
    Moss and Others v. Moss’s Administrator.
    October, 1809.
    1. Debt on Bond — Assignment of Breaches. — In debt on a bond given by distributees to indemnify an administrator for dividing the estate among them; the condition being, ‘that they should pay him their respective proportions of all debts which he should be compelled to pay, that should thereafter come against said estate;" it is a sufficient assignment of a breach to say, "that the plaintiff on a day subsequent to the date of the bond, had paid, by the consent of the defendants, a debt which was then due from the estate aforesaid, and which, as administrator, he was bound to pay, and that the defendants had not paid him their respective parts nor any proportion thereof, but the same had refused, although often requested.”
    2. Action against Several Defendants — Capias Executed on Part Only — Effect.—In an action against several defendants, the capias being returned executed on part only, who appeared and defended the suit, and a discontinuance as to the rest having taken place, by a failure to take out further process against them, a judgment against the defendants 1 in general terms, must be understood as against those only who appeared, notwithstanding the declaration charged them all as "in custody,” &c. and the caption of the entry of the judgment in the order-book, mentioned the names of all.
    3. Joint and Several Bond — Judgment.—Where there was an action on a joint and several bond, against six obligors, and tke capias (which, was against them all) was executed, on two only; it was held that the plaintiff was not hound to sue out further process against the rest, hut might take judgment against those two. In such case, it seems indifferent whether the declaration he against those two only, or against all named in the writ, provided the bond he properly described.
    4. Issuance of Execution against Person Not Party-Remedy. — I f the clerk of an inferior Court, misconceive a judgment, and issue execution against any person not properly a party thereto, the remedy is not by supersedeas or writ of error, but by motion to quasli the execution; and if such motion be- overruled, an appeal may be taken to the Court of Error, or application may be made fora writ of error or supersedeas to the order overruling such motion.
    The record in this case stated that James Moss, executor of James Moss, deceased, sued out of the Clerk’s office of *Prince Edward District Court, a capias against Francis Moss, Stephens Moss, William Moss, John Spiers, Richard Davenport and Peter Guerrant in a plea of debt for one thousand dollars, damage twenty dollars, returnable to April term, 1801 ; that the same was returned executed on the defendants Peter Guerrant and William Moss, a copy was left for the defendant Francis Moss, (he not being found,) and the defendant Stephen Moss, John Spiers and Richard Davenport, were returned no inhabitants of Buckingham County, by Boaz Ford, jun, deputy-sheriff, for Benjamin Morris. The defendants not appearing, a conditional order was entered against the defendants Peter Guerrant and William Moss, and an alias capias awarded against the other defendants, and has no return endorsed on it.
    The conditional order “against the defendants Peter Guerrant and William Moss” was confirmed; and the plaintiff after-wards filed his declaration as administrator of James Moss, deceased, complaining of all the defendants above mentioned “in custody, &c. of a plea that they render unto him one thousand pounds, current money of Virginia, which to him they owe and from him unjustly detain,” &c. proceeding in the usual form on a bond to the plaintiff with a collateral condition, “that whereas the plaintiff had on the day and year aforesaid, settled with the defendants and paid them their respective parts of the estate in his hands put to be administered, if they the defendants, in consideration thereof, should pay unto the said plaintiff their respective proportions of all debts which the plaintiff should be compelled to pay, that should thereafter come against the estate aforesaid, and should indemnify the said plaintiff against all costs and damages accruing on account of the sam.e, then the said writing obligatory should be void, or else remain in force.” 'The breach assigned was that the plaintiff “after the date aforesaid, (to wit, on the day of ,) had paid, by the consent of the defendants, on account of the estate, aforesaid, a debt to James Lyle, for Henderson, M’Call & Co. which was then due *from the estate aforesaid, and which, as administrator aforesaid, he was bound to pay : and that the defendants had not paid him their respective parts thereof, nor any proportion thereof, but the same had refused although often thereto requested.”
    On the motion of the defendants, Peter Guerrant and William Moss, the judgment obtained against them at Rules was set aside, and they pleaded that they had performed the conditions of the writing obligaiory in the declaration mentioned, on which plea issue was joined.
    Afterwards, (to wit, at a subsequent Court,) “came the parties by their attorneys, and came also a jury, to wit,” &c. On the trial, the plaintiff introduced on his part a joint and several bond signed by all the defendants, and corresponding with that described in the declaration ; except that the bond so described appeared to be joint, nothing being said of its being joint and several; the deposition of James Lyle, one of the partners of Henderson, M’Call & Co. (with an account thereto annexed,) stating, “that James Moss, administrator of James Moss, deceased, did, on the 15th October, 1796, settle with him the account due from the deceased James Moss, to Henderson, M’Call & Co. amounting to 2841. 11s. and that the said company is fully satisfied for the said debtand the parol evidence of a witness, “that he was present one day when the plaintiff and defendants were together, and each of the defendants said they would pay their proportion of the British debt due by the said estate, without saying what debt ; and two other witnesses who proved a like acknowledgment of two of the defendants,” (not mentioning their names,) “one of whom said he was ready to pay his part if the .plaintiff would furnish an account of it, which last acknowledgments were subsequent to the commencement of this suit, and in a conversation concerning the same.” To this evidence the defendant demurred, and the plaintiff joined in demurrer : whereupon, by consent of parties, a juror was withdrawn, and the cause continued for the matters of law arising from the said *demurrer to be argued. On argument thereof, it seemed to the Court that the law was for the plaintiff ; “therefore it was considered that the said demurrer be overruled ; and the suit was continued until the next term ; when (to wit, on the 9th of April, 1804) the parties came by their attorneys, and, by consent of parties, the issue joined between the parties in this suit was set aside ; a writ of inquiry awarded the plaintiff, and damages assessed to 3911.4s. 9d. therefore, it was considered by the Court that the plaintiff recover against the said defendants” the said damages and costs.
    On this judgment a writ of fieri facias issued against all the defendants named in the original capias and declaration; a forthcoming bond was taken and judgment obtained thereupon. A copy of the records of both judgments (containing also a copy of the fieri facias) was presented to a Judge of the Court of Appeals with a petition for a supersedeas on behalf of all the defendants. The petition prayed a supersedeas for errors apparent in the record of the original judgment, but assigned no errors in that on the forthcoming bond. The supersedeas was accordingly granted to the original judgment.
    Munford, for the plaintiffs in errror.
    1. The breach was not sufficiently assigned in the declaration ; for the consent o'f the defendants to the payment of the money was no compulsion to the plaintiff to pay it. Although an executor, previous to transferring the estate to the legatees, may pay a debt by simple contract (where debts of superior dignity do not interfere) without suit, or any proof of its being just, but his own knowledge ; yet, after he has transferred the estate to the distributees, he cannot pay such debt, so as to charge them and compel them to refund, unless the justice of the claim be established by a suit, or by disinterested evidence. It should, therefore, have appeared, and been stated in the declaration, that the claim was so established.
    *2. The defendants, though joined in one bond, are liable for their respective proportions only. The breaches therefore should have been assigned severally, not jointly.
    The defendants who never appeared, have a right to take advantage of variances between the declaration and writ, which, as to them, must be considered as part of the record. Now, the writ was on behalf of the plaintiff, as executor, for a debt of 1.000 dollars, damage 20 dollars ; but the plaintiff declared as administrator, for a debt of 1,000 pounds, damage 1,000 pounds.
    4. There was a discontinuance against four of the defendants, on whom the process never was served ; and yet the judgment was rendered against them all. That the clerk so understood it is evident from the manner in which he issued the execution ; and that such was really the case, Mr. Munford argued from a copy of the judgment as entered in the order book of the District Court; which copy, on his motion, was procured by means of a certiorari. This entry, bearing date the 9th of April, 1804, was headed "James Moss, administrator, &c. plaintiff, against Francis Moss, Stephen Moss, William Moss, John Spiers, Richard Davenport, and Peter Guerrant, defendants, in debt.” It proceeded, this day came the parties,” &c. (in general terms throughout,) and concluded, “therefore it was considered by the Court that the plaintiff recover against the said defendants his damages aforesaid,” &c. Mr. Munford contended, that the entry of the judgment as signed by the Judges must be considered as the actual judgment, however erroneous in itself ; and that, although no judgment could (with propriety) have been rendered against the defendants who were not before the Court, yet the words “against the said defendants” must be taken as relating to all who had been mentioned in the same entry. But,
    5. If the judgment was not rendered against all the defendants, yet it was erroneous, because the bond (according to the declaration) was joint; and judgment could not be against part of the obligors (the others being alive) until further *process (even to outlawry) had been taken out against the others who failed to appear ; as was decided in Whelpdale’s case.
    
    Wickham, contra.
    As to the first point, a moral compulsion or legal obligation was sufficient to, compel the plaintiff to pay the debt to Byle. As administrator he was bound by his oath to pay all just debts of his intestate; and the word “bound,” which is used in the declaration, is equivalent to “compelled.” He was not bound to stand a suit, which would have injured the dis-tributees by subjecting the estate to unnecessary costs; and it must be presumed the justice of the claim was sufficiently proved to the jury last impanelled in this cause. The demurrer to the evidence is not now before the Court, having been done away by the act of the parties in consenting to set aside the issue joined, on the trial of which issue that demurrer had been tendered.- But, if it were, the Court would have a right to infer from the testimony stated in it, every thing which the Jury might have inferred against the party demurring.
    But all objections to the declaration and proceedings were waived by the consent to set aside the issue and have the cause tried on a writ of inquiry ; which was equivalent to a confession of judgment. If, in fact, (as Mr. Munford contends,) only a part of the defendants appeared, and gave their consent to this entry, the judgment was entered against them only, and they were bound by their consent. The judgment could not have been entered against those who were not before the Court. The caption, or heading of the entry, ■is always merely formal, and never copied in making out the record for the Superior Court. But if the caption of the entry proves the judgment to have been against them all, it equally proves that they all consented ; so that, either way, the judgment is right. If the execution was wrong, it might have been quashed op motion ; but it constitutes no part of this record, and furnishes no reason for reversing the judgment.
    *Munford, in reply. The force of my argument is, that, although part only of the defendants appeared and consented, (for none but those on whom the process had been served can be supposed, without an express entry to that effect, to have been before the Court,) the judgment, in consequence of a reference to an erroneous caption, was understood by the clerk, and actually entered by him, against them all.
    Thursday, November 30. The judges pronounced their opinions.
    
      
      Joint and Several Bond — Judgment,—See a discussion of this question in Early v. Clarkson, 7 Leigh 85, 86, 88, 89. and note; foot-note to Leftwich v. Berkeley, 1 Hen. & M. 61; Bush v. Campbell, 26 Gratt. 439; Gray v. Stuart, 33 Gratt. 354; Beazley v. Sims, 81 Va. 646. See monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      Appeal — Supersedeas—Two Judgments. — In Laidley v. Bright, 17 W. Va. 788. it is said: “The defendants in error by their counsel insist, that the writ of error in this case should be dismissed, because it is a writ of error and supersedeas to two separate judgments rendered in separate and distinct canses. There is nothing in this position. The judgment on a forthcoming bond is not considered as brought up by a supersedeas to the iirst judgment, see Moss v. Moss, 4 Hen. & M. 303: but the two judgments constitute one proceeding, so far as granting a supersedeas is concerned. ”
      The principal ca.se is also cited in Vanscoy v. Stinchcomb, 29 W. Va. 269, 11 S. E. Rep. 929. See monographic note on “Appeal and Error*’ appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
      New Trial- Effect Where Damages Exceed Amount Claimed — In Swindell v. Harper, 51 W. Va. 381, 41 S. E. Rep. 117, it is said: “A new trial will not be granted after verdict because the amount ol damages assessed by the jury exceeds the amount laid in the declaration. Roderick v. Railroad Co., 7 W. Va. 54; Moss v. Moss, 4 Hen. & M. 298. Here the amount of the verdict is within the amounts laid in both writ and declaration.”
      The principal case is also cited in Roderick v. Railroad Co., 7 W. Va. 58.
    
    
      
      On inquiry of John Brown, Esq. clerk of the Supreme Court of Appeals, and who had lor many years been clerk of the old General Court, and extremely well versed in its practice, as to the mode of proceeding in the last-mentioned Court, where there were several defendants and part only arrested, his answer was, that the uniform practice had been, in such cases, to proceed to judgment and execution against those of the defendants who had been arrested, and either discontinue the suit as to the others, or go on to get judgments, as they were from time to time arrested, till satisfaction was obtained. — Note in Original Edition.
    
    
      
       9 Co. 119, a., cited in Bac. Abr. tit. Obligations, vol. 3, p. 698; Dublin ed. vol. 5, p. 165, Gwillim’s ed.
    
   JUDGE TUCKER.

The appellee, James Moss, brought an action of debt in the District Court of Prince Edward, against the appellants, upon an obligation to himself as administrator of James Moss, deceased; the writ was returned executed on Peter Guerrant and William Moss, two only, of six defendants named in the writ ; a copy left for Francis Moss, another of the defendants, he being not found ; and the three other defendants were returned no inhabitants of Buckingham County, to which the writ appears to have been directed.

At rules held in the office on the appearance day, a conditional judgment was entered against Peter Guerrant and William Moss, on whom the first writ had been served ; no separate order seems to have been made as to Francis Moss, for whom the sheriff had left a copy ; but an alias capias was awarded generally, as well against those defendants who were returned no inhabitants of the county, as against him.

The record mentions that no return is endorsed upon it; whether it was ever issued does not appear.

By the 33d sect, of the District Court Eaw, Rev. Code, vol. 1, c. 66, p. 79, where the sheriff shall return that the defendant is not found within his bailiwick, (which return the law prohibits him from making, unless he shall have actually been at the dwelling-house, or place of abode of the defendant, and left a copy of the writ; ibid. p. 122, c. 80, s. IS,) *the plaintiff may either sue out an alias or a pluries capias, until the defendant shall be arrested ; or a testatum capias where he shall have removed into another County ; or may, at his election, sue out an attachment against the estate of the defendant to force an appearance. And by c. 66, s. 41, p. 80, (District Court Daw.) on the return of the pluries, that the defendant is not to be found, the Court, instead of the process to outlawry formerly used, may order a proclamation, warning the defendant to appear ; which if he fails to do, the same proceedings shall be had, and the same judgment given, as in other cases of default. But here the plaintiff proceeded in neither of those cases although so clearly pointed out by the law. He seems to have contented himself with the service upon two, out of six defendants, and to have proceeded to take a separate judgment against them ; unless indeed, by declaring against the whole six as in custody, (though the record shews the contrary as to four of them,) we must be enforced to understand the judgment as rendered against the whole, instead of the two only, on whom process was served.

According to the practice in England, when the plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly, from day to day, and from time to time, as he ought to do, the suit is discontinued; and the defendant is no longer bound to attend, but the plaintiff must begin again by suing out a new original, usually paying costs to his antagonist, 3 Black. Com. 296. We are told by the same author, that the several writs issued in succession to compel an appearance, being grounded on the sheriff’s return, must respectively bear date the same day, on which the writ immediately preceding was returnable. Ibid. 282.

According to those authorities the omission to sue out the succeeding process prescribed by the act, to compel the appearance of the four defendants who were not arrested upon the first or second capias, was unq uestionably a discontinuance of the suit, as to those defendants. Consequently *they were not liable to any further proceed-' ings or judgment against them ; unless they had voluntarily appeared, and made themselves parties to the suit, as in the case of Barnett & Woolfolk v. Watson & Urquhart. Whether it appears by the record that they have done so or not, I shall presently inquire. It may be proper, however, to notice in this place, that although a discontinuance is aided after a verdict, and even after a judgment by nil dicit or non sum informatus, that is to be understood where the defendant has actually appeared; and not where there has been neither an apj>earance nor even a service of process upon him. The mischiefs and inconveniences of a contrary doctrine would be altogether incalculable.

An office judgment having been entered against the defendants Peter Guerrant and William Moss, on whom the writ was returned executed ; on their motion the judgment was set aside, and thereupon they pleaded conditions performed, (without praying oyer either of the bond, or the condition,) upon which issue was joined and the suit continued.

Afterwards we find the following entry on the record ; that at a Court held on the fifth day of April next following, came the parties by their attorneys, and thereupon came a jury, &c. when a demurrer to evidence was filed and the jury were by consent of parties discharged from rendering any verdict, (not even assessing conditional damages,) and the cause was continued for judgment on the demurrer to evidence, which being argued at a subsequent Court, the Court was of opinion that the law was for the plaintiff ; and thereupon it was considered by the Court, that the demurrer be overruled, and the suit was continued till the next term ; when, by consent of parties, the issue joined in the suit was set aside, and a writ of inquiry awarded ; which was forthwith executed and damages assessed to 3911. 4s. 9d. and then the record proceeds : Therefore, it is considered by the Court, that the plaintiff recover against the said defendants (not naming them) his damages aforesaid, &c. Execution ^appears to have been issued against all the defendants named in the writ; which is the first notice taken of any of them by name (except Peter Guerrant and William Moss, on whom the writ was returned executed), in any part of the proceedings except in the declaration, from the time of awarding an alias capias against all those upon whom the writ was not served.

This short abstract of the record exhibits a tissue of clerical and practical errors and omissions, unfortunately, for the administration of justice, but too frequent in the records brought before this Court. If the fact were that all the defendants named in the writ did appear previous to the trial of the issue, and plead, and proceed to the trial, there ought to have been a special entry to that effect, as in the case of Barnett & Wool-foils v. Watson, &c. For I can by no means agree, that a person, against whom a suit is brought, shall be charged as if he had appeared, unless the record clearly manifested that he did sp. The word parties properly and exclusively appears to apply to those who were already in Court; and not to those who, though named in the writ, may possibly have been dead, or absent from the County or the Commonwealth. Three of the defendants named in the writ are returned no inhabitants of the County to which the writ was directed; no presumption of notice to them is therefore to be made; and nothing short of an actual appearance, in person, or by an attorney appearing for them by name, so as to be chargeable for a fraud, or misconduct, in appearing for them, without being duly authorized, ought to be received as evidence of an appearance by, or in behalf of those defendants, or any others against whom process had not been returned executed. The judgment, therefore, as against all the other persons named in writ, except _ Peter Guerrant and William Moss, if any such were entered, was clearly erroneous. But, here, for want of that clerical precision often so much neglected, I am at a lost to say whether any judgment was rendered against them, or not. The judgment is against “the said defendants,” leaving us to guess *who were meant thereby ; all those named in the writ, or those only upon whom the process was served. The execution indeed shews that the clerk, or his deputy, understood it to be against all without exception. But I apprehend this Court cannot take notice of the execution, as a part of the record in the original suit. As to the judgment on the forthcomimg bond, I do not consider that as before us upon this writ of supersedeas which was awarded only to the original judgment, and I think the practice in this Court and the former General Court, was, not to consider the judgment on a replevy bond, or forthcoming bond, as brought up by writ of supersedeas, to the first judgment. See Geftwick v. Sto-val, 1 Wash. 303. The case of Sayre v. Grymes, and Holcombe v. Pumal and others, there cited, seem to have proceeded upon similar principles,

My first impressions were, that we must understand this judgment, as the course of the proceedings in the cause require that it should be understood : that is, as a judgment against Peter Guerrant and William Moss only, they being the only parties named in the record, who appear to have been served with process,.or to have appeared thereto, or to have put in any plea. The question then is, whether the judgment be erroneous, as-against them, only.

The declaration is upon a joint bond, entered into by six persons, all of whom were named in the writ; on two of whom it was served, and against the rest an alias capias-was awarded. I doubted whether, in such case, the plaintiff could go on to trial against the two, on whom the writ was served, and who had appeared, and pleaded to the action, before the others were either taken, or the process, which our act substitutes for the process of outlawry had been issued and duly returned ; but I am informed both by the bar and by Mr. Brown, the clerk of this Court, that the practice not only in the District Courts, but in the General Court, has-uniformly been so. Some very strong objections to this practice have occasionally presented themselves to *my own mind, which have indeed been rather strengthened by the decision of this Court: in Geftwich v. Berkeley, where the rule-laid down by Judge Gyons, President, is, that if it appear by the declaration that there-are other obligors in a joint and several bond, who are neither sued nor stated to be dead, the judgment against the other obligors is-erroneous. The same judge on another occasion said, if it appear that a suit is-founded on a joint bond, and the judgment is only against one, it will be arrested by a Court of BJrror, although no plea in arrest of judgment was filed in the Court below,' which is certainly contrary to the current of the late English authorities collected in 1 Saund. 291, b. note (4), where the rule seems to be, that it must appear that the other obligor is alive, otherwise no advantage can be taken of the omission to sue him at the-same time, but by plea in abatement. Now it seems to me, that the inconvenience (and perhaps injustice) is full as great, where the plaintiff discontinues his suit against one of the obligors, although named in the writ, as if he had not named him at all in the writ especially when it appears probably, from the sheriff’s return, that the party against whom the orocess is discontinued, was a resident of the County to which the writ was. directed, as was the case with Francis Moss, for whom a copy was left. For these and other reasons which I think might be offered, I strongly incline to overrule the practice, although apparently sanctioned by time and by the usage of Courts, for which I entertain the highest respect. We come next to the proceedings at the trial. And here it is contended, that it appears by the bond which is-spread on the demurrer to evidence, that the breach is not well assigned in the declaration, the condition being to pay their proportion-able parts of such debts as the administrator might thereafter be compelled to pay,, whereas the breach assigned is the non-payment of their proportions of a debt, which he was bound to pay, and had paid by consent of the defendants. But I am of opinion that the breach is well enough assigned, being according to the true intent *and meaning of the condition ; for, if an administrator or executor be bound to pay a debt, and, to avoid the expense of a suit, actually does pay it, with the consent of the legatees or distributees, it is the same as if he had paid it after judgment, and much more for their benefit, than if he had incurred the costs of a lawsuit. The discharging the Jury, without directing them to assess conditional damages, after the demurrer to evidence was joined, was an irregularity by which double trouble and expense to the parties was incurred ; and the subsequent setting aside the issue, and by cdnsent impanelling a Jury to inquire of damages after a judgment on the demurrer had been pronounced in favour of the plaintiff, appears to me to have been intended as a cure for that irregularity, and to have operated accordingly. I cannot, however, help noticing a clerical impropriety in entering the judgment on the demurrer to evidence, viz. that it be overruled, whereas the judgment ought to have been, that the plaintiff should recover against the defendant such damages as a Jury to be impanelled for that purpose should assess, the former Jury having omitted to assess damages conditionally. We come now to the final judgment, which is, that the plaintiff recover against the said defendants his damages, &c. This I was at first inclined to think might be corrected by the insertion of the names of Peter Guerrant and William Moss (the only defendants who appear to have been before the Court) after the word defendants in the judgment, and with this correction, if the other members of the Court should have been satisfied as to the point of practice before noticed, I thought the judgment might be affirmed, as to those defendants only, leaving it to the parties, respectively, to proceed, as they may be advised as to those points which could" not be taken under consideration upon this record. But I now doubt of the correctness of that opinion ; for, upon inspecting the record more minutely, I observe, that the declaration charges all the defendants named in the writ, as in custody, instead of charging those only in custody, upon whom process had been duly served, and naming the rest, *as I think it ought, “as not yet taken if, indeed, (as I very much doubt,) the plaintiff could proceed against the first two separately. The practice is certainly otherwise in England ; for where process is against two in a joint cause of action, and one only appears, the other must be outlawed, before there can be any other proceedings, So in this country the plaintiff ought to have proceeded against the defendants who were not taken according to the directions of the forty-first section of the District Court Daw, before cited, the process therein directed being substituted for the former process of outlawry. The reason appears to me to be the same in both cases. The case of Symonds v. Parminter and Barrow, shews it to be necessary to set forth the process of outlawry in the declaration against the defendant who appears. And in 6 Term. Rep. 328, Lord Kenyon says, expressly, that nothing can be more clearly established, than that, in cases of contract, the plaintiff must sue all the contracting parties, and proceed to outlaw such of them as do not appear in answer to the writ; and this appears to agree with S Co. 119, where it is said, that, if two persons be bound in a joint obligation, if they be both sued, and one appears,, and the other makes default, and by process-is outlawed, he who appears shall be charged. But he might have pleaded an abatement of the writ. The reason appears to be the same where the contract is an obligation, whether joint or several, if the plaintiff, instead of proceeding, as he might against each of the obligors, separately, shall have elected to proceed against them jointly; for, having made his election what action he should bring, he must conform to the nature of the action he has brought; as in Leftwich & others v. Berkeley, where this Court decided, that the plaintiff, having elected to bring his suit against several of the obligors in the bond, as if it were a joint bond, instead of suing them separately, as he might, the obligation being several, as well as joint, was precluded from taking a judgment against the majority, having omitted one or more of the obligors’ named in the bond; although he might have proceeded *against each, separately, had he chosen to do so, Berkeley v. Boxley in this Court, (October term, 1805,) was an action of debt against two or more of the securities of one-, a sheriff of Halifax County. By the declaration it appeared that there were several other obligors in the bond, which was joint and several; and that the sheriff, the principal obligor, was dead ; but no mention was made as to the others not named in the writ. The General Court gave judgment for the defendants. The Attorney-General moved for a superse-deas ; and I was of opinion it ought to be granted. But the rest of the judges agreed in refusing it, and Judge Lyons said, if there be several obligors in a joint and several bond, the obligee has his election to sue them all jointly ; or either of them (but not two or more) separately. The action must either join all together, or proceed against each individually. I conceived that if this were not pleaded in abatement, it could not be taken advantage of in any other manner. But the supersedeas was refused. The plaintiff was under no obligation to file his declaration against the defendants who were not served with process, until they were served with it, or until he had proceeded in the manner which our law provides as a substitute for the process of outlawry. Of course, he might and ought to have adapted his declaration to the real truth of the case, instead of suggesting that those who had never been served with process, and of course were not amenable to the judgment of the Court, were in actual custody, and thereby amenable in the fullest extent. As, therefore, there was a discontinuance of the suit as to all the defendants except Peter Guer-rant and William Moss, the naming the other defendants in the declaration, as in actual custody, was an error, I conceive, which could only be cured by their subsequent appearance, and voluntarily making them■selves parties defendants, as in Barnett v. Woolfolk; and which of course, vitiates the judgment, inasmuch as the judgment ought always to conform to the declaration, Now, a judgment against persons who have never appeared, nor even been served with process, must be ^absolutely void. This judgment is therefore void, as to those defendants who were not in Court: but it is a joint judgment; of course, it would seem to me, that it must be erroneous as to all, a judgment being an entire thing,

The demurrer to the evidence, I think, discovers another error, not yet noticed. It states certain material evidence given by one witness against all the defendants, by which I understand all named in the writ and declaration. It then proceeds to state the evidence of another witness against two of the defendants, without naming them. This witness clearly thought he was giving evidence in a cause in which all the defendants were parties, since he speaks of two of them. Which two were they ? The two who had appeared; or two of the four who had not appeared ? The evidence might have related only to the latter, and therefore have been inadmissible and improper as to the former. This brings the case within the decision of this Court, in Barret & Co. v. Tazewell, 1 Call, 223, and 2 Wash. 281, Lee v. Tapscott.

Upon the whole, I think the judgment erroneous, as to all the defendants, as well those who have appeared, as those against whom the suit was discontinued, and that it ought to be reversed entirely.

JUDGE ROANE.

None of the objections made in this case, seem to merit a particular refutation by the Court, except this, that it is alleged that the judgment was rendered against all the six defendants mentioned in the writ, whereas, the process has been only served upon two of them. It seems to me, however, certain, that this is not the case, and that judgment has been rendered against the two only. Those two had made up an issue with the plaintiff, and had gone to trial, while the others had not been brought in by process, nor had entered their appearance. On the trial between the plaintiff and the two defendants, a demurrer to evidence had been tendered by the defendants, and joined by the plaintiff, whereupon *by consent “of parties,” (here undoubtedly meaning only the two defendants, who had joined issue and demurred to the evidence,) one of the jurors is withdrawn, and the demurrer to evidence continued to be argued. Afterwards, at the next Court, the record states, came “the parties,” and the demurrer to evidence of the “defendants” (i. e. the two) being argued, judgment is given thereupon for the plaintiff, and the suit is continued till the next term. At which term (continues the record) came “the parties,” and by consent of parties, the issue joined between “the parties in this suit” (here undoubtedly still meaning the two) is set aside, and a writ of inquiry awarded the plaintiff, whereupon came a Jury, who assessed the plaintiff’s damages to 3911. 4s. 9d. and a judgment was rendered against “the defendants,” (i. e. those defendants who had first joined issue and then set it aside,) pursuant to the verdict. Nothing, therefore, can be clearer, in my apprehension, than that the judgment has been rendered against the two defendants only, and not the others.

The setting aside the issue, has, of course, waived all objections to the proceedings on the demurrer to evidence exhibited thereupon. As at present advised, however, I think the judgment of the Court upon that demurrer was corfect. With respect to the transcript of the judgment now brought up by certiorari; I do not consider this case upon that transcript solely, but upon it in connexion with the record now before us; and striking out the caption thereof, which would certainly not have been properly inserted in making up the record, no difference results, as to the point in question, by the exhibition of this latter transcript.

In this case the damages found by the Jury, are within those laid in the declaration, but exceed those mentioned in the writ. If the matter had been e converso, the judgment would still have been correct; for, in that case, the damages laid in the declaration would have been extended to the standard of those laid in the writ, by virtue of the act of jeofails, *That act declares that, after verdict, (or a writ of inquiry,) no judgment shall be reversed on account of a mistake of any date, sum, name, &c. in the declaration, the same being right in any part of the record or proceeding. In the case of Hook v. Turnbull, (MS.) I gave it as my opinion that, after verdict, all sums, dates, &c. in the writ were, under the act, to be considered as incorporated in the declaration, and would thus correct the mistakes contained therein ; but this was only for the purpose of supporting a judgment. The act, its object being to support judgments after verdict, declares that, after verdict, a mistake in the declaration shall not be objected, if the date, sum, &c. be right in the writ or other proceedings. The act, quoad dates, sums, names, &c. and for the purpose of supporting judgments after verdict, makes the writ a part of the declaration ; but there it stops. It certainly does not (for such was not the policy or object, of the act) make it, without oyer, a part of the declaration in order to reverse the judgment. This idea seems to have governed Judge Eyons, in the case of Stephens v. White, In that case he says, “that now, by the act of jeofails, the declaration may be amended by the writ,” (no doubt for the purpose of attaining the object of the act as aforesaid,) “since the mistake may be corrected by another part of the record where the sum is rightly stated; for, although you cannot have advantage of the writ to plead a variance, without craving oyer of it, yet you may apply to it to amend by, though oyer was not taken.” So, in 8 Co. Rep. 158, Arthur Blackmore’s case, it is held that, “as to the power of reformation and amendment, the Courts have power only to do it in affirmance of the judgments of such records and proceedings.” Again, it is held in 1 Bac. 164, Gwill. edit, that it is “a general rule that the Court will make no amendment that ■will defeat a judgment; the statutes allowing amendments in affirmance of judgments only.”

On these grounds, although the verdict and judgment before ns is for more money than the sum stated in the writ, yet, being within the limits of that mentioned in the *declaration, I am of opinion, that no objection can now be taken in respect of the variance, and that the judgment be affirmed.

JUDGE FEEMING.

This is a case of considerable difficulty ; and the first question is, whether, in an action of debt on a bond, where several are jointly and severally bound, and only part of them arrested, the plaintiff may proceed against such, before he proceeds to outlawry against those who are not arrested, and do not appear ; or must go on to proclamation, which, by our act of Assembly, is substituted for the process of outlawry in England.

The cases cited from 6 Term Rep. 328, 1 Stra. 474, and 1 Wils. 78, do not seem to apply to the present case. The first was in a joint action of assumpsit against two, who were partners in a brewery, for malt delivered to them by the plaintiff. The second was an action of assumpsit on a bill of exchange, where the defendant pleaded that others joined him in the supposed promises. And the third was on a joint assumpsit; and, one of the parties being abroad, the plaintiff was obliged, according to the English practice, to proceed to outlawry against him, before he could go against the other defendant. These cases seem to me clearly distinguished from the one now before the Court, (which is an action against six defendants, on a joint and several bond,) and at most, relate to mere matters of practice, in England ; and ought, in my conception, to have no effect on the practice here, which has uniformly been, for more than half a century, in cases of this sort, to proceed against such of the defendants as may have been arrested, without regard to others who have never been so, nor entered appearance ; and I am not, at this day, for changing, or disturbing a practice that has uniformly obtained throughout the country, for so great a length of time ; especially as I conceive it to be attended with no injury to defendants, and is very convenient and beneficial to «plaintiffs in expediting justice. I am therefore of opin ion, that the plaintiff might well proceed *against the defendants who were arrested, without going on to proclamation against the others.

But a second objection is, that the plaintiff in his declaration charged those defendants not arrested, as in custody : that appears to be a mere matter of form, in the declaration, .and is conformable to the usual mode of declaring in this country, where there are several defendants, and can neither obstruct, embarrass, nor affect, the defence of those who have been arrested, and appeared in Court; and therefore is a matter of no consequence ; and, after a discontinuance against those defendants, might be struck out of the declaration.

The capias issued the 3d of March, 1801, to Buckingham County, against Erancis Moss, Stephen Moss, William Moss, John Spiers, Richard Davenport, and Peter Guer-rant, on which the return was, “executed on Peter Guerrant and William Moss, a copy left for the defendant Erancis Moss, he not being found ; and the defendants Stephen Moss, John Spiers, and Richard Davenport, no inhabitants of Buckingham County.” At the rules held in the clerk’s office of Prince Edward District Court, (to which the writ was returned,) the 6th of April following, the defendants not appearing, a conditional order was entered against the defendants Peter Guerrant and William Moss, and an alias capias awarded against the other defendants ; and, no return having been made thereon, and no other process awarded against them, there was a discontinuance of the cause, as to Erancis Moss, Stephen Moss, Spiers, and Davenport; and, as neither of them afterwards appeared, and voluntarily-made himself a party to the suit, no judgment could have been rendered against either of them ; though the clerk, notwithstanding such discontinuance, has awkwardly inserted their names in the caption of some of the subsequent orders in the cause.

On the 6th of April, 1802, the office judgment which had been confirmed against the defendants Peter Guerrant and William Moss, was set aside, and they pleaded that they had *performed the conditions of the writing obligatory in the declaration mentioned, and issue was taken thereupon.

At a subsequent day came the parties, (to wit, the plaintiff and the defendants, Guerrant and William Moss, the only parties then in Court,) by their attorneys, and a Jury to try the issue: at which trial the defendants (to wit, Guerrant and W. Moss) demurred to the plaintiff’s evidence, as insufficient to maintain his action; and, by consent of parties, a juror was withdrawn, and the cause continued. At the next term the demurrer was argued and overruled, and the cause further continued: and at a subsequent day, by consent of the parties, (to wit, the plaintiff and the defendants Guerrant and William Moss,) “the issue joined between the parties in this suit is set aside, and a writ of inquiry awarded the plaintiff;” whereupon a Jury was sworn to inquire of damages, who found that the plaintiff hath sustained damages by the occasion in the declaration mentioned to 3911. 4s. 9d. besides costs; on which verdict the Court gave judgment that the plaintiff recover against the said defendants, his damages aforesaid, and his costs. And, whatever advantage the defendants might have had, on a supposition that the demurrer was improperly overruled, their voluntarily withdrawing their plea, setting aside the issue, and consenting to a writ of inquiry, was a complete waiver of such advantage, if any they had.

It appears to me that whenever the parties are mentioned throughout the record, after the common order, it must be confined to the plaintiff and the defendants Guerrant and William Moss; and, when the defendants are mentioned, it refers exclusively to them also; as none of the other defendants I named in the writ and declaration, were ever in Court; and therefore no judgment was, or could have been rendered against either of them. Notwithstanding which, the clerk, misconceiving the judgment, and mistaking the duties of his office, issued a fieri facias against the estates of them all; part of which has been levied on two negroes of the estate of Francis Moss, on two others belonging to Peter Guerrant, and on a negro man belonging to William Moss. A forthcoming *bond was given by Peter Guerrant, Francis Moss, William Moss, and John Guerrant, their security, and forfeited, and a judgment on motion, that the plaintiff have execution against the three obligors first named in the bond.

It seems to me that the judgment was properly rendered against Peter Guerrant and William Moss, the benefit of which the plaintiff is not to lose through the mistake or misconduct of the clerk.

As to the issuing an execution against the six original defendants, taking a forthcoming bond, &c. they must, according to the decision in the case of Leftwitch & Wife v. Stovall, &c. be considered merely as ministerial acts, (unconnected with the judgment which is alone before this Court) and cannot be regarded. “Frrors of this sort” (said President Pendleton, in delivering the opinion of the Court in that case) “can only be rectified by the Court from whence the execution issued, subordinate perhaps to the control of this Court; but it must.come by appeal from the opinion of that Court, given upon motion, and cannot be taken up collaterally upon an appeal from the original judgment.”

The supersedeas was quashed as to Francis Moss, Stephen Moss, John Spiers, and Richard Davenport, “against whom no judgment hath been rendered by the said District Court,” and the judgment against William Moss and Peter Guerrant affirmed. 
      
       1 Wash. 372.
     
      
       1 wash. 372.
     
      
       1 Hen. & Munf. 406, 407.
     
      
       Bev. Code, vol. 1, c. 66, s. 41.
     
      
       See 5 Co. 119; 1W. Bl. Rep. 20; 6 Term Rep. 328; 1 wils. 78, Symonds v. Parmenter & Barrow; 1 Stra. 473, Edwards v. Carter.
     
      
       1 Hen. & Munf. 66.
     
      
       1 Call, 273.
     
      
       1 Strange, 473, Edwards v. Carter; 2 Atk. 571, S. P.; 1 Vez. 396, S. P.
     
      
       Rev. Code, vol. 1, c. 66, s. 41.
     
      
       1 wilson, 78; 2 Strange, 1269, S, C.; 1 Blacks. Rep. 20, S. C.
     
      
       Shepperd v. Baillie.
     
      
       1 Hen. & Munf. 61.
     
      
       1 Lord Raym. 600, 602, arguendo. Cro. Jac. 303, King v. Marlborough; Ibid. 304, Miles v. Pratt, &c.
     
      
       X Rev. Code, p. 111.
     
      
       2 Wash. 212.
     
      
      l 1 Wash. 333.
     