgment. He cannot sue out execution upon judgment on bond against Felts and Conn, because there is a judgment of the court below, quashing this bond as to Felts, and leaving it in force as to Conn. He cannot issue on bond against Conn alone, because this court has said there is no judgment upon which to base that execution. So without further action of this court, Pender has a judgment without the right to an execution to its satisfaction, or at least not such a clear right as would give him the right to demand and compel the clerk below to give him execution. Probably the circuit court might have the power to instruct the clerk, which he might be bound to obey, but even this is doubtful. It is clear, however, that the circuit court would have no power to alter or amend the records, as to make this cause clear and plain, upon which of these judgments execution ought to issue, whether upon the original judgment, or upon the bond forfeited, disregarding the judgment of the court at a subsequent term, quashing-the bond as to Felts, and leaving it in force as to Felts.
    I will here remark, that both of these causes were pending here at the same time; with the former I had nothing to do, and came into this cause after the death of Mr. Hayes, who was of counsel in suing out this writ. Had I been of counsel before the suing out of this writ, probably it would not have been done, but would have ventured an election of an execution, if it could have been obtained, from the clerk. «But finding the cause here, I could see no other safe course for me to pursue, but to ask the court to pass upon it.
    Thompson, for defendants in error.
    The only question in this case arises on the judgment quashing the forthcoming bond as to Felts. (See last page of the record.)
    The bond is made no part of the record, and it does not appear in the judgment when it was forfeited, or for what reason it was quashed. It is presumed there was good reason for it; and if the court below ought to have quashed it as to all the parties, when there was good cause for quashing as to one party, then it is contended that this court, proceeding to enter such judgment as the court below ought to have entered, will quash it as to all the parties. Bearing in mind, that as no bill of exception was taken, showing there was no ground for quashing the bond as to Felts, this court will take it for granted there was good cause shown for quashing it as to him; (what the cause was is not material, whether because it was not his act and deed, or some one of the many other causes that may be readily conceived) 'we insist that this court, upon that presumption of law, would not go farther than enter a formal judgment, such as the court below might have entered, quashing the bond as to all the parties.
    Again, is not the judgment, quashing the bond as to one defendant, ipso facto, and substantially a judgment quashing it as to both defendants 1
    
    With reference to the case decided at the last term of the court of Conn v. Finder, there the forthcoming bond was made part of the record. Here, in the present case, it is not made part of the record, and the court can only look to the judgment of the court, in which consideration of the case, my brief, we humbly conceive, is directly in' point, and Felts would be liable on the original judgment, and Pender could sue out execution on it.
   Mr. Justice Thachee

delivered the opinion of the court.

This was writ of error to Attala county .circuit court.

The record in this case does not appear to us to present its merits, as they are urged upon our notice by the counsel for , the plaintiff in error. We can look only at the judgment of the court below, which does not seem to relate back, as the record is shaped, to the various papers preceding the judgment. The writ of error was sued out to reverse the judgment quashing a forthcoming bond as to its principal. The bond is not made a part of the record,-nor does it appear at what term the bond was forfeited, or for what reason it was quashed. A . judgment is a conclusion óf law upon ascertained facts. We .can only judge of the propriety of the conclusion from an inspection of the facts. We must presume, under these confined means of judging, jhat the court below did not err.

We would remark, in connexion with this case, that if it grows out of the same proceedings whereon a judgment was had in this court at the July term, 1843, entitled Joseph Conn v. Solomon S. Pender, that there can be but little difficulty in reaching the plaintiff’s rights. That was a case where the court below quashed a forfeited forthcoming bond as to its principal, and not as to it§ security at a term subsequent to its return. This courtjdetelared such judgment to be void. As a necessary consequencé of such judgment being void, an execution can issue upon the judgment of the forfeited forthcoming bond. The opinion of this court in the case cited, would be a sufficient guide to the court below, in pronouncing upon the validity of such execution, if called in question.

Although there is nothing in^this record by which we can reverse the judgment, yet, if, as we are inclined to believe, from the facts in the case of Conn v. Pender, this was in fact, an instance of the quashing a forthcoming bond at a term subsequent to its return, then there is nothing in that proceeding, or in the affirmance, which, from the deficiency of the record, we are compelled to make in this court, that can preclude the plaintiff from pursuing his judgment upon the forthcoming bond. If a judgment be in truth void, its affirmance here from purely technical causes, cannot cure the radical error.

¡Judgment affirmed.  