Karthaus v. Owings , 6 H. & J. 134 ( 1823 )

The opinion of the court, was delivered by

Dorsey, L

On the argument of the demurrefs in this tease, the true construction of the appeal bond; on which the present suit wes instituted? has been, brought into' ¿Us. cussion. On the part of the' appellant, it was contended? that the words “prosecute with effect,” mean that the party práying the appeal, shall prosecute it to final judgment? While the other side insisted, that these words imposed on the appellant.the necessity of. prosecuting the appeal to a siifcfcessful termination, ora reversal of the judgment. This-court áre of opinion, that the construction adopted by the appellee’s counsel,- is the correct one. It is certainly warranted by the grammatical meaning of the terms used; and if a different interpretation was to prevail, the bond would only be a security in those cases where the judgment be., low was given for debt, damages and costs, and for damages and costs', and judgments in replevin for a return- of the property, (being judgments in rem,J would necessarily be exempt from the operation of the bond. The act of 1713, ch. 4, which prescribes the' forui of the appeal bond? declares, that no execution on any judgment shall be delayed,- or any supersedeas on such judgment granted, upon any appeal- or writ of error, unless a bond, With sufficient sureties, be executed. If the appeal and- execution of the bond operates as a supersedeas of an execution on a judgment in replevin, it would seem, on principles- of justice,, that the security should be as comprehensive in such a case, as where the judgment was for money; upon the affirmance of a judgment for money, the obligors are imperatively an- ' swerable for the amount of the debt,, damages and costs/ the delay occasioned by the appeal being the price- paid by the appellee for' the additional security; and where a judgment in replevin, for the return of the goods, shall be af-. firmed, the value of the goods, (if they have not been restored,) and the costs of. suit, would seem to be the true standard by which the damages of the appellee should be measured on a suit brought on the appeal bond. If the appellant should dismiss his appeal, this rule would certainly prevail; and it is difficult to conceive, how. the security of the appellee can be lessened, in the event of his judgment being affirmed, as lire delay occasioned by the supersedeas would not be greater in the former than in the latter case, but generally less.

Having expressed our opinion on the, true construction of the bond, we will next advert to the pleadings in the. cause, and we think the replication cannot be sustained. The plaintiff assigns, his breach in the nonpayment of the costs of the inferior and appellate courts, and in the appellants not having made a return of the goods and chattels, in conformity to the judgment of affirmance.' This mode of replying is defective, the plaintiff should, liave replied, that the defendant did not prosecute his appeal with effect, whereby he had sustained damage to such an amount, liy this mode of replying, the pjaintiff below would have assigned a. breach in the nonperformance of an act which the defendant below had stipulated to perform, and under:, the allegation, that, the plaintiff had sustained damages to such an amount, the plaintiff’might have shown that the goods were not returned. And the court cannot but remark, that tiie pleadings, subsequent to the replication, are in.con-ect. It is an established rule in pleading, that if a plea, avowry or replication, each of which is entire, be bad in part, it is bad. for the whole.. Manchester vs. Vale, 1 Saunders, 28. (note 2.) Trueman vs. Haist, 1 Term. Rep. 40. 1 Chitty’s Plead. 644, 523, 524. Hence, it necessarily results, that a plea of tender cannot be. rejoined to part of a replication, and a demurrer filed to,the residue; and if the.law was otherwise, the plea of tender, as rejoined in this, case, would be badly pleaded. First,because the debt or duty continuing, the tender should be pleaded with a proferí in curia; 6 Bacon’s Abridgment, tit. Tender, (H 4;) and secondly, because the rejoinder concludes in. bar to the action, instead of praying judgment whether the plaintiff ought to recover any damages, by reason of the nonpayment of the sum alleged to have been tendered. See 2 Chitty’s Plead. 433, 468. 1 Tidd’s Practice, 621.

JUDGMENT KEVERSEB._