
    *Pate v. Spotts.
    Decided, Oct. 11th, 1819.
    1. Penal Bond — Judgment on Reversal of. — If, to a declaration in debt on a bond for making a title to a tract of land, the defendant plead "Covenant performed,” and a verdict and judgment be rendered, (as in Covenant,) for damages for non performance; saying nothing of the penalty of the bond; such judgment ought not to be reversed at the instance of the defendant; for such irregularity can not be injnrions to him; because the true ground of the action appears by the declaration, and the satisfaction thereby demanded extending to the whole injury, the action can in no form be repeated.
    2. Bond — Condition to Make Title — Debt -Proof of Demand of Deed. — In debt on a bond conditioned that the obligor shall make a title to a tract of land, when thereunto lawfully required; if the defendant plead covenant performed, and Issue be joined thereupon, the plaintiff is not bound to prove on his part any demand of a deed.
    3. Writ — Resorting to, Where No Oyer Prayed. — If the writ be in Co venant, and the declaration in debt, to which the defendant plead Covenantperiormed; the writ (though not made part of the record by Oyer) may be resorted to, at the trial, to shew the true date of the institution of the suit; and the Court may instruct the Jury that a deed executed after the date of the Writ, (though before the filing of the declaration,) is no performance of the condition of the bond declared upon.
    On the 10th day of July 1804, a Capias ad respondendum in Covenant, was issued, from the Clerk’s office of the formerDistrict Court holden at the Sweet Springs, in behalf of George Spotts against John Pate. This Writ being returned executed,  a declaration or Covenant broken, was filed in October 1805; but, afterwards, leave being given to amend the declaration, another was filed, in debt on a bond with collateral condition. The defendant pleaded, “that he hath not broken his Covenant in manner and form as the plaintiff against him hath complained, and of this he puts himself upon the Country; and the plaintiff likewise.” On Motion, he was afterwards permitted to withdraw that plea, and plead anew; whereupon, he pleaded, “that the plaintiff ought not to have and maintain his action aforesaid, because he saith he hath performed the Covenant according to the form and effect of his Covenant,, and this he is ready to verify; to which plea the plaintiff replied generally.”
    On the trial of the issue thus joined, which took place before the Superior Court of Botetourt, the plaintiff, to support his action, offered as evidence to the Jury a Bond, dated the 13th of July 1797, in the penal sum of one thousand pounds, with a condition for making to the plaintiff a title to a tract of land therein described, “whenever he the said John Pate should be thereunto lawfully ^'required;” which bond did not vary from that described in the declaration. The same being read, the defendant moved the Court to instruct the Jury, that the plaintiff, to maintain an action on the said writing obligatory, must piove a demand made, of the defendant, for the deed, title, or conveyance therein covenanted to be made, before the suing out of the original writ in this cause; but the Court refused to give instruction, and stated to the Jury that the service of the original Writ was a sufficient demand; and the subsequent execution by the defendant of a deed, (set forth in haec verba, duly recorded upon the defendant’s acknowledgment in Court, and bearing date 21st of May 1805,) was not a performance of the condition of the writing obligatory declared upon; and that no other demand was necessary to entitle the plaintiff to maintain his actionto which opinion of the Court the defendant excepted.
    The Jury found a verdict, “that the defendant hath not performed the Covenant in the declaration mentioned, but hath broken the same in manner and form as the plaintiff against him hath complained ; and assessed the plaintiff’s damage by occasion thereof to 4001. with lawful interest thereon, from the 10th of July 1804, until payment, besides his Costs:” — and Judgment was entered accordingly.
    The defendant applied for, and obtained; a Writ of Supersedeas to this Judgment, assigning in his petition the following reasons; — 1st, because the Writ, plea and Judgment are all in Covenant, and the Declaration is in debt; and the Judgment being only for damages, as in Covenant, and not for the penalty under the act of Assembly in that case made and provided, it is no bar to another action for another alledged breach, on which damages may be recovered beyond the penalty : — 2d, because the plea was no direct answer to the declaration, and only proper to an action of Covenant, which was the action brought; and no issue was made up: — 3d, because the opinion given by the Judge was erroneous and contradictory-erroneous, in stating that the plaintiff, in order *to maintain an action on the writing obligatory in the declaration mentioned, need not prove a, demand of a Conveyance, although, by the express terms of the condition of the said writing obligatory, the conveyance was to be made when lawfully demanded; and contradictory, in stating that the bringing the suit was a demand, and yet that a conveyance, made after and upon such a demand, was no performance. “The said opinion was also er~ roneous in this, that it stated that the conveyance offered in evidence was no performance; which opinion, if it involved the question whether the land passed by a Deed, was a question of fact, which ought to have been left to the Jury; and, if it related to the date of the deed, as being posterior to the suing out the Writ, was not correctly given, as it is stated, in general terms,'that “it was not a performance, &c. ” It was also erroneous in another respect; as, the Writ being in Covenant, and the Declaration in Debt, the action is only sustainable by disregarding the Writ, and considering the Declaration as the beginning of a new and separate action; in which case, the Conveyance, which bore date before the filing of the declaration, must be considered as a performance before the bringing of that suit.”
    Wickham for the plaintiff in error.
    Leigh, contra,
    
      
       See principal case cited in wilson v. Spencer, 11 Neigh 279, 280; wheeling v. Block, 25 W. Va. 285.
    
    
      
       Note. Oyer was not prayed of the writ.
    
    
      
      a) Note. See Herbert v. Wise. 3 Call 213.
    
   JUDGE) ROANE)

pronounced the Court’s opinion.

Considered as an action of Covenant, the judgment in this case is unexceptionable in it’s form; and, considered as an action of debt, although the judgment, in that case, should have been for the penalty, to be discharged by the sum found by the Jury, yet this irregularity is not injurious to the appellant, and therefore affords no ground to reverse the judgment. It is not injurious, because, being an action, (as appears by the declaration,) fora failure to make a title to a tract of land, this remedy extends to the whole injury, and the action can in no form b#repeated.

*On the merits, the Court is further of opinion, that no proof of a demand of a Deed was necessary to be given, upon the issue joined in this cause; and that, if the Deed, stated in the instruction to have been made, is unexceptionable in other respects, it is a radical objection to it that it appears by the bill of exceptions to have been made after the institution of the suit.

Judgment affirmed.  