
    Newman v. Graham.
    Tuesday, March 10th, 1812.
    «. Joint Obligation—Debt against One Obligor—Decla-ration.—In an action of debt against one obligor only, if the declaration describe the bond as joint, and do not state the other obligor to be dead, it is a fatal error, though not pleaded in abatement, and is not cured by verdict.
    
    Several important points were made in this case, which was argued by Williams, for the appellant, and Wirt, for the appel-lee : but the Court decided the cause on one point only.
    The declaration (being in debt on a bond against Richard Newman only) charged “that the said defendant, together with one Catesby Graham, on the first day of June, in the year of our Lord 1801, at the County aforesaid, by his certain obligation, here to the Court shown, sealed with his seal, and dated the day and year aforesaid, bound himself, together with the said Catesby Graham, to pay &c. : nevertheless, neither the defendant, nor the said Catesby Graham, though often requested, have paid, &c. And for breaches of the condition of the writing obligatory in the declaration mentioned, the plaintiff showeth the following, to wit, that the said Catesby Graham did not prosecute his appeal, from the judgment of the District Court of Dum-fries, rendered against him at the suit of Robert Graham, with effect; but the said judgment was in all things affirmed; and the said Catesby did not perform the judgment of said Court, nor pay the amount of the recovery, and all costs and damages adjudged against him in the said Court, upon his being cast in said appeal; but he utterly failed in paying and performing the same.”
    The defendant did nut pray oyer of the bond; a copy *of which was, nevertheless, annexed to the transcript of the record by the Clerk, and appeared to be an appeal bond in which the obligors bound themselves jointly and severally. His plea filed, whereon the plaintiff joined issue, was, “that the said Catesby did prosecute the said appeal with effect.” A verdict was found, and judgment rendered for the plaintiff for 800 dollars, the debt in the declaration mentioned, to be discharged by the payment of 583 dollars 55 cents damages, and costs. The -defendant appealed to this Court.
    Williams, for the appellant.
    The declaration in this case is bad, upon the authority of Leftwich v. Berkeley, 1 H. & M. 62. It should have contained an averment that Catesby Graham was dead; the bond, described in the declaration, being joint. The bond which appears to be joint and several, is no part of the record; not having been made so by oyer.
    Wirt, contra.
    Combining the assignment of breaches with the body of the declaration, they show, that the action was on an appeal bond, which, in its nature, is joint and several. The case of Leftwich v. Berkeley, only shows that an action on such a bond must be brought against all jointly, or one singly. The action here was against one singly. The declaration does not describe the bond, in general terms, as the obligation of both, but as the bond of Richard Newman.
    Williams, in reply.
    I shall not stop to inquire whether the assignment of breaches is necessarily part of the declaration. Admitting it to be so; there is no law declaring that an appeal bond is to be joint and several. No particular form is prescribed by law for such bonds, or for forthcoming bonds. In this case, it is described as a joint bond. The declaration says, that he bound himself, together with Catesby Graham. This is charging it as the bond of both.
    
      
      See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
      Note. See the case of Horner v. Moore, 5 Bnrr. 2614, and 1 Saunder, 291 a. b, notes (2) and (4) but according to the case of Meredith's Administratrix v. Duval, 1 Mnnf. 76, if the bond be spread on the record by oyer and appear to be a joint and several bond, the defect in the declaration is obviated. —Note in Original Edition.
    
   '^'Tuesday, March 17th,

JUDGE ROANE

pronounced the following opinion of this Court.

The declaration in this case, having stated, that one Catesby Graham was jointly bound with the appellant, in the bond on which this suit is founded; and the said Catesby Graham not being shown to be dead, the Court (upon the authority of the case of Leftwich v. Berkeley) is of opinion, that it was not competent to the appel-lee to maintain his action separately against the appellant: on this ground, (without deciding on any other,) the Court is of opinion to reverse the judgment of the Superior Court with costs, and enter judgment for the appellant.  