
    Atkinson and Another v. Starbuck.
    
      Tuesday, June 10.
    Debt on a delivery-bond, the condition reciting the fi. fa. but not the judgment. Pleas, 1. No consideration. 2. The bond was obtained by fraud, covin, and misrepresentation. ' 3. Payment of the judgment before the execution issued. Held, on general demurrer, that the picas were good.
    ERROR to the Washington Circuit Court.
   Blackford, J.

— Starbuck brought an action of debt against Atkinson and another, before a justice of the peace, on a delivery-bond. The bond, which was filed before the justice as a cause of action, is in substance as follows: Know all men, &c. The condition of the above obligation is such, that whereas a writ of ji.fa. issued, &c., against the above-bound John Atkinson at the suit of Benjamin Starbuck for the sum of, &c., which has been levied, &c., on one bay mare, &c.; if, therefore, the said Atkinson shall deliver to the sheriff, on, &c., the said mare, to be then and there sold according to law, then the above obligation to be void. Pleas as follows: 1. No consideration. 2. The bond was obtained by fraud, covin, and misrepresentation. 3. Payment of the judgment before the execution issued. 4. Similar to the second. 5. Similar to the third. Replications in denial of the pleas. The cause was tried by the justice, and judgment rendered for the plaintiff. The defendants appealed.

In the Circuit Court, the plaintiff withdrew the replications, and demurred generally to the pleas. The demurrers were sustained; the damages assessed; and judgment rendered for the plaintiff.

A. C. Griffith, for the plaintiffs.

H. P. Thornton, for the defendant.

We think the pleas are good on general demurrer. As the execution is recited in the bond sued on, the were estopped from denying the existence of the execution. But the judgment is not so recited, and the defendants therefore might show there was no judgment, or that it had been paid. If, for example, the execution issued without any judgment, the goods were not subject to the levy, and the plea of no consideration was applicable to the case. It would be the same, if the judgment was paid before the execution issued; and the third and fifth pleas, therefore, are substantially good as amounting to pleas of no consideration. To the pleas of fraud, there can be no objection.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  