
    Cook v. Berkley.
    [Tuesday, May 3, 1803.]
    Pleading — Variance.—Variance between tbe declaration and tbe evidence, and between tbe judgment and tbe declaration, is error.
    Berkley, as treasurer, brought suit in the General Court, against Turner, Cook and Reese, as securities of Rogers, Sheriff of Southampton, upon the said Rogers’s Sheriff’s bond. The declaration stated the bond as joint and several, and that all the obligors executed it. The breach assigned was, the non-payment of the taxes, which ought to have been collected in the year 1785. The defendant, Cook, alone appeared : Plea, conditions performed. Issue. Upon the trial of the cause, the defendant filed a bill of exceptions stating, *that the plaintiff offered in evidence to the jury, the record of a judgment against Rogers, for the balance of the taxes collected by him for the year 1786, pursuant to the act of Assembly for redeeming certain certificates; to which the defendant objected, and insisted, that he pught to be at liberty to contest the amount claimed by the public at the time of rendering the said judgment, by shewing that, as the taxes were payable in certificates and facilities, and the Sheriffs by various laws are allowed to discharge their arrears by such certificates and facilities, the jury are au-thorised to enquire! whether the certificates and facilities were, at the time for payment, or at the time of rendering the judgment aforesaid, of equal value with specie, and to adjust their damages accordingly: And, also, that the jury were at liberty to consider, whether they were bound to charge the said Rogers with the fifteen per cent, damages given by law upon motions against Sheriffs, or might not, unbound by that law, judge of the damages which the said Rogers ought to have paid for his default: But, the Court decided that the judgment against the Sheriff, was conclusive evidence against the security in this case, and refused to permit the defendant to enter into any enquiry touching its merits. Verdict and judgment for the plaintiff; and the defendant obtained a writ of supersedeas from this Court.
    Call, for the appellant.
    1. The judgment ought not to have been given in evidence, as it was not mentioned in the declaration, but actually varied from it. 1. Because, the allegation in the count is not, that the defendant had not paid the judgment, but that he had not collected and paid the taxes. So, that the allegata and probata do not agree together. 2. Because, the declaration, is for the taxes of 1785, and the judgment, for those of 1786: Which is a manifest variance, as he could not come prepared to defend himself upon a charge of 1785, for the taxes of 1786.
    *2. The judgment was not conclusive : 1. Because, if two are sued in separate actions of debt on the same bond, several damages must be found. Sayer’s Law of Damages, 147. Which proves, that the first judgment is no measure. 2. Because, the judgment was rendered in a different species of action, where the trial was by the Court, and not by the jury: Whereas the defendant, in the present case, had a right to the verdict of his peers to ascertain the amount; which could not be, if the judgment was conclusive. 3. Because, the damages are personal .to the Sheriff, and do not extend to his securities. Eor, it is a penalty; and, therefore, not covered by the Sheriff’s bond. 4. Because, the judgment was by default; and being res inter alios acta, ought not to bind third persons. [Drew v. Anderson,] 1 Call, 51. 5. Because, if admissible at all, it was only prima facie good; and, the defendant ought to have been permitted to shew that it was for too much.
    3. The value of facilities only was de-mandable. 1. Because, it was not a debt due from the Sheriff, but a neglect to per. form a duty; and this at a particular period. Consequently, the damages ought tQ have been measured by the value at the period of the breach. 2. Because, if it be considered as a debt, then it was the value when they ought to have paid. 3. Because, if they were considered as the papers of the public, converted by the Sheriff to his own use, then the value at the time of conversion, or at most, of the suit, ought to have been the rule. Woodson v. Payne, 1 Call, 573. 4. Because, the Sheriff could only have enforced facilities; and, therefore, he ought not to be liable for more than he could compel. 5. Because, the taxes'were made payable in facilities, so that pro hac vice they were equally a currency with specie. Of course, the Sheriff was only delinquent in not paying facilities of that date. 6. Because, the defendant, as payer, had still a right to have paid in those very facilities; and, therefore, the Court could not deprive him of it.
    *4. There were four obligors in the bond; and three only are sued; which is error; and may now be taken advantage of, as it appears upon the declaration, and the plaintiff has not accounted for the omission. 5 Bac. Abr. 164; [Gwil. ed. ;] [Rice v. Shute,] 2 Wm. Black. Rep. 697; 5 Bac. Abr. 697; Hard. 198; Sid. 238; Stiles, 50.
    Nicholas, [Attorney General,] contra.
    The judgment was conclusive, as it ascertained the amount of the claim; and it was a debt due, in fact, from the Sheriff, and his securities; for, whatever was due from the Sheriff was due from the securities. There was no surprise in obtaining it, as the Sheriff had notice; and it is more convenient that all should be bound by the enquiry against the Sheriff himself, who has the best knowledge of the defence proper to be set up. There is nothing in the record to shew the standard by which the value of the securities was ascertained; and the doctrine contended for would be highly detrimental to the public, to whom the certificates were worth their par value. The securities are liable to the 15 per cent, damages; for, it is the act of the Sheriff which produces them, and the law says he shall pay them. That all the obligors were not sued, makes no difference; for, it should have been plead in abatement. Co. Lift. 485; Allen, 21,41; [Ascue v. Holling-worth,] Cro. Eliz. 494, 544; [Whelpdale’s Case,] 5 Co. 119.
    The Court gave no opinion on the merits, but reversed the judgment on account of the faults in the proceedings.
    
      
       Joint and Several Bond — Suit on — How Brought. — A suit on a joint and several bond, must be brought either against all the obligors jointly, or one of them singly; and not against any intermediate number; and if an error in this respect appears on tbe record, the judgment will be reversed, notwithstanding such error was pleaded in abatement. Leftwich v. Berkeley, 1 Hen. & M. 61; Saunders v. Wood, 1 Munf. 406; Newell v. Wood, 1 Munf. 555.
    
     