Ball v. Gardner, 21 Wend. 270

Ball v. Gardner

21 Wend. 270 | N.Y. Sup. Ct. | 1839

By the Court,

Nelson, Ch. J.

The main question raised upon the .pleading is, whether the condition, of the bond taken on the suing out of the attachment, extends to and is controlled by the final result in the common pleas; in other words, whether the condition is kept by the recovery of judgment before the justice."

The statute provides for the giving of the bond, and prescribes that it shall be “ conditioned to pay "such defendant all damages and costs which he may sustain by reason of the issuing such attachment, if such plaintiff fail to recover judgment thereon.” 2 R. S. 230, a 29. See also Statutes, Sess. of 1831, p. 404, \ 135. The bond is in conformity to the statute. The question has already been decided in respect to the bond given by a non-resident plaintiff for the purpose of obtaining a warrant under this act. 7 Wendell, 434. The statute there is,- that he must give “ security for *272the payment of any sum which may be adjudged against him.” The court saw nothing in the language restricting the security to the costs before the justice, but held that the suit on the appeal was the same as the one before the court below, and the result fairly within the scope of the condition, These reasons apply with greater force in the case before us. The plaintiff in the attachment binds-himself to-pay all damages and costs that the defendant may sustain by reason of the issuing of it, if he fail to recover judgment thereon. Now it is clear that he has failed. The reversal in the common pleas on the certiorari has at least vacated the judgment before the justice; and if it proceeded upon the merits has finally disposed of the subject matter of litigation. Close v. Stuart, 4 Wendell, 95; and 9 id. 674, 678. Even if it turned upon technical ground, the suit before the justice is at an end# and a new one must be instituted,- unless a new venire i's directed to be issued, which, I believe, has never been done in a justice’s court. I need not pursue this question, as I am certain it has already been considered and decided in this court, though the case has not been reported.

It is said the replications to the first and second pleas on the record before us, depart from the declaration.- I think not. The counts charge that Gardner failed to recover judgment before the justice j the pleas set up a judgment recovered there ;■ the replications show a reversal in the common pleas, which fortifies and maintains the allegation in the counts. This must be so, if we are right in the conclusion that the bond is not restricted to the judgment as recovered by the party before the justice, but extends to the final result of the cause. The objection to the special damages alleged ■in the second count, if well taken, is unavailing here, for the matter, if inapplicable to a case of this kind, can be reached only by a special demurrer, and cannot be taken advantage of by a demurrer to .the replication.

Judgment for plaintiff.