#### Triplett v. Micou.

January, 1823.

Joint Bond — Verdict on — Sufficiency of.† — Where a suit is brought against two persons on a bond executed by both, and it abates as to one by his death; a. verdict finding only that the surviving defendant hath not paid the debt, is bad, and a new trial must be awarded.

John Micou, as agent for, and suing for the benefit of, Judith Matthews, brought a suit in Henrico superior court, against Daniel and Philip Triplett, on a bond executed by them in the penalty of $360, and conditioned to pay half that sum, and to return two negro men, which had been ■hired, well-clothed. The declaration in its commencement, *describes the action to be “a plea of breach of covenant.” It then states that the said Tripletts, by their writing obligatory, covenanted and agreed, for the hire of two negro men, to pay to the said Miccu $360, to be discharged by $180, and to return the negroes well clothed. It. concludes thus, “and the said Micou, in fact saith, that the said Tripletts, although often required, did not pay to him the said Micou, the sum of $180, on or before the first of January, 1818, or return the said negroes, well clothed, as he stipulated to do; but his said undertaking to perform constantly refused, and still doth refuse; wherefore, an action hath accrued to the said Micou to *103have of the said Tr'pletts, the penalty of $360, and damages $ , and therefore he sues.”

The suit abated as to Daniel Triplett by his death, and the appearance bail of the surviving defendant pleaded payment.

On the trial, the jury found a verdict to the following effect: “that the surviving defendant hath not paid to the plaintiff the debt in the declaration mentioned, as the plaintiff by replying hath alleged; and they do allow on the said debt, interest from the first day of January, 1818, till paid.”

The court gave judgment for $360 and costs, to be discharged by the payment of $180 with interest, &c. and the defendant Philip Triplett obtained a supersedeas.

Nicholas, for the appellant.

Seklen, for the appellee.

Two objections were made by the counsel for the appellant: 1. That the declaration is in covenant, and the proceedings in debt: That part of the demand»which relates to returning the negroes well clothed, clearly belongs to covenant, and not debt. But the judgment is for the penalty. This can only be applicable to an action of debt.

*2. The verdict only finds, that the surviving defendant did not pay, without saying any thing of the deceased defendant, (a)

For the appellee, it was said, that the declaration, tho’ informal, was good, aftef verdict. The character of the action is not fixed by the conclusion of the declaration, but by its general frame and structure. The averment of the breach relates to both the defendants. If the breach is co-extensive with the condition of the bond, it is sufficient. Payment is a good plea in covenant, (b) None of the cases support the objection to the verdict.

†

See monographic *note*on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.

(a)

 See ttie cases of Buckner and wife v. Blair, 2 Mnnf. 336; Green v. Dulany, 2 Munf. 518; Norvell v. Hudgins, 4 Munf. 496.

(b)

**Hunnicuts v. Carsley 1 H. & M. 153; Hammitt v. Bullett’s ex’ors, 3 Call, 567.

JUDGE BROOKE,

January 18. — delivered the opinion of the court:*

The declaration in this case alleges, that both of the defendants covenanted to pay the money and return the negroes well-clothed. The suit abated, as to one of the defendants, and the appearance bail of the other defendant pleaded payment; to which there was a general replication. The verdict finds, that the surviving defendant hath not paid the debt in the declaration mentioned. Passing by the objection, that the verdict does not respond to the charge for clothing, (it being most beneficial to the’ appellant,) the court is of opinion, that it is defective in this, that it does not negative the payment of the money by the deceased defendant, which, upon the plea, was within the issue. The judgment is therefore reversed; and this court proceeding, &c, a new trial is awarded, and the cause sent back for further proceedings to be had therein.

*

Judge Cabebl absent.