delivered the opinion of the court.

This was a motion upon a replevy bond taken upon a distress for rent, and judgment was rendered for the appellees in the court *254below. Several objections are taken to the correctness of the judgment, only two of which will be considered. The appellants \vere notified that the motion would be made against them on the first day of the approaching term of the circuit court of Adams county. The motion was not entered on that day, nor any step taken in the cause, until near the close of the court and this it is urged is erroneous. Upon a notice that a motion will be made on a particular day, it cannot be made at a subsequent time, unless entered on the day named; and it is illegal to take it up on a succeeding day, if not so entered, unless the defendant appears. Trabue v. Tilford, 3 Marshall; Cheatham v. Howell, 6 Yerger; 1 Robinson’s Practice, 590. In this case the defendant did appear by counsel and contest the motion. It is too late now to object to the form of the notice; appearance cures all defects in the process. 4 Haywood, 161; 6 Yerger, 85; 6 Com. Dig. 8.

The other objection is, that the replevy bond is made payable to the sheriff; that it has not been assigned by him, and the motion is made in the name of the landlord, who sued out the warrant of distress. This objection is fatal. 'The bond may properly be made payable to the sheriff, or to the landlord, as this court has decided; but if made payable to the former, the latter cannot maintain a motion upon it, unless it is assigned to him. Tooley v. Culbertson, 5 How. 267; Peck v Critchlow, ante, p. 243. The legal right is in the person to whom the bond is payable, and suit can only be brought in his name or that of his representative, unless by virtue of an assignment.

For this cause the judgment will be reversed.