Gayle v. Agee

4 Port. 439

Opinion

COLLIER, J.

— In this case, the counsel for the defendant produced in Court an authenticated copy of a bond, executed by the plaintiff, and others, as his sureties, for the prosecution of a writ of error.to this Court, and moved the Court to amend the judgment of affirmance, rendered at the last term, so as to allow him his damages, alleging that the bond, or an attested copy was not then in Court. ,

Our statute requires, that the clerk of a Court, from whence a case comes here, must send up an attested copy of the bond with the transcript.

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If the clerk omits this duty, the defendant may have a certiorari, to bring up a copy of the bond; but if, instead of pursuing this course, he allows his cause to be heard and decided, he comes too late, at a term subsequent to the rendition of the judgment, to ask this Court to amend its entry, so as to allow him his damages— upon the suggestion, that the record on which this Court acted, was incomplete.

The motion is therefore denied.

GOLDTHWAITE, J., not sitting.

Aik. Dig. 255.