
    *Jenkins v. Hurt’s Commissioners.
    May, 1824.
    Scroll — Failure to Recognize in Body of Instrument— Effect. — An instrument concluding “witness our hands,” with a scroll annexed to the signature, and the word “seal” written therein, is only a simple contract.
    Same — Same—Same.—If such instrument is in the form of a penal bill, the plaintiff should declare for the principal sum, and not the penalty.
    Contract — Joint Action on — Judgment.  — In a joint action upon contract, the plaintiff must have judgment against all the defendants before the Court, or he can have judgment against none.
    Same — Same—Statute of Jeofails. — If errors in the pleadings or proceedings, are Cured by the statute of Jeofails as to one defendant, they are cured as to all the defendants.
    Jesse Hughes and others, commissioners of Judith Hurt, deceased, brought an action of debt in the County Court of Prince Edward, against Jenkins and Young. The declaration was founded on “a certain writing signed with the proper hand-writing of the said defendants, concluding ‘witness our hands/ with a scroll annexed, and the word ‘seal’ written therein,” by which they bound themselves, their heirs, &c. in the penal sum of $2,238, to pay to the plaintiffs the sum of $1,114, twelve months after the date of the instrument, to wit, on the 26th day of December, 1819. The declaration then alledges the default of the defendants to pay on the day appointed, whereby an action had accrued to demand and have the said sum of $2,228.
    Jenkins appeared and pleaded payment. An office judgment was entered against Young, who did not appear. Jenkins then relinquished his former plea, and the Court rendered judgment against him for $2,228, the penally in the writing, to be discharged by the payment of $1,114, with interest, &c.
    From this judgment, Jenkins appealed to the Superior Court of Law for Prince Edward County; where the judgment was affirmed, tie then appealed to this Court
    Leigh, for the appellees.
    May 22.
    
      
      ScrolI — Failure to Recognize in Body of Instrument —Effect.—On this subject, several notes have been written in this series of reports. See footnote to Parks v. Hewlett, 9 Leigh 511; foot-note to Clegg v. Lemessurier, 15 Gratt. 108; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on “Deeds” appended to Fiott v. Com. 12 Gratt. 564.
      On the subject the principal case is cited in Clegg v. Lemessurier, 15 Gratt. 112, 114; Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 462, 28 S. E. Rep. 567; Smith v. Henning, 10 W. Va. 632; Keller v. McHuffman, 15 W. Va. 78.
    
    
      
      Contract — Joint Action on— Judgment, — Exceptin a few cases, the rule is well established that he who sues upon a joint contract cannot recover a separate judgment-against one of the defendants. So firmly is this principle fixed, that even where one of two joint defendants confesses the action, no judgment can be entered against him till the issue made up by his co-defendants is tried, and it is wholLy set aside if the issue be found for the co-defendants. Baber v. Cook. 11 Leigh GU, citing principal case. And in Hoffman v. Bircber, 22 W. Va. 542. it is said: "It is a well-established rule of the common law,- that the plaintiff upon a joint contract. must sue all the joint contractors, and bring all of them before the court, and mature his cause against all, or if any could not be brought before the court he must proceed to outlawry against such defendants before he could obtain a judgment against any of them; and that he must recover a joint judgment against all the defendants, except such as may be discharged from liability by a defense person al to themselves, such as infan cy, bankruptcy or any other matters which do not go to the foundation of the action, or against none of them; and this result followed iu every joint action, whether brought upon a joint, or upon a joint and several obligation, for the plaintiff having elected to treat it as joint, he took his joint remedy subject to all the incidents of a joint contract. Taylor v. Beck, 3 Rand 316; Baber v. Cook, 11 Leigh 606; Peasleyv. Boatwright, 2 Leigh 196; Jenkins v. Hurt, 2 Rand. 446; Early v. Clarkson, 7 Leigh 83.” On the same subject the principal case is cited in Early v. Clarkson, 7 Leigh 86, 91; Snyder v. Snyder. 9 W. Va. 421: Hoffman v. Bircher,22 W. Va. 546; State v. Hays, 30 W. Va. Ill, 3 S. E. Rep. 180.
      In Beazley v. Sims, 84 Va. 644, 646, it is said, that, in actions on contract against several, the common-law rule was that all should he summoned either actually, or constructively by prosecution to outlawry before judgment could be had against any; but that Code 1873. ch. 167, § 50, changed this rule « whereby a j udgment may be had against one defend* ant served with process, and a discontinuance as to the other, or at the plaintiff’s election, subsequent service of process and judgment, in the same suit, against the other defendants. See further. Va. Code. 1887, §§ 3395-6; monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   JUDGE GREEN,

delivered the opinion of the Court.

The paper which was the foundation of the action in this case, was a simple contract. The declaration, therefore, should have claimed according to the legal effect of the contract, that is, the principal sum, and not the penalty; and should have noticed the penalty, only by way of describing the instrument sued upon. The defendant Jenkins, having appeared and pleaded, and afterwards waived _ his plea this fault in the declaration, which might have been demurred to for that cause, is cured by the provisions of the statute of Jeofails, which took effect on the 1st day of January, 1820; and being cured as to Jenkins, is cured as to the other defendant. The. terms of the statute are general; “No judgment, after the verdict of twelve men, shall be staid or reversed, &c.; nor shall any judgment, entered by nil dicit or non stun informatus, be reversed, nor a judgment, after enquiry of damages, be stayed or reversed, for any omission or fault, which would not be a good cause to stay or reverse the judgment, if there had been a verdict.” In a joint action upon contract, the plaintiff must have judgment against all the defendants before the Court, or he can have judgment against none. If, therefore, one of the defendants, who had suffered judgment by default for want of appearance,- could, notwithstanding a verdict against another defendant, alledge errors in the proceedings, for arresting ot reversing the judgment against him, which would have been cured by a verdict against him, it would have the effect of arresting or reversing the judgment as to the Other party also, against whom there was a verdict; and so the provision of the statute would be frustrated. The consequence is, that if the statute of Jeofails operates as to one ol the defendants, ir operates as to the others also, although they may be in default for want of appearance. This was the construction given in England to the statute of 18 Eüz. ch. 11, § t which provides, “if any verdict of twelve men or more shall he given, the judgment thereupon shall not be staid or reversed, for want of any writ, original or judicial, &c.” In trespass against * three, one pleaded not guilty, upon which they were at issue, and the defendant had a verdict. There was judgment by default against the other two. and i writ of en-quiry; and they only brought a writ of error, atid assigned fot error the want of an original, and that this is net cured by the verdict for the one defendant ; but it the verdict had been for the plaintiff against the one defendant, this had been aided by the statute ; for the want of an original quoad all, is cured when any verdict is for the plaintiff, and the other two may bring a writ of error without the third, for he cannot be joined, because he is acquitted, and therefore cannot say ihat the judgment is to his damage. And so held all the Court, except Twisden; who held that the writ of error should be brought by all three. Cannon v. Abbott, 3 Lev. 210; cited in Vin. Abr. Amendment, N. pl. 1, n.

The plaintiff was, therefore, entitled to a judgment, such as die very right of the case would have warranted; that is, a joint judgment against both of the defendants, for the principal sum and interest due upon the note.

The judgment of the Superior Court should be reversed with costs. And this Court giving such judgment as Ihe Superior Court ought to have given, the judgment of the County Court against tin defendants severally, should be also reversed with costs, and a joint judgment entered against both the. deten l.iurs, for the principal sum due by the note, and interest thereon from rhe 2''rh dav of December, 1819, and the costs of the County Court, &c. 
      
      Judges Coalter and Cabell, absent.
     