
    Winston v. The Commonwealth.
    [April Term, 1800.]
    Forthcoming:Bond — Several Executions. — One forthcoming' bond taken on several executions.
    Same — Two Separate Bonds. — Two separate bonds may be included in one instrument.
    William Overton Winston late Sheriff of the county of Hanover, John Winston, Bickerton Winston and James Overton securities for the said William O. Winston; and Cecilia Anderson administratrix of William Anderson deceased, who was likewise late sheriff of the county aforesaid, and Robert Page and Mathew Anderson, securities for the said Cecilia Anderson, gave a bond dated the 26th day of October 1792 to Parke Goodall then present sheriff of the said county in the penalty o£ ^15,896. S. 10. ; “That is to say, the said William Overton Winston and his securities aforesaid in the sum of ten thousand one hundred and fifty eight pounds fifteen shillings and the said Cecilia ’ Anderson and her securities in the sum of five thousand seven hundred and thirty seven pounds, ten ^shillings and ten pence. To the payment whereof well and truly according to our obligation aforesaid, for the use of the Commonwealth of Virginia, We bind ourselves our heirs executors and administrators jointly and severally firmly by these presents.” The condition was, “That whereas the said Parke Goodall as present sheriff of the county aforesaid by virtue of two writs of fieri facias sued out from the General Court of this state, .on the 19th day of June 1792 on behalf of the Commonwealth against the estate of the said William O. Winston, as former sheriff of the said county of Hanover hath seized and taken into his hands certain property belonging to the said William O. Winston to satisfy the commonwealth the sum of one thousand three hundred and thirty pounds fourteen shillings and seven pence halfpenny, for the revenue taxes, the interest and damages thereon and the costs due from the said William O. Winston as late sheriff of the county aforesaid for the year 1787. And also the sum of three thousand six hundred and forty three pounds three shillings and three pence for the revenue taxes, the interest and damages thereon, and the costs due from the said William O. Winston, as late sheriff of the county aforesaid for the year 1788, which property consists, (setting it forth,) and whereas the said Parke Goodall as present sheriff as aforesaid, by virtue of two other writs of fieri facias sued out from the court aforesaid, on the 9th day of July 1792, on behalf of the commonwealth aforesaid against the estate of the said William Anderson as former sheriff of the said county, hath seized and taken into his hands certain property of the estate of the said William Anderson, to satisfy the commonwealth, the sum of two thousand three hundred and sixty three pounds, thirteen shillings and ninepence, for the Revenue Taxes the interest and damages thereon, and the costs due from the said William Anderson as late sheriff *of the county aforesaid for the year 1789. And also the sum of four hundred and forty four pounds nineteen shillings and ten pence for the revenue taxes, the interest and damages thereon and the costs due from the said William Anderson as late sheriff of the county aforesaid for the year 1790, which property consists (setting it forth) and whereas by an act of the commonwealth aforesaid passed on the day of this present month October, the said executions are suspended until the first day of December, which shall be in the year 1793, provided the aforesaid William O. Winston and Cecilia Anderson, admin-istratrix as aforesaid, shall give bond with approved security to the sheriff of the county aforesaid, for the forthcoming of their property (by him taken in execution) on the said first day of December, 1793. Now if the said William O. Winston shall on the said first day of December 1793, deliver at Hanover courthouse unto the said Parke Goodall, as sheriff as aforesaid, the property taken for him as aforesaid, then the above obligation (so far as relates to him) the said William O. Winston and his securities shall be void, otherwise to remain in full force and virtue. And also if the said Cecilia Anderson &c.” in the same manner as in the case of Winston.
    Upon this bond the Auditor gave William O. Winston notice that he should move for judgment against him, John Winston, Joseph Winston, Bickerton Winston, and James Overton 1 ‘on a bond dated the twenty sixth of October 1792, conditioned for the forthcoming of certain property therein mentioned seized and taken by Parke Goodall sheriff of Hanover, by virtue of two fieri facias’s issued from the General Court clerk’s office against your estate.”
    Similar notices were given to Joseph Winston, Bickerton Winston, James Overton and John Winston.
    *The General Court gave judgment, upon the bond and notices aforesaid, against the defendants, who obtained a writ of supersedeas thereto from this Court.
    Warden and Randolph for the plaintiffs
    in the supersedeas. The notice is insufficient, as it does not state that the executions issued at the suit of the commonwealth, or at whose instance the motion was to be made. Neither does it mention the penalty or the sum in the condition, nor the names of all the obligors, or to whom the bond was payable. One forthcoming bond cannot be taken on two or more executions; and therefore a summary judgment could not regularly be entered on it. The penalty of the bond involves uncertainty, for first the whole ¿£15,896. 5. 10. is stated, and then the obligors are bound in separate parcels, and lastly the aggregate sum is taken again. The act of Assembly concerning forthcoming bonds says they shall be payable to the creditor. But here the commonwealth was creditor, and yet the bond is payable to Goodall; and although it is afterwards said to the use of the commonwealth that will not satisfy the law. The day appointed in the condition of the bond for the sale of the property was Sunday; which is not a juridical day; and a performance of the condition would have been illegal.
    Nicholas, Attorney General, contra.
    The notice is good, for all that is required is, that the defendants should know on what bond the motion will be made, and anyr description answering that end is enough. Here the defendants were sufficiently apprized of the bond on which the Auditor intended to move; for, from the various particulars mentioned, it -was impossible for them to mistake. As to the objection that one bond was taken on two executions it has no weight in the present case; because the act of Assembly, passed for that purpose only, expressly makes use of the word bond and not bonds; which seems necessarily *to require that one bond only should be taken. The Auditor, as taking care of this department of the public affairs, was the proper person to give the notice, and not the sheriff. That the property was to be delivered on a Sunday makes no difference; because that was formerly a legal day, and it is held, in 3 Burr. 1601, that a ministerial act may still be done on that day. But what is decisive is, that the act of Assembly declares it may be done upon that day.
    Cur. adv. vult.
    
      
      Tlie principal case is cited and approved in Winslow v. Com., 2 H. & M. 464. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   ROANE), Judge.

The bond, on which the motion is founded, is to be considered as one of two several obligations entered into on the part of the two several sheriffs and their respective securities, although consolidated in the same instrument. This construction arises not only from its being stated in the obligation that Winston and his securities are bound in the sum of .£10,158. IS., and Cecilia Anderson and her securities in the sum of £5,737. 10. 10., but also from the terms therein used, that the obligors are bound for the payment “According to our obligation aforesaid. ’ ’ What is mentioned of the amount of the aggregate sum does not vary the construction, and is only as a memorandum of the amount of both bonds taken together.

Considering this instrument however as containing either one bond, or two several bonds, a question arises, whether as it is subscribed by all the obligors they are not all liable for the whole amount? And that they are so liable derives some colour from its being stated in the obligation that the obligors are bound jointly and severally; but this construction is done away by that part of the condition which states that on a delivery by each set of obligors, the bond is void as to them, which would not be the case if each set of obligors were bound for the other.

*The words jointly and severally therefore in the obligation are to be taken reddenda singula singulis, to extend to each set of obligors and to each several obligation, and not to all the obligors with reference to both obligations.

If this be a separate bond, though contained in the same instrument, with another bond, most of the objections to the bond and to the notice will fall to the ground.

Indeed the bond seems taken agreeably to the act of Assembly which has been cited relating thereto, and the notice is sufficiently particular and descriptive to warn the defendant of what he is to answer. The Auditor having signed the notice, its being dated at the Auditor’s office, and stating that instructions will be given the Attorney General, are circumstances clearly indicative of its being a public bond which was to be moved upon : And when in addition to this, it is recollected that the notice further states, all the obligors except a deceased one; as well as, the date of the bond; its being a bond for the forthcoming of property; the particular sheriff by whom taken; and that the property therein mentioned, was laken in execution by virtue of two writs of fieri facias issued from the Clerk’s office of the General Court, there is a reasonable degree of certainty, as to the very bond, which was to be moved upon: And I believe that very many judgments have been affirmed in this court, upon notices not more particular. I am therefore for affirming the judgment.

CARRINGTON, Judge.

As the counsel for the plaintiffs in the supersedeas have insisted on their exceptions with great earnestness, I shall consider them in the order in which they were made, and give an answer to each of them.

The first exception is, that the notice does not state that the motion would be made at the instance of the commonwealth, or designate the parties *to the bond, but merely that a motion would be made on a bond payable to Parke Goodall.

The date of the bond however is mentioned, and that the condition was for the delivery of property taken by Parke Goodall, sheriff of Hanover, by virtue of two writs of fieri facias issued, from the office of the General Court, against the estate of the defendant Winston; which was sufficiently descriptive of the bond: And if the defendants had given any other bond of the same date, under the like writs, so as to render it uncertain which was meant they might have shewn it. But, as none such is suggested, the fair presumption is, that none such existed.

The next objection is, that neither the penalty or the sum due is mentioned.

The answer to the last objection is an answer to this also.

The third objection is, that all the obligors are not mentioned, nor the person, to whom the bond is payable, sufficiently described.

But as the defendants were all obligors and the motion not intended to be made against any other ; as too the bond was joint and several; and Parke Goodall the obligee expressly named, there was no occasion to be more particular, as those circumstances gave the defendants full notice of the bond on which the motion would be made.

The fourth exception is, that one bond was taken on two executions.

This indeed is not common; but it does not follow from thence that the bond is void. No disadvantage could result to Winston from it, as he was not thereby subjected to more than he owed himself; for care is taken to prevent that. Besides it seems agreeable to the directions of the act of Assembly; which rather points at one bond only.

*The fifth objection is, that two separate debtors are included in the same bond.

This is nearly the same idea with that in the last exception; and may receive the same answer. For the condition designates the debt of each; and provides for the discharge of each. So that neither is in danger of sustaining any damage from the other.

The sixth error assigned is, that the bond should have been made payable to the creditor.

But that was not necessary in this case; because the act of Assembly directed that it should be taken to the sheriff for the use of the commonwealth.

The last exception is, that the day on which the property was to be delivered was Sunday.

But this surely could be no objection in this case; because the act of Assembly had expressly directed it; and therefore if it be true that it was contrary to law in common cases, it clearly was not so in this. For the sheriff stood justified by the act.

Upon the whole the exceptions taken by the plaintiffs counsel seem to me untenable: and therefore I am for affirming the judgment.

LYONS, Judge. Concurred.

•Judgment Affirmed.  