BARTON v. PETIT AND BAYARD

BARTON v. PETIT AND BAYARD. Absent....Johnson, J. and Todd, J". if the original r'tereerf the reversal óf the dependent ihe^Mbrth1 coming bond” conrse- but a ran is neeessai‘y to bring up -I he execution upon which íren so asTo show the conuexion be-Judgments, ERROR to the Circuit Court for the district of on a judgment rendered on a bond (technicalty called in Virginia a “ forthcoming band”J given to the marshal with condition to have certain goods forth-c°ming at the day of sale appointed by the marshal j being goods which he had seized under &fi. fa. issued UP0T1 former judgment recovered by Petit and Bay-against Barton,-which judgment was reversed at the last term of this Court, P. B. Key, for the Plaintiffin error, contended, that recoi°P f(,rmer judgment being referred to in the condition of the bond, was to be considered as part 0f tills record s and that the Court could judicially take notice that it. w7as the same which was reversed by this Court at the last term, the . transcript of which record now remains with the clerk of this Court. But if the Court could not judicially notice that fact, he moved for a certiorari to the clerk below to certify the record of the judgment on which the execution issued upon whicli the bond was given. E. I. Lee and I. R. Ingersoll, contra, contended, that the former record was no part of the present record, and that the Court could not judicially-know it to-be the same, and cited 4 Hen. and Jhm* 293, 1 Wash, 94. February 11th... [MAJORITY — Washington, J.] Washington, J. delivered the opinion of the Court as follows: This is a writ of .error to a judgment of the Circuit Court of Virginia, rendered upon a bond given hy the Plaintiffs, iii error with condition for the delivery, at a certain time arid place, of property seized by the marshal to. satisfy an execution which had issued from the same Court. The condition not having been complied with, this judgment was rendered upon motion and ^notice thereof duly served upon the obligors in the bond, agreeably to the law’s of Virginia. It is not pretended that there is any intrinsic error in this judgment to warrant its reversal; but it is contended that the reversal of the original judgment, upon which the proceedings in this record took place, requires necessarily the Reversal of this judgment. The general doctrine is undeniably so; but the application of'it to this case.is not admitted. That the judgment in this record is dependent upon some other judgment is apparent from the bond which recites a prior , execution and seizure, by the marshal, of the property- mentioned in the condition, for the purpose of satisfying it$. hut it does not appear judicially to the Court that the recited execution issued upon the identical judgment which has’ been reversed. The-only difficulty which the Court has felt has been to devise some proper mode in this, as well as in all similar cases which may hereafter arise, to connect with the original reversed judgment that which is asserted to be dependent upon it. A certiorari upon a suggestion of diminution would not answer the purpose,- as the proceedings in the original suit form no part of those in the subsequent suit: the only foundation of which arc, the bond and notice. Neither does it appear regular for this Court to receive as evidence of the dependency of the latter upon the former judgment, the certificate of the clerk of the Circuit Court. The Court has thought it best to direct a special writ to be framed applicable to cases of this nature, to be directed to the clerk of the Court in which the judgments were rendered, to certify under the seal, of the Coürt, tile exccutibn recited in the bond on which the second judgment was rendered. This difficulty can never occur except in cases where all the proceedings in the original judgment, except the execution, are albefore this Court. The execution, therefore, though no part of either the original or dependent record, being certified by the proposed writ, will supply the only link necessary to prove the connexion between the two judgments. In this case, the Court from the novelty of the practice necessary to be adopted, will not permit the Plaintiff in error to suffer in con sequence of his not having applied sooner for a writ of certiorari, but will now direct the same to issue. In future the party must take the consequences of his neglect, if he should fail to have the execution certified in time. March 16th.,.. w ashington, j. The Court has examined the execution which has been sent up by certiorari, and is satisfied that the judgment on which it issued is that which was reversed at the last' term. The judgment, therefore, on the forthcoming bond must be reversed also. Judgment reversed.