1851.

July Term.

Know all men by these presents, that we, Jacob Carper, Joseph K. Pitzer, John Luster and Matthew S. Robinson, are held and firmly bound," &c. This bond was executed by the parties before named, and also by Middlecoff Absalom C. Dempsey.

Dempsey appeared and demurred to the bill; and although no special cause of demurrer was stated, the attempt was to sustain it on the ground that Dempsey's name not having been inserted in the penal part of the bond or the condition it was not his bond. The Circuit court sustained the demurrer and dismissed the bill as to Dempsey.

The cause proceeded as to the other parties, and accounts were taken which shewed a considerable balance in the hands of the executor, which was apportioned among the legatees according to their interests; and there was a decree against the sureties in favor of the legatees for the sums ascertained to be due to them respectively. And thereupon Luster applied to this court for an appeal.

There were other questions in the cause which it is unnecessary to state.

Lackland and Cooke, for the appellant, insisted, that the bond was the bond of Dempsey, and therefore that the demurrer was improperly sustained. They referred to Bac. Abr., title Obligation, letter C; 2 Lomax Dig. 113; Bartley v. Yates, 2 Hen. & Munf. 398; Beale v. Wilson, 4 Munf. 380; Crawford v. Jarrett, 2 Leigh 630; Holman v. Gilliam, 6 Rand. 39; Clark v. Blackstock, 3 Eng. C. L. R. 159; Bailey on Bills 44; 1 Story's Equ. Jur. § 155, 162, 166, 168; Fonb. Equ. Book 1, ch 1, § 7; 1 Madd. ch. 49, 50; Wiser v. Blackly, 1 John. Ch. R. 607.

F. T. Anderson, for Dempsey, insisted, there was no evidence that he intended to bind himself; and

Luster
V.

& als.

1851. July Term.

Luster

V.

& als.

that the intention was necessary to bind him, and should appear on the face of the bond. Catlin v. Ware, 9 Mass. R. 218; 2 Lomax Dig. 206; Black. Com. Middlecoff Book 2, p. 298; 1 Tuck. Com. 234, 275; Bell v. Allen's adm'r, 3 Munf. 118. And he insisted that if Dempsey was not bound at law he was not bound in equity. King v. Baldwin, 2 John. Ch. R. 554; Buller, J., in Straton v. Rastall, 2 T. R. 367; People v. Spraker, 18 John. R. 390; Moses v. Liblingarth, 2 Rawle's R. 428; 2 Rob. Pr. 37: Commonwealth v. Jackson's ex'or, 1 Leigh 485; Graves v. McNeil, 1 Call 488; Ward v. Webber, 1 Wash. 279; People v. Jansen, 7 John. R. 331.

J. T. Anderson argued the case for Middlecoff's legatees, but they were not particularly interested in this question.

BALDWIN, J. delivered the opinion of the court.

The court is of opinion, that upon the face of the bill of the plaintiff, and of the official bond of Jacob Carper, executor of John Middlecoff the elder,therewith exhibited, the defendant Dempsey must be regarded as one of the sureties in the said bond, he appearing to have executed the same, although his name is not therein mentioned as one of the obligors; and therefore that the Circuit court erred in sustaining the said Dempsey's demurrer and dismissing the bill as to him, instead of overruling said demurrer and requiring him to answer the bill, which error is to the prejudice of the appellant and of the appellees Pitzer and Robinson. And the court is further of opinion that there is no other error in the decree of the Circuit court, unless it be in decreeing in favour of the children and heirs of John Middlecoff the younger and the children and heirs of George Middlecoff, instead of their personal representatives; it being uncertain from the record whether the

1851.

July Term.

Luster

V.

&als.

said John Middlecoff the younger and George Middlecoff, sons and legatees of the said John Middlecoff the elder, died before or after the death of their father; and unless it be in the omission of the decree to state that Middlecoff the recovery in favour of Thomas J. and Harriet Middlecoff, infant children and heirs of the said John Middlecoff the younger, is by their guardian and next friend ; in regard to which alleged errors no action of this court need be had, inasmuch as for the error above declared, in sustaining the demurrer of said Dempsey, the decree must be reversed and the cause remanded to the Circuit court for further proceedings to be there had, and any such irregularities may be there corrected, after enquiry into the facts bearing thereupon. It is therefore adjudged, ordered and decreed that so much of the said decree as sustains the demurrer of the said Dempsey, and dismisses the bill of the plaintiffs as to him, be reversed and annulled, with costs to the appellant against the appellees who were plaintiffs and said Dempsey. And it is further adjudged, ordered and decreed that the said demurrer be overruled, and that the said Dempsey do answer the bill of the plaintiffs; and that the reports of the commissioner in regard to the matters of account be recommitted, in order that the same may be reformed, in respect to any responsibility which may appear on the part of the said Dempsey or to any errors therein which may be shewn by him. And the cause is remanded to the Circuit court to be proceeded in as above indicated.

In a proceeding of forcible entry and detainer, the court is constituted and then adjourns to a day certain. The court failing to meet on the day to which it is adjourned, the cause is not discontinued, but stands adjourned, by operation of law, to the next term of the County court.

This was a case of forcible entry and detainer in the County court of Fayette, by William T. Mann against Lockridge Gwinn and others. The warrant of the justice directed the justices and the jury to be summoned to meet on the 14th of November 1849. Accordingly the justices met and constituted the court on that day, and then, on the motion of the defendants, the cause was continued until the 29th of March 1850, to which day the court was adjourned.

The court did not meet on the 29th of March; but at the regular term of the County court in June the cause was tried, and there was a verdict and judgment in favor of the plaintiff. The defendant then applied to the Circuit court of Fayette county for a supersedeas to the judgment, which was granted; and on the hearing of the cause in that court the judgment of the County court was reversed, on the ground that the failure of the special court to meet on the 29th of March operated as a discontinuance of the cause, and therefore that the County court had no jurisdiction to try the case at the June term of the court. Mann then applied to this court for a supersedeas, which was awarded.

Price and Caperton, for the appellant, and
Reynolds, for the appellees, submitted the case.

ALLEN, J. delivered the opinion of the court.

The court is of opinion, that as by the act of 3d January 1834, p. 76, it is provided that whensoever the justices summoned to form a court for the trial of any case of forcible entry shall fail to meet, and no court be formed on the day appointed, such failure shall not operate a discontinuance of the cause, but the same shall stand continued until the next regular court of the county or corporation, whether monthly or quarterly; the act, by a fair construction, applies as well to a failure of the court to meet on the day to which it stood adjourned, as to a failure to meet on the day appointed in the warrant; and in either case the cause stands continned to the next County court, and no discontinuance is operated. It therefore seems to the court here that the judgment of the Circuit court reversing the judgment of the County court is erroneous; and the same is reversed, with costs to the plaintiff in error. And this court, proceeding to render such judgment as the Circuit court should have rendered, it is considered that the judgment of the County court be affirmed, with costs in the Circuit court expended.

1851.

July Term.

Mann
V.

Gwinn

& als.