Wilkinson v. M'Lochlin & Co.
Court of Appeals of Virginia
Upon the'6th day of August, 1794, Duncan M’Lochlin 8f Co. issued a writ of fieri facias against the estate of Wilkinson, who gave a forthcoming bond, which he forfeited. The execution only amounted to 187/. 13s. 7d. but the condition of the bond recited that it amounted to 195/. 12s. 6d. “ including interest, Sheriff’s commissions and all legal costs.”
Read the full summary
Upon the'6th day of August, 1794, Duncan M’Lochlin 8f Co. issued a writ of fieri facias against the estate of Wilkinson, who gave a forthcoming bond, which he forfeited. The execution only amounted to 187/. 13s. 7d. but the condition of the bond recited that it amounted to 195/. 12s. 6d. “ including interest, Sheriff’s commissions and all legal costs.” The bond acknowledged the obligors to be held and firmly bound to Duncan M’’ Lochlin <§• Co. in the sum of 391/. 5s. 6d. to be paid to the said Duncan M’Lochlin, his certain attorney, his heirs, executors, administrators or assigns: The…
1Opinion of the Court
PER C UR.
The error as to the Sheriff’s commissions might have been corrected; but the solvendum is to Lochlin only, and so does not pursue the execution.
Washington. That will not prejudice ; because the teneri is right, and the solvendum is repugnant, and therefore void. It is the teneri which creates the obligation, and the subsequent matter will not vitiate, Robert v. Harnage, 2 Ld. Raym. 1043 ; 5 Bac. Abr. [163, ed. Gwil.] [Queen Mother v. Challoner,] 1 Sid. 295 ; 3 Dyer, 350. Upon these authorities the bond is clearly good.
ROANE, Judge.
Those authorities are satisfactory. The act requires…
2Cited by3 opinions
- Holt v. LynchWest Virginia Supreme Court · 1881
- Ambler v. McMechenDistrict Court, District of Columbia · 1806
- Walker v. ShotwellMississippi Supreme Court · 1850