
    Grant and Others v. Whiteman.
    
      Friday, January 18, 1839.
    Debt against three persons on a bond declared on as joint. The bond, shown on oyer, was joint and several. Held, that there was no variance.
    APPEAL from the Morgan Circuit Court.
   Blackford, J.

This was an action of debt against William Grant, David G. Stotts, and Charles B. Butler, upon a delivery bond. The declaration states that the defendants, by their writing obligatory, sealed with their seals and to the Court shown, &c. acknowledged themselves to be held and firmly bound unto the plaintiff in the sum of, &c. The bond appeared, on oyer, to be joint and several; and the defendants demurred to the declaration. Judgment for the plaintiff.

It is contended that there is a variance between the bond described in the declaration, and that produced on oyer; the bond described being joint, and the one shown on oyer being joint and several. We think, however, that the declaration is sufficient. The bond is declared on as joint, and the bond produced is joint. The declaration goes as far as was necessary, in order to show the joint liability of the defendants; and that'was all that could be required in this case. The circumstance that the bond was several as well as joint, could have no effect upon the suit.' If several persons make a joint and several promissory note, the holder sue one of the makers alone, and declare in the same form as if no other but the defendant had executed the note. Mountstephen v. Brooke, 1 Barn. & Ald. 224. And it follows, in accordance with the principle of that case, that when the suit is against all the obligors of a joint and several bond, the form of the declaration may be the same as if the bond were only joint. The averment in the declaration before us, that the defendants had executed a joint bond, is sus; tained by the bond produced on oyer. The averment might have been more particular, and shown the bond to be several as well as joint, but that was not necessary.

W. Quarles, for the appellants.

B. Bull, for the appellee.

There is another objection made to the declaration, but it is obviously unfounded.

Per Curiam.

The judgment is affirmed, with 5 per cent. damages and costs.  