By LIPSCOMB, Chief Justice.*
In this cause a great many points have been pressed on the consideration of the Court; some of them were abandoned by the counsel in the concluding argument, and there are some others that we should not find material in the investigation; we shall therefore proceed to examine those wo consider most prominent, and involving the true grounds of the contest between the parties. The judgment was rendered on a scire facias against the plaintiffs in error, as the securities of Walter Otey in a writ of error bond, in a case, where Rives, the present defendant was plaintiff, and Otey and others defendants.
The first objection taken by the appellants, is to the writ -of error bond. It is contended, that it goes beyond what is required by the law, and imposes conditions that had never been contemplated by the obligors. Those conditions, it is urged, are not such as the law imposes, and that such being the case, the bond is void. If it wore true that those conditions are not such as the law imposes, we should then inquire how far a bond or recognizance containing all the conditions that the law requires, with the addition of others not required, is bindingou the parlies to it. In such a case, it would seem, that the bond would be valid, so far as the conditions correspond with the law, and that those which are superadded should be treated assurpius-age. This rule of construction would do ample justice to all parties; and the maxium ulileper inutile non viiiatur, would apply. But in point of fact, the bond under consideration does not go beyond the statute; it is true, that it is much more minute and runs more into detail of the conditions to be performed than was at all necessary, yet minutely as those conditions have been set out, the law substantially requires their performance. The actoflS20, a in securing the rights of the judgment creditor, expresses the object to be effected by the bond without descending to particulars; thus when it provides for the payment of such judgment as the Supreme Court may render, in the term judgment, is included the amount of principal, interest, costs and damages; and the special enumeration of those items does not enlarge the duties required to be performed. The act of assembly is in the following words: “That no judgment of the Circuit Court in this State shall be suspended, unless the party applying for such wr t of [115] error shall execute in the Clerk’s office a bond with suffi-eienl security, to be approved by the Clerk, conditioned for prosecuting the writ of error to effect, and to pay and satisfy the judgment that shall be rendered in the said causo by the Supreme Court.'” It will he seen that the conditions of the bond substantially conform to the act of assembly The plaintiffin error can derive no aid from the case put. by way of illustration. It is asked, with much emphasis, if we are prepared to hold the securities liable, when the judgment of the Court below is reversed, and the proper judgment rendered here? We answer that such is the law of our land; and that the act of assembly noticed above, will admit of no other construction; nor can there be much hardship in requiring the party who resorts to a reversing tribunal for the corrcclion of supposed error, to give security to perform the judgment when reversed and corrected; there can be no hardship in securing to the plaintiff what may be justly due him. This is in strict analogy with the case of securities in a bond for a writ of error coram vobis under our statute. When a defendant wishes to have any clerical misprision corrected, he can do so by this writ, on giving bond and security to satisfy the judgment that may be rendered, and this his securities are bound to do, whether he succeeds inprocuring a correction of the judgment or not. Although the question of liability of securities has never before been presented in this aspect, we are now well satisfied, that when ajudgment is reversed and the proper judgment, rendered against the plaintiff in error, his sccuritcs are not discharged, but held liable for the payment of such judgment.
The next objection is, that the scire facias does not correspond with the record on which it purports to be founded, that it calls for twenty dollars costs in the Circuit Court on the affirmance of thejudgment in that Court, on the writ cf error from the County Court. Thejudgment bad been originally rendered in the County Court, and was taken to the Circuit Court, where it was affirmed with costs; the record did not shew to what the costs amounted; nor indeed could it well do so, as it remained to be taxed by the Clerk. It was a matter to be proved on the trial of the scire facias. The amount is alledged to be twenty dollars, and there can be no doubt but the allegation is supported by the ice bill.
The objection that interest was allowed on the damages given in the Supreme Court, is not fairly presented; it [116] should have been the ground of an application to the Court below; but if it were, we do not believe there is any error in it. Interest, is given by our statute on all judgments from their rendition till paid; the fifteen per cent allowed on the affirmance in the Circuit Court, and the ten per cent in the Supreme Court, become embodied with the principal in the judgment, and interest ran on the aggregate amount till payment.
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By LIPSCOMB, Chief Justice.*
In this cause a great many points have been pressed on the consideration of the Court; some of them were abandoned by the counsel in the concluding argument, and there are some others that we should not find material in the investigation; we shall therefore proceed to examine those wo consider most prominent, and involving the true grounds of the contest between the parties. The judgment was rendered on a scire facias against the plaintiffs in error, as the securities of Walter Otey in a writ of error bond, in a case, where Rives, the present defendant was plaintiff, and Otey and others defendants.
The first objection taken by the appellants, is to the writ -of error bond. It is contended, that it goes beyond what is required by the law, and imposes conditions that had never been contemplated by the obligors. Those conditions, it is urged, are not such as the law imposes, and that such being the case, the bond is void. If it wore true that those conditions are not such as the law imposes, we should then inquire how far a bond or recognizance containing all the conditions that the law requires, with the addition of others not required, is bindingou the parlies to it. In such a case, it would seem, that the bond would be valid, so far as the conditions correspond with the law, and that those which are superadded should be treated assurpius-age. This rule of construction would do ample justice to all parties; and the maxium ulileper inutile non viiiatur, would apply. But in point of fact, the bond under consideration does not go beyond the statute; it is true, that it is much more minute and runs more into detail of the conditions to be performed than was at all necessary, yet minutely as those conditions have been set out, the law substantially requires their performance. The actoflS20, a in securing the rights of the judgment creditor, expresses the object to be effected by the bond without descending to particulars; thus when it provides for the payment of such judgment as the Supreme Court may render, in the term judgment, is included the amount of principal, interest, costs and damages; and the special enumeration of those items does not enlarge the duties required to be performed. The act of assembly is in the following words: “That no judgment of the Circuit Court in this State shall be suspended, unless the party applying for such wr t of [115] error shall execute in the Clerk’s office a bond with suffi-eienl security, to be approved by the Clerk, conditioned for prosecuting the writ of error to effect, and to pay and satisfy the judgment that shall be rendered in the said causo by the Supreme Court.'” It will he seen that the conditions of the bond substantially conform to the act of assembly The plaintiffin error can derive no aid from the case put. by way of illustration. It is asked, with much emphasis, if we are prepared to hold the securities liable, when the judgment of the Court below is reversed, and the proper judgment rendered here? We answer that such is the law of our land; and that the act of assembly noticed above, will admit of no other construction; nor can there be much hardship in requiring the party who resorts to a reversing tribunal for the corrcclion of supposed error, to give security to perform the judgment when reversed and corrected; there can be no hardship in securing to the plaintiff what may be justly due him. This is in strict analogy with the case of securities in a bond for a writ of error coram vobis under our statute. When a defendant wishes to have any clerical misprision corrected, he can do so by this writ, on giving bond and security to satisfy the judgment that may be rendered, and this his securities are bound to do, whether he succeeds inprocuring a correction of the judgment or not. Although the question of liability of securities has never before been presented in this aspect, we are now well satisfied, that when ajudgment is reversed and the proper judgment, rendered against the plaintiff in error, his sccuritcs are not discharged, but held liable for the payment of such judgment.
The next objection is, that the scire facias does not correspond with the record on which it purports to be founded, that it calls for twenty dollars costs in the Circuit Court on the affirmance of thejudgment in that Court, on the writ cf error from the County Court. Thejudgment bad been originally rendered in the County Court, and was taken to the Circuit Court, where it was affirmed with costs; the record did not shew to what the costs amounted; nor indeed could it well do so, as it remained to be taxed by the Clerk. It was a matter to be proved on the trial of the scire facias. The amount is alledged to be twenty dollars, and there can be no doubt but the allegation is supported by the ice bill.
The objection that interest was allowed on the damages given in the Supreme Court, is not fairly presented; it [116] should have been the ground of an application to the Court below; but if it were, we do not believe there is any error in it. Interest, is given by our statute on all judgments from their rendition till paid; the fifteen per cent allowed on the affirmance in the Circuit Court, and the ten per cent in the Supreme Court, become embodied with the principal in the judgment, and interest ran on the aggregate amount till payment.
All the other material points arise out of the charges asked and refused by the Court, and those given and objected to; they arc presented to us in the bill of exceptions signed by the presiding judge. Two receipts were produced, one for five hundred dollars and the other for three hundred dollars, signed by Sanders, who was proven at that time to have been the deputy sheriff, and to have had the fierifacias against Otey in his possession. The first receipt expressed on its face to bo in currency, and the second in Tennessee money, both were signed by Sanders with the addition of D. S. to his name. On the back of both receipts was an indorsement in the following words: “Ihe private and individual understanding was between me and Captain Otey, that Ihe within receipt was to be applied to an execution which F. E. Rives obtained against said Otey, when the judgment was affirmed in the Supremo Court,’5 signed, “William Sanders.” These receipts were offered by Fenwick, one of the defendants below, as evidence of so much money paid by his principal, and for which he claimed a credit; they were objected to, and the objection was sustained by the Court. It lias been argued by the counsel for the plaintiff in error, that these receipts were improperly rejected by the Court, that they ought to have been permitted to go to the jury, and that the indorsement ought not to be allowed to repel the evidence on their face, of the money having been paid absolutely and unconditionally as a part of the execution. The counsel contend that the indorsement on the receipts contains intrinsic evidence of having been made ata different time, and without the privity and consent of Otey. If we were to put the indorsement on the receipts enlirely out of view, it would then only be by inference, after connecting the fact of Sanders being the deputy sheriff, and his holding the fieri facias at that time, that we could arrive at the conclusion that the money paid to him was in part payment of Rives’ execution against Otey. The receipts of themselves would not prove on what account the mone)' [117] had been paid to him; they arc only evidence of so much money having bean paid, without directing the manner in which it was to be applied. But there can be no doubt that the indorsement truly expresses the object and the terms on which it was received. The fact of these receipts being in-tho possession ofOtcy, and offered by his security as evidence, repudiates the suggestion that it was an after thought of Sanders, without the consent or concurrence of Otey. No other reasonable conclusion can be drawn, but that the indorsement was either made at the time the receipts were given, or that by the consent of Otey it was subsequently made as an expression of the mutual understanding of the parties when the money was paid. If such then were the terms on which the payments were made, to abide a future event, they could not be a satisfaction in part of the execution; and they were very properly excluded from the jury, as their admission could only' have tended to embarrass them. It was a matter of arrangement between Otey and Sanders, by which the latter undertook, on the happening of a certain event, to apply the money for Otey’s benefit. The money so paid could not have been collected by the plaintiff in execution from Sanders’ principal, and therefore Otey was not entitled toa credit on the execution. If it had been an absolute payment, the execution would have been extinguished for so much, and that amount never.could again have been collected from the defendant.
Two other receipts were given by Sanders, which were offered in evidence, one for $500 and the other for $1000 signed by him as deputy sheriff. There can be no doubt that those two payments were intended to be applied to the same execution, as it docs not appear that the deputy sheriff ever had but the one. These receipts were read to the jury, there was some evidence that the money paid by Otey to Sanders on the execution, was, by an agreement between them, to remain in his hands, and abide the event of the writ of error in the Supreme Court, and it was in proof by the evidence of Mead, the clerk of the Court, that on his making some objection to the sufficiency7 of the security offered on taking out the writ of error, Sanders said that he as deputy sheriff, had received on the execution, between $2300 and $2500 in currency, in part payment thereof. After this evidence, the Court, at the request of the plaintiffs below, charged the jury in substance, that if any payment had been made by Otey to Sanders [118] as deputy sheriff while he held the execution, and if the money so paid was still in Sander’s hands at the taking of the writ of error and giving bond to supersede the execution, he the sheriff thenceforward held it as the trustee of the person paying it, and was not hound, nor could he be compelled to pay it to the plaintiff in execution; and that a payment made under such circumstances, should not bo regarded by the jury. The consequence to the defendants below resulting from this charge, was to deprive them of the benefits of the two 'receipts which had been read to the jury, amounting to fifteen hundred dollars. If this money had been paid on the same terms as that for which the first two receipts had been given, and the jury had been charged that if they so found it, they should not regard it as a payment on the execution, it would not have been erroneous. But this was not the fooling it was put on by fhejudge’s charge; it went on (he ground, that the writ of error bond not only superseded all that remained to be done towards satisfying the judgment and execution, but that it likewise undid all that had been done towards obtaining satisfaction, and that it was the duty of the sheriff to pay back all the money he had collected previous to the supersedeas. The correctness of this doctrine has been attempted to be sustained with much ability by the counsel for the defendant in error; but his argument, however ingenious, we do not consider sound; the moment the money was paid to the sheriff, it was his duty to pay it over to the plaintiff in execution, and from the time of the receipt of the money till it was paid, lie was the debt- or of the plaintiff, and could have been compelled to pay it over to him on motion to the Court. It could not in any way lie affected by the subsequent writ of error bond. The execution had, pro tanto, performed its function, and its further progress alone could be arrested by the superse-deas. If there had been a levy made and property sold under the execution, the writ of error bond subsequently entered into could notdestroy the validity of the sale, or affect the title of the purchaser; if the judgment should af-terwards be reversed, the defendant in the execution would be remitted to the plaintiff for satisfaction, and not to the sheriff. The case under consideration is not analogous to an arrest of the body of the defendant on a ca .sa. in satisfaction of a judgment. Should the defendant, after his arrest, sue out a writ of error and give bond, the ca. sa. w ould be wholly superseded, because it had in no part performed [119] its function at the time is. was so superseded; the arrest was no part of satisfaction, and by giving bond for a writ of error, the defendant substitutes a new security''.for the payment of the judgment in lieu of his body. Tlffe securities for the writ of error are not bound for more than the plaintiff has been prevented from collecting by the interposition of the supersedeas, they are not accountable tor 1 lie honest application of any money the sheriff may have received on the execution, before the date of the superse-deas. In this case, if the fifteen hundred dollars had been paid by Otey to the deputy in part satisfaction of the execution, the credit should have been allowed, and Rives left io look to the sheriff for the amount. The effect of 1he charge wc conceive was to deny this credit. The judgment must therefore be reversed and the cause remanded.