
    Karthaus vs. Owings.
    Appeal from Baltimore county court. Debt on an ap.-[pcalbond. The defendant below, (now appellant) pleaded I general performance, to which there was the following repli- ' cation: VAnd the said Owings, by his said-attorneys, saith, ; that by any thing, in the said- plea of- the said- Karthaus. ' pleaded, he ought not to be precluded from having and- ’ maintaining his action aforesaid against him the said- Karthaus, because, protesting that the said- Karthaus, in the con-, dition of- the said writing obligatory mentioned, from the. time of making the said writing obligatory, hath not welp and truly observed, performed, kept and fulfilled, all and-singular the matters and things ip. tin? condition of said writing obligatory mentioned and contained, which he, according to. the. condition, thereof, ought to. have observed, performed, fulfilled, and kept, to wit, at the county aforesaid, as the said Karthaus. in his said plea hath alleged; for plea nevertheless thereto the said Owings, by replying, saith, that after the making of- the said writing obligatory, and before the impetration of• the. original writ of him, the said Owings, in this cause, it was, on. the judgment of said Baltimore county court, and the. appeal-, aforesaid in the said writing obligatory mentioned, in, such, manner proceeded between the said Karthaus, and- the. said, Owings, in the said court of appeals, that the. sai.d-judgment., of,Bal- < ] 
      tbnore county court was, at a court of appeals held at tiffs city of Annapolis on the sixteenth day of December 1811, in all things affirmed and ratified; and it was then and there by the said court of appeals further considered and adjudged, that the said Owings should have execution against the said Karthaus for the costs and charges adjudged against him in Baltimore apunty court as aforesaid; and it was also considered and adjudged by the said court of appeals, then and there, that the said Owings should have a return of the said goods and chattels to be detained by him, irrepleviable for ever; and it was also then and there further considered and adjudged by the said court of appeals; that the said Owings should recover against Ihe said Karthaus the sum of fifty-five dollars and fifty-eight cents current money, for his costs and charges, in that behalf expended and sustained, by reason of his delay on his execuiion aforesaid, by the pretence of prosecuting the said appeal for correcting of errors of and upon the said premises, by the said Karthaus, as by the record thereof in the said court of appeals remaining more fully appears. And the said Owings avers, that the said Karthaus hath not paid or satisfied to him, the said Outings, the damages, costs and charges; so adjudged to him the said Oivings in Said county court, and the said sum of current money, so adjudged to the said Outings by the said court of appeals,, or any part thereof, or either of them; and that he the said Karthaus hath not made return of the said goods and chattels to him the said Owings; and this the said Owings is ready to verify, and so forth. Wherefore he prays judgment, and his debt aforesaid, together with his damages sustained by occasion of his detention thereof, to him to be adjudged, and so forth.”
    
      I ' ; ' ’fhe true con» Btruction of the ■words 4<prosecute ~with effect" in an appeal bond, is ihsit the appellant shall prosecute the appeal to a successful termination, or -a reversal of the judgment
    ’ Where a judgv sroent in replevin for the return of the goods shall be affiímed, the value of the goods-, (if they have not been restored,) & the costs of suit, would seem to he the true standard by which the damages of the appellee should be measured on a suit brought on the appeal bond
    In an action on such an appeal bond, the plaintiff should reply to the plea of .performance, that the defendant did not prosecute his appeal with effect, whereby he had sustained damage to such an amount
    If a jilea, avowrv or replication, each of which is entiie, be bad in* part, it is bad for the whole. <
    A plea offender, cannot be rejoin- ] ed to part of a replication, and a demurrer to the residue
    The debt or dutv continuing, a tender should be pleaded with aprofert in curiaj and it,should con» elude, praying judgment whether the plaintiff ought to recover any damages by reason oí the nori~ payment of tire sum alleged to have been tendered
    
      The defendant rejoined a tender as' to part, and demurred as to the residue, as follows: “And the said Karthaus, by his said attorneys, as to the said replication of the said Owings to the plea of him the said Karthaus saith, that the said Oivings ought not, by reason of any thing by him iu that replication alleged, to have or maintain his action aforesaid thereof against him the said Karthaus, because he saith, that as to the costs and charges adjudged to him, the said Owings, in the county court aforesaid, and the said sum of current money adjudged to the said Owings, by the said court of appeals, he the said Karthaus has always been ready to pay and satisfy the same, arid did, before the impetrati.on of the writ in this cause, to wit, on the first day of November 1817", at the county aforesaid, tender to' the said Oivings all the said costs and charges so as aforesaid adjudged to the said Oivings by the said county court, and the said sum of current money so as aforesaid adjudg-' fed to said Oivings by said cou|| of 'appeals; and this he is ready to verify. Wherefore he prays judgment, if the said Owings his action aforesaid thereof ought to have or maintain;' and so forth. And as to so much of said replicatioh as alleges that the said Karthaus hath not made return, of said goods and chattels to him the said Ówings, in inanner and form as the same is set forth, tlie said Karthaus saith it is not sufficient in law for the said Owings to have or maintain Iris aforesaid action thereof against him the said Karthaus, and that the said Karthaus is not bound by the law of the land to' answer the same, and this he the said Karthaus is ready to .verify: Wherefore; for • want of a sufficient replication in this behalf, he the said . Karthaus - prays judgment if the Said Givings ought to have or maintain his said action thereof against him, and so forth.” The plaintiff’ demurred to the rejoinder as to part, and joined in demurrer as to the residue; as follows: “And the said Owings, as to such parts of the rejoinder of the said Karthaus; as relates to the costs and charges adjudged to him as aforesaid by the said county court and court of appeals, and the tender of the same in the said-rejoinder alleged, in the manner and form in which the same is set forth, he the said Owings saith, that the same is not sufficient iri law to preclude the said Owings from having and maintaining his said action against him the said Karthaus, and that he the said Owings is under no necessity by the law of the land otherwise to answer the same, and this he is ready to vei-ify: Wherefore, for want of a sufficient rejoinder in this particular, he the said Owings prays judgment for his debt, damages and costs aforesaid, to be to him adjudged, and so forth. And as to the residue, of the said rejoinder of the said Karthaus, the said Owings saith, that the matters in the replication aforesaid of him the said Owings contained, are sufficient in law to enable the said Owings to have and maintain his action aforesaid against him the said Karthaus, and so forth.” The defen-: dant joined in the demurrer to the- rejoinder. The connty court, pro forma, overruled the demurrer to the replication, and ruled good the demurrer to the rejoinder. An inquiry at bar was ordered, and an inquisition returned, assessing the damages sustained by the plaintiff to gl 0,271 53, and 810 costs; upon which inquisition judgment was rendered for 825,000 the debt, being the penalty of the bond, and the above costs, and costs of increase, to be released, &c. From this judgment the defendant appealed.
    The canse was argued in this court before Buchanan, Eaule, Martin, and Dorsey, J.
    Winder, for the Appellant.
    The questions which arise are, 1. Whether the plea of tender by the defendant is good for that part of the plaintiff’s demand to which it applies? 2. Whether the breach assigned by the plaintiff for not returning the goods ordered to be restored by the judgment of the court in an action of replevin, is within the condition of the appeal bond on which the suit is founded? The appeal bond presents two conditions to free the appellant from its obligation. 1st. He shall prosecute the appeal. 2d. He shall pay the damages and costs awarded in both courts, in case the judgment is affirmed. The first is complied with by bringing the record into this court, as directed by the act of 1713, ch. 4, s. 4. The second is, that he shall pay such damages and costs as shall be awarded and adjudged in both courts. The court cannot enlarge the terms of the bond, so that if the appellant paid the damages and costs, it is sufficient to discharge him. If the plea of a tender, to which the plaintiff demurred, is a good plea, the judgment must be reversed.
    
      Taney and 11. Johnson, for the Appellee,
    contended, 1. That the plea of tender was not well pleaded. That in such a plea the defendant must aver that he was ready to pay, and that he is still ready, and he must bring the money into court. 6 Bac. Ab. tit. Tender, (H.) The plea of tender in an action of debt is not in bar to the action, but to the recovery of damages. 1 Tidd’s Pr. 621. The form of the plea is given in 2 Chitty’s Plead. 432, 469. 2. That the meaning of the words in the condition of an appeal bond, “to jrrosecnle the appeal with effect,” was to reverse the judgment, or to effect some other successful termination of the appeal. Johns. Dict. tit. Effect. The appeal bond is to secure the appellee froifi the insolvency of the principal? and all antecedent sureties given; for instance, the sureties in the repleviti bond. The breach in the replication is correctly assigned:. It shows the damage sustained by not jprosecuting the appeal with effect, and that thp goods, Sic. had not been returned; Which constituted a part of the damage sustained.
   The opinion of the court, was delivered by

Dorsey, L

On the argument of the demurrefs in this tease, the true construction of the appeal bond; on which the present suit wes instituted? has been, brought into' ¿Us. cussion. On the part of the' appellant, it was contended? that the words “prosecute with effect,” mean that the party práying the appeal, shall prosecute it to final judgment? While the other side insisted, that these words imposed on the appellant.the necessity of. prosecuting the appeal to a siifcfcessful termination, ora reversal of the judgment. This-court áre of opinion, that the construction adopted by the appellee’s counsel,- is the correct one. It is certainly warranted by the grammatical meaning of the terms used; and if a different interpretation was to prevail, the bond would only be a security in those cases where the judgment be., low was given for debt, damages and costs, and for damages and costs', and judgments in replevin for a return- of the property, (being judgments in rem,J would necessarily be exempt from the operation of the bond. The act of 1713, ch. 4, which prescribes the' forui of the appeal bond? declares, that no execution on any judgment shall be delayed,- or any supersedeas on such judgment granted, upon any appeal- or writ of error, unless a bond, With sufficient sureties, be executed. If the appeal and- execution of the bond operates as a supersedeas of an execution on a judgment in replevin, it would seem, on principles- of justice,, that the security should be as comprehensive in such a case, as where the judgment was for money; upon the affirmance of a judgment for money, the obligors are imperatively an- ' swerable for the amount of the debt,, damages and costs/ the delay occasioned by the appeal being the price- paid by the appellee for' the additional security; and where a judgment in replevin, for the return of the goods, shall be af-. firmed, the value of the goods, (if they have not been restored,) and the costs of. suit, would seem to be the true standard by which the damages of the appellee should be measured on a suit brought on the appeal bond. If the appellant should dismiss his appeal, this rule would certainly prevail; and it is difficult to conceive, how. the security of the appellee can be lessened, in the event of his judgment being affirmed, as lire delay occasioned by the supersedeas would not be greater in the former than in the latter case, but generally less.

Having expressed our opinion on the, true construction of the bond, we will next advert to the pleadings in the. cause, and we think the replication cannot be sustained. The plaintiff assigns, his breach in the nonpayment of the costs of the inferior and appellate courts, and in the appellants not having made a return of the goods and chattels, in conformity to the judgment of affirmance.' This mode of replying is defective, the plaintiff should, liave replied, that the defendant did not prosecute his appeal with effect, whereby he had sustained damage to such an amount, liy this mode of replying, the pjaintiff below would have assigned a. breach in the nonperformance of an act which the defendant below had stipulated to perform, and under:, the allegation, that, the plaintiff had sustained damages to such an amount, the plaintiff’might have shown that the goods were not returned. And the court cannot but remark, that tiie pleadings, subsequent to the replication, are in.con-ect. It is an established rule in pleading, that if a plea, avowry or replication, each of which is entire, be bad in part, it is bad. for the whole.. Manchester vs. Vale, 1 Saunders, 28. (note 2.) Trueman vs. Haist, 1 Term. Rep. 40. 1 Chitty’s Plead. 644, 523, 524. Hence, it necessarily results, that a plea of tender cannot be. rejoined to part of a replication, and a demurrer filed to,the residue; and if the.law was otherwise, the plea of tender, as rejoined in this, case, would be badly pleaded. First,because the debt or duty continuing, the tender should be pleaded with a proferí in curia; 6 Bacon’s Abridgment, tit. Tender, (H 4;) and secondly, because the rejoinder concludes in. bar to the action, instead of praying judgment whether the plaintiff ought to recover any damages, by reason of the nonpayment of the sum alleged to have been tendered. See 2 Chitty’s Plead. 433, 468. 1 Tidd’s Practice, 621.

JUDGMENT KEVERSEB._  