Anderson v. Dickson

ORMOND, J. Our statute authorizing the plaintiff to assign as many breaches as he thinks proper, Clay’s Dig. 330, § 97, is a transcript of the 8 and 9 Wm. 3, c. 3, under which it has always been held, that the plaintiff may sue for the penalty of the bond, and need not assign breaches until the defendant craved oyer of the condition of the bond, and pleaded performance. [Gainesford v. Griffith, 1 Saunders, 72, in note.] But the learned commentator upon Saunders suggests, that the better plan is to set out the condition, and assign breaches in the declaration. When' that is the course pursued, as in this case, it must certainly be attended by the same consequences, as if the breaches had been [735] assigned in a replication to the plea of performance, and if they would be insufficient in the latter case, they must be so also in the former. We proceed therefore to the consideration of the breaches assigned. It is objected that the breaches are insufficient, in not alledging when, and where, the action of detinue was commenced — nor when and where, it was determined — nor that the sheriff was authorized to seize, and did seize, the slaves of the plaintiff. The bond upon which this action is brought is pi’ovided by statute, (Clay’s Dig. 317, § 31,32,) by which the plaintiff, upon making affidavit, and executing a bond, with the condition to pay the plaintiff all costs and damages he may sustain by the wrongful suing out of the writ, confers authority upon the clerk to direct the sheriff to take the property sued for into his possession, and if the defendant does not, within five days thei’eafter, execute a bond for the indemnity of the plaintiff, the sheriff delivers the property to the plaintiff, on his executing a bond, with condition to deliver the property to the defendant, in case he fails in the suit. It is upon the first of these bonds that this suit is brought. It certainly is not necessary thát the plaintiff should assign as a breach of the condition of the bond, any fact which is admitted by the bond itself; it is only necessary to alledge the existence of those facts, upon the happening of which, by the condition of the bond, the penalty of the bond attached. The condition of the bond contains a distinct admission, that a writ had been sued out, in detinue by the plaintiff at a particular time, returnable at a particular time, to the Circuit Court of Marengo, to recover of the defendant certain slaves, then ih his possession. These facts the present defendant is estopped by his deed from denying, and it was therefore not necessary to aver their existence, further than by the recital of the condition. • ■ The only fact upon the happening of which the penalty was to be forfeited, is the failure of the plaintiffs in the suit. This is sufficiently alledged by the averment, “that afterwards^ to wit, at the fall term of the Circuit Court for the county aforesaid, in the year 1843, the said' action of detinue, in the said condition mentioned, was légally terminated, and the said John Dickson did fail in said suit.” The time when the Courts are held being-regulated by statute, will be judicially noticed; the averment is [736] therefore sufficiently certain, as the “ fall,” or autumnal term in the year 1843, must have been held at the time required by law. No question is made upon the record as to the measure of damages for a breach of the condition of the bond here sued upon. Let the judgment be reversed and the cause remanded.