Leonard v. Fuller

The opinion of the Court was delivered November 7, 1881, by

Gordon, J.

The affidavit of defence, in this case, is wholly defective; it answers nothing which is set forth in the plaintiff’s affidavit of claim, and raises no question but one which is at once determined adversely to the affidavit by an inspection of that paper.

The claim sets forth the bond executed by Robert M. Leonard and the defendant to indemnify the plaintiff against the claims of John Dubois and Shaffer & Company. It further alleges that, in order to save the property of the firm of Fuller & Leonard from sale on execution, issped on a judgment recovered against said firm by Dubois, he, the plaintiff, was obliged to pay that judgment, and that a final decree was made in his favor, and against Robert M. Leonard, for the payment of six thousand dollars, in proceedings iu equity then pending, of which the defendant had notice, and in which she intervened. The affidavit of defence denies nothing of all this, but affirms that no breach of the condition of the bond, appears in the plaintiff’s affidavit of claim; that the decree in equity only fixed the indebtedness of Robert M. Leonard to the plaintiff, but did not charge the affiant on the said bond, and finally that she believes and expects to be able to prove, that no liability devolved upon the said Fuller by reason of any act or thing done by the said Robert M. Leonard as alleged in said bill.*

But as the affidavit of claim sets forth that Dubois did obtain judgment against both Fuller and Leonard, on the claim recited in the bond, which judgment Fuller was obliged to pay, certainly a breach of the bond does appear.

Ajs to the second paragraph of the affidavit, it may be admitted that the decree only fixed the indebtedness of Robert M. Leonard to the plaintiffs and “ did not charge the defendant on the bond,” yet this admission comes to nothing, for the inquiry, in this case, is not as to the character of the decree but the breach of the bond, neither was it to be expected that she should be charged, on account of a breach of the bond, under a bill between the plaintiff and her brother. As to the last paragraph of her affidavit, there is but the allegation that no liability devolved upon Fuller by reason of any act or thing done by Robert M. Leonard as alleged in the bill.

This is entirely too general; no particulars are given; the allegations of the bill are not set forth and denied, and it would be to no purpose if they were, for she could not, in the present case, have a retrial of what was finally settled by the decree in equity.

Judgment affirmed.