Benjamin v. Delahay

Treat, Justice,

delivered the opinion of the Court: ⁽¹⁾

This was an action of covenant brought on a bond for the payment of money.

The bond is set out, in /tree verba, in both counts of the declaration. ■

Previous to the trial in the Court below, the defendant moved the Court for a continuance of the cause, on the ground that no copy of the bond sued on had been filed. The motion was overruled, a trial had, and judgment rendered for the plaintiff.

The defendant now assigns for error the decision of the Court in overruling the motion for a continuance.

The sixth section of the practice act requires the plaintiff to file with his declaration, a copy of the instrument on which suit is brought, ten days before the Court, at which the process is returnable; and in default thereof, the Court shall continue the cause, on the application of the defendant, at the costs of the plaintiff. ⁽²⁾

The object of this requisition is, that the defendant may be notified of the particular demand sought to be recovered.

The Court is of the opinion, that that object is as fully attained by a literal description of the instrument in the declaration, as by the filing of a detached copy; and that in this case the statute has been substantially complied with.

The judgment is therefore affirmed, with costs.

Judgment affirmed.

Note. See The People v. Pearson, 1 Scam. 458, 473.

(1) Wilson, Chief Justice, was not present on the argument of this cause.

(2) R. L. 488 ; Gale’s Stat. 530.