#### Watson’s Executor v. Lynch’s Heirs.

Argued Feb. 23d, 1813.

i. Debt on Bond — Writ against Four — Declaration against Three — Effect.*—In debt on a bond against the heirs of the obligor; if the writ (being made part of the record by oyer) be against four persons as heirs of said obligor; but, by the declaration, three only be charged as such; the declaration is too defective for a judgment to be entered thereupon for the plaintiff; and such defect is not cured by verdict.

In an action of debt on a bond with collateral condition, the writ, (which, by the defendants’ praying Oyer, was spread on the record,) was against Charles Lynch, Anselm Lynch, John Lynch, jun. Charles L. Terrall, and Sarah his wife, formerly Sarah Lynch, heirs and representatives of Charles Lynch, sen. deceased. The declaration complained of Anselm Lynch, John Lynch, jun. and Charles L. Terral, and Sarah his wife, heirs at law of Charles Lynch, sen. deceased ; charging the bond to have been executed by the said Charles Lynch, sen. who, in his lifetime, was co-obligor with Charles Lynch, jun.; that the said Charles Lynch, jun. had, long previous to the institution of this suit, removed himself out of this state, and the jurisdiction of the court; that Charles Lynch the elder, had failed to comply with the obligation and condition of the said bond, and had died, leaving the said Anselm Lynch, John Lynch, jun. Charles L. Terrell and Sarah his wife, his legal heirs and representatives, &c.

The writ was returned, “executed on all but Charles Lynch, who is no inhabitant of my bailiwick.”

The defendants pleaded that Charles _ Lynch the younger, and Charles Lynch the" elder, had not broken, but performed *the conditions of the said writing obligatory, &c. They farther pleaded, that, at the time of suing out the original capias in this cause, no lands, tenements or hereditaments had descended to them, from the aforesaid Charles Lynch the elder, their ancestor. Issue was joined; whereupon a verdict was found for the plaintiff, for the debt in the declaration mentioned, to be discharged by the payment of 8311. damages, with legal interest thereon, from the 3d day of April 1795, till paid ; and that no assets had descended to the defendants out of which the debt could be paid.

Judgment was entered, payable when assets should come to the hands of the defendant ; from which the plaintiff appealed.

Friday, December 3d, 1813.

*

See monographic *note*on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.

JUDGE ROANE

pronounced the following opinion of the court.

It appearing by the writ ,in this case, (which, by oyer, is made a part of the declaration,) that this action was brought against *45four persons as heirs of Charles Uynch, the elder, the obligor in the bond mentioned in the declaration ; and that declaration, and the judgment founded thereon, having only charged three of those persons as such heirs ; the court is of opinion, that the said declaration is defective, and that the said judgment is erroneous.

Judgment reversed, at the costs of the appellant ; (the appellees being the party substantially prevailing ;) and judgment entered that the appellant take nothing, &c.