Pleading — Variance.*—Variance between tbe declaration and tbe evidence, and between tbe judgment and tbe declaration, is error.
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.
*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.
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.