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6 Va. 401

Smith v. Cooper

Supreme Court of Virginia

Decided October 19, 1819

Supreme Court of Virginia · decided 1819-10-19

IN the County Court of Wythe, an action of debt, uimn a Constable's bond, was brought in the name o~ George W. Smith, Lieutenant Governor exercising t1i~ office of Governor, successor of James .)~fonroe, who Wa~ successor of John Tyler, who was successor of William If. Cabell, (for the benefit of William Hay,) against William Cooper a~id George Cregar, who executed the bond together with a certain Edward iWurplty.

Relies on Haas v. Gaddis

Decided 1819-10-19

Judge Roane

¶1pronounced the Court’s opinion as follows:—

¶2The 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.

¶3The 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)

¶4And this Court proceeding &c., both judgments are re versed, with costs to the appellant as the party substantially prevailing.

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

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