
    *Ward v. Johnston.
    Tuesday, March 6, 1810.
    1. Bond with Collateral Security — Covenant—Assignment of Breach — Covenant (as well as debt) lies oil a bond with collateral condition. If there be no stipulation, by articles, or in the condition itself, that it shall be performed, the breach assigned should be the failing to pay the penalty; but, where such stipulation is either expressed or implied, the failure to perform the condition may be assigned as the breach.
    2. Bond — Joint and Several — Liability of Security.— A co-obligor, in a joint and several bond, may (though described as a security) be considered as stipulating for the performance of the condition; the words being “if the above bound L., and W. his security, shall, &c. then this obligation to be void,” &c.
    3. Pleading and Practice — Judgment against Two Defendants on Confession of One — Effect.— Where two defendants have appeared and pleaded, an entry in the record “that the parties came, &c. and the defendant L. acknowledged the plaintiff’s action, and therefore judgment against the said defendants,” must be understood asa judgment against both on the confession of one, and therefore erroneous.
    4. Same — Same-Entry on Reversal. — m reversing the judgment for that error, the Court ought to direct the proper judgment tobe entered against the defendant who confessed, as well as further proceedings against the other.
    5. Same — Same—Reversal—Rights of Security. — Tn such case, the plaintiff having, after the judgment, moved lor permission to proceed against the security; and it appearing, by a bill of exceptions on this motion, that the judgment had been confessed by virtue of an agreement (to which the security was not a party) that a stay of execution should be allowed the principal; the Court, in reversing the judgment, ought to have given the security leave to plead puis darrein continuance; all the proceedings having been brought up by a writ of supersedeas.
    6. Supersedeas — When Several Judgments May Be Brought up by One Writ. — Several judgments and orders, relating to each other, may be brought up by one writ of supersedeas; provided the whole be sufficiently described, as intended to be comprehended therein.
    7. Principal and Surety — Exoneration of Surety — Stay of Execution. -Quoere, whether a security is exonerated at law, or in equity, by the plaintiff’s accepting a confession of judgment from the principal, and granting him a stay of execution by an agreement to which the security was not a party ?
    This was an action of covenant, brcught by James Johnston against William Long and William Ward, in the County Court of Greenbrier. The declaration charged “that, whereas the defendants, on the 30th day of September, in the year 1794, at the County aforesaid, covenanted to and with the said plaintiff, under the penalty of four hundred pounds, to which they signed their names and affixed their seals, in the words and figures following, to wit; The condition of this obligation is such, that whereas the above-mentioned William Long hath this day bargained with and sold unto the above-mentioned James Johnston, a certain tract of land, lying in the County of Greenbrier, on the waters of Culbertson’s Creek, formerly known by the name of Murphy’s Place, containing three hundred and sixty-four acres, more or less; if, therefore, the above bound William Long and William Ward, his security, doth make unto the said James Johnston, his .heirs, executors or assigns, a clear deed in fee-simple to the said tract of land, at or before the next Hay Court held for 46 *Greenbrier County, then this obligation to be void, otherwise to remain In full force and virtue, which obligation is here shewn to the Court; and the plaintiff in fact saith, that the said defendants, although often required, did not, on or before the May Court thereafter the date aforesaid, nor at any time, make and deliver a deed to the plaintiff as therein mentioned, but the same he hath and still do refuse to make, to the damage of the plaintiff, four hundred pounds, and therefore he sues.”
    The bond exhibited was in the usual form of a joint and several bond, with a condition corresponding with that set forth in the declaration, except that a proviso was added in these words; “provided that, if default be made by the said Long, the said Johnston doth agree to take the sum of two hundred pounds like money as aforesaid, with lawful interest from this date.”
    The defendants jointly pleaded ‘ ‘conditions performed;” but, afterwards, “at a Court held on the 31st of August, 1797, came the parties by their- attorneys, and the defendant Long, acknowledgeth the plaintiff’s action. Therefore, it is considered by the Court, that the plaintiff recover against the said defendants, two hundred pounds, the debt in the declaration mentioned, with interest from the 30th of September, 1794, and his costs,” &c. Execution issued on this judgment against both defendants; and, while it was in the Sheriff’s hands, to wit, on the 30th of May, 1798, the County Court, on the motion of Ward, quashed the execution as to him; leaving it to have its effect against Long. The next day two motions were made by the. plaintiff; first, that the order of the preceding day, quashing so much of the execution as related to William Ward, be rescinded; and, (this being refused by the Court,) secondly, “to revive the proceedings as to the other defendant:” both which motions were overruled with costs, and exhibited by a bill of exceptions. On the same day last mentioned, the plaintiff farther moved the Court “to enable him to proceed to judgment against Ward; 47 it appearing *the cause as to him had lain dormant;’ ’ whereupon a written agreement, under the hands and seals of the defendant Long and the plaintiff, dated August 28, 1797, was produced by Ward; according to which Long was to appear “at Greenbrier, August quarterly term, 1797, and confess judgment in the action of debt brought against him by James Johnston; execution was to be staid until the February Greenbrier Court, 1798, at which time Long was to have, has option either to pay the principal and interest mentioned in the bond, or make an ample and indefeasible title to the land therein contemplated: if he took his option to make the title, he was still to pay the whole interest due on the bond.” A further agreement (also under seal) was endorsed, that William Ward, the co-obligor in the bond mentioned, was not to be affected by the within agreement.” But Ward was not a party to either of those agreements. The plaintiff objected to the introduction of this paper, “as any thing whereby the opinion of the Court should be affected:” but the Court overruled his objection and motion likewise; and decided “that the judgment, as confessed by Long, be final and conclusive between the parties.” The plaintiff likewise offered to shew “by oral testimony, that the meaning of the endorsement on the paper admitted by the Court, was not to exonerate William Ward, the security, but to bar the exoneration of .him: but the Court were of opinion that no such oral testimony should be admitted.” A second bill of exceptions was filed, disclosing these circumstances.
    The District Court (holden at the Sweet Springs) granted a supersedeas to the judgment of August 31st, 1797; and, on the 21st of October, 1800, being of opinion “that the said judgment was erroneous in this, in considering the judgment confessed by the said William Long to be final and conclusive as to the other defendant William Ward,” reversed “the said opinion and judgment of the County Court for costs;” and retained the cause to be tried “as to the issue between the said James Johnston and the defendant 48 *William Ward.” Afterwards, to wit, on the 27th of May, 1802, a Jury was empanelled, and returned a verdict, ‘ ‘that the said William Long and William Ward had not performed the condition of their covenants in the declaration specified;” and assessed the damages of the plaintiff to 2761. 13s. 4d. besides his costs. The Court thereupon entered judgment for the plaintiff “against the said William Ward for the damages aforesaid, and costs;” from which an appeal was taken to this Court.
    Wickham, for the appellant, contended,
    1. That, if all the proceedings had been regular, the judgment could not be sustained, being a regular judgment in covenant; for covenant will not lie on the condition of a bond, unless there be an agreement in the condition that it shall be performed. Covenant may lie on a bond with penalty; but the breach assigned must be for failing to pay the penalty, not for failing to perform the condition. In the condition of this bond there was no stipulation to do any act: the obligor had, therefore, his election to submit to the penalty. But, if covenant would lie, the plaintiff might lay damages as high as he please, and recover more than the penalty.
    In this case, Ward was only a security: and it is a settled rule that, neither in law, or equity, can you recover more than the penalty from a security.
    2. If the judgment of August, 1797, was erroneous, Johnston had no right to complain, since it was for his benefit,  But the judgment was clearly right, and entered against Long only. The defendant, Long, acknowledged the plaintiff’s action: “therefore judgment was entered against the said defendants.” Here the word “defendants” evidently should have been “defendant.” The letter s may be rejected as surplusage; and the entry should be considered as referring to Hong only ; as in the case of Moss v. Moss’s Executor, last term. At a subsequent day, Ward moved to quash the execution as to him; because the judgment was against Hong only. John-49 ston so considered *it: for he moved to be permitted further to prosecute against Ward. The County and District Courts both so considered it. Indeed, it was merely a clerical error in fact, not in law, and might have been corrected by a writ of error coram vobis. There was then no error in quashing the execution against Ward: it was the duty of the Court so to do. Johnston excepted, it is presumed, only on the ground of costs: but the Court has a right to award costs where parties are heard in an adversary waj' on a motion.
    3. The County Court did right in refusing to reinstate the suit, and permit Johnston to prosecute further against Ward. Judgment being confessed by Hong, and no proceedings against Ward for nine months, there was a complete discontinuance, and both parties were out of Court. Ward was in Court for the purpose of moving to quash the execution, but not as appearing to the cause. If the Court could reinstate the suit after nine months, they might at any distance of time.
    A motion to reinstate a cause ought always to be on some fact dehors the record. Here there was no fact dehors the record to authorize a reinstatement. On the contrary, a written agreement between the plaintiff and Hong was produced, shewing that Ward, the security, ought to be considered as exonerated. In Croughton v. Duval, 3 Call, 69, the authorities on this subject are collected ; from which it appears to be the rule in equity, (and Courts of Haw are governed by the same principle,) that by giving the principal further time for payment, without the concurrence of the surety, the latter is discharged. The motion, therefore, was. against the justice of the cause; and Courts of Common Haw always decide motions on principles of moral right.
    4. The judgment of the District Court is altogether erroneous. The entry of proceedings is very confused; but it sufficiently appears that the supersedeas applied 50 only to *the judgment of August, 1797; yet the Court reversed the decision of May, 1798. Thus the supersedeas was to one judgment; and another was reversed. There is now no judgment against Hong upon which an execution can issue; and though the judgment was confessed by him, the whole is saddled upon Ward. 
    
    W’irt, for the appellee,
    as to the 1st point, said, that in this case the action of covenant lay; and cited 6 Viner, 375, pi. 6; 381, pi. 21, 22; 376, pi. 4. Mr. Wickham’s argument admits that covenant would lie if the condition contained an express stipulation : but from these authorities it appears, that an implied one will equally authorize the action: and here a stipulation was evidently implied that a title should be made to the land, or, in case of default in that, the money should be paid. Covenant would certainly lie against Hong (the principal) upon this- condition; and equally so against Ward, the security,  The justice of the case can as well be attained in covenant, as in debt. Besides, the defendants by their plea sanctioned the action; and it would now be a surprise to permit them to take advantage of this objection.
    Both the defendants pleaded, and issues were joined. Both were then before the Court. The word “defendants” 51 *in the judgment of August, 1797, must, therefore, be considered as applying to both. Whenever a supersedeas is before the Court, the whole case is brought up; and the Court may look into it, and reverse for any other error as well as for that assigned in the petition. By some means, the Clerk and Counsel have amalgamated the proceedings of August, 1797, and May, 1798. The District Court seems to have considered them as the same; but reversed the judgment of May, 1798, which ought to be reversed. If the Court was right in considering the two judgments as connected together, and substantially the same, there is then no error in the judgment of the District Court. As to Hong, the judgment of the County Court is in full force. The proceedings now in question have been against Ward only.
    As to the point, whether Ward, as security, was exonerated, all the cases cited were in chancery. There are none such at common law. But if notice can be taken of such a circumstance in a Court of Common Haw, it must be put in issue by plea; not introduced by motion. Besides, the cases all turn on varying the contract to the injury of the security. A mere enlargement of time for payment is not, of itself, sufficient; but there must, in addition, be some strong circumstances of great hardship: and no such circumstances exist in this case.
    Wickham, in reply.
    I admit, if the security wishes to be relieved in a Court of Common Haw, it must be b3' plea: but here the question occurred on the plaintiff’s motion, which the Court was to grant, or deny, as might be equitable. On all extrajudicial motions, such should be the consideration.
    The proposition which I lay down is, that a security is bound by the terms of the contract, and no other: if the creditor thinks proper, by an agreement with the principal, to vary those terms in so material a part as the performance, the security is no longer bound. The cases cited 52 by *me are not exactly the same in all their circumstances; but this principle may be extracted from them all.
    Mr. Wirt misapprehended me on the subject of covenant. If a man articles to perform covenants, under a penalty, damages may be recovered to any amount: but on a bond with a collateral condition, (without any stipulation to perform the condition,) damages to the amount of the penalty only can be recovered. Is it of no consequence to the security that he sees the extent to which he can be bound? Debt, therefore, (in which no more than the penalty can be recovered,) and not covenant, (in which the damages may exceed the penalty,) was the proper remedy in this case.
    The declaration being bad in substance, was not cured by the defendant’s pleading to it; for, after pleading to a bad declaration, you may move in arrest of judgment.
    The District Court erred in another respect. It reversed and annulled the judgment against Dong, but did not direct what judgment was to be entered in lieu thereof.
    Saturday, March 10.
    
      
      Bond — Joint and Several — Covenant against Principal and Surety. — As holding that an action of covenant will lie against both the principal and surety on a joint and several bond with a collateral condition, the principal ca.se was cited in Sup'rs of Jackson Co. v. Leonard, 10 W. Va. 488, 489. Moore, J., who delivered the opinion, then cites Mr. Robinson in his New Practice, vol. 3, p. 305, as saying that Ward v. Johnston, 1 Munf. 45, is, “to say the least, of very questionable authority.”
      See generally, monographic note on “Covenant, The Action of” appended to Lee v. Cooke, 1 Wash. 306.
    
    
      
       Pleading and Practice — Judgment against Two Defendants on the Confession of One — Effect.-—In a note appended to Wrenn v. Thompson, 4 Munf. 377, the principal case is cited to the point that a judgment against two defendants, on the confession of one, is erroneous, notwithstanding the plea is joint.
      On this point, see the principal case also cited in Garland v. Marx. 4 Leigh 323.
      Por further information on this subject, see monographic note on “Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.
    
    
      
      Principal and Surety — Discharge of Surety — Stay of Execution. — In the principal case, it was decided that, if the fact, that a creditor has accepted a confession of judgment from a principal and granted him a stay of execution by au agreement to which the security is not a party, can avail the surety at all at law, it must be by way of plea; and the cause was sent back. It came up again in Ward v. Johnson, 6 Munf. 6, 8 Am. Dec. 729, with the plea regularly pleaded and demurred to and a majority of the court were inclined to think — so reads the headnote — that a surety is exonerated in equity, though not at law, by the plaintiff’s accepting a confession of judgment from the principal, and covenanting thereupon to grant him a stay of execution for a limited time; the surety not having assented to such new contract and compromise. See Steptoe v. Harvey. 7 Leigh 531. 532, citing the principal case and Ward v. Johnson, 6 Munf. 6.
      As to the effect on the surety of an extension of time to the principal, see also, foot-note to Wright v. Stockton, 5 Leigh 153; foot-note to Devers v. Ross, 10 Gratt. 252; foot-note to Hill v. Bull, Gilm. 149; footnote to Steptoe v. Harvey, 7 Leigh 502.
    
    
      
       1 Call, 569, Hammett v. Bullett’s Executors; 1 Wash. 6, Smith v. Harmanson.
    
    
      
       2 Wash. 131, Gordon v. Frazier & Cosbie.
    
    
      
       Nisbet v. Smith, 2 Bro. Chan. Cas. 579; Rees v. Berrington, 2 Vesey, jun. 540; 1 Eq. Cas. 79, citing 1 Vern. 190. See, also, 8 Atk. 91.
      
    
    
      
       Note. The writ of supersedeas described it as “a judgment obtained the 31st day of August. 1797, by which judgment the said County Court refused to continue the suit aforesaid (which as to the said William Ward had lain dormant) for further proceedings, to the intent that the said James Johnston might obtain judgment against him the said William Ward, ordered that the judgment against the said Long should be iinal, and awarded the said William Long and William Ward their costs of defending the motion of the said James Johnston:” thus blending the several decisions, and stating them all as of August, 1797. — -Note in Original Edition.
    
    
      
      12) Note. It appears from the record, that the execution (which issued against Long and Ward, and was quashed as to Ward) was returned by the Sheriii'‘stayed by order of plaintiff. ” The date of th at execution does not appear. — Note in Original Edition.
    
    
      
       6 Viner, 376, pl. 4.
      
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

1. The first point made by Mr. Wickham was, that an action of covenant will not lie in this case against his client, Ward, as he was only a security, and so named in the condition of the bond, given by him and Dong, the principal, for making a title to the lands in question: but I think the objection does not lie; for the condition is, that the bond shall be void, if Dong, and Ward, his security, make unto the plaintiff, or his heirs, &c. a clear deed in fee-simple for the lands. Now Dong and Ward might have been joint-tenants, or tenants in common, or coparceners in the land; in which case both must have joined in the conveyance, though one only had sold to the plaintiff; and since the condition imports that something is to be done by both the seller and the security, (and not by either of them singly,) 53 we must suppose it was understood *by the parties that something was necessary to be done by both. Therefore, an action of covenant, I conceive, well lay against both.

2. Another point was, that the plaintiff, Johnston, having accepted a confeásion of judgment against Dong, the principal, with a stay of execution, the security was thereby exonerated. How far this may be the case in a Court of Equity, it is not for me to say at present; but at law, I concur with Mr. W’irt that it ought to have been pleaded as a plea puis darrein continuance; which was not done. And, if it had been, I am not prepared to say it would have had the effect contended for by Mr. Wickham; but, upon this point, I give no opinion; nor is it necessary; since the terms upon which the judgment was taken do not appear upon the record, at the time of the judgment, August 31, 1797; nor at any time before. And I hold that all that was done in the County Court afterwards forms no part of the case; the writ of supersedeas referring expressly to the judgment rendered on that day, although the Clerk has confounded the judgment of that day, with subsequent proceedings six months after.

The entry of the judgment against both defendants, on the confession of one only, was clearly erroneous; and that error ought to have been corrected by the District Court; which, however, it has omitted to do. It is therefore incumbent upon this Court to do it. A majority of the Court I understand to be of opinion, that the District Court ought to have permitted the defendant to plead the acceptance of a confession of judgment by Dong, with a stay of execution, as a plea puis darrein continuance. If he had offered to plead such a plea, I should have thought the Court ought not to have rejected it; as it might have been demurred to, and the question of law would then have been brought regularly before the Court: but I am not prepared to say that the Court erred in not giving a permission which does not appear to have been 54 asked. I submit, ^however, to the opinion of the other members of the Court, as it may be the means of settling a question of general importance by a solemn decision hereafter.

JUDGE ROANE.

The proceedings in this case are extremely loose and irregular: but it is evident, that the judgment of August, 1797, against both defendants on the confession of Dong only, is erroneous; and so are some of the subsequent proceedings of the County Court, which would neither permit the appellee to consider the judgment of August, 1797, as also extending to Ward, (and consequently to charge him by an execution,) nor permit him to go on, and get a judgment-against him. I consider all these proceedings to have been brought up by the supersedeas, and that they should be reversed, (if it be necessary as to the latter,) and a judgment rendered against Dong only, on his confession; retaining the cause also for trial against Ward in the District Court. But, as it judicially appeared to the District Court, on the bill of exceptions stated in the record, that the judgment against Dong was in consequence of a - new agreement to which the appellant, Ward, was no party, he ought to have been permitted by the District Court to avail himself of that circumstance, (if it would legally avail him,) and that, although the agreement, in fact, took effect prior to the confession of the judgment in the County Court.

I am, therefore, of opinion to reverse the judgment of August, 1797, rendered against both defendants; to enter one against Dong pursuant to the agreement in his bond; and retain the cause for trial as to Ward, with liberty for him to change his plea, if he thinks it necessary.

JUDGE FDEMING.

There is no difference of opinion as to the merits of the case. One Judge only doubted whether there was error in not giving the appellant leave to plead the new matter by way of 55 plea puis darrein continuance. *But a majority of the Court is in favour of the following judgment.

The judgment of the District Court of May 27, 1802, is to be reversed. “And this Court is further of opinion, that there is no error in so much of the judgment of the said District Court, rendered on the day of October, 1800, as reverses the judgment ■of the County Court of Greenbrier of the thirty-first of August, 1797, in favour of the said Johnston against William Long and the said Ward, and retains the cause in the District Court for a trial thereof to be had between the said Johnston and Ward. But a majority of this Court is of opinion, that there is error in the said judgment of the District Court in directing the cause to be tried on the issue already joined between the said parties in the said County Court, without giving leave to the said Ward to plead any matter subsequent to the original plea, or such other matters, in the nature of a plea puis darrein continuance, as he might be advised for his further defence. And this Court is also of opinion, that there is error in the judgment of the said District Court in not proceeding to render such judgment as the said County Court ought to have given upon the confession of the plaintiff’s action in that Court by the defendant Long. Therefore, it is further considered, that the said judgment of the District Court of the day of October, 1800, and also that of the County Court aforesaid, be reversed and annulled, and that the said Johnston recover against the said Ward his costs in the District Court. And further it is considered, that the said Johnston recover against the said Long the sum of two hundred pounds, with interest thereon at the rate of five per centum per annum, from the thirtieth day of September, 1794, the sum agreed on as the measure of damages between the said Johnston and Long, according to the tenor and effect of the defendant Long’s bond to the said Johnston; also his costs by him expended in the prosecution of his suit in the said County Court antecedent to the confession of judgment by the said William 56 *Long. And it is ordered, that a new trial be had in the cause between the said Johnston and Ward, with leave to the said Ward to plead any matter subsequent to the original plea, or such other matter in the nature of a plea puis darrein continuance, as he may be advised for his further defence.”  