
    *Ayres v. Lewellin.
    March, 1832.
    (Absent Brooke, J.).
    Sureties — Summary Motion against Principal — Record —How Notice of Motion Hade Part of — in th e case of a summary motion by surety against principal, to recover money paid by tbe surety, under the statute 1 Rev. Code. cb. 116, if the defendant appear, and judgment be rendered on a hearing of the parties, the notice of the motion is not a part of the record, unless it be made so by a bill of exceptions to the opinion of the court.
    Same — payment of Several Sums-.Right to Several Motions. — A surety having paid live several sums of money for his principal may maintain five several motions, and recover several judgments, for the debts, and for the costs of each motion
    Several Judgments — One Supersedeas - Regularity. - One supersedeas to five judgments, though between the same parties, and upon claims of the like nature and though the question be the same in all the cases, is Irregular, and ought to be quashed as improvhlently allowed.
    Same — Same—Reversal—Costs. -A. recovers five judgments for debtagainst If. in the county court; at the instance of I,. the circuit court awards one supersedeas to the live judgments, and reverses them by a single judgment; to this judgment the court of appeals, at the instance of A. awards a supersedeas, reverses the judgment of the circuit court, and orders the supersedeas awarded by the circuit, court to be quashed as improvidently allowed: Held, A. is entitled to his costs in the circuit court as well as in this court, but not to damages.
    Ayres recovered five several judgments against Lewellin, in the county court of Bedford. The record sent from the county court consisted, in the first place, of transcripts of the five judgments: the entry of the first of which was in the following words — “J. Ayres, plaintiff, against G. Lewellin, defendant, — Upon a motion for money paid as surety — This day came the parties by their attorneys; and, on hearing, it is considered by the court, that the plaintiff recover against the defendant, the sum of 100 dollars, with interest from the 13th April 1817 till paid, also 8 dollars 33 cents, and his costs by him about his motion in his behalf expended, &c.” The caption of each of the other four judgments, was in these words — “Same plaintiff against same defendant — upon the same motion;” and then followed the several entries of these four judgments; which were, each and all, of the same tenor with that of the first judgment above recited, being each for the same sums of *100 dollars and 8 dollars 33 cents, and the costs of the motion, with this difference only, that interest was given on the sums of 100 dollars severally adjudged iri these four cases, from the 13th April 1813, 1819, 1820 and 1821, respectively. And then the record of the county court proceeded thus: “The following notice was filed on the motion for the foregoing judgments, viz. Mr. G. Lewellin; Take notice, that I shall, by my attorney, move the court of Bedford county, on the 4th Monday in this present month, for judgments and award of executions against you in five cases wherein I have been compelled to pay Stephen Martin as your surety, (signed) J. Ayres, (dated) December 9, 1823.” Upon this notice was indorsed an affidavit of due service thereof on Lewellin. And this was the whole of the record of the proceedings of the county court.
    Upon the petition of Lewellin, the circuit court of Bedford awarded one supersedeas to the five judgments.
    The circuit court held, that the county court erred in rendering five several judgments upon one notice; and in giving five sets of costs upon one motion, whereas it should have rendered but one judgment for the several debts claimed, and given but one set of costs: therefore, the judgments of the county court were reversed, and one judgment rendered for Ayres against Lewellin, for the several debts, with interest on each respectively, and the costs of his motion in the county court; that is, for only one set of costs.
    And then Ayres applied to this court, for a supersedeas to the judgment of the circuit court, which was allowed.
    Johnson for the plaintiff in error,
    said, that, though the clerk had appended a copy of the notice upon which Ayres made his motions for the judgments in the county court, to the transcript of the entries of the judgments, and certified, that that was the notice on which the motion for the judgments was made; yet this notice was no part of the record. Ror Lewellin having appeared to the motions, and the judgments *having been rendered upon a hearing of both parties, without any objection taken in respect of the notice, it was wholly immaterial what was the notice, or whether there was any notice. Neither could the notice have been made part of the record, but by some defence founded on it, and by bill of exceptions to the opinion of the court touching such de-fence, and thus making the notice part of the record. Then, the record of the proceedings in the county court presented, simply, a transcript of five several judgments rendered for five several sums of money, paid by Ayres as surety for Lewel-lin. And, as Ayres might have maintained five several actions of assumpsit for the five several debts; so he might well have maintained, as he did, five several motions to recover the several debts, in a summary way, under the statute, 1 Rev. Code, ch. 116, $ 1, p. 460. It was true, that after the caption of the first judgment stating the names of the parties, plaintiff and defendant, and that it was “upon a motion for money paid as surety,” the caption of the other four judgments stated that they were “upon the same motion;” but the language of the caption was only the clerical description of the case, and was not, like the judicial language of the court, to be construed strictly; and the captions to the four judgments might well be understood as only describing the nature of the motions to be the same with the first, namely, motions for money paid as surety, not as importing that there was only a single motion made for a single judgment for all the debts demanded; and seeing that, in fact, there were five several judgments for the several debts, as upon five several motions, and judgments for the costs of each motion severally, the caption must be so understood. [Tucker, P. The cause was brought up to the circuit court, by one supersedeas to all the five judgments; was not that irregular?] — Johnson said, it certainly was; and that was another palpable error in the proceedings of the circuit court.
    *Leigh, for the defendant in error,
    admitted, that a party having paid several sums as surety for another, might maintain several motions for the several debts; but he might also maintain one motion for them all; and if, in fact, he made but one motion, he was entitled to only one judgment for all the debts, and the costs of that single motion ; as, if he had counted in one action of assumpsit for several debts so contracted to him, he could only have had a single judgment, and the costs of his action. Here, there was but one notice, and but a single motion. He said, the notice was necessarily part of the record. Por the notice of a summary motion of this kind, given by the statute, served the double purpose of process and declaration : it' might be waived by consent: it might be admitted by the defendant: but the defendant’s appearance was not a waiver or admission oi due notice, any more than the defendant’s appearance to an action, dispensed with a declaration. It was the notice that ascertained the nature of the claim; it was the notice that gave the court the summary jurisdiction. The first section of the statute giving this summary remedy for sureties (cited by Mr. Johnson) gave the motion ; but the Sth section provided, that no judgment shall he obtained by such motion, unless the party against whom the same is prayed, shall have ten days previous notice thereof. Therefore, without a notice of the motion — actual notice given, or notice distinctly waived, or distinctly admitted, by the party entitled to it; without shewing on the record, in one or other of those modes, the nature of the claim; there could be nothing to warrant the exercise of this summary jurisdiction. It be-hoved the plaintiff to maintain that the notice was part of the record. And if it was, there was but one notice. But suppose the notice not jiart of the record, and suppose it unnecessary that it should be so; there was but one motion. The caption cffi the first judgment shewed, that that was rendered upon a motion for money paid as surety; the captions of the other four shewed, that they were rendered upon the same motion. The circuit court thought, that “the *same motion” meant one and the same, which surely was the plain, ordinary import of the phrase: Mr. Johnson insisted, that “the same motion” meant the like motion, namely, for money paid as surety. This was a very violent construction. ' Nullum simile est idem, said the proverb; e con-verso, nullum idem est simile tantum. It never occurred to the judge of the circuit court, that idem and simile could not be regarded as convertible. If the captions were part of the record, then, they sufficiently shewed that there was but one motion ; on which there were five judgments, and five sets of costs of that one motion awarded. But take it, that these captions were only clerical language, not the judicial language of the court; that they were only the clerk’s description of the cases to which the entries of the judgments applied (and this, he said, was really the true character and function of the captions; for, when a record is made out, the caption of the entry of the judgment on the order book, need not be, and never was, inserted): then, the caption of the first judgment, as well as the captions of the four others, was only a clerical description of the case, in order to shew to what case the judgment applied; and the court could pay no more regard to the caption of the first judgment, than to the captions of the others. And, if this were so; if the caption of the first judgment was to be disregarded, as the mere language of the clerk; how could it be ascertained, that here was a motion, or motions, for money paid by Ayres as surety for Lewellin? and how could the jurisdiction of the county court to render judgment in this summary way, be sustained? Whether it was regular to award one super-sedeas to the five judgments or not, depended, obviously, on the question, whether here were five several judgments upon five several motions, or five several judgments on one and the same motion? Suppose the plaintiff had, in one and the same action of assumpsit, counted in his declaration upon the five several debts due him, and the court, instead of rendering one judgment for all the sums, and for the costs of the single action, had rendered five several *judgments for the five several sums, and for the costs of the action five times: there could be no doubt, that one supersedeas would have lain, to correct the error. So here, if there was but one motion for these five several debts, and one set of costs only incurred on that motion ; a single supersedeas was the proper process to correct the error of severing the judgments into five parts, when it should have been one and intire, and giving five times the costs actually incurred.
    
      
       Pleading — Notice of Motion — Records,—In Skipwith v. Mutual Assurance Society, 10 Leigh 505, Tucker, P., says from 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. Levellin. 3 Leigh 609. The notice here demands certain quotas, due "as per declarations signed, sealed, etc." 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.
    
    
      
       Same — Notice of Suit — Waiver.—The principal case is c’ted in foot-note to Muire v. Falconer, 10 Gratt. 12; Ballard v. Whitlock, 18 Gratt. 242 (see also foot-note).
      
    
    
      
       Appeals. — See monographic note on "Appeal and .Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
       Costs. — See monographic note on "Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   TUCKER, P.

In this case, I am of opinion, that according to general principles and the spirit of our decisions, the notice is no part of the record. “The parties came by their attorneys:” the defendant appeared, and having made no objection to the proceeding for want of notice, and having filed no bill of exceptions, we must take it, that there was a due notice proved in each of these several motions. The acts of the court must be presumed to have been right, unless the party has placed upon the record the evidence of its errors. There are several cases that bear on the point: Glascock’s adm’rx v. Dawson, 1 Munf. 605; Bronaughs v. Freeman’s ex’or, 2 Munf. 266; Beale v. Willson, 4 Munf. 380; Burke, adm’r v. Levy’s ex’ors, 1 Rand. 1; Couch v. Miller, 2 Leigh, 545. It would be strange, indeed, if the certificate of the clerk of a county court, where the minutes only are signed by the court, should be taken as ascertaining what papers were read upon a trial, instead of the court itself being called upon to ascertain them by the solemnity of a bill of exceptions. It is an anomaly which cannot be admitted, since the court would find it difficult indeed, to pronounce how far the practice should be extended, and where to fix its limits.

If the notice be out of the case, then these five judgments of the county court are utterly independent of each other; and here we have a single supersedeas to all of them. This cannot be right. The super-sedeas, where it has the character of original process, as it has here, partakes of the ^character of a writ of error: and a writ of error, it is presumed, will not lie to several distinct and separate judgments. Such a practice would lead to great difficulty and embarrassment. The sujiersedeas, therefore, was improvidently awarded by the circuit court: and if so, this court, instead of affirming the judgments of the county court, must, in proceeding to render such judgment as the circuit court ought to have given, dismiss the super-sedeas, as improvidently awarded.

A party defendant who is harrassed by .a variety of actions, which might be properly united in one suit, is not without a remedy. He may move to consolidate them; and if that motion be overruled, the error may doubtless be corrected by a superiour tribunal ; in what manner, it is not necessary for me to say, except that a supersedeas is not the proper remedy, where it does not appear from the record, that such a motion was made or rule applied for. In this case, no such step was taken, and it was not therefore competent to the circuit court to look into the matter. In every point of view, I am of opinion, that the supersedeas was improvidently awarded.

The other judges concurred.

After this opinion had been announced, Johnson insisted, that Ayres, the plaintiff in error here, was entitled to judgment for his costs in the circuit court, as well as in this court; and also to damages for retarding the execution of the judgments of the county court, now finally affirmed by this court, under the statutes, 1 Rev. Code, ch. 64, § 11, ch. 69, § 61, pp. 192, 240.

The judgment of the court was, that the judgment of the circuit court be reversed, and that the defendant should pay the plaintiff in error, his costs expended in prosecuting his supersedeas here: and this court, proceeding to render such judgment as the circuit court ought to have rendered, *ordered, that the super-sedeas awarded byr the circuit court to the judgment of the county court, at the instance of Lewellin, should be quashed, as having been improvidently awarded, and that he should pay Ayres, the plaintiff in error here, his costs about his defence in the circuit court expended. But the court gave no damages.

TUCKER, P.,

dissented from so much of the judgment as gave Ayres his costs expended in the circuit court. He said— I have examined a variety of cases in this court, in order to ascertain what has been the practice; and I am satisfied, that where-ever an appeal is dismissed as improvidently allowed, or a supersedeas quashed as improvidently awarded, the court has always refused to give costs to the party prevailing.

The first case was that of Hepburn v. Lewis, 2 Call, 497, in which the judgment of the district court was for less than 100 dollars; and the appeal was dismissed as improvidently^ allowed, but there was no judgment costs.

In Clarke v. Conn, 1 Munf. 160, the appeal from the court of chancery was dismissed after it had been depending five years, on the ground that it was improvidently granted by the chancellor, after his power over the case had ceased; and no costs allowed.

In Lewis v. Long, 3 Munf. 136, the plaintiff sued on a single bill for more than 100 dollars. The jury found the debt to be discharged by less than that sum. The defendant obtained a supersedeas, and the judgment was reversed; from which the plaintiff appealed. The appeal was dismissed after a laborious argument by bar and bench; but no costs were allowed.

In Hutchison v. Kellam and Lymbrick v. Seldon, Id. 202, it was after great argument decided, that the jurisdiction of the court of appeals did not attach where the damages were less than 100 dollars, though the right of freehold incidentally came in question; whereupon the appeals were dismissed, but no costs were given.

*In Skipwith v. Young, 5 Munf. 276, the like principle was decided, and the appeal dismissed as improvidently allowed, but without costs.

In Rootes v. Holliday, 4 Munf. 323, the appeal allowed by the chancery court upon an appeal bond executed by a surety' only, was dismissed, as improvidently allowed, but without costs.

In Miller v. Blannerhassett, 5 Munf. 197, there was judgment in the county court against Blannerhasset. A writ of super-sedeas was awarded by the circuit court of Wood county'; whereupon the bond for prosecuting it was executed by a surety, but not by Blannerhassett himself. The circuit court reversed the judgment, and the plaintiff appealed to this court. After argument, it was decided, that the judgment of the circuit court was erroneous, because that court had no cognizance of the canse, thé supersedeas having improvidently issued for the cause aforesaid. Reversed, and supersedeas quashed, but without costs.

In Thomson v. Evans, 6 Munf. 397, the appeal was allowed in court, upon the appellant’s entering into bond &c. in the clerk’s office within thirty days: appeal dismissed, but without costs.

In Ashby v. Kiger, 3 Rand. 165, an appeal from a decree for costs, was dismissed, but without costs.

In all the foregoing cases, the principle was invariably adhered to, of refusing costs whei'e the process of supersedeas was quashed, or the appeal dismissed, on the ground that they were improvidently allowed. I have not depended upon the printed reports of the cases in examining this matter: the entries themselves have been carefully examined.

I can perceive no essential difference in principle, between these cases and that under consideration. That of Miller v. Blannerhassett is very strongly analogous. A case in point is not to be excepted; for, as the notice is no part of the record, the case appears to us as a single super-sedeas to five judgments. This, I am sure, was not designed by the judge who awarded the supersedeas, and who ^probably took the notice to be part of the record. Had it been made so by an exception, the question might, perhaps, have been decided differently.

X am therefore of opinion, that on quashing the supersedeas to the judgment of the county court, the costs of that supersedeas should not be given.  