#### Medford & wife v. Harrell & wife.

1 From Martin.

In a petition for partition, the first judgment to be rendered is for the appointment of Commissioners, and final judgment is to be rendered on their return; an appeal taken from any interlocutory judgment will be dismissed.

'This was a petition for partition of land ; at the return of the process, the Defendants appeared and pleaded “ sole tenure.” At the succeeding term, the petitioners, by their counsel, moved the Court for a decree of partition, on the ground that Defendants5 plea was a nullity, they having no right to make defence; because, by the act of the Legislature giving jurisdiction in cases of petition, it was intended that the proceedings should be cx-parte. The Defendants then moved, that as neither replication nor demurrer was filed to their plea, that the petition should be dismissed. The Court held that the proceedings were ex-parte, and decreed partition, and at the same time adjudged that Defendants should take nothing by their motion whereupon, Defendants appealed to this Court.

*42 4$ ' CASES ARGUED AND DETERMINED IN THE Jtoe 1824 Per Curiam. — This appeal is taken from an interlocutory judgment, and is not sustainable under the act organizing this Court. The first judgment to be ren-Witherspoon ¿jemj by the Court, is the,appointment of five Commissioners, who are to make the partition and return their proceedings to Court, upon which the final judgment is to be given. ' The appeal must be dismissed. Witherspoon & others. Where suit was brought on a bond given by a Sheriff but not drawn conformably to the directions of the act of Assembly, the suit was sustained ; the bond being held good as a voluntary bond. In such a suit a suggestion of damages should be made, under the iStat. of WiU. 3, but if not made, it is no good ground of objection This was an action of debt brought against the Def-iendan t, Witherspoon, former Sheriff of Wilkes, and his securities, on a bond executed by them, which was in the' following words: We and each of us, oblige ourselves, our heirs, &c. to pay to the Governor of the State of North-Carolinh, and his successors in office, the full sum of four thousand dollars; void on condition that Thomas With-erspoon, Esquire, High Sheriff of the county of Wilkes, for the year 1820, shall well and truly do his duty in office, as Sheriff for said year, in every respect according to law. Witness our hands and seals this 2d of May, 1820. Witherspoon, in 1820, as Sheriff, received a sum of money on an execution, at the instance of Chamber^, and failing to pay it over, this suit was brought, and a verdict rendered for Plaintiff. Defendants' moved for a new trial, oti the ground that the bond was insufficient and not drawn pursuant to the act of Assembly. Pax-The Governor to the use of Chambers v. after verdict.

*43 ■ton, Judge, who presided, refused a new trial and rendered judgment, from which Defendants appealed.

The opinion of the Court was delivered by

Haii, Judge.

If a recovery cannot be had in the present case, it cannot lie because the contract of the parties will not warrant it; the contract of the parties fully sustains the verdict and judgment of the Court.

But it is said, and’truly, that the bond has not been taken conformably to the directions of the act of Assembly ; so it was objected in the State Bank v. Twitty, (2 Hawks, 5) but it was decided in that case, and the Court is now of opinion, that the bond was good, as a voluntary bond.

' The Magistrates of the county were empowered by the Legislature, to take from the Defendant a bond, and the form of that bond is prescribed. The bond was not taken for the benefit of the Justices, but for the benefit of the suitors, whose money might come into the hands of the Defendant, as Sheriff, and be by him improperly detained, as seems to have been done in the present case.

The present Plaintiff had no agency in taking the bond, and if the bond, although bad in form, is in its terms sufficient to warrant the present action, it would be the height of injustice to declare it invalid on account of form; it is not like the case of a bond taken by a Sheriff, contrary to the provisions of the act of Assembly; all such bonds are declared to be void.

But an objection has been here made to the form of the proceedings in this case; it has been said, that under the Stat. of Will. 3d, a suggestion of damages ought to. have been placed upon the record. It is true, that ought to have been done, but there is no doubt but that a suggestion of the sort was made, and proof made accordingly; for the Jury, by their verdict, have found damages in consequence of such proof, atid the Court has given, *44judgment thereon; and the omission to suggest dama-Ses on ^e record ought now, after verdict, either to bo overlooked, or leave should be given to enter it nunc pro iunC' — (g Saund. 187, «.)