Way v. Swift

The opinion of the court was delivered by Bennett, J. — It is objected, in the argument, by the defendant, that the plaintiff’s declaration is insufficient, and we will first consider the objections taken to it. It is said the condition of the recognizance, set forth in the declaration, is variant from the one prescribed by the statute ; but we think not. The condition, as set forth in the declaration, is, “that the appellant should prosecute his appeal to effect and answer and pay all intervening damages and additional costs in the case of failure.” It is true that the statute, after the words, “ intervening damages,” adds, “ occasioned to the appellee by his being delayed.” It also closes the condition by the words; “ in case judgment be affirmedinstead of “ in case of failure,” as used in the declaration. But the legal effect is the same. Intervening damages, ex vi termini, import such as accrue between the appeal and final judgment, and it is to be intended, from the declaration, that they must accrue to the appellee as a consequence of the delay. There is but a single condition to the recognizance, and that is that j the-* appellant shall prosecute his appeal to effect. If he fails in this, the bond is forfeited. The residue of the condition is intended only to measure the extent of the liability of the bail in case of the forfeiture of the recogni-, zance, and the court will, on motion, chancer the recognizance to such sum as the plaintiff was entitled to recover for intervening damages and additional costs. It appears, from the declaration, that the judgment of the justice was affirmed in the county court, and the judgment of the county court in the supreme court. It is alleged in the declaration that the appellant did not prosecute his appeal to effect, and [395] most clearly this’averment, is well warranted from the facts set forth. Though the plaintiff has not alleged, in his declaration, any intervening damages, yet he has distinctly alleged and set forth the additional costs occasioned by the appeal. The want of an averment of intervening damages would not affect the declaration, though it might the rights of the party, on a motion to chancer. It is further objected that it is not alleged, that the judgment, the recognizance, the intervening damages or additional costs remain unpaid. In 1 Chitty Pl. 356, it is laid down, that this allegation is unnecessary. See, also, 1 Saund. 330, n. 4. If the judgment did not remain unsatisfied, it was matter of defence, and the defendant might have averred it in his plea. Whenever a profert is necessary, its omission is only cause of special demurrer. There is, then, we think, no substantial defect in the declaration, which renders it bad on general demurrer. Admitting that the defendant’s plea in bar is good, which is certainly questionable, the plaintiff’s replication is a sufficient answer. , It is a substantial denial of the facts contained in the plea. It negates the fact that Wakefield, at any time, paid to the plaintiff thirty one dollars, and that the plaintiff, in consideration of the receipt of it, promised the bail on the writ to release and discharge him from his liability, or that he received the said sum, or any other, in full satisfaction, or discharge of the hail on the writ, or in satisfaction of the defendant’s liability on his recognizance. The defendant’s plea says, in consideration of the thirty one dollars, paid by Wakefield, the plaintiff promised to discharge Hill, who was bail on the writ, from all liability as bail, and' on the judgment. It is manifest that Hill was in no way holden to respond the judgment, but as bail on the writ, and this is the only liability the case showed he was under. The averment in the plea, then, in substance, is, that the plaintiff promised to discharge such liability, and this is directly traversed. The defendant, by his plea, seems to claim that a discharge of the bail on-the writ v/as, in legal effect, a discharge of his recognizance, though he has not averred it in terms. If it is not so, most manifestly the plea is bad. The traverse, then, cannot be objectionable, on gener [396] ral demurrer,on the ground that it also negates the legal inference that the discharge of Hill from his liability as bail on the writ also discharges the defendant. In 1 Chitíy Plead. 597, it is said, if a traverse be of matter that is immaterial, or of an inference of law, the other party may demur, specially, and that a defect in a traverse is only matter of special demurrer. Judgment affirmed.