#### Leftwich and Others v. Berkeley, Treasurer, &c.

Thursday, October 23. 1806.

Joint and Several Bond — How 5uit rUi.-:L Be Bi-OESght Thereon.*- — A suit on a Ioint and several bond, mus the brought either against all the obligors jointly, or one ot them singly: and not against any Intermediate number; and if an error in this respect appears on the record, the judgment will be reversed, notwithstanding such error was not pleaded in abatement.

*

Joint and Several Bond— How Suit Huist Be Brought Thereon. — A suit on a joint and several bond must lie brought either against all the obligors jointly, or one of them singly, and not against any intermediate member: and if an error in this respect appears on the record, the judgment will be reversed, notwithstanding such error was not pleaded in abatement. This proposition laid down in the principal case has met with approval in subsequent cases. .See, citing the principal case, Atwell v. Milton, *4*Hen. & M. 257; Moss v. Moss, 4 Hen. & M. 304, 306: Newell v. Wood, 1 Munf. 556. And Saunders v. Wood. 1 Munf. 406, is reported in the lollowing words: “This case depending upon the same principles as that of *Leftrich v. Berkeley,*1 *Hen.*& *M,*61. the judgment against the appellants was reversed by the whole court (consisting of all the iudges), tor the reasons given in that case.”

In Chapman v. Chevis, 9 Leigh 307, it is said: “It would seem from the case of *Leftrich.*v. *Berkeley,*1 *Hen. & M.*61, and other cases in this court, that though the obligee in a joint and several bond cannot proceed against more than one obligor unless he proceeds against all. yet if one be dead, he may proceed jointly against all the survivors.”

The principal case was distinguished in Winslow v. Com., 2 Hen. & M. 465, on the ground that in that case the omitted obligor was dead before the suit was brought.

The principal case was also cited in Meredith v. Duval, 1 Munf. 79.

This was a suit brought in the General Court by William Berkeley, successor of JacqueHn Ambler, late treasurer of the Commonwealth, against William Leftwich, A. Mosely, and J. Callaway, and three other persons, “as '^securities for Gross Scruggs, late sheriff of Bed-ford. The declaration stated that the said securities, with Scruggs, entered into bond, with condition for his faithful collection of the revenue for 1783; and assigned, for breach, that he did not faithfully collect, &c.. The writ being executed on Leftwich, Mosely, and Callaway, they pleaded “conditions performed;” to which the plaintiff replied generally. A jury was impanelled “to inquire of damages in this suit,” and returned a verdict “that the plaintiff had sustained damages,” &c. and judgment was thereupon rendered for the penalty of the bond, to be discharged by those damages and costs. Scruggs, the principal obligor, was not a party to the suit; the reason of which does not appear; but an account from the auditor’s office, shewing that a judgment had before been rendered against him, was copied into the record. The defendants obtained from this Court a writ of supersedeas.

Clark, for the plaintiffs in error. In this case, seven obligors are jointlj- and severally bound, and the action is brought against six only. The parties can only be bound, as they have agreed to bind themselves; and are liable toan action, either jointly against them all, or severally against each obligor individually, (a) If part of the obligors were dead, it would be admitted, the action might be maintained against the survivors. Or, ii a judgment had been *40rendered against the principal, and so stated in the declaration, the plaintiff might pursue the securities till he had satisfaction of his debt.

The Jury were sworn to 'inquire of damages, when there was an issue made up in the cause; which issue ought to have been tried. On a writ of inquiry, the Jury were bound to find some damages, which, if only one penny, would subject the defendants to costs.

The Attorney General, for the defendant in error, insisted, 1. That the suit had been properly brought against the securities, a judgment having before been rendered against Scruggs, the principal, on motion; and the objection that he is not named a defendant, cannot be sustained", either on principles of common law, or under our acts of Assembly.

2. That, if the defendants could have availed themselves of that omission, they could only have done it by plea in abatement; but having put themselves on the general issue, they had waived the objection.

*He admitted that, at common law, if all the obligors were not made defendants, or more than one of them were sued without the rest, in the case of a joint and several bond, it was error. But then it ought to be pleaded in abatement, and the objection cannot avail after imparlance, much less after a plea of “conditions performed.” (a) Where some of the obligors are omitted in the declaration, the Court will presume that they never sealed the bond, unless it be pleaded in abatement. The defendant must shew that the obligor omitted is alive; otherwise, it will be presumed that he is dead, (b)

But the statute ought to govern in this case. It was supposed, formerly, that the law did not authorise a suit against the securities, until a judgment had been obtained against the sheriff. As to the correctness of this idea, he did not, at present, mean to give any decisive opinion. The mode of proceeding against the sheriff being by motion, and that against the securities by action on the bond, it seemed to be contemplated, that the judgment against the former should precede the suit against the latter. By resorting to the motion, in the first instance, in order to subject the estate of the sheriff, his securities were benefited, and therefore they ought not to object. It may be likened to the case of an executor’s bond, on which a suit cannot be brought to charge the securities, until a devastavit has been established, by prior suit, against the executor. In that case, the executor and his securities are jointly' sued on the bond, because, the first judgment being against the goods of his testator, he is not made, personally liable. But, in this case, the sheriff is responsible, in the first instance, out of his own estate. The law has, indeed, been changed, so as to give a motion against the securities;(c) but judgment ought still to be first recovered against the sheriff. If it is asked, how does it appear that the securities were charged with the amount of the judgment, as it is not stated in the declaration? it may be answered, that the auditor’s account, shewing it, was filed; which account, both in the General Court, and in this Court, is considered a part of the record, (d) In this instance, it was as much a part of the record as the bond, of which oyer was not taken; and in the petition for a supersedeas, it is referred to as a part of the record.

Although the Jury were not sworn to try the issue, but to inquire of damages, yet, in either case, they necessarily consider all the breaches assigned, (e) *The clerk had, indeed, been guilty of a slight informality in swearing them; but, after a fair trial on the merits, a mere clerical mistake ought not to vitiate the verdict. It is admitted, that on a writ of inquiry, the Jury must find for the plaintiff; but, if the merits had been for the defendants, only a cent damages and costs would have been given.

Wickham, in reply. The Attorney General admits that, on a joint and several bond, suit must be brought against all the obligors who are living, or any' one of them; not against any intermediate number; but contends it is now too late to take advantage of this irregularity ; and that the fact that one of the obligors had not been sued should have been pleaded in abatement. But where is the necessity of a plea in abatement, when it appears in the record? The plaintiff avers it in his declaration. He says that the defendants, (now plaintiffs in error,) “together with Gross Scruggs,” &c. The authority cited by the Attorney General (S Bac. Abr. 165,) only applies to matters in pais, such as would not appear upon the record, without being specially pleaded. But it is said, it should be intended, that Gross Scruggs never executed the bond. If so, it is v< id ; because, being a statutory bond, it must be taken pursuant to the statute, or the treasurer cannot sue upon it. But in fact, Scruggs did seal, as the words of the bond prove. There was no necessity' for the defendants to have averred that Scruggs was alive, because the record shewed it; and the rule of law is, that a person shall not be presumed to be dead. Nor shall it be intended that a judgment, on motion, because it might have been done, had been recovered against Scruggs. The right to obtain a judgment is no evidence that it has been done; and, in fact, it is denied that any judgment was ever obtained against him. Aleyn’s Reports, 21, was upon demurrer, and is an authority in our favour. All the cases in the books are, that where the name of an obligor has been omitted in the writ and declaration, a demurrer would n’ot lie.

If the omission appeared upon oyer, it was pleaded in abatement; if upon the trial only, and no oyer taken, it was inferred that the party had not sealed the bond.

It was not necessary first to bring a suit against the sheriff, before the securities could be charged. It is settled in the case of Call v. Ruffin, (f) that the securities to *41a guardian’s bond, are liable to an action, without any previous suit against the principal. The *rnle established in Braxton v. Winslow, (a) is founded on principles of law, which apply solely to the cases of executors and administrators.

The auditor’s certificate is no evidence of a judgment, because not the best evidence, nor is it any part of the record. It has been repeatedly decided, that the mere circumstance of a paper’s being copied and inserted among the records, does not make it a record, unless it legally constitutes a part. The practice spoken of in this case, has no weight. It is the practice to introduce merchants’ accounts on the trial of a cause, yet they are no part of the record, unless made so by an exception, demurrer, or the like. But because the Court, in the case of Branch and others v. The Commonwealth, (b) speaks of the auditor’s account as being in the record, it is contended that it is part of the record in the present case. This is unimportant. Nothing is more common than for plaintiffs, in actions of debt upon bonds, to file statements of the payments which have been made, but they do not necessarily form a part of the record. The petition for a supersedeas referring to the account, is no evidence that it is a part of the record. If the opinion of the gentleman who drew the petition be taken at all, it must be taken altogether; and he explicitly states it as his opinion, “that there is a sufficient error in the record to warrant a reversal of the judgment.” It is also said that the account is as much a part of the record as the bond. It is a sufficient answer to say, that the cases are quite dissimilar ; the bond is stated *in*the declaration, which is not the case with the account. But if the account be a part of the record, the judgment ought to be reversed, because it is erroneous. It charges an usurious interest, and exhibits as complete a system of saving as. was ever introduced in those towns in which banks are established. The question between the parties was, whether there was a breach of the condition of the bond; but the only question before the Jury was the amount of the damages which they were to find.

It is said that swearing the Jury on the writ of inquiry was a mere matter of form. It was indeed a common remark, that a custom-house oath was a mere matter of form, but he never heard it applied before to the oath of a jury. The error too was important; for some damages were necessary to be found; and a single penny would carry the costs.

*'But it is asked, why did not the defendants object at the trial? We answer, because the error appeared on the record. An exception is necessary, only to introduce into the record something which would not otherwise appear upon it. This is said to be a mere clerical error, and according to the liberality of modern practice, ought not to be resorted to, in order to defeat the justice of the case. To a Court of Appeals, sitting to correct the errors of inferior Courts, he would only say, “that law is justice, and justice is law.” Let it be admitted that the error originated with the clerk; still, is it such an error as can be amended? This is the test by which to try whether it be a clerical error or not. No amendment could go to shew that the Jury tried an issue, when they' were only sworn to inquire of damages.

Randolph, on the same side. In suits on common bonds for the payment of money, it is not so necessary for the principal ob-ligor to be made a party, as in those on sheriff’s bonds. None but the sheriff himself can perform the condition. His securities have neither power to act in the office, nor do they know any thing of the acts of their principal. If a judgment had been obtained against the principal, by motion, or action, an execution might have gone against his estate, and saved that of his securities.

The record proves that the cause was tried on a writ of inquiry. The entry is, “this day came the plaintiff,” &c. (as is proper upon a writ of inquiry,) and not “the parties,” which is the regular entry in the trial of an issue.

With respect to the plea of conditions performed, it has been repeatedly decided, that, although it is pleaded by the defendant, yet, if it appears there is nothing which he is bound to perform, he shall be discharged.

Cur. adv. vult.

On Saturday, the 25th of October, the President delivered the opinion of the Court, (present, Judges Lyons, Roane, and Tucker,) that there was error in this, that the bond in the declaration mentioned being a joint and several obligation, and it being stated in the declaration that Gross Scruggs, one of the obligors, had executed the said bond, by having acknowledged himself to be held and firmly bound with the other obligors in the said bond, and not being jointly sued with the other obligors, nor stated to be dead, the judgment against the other obligors is erroneous. The judgment is, therefore, reversed.

(a)

 5 Bar,. Ab. 164, Gwil. Edit. 3 Durn. & East, 782, per Buller, J., in Streatfield, &c. v. Halliday.

(a)

 5 Bac. Abr. Gwil. Ed. 164, 165.

(b)

 Aleyn, 21, Blackwell v. Ashton.

(c)

 Rev. Code, vol. 1, c. 84, sect. 16, p. 137.

(d)

2 Call, 512, Branch v. The Commonwealth.

(e)

 Rev. Code, vol. 1, c. 76, sect. 21, p. 110, 111.

(f)

1 Call, 333.

(a)

1 Wash. 31, and in Call v. Ruffin, (1 Call, 333,) cited as Claiborne’s executors v. Spotsylvania Justices.

(b)

*2*Call. 510, &c.