
    William W. Tucker vs. Abigail Zollicoffer et al.
    A supersedeas bond should correctly describe the judgment and execution to be superseded, and so also should the supersedeas; and if they do so, it is immaterial, in an action on the bond, whether the petition for the supersedeas, misrecites the date of the execution or not; in such an action, the only questions are, was the bond given? was the execution superseded? was the 'supersedeas discharged?
    In an action therefore, on a supersedeas bond, the record of the judgment and execution superseded, will be properly admissible in evidence, even though the petition for the supersedeas mistake the date of the execution superseded; the bond and supersedeas both stating it correctly.
    A plea that purports to answer a whole declaration, but does not in reality answer one of the counts, will be technically demurrable ; but after verdict, the defect being one of insufficient pleading, is cured by the statute of jeofails.
    At common law, if the defendant answer but two counts of the plaintiff’s declaration, the plaintiff would be entitled to his judgment on the' counts unreplied to, for want of a plea ; and if he failed to take it, he would thereby discontinue his whole’action ; but this discontinuance is cured after verdict, by our statute of jeofails.
    In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.
    Abigail Zollicoffer and Edwin C. Zollicoffer, administrator and administratrix of George Zollicoffer, deceased, sued William W. Tucker in debt upon a supersedeas bond, signed by defendant. The first count was on the penalty of the bond. The other counts set out the condition as follows, viz :
    “ The condition of this bond is such, that whereas a writ of 
      fieri facias issued from the clerk’s office of the circuit court of Lafayette county, and state of Mississippi, on the seventh day of December, 1844, to the sheriff of said county, in favor of Abigail Zollicoffer and Edwin C. Zollicoffer, administratrix and administrator of George Zollicoffer, deceased, against Richard R. Corbin, Adolphus F. Tucker, and Robert 0. Carter, for the sum of thirteen hundred and forty-six dollars and eighty-two cents. And whereas, on the petition of Adolphus F. Tucker, execution of said writ has been ordered to be superseded: now, if by the judgment of said circuit court on said petition, the said supersedeas shall be discharged,'and if in that .event the above bound Adolphus F. Tucker shall well and truly pay and satisfy the amount of said fieri facias, and satisfy and perform the judgment of said circuit court on said petition, then this obligation is to be void, otherwise to remain in full force. In testimony whereof, we have hereunto set our hands, and affixed our seals, on the day and year above written.”
    The breach assigned by the plaintiff in the declaration, in the second and third counts, is that the supersedeas in the condition mentioned had been discharged, and that the obligors in the bond had not well and truly paid and satisfied the amount of the fieri facias in the condition mentioned, nor had they satisfied and performed the judgment of the circuit court discharging said supersedeas.
    
    The defendant craved oyer of the bond and condition, and for plea said, “that it was not true that the supersedeas to the execution in the condition of the said writing obligatory mentioned, had been discharged,” and on this plea issue was taken and the trial had.
    On the trial the plaintiff offered the transcript of the judgment, &c. in evidence; to which objection was made. The defendant objected because the petition for the supersedeas recited the date of the execution to be the 10th of December, while the one recited in the bond and writ of supersedeas was dated the 7th of December. The objection was overruled. The jury found for the plaintiffs; and the defendant, after a motion for a new trial, sued out this writ of error.
    
      
      J. W. C. Watson, for plaintiff in error,
    Cited 2 Leigh, 557; 2 Hen. & Mun. 401; 2 Munf. 330; 1 How. 198; 7 lb. 114; l.S. & M. 660 ; 6 How. 193; 6 Munf. 32; 4 lb. 430; 7 S. & M. 397; 8 lb. 640; 2 lb. 546, 561; H. & H. 591.
    
      IT. W. Walter, for defendants in error,
    Cited 1 Gall. C. C. Rep. 86; H. & H. 591.
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

This action was instituted on a supersedeas bond. The declaration contains three counts; the first on a common money bond, and the other two set out the condition, and assign breaches, that the supersedeas had been discharged, but the defendant had not paid, &c. The defendant craved oyer, and pleaded that the supersedeas mentioned in the bond had not been discharged; and issue was taken thereon.

Three grounds are now taken for reversing the judgment; 1. That the court erred in permitting the plaintiffs below to read in evidence the transcript of the record, .to show that the super-sedeas had been discharged; 2. That it was error to refuse a ■ new trial; and 3.- That the state of the pleadings does not sustain the judgment, and it should be arrested.

1. The objection to the record introduced is, that there is a variance between the execution described in the petition for a supersedeas, and that described in the condition of the bond. The petition describes the execution prayed to be superseded as having issued on the 10th of December, 1844; the condition of the bond describes it as having issued on the 7th of December. The description in the petition is immaterial, as the petition itself is -a matter of no consequence. In cases like this there are but three questions. Was there a good bond given for a super-sedeas ? Was the same execution superseded 1 And Avas the supersedeas discharged ? The bond should correctly describe the judgment and the execution, and so should the process of supersedeas, and this they do. There is no misrecital. From the record introduced, it appears that the bond was given to.obtain a supersedeas of a particular execution, that had emanated on a particular judgment. It also appears that process of super-sedeas did issue, to suspend the operation of that identical execution ; and it further appears, that the same supersedeas was discharged. Then a right of action has accrued :on this bond. If the party had introduced evidence that an execution corresponding in date to that described in the petition had been superseded, and that such supersedeas had been discharged, he must have failed, because this bond was not given to have such an execution suspended. The whole question seems to be resolved into this: Has the supersedeas mentioned in the bond been discharged 1 It is not, Has the supersedeas of the execution described in the petition been discharged'? Because that would be to make the petition the foundation of the action, instead of -the bond. The record was therefore properly admitted.

2. As the motion for a new trial was founded on the objection taken to the admissibility of this record, it was of course properly overruled.

3. But it is said further, that this court must arrest the judgment because of certain defects apparent on the record, growing out of the pleadings. The plea was an answer only to the second and third counts, as it only put in issue the fact of the discharge of the supersedeas. The count on the money bond was hot answered. If the plea had professed to answer but the two counts, then the plaintiffs would have been entitled to judgment on the first for want of a plea or answer; and if they had failed to take such judgment, such failure would have been a discontinuance of the whole action, and the judgment erroneous at common law. But such discontinuance is now cured by the statute of jeofails. But there was no discontinuance, because the plea professes to be an answer to the whole declaration, although it in fact answers but two counts. For this the plaintiffs should have demurred. But this is technically insufficient pleading, and is cured after verdict by the express provision of the statute of jeofails. Stephen on Pleading, 216; H. & H. Dig. 591.

Judgment affirmed.  