
    *Carthrao v. Brown.
    October 1831.
    Pleading — Coveuaaat- Failure to Crave Oyer — Effect Where Covenant Cel Out in Bill oí Exceptions. — Upon an appeal irom a judgment in covenant, the covenant not being set out In the 'pleadings upon oyer, and the question being whether the declaration shewed good cause of action; the court can only look at the covenant as pleaded in the decía ration: and though the instrument be set out In a bill of exceptions taken at the trial, the court can pay no regard to it, in deciding on the sufficiency of the declara tion.
    Covenants — Several—Action on —C. covenants with 15. and,T. that he will pay them $300, to wit. to each of them one moiety thereof, and also the sum of $400, upon a certain condition: Hurto this is a covenant to B. a.nd ,J. severally, to pay each a moiety of each sum; so that J. being dead. B. cannot maintain a.n a,ction to recover the whole.
    This was an action for breach of covenant, brought by Brown against Carthrae in the county court of Rockingham. Brown’s declaration stated his case thus: “that the defendant Carthrae, on the 8th December 1804, and during the life of one Jarman since deceased, by his certain written obligation sealed with his seal (of which pro-ferí was made), covenanted to and with the plaintiff Brown and the sáid Jarman, that he Carthrae would pay the plaintiff and the said Jarman, the sum of 300 dollars, to wit, to each of them one moiety thereof, on or before the 25th December then next ensuing, and also the sum of 400 dollars at and upon the day when a certain turnpike road in the obligation after mentioned, should be completed and delivered, but with this condition, that if the plaintiff and Jarman should fail to complete the turnpike road across the south mountain agreeablj' to contract, they thereby bound themselves to refund all moneys received of the defendant Carthrae, with legal interest, but should the said road be completed agreeably to contract, then the obligation whereby the defendant bound himself to pay the moneys aforesaid, should be valid and binding on the defendant. And the plaintiff averred, that he and the said Jarman in his lifetime, and the plaintiff since the death of the said Jarman, did complete and deliver the said turnpike road agreeably to contract, to wit, on &c. Yet the defendant-did not, and *would not, on or before the 25th December next ensuing the said 8th December 1804, pay to the plaintiff or the said Jarman in his lifetime, or to the plaintiff since the said Jarman’s death, the said sum of 300 dollars, or any part thereof, —and did not and would not, at and upon the day when the said turnpike road was completed and delivered as aforesaid, pay to the plaintiff or the said Jarman in his lifetime, or to the plaintiff since the said Jarman’s death, the said sum of 400 dollars,- — according to the form and effect of his said covenant &c. and so the plaintiff in fact' said, . that the defendant had not kept the said covenant so made” &c.
    Carthrae pleaded in bar, that the plaintiff Brown and Jarman in Jarman’s lifetime, and Brown since Jarman’s death, failed to complete the turnpike road according to contract. And upon this plea an issue was made up.
    Oyer was not taken of the covenant, on which the action was brought, nor was it otherwise made part of the record by the pleadings; but,1 exceptions having been taken to an opinion of the court at the trial (on a point not necessary to be here stated), the covenant was set out in the bill of exceptions, and in that way only appeared in the record.
    Upon the trial, the jury found a verdict for Brown, for both the sums demanded, 300 dollars and 400 dollars, with interest, subject to some credits which they also found the defendant entitled to for payments made by him. The county court gave judgment accordingly. Car-thrae appealed to the circuit court, which affirmed the judgment; and then he applied by petition to this court for a superse-deas, which was allowed.
    Johnson for the plaintiff in error,
    objected, That the covenant, as it was set forth in the declaration, was a covenant of Carthrae to pay moieties of both the sums of money therein mentioned, certainly moieties of the first sum of 300 dollars, to Brown and Jarman, each severally, not to both jointly; and,' consequently, Brown could not maintain this action, as surviving covenantee, to recover the whole of the *money. E)ccleston v. Clipsham, 1 Wms. Saund. 153-5, notes 1 and 2. Yet he had recovered a verdict and judgment for the whole of both sums.
    Leigh, contra,
    endeavoured to maintain, that the covenant as alleged in the declaration, was a covenant to pay both sums to the covenantees jointly. It was stated, that Carthrae covenanted to pay Brown and Jarman the sum of 300 dollars, to wit, to each of them one moiety thereof: the first part of the allegation representing them as joint covenantees, and the addition under the scilicet, being intended to represent their interests not as several but only as equal. This part of the covenant is laid in the declaration as a covenant to both to pay a sum of money to each ; which is not distinguishable in principle from a covenant to two to perform a duty to one of them, which would certainly give the cove-nantees a joint action. As to the 400 dollars, that was stated as having been covenanted to be paid to them jointly. And this construction of the allegation of the covenant, ought the rather to prevail, seeing that it appeared in the sequel of the declaration, that both sums of money were to be paid to Brown and Jarman for a duty , to be performed by them jointly, and that they covenanted jointly to refund the money, in case they failed to perform the joint duty. It was easy to see how, both being concerned in a joint undertaking, each might be interested that the other as well as himself should receive his compensation ; their contract with each other might have given them a common interest, each in the compensation to be paid the other. And he referred to the covenant itself, set out in the bill of exceptions, and argued from the frame of the instrument, that it was a covenant to the parties jointly.
    
      
       The principal case is cited in Armstrong v. Henderson, 99 Va. 838, 37 S. E. Rep. 839. See monographic note on “Covenants'’ appended to Todd v. Summers, 3 Gratt. 167.
    
   BROOKE), J.

As the bond is not made part of the record by the pleadings, it is not to be so treated, though it is noticed in the bill of exceptions, but the declaration alone is to be looked to, for the terms of the covenant on which the suit is brought.

*It is a well settled principle, that covenants are to be considered as either joint or several, according to the rights and interests of the parties; and this on the soundest reason ; for though a covenant with several persons be joint and several in its terms, yet if the legal interest and- cause of action be joint, the action must be brought by all; and, on the other hand, if the interest and cause of action be several, the action must be brought by one only, though the covenant be in its terms joint. Anderson v. Martindale, 1 East, 497; 1 Wms. Saund. 153. This rule of construction of covenants, though apparently technical, effects the great purposes of justice, and avoids great inconvenience, and the costs of multiplied suits. So, where there is but one duty covenanted to be performed to two or more, they have a joint interest and but one action, otherwise, the defendant would be vexed with two or more suits for one thing, and the court would not know for whom judgment should be pronounced. On the other hand,’ where the rights are distinct, and plainly separate, the action must be several: for if a joint action be brought, there must be a joint judgment; and one might recover a judgment for the rights of another, and by survivorship at the common law, claim the whole interest instead of his due proportion. It may happen also, that where there is but one duty, to be performed to one of two individuals, 5ret both may be interested in the performance of it; in such case, the contract is joint, and both must sue: as where A. owes B. ^100. and C. owes A. a like sum, and covenants with A. and B. to pay it to B. here A. though he is to receive nothing, is interested in the payment to B. and the action must be joint. Indeed, where a party covenants with two to pay money to one only, the law presumes an interest in the other, although he is to receive nothing; because he is joined in the contract, and there can be no other assignable motive for it; and there, the action must be joint, as in Anderson v. Martindale. The interest presumed in such case, must be a joint interest, as two could not have a several interest, in the performance *of a single duty to one of them. But where the covenant is with two jointly to pay to them ¿50 each, or to deliver a horse to each; in that case, though the language of the covenant is joint, yet the interest is several-; for there are two duties to be performed, instead of a single duty, which two duties may be severed; and, as the interest of each is distinct and separate, and the one has no interest in the performance of the duty to the other, by any inference from the covenant being joint, it is to be considered several and not joint: it is unlike the case in which the covenant is with two, and the duty to be performed to one only. So, where the covenant is joint and several, in its terms, yet if it appears that the interest and cause of action are joint, the action must be joint: as if one covenants to do an act for the benefit of two, and binds himself to them and each of them for performance, the action must be joint, though these last words are words of severalty. Slings-by’s case, 5 Co. 19, a., 2 Bac. Abr. Covenant, D. p. 68. For, as there is a single duty only, a single action only will lie, or there would be a double recovery.

These principles govern the case before us. The declaration alleges, that the defendant “covenanted with Brown and Jar-man to pay them 300 dollars” (had it stopped there, it would have been a joint covenant; but it proceeds) “to wit, to each of them one moiety thereof. ’ These are obviously words of severalty: two distinct duties are to be performed, in which each has a distinct and several interest. The words that follow — “also the sum of 400 dollars” — do not alter the character of the preceding covenant, but on the contrary take its character from it, as in Northumberland v. Errington, 5 T. R. 522. Neither do the words “to each of them a moiety thereof,” give to that part of the preceding covenant, a several as well as joint character merely: they extinguish its joint character, not by adding ' a new principle to the contract, but by explaining that which the previous words seemed to give it. Those words “to each of them a moiety thereof,” do not make *the covenant joint and several, but several only. ft is a covenant to pay several sums to each of them, and not to perform a single duty to both of them; a covenant to pay several sums to each of two persons, respectively, 150 dollars to one and 150 dollars to the other. Each has a distinct interest in one of the sums, and no interest in the other. Nor does the joint contract of Brown and Jarman for the labour or duty to be performed on their part, affect the covenant of Carthrae to pay for that labour. Though their contract for the labour was joint, they might intend to be paid for it severally.

Upon this ground, without noticing the point presented by the bill of exceptions, both judgments are to be reversed.  