Mix v. Page

Church, J. This suit is prosecuted against the bondsman in a bond of recognizance, for the prosecution of an action of Umberfield against Page. The defendant objected to the sufficiency of the declaration, and chiefly, because it is not averred therein, that the costs adjudged against Umberfield could not be had out of his estate. It is probable there may not have been uniformity of practice in this state, in the manner of declaring in actions upon bonds for prosecution; yet upon general principles of the law of pleading, we believe this declaration to be sufficient. This is an action at common law, upon a recognizance with condition; which condition is, that the plaintiff in the original suit “ should prosecute his action to effect, and pay all damages in case he should not make his plea good.” This is the entire condition, and the breach of it is fully set forth in the declaration. The common law requires no more than this. 1 Chitt. Plead. 325. Gould’s Pl. c. 4. s. 8. 22. Lockwood, v. Jones, 7 Conn. Rep. 435. per Hosmer, Ch. J. In this case, the defendant may have matter of defence, of which on the trial he might have availed himself; but unless such matter constituted a qualification of the original obligation or liability, it was not necessary to allude to it in the declaration. And therefore, the provision in the “ act concerning bail,” sec. 7. which declares, that the surety in bonds [334] ^0r Prosecut'on> shall be liable to satisfy the costs, if they cannot be had out of the estate of the principal, being entirely distinct from the statute creating or imposing the obligation» need not have been declared upon, by the plaintiff, as is now claimed ; though it might have furnished a ground of defence. Th. Ray. 65. 1 Lev. 88. Gould’s Pl. c. 4. 22. I Chitt. Pl. 228. 229. This being our opinion, it is unnecessary that we should consider the question which has been most discussed ; whether a bondsman for prosecution can be made liable, if the principal have a sufficient estate in land, or in personal estate in another state or county, to respond the costs recovered ? In regard to the first suggestion, however, we may say, that to require the creditor to resort to the land of the principal, before he can call upon the surety, is not in analogy with our law in other cases. Welton v. Scott, 4 Conn. Rep. 527. But we forbear a decision of these questions. It was also claimed, that the judgment of the superior court was erroneous, because it left undecided the motion in arrest of judgment. We do not say that a motion in arrest, cannot, in any case, be interposed, after an issue put to, and tried by the court, instead of the jury; it is certainly an unusual practice in this state; but, as in the present case, the declaration is adjudged sufficient, and as the motion in arrest, must, therefore, have been overruled, the defendant has no ground of complaint, because a formal judgment was not entered up against him upon it. There is no error in the judgment of the superior court. In this opinion the other Judges concurred. Judgment affirmed.