Larned v. Bruce , 6 Mass. 57 ( 1809 )

Parsons, C. J.

The issue in law in this case is, whether the rejoinder is, or is not. a sufficient answer to the replication. And we are of opinion that the rejoinder is bad, as being a departure from the bar. The bar alleges a performance of all the conditions contained in the * bond, among which was a [*58] condition to return to Larned the horse, if he should have judgment for a return. The replication alleges such a judgment. The rejoinder does not traverse the judgment for a return, nor does it allege any return; but the defendants would confess and avoid the breach, assigned in the plaintiff’s replication by a collateral fact, which is clearly a departure from the bar.

It therefore appears to us, that the rejoinder is bad and insufficient in law. The plaintiff may recover the penalty, of the bond, unless, on a hearing in equity, pursuant to the statute of 1785, c. 22, the defendants should be entitled to relief against the forfeiture.

Rejoinder adjudged bad.

The defendants were afterwards heard in equity, and were relieved by the Court; judgment being entered only for the damages the plaintiff had sustained by the breach of the condition of the bond. ⁽¹⁾

(1) [The matter of the rejoinder, if it had been insisted upon at first, would have afforded a complete bar to the action. — Ed.]