APRIL, 1810. Clay V. White. William White's patent, and he is entitled to recover that residue. But, inasmuch as the verdict is defective in not particularly locating in the plot White's patent, and, consequently, does not shew where that surplus lies, the verdict ought to be supplied in this particular, and therefore a venire de novo ought to be awarded. Judge FLEMING. It appears by a survey and plot made under an order of the District Court of Franklin, that Fox's patent, under which the appellant claims, contains (instead of 342) 440 acres; and it is found by the verdict, that White's patent, containing 350 acres, is included therein; but no discrimination as to the part of the plot in which the said 350 acres lie; so as to ascertain the boundaries of White's patent. Therefore, for the uncertainty, I concur in opinion that the judgment be reversed, the cause remanded to the Superior County Court of Franklin; and that a venire de novo be awarded. It is to be understood as the unanimous opinion of the Court, that a patent from the Commonwealth for waste and unappropriated lands gives to the grantee a sufficient seisin to enable him to alien, without having ever been in actual possession of the premises, by a personal entry thereon. The following was entered as the opinion of the Court: "The Court, having maturely considered, &c. is of opinion that the special verdict is uncertain and insufficient in this; that it appears by the survey, made in this cause and referred to in the said verdict, that the boundaries of the lands claimed by the lessor of the appellant under Fox's patent, contain 440 acres, within which the lands designed in the grant to the appellee White, containing 350 acres only, are found by the Jury to lie, without discriminating the metes and bounds of the lands contained in the lastmentioned patent, whereby the boundaries of the residue, of the said 440 acres to which the lessor of the appellant is entitled may be ascertained; and that the said judgment is erroneous." The same was therefore reversed and annulled, and a venire facias de novo awarded. APRIL, 1810. Clay V. White. Atwell's Administrators against Towles. Thursday, of a bond, with condition in IN an action of debt on behalf of Towles, executor of 1. At the foot Lewis, against Thomas Atwell's administrators, the instru- a penalty and ment declared upon was a bond in the usual form, from a the usual form, signed and certain Johnson Smith to Michael Montgomery, in the pe- sealed by J.S, nal sum of 179/. 14s. 4d. dated the 9th day of June, 1783, signed a writing is and conditioned to be discharged by the payment of 17s. 2d. the first day of September then next ensuing; a writing underneath in the following words: and 897. sealed by T. with A, in the fol lowing words: "IT. A. join in the above obligation with his security "I Thomas Atwell, of Prince William, do join in the J. S., and am above obligation with Johnson Smith, and am his security for the above for the above sum of eighty-nine pounds seventeen shillings (mentioning sum of -," the sum spe cified 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. 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. Quære, 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. In an action of debt on a bond, the judgment is always entered for the penalty, to be 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. 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. By virtue of the 24th section of the District Court law of 1792, 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. APRIL, 1810. Atwell's Administrators V. Towles. and two pence; as witness my hand and seal this 21st day of June, 1783. "Teste Nathan Hayes, "Richard Scott." "Thomas Atwell. (Seal.) 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 ex ecutor 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 profert 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 yet 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. APRIL, 1810. ministrators Towles. 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 evidence a Atwell's Ad. 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 Atwell, 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 1797. 14s. 4d. "the debt in the declaration mentioned," to be discharged by the payment of 89%. 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 a joint obligation, the APRIL, 1810. ministrators suit being against Atwell's administrator, and no averment that he survived Smith, the Court will not presume the Atwell's Ad- 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 89/. 17s. 2d. only, and not the penalty. V. Towles. 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 (a) 1 Rev. here. So, under the late law concerning District Courts, (a) Code, p. 77. s. 24. 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 (b) Rushton does not state a defective case. (b) But, if the declaration V. Aspinall, Doug. 679. 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 dee) Cuning- claration. (c) ham v. Herndon, 2 Call, 580. 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 pur. poses. 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 |