
    Greenesville Justices at the Relation of Robinson’s Adm’r v. Williamson & Others.
    March, 1841,
    Richmond.
    Administration Bond — Sureties—notion tor Counter Security — New Bond — Nul Tiei Record — Variance between Pleading anti Proof. -In debt on an administration bond against the adm'r and his sureties, defendants plead in bar (upon the statute 1 Rev. Code, ch. 104, § 38, SO.) that upon petition of G. one of sureties to the county court, setting forth that he was bound as one of the sureties of the adm'r and conceived himself in danger of suffering thereby, and praying the court for relief, the adm'r was required by order of court to give a new bond, and did so accordingly with another person as his surety, which new bond was executed in open court on the same day of the order requiring such bond, was in a penalty equal to thatofthe first bond, was made payable to the justices then sitting, and was duly executed and conditioned as the law directs; whereby, and by force of the statute, all the sureties in former bond were discharged. Plaintiffs reply nul tiel record. And defendants shew an entry on minute-book of the county court, stating, that on motion of G. against the adm’r, for counter security, the defendant appeared in court, acknowledged summons, and tended J. M. as security, whereupon it was ordered that said G. be dismissed from further suretyship; and shew also a new bond, executed by the adm’r and J. M. his surety, bearing even date with the entry on minute book, made payable to justices then sitting, in proper penalty and with proper condition required by the statute in a new bond in such case, with an endorsement thereon made by the clerk, that It was acknowledged on the day of its date; Hifinn, 1. that the entries on the minute book of a county court, and such papers only as are therein distinctly referred to, can alone be inspected to ascertain the record; that therefore, in this case, the new bond, not being mentioned in the minute, to have been required, executed or accepted, cannot be regarded as part of the record; and so the minute itself is the true and the only record of the proceeding; and 2. that the record appearing by the minute, being variant, in several substantial particulars, from the record pleaded by the defendants, the plaintiffs were entitled to judgment, that there was no such record. Dissentiente, Aij.kn, J.
    Jesse Williamson took administration of the estate of George M. Williamson, on the 2d November 1829, in the county court of Greenesville, with Benjamin Gowing and nine others, his sureties, and executed a bond to the justices of the county court, then sitting, in the penalty of 50,000 dollars, with condition, in usual and proper form, for the due and faithful administration of the intestate’s estate.
    On the 6th June 1831, there was a proceeding had in the county court, at the instance of the surety Gowing, of the short entry of which in the minute book, the following is a literal copy : “Benjamin Gowing vs. G. M. W’mson’s ad’r. Mot’n for c’r sec’y ; sum’d ack’d in name of s’d Gowing; and the def’t appeared in court and tendered Joel Mayes as security ; whereupon ord’ the s’d Gowing be dismissed from further securityship.” No mention was made on the minute book of *the execution and delivery of a new bond by Williamson the administrator and Mayes his surety: but, in fact, a new bond was executed by them (whether in open court or not, did not appear by the record), dated the 6th June 1831, payable to the then sitting justices, in the penalty of 50,000 dollars, with the following condition : “The condition of the above obligation is, that whereas the above bound Jesse Williamson administrator of George M. Williamson deceased hath heretofore executed a bond payable to John Robinson” and others (naming them), “and conditioned for the discharge of his duties as administrator as aforesaid, which said bond bears date the 2d day of November 1829; and whereas by an order of court made on the 6th day of June, other bond and security have been required of the said executor ; now, therefore, if the said executor shall well and truly have kept and performed, and shall well and truly keep and perform the condition of the bond aforesaid, and shall in all respects have performed, and shall continue to perform the duties of his office aforesaid, then this obligation to be void” &c. And *upon this bond (which it seems was filed with the clerk) there was the following endorsement: “Acknowledged 6th June 1831 by the obligors ; Teste E. Mason,” who was the clerk of the county court.
    In 1837, an action of debt was brought, in the circuit superior court of Greenesville, on the first administration bond of the 2nd November 1829, in the name of the justices of the county court to whom it was made payable, at the relation of Braxton Robinson’s administrator, against the surviving obligors therein bound, namely, Jesse Williamson the administrator and Benjamin Gowing and six others of the sureties, the other three sureties being dead. The declaration set out the bond, and recited the condition in haec'verba, and then assigned the following breach — ■ That in April 1835, Robinson’s administrator recovered a judgment in the circuit superior court of Greenesville, against Jesse Williamson administrator of George M. Williamson, for 100 dollars, with interest &c. and costs, to be levied de bonis testatoris, *sued out a writ of fieri facias thereon, and delivered the same to the sheriff, who returned “ No effects found and the plaintiffs averred, that ample assets of his intestate’s estate, to pay and satisfy the judgment and execution, came into the hands of Jesse Williamson the administrator to be administered, and that he wasted them &c.
    The defendants took oyer of the bond and condition, and then pleaded in bar, “ that before any action on said bond was depending against the sureties thereto, or their representatives, or against any of them, or prosecuted to a judgment or decree, to wit, on the 6th day of June 1831, at the county court of Greenesville aforesaid, upon the petition of Benjamin Gowing, one of the sureties to the said bond, to the said county court, setting forth that he was bound in the said court as one of the sureties of Jesse Williamson for the due and faithful administration of the estate of George M. Williamson deceased, and that he considered himself in danger of suffering thereby, and praying the court for relief, the said Jesse Williamson was required by order of the said court to enter into a new bond, which he accordingly did with a certain Joel Mayes surety thereto, to wit, on the said 6th day of June 1831, at the county of Greenesville, in open court, payable to John Robinson” and others (naming them) “ justices of the said court then sitting ; which bond was duly executed and conditioned as the law directs; wherefore and whereupon the defendants say, that all the sureties to the former bond, and their legal representatives, were forthwith, by force of the statute in such case made and provided, discharged from the obligation of the former bond &c.” (that on which this action was brought) concluding with a verification.
    To this plea the plaintiff replied, “that there was no such record of the said supposed order of the county court of Greenesville, by which the said Jesse Williamson *was required to enter into a new bond ; nor was there any such record, as was supposed by the defendants, shewing that the said Jesse Williamson did with a certain Joel Mayes surety enter into a new bond as in the plea mentioned, remaining in the said county court of Greenesville, in manner and form as the defendants had in their plea alleged. And this they were ready to verify, when, where and in such manner as the court should direct &c. Wherefore &c.”
    The defendants rejoined, that there was such a record of the proceedings and orders set forth in their plea; which they were ready to verify by the record &c. concluding to the court.
    The defendants produced and shewed the entry in the minute book of the county court of Greenesville of the 6th June 1831 (the same above literally transcribed). And in support of their plea, they also offered as part of the record of the county court, the bond executed by Jesse Williamson and Joel Mayes, dated the 6th June 1831, and the clerk’s endorsement thereon. The plaintiffs objected to the reading of this bond, and the endorsement thereon, as part or in support of the record ; but the court overruled the objection, and the bond and endorsement were read ; to which the plaintiffs excepted. And this being all the evidence and the only record produced, the court, “upon inspection of the record and the bond and endorsement thereon,” held, that there was such a record as that set forth in the defendants’ plea, and gave judgment for the defendants.
    The relator, in the name of the plaintiffs, applied to this court for a supersedeas to the judgment; which was allowed.
    May, for the plaintiffs, maintained, that the judgment was erroneous. He said, the record, namely, the entry on the minute book of the county court, of the 6th June 1831, was so imperfect, that it was utterly insufficient to ^sustain the allegations of the defendants’ plea. So far as anything could be understood from that entry, it was obvious, that of ten sureties in Williamson’s administration bond, Gowing alone had asked for relief, and that he asked for counter security for his own personal relief and indemnification, not for a new bond for the relief of all the sureties. It could not be supposed, that the county court intended to relieve ten sureties to an administration bond, of which the penalty was $50,000 dollars, and take Mayes alone as surety for the administrator, whose circumstances were regarded as doubtful, and thus to make themselves personally liable for taking inadequate security ; and this, upon a motion for counter security made by only one of the ten co-sureties. Nor did the record shew, as the plea alleged it did, that the county court required a new bond : it only shewed, that the administrator tendered Mayes as security, and that thereupon, namely, upon such tender of security, the court discharged Gowing, and Gowing alone, not his nine co-sureties.; an act which the county court could not lawfully do. And certainly, it did not appear by the record, that the new bond was given : the bond did not prove itself ; it was not a record, or a part of a record ; much less was the endorsement upon the bond, a matter of record. The circuit superior court erred in inspecting the bond and the endorsement.
    Robinson, for the defendants, said, the distinction had long Since been established between the orders of a county court, which are drawn up in form by the clerk in his office, from short minutes of the proceedings taken in court, and those of a superior court, which are drawn up in due form during the term, read in open court, and signed next day by the judge : he referred to the opinion of Roane, J., in Cogbill v. Cogbill, 2 Hen. & Munf. 478. Thus, in Eubank v. Rail’s ex’or, 4 Heigh 317, the entry of the judgment of the county court on the minute book, was in these few words — “ Plea waived, *and judgment for specialty and costs yet the clerk, in extending the minutes and making up the record from them, was justified in entering judgment for the penalty of the specialty and. costs, to be discharged by the payment of the principal sum due with interest and costs. If, in such a case, an action of debt should be brought on the judgment, and the defendant should plead no such record, no one could imagine, that the brief entry on the minute book would be all that the court could look at, to ascertain what was the record : the court would inspect the declaration and the specialty in connexion with the entry on the minute book, and regard that as the judgment, which might have been properly extended as the judgment in the order book. The minute of a trial by jury and verdict, was often briefly thus — “A. B. v. C. D.— Jury, to wit, E. P. and others (naming them all): Verdict for plaintiff and judgment.” But this short entry was made complete, by taking the pleadings and verdict in connexion with the minute ; and, upon a plea of no such record, the court always ascertained from the whole taken together, what the record was. The minutes of the county courts never set out the proceedings in form or at large, and the papers to which each minute related must be referred to to ascertain the record ; otherwise, hardly any judgment of the county courts could be successfully pleaded as a record. So here, the court could only ascertain what the record was, by inspecting the entry of the 6th June 1831, and the bond of the same date, and viewing the bond in con-nexion with the entry. Whatever the clerk, taking this entry on the minute book and the bond for his guide, might have properly entered in his order book, that must be regarded by the court as the record of the proceeding. And from the minute and the bond, the clerk might and ought to have made a full and formal entry on his order book, to this effect — “Benjamin Gowing, one of the sureties for Jesse Williamson administrator *of G. M. Williamson, conceiving himself in danger of suffering thereby and petitioning the court for relief, and the said administrator appearing in court, and acknowledging that he has been duly summoned, the court, after hearing the parties, doth order, that the said administrator execute a new bond with good security, for the faithful discharge of his duties : whereupon the said Jesse Williamson executed a new bond accordingly, with Joel Mayes his surety, conditioned as the law directs.” And taking such to be the record, there is no difficulty in the case. He said, the statute did not require, that all the sureties must petition for relief, in order to authorize the court to order a new bond, or provide that in case one of several sureties asked relief, the court should only order counter security : whether all the sureties apprehended danger, or only one, the character of the petition, and the summons, were exactly the same ; and it was only when the court made its order, that the case took one direction or the other. The court was authorized, upon the petition of one, as well as upon that of all, the sureties, to order the administrator, either to give counter security, or to give a new bond, as in its discretion the one or the other should be deemed most proper. The only question, then, is whether the court did, in this case, order the administrator to execute a new bond ? That it did so, was ascertained from the bond itself (which is in form the new bond prescribed by the statute) taken in pursuance of the order entered on the minute book. Even the minute, brief as it was, expressly “dismissed Gowing' from further securityshipwhich he could not have been, unless a new bond had been required and taken ; for if counter security only had been directed, Gowing’s suretyship must still have continued, though he would have been indemnified against it. But a new bond having been ordered and executed, the statute provided, that it should have the effect of discharging, not only the surety *Gow-ing, but all the sureties in the former administration bond. The fact that Mayes alone was taken as surety to the new bond, afforded no argument, that a new bond was not intended, and the ten sureties in the former bond discharged : for it must be supposed, that the county court was satisfied with Mayes’s sufficiency, and for ought that appeared, he might have been equal to the whole ten sureties for whom he was substituted.
    May, in reply, said, that if anything could be understood, with certainty, from the entry on the minute book, it was that Gow-ing’s motion was for counter security ; and it could not be presumed, that the administrator Williamson tendered, or that the court ordered, more than was asked. The cases cited for the defendants shewed, that the minutes of the county court, which the law required to be read and signed in open court, were the true record. The entries on the minute book need not be written out at large and in form ; yet they must be full enough, either in themselves or in connexion. with something expressly referred to in them, to leave no doubt as to the meaning and extent of the judgment or order to be entered in the order book. In this case, no summons was exhibited, no petition appeared, (and, doubtless, there were none in fact,) from which it might be inferred, that Gowing called for, or Williamson consented to give, or the court ordered, a new bond. On the contrary, all that could be inferred from this singular entry, was that Gowing wanted counter security and Williamson consented to give it; and the mode of effecting the object was left to an unskilful clerk. The court made no order whatever, except that Gowing should be dismissed from his suretyship ; it did not order, that any bond should be taken ; nor did it appear by the record, that any bond was in fact taken: a ne.w administration bond, or a bond for 'counter security, or any other form of bond whatever, would have equally satisfied every description and requisition contained in this entry : nay, *the veriest forgery might as well have been exhibited as part of the record, as the bond which was produced. In Cogbill v. Cogbill, the court said that the orders signed by the judge are the records of a superior court, and could not be corrected by the minutes of the proceedings taken by the clerk ; but it was intimated, that the rule in respect to the records of a county court would be different. Accordingly, in Eubank v. Rail’s ex’or, it was held, that the minutes of the county court, signed by the presiding justice, were the true record ; and that an order entered on the order book otherwise than in conformity with the entry on the minute book, was naught. There, the judgment entered on the minute book, was for “ the specialty and costs and the clerk, in extending this judgment in the order book, entered a judgment different from the legal construction and effect of “ the specialty:” and this was held to be a clerical mistake, which, therefore, might be amended by the court at a subsequent term ; amended by the entry on the minute book, which was the record of the judgment. In, that case, “ the specialty ” was referred to in the minute, and so furnished a certain guide for entering up the judgment at length in the order book : here nothing was referred to, nothing of the nature of a bond was mentioned, in the minute : nothing of that kind was or could be entered in the order book, or could now be intended.
    
      
       Administration Bond — New Bond — Principal Case Distinguished. — In Beery v. Homan, 8 Gratt. 53, the court said: “By the condition of the bond it appears that the said Rader was required to execute a new bond, and in pursuance thereof executed the bond in the bill and proceedings mentioned, and this distinguishes the present from the case of Greenesville Justices v. Williamson, 12 Leigh, 93."
      See monographic note, on “executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       The statute 1 Rev. Code, ch. 104, § 38, provides, that “when securities for executors, or administrators, or their representatives, conceive themselves in dangrer of suffering thereby, and petition the court for relief, the court shall summon the executor or administrator, and shall have full power to order, either that the said executor or administrator shall give good counter security, or that he shall execute a new bond with good security, in a penalty not less than the penalty of the first bond executed by him, for the faithful discharge of his duties, and payable in like manner to the judge or judges or the sitting justices. Such new bond shall have relation back to the time of granting probat or letters of administration, and shall be as effectual in every respect as if it had been executed before such letters of probat had been granted. The condition thereof shall be as follows” — and then the statute prescribes the form of the condition of the new bond, when such shall be required; which form was followed in the condition of the new bond taken in this case, except only that Williamson was twice styled executor instead of administrator.
      § 39 provides that “upon the execution of such new bond with security payable and conditioned as aforesaid, all the securities to the former bond, and their legal representatives, shall be forthwith discharged from the obligation thereof, except only as to such matters for which an action on the said bond may then be depending against such securities, or their representatives, or against any of them, and may be prosecuted to a judgment or decree.” — “If the court shall order counter security to be given, the bond shall be in a penalty equal to the penalty of the first bond, shall be made payable to the person petitioning for relief, and shall be conditioned for his entire indemnity against any loss or injury already sustained, or which may hereafter be sustained, in consequence of the execution of the first bond.” The bond in the present case, was not a bond for counter security made payable to Gowing the surety who petitioned or moved for relief, and conditioned for his indemnity, but a new bond made payable to the justices of the county court sitting at the time the new bond was taken. — Note in Original Edition.
    
   TUCKER, P.

I am of opinion, that this judgment is erroneous.

The plea to the action was of a matter of record, and the plaintiffs’ replication was nul tiel record. The matter pleaded was an order of Greenesville county court ; and it would seem that the record itself and not an exemplification of it was produced in support of the plea. The entry in the minute book of the county court, was in this form [here the judge stated the entry of the 6th June '1831]. A bond was also produced, executed by *Williamson the administrator and Joel Mayes, which is in the form prescribed by the statute, where, instead of counter security, a new bond is required to be given. But it no wise appears, that this bond was part of the record, nor does the minute state that the bond was entered into at all, much more, that it was entered into before the court, as is usual in such cases. Such being the state of the case, it devolves upon us to enquire, whether this minute could be extended into the form set forth in the plea ? Eor such is the character of the proceedings of the county courts and such often the looseness of their entries, that we are, on the one hand, compelled to look to the short entry or minute as the true record, and, on the other, to consider it as if expanded into that form which the minute will justify. In this case, then, there must be enough in the minute itself, aided by the papers in the cause, if there were any, to authorize its expansion into the form set forth in the plea ; or the replication of nul tiel record must be sustained. We are not at liberty to guess or infer ourselves, nor would the clerk have been at liberty to have supplied any thing by his recollection ; for if this werq permitted, then upon his death or removal, his successor would be disabled to make up the record rightly.

If this proposition be true, the evidence produced shews no such record of Greenes-ville county court as is described in the plea. The minute was of a motion ; the plea sets forth a petition'alleging various matters. The motion was for counter security ; the plea sets forth a petition, in general terms, for relief. The motion was against George M. Williamson’s administrator (without naming him); the plea recites a petition setting forth, that the petition was hound for Jesse Williamson, administrator &c. The record states, that the defendant appeared and tendered security, but does not set forth any bond either required or given ; the plea states, that Williamson was required to give a new bond, which he '*did accordingly with Mayes as surety, in open court, and which bond was executed and conditioned as the law directs. The record states, that it was ordered that Cowing be dismissed from farther securityship ; the plea states no such thing, as forming part of the judgment, but alleges the discharge of all the sureties, as arising from operation of law. These variances are, X think, fatal to the plea.

If there was a petition, why was it not produced? If there was none, was there any thing in the minute, to justify the allegation of the plea that there was one? If there was an order requiring a new bond, where is it? If there was none, is there any thing in the minute from whence it can be seen that a new bond, and not a counter bond, was required? If it was a counter bond, then the plaintiffs’ action is not affected by it. Now, can we infer from the entry, that the “defendant appeared and tendered security,” that the bond, if given, was not a counter bond ? Nay more: Are we justified in inferring, that any bond was given, merely because security was tendered? Do we see, that it was even accepted? It was said, this might fairly have been inferred from the entry, that Gowing should be dismissed from further securityship. But, besides that this is no part of the record as set forth in the plea, and that it was moreover unnecessary, it seems to me to be going too far to infer the execution of a bond from this loose expression. It was argued, however, that the bond of June 6, 1831 is part of the record, and that from that all else may be inferred. I cannot think the bond a part of the record. Nothing is said of a bond in the minute; and whether there was one or not, could only be supplied by the recollection of the clerk, or the testimony of witnesses; neither of which could make it a record.

I am therefore of opinion that the plaintiffs should have had judgment. Nor will the defendants be without redress; since they may, I presume, seek indemnity *by a suit on the bond of the 6th June 1831, in which Mayes was bound as surety for Williamson’s faithful administration of his intestate’s estate.

BROOKE, CABEND and STANARD, J., concurred with the president, that the judgment should be reversed, and judgment entered for the plaintiffs.

ADBEN, J.,

dissented. He said — The casé depends upon the sufficiency of the record of the county court, to support the plea of the defendants. The plaintiffs replied nul tiel record, and it devolved on the defendants to adduce a record corresponding with that set forth in their plea.

The law directs the clerk of the county court to keep minutes of the proceedings of the court, and these minutes are to be read and signed by the presiding justice, before an adjournment. From the minutes, briefly entered, a record is to be made up at large. In Cogbill v. Cogbill, Judge Roane observed, that a distinction is properly taken between the records of the county court, drawn up by the clerk in his office, from the minutes taken in court, and the records of the superior court, drawn up during the term, read in open court and signed on the next day by the judge. Although the record of the county court, when drawn up, must be justified by the minutes ; yet the minutes do not disclose all that a full record, when drawn out at large, properly exhibits. Thus in Eubank v. Rail’s ex’or, the entry of the judgment on the minute book was, “ Plea waived and judgment for specialty and costs.” This entry, it was held, authorized the clerk, in making up a complete record, to enter a judgment for the penalty of the specialty to be discharged by the payment of the sum actually due with interest. It is the usual practice (as was stated at the bar) when a trial is had, to make a brief minute, frequently not more than these words, *“ A. B. v. C. D. Jury to wit (naming them). Verdict for plaintiff, and judgment.” When a full record is made up, the clerk is not confined to the entry in the minute book. He looks to the declaration and specialty in the one case, to the verdict as written out and signed by the jury in the other. And it was well said, that were it otherwise, few judgments of the county courts could be sustained.

The entry in the present case was very brief. It is an entry not in a case depending between suitors in an action between them. The court was exercising its power in reference to a matter of which jurisdiction was conferred upon it, by statute, as a court of probat. On all such subjects, (and in many other cases, as where the court acts as a police court,) the entry is brief. To ascertain its meaning, we must consider it in connexion with the law which authorizes the proceedings ; and if the court has done what the law justified, and that sufficiently appears, its act should be maintained : otherwise serious injury may be frequently sustained by innocent individuals, from the carelessness or ignorance of officers over whom they have no control.

The statute provides, that when securities, of executors or administrators conceive themselves in danger, and petition the court for relief, the court shall summon the executor &c. and shall have power to order that he give counter security, or execute a new bond. If counter security, is required and given, the bond is made payable to the party petitioning for relief; but he is not discharged from the obligation of his first bond. If a new bond is required, it is made payable to the sitting justices, the penalty is to be equal to the penalty of the first bond, and the form of the condition is prescribed by the statute ; and upon its execution, all the securities to the former bond are discharged from the obligation thereof. No particular mode of proceeding is pointed out. The party conceiving himself in danger petitions for relief; *the court hears the parties, and gives to the case such direction as it deems best, and, in its. discretion, either requires counter security or a new bond.

In the case before us, the entry on the minute book was, a motion for counter security ; summons acknowledged; appearance of the defendant, who tendered Mayes as surety; whereupon ordered, that Gowing be dismissed from further securityship. A bond is certified, in a penalty equal to the penalty of the first bond, signed by Williamson the administrator and Mayes, dated the day the order was made, with condition in the form prescribed for a new bond, and made payable to the sitting justices. But it is objected, that the minute does not shew that a bond was executed or tendered, and therefore we have no right to look into this bond : that to consider this bond as part of the record, would put it into the power of the clerk to exhibit a bond when none may have been given, or at best to substitute his recollection for the record. It seems to me, this is giving too narrow a construction to the entry. By the entry it appears, that the administrator tendered Mayes as surety. How could he tender him as surety for him as administrator, but by the execution of a bond ? Until that was done, he was not surety. But the order proceeds, that upon his being so tendered, Gowing was discharged. We must bear in mind what the court was engaged in, when acting upon this subject; the power it possessed, and intended to exercise. The surety in the former bond was before it, asking relief ; it could give it in one of two modes, by requiring counter security or a new bond; if the first had been required, the surety was not discharged ; if the latter, he was. The order shews, that upon hearing this matter, the administrator tendered Mayes as surety, which he could not have become, until he had executed a bond ; whereupon, the petitioner was discharged. It is true, that by operation of law all were discharged upon the execution of a new bond, and therefore the order discharging the petitioner was unnecessary ; but the fact of making such an order, shews that a bond was given ; for until that was done, the court could not have discharged him from his securityship. It was not necessary to describe the bond particularly ; any expressions which indicated the execution of the bond would not suffice. No order by which an official bond is shewn to be executed, sets it out in haec verba. In all cases of the kind, the expression used is, that the administrator with A. B. &c. his sureties executed a bond in the penalty fixed by the court; and I suspect, if the entries were examined, it would frequently be found that the sureties are not named in the order. But it appearing that a bond of a particular kind has been required and given, the bond certified by the sworn officer, as the bond, must be taken as the one given. And we have the same right to apprehend that the clerk would substitute a different specialty or verdict, in the cases before mentioned, as that he would substitute a different bond in a case of this kind.

The order shewing, as I think, by a fair construction, that.a bond with Mayes as surety was executed ; the bond found among the records, of that date, corresponding with the order, and fulfilling all the requirements of the law, must be taken as the bond so executed, and constitutes a part of the record, as much so as the specialty or verdict alluded to. If it is part of the record, and can be looked to for the . purpose of ascertaining what was done, all difficulty it seems to me is removed ; for it shews that a new bond was required, upon the execution of which the sureties in the first obligation were discharged.

It is said, the record produced does not correspond with that described in the plea: 1. that by the plea it is averred, that a petition was preferred, whereas the order shews a motion was made. This does not seem to me to be a material variance. The plea describes the record *according to its legal effect, and sets it out as the clerk would extend the order in making up a full record* The statute provides that when the sureties conceive themselves in danger, “and shall petition for relief” &c. A petition is the form of bringing the matter to the notice of the court; but this is made ore tenus; no formal petition in writing is ever filed. When the relief is thus asked for, a summons is awarded; and whether the clerk enters, that upon the motion of the party a summons is awarded, or prefaces it with the words that A. B. having petitioned the court, on his motion a summons is awarded, — it would not change the legal effect .of the proceeding. 2. That the plea sets out a petition for relief, in general terms; but the record shews a motion'for counter security. The legal effect of the proceedings is not varied by the terms of the motion. The statute authorizes' the petition for relief ; the court decides upon the mode of relief. In 'whatever mode the party may seek relief, the power of the court is. not limited to that mode; and however the subject is brought to its notice, it is tantamount to a general petition for relief, and should be so described. 3. That the plea avers that bond was required ; the record merely shews that Mayes was tendered as security. But the bond, as I have endeavoured to shew, is part of the record ; and if so, the condition shews, that a new bond was required. 4. That the plea alleges a discharge of all the sureties by operation of law; whereas the order shews, that Gowing only was dismissed from the securityship. The law provides, that upon the execution of the new bond, the sureties to the first shall be forthwith discharged ; and no order would be necessary to effect this. It was only necessary for the defendants to set out so much of the order as shewed the requirement and execution of the bond; having done that, they establish enough to discharge them ; and it was proper to aver it as arising from operation of law. The omission to set out in the plea, that which need *not have been done by the court, does not shew a variance between the plea and so much of the order as they have correctly described.

It is supposed, that if we construe the proceedings here as discharging the sureties to the first bond, the justices may have subjected themselves to a liability for taking inadequate security, when in fact they only intended to permit Mayes to substitute himself as surety in Gowing’s stead. Such might be the consequence, if my construction of their proceeding’s is the proper one. They must be presumed to be acquainted with the law under which they were acting-; and if so, they knew they could not discharg-e Gowing except upon the execution of a new bond. That they intended to discharge him is clear, for they have said so; and the legal consequence is the discharge of the others. If this was more than they intended, their error ought not to injure the surety. He had asked what they conceded he was entitled to; it was for them to prescribe the mode; and having done so, the surety had a right to repose in safety. He should not be deprived of the relief which his vigilance had procured, because the court, in extending it to him, had inadvertently discharged others and thereby incurred a liability themselves.

It seems to me, upon the whole case, that the sureties to the first bond were discharged, and that the matter constituting the discharge has been properly set out in the plea.

Judgment reversed, and judgment entered for the plaintiffs; and cause remanded, with directions to award a writ of enquiry of damages.  