Opinion
03-26-1812
Thatcher and Herndon v. Taylor and Cochrane, Trustees, & c. of Miller
Stanard, for the appellants. Williams, for the appellees.
An action of debt on a bond was brought by William Taylor and Thomas Cochrane trustees and executors of Thomas Miller, deceased, against Elisha Thatcher, Godlove Heiskell, and William Herndon, in the County Court of Spottsylvania. The declaration was in the usual form, demanding a debt of 2,000 dollars, and saying nothing about a condition to the bond. The defendants praying oyer, the writ and bond were spread on the record. The writ bore date the 1st of April, 1806, and was returned executed. The bond was dated November 7th, 1803, in the penal sum of 2,000 dollars, conditioned to be discharged by the payment of the legal interest on 3,660 dollars, annually, during the life of John Miller, brother of the said Thomas Miller; (the first payment to be made the first day of September, 1804, and, then, every first day of September thereafter; ) also, by the payment of 1,830 dollars, in one year after the death of the said John Miller, and the further sum of 1,830 dollars, in one year thereafter.
The defendants then pleaded " payment; " and in November, 1806, a verdict was found for " the debt in the declaration mentioned, to be discharged by the payment of 439 dollars 20 cents; it being the amount of interest up to the first day of September, 1805:" and judgment was entered accordingly.
To this judgment the plaintiffs obtained a writ of supersedeas, assigning errors; 1st, That no assignment of breaches was made; and, 2dly, That the judgment was not in conformity with the law in such cases, which requires that it should be for the debt in the declaration mentioned, to be discharged by the payment of the sum actually due at the time of rendering such judgment, and such other sum, or sums, as shall thereafter be made appear to be due.
The Superior Court of law reversed the judgment, ordered the proceedings to be set aside to the plea, and remanded the cause for further proceedings; whereupon the defendants appealed to this Court.
Stanard, for the appellants.
Williams, for the appellees.
OPINION
Wednesday, November 11th, The president pronounced the following opinion of the Court.
" The Court is of opinion, that the condition of the bond in this case being made a part of the declaration by oyer, and that condition only showing that a part of the money, thereby secured and provided for, had become due at the time of the institution of the suit, the plea of payment, put in by the defendant, only extended to such sum or sums, and not to those which might become due in future; and that issue being joined upon that plea, so understood, the judgment of the County Court was correct so far as it went; but that the same was erroneous in not reserving liberty to the plaintiffs to resort to the said judgment by scire facias to recover such other damages as might thereafter arise under the condition of the bond; and that the judgment of the Superior Court of law is also erroneous for this last omission."
Both judgments reversed, and judgment entered, that the appellee recover against the appellants 2,000 dollars, the debt in the declaration mentioned, and his costs, & c.; but this judgment may be discharged by the payment of 439 dollars 20 cents, and the said costs; " liberty being reserved to the appellee to resort to the said judgment by scire facias, to recover such other damages, as may have arisen since the institution of this suit, or may hereafter arise under the condition of the said bond."