2 Blackf. 359 | Ind. | 1830
This was an action of debt by M’Gaughey, clerk of the Putnam Circuit Court, against Saunders and Glide-well. The declaration commences as follows:—Arthur M’Gaughey, clerk of-the Putnam Circuit Court, complains for himself and others, officers of said Court, who may be interested herein, of Henry Saunders and Robert Glidewell in custody, &c. of aplea that they render unto the said M’Gaughey, clerk as aforesaid, and others, officers of said Court, who may be interested
The proceedings in this case are very irregular. Supposing the demurrer to be correctly overruled, the judgment for the debt named in the declaration,—viz. the penalty, should not have been rendered at the time it was. On overruling the demurrer, the order of the Court should have been,—that the plaintiff ought to recover his said debt and his damages on occasion of the detention thereof; but that judgment should not be given, until the truth of the breaches assigned are inquired into and the damages assessed. After this, it would have been proper to enter the agreement of the parties referring the assessment to the Court. When the Court had made the necessary inquiry, their opinion should have been given and entered,— that the plain tiff had sustained damages,by reason of the breaches assigned, to the amount of 26 dollars and 29 cents. The next and last step to be taken was, the rendition of the final judgment for the debt in the declaration mentioned, with costs; and the award of execution for the damages assessed with costs. 1
The demurrer is signed by Glidewell alone. The fair inference is, that the parties who appeared, were the plaintiff on one side, and the defendant Glidewell on the other. The suit must therefore be considered, by the return of the writ, abated as to Saunders; and no judgment could be rendered against him.
Independently, however, of the errors in the record subsequent to the overruling of the demurrer, the Court erred in their decision on the demurrer. The words, “for himself and others, officers, &c.” should not have been inserted in the declaration. The bond was given under the statute of 1824, as a security for costs. Any person entitled to recover on it, had a right by the statute to put it in suit. The judgment for the penalty would stand as a security; and any other person entitled, might sue out a scire facias on it. No one, however, had a right to claim both for himself and “others, officers,” &c. The breach assigned in the declaration is defective. It was not sufficient to aver generally that the defendant had not paid the costs; but the amount of the costs for which the obligors were liable to the plaintiff, should have been shown.— Lawes on Assumpsit, 230. These defects in the declaration are fatal.
The judgment is reversed, &c. with costs. Cause remanded, &c.
Vol. 1. of these Rep. 74.