
    Cooke v. Graham’s Administrator.
    Decided October 15th, 1816.
    I. Bond with Condition — Action on — Plea—Sufficiency of — Case at Bar. — The condition of a bond being “whereas the obligor did lend to J. W. $2500 of the obligees money, and the said J. W. having failed, but before he failed paid $509, and whereas the said obligor hath instituted a suit against said J. W. for the recovery of said money; now, if the said obligor shall pay the whole sum so lent! if it can be recovered from the said J. W. or, in case it cannot be wholly recovered, will lose the one half of that sum which cannot be recovered, then the above obligation shall be void, otherwise to remain in full force an d virtue; ” —a plea stating "that he the said obligor could not recover of J. W. or his endorser, the sum of money in the] said condition mentioned, or any part thereof, and that he paid to the obligee one half of the sum which could not be so recovered, and the farther sum of live hundred dollars,” is a good and sufficient plea in bar to an action upon the bond; ¡without any farther averment that the said obligor had used due diligence in prosecuting thésuit against J. W.; and without stating what measure he had taken to recover the money, or who the endorser was.
    This was an action of debt on a bond, in behalf of Edward Graham, administrator of William Graham deceased, against Stephen Cook in the Superior Court of Loudoun County'.
    The declaration was, in the usual form, on a bond for five thousand dollars, payable to the intestate in his life time.- — The defendant praying oyer of the condition of said bond, it was inserted in the record as follows:—
    “Whereas the said Stephen Cooke did lend to Josiah Watson, of the town of Alexandria, twenty-five hundred dollars of the saic William Graham’s money; and the said Josiah Watson having failed, but before he failed paid five hundred dollars; end whereas the said Stephen Cooke hath instituted a suit against said Josiah Watson for the recovery of said money; now the condition of the above obligation is such, that if the said Stephen Cooke shall well and truly pay the whole sum so lent, if it can be recovered from the said Josiah Watson, or his endorser, or, in cfise it cannot be wholly recovered, will lose the one half of that sum which cannot *be recovered, then the above obligation shall be void, otherwise to remain in full force and virtue.” The defendant then pleaded several pleas, among which it is sufficient to mention the second, the cause having been decided by this Court upon that plea only. — It was in the following words: — “And the said Stephenj, by leave of the Court, for farther plea, saith, that the said plaintiff ought not to have or maintain his action aforesaid agE.inst him, because he saith, that he the said Stephen could not recover of Josiah Watson, or his endorser, the sum of money ip the condition of the said writing obligatory mentioned, or any part thereof; and the said Stephen farther saith, that he paid to the intestate of said plaintiff on the day of in the year one half of the sum which could not be so recovered, and the farther sum of five hundred dollars: and this the said Stephen is ready to verify. ’ ’
    To this plea the plaintiff filed a special demurrer, .setting forth the following causes of demurrer: .
    “1st. Because the said defendant doth not set forth in his said Plea., that any suit was brought and prosecuted by him against the said Josiah Watson and his endorser.
    “2. Because it does not appear by the said Plea that the said defendant used all due diligence to secure and recover the aforesaid sum of 2500 dollars of the said Josiah Watson, or his endorser.
    “3. Because the said defendant in his said Plea does not shew that he used all legal ways and means to recover the amount of the said 2500 dollars of the said Josiah Watson, or of his endorser, or of the bail of the said Josiah Watson.
    “4. Because the said Plea does not state who the endorser of the note of the said Josiah Watson for the said 2500 dollars was.
    “5. Because the said defendant is bound to pay one half of the sum that is not recovered of the said Josiah Watson, or his endorser; and if the said defendant has recovered any part of the said 2500 dollars from the said Josiah Watson, or his endorser, then he is bound to pay one half of the sum not recovered to the said plaintiff as administrator aforesaid, which one half is 1000 dollars, — and also bound to pay $500 which he received.
    ‘6. Because the said Plea is double and multifarious, in this that it contains two distinct matters; to wit, that the defendant could not recover the 2500 dollars of Josiah Watson, or his endorser, and that he had paid 1000 dollars, a part of the said 2500 dollars, to the intestate of the plaintiff, which are allegations to which separate and distinct answers may be made, and which therefore cannot be joined in one and the same Plea.
    “7. Because the said defendant in his said Plea does not give any answer as to the sum of 500 dollars, stated in the condition of the said bond to have been received by him of the said Josiah Watson before the execution of the said bond.
    
    “8. The said Plea and the matter therein contained is informal and insufficient in law. ’ ’
    The Superior Court of law adjudged this demurrer to be good, “because it was not alleged in the Plea that the defendant had used due diligence to recover the money from either Watson or his endorser, — or that he took any, and what measures to recover the same.”
    After further proceedings on the other Pleas, a Judgment was rendered for the plaintiff, from which the defendant appealed to this Court.
    
      
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
       Note. This allegation appears to have proceeded from a mistake ol the plaintiff’s Counsel.— Note in Original Edition.
    
   Tuesday, October 15th, 1816, the President pronounced the Court’s opinion, “that the Appellant in his second Plea having pleaded that he could not recover from the said Josiah Watson in the condition of the bond mentioned, or his endorser, the sum of money in the said condition also mentioned, or any part thereof; and that he has paid to the Appellee’s intestate one half of what could not be recovered; (to wit, one thousand dollars;) as well as five hundred dollars, stated to have been paid by the said Watson before he failed; which averment is not only in the terms of the condition of the bond, but also imports that due diligence had been used by him to recover the same; and that averment not having been controverted by the Appellee, but, on the contrary, admitted by the demurrer; the said Plea, so confessed, forms *a bar to the action; and that, on this ground, without adverting to any other, the said judgment is erroneous. ’*

Judgment reversed, and entered that the appellant take nothing, &c.  