Wilkinson v. M'Lochlin & Co.

5 Va. 42, 1 Call 49, 1797 Va. LEXIS 8

Opinion

PER C UR.

The error as to the Sheriff’s commissions might have been corrected; but the solvendum is to Lochlin only, and so does not pursue the execution.

Washington. That will not prejudice ; because the teneri is right, and the solvendum is repugnant, and therefore void. It is the teneri which creates the obligation, and the subsequent matter will not vitiate, Robert v. Harnage, 2 Ld. Raym. 1043 ; 5 Bac. Abr. [163, ed. Gwil.] [Queen Mother v. Challoner,] 1 Sid. 295 ; 3 Dyer, 350. Upon these authorities the bond is clearly good.

ROANE, Judge.

Those authorities are satisfactory. The act requires the bond should be made payable to the creditor; and the legal effect of this bond is, that the obligor is bound to the creditor for payment of the money.

The rest of the Judges concurred.

PER C UR.

Correct the mistake as to the commissions, ' and enter such judgment for the appellee as the District Court ought to have entered; that is, for the sum due by the execution without the Sheriff’s commissions.

Footnotes

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The four preceding cases being all, in one respect, upon the same subject, are printed together, in order that the reader might have the whole doctrine before him at one view,