
    Wilson v. Stevenson’s Administrators.
    [April Term, 1800.]
    Forthcoming Bond — Two Obligors — Joint Notice. Quere, If there be a joint notice given on a forthcoming bond, to both obligors the plaintiff can take judgment against one of them only?
    Same — Forfeiture—Issuance of Injunction — Penalty., —If the forthcoming bond be not forfeited at the time when the injunction issues the penalty is saved; but it is otherwise, if the bond be forfeited before the injunction issues.
    Stevenson’s administrator gave the following notice on a forthcoming bond, “Dumfries October 9 1797, Gentlemen, Please take notice that on the fifth day of the next District Court to be held at Dum-fries, or so soon thereafter as counsel can be heard, a motion will be made for judgment on a bond granted by Richard Graham (now deceased) and Cumberland Wilson to John Stevenson administrator of William Stevenson, dated the seventeenth day of December seventeen hundred, and ninety five, for the sum of eleven hundred and two pounds, eleven shillings and four pence, conditioned for the delivery at the courthouse of Dumfries on the fifteenth day of February 1796, of eighteen slaves given up to George Lane deputy sheriff of Prince William county in lieu of the body of the said Richard Graham, taken by said George Lane deputy sheriff by virtue of a capias ad satisfaciendum issued from the said District Court on a judgment obtained there at the suit of the said John Stevenson as administrator of the said William Stevenson for the non performance of debt and costs, balance then due, amounting to five hundred and fifty one pounds five shillings and eight *pence. James Smith attorney in fact of John Stevenson administrator of William Stevenson deceased. To Mr. Cumberland Wilson and George Graham administrator or executor of Richard Graham deceased.” This notice was served upon Graham and Wilson both.
    After reciting the said notice, and the appearance of Wilson and Graham by their attorney, with a continuance of the cause from day to day for several days during the term, the record proceeds thus,
    “John Stevenson administrator of William Stevenson, Plaintiff, v. Cumberland Wilson & George Graham administrator or executor of Richard Graham Defendants.
    “Upon a motion for judgment on a bond executed by Richard Graham deceased and Cumberland Wilson to the plaintiff, for the forthcoming' of property given up by the said Richard Graham in lieu of his body taken by virtue of an execution issued from this Court, at the suit of the said plaintiff.
    This day came the parties by their attorneys and their arguments having been fully heard and mature deliberation thereon had, it is considered by the Court that the plaintiff recover against the defendant Cumberland Wilson eleven hundred and two pounds eleven shillings and four pence the debt in the said bond mentioned &c. And the plaintiff has leave to discontinue his motion against the other defendant.”
    The bond is joint and several. On the execution is endorsed “Executed and eighteen slaves given up in lieu of his body and injoined in the High Court of Chancery before the day of sale .mentioned in the within bond for their delivery.”
    There is a copy of the injunction bond copied into the record.
    “Wilson appealed, from the judgment of the District Court, to this Court. .
    ■Wickham for the appellant.
    The notice is that the plaintifE will .move for a joint judgment against the surviving. obligor and the representatives of the decedent, which could not be .rendered; but, if it could, the plaintiff has only taken judgment against the surviving obligor, and discontinued against the administrator. Which is erroneous; because the judgment does not pursue the notice. Such a declaration would have been bad; .and a notice,, which is -in the nature of-.a declaration, stands upon the same ground. So that what is requisite in the one, is necessary in the other also; and it is right it should be so, or otherwise the defendant does not know how to defend himself.
    But, upon the merits, the plaintiff was not entitled to judgment; because the injunction, having issued prior to the day of sale, discharged the obligors from performing the conditions of the forthcoming bond. Eor, if the sheriff had had the property in custody, he must have discharged it; and the forthcoming bond was but a substitution for the property. Therefore if the property was liable to be restored, the bond ought to have been given up. For the law does not require a vain thing to be done; that is to say, that the obligors should deliver the property and take up their bond, in order that the sheriff might return the property the next moment. It is like the case of one who is special bail for another, and the principal is made a peer or enlists as a soldier; in which cases, the court will order an exoneretur to be entered at once, without requiring that the body should be first rendered; because it would be discharged immediately, if it were. This, which is clear upon principle, receives additional weight from the act of Assembly, directing the money made on the execution, to be restored to the defendant at law, upon the emanation of the injunc-tiou; which “looks as if the Legislature meant to prescribe a general principle, applicable to all stages of the execution; for there can be no reason, why the money should be restored, and the property not.
    Botts and Call contra.
    The notice is sufficient. These proceedings are not like those at common law; and therefore do not require the same precision. It is sufficient, if the defendant is substantially informed of the nature of the motion; which is as effectually done by a joint 'as a several notice; because he is equally as well informed, as to the merits of the claim, by the one as the other. The case does not resemble that of a joint declaration, upon a several contract, at common law. For there the plaintiff fails in the proof of the contract, as he declares on one contract, and proves another; so that the defendant could not be prepared to meet the testimony. But it is still the same forthcoming bond, whether the notice be joint or several ; and therefore there is no failure of the evidence or mistake as to the nature of the claim. Thus then it appears that even if a joint judgment could have been taken, the notice was insufficient. But the argument is a fortiori where a joint judgment could not be taken ; because there the notice must operate severally or not at all. Therefore the entry of the discontinuance, as to the administrator, cannot prejudice the cause; for it was a work of supererogation, and no more than the law would have done without. For as the notice operated severally, and distinct judgments were to be taken, that part of it which related to Graham’s representatives was sur-plusage merely; and therefore the entry of a discontinuance as to that has no effect one way or the other. Besides when the plaintiff followed up his notice only as to one of the defendants, he necessarily waived it is to the other.
    The forthcoming bond was a discharge of the judgment, 1 Wash. 92; and therefore absolute compliance with the conditions of the bond was “requisite. It is generally true, that an injunction leaves things as they were; that is to say, the plaintiff for sheriff cannot proceed to a sale, but still it is the duty of the obligor to perform his condition; because it was inserted for his benefit; and he cannot save his penalty without fulfilling it. But, it is a clear principle of law, that a man cannot excuse himself, from the performance of a condition, by his own act, Yelv. 207; and as the injunction is of the obligors own seeking, he ought not to be received to object it against the compliance with his bond. Which argument, in the present case, is just as applicable to the security, as to the principal; for the same person who is security to the injunction bond, is security to the forthcoming bond, likewise. So that, having enabled the principal to sue the injunction, he ought no more to be allowed to object that circumstance, than the principal himself.
    Cur. adv. vult.
    
      
      Forthcoming Bond — Forfeiture—Issuance of Injunc° tion — Penalty.—In Hull v. Bloss. 37 W. Va. 656, the court said: “In Wilson v. Stevenson, 2 Call 213, the court decided. ‘That if the forthcoming bond be not forfeited, at the time when the injunction issues, the penalty is saved; because the compliance with the condition would be useless, as the property must be restored immediately that it was delivered to the sheriff; and therefore the law would dispense with it. But, if the forthcoming bond is forfeited before the injunction issues, the injunction does not discharge it, but the obligors continue liable still.’ The same effect was given to a supersedeas-bond in Rucker v. Harrison, 6 Munf. 181.” The principal case is cited in Steele v. Boyd, 6 Leigh 558; Hudgins v. Marchant, 28 Gratt. 183.
      It was held in Hull v. Bloss, 27 W. Va. 654, that where a forthcoming bond is given for the delivery of property levied upon by virtue of an execution, the failure to deliver such property on the day of sale will not cause a forfeiture of such bond, if before that day an injunction is obtained and is then in force against the enforcement of the execution.
    
    
      
       Same — Same—Supersedeas to Judgment before Day oi Sale. — It was held in Rucker v. Harrison, 6 Munf. 181, that if a supersedeas to a judgment (execution being levied and a forthcoming bond taken), be levied before the day of sale, and thereupon the property be not forthcoming, the penalty of the bond is saved, and no motion lies upon it.
    
   LYONS, Judge.

Delivered the resolution of the court to the following effect. That, if the forthcoming bond be not forfeited, at the time, when the injunction issues, the penalty is saved; because the compliance with the condition would be useless, as the property must be restored immediately, that it was delivered to the sheriff; and therefore the law would dispense with it. But, if the forthcoming bond is forfeited before the injunction issues, the injunction does not discharge it, but the obligors continue liable still. That as the court were clear upon this point, they left that relative to the notice undecided.

Judgment of the District Court reversed.  