as plaintiffs and defendants. Secondly, that there can be no delivery to an obligee by himself, nor by one obligor to another obligor. And, thirdly, that inasmuch as the bond for these reasons must be held naught as to those who are both obligors and obligees, it ought to be declared void in toto; as otherwise the intention of the parties to the contract would be violated: For that the sureties must have intended to have contribution; that it could not have been intended that one of the persons who sealed the instrument should alone pay to the other the money mentioned in it; and because it could not be enforced without that construction, it should be taken to be void altogether. The delivery bond here taken is in pursuance of the laws authorizing a debtor under the service of a ca. sa. to tender to the sheriff property in discharge of his person, and then, if he chooses to do so, to give bond with security, payable to the creditor, for the forthcoming of the property at the day appointed by the sheriff for its sale. If the bond is forfeited by a failure of the debtor to deliver the property according to the condition, the law requires the sheriff to return the bond to the office of the clerk of the court from whence the execution issued, to be there safely kept and to have the force of a judgment. And the court, to whose office the bond. is returned, is authorized upon motion, on ten days' notice, to award execution thereupon for principal, interest and costs against the obligor or obligors, or any of them, in behalf of the obligee or obligees. It will be seen that whilst the statute requires the bond to be made payable to the creditor, a delivery to him is by no means essential to its validity. On the contrary, the sheriff is required to return the bond to the clerk's office; and in the case of Eppes' ex'ors v. Colley, 2 Munf. 523, the objection was taken (though overruled by this court) that the sheriff, before notice of the motion was given, had delivered the bond to the 1852. April Term. Booth V. Kinsey. creditor, instead of returning it to the clerk's office according to the act. And in the case of Turnbull, exor v. Claibornes, 3 Leigh 392, the forthcoming bond was held to be good though taken after the death of the creditor in the execution, to whom it was made payable. No question about the delivery, therefore, can arise here, out of the fact that Kinsey, who is the obligee, is also one of the sureties. The bond is a joint and several bond, and it will be seen also from the above recital of the provisions of the law that the obligee is authorized to proceed against "any of the obligors." If, therefore, some other person than Kinsey had been the third obligor to the bond, Shoemaker and Booth would have had no right to complain that the proceedings were against those two alone. It is consequently difficult to perceive how they are injuriously affected in this particular by the incapacity of the third obligor (Kinsey) to be united with them. In obtaining a judgment against Shoemaker and Booth alone, Kinsey has done no more than he would have had a perfect right under the statute to do, no matter how many other obligors there might have been in the bond; and in his proceedings no party has been placed on the record in the attitude of both plaintiff and defendant. The technical difficulties with respect to the delivery of the bond and the form of the proceeding upon it being thus obviated, I do not see why the judgment upon it was not proper; nor why Booth might not proceed to redress himself by the surety's summary proceeding under the statute, either against the principal in the bond or against his co-surety, who is Kinsey, as the circumstances of the case may require, exactly as he would or might have proceeded had some other person than Kinsey been the other surety. In this aspect of the case no injustice is done to any one. either enhanced or diminished, and Kinsey certainly cannot complain that full efficacy is given to the bond by treating him as, what he has represented himself in the bond to be, a co-surety with Booth. The laws in regard to delivery bonds have been made in ease, and for the relief, of debtors, and this court has been constant in refusing to permit any slight irregularities, either in the form of the bonds or in the mode of proceeding on them, to stand in the way of a prompt recovery upon them by the creditor. And I think that we can in this case enforce what may be fairly supposed to be the true intention of the parties, without encountering any legal absurdity or doing violence to any of the forms of pleading, in proceeding to a judgment on the bond. Concurring, therefore, as I do, with the judge of the Circuit court, that the notice was regular, and that there is no variance between it and the bond, and that a judgment could be rendered upon it against Shoemaker and Booth, I am for affirming his judgment against them. I think, however, that Booth may legally treat Kinsey as a co-surety, and may, by proceedings in equity or by motion in the Circuit court, upon proving the insolvency of Shoemaker, be relieved by paying one half of the debt. ALLEN, J. concurred in the opinions of Moncure and Daniel, J's. The following was the entry: The court is of opinion that there is no error in the judgment of the Circuit court; and the same is therefore affirmed with costs. The court is, however, also further of opinion that it is competent for the plaintiff in error, Booth, to treat the defendant in error, Kinsey, as a co-surety in the forthcoming bond in the proceedings and judgment mentioned; and in the event of the VOL. VIII.-37 1852. April Term. Booth V. Kinsey. 1852. April Term. Booth V. Kinsey. insolvency of the principal, to proceed, either by bill in equity or by motion before the said Circuit court, under the provisions of the act, 1 Rev. Code 460, for the relief of securities, to obtain against said Kinsey such an order for contribution as, modified by the fact that the said Kinsey is also the obligee in the bond, will operate to discharge the said Booth from the judgment on payment of one half of the debt and costs. judgment is therefore without prejudice to the right of the said Booth to pursue any steps he may be advised to take, either at law or in equity, for obtaining relief to the extent above indicated. This 1852. April Term. Richmond. HUNT's adm'r v. MARTIN's adm'r. (Absent Cabell, P. and Baldwin, J.) May 13th. 1. A plea which professes to go to the whole action, but answers only to a part of it, is defective and demurrable. 2. Where a defendant in detinue dies, and the action is revived against his administrator with the will annexed, the plaintiff is entitled to demand from the administrator, not only the property sued for, but damages for its detention, and the costs incurred in prosecuting the original action against the testator in his lifetime. 3. The scire facias to revive the action of detinue against the administrator should suggest the coming of the property into the hands of the administrator since the death of the testator. And the scire facias not being in the record, nor in the clerk's office of the court below, and no objection appearing to have been taken to it in that court, this court will presume that it was in all respects regular. 4. Where an action of detinue is revived against an administrator with the will annexed, and a judgment is recovered, the judgment for the damages for detention of the property and the costs should not be against the administrator per- In June 1845 Sims, as administrator of Martin, instituted an action of detinue against Eustace Hunt for the recovery of a number of slaves. The process does not seem to have been served upon Hunt, and an attachment to enforce an appearance was issued and levied on slaves. A judgment was confirmed against Hunt in the office; and at the October term of the court his death was suggested. At the May term 1846 the suit was revived against Coleman, as administrator with the will. annexed to Eustace Hunt, upon a scire facias said to be issued on the 11th of March, but it is not in the record, and the clerk of the Circuit court certified that it was not among the papers in the cause in his office. At the May term of the court Coleman appeared and pleaded the general issue, and offered three special pleas, which were objected to by the plaintiff, and rejected by the court; to the rejection of which the defendant. excepted. The third plea avers that after the suit was brought, and between the death of Hunt and the issue of process to revive the suit against the defendant, he had delivered all the slaves but one to the plaintiff, and that the plaintiff had accepted them. The first and second pleas, as to the slaves claimed in the declaration, aver that after the suit was brought, and between the death of Hunt and the issue of the process to revive the suit against the defendant, he had delivered all the slaves but one to the plaintiff, who had accepted them; and as to that one the defendant did not detain him. At the May term of the court the cause was tried, when the jury found a verdict for the plaintiff for all except one slave, and his damages were assessed at 2000 dollars. Whereupon the defendant moved the court for a new trial, but the plaintiff releasing 500 dol 1852. April Term. Hunt's adm'r V. Martin's adm'r. |