Smith v. Cooper

6 Va. 401

• Court: Supreme Court of Virginia
• Decided: October 19, 1819
• Status: Published

Opinion

Judge Roane

pronounced the Court’s opinion as follows:—

The Court is of opinion, that the judgment of the Superior Court is erroneous in this, that the bond in the proceedings mentioned is not a bond for the payment of money only, but a bond for the performance of conditions; and in this, that, it being a public bond for the benefit of others, neither the obligee, the Governor, nor his successors, were competent to receive any money under the provisions thereof; and that therefore it was not necessary to aver the nonpayment thereof to him or them, in the declaration.

The Courtis also of opinion, that the judgment of the County Court is erroneous in not reserving to the plaintiff and others a right to sue out a scire facias according to the provisions of the Statute.

(1)

And this Court proceeding &c., both judgments are re versed, with costs to the appellant as the party substantially prevailing.

Note. See Bibb v. Cauthorne, 1 Wash. 91, 92.