
    United States vs. Calvin S. Mattoon, Lemon G. Hine and Albert Grant.
    At Law.
    No. 19,186.
    Decided July 11, 1887.
    The Chief Justice and Justices James and Merrick sitting,
    1. In an action against the principal and his sureties on an official bond the principal failed to defend, but no judgment was taken against him. On the trial, the evidence being held insufficient against the sureties, and the court being about to direct .a verdict in their favor, the plaintiff, consented that the principal should be included therein. Held, that the consent verdict in favor of the principal worked a discharge of the sureties, even though the court was in error in its rulings as to the sufficiency of the evidence against them.
    3. The proper course to have pursued in such a case, pointed out by the court.
    Motion for a new trial on exceptions.
    STATEMENT OR THE CASE.
    This was an action on the official' bond of the defendant Mattoon as consul of the United States, the sureties being • the defendants Hiñe and Grant. Mattoon did not defend the action, hut Hiñe and Grant filed pleas of covenant performed. No judgment was taken against the principal, but the trial proceeded on the issue made by the sureties. To establish its case the plaintiff offered certain transcripts from the United States Treasury which were excluded by the court, on the ground of their incompleteness. The bill of exceptions then proceeds to state that “Thereupon the plaintiff having offered no further evidence, and its attorney having stated that judgment against Mattoon might emharass his further proceedings and that he waived that, and there was nothing to be done but to render a verdict for the defendants in the case, the court instructed the jury to return a verdict for the defendants; to which instruction of the court the plaintiff, by its attorney, duly excepted.”
    
      Randolph Coyle, for the United States:
    The point is made by appellees in their brief, that, by failing to take a judgment against Mattoon, the Government hap lost its recourse against the sureties. In fact the reverse of this proposition is true. If judgment had been taken as suggested, the sureties would have been released.
    The suit was joint, and there can be but one judgment in such a case, either against or in favor of all the defendants. See Freeman, Judgments, sec. 43; Taylor vs. Beck, 3 Éand., 316; Steptoe vs. Read, 19 Gratt., 1; Baber vs. Cook, 11 Leigh, 606; Rohr vs. Davis, 9 Leigh, 30 ; Beltzhoover vs. Commonwealth, 1 Watts, 126 ; Williams vs. M’Fall, 2 Serg, & R., 128.
    The common law rule has not been changed by sections 827, R. S. D. C., or any other statute in force in this District,
    McDonald, Bright & Fay and C. C. Cole, for defendants Hiñe and Grant; .
    Even if the motion could be construed to be one to set aside the verdict and grant a new trial as to Mattoon, the court would not entertain it, the verdict as to him having been rendered with plaintiff’s consent.
    Plaintiff having by its own act discharged the principal from further liability, cannot hold the sureties ; and it would be useless to grant a new trial, as this action of the plaintiff could be pleaded in bar, and would be conclusive,
   Mr. Justice Merrick

delivered the opinion of the court:

It is unnecessary to consider the rulings of the circuit upon questions of evidence set out by the bills of exception on this record, since the plaintiff has precluded itself by voluntary proceedings in respect to the principal defendant from a recovery against his sureties.

The action was a joint action against Mattoon and his sureties upon an official bond. The sureties pleaded to issue ; the principal entered no plea whatever. In this state of case, instead of taking a judgment by default against the principal and an inquiry of damages as to him, before the, same jury which tried the issues against the sureties, the plaintiff passed over the default, and tried the whole case upon issues, as well against the principal as against the sureties ; and when the court ruled that the offered evidence was insufficient to maintain the action against the sureties the plaintiff consented to a verdict in favor of the principal, and the verdict was accordingly rendered for all the defendants, and judgment, inde. This worked a discharge, final and irrevocable, as to the principal debtor, by the plaintiff’s consent; and the principal being discharged, it follows that the sureties are also discharged, by operation of law.

The apprehension of prejudice to its rights from proceeding to final judgment against the principal, even if such result would have followed, might have been, and ought to have been, obviated by the course already suggested as the proper one, viz: of taking a judgment by default for want of a plea against the principal, and then, submitting to the trial jury an inquiry of damages against him. And if, upon beginning the inquiry of damages before the same jury which tried the issues, the plaintiff had been met by any impediment to a verdict against the other defendants, the attorney might then have de'clined to proceed further with the inquiry of damages, and have withdrawn that from the jury, to be renewed when he should on error have reversed the rulings in favor of other defendants, Tidd, pr. 895.

Or the plaintiff might have entered a nolle prosequi against the principal, as was done in the case of Minor vs. Mechanics Bank of Alexandria, 1 Pet., 46.

By either of those courses the plaintiff’s rights could have .been saved, while prosecuting an appeal against the sureties.

As the matter now stands, however, this court must affirm the judgment in favor of all the defendants.

Judgment affirmed.  