
    Thomas and Gilbert, ex’rs &c. of Gilbert, deceased vs. Cameron and others.
    A declaration on a bond given by a sheriff or other officer to be relieved from an arrest on an attachment, is not bad in substance if it omit to allege tlie misconduct for which the attachment issued ; nor is it bad in substance if it omit to specify the manner in which the plaintiff is connected with the proceeding ; it is enough that it be alleged that he is the party aggrieved, 
      
    
    It is not necessary in such declaration to aver that the attachment on which the defendant was arrested is returned; nor to allege that the defendant was called on the return day, and that his default was entered.
    The averment of the non-appearance of the obligor on the return day, is equivalent to an allegation of special damage, under which the plaintiff will be entitled to recover damages for the misconduct, and the costs of the attachment.
    A venue is not necessary in pleading an order of the court, or other matter of record; nor is it necessary to plead with a venue the issuing of the attachment.
    Where the process on which the defendant was arrested is a pluries, it is not necessary to set forth in the declaration the attachment and alias.
    
    Demurrer to declaration. The plaintiffs in the commencement of the declaration stated themselves to be assignees of Joseph Bussell, Esquire, sheriff of the county of Warren, and complained of the defendants for [60] that they render to the plaintiffs $100, which they owe to the plaintiffs and from them unjustly detain. The plaintiffs then proceed to state that by a special order of this court, upon application made by and on behalf of the plaintiffs, a writ of pluries attachment was prosecuted out of this court, tested 17th January, 1835, directed to the sheriff of Warren, commanding him to attach James I. Cameron, late sheriff of Warren and to have his body before the justices of this court, at the city hall of the city of New York, oil the first Monday of May then next, to answer for certain trespasses and contempts, &c.; that an order for bail in the sum of $100 was endorsed upon the writ, and the writ on 23d February, was delivered to the sheriff of Warren, who on the same day arrested Cameron, and Cameron and the other defendants thereupon on the same day, &c. executed a bond to the sheriff of Warren, in the name of his office, in the penal sum of $100, with a condition thereunder written, that if Cameron should appear before the justices of this court at the city hall in the city of New York, on the first Monday of May, then next, and abide the order and judgment of the court which might be made on said pluries writ of attachment, then the bond to be void. The plaintiffs then aver that Cameron did not appear on the day in the condition of the bond mentioned, whereby the bond became forfeited, and the money therein mentioned not being paid, this court on the seventh day of May, in the term of May, in the year 1835, at the city halt, in the city of New York at the request of the plaintiffs, they being the aggrieved party, ordered the bond to be prosecuted, and granted leave to the plaintiffs to prosecute the same. By reason of which premises and according to the form of the statute, &c., an action hath accrued to the plaintiffs as assignees 
      
      of the said Joseph Russell, they being the aggrieved party, to demand and have the said sum of $100. The plaintiffs then set forth the ordinary breach of non-payment, and make prof ert of the bond and of letters testamentary. The defendants put in a general demurrer to the declaration, and also assigned various special causes, noticed in the opinion of the court. The plaintiffs joined in the demurrer.
    
      S. Stevens, for the defendants.
    
      M. T. Reynolds, for the plaintiffs.
    
      
       Rayner v. Clark, 7 Barbour, 581.
    
   By the Court,

Cowen, J.

We felt quite clear against the defendants on the argument, in respect to all the causes of the demurrer urged by their counsel; but in regard that the pleading is under a new statute, we reserved the case for some farther consideration.

It was assigned as special cause of demurrer, that the action was in the debet et detinet, whereas it should have been in the detinet only: The answer to which is, that the declaration is properly in the debet et detinet, according to the settled rules of pleading. No part of the cause of action accrued to the testator in his lifetime. It was urged ore tenus on the argument, that the declaration is bad in not specifying the misconduct for which the attachment issued, so that the defendants may know the measure of damages; and also that it does not appear that the plaintiffs were the parties aggrieved by such misconduct. There is no foundation for these objections as matter of substance. The plaintiffs are sufficiently connected with the proceeding as the parties aggrieved, and the objection that the misconduct of the sheriff should be shown, belongs entirely to another stage of the cause. Non-appearance alone, at the return day, is the gravamen (2 R. S. 539, § 27); and an averment of that is equivalent to an allegation of special damage (id. § 29). The misconduct is matter of proof; at all events the non-appearance at the return day is enough to show a forfeiture of the penalty, and raise the legal intendment of some damage. If damage for specific misconduct be not proper under that general allegation, the objection can only come at the trial, on the ordinary ground that, being remote and not the direct or necessary result of the default, the defendants should therefore be apprised of the claim by pleading. It is plain to my mind, however, that the statute intended to let in a claim both for the costs of the at- - tachment and damages for misconduct, under this general allegation. [62] (§ 27 and 29).

Nor can the objection as to the want of a venue for the application and order, and the issuing of the writ be sustained. These are all judicial proceedings evidenced by the records of the court; and in legal contemplation the acis are done at the time and place of its session, which are fixed by a public statute. The declaration alleges that by special order, on the plaintiff’s application, the writ issued, tested the 17th of January, 1835, which was a day in January term, hoiden at Albany. The issuing a writ is not laid with a venue in an action on a common bail bond (2 Chit. Pl. 446). Nor is a venue ever necessary in pleading a matter of record in the higher courts (1 Chit. Pl. 250-1).

Another cause of demurrer is, that the attachment is not averred to have been returned. This is assigned as a defect in substance. It was the defendant’s duty' to appear,,although the sheriff may have neglected to return the attachment. The court has jurisdiction though no return be made. The defendant must present himself according to the condition of the bond; and the court will see that neither he nor the relator suffer any inconvenience for want of a return. The declaration by the assignee of a bail bond does not aver the return (2 Chit. Pl. 449).

Another defect, and which is urged as substantial, is said to exist in not averring the call of the defendant and entering his default of record. Whatever the rule may he in respect to a recognizance, no such form is necessary on a bail bond. The pleader was correct in following the precedent of a declaration upon a common bail bond (2 Chit. Pl. 449). The calling and default are mere matter of practice; and the practice of the court is not, in general, the subject of pleading (1 Chit. Pl. 407). The issue in an action on a bail bond is simply “ did not appear at the day,” by the plaintiff, and “ did appear at the day,” by the defendant. The mode or evidence of appearance or non-appearance, which is known under the practice to he quite artificial, is never mentioned; but only the legal effect, according to a cardinal rule which runs through all pleading. Whether the appearance he practically correct, is matter of evidence.

The only remaining cause which calls for notice is, that the de[63] claration should have averred the issuing of the original and alias, as the attachment in question appears to have been a pluries. The objection is clearly not as good as matter of substance; and not having been assigned specially, it is not necessary to inquire how it would have been regarded in that view. I have no doubt, however, that the setting forth of the original and alias would be a very useless matter in the declaration (see 1 Chit. Pl. 202, 203), which on the whole appears to he very well drawn, for one upon a new and special statute under which no regular system of pleading has yet grown up.

Judgment for plaintiffs.  