
    *Bank of the Old Dominion v. McVeigh.
    November Term, 1879,
    Richmond.
    These are two actions of debt by the Bank of O D against J, the maker, and W as the endorser, of the notes sued on, pending in the same court, at the same time, in both of which, the defence and the evidence is the same. There is verdict and judgment for the plaintiff in one case; and the defendants propose to appeal. And then in the second case the following entry is made: “Bank of O I) v. J & a 1 — judgment by consent in favor of plaintiff for $10,760, the debt in the declaration mentioned, with interest thereon from the 1st day of January, 1866, till paid, and costs. Execution on the judgment to be stayed for ninety days; and in the event of an appeal being obtained and perfected in the Bank of O D v. J & al., decided at this term, then this judgment to await the decision of the court of appeals, and abide the result thereof in the said case: provided the appeal bond in that case be sufficient to secure the amount of both judgments. C, p. q.; B & W, p. d. The writ of error was obtained, but the appeal bond was only in the penalty of $200. The judgment was on the appeal reversed — Heed:
    1. Judgment toy Consent. — The entry in the second case, if a judgment at all, is a judgment by consent or confession, not absolute, but on the terms and conditions set out in the agre.eiment annexed.
    2. Same — Province of Court. — Under the agreement, which is a continuing one, it is competent for the court which rendered it to deal with it in a summary way, and see that its terms are complied with.
    
      3. Same — Validity.—The entry, taken in connection with the record of the case in which it was made, has the requisite certainty of a judgment as to parties, amounts, dates, &c., and is a valid judgment.
    *4. Construction, of Contracts. — In construing the agreement, to ascertain the intention of the parties, the court will look to the language employed, the subject matter, and the surrounding circumstances at the time of its execution, and thus to place the court in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them, and so to judge of the meaning of words, and of the correct application of the language employed.
    55. Same. — -So considering the agreement, the true construction is, that the stipulation for the suspension of the execution for ninety days, and also that the judgment should abide the result of the decision by the court of appeals in the other case, was in each particular absolute; and the giving of the bond was required as a condi- * tion precedent only to the suspension of the execution on that judgment while the other case was pending in the court of appeals on writ of error.
    6. Supersedeas Bond — Execution—Equity. —No supersedeas bond having been given, as pro-' vided in the agreement, if it was possible legally to give such, bond, execution could have been sued out at any time, to subject the personal property of the defendants, or proceedings in equity instituted and prosecuted to subject their real estate.
    7. Construction of Contracts. — If there were any doubts as to the construction which should be given to the agreement, that construction should be adopted which would be more to the advantage of the defendants, upon the general ground, that a party who takes an agreement prepared by another (as this was by plaintiffs’ counsel), and upon its faith incurs obligations, or parts with his property, should have a construction given to the instrument favorable to him; and on the further ground, that when an instrument is susceptible of two constructions, the one working injustice, and the other consistent with the right of the case, that one should be favored which standeth with the right.
    In July, 1871, there were two suitspending in the corporation court of Alexandria. One was an action of debt by the Bank of the Old Dominion against James H. McVeigh & Son and William N. McVeigh, and the other by *the Bank of theOld Dominion against James H. McVeigh. James
    Chamberlain and William N. McVeigh; though process was not served on Chamberlain. On the 22d of July, 1871, the first suit was tried, and there was a verdict and judgment in favor of the plaintiff against all the defendants for $12,323.55, with interest thereon from the 1st day of January, 1866, till paid, and costs. In the second case, it being known to the parties that the ground of defence and the evidence was the same as iij the first case, the following entry, which was prepared by the plaintiff’s counsel, was made in it:
    The Bank of the Old Dominion v. McVeigh & Chamberlain & al.
    Judgment by consent in favor of the plaintiff for $10,760, the debt in the declaration mentioned, with interest from the 1st day of January, 1866, and costs.
    Execution on the judgment to be stayed for ninety days, and in the event of an appeal being obtained and perfected in the case of the Bank of the Old Dominion v. James H. McVeigh & Son & al., decided at this term, then this judgment to await the decision of the court, of appeals, and abide the result thereof in the said case: provided the appeal bond in that case be sufficient to secure the amount of both judgments.
    H. O. Claughton, p. q.
    Brent & Wattles, p. d.
    James H. McVeigh and William N. McVeigh obtained a writ of supersedeas to the judgment in the first case; but they only gave a bond in the penalty of $200. The court of appeals reversed the judgment of the court below, and sent the cause back for a new trial; and on the new trial, whilst there was a judgment for the full amount of the former judgment against James H. McVeigh & Son, there was a judgment in favor of William N. McVeigh, to the ^extent that he was an accommodation endorser on the notes sued on, though there was a judgment against him for $806.05, with interest, on other notes discounted for his benefit; and this judgment was affirmed on appeal by the court of appeals.
    After the last decision of the court of appeals. James H. and William N. McVeigh moved the corporation court of Alexandria to vacate the judgment entered on the 22d of July, 1871, in the case of the Bank of the Old Dominion against McVeigh & Chamberlain & al.; and their motion was docketed, with leave to the plaintiff to demur to or answer the motion.
    At the January term, 1879, of the court, the plaintiff moved the court to strike out the motion of the defendants to vacate the judgment. But the court overruled the motion; and the plaintiff excepted. The plaintiff then demurred to the said motion; but the court overruled the demurrer; and the plaintiff again excepted. The evidence was then introduced, and the court rendered a judgment that the said judgment of the 22d July, 1871, entered by consent, be set aside, so far as concerns the defendant William N. McVeigh, and that as to the other parties thereto the.said judgment stand as it stood at the date of the entry. And the plaintiff again excepted, and applied for a writ of error; which was awarded.
    
      Claughton, for the appellant.
    S. F. Beach and John Howard, for the appellee.
    
      
       Construction of Contracts. — In Knick v. Knick, 75 Va. 12, the court said: “Although when the meaning of an instrument is clear, an erroneous construction of it by the parties to it will not control its effect, yet, where there is doubt as to the proper meaning of it, the construction which the parties have put upon it is said to be entitled to great consideration.” Citing Bank of Old Dominion v. McVeigh, 32 Gratt. 530; Railroad Company v. Trimble, 10 Wall. 367. See also Knopf v. Richmond, etc., R. Co. 85 Va. 769.
    
   BURKS, J.,

delivered the opinion of the court.

Want of jurisdiction in the court below of the proceeding by motion in which the judgment complained of here was rendered is assigned by the Bank of the Old Dominion as one of the errors in said judgment.

*The entry on the records of said court, SSd July, 1871, on which the motion was based, is in these words:

“The Bank of the Old Dominion v. McVeigh & Chamberlain & al.
“Judgment, by consent, in favor of the plaintiff for ten thousand seven hundred and sixty dollars, the debt in the declaration mentioned, with interest thereon from the 1st day of January, 1866, till paid, and costs.
“Execution on the judgment to be stayed for ninety days, and in the event of an appeal being obtained and perfected in the case of the Bank of the Old Dominion v. James H. McVeigh & Son & al.. decided at this term, then this judgment to await the decision of the court of appeals, and abide the result thereof in the said case; provided the appeal bond in that case be sufficient to secure the amount of both judgments.
“II. O. Claughton, p. q.
“Brent & Wattles, p. d.”

Now, if this entry be a judgment at all (and it is insisted by the learned counsel for the bank that it is), it is a judgment by consent or confession, not absolute, but on fhe terms and conditions set out in the agreement annexed. In such a case, under the agreement, which is a continuing one, it is competent for the court which rendered it to deal with it in a summary way and see that its terms are complied with. It is said in 1 Tidd’s Practice, 560, that when a judgment is confessed upon terms, in the king’s bench, it being in effect but a conditional judgment, the court will take notice of it and see the terms performed; but when the judgment is acknowledged absolutely, and a subsequent agreement made, this does not affect the judgment; and the court will take no notice of it. but put the party to his action on the agreement.

We do not doubt, therefore, that fhe corporation court *of the city of Alexandria had jurisdiction of the proceeding by motion to modify the judgment under the agreement of the 22d July. 1871, of record, if indeed there was any such judgment.

This brings us to consider the question raised by the petition of James H. McVeigh (who must, on said petition, be treated as a plaintiff in error), whether there ever was any such judgment. He insists that there was no such judgment, and that the court erred in treating the entry of the 23d July, 1871, as a judgment at all; that it was only an executory agreement of the parties by their counsel for a judgment, which in fact was never rendered, and that instead of recognizing and sanctioning it as a judgment as against him. the court should have treated it, in the proceedings which were had, as a mere agreement, and should have given judgment thereon accordingly as of the 8th day of January, 1879.

It would seem to be sufficiently clear that the entry referred to, taken in connection with the record of the case in which it was made, has the requisite certainty of a judgment as to parties, amounts, dates, &c. The caption, giving the style of the case, plainly describes the plaintiff, but not so the defendants. They are described generally as “McVeigh & Chamberlain & al.’.’ But as the bill of exceptions shows that the entry was made in said case of “The Bank of the Old Dominion v. McVeigh & Chamberlain,” we may look to the declaration and process in the suit to see who the defendants were. Thus looking, we find the writ commencing the suit was against James H. McVeigh and James Chamberlain, trading under the firm name of “McVeigh & Chamberlain,” and William N. McVeigh. The declaration is against the same parties, and the writ was served on all except Chamberlain, as to whom it was returned not found. The defendants. therefore, referred to in the caption to the entry were the defendants already named, except Chamberlain, he never ^having been before the court at any time, and the plaintiff, in fact, conceding that he was not embraced as a party in the entry of the supposed judgment. The amount recovered, if recovery it be, with interest, corresponds accurately with the amount and interest in the declaration demanded.

But the objection urged against considering this entry as a judgment is not so much for uncertainty as for the alleged absence of expression of judicial action. Tt is essential to a judgment that it be a judicial determination, an adjudication by the court. If this appear, the form is not so material. Consideratum est per curiam. &c., is the old technical formula and the one generally followed; but a literal observance of it. although advisable, is not indispensable; language of like import will suffice.

Now, what is meant by this entry: “Judgment, lay consent, in favor of the plaintiff for ten thousand seven hundred and sixty dollars, the debt in the declaration mentioned, with interest thereon from the 1st day of January, 1866, till paid, and costs”? It is an order entered by the court in a pending cause, by the consent of the parties, to be sure, but nevertheless an order of the court, it matters not by whom it was drawn, whether by clerk or counsel, and the language of the order is the language of the court. If it had been intended as a mere agreement of parties for a judgment, the language would have been different. It is not, that judgment is to be, or may be, or shall be rendered by the court, but it is the actual rendition of the judgment itself. And what difference is there in meaning and legal effect between the language employed, “judgment, bv consent, for the plaintiff,” &c.? and the usual formula, “it is considered by the court, by consent of parties, that the plaintiff recover the sum,” &c.? The meaning is the same. The term “judgment,” as used, imports judicial action — determination —adjudication—and “judgment, by consent, for the plaintiff for the sum” (named), is an ^adjudication that the plaintiff recover that sum. And so it has been considered and treated by the parties and by the corporation court. In the agreement annexed, it is styled a “judgment,” on which “execution is to be stayed, &c.” The motion of the McVeighs in the court below was a motion, in express terms, “to, set aside the judgment entered in the cause on the 22d day of July, 1871, same being a judgment in favor of said Bank of the Old Dominion,” and the corporation court acted upon it as a judgment, referring to it as “the judgment rendered in this court at the July term, 1871.”

Adjudged cases, some of which were cited by learned counsel in argument, in which the question whether particular entries amounted to judgments or not, was presented and decided, are numerous, and the decisions conflicting. We do not deem it necessary to review them, as we are of opinion, for the reasons already stated, that the entry, in question here was intended to be a judgment, and has all the essential qualities of a judgment.

The main contention in this case springs out of -the agreement already set out, which was annexed to the judgment. The record shows that the bond, called in the agreement an “appeal bond,” was never given. It is obvious that by the bond styled an “appeal bond” was intended a supersedeas bond, which should operate to suspend the execution of both judgments, and secure their payment in case of affirmance here of the judgment in the case of “The Bank of the Old Dominion v. James H. McVeigh & Son & al.” The bond which was given was a bond in the penalty of $200 only, and, though not set out in the record, was evidently such a bond as is required on awarding a writ of error without a supersedeas, the condition of which is for the payment of damages, costs and fees. The bond, or such one as the agreement provides for, not having been given, what was the consequence? How were the rights of the parties affected by non-compliance' with *this provision? The answer to this question depends on the construction to be given to the said agreement.

On behalf of the bank, it is contended that the execution of this bond was an essential part of the agreement that the judgment should abide the result of the decision by this court, on writ of error, in the case of the Bank of the Old Dominion v. J'ames H. McVeigh & Son & others, and was a condition precedent, the performance of which was necessary to entitle the Mc-Veighs to the benefit of that agreement; and as there was no performance, the judgment became absolute.

On-the other hand, it is insisted by the counsel for the McVeighs that the stipulation for the suspension of execution on the judgment for ninety days, and also that the judgment should abide the result of the decision by this court in the other case, was, in each particular, absolute, and the giving of the bond was required as a condition precedent only to the suspension of execution on that judgment while the other case was pending here on writ of error.

As said in the opinion in Talbott v. Richmond & Danville R. R. Co. (3 Va. Law Journal, 486), to ascertain the intent of the parties is the fundamental rule in the construction of agreements; (Canal Co. v. Hill, 15 Wall. 94); and in such construction, courts look to the language employed, the subject matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them, and so to judge of the meaning of words and of the correct application of the language to the things described. Nash v. Towne, 5 Wall. U. S. R. 689, 699. See also Maryland v. Railroad Co., 22 Wall. U. S. R. 105; Moran v. Prather, 23 Wall. U. S. R. 492, 501.

*Guided by these principles, we are of opinion that the construction placed on the agreement by the defendants in error is the proper one. It is the only reasonable one. Here were two suits pending at the same time, in the same court, between the same parties, presenting the same questions, and depending on the same evidence. After trial, verdict and judgment in one case, with which the defendants were dissatisfied, and, for correction of alleged errors, intended to apply to the appellate court, what more natural and reasonable than that it should be agreed between the parties that the decision in one case by the appellate court should be conclusive of the other, and that, pending the litigation in that court, the plaintiff’s rights in the latter case should not be impaired or prejudiced? Hence, that the plaintiff should have immediate judgment in the second case, as in the first, and execution of- the judgment should be suspended and await the decision of this court in the other case, provided security was given against loss occasioned by such suspension. Such an arrangement would. avoid the expense, delay and vexation attending the trial of one of the cases in the court below and a prosecution of a writ of error in the same case here. And such, we think, was the agreement actually made.

There was judgment for the plaintiff by consent, and there is no doubt that the agreement provides for an unconditional stay of execution for ninety days. “In the event of an appeal being obtained and perfected” in the other case, a further stay is provided for, but it is conditional, as expressed by the concluding words, “provided, the appeal bond in that case be sufficient to secure the amount of both judgments.” We think, that construing this agreement in reference to the subject matter and in the light of the surrounding circumstances, with a view to discover the intention of the parties, we are warranted in transposing parts of it, so as to read thus: “Execution on the judgment to be stayed for ninety days, and in the *event of an appeal being obtained and perfected in the case of the Bank of the Old Dominion v. James H. McVeigh & Son el al., decided at this term, then this judgment to abide the result in said case, and await the decision of the court of appeals, provided the appeal bond in that case be sufficient to secure the amount of both judgments.” By this transposition — an expedient in the construction of instruments, when not forbidden by the plain meaning, often resorted to in the furtherance of a reasonable and probable intent, and sometimes rendered necessary to avoid conclusions so repugnant to a sense of justice and sound reason as to be not fairly imputable to the parties — the judgment is “to await the decision of the court of appeals,” that is, as we interpret the language, is not to be enforced while the other case is pending in the court of appeals, “provided the appeal bond in that case be sufficient,” &c. — this proviso or condition, in its application, being confined to the suspension of proceedings to enforce the judgment, and having no relation to the agreement that the judgment is “to abide the result” of the decision in the other case.

The agreement thus read expresses, we think, the true meaning of the parties, and that is, that the decision by this court in the case of the Bank v. James H. McVeigh & Son and others, should control the judgment in the other case, and while the former case was pending here, execution and other proceedings to enforce said judgment should be suspended, provided an “appeal bond” — that is, a supersedeas bond — was given in the case here sufficient to secure both judgments. If no such bond should or could be given (and we do not see how, under the statute, such bond to secure both judgments could be given, Codeof 1873, ch. 178, § 13),tile hands of the plaintiff would not be tied, nor its rights in any way impaired or prejudiced. Execution at law could have been sued out at any time to subject the personal property of the defendants, or ^proceedings in equity instituted and prosecuted to subject their lands.

The agreement we are construing was drawn by the plaintiff’s counsel, and was doubtless hr*tily prepared and executed al the termination of the trial in the first case, and probably in the midst of the business^ of the court. However that may be, it is difficult to believe, that the intelligent counsel for the plaintiff would ever have demanded, or the equally intelligent counsel for the defendants have assented to such an agreement as this is, if now rightly construed by the learned counsel for the plaintiff in error here. Tf his construction is right, the defendants agreed to confess judgment for a debt of large magnitude, which they denied they owed, and to continue bound by it, unless they performed a condition, which it was practically, if not legally, impossible for them to perform, and that too although it should be authoritatively determined in the manner agreed upon, that they did not owe one dollar of the debt. It is in the highest degree improbable, that the defendants or their counsel so understood the contract when it was entered into. The defendants were under no such stress as to be forced into an undertaking of such a character. They might have proceeded with the trial of the second case, and if verdict and judgment had been rendered against them, they might, by writ of error in that case, have tested the correctness of the decision in the appellate court, as they did in the first case, and with like result. And this course would no doubt have been pursued, if they had not supposed that the same end would have been attained by the agreement made.

Although where the meaning of an instrument is clear, an erroneous construction of it by the parties to it will not control its effect, yet where there is doubt as to the proper meaning of if, the construction which the parties themselves have put upon it is said to be entitled to great consideration. *Railroad Co. v. Trimble, 10 Wall. U. S. R. 367, 377.

Notwithstanding the writ of error was awarded by this court in the first case in 1871, and the plaintiff in error then failed to give such bond as the agreement required, and the case was not decided by this court until 1875, and on the second writ of error, not until 1876, the plaintiff did not, in the meantime, take, nor has ever taken, any steps to enforce the judgment in the second case, thereby seeming to construe the agreement to mean, as the defendants construed it, that the judgment in the second case was to abide the result of the decision by this court in the first case, whether the bond required by the agreement was given or not

It is not to be supposed for a moment, under the circumstances of the litigation between these parties, that the plaintiff would have delayed all this time, or even at all, after the failure to give the bond, to prosecute his remedies on a judgment by which the defendants were considered as irrevocably bound. The delay can be reasonably accounted for only, as it seems to us, upon the supposition that it was the agreement and understanding, recognized by both parties, that the judgment confessed in the second case should be controlled by the final decision of this court in the first, and “abide the result thereof.”

Again, as has been said in another case, if there were any doubt as to the construction which should be given to the agreement, that construction should be adopted which would be more to the advantage of the defendants, upon the general ground that a party who takes an agreement prepared by another, and upon its faith incurs obligations or parts with his properly, should have a construction given to the instrument favorable to him; and on the further ground that when an instrument is susceptible of two constructions, the one working injustice and the other consistent with the right of the .case, that one should' be favored *which standeth with the right. Noonan v. Bradley, 9 Wall. U. S. R. 394, 407.

Of the two constructions put upon the agreement in this case by opposing counsel, the-one we have adopted “standeth with the right”; and is consistent with sound reason, as we think, and we are of opinion, upon the whole matter, that there is no error in the judgment complained of here, and that it should be affirmed.

MONCURE, P., dissented.

Judgment affirmed.  