Pacely v. Mohler

Opinion.

The bond, which is the foundation of this proceeding, is not in conformity to section 1621 of the Oode of 1871, because it is not “conditional for the payment of the rent claimed,” but for the payment “of such rent as may be due (if any be due).” The bond contemplated by the statute is one which obligates absolutely for the payment of the rent claimed, and precludes any controversy as to that, so as to entitle the landlord to an award of execution *530upon it. It as conclusively settles that amount of the claim for rent as a judgment for the rent would. This bond does not obligate absolutely for the rent claimed, but leaves it uncertain whether any rent is due., and binds only to pay such rent as may be due. It is not the proper foundation for an award of execution on motion, as provided by section 1625 of the Code of 1871.

If the bill of exceptions showed that evidence was introduced to establish the amount of rent due from Pacely to Mohler, and judgment was given on the bond for the sum shown‘to be due, we would not disturb such judgment, because this proceeding having been commenced before a justice of the peace, it is precisely as if an ordinary suit had been instituted on the bond. The evidence of debt was lodged with the justice, the motion served as a statement of the cause of action, the defendants, obligors in the bond, were summoned, and their right to defend in all respects, as in any action, existed. It might have been treated on appeal in the Circuit Court as an action on the bond, and upon the plaintiff producing evidence of what rent is due him from Pacely, he might have had judgment for it, but the bill of exceptions shows that he introduced the bond and rested his case on that. This did not entitle him to judgment or an award of execution. The plaintiff may yet proceed as herein indicated.

Judgment reversed and cause remanded for a new trial in the Circuit Court.