Pevey v. Sleight, 1 Wend. 518

Pevey v. Sleight

1 Wend. 518 | N.Y. Sup. Ct. | 1828

By the Court,

Savage, Ch. J.

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-*520so true, that the bond contains no clause in the condition, from which such an averment is required. The clause, that the appellant would surrender her body in execution of the judgment, is not contained in the condition, and was omitted, probably, because the appellant was a female, and not liable to be imprisoned upon the judgment. It would certainly have been useless for the obligors to covenant that the appellant should surrender herself in execution, when, by the statute under which those proceedings were had, it is expressly enacted that no female shall be imprisoned upon any execution to be issued in pursuance of the provisions of the said act. The plaintiff should not be responsible for any defect in the appeal bond, if there was one. All that can reasonably be required of him is, to frame a good declaration upon such an instrument as the defendant has given him. If, therefore, the defendant obligates himself to pay the money at all events, when he might have been excused from such payment by surrendering himself in execntion, the plaintiff’ is not bound to issue an execution, to enable the appellant to surrenderee; though, on a bond differently drawn, he would be obliged to do so; and, in such case, he would be obliged to aver in his declaration, in a suit on such bond, that such execution had been issued, and that the appellant had not surrendered himself in execution thereon.

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.