Central Land Co. of West Virginia v. Calhoun

Citations

• 16 W. Va. 361
• 1880 W. Va. LEXIS 33

Syllabus

<p>1. A defendant in a motion appearing and moving its continuance thereby Waives all advantage which he might take of the error which had been committed by the plaintiff in failing to prove the service of the notice and to have the motion docketed on the return day.</p> <p>2. A distress-warrant ought not to be quashed for the uncertainty of the description of the leased premises, where its description was: “ A certain messuage and tenement situated in the city of Huntington in Cabell county, West Virginia, rented by the Central ^iand Company toF. J. Calhoun;” it not being necessary to describe the premises in such a ease with the particularity necessary in the conveyance of the premises.</p> <p>Ü. Nor should a forthcoming bond be quashed for the vagueness with which the property named in it is described, the description being: ‘‘All of F. J. Calhoun’s household and kitchen furniture now in said tenement,” referíing to that described in the warrant; there being in such case no necessity that an inventory of the property should be made.</p> <p>4. Though the forthcoming bond be left at the clerk’s office before it is forfeited, yet, if the property is not produced on the day of sale, the officer may have the clerk endorse it as filed in the office after the day of sale, and it will operate as a judgment, and as if actually returned to the office after the day of sale.</p> <p>5. If the defendant in a motion oh a forthcoming bond appears and makes defence, and the plaintiff proves the execution of the bond and its forfeiture, on a demurrer to the evidence by the defendants, judgment should be given for the plaintiff, though he failed to produce or prove the distress-warrant on which the forthcoming bond was based.</p> <p>6. A court will take official notice of who is its clerk; and an endorsement by him of when a forfeited forthcoming bond was filed in his office will be regarded as evidence thereof, though he failed to add to his signature his official position as cler