Appeal from the decision of Smith, J., at the Circuit Court of Montgomery county, held the 10th of Jlpril, 1829.

Peter Moser brought this action of debt against Eve Libenguth and John Libenguth, administrators of' Jacob Libenguth, deceased, upon a bond in these words, viz.

“Know all men by these presents—That I, Joseph Libenguth, of the borough of Potistown, and Jacob Libenguth of Potts-grove township, all of Montgomery county and state of Pennsylvania, are jointly held and firmly bound unto the said Peter Moser, of the borough of Potistown in the county of Montgomery and state of Pennsylvania, in the sum of four hundred pounds in gold or silver, lawful money current in Pennsylvania, to be paid to the said Peter Moser, or to his certáin attorney, executors, administrators, or assigns; to which payment.well and truly to be made and done, we bind ourselves, our heirs, executors, administrators, and every of them, firmly by these presents. Sealed with our seals, dated the second day of April, in the year of our Lord one thousand eight hundred and twenty-one. ■

“The condition of this obligation is such—That if the above bounden Joseph Libenguth, or Jacob Libenguth, or either of them, or their heirs, executors, administrators, or any of them, shall and do well and truly pay or cause to be paid, unto the above named Peter Moser, or to his certain attorney, executors, administrators, or assigns, the just and full sum of two hundred pounds, with lawful interest, in like money as aforesaid,- at or upon the first day of April, in the year of our Lord one thousand eight hundred and twenty-tioo, without fraud or further delay, then the above obligation to be void and of no. effect, otherwise to be and remain in full force and virtue. . Joseph Libenguth. (Seal.)

Jacob Libenguth. (Seal.)

Sealed and delivered in presence of

William Mintzer,

Jacob Missimer.”

The parts of the bond in italics were written, and the residue printed.

The cause was tried on the pleas of payment with leave to give the special matters in evidence; non est factum, and the following plea:—- ' '

“ That the writing obligatory, if any such was sealed and delivered by the said Jacob Libenguth, was sealed and delivered jointly with one Joseph Libenguth, who is still living, to wit, at Montgomery county, and not by the said Jacob Libenguth alone.”

The plaintiff replied, Non solvit and issues, and, “ That the plaintiff ought to have his action, &c., any thing in the aforesaid plea notwithstanding;.and that the said writing obligatory in the declaration mentioned was sealed and delivered by the said Jacob Libenguth jointly and severally with the said Joseph Libenguth.”

' William Mintzer, one of the subscribing witnesses, proved the execution of the bond; and that Jacob Libenguth was the surety of Joseph Libenguth in the said bond.

Henry Moser proved, that the consideration of the said bond, was the purchase money of a certain house and lots of ground in Pottsgrove, purchased'by the said Joseph Libenguth from the said Peter Moser. • "

The jury, under the direction of his Honour, found a verdict for the plaintiff, for six hundred and fifty-nine dollars and thirty-six cents. ■

The defendants’ counsel, on the same day.,-moved for a nevv trial, for which the following reason was filed, viz. *

The judge charged the jury, that the bond upon which suit is brought, is á joint and several bond, and not a joint bond.

The motion for a new trial was overruled, and the defendants appealed from the decision.