#### Calloway et al. vs. Roane et al.

Upon a motion for judgment, on a forfeited delivery bond, stating the facts necessary to give the court jurisdiction over the person of the defendants, the court may, ow judgment by default, assess the damages under the 2d and 3d sec’s of the act off 1843.

Telkom vs, Togo, 1 English's it. 148, as to the above point overruled.

Writ of Error to the Circuit Court of Clark County.

This was a motion for judgment on a forfeited delivery bond, by Sam. C, Roane and others, trustees of the Real Estate Bank, against Calloway and Manning, determined in the Clark circuit court, at the September term 1845, before the Hon. J. J. Clendenin.

The motion filed by the plaintiffs was substantially as follows:

“ Sam C. Roane, James S. Conway, Henry L. Biscoe, William F. Moore, John Preston Jr., Anthony H. Davies, Sahdford C. Faulkner, Silas Craig, George Hill, Enoch J. Smith, Daniel J. Witteiv Lorenzo M.- Clark, and John Drennen — pl’ffs.

Versus, q

Jonathan O. Calloway and Willis S. Smith, defendants.

On this day come all the above named plaintiffs, except the said* Lorenzo N. Clarke, and show to the court here that he the said Lorenzo N. Clarke, has departed this life, and that the said plaintiffs, on the 5th day of March 1845, in our said circuit court, recovered against the said defendants, for debt the sum of $800 with ten per cent interest thereon since the 2d Jan’y 1841, until paid, together with all costs; and for the execution thereof, sued out of our said court the State’s writ offt. fa. on the 29th day of May 1845, which was made returnable on the second day of September 1845, and which writ of ji. fa. came duly to the hands of Ben S. Duncan, sheriff of said county to be by him, in due form of law, executed; and which afterwards, on the 10th day of August, 1845, said sheriff levied on Harrison and Abraham, two negro slaves, the property of the said defendants, and wishing to retain possession of said *355slaves until the day of sale, the defendant Calloway, and one Gray L. Manning executed their writing obligatory or delivery bond, in .•due form of law executed, whereby they bound themselves in the sum of $2360, lawful money &c., to be paid to the plaintiffs, conditioned that, reciting the said recovery andfi.fa., and levy, that if said Calloway and Manning should safely deliver said slaves to said sheriff at the court house door in said county on the first day of September 1845, between the hours of ten in the forenoon and three in the afternoon, without injury or waste, then said bond was to be void, else to be in full force, which bond they delivered to said sheriff; and afterwards, to-wit, on the 1st day of September 1845, at the court house door, the said obligors having wholly failed to deliver said two slaves pr either of them to said sheriff in accordance with their said bond or otherwise howsoever, and having wholly failed to pay said debt, interest and costs or any part thereof, said sheriff returned said Ji. fa. wholly unsatisfied, and said bond wholly forfeited. Wherefore the said surviving plaintiffs pray for judgment upon said bond against said obligors in conformity with law” &c. The motion was filed Sept. 2d, 1845.

The judgment entry follows:

“ Sam. C. Roane” (&c. &c. repeating the names of all the plaim tiffs as above, including Qlarke's) “plffs.

Versus.

Jonathan 0. Calloway and Gray L. Manning, defts.

This day comes the plaintiffs by Pike & Baldwin their attorneys, and filed their motion herein, and thereupon moved the court here for a judgment on the delivery bond taken and returned in this case, and it appearing to the court that the said defendants have not kept and performed the conditions of said delivery bond, and that the said plaintiffs have sustained damage by reason thereof in the sum of $1183 21; therefore, on motion of the said plaintiffs it is considered by the court that said plaintiffs have and recover of and from said Jonathan 0. Calloway and Gray L. Manning the sum,” ffcc. &c. concluding in the usual form.

The defendants brought error, and assign for errors that the *356court below assessed the damages, and that judgment was for Clarke, who was dead,

Watkins & CtjRkan, for the plaintiffs.

The motion for judgment was made by all of the defts. in error except Clarke, who is therein stated to be dead, yet the judgment was afterwards rendered in Ms favor.

It was error for the court to assess the damages. Pelham vs. Page, 1 English'1s R. 148.

Pike &. Baldwin, contra.

The law governing the practice in these cases is clear. By the Revised Statutes, at the first term after forfeiture of a delivery bond, judgment might be taken upon mere motion and without the form of pleading. That portion of the law which authorized the forms of pleading was repealed, and a whole class of cases, to the infinite mischief and concern of parties seeking a legal enforcement of their rights, was declared out of the protection of the courts and was annulled ; but by the act of 1843, “in all cases where any delivery bond had been taken and forfeited, and no judgment entered thereon, the plaintiff may, on motion and twenty days notice, without any declaration or formal pleading obtain judgment, which shall be entered in the same manner as judgments on penal bonds, the court ascertaining the damages: and whenever any delivery bond shall hereafter be forfeited judgment may be entered in like manner, without notice at the first term, but not after.” Acts 1842, page 49, 50.

The old law then, as it stood before the repeal in 1840, is now the law of the land, so far as the matter of practice is concerned The record in the present case shows that the judgment was rendered at the first term, upon motion and without controversy, in strict conformity with the terms of the act. No jury was necessary because the statute expressly permits the court to ascertain the damages without a jury. There was no necessity fora declaration or other formal pleading, for the statute again dispenses with that in express terms. The facts shown are that the parties bound *357themselves to do a particular thing, but did it not; and this is enough.

The case of Pelham vs. Page, 1 English 148, will perhaps be cited as authority for a reversal of the present judgnjdnt. That case was reversed, because it did not appear that thejudgmentwas unsatisfied, and because no writ of inquiry issued. The first ground is not presented by the present record; for it affirmatively appears that the debt was wholly unsatisfied. The second ground is directly in the teeth of the statute and the adjudications of this court.

Jennings vs. Ashley & Beebe, 5 Ark. 128, was before the new law, and of course furnishes no rule for the present. Leach & Gibson vs. Pirani, 5 Ark. goes to the full extent of the doctrine that the court may assess the damages without a jury. In addition to this last cited case, we have the pointed statute authorizing the court to assess the damages. Me Knight vs. Smith, 5 Ark. 409, states the true practice. The motion in the present case sets forth all the material facts constituting the liability; which facts are necessarily affirmed by the judgment. The practice, as well as the law regulating the same, and the decisions of this court are not very clear, but sufficient may be gatheied from the statute and the decisions of this court to arrive at a correct conclusion.

As to the only other question — that the judgment is in favor of a party who is dead, is evidently a misprision on the part of clerk in entering the judgment and does not injure the plain tiff in error at all, and he has no right to complain. It is also very questionable whether the judgment is in favor of the deceased plaintiffs. The record states that the plaintiffs, except said Clarke, come and show his death &c. and that afterwards judgment is rendered in favor of the plaintiffs. By the term “plaintiffs” it will not certainly be contended that a dead man is included.

OnmiAM, J.

This was a judgment obtained by the defendants in error against the plaintiffs in error under the act of 1843, upon a delivery bond. Acts 1842-3, p. 49. The proceedings are strictly in conformity with the requisitions of the statute, All the factsiare *358made to appear upon the record necessary to give the court jurisdiction of the person and the subject matter.

Lorenzo N. Clarke, one of the obligees in the bond, is shown by the motion to have died before the making of the motion, and judgment is rendered for the plaintiffs. This judgment is in favor of the survivors alone; Clarke being dead was not a party.

The second and third sections of the statute authorize the court to ascertain the damages (a fact which was overlooked by the court in Pelham vs. Page, 1 Eng. R. 148). The court ascertained the damages in the present case and rendered judgment accordingly. There is no error in the judgment and the same is accordingly affirmed.