#### *Grays v. Hines.

Argued October 16th, 1815.

1. Debt on Bond* — Appearance Bail — Discharge of † — If the defendant, in debt on a bond, appear and plead, without giving special bail; and the court (without ruling him to give such bail,) set aside the office judgment against him; his appearance bail is thereby discharged.

2. Same — Judgment Where Credits Indorsed on Bond.‡ —If the jury find a verdict for the debt in the declaration mentioned, and the plaintiff, in court, release so much thereof as is equal to the credits endorsed on the bond; judgment ought not to be rendered, to be discharged by the payment of the sum stated in the condition of the bond, subject to a deduction of the credits endorsed; but such deduction ought to be made, and judgment rendered for the real balance due.

This was an action of debt, on a bond, in the superior court of Southampton county. A common order at rules in the clerk’s office was entered in Eebruary, and confirmed in March, 1813, against the defendants, and the bail for their appearance ; “subject to certain credits, endorsed on the bond,” which credits were stated by the clerk in the transcript of the record. At April term following, “on the motion of the defendants by their attorney, who (without praying oyer of the bond,) pleaded payment, to which the plaintiff replied generally, it was ordered that the judgment obtained in the clerk’s office against the defendants be set aside.” A verdict was afterwards found for the plaintiff, “for the debt in the declaration mentioned, and one penny damages and “the plaintiff, in court, released so much of the said verdict as is equal to the credits endorsed on the bond on which the action is brought.” Judgment was rendered against the defendants, “and Henry M. Gray, the security for their appearance,” for 12011. 4s. 2d., the debt in the declaration mentioned, &c., in the usual form, to he discharged by the payment of 6001. 12s. Id., with interest from the first day of January, 1800, till payment ; “subject to a deduction for the said credits endorsed on the said bond.”

Erom this judgment the defendants appealed.

Wickham for the appellants.

The judgment, being against the common bail after the defendants had appeared and pleaded, was unquestionably erroneous; for they were not bound to give special bail, unless ruled to do so ;(a) and, therefore, by their appearance and pleading, without giving special bail, as none was required of them, the common bail was discharged. The judgment is also liable to another objection. The release by the plaintiff is not of any certain sum, but of the amount of credits endorsed on the bond; *and the judgment, which follows the release in terms, is, therefore, too uncertain, (b)

Call for the appellee.

I am not clear but the first difficulty may be got over. The appearance bail does not appeal. It is a mere delay act of the defendants for the purpose of defeating justice. If the court, however, should reverse the judgment on this account, damages ought to be assessed against the appellants ; since the appellee will be the party substantially prevailing.

As to the second point, id certum est quod certum reddi potest. If this had been an office judgment, the clerk would have given the credits endorsed on the bond. Early v. Moore is not like this case ; for here the verdict and judgment are both perfectly certain. The plaintiff gave the defendants, by the release, a benefit, to which, by the verdict, they were not entitled. Of this they have no right to complain.

Wickham in reply.

Whether all the credits are endorsed on the bond is a question of fact, not of law. This court cannot judicially take notice of them, for the bond is *198not a part of the record, oyer not having been prayed.

The appellants are perfectly justifiable in appealing, to protect their surety, the bail, and therefore ought not to be subjected to damages.

October 17th, 1815.

*

Debt on Bond. — See monographic *note*on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118 ; monographic *note*on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.

†

Appearance Bail — Discharge of — Where a defendant is permitted to appear and plead without giving special bail, ana the plaintiff joins issue, without malting any objection, such objection is waived by the plaintiff and the appearance bail is discharged. Culpeper Agrie., etc., Soc. v. Digges, 6 Rand. 165. Judcie Green who delivered the opinion of the court, said (p. 166): “The objectionnow taken by the appellants, that the appellees were improperly permitted to appear, plead and demur, without giving special bail, was waived by the appellants taking issue on the plea, and joining in the demurrer, without making this objection in terms; and the appearance bail was thereby discharged, as was decided in *Grays v.*Hines, 4 *Munf.*437. The appearance of the defendants, and pleading without giving special bail, superseded the issue joined upon the plea pul in by the bail for their appearance, and rendered it null. In strictness, perhaps, it ought to have been set aside; but, the omission to do so, is no error to the injury of the appellants.” The mere entry of special bail, though the defendant immediately confess judgment, discharges the common bail; and that whether the common bail enter himself special bail, or some other person he entered. Gilliam v. Allen, 4 Rand. 502, citing principal case.

‡

Bond — Judgment Where Credits indorsed on Bond. —See principal case cited in Bent v. Patten, 1 Rand. 34; Barrett v. Wills. 4 Leigh 117.

(a)

 Rev. Code, 1st vol. ch. 66, sect. 28, p. 78; also ch. 67, sects. 22, 29, p. 88.

(b)

 Early v. Moore, 4 Munf. p.

The president pronounced the following opinion of the court.

The court is of opinion, that there is error in the said judgment, in so much thereof as includes the bail, who was discharged by the admission of the appellants to appear without bail, and plead ; and that there is error also in rendering the judgment to be discharged by the payment of the sum stated in the condition of the bond, subject to a deduction of the credits endorsed thereon;— instead of making that deduction, and rendering the judgment for the real balance due.

Judgment reversed, with the costs of this court against *the appellee, • and entered, that the appellee recover against the appellants 12011. 4s. 2d., the debt in the declaration mentioned, together with one penny the damages by the jury in their verdict assessed, and his costs by him about his suit in the said superior court of law expended, and the appellants in mercy, &c. But this judgment is to be discharged by the payment of 2901.17s. 3d., with interest thereon, to be computed after the rate" of six per centum per annum from the 29th day of June, 1802, till paid, together with the damages aforesaid and costs.