#### *Hairston v. Woods.

March, 1838,

Richmond.

(Absent Brooke, J.)

Forthcoming Bonds-* —Variance between Execution and Recital Thereof in Bond — Case at Bar. — By a fieri facias, the sheriff is commanded to cause principal, interest and costs to be levied of the goods and chattels of J. W. deceased in the. hands of S. IJ. his administrator, if so much thereof he hath, but if not. then out of the goods and chattels of S. H. There being no goods and chattels of J. W. in the hands of S. H. the sheriff levies the execution on the individual property *of*S. ff. and takes a forthcoming bond, which recites the execution as being against the goods and chattels of S. H. administrator of J. W. deceased: Heejo, there is no substantial variance between the execution and the recital thereof in the forthcoming bond.

Case Distinguished. — This case distinguished from Glasscock’s adm’x v. Dawson, 1 Munf. 605.

Supersedeas — Abatement. — Where there are two *116plaintiffs in a supersedeas, if one of them die, the cause will abate as to him, and proceed in the name of the surviving plaintiff.

A writ of fieri facias was sued out of the circuit court for the town of Lynchburg, upon a decree of that court in chancery, directed to the sheriff of Eranklin county, commanding him that of the goods and chattels of John Woods deceased, in the hands of Samuel Hairston senior, his administrator, to be administered, if so much thereof he hath, but if not, then out of the goods and chattels of the said Samuel Hairston senior, he should cause to be made the sum of 1006 dollars 72 cents with interest, which Peter "Woods had recovered against the said Samuel Hairston senior, administrator of John Woods deceased ; also 68 cents costs. Upon this execution, the sheriff made the following return : “There being no goods and chattels of John Woods deceased in the hands of the defendant Samuel Hairston senior, his administrator, I levied the execution, on the 20th day of March 1834, on three negroes and one wagon and team, the *property of Samuel Hairston senior, the defendant, and duly advertised the sale of said property to be at Eranklin courthouse, on theSth day of May 1834, it being court day, that being the day and place appointed for the sale thereof; at which time and place, the said property was not delivered agreeably to the bond taken for that purpose, and herewith returned as forfeited.” The bond was from Samuel Hairston senior and Samuel Hairston junior to Peter Woods, with a condition reciting that Woods had sued out of the circuit court of the town of Lynch-burg, a writ of fieri facias “against the goods and chattels of the above bound Samuel Hairston senior, administrator of John Woods deceased.” The circuit court awarded execution on the forthcoming bond against the obligors; and they obtained a supersedeas, upon a petition assigning as error the variance between the execution and the recital thereof in the condition ; for which Glasscock’s adm’x v. Dawson, 1 Munf. 605, was cited as authority.

Robinson for plaintiffs in error.

The attorney general for defendant in error.

*

Forthcoming Bonds. — See monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.

BROCKENBROUGH, J.

In the case of Glasscock’s adm’x v. Dawson, the execution issued, for the greater part, against the goods and chattels of the decedent, in the hapds of the administratrix to be administered; and for the residue, against the proper goods and chattels of the defendant. The condition of the forthcoming bond recited that the execution issued, for the whole sum, against the goods and chattels of the defendant administratrix of the decedent. If we consider, with the majority of the court in that case, that the appendage to the name of the defendant was a mere descriptio person®, there was a clear variance; for the execution did not issue against the goods of the defendant, at least not for the whole sum' for which the judgment was rendered.

*The case before us is different. The execution here was, it is true, in the alternative : it was for the whole sum against the goods and chattels of John Woods in the hands 'of Samuel Hairston senior to be administered, if so much thereof he had, but if not, then the same was to be made out of the proper goods of the said Samuel Hairston senior. The return on the execution shews that the first part of the mandate could not be complied with, because there were no goods of John Woods in Hairs-ton’s hands to be administered; the second part, therefore, of the mandate was obeyed in levying on the proper goods of the defendant. The condition of the forthcoming bond reciting that the fieri facias had issued against the goods and chattels of Samuel Hairston senior, administrator of John Woods, was strictly true, in the" event which had taken place, to wit, that of there being no goods of John Woods in his hands ; and it was unnecessary to encumber the condition with a recital of that fact. I am of opinion that there is no substantial variancé between the execution and the bond, and that the order awarding execution on the bond should be affirmed.

TUCKER, P.

I deem the variance in this case between the forthcoming bond and the execution not material. The names of the parties, the character in which the defendant was proceeded against, the amount decreed and the date of the execution are all right. The circuit court, therefore, was enabled to see, upon the face of the bond, enough to direct its judgment upon it; which was, of course, that the plaintiff’s demand should be levied of the proper goods and chattels of the parties to the bond.

The case is not like Glasscock’s adm’x v. Dawson. There the administratrix was to be liable, in the event of there being no assets, for the damages and costs only ; yet her own proper goods were seized for the "'whole debt. The bond was therefore properly quashed. Here, as there were no goods of the decedent, the defendant was liable for the whole. It was, therefore, unnecessary to preserve the distinction in .the recital of the bond; nor was there any thing illegal in levying on his own proper goods for the whole, since the court would intend, even if it did not appear by the return, that the officer could find no goods of the intestate on which to levy.

I am of opinion that the order of the circuit court awarding execution on the forthcoming bond be affirmed.

CABELL, J., concurred in the opinion of the president.

PARKER, J., concurred in affirming the order of the circuit court.

Before the affirmance was entered of record, a suggestion was made that Samuel Hairston senior, one of the plaintiffs in error, had died; and it became necessary for the court to decide whether the defendant in error could have process of revivor in this court against his executors, or whether the cause must abate as to him, and proceed in the name only of the plaintiff in error who survived. Upon this point, the following opinion (in which the other judges concurred) was delivered by

*117TUCKER, P.

At common law, the death of one of several plaintiffs in error abated the whole writ. But since the statute of 8 & 9 Will. 3, ch. 11, § 7, which has been held to apply to writs of error, the writ does not now abate if the action survives. Tidd’s Prac. 1219, 20, 1 Salk. 261, 319, Carth. 236, 1 Lord Raym. 244. So with us, the case of a writ of error seems to be within the statute 1 Rev. Code, ch. 128, § 38, p. 497, *which provides that an action shall not abate by the death of one plaintiff, if the cause of action survives to the others, but the writ or action shall proceed at the suit of the surviving plaintiffs. But by our statute, a joint judgment may be revived against the representatives of the deceased defendant. Thus the judgment of the circuit court may be revived in this case against the representatives of the decedent. Roane’s adm’r v. Drummond’s adm’rs, 6 Rand. 182. Suppose it erroneous : shall the estate of the decedent be without remedy ? I presume not. If the judgment below were revived against his representative, he would be entitled to his writ of error. But the law has not provided a scire facias to revive the writ of error here: its provision is, that the suit shall proceed in the name of the survivors, where one of several plaintiffs dies. Such a scire facias would indeed be an embarrassing proceeding. If the plaintiffs in error were plaintiffs in the court below, there would be two sets of plaintiffs in error, and if the judgment should be reversed and the cause sent back for a new trial, there would be two new trials and separate proceedings against the defendants. If the plaintiffs in error were defendants below, and the cause should be sent back, the same state of things would exist; whereas, if the death had occurred before the judgment, the action would have abated in the court below as to the party dying, and the plaintiffs must have commenced a new suit against his representatives.

Moreover, great embarrassment would exist when this court, reversing the judgment below, should proceed to enter such judgment as the court below should have entered. This could not indeed be done, as the state of things would be entirely changed.

Upon the whole, I think we can only suggest the death, aud proceed to judgment in the name of the survivor.