delivered the opinion of the Court.
After noticing the facts as above stated, he said, the defendants now contend, that by the recovery of the said judgment, upon the said first judgment of the county court, thatj^rsi judg-* ment of the county court is merged and gone. The authorities cited, to wit, from the 6th and 7th of Johns. R. come short of supporting this position. They merely show, that,when a creditor obtains judgment against his principal debtor, and also against the bail for appearance of such debtor, and imprisons the body of one, he has no right afterwards to imprison the other. It will be seen, that in such a case, the judgment against the bail is for not delivering the body, and is of course rendered for the whole debt. In the case before the Court, the recognizance was required and taken as collateral security: the plaintiffs’ then future cost should be paid at all events, and his debt kept as secure as it then was, in case the plaintiffs should eventually recover. The very failure of the defendant, Davis, to recover in that suit, was a breach of this recognizance, and rendered the defendants liable upon it for something, at least for the costs arising after the appeal was taken. This liability is for the payment of money, not for the delivery of the body; and, though this liability may extend to the whole debt, by reason of the waste of Davis's property, yet it is not for the whole debt as *302a matter of course, as in the case of bail, for delivering the body. This compares much better with the ordinary cases where there several remedies for the same debt, which are deemed con-' current, until satisfaction once obtained. The objection might s*ronS *n case of a suft against the maker of an endorsed note and judgment rendered; another suit against the endorser and judgment therein, and an attempt to pursue both, against principals or bail. There, judgment would be in favour of the endorsee, for the full debt in both cases; yet no doubt is entertained but that he may pursue both, till he has obtained one satisfaction.
The defendants further contend, that the delay of the plaintiffs in pursuing Davis, especially after the request of the defendant Baylies, the surety, is a discharge of the said surety.
The case of Paine vs. Packard, 13 Johns. It. 174, and Judge Spencer’s opinion, in King vs. Baldwin, 17 Johns. R. are relied upon.
The case oí Paine vs, Packard has never been treated as sound law, not even by the court that made the decision. T.o follow that ip this state, would be too great an innovation upon the common law. As soon as the note became due, both were liable to suit. And, if the creditor did not sue immediately, the sprefy might, have paid the debt, and then have sued in his .own pame, for remuneration, The opinion of Junge Spencer in the case of King vs. Baldwin, is cited, for the reasoning it contains. Put the decision in that case, seems to b.e, that the plaintiff does not lose his remedy against his surety, without some act by which he binds himself not to pursue the principal, at least for a time. That necessarily increases the risk of the principal, if he remains holden at all. Hence it is treated as a full discharge pfthe principal. The reason assigned for this course of decision, is, that thq surety might apply to a court of chancery, to, compel the creditor to sue the principal while he remains solvent, which right is defeated by such act of the creditor "as suspends the suit; Now, it seems doubtful whether a court of chancery ought so to interfere, merely because the creditor delays to sue the principal, and there is danger of his approaching insolvency. It seems there ought to be added the total inabil-. ity of the surety to raise money and pay the debt, so as to mature his cause of action against the principal, before the insolvency. For, without this, the remedy is worse than the difficulty to which it is to be applied. While the bill for relief is pending, the insolvency may become fatal to the debt, while the other course gives an immediate right of securing the debt, especially by our laws, where we sue by attachment.
Upon the whole, all the pleas in bar are holden insufficient.
The defendant, however, goes back to the declaration, and objects, that it is insufficient to found a judgment upon.
1. There is no averment that Justice Ware had jurisdiction of the first action. This, if a defect at all, would, according to 1st of Chitty, 355, citing Gilbert and Salkield, be a defect of form only, and require a special demurrer-
William Upham, for the plaintiffs in error. Nicholas Baylies, for the defendants in error.Further, the declaration describes what the action was, and avers Ware to be then a justice of the péace, arid by that description, he would by law have jurisdiction. Hence, it does sufficiently appear, that he had jurisdiction.
Further, the pleas, hot merely by implication, But By express averment, admit that the recognizance was taken, and judgment rendered, as stated in the declaration.
2. It is not alleged that the recognizance was ever recorded, nor
3. That the justice ever transmitted the record of the recognizance to the county court. The 4th ánd 7th of Mass. R. are cited in support of these two objections.
The powers of a justice of the peace in Massachusetts are very different from what they are in this state. In this state, he must by law record his proceedings, and the copies of his records, by him certified, are as valid evidence as thbsfe of thé higher courts. Ih Massachusetts, the justice who takes a récog1nizance, transmits the original to the county court; and it is there recorded; and it is not treated as a matter of récord, nor will debt lie upon it, till thus recorded in the county Court. Here, the justice sends up ho originals, but certifies copies of his record. And the averments here shown, accord with the facts which the law requires to exist.
With regard to the averments in this declaration, about the record of the recognizance, &c. it avers, “as by thé recordé ánd proceedings of said court, (meaning said county Court) ih said court remaining, more fully and at large appears.” And at the close, adds, “and the plaintiffs bring with them into court here, a true copy of the records and proceedings of the said writ, in the justice’s court aforesaid, together with a true copy of the appeal and bond of recognizance, as taken as aforesaid, which testifies the debt due to the said plaintiffs, in manner and form aforesaid.” These averments are a sufficient compliance with oqr law. — -See 1st of Chit. 354-5.
The declaration is adjudged sufficient, arid pleás in bár insufficient. There is, therefore, error in the judgment of the county court, and the same is reversed, and the plaintiffs recover the debt; and, on chancering the recognizance, thé plaintiffs are entitled, of course, to recover the cost that arose in the first action after the appeal was taken, and so much of their debt as they can prove they lost by the delay Occasioned by the appeal.