M'Clure v. Erwin , 3 Cow. 313 ( 1824 )

Curia,

per Sutherland, J.

The first point made by the plaintiff is, that the fourth plea to the first count of the declaration is bad, as it sets up matter of defence which is no , bar.

The action is brought by the plaintiff as late Sheriff of the pounty oí Steuben, upon a bond given by Benjamin Parker, the gaoler, and the defendants as his sureties, conditioned that he should well and faithfully, in all things, perform and execute the trust reposed in him as gaoler, daring his continuance in office, without fraud, deceit, or oppression ; and that he would not, at any time, suffer any prisoner committed to his charge to escápe from the prison, through his neglect until legally discharged. The first count of the declaration, after stating the bond and condition, avers, that after giving the bond, and while Parker was gaoler, one Thatshcr was committed to' the gaol under a ca. sa. at the suit of one Hines ; and that after he was so committed, Parker, being gaoler, negligently suffered qnd permitted him to escape ; by means whereof the plaintiff sustained damage, &c. To this count the defendant pleaded four separate pleas, the last only of which is in question. It is, that Hines (the plaintiff in the execution) did not, within one year from the time of the escape, prosecute an action for it against the plaintiff; and farther, that the plaintiff did not, at any time, within the year, sustain any damage by reason of the escape. (Vid. 1 R. L. 427. s. 26.) To this plea the plaintiff replied, that after the escape of Thatcher, Hines prosecuted an action of debt against the plaintiff for the escape, and recovered judgment ; and that while the suit was pending, and before judgment, the defendants had notice of it. To this replication, the defendants rejoin that they had not notice of the suit before judgment: that the defense was conducted without their privity or knowledge, and the plaintiff wholly omitted to plead or otherwise avail himself of the fact that the statute of limitation had run against the escape; and so, they say, the judgment recovered against the plaintiff was so recovered by his own neglect and default. This rejoinder the defendants concluded with a verification ; and the plaintiff demurs to it for two special causes^ viz. duplicity and a wrong conclusion.

Neither of the two formal exceptions are well taken. The rejoinder is not double within the sense of the rule relied upon. The several matters which it contains all tend to the same conclusion. The point or main proposition which it seeks to establish is, that the judgment which, Hines recova ered against the plaintiff, was recovered against him through his own neglect or default, in not availing himself in his defence of the fact that the suit was not commenced within a year after the escape. In order to maintain that proposition, the defendants sever, first, that they had no notice of the suit; and that the plaintiff defended it without their privity or knowledge. But this, of itself, is no ground of defence; for if the plaintiff had set up every matter of defence within the power of the defendants, they were not injured by the omission. This became important, therefore, only when connected with the- subsequent averment, that the plaintiff omitted to avail himself of a legal defence. Nor would the latter averment, alone, have been sufficient.The plaintiff, in his replication, had distinctly charged the defendants with notice of the suit. If that averment is material, and the defendants had omitted all answer, the notice would have stood confessed upon the record ; and been a eomplete answer to the allegation that the plaintiff had not availed himself of every legal matter of defence. The twe averments, therefore, form-one connected proposition; and-are C0Dgfj[uenj. par|;S 0f the same entire defence. (1 Chit. Pl. 512. 1 Burr. 316. 2 John. Rep. 433. id. 462.)

The rejoinder properly concluded with a verification. The averment that the plaintiff neglected to avail himself of the fact that the suit of Hines was not commenced within a year after the escape, was neW matter. The plea alleged merely, that the suit was not commenced within the year. The replication answers that allegation, by avering that the defendants had notice of the suit. The rejoinder denies the notice ; and then adds that the plaintiff neglected to avail himself of that defence. Whether this be a departure from the plea or not is a distinct question $ but it is clearly new matter; and brings the rejoinder within the established rule of pleading, that whenever new.matter is introduced on either side, the conclusion must be with a verification. (1 Chit. Pl. 537. 1 Saund. 103, n.(l)

But the material inquiry is, whether the plea and rejoinder are good in substance. The plea is substantially one of non damnifícalos. This is a good plea in all cases where the condition is to indemnify and save harmless j because it answers the condition in terms. But it is good in that casé only. (1 Saund. 117, n. (I) Codner v. Dalby, Cro. Jac. 363. Horseman v. Obbins, id. 634, Hulland v. Malken & Bristow, 2 Wils. 126. Manser’s Case, 2 Rep. 4. Woods v. Rowan, 5 John. Rep. 42. Andrus v. Waring, 20 John. Rep. 153.) The plea should go to the right of action—not to thé question of damages. The plaintiff, so far as it depénds upon the pleadings, shows his right to recover, by setting forth the bond with its condition, and alleging a breach of that condition, either general or special, as the case may require, If the defendant, by his plea, admit that the condition hae been broken, he concedes the plaintiff’s right to recover $ and by not denying the breach assigned, but instead of doing this, interposing the general plea of non-damnificatus, he, 1 in effect, admits the breach. In this case, the part of the condition alleged to be broken is, that Parker would not, at any time, suffer any prisoner to escape. The plea is, that the plaintiff, did not suffer any damage by the es-sane. The escape, and, consequently, the Breach of the condition, are thus admitted; and the right of action follows. Andrus v. Waring, (20 John. Rep. 153) is in point» That was an action upon a bond given by a Deputy Sheriff to his principal. The condition, so far as it related to the question raised upon the pleadings, was substantially the same as in this case. It was held not to be a bond of indemnity ; and the plea of non damnificatus was overruled as inapplicable. The rejoinder is bad for the same reasons, and must follow the fate of the plea. It admits the breach of the condition, alleging that the plaintiff might have avoided the consequence only of that breach.

The second count of the declaration differs from the first only in this, that it sets forth the suit and recovery by Hines against the plaintiff for the escape of Thatcher, and avers notice of that suit to the defendants. The first plea to this count denies the escape of Thatcher, and notice of Hines’ suit against the plaintiff; and concludes with a verification. The second plea denies that Thatcher was committed to gaol while Parker was gaoler, with notice of Hines' suit; and also concludes with a verification. As to the third plea, there is no question, the plaintiff having replied and taken issue upon it. The fourth plea alleges that the suit of Hines against the plaintiff was not commenced within a year after the escape; that the defendants had no notice of the suit, and that the plaintiff did not avail himself, in his defence, of the fact that it was barred by the statute of limitation. The plaintiff demurred to the first, second and fourth pleas specially ; and one cause of demurrer assigned both to the first and second pleas is, that they should have concluded to the country; and not to the Court. The exception is well taken. Those pleas deny the whole substance of the declaration. In such case the plea should conclude to the country. (1 Chit. Pl. 535. 2 T. R. 439.) The fourth plea is good in form, but bad in substance, for the reasons which have already been given in relation to the fourth plea to the first count.

Judgment for the plaintiff upon all the demurrers.