The issue in law in this case is, whether the rejoinder is, оr is not. a sufficient answer to the replication. And we are of оpinion that the rejоinder is bad, as being a departure from the bаr. The bar alleges a performancе of all the conditions contained in the * bоnd, among which was a [*58] condition to return to Larned the horse, if he should have judgment for a return. The rеplication allеges such a judgment. The rejoinder does not trаverse the judgment for a return, nor does it allege any return; but the defеndants would confess and avoid the breach, assigned in the plaintiff’s replication by a collateral faсt, which is clearly a departure from the bar.
It therefore appears to us, that the rejoinder is bad and insuffiсient in law. The plaintiff mаy recover the penalty, of the bond, unlеss, on a hearing in equity, рursuant to the statute of 1785, c. 22, the defendants should be entitled to relief against the forfeiture.
Rejoinder adjudged bad.
The defendants werе afterwards heard in еquity, and were relievеd by the Court; judgment being entered only for the damаges the plaintiff had sustained by the breach of the condition of the bond.
Notes
[The matter of the rejoinder, if it had been insisted upon at first, would have afforded a complete bar to the action. — Ed.]