
    * James Otis versus William Blake and Henry Blake.
    In an action upon a bond to save harmless the obligee, by reason of his having given a receipt on behalf of the obligors, the defendants pleaded non dammficatus; the plaintiff replied the attachment of his property in the hands of his trustees, and a payment by them of a sum of money in discharge of the said suit; the defendants traverse the payment before the commencement of the action against them; it was held, that the replication was not double, and that the rejoinder was bad.
    
      This was an action of debt upon a bond executed by the defendants, in the sum of one thousand dollars.
    The defendants pray oyer of the bond, and of the condition. In the condition it is recited that Shubael Bell, a deputy sheriff, having attached the goods of the defendant William Blake, at the suit of his creditors, and having redelivered the same goods to the said William, upon the plaintiff’s giving, at the request of the defendants, a receipt and obligation to the said Bell, to have the same goods forthcoming to him, the said Bell, on demand, after judgment or other termination of the said suit, or to pay said Bell the sum of five hundred dollars, the value thereof; and the condition is, that the defendants save the plaintiff indemnified and harmless, by reason of his giving the said receipt and obligation to the said Bell.
    
    The defendants then plead that the plaintiff has never been damnified, &c.
    The plaintiff replies that, after the termination of the said suit, and before the commencement of-this action, Bell prosecuted him on his said obligation, and caused a large personal estate in the hands of his trustees to be attached, and also his real estate ; and the plaintiff also alleges that his trustees paid, out of his effects, to the said Bell, in discharge of his said suit, the sum of five hundred and twenty-three dollars and ninety-three cents; and so the defendants have not indemnified and saved him harmless against his said obligations.
    The defendants, in their rejoinder, traverse the payment of the said sum of 523 dollars 93 cents before the commencement of this suit, and conclude to the country.
    To this rejoinder the plaintiff demurs generally, and the defend ants join in demurrer.
    
      Parker, in support of the demurrer, argued that the rejoinder was bad, and no sufficient answer to the replication, [ * 337 ] * inasmuch as it admits that a suit was brought, and the plaintiff’s money stopped in the hands of his trustees ; and supposing the money was not paid before the commencement of this suit, yet enough has been showed in the replication to prove the condition of the bond broken.  The payment of the money, not being necessary to establish a forfeiture of the bond, may be rejected as surplusage.  The saving harmless is the substantial part; the manner how is form only ;  and if it be objected that the replication is double, yet duplicity is aided on general demurrer. 
    
    
      
      Davis, [solicitor-general,] for the defendants,
    argued that the re • joinder was good, as it traversed a material fact, alleged in the replication, and they could traverse but one. Indeed, it traverses the only material fact; for the mere bringing the action is no damnification, unless it be shown that the party was put to cost thereby, or it be matter of record, which this is not shown to be. But, allowing the rejoinder to be bad, the replication is bad also ; it alleges facts out of the condition of the bond; it is double and argumentative. 
    
    
      
       1 Burr. 574, Chaloner vs. Walker.
      
    
    
      
       3 D. & E. 374. — Duffield vs. Scott & Al., Dyer, 42.
    
    
      
       Strange, 681, White vs. Cleaver.
      
    
    
      
      
        Com. Dig. Pleader. E 33
    
    
      
       8 Rep. 120. — 1 Saund. 117, Cutler vs. Southern. — Cro. Jac. 133, Gewen v Roll. — Ibid. 221, Barrett vs. Fletcher. — 2 Burr. 772, Cornwallis vs. Savery.
      
    
   Parsons, C. J.

[After stating the pleadings, delivered the opinion of the Court.] The objection to the rejoinder is, that the defendants have not traversed the attachment of the plaintiff’s estate by Bell, but have tendered an issue on the traverse of a fact not alleged in the replication. For the plaintiff has not averred therein, that the trustees paid over the 523 dollars 93 cents before the commencement of this action. The defendants, in fact, appear to give up their rejoinder, but rely on the insufficiency of the replication, because it is double ; the plaintiff having, as they say, assigned two distinct breaches of the condition.

It is certainly a correct rule in pleading, that to assign two distinct breaches of the condition of a bond, in a replication to a bar in which omnia performavit or non damnificatus is pleaded, is bad, as being double. But duplicity *in pleading [ * 338 ] cannot be taken advantage of on general demurrer, but must be shown for cause on special demurrer. If, therefore, the replication was double, the defendants cannot now avail themselves of it.

But is it double ? The plaintiff, to show a damnification, alleges the securing of his real property, and also of his personal property, in the hands of his trustees, by attachment, and a subsequent appropriation of his personal property attached, to discharge Bell’s suit against him. The attachment of his estate, real and personal, was one act, in the service of one writ, and of this act the subsequent appropriation was consequential; and it is alleged rather as an aggravation of the damages resulting from the attachment, than as a distinct breach of the condition of the bond. And if the defendants had intended to defeat the action by a defence on the merits, they ought to have traversed the damnification resulting from the attachment, by denying the attachment, if the fact was with them. Not having done it, we must consider Bell as having attached the plaintiff’s property, and thereby taken it from under his control, and, as this was done before the commencement of this action, it is a damnification, which is a breach of the condition of the bond.

Upon the whole of the pleadings, it clearly appears to us that the rejoinder is bad, and not a sufficient answer in law to the plaintiff’s replication.

The defendants may, however, be relieved in equity from paying the penalty, by our awarding judgment for such a sum as will reasonably compensate the plaintiff for his damages.  