
    *Skipwith &c. v. Mutual Assurance Society.
    November, 1839,
    Richmond.
    (Absent Parker and Cabell, J.)
    flutual Assurance Society — Motion against Assured— Record — Misjoinder of Defendants. — The mutual assurance society move for judgment against two defendants, on a notice which is made part of the record, and shews that the motion is for quotas due the society per declarations numbered 1044, 778 and 1046. The defendants acknowledge legal notice of the motion, and the same is continued until the next term. At a subsequent term the plaintiffs obtain a judgment; the defendants “now failing to appear.” The declarations of assurance referred to in the notice are filed by the plaintiffs, and copied by the clerk as part of the record for^the appellate court. They shew that by the judgment, quotas which accrued after the property was insured by two persons, are recovered jointly against one of those persons and a former owner of the property. Held, 1. that the declarations of assurance constitute part of the record ; and 2. that'the judgment is thereby ascertained to be erroneous.
    At a superior court of law for Cumberland county held on the 4th of October 1826, the mutual assurance society against fire on buildings of the state of Virginia, by their attorney, moved the court for judgment and award of execution against William Skip-with and John Trent, on a notice in the following words:
    “To William Skipwith and John Trent.
    Take notice, that on the first day of the next superior court of law to be holden for the county of Cumberland, the mutual assurance society against fire on buildings of the state of Virginia will, by their attorney, move the said court for judgment and award of execution against you for the sum of 378 dollars and 58 cents, that being the amount of the quota of the year 1816, the balance on quota of 1817, the quotas of 1819, 1820, 1821 and 1822, and quota of deficiency, on a merchantmill and storehouse in Cumberland county, due to said society per declarations duly signed, sealed and ^delivered, numbered 1044, 778 and 1946, and filed in the general office of assurance, and for interest on 20 dollars 1 cent part thereof from the 1st April 1816, on 57 cents another part thereof from 1st of April 1817, on 71 dollars 60 cents other parts thereof from the first day of April 1819, 1820, 1821 and 1822, and on 71 dollars 60 cents the balance thereof from the first day of October 1822, until payment, with costs, damages and expenses according to law and the rules and regulations of the said society.
    James Rawlings, principal agent of the mutual assurance society against fire on buildings of the state of Virginia.
    Office of the Mutual Assurance Society, Richmond, 2 Septem’r 1826.”
    
      The defendants by their attorney acknowledged legal notice of the motion, and the same was continued until the first day of the next term.
    Afterwards it was continued on the 4th of May 1827 till the next term, and likewise on the 5th of October 1827 till the next term.
    The next entry is on the 5th of May 1829. It states that the plaintiffs came by their attorney, “and the defendants having heretofore acknowledged legal notice of thismotion, and now failing to appear, therefore it is considered by the court that the plaintiffs recover against the said defendants the sum of 378 dollars and 58 cents, with six per centum per annum interest on 20 dollars and 1 cent part thereof from the first day of April 1816, on 57 cents other part thereof from the first day of April 1817, on 71 dollars and 60 cents another part thereof from the first day of April 1820, on 71 dollars and 60 cents another part thereof from the first day of April 1821, on 71 dollars and 60 cents another part thereof from the first day of April 1822, and on 71 dollars and 60 cents another part thereof from the first day *of October 1822, until paid, also seven and a half per cent, damages upon the said principal and interest according to law, and also their costs by them about their motion in this behalf expended.”
    The declarations referred to in the notice, and numbered 1044, 778 and 1946, were filed by the plaintiffs. No. 778 was a declaration by William Skipwith, made the 14th of January 1806. No. 1044 was a declaration by Henry Skipwith, made the 12th of June 1806. And No. 1946 was a revaluation of the buildings declared for assurance by declarations Nos. 778 and 1044, and a new declaration for assurance of the same buildings by James B. Woodson and John Trent, acting under the firm of James B. Woodson & Co. This revaluation and new declaration of assurance were made the 3d of March 1816.
    A supersedeas was awarded to the judgment, on the petition of Skipwith and Trent, assigning the following errors :
    1. The motion is stated to have been continued from term to term for several terms, without its appearing that the petitioners consented to such continuances, or were called, or otherwise notified therefore.
    2. In October 1827, the motion is stated to have been continued until the ensuing term ; and the next proceedings that appear were at the May term 1829. This chasm in the proceedings created a discontinuance.
    3. At the May term 1829, judgment was rendered against the petitioners, without its appearing that they were called, or were present in court.
    4. The judgment being by default, the record should shew sufficient grounds to warrant the recovery. If the declarations are not to be regarded as a part of the record, then there is no foundation for the judgment. If on the other hand, being referred to in the notice, they make a part of the case and a proper part of the ^record, then the judgment cannot be sustained: 1. because the declaration No. 778, executed by William Skipwith, cannot make him responsible for quotas falling due upon the property after it was declared for insurance by Woodson and Trent in March 1816, yet judgment is given against him for quotas and interest subsequent to that time: 2. because Trent, who declared for insurance with Woodson in 1816, was not liable separately, or in conjunction with Skipwith, but only in conjunction with his copartner; neither was Skipwith liable jointly with Trent.
    Robertson for plaintiffs in error.
    Macfarland for defendants in error.
    
      
      On the subject of fire insurance, see monographic note on "Insurance, Fire and Marine” appended to Mutual, etc., Soc. v. Holt, 29 Gratt. 612.
    
   TUCKRR, P.

I do not think that the objections made to the proceedings in this case in relation to the continuances have any validity. The party having appeared and acknowledged the notice, the case must have been regularly placed upon the docket, and then stood in court precisely upon the footing- of other causes which are continued from term to term but not to any particular day, and which, under the general law of continuances, if not tried during the term, stand continued, without any order, until the next term. And after the defendant has once appeared, it is his duty to attend to his cause at every term until it has been decided or discontinued.

On the merits, however, the case is, I think, clearly against the appellees. The defendants not having appeared at the trial, as the record ascertains, there should appear upon it sufficient to warrant the judgment. Prom the manner in which this record is made up, I take it that the notice was spread upon it, and is therefore part of it. This was not the case in Ayres v. Lewellen, 3 Leigh 609. The notice here demands certain quotas, due “as per declarations signed, sealed *&c.” These declarations being thus referred to, and being filed by the plaintiffs, make part of their case, and are, properly speaking, part of the record. In a summary motion on a forthcoming bond, the bond is considered a part of the record without being spread upon it by exception ; for it is the foundation of the plaintiff’s claim : and the bond certified by the clerk is taken to be that on which judgment was given. Beale v. Wilson and others, 4 Munf. 380. Pari ratione the declaration, in a case of the mutual assurance society, being the foundation of the demand, must be taken to be part of the case, even without an exception. If this be so, then is this judgment erroneous, since it makes the appellant Skipwith responsible for quotas subsequent to the revaluation and insurance of the same property by Woodson and Trent, and moreover enters a joint judgment against parties not jointly bound, while it severs the joint contract of Woodson and Trent, by pursuing Trent without Woodson. The judgment-must therefore be reversed, and judgment entered that the plaintiffs take nothing by their motion ; without prejudice to any other motion which may be hereafter made by the society against the proper parties for any quotas in arrear.

STANARD, J., and BROOKE), J., gave no opinion on the question of discontinuance, but concurred- with the president on the merits.

Judgment reversed.  