1 Wend. 518 | N.Y. Sup. Ct. | 1828
By the Court,
It is contended, on behalf of the plaintiff in error, who was also plaintiff in the court below, that, at all events, he is entitled to judgment against the party in the appeal suit, for the whole amount of the recovery in the appeal cause, (hough the surety is only responsible for the penalty of the bond. Had the bond been several, as well as joint, a separate action in covenant might probably have been sustained against the party, for the whole recovery. But this is a joint action against the defendants upon a joint contract, upon which one of .the joint contractors is not responsible beyond the penalty, which is ten dollars. The whole, therefore, which the plaintiff can recover in this suit, is ten dollars. The amount claimed by the declaration is much greater; but that is no ground of demurrer to the declaration. The amount to be recovered, is a question upon the assessment of damages before a jury. If, therefore, judgment was given for the defendants on the demurrer on this ground, the court, I apprehend, erred.
Another objection was taken to the declaration, to wit, that it did not contain an averment that an execution had been issued on the judgment in the appeal cause. It is true that the declaration contains no such averment; and it is at-
I am of opinion, therefore, that the declaration is good in substance and form, as applicable to this case. The plaintiff, indeed, can recover but ten dollars, and must pay costs to the defendants; but that is not an objection to be taken on demurrer. The court below therefore erred, and their judgment must be reversed.
Judgment reversed.