
    *Winslow and Others v. The Commonwealth. (In two cases.)
    Tuesday, May 10, 1808.
    Bonds — Suit against Five Obligors Omitting a Sixth— Presumption after Verdict. — In a suit on a bond against five obligors, a sixth being omitted; it appearing from the declaration that they were securities for him; but it not being alleged that he ha'd sealed the bond; and no plea in abatement having been filed; the Court, after verdict for the plaintiff, will presume that the obligor not named was dead, (though not so stated in the declaration.) and will sustain the judgment.
    Sheriff’s Bonds — Debt on — Declaration — Cured by Verdict. — In debt on a sheriff’s bond, the declaration charging that he failed to pay the taxes on demand, instead of. at the time appointed by law, was held sufficient after verdict.
    Bonds — Collateral Conditions — Assignment of Breaches.  — In an action on a bond with collateral condition, if the breach be assigned in as general terms as those of the condition, it is sufficient.
    Same — Same—Damages.—In such actions, the plaintiff may recover more damages than he has laid in the declaration.
    Same — Failure to Comply with Statute — Effect.—In the obligatory part of the sheriff’s bond, the obligors acknowledged themselves to be held and firmly bound to the Commonwealth of Virginia, in a certain sum, for the payment of which, to the treasurer of the said Commonwealth, they bound themselves, &c. the condition was, that, if the said sheriff should well and truly collect and account for certain taxes, &c. and pay the same to the treasurer of this Commonwealth, for the use of the said Commonwealth, then, &c. this was held tobe a good bond, and a judgment in an action of debt thereon was sustained.
    These were two several actions of debt brought in the General Court, in which judgments were rendered in favour of the Commonwealth.
    The records, in both cases, as brought up by writs of certiorari, commenced with a declaration in debt against Benjamin Winslow, Winslow Parker, Joseph Wood, jun. Elijah Morton, and George Morton; which stated that the defendants on the 28th of April, 1785, by their writing obligatory, sealed, &c. acknowledged themselves to be held and firmly bound to “the Commonwealth of Virginia,” in the sum of ten thousand pounds; for the payment of which to “the treasurer of the said Commonwealth for the time being,” they bound themselves, &c. to which writing obligatory there. was a condition to the following effect annexed, viz. that if a certain Rowland Thomas therein mentioned, late sheriff of the said County of Orange, shall well and truly collect, pay and account for all the taxes and duties in the County of Orange for the year 1784, according to law, and pay the same to the Treasurer of this Commonwealth for the time being, and his successors, for the use of the said Commonwealth, then the obligation to be void, &c. The breach is assigned by stating that the *defendants had not performed the condition of the said writing obligatory, but had broken the same in this; that the said Rowland Thomas, late sheriff of the said County of Orange, had not well and truly collected, paid and accounted for all the taxes and duties due in the said County of Orange for the year 1784, nor had he paid the same to the treasurer on demand, but had altogether failed to do so whereby, &c. The damages in each suit were laid at six hundred pounds.
    April, 1800, common order against the defendants, Winslow, Parker, and Wood, and pluries capias against the other defendants. May, common order confirmed, and writ of inquiry awarded. July, abated as to the defendants Elijah and George Morton, by the sheriff’s return that they were not inhabitants of this state.
    At a General Court held in November, 1800, Juries were sworn to inquire of damages, and they assessed against the defendants, Winslow, Parker, and Wood, damages in one case, to the amount of one thousand nine hundred pounds, fifteen shillings and eight pence half penny; and in the other of nine hundred and thirty-nine pounds, seventeen shillings and five pence; for which judgments were severally entered, together with the costs. Executions issued thereupon, against Winslow and Parker, in which were recited the judgments against them and Wood, who was then dead.
    To these judgments the defendants obtained writs of supersedeas from a Judge of the Supreme Court of Appeals.
    Randolph, for the plaintiffs in error,
    assigned the following reasons for reversing the judgments.
    1. That the bond, instead of being given to the treasurer, as expressly required by the act of 1781, under which it was taken,  had been given to the Commonwealth. The bond not being in the record, as it ought to be in all actions of debt, reference must be had to the declaration, where the error sufficiently appears.
    *If it be said that, although a motion could not be sustained on the bond, yet it would be good in an action at common law, on the authority of the case of Johnstons v. Meriwether; it may be answered that no decision has gone so far as to say, that where a bond ought to be given to an individual, it can be given to an ideal character, such as the Commonwealth, and an action be sustained upon it.
    2. That the Court of Orange County had no right to take a bond from the ob-ligors as sureties of Rowland Thomas, late sheriff; he being then out of office, as admitted by the declaration; and there being no law at that time, which authorised the appointment of a collector; or at any other time, except where the sheriff had failed to give bond and security for the due collection of the taxes; which was not shewn to have been the case here. The question then is, whether the sureties of a sheriff are bound by a bond not authorised by law.
    3. That the breach assigned was too general. There was a variety of taxes, due for the year 1784, some of which were comprehended in the assignment of breaches, others not. Breaches must be so specially assigned as to enable the party to defend himself.
    4. It is not stated in the record that the sheriff was bound at all, although the power of taking a bond for the collection of the revenue, can be exercised by the County Court in no other manner, than in conjunction with the sheriff himself. Is a bond good which is given by the sureties, unless the sheriff himself be bound?
    5. The bond requires the taxes to be accounted for according to law; the breach assigned, as affording a cause of action, is, that Rowland Thomas did not pay them on demand; whereas there is a specified time for paying the taxes, and the demand might have been prior to that time.
    The Attorney General for the Commonwealth.
    The objections of Mr. Randolph are merely technical. If it 462 *could be demonstrated that this bond was not taken in conformity with the statute, still it would be a good bond at common law. It is the same case in principle with Johnstons v. Meri-wether,  Washington v. Smith,  and Beale v. Downman. 
    
    But the provisions of the law are substantially complied with; for, although, the bond is given to the Commonwealth, yet it is conditioned for the payment of the revenue to the Treasurer.
    As to the second objection, it has arisen from the misapprehension of a word, which was, perhaps, inaccurately used. The term late sheriff was inserted in the declaration merely as descriptive of the person; and has reference to the time when the declaration was filed. It is an usual expression. Thus we say late merchants and partners. Numerous instances may be adduced, in which the form of pleading is, as here stated.
    The third exception, that the breaches are too generally assigned, has already been settled by decisions of this Court in the cases of Branch and others v. The Commonwealth,  and Branch v. Randolph, Gov. &c. To these may be added the following British authorities: Hancock v. Field and others, executors of Crouch,  Salman v. Bradshaw,  Procter v. Burnet, Hughes v. Richman,  Ed. Arlington v. Merricke and Cryps v. Baynton; in most of which cases it was held that a general assignment of breaches was sufficient.
    In answer to the fourth objection, it may be proper to remark, that prior to the decision of this Court in the case of Leftwich and others v. Berkeley, &c.  I had not adverted to the propriety of shewing that the sheriff was dead, or that a judgment had been obtained against him. I had supposed, that as it was usual to get a judgment against the sheriff on motion, in the first instance, it differed the case of a sheriff from that of any other person. But, if we look into the case of Leftwich and others v. Berkeley, &c. we shall find that it is expressly charged in the declaration, *that the sheriff sealed the bond; and-that the Court grounded their opinion on that circumstance. I then adduced authorities to shew, that the party could not otherwise avail himself of the objection, but by plea in abatement,  As this is a mere technical rule, contrary to the justice of the case, the Court will not carry it further than it has been by former decisions.
    According to the authority last cited, the Court will presume the obligor to be dead, whose name is omitted in the declaration, in order to support the judgment: and this is a complete answer to the objection, that the bond appears to have been given by the sureties without the principal having executed it.
    The fifth exception is, that it is charged in the declaration, that the taxes were not paid on demand. This is the mode of declaring on all bonds. Few bonds are payable on demand, yet it is always stated in the declaration that they were to be paid by the defendant, when thereto required; yet the plaintiff is never required to prove a demand. The Court will presume after verdict, that enough appeared to the Jury to warrant it. As to the objection that there might have been a demand before the taxes were due, it cannot be presumed that the Court instructed the Jury improperly.
    
      
      The principal case is cited in Laughlin v. Flood, 3 Munf. 257, 259.
    
    
      
       Bonds — Collateral Conditions — Assignment of Breaches, — On this question, the principal case is cited in foot-note to Craghill v. Page, 2 Hen. & M. 446; Allison v. Bank, 6 Rand. 216.
      See monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
       Same — Same—Damages.—In an action on a bond with a collateral condition the plaintiff may recover more damages than he had laid in the declaration. For this proposition, the principal case is cited in foot-note to Hook v. Turnbull, 6 Call 85; foot-note to Johnston v. Meriwether, 3 Call 523; foot-note to Payne v. Ellzey, 2 Wash. 143.
    
    
      
       Statutory Bonds — Failure to Execute in Pursuance of Statute — Effect.—On this question the principal case is cited in foot-note to Johnston v. Meriwether, 3 Call 523; foot-note to Stuart v. Lee, 3 Call 421; Branch v. Com., 2 Call 510; Bibb v. Cauthorne, 1 Wash. 91. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
       Sec L. V. ed. 1785, c. 40, sect. 4, 153.
    
    
      
      3 Call, 523.
    
    
      
       3 Call, 523.
    
    
      
       3 Call, 13.
    
    
      
       1 Call, 249.
    
    
      
       2 Call, 510.
    
    
      
      
         Oct. 17th, 1805. MS.
    
    
      
      U) Cro. Jac. 170, 171.
    
    
      
      1) lb. 304.
    
    
      
       3 Mod. 69.
    
    
      
       Cowp. 125.
    
    
      
       2 Saunders by Wms. 411, note 4.
    
    
      
       3 Bulstr. 31.
    
    
      
       1 Hening and Munford, 61.
    
    
      
       See 5 Bac. Abr. G-wil. ed. 164,165.
    
   Thursday, May 19. The Judges delivered their opinions.

JUDGE TUCKER.

The errors insisted on are:

1.That the bond for the collection of the taxes is given to the Commonwealth, instead of the treasurer, as the act directs, and, therefore void, under the decision in Stuart v. Lee, Governor, &c. 3 Call, 421. But although the bond begins with an acknowledgment that the defendants are held and firmly bound to the Commonwealth, it proceeds to say that the penalty is to be paid to the Treasurer for the usé of the Commonwealth, which brings it within the intention of the law. And though it was said that the Commonwealth *(being an ideal person) could not maintain an action upon it, the case of Bibb v. Cauthorne, furnishes a precedent to the contrary. And that of Winston v. The Commonwealth, is a still strong case; for, there, the bond, which was for the forthcoming of property taken in execution at the suit of the Commonwealth, appears to-have been taken to the sheriff. Yet the Commonwealth obtained a judgment on motion in the General Court, and this Court affirmed the judgment.

2. That the Court had no right to take such a bond from a late sheriff. In the first place, it does not appear, from this record, but that the party might have been sheriff, at the time of giving this bond; for the declaration only mentions Winslow as. late sheriff of Orange, deceased. Of course, the word late may refer to the time of bringing the suit, or filing the declaration. 2d. The bond is not set out in hasc verba ; and, in this case, is not necessarily a part of the record: being a bond with a collateral condition, and not for the payment of money only, in which case, it is, from necessity, in most cases a part of the record. 3d. The collection of the taxes due for the year 1784, having been postponed by two acts, a subsequent act passed in November, for the purpose of enabling the sheriffs for that year to make the collection of those taxes, although their times should have expired, and declares that, where any sheriff had given bond, as by law directed, or should thereafter give such bond, he shall continue to collect the public taxes, for which he may be accountable, in the same manner as if his time had not expired; and be subject to the same penalties. Under these circumstances, such a bond as this is supposed to have been, seems to have been authorized by law.

3. The breach is alleged to be assigned too generally. It is in the words of the condition. So it was in the case of Johnston v. Meriwether, 3 Call, 523, and Branch v. The Commonwealth, 2 Call, 510, and Branch v. Randolph, October term, 1805; and so was the case of Little’s Administrators v. The Commonwealth, decided yesterday.

*4. That it was not stated in the declaration that the sheriff was bound in the same bond. This was not necessary, it appearing from the declaration that he is dead. The Court will presume that his name is in the bond, which is not spread upon the record, and which the defendants have not denied to be their act and deed. And this circumstance, viz. that it appears that the sheriff was dead before this suit was brought, seems to me to distinguish this case from Leftwich v. Berkeley, 1 Hen. & Munf. 61. There it appeared, there was another obligor- not named a defendant, and not appearing to be dead; and, therefore, the judgment was reversed, because all the obligors who are alive must be sued jointly, or each of them severally. But, as all the surviving obligors are brought before the Court at once, I see no reason to consider it as an objection that they have not been severally sued. The}’ might have pleaded severally, if they had a several de-fence. Having made none it is to be presumed they had none to make.

5. The breach is laid that the taxes were not paid on demand. This might, for aught I know, have been shewn as a cause for a special demurrer. But the objection seems to me to bé too late when the party has wilfully stood out against the course of the Court, and,' for the first time, comes into this Court to point out matters of error in point of form.

In perusing the record, an objection occurred to me which was not noticed at the bar. The damages laid in the declaration are only 6001. The damages assessed in one of these suits are upwards of 9001. and in the other 1,9001. And I was, at first, inclined to think, that the same reason which restrains a plaintiff from recovering more damages than he demands in his declaration, In an action sounding merely in damages, would apply to these cases. But I find that this point occurred in Johnstons v. Meriwether, 3 Call, 524, and again in Payne v. Ellzey, 2 Wash. 143, and, in both cases, was disregarded. My doubts are consequently changed into submission. Yet, I cannot help saying that such a practice has, in my opinion, a tendency 'x'to mislead a defendant, who may think it not worth while to defend a suit, where the damages are laid at 101. only, but would, probably, be roused on receiving notice, that he might be subject to the payment of 2,0001.

Upon the whole I think the judgments ought to be affirmed.

JUDGE ROANE.

The case of Bibb v. Cauthorne, and Branch v. Randolph, Governor, &c. overrule the objection to this bond as standing in the name of the Commonwealth, instead of being payable to the Treasurer; if, indeed it be not sub-stantiall3 so payable, as appears by the solvendum. In the former case the bond was precisely like the present as to the point in question: in the latter the bond was payable to the Governor instead of the Treasurer. That bond was dated in May, 1784, and was held good, notwithstanding that the act of 1781, speaks of the bond as being payable to the Treasurer; and that the act of 1792, first expressly made the sheriffs’ bonds payable to the Governor, These decisions proceeded upon the ground that the acts of 1748, and 1755, making the sheriffs’ bonds payable to the King, as also the ordinance of convention of 1776, were still in force, and governed the construction of the question.

As to the criticism upon the expression ‘‘late sheriff,” I will either take it to be an averment by the plaintiff in the declaration, as was argued by the Attorney General, and not as contained in the condition of the bond; or, if it even be in the condition, that he was appointed a collector of the taxes after his sheriffalty had expired, and that that expression was only used as a descriptio persona;, not varying, however, his quality as collector. It is clear that at that time collectors of the taxes were in several instances recognized by our laws.

These are the objections which occur in this case. The objection on account of the generality of the breach was overruled yesterday in the case of Eittle’s Administrators, &c. v. The Commonwealth.

I am of opinion that both judgments be affirmed.

* JUDGE FLEMING.

The grounds. of the opinion of the Court, in favour of affirming the judgments, having been so fully stated by the Judges who preceded me, it seems unnecessary for me to say more than that I am of the same opinion.

By the whole Court (absent JUDGE LYONS) the judgments of the General Court affirmed. 
      
       November, 1781, c. 40, sect. 4, ed. 1785.
     
      
      
         1 Wash. 91.
     
      
       2 Call, 290.
     
      
       OR. 7, and 15, passed in May of that year.
     
      
       Ch. 91.
     
      
       1 Wash. 91.
     
      
       Oct 1805, MS.
     
      
       Oh. 40, p. 153, sect. 4, of Chau. Rev.
     
      
       Rev. Code, v. 1, c. 80, sect. 8, p. 121.
     
      
       Oh. 6, sect. 7, p. 37, of Chan. Rev.
     