
    John F. Harper, executor of R. L. Smith, vs. Alexander Montgomery.
    It is no ground of demurrer to a declaration upon a supersedeas bond, that it does not aver the issuance and return of the writ of supersedeas; the bond admits the existence of the writ, and any defects in it are matters of defence upon issue; if indeed the execution of the bond does not waive all objections to previous proceedings.
    It is likewise no ground of objection to a declaration upon such a bond, that it does not set forth with sufficient averments the judgment and execution, in consequence of which, the writ of supersedeas was sued out; the bond narrates the judgment, and the execution of the bond is a waiver of the objections.
    The declaration on such a bond, averred that the writ was not prosecuted with effect, but was discharged, and that the defendant in the execution superseded by the writ, has not paid the judgment, interest and damages, whereby the bond became foreited; held, that it was a sufficient averment of damages to the plaintiff.
    Dent v. Coleman, 10 S. & M. 83, on the subject of amendments cited and confirmed.
    In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    Richard L. Smith sued Alexander Montgomery in an action of debt upon a supersedeas bond. There were several counts, but as the court only passed upon the first, it alone is inserted; it was as follows:
    “Richard L. Smith complains of Alexander Montgomery, who was summoned to answer of a plea, that he render unto the said plaintiff the sum of $2750, which he owes to, and unjustly detains from him, &c.; and whereupon the said plaintiff, by Gaines and Adison, his attorneys, say that the said defendant, on the 20th day of April, A. D. 1839, by the signature of Alex. Montgomery, and also certain persons signing their names Benj. F. Stockdon, T. H. Duggan, and John Hume, who are not sued in this action by their certain writing obligatory, sealed with their seals, and now brought here into court, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound unto Richard L. Smith, the said plaintiff, in the sum of $4272; for the payment whereof, well and truly to be made, they bound themselves, their heirs, executors, and administrators, firmly by said writing obligatory, with a condition to said writing obligatory, that whereas the said Benjamin F. Stockdon had prayed and obtained a superse-deas to restrain the said R. L. Smith from proceeding to enforce satisfaction of a judgment and execution, then in the hands of the sheriff of Hinds county, wherein the said Smith was plaintiff, and the said Stockdon and others were defendants, for the sum of $2136 damages, and interest thereon from the second day of December, A. D. 1838, and costs, — it-was provided, that if the said Stockdon should prosecute his said supersedeas with effect, or in case he should fail therein, should well and truly pay and satisfy the aforesaid judgment, and interest and damages, and should perform the judgment of the circuit court of Claiborne county in the premises, then the said obligation to be void, else to be in full force; and the said plaintiff in fact, says, that the said Stockdon did not prosecute his said supersedeas with effect, but at the November term, A. D. 1840, of said circuit court of Claiborne county, the said supersedeas was discharged; and the said Stockdon has not paid or satisfied the aforesaid judgment and interest and damages, or either of them, or any part thereof, or performed the judgment of the said circuit court of Claiborne county in the premises, whereby the said writing obligatory became forfeited; by reason whereof an action hath accrued to demand of the said defendant the sum of $2750. Yet the said defendant, although often requested, the said sum of $2750 to the said plaintiff, has not rendered or paid; but the same or any part thereof to him, the said plaintiff, to render or pay, he the said defendant, and also the said Benjamin F. Stock-don, F. H. Duggan, and John Hume, have all and each of them hitherto altogether failed and refused, and still do fail and refuse so to do, to the damage of the said plaintiff fifty dollars, and therefore he brings his suit.”
    To this first count, the defendant demurred for the following causes, viz:
    1. It does not appear from what court the supersedeas in the condition of said bond mentioned, emanated, or to what court the same was returnable; nor when the same issued, nor when the same was returnable.
    2. There is no allegation of the existence of any such writ or supersedeas as that recited in said bond.
    3. It does not appear that the plaintiff was restrained or prevented by said writ of supersedeas from enforcing satisfaction of the judgment mentioned in said bond.
    4. It does not appear that the plaintiff recovered any judgment against said Stockdon, or had caused any execution to issue, the satisfaction of which was prevented or delayed by the operation of said supersedeas.
    
    
      5. The breach assigned in said first count is wholly imperfect and insufficient in this, that it does not appear what judgment the court rendered, the non-performance of which is charged as a breach of said bond; and said breach is double in charging that the said Stockdon had not paid or satisfied the aforesaid judgment and interest and damages, or any part thereof, or performed the judgment of the said circuit court of Claiborne county.
    6. The judgment recited in said bond, refers to an execution in the hands of the sheriff of Hinds county, and there is no averment showing what judgment and execution were intended by said recital. The court below sustained the demurrer, and rendered a final judgment for the defendant. Smith having died, John F. Harper, his executor, in whose name the suit was revived, sued out this writ of error.
    
      George L. Potter, for plaintiff in error.
    1. The condition of the bond described the execution upon the judgment, superseded, as then in the hands of the sheriff of Hinds county, and he was to perform, among other things, the judgment of circuit court of Claiborne county. The bond then shows in what court the judgment was. The default is well alleged.
    It matters not from what court the supersedeas issued, or when or where returnable. The very supersedeas for which the bond was given, was duly discharged, and the bond forfeited ; that is enough. Plaintiff need not aver the existence of the writ, for the bond admits it. He need not aver that he was restrained by the supersedeas, for that was not in the condition of the bond. The bond admits the existence of judgment and execution thereon, so plaintiff need not aver their existence. As to breaches, if one is good, it suffices. No proferí need be made as insisted.
    It would be a strange rule of practice to be followed, if the suggestions of the demurrer were adopted, and plaintiffs would be constrained to plead a detailed history of causes, instead of showing, as the present rules require, only a breach of the bond sued on.
    2. The judgment should be reversed under the liberal rule of late declared by this court upon the statute, to enable the parties to get at the real merits of the case.
    -, for defendant in error.
    1. The recital of the bond is, that the principal had applied for and obtained a supersedeas, &c.
    The declaration should show that this supersedeas was issued by a court having jurisdiction, and placed in the hands of an officer authorized to execute it, or legally notified to plaintiff, so as to have effect; otherwise it was a nullity, and could not damnify him. 6 Bac. Abr. 426, 427; 6 Jacob’s Law Die. 141, note. These authorities show that if the execution had been in part executed, the supersedeas could not operate.
    In suits on bail bonds, it was held, that a declaration was defective, which did not show against whom the writ was issued. 16 Eng. Com. Law Rep. 56.
    The bond sued on is clearly a bond of indemnity. It was intended to secure the obligor from loss or damage on account of the interposition of a writ of supersedeas to restrain him from enforcing a judgment. This being the case, the plaintiff should, in his .declaration, show that he was damnified by reason of this interference. If he had no judgment, could he be injured 1 If he had no execution, or his execution was void on its face, could he be injured 1 If the supersedeas were never served on him, or otherwise used so as to affect his action, could he be injured! If these inquiries are pertinent and proper, then the declaration should contain the necessary averments of the facts to which the principles apply. 1 Freem. Ch. R. 540; 14 John. R. 177; 6 Wend. R. 456 ; 4 Cow. R. 253.
    The plea of non damnijicatus is proper in all cases of conditions to indemnify and save harmless. Therefore the declaration must show a damage resulting from a breach of some condition of the bond, for such plea only denies the allegations of the declaration. 2 How. R. 726.
    A mere negation of the words of a covenant must in itself amount to a breach, otherwise it will be insufficient.
    The recital in the bond, that a supersedeas had been granted, is no evidence that it had been used to delay or restrain the plaintiff from executing his writ of fieri facias. If such were the case, it should have been averred. 11 John. R. 6.
    (The argument as to the second count is omitted.)
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action of debt on a supersedeas bond, executed by the defendant as surety. The declaration contains two counts, to which a demurrer was filed, with numerous causes assigned as to each count. This demurrer was sustained in the circuit court.

It may be replied to the first objection urged in this court to the first count of the declaration, to wit, that it contains no averment of the issuance, return, &c., of the writ of superse-deas, that the bond set out in this count admits the existence of the writ, and any defects in it are matters of defence upon issue, if, indeed, the execution of the bond does not waive all all objections to previous proceedings. United States v. Bradley, 10 Peters, 365. Next, to the objection that the count does not set forth with sufficient averments the judgment and execution, in consequence of which the writ of supersedeas was sued out. A similar reply may be given in this, that the bond narrates a judgment, &c., and that the execution of the bond is a waiver of the objections. The averment of damage to the defendant in the writ of supersedeas is sufficient. The count avers, that the writ was not prosecuted with effect, but was discharged, and that the defendant in the execution superseded by the writ has not paid the judgment, interest, and damages, whereby the bond became forfeited. The first count is good, and consequently the demurrer should have been overruled, there being at least one sufficient count in the declaration.

As to the question of amendment, and its doctrined, pressed in this case, we deem it enough to refer to the case of Dent v. Coleman et al., 10 S. & M. 83.

The judgment is reversed, the demurrer overruled in this court, and the cause remanded for further proceedings.  