
    [Chambersburg,
    Oct. 30, 1822.]
    CARL and others against the Commonweath.
    IN ERROR.
    A declaration stating’ a bond executed by four, payable when three of the obligors should be required, is good.
    After oyer, and pleas of performance and payment, to an administration bond, and verdict, it is too late to object a variance between the bond, and the form prescribed by the act of assembly. Nor are unsubstantial variances material at any stage of pleading.
    After verdict, the want of a verification, in the'assignment of breaches on a bond is cured by the statute 4 and 5 Jinn. c. 16.
    A verdict cures the omission, in such breaches, to state, that assets came to the ad-miniatrator’s hands.
    In a suit on 'an administration bond, it is sufficient, .after verdict, if one .of the . breaches is well assigned; for the penalty is then fortified. f
    The words “ and issue” on the docket, suffice to cure any defect of form in joining issue. ,
    Any equitable defence for the sureties in an administration bond, founded on the negligence of parties, in not biting the administrators* is proper in a scire facias„. after judgment for the penalty, but not in a suit of the bond itself.
    This was a writ ’of error' to the Court of Common Pleas of Cumberland county, in án action of debt upon an administration bond, brought in the name of the Commonwealth against Isaiah Carl, George Snyder, Christian Hickendom, and Samuel Ickesi. The declaration was upon a bond executed by the defendants, on the 4th January, 1814, in the sum of 3000 dollars, and stated, that the defendants acknowleged themselves bound in the said sum, “to be paid to the said commonwealth,- when they the said Isaiah Carl, George Snyder, Christian Hickendom, should be thereunto afterwards required.” The defendants craved oyer of the bond and condition, and they were set out. The bond was dated 4th January, 1814, and was in the usual form. The. condition was, that Cari and Snyder, administrators-of John Hippie, deceased, should file an inventory in the register’s office of Cumberland county, at or before the 4th of February, 1814, and should well and truly administer, and should make an account at or before the 4th of January, 1815, and theconditions in all respects corresponded with the form prescribed by the 'act of 19th JLpril, 1794, (Purd.Dig. 287,) except in the following particulars: instead of the words, “ within bounden,” at the commencement of the condition, it contained the words “ above bounden:” instead of, “ shall deliver and pay unto such person or persons respectively, as the said Orphan’s Court, by their decree or sentence, pursuant to the true intent and meaning of this act, shall limit and appoint:” it was, “ shall deliver and pay over unto such person or persons respectively, as the said Orphans’ Court, by their decree of sentence pursuant to the true intent and meaning of the several laws now in force in this commonwealth, shall limit and appoint.”
    The docket entiles were as follows: Defendants plead covenants performed, and payment with leave, &c.: and with leave to alter, or add, at any time before trial. The plaintiff replies, that defendants had not performed their covenants,-and that they, have not paid. Issues and rule for trial.
    The following breaches were assigned on the part of the plaintiff.
    Í st. That Carl and Snyder had not made or caused to be made, a true and perfect inventory of all and singular the goods, &c. of the said John Hippie, deceased, which have come to the hands, possession or knowledge of them, the said Carl and Snyder, or into the hands or possession of any other person or persons, for them; nór did they make or cause to be made and exhibited, into the register’s office in the borough of Carlisle, for the county of Cumberland, at or before the 4th day of February, next ensuing the date of the aforesaid writing obligatory, a true and perfect inventory of all and singular the goods and chattels, and credits of the said John Hippie, deceased; nor did they well arid truly, and according to law, administer all the goods, &c. of the said deceased, which at the time of his death, or at any other time after his death, came to the hands or possession of them, or into the hands or possession of any other person for them,
    2d. That the said Carl and Snyder did not make or causé to be made, a true and just account, calculation, and reckoning, of their administration, at or before the 4th day of January, in the year of our Lord, 1815, nor at any other time before, nor since that day, although to do the same, the said Carl and Snyder thereunto lawfully were required.
    3d. That the said Carl and Snyder did not settle, nor present, for settlement, examination and allowance, by the Orphans’ Court of the county of Cumberland, any administration account of any part of the goods, &e. of the said J. Hippie, deceased, or any rest or residue thereof, which came to their hands and possession, or into the hands or possession of any other person or persons for them; nor did they deliver, nor have they yet delivered, or pay over, any part or portion of the said goods, &c. of the said Hippie, deceased, to any person or persons lawfully entitled to receive the same; nor did they apply to the said Orphan’s Court for their decree or sentence of distribution in that behalf, which, pursuant to the true intent and meaning of the several laws now in force in this commonwealth, the said Orphans’ Court are empowered by their decree to limit and appoint.
    4th. That the said Carlmá Snyder, although often required, have not, nor hath either of them, performed or kept any of the conditions or covenants contained in the said writing obligatory on their part to be performed and kept, but have wholly broken the same, and refused and neglected to perform the said covenants and conditions, contrary to the form and effect of the said obligation and condition; and this the said commonwealth is ready'to verify.
    On the trial it appeared, that in the year 1818, both Carl and Snyder were reputed insolvents. On the 12th December, 1815, on the petition of George Stroop, guardian of three of the minor children of John Hippie, deceased, the Orphans’ Court of Cumberland county, awarded a citation against Isaiah Carl and George Snyder, to settle their accounts at tíre next Orphans’ Court: and on the 3d February, 1816, an attachment was awarded against them by the court, on motion of Stroop, which, however, was not to be issued, if an account were settled at the next Orphans’ Court. On the 14th May, 1816, on motion of Stroop, an alias attachment was awarded, which was continued on the 10th of September following, until the next stated Orphans’ Court. On the 10th December, 1816’, Snyder appeared, and entered into a recognizance to the clerk of the court, himself in 2000 dollars, and a surety in 800 dollars, conditioned for his appearance at the next court, and the attachment was renewed as respected Carl. On the 11th Fehru-ary, 1817, Carl was brought into court in custody of the sheriff, on the attachment, and ordered to give security himself in 2000 dollars, and one surety in 1000 dollars, for his appearance at the next stated Orphans’ Court. On the 13th May, 1817, this last-mentioned order was continued.
    The court below charged the jury in the following terms:
    It is contended by the defendants, that no suit can be sustained on an administration bond, until an account be sattled in the Orphans’ Court. This position would lead tó such unreasonable results, that we cannot believe it to be good law.
    It is further contended, that as the sureties in the bond are principally interested, the proceedings in the Orphans’ Coúrt against the administrators, operate as a discharge to the sureties. We can see nothing in the evidence, which would in law have this effect. Unless something was done without the consent of the sureties, by which their rights were exposed tó injury, or the relation between them and their principals was changed to their prejudice, they would not be discharged.
    - It is further contended, that there is no-breach in the condition of the bond, because the administrators Were not legally required to settle their account; that a citation and attachment are not such a “ legally requiring” a settlement, as the condition of the bond requires. We differ from the opinion of the counsel for the defendants, also, in this position. Finally — -If you believe the testimony, and it has not been controverted, we are clearly of opinion, your verdict should be in favour of the plaintiff. There is nothing done or omitted to be done, if the testimony be believed, which would operate as a discharge to the defendants.
    The following errors were now assigned.
    1. In the declaration it is not stated, that all the defendants were bound to pay, when thereunto required. . '
    2. There are no issues on the breaches assigned, nor are there in the three first assignments any verifications or tenders of issues.
    
      3. The-verdict is general, and, in the first breach assigned, there is no allegation, that the intestate left goods or effects, or that'any goods or effects came to the hands of the administrators or any person for them.
    4. The second breach is not legally assigned, inasmuch as it is not stated therein, that the administrators were legally required to exhibit and settle their administration account after the 4th January, 1815.
    5. The third breach is illegally assigned; inasmuch as it is not stated therein, that the administrators were legally required to settle their administration account, and inasmuch, also, as the said third assignment is altogether illegal.
    6. There is error in the fourth assignment of breaches, in this, that it is not stated when the demand of performance was made, and the matters therein stated do not amount to a legal assignment of breaches.
    7. The court erred in charging the jury, that the proceedings in the Orphans’ Court did not discharge the sureties.
    8. The court also erred in their charge, in stating;'that if the jury believed the testimony, there was nothing which would operate as a discharge to the defendants.
    9. There is a variance in the writing obligatory of which oyer is granted, from that required by the act of assembly.
    
      Carotkers and Mahon, for the plaintiff in error.
    
      Ramsey and Chambers, contra.
   The opinion of the court was delivered by

GibsoN, J.

The first exception is to the declaration, which is on an office bond given by administrators and their sureties. The debt is laid as being that of all the four defendants ; but as being payable when three of the obligors who are named, (omitting the name of the fourth,) “should be thereunto afterwards required.” I can see no error in this. A bond by four may be good, although expressly made payable when three of them should be required; and if so, a declaration setting it forth truly, would also be good.

The defendants craved oyer of the bond and condition, and had it: on which they pleaded performance of the condition and payment ; and went to trial on those pleas; Their counsel now urge a variance between the condition of the bond shown, and the form prescribed by the act of assembly. Even if the objection did not come too late, the Variance is so unsubstantial as to render the question altogether immaterial; and I shall therefore dismiss it without further notice.

In reply to the plea of performance of the condition, the plaintiff assigned several breaches; and these are the next subject of error.

The first objection is, that each several assignment does not conclude with a verification. After verdict, however, this defect is remedied by the stat. 4 and 5 Ann, c. 16, which restrains a party from taking advantage of it, except on special demurrer.

It is further objected to the first breach, which is laid to be an omission to exhibit an inventory in the register’s office within the time prescribed by law; that there is no positive averment that the intestate left any goods and .chattels which came to the hands of the administrators, or of any person for them: without which they could not be in any default. This might possibly be a valid objection on demurrer; but after verdict, the breach is well enough. It is laid to be neglect in not exhibiting an inventory of all the-goods that came to their hands; which necessarily implies that some goods actually came to their hands; otherwise the whole would be nonsense. It is however a defect which is cured by verdict; for the plaintiff could not have recovered without proving the fact of assets.

There are errors assigned with regard to the remaining breaches, which, as the first breach is sufficient and shows a forfeiture of the bond, need not be considered; and I shall express no .opinion on them further than to say, that all the breaches would probably be found good after verdict. But at all events, this suit is on an office bond given as a security for creditors and those entitled under the statute of distributions, the commonwealth being a trustee without the least imaginable interest, and bound to prosecute at the suggestion of any one who can' show on a scire facias founded on the judgment that he has suffered particular injury; and the damages being nominal, for which no execution can issue, it is therefore immaterial whether they were assessed exclusively on good breaches, or on a mixture of good and bad. Here then there is a finding in favour of the plaintiff on all the breaches, and as there is at least one breach well assigned, that shows that the penalty was forfeited; which is the only thing to be ascertained in this action. It would be otherwise in an action whose immediate object is damages for breach of covenants; but here the judgment is for the whole penalty, the damages for injuries to particular individuals being ascertainable and to be recovered in a subsequent proceeding by scire facias on the judgment.

Another error assigned, is, that there was no issue joined, . This is is not true in point of fact. To the replication assigning the breaches, there is certainly no formal rejoinder or taking of issue; but the word “issue” is entered on the docket at the close of the short minute of the pleadings; and this we have always held to be a memorandum for the clerk to join the issue formally, the want oí which, under such circumstances, is a clerical slip and amendable. To reverse for amere formal defect of this sort, after a trial on the merits, is a grievance; and to avo’d it, we say once for all, we will lay hold of the most trifling circumstance. Whether we may not even go further when we are driven to it by the absence of all pretext, it is at present unnecessary to say; the docket here presents a .substantial although not a formal joinder. '

Beside these there are objections to the charge.

Two of the defendants, who are but sureties for the administrators, thinking they might avail themselves of negligence on the part of those who. prosecute this suit ip the name of the commonwealth, in not citing their principals to settle an administration account at an earlier day, and in not bringing suit in due season, prayed the direction of the court on the subject; and for a supposed mistake in that matter, error is. assigned. It is clear, however, that the consequences of negligence in giving an equity to sureties, cannot be inquired into in a suit like the present, which is for the benefit of all persons concerned, whether as creditors or claimants of a distributive share; for a verdict would be conclusive on all; and negligence in particular persons should have no further effect in discharging the sureties, than as against those persons themselves. Here the commonwealth is a trustee for all-parties interested, and a judgment against her would be a complete discharge of the bond, which could never be put in suit a second time. The equity of the sureties against particular persons, if any there be, (about which we intimate no opinion,) may be urged with effect when those persons come to prosecute exclusively for themselves by a scire facias; but not till then. '

It is also assigned for error, that the decision of matters of. fact, was withdrawn from, the jury; but, bn inspection, this is not found to be supported by tfie record.

Judgment affirmed.'  