Majority
p. 223Frederick J. Barnard, et. al. vs. Charles A. Darling.
Headnote
The affidavit of the amount due by the condition of a bond, on judgment by confession need not be filed.A wrong endorsement on an execution is not ground for setting aside proceedings, where the execution has been returned nulla bona.
Motion by defendants to set aside judgment and execution, fyc.—This was a judgment on bond and warrant of attorney; the motion was made on the ground, that no affidavit of amount due by the condition of the bond was filed, and that a wrong endorsement upon the execution was made, it being endorsed for a larger sum to be collected, than was due by the condition of the bond. It appeared that the execution was returned nulla bona.
C. P. Collier, Defts Counsel. Collier and Elmendorf, Defts Attys.
Otis Allen, Plffs Counsel. Allen & Hastings, Plffs Attys.
It is not necessary that the affidavit of the amount due by the condition of the bond, should be filed. The execution is returned nulla bona, and the wrong endorsement on it is not a sufficient ground to set aside the proceedings now.
Motion denied with costs.