Kahn rs. Herman.

actually sworn by the person, so far at least as to put it upon him to show, or to raise a reasonable suspicion, that he was personated, as it would be otherwise almost impossible to convict any one of perjury committed in an answer in chancery."

If in this case, upon an indictment for perjury, such proof were had, what could Daniel Herman reply? He might reply, if it were so, that he was personated, or that his name was subscribed by mistake; but would it be a sufficient reply, that in the body of the affidavit it appeared that Daniel Harman was the person actually sworn? I am sure it would not. This affidavit, too, is to be taken in connexion with the facts, that the attachment recites that Daniel Herman was sworn, and that the attachment bond was executed by him. We do not find that Judge Hill committed any error in this regard.

The statute of Georgia declares that the attachment shall [2.] issue, provided that the officer before whom application shall be made "shall take bond and security of the party for whom the same may be granted, in a sum equal to double the amount sworn to be due, payable to the defendant, for satisfying and paying all costs. which may be incurred by the defendant, in case the plaintiff suing out such attachment shall discontinue or be cast in his suit, and also all damages which may be recovered against said plaintiff for suing out the same." The same act further declares every attachment issued without such bond taken, to be illegal, and shall be dismissed with costs. Prince 31. The conditions of the bond which the statute requires are,

1. That in the event that the plaintiff shall discontinue or be cast in his suit, the obligors will pay the defendant the costs which may be incurred, and

2. In that event, that they will pay him all damages which may be recovered against the plaintiff for suing the attachment.

The bond given in the case under review contains the two conditions above expressed, and also the further condition, as it is said to be, that the plaintiff shall prosecute his attachment with effect at the court to which it is returnable; and because of this further condition, it is said not to couform to the statute, and therefore the attachment ought to be dismissed.

The object of the bond required by the statute, is the protection of the citizen against frivolous or vexatious suits of this kind. The benefits of it are the defendant's; the burden is the plaintiff's, It is material to remark, that the statute does not declare the bond

Kahn vs. Herman.

to be void, unless taken in conformity with its provisions; but that if such a bond is not given as the statute requires, the attachment shall be dismissed with costs. This declaration is also unquestionably for the benefit of the defendant in attachment. It was not made in order to secure a bond in strict conformity with its provisions, so as to protect the plaintiff from incurring obligations greater than the statute imposes, but to insure to the defendant his costs and damages, if the plaintiff should discontinue or be cast in his suit. A moment's consideration will satisfy that such was the intention of the legislature. These things being premised, I state first, that this bond is, to all legal intents and purposes, in conformity with the statute. The statute requires a bond, conditioned to pay to the defendant his costs and damages, in case the plaintiff shall discontinue or be cast in his suit. On such a bond, what can be recovered out of the plaintiff and his sureties? The costs and damages, and no more. And, upon what does the recovery of costs and damages depend? I answer, upon the plaintiff's discontinuing or being cast in his suit. Discontinuing his suit, in the connexion in which these terms are used, in my judg ment, means such a failure to prosecute it, às at any stage of the cause, will compel the court to dismiss-that is, to discontinue it. A discontinuance of a suit, is similar to a non-suit When a plaintiff leaves a chasm in the proceedings of his cause, or fails to do that from time to time, and from term to term, which in the regular prosecution of his suit he is by law bound to do, the suit is discontinued. Jacob's Law Dictionary, title, discontinuance of process, vol. 2, p. 284; 1 Tidd 678; 1 Stra. R. 492; 1 Wils. R. 40; 3 Blackstone, 296.

Blackstone says: "A discontinuance is somewhat similar to a nonsuit." And what is a nonsuit? "If the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law, in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and therefore a nonsuit or non prosequitur is entered." 3 Black. 296. Fortified by these considerations and authorities, I think I may with confidence adopt the definition of the terms discontinue his suit, above given.

Now, we inquire, what is the meaning of the condition in this bond, "to prosecute the suit with effect at the court to which it is returnable"? It is to do at that term all that the law requires him to do to be guilty of no default or delays against the rules of law.

Kahn vs. Herman."

To prosecute with effect, is to prosecute with diligence, according to law. No other sensible definition can be given of this condition in the bond. If these things are so, the meaning of the condition to prosecute with effect, is the same with not permitting the suit to be discontinued, no more and no less; and the addition in the bond, to prosecute with effect, does not increase or vary the obligations of the plaintiff. Strike these words out, and if the plaintiff permits his suit to be discontinued he is still liable to costs and damages; retain them and he is liable to nothing more, and his liability is dependent upon the same thing, to wit, his diligence in the prosecution of his suit. It is said by the plaintiff's counsel, that "to prosecute with effect at the court to which the attachment is returnable," imposes the obligation to prosecute the suit to a determination at that term of the court; and therein it imposes more upon the plaintiff than not to discontinue his suit. We do not think so: those words, as already stated, mean that he shall do at that term what the law requires there to be done; and the law does not require indeed will not permit-an attachment suit to be finally tried at the term to which it is returnable.

We think for these reasons, that the bond given, is substantially in conformity with the statute.

But, admitting that it is not in exact conformity with the statute, we then say that not only will not the attachment be dismissed for that cause, but the bond is not void for that cause. To render a bond taken under a statute, void, it must be so according to express enactment; or must be intended to operate as a fraud upon the obligors by colour of the law, or as an evasion of the statute. The statute requiring this bond to be given, does not expressly enact that it shall be void unless taken in exact conformity with its provisions; it says, in fact, nothing about the validity of the bond; it only declares that if such a bond as it requires is not given, the attachment shall be dismissed with costs. If the bond is not expressly enacted to be void unless taken in conformity with the statute, then the rule is, that a bond taken under such a statute, is good so far as it conforms to it, and void only so far as it does not conform. Commissioners of the Treasury vs. Davis, cited in 2 Nott & McCord, R. 426; The State vs. Mayson, id. 425; Treasurer vs. Bates, 2 Bailey R. 376; Stephens et al. vs. Crawford, Gov. &c., 1 Kelly, R. 581. Under this rule the bond is good as to the other conditions, if it is void (which we have not admitted,) as to that condition which is claimed to be in disconformity with the

Wiley et al. vs. Kelsey et al.

statute; and is therefore a sufficient bond to prevent the dismission of this attachment.

Let the judgment of the Court below be affirmed.

No. 43.-LEROY M. WILEY, PARISH & Co. plaintiffs in error vs. C. & G. H. KELSEY & HALSTED, defendants in error.

CLARK & PELOT, plaintiffs in error vs. same defendants.

[1.] If an execution is not barred under the Dormant Judgment Act, at the time it comes into court to claim money, the statute cannot subsequently attach, pending the litigation respecting the distribution of the fund.

Dormant Judgment Act. Before Judge FLOYD. In Houston Superior Court. April Term, 1847.

For the facts of the cases, and the errors assigned, see the opinion delivered by the Supreme Court.

TRACY & GRESHAM and HINES & HINES, and BLAKE, for the plaintiffs in error.

KILLEN & DENNARD, for the defendants in error.

By the Court.-LUMPKIN, J., delivering the opinion.

These cases having been submitted together, the facts in each being nearly identical, the same judgment will apply to both.

The plaintiffs in error, Leroy M. Wiley, Parish & Co., and Clark & Pelot, obtained judgment respectively at the April Term, 1839, of the Superior Court of Houston county, against the firm of T. & S. Williams. Executions were issued thereon, and placed in the hands of George M. Duncan, sheriff of the county, and by him levied in August thereafter, on sundry property, real and personal, belonging to the defendants. The following entries then appear upon each of the fi. fas., namely:

Wiley et al. vs. Kelsey et al.

"First Tuesday in October, 1839. House and lot sold for one thousand dollars to F. B. Thompson, and the stock of goods sold from month to month until the first Tuesday in Jauuary, 1840, for (Signed,)

GEORGE M. DUNCAN, Sheriff.

"The money arising from the sale of the above, was applied to the payment of executions against the defendants, according to their respective dates and amounts;" which gave to one of the fi. fas. $184, and to the other $182.

There is a slight discrepancy in the testimony of George M. Duncan, respecting the date of this last entry. In one case he swears positively that it was made by him in April, 1840, when the money which he raised was distributed by order of the Court. In the other he states, that owing to the treachery of his memory, he cannot say positively whether it was made at that time or not.

At October Term, 1846, of the Superior Court of Houston county, money was brought into Court, arising from the sale of Thomas Williams' property, upon a fi. fa. in favour of C. &G. H. Kelsey & Halsted, against T. & S. Williams. These old executions, or rather copies, which were issued in lieu of the originals under an order of the court, were put in to claim this fund. The creditor who raised it, resisted them and tendered an issue, suggesting payment. The whole matter was continued until April, 1847, at which time this issue was withdrawn, and the right of Leroy M. Wiley, Parish & Co. and Clark & Pelot contested, upon the ground that they were barred by the dormant judgment actmore than seven years having intervened since the date of the last entry by the sheriff, upon their fi. fas. The Court below sustained the objection, and this decision being excepted to, it becomes our duty to review it.

The statute referred to is in these words, i. e.: "All judgments [1.] that have been obtained since the 19th day of December, 1822, and all judgments that may be hereafter rendered in any of the courts of this State, on which no execution shall be sued out, ór which executions if sued out, no return shall be made by the proper officer for executing and returning the same, within seven years from the date of the judgment, shall be void and of no effect; provided, that nothing in this act contained shall prevent the plaintiff or plaintiffs in such judgments from renewing the same after the expiration of the said seven years, in cases where by law he or they would be otherwise entitled so to do, but the lien of such revived