Because the trial judge entered judgment against the sureties on the bond without ascertaining the value of the property retaken by the defendant, it may not be assumed in this case that the bond was one for the payment of the debt and not a forthcoming bond. The assumption is not justified even when supported by the presumption in favor of the correctness of the judgment, because the judgment itself destroys both the presumption and the assumption in that it recites that the bond was a forthcoming bond. Wherever the record refers to the bond it refers to it as a forthcoming bond. There was no necessity to incorporate in the transcript of the record a copy of the forthcoming bond when the parties agree that it was that character of bond and the court declares in its judgment that it was of such character, which is a finding of fact.
That being true, it was error to enter a judgment against the sureties before ascertaining the value of the property taken on the forthcoming bond. The statute, Sec. 5282, C. G. L. 1927, makes a distinction between a "bond to pay the debt" and a "forthcoming bond." So the terms are technical, and when used by a Judge in his judgment as effectively describe the character of bond before him as if it were set out in the record or copied in his judgment.
The judgment should be reversed.
DAVIS, C. J., and BROWN, J., concur. *Page 454