#### *Graham and Scott v. Graham and Lane.

Argued Saturday, March 6th, 1813.

I. Appellate Practice — Declaration against Two-Writ Served on One — Judgment—Reversal of. — If the writ he issued against, and served upon, one person only, who alone appears and pleads; yet, if the declaration be against him and another; and judgment be entered against “the defendants;” such judgment is to be understood as against both, & therefore erroneous as to the one who never pleaded. And such erroneous judgment may be reversed, (as to the person against whom it is improperly entered,) upon an appeal taken by the other defendant,

a. Pleading--Departure — Declaration in Name of Two —Replication in Behalf of One — Effect.*—The declaration being in the name of two plaintiffs; if the replication purport tobe in behalf of one only, it is a departure in pleading; and, on demurrer, judgment ought to be entered for the defendant; unless the plaintiffs move the court to amend their replication, which in that case should be allowed, on their paying costs.

3. Bond with Condition — Debt—Setting Out Condition. — In debt on a bond with collateral condition, if the condition be not set out in the declaration, nor made part thereof by oyer, it should be distinctly stated in a replication.

A writ of capias ad respondendum was sued out of the clerk’s office of the Haymarket District Court, in the name of Robert Graham against Alexander Scott, endorsed, “on an injunction bond as security for Catesby Graham which writ being returned executed, a declaration was filed in behalf of Robert Graham and George Dane against Catesby Graham and Alexander Scott, in the usual form on a bond for nine hundred dollars; saying nothing of any condition thereto.

The “defendant,” by “his” attorney, (without praying Oyer,) pleaded “conditions performed.” A replication was filed in the following words: “Robert Graham v.Catesby Graham and Alexander Scott. And for breach of condition of the said writing obligatory the plaintiff sheweth the following, to wit, that the said Catesby Graham did not prosecute his injunction with effect, but the same was dissolved, and the said Graham’s bill finally dismissed, and the said Catesby Graham did not pay all the money and costs due on the judgment by him injoined, but utterly failed to pay any part thereof.” To this replication the defendant demurred; “first, because the same is no answer to the plea as it respects George Dane, one of the plaintiffs ; second, because it is not set forth in the said replication in what particulars, or in what amount, the said Catesby Graham did fail to pay the money and costs of the judgment by him injoined, and it is not set forth with sufficient certainty that the said injunction ever was dissolved.” The “plaintiff” joined in demurrer.

On argument the court overruled the demurrer ; whereupon the “defendant,” by leave of the court rejoined generally to the said replication. A jury being impanelled to try *the issue joined, “the defendant by his counsel” filed a bill of exceptions which need not be reported. A verdict was found for the plaintiff for the debt in the declaration mentioned, to be discharged by the payment of 1071.14s. 3d., with interest from the third of August 1802, and twenty-two dollars and nine cents. “Therefore it was considered by the court that the “plaintiffs” recover against the “defendants,” &c. in the usual form, without mentioning their names. And at a Superior Court held, &c. “came the parties by their attornies, and the deft prayed an appeal to the court of appeals from the judgment rendered against him in this cause at the present term, which is granted him, he having, together with Aaron Grigsby his security (approved by the plaintiff’s attorney,) entered into and acknowledged bond in the penalty of one thousand dollars, conditioned as the law directs, for prosecuting the same with effect. ”(1)

Call, for the appellant,

Williams, for the appellee.

*85Tuesday, February 22d, 1814.

*

Amendment of Pleading. — See the principal case cited in Bowles v. Elmore, 7 Gratt. 389.

See further, monographic *note*on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.

(1)

 Note. In the condition of the appeal bond, the judgment was described as against Catesby Graham and Alexander Scott; and both of them were said tobe appellants; but Catesby Graham did not sign the bond. — Note in Original Edition.

JUDGE ROANE

pronounced the opinion of the court, consisting of JUDGES FLEMING, ROANE, CABELL and COALTER, that the said judgment is erroneous as to the appellant Catesby Graham, it being rendered against him without any writ having been issued against, or served upon him, and without his having pleaded to the declaration ; and that the judgment as to the appellant Scott, upon his demurrer to the replication, is also erroneous, in this, that it does not appear that that replication relates to the bond in the declaration mentioned, as it purports to relate to a suit by Robert Graham only; whereas the bond stated in the declaration is shewn to have been *given to Robert Graham and George Lane ; and that the said replication is therefore a departure from the said declara-' tion. The court is also of opinion that the said replication is farther defective in this, that the condition of the bond declared on, being neither set out in the declaration, nor made a part thereof by oyer, the replication ought therefore to have distinctly averred what the condition thereof was.

Judgment reversed, and cause remanded, in order that final judgment may be entered for the appellant upon the demurrer; unless the appellees should move the court to amend their replication, which in that case is to be allowed, on their paying costs.