
    Timothy Roger and Chester Hubbard, plaintiffs below, vs. Thomas Davis and Nicholas Baylies, defendants below.
    
      IN ERROR.
    
    A judgment unsatisfied, taken on a judgment rendered upon aft appeal, does not. satisfy the recognizance taken for the prosecution of such appeal; but the recognizors aro still liable for all costs upon the appeal, and ao much of the damages as have been lost in consequence of the appeal.
    A delay of the party appellee, to collect a judgment recovered on appeal, though urged by the surety to use diligence in collecting the judgment of the principal, does not discharge such surety from his liability on the recognizance enterad into for the prosecution of the appeal.
    In declaring on a judgment rendered by a justice, a description of the action, and an averment that the magistrate was a justice of the peace, is a sufficient averment that the justice had jurisdiction of the action.
    By our statute, justice’s couits are courts of record. They do not send up their record, on appeal, but certified copies thereof, and of the recognizances by them taken. And a profert of such copies of record is a sufficient averment, in a declaration upon such a recognizance, that it is of record, and that it was transmitted to the court to which the appeal was taken.
    THE action below was an action of debt, upon a recognizance entered into by the defendants in the sum of $100, in due form of law, for the prosecution. of an appeal to the county court, from the judgment of a justice of the peace in favour of the plaintiffs against the said Davis. The declaration alleged that the judgment of the justice was affirmed in the county court, &fc. That Davis had sufficient personal property at the time of the appeal, but had none when final judgment was rendered by said county court.
    This action having been brought by appeal from a justice of the peace to the county court, the defence in the county court was presented in three several pleas in bar.
    The first stated that the plaintiffs had never taken out execution upon the said judgment against said Davis, in said county court, but had sued said judgment, and recovered a judgment upon it, with costs, and bad taken out execution upon said last judgment, and caused said Davis to be committed to prison on the same ; and draws the inference, as of the law, that thereby the said Davis became discharged from the said first judgment of said county court, and from said recognizance.
    The second plea, stated that the defendants entered into said recognizance, the said Davis as principal, and the said Baylies as surety, and that the plaintiffs recovered the said judgment in said county court; yet, that at that time, and for more than sixty days then next after, the said Davis owned and possessed divers goods and chattels, sufficient to satisfy said judgment, and which were liable to be taken to satisfy the same ; and there was nothing to impede their being taken, &c. and it was their duty to use diligence, without this, that said Davis was poor, as alleged in the said declaration, &c. Yet they neglected their duty, and suffered Davis to dispose of the same goods and chattels for other purposes; whereby said Baylies, who was bail as aforesaid, became discharged, &c. the said Davis having become poor, &c.
    
      The third plea, after acknowledging, as before, the entering into the recognizance and the rendition of the said first judgment of said county court, proceeded to aver, that while the plaintiffs might have had execution on the same, the said Baylies requested the plaintiffs to take their execution forthwith, and deliver the same to an officer for collection, to enforce collection of said Davis, and thereby save said Baylies harmless, who was bail as aforesaid; which the plaintiffs neglected and refused to do. But, at a subsequent period, the plaintiffs, without the knowledge of said Baylies, brought their action of debt upon said judgment, against the said Davis, and recovered a new judgment, and caused said Davis to be committed to prison, as in said first plea is mentioned, where he now remains, and is poor, and wholly unable to pay, &fc.
    
    
      To these three pleas in bar there was a general demurrer, and joinder in demurrer.
    The judgment of the county court sustained the defendant’s pleas in bar; whereupon this writ of error was brought, and the following errors assigned.
    1. That the county court erred in adjudging the defendant’s pleas in bar sufficient to bar the plaintiff’s action. ■
    2. The general error.
    
    
      Upham, for the plaintiffs in error. 1st. Are the facts set forth in the first plea in bar sufficient to bar the plaintiffs’ action ?
    A plea in bar should show that the plaintiff never had any cause of action; or, admitting that he had, insist that it is determined by some subsequent matter, [l Chit. P. 460.] This plea admits the cause of action, and attempts to avoid it by subsequent matter, to wit, the suit upon the judgment. This suit, we apprehend, was no discharge of the former judgment, or of the recognizance. A recognizance is an obligation of record, which a man enters into before some court of record, or magistrate duly authorized; with condition to do some particular act. [2 Tiddp. 983.-2 Black. Com. 465.] The condition of this recognizance was, that the said Davis should prosecute his said appeal to effect, and answer and pay all intervening damages, occasioned to the said plaintiffs, by their being delayed, with additional costs, in case the said judgment should be affirmed. The plea admits that Davis did fail to prosecute his said appeal to effect, and that he has not paid the intervening damages, or additional cost. The only obstacle alleged in the plea against the plaintiffs’ recovery is, the suit upon the judgment. This we conceive amounts to no bar.
    In Erhy vs. Erlry, 1 Salk. 80, it was declared by the whole court, that bringing debt upon a judgment was no waiver of a lien created by it.' This bond of recognizance was an.underiaking separate and distinct from the judgment. If, however, the defendant, Davis, had paid and satisfied the judgment before the commencement of this action, he had performed the condil'on °f the recognizance, and the plaintiffs Had no cause of action, at the time they sued. Nothing of this kind appears by the plea. It is not pretended that any part of the debt has béen paid. The plaintiffs now remain wholly unsatisfied for the debt, damages and cost.
    1 2d. We insist that the second plea in bar is also defective in substance.
    1. If Davis was responsible at the time final judgment was rendered against him, the defendants are at liberty to show it in answer to our claim for intervening damages, but not in bar of the action, for they are answerable, at all events, for the additional costs. The plea, therefore, is bad, because it does not answer all that it assumes to answer. If an entire plea be bad in part, it is insufficient for the whole. — 1 Chit. P. 521.
    2. Mere delay to sue the principal does not affect the rights of the creditor against the surety. [Powell vs. Waters, 17 Johns. Rep. 1 76. — King vs. Baldwin, 2 Johns. Ch. Rep. 554. — 2 B. and Puller, 45, 62.] A delay, therefore, to sue the maker of a note, after it has become due, does not discharge the endorser. In the Trent Navigation Company vs. Harley, 10 East, 34, Lord Ellenborough said, the only question was, whether the laches of the obligees in not calling upon the principal so soon as they might have done, amounted to an estoppel, in law, against the sureties. His lordship said he knew of no such estopel.
    
    In Davey vs. Prendergrass, 7 Com. Law. Rep. 62, it was holden to be no defence to an action at law, on a bond against a surety, that by a parol agreement, time had been given to the principal. The action was debt on bond. The defendant plead that the plaintiff had, by parol agreement, without the privity of the defendant, given time to the principal debtors to pay by installments, and had taken a warrant of attorney to pay by monthly instalments of 1001. each. To this plea there was a demurrer, and joinder in demurrer. Abbot, C. J. said, “That a parol agreement of this nature can never operate to control the obligation of this bond in a court of law.” The decisions, said he, which have taken place in the courts of equity, in cases of this nature, have always proceeded on the notion, that at law, the thing prayed for could not be done. Best, J. in the same case, declared it to be perfectly clear, that no delay on the part of the creditor, in calling upon the principal debtor, will, in a court of law, discharge the surety.
    In Orme vs. Young, 1 PIoWs Rep. 84. — 3 Com. Law Rep. 35, it was said, that the neglect of the obligee to give notice to the surety, that the principal had made default, did not discharge such surety ; but if the obligee, (without the privity of the surety,) enter into any engagement with the obligor, and deprive himself of the power of securing him, whereby the surety is prevented from coming into a court of equity for relief, he is thereby discharged, but not otherwise. The indulgence granted to a principal, which is to discharge a surety from his engagement, must be of that kind, by which the nature of the contract is changed, or whereby the creditor, without the consent of the surety, and by his own act, puis it out of his own power to enforcé the payment of the debt by his principal. It does not mean a mere forbearance to sue the principal, which a court of equity, on application of the surety, might direct him to do, on pain of his foregoing his claim against the surety. — Buchanan vs. Bradley, 4 Harris <$/ McHenry, 41. — Bryne vs. Ponny, 3 Dessanson, 604. — Craig vs. Bibb, Ky. Rep. 309. — Jones vs. Bullock, ib. 467. — Fulton vs. Mathew, 15 Johns. Rep. 433.
    3. The traverse is of an immaterial fact. [Page vs. Johnson et al. D. Chip. Rep. 338.] Consequently we may pass it over, and examine the other parts of the plea. If the introductory part of the plea contained a good defence to the action, and we wished to take advantage of this immaterial traverse only, we should have demurred specially.
    3. The third plea is also insufficient to bar the plaintiff’s action. 1st. From the facts set forth in the plea, it appears that the plaintiffs — had no right by law, to an alias execution, on the judgment at the time the defendants allege in their plea, that the said Baylies requested them to take one out. 2d. The plea does not allege, that the said Baylies requested the plaintiffs to commence an action on the recognizance, the very instrument upon which the said Baylies was liable as surety. It was in the power of the plaintiffs, when the request was made, to have sued the recognizance, but it was not in their power to have taken an alias execution, because the time allowed by law for taking, an alias execution had elapsed. 3d. The plaintiff's were not bound to notice the request. In Wright vs. Simpson, 5 Ves. 734, Lord Eldon said that he never understood, that as between the obligee and the surety, there was an obligation upon the former of active diligence .against the principal. In Dthoff vs. Tevebotts ex’r, 3 Yates’ Rep. 160, the Supreme Court of Pennsylvania recognized the doctrine, that a suretyjoining in a bond, makes the debt his own. and has no power to give directions when the bond shall be put in suit. In the Trent Navigation Company vs. Hailey, and in Peel vs. Talltoch, 10 East, 8f 1 B. fy Pul. the same doctrine is established. In Hunt vs. United States, 1 Gallis. 35, Judge Story said it was a sound principle that mere delay, unaccompanied with fraud or a settled agreement with the principal for that purpose, does not discharge the surety.
    In Bruñe vs. Administrators of Pough, 4 Dessans. Rep. 604, the court of appeals of South Carolina said, a surety will be released, when an obligee does an act which varies the terms of the original contract, but a mere forbearance .to sue is not such an act.
    In King vs. Baldwin, 2 Johns. Ch. Rep. 554, Chancellor Kent held, that it was no defence to an action on a note against the the surety, that he had requested the payee of the note to commence an action against the principal while he was solvent. He said that all the cases of relief of surety have gone ^1e ground, that time was given to the principal by contract, without the consent of the surety. The true doctrine, said he, is, that the surety is bound by the terms of his contract, and if the creditor, by agreement with the principal debtor, without the concurrence of the surety, varies these terms, by enlarging the time of payment, the surety is discharged; for he is injured, and his risk is increased.”
    In Orme vs. Young, before cited, Gibb, C. J. said, “This defence is borrowed from a court of equity; there if a day of payment be given to the debtor, the sureties are discharged. It is the equitable right of the sureties to come into a court of equity and demand to sue in the name of the creditor. Now if the creditor have given time to his debtor, the surety cannot sue him; but the fact to be tried, is, was time of payment given' without the privity of the sureties ? What is forbearance, and giving time ? It is an engagement which ties the hands of the ereditor. It is not negatively refraining, not exacting the money at the time, but it is the act of the creditor, depriving himself of the power of suing, by something obligatory, which prevents the surety from coming into a court of equity for relief, because the principal having tied his own hands, the surety cannot release them.” This doctrine is fully established by Chan-cellar Kent, in the case of King vs. Baldwin, before cited. The only case in favour of the principle contended for by the defendants, is that of Paine vs. Packard, IS Johns. Rep. 174; that case was decided without argument, and probably without much consideration.; for Judge Platt one of the Judges, who concurred in that opinion, has since declared, that upon more full and deliberate investigation, he was convinced that that judgment was erroneous. [17 Johns. Rep. 396.] Chancellor Kent, in the case ‘ of King vs. Baldwin, overruled it, and gave the most satisfactory reasons for so doing.
    
      Baylies for the defendants in error. —
    First, as to the sufficiency of the pleas in bar. In support of the first plea, he said a scire facias is a judicial writ, and a continuation of the same judgment; but not so an action of debt on judgment. — 2 Tidd, 983.
    There is an implied undertaking by every person against whom judgment is rendered, to pay such judgment. 3 Black. Com. 160. By suing Davis on the county court judgment, before Justice Ware, and recovering ©mother judgment for the debt, damages and costs of the former judgment, all remedy on the former judgment is gone forever, and the recognizance with it.
    The plaintiffs made their election to take this course, and must be bound by it. [6 Johns. Rep. 97. — 7 do. 119.] A cognovit discharges bail. — 1 Taunt. 159 — 4 Taunt. 455 — 15 East, 617'.
    Of the second plea, he said that by our law, bail is favoured. If he endorses the writ, the plaintiff must take out and deliver his execution to an officer within 30 days. [£/eti. 68.] Scire facias must issue within one year against bail. [Siai. 66.] So in case of bail for appeal, the plaintiff should use due diligence to collect of the principal, if the judgment be affirmed. In this plea it is averred, that the debt has been lost by the negligence of the plaintiffs; that is, they cannot now collect of the principal, which might have been done; and it is insisted, that it should be considered that the bail is discharged.
    In support of this, and the 3d plea, he also cited 10 Johns. R. 694 — 7 do. 332 — 2 Vesey,jr. 543 — 6 Ves.jr. 734 — Hammond's Dig. 563 — -13 Johns. R. 174 — 10 East. 34 — Holt's R. 35.
    
      Secondly. He objected to the sufficiency of the declaration.
    1. It no where appears in the declaration, that Justice Ware had jurisdiction of the cause he tried. This should appear, 4 Mass. 642. In pleading, it is presumed the plaintiffs have made the best of their case. — 5 Dane, 637, s 8,11 — p. 638, s 14.
    2. The plaintiffs have not alleged that the recognizance was ever recorded. This is a fatal objection, (4 Mass. 643.) The forms require it, (7 Wentworth, 50, 80. Nul tiel record may be pleaded of the recognizance, as well as of the judgment. — 7 Wentworth, 67-8, 77.,
    3. It is not alleged that the justice transmitted the recognizance to the county court, to be recorded. This has been decided to be necessary, (4 Mass. 643 and 7 Mass. 211.) The statute of Massachusetts is, in substance, like ours, as to appeals from a justice’s court; and the decisions are, as is the practice at common law. — See 7 Wentworth, 59, 60.
   Hotghinsoh, J.

delivered the opinion of the Court.

After noticing the facts as above stated, he said, the defendants now contend, that by the recovery of the said judgment, upon the said first judgment of the county court, thatj^rsi judg-* ment of the county court is merged and gone. The authorities cited, to wit, from the 6th and 7th of Johns. R. come short of supporting this position. They merely show, that,when a creditor obtains judgment against his principal debtor, and also against the bail for appearance of such debtor, and imprisons the body of one, he has no right afterwards to imprison the other. It will be seen, that in such a case, the judgment against the bail is for not delivering the body, and is of course rendered for the whole debt. In the case before the Court, the recognizance was required and taken as collateral security: the plaintiffs’ then future cost should be paid at all events, and his debt kept as secure as it then was, in case the plaintiffs should eventually recover. The very failure of the defendant, Davis, to recover in that suit, was a breach of this recognizance, and rendered the defendants liable upon it for something, at least for the costs arising after the appeal was taken. This liability is for the payment of money, not for the delivery of the body; and, though this liability may extend to the whole debt, by reason of the waste of Davis's property, yet it is not for the whole debt as a matter of course, as in the case of bail, for delivering the body. This compares much better with the ordinary cases where there several remedies for the same debt, which are deemed con-' current, until satisfaction once obtained. The objection might s*ronS *n case of a suft against the maker of an endorsed note and judgment rendered; another suit against the endorser and judgment therein, and an attempt to pursue both, against principals or bail. There, judgment would be in favour of the endorsee, for the full debt in both cases; yet no doubt is entertained but that he may pursue both, till he has obtained one satisfaction.

The defendants further contend, that the delay of the plaintiffs in pursuing Davis, especially after the request of the defendant Baylies, the surety, is a discharge of the said surety.

The case of Paine vs. Packard, 13 Johns. It. 174, and Judge Spencer’s opinion, in King vs. Baldwin, 17 Johns. R. are relied upon.

The case oí Paine vs, Packard has never been treated as sound law, not even by the court that made the decision. T.o follow that ip this state, would be too great an innovation upon the common law. As soon as the note became due, both were liable to suit. And, if the creditor did not sue immediately, the sprefy might, have paid the debt, and then have sued in his .own pame, for remuneration, The opinion of Junge Spencer in the case of King vs. Baldwin, is cited, for the reasoning it contains. Put the decision in that case, seems to b.e, that the plaintiff does not lose his remedy against his surety, without some act by which he binds himself not to pursue the principal, at least for a time. That necessarily increases the risk of the principal, if he remains holden at all. Hence it is treated as a full discharge pfthe principal. The reason assigned for this course of decision, is, that thq surety might apply to a court of chancery, to, compel the creditor to sue the principal while he remains solvent, which right is defeated by such act of the creditor "as suspends the suit; Now, it seems doubtful whether a court of chancery ought so to interfere, merely because the creditor delays to sue the principal, and there is danger of his approaching insolvency. It seems there ought to be added the total inabil-. ity of the surety to raise money and pay the debt, so as to mature his cause of action against the principal, before the insolvency. For, without this, the remedy is worse than the difficulty to which it is to be applied. While the bill for relief is pending, the insolvency may become fatal to the debt, while the other course gives an immediate right of securing the debt, especially by our laws, where we sue by attachment.

Upon the whole, all the pleas in bar are holden insufficient.

The defendant, however, goes back to the declaration, and objects, that it is insufficient to found a judgment upon.

1. There is no averment that Justice Ware had jurisdiction of the first action. This, if a defect at all, would, according to 1st of Chitty, 355, citing Gilbert and Salkield, be a defect of form only, and require a special demurrer-

William Upham, for the plaintiffs in error.

Nicholas Baylies, for the defendants in error.

Further, the declaration describes what the action was, and avers Ware to be then a justice of the péace, arid by that description, he would by law have jurisdiction. Hence, it does sufficiently appear, that he had jurisdiction.

Further, the pleas, hot merely by implication, But By express averment, admit that the recognizance was taken, and judgment rendered, as stated in the declaration.

2. It is not alleged that the recognizance was ever recorded, nor

3. That the justice ever transmitted the record of the recognizance to the county court. The 4th ánd 7th of Mass. R. are cited in support of these two objections.

The powers of a justice of the peace in Massachusetts are very different from what they are in this state. In this state, he must by law record his proceedings, and the copies of his records, by him certified, are as valid evidence as thbsfe of thé higher courts. Ih Massachusetts, the justice who takes a récog1nizance, transmits the original to the county court; and it is there recorded; and it is not treated as a matter of récord, nor will debt lie upon it, till thus recorded in the county Court. Here, the justice sends up ho originals, but certifies copies of his record. And the averments here shown, accord with the facts which the law requires to exist.

With regard to the averments in this declaration, about the record of the recognizance, &c. it avers, “as by thé recordé ánd proceedings of said court, (meaning said county Court) ih said court remaining, more fully and at large appears.” And at the close, adds, “and the plaintiffs bring with them into court here, a true copy of the records and proceedings of the said writ, in the justice’s court aforesaid, together with a true copy of the appeal and bond of recognizance, as taken as aforesaid, which testifies the debt due to the said plaintiffs, in manner and form aforesaid.” These averments are a sufficient compliance with oqr law. — -See 1st of Chit. 354-5.

The declaration is adjudged sufficient, arid pleás in bár insufficient. There is, therefore, error in the judgment of the county court, and the same is reversed, and the plaintiffs recover the debt; and, on chancering the recognizance, thé plaintiffs are entitled, of course, to recover the cost that arose in the first action after the appeal was taken, and so much of their debt as they can prove they lost by the delay Occasioned by the appeal.  