
    John Hawkins’ Executrix v. Nelson Berkley.
    October Term, 1793.
    Pleading — Bonds—Declaration—Breach—When Variance Immaterial after Verdict — Case at Bar. — Bond, with condition, that the defendant would faithfully collect certain debts due to the obligee, and would pay the amount so collected, and return an account of his collection, and surrender all bonds not fully paid, when required, except such as might be lodged with clerks, or lawyers, to bring suit on, the obligor agreeing to perform the duty of a collector, and, in all things relative to the business, to act for the benefit of the obligee, to-the best of his skill. The declaration on this bond lays the breach on the defendant’s neglecting to bring suits for the recovery of the debts, &c. The variance is not material, particularly after verdict — if it was material, the defendant might have-demurred.
    This was an action of debt, brought by the appellee in the County Court, upon a. bond, given by the testator of the appellant, with condition, that the said John Hawkins, would faithfully collect on commission, certain debts due to the appellee by bonds, (as by list annexed,) and would pay the amount so collected, and return an account of his collection, and also-surrender up all bonds not fully paid, when required; (except such as might be lodged with clerks, or with lawyers, to bring suit on,) the obligor agreeing, to perform the duty of a collector, and in all things relative to the business, to act for the benefit of the obligee, to the best of his skill. The defendant pleaded, that he had performed the conditions of the said bond. To this the plaintiff replied, protesting that the defendant had not performed the conditions of the said bond, and assigned as a breach, that the said Hawkins, did not well and truly collect the several sums of money, due on the bonds, contained in the list, to the said writing obligatory annexed, nor use his best endeavors to collect the same without delay; but that he omitted, to make timely application for those debts, and neglected to-bring suits for their recovery, tho’ often requested so to do, as also to render an account of his collection ; but that on the contrary, he refused to account, or to pajr the whole of the monies collected at any one period, and at all times, retained a considerable part thereof, as well as of the bonds, &c. to this the defendant rejoined gen-eralljr. The jury found a verdict in favor of the plaintiff, for £5, which was set aside by the court, and a new trial awarded. The second verdict was in favor of the defendant, which being also set aside, the jury upon the third trial, found for the ^'plaintiff, ,£914 in damages. The defendant then moved for a new trial, which was over-ruled. The judgment was affirmed upon an appeal to the District Court of Richmond, where judgment was entered for the damages and costs of that court, to be levied of the goods &c. of the testator, in the hands of the executrix, if so much she had, if not, then of her own proper goods. From this Judgment the executrix appealed.
    Marshall for the appellant.
    The objection relied upon in the District Court went principally to the number of new trials awarded by the County Court, but X do not consider that as a point which can be insisted upon.
    X shall confine myself to the variance, between the breaches assigned, and the condition of the bond upon which the suit is founded; and if it should be considered as material by the court, it will of course be fatal to the judgment. The rule of law is well established, that if any one of the breaches assigned, be for the non-perform-anoe of a duty, which the obligor hath not undertaken to execute, and general damages are assessed, the verdict is bad. One of the breaches in this replication is, that the testator did not bring suits upon the bonds put into his hands, and there is no part of the condition of his obligation, which imposes this as a duty upon him. If I am right in this objection, the judgment of the County Court must be reversed.
    The next error, which I think the record exhibits, is in the judgment of the District Court. The executrix is condemned, to pay the damages out of her own estate, in case of a deficiency of assets. I do not recollect any precedent of this court upon the point, and therefore, if I am not precluded by any such from making the objection, I shall contend upon principle, as well as upon the act of assembly, that the damages ought not in any event, to be paid by the executrix. Nothing could be more unjust, and unreasonable, than to punish an executor, for his endeavours to preserve his testator’s estate, from theeffecis of a judgment, which he may suppose to be erroneous.
    It would seem, to be a duty imposed upon him, from the very nature of his office. He would, (I conceive,) be highly reprehensible, were he to submit to a decision, (perhaps ruinous to creditors and legatees,) in his opinion erroneous.
    The damages upon reversal, are given in lien of all damages, or interest, which makes them a part of the debt due from the estate, and should therefore be chargeable upon the same fund, as the principal.
    wRonold for the appellee.
    I admit the law upon the first point, to be as Mr. Marshall states it; bul I deny the application of it to the present case. By the condition of this bond, Hawkins undertakes to vise his best endeavours to collect the debts, and if coercive measures were necessary for that end, he was bound to make use of them. It was an essential part of his duty, which he was as much bound to perform, as he was to demand payment of the debts. So that the breach, tho’ not assigned in the very words of the condition, is in strict conformity with the meaning and spirit of it.
    As to the second objection, if it were to prevail upon the ground of hardship, it might go a great deal farther than Mr. Marshall expects; for it certainly is not more unjust that, the executor, should out of his own pocket, satisfy the damage occasioned by his own act, where his testator’s estate is insufficient, than in cases, where he is charged for a false, or perhaps unskillfully drawn plea.
    Marshall in reply.
    The right of a collector, to institute suits indiscriminately, and thereby, to subject his principal to the possible payment of costs, must depend upon the special authority given him. A collector, may certainly be cloathed with such powers — or a man may collect, and yet hot possess them. If they are meant to be delegated, it is easy to express such intention, and words of exclusion cannot be necessary. The agreement of the obligor, to return all bonds not in suit, proves nothing against me, because Berkley might chuse to direct the institution of suits himself.
    
      
      The principal case is cited in Buster v. wallace, 4 Hen. & M. 88. See monographic note on “Bonds” appended to ward v. Churn, 18 Gratt. 801.
    
   LYONS, J.

delivered the opinion of the court.

The variance between the condition of the bond and the breach assigned is not material. Agreements are always to be construed, according to the evident intent of the parties, appearing from the deed itself, without a rigid adherence to the letter. This rule is laid down in the case of Freshwater v. Eaton. Str. 49, and is certainly a correct one. It is plain, that the intention in this case, was to vest in the collector a power to bring suits, and that the exercise of such a power, was necessarily involved in the undertaking on his part.

The case of Bache and others against Proctor Dougl. 382, is stronger than the present. The condition of the bond was, to render a fair, just, and perfect account in writing, of all sums received. It was determined, that the obligor was guilty of a breach of the condition, by neglecting to pay over such sums. Besides, the objection in' this case comes after a verdict. The defendant, *if he had considered the variance as maLerial, might have demurred.

Judgment affirmed.  