MOFFITT & WATSON v. THE BRANCH BANK OF MOBILE

MOFFITT & WATSON v. THE BRANCH BANK OF MOBILE. 1. A judgment rendered against Elihu Moffitt, and John V. B. Watson, will not sustain a forthcoming bond, which recites a judgment against Elihu Moffitt, and an execution issued upon such a bond, will be quashed. Error to the Circuit Court of Mobile County. Motion to quash a forthcoming bond, and execution issued thereon, because the bond does not describe the judgment and execution on which it was given, and because one of the defendants in the execution, was dead at the time it was issued. The Court below overruled the motion, from which this writ is prosecuted. Campbell, for plaintiff in error, submitted the cause. [MAJORITY — .ORMOND, J.] .ORMOND, J. Ferhaps the difference between the amount of the judgment as rendered, and that recited in the forthcoming bond, might be reconciled by the addition of the interest, which had accrued when the bond was taken. But the variance between the recital of the defendants to the judgment in the forthcoming bond, and those in the judgment and execution, upon which it professes to he founded, is fatal to it, upon the authority of Richardson v. O’Neal, 5 Ala. Rep. 618. The judgment was rendered against Elihu Moffitt and John V. B. Watson. The forthcoming bond describes a judgment rendered against Elihu Moffitt. This discrepancy is so great that, we cannot say that it is the execution and judgment described in the bond, and it does not therefore appear that there was any authority for taking it. The Court should therefore have allowed the motion, and for that cause, without considering the other causes assigned for quashing the bond and execution, the judgment of the Court must be reversed and the cause remanded.