
    Mackey, Ex’r v. Fuqua and Others.
    [Monday, April 27th, 1801.]
    Bond with Condition — Suit upon — Evidence—Case at Bar. — If in a suit upon a bond with condition, that if the plaintiffs shall he cast in two suits then depending-, the obligor will pay, &c. it appears that the plaintiffs had instituted suits upon administration bonds, this evidence will maintain the declaration.
    Two Issues — Jury Sworn to . Try Issue — Effect.—If tliere be two issues, and the jury are sworn to try the issue, it is no error.
    Thomas Mackey executor of Samuel Fuqua, brought debt in the County Court of Charlotte, against Joseph Fuqua, William Fuqua and Richard Booker, and declared upon a bond given by them to the plaintiff, with a condition thereto, which stated, “that whereas the above bound Joseph Fuqua, jun. hath instituted an action of debt in the District Court of New London, against the said Thomas Mackey executor of Samuel Fuqua deceased, and the said William Fuqua hath also instituted another action of debt in said Court, against the said Thomas Mackey executor as aforesaid, and the said Joseph Fuqua hath instituted another action of debt in said Court against Moses Fuqua in the same case, and the said Thomas Mackey executor of Samuel Fuqua deceased, that this day advanced and delivered unto the said Joseph Fuqua, junior, and William Fuqua, the sum of two hundred and eighteen pounds two shillings and two pence one farthing, current money of Virginia. Now if the said Joseph Fuqua, junior, and William Fuqua, shall recover in the said suits, they shall credit the said judgment or judgments by the amount of the said money, advanced with interest thereon from this date, provided they recover so great *a sum as the half thereof, to be equal to the amount advanced, the application of the said advanced money with interest thereon from this date, to go in discount of half the amount of said judgment or judgments, and the same to be a full discharge for the said Thomas Mackey executor as aforesaid, against the said judgment or judgments, but should the said judgment or judgments not amount to double the sum advanced, the balance of the said advanced money to be re-paid by the said Joseph Fuqua, junior, William Fuqua and Richard M. Booker, or either of them, to the said Thomas Mackey executor as aforesaid, on demand. And moreover, in case the said Joseph Fuqua, junior, and William Fuqua shall be cast in the said suits, they shall, as soon as the said suits are determined, pay to the said Thomas Mackey executor of Samuel Fuqua deceased, the aforesaid sum of two hundred and eighteen pounds two shillings and two pence farthing, with interest from the date.” The declaration averred that the said Joseph Fuqua, junior, and William Fuqua, junior, were cast in the above mentioned suits, on the day of in the year 1794, at which time the aforesaid suits were finally determined by the judgment of the District Court of New London, in favour of the said Thomas Mackey executor of Samuel Fuqua deceased; whereby an action hath accrued, &c. Pleas, payment and conditions performed — Issue.
    On the trial of the cause, the defendants filed a bill of exceptions to the Court’s opinion, which stated, that the plaintiff offered in evidence, the copies of four non-suits in the District Court of New London, two of which were in suits between the Justices of Charlotte county, for the benefit of William Fuqua, and two, between the same Justices for the benefit of Joseph Fuqua plaintiffs, and Thomas Mackey executor, &c. of Samuel Fuqua deceased, defendant, in debt. That the plaintiff likewise offered in evidence the bond *'aforesaid. That the defendants objected to the evidence; but the objection was overruled, and the said copies of the non-suits, and the said bonds permitted to go in evidence to the jury.
    Verdict and judgment, for the plaintiff;
    to which judgment the defendants obtained a writ of supersedeas from the District Court, upon a petition which assigned for error; 1. That the damages laid in the declaration, did not agree with those in the writ, and exceeded the debt. 2. That there was a variance between the declaration and bond, in using the word they instead of the. 3. That although there were two issues in the cause, yet the record states that the jury were charged to try the issue. 4. That it did not appear by the said copies of the non-suits, that the defendant in the supersedeas had instituted such suits, or that he had failed therein, as the Justices of Charlotte were the plaintiffs, and ordered to pay the costs, and not the defendant in the supersedeas. 5. That the jury have assessed damages to the plaintiff’s testator, and the Court has rendered judgment for the plaintiff.
    The District Court reversed the judgment of the County Court, because the suits in New London District Court were not finally determined on the merits, when the present suit was commenced. From which judgment of reversal, the plaintiff appealed to this Court.
    Randolph, for the appellee.
    There are two issues in the cause; one, conditions performed, the other payment: and the last has not been tried. Besides, the copies of the records do not shew that those were the suits mentioned in the condition of the bond; and the defect ought to have been supplied by other evidence. But as this has not been done, there is variance between the evidence offered and the declaration. At least it does not appear that the suits are the same with those referred *to in the condition, and stated in the declaration.
    Call, contra.
    The language in the record, the jury were charged upon the issue instead of the issues, is a misprision of the Clerk; and the jury, in finding that the defendants have not performed the conditions of the bond, have in effect found the non-payment of the debt. Besides, the verdict, which is recited in hasc verba in another part of the record,, is, that the jury find for the plaintiff, and assess his damages; and not, that the defendants have not performed the conditions. This makes the observation relative to the misprision, more manifest. As to the other point, it was matter of demurrer to the evidence, but not a ground of exception. Upon the face of the writs, it appeared that two of the suits were for the benefit of William Fuqua, and "two for the benefit of Joseph Fuqua: and that the names of the Justices was matter of form.
    Cúr. adv. vult.
    
      
       Two Issues — Jury Sworn to Try Issue — Effect.— where there are two issues joined, in an action on 
        two several pleas, and the jury is sworn to try the issue, but they find a verdict responsive to both issues, the misprision of charging" the jury to try the issue is immaterial. Baylor v. B. & O. R. Co., 9 W. Va. 281, citing principal case and White v. Clay, 7 Leigh 68, which case cites the principal case for the same proposition at page 78. See also, citing the principal case. Sweeney v. Baker, 13 W. Va. 216; Ray v. Clemens, 6 Leigh 603.
    
   LYONS, Judg.e.

Delivered the resolution of the Court, that the judgment .of the District Court was erroneous, and that there was no error in the judgment of the County Court. Consequently, that the judgment of the District Courf should be reversed, and that of the County Court affirmed.  