
    Atwell’s Administrators v. Towles.
    
    Thursday, April 19, 1810.
    1. Bonds Joint Obligation — What Constitutes Case at Bar. — At the foot of a bond, with a penalty and condition in the usuai form, signed and sealed by J. S., a writing is signed and sealed by T. A., in the following words: ‘T, T. A. loin in the aboye obligation with J. S., and am his security for the above sum of —, (mentioning the sum specified in the condition:) this, it seems, is a joint obligation; and judgment may be rendered against T. A. for the penalty, to be discharged by the sum in the condition, with interest.
    2. Samet — Same—Assignment— Sufficiency. An assignment of such an instrument, by the words, “I assign the within obligation.” is a good assignment of the claim upon T. A. as well as J. S.
    
    3. Same;- — Same—Declaration against Administrator of One Obligor — Allegations.—Quaere, whether a declaration against the administrator of one of two joint obligors, averring that neither the defendant, nor the other obligor, nor any representative of his, had paid the debt; (without stating that such other obligor was dead, or that the defendant’s intestate had survived him;) and alleging, in assigning the breach, that right of action had accrued, under the premises, against the defendant's intestate, (without setting forth in what manner,) be good after verdict?
    4. Samet — Debt on  — Judgment—Form.—In an action of debt on a bond, the judgment is always entered for the penalty, tobe discharged by the principal and interest: and, if that exceed the penalty, the defendant has his election, and may satisfy it by paying the penalty.
    5. Samet — Satisfaction.—The taking in execution the body of one of two joint obligors is no satisfaction of the debt, and does not bar an action against the other obligor.
    
      6. Evidence — Copies—Statute.—By virtue of the 24th section of the District Court law of 1793, the copies therein allowed, are good evidence in suits brought since that act took effect; although the filing of the originals was before that time.
    In an action of debt on behalf of Towles, executor of Lewis, against Thomas Atwell’s, administrators, the instrument declared upon was a bond in the usual form, from a certain Johnson Smith to Michael Montgomery, in the penal sum of 1791. 14s. 4d, dated the 9th day of June, 1783, and conditioned to be discharged by the payment of 891. 17s. 2d. the first day of September then next ensuing; with a writing underneath in the following words:
    “I Thomas Atwell, of Prince William, do join in the above obligation with Johnson Smith, and am his security for the above sum of eighty-nine pounds seven-176 teen shillings *and two pence: as witness my hand and seal this 21st day of June, 1783.
    “Thomas Atwell. (Seal.) “Teste Nathan Hayes.
    “Richard Scott.”
    On this instrument, a suit was brought in the General Court against Johnson Smith; in the progress of which Thomas Atwell became his special bail, and surrendered him to the Sheriff of Prince William. At a General Court held April 27th, 1786, he confessed judgment in custody, and the Sheriff was ordered to retain him in execution. Fourteen years after this, viz. in 1800, the suit now in question was brought in the Haymarket District Court, by Oliver Towles, executor of Thomas Towles, who was acting executor of Nicholas Lewis, who was assignee of Butler Bradburn, assignee of Michael Montgomery, against ■Charles Atwell, administrator, and Anne Atwell, administratrix of Thomas Atwell, deceased.
    The declaration made proferí of a certified copy of the bond and endorsements, obtained from the files of the General Court, (the original not being in the plaintiff’s power or possession,) and set forth particularly the penal part; the condition; the writing signed and sealed by Thomas Atwell; and the several assignments endorsed upon it; stating the same to be assignments of the two writings obligatory by endorsement on the paper containing both; by reason of which premises, and by force of the act of Assembly in that case provided, all the rights that vested in the said Montgomery accrued to the said Lewis: and the plaintiff avers that the said Johnson Smith, or any representative of his, or either, on his behalf, hath not paid the debt aforesaid, or either of the sums of money before mentioned, &c. but the same j’et remains due and unpaid: nevertheless the said Atwell, against whom right of action accrued under the premises, did not pay the said debt, or either of the said sums of money, &c. but hitherto to pay the same debt hath entirely refused,” &c.
    *The defendant, Charles Atwell, pleaded “payment by Smith and no such assignments;” to which the plaintiff replied generally. At the trial, the plaintiff offered in evidénce a copy of the record of the suit first above mentioned; and proved the execution of the writings obligatory both by Smith and Atwell, and the execution of the assignments, which are “of the within obligation ;’ ’ and this was all the evidence exhibited to the Jury; whereupon, the counsel for the defendant prayed the opinion of the Court “whether the writing obligatory, signed by the said Thomas At-well, deceased, and set forth in said record, can properly go in evidence to the Jury; or, in other words, whether the said obligation tallies and agrees with the count in the declaration ; and also, whether the writings in the record, importing to be assignments, were legal assignments, and sufficient to support the statement thereof set forth in the declaration: and the Court gave it as their opinion that the said obligation tallies and agrees with the declaration ; and that the said assignments were legal and sufficient to support the statements of the assignments made in the declaration: to which opinions the counsel for the defendant tendered a bill of exceptions, which was accordingly signed and sealed. The Jury found the issues for the plaintiffs, and judgment was entered for 1791. 14s. 4d. “the debt in the declaration mentioned,” to be discharged by the payment of 891. 17s. 2d. with interest thereon at five per cent, from the 1st of September, 1783; and the costs; “with interest thereon at six per cent, from the date of this judgment (which was the 1st of November, 1804) until paid;” whereupon the defendant appealed.
    Williams, for the appellant.
    If Atwell was bound at all, it was only for 891. 17s. 2d. and not for the penalty: and, if for the penalty, the judgment is erroneous, because it is to be discharged by a greater sum than the penalty itself. This was either a joint obligation of Atwell and Smith, or a collateral undertaking. If it was 178 a joint obligation, the *suit being against Atwell’s administrator, and no averment that he survived Smith, the Court will not presume the other obligor dead; and if he be living, the action survived against him. If it was a collateral undertaking, the declaration should have demanded the 891. 17s. 2d. only, and not the penalty.
    The record from the General Court should not have been received as evidence. It is true that, according to the modern decisions, where a bond is lost or destroyed, the plaintiff may declare on a copy: but that was not the case here. So, under the late law concerning District Courts,  the copy in this case might have been received: but that act can only apply to cases arising since it was passed. Besides, Atwell’s obligation was no part of the record in the General Court; the suit there having been brought on the bond of Smith alone.
    Botts, for the appellee.
    There is really but one point in this cause; and that is whether this appears judicially to the Court to have been a joint bond, on which the right of action survived against Atwell. As the defendant did not plead that the other obligor was alive, the Court will not intend it. The declaration makes out a strong implication that the defendant’s intestate survived Smith. It is certainly defective, but only states the case defectively, and does not state a defective case,  But, if the declaration was bad, the defendant should have demurred, or moved in arrest of judgment. He could not, upon the trial, object to the evidence, merely on the ground of its insufficiency to maintain the action; since it agreed precisely with the declaration.
    
    The obligors bind themselves as completely as language can express. The security agrees to join in the above obligation. This makes the bond joint to all intents and purposes. The declaration described it exactly as it was.
    As to the objection arising from the circumstance that the principal and interest amount to a greater sum than 179 *the penalty; the judgment is always for the penalty, to be discharged by the principal and interest. If that exceeds the penalty, the defendant has his choice, and may satisfy it by paying the penalty.
    JUDGE TUCKER suggested a difficulty. The body of Smith being in execution, could another judgment’ be obtained against Atwell?
    Botts. The doctrine is, that taking the body is no satisfaction ; but you may still go on against the other obligor.
    On this point, Williams admitted the law to be as stated by Botts.
    Thursday, April 26.
    
      
      The principal case was distinguished in M’Rea v. Brown, 2 Munf. 48.
    
    
      
      Bonds. — See generally, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Same -Assignment. — See generally, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
       Joint Bond — Death of One Obligor — Effect.—At common law, where two or more jointly signed an obligation, the death of one or more, when there was a survivor, extinguished the debt as to the decedent or decedents, and the obligation survived against the survivor, just as if no others had ever been joined with him in it. Upon the death of the co-obligor the legal effect of the obligation was an obligation of the survivor alone, and in suing on such obligation and pleading it according to its legal effect, if was unnecessary to alinde to the decedent parties in any part of the declaration or pleadings. Reynolds v. Hurst, 18 W. Va. 654, citing Minge v. Field, 2 Wash. 136; Elliott v. Lyell, 3 Call 268; Atwell v. Milton, 4 Hen. & M. 253; Atwell v. Towles, 1 Munf. 181; Braxton v. Hilyard, 3 Munf. 49; Crawford v. Daigh, 2 Va. Cas. 521; Backus v. Taylor, 6 Munf. 488; Macon v. Crump, 1 Call 587; Buster v. Wallace, 4 Hen. & M. 82. And in Somerville v. Grim, 17 W. Va. 808. it was said (italics ours); “Before our statute if one obligor In a joint bond was dead and the other living, the action could only be against him who survived. It was gone forever as to the representatives of the deceased obligor. His estate was entirely exonerated from the payment of the debt by his death; and the burden was wholly upon the obligor that survived. If the last surviving obligor died the action, remained against his representatives," For this proposition the same authorities are cited that are cited above from Reynolds v. Hurst, 18 W. Va. 654. See also, foot-note to Elliott v. Lyell, 3 Call 268.
    
    
      
       Debt on Bond. — See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
       Judgments. — See generally, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Evidence. — See monographic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
    
    
      
       1 Rev. Code, p. 77, s. 24.
      
    
    
      
       Rushton v. Aspinall, Doug. 679.
    
    
      
       Cuningham v. Herndon, 2 Call, 530.
    
   The Judges delivered their opinions.

JUDGE TUCKER.

On perusing the record in this case, I can discover no radical error therein. The judgment, being entered for interest, at six per cent, per ann. on the costs of the suit, at first I thought it was erroneous; but I find that the act of 1803, gave interest upon costs; and this judgment was rendered before that act was amended at the next session, 1 have had some doubts, indeed, in what manner the plaintiff ought to have declared, upon this uncommon obligation, which I incline to think a collateral, and not a joint bond; and though, perhaps, upon a demurrer, the declaration might have been considered as faulty, yet, as no exception was then taken to it, I think the error in demanding the penalty (if it be an error) is cured by the statute of jeofails. The evidence 180 was, I think, *unexceptionable, and very properly admitted. Upon the whole, I think the judgment ought to be affirmed; although a skilful pleader might perhaps have puzzled the plaintiff’s counsel, and the Court, by a judicious and well-timed defence. I believe and hope the justice of the case has been obtained; and, thinking so, I am unwilling to reverse a judgment when I cannot satisfactorily point out an error.

JUDGE ROANE.

The bond stated in the declaration, was undoubtedly the bond of Atwell; and that, as well in relation to the penal part thereof, as the condition. Stronger words could not have been used by him to testify his willingness to be bound thereby, and the writing containing the same sealed and delivered by him. A contrary decision would go the full length, therefore, of affirming that an obligor cannot adopt, by reference, (by any words ■whatsoever,) a previous obligation, as his obligation, and become a party thereto; a position which is entirely interdicted by the rules of law, which regard substance, rather than the forms used, in relation to this subject. But, although this was the bond of Atwell, it was his joint bond merely. The expression is, “I agree to join in the above obligation, and to be the security of J. S.,” which expression is abundantly satisfied by considering it as a joint bond, and there is nothing therein to import that a several one was intended. In the case of Harrison v. Field, it is said by one of the Judges, that there may be good reasons with an obligor to prefer a joint bond to a joint and several one; such, for example, as those resulting from the doctrine of survivorship. In 5 Bac. 164, it is said that if three bind themselves in a bond “conjunctim, et quemlibet eorum, ” it is yet only a joint bond, by reason of the word “conjunctim;” and that the word “quemlibet” cannot make it several; it being inserted only to shew more strongly that they should all be bound, but not that they should be severally bound. This case is infinitely stronger than the case at bar, in which there are no words whatever 181 importing or seeming to import, that the bond should be several.

Being a joint bond, therefore, and made in the jrear 1783, it is of the very substance and gist of the action, when one obligor or his representatives is sued, to aver in the declaration that that obligor survived his companion; for, if they are both alive, the action must be against both; and, if his companion survived him, the action against his representatives is gone for ever. I do not require any particular technical form of words in the declaration to charge this, but the fact must be substantially stated: it cannot be dispensed with, under the decisions of this Court, which are too numerous and too well known to the bar to be particularly mentioned. Let us see whether any thing like a positive averment is contained in the declaration before us. There is an averment “that neither the said J. S. or any representative of his” has paid the debt. This, at most, only charged, by implication, that J. S. was dead and had a representative: it does not, however, come up to the point of stating that he died in the life-time of Atwell. It therefore avers nothing, to give the action against Atwell’s representatives. Again, it is stated in the breach, that the said 1 ‘Atwell, against whom right of action accrued under the premises,” did not pay: but this again does not come up to the desideratum: it not only states an inference in law, instead of the averment of the necessary fact; but that inference may have arisen in the mind of the drawer of the declaration, from a misapprehension of the purport of the bond; in consequence (perhaps) of his erroneously taking it to be a several bond, as well as a joint one. It is not the province of a plaintiff to state merely the inferences of law in his declaration, but those facts also on which they are founded, and which form the foundation of his claim. This declaration then is radically defective in substance; 182 *and I regret to say that the judgment of the District Court must, on this ground, be reversed.*

JUDGE FLEMING

entertained doubts whether the judgment was right or wrong ; but said it was always a rule with him in such cases to affirm it. He therefore concurred with JUDGE TUCKER; and, by a majority of the Court, the judgment was affirmed. 
      
       2 Rev. Code, p. 30. c. 29. s. 5.
     
      
      Note by the Reporter. It has since been decided, on arffument, in the case of M’Rea v. Brown, April 2d, 1811, that interest on costs could not properly be allowed, under the above-mentioned act of 1803. In this case, the point was not made in arfrument, and appears to have been noticed by Judge Tucker only.
     
      
       2 Rev. Code, c. 57, s. 2.
     
      
       2 Wash, 138.
     
      
      After this case was decided, Judge Roane stated, as a circumstance shewing- the importance of the requisite averment in the declaration, that in the case of Atwell’s Adm'rs v. Milton, decided in this Court (vide 4 H. & M. 253), upon a covenant in which the same parties above named (Atwell and Smith) were joined, it was stated, by way of implication, in the declaration, that Smith survived Atwell; whereas, in the present case, it is.said to be implied from the statement made in this declaration, that Atwell survived Smith! and that he believed, judgment was rendered in that case accordingly! — Note in Original Edition,_
     