
    James Fellows et al. vs. Jesse W. Griffin et al.
    Where a bond was forfeited at the November term, 1839, of the circuit court, and an execution issued thereon to the May term, 1840, and on the petition of one of the defendants therein, a circuit judge granted a so-called “ writ of error coram nobis,” with supersedeas against the execution on the bond, though neither the writ of error nor supersedeas referred to the bond, but recited only the original judgment; and at the May term, 1840, without assigning any errors or malting up any issue of fact on the writ of error, the defendant in the execution moved to quash the bond and the execution on the bond, which motion was sustained; held, that it was a void proceeding thus to quash the bond on motion at a term subsequent to its forfeiture ; and that, notwithstanding the judgment of quashal, the bond remained in full force ; the facts of the petition, writ of error and supersedeas not altering the general rule on that subject.
    How far the judgment of a court quashing a bond at a term subsequent to its return term, if done upon a writ of error coram nobis, presenting an issue of fact upon the determination and adjudication of which the court declares the bond void, and quashes it, would be valid,— Quiere ?
    A writ of error coram nobis is intended to correct a mistake in fact, not in error of law; errors of fact must be assigned on it, and if disputed an issue is made up to be tried by a jury; the judgment on which, if for the plaintiff in error, is, that the former judgment be recalled and revoked.
    Where a forthcoming bond has been illegally quashed, so that the judgment of quashal is absolutely void, the plaintiff in the judgment may wholly disregard the quashal, and issue executions on the bond, as though no such judgment had been made.
    How far a writ of error coram nobis is a proper mode of reaching a defective forthcoming bond,— Quiere ?
    
    In error from the circuit court of Claiborne county; Hon. George Coalter, judge.
    On the 30th of May, 1838, James Fellows, John Wadsworth, and Richard Fellows, partners, under the style of Fellows, Wadsworth & Co., recovered judgment against Jesse W. Griffin and Harrison Cooper, in the Claiborne circuit court, for $1550.81 cents on a promissory note. On the 15th day of July, 1838, an execution issued on this judgment directed to the sheriff of Claiborne county, who received the same and levied it on a negro man named Edmund, as the property of Griffin & Cooper, November 1st, 1838 ; upon this levy being made, Griffin & Cooper gave forthcoming bond, with William McCluer as security, which was returned forfeited by the sheriff on the fourth Monday of November, 1838.
    On the 28th day of December, 1839, a pluries fi. fa. on the bond issued to the sheriff of that county, which came into his hands on the 30th December, 1839, and was levied on the 24th of January, 1840, on certain lands and negro slaves, as the property of Jesse W. Griffin, and was by the sheriff returned into the clerk’s office on the 27th February, 1840, “ superseded.” On the 25th of February, 1840, Griffin petitioned the circuit judge for a writ of error coram nobis and supersedeas to said execution levied on 24th January, 1840. The petition sets out the original judgment, the execution on it, the giving and forfeiture of the bond, and the pluries fi. fa.; and charges that there was manifest error in the forfeited bond, and execution on it, in this: That the original execution on the original judgment was in favor of Fellows, Wadswoxtix & Co., while the bond was in favor of Fellows, Wadworth & Co. — other verbal objections were also pointed out; — and praying for a writ of error coram nobis and supersedeas, returnable to May term, 1840. Which petitions and prayer the judge granted; and a writ of error coram nobis and supersedeas and citation issued and was executed and returned to May term, 1840. The writ of error and supersedeas were in these words, viz.
    “ State of Mississippi.
    To the Clerk of the circuit court of Claiborne county, G-heeting :
    Because manifest error hath intervened in the record and process, proceedings and judgment in and before the said circuit court, in a suit between James Fellows, John Wadsworth, and Richard S. Fellows, in the name of Fellows, Wadsworth & Co., plaintiffs, and Jesse W. Griffin and Harrison Cooper, defendants, of a plea of trespass on the case in assumpsit, wherein the plaintiffs recovered of the said Jesse W. Griffin and Harrison Cooper the sum of one thousand five hundred and fifty dollars and eighty cents, and costs of suit, to the great damage of the said Griffin & Cooper, as by the complaint of Jesse W. Griffin, as we are informed by the petition of Jesse W. Griffin, filed. And we being willing that the error, if any there be, shall be corrected in due manner, and full and speedy justice done in the matter, do command you, if judgment be so given, to send, under the seal of your said court, openly and distinctly, a complete and perfect exemplification of all of the said record process, proceedings and judgments, with this writ, so that the same be before our Claiborne circuit court to be held at Port Gibson, on the fourth Monday of May next, that on inspection thereof our said circuit court may cause to be done thereupon for the correction of that error what of right and according to law ought to be done.
    Witness the Hon. George Coalter, judge of the first judicial district of said state, the fourth Monday of November, 1839; witness also Ater Davis, clerk of (l. s.) the circuit court aforesaid, and the seal of that court in the margin hereof, the 25th day of February, 1840; this last day being the day of the date and issuance of this writ.
    Ater Davis, Clerk"
    
    “State op Mississippi.
    To the Sheriff of Claiborne county, Gteeetxng ;
    Whereas at the May term, 1838, of the circuit court of said county, James Fellows, John Wadsworth, and Richard S. Fellows, in the name of Fellows, Wadsworth & Co., plaintiffs, and Jesse W. Griffin and Harrison Cooper, defendants, judgment was rendered in favor of’ the plaintiffs for the sum of one thousand five hundred and fifty dollars and . eighty cents, and costs of suit; and whereas the said Jesse W. Griffin has prayed and obtained a writ of error coram nobis and supersedeas, returnable to the next term of our circuit court of Claiborne county, to revise and reverse the said judgment, and has given bond with sureties as required for supersedeas of execution of said judgment : We, therefore, command you to supersede and desist from any and all further action upon any and all further process of execution upon said judgment, until the said matter shall be determined on by our said circuit court, and you shall be by other process otherwise legally thereunto authorized, and have you then and there this writ.”
    The supersedeas was witnessed, bore teste, and issued in the same manner with the writ of error,
    At the May term, 1840, the court quashed the execution and forthcoming bond on motion. The following is the entry on the minutes of the court, of the order quashing the bond:
    “ CiRcuit Couet, Wednesday, June 10th, 1840.
    Felloxos, Wadsxvorth & Co. v. Griffin & Cooper.
    
    On motion to quash the forthcoming bond and execution on bond. On argument of counsel, said motion was sustained, and forthcoming bond and execution on bond quashed.”
    No other disposition appears of record, of the petition, writ of error and supersedeas.
    
    In this state of the case, on the 9th of April, 1844, Fellows, Wadsworth & Oo. sued out execution on the judgment on the forfeited bond, against Griffin, Cooper, and McCluer, as though the bond had not been quashed. This execution was levied on negroes, as the property of William McCluer, on the 18th April, 1844. On the 24th of April, 1844, McCluer petitioned Judge Thomas A. Willis for a writ of supersedeas, to stay all further proceedings on said execution, and praying that the same might be quashed; setting forth in his petition the original judgment; the giving and forfeiture of the forthcoming bond; charging that said bond was variant from the original judgment, full of errors and irregularities, and in consequence thereof was quashed by the circuit court on motion, and the petitioner wholly released therefrom; that the order, quashing the bond, still remained in full force and unreversed; and no appeal or writ of error had been taken or prosecuted thereupon ; but that, on the contrary, the attorney of the plaintiffs had caused execution to run on the original judgment since the quashing of said bond; but had since concluded to disregard the order of court quashing the bond, pretending that it was still a legal bond; — and that by virtue of the execution so issued on said forfeited bond, the sheriff had levied on five negroes, formerly belonging to him, but sold by him since the quashing of the bond to a bona fide purchaser; that execution was variant from the bond in many particulars.
    The petition was granted, and supersedeas issued, at the November term, 1844, of the Claiborne circuit court.
    A motion to discharge the supersedeas was made, for various reasons assigned by the plaintiffs in the execution ; and, at the same time, a motion by McCluer to quash the pluries fi. fa. on the bond to May term, 1844, because, previous to the issuance thereof, the bond had been quashed, and the judgment thereon set aside and vacated by the court on writ of error coram nobis.
    
    The court overruled the motion to discharge the supersedeas, and sustained the motion to quash the execution, upon the reasons set forth in the motion to quash; to which opinion of the court the plaintiffs excepted, and prosecuted this writ of error.
    
      J. B. Thrasher, for plaintiffs in error.
    1. It has been repeatedly decided by this court, that an order of the circuit court quashing a forthcoming bond after the return term, is wholly void, and does not affect the rights of the parties, as they stood before the bond was quashed. That the judgment on the forfeited forthcoming bond, thus quashed, is still in full force, on which execution can alone issue. Field v. Pender et al., 1 S. & M. 347; Conn v. Pender, lb. 386; Pender v. Felts et al. 2 S. & M. 536; Clow v. Thorpe, 3 S. & M. 64.
    2. But it is contended by counsel, that, in the case at bar, the bond was quashed on writ of error coram nobis, notwithstanding that the minutes of the court and record show that it was quashed on motion. The record being the only legal evidence, would seem to preclude all further inquiry on this point. Be that matter, however, as it may, the order of the court quashing the bond was equally void, and does not affect the execution issued upon the judgment on the forfeited bond. In the case of McNutt v. Wilcox &f Fearn, the court decided that a writ of error coram nobis will not lie to reverse a judgment on a forfeited forthcoming bond. In that case, a writ of error coram nobis was sued out; — not to reverse the original judgment, say the court, but to reverse the judgment on the bond. Such a writ is proper, in order to reverse a judgment for error in fact; but there must be a judgment of the court, or there can be nothing to reverse. The statute gives to a forfeited forthcoming bond the effect of a judgment; but there is in truth no judgment, as the court does not pass upon it, nor is any judgment entered on the record. If the bond was defective, or irregularly taken, it might have been quashed, but cannot be reached by writ of error coram nobis. 3 How. R. 421.
    
      H. T. Ellett, for defendants in error.
    I. The execution was properly quashed, for the variance in the names of the parties from those contained in the bond, to wit: Wadsworth for Wadworth, and Cooper for Hooper. They are not idem sonans. Nor can an execution properly issue in favor of James Fellows, John Wadsworth, and Richard Fellows, on a bond payable to “ Fellows, Wadworth & Co.” without naming the individuals in any part of it. It might as well have issued in favor of any other persons.
    If the bond is good, it is an independent substantive judgment, and no reference can be had to the previous proceedings in the cause, either to sustain, or to destroy it. Such is the effect of numerous decisions of this court on the subject. It is a new judgment, and executions issuing upon it must conform to the bond, however variant from the original proceedings. Ban/c of U. Slates v. Patton, 5 Howard, 237.
    2. The proceedings in the court below to vacate the forfeiture of the bond in this case, on a writ of error coram nobis, were not void, but are good until reversed. The writ of error coram nobis 
      lies in the same court, to correct' errors of fact in judgments. Jacques v. Cesar, 2 Saund. 101, n. 1. A forthcoming bond, when forfeited, has “ the force and effect of a judgment.” II. & H. Dig. 653, § 73. A judgment is the determination and sentence *of the law, not of the judges, though pronounced by them. 2 Black. Com. 396. A forfeited bond is a judgment to all intents and purposes, and is so held by repeated decisions of this court.
    
      Wilcox et q,l. v. McNutt, 3 How. 419, says, the forfeiture of the bond “ has the force and effect, and is of equal dignity with a judgment, and the plaintiff is not entitled to two subsisting judgments ” for the same cause.
    
      Barker v. Planters Bank, 5 How. 574. “ The law gives the judgment, and it is enrolled in the bond, after it becomes forfeited. No judgment record of it is necessary ”
    
      Bank U. States v. Patton, 5 How. 237. “ Whilst this new judgment is in force, no proceeding can be had upon the original judgment. The security of the old judgment is merged in the higher security of the new one. It is the same, in principle, as though a second judgment was had in an action of debt upon the old judgment, or upon the bond after breach of its condition.” Page 238: “ By the former decisions of this court, this new judgment, which is recorded by the law in the bond, was considered as possessing the qualities and force of a judgment obtained in the ordinary course of proceeding.” Page 239: It becomes “invested with all the sanctions of a regular judgment.”
    
      Minor v. Lancashire, 4 How. 351. “ The bond itself has the force of a judgment, as soon as it becomes forfeited.”
    “It is to be regarded in the same light as judgments obtained in the ordinary course of legal proceedings.” 3 How. 1. And therefore the court held, that it must be revived by sci. fa. after a year and a day.
    3. The only reason why a bond cannot be quashed on motion merely, after the term, is because it is a judgment, and has all the qualities and sanctions of a judgment. “After forfeiture, it is no longer a mere bond, it is a judgment. If the court undertakes to quash it, it undertakes to set aside a judgment.” Field v. Morse et al. 1 S. & M. 349; lb. 388. In Bell v. Tombigbee Railroad Co. 4 S. & M. 673, the court holds similar language, and says, “The final judgment is rendered, and cannot again be drawn into contestation, unless the parties are again brought into court in some recognized mode.”
    Now the only recognized mode to bring parties into court, for the correction of errors of fact in judgments, is by writ of error coram nobis, and citation thereon.
    Cases in which the writ of error coram. nobis has been resorted to below, have been before this court, and have passed without question as to the propriety of the remedy. Keller v. Scott, 2 S. & M. 82.
    4. To deny this remedy, is to give the bond much greater force and effect than a judgment, and to divest it of one of the qualities of a judgment, all of which qualities it has been held to possess.
    Suppose a bond given by a married woman, an infant, or a person non compos ; or suppose the death of one or all the obli-gors, before forfeiture; is there no remedy 1 There can be none, unless the writ of error coram, nobis will lie.
    The case of Wilcox & Fearne v. McNutt, 3 How. 417, will be relied on by the opposite side. It is there said that this writ cannot apply to judgments on forfeited bonds, because the court does not pass upon it, nor is any judgment entered upon it on the record, and therefore there is no judgment to reverse.
    It is respectfully urged, that this point does not seem to have been insisted on, or much considered, and that it cannot be sustained consistently with the subsequent cases. It is now held, that there is a judgment; that it is given by the law, and is enrolled in the bond, and that a sci. fa. is necessary to revive it. That it possesses all the qualities and sanctions of a regular judgment, and is the same in principle as if it were a judgment obtained in an action of debt upon the bond, after breach of its condition. The case of Waldron, Thomas & Co. v. Parkinson Sp Sevier et al. 7 S. & M. 196, admits the application of the writ of error coram nobis in cases of these forfeited bonds.
    
      5. But if it is still held, that error cor. nob. will not apply to these judgments, it will not alter this case. The circuit court had unquestionable jurisdiction to grant writs of error cor. nob. in proper cases. If it granted the Avrit improperly in this case, it was an error which should have been corrected by application to an appellate tribunal. It is the same in principle as though an action of assumpsit had been brought upon a bond or record, and a judgment rendered. The action of assumpsit does not apply to such cases; yet the court having jurisdiction of the cause and of the parties, the judgment is not void, but must be reversed in a proper manner.
    6. So the propriety of the judgment of the court below in quashing the bond, on the writ of error coram ?iobis, is not in question. If erroneous, it should have been appealed from. The record was properly brought before the court by one return to the writ; the citation was served according to law, and the court decided the case. It may have erred. The reasons assigned for quashing that bond may have been altogether insufficient. But the question now is, not, was the decision erroneous?— but, was it void for want of jurisdiction ?
    7. Nor can it be objected to, that the case was put upon the motion docket, and heard through that medium. Such was the common practice of the court in such cases. Nor is there any vice in the use of the word “ quash,” instead of “ reverse.” Indeed, the proper word is “ recall.” 2 Saund. 101, n. 1.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

On a judgment against Griffin & Cooper, rendered May, 1838, they gave a forthcoming bond, with McCluer as surety, which was forfeited to November term, 1839.

An execution was issued on this bond, returnable to May term, 1840, which was levied, and Griffin presented a petition to a circuit judge, and obtained a writ of error coram nobis, and supersedeas, returnable to that term of the court. The writ of error coram nobis, so called, though it is not a writ of that description, recites and reaches only the original judgment, and not the statutory judgment on the bond, and the Ayrit of superse- deas does the same, though both were probably intended to apply to the bond. No errors were assigned, or issue of fact made up; but at the return term, (May, 1840,) a motion was made to quash the bond and execution, which was sustained; and this judgment presents the groundwork of the motion made at November term, 1844, to quash the pluries fi. fa., to reverse the judgment on which this writ of error was sued put. The writ of error seems to have been abandoned, and the remedy by motion resorted to. But it is said, the judgment quashing the bond, was in reality the judgment on the writ of error coram nobis. We cannot so regard it, without giving it an application which the record does not warrant. It does not profess to be a judgment on the writ of error; it is not an appropriate judgment in such cases, and it extends to matter not embraced by the writ of error, to wit, the forfeited bond. A writ of error coram nobis is intended to correct a mistake in fact, not error of law. Errors must be assigned on it, and, if the fact be disputed, an issue is made up to be tried by a jury. If it be found for the plaintiff in error, the judgment is, that the former judgment be recalled and revoked. There was no fact assigned, no issue, and no judgment that the former judgment be recalled, but merely a judgment that the bond and execution, which were not embraced in the writ of error, be quashed. The original judgment, which was the subject of the writ of error, remains in full force. To hold that the judgment on the motion was a disposition of the writ of error, would be to step aside from the record, and involve the court below in the dilemma of having given a wrong judgment in a case not before it. We do not see how a writ of error coram nobis could be made to reach the judgment on the bond, even if it had professed to do so; but it did not, and we are therefore not authorized to assume that this judgment was intended to be a decisión on the writ of error. If the writ of error was not abandoned, why was the motion made to quash at May term, 1840, and why was that motion repeated in 1844, predicated on the reason that the pluries fi. fa. had issued after the bond was quashed 1

If we are correct in' this view of the subject, it only remains to inquire into the propriety of the judgment quashing the plu-ries fi. fa. at November term, 1844. The plaintiff, it seems, had disregarded the judgment quashing the bond, and had, notwithstanding, issued his phiries fi. fa. on it. This was quashed because the bond had been quashed in 1840. If it had been so quashed, the reason was a sufficient one. But a judgment quashing a forthcoming bond after the return term, has heretofore been regarded as a nullity, and presents no impediment to the issuance of an execution on it. Field v. Morse, 1 S. & M. 347; Conn v. Pender, Id. 386; Pender v. Felts, 2 S. & M. 535. On these authorities, the plaintiff was entitled to his execution. The bond was forfeited, November term, 1838, and quashed at May term, 1840.

This case, in most of its features, is like that of Parkinson & Sevier v. Waldron, Thomas & Co., 7 S. & M. 189. A writ of error coram nobis was then obtained, and the bond was quashed on motion. But as it was long after the return term of the court, it was held that the motion was made too late. It was intimated, that if the motion was to be considered merely as a mode of bringing up the merits of the writ of error coram jiobis, the court might, perhaps, have set aside the bond as a nullity, if it were absolutely void. This was not deciding, that the judgment on the motion was a correct mode of bringing up the merits of the writ of error, or that a defective bond could be reached by such writ of error.

This is also similar to the case of Miller et al. v. Patton, 3 S. & M. 463, in which a writ of error coram nobis was sued out, but the court refused to quash the bond at a subsequent term, and its judgment was sustained.

If we assume in this case, that the motion was a mere mode of disposing of the writ of error, it will not alter the result; as it was resolved into a mere motion, it must be regarded as such, and treated accordingly.

Judgment reversed.  