
    Treasurers of the State v. John Bates, et al. Same v. Same.
    A joint action may be maintained against a sheriff and his sureties, for the penalty of his official bond; but execution cannot be enforced against the sureties beyond their several equal parts of the penalty.
    The provision in the act of 1755, that the sureties to a sheriff’s bond shall be liable, each for his equal part of the penalty, and for no more, does not affect their liability to a joint action for the penalty. It is matter of defence arising out of the condition, and cannot discharge the liability under the penalty, unless it is pleaded and payment averred.
    If the penalty of asheriff’s bond exceed the sum required by law, the bond is not therefore void, but is valid as a security for the latter sum: Arid, in an action against the sheriff and his sureties, it may be proved by a certified copy. 2 Faust, 10.
    A bond taken under a statute is not void for not conforming precisely to the directions of the statute, unless it is made so by express enactment, or the variance was intended to evade the statute, or to operate as a fraud upon the obligors.
    An action may be maintained upon a sheriff’s bond, in the name of the successors in office of the original obligees, without an assignment.
    Wherever a bond is executed to a public officer, for the performance of an act required by law to be done by another officer, or to discharge a trust conferred according to law, the bond is to be regarded as payable to the office rather than the officer, and an action may be maintained upon it by the incumbent,, without assignment from the obligee.
    
      Jn an action against the sureties to a sheriff’s bond, the plaintiffs may declare for the penalty, without setting out the condition; and if they set out the condition, and assign breaches, it is not necessary to allege, that a Ji. fa. against the sheriff has been returned nulla bona. It is sufficient if this appear in evidence, unless the sureties make the question by pleading.
    If sufficient appears upon the record to enable the Court to pronounce judgment, an objection to the declaration, which might have been fatal on special demurrer, comes too late after verdict, and cannot avail In arrest of judgment.
    An action on a sheriff’s bond is not abated by a plea of the pendency of other suits on the same bond, brought on behalf of different parties, and for distinct defaults. But when one judgment has been obtained on the bond, all subsisting suits will be ordered to be. consolidated.
    Where judgment has been had on a sheriff’s bond, it stands as a security for any former or subsequent breaches of it; and every one aggrieved by the misconduct of the sheriff may come in by suggestion, and require the sheriff and his sureties, by a thirty day rule, to plead thereto; and for default of plea, or upon issue joined, may have his damages assessed by the verdict of a jury, and have execution for the penalty, to enforce payment of the damages so assessed. The entries in Sergeant Williams’ note to Gainsford v. Griffith, ISaund. 58, note 1, recommended as precedents in such cases.
    A motion to consolidate is always addressed to the discretion of the Court; and where it cannot delay the plaintiffs, and will relieve the defendant from unnecessary costs, and the actions are by the same plaintiffs, in the same right, and form of action, it is always proper that it should be granted.
    Confessions of judgment, and verbal admissions by a sheriff of official defaults, are prima facie evidence against his sureties, though made after his leaving office; but the sureties may show, that such confessions or admissions were founded in mistake or fraud.
    A former recovery against the sheriff alone, without satisfaction, is no bar to a subsequent joint action on his bond against himself and his sureties, for the same default.
    The arrest of the sheriff by attachment or ea. sa. and his subsequent discharge under the prison bounds act, do not discharge him and his sureties from their liability on his bond.
    Where several judgments were obtained against the sheriff and his sureties, on his official bond; ordered, that the first of them only should be signed, and the other cases consolidated.
    Tried before Mr. Justice Earle, at Union, Spring Terra, 1831.
    These were actions of debt on the official bond of John Bates, late sheriff of Union District, brought against himself and his sureties jointly. There were ten separate actions on the same bond, against the same parties, but instituted for the henefit of different persons, and for distinct breaches of the condit¿Qn. ancj a]j 0f them came on for trial, in succession, at the same term.
    The first case tried was one in which John Parham was the real plaintiff. The declaration set out the condition of the bond, and assigned for breach, the nonpayment of certain moneys collected by Bates, under execution in favour of Parham against W. R. Wellborn. The defendants pleaded the general issue, and several special pleas. The issues made up on these pleas are not stated in the brief; but the following statement will exhibit the questions arising out of the pleadings and evidence, so far as they came to be submitted to the Court of Appeals.
    The plaintiff offered in evidence a copy of the bond, certified by the Treasurer, conformably to the act of 1795. It was objected to on the ground, that the bond was for ten thousand dollars,'whereas the act required one for no more than seven thousand dollars, or fifteen hundred pounds ; and admitting that the bond was not void, it could only be good at common law, and must be proved by common law testimony. The objection was overruled, and the copy admitted.
    The plaintiff then gave in evidence the execution of Parham v. Wellborn, which had been duly entered in Bates’ office. To prove that Bates had collected the money under this execution, the plaintiff offered in evidence the verbal admissions of Bates, and also a confession of judgment by him in an action of assumpsit for that money. The admissions and confessions had been made after Bates was out of office; and it was objected, that they were inadmissible in an action against the sureties, but the objection was overruled.
    The plaintiff next produced an execution against Bates, at the suit of James M’Kibben, which had been returned nulla bona a few months previous to the commencement of this action; and closed.
    The defendant moved for a nonsuit on several grounds. First: That the bond having been taken in a larger sum than that required by law, was utterly void. Second: That Bates’ confession of judgment and verbal admissions, made when he was out of office, were insufficient to charge the sureties. Third : That the present plaintiffs were not the obligees in the bond, and although successors in office to them, could not maintain this aotion without an assignment. Fourth: That the declaration contained no allegation that a fi. fa. against Bates had been returned nulla bona, which being made by the act of 1795, a condition precedent to the liability of the sureties, formed an essential part of the plaintiffs’ title to a recovery, and should have been set forth in his declaration. The presiding Judge refused the. motion for a nonsuit on each of the grounds; observing, as to the fourth, that he thought it sufficient if the return of a nulla bona appeared in the evidence; but that at all events the omission of the allegation in the declaration could only be objected to by special demurrer, and not by motion for nonsuit.
    Some other questions were made by the defence. The pendency of the other suits on the bond was pleaded in bar. The presiding Judge held, that it could only be pleaded in abatement; and was unavailing in any form. The former recovery in assumpsit against Bates, was also pleaded in bar to the joint action against himself and his sureties ; but the Court held, that without satisfaction it was no bar. The defendants also pleaded that Bates had been arrested by attachment for the debt to Par-ham, and had been discharged under the prison bounds act. It appeared that Bates was confined at the same time, under an attachment at the suit of Parham, and a ca. sa. at the suit of Zadock Hooker; that he had petitioned for his discharge from the ca. sa. and had been liberated on executing an assignment to Hooker. The defence arising out of this plea was also overruled ; and the case was submitted to the jury, who, under the charge of the Court, found a verdict for the plaintiffs.
    Most of the questions, decided in Parham’s case, were made at the trial of each of the others. In some of them the plaintiffs had declared for the penalty, without setting out the condition ; but the questions raised by the original pleadings were substantially the same. Two addititional questions, however, were made. After Parham’s verdict had been entered, the defendants, by leave of the Court, pleaded it in bar, but the pleas were overruled upon demurrer. At the several trials, Bates’ defaults were proved by judgments against him on his confession, or by his admissions made, as in Parham’s case, after he had left office. The defendants proposed to show that these judgments were confessed, and these admissions made, at a time when Bates was habitually intoxicated, and totally incaPa^e transacting business; and that there were other circumstances of suspicion attending them. His Honor held, that it was perfectly competent for the defendants to impeach the judgments anc^ admissions; for as to the sureties they were under any circumstances only prima facie evidence. But as the investigation was likely to be protracted, it was agreed to waive the examination; and that the plaintiffs should take verdicts, with leave to the defendants to submit the condition of the bond at the next term, and then be allowed the full benefit of auy evidence to impeach the judgments against Bates, or his admissions. The counsel for the defendants appear to have misunderstood the Court as ruling that the evidence was inadmissible.
    The plaintiffs obtained verdicts in every case, and the defendants gave notice of appeal. The appeals were consolidated by consent; and the defendants now moved in arrest of judgment, for a nonsuit, or a new trial, in all the cases, on the following grounds.
    1. That none of the declarations contained a sufficient breach; there being no allegation of a return of nulla bona to an execution against Bates.
    2. That the sheriff could not be sued jointly with his sureties, nor could the sureties be sued jointly with each other; the act of 1795 having provided, that they should be severally liable, each, for no more than his equal part of the penalty.
    3. That the bond, not conforming to the directions of the act, was absolutely void; or if good at common law, ought to have been proved according to the rules of common law.
    4. That the plaintiffs not being the original obligees, could not sue without an assignment, which ought to have been both alleged and proved.
    5. That Bates’ verbal admissions and confessions of judgment were inadmissible; or at all events were insufficient to charge the sureties.
    6. That the judgments against Bates were a bar to a new action against him; and therefore a bar to a joint action against himself and his sureties for the same cause of action.
    7. That the arrest of Bates, and his discharge under the prison bounds act was a satisfaction of the debt.
    8. That his Honor erred in rejecting evidence to impeach the admissions and confessions of judgment of Bates.
    
      9. That the plea of the pendency of other suits on the same bond, was good in abatement, and ought to have been so decided.
    10. That the first verdict was a bar to the remaining actions.
    B. M. Pearson, for the motion.
    None of the declarations in these cases contain an allegation of the return of nulla bona to an execution against the sheriff; and the omission is fatal. The act of 1795 has made such a return a condition precedent to the liability of sureties; 2 Faust, 10: and unless the condition is performed, the plaintiffs have no right of action. According, then, to the well settled rules of pleading, performance of the condition should have been averred in the declaration; 1 Ch. PI. 308-9. 11 Wheat. 174, for without such averment, it does not appear by the record, that the plaintiffs are intitled to recover. In Loker v. Antonio, 4 M‘C. 175, which was an action on a bail bond, it was held, that the declaration was insufficient, in not averring the performance of the conditions precedent to the liability of the bail, required by the act of 1785. The Court say, that, “ whether the condition precedent be a requisite of the contract, or of the law, is not material.” Ib. 178. The principle here is the same; the conditions being in both cases the requisites of an act of Assembly. See also Treasurers v. Neuby, 1 M‘C. 184.
    Distinct and separate liabilities of different persons cannot be joined in one suit, although the parties stand in the, same relative situation: and if the objection appear on the face of the pleadings, the defendant may demur, or move in arrest of judgment ; or the plaintiff may be non-suited at the trial, if he fail to prove a joint contract. If a contract be proved to have been in fact made by all the defendants, yet in point of law it is not obligatory, either on the ground of infancy, coverture, &c. at the time it was entered into, the plaintiff would be non-suited. If one of several joint sureties pay the debt, his sureties are liable to him severally, vide, passim, 1 Ch. PI. 31. 1 East, 226. 12 Id. 452. 3 M‘C. 8. Minor v. Bank of Alexandria, 1 Peters, 46, et seq. The act of 1795 expressly provides, that the liability of the sureties to a sheriff’s bond shall be several; and all contracts are controlled by the law. In the several cases against the sureties of Davis, cited 2 M‘C. 110. of Neuby, 1 M‘C. 184. and of Steedman, 4 M‘C. -458. the action was against the sureties Only; and hence those cases do not apply. Has this Court tjle p0wer t0 award judgment against a defendant for a sum, f°r which the Legislature has expressly declared that he shall not be liable ? And yet it will be an exercise of such a power, to award judgment against the sureties, jointly, for the penalty of a sheriff’s bond.
    A statutory bond must conform to the law, otherwise it is void; for all powers ought to be strictly executed. The bond in this case is not in conformity to the act of 1795, as to its amount; and it is, therefore, not binding. United States v. Morgan and Farquhar, 3 Wash. 10. Admitting, however, that the bond may be good as a common law bond, it must have common law incidents : and neither could its execution be proved by the mere production of a certified copy; nor can an action on it be maintained without an assignment by the present plaintiffs, between whom and the obligors there is no privity. Underwood v. Jacobs, 3 M‘C. 447. See also State v. Mayson, 2 N. & M. 425.
    The confessions of judgment and admissions of Bates, made after leaving office, were not admissible. State Bank v. Johnson, 1 Mill. 404. At most they were only admissible prima facie; and yet the presiding Judge excluded evidence, tendered to shew, that these confessions and admissions were fraudulent. Even had they been in their nature conclusive ; yet they were open to be impeached by the sureties for fraud, which avoids all contracts, and all securities, and which may be inquired into as well in a Court of Law, as in a Court of Equity.
    Under the pleas of former recovery and payment, the defendants should have been permitted to shew, that their several rateable parts of the bond had been recovered in the first actions. The judgments against the sheriff, and his imprisonment under an attachment, in fact, discharged the sureties. It discharged the sheriff himself, 2 Bay, 208, and his liability was not revived by his discharge under the prison bounds act. 1 N. & M. 494. The liability of the sureties was merged in his, for they are not responsible, unless they have a remedy over against him.
    Herndon, contra.
    
    The objection to the declarations, that they do not aver a return of nulla bona to an execution against the sheriff, would be unavailing were the question properly presented to the Court. The exemption from liability contained in the proviso of the act of 1795, is matter of defence, and the plaintiffs were not bound to negative it by averment in the declaration. Mills v. Kennedy, 1 Bailey, 17. The case of Loker v. Antonio is supposed to have decided otherwise : but, admitting • that decision to have concluded the question, yet it was made upon demurrer; and however valid the objection might be, when raised by the pleadings, it is clear from the authorities, that it comes.too late after verdict. 1 Ch. PI. 401-2. 2 Tidds’ Pr. 826. See also Treasurers v. Wiggins, 1 M‘C. 568. Besides-in Loker v. Antonio leave was given to amend, and in any event the same privilege must be extended to the plaintiffs in these cases.
    As to the objection of misjoinder, it is sufficient to say, that the obligation is joint, and there is nothing in the act to show, .that it was intended to alter the common law mode of proceeding on the bond : The proviso of the act is confined to the condition ; and that limits the mode and extent of enforcing the execution, without affecting the nature of the action, which must in every case be for the penalty. .
    The recovery against Bates was for a different cause of action, and between different parties, and the pleadings and evidence were different; it cannot therefore be a.bar to the actions now brought up. 1 Ph. Ev. 245, 226. The confessions of Bates were however good evidence to charge the defendants; and this is the daily practice in actions against the sureties of administrators and guardians. The fact that the confessions were made after Bates was out of office, does not alter the case. He was as capable of telling the truth afterwards as before; and the law regards him as sheriff for two years after the expiration of his term. 2 Faust, 429. Besides, his sureties were his privies in law, and are bound by his acts. It has even been held, that the sureties are liable for a trespass committed by the sheriff in his official character. Carmack v. Commonwealth, 5 Binney, 184. In which case it was also held, that the recovery in trover against the sheriff was no bar to a suit against him and his sureties on his official bond, for the same default.
    A. W. Thomson, same side.
    The cases which have been cited to establish, that the sureties are not liable jointly, do not apply. There is not an analogous case in the. hooks ; and the question must be decided independently of express authority. The whole mjstajte consists in confounding the liability under the penalty, w^b ibe liability under the condition. It is the latter alone which the act provides shall be several; and this can not affect the action, > which is brought for the penalty. The obligation is joint, unless it is otherwise expressed;, it is not so expressed, nor does the act require that it should be. The plaintiffs then were bound to sue the defendants jointly, the, cause of action being joint. Archbold’s Civil Pleading, 74. Bovill v. Wood, 2 Maulé <fc Selw. 23. But suppose they were at liberty to sue jointly, o,r severally, at their option; .what beneficial purpose is to be attained by bringing several suits'? It could have uo other effect than to increase the costs ; and so increase the burden of the sureties, when it was the obvious intention of the act to restrict their liability, and diminish their burden. If the defendants had been sued separately, the Court would have directed the actions to be consolidated: for even if they were sued separately, the judgment must be precisely the same as if the action had been joint, to wit, against each for the penalty; and the restriction of the liability of the sureties could only avail them, when the condition came to be submitted to the jury, under the act of 1792. 1 Faust, 213.
    If the judgments against Bates and his admissions are not evidence to charge the sureties, it will be difficult to imagine a principle, on which any evidence can be admitted to charge them. Whatever is good to charge him, must be good to charge them; because it is for his liabilities that they are responsible: and if what charges him does not charge them, then they are not chargeable at all, and their liability is merely nominal. It is true, such evidence is jprima facie only; but it throws the onus proban* di on the sureties. This is all that has been contended for. It is a mistake to say that the evidence to impeach these judgments and admissions was excluded: The right to introduce it hereafter was expressly reserved to them, and is not disputed now.
    With regard to the variance of the bond from the directions of the act; to render the objection available, it should have been shewn, that it was intended as a,fraud upon the obligors, or on the act, or that it is expressly made void by the act. But nothing of this kind is pretended. The bond is prepared by the sheriff and his sureties, before it reaches the public office. It is not only their deed, but it is framed under their direction; and it would be allowing the obligors to take advantage of their own wrong, to avoid the bond for a defect, which they themselves have created. But this question has been decided by the cases of the Commissioners of the Treasury v. Davis, cited 2 N. & M. 426. 2 M;C. 110. State v. Mayson, 2 N. & M. 425, and Treasurers v. Stevens, 2 M‘C. 108. The utmost which they are intitled to ask is, that they should be absolved from a part of their liability; and that the bond should stand as a security only for the penalty required by the act.
    The objection that the declaration docs not allege a return of nulla bona has been answered: but how does that objection stand with another which has been raised; to wit, that the judgment against Bates is a bar to this action ? It is said, that the action cannot be maintained, because there is no fi. fa. returned nulla bona ; and the next moment it is urged, that the action is barred, because there is a judgment, without which there could be no fi. fa. to return. The best answer therefore to the latter objection is to be found in the act itself, which make a fi. fa. and of course a judgment, against the sheriff, a prerequisite to a recovery against the sureties. But then it is asked, shall the sheriff be liable to two judgments for the same thing? This is no affair of the sureties; nor indeed would it avail the sheriff himself, for a satisfaction of one judgment would discharge him as to the other. The rule is very clear, that a recovery against one of several joint contractors, is not a bar to an action against all of them. Sheehy v. Mandeville & Jamesson, 6 Cranch, 253. Collins v. Lemasters and Lee, MS. decided in this Court in 1829.
    The remaining questions do not admit of argument. The right of the present treasurers to sue on the bond, without an assignment from their predecessors, who were the original obligees, is settled by the decision of this Court, in the parrallel cases of Loker v. Antonio, 4 M‘C. 175, and Dubose v. Hanks, {ante p. 13.) See also Treasurers v. Wiggins, 1 M‘C. 568. So too, Bates’ discharge after his arrest under the attachment is settled to be no bar to this action, by the case of Treasurers v. Johnson, 4 M£C. 458. The pendency of the other suits, or the verdict in Parham’s case, cannot be a bar to this action, unless the Court are prepared to say, that the sureties are only liable to the first person who sues them; which would be making the security of the bond a mere mockery. The pendency of the suits jg UJ.ge(j ¡u abatement only; but if a former judgment is not a bar, t^ie pendency of another suit cannot- be an abatement.
    Williams, same side.
    The various grounds made for this motion, have been so fully and ably answered, that it is hardly necessary to advert to them in detail. A single word may be added, relative to the alleged misjoinder of the defendants. The action is for the penalty; and it is from the penalty alone, that the obligation on which the action is founded arises. The performance of the condition, it is true, discharges the obligation, and defeats the action; but the plaintiffs’ right to recover depends on the penalty and not on the condition. The liability under the condition being several, therefore, does not affect the liability of the sureties to a joint action for the penalty, for which they are all jointly bound. The judgment must be for the whole penalty against each surety, if the actions were several. It is true it would be only a security for the liability of each under the condition; but to be discharged from it, precisely the same course must be pursued, whether the judgments are joint or several. There is then nothing in the provisions of the act, or in any reasons to be deduced from it, to require that the actions should be several; whilst every argument from convenience and economy, and the operation of established rules, is in favour of their being joint.
    Henry, in reply.
    The principles to be settled by this case are of great importance to the community. Their operation as to the parties to the present suit, is a matter of comparatively little consequence. The plaintiffs may be the sufferers, but they should have accommodated their case to the law; and not expect the law to be accomodated to their case.
    The bond in suit is either a statutory, or a common law bond. If the latter, then the present plaintiffs are not intitled to sue upon it; nor has there been any sufficient proof of its execution. But in fact the bond is altogether void : it is void under the statute, because the statute does not authorize such a bond as the defendants have executed ; and it is void at common law, because it was not intended by the parties to be binding, except according to the statute. M‘C. 433. The case of Davis is not analogous. The bond there was taken under the act of 1769, P. L. 270, and possessed all the incidents of a common law bond; the bond in this case possesses none of those incidents. The case of Steevens, 2. M‘C. 107, is more in point; but that case at least is not an authority for dispensing with regular proof of the execution of the bond. The question too is worthy of a reconsideration. To hold the sureties liable for a bond, which they believed the law required, but which the law did not require ; for which they received no consideration, and which was not intended as a voluntary bond; which they were under no moral obligation to execute, and which was made altogether under a mistake ; would operate a plain fraud upon them. It has been said, that they are the authors of the mistake, and therefore liable. In point of fact the sureties have nothing to do with the form of the bond; and although it is true, that the sheriff must have it prepared, yet the form of the bond must be approved by the officers of the public. It is the business of these officers to see that the bond is according to law; and if there is an error, they, or the public, whose agents they are, should be responsible. On these principles the bond must be regarded as void.
    The remaining questions have been so fully argued, that it would be taxing the patience of the Court to enter at length into any of them. One or two authorities only will be cited. There is a difference between a common bond for the performance of covenants, and one which in its nature is penal. The bond now in suit is of the latter description ; and on such a bond but one action can be maintained. Simms and Wise v. Slacum, 3 Craneh, 300. The judgment against Bates, and his discharge from the attachment, were a satisfaction of the debt. Hughes v. Blake, 1 Mason, 515. The judgment against Bates was not evidence to charge the sureties: they were neither parties, nor privies, nor could they have defended the action; nor were these proceedings any part of the res gestee. Taber v. Perrot, 2 Gallison, 565. Baring v. Fanning, 1 Payne, 549. 1 Stark. Ev. 223, 243, 252, 189.
   O’Neaul, J.

delivered the opinion of the Court.

In discussing these cases, I shall not pretend to consider the various grounds, which have been taken in arrest of judgment, for a nonsuit, or a new trial, in the order in which they have been set down in the brief; but in that order.and arrangement, which appears to me to be the most convenient for a correct understanding and decision of the cases.

The first question which I shall notice is, whether the actions against the obligors ought to have been several, and not joint. This question necessarily involves two considerations; 1st, as to joint actions against the sheriff and his sureties: and 2nd, as to actions against the sheriff alone. The act of 1795, after directing that the sheriffs of the several districts, with no less than five, nor more than twenty securities, shall execute bonds in certain sums, conditioned for the faithful discharge of the duties of their respective offices, provides, that “ the persons who shall be approved of and join in the bonds prescribed in this act, shall severally be held and deemed liable, each one for his equal part of the whole sum, in which the bond is given, (the said sum to be divided into as many equal parts as there shall be securities in the said bond,) and no more than such equal part, shall be in any court recoverable of or from any one of the said securities, his heirs, executors or administrators; but nothing fin this act contained shall operate to prevent the securities from having and maintaining amongst one • another, just and equitable aid and contribution, as in other cases of securityship, where there are several securities.” 2 Faust, 9.

In the construction of the act, were we to look to the clause alone, which I have just cited, there would be little difficulty in concluding, that the bond to be given under it was intended to be several and not joint. But the first clause directs, that the several sheriffs, with not less than five, nor more than twenty securities, shall enter into a bond in a sum afterwards prescribed in the act. This shows that it was intended, that they should be bound in a gross sum, and for it, as a penalty, that they should be jointly liable. The effect of the clause cited is, to relieve the sureties from the damages which may be assessed to the extent of the penalty, upon the payment of their respective aliquot shares of it. It may be regarded as an equitable condition annexed by law to the bond, that the sureties should each, to the amount of his equal share of the penalty, guarrantee the official good conduct of the sheriff. Still the whole penalty is the security for the payment of this smaller sum. This defence too, it must be remarked, arises out of the condition : it is matter in discharge of the penalty, and cannot therefore have the effect of discharging it, but upon beeing pleaded, and payment averred. The penalty is the debt demanded, and in a declaraiion upon it, the objection now raised would not appear, until the condition was set out on oyer; for until then, it wbuld not even appear to be a sheriff’s bond. Could the defendants set out the condition and demur, because the liability under the condition was several and not joint 1 It is clear they could not. For the Court would necessarily look to the penalty, and if the obligation to pay it was. joint, the several liabilities, arising out of the condition, could not change the previous joint debt. The bond in the cases before us is joint in its terms ; it is a common law instrument, taken under an act of the Legislature; and it must therefore be sued upon, and treated in all legal proceedings, according to common law rules. Being joint in its terms, all the obligors may be sued jointly. If the act, expressly, or by necessary implication, had directed that they should be sued severally, then of course the actions must have been brought accordingly: but there is nothing in the act which requires us to commit such an outrage on a very general and familiar principle of the common law. Nominally the whole penalty is recovered against all the' sureties, but in effect the equal share of each is recovered against each ; and in the enforcement of the judgment care will be taken, that not more than this shall be collected. The word “ recoverable,” used in the act, was not intended to mean the recovery by judgment, but the ultimate collection of the amount so recovered. It is used as synonymous with “ collected,” so that that part of the clause might read, “ and no more than such equal part shall be in any court collected of or from any one of the said securities, his heirs, executors, or administrators.” Treating the bond as joint and not several, prevents multiplicity of suits; and all the objects of the act, as to the protection of the sureties, are attained by sufficient guards being provided, to prevent the joint judgment from being enforced against any oaer beyond his equal share of the penalty. If therefore, convenience and utility ought to have, any weight in deciding a doubtful question, this would make it at once preponderate in favour of the construction now contended for. This reasoning applies to the sheriff himself as as well as his sureties: but its force, as to him is much strengthened by the fact, that his liability under the act, the bond, and the condition, is for the whole penalty. In a just construction of the whole act, as to him, the boud may be regarded as either joint or several, and he or his representatlves may he sued alone upon it.

Secondly. It has been contended, that the bond is void, because the penalty is twelve thousand dollars, whilst the act of 1795 has directed a bond to be taken for no more than seven thousand. It would be sufficient to say, that in the case of the Commissioners of the Treasury v. Davis, cited 2 N. & M. 426, it was decided, that although the bond of the sheriff was taken for a larger sum than that required by law, yet it was good : and that this decision has been recognized and confirmed in the cases of the State v. Mayson, 2 N. & M. 425, and the Treasurers v. Stevens, 2 M‘C. 107. But as the question has been again made and argued, with no little zeal and ingenuity, it is worthy of a passing notice, and of as much attention as my time and other duties will permit me to bestow on it. It is supposed that the bond, if not taken in exact conformity to the act, is void. But the act itself makes no such provision ; and unless it does, the objection is unavailing. For to .render a bond taken under a statute void, it must be so according to express enactment, or must be intended to operate as a fraud on the obligors, by colour of the law, or as an evasion of the statute. None of these things are found to exist in the case before us. The execution of the bond was the voluntary act of the sheriff and his sureties, and was intended to be a compliance with the act. Before entering on the duties of his office, he was required to execute a bond in a penalty of seven thousand dollars. The doing of this act was necessary to enable him to receive his commission : It was, in some degree, a part of, or rather the perfection of his title to the office. This being the consideration on which the bond before us was founded, it was good and lawful. The undertaking of himself and his sureties was, that he should faithfully discharge the duties of his office; and the covenant in this respect was that required by law. So far then there is nothing like a fraud on the obligors, or an attempt to evade the statute. But it is said, that the sureties are made liable, under this bond, for a greater sum, than by law they are required to be. If this was so, I am not prepared to say, that it would render the bond void. For it is a voluntary act, done without either actual or legal duress, upon, and for a good and lawful consideration, and purpose. The legal maxim that no one shall be allowed to take advantage of his own wrong, might render it difficult for the obligors to raise such an objection: but it is obvious, that to the extent of the penalty required by law, the bond would be a good and legal security. This was the purpose for which it was intended to be executed: the obligors were willing to guarantee the sheriff’s official good conduct, so far, and in fact to a greater sum. This greater sum includes the less: and it is by reference to the act, and for the purpose of relieving the sureties, it is found that seven thousand dollars is the extent of the liability, contemplated by law to be cast upon them. They have, however, voluntarily assumed a greater : and it is on- ■ ly upon the ground of mistake, that they are intitled to be discharged from the penalty, which they have voluntarily imposed upon themselves, by the payment of a less one.

The greatest difficulty in the case arises from a technical rule in pleading. The declaration must count for the penalty of the bond, and if the count, or judgment, were for a sum, different from that contained in the bond, the judgment would be arrested. Hence the declaration or recovery cannot be for the penalty required by the act. Each must be for the penalty of the bond as it in fact exists: and the benefit of the objection must be awarded to the sureties in the assessment of damages under the condition. These can only be assessed to the amount of the penalty required by the act. This case is supposed to differ from Davis’ case in this, that the provisions of the two acts, under which that bond and this were taken, are not the same, as to the liabilities of the sureties. The act under which Davis’ bond was taken does not, as the act of 1795, provide that each of the sureties shall be only liable for his equal part of the penalty. It imposes upon them an entire, ultimate responsibility. But that could have made no difference in the question; for it was taken for a greater sum than was required by law, and, as in the case before us, it extended the liability of the obligors beyond it. But this was all the objection which could exist in that case or in this: if it was untenable in that case, it must necessarily be so in this.

Thirdly. Can the plaintiffs, as successors in office of the original obligees, maintain this action in their own names, without an assignment 1 That they can, has not been questioned for thirty years. Suits have been repeatedly brought and sustained in the names of the successors of every public officer, on bonds executed by the obligors for the faithful performance of the duties of an officer, an administrator, or a guardian. Wherever a bond is executed to a public officer for the doing of an act, required by law, to be done by another officer, or to discharge a trust conferred according to law on sozne individual by the appointment of a public-officer, the bond in such a case is to be regarded as payable to the office and ziot to a named officer. In this respect public officers represent the people; they may be regarded as sole corporators, and intitled to take every thing belonging to their office by succession. The bond in these cases being to two named persons, as treasurers, and to their successors in office, and the plaintiffs, now before the Court, having, by succession, all the rights, which their office can confer upon thezn, they may legally maintain this action. Treasurers v. Wiggins, 1 M‘C. 568, and Dubose v. Hanks, decided at this place in December last, supra, p. 13.

Fourthly. It is urged that the declarations are insufficient, in ziot having averred that an execution against the sheriff had beezz returned nulla bona. In declaring on a sheriff’s bond, it is ozily necessary to declare ozi the penalty, without noticing the condition. This point was considered and discussed during the present term, in the analogous case of an administrator’s bond. Rice, Ordinary, v. Thomson, supra, p. 339. If, however, the declarations do set out the condition, but assign an insufficient breach, it would be fatal ozi demurrer, or in arrest of judgmezzt. In the case before us, sozne of the declarations set out the condition, and assigzi breaches, adznitted to be sufficient, unless they should have been accompanied with an averznezzt that an executiozi against the sheriff had been returned nulla bona. This necessarily z-aises two inquiries. 1st. Is it a necessary averment ? and 2d. Is not the defect, if one, cured by the verdict 1 I am satisfied, that in no case is it ziecessaiy to make such an averment. If the declaration were on the act itself, the provision under which this exceptiozi is taken, not being in the enacting clause, it would not be necessary to notice it: Bizt it must be borne in mind, that the declaration is on the bond, azid ozi settizig out the condition, it is only necessary to show, that it is broken, by assigning a specific breach. This is done by any instance of the sheriff’s failure to do his duty. The return of nvMa bona on an execution, is a part of the evidence required by the act, before the sureties shall be made liable to damages under the bond, for the official misconduct of the sheriff. It is matter of defence for them, if they choose to avail themselves of it by plea; or they may fold their arms, and wait for the plaintiffs to produce that evidence, and upon their failure move for a nonsuit. But it is only an additional defence provided by law for the protection of the sureties ; it forms no part of the condition of the bond appearing on the record, and although necessary to be made out in proof, it is not necessary to allege it on the record, to enable the plaintiffs to maintain the suit. Treasurers v. M'Guire, Harp. 474. Same v. Securities of Neuby, 1 M‘C. 184.

It is now, however, too late to make the objection if the omission were a defect. If enough appears on the record to enable the Court to pronounce judgment, the objection in arrest of judgment cannot prevail. The condition of the bond on the record appears to be broken, and the plaintiffs are intitled to judgment for the penalty. In such a case, any thing which the plaintiffs were, bound to prove to intitle them to the verdict, will, after it, be presumed to have been proved, and its omission to be stated on the record is thus supplied. The omission of the averment in this case, if it had been necessary to be made, was only matter of special demurrer, was amendable, and is cured by the verdict. 1 Ch. Pl. 401-2. 2 Tidd’s Practice, 826.

Fifthly. With regard to the pendency of other suits on the same bond. The suits were brought by different persons, who were aggrieved by the official misconduct of the sheriff, and stood for trial at the same term. The act of 1795, 2 Faust, 9, provides that the bonds may at all times be sued for by the public or any private person, who shall or may think themselves aggrieved by any misconduct of any sheriff.” It would be a sufficient answer, therefore, to say, “ ita lex scripta est;” and that every one who is aggrieved, has the right to sue the bond, and hence that the plea could not be sustained. But we think it is our duty to provide a rule, by which the ends of the law can be answered without an endless multiplication of law suits. The first suit in which a verdict is had, establishes the factum of the bond, and the judgment in favour of the nominal plaintiffs is for the penalty. We are therefore of opinion, that after judgment has been recovered upon the bond of a sheriff, it should stand as a gecurjty for any former or subsequent breach of it: and that any onei who may conceive himself aggrieved by the misconduct of the sheriff, should have the right to come in, and suggest the breach of the bond of which he complains, and pray execution for his damages; and upon serving a thirty day rule on the sheriff and his sureties, or as many as may be defendants, requiring them to plead to the suggestion, may for default of plea, or upon issue joined, have his damages assessed by the verdict of a jury, and have execution for the penalty, to enforce the payment of the damages assessed. In this proceeding it may be useful to conform, as near as the cases will admit of, to the forms which will be found in Gainsford v. Griffith, 1 Saund. Rep. 58, note 1.

The cases now before the Court, and considered as one case, are ten in number; and they may very properly be consolidated, for one judgment and execution will afford relief to all. A motion to consolidate is always addressed to the discretion of the Court; and if it will not delay the plaintiffs, and will relieve the defendant from unnecessary costs, and the actions are by the same plaintiffs, in the same right and form of action, it is always proper that it should be granted. In these cases no delay can take place, and the defendants will be relieved from the future costs of nine out of ten cases; the cases are in the names of the same plaintiffs on the record, and are in the same form of action, and indeed on the same instrument: they ought therefore to be consolidated. The case, in which the first verdict was rendered, is the one in which judgment must be entered and execution issued for all.

Sixthly. Are the admissions and confessions of judgment by ' the sheriff Bates, after he went out of office, admissible in evidence, to charge himself, and his sureties on his bond ? I place the admissions and confessions of judgment on the same footing : for I regard the confessions of judgment as nothing more than Bates’ hdmission, that as sheriff he had received so much money for the use of the plaintiff in each case. His admission of an official default is evidence against himself and his sureties, no matter when made. The only case, or dictum, supposed to be opposed to this, is that of the Bank v. Johnson, 1 Mill. 404. On looking into that case, it will be seen that it does not decide this question: it is expressly reserved, and the Judges were divided in opinion upon it. It is true that the distinguished Judge who delivered the opinion, maintains the position, “ that admissions of an officer, after he has gone out of office, cannot be given in evidence to charge his sureties,” with all the learning, ingenuity, and ability for which he was so eminently distinguished. But a slight reflection satisfies me that he was mistaken. If the sheriff while in office, admits that he has received the money of a party,' the admission, it is conceded, would be evidence to charge the sureties. Why 3 not because the sheriff’s admission of itself, constitutes the charge against them: but because it furnishes reasonable evidence, that while sheriff he did receive the money, and is accountable for it in that character. Does not his admission, after he went out of office furnish the same reasonable evidence 3 I take it that it does. It is to charge himself; and the legal presumption is, that no one will falsely charge himself. Against him it would be the highest and best evidence: and against his sureties it must be, at least,prima facie evidence. For they are his privies in law ; and whatever will in law charge him, will charge them. But these admissions and confessions of judgment are only prima facie evidence against the sureties. They may show, that they were made by mistake, or by fraud and collusion between an insolvent sheriff and his creditors. If the sum, admitted or confessed by the sheriff, is greater than he was really liable for, this may be shewn by the sureties in their defence. In 5 Binney, 184, it was held that a judgment, in an action against a sheriff alone, of which his sureties have no notice, is not conclusive evidence in a subsequent suit, upon the recognizance against the sheriff and his sureties jointly. So too, the sureties may show that the admissions and confessions were for liabilities, for which they had not undertaken to guarantee the sheriff’s good conduct; as for debts due by him in his private capacity, or for fictitious and unfounded demands. 1 Stark. Ev. 189, 223, 243, 252. Cureton v. Shelton. 3 M‘C. 412. The opportunity of making this proof will be afforded to the sureties in these cases on submitting the condition of the bond to the jury, to assess the damages at the next term.

Seventhly. The next question we shall examine is, whether the former recoveries against Bates, by confession, are a good plea in bar to the actions on the bond against himself and his suretjes> Generally a former recovery to be a good plea in bar müst be between the same parties on the record. There may be some exceptions, where satisfaction of the former recovery has " been made. As for example, if, in the cases before us, the judgments confessed ‘ by Bates had been satisfied, the recovery and satisfaction would have been a good plea in bar. For these two facts, together, would have shewn, that in this respect the condition of the bond was not broken. Looking to the record before us, and that set up by the plea, the plaintiffs are different, and on technical grounds this would dispose of the plea. But the subject is worthy of further examination, and on whatever merits the plea and defence may be supposed to rest, it cannot be sustained. The bond, as has already been shewn, is joint. The rule is that on a joint contract, all the obligors, covenantors or promissors, if alive, may be sued. If one is a bankrupt and has obtained his certificate, he must be sued jointly with the other joint contractors. He may plead his certificate in bar, and thereupon judgment will be awarded against the others, quasi survivors. 2 Maule & Selw. 23. Arch. Civ. Plead. 74. It is well settled, that if one joint-contractor is sued separately and a recovery had, and he is afterwards sued jointly with the others, he alone, against whom the recovery was had, can plead it in bar, and that the others have no right to make the objection, if he does not choose to rely on it. Sheehy v. Mandeville and Jamesson, 6 Cranch, 253. Collins v. Lemasters and Lee, decided at this place December. Term 1829. Neither of these cases, however, decide that it would be a good plea in bar for the defendant, against whom the recovery was had, in a joint action against all the contractors. I am satisfied it would not. For if it was, the party could never recover at all against the others: he must recover in a joint-action on a joint-contract against all the parties or none, except in the case of a certificated bankrupt, insolvent debtor, and perhaps an infant. Hence if the plea were good for one, it must he for all: and we have already seen that the others cannot plead it. The judgment against one of several joint-contractors, is a nullity; it may be arrested at any time before execution.

There is, however, another view of the question applicable to these and other cases of a similar character. I have already had occasion to shew, that on the record here the plaintiffs are different from the plaintiffs in the former recovery. The recovery to be had here does not depend on the same cause of action as in the former case. The gist of this action is the bond. ° When this is established, the defendants may insist that the condition is not broken, and if the recovery could shew this, then it would be a bar. But instead of this appearing, it is on the contrary, evidence of the sheriff’s default and a breach of the condition. In the analogous cases of suits on administrator’s and guardian’s bonds, a recovery in the ordinary’s court, or in the court of Equity is necessary to charge the administrator or guardian and his sureties on the bond. In such cases it has never been questioned that the former recovery is no bar. For it is only the evidence of the default upon which the condition of the bond is declared to be broken. So here the recoveries are the evidence of default, and not of satisfaction, or abandonment of the right to recover for it in this action. Upon a just construction of the act of 1795, I think it obvious that it does contemplate this double recovery. It provides, that if in a particular case the sheriff is pursued to insolvency, his sureties shall not, in a suit on the bond, for the same cause of action, be intitled to an imparlance. The case from 5 Binney, 184, is an authority also for this point. There the sheriff had been previously sued and a recovery had against him, and on a suit against himself and his sureties on their recognizance, it was not pretended that the former recovery could be a bar.

Eighthly. It remains to inquire, whether the arrest of the sheriff, by attachment, or ca. sa. and his discharge under the prison bounds act, is a discharge of himself and his sureties from liability under the bond. It is true that in Thurmond’s case, 2 Carolina Law Journal, 290, and in Daniel v. Capers, 4 M‘C. 237, it was decided, that an attachment was in the nature of a civil proceeding, and, in the language of the first case, is partly a criminal, and partly a civil process : yet neither of the cases supposes that it will be a satisfaction, unless satisfaction in part results from it. In the case of the Treasurers v. Johnson, 4. M‘C. 458, it was decided, that the arrest of the principal, under a ca. sa. and his discharge by consent under the provisions of the act of 1815, does not release his sureties. It would hence follow, that the arrest under a ca. sa. would not operate to discharge the sheriff, or his sureties, from their liability under the bond. An attachment, for the purpose of enforcing payment of money collected by a sheriff, is put upon the footing of a ca. sa. A discharge under the prison bounds act is only a discharge from confinement at the suit of the suing creditor for a year and a day. It cannot therefore be a discharge to the sheriff himself from the debt, much less to his sureties. The question may arise, when the sheriff, confined by an attachment, or ca. sa., is discharged under the insolvent debtor’s act, whether such a discharge will protect him from any recovery on his bond, and subject his sureties to a recovery against them quasi survivors: and to the affirmative of this question my opinion inclines.

Having thus cursorily disposed of the various grounds in these much contested cases, it only remains to give some general directions as to the manner in .which judgment is to be entered up, and execution issued, and proceeded upon, in such cases. The judgment and execution must be for the whole penalty, against the sheriff, and all the sureties who are alive. If the damages assessed are less than the penalty, they should be marked on the execution ; and upon this amount and the costs being- paid, it should be returned on the execution that the damages assessed and costs have been satisfied. If the damages assessed are more than the penalty, the execution should be marked, “ the whole penalty to be collected.” In any case where one of the sureties has paid his equal part of the penalty and the costs, he may require the sheriff or coroner to return the execution satisfied as to him : and if the fact is disputed, the sheriff or coroner should stay the enforcement of the execution, until the next term, when the Court will, on rule, decide whether satisfaction shall or shall not bo entered.

These cases are remanded to the Circuit Court, with directions to consolidate the cases, and to submit the condition of the bond to the jury to assess the damages of the plaintiffs, and upon that question to permit the defendants to show, that the judgments confessed by Bates were in any respect fraudulent. In the mean time the plaintiffs have leave in one case to sign judgment for the penalty: and for the same to issue and lodge an execution to bind property.  