
    Britton vs. Thompson.
    
      A plaintiff cannot assign for error that which was for his own advantage.
    Where suit was brought upon a bond for three thousand dollars, which from the pleadings appeared to he unconditional, and the jury find “that the defendant has not paid the debt in the declaration mentioned, but that the same may he discharged by the payment of §779 75,” for which amount judgment is rendered: Held, that if this was error it operated ¡in'davor of the plaintiff in error, and the judgment at his instance, ought not to he reversed.
    'When the declaration upon a bond alleged, “that on the 23d June, 1828, <by their writing obligatory, sealed with their seals, the defendants bound •themselves to pay to the plaintiff three thousand dollars:” Held, that ■this was a sufficient averment and allegation of the contract, and execution of the bond.
    When the suggestion of the death of a co-defendant, and that he had •no personal representative, appears in the record, although placed by the ■clerk after the finding of the jury, and rendition of judgment against the ■surviving defendant, the entry is informal; but it is not error, for which the judgment ought to be reversed.
    This was a suit upon a bond for three thousand dollars; the condition, if there was ary, is not set out either in the declaration or in the pleas. The declaration alleges, “that on the 23d June, 1828, by their writing obligatory, sealed with their seals, the defendants bound themselves to pay the plaintiff three thousand dollars,” &c. The pleas are, set off and payment.
    The suit was originally brought against Jason Thompson and Robert C. Thompson; Robert C. Thompson died; his death was suggested June term, 1831. At the December term, 1831, an order was made abating the suit as to R. C. Thompson; it being shown to the court that he had no personal representative, and plaintiff proceeded to trial against Jason Thompson. The verdict is “that the defendant has not paid the debt in the declaration mentioned, but that the same be discharged by seven hundred and seventy-nine dollars and seventy-five cents, and that the delendant is not entitled to any set offs.
    The court rendered judgment for the $779 75, without rendering a judgment for the penalty of $3,000 to be discharged by its payment. The suggestion of R. C. Thompson’s death, and that he had no personal representative, is placed by the clerk in the record immediately after the statement of the finding of the jury.
    
      C. D. Shrewsbury, for plaintiff in error.
    1. The first question is, whether this declaration is good, considering it as upon a demurrer.
    This bond was taken under the act of 1825, ch. 45, sec. 1, which enacts, “that all guardian bonds shall be made payable to the chairman of the court of pleas and quarter sessions, and his successors in office, for the benefit of said orphan, &c. and it may be lawful for any person injured by reason of any breach of the condition of such bond, to prosecute a suit, &c. and shall and may recover damages, which he, she or they may have sustained.” Sutton and wife, to bring themselves within the act, must show breaches upon the record.
    The language is stronger than the 8th and 9th 3 Wil. ch. 11, sec. 8. And it is well settled upon that act, that the declaration is bad, unless breaches of the condition are suggested upon the record. 3 San. Rep. 187, note a, Roberts vs. Marutt: 5 Term. Rep. 541, Roles vs. Rose-well: 5 Term Rep. 637, Hardy vs. Bern: 2 Bur. Rep. 825, Collins vs. Collins.
    The breaches assigned on a guardian bond should be, 1st, not improving the estate; 2d, not surrendering the same when demanded; 3d, not acting according to law on his bond. 3 Yerg. Rep. 461. Breaches on administrators’ bond must be set out with certainty, and particular and specific breaches shown. Peck’s Rep. 285.
    2. Is the judgment rendered in this cause under the act of 1801, ch. 6, sec. 66, good? The act provides, that in all actions of debt brought upon any bond for the payment of money, or upon bonds with collateral conditions, wherein the plaintiff shall recover, judgment shall be entered for the penalty of such bond, to be discharged by the payment of the principal and interest, or the damages assessed by the jury,” &c. This act is compulsory in its provisions, and must be strictly complied with. It declares, judgment shall be for the penalty, to be discharged by the payment of principal and interest, or the damages assessed by the jury. In the present case there is no judgment for the penalty to be discharged by payment of principal and interest, or damages by the jury assessed; therefore, as this judgment does not comply with one single requisition of the act, it must be considered as erroneous, and for nothing esteemed.
    3 By the act of 1825, ch. 65, sec. 1, it is provided, that where one or more defendants die, pending a suit, it may be revived at any term before the trial of such suit, provided, if there be no executor or administrator to such deceased defendant, the plaintiff may suggest the death of such defendant upon record, and that he has no executor or administrator, and satisfy the court that such is the fact, and proceed to trial and judgment against the surviving defendant, &c. As appears from the face of the record, it seems that it was not made appear to the satisfaction of the court, from the suggestion of defendant’s death, until after the rendition of the judgment, that there was no executor or administrator against whom to revive the same; all which should have appeared to the satisfaction of the court before they proceeded to trial, and judgment against the surviving defendant. For which error alone, apparent on the face of the record, the court here will feel bound to reverse.
    
      G. S. Yerger, for defendant.
    1. By the act of 1825, the plaintiff had a right to proceed against Jason Thompson alone after the death of R. C. Thompson, and the suggestion that he had no personal representative. These facts, although informally, are substantially stated, and as they do not affect the merits, the court will not reverse.
    2. The mode of entering up the judgment is informal; but supposing this bond to be upon a condition, it is substantially the same as is required by the act of 1801, ch. 6, sec. 66. But should the court think a strict and literal compliance with that act necessary, they will reverse the judgment, and, proceeding to render such judgment as the circuit court ought to have rendered on the finding of the jury, will now render judgment for the penalty, to be discharged by the damages assessed, with interest from the time of the judgment below. 5 Hay. 36.
    3. But this declaration is upon a bond for three thousand dollars; the declaration does not aver there was any condition; nor do the pleas of the defendant. How can it then be said to be a guardian bond, or a bond with a condition? The plaintiff, strictly speaking, would have been entitled, from the finding of the jury to a judgment for $3000. If he is satisfied with the judgment, the defendant cannot complain, or allege that for error which was for hi's own advantage. 2 Sanders, 46: 1 Arch. Pr. 228.
   Green, J.

delivered the opinion of the court.

The declaration alleges that Robert C. Thomson and Jason Thompson, on the 3d day of June, 1828, “by their certain writing obligatory, of the date aforesaid, sealed with their seals and to the court shown, whereby said defendants, by the name and description of R. C. Thompson and Jason Thompson, bound and obliged themselves, their heirs, executors and administrators, jointly and severally, firmly, to pay said plaintiff for the use aforesaid, the sum of three thousand dollars; yet, &c.”

To this declaration, the defendants plead in short, * ‘payment and set off.”

The jury find that “the defendant has not paid the debt of three thousand dollars, in the declaration mentioned, but the same may be discharged by the payment of seven hundred and seventy-nine dollars and seventy-.five cents, and that the defendant is not entitled to any set off.” Upon this finding, the court pronounced judgment for the sum of seven hundred and seventy-nine dollars and seventy-five cents, as found by the jury.

The counsel for the plaintiff in error insist, that the obligation set out in the declaration ought to be considered as a guardian’s bond, and as such, the condition should have been set out in the declaration, and breaches averred.

There is nothing in the pleadings to show that the obligation declared on has any condition, and we must treat it as a private obligation entered into by the defendants to pay the plaintiff three thousand dollars.

It is objected that the declaration does not sufficiently set out and allege the contract. We think it does. It alleges, that on the 23d June, 1828, by their writing obligatory, sealed with their seals, the defendants bound themselves to pay the plaintiff three thousand dollars. This is as distinct an allegation of the execution of the bond as could have been made.

The next objection is to the finding of the jury and to the judgment. The verdict is very informal. They find that the defendants have not paid the debt fin the declaration mentioned, and that they have no off set. From aught that appears, a judgment for the debt of three thousand dollars, the debt in the declaration mentioned, might have been pronounced. But the jury also find, that the three thousand dollars may be discharged by the payment of seven hundred and seventy-nine dollars and seventy-five cents. For this latter sum the judgment was given. Of this the defendant has no right to complain. In an action of debt against him, on a bond for three thousand dollars, to which he pleads payment and set off, both of which pleas are found against him, a judgment for only seven hundred and seventy-nine dollars and seventy-five cents is rendered. As the plaintiff, whose interests seem to be injuriously affected by it, is satisfied with this judgment, we are not authorized to reverse it for the informality of the finding of the jury.

It is insisted, that the suit was not properly abated as to R. C. Thompson, to authorize the plaintiff to proceed with the cause against Jason Thompson according to the provisions of the act of 1825, ch. 65, sec. 1. The entries of the suggestion of the death of R. C. Thompson, and that he had no administrators or executors, are very informal, and stand in the wrong place in the record. The clerk, instead of entering on the minutes the suggestion that there were no administrators or executors of R. C. Thompson, and that the court was satisfied of that fact before the trial, has introduced these facts at the conclusion of the entry in which judgment is rendered. We think, however, that the directions of the act of 1825 were substantially pursued, and that none of the objections reach the merits of the case.

Judgment affirmed.  